Acklin v. McCalmont Oil Co.

• Decision Date: 06 January 1902
• Docket Number: 87
• Citation: Acklin v. McCalmont Oil Co., 201 Pa. 257, 50 A. 955 (Pa. 1902)
• Parties: Acklin, Appellant, v. McCalmont Oil Company
• Court: Pennsylvania Supreme Court

50 A. 955

201 Pa. 257

Acklin, Appellant, v. McCalmont Oil Company

No. 87

Supreme Court of Pennsylvania

January 6, 1902

Argued October 31, 1901

Appeal, No. 87, Oct. T., 1901, by plaintiffs, from judgment of C.P. No. 3, Allegheny Co., May T., 1898, No. 442, on verdict for defendants in case of George W. Acklin Administrator c.t.a. of the Estate of Peter Swint, Deceased and J. E. Swint, now for the use of J. E. Swint, v. The McCalmont Oil Company, H. W. Locke and F. W. Leidecker.Affirmed.

Assumpsit to recover royalties under an oil and gas lease.Before KENNEDY, P. J.

SeeSwint v. McCalmont Oil Co.,184 Pa. 202.

At the trial it appeared that plaintiff claimed to recover one half the royalties accruing under an oil and gas lease which he and his father had signed.The evidence showed that plaintiff was a mere cropper at the time the lease was executed and had no property interest in the land.

Madie Swint, a daughter of plaintiff, being upon the stand as a witness for plaintiff in rebuttal, plaintiff made this offer:

Mr Ritchey: I propose to prove by the witness on the stand that her grandfather, Peter Swint, at the time of the execution of the lease in question by himself and J. E. Swint to H. W. Locke, also stated that J. E. Swint, his son, was to have one half of this royalty, this statement being made to Mr. Locke.

Offer objected to as incompetent, irrelevant, immaterial and not rebuttal.

Objections sustained, exceptions to plaintiff and bill sealed.[4]

J. E. Swint, plaintiff, being on the stand as a witness in rebuttal, was asked this question:

"Q.I will ask you whether or not your father, at the time this lease was signed, or before the signing of this lease, when you and your father and Mr. Locke were present, in the presence of Mr. Locke, stated anything about why you were put in this lease to Mr. Locke and what interest you would have in it, or what proportion of the royalty you would get."

Objected to as incompetent, irrelevant and immaterial, and attempting to prove the declaration of Peter Swint, who is admitted to be dead.

Objection sustained, exception to plaintiff and bill sealed.[5]

Mr. Ritchey: We propose to prove by the witness on the stand that at the time of the application of A. B. Brian, agent of the W. G. Hunter & Company, to Peter Swint to lease the farm of Peter Swint, in Franklin township, Allegheny county, that the witness, J. E. Swint, with his family was residing upon said farm under an agreement with his father, Peter Swint, that he was to receive one half of the product of the farm, his father making his home with him, and that in the course of the conversation at the time of the first application by the said Brian, it was stated by Peter Swint that J. E. Swint, the witness, should be made a party to the lease and should receive an equal share of the royalty the same as he received the other products of the farm, and that the lease of Peter Swint and J. E. Swint, of the first part, to W. G. Hunter & Company, of the second part, dated December 3, 1885, signed by Peter Swint and J. E. Swint and W. G. Hunter & Company, per A. B. Brian, was prepared by A. B. Brian under the direction of Peter Swint that Peter Swint and J. E. Swint were to be the lessors, and that after it was prepared by the said A. B. Brian, it was signed by the parties and delivered with the understanding and agreement by all parties that Peter and J. E. Swint were the lessors; this for the purpose of corroborating the lease and explaining it, and corroborating the lease of Peter Swint and J. E. Swint to H. W. Locke, and as establishing the probability of these leases, and for the purpose of rebutting the testimony of H. W. Locke.

Offer objected to by counsel for defendants as incompetent, irrelevant and immaterial; especially objected to for the reason that Peter Swint is dead and this is an attempt by the other party to the contract with Peter Swint to prove his declarations during his lifetime, no other witness present during the transaction having been sworn or testified in this case; it is further objected to as not being rebuttal testimony to anything offered by defendants in this case.

Objection sustained and exception granted to plaintiff and bill sealed.[6]

"Q.I will ask you if, prior to the bringing of your first action to recover your interest in these oil leases, as you claim it, you mentioned the fact of bringing that action to your father?"

