*1 REPORTER 169 SOUTHWESTERN рroceeds E. Mc- the sale were J. balance of the of the ed to After tliis J. L. & Co. McCan purchased creditors, applied payment general .wares, goods, mer- and to the Can & Co. by amounting pro ap- credit, then plaintiff, whether the rata received chandise from to on pellant $1,064.53. than sufficient defend- sufficient or more About March discharge depend on purchased half inter- to the amount of other indebtedness the this balance would Marshall’s ant Sammon place business-taking firm Marshall’s est in the considerably firm, assuming due owed. more have the by all indebtedness point sufficient, than but the evi- the firm. enlighten clear, not us. It is how- McCan dence does ever, Plaintiff admitted verdict in favor various rendered various times Marshall at leaving amounting sums, a balance defendants on their cross-action was not presented it, claimed, Some warranted evidence $455.66. due facts, and must have and Sammon us in the statement of McCan after had been business guess speculation. running, they en- over their been the result of Cer- turned merchandise, tainly wares, goods, no substantial basis therefor there is tire stock of permit testimony, firm to we cannot all notes due and accounts creditors, judgment plaintiff thereon stand. all their based for the benefit of including plaintiff plaintiff. judgment directed McCan court below revers- apply of the ed, in the assets his half interest remanded. the cause payment his individual debt firm to the remanded. Reversed and plaintiff, Marshall before accrued bought Plain- business. an interest through president notes and tiff sold the also sold accounts to McCan for PETRO al. CORSICANA et OWENS price goods, received stock of (No. 629.)† LEUM CO. shown, than further therefor is Appeals (Court Amarillo. Texas. Civil goods proceeds sale May 30, for Motion 1914. On discharged plaintiff 27, 1914.) Rehearing, and accounts notes June due to it individual indebtedness $400 of the (§ 213*) Appeal 1. and Error —Presenta Necessity. It was not shown McCan. Review — tion Grounds objec- Leg. 59, declaring payment applied c. proceeds Acts 33d were exceptions charge of the court tions or not made to the McCan creditors of debts of Sammon. trial court shall be deemed letter written It is shown waived, tions, apply peremptory instruc- does not 15, 1912, plaintiff on November to McCan of a such as the direction verdict. to him Appeal and returned canceled cases, see [Ed. Note.—For other Error, Dec. Dig. 1304^1308; 1149, 1165, paid Cent. §§ his half out of notes which were four Dig. § 213.*] These notes in the business. interest Appeal testimony 719*) each. $100 (§ other were shown and Error Re —Matters viewable —Fundamental analysis Error. make of we can This is best directing a The action of the trial court in presented As to us state- evidence. the ment of apparent upon verdict an error the face unsatisfactory and facts, appellate record, which the court will con- error, appellees sider as fundamental even in the fusing, absence not seen fit to aid have assignment error. us with briefs. cases, Appeal and [Ed. Note.—For see other assignments appellant’s We will discuss Error, Dig. 2968-2982, 3490; Cent. Dec. §§ in detail. of error Dig. § 719.*] According appellant’s testimony, 10*) Validity—Unilater (§ 3. Contracts — composed and Marshall owed of McCan firm al Contract. time Sammon it a balance of A an owner of oil lands contract between company company, giving bought interest and assumed Marshall’s rentals, right which, oil, to bore Nothing firm. indebtedness upon upon acceptance by owner, extended until and Sam- indebtedness McCan or to surren- another payment goods, der the lease stock of notеs and mon turned their owner, was a unilateral void to the applied appellant accounts over being mutuality, the $5 for want of payment generally debts. Mc- of their to the no consideration nominal consideration ap- direct, company had the grant; nor had no Can where the fook the steps though boring al- a well for 18 toward apply', pellant half in- McCan’s wells three sides it drilled debt of his individual terest to question, the effect of which would be firm’s creditors as to the exclusion it, owner, on refusal of oil from to drain rental, attempted to cancel the If we assume that the of the to be done. lease; to the nature of the busi- due by appellant applied was one-half $400 proceeds temptation mining, and to the offered ness of oil a shrewd goods, notes, sale of the of purchase operator to at a nominal accounts, whole must sold price then the lands the owner ignorant value, applied so, which hold them If then the $400 $800. indefinitely speculation, neither on the individual debt McCan permitting working nor them himself another applied should firm’s debt so. do discharge'it pro tanto. This Contracts, cases, [Ed. Note.—For Dig. 21-40; Dig. owing 10.*] Dec. § If §§ firm Cent. $55.66. leave the still Dig. Rep’r Dig. Key-No. topic Series & Indexes &Am. in Deo. other oases see same and section NUMBER * For granted by Supreme error Court. † ofWrit *2 CO. PETROLEUM Tes.) CORSICANA OWENS — — (§ 73%*) — 9. Mines 78*) (§ Con and Minerals Leases 4. Mines and Minerals tracts —Duration. for Performance. Time up- company, time limit the failure to have a While such contract Under prospecting and for the on a contract or lease refuse one the owner notice ground wells, payments, a rea- oil is a have for quarterly sonable did rental boring might void, begin a limit which it of be declared to be his refusal time after years might during purpose be extensions ten which the lease well; since property quarter quarter company on the extended from to enable and to ex- pay for ment should not rentals of the lessor the real validity grant. such a con- establish the clusive cases, tract. and Mines see other [Ed. Note. —For 205-207; Dig. Dig. cases, § Dec. Minerals, Note.