217 F. 243 | 8th Cir. | 1914
The defendant below, P. F. Smith, complains of a decree of foreclosure of a mortgage he made to John A. Bell, Jr., because the court below struck out of his answer that part by which he sought to question the jurisdiction of the court and that part by which he sought to set up a counterclaim and set-off.
The complaint pleaded the mortgage and the notes it secured, and copies of them were attached to it. The mortgage and the notes ran to John A. Bell, Jr., trustee, and the mortgage provided that the defendant should keep the buildings and personal property described therein insured, with the loss payable’to Bell or his successors in trust; that if default should be made in any of the conditions of the mortgage the whole sum intended to’ be secured by the mortgage should, at the option of Bell, or his successors in trust, or any other legal holder of the indebtedness, become due; and that any or either of them should then have full right and authority to take possession of the premises mortgaged and to foreclose the mortgage.
“Tliat the said Standard Oil & Gas Company, from time to time from the said 3d day of January, 1912, until about the 15th day of November, 1912, continued to own and operate the aforesaid oil wells, but failed, neglected, and refused to operate said wells continuously, frequently permitting the operation of their said wells to lapse and be discontinued for considerable periods of time, thereby interrupting the supply of gas necessary for the operation of defendant’s plant, so that defendant’s machinery and labor necessary for operating the same were obliged to lie idle for many days, to defendant’s great injury and damage in the sum of five thousand dollars.”
But repeated perusals and careful consideration of the agreement have disclosed no promise or covenant by the .oil company to operate its oil wells continuously or to furnish an uninterrupted or sufficient supply of gas for the operation of the defendant’s plant. On the other hand, the oil company by an express stipulation of the contract reserved to itself sufficient gas to operate its leases, and the extent of its obligation to furnish gas to the defendant was that so long as the leases owned by it on January 3, 1912, when the agreement was made, within a radius of.two miles from defendant’s plant, or other leases
The result is that this portion of the answer failed to state facts sufficient to state a cause of action, counterclaim, or set-olf against the oil company or the plaintiff, there was no error in striking it out, and the decree below must be affirmed.
It is so ordered.