230 P. 702 | Okla. | 1924
R.L. Cummings and Addie Cummings commenced this action in the district court of Tulsa county, Okla., against J.C. Kavanaugh and M.A. Harrison, and the Central National Bank of Tulsa, to collect from the defendants the sum of $802.73.
The petition alleged that the plaintiffs were the owners of certain lands and that Kavanaugh and Harrison were the owners of an oil and gas lease thereon and that said lease provided as follows:
"To pay the lessor for gas produced from any oil well and used off the premises at the rate of $50.00 per year, for the time during which such gas shall be used, said payments to be made each three months in advance."
It was alleged that six oil wells produced gas and the defendants used the same off the premises for a period of two and one-half years and failed to pay the plaintiffs for the same.
The Central National Bank held an interest in said lease as security to secure a lien. The defendant Harrison answered by way of general denial, admitting that he owned the lease, but denying that any gas had been used off the premises. Kavanaugh made default and judgment was rendered against him by default. The case was tried to the court without a jury. The court rendered judgment in favor of the plaintiffs and against the defendant M.A. Harrison, and rendered judgment in favor of the Central *99 National Bank. From said judgment, M.A. Harrison appeals.
For reversal, it is first contended that the judgment of the court is not sustained by sufficient evidence. The plaintiffs introduced evidence to support the allegations of the petition that there were six oil wells on the land that produced gas, and that the defendant connected said wells with a pipeline and piped said gas off the premises from February, 1918, until date of the suit, except as to one well from which gas was taken for about two years, and that the defendant had never paid for any of said gas.
This being a law action tried by the court without a jury, and there being evidence reasonably tending to support the finding of the court, it cannot be said that the judgment of the court is not sustained by sufficient evidence, and the same will not be disturbed by this court.
Plaintiff in error contends that under the holding of this court in the cases of Hammett Oil Co. v. Gypsy Oil Co.,
If the defendant contends or attempts to raise the issue that the manner of use he placed the gas to was not within the terms of the contract, nor within the contemplation of the parties at the time of making the contract, it is necessary for him to raise that issue and introduce evidence in support thereof, but in the case at bar no such issue was raised. This question, under the pleadings, does not become an issue of fact in this case.
The parties will not be permitted to present their case here upon a different theory, nor will this court try the case upon a different theory from that followed in the trial court.
The judgment of the trial court is affirmed.
McNEILL, C.J., and HARRISON, JOHNSON, BRANSON, and GORDON, JJ., concur.