—For Mines and §§ Cent. other see TEd. Dig. Minerals, 200; Dig. Cent. 78.*] § Dec. § 73%.*] — — (§ 77*) Lease 5. Mines Minerals and Appeal Court, from District Wichita Coun- of Forfeiture. Waiver ty ; Judge. Martin, P. A. by permitting lessor, lessee to ex- A developing money large pend property, against oil in Action Mrs. sums of M. J. Owens may right a for- to declare waive Company Corsicana Petroleum and others. the lease. feiture Judgment defendant, Company, Petroleum cases, and see Mines other [Ed. Note.—For appeals. and and re- Reversed Dig. Dig. 204; 77.*] Minerals, § Dec. § Cent. manded. Rehearing. Motion for On Slay Mack, & Simon and Theodore all of 73*) (§ Minerals Mines and 6. —Contracts Worth, appellant. Greer, Ft. Geo. C. Conveyances “Option.;’ and — Carrigan, Montgomery Britain, Dallas, and & whereby own- (cid:127) made or lease A contract amount, granted er, all the Falls, appellee. of a certain in consideration of Wichita years, oil, etc., for ten the lands produced longer oil, etc., much as and as HALL, Owens, yielding J. one- Mrs. Maria J. paying quantities, eighth owner as to the the sur- providing produced, part all oil viving Owens, deceased, wife of M. J. and complete company a well within should the year behalf, in her own as well as for the heirs pay as a lease owner or thereafter decedent, against said during instituted suit quarter each amount a certain rental the term the completed, Brooks, receiver, until the well B. or and S. its Mrs. productive drilling full be well should aof Owens, Owens, defendants, Julia and Gus as company lease, fоr the cancellation of a lease on 188 acres upon pay- any time might ment surrender the Among quar- stipulations quarter of land. other fromit not neces- or continue payments, agreed quarterly by making the sary ter questions to the determination of the in- any right to for- disclaimed the owner and that feit the volved, following: the lease contained the thereby account lease on grantors “Witnesseth: That consider granted for a valuable twenty-eight (Citing ($28.20) ation of lars, of which is bargained, sold, and dol else. “option” and 2°/ioo grantee, receipt 5000-5002; hand 6, pp. Phrases, vol. vol. and Words hereby acknowledged, granted, has 7739.) 8, p. gram and delivered unto cases, and Mines other [Ed. Note.—For oil, gas, coal, all tee all the other minerals Dig. 201, 210; § Dig. Dec. Minerals, 73.*] §§ Cent. and under inafter that certain tract of land here described, with covenants of Convey —78*) grantors (§ warranty, and that have sole and Minerals Mines 7. convey premises right to of with' the exclusive and Contracts. ance company right drilling, operating mining, such thereon Under well, complete oil, producing gas, coal, min within for and erals with all the other months was operation such rights necessary within required to and incident complete thereto, part right it to enable to construct and as would such time within provision time; telephone pipe extension telegraph maintain payment of roadways leading months after lines, joining for 3 from ad premises com- quarterly enable the rental lands and across the each already begun complete grantors within pany 12 it ment or a well other lands erect during give buildings it time and not to struc and other and maintain develop- delay premises might the land and hold from the water tures and to use operating of a well. the commencement in and the convenience neighboring lands, cases, and this and see Miñes other [Ed. Note.—For during removing, here Dig. after the term or 205-207; either Dig. § Minerals, 78.*] Dec. §§ Gent. placed improvements any property or of, or by grantee.” erected 78*) (§ and Minerals Mines unto use —Contracts and to hold “To Conveyance years grantee, —Construction. for the term of ten of the the date for de- leased in which gas, hereof, oil, Contracts and as much fa- velopment vorable most to be construed produced paying for oil are minerals are and other preserve order yielding grantors to the quantities, the one- begin performance rights, must produced the lessee eighth its within oil all delivered saved per- time, and continue expense a reasonable premises, into free of the tanks diligence; reasonable pipe grantor’s credit, formance with reason a condition lines or discovery production royalty in- included or precedent or to the continuance oil that have been heretofore said terest sold, premises, such vesting conveyed by grantors estate reserved, agri- operations cultural in land less valuable for predecessors make the in title.” delayed, purposes and, if result agrees complete “Grantee on said speculation. (1) premises hereof, oáe the date cases, thereafter as lease see Mines [Ed. Note.—For twenty-eight ($28.20) Dig. dollars, Dig. 205-207; Minerals, rental § Cent. Dec. §§ 2»/ioo day months advance from the 6th each three 78.*] Dig. Dig. & Key-No. & Rep’r Am. Series Indexes topic other eases see and section NUMBER in Dec. * For 169 S.W.—13 REPORTER 169 SOUTHWESTERN of all fundamental tions. under for a act appellant tions were ises completion verdict resentatives, and and extend signments vision this state that in gations, granted. nessed which, lease; thе first it is our render, shall be court for a valuable accept renounce ask for upon delivery of the for a breach hereunder, of its by making the grantors ticated the of surrender ment ed it. shall hereby drill statute of this upon ror. leased and Mrs. contention, grantors. amounts and end of the term or ed), (or quires “It The substance [3] Ten [1] [2] It assignments June, 1912, a check directing continue the lease rental proper order want of lease was during limitations in of 1913 sum of quarter M. Without The court is completion.” here, thereof and has the to their made appellate when property does grant, and covenants a forfeiture full consideration thereof has liquidation fully J. then or more duty