In assumpsit the declaration contains a special count, and certain common counts for labor performed, money had and received, money due on account stated, and damages for breaches of defendant's agreement pleaded in the special count.
The bill of particulars, demanded by defendant, consists of two items, the first, to 10% of $125,000.00, commissions on sale of royalty oil and gas interests in lands situated in Roane County, West Virginia, $12,500.00; second, to difference between the price at which defendant sold said interests to IT. C. Woodyard and others and the price at which plaintiff could and would have sold and was entitled to sell the same under his contract with defendant, $30,000.00, total $42,-500.00.
The two contracts pleaded as one in the special count are each dated January 23, 1913. The first is designated by plaintiff’s counsel as the agency contract; the second, as the option contract. By the first, defendant agreed with plaintiff,
The words italicized are especially emphasized by counsel in their briefs and oral arguments, as characterizing and controlling the construction of the contracts. The first, or agency contract, provides for no compensation to Chambers; but the second contract, which in terms purports an option to plaintiff to buy the property within the stipulated period, contains, as we see, the provis,ion that “in case a sale-is made the said Chambers is to have 10% for making said sale for his services, and all over the above amount.”
As noted, the declaration pleads these contracts as one, and as together constituting the whole contract between the parties. Nothing is pleaded or claimed by way of damages for breach of the option contract to buy. Both are pleaded as one for damages for alleged breaches of defendant to pay plaintiff the commissions provided and stipulated in the second contract, for “selling or helping to sell”, or “selling or trying to sell” stipulated in the first, and within the time stipulated in both contracts, namely, on or before the completion of said Cross Well No. 1.
On the trial, on the issues joined on the plea of non-assumpsit, the verdict of the jury was for defendant, and from the judgment of nil capiat thereon, plaintiff obtained the present writ of error.
On the first question, it is fully proven, and not controverted, that Gross Well No. 1, which the contracts pleaded state was then drilling, was drilled into and completed through all the oil and gas bearing sands known to exist in the neighborhood of that well, on or before January 30, 1913. The witness Nuhfer, contractor who drilled the well, says, “We have it recorded, completed January 30, 1913, but it was completed the night before * * * * along close to midnight.” And numerous other witnesses, interested in the well, and in other territory in the vicinity thereof, also present, swear to the same fact. And it is a conceded fact that all the sands penetrated were barren of oil or gas, or in the vernacular of the oil fraternity, that the well was a “dry hole. ’ ’ The contract does not in terms define when the Cross Well should be regarded as drilled in or completed. But we know from its provisions and from its manifest purposes and objects that this provision was intended to protect the owner against depreciation due to the possibility of a dry hole, or
Plaintiff went the next day to Charleston, where he saw McDermott, Elkins and Woodyard, the purchasers, and others, and began his negotiations with them. He admits he represented to them that the Cross Well No. 1 was drilling, and that it was necessary for him to close or make sale before that well came in, for if it came in 'a good well, the price would be more, and if dry the price would be depreciated. He admits that at the time of the contract defendant told him he had offered the property through C. W. Swisher and IT. C. Woodyard, both of whom were then in Charleston, and that he was told to see them, and that he wanted him, the plaintiff, “to go and sell this property before Cross No. 1 well was drilled into the berea grit sand.” Chambers admits he told McDermott, and McDermott swears that Chambers told him, that he must make the sale before the Cross Well was drilled in, and McDermott swears that Chambers wanted him to agree to take the property and make deposit of the cash payment before that time. Wherefore, conceding ambiguity in the contract on this question, the parties are concluded by their acts and conduct as to what was meant by a completed well. Smith v. South Penn Oil Co., 59 W. Va. 205; Hays v. Forest Oil Co., 213 Pa. St. 556; Glasgow v. Chartiers Co., 152 Pa. St. 48; Archer on Oil and Gas, p. 320.
But counsel for plaintiff reply that one of the contracts says “completed”, and that the other uses the words, “drilled in and completed”, and that in construing contracts every word must be given some meaning; that a distinction should be made between “drilled in” and “completed”, and we are referred to the definitions of these words by lexicographers. When we look to the manifest purpose of these provisions, as disclosed not only by the contracts themselves, but from the acts, conduct and language of the parties, in an effort to
It is furthermore contended that the contract involved here must be construed with reference to the contract between the Fisher Oil Company, owners of Cross Well No. 1, and Nuhfer Brothers, the drilling contractors, and which contains certain provisions for plugging the well, pulling the casing, in certain contingencies, in fulfillment thereof, or the completion of the well within the meaning of that contract. But upon what principle can we say that that contract controls in any way the contract for the selling of the property involved here? The former is not even referred to in the latter. The parties here were not parties to that contract, so far, at least, as the record shows; nor is it shown that they or either of them had any knowledge of its contents. The fact is in evidence that Nuhfer Brothers did not pull the casing until after this suit was brought. Parties to one contract cannot thus be affected by 'the contracts or dealing between others, characterized as res inter alios acta. Eastburn v. Norfolk etc. R. Co., 34 W. Va. 681; Repass v. Bichmond, 99 Va. 508, 39 S. E. 160. Other cases cited in 5 Ency. Dig. Va. & W. Va. Repts. 302.