Objected to by counsel for defendants as above.Objection sustained, exception to plaintiff and bill sealed.[7]

"Q.I will ask you why you didn't proceed to collect your claim for royalties under these leases, after you had consulted Judge Bredin."

Objected to by counsel for defense.

Counsel for plaintiff propose to prove by this witness that after he had been advised by his counsel as to his interest in these leases and as to his right to recover, he was unable to meet the expense of the litigation at that time, some $200, and that owing to his inability to meet that expense, he was unable to proceed with it, at that time.This for the purpose of explaining the delay of the plaintiff in bringing his first action to recover his interest in these royalties, and as rebutting any presumption arising against him on account of any laches from the fact that he did not bring his first action until May, 1895, as testified to by Mr. Locke.

Offer objected to by counsel for defendants, as incompetent, irrelevant and immaterial, and not rebuttal, and as an attempt to show transactions between client and counsel.

Objections sustained, exception to plaintiff, and bill sealed.[8]

Cross-examination by Mr. Weil:

"Q.Youtestified before in this case, did you not?A.Yes, sir.Q.I ask you now if you didn't testify in this case as folows: 'Q.But no conversation of this kind occurred at all at the time the Locke lease was made, as you testified this morning?A.No, sir, it didn't occur.It was just simply going over the same thing and giving the lease to Locke on the same conditions as what the lease was to the Hunter Company.'Q.I am asking you what you said.You testified this morning that nothing of the kind was talked over at the time the Locke lease was made -- that that lease was drawn in the same form as the other, and that nothing was said by your father or yourself to Mr. Locke upon that subject.A.Not that I remember of.Q.That's a fact, is it?A.I don't remember anything particularly.Q. Didn't you so testify at the other hearing?A.I presume I did.Q.Is this a fact that you testified to?A.Yes, I testified according to that.Q.Is that a fact, what you then testified to?A.Well, the question is immaterial in regard to as far as the lease is concerned.Q.Were you telling the truth then, when you testified to that?A.Yes, I was telling the truth."

The court erred in sustaining defendants' objections to the following questions:

Mr. Ritchey: I would ask if it was in your testimony, when you testified that the lease was given under the same terms as the Hunter lease, if you meant by that, that the conversation and talk was the same as at the time the Hunter lease was given and the arrangement was the same between yourself and father?

Objected to by counsel for defense and objection sustained.[9]

"Q.In your testimony that you have been interrogated upon by Mr. Weil, in the testimony on this point that you gave on the former trial, you testified as follows: 'Q.But no conversation of this kind occurred at all at the time the Locke lease was made, you testified this morning?A.No, it didn't occur.It was just simply going over the same thing and giving the lease to Locke on the same condition as what the lease was to the Hunter Company.'By that answer what did you mean?"

Objected to and objection sustained.[10]

Counsel for plaintiff offer in evidence the testimony of J. E. Swint taken at the former trial of this case, in connection with, and explanation of the portion of said testimony put in evidence by the defense; for the purpose of showing that J. E. Swint's testimony there was the same substantially as now, and for the purpose of showing the conversation therein referred to.

Offer objected to by counsel for defendants, (1) because the testimony referred to by counsel contained the declarations of Peter Swint and the transactions between Peter Swint and J. E. Swint during the lifetime of Peter Swint, which testimony has been repeatedly ruled in this case to be incompetent; (2) for the reason that the testimony referred to does not explain, qualify, or in any manner impeach the testimony which the witness gave in reply to the question propounded by counsel when the testimony which he had given at the former hearing was read; (3) as incompetent, irrelevant and immaterial; (4) as not being rebuttal testimony; the question propounded to the witness was propounded on cross-examination, the witness was then upon the stand and could have been examined by counsel upon this same question, if they had so desired at that time; the case being closed by the defendant, who had rested, the witness cannot now in rebuttal be asked to explain testimony which he, himself, had given and upon which he could have been examined at the time.

Objection sustained, exception to plaintiff, and bill sealed.[11]

Counsel for plaintiff propose to prove by the witness, Mrs. J. E Swint, on the stand, that at the time of the application of A. B. Brian, the agent of W. G. Hunter & Co., to Peter Swint to lease the farm of said Peter Swint in Franklin township, Allegheny county, J. E. Swint was residing with his family upon said farm under an agreement with his father, Peter Swint, that he was to receive one-half of the product of the farm, his father...