assignment'of and presented, Grantors record, of a Louis face of the county propositions grantors the existence discharged payable together Owens This period a deed sum of made in the drilling mutuality; the terms to a verdict error, tendered (chapter 59, due under understood grant disclaim a unilateral appellee. The taking nonproductive between accepted objecting *3 grantee, of error. heirs, shall quarter stipulated quarterly surrendered above mentioned,_ apply assigns.” Campbell. court consider as or the account additional instrument peremptorily héld of errors, until said agree five hereby is that upon plaintiff’s of of the action of the of this quarter we satisfactory consideration become defendant six months successors, from all deposit herein surrender, and above her the full consideration and conditions all lease and is an error recordation ($5.00) will consider the first of this record, with exclusive are submitted under all amounts error, us objections and thereafter and full force and peremptory number that notice even money paid and the trial court. full homestead contract, husband, parties hereto bind themselves time p. wells grant or grantors for null and terms, well shall contained, where- provided, fundamental er well is ground appellee propositions petition 113) precludes grant. appellant’s each of which herein payments, dollars, legal surrender charge from the date option upon instructed personal for extension and rentals of such year duly on the to claim or of times in grantee ac- trial delivery of same signed productive, conditions, and effect post had been abandon- completed apparent then expressly any pro- void; requires either instruc absence drain stipulat But objects authen- operate and herein, excep court prem This year, office here could have void wit- obli- rep- sur- the as to enable the lessee to hold it due as the unilateral re- all to ly, stipulated another to do W. of their ness of and to the after a substantial of the nical to develop minerals. is sustained been almost speculative purposes erwise. had in had no contract and no templation of the lessor when that the see. to binding upon had in premises. Generally, condition shows the gence upon vantage M. pellee $5. Line Co. held to be at variance in their construction of oil and In other contract and bore a well enforce, months, and the mere contracts for an may acquire 1913, parent ment, months; al and accepted payment toward quote Judge “do gas leases, A careful surrender gation state that contracts of this the to “Such leases vest no The facts question, neither purchase suspend operation, Guffey Va. agreement. drilled By been no breach; If at had the void, resting that the 27, lands good pass boring mining, appellee This is due to the nature the rents at the jurisdictions but, v. to do of working reading temptation rental Petroleum Co. v. Oliver It is said: Our construction oil and void for want of for three months continue but it 29 A lease should not be construed so wells the absence of a merely enforced and the unless the great weight value, Teel, uniformly the effect at a existence Gaines, in faith but with mineral leases it since the so.” Steelsmith S. E. upon the a grant equity sought only right interest had taken upon the Teel uncontroverted evidence owner of 95 Tex. seems to be settled nominal them himself nor and to hold them indefinite of the contract shows compliance attempted a nominal doing agreed interest.” trend 978, what was case show offered shrewd especially appellant’s at necessity rental of we find the appellant, will not three for one present given option by National grantors. appellee lessee has the appellee 44 any who because of want of fact, favor of the lessor. which would be which the 591, expiration option for in the instru- price no Case, supra; to bore for oil which is L. R. A. 107. upon appellant’s sides of the land authority showing them longer, canceled herein he doing premises. Ap- title time steps with the terms which it could only clearly v. lands, of oil consideration, regard 68 S. W. character, On March was unilater- this contract' of due dili favored, decisions Mrs. land. entered into was to explore to continue Gartlan, Oil & (Civ. App.) courts are under the permitting real whatever upon and nine take ad grantors what he appellee appellee ignorant operator right the les Owens, mining, in con in this a tech this is is grant. three or to This each Pipe busi they obli- 980, oth are has ap- 45 J. is 6, Tex.) OWENS v. CORSICANA PETROLEUM CO. vided for the statement er the have taken months, term the lease years), land without able June, 1911, for the is The to time must be App. was not lant extend the the purpose clearly refuse gin boring benefits sideration to tice Gaines a acter, grantor], he either must have received this mon issue, of minerals had written land, place constituted held, have ment, 607; Hodges the pleaded from under deposit on the land at this, 30th refusal said the 30th of and therefore 79 S. *4 ey conduct of his 68 v. the last-named case it is said: thorities from other “Hence, want [4] void, had nо Staley appellant League, Tex. Tex. [the rents for 60 rents and testimony result, Hines, primary contract of 443, done if the evidence had acted in his behalf to his before in accordance Appellee and it W. W. reasonable of January to purpose notice was we cannot year Civ. completed provided exclusive 590; 884; words, the in the contract and extend in order to (Civ. mutuality by Staley [the lessee] providing notice lease accept it for the reason a well. to bore the January, of estoppel 31 Tex. that or after Hines was promoting S. W. in the Teel to enable purpose refused 4 S. W. with other could is not §25, is not could assert App. 47, thereunder and forfeited, except support consent development during of facts insists, the time estoppel must Presidio Forney App.) in such and the 