210 S.W. 851 | Tex. App. | 1919
This is a suit for damages by the appellant against the appellees for breach of contract entered into by. and between appellant on the one part, and W. W. Dies of the other part, dated the 17th day of May, 1916. The appellees hold under mesne conveyances from Dies. The ease was tried before a jury on special issues. The third and sixth paragraphs of the contract are as follows:
“Third. The party of the second part shall develop said land for oil, and other minerals whenever it is necessary to protect said land from being drained by wells on adjacent land, and within a reasonable time, that is to say, when a well or wells shall have been completed and are producing oil in paying quantities within 200 feet of the boundary lines of the land covered by this lease. Second party is hereby authorized to partition said ten acres with Gulf Production Company. The drilling obligation herein not to be binding until said land is partitioned.”
“Sixth. The party of the first part is to be at no expense or liability whatsoever, connected with, arising from or growing out of the operation or development of .said land for oil or other minerals by second party hereunder.”
Question No. 3 submitted to the jury is as follows:
“Was any well producing oil in paying quantities brought in within 200 feet of the land on which the lease in question was located?”
The jury answered “No.”
“You are instructed that the term oil in paying quantities means that the oil produced can be marketed in such manner as to offset the expense of drilling the wells producing it and the additional expense of operating said well or wells producing the same.”
Under the testimony, it would cost from $10,000 to $15,000 to drill a well on the leased premises. A well within 200 feet of the lines of appellant’s property was brought in by the Sun Company before the institution of this suit. This well cost between $10,000 and $15,000. It produced oil for a short while, and then ceased production. The well by no means produced enough oil to pay for boring the same.
Appellant assigns as error the giving of the above instruction defining the term “oil in paying quantities,” his proposition being as follows:
“The phrase ‘oil in paying quantities,’ used in oil leases does not include, but excludes, the cost of drilling.”
The following general definition of “paying quantities” is given in Words and Phrases, vol. 6, p. 5247:
“The term ‘paying quantities,’ as used in an oil lease for a given term and as much longer as oil can be produced in paying quantities, means paying quantity to the lessee. If the well*853 pays a profit, even small, over operating expenses, it produces in paying quantity, though it may never repay its cost, and the operation as a whole may result in a loss. The phrase 'paying quantities,’ therefore, is to he construed with referenge to the operator, and by his judgment, when exercised in good faith.”
“A provision in an oil lease that' after the completion of the first well the lessee should drill a specified number of wells, in case oil should be found in paying quantities, does not mean that, if oil was found in the test or first well in a sufficient quantity to pay a profit, however small, in excess of the cost of producing it, excluding the cost of drilling the well and of equipment, then oil was found in paying quantities, witÉin the meaning of the contract, but means that additional wells are to be drilled only in case oil be found in such quantities as - would, taken in connection with other conditions, induce ordinarily prudent persons in a like business to expect a reasonable profit on the whole sum required to be expended; and whether oil was found in paying quantities is to be exclusively determined by the operator, acting in good faith.”
“We, the jury, find a verdict in favor of the defendants. L. L. Singleton, Foreman.”
Both of these verdicts were copied into the judgment rendered by the court. The special verdict was not signed by the jury, while the general verdict was. On this judgment appellant assigns two propositions: (1) That the special verdict is void because not signed by the foreman; and (2) that the jury having returned .a general verdict without any instructions from the court, and the same having been copied by the court into its judgment, the judgment is void because it cannot be determined whether the judgment is rendered on the special verdict or the general verdict.
These assignments are overruled. It is not essential to the validity of a verdict that it be signed by the foreman. Burton v. Bondies, 2 Tex. 204; Banana Co. v. Wollfe, 22 S. W. 269; Dunlap v. Raywood Rice Canal & Milling Co., 43 Tex. Civ. App. 269, 95 S. W. 43; Quanah, A. & P. Ry. Co. v. R. D. Jones Lbr. Co., 178 S. W. 861; Crosby v. Stevens, 184 S. W. 711; Calvin v. Neel, 191 S. W. 794; City of Henderson v. Fields, 194 S. W. 1004; Barker v. Ash, 194 S. W. 467.
The following proposition is taken from the brief of appellee, and we believe that It states a correct proposition of law:
“When a case is submitted to a jury on special issues, the court from the jury’s answers renders judgment. Even though the jury in addition to making answers to the questions submitted should return a general verdict as was done in this case, the judge can ignore same in rendering his judgment.” Heflin v. Burns, 70 Tex. 347, 8 S. W. 48; Dunlap v. Raywood Rice & Milling Co., 43 Tex. Civ. App. 269, 95 S. W. 43.
In view of the disposition made by us of the above assignments, all other assignments made by appellant become immaterial, and are overruled.
Finding no error in this record, this case is in all things affirmed.
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