108 Kan. 346 | Kan. | 1921
The opinion of the court was delivered by
The plaintiffs brought an action against the defendants asking for the cancellation of an oil and gas lease and a judgment that the defendants had no right, title or interest in the leased premises. Judgment was given for plaintiffs and defendants have taken an appeal.
On September 3, 1918, plaintiffs executed an ordinary oil and gas lease to Dan W. Clawson, on a tract of land which they occupied as their homestead. It was given for a term of five years and as much longer as either oil or gas should be produced in paying quantities, and contained a provision that—
“If no well is commenced on said land on or before September 3d, 1919, this lease shall terminate as to both parties unless the lessee on or before that date shall pay or tender the lessor the sum of eighty ($80) dollars in the manner hereinafter provided.”
It was provided that annual payments of that amount would operate to defer the commencement of a well during the term of the lease. There was a further provision that—
“All rentals due hereunder shall be paid by lessee’s check mailed, postage prepaid, to lessor at or to the Exchange State Bank of Burns, Kan., for lessor’s credit on or before the date any such rental shall become payable; said bank, by a power irrevocable, is hereby made the agent of the lessor to accept all rentals paid hereunder, and the same shall continue as the depositary of such rentals during the life of this lease regardless of changes in the ownership of said land or said rentals.”
By assignments, the defendants . Edwards, Giddings, and Kehr became joint owners of the lease with Clawson, and in March, 1919, they in turn assigned their interest in it to H. H. Patton, trustee, who was representing and holding the property for the Cassoday Oil Company. In this assignment Patton, trustee, assumed all the obligations of the lessee as stipulated in the original lease. At the expiration of the first year no well had been drilled or commenced and no rental had been paid. On September 4, 1919, plaintiff Harter went to the Ex
The general finding of the court resolves the dispute in the testimony in favor of the plaintiffs. The testimony tends to show that the nonpayment was in fact due to an oversight of Patton or the oil company, and not that provision had been made for payment by an appropriation of the amount out of Edwards’s general checking account. When Edwards learned of the nonpayment it appears that he called up Patton who was greatly surprised to learn that the rent had become due and he informed Edwárds that it was an oversight on his part and advised that he go and tender the rental and thus try and avoid a forfeiture. There is some reason to infer that it was an oversight on the part of all of the defendants because when Edwards was asked why a forfeiture had not occurred under the circumstances, he replied, “I’m going to claim now that I had the money in the bank to pay the rent.” In any view the payment of the rental was not tendered or made and nothing in Edwards’s statement to the cashier of the bank can be regarded as the equivalent of payment. A mere intention to pay or a statement of his desire to pay does not meet the requirements of the lease. Payment within the prescribed time was essential to the life of the lease. The contract prescribed the terms which kept it alive and fixed the conditions which terminated it. These conditions of the contract were not observed by the defendants and they have no right to complain of the action of the plaintiffs in demanding that the contract be enforced as it was written. (Doornbos v. Warwick, 104 Kan. 102, 177 Pac. 527; Gasaway v. Teichgraeber, 107 Kan. 340, 191 Pac. 282).
The judgment is affirmed.