3d Brice, oil, money appellant, development. This was the time after (which of the fact said 108; to have the held grantor’s given assent ascertaining grant. It with the days] shown. whatever in contracts shown whether or a Civ. states bind have induced 860; having date 74 W. 32 Tex. Civ. payment since y. one these that, Roberts v. appellee on the on well, is therefore time, by surrоunding Mining wells, appellee extensions such extension. was stated to him shown such none.” App. 474, Cáse, Ward, S. grant, greater part that real consideration March have been this affected of load of cited therein. of the contract in It Mrs. her grant to time for said grant. it In a few decision land; that by Hines The extensions was been February, the injury informed of the to obtain the appears part appellees trial. Besides time, the rent appears that property, or, refusal Co. some work or the existence pipe Witherspoon fact, 25 Tex. Civ. 105; of this char Owens, against him, between proposition. on 6th, if the well McFadden, hauling, on appellee to pipe the entire that case: she would Hines uniformly days App. 358, 72 W. hold the this explored but Appellee declaring there was still or detri no con and au facts as changed of Jus that Emery Bullis, to en accept be ten might S. of appel could three when from part have instructing that pro took aft [the op- be the jury. his it, (cid:127)required forfeiture leased Tex. Civ. unless contends ness, Faulkner. induced it to of the cases work or not out estopped at all work months ting by appellee well after abandoning versed, and the cause remanded. ey vides may, case of this the appellant’s Washington terials on the money may v. W. by sides, but reference to the As stated in the her date of on tion to tion, appellee well ing be unilateral and void conduct on tract asked to shows that we are correct. Mrs. Owens and we are “No Because By In [0] It is given to is true Carpenter, in passed upon account of his failure 57, in which writ of rule discussing 117 barrels of expressly the daughter provision state, its on upon an extended .the to declare a lands within 18 months developing gives events, expenditure failure first do state that completed in lessees announced Hunt, default motion the On Motion for that because lessors again are sustained App. 430, the lessors the work held the another error the lease contract] land had cancellation, v. Rosario [to first well within be due that court to submit proceed involving to a 43 Tex. Civ. hauled lumber and the evidence verdict,, if the both maintaining expiration to sink one or court erred that has been chose to given within 6 the lessee to the in review the authorities Court. original opinion, expend large we compliance Tex. argumеnt, of about land, it case forfeiture, trial, apply $5, lessors testified holding company to be specified rehearing or to let with the at earnestly mine, may the 67 W. to cancel the was Great Western Oil Co. erred oil Mining the lessee to the main of certain acts the lessee can be and whatever Rehearing. would come within exercise this S. lessors, by day; want of Reese, J., by appellee’s statement discussed, performed by. error was refused sufficient wells appellants, bearing upon more wells on the elect this suit. judgment $12,000, he App. time, merely 15 in and to commence in the 6 months the contract in which time. But for with to that in the contract commence work work, the lease & Mill. and this sums of it is insisted trial insisted peremptorily S. W. stating 459; issue to waive upon question option, we lessees, to sink elects. his lease, but, this case. cancel the this con- to have produc- permit we are do Co., a few obliga- is re- effect, Bena With- many three lease facts mon lapse held, that him. rule wit- ma- the are up- in REPORTER 169 SOUTHWESTERN
months,
vided
sufficient
leases of
lessee
plying
in 18
jury
want of
unless
erts
S. W.
mary purpose
would
plied
the contract.
6
himself
null
sor
timé,
until the
having
have the
rights
partitioned
gin
after the
ment оf the
granted
in which
drawn
time,
wise
Brice
the
that,
sors)
see to
per month,
which was decided
option
of
express
lessees
tion,
void,
provided
lessors
the contract bound
App.
work
lute
reason
said
be contended
for failure
elect to have it so.
tinue the lease in force
paying
annum as
til
says:
shall thereafter
ing,
to drill a
tract. The result of
put
for one
“This
months thereafter within
compliance
It will be
land,
the instant
proceed
the
should
the face of
land and
operations
lease
v. McFadden
sustained. No
an end to the contract unless the
and void.’
specific
if
premises
$4.00
as declared
in which
became null and void. The lease
specified.”
with
474],
citing Emery
present
entitled to
it
under the contract.
[32
not be bound
hdve been
105,
and
for
either commence
complied
the lessee
well is
elect to
obligations
to
of its
him to
and the lessee
*5
year
to surrender
January 28, 1901, were
land was
was held
land
final division of the
case
or
Tex.
failure to
have the
be his full
would
rental;
rule
to
until
within
the lease contract
of an undivided interest of 14 acres tension of
with such
or
72
complete
prevent
land,
seen
complete
performance,
option
on
of the contract
case,
becomes
Carpenter
do the work
case
No
within
partitioned
to do
the contract
month from month month un
in g;ood
S. W.
lessors
commenced,
lessors
Civ.
pay
therein
agreement,
with
failure
prospect
exercise
It
forfeited,
payment of the annual rental
upheld
or recover
be no
‘fails
agreed.
all the
if the lessee was
a reasonable
[32
under
partitioned.’
it would
sum
the lessee
land
such cancellation
appellants
to the
this
App. 358],
might
neither,
his contract
reference
In the case of
compensation
stipulation,
a
6
effective
606.
to commence
proceed
Tex. Civ.
well
development,
undertook
ten cents
this
time limit
such failure is not
for the contract.
laid
faith
the well or
had,
League
well.
