169 Ind. 53 | Ind. | 1907
Suit by appellant against appellees to cancel a certain gas and oil contract. The suit was instituted and the issues made in the Delaware Circuit Court, but the venue thereof was changed, on the motion and affidavit of appellee Mutual Oil Company, to the Henry Circuit Court, where the cause was tried.
The contract, which is set forth in the complaint, states that, in consideration of $1, Charles F. Dill and wife, described as the first party, have granted unto Emmett Fraze, described as the second party, all the oil and gas under a certain described .forty acres of land, “for the purpose of drilling and operating for oil and gas,” for and during the term of five years from date, and as long as oil and gas can be found on said real estate in paying quantities or the rental is paid thereon as provided in the contract. The pro
“In case no well is completed within sixty days and number two well in sixty days thereafter from this date, then this grant shall become null and void, unless second party shall thereafter pay at the rate of $40 for each year such commencement is delayed. A deposit to the credit of the first party in the Merchants Bank, Muncie, Indiana, will be good and sufficient payment for any money falling due on this grant. First party has the right to locate roads to and from places of operation, and locate first well. If oil is found in paying quantities a well shall be drilled each thirty days thereafter until four wells are drilled or as many more as the party of the second part sees fit to drill, and further agree to leave a water well. The second party shall have * * the right to remove all its property at any time, and may cancel and annul this contract, or any undrilled portion thereof, at any time upon payment of $1 to said first party, and releasing the same of record. ’ ’
The lease was executed May 26, 1903, and this action was commenced December 31, 1903. It is alleged in the complaint that operations have not been commenced to drill a well on the land, and that no sum whatever has been paid or deposited for the delay. The complaint further alleges that the recited consideration of $1 for the execution of the agreement was not in fact paid. There are also charges that the defendants have never taken possession, but have abandoned the same. Separate paragraphs of answer were filed by the appellee oil companies, each alleging, in substance, that it was the assignee of said contract for a valuable consideration, and had taken the same without knowledge that the original consideration of $1 for the execution of said contract had not been paid; that it proposed to enter upon said land to prosecute the drilling and operation of gas and oil wells in the spring of 1904; that, while it admitted, that the sum fixed as the price of delay had not been paid, yet it had in good faith construed said contract as not requiring said payment to be made in advance, and it offered to pay
The answers of the oil companies reveal no reason for a failure to observe the provisions of their assignor’s undertaking except one which rests in negligence; such offer as, by their answers, they make to do equity, is merely to perform the letter of a hard bargain, a performance which would give to appellant no semblance of the advantage which might have inured to him by the performance of the implied undertaking concerning development and operation, which this court knows was the moving consideration in the making of the contract. "When there is read into these answers the facts, which may be presumed from their silence —facts, we may say, which the evidence shows—that appellant’s contract has been made the subject of a trafficking by speculators, that the surrounding country has been developed, that before suit was brought one of said oil companies put down a well in adjoining property, and that it is producing heavily, we have a ease in which it appears that equity would be promoted by enforcing the forfeiture stipulated for. Gadbury v. Ohio, etc., Gas Co., supra; Ohio Oil Co. v. Detamore, supra. We hold that the court erred in sustaining the demurrer to said answers.
It is further contended on behalf of appellant that he was entitled to a trial in the county in which the action was instituted, since the change of venue was granted, over his objection on the motion and affidavit of but one of the defendants, the Mutual Oil Company. Appellant’s counsel rely, in support of their contention, upon Peters v. Banta (1889), 120 Ind. 416, and cases following it, which decide that but one change from the county can be taken by either side, and that for such purpose the word “party” in the statute (§424 Burns 1908, §413 R. S. 1881), is to be understood as having been used collectively, as between two or more plaintiffs or defendants.
Judgment reversed, with a direction to sustain appellant’s demurrer to said paragraphs of answer.