Cochran v. Pew, Appeal, No. 286

Appeal, No. 286 | Pa. | Dec 30, 1893

Opinion by

Mr. Justice Mitchell,

The argument of the appellant, able and ingenious as it is, nevertheless is but another effort to escape from the rule laid down in the series of cases from Galey v. Kellerman, 123 Pa. 491" court="Pa." date_filed="1889-01-07" href="https://app.midpage.ai/document/galey-bros-v-kellerman-6239136?utm_source=webapp" opinion_id="6239136">123 Pa. 491; Wills v. Gas Co., 130 Pa. 222" court="Pa." date_filed="1889-11-12" href="https://app.midpage.ai/document/wills-v-manufacturers-n-gas-co-6239589?utm_source=webapp" opinion_id="6239589">130 Pa. 222; Ray v. Gas Co., 138 Pa. 576" court="Pa." date_filed="1891-01-05" href="https://app.midpage.ai/document/ray-v-west-penna-n-gas-co-6240164?utm_source=webapp" opinion_id="6240164">138 Pa. 576; Ogden v. Hatry, 145 Pa. 640" court="None" date_filed="1892-01-04" href="https://app.midpage.ai/document/ogden-v-hatry-6354037?utm_source=webapp" opinion_id="6354037">145 Pa. 640; Jones v. Gas Co., 146 Pa. 204" court="None" date_filed="1892-01-04" href="https://app.midpage.ai/document/jones-v-west-penna-n-gas-co-9320059?utm_source=webapp" opinion_id="9320059">146 Pa. 204; Phillips v. Vandergrift, 146 Pa. 357" court="None" date_filed="1892-01-04" href="https://app.midpage.ai/document/phillips-v-vandergrift-6354061?utm_source=webapp" opinion_id="6354061">146 Pa. 357, and Leatherman v. Oliver, 151 Pa. 646" court="Pa." date_filed="1892-11-11" href="https://app.midpage.ai/document/leatherman-v-oliver-6241102?utm_source=webapp" opinion_id="6241102">151 Pa. 646, down to Liggett v. Shira, at the present term, [reported below, page 350,] that covenants for the lease to be void, or to cease and determine etc. on failure by the lessee to comply with the conditions specified, do not make the lease void except at the option of the lessor, and that that legal effect, no matter what form or cumulation of phrases be used, can only be changed by an express stipulation that the lease shall be voidable at the option of either party or of the lessee.

The averment in the affidavit of defence that it had been “ ascertained by methods practised and approved by men skilled in the business, that neither carbon oil nor gas existed in the land leased,” and the view, based thereon, urged with so much force by the distinguished counsel, that it must now be accepted as a demonstration of science that putting down a well on land shown by exploration of neighboring territory to be dry, is a useless expense and damage, and that parties in contracting on the subject must be considered to have had this fact in mind, would be a strong argument to the jury, if the case was one for them, that the plaintiff had suffered no actual damages by the defendant’s default. But the conclusive answer in the present case is that the parties have clearly stipulated for the mode in which the trial shall be made, and it is to be by a well on this land. There is.no room for science, any more than there is for a jury, to say that it will be of no use to do it, the parties have explicitly agreed on the exact thing to be done, and the exact amount to be paid for failure to do it. The scientific nature of mining in the present day, and the certainty of scientific conclusions from exploration of neighboring territory, may be fully recognized and admitted, but nevertheless, hopeful parties may desire an actual test, and if we are to take notice as counsel suggest, of facts in the history of oil mining we know that some of the most extraordinary and profitable productions have been the result of “ wild catting ” in unpromising fields. But it is enough for us that the parties have contracted for the thing to be done and the damages for not doing it. Under such circumstances it is never open to the covenantor to say that the thing would be of no value to the covenantee if it were done.

On the terms of this covenant we see no distinction upon which it can be taken out of the rule of the authorities already referred to.

But the affidavit also sets up a cotemporaneous parol agreement that the defendants were to have the right to terminate the lease at any time when they should become satisfied that oil or gas could not be found in paying quantities. Had this been all of the affidavit on this subject it might have resolved itself into a question of proof of the agreement averred, but the affidavit goes further and states that “ there was inserted in the lease a clause in the words following,” etc., and that the defendants would not have signed except for the alleged agreement “ and the belief on the part of defendants that it was substantially expressed in the writing.” This is not an averment of a cotemporaneous parol agreement which ought to modify the written instrument, but of an agreement put into writing which the defendants construed in a certain way. It does not set up any accident or mutual mistake, but that the parties used language which the defendants thought to mean what the law says it does not mean. This is not the kind of mistake that affords a basis for reformation of the instrument, or for relief from its terms as the parties wrote them.

Judgment affirmed.

Of. McMillan v. Phila. Co., above, page 142.