22 Ind. App. 542 | Ind. Ct. App. | 1899
— The special verdict in this case shows- that on February 20, 1895, appellee leased to TIenry B. Huffman and Andrew Foúst certain premises for gas and oil purposes, for five years, and as long as gas and oil could be produced in paying quantities; that the lease contained, among other provisions, the following: “It is agreed that, if gas is found in paying quantities, the consideration in full to the party of the first part shall be $100 per annum for the gas from each well, when utilized off the premises. The party of the second part agrees to commence a well upon the lease within one month from the execution of this lease, or, in lieu thereof, pay to the party of the first part $2 per day until commenced, or surrender lease. Second party agrees to * * * complete well number one, in two months from execution of this lease, or forfeit the same; well number two to be commenced within sixty days from the completion of well number one, or $2 per day until commenced, or forfeit the south ten acres; unavoidable accidents'excepted in all cases. * * * And it is further agreed that the second party, his heirs or assigns, shall have the right at any time to surrender up this lease, and be released from all moneys due,
One of the interrogatories was as follows: “23. Did the defendants Bettman, Watson, and Bernheimer bring the-lease sued on into court with a written release and cancelation of said lease, drily acknowledged, and file the same with their answer on the 11th day of May, 1896? Answer. Bo evidence.” It is argued that this answer is contrary to the evidence because the record shows that the answer' and cancelation filed therewith were read in evidence. It. was not for the jury to say whether the papers introduced in evidence amounted to a release and cancelation, and whether they were duly acknowledged. The question not-only asks for more than a single fact, but asks for a conclusion. It was for the court to say what effect certain written instruments should have, and whether they had been duly executed. The question was improperly put to the jury. Robbins v. Spencer, 121 Ind. 594; Ohm v. Tung, 63 Ind. 432; Comer v. Himes, 49 Ind. 482.
It is argued by appellants that judgment should not have been rendered for appellee for the reason that after this action was brought they surrendered the lease and were thereby
It is argued that the answer of the jury that appellants had an interest in the lease before August 2, 1895, is contrary to the evidence. The assignments on the lease show that it was assigned by the original lessee to Shepp, March 11, 1895, and was assigned by him to appellants, May 28, 1895. There is evidence that from February, 1895, Shepp represented appellants, as their agent; that on August 2, as agent for appellants, he gave appellee appellants’ check for $30, for which the receipt mentioned was given; and that, at the time, Shepp told appellee he had bought the lease, and
Appellants’ motion for a new trial, as a matter of right, was overruled, and this ruling is assigned as error. Appellants filed a disclaimer in which they disclaimed any interest in the lease or in any matter connected therewith. The only question then for trial was whether they were liable for rent up to .the time of filing the complaint. It is true the complaint asks a money judgment and a cancelation of the lease, but the judgment rendered was for money only. There was no decree canceling the lease. The only question tried was whether appellants were liable for rent up to the time of bringing the suit. The jury found as a fact that appellants were prevented from the day the suit was filed from drilling on the premises.
It is assigned as a cause for a new trial that the amount of recovery is too large. By the terms of the lease, if a well was not commenced within one month from the date of the lease, the lessees should pay $2 per day until commenced. This well was to be completed within two months from the execution of the lease. A second well was to be commenced within sixty days from the completion of the first well, or $2 per day paid until commenced. It will be seen that the time when the rental for failure to commence the second well shall begin is fixed. It can not be said that its payment was dependent upon a contingency that never happened. The time for the completion of the first well is fixed, and from that fixed time a certain rental was to be paid for failure to commence the second well. Appellee was entitled to rent up to the time of filing the suit, September 7, 1895. There is evidence that the $30 was in full for rentals for the month of August, provided the lessees would commence putting down a well the following week, and continue from day to day until completed; that the receipt was to cover nothing else;
Henley, J., absent.