23 Pa. Super. 339 | Pa. Super. Ct. | 1903
Opinion by
This action of assumpsit was brought to recover damages for the breach of a covenant in a lease, for the term of twent)rone years from June 15, 1887, “ for the sole and only purpose of drilling and operating for petroleum oil or gas,” executed by the plaintiff as lessor and the defendant as lessee. The lease is set forth at length in the opinion of the learned judge below. We need only refer to a few of its provisions. The lessee covenanted to deliver in pipe line to the credit of the lessor the one-eighth part of the petroleum oil discovered and produced on the premises; also “ if gas is obtained ” to pay to the lessor for each well drilled “ one dollar per pound for each pound pressure per annum, payable within sixty days after completion of such well.” The covenant sued upon is at the end of the lease and reads as follows : “ As additional rental it is further agreed that said party of the second part shall furnish and deliver free of cost unto the parties of the first part from and after July 1, 1887, and during the term of this lease, sufficient natural gas for heat and light, for use upon the residence premises in said borough of said parties of the first part.” It is averred in the statement of claim, and not denied in the affidavit of defense, that the defendant furnished the plaintiff'with gas until November 1,1899, at which time it was shut off from the plaintiff’s residence. He claims to recover in this suit the amount that he necessarily expended for gas to heat and light his premises, obtained elsewhere, during the three succeeding months. It is averred in the affidavit of defense that the defendant drilled one well upon the premises and marketed gas produced therefrom until some time prior to October 31, 1899, “ when the volume and pressure of the gas in said well decreased to such an extent that the defendant was unable to
The name of the plaintiff’s wife was inserted in the lease as one of the parties of- the first part, but the lease was not executed by her but only by the plaintiff and the defendant. It is alleged in the statement of claim that the lease was from the plaintiff to the defendant, and it is admitted in the affidavit of defense that “ the plaintiff did grant unto the defendant company by an instrument of writing commonly known as an oil and gas lease, dated June 15, 1887,” etc. By the pleadings, the only parties to the lease under which the defendant went into possession were the plaintiff and defendant. For aught that is alleged, it was executed and delivered without the knowledge of the plaintiff’s wife.. To hold that she was a necessary party to the action would be to assume, without warrant, that she was a party to the lease. We think the action was properly brought in the name of the lessor.
The affidavit of defense upon the question of damages is ambiguous, to say the least. It is open to the construction that what the defendant intended to deny was, not that the plaintiff was compelled to purchase gas elsewhere and to pay therefor the price stated in the declaration, but only that he was compelled thereto by the defendant’s failure to fulfil its covenant. The affidavit seems to be directed to the question of its liability for any damages, rather than to the question of the amount of damages for which it would be liable, if its failure to furnish gas during the months named was a breach of its covenant. But the fact that the defendant did not furnish gas during the months covered by the action being admitted, and it being determined as matter of law that it was bound by its covenant to do so, it follows that the plaintiff was entitled to judgment in the absence of a clear, distinct and unequivocal denial that the gas purchased by the plaintiff was reasonably necessary to heat and. light his premises, or that the price paid therefor was reasonable. Where it is not. clear whether an
Judgment affirmed.