256 F. 648 | 8th Cir. | 1919
This is a suit by Charles B. Shaffer, the assignee of an oil and gas lease of land in Creek county, Old., against W. A. Ag-gers and others, to cancel subsequent leases, to enjoin the defendants from interfering with him in the enjoyment of his lease, and for other relief. Upon final hearing the plaintiff, Shaffer, was awarded a decree (241 Fed. 139), and the defendant Aggers, a subsequent lessee, appealed.
The lease was for the term of five years and as much longer as oil or gas was found in paying quantities. The lessee paid the lessors $120 as consideration at the execution of the lease and contracted to commence a well on the premises within 12 months or thereafter
One of the lessors, H. I,. Marks, claimed to be the exclusive agent of the Blaines to receive their part of the rental payments. Marks also had a controversy with the Oklahoma bank, where the payments had been made, ahout matters for which the plaintiff was not responsible, and he desired a change to a bank in Kansas. As the time for the ninth quarterly payment was approaching there was considerable cor-
The lease under which plaintiff-claims contains no forfeiture clause, nor provision making the time of rental payments of the essence of the contract. Plaintiff’s interest in the premises was a substantial one; it was not based on a mere unilateral option, subject to the strictest construction, and forfeitable for the slightest deviation. The failure to pay at the precise time due was a pure accident or mistake. It was not intentional, nor in conscious disregard of the rights of the lessors or their grantees. The injury to the latter was not appreciable. Their position was technical and without substantial equity. Moreover, the change of the place of payment from Oklahoma to Kansas was at their instance and for their accommodation. The lease did not require plaintiff to assent to it, and had he continued making payments to the bank in Oklahoma its long familiarity with the transaction might well have resulted in a timely discovery of the mistake.
A point is made that plaintiff had no right to pay by draft. That was for the bank to determine, and it made no objection on that account. The lessors or their grantees were concerned with the credit on the bank’s books, not as to how the funds were sent. Besides, the medium employed at the time in question was in accord with the prior custom.
The decree is affirmed.