if the lessee
optional
partitioned
their
months,
benefits
the contract
sum
court
court,
he had
demand,
of the lessee
is that
Case,
within a
at the
specified
terminate it at
operations
The inference to
first
discussion
court,
seem
this
do
would
down
require
In
continue the lease
land,
the case of Rob
within
to
another
option
with
each
says:
to the contract
fact,
could
time,
could,
so? Continu-
which
the cited
The lessee
[31 Tex. Civ.
lease
have the
valid,
Judge
clear that
has the
was held
with
App. 47],
question pro
per.
or
the event
to
damages
forfeited
the contract
unpaid
to the facts
the lease
how
furnished
and to
be
to
way
in the con “and
erals
ing
tract with
his
and to
reasonable
proceed
not
held
all
Hodges
6 months
unless he
appellees
had
to
‘The
as other
to do
obligated
acre
be made
void for
prospect
provided
case
shall be
(the
develop
the
and the
the les
.events,
can it
lessors
affects contract considered and
option quarter,
grant,
Reese
bound of this
cancel
lessor count
abso-
time.
to be
paid,
land, stipulated
upon
com
case,
have hereunder and thereafter be
land shall become
rent
that enants herein
590,
suit
Ap
pri ed,
les
not
les
the
be either to surrender
op
in
74
$4
be
to
v.
6
‘and
5000-5002.
year;
charged
accord
option
ise
tions between
surrender,
deposit
claim
hereby
Contracts,
satisfactory
agree
all
notice of
cepted
grant,
same
thereof,
ation
stipulation
recordation
above
to
vided
tion:
productive,
grantee acquires
etc.,
fied work within a
fact
tract which binds the
said
term of ten
pleted,
tors for the
case of National Oil Co.
and
delivery
stipulated,
unilateral and void. To
sideration.”
tionally,
to do
rental
* * *
contract, and
ed
January
and,
form
“It
It
Even
[6]
“complete
case
the end of the
amounts
premises, has
payment
assigns.”
in consideration of the
to the
produced
decision of the
premises
the lessee not
heirs,
as
anything.
are
Apply
June
in full force
anything,
any
provided,
Here
but could
that
contract
and all
$28.20
bind
grant
further
or
if the
or thereafter
much
thereof,
grantors expressly
and not at
Grantee
fully
28th
produced
the eontz-act did not bind the
suit
right
a full and
§
this
duly
grantors
delivery
the lease rentals
successors,
shall
6, 1912,
the land
in the contract under considera
grant
the
then
What
themselves to
it is
the rule
232;
years—
a well”
null and
.option
post
contained,
parties
longer
within
and saved from the
understood and
unenforceable for want
each three
surrender,
for
terms,
stipulated:
lease
the authorities
payments,
appellants
lease
We
any
term or
authenticated,
and has the
be full
due
it has
agrees
parties
herein made to
specifiеd
do?
office
6
claim,
specific performance,
herein
the
question
have not been
dialling
pay
granted, etc.,
as
from
and all
lessee,
Words and
provisions
thereunder,
present
is
announced
one
void;
was made June
paying quantities,
had
personal representatives,
was to continue for a
legal
held
conditions,
own
grant
to
pronounced
grantors,
True,
controversy,
effect
oil, gas,
the same effect
to
been held that a
one-eighth part
of a
surrendered as herein
until said
consideration
hereto
whereupon
to
payment
shall be
bound
year
year by making
obligations,
Teel,
months
money paid
not termed this an
granted.
else.
quarter
time,
complete
enforce
for a valuable and
proper
as the
premises
renounce
grantors
to be a unilateral
sum of
or to continue
surrender
amounts then due
released and dis-
above
check
resting
right
it
ask
from
for
are
thereof
any
has
or other min-
such
to do
together
Phrases, pp.
when tender-
bound itself
1 Elliott on
grantee.”
there to the
in consider
do,
conti-acts of
well is com-
a forfeiture
for the ex-
county
in advance
to do
able
held
void in
to
payablе
mentioned,
$5.00,
quarter
a deed of
record or
promised
a
as
extend
within a
premises.
Grantors
the
and dis-
that
and cov-
to
grantors
uncondi
the leas
tuneful
6, 1911,
well on
of con
of this
limita-
prom-
a
on
be ac-
option
of all
lessee
grant
yield-
speci
gran-
upon
lease
with
545;
pro
date
con
per
find
oil,
ac-
for
as
to
Tex.)
PETROLEUM CO.
CORSICANA
OWENS
right
damages
to sufficient to show the
failure
could
comply
recover
development.”
forfeit the lease
want of
be
Such an action would
therewith?
provision
it
successfully
further
met and defeated
upon
that,
up by appellee,
the defendant
provision,
surrendered
if set
will
completed
makes it terminable
$2
ment of
of
only
within one
event
is not
$28.20,
named
year, appellee
Since the sum
the defendant.
not
and will
a nominal
months.
and thus extend the
Then
three
appellants
suppose
deprive
file suit
should
when
the lease of such character
great
oil-bearing
term
recover
value of the lease
trifling
considered,
They certainly
could
than three months.
prevail
more
action,
sum mentioned cannot be considered
in the face of
prin-
express stipulation
than nominal.
It is a well-established
to extend
ciple
of law
when
time is
if for
than
months at a
more
three
appellee.
will of one
optional
appellants
that it
is terminable
If
could
comple-
parties,
damages, require
becomes terminable
of the
will of
583;
neither recover
Ed.)
