37 Ind. App. 532 | Ind. Ct. App. | 1906
This is an action by appellee against appellant to recover a certain sum of money alleged to be due, by reason of appellant’s failure to comply with and perform a certain stipulation in a natural gas and oil lease, which stipulation reads as follows:
“Second party also agrees to drill an additional well each and every sixty days, or pay $1 per.day for each and every day’s delay over that time till three wells are completed.” ■
The complaint avers the ownership of the land in appellee, the execution by appellee of said oil-and-gas lease to Thomás McDonald, and various assignments from McDonald to appellant; the drilling of two wells on the premises; and the failure to drill a third well. Appellant answered in five paragraphs. A demurrer for want of facts
The only errors presented for our decision are based upon the ruling of the court in sustaining appellee’s demurrer to the fifth paragraph of answer and the overruling of appellant’s motion for a new trial.
In part the oil-and-gas lease, made a part of the complaint, provides that in consideration of $25 appellee granted and guaranteed unto Thomas McDonald all the oil and gas in and under a certain twenty-acre tract of land, then owned by him, together with the right to enter thereon at all times for the purpose of drilling and operating for oil and gas, and lessor was to have one-eighth part of all oil produced and saved from said premises. The lease stipulates, that in case no well is completed within fifteen months from date of lease, lessee shall thereafter pay at the rate of $1 per day for further delay, and also for the drilling of “an additional well each and every sixty days or pay $1 per day for each and every day’s delay over that time till three wells are completed.” “Also the right to remove all its property at any time, and to cancel and annul its contract or any part thereof at any time.” The conditions between the parties extend to their heirs, executors, successors and assigns. This lease was executed July 19, 1899.
The fifth paragraph of answer, in substance, after setting out the stipulations in the lease with reference to the completion of a well within fifteen months, an additional well each sixty days, the right to the use of gas, etc., and to cancel and annul the contract or any part thereof at any time, and that the conditions of the contract shall extend to their heirs, executors, successors and assigns, alleges that two wells were drilled and completed on the real estate described in the contract within the time provided for
*536 “Second party agrees to drill an additional well each ■ and every sixty days, or pay $1 per day for each and every day’s delay over that time till three wells are completed
that by reason of the facts alleged in this paragraph of answer he is relieved from the payment of the same or any portion thereof sued for in this action.
Judgment affirmed.