Sparks v. Pittsburgh Co., Appeal, No. 260

Appeal, No. 260 | Pa. | Dec 30, 1893

Opinion by

Mr. Justice Thompson,

Appellant’s proposition to appellee was to erect a rig and to drill a well, the rig to be erected for the sum of $450, the well to be drilled down to Berea sand, upon any one of the leases that might be selected, to be for the price of one dollar per foot, to be paid for when completed, and the boiler and engine, except casing, to be furnished by him. It is then proposed by him as follows, viz.: “ If you decide to drill any more wells upon said leases or in the vicinity, up to the number of five, I am to have the contract of erecting the rigs and drilling the wells at the prices above named.” At the end of the proposition is written “ Accepted, contract to be drawn in accordance with the above proposition or bid,” and the following words are then added: “ This is about right and will be satisfactory to the Pittsburgh Company.” Without any contract executed in pursuance of this proposition, appellant sunk the first well upon one of the leases and has been paid for the same. This well proved a dry one, and appellee, which had in its neighborhood leases upon about one thousand acres of land, and for the development of which the well in question was sunk, gave them up and abandoned the enterprise. It however sunk a number of -wells near Ellwood, some two miles distant from the territory thus abandoned. Appellant claims damages for the loss of profits arising from the refusal of appellee to allow him to sink those wells. This claim is therefore based upon an alleged contract and its breach.

The appellant’s contention is that the proposition itself constituted the contract, and the sinking of those wells at Ellwood the breach of it. The language at the end of the proposition, to wit: “ contract to be drawn in accordance with the above proposition or bid,” and “ this is about right and will be satisfactory to the Pittsburgh Company,” clearly imports that it was not intended to be the actual agreement, but simply the basis of one, to be subsequently perfected by a contract properly prepared. This appears to be apparent from the words used, “ if you decide to drill any more wells upon said leases, or in the vicinity. ... I am to have the contract.” The proposition was that, when the decision should be reached to sink the five wells upon the leases or in the vicinitjr, appellee was to make a contract with appellant for their drilling. As the time of such decision was not fixed, as the order of sinking the wells, whether together or successively, was not determined, as the points of locality were not settled, as the times for completion were not designated, and the modes of payment were not specified, it is manifest that this proposition was not intended as a complete contract, but that it was tentative and was only to become a contract binding upon the parties by a written agreement when properly prepared. This is apparent from the proofs adduced by the appellant himself. He testifies that the president of the appellee company took him to his private office and sat down with him to write the intended contract, when he, appellant, told him that McConnell had the proposition and that he had better prepare the contract. Mr. McConnell testified: “ That Mr. Tomlinson, the agent of appellee, and Mr. Sparks, the appellant, brought him the proposition after it had been altered, and that Mr. Sparks said he was going up to the leases to be absent a week or ten days, and asked him to have the contract ready by his return, — that the proposition was left by Sparks for the purpose of preparing a contract;” and Mr. Tomlinson testified that the president of the company told him to give the proposition to Mr. McConnell to have him prepare a contract. It is thus plain that the proposition did not contemplate the preparation and execution of an agreement simply for the purpose of more authentic proof of it, but was only an expression of what was to be the basis of an agreement to be prepared to represent the final meeting of their minds upon the subject. It has not been perfected by any contract which is binding upon the appellee.

It is contended that the proposition was not severable and that appellant, without such written contract and with the assent of appellee, having sunk the first well and having been paid for it, no written contract was intended to be required for the sinking of the five other wells. The first well was to be sunk at all events, and upon its success depended the operations upon the one thousand acres leased. The appellee was anxious to ascertain whether oil existed beneath that territory, and requested appellant to go on in advance of the execution of the written contract. By such parol arrangement of both parties the work was done. While it was being done, they sat down to draw the agreement contemplated, but at the suggestion of the appellant it was referred to counsel to prepare it, who it seems failed to do so. The sinking of the first well was to be done promptly and the five others were to be sunk only in case appellee should decide to sink them. The work of sinking that well was distinct from that connected with the other five wells which, as it had not decided to sink them, were not then to be sunk. The fact that the first well was sunk and paid for under such circumstances cannot operate to turn the proposition to sink the others into a contract, when a future agreement for the sinking of them was clearly contemplated to be prepared. As to the first well, the work was done with the assent of both parties, without the preparation of the written contract intended, and was paid for. 'As to the five other wells, the negotiations have not been completed by the preparation and execution of the contract contemplated.

Assuming, however, that the proposition be treated as an actual agreement and not as tentative, there is no fact showing any breach of it. The proposition was in reference to sinking wells on the leases or in the vicinity. The leases referred to were those on the land situate some two miles north of Ellwood, and the vicinity intended was in their immediate neighborhood. The proposition is to be construed with regard to the subject-matter. The parties were contracting for a well to be sunk presumably to be followed by others upon this new and undeveloped territory, and necessarily “vicinity” must be construed with regard to it. It is ingeniously argued that “vicinity” is a relative term used differently as to subjects, as when applied to planets with reference to each other involving vast distances, as when applied to cities in regard to each other covering man}*miles, and that, as it was thus an indefinite term when used, its limits in the present case should have been determined by the jury. The argument may be plausible but it is not substantial. The use of a word in a written instrument which may liave in some uses different effects cannot operate to change the duty of the court in the interpretation of it, and transfer that duty to the jury. The construction of the instrument is for the former and not for the latter. The sinking of the wells by appellee upon lands owned by it near Ellwood, two miles distant from the leased territory covered by the proposition, was not in its “ vicinity ” and was not therefore a breach of the proposition.

Judgment affirmed.