For the foregoing reasons we see no error in defendant's instruction “M”, given; saying that if the jury “believe * * * * that the Cross Well No. 1 on the 30th day of January, 1913, had been drilled through, and below all of the sands in which oil or gas is found in the same oil and gas fields or territory, in or near which the said Cross Well No. 1 was and is located, then the said well was a completed well, as contemplated by the terms of the contracts described in the plaintiff's declaration. ’ ’
On the second question, did plaintiff sell or procure purchasers for the property, as alleged? While the declaration
Those admissions were far short of indicating to Simmons a sale of his property in accordance with plaintiff’s contract. That plaintiff had not at that time made a sale is positively proven by plaintiff’s witnesses, McDermott, Elkins and others. Asked on cross-examination: “How far did you get with your negotiations with Mr. Chambers?” McDermott answered: “Why finally in the end I told him it was too large a property to buy off hand, and I wouldn’t think of buying it without investigating it, and his option didn’t give sufficient time to make a proper investigation, and advised him to return home and get additional time on his option, and secure a better price, as I thought the property was too high priced; he said he would try and do that, and that was the last time I saw him; he said he would try and do that.” And the fact is that McDermott never did buy, or become interested in the property.
We cannot detail all the evidence on this question. We give only sufficient of it to show the real situation in which plaintiff’s negotiations stood when he left Charleston. And it is an admitted fact that after parting with defendant at Eavens-wood on January 30, he never resumed his negotiations, except he says that on Simmons’s return from Charleston, he tried to get him to go back with him and close up the deal, but that Simmons declined, saying he was looking for some
Though the rule may be otherwise where no time limit is fixed, and the contract is general and not special, the law is well settled in this State, as elsewhere, that where the agency or brokerage contract to sell land is limited in time, the agent or broker must perform the contract, if unhindered by the owner, within the time stipulated in the contract, or else forfeit all right to compensation, and that no recovery can be had on the quantum meruit, for the value of services performed. 'Ice v. Maxwell, 61 W. Ya. 9; Clark & Skyles on Agency, section 778, p. 1679; Alexander v. Sherwood Conv-pany, 72 W. Ya. 195, 199; Sibbald v. Bethlehem Iron Go., 83 N. Y. 384; Parker 4. Building & Loan Association, 55 W. Ya. 134; Eugill v. Weekley, 64 W. Ya. 210, 211, 213. On this record then, how can it be contended, on principle, that plaintiff is entitled to damages, on the theory of a literal performance of the contract on his part? It seems to us that the evidence furnishes not the slightest basis on which he can make a stand on this theory of his case.
The third, and next question is, did defendant in any way interfere with the plaintiff in the performance of his contract, excusing strict fulfillment thereof by him, and entitling him to the compensation stipulated, or to any compensation. There is no pretense of any such interference by defendant between the date of the contract and the date of the drilling in and completion of the Cross Well, January 30, 1913. Between those dates plaintiff was at Charleston, and had full sway in attempting to negotiate a sale. lie failed. His authority was limited to those dates. On the drilling in of the Cross Well his authority ceased. After that he had no authority to sell, or other'authority in the premises. His contract was dead, unless renewed, or continued by act of defendant. In such cases the authorities cited would deny plaintiff compensation.
On the fourth and last question or proposition, neither pleadings nor proofs present a case of waiver of time, or extension of the contract pleaded, unless in point of pleadings such a case is covered by the common counts, and the bill
of particulars filed therewith. The first, item of the bill of
Assuming such a case to be covered by the pleadings, has it been made out by proof? The record is barren of any proof «of an extension of the contract. McDermott advised a new contract, but it was not procured, although it was suggested Iby plaintiff in his interview with defendant at Ravenswood. But there is not a syllable of evidence that a new or extended contract was made, or time waived. At the time of the ’Ravenswood interview the contract had already expired. And that defendant did not intend to make a new contract, or ■waive the terms of the old, is manifest from the fact that he ¡shortly afterwards gave an option contract to Woodyard and others, covering additional property, for fifteen days from February 1, 1913, which also expired by limitation; and thereafter and between that date and the date of sale to Woodyard and Davis and Richard Elkins, plaintiff offered the property-to others.
But what of the other theory, that plaintiff discovered the purchasers who were accepted by defendant and to ’whom he is alleged to have sold the property on the same or different terms? Plaintiff presented this theory by instructions proposed, but which we think were properly rejected by the trial court. That plaintiff did offer the property, covered by the schedules attached to his contract, to some of the parties to whom defendant afterwards sold is conceded; and that lfis services may have been of some value to defendant may also be conceded. But under a contract to sell, limited in time, he cannot claim the benefit of an unfulfilled contract. The stipulation for trying to sell and helping to sell clearly were limited to a sale that should be made during the life of plain
Moreover, the property sold by defendant in March, 1913, included other property than that covered by plaintiff’s contract, and the terms and the persons were not the same in all respects. The sale made was to Woodyarcl, Davis and Richard Elkins, and was of a four fifths interest, defendant retaining a one fifth, and while the price was the same, the property sold embraced much more than that scheduled in plaintiff’s contract ■ it included additional producing wells, and defendant became bound by his contract to complete at his own expense other wells then drilling; so we think plaintiff has failed to make a case falling under the rules of Reynolds v. Tompkins, 23 W. Va. 229, and Ice v. Maxwell, supra, and other decisions cited.
The instructions given being substantially in conformity with these views, and those rejected either opposed or substantially covered by those given, we see no reversible error in the rulings of the court thereon. It follows, therefore, that there was no error in the judgment complained of, and we are of opinión that it should be affirmed, and it will be so ordered.
Affirmed.