Prop. (4th
Real
either. Wash.
with-
tion of a well'nor
recover
rent
Railroad,
392,
W.
18 S.
appellee,
Tex.
Robb
out the consent of
might
Many
authorities
cited
clearly
Any attempt
unilateral and void.
instantly sustaining
principle
things
announced.
do either of these
could be
Ripley,
L.
by appellee by interposing
Co. v.
10 Wall.
that term
Marble
defeated
whereby
permitted
United
Ed.
Court
it is
States,
giving
passing upon
to one
a contract
surrender the
of $5.
to terminate it
No
of the
year’s
one will contend that
mentioned
notice,
adequate
be en-
therein is
held
could
or sufficient consider-
by Ripley
gave
anything granted
in forced
ation for
or surrendered
Ripley
giving
distinguishes
the estate
terminate
the contract.
feature
This
*6
following
year’s notice, using
language:
Carpenter Case, supra.
the
instant case from the
why specific performance
briefly
“Another reason
will
some of
We
review
the cases
is found in
decreed in this case
should
be
by appellant
cited
motion:
The consicU
performance by
Such
the want of
Carpenter
of
eration
set out in the
Case
$1
Ripley
suit of
could
be decreed
enforced
adequate
Company,
an
was held
be
consideration for
the
Marble
the
expressly stipulates
business and
may relinquish the
that he
Appellee quotes
the lease.
ease of
the
any
abandon the contract at
Guffey
Oliver,
J. M.
Petroleum Co. v.
79 S.
giving
year’s
on
general principle
of one
notice. And it
a
W.
884. The lease contract
that
was
case
and con-
when,
personal in-
that
any
$1,
capacity,
contract,
based
a consideration of
nature of the
the
incapable
cause,
being
other
enforced
incapable
a
stipulation.
tains this
against
party
equally
party,
one
that
* * *
party,
“It is
that the second
enforcing
specifically against
it
upon
parly
any
$2.00
way
though
other,
latter
its execution
part,
as-
of the second
its successors or
might in
itself be free
the difficulties at-
party
assigns,
first,
signs, to
heirs or
tending
in the former.”
its execution
part,
party
its successors
of the second
assigns,
presented
surrender this
argument
shall
The next case
сancellation,
which all
after
appellee
McFadden,
is Roberts v.
32 Tex.
accrue under and
liabilities thereafter to
and
virtue of its terms shall
page 57,
’
App.
page
Civ.
(cid:127)sulting damage, susceptible of certain Brice the oil and cuniary compensa- measurement, is therefore not following among contains, others, ble. as to Ño lease should be construed stipulations: enable the has lessee who no consideration party “(1) to commence speculative In case second fails purposes, with- hold it months well from to the first the said within six doing stipulated do, out and what what he date, or unless he thereafter clearly contemplation was when he lessor party month to agreement.’ $4.00 month into the entered month, lease shall The second commenced, then until said well a lease ment of valuable consideration for * * * (5) become null and void. at obliga- way this character can in no affect party may all time remove diligence proceed tion of the lessee to reconvey property, its of premises performance of his of the contract. part, assigns, the first his heirs and course, might, by Of a lessee of a a hereby granted, there- and estate consideration, procure valuable liability after be relieved from further develop prospect fixed time within which to mineral grant and instrument.” lands, such is character of not the the contract under consideration.” -the It was further original payment In this case we think the time, to sur- should have was a consideration for sufficient lease and relieved render option-for year, and, the parties unfulfilled, the first since the moneys then due or conditions stipulated, a like null and lease should be from that time the amount a sufficient binding on either void and be extension of the lease without party, had been and that the during for paid months each three which it was them be held made to the lessors should as accepted, and, appel- opinion, stipulated damages our non- the whole rent, could, acceptance J., Garrett, lant C. fulfillment of the contract. beginning of each have hound to be the lease void. declared but, term, Pipe be- herself the end National & Line Co. case of Oil ing pay obligation upon Teel, Fourth first decided having rent, binding promise prose Appeals, and no error writ of Court cuted to anything been made to it to do further than Court. The Ap speaking James, J., de- $5 and overdue rent whenever it for the Court C. peals lease, (67 545) re to surrender she was shows that cided W. paid, be- and con it when of $1 bound ginning tendered cites any quarter, prоvision: mean- unless tains operations drilling good begun “In case either had in to ex- time plore faith mining for coal for oil or not or other minerals land. prosecuted diligence begun and with due rehearing *8 in is insisted the motion for grant years date, from then this within two shall both prevent no grant immediately lan- because the contained this become to null void as may party parties; provided, second guage, continue same in full force “Or to year year, such, forfeiture from to quarter to and effect by paying longer, in advance at year by year, stipulated quarterly completed, residence, until until such well is or begun. grantors hereby shipments ments, from such mine have' The bind them- party have the to use suffi second cient chinery grantors tendered, when selves to expressly necessary gas and to run ma water any right renounce and disclaim adjoining this lease and leases owned on or by a forfeiture of this them, claim and ask also to remove all * * * property time. These instru at thereof, op- any provisions of the account convey may options be treated as ments or satisfactory a valuable and tion herein options, upon, they Until acted were аnces. or in the nature granted,” are consideration bound to options. in which form tendered, by they given the rent receive when is not are material. Tested options, they binding governing were rules on them. should permitted to a forfeiture. be declare cannot appellees, having been done under _ upon such the consideration is Where options is essential that some time It be be based? It cannot be contemplated can a contention fixed within which desig done, thing nated, be when no time is paid previously or for the