69 W. Va. 155 | W. Va. | 1911
Plaintiff has obtained a writ of error to a judgment of the circuit court of Marion county, pronounced on the 16th of June, 1908, sustaining a demurrer to his amended declaration in an action for a breach of covenant, and, on his declining to further amend, dismissing his bill. The sole question presented is whether the amended declaration sufficiently states a good cause of action. It avers that defendant, for valuable consideration fully paid, assigned to plaintiff, by contract in writing under seal, an undivided one-eighth working interest in twenty-one certain oil leases, describing them by the dates of their execution, the names of- the lessors, the number of acres of land embraced in each, and the terms of years they had to run. It also avers that defendant made certain covenants with plaintiff, which he has since broken, whereby plaintiff has suffered damages to the amount of $50,000.00. Stripped of the verbiage of formal pleading, the covenants alleged are: (1) that Bartlett agreed to relieve Millan of the payment of any part of the money necessary to keep the leases in force; or, if Bartlett preferred to suffer the leases to lapse, which it is alleged he had a right to do, then he was bound to notify Millan, and thus give him an opportunity to pay the rental and prevent their forfeiture; and, (2) that Bartlett was to assign to Millan, on his request, such leases as Bartlett might decide he would not continue to pay the rental on.
Breifly stated, the breaches assigned are: (1) that Bartlett did not relieve plaintiff of the payment of the rental necessary to keep alive the leases, and did not pay it himself; (2) that he did not notify plaintiff of his intention to let any of said leases lapse; (3) that he did not assign to plaintiff such leases
It is averred that the Fairmont Gas & Light Company acquired the whole of the leases, which, of course, included plaintiff’s one-eighth of the working interest; and that it then suffered the most valuable ones to become forfeited, and thereafter obtained new leases of the same lands. This defeated the rights of plaintiff which Bartlett was bound either to protect, or to notify plaintiff and thereby afford him an opportunity to protect for himself. The sale to, and later forfeiture by, the Fairmont Gas & Light Company constituted a breach of Bartlett’s covenants for which he is liable to plaintiff. The aver-ments show that he has caused to occur, by indirection, that which he had covenanted should not occur directly.
It was error to sustain the demurrer and dismiss plaintiff’s action, and the judgment complained of will be reversed; and this Corrrt will enter an order overruling the demurrer and reinstating the action, and will remand the case for further proceedings to be had according to law.
Reversed and Remanded.