annual amounts quarterly presume parties law will Neither can it be held rentals. Hanley a reasonable time. Wat intended nominal, nev- it is and has because be the 214] W. Va. 19 E. [39 538. Not terson per paid. made to- No move has been fixed these instruments for er no performance formance, but when is to take promise developing land, and, wards ever, place, tion could tional with contract have is left to the will and discre merely being op- rents future They part. second absolutely appellee, renewals, op there by entirely tional which were them, .indefinitely. defer it undertaking on the this, provides for and the courts would right, appellee, and it has the circumstances, these any quarter, forfeiture to declare a end of a reasonable time. It is true substitute tracts the con operations option. provide that were to refuse to renew SOUTHWESTERN REPORTER they diligence years, lands, an interest in two with due should become the second sult from but are mere contracts option, void, they may acquire for an but in same connection such party agreement by interest. A to obviate this re allowed naked which one promises year by paying year afterward, convey another an interest year money paid at the land in $100. advance each Thus it consideration of to be party delay performed performance other, acts to be does will the second such but which year year indefinitely, perform no ultimate not bind the other performance. may be, time that set for We-have no doubt en- cannot be forced. In ity instru consideration recited case there $1 is a want of mutual- support agreement. promises party an ments option have been sufficient to would The one years might something; promise to do absolutely and it for two be claimed the other dоes not years anything; when two were to do hence there is no support option support for an consideration to of other er to and each not another and it year, afterwards; hand, promise give void. and so on ever in oth On the other an option consideration. For be election, succeeding supported by words, independent are is valid if these transactions separate independent options, money example, be deemed if a sum of paid reasoning valid, option, promisee may, but this will itself depends do, because, all, enforce after each one the contract.” part, alone will of the second on the argument accompanying In the written fixed, performance time for and no renewals rehearing the motion for in this case indefinitely. may continued It is practically thing laying lump presents sum the same notation made grantee option long for cares to as the to extend so Court, refusing the writ of error run.” Staley Witherspoon, ease 156 S. W. the failure is true [9] While as follow's: upon of this limit have a time nature is one have Staley Witherspoon “W. H. et al. v. S.C. et upon ground which the courts Refused, upon ground al. No. 8303. the contract was- ourselves to the void,-we forfeited. frequently We do not commit them to be declared proposition the contract a limit ten to conceive that are not able was void an as held it was may years, during which be extend option, character, and was unilateral in its year quarter quarter and from Appeals. ed year, the Court of Civil Grant ing that it was' unilateral and a lessee, mere contract affect should for an have been enforceable as gas question. In oil and leases the time supported by such a contract because a consid impor secondary be a matter of limit should paid eration and limited to a definite time.” prod tance, reason of nature of the proposi- Nor do we commit ourselves to the speculator, by leasing pur An ucts. tion that a contract for an is void particular surrounding chasing lands paid. where the consideration has been We tract a which he contracted to drill think, accepted when Mrs. Owens the annual case, inas could rob the and each of the rentals under this products underlying of its and render the contract, firmly she was bound mining purposes. land wоrthless for In the during accepted the term for which she had quoted case it is said: rent, and there is no conflict between our real consideration “The of this instrument holding and the notation made the Su- was not the recited $1 nor the $100 that after preme Court, quoted Bookout, J., years might above. the two in order that might keep year, begin- Colquitt, but the Southern Oil Co. 28 Tex. Civ. prosecuting diligence ning for oil or with due of wells App. 292, declared a contract land; minerals in other permitted company which its the oil to remove words, and minerals clear terms of the property for oils machinery any time, and abandon the near future. This grant. According to the contract, void. contracts, optional it is left when We are aware of the fact that is a performed, is to be this consideration if ever. variety validity of a They absolutely admit withheld any power character, and for all time tract think we grantor upon per- to insist great weight authority inus sustains hold- words, formance. it is left with the ing *9 option that when the lessee has the at assigns begin- his vendee and to abstain from any refusing comply time of ning operations ing developed by long keep with the con- and to the lands from be- any surrеndering the vendor or one else lease, as tract and the without they fit, altogeth- withhold exploring developing land, the the con- er real consideration the which the con- The absolute con- unilateral, may tract the is * * be avoided at * were based. tracts gave respect of the and we do him not con- trol contracts the the performance subsequent’ of the ‘conditions by Supreme strue the note made Court any right the absence of in the vendors to insist Staley-Witherspoon intimating in the a Case as performance objectionable renders the same contrary holding. for begun; work the want of The was not equities ap- Appeals, exist in The Circuit Court of hence favor of in Smith They pellants. perform, were bound not Guffey, 109, 439, 202 Fed. v. 120 C. C. A. said: any matter abandon the at could these bound, time. Under law; nominal “A consideration is sufficient at circumstances, appellees were also not equity requires a substantial In consideration. they right had the to annul the con- cases the both of the is to secure tracts.” gas. $1, for lessor but not the oil and Supreme Court, passing pay per- this The In both the lessor covenants to over a centage stantial аnnual keted. any produced of and to make sub- judgment case, of the Court of affirmed Appeals, payments any gas mar- 591, 979, in 95 Tex. Civil consideration, however, As a for the saying: Gaines, J., right prospect gas until to enter oil or “Viewing agreements light found, the written in the the Indiana lessee has they parties, pass favorable to these most do $1. sum of He has not nominal entered into y. Tex.) 201 TRINITY & BY. CO. GEARY B. V. following paragraph any insert of the an additional covenants potestative: rights right. True, unless was lose which shows condition he that the this digging ‘Eighth. performs or For and of obli- of in consideration the condition he gations monthly payments; by making specified but entered into the defendant of by granted compel make suit either to said one is cannot him of dollar the lessor any dig is to lease at a well. The defendant to cancel the giving expiration by results, not after the of twelve months moreover the lessee. This any promise, plaintiff, only and first to make notice to failure part agrees a condition for a is a valuable con- substitution of this one dollar from the express provision options, covenant, whereby any Illinois ently, sideration deemed sufficient rights strued.’ The construction сontended for but also privileges granted the contract at and to annul be so could * * * obligation of these cannot Is this time. only appar- really, terminating lessees, however, given; it as be thus declared for the amount gives insignificant.” ? surrender clause enforceable The is too . any time, after the at before or them the expiration the Sun Long contract under consideration months, them- absolve the nine Company a 'bound Mrs. itself liability. they any ex- If further selves from lease, one-eighth they royalty produced, all the oil surrender this ercise they empowered option, as, to are at their absolute do, attempted at to 'drill time. and never just they thereafter as free from are contract -for the The also by obligation the lessor as enforceable quarterly. rent, The ten cents acre they True, must Indiana lessee. surrender, declaring perhaps Long judgment make actual but the con- for Mrs. obligation change purely cannot nominal nullity Caddo Oil & tract a was affirmed. equity. parties 'rights court of (La.) Mining Oil Co. 64 Co. Producers’ * ** complainants, long de- after That 684. gas prem- South. had discovered oil fendants testimony fact, Supreme in the case after ises—in made Court The notation stipulation so-called taken—filed a had been Staley refusing of error writ long- surrender, waiving expresses above, Witherspoon Case, some retroactively slightest value, cannot er complaint.” unilateral character perfect doubt as. lease bill of comparison A contract contract. Long 601, Co., La. South. v. Sun case, in the as set out expression find we W., 1191, Appeals, with the Court of Louisiana; Court Carpenter Case, supra, shows in the defendant, pleasure, can its will at end “The in that neither are similar at but withdraw plaintiff it specific provision where is sent the Greek Kalendar before is contained a rights possible for assert of ter- her justified in surrender would be the lessee minating great placed at a Plaintiff the lease. ing and we think this disadvantage. royalty She loses the Supreme Court’s memoran accounts one-eighth oil, her besides land remains it, unexplored. royalty, as we take dum. object executing the After lease. the chief a termine lease, let ob- the authorities review of all After a de- it remained to defendant alone to especially tainable, later bear- cases with the whether continue question, ing we are convinced length it would choose of time everything abeyance. disposed matter, properly remain in There we have drilling Mineral sufficient consideration. rehearing is overruled. motion optional contracts, are as to one of the optional taining options plaintiff mination minated from not a defendant, re- as to the other. consideration, left without asserting also ter- with the RY. CO. GEARY. & B. V. TRINITY ter- of the contract. The contract was (No. 344.) by plaintiff by her refusal tendered, Appeals (Court Paso. sum as there Texas. El defendant the Civil mutuality obligation. Rehearing The defendant Denied 1914. June year, say 1914.) July 2, the end could please,’ thereafter, T I shall “do” Separate — — Pleading (§ 53*) Petition years,’ say, can ‘Continue bound for he Counts. however, gave provided, less notice of not she of action two counts The cause set years, an- than 3 followed employé injury petition a thrown the ligence ployé fining years. delay waiting of 3 This almost stopping a car the sudden Payment an interminable time. cancel that specific neg averring train, act of insignificant. is true uncoupling an em cars stated that angle turning cocks and con ment is a valuable and to be held whereby air, brakes were sudden expression, as such. This is a and deemed mere ly abrupt brought applied the car sudden and adds to the want consideration. containing stop, the other al supplied *10 a want cannot be mere declara- Such operation negligence in the of han legation think the contract contains a tion. AVe equipment train, dling is the same. condition; potestative that one cannot retain cases, Pleading, Note.—For other [Ed. control, attempted absolute do, as the defendant Dig. Dig. 11A-117; Dec. § Cent. §§ 53.*] being subject possibility Sufficiency — objection — meeting — 330*) with the that the contract is 2. Trial (§ Verdict potestative. a matter of will with the Counts for Same Cause Ac Different agents and officers of the defendants. On the tion. plaintiff hand, setting remained other has no before mentioned. She bound. She The counts same cause of anything paltry alleging specific negli action, save amount but one act of containing years gence, has wait sit a in and the other al possibly idly by negligence, legation lose of dollars. the verdict thousands servant’s interests, injury, application sudden As to "and his was virtual- action for causing suddenly ly impossibility brakes, stop, to annul the contract. the car to We throw topic & Key-No. Rep’r Series & Dig. Dig. * For other cases see same Am. section NUMBER Deu. Indexes