Ballard v. Miller
| Decision Date | 22 November 1974 |
| Docket Number | No. 9828,9828 |
| Citation | 529 P.2d 752,1974 NMSC 91,87 N.M. 86 |
| Parties | Alice Mayes BALLARD, Amelia Mayes Miller, John A. Mayes and Thurman Mayes, Plaintiffs-Appellants, v. J. W. MILLER and Black River Corporation, Defendants-Appellees. |
| Court | New Mexico Supreme Court |
This is an appeal from a judgment entered by the District Court of Eddy County, wherein Alice Mayes Ballard, Amelia Mayes Miller, John A. Mayes and Thurman Mayes (plaintiffs) sought cancellation of an oil and gas lease from plaintiffs as lessors to defendant J. W. Miller (defendant) as lessee. The other defendant Black River Corporation (the Corporation) was joined as being the beneficial owner of the oil and gas lease in question. Cancellation was sought on the grounds that defendants had failed to make payment or tender the delay rental due under the terms of the lease. From a judgment in favor of the defendants, this appeal followed.
The facts of the case were stipulated before trial. After trial, the district court made findings of fact. The pertinent findings are as follows. Plaintiffs are the owners, in equal shares, of all oil, gas and other mineral rights lying in and under the following lands in Eddy County, New Mexico:
'Township 26 South, Range 24 East, N.M.P.M.
'Section 3: SE 1/4 SW 1/4
'Section 9: SE 1/4 NE 1/4
'Section 10: NW 1/4, W 1/2 NE 1/4.'
On October 22, 1969, all the plaintiffs with their wives, except Thurman Mayes and his wife, executed and delivered to defendant an oil, gas and mineral lease. The only provision of that lease in controversy with respect to this suit is paragraph 4, which provides:
No instructions were given as to a depository bank pursuant to paragraph 4, supra. Thereafter, defendant transmitted the lease to plaintiff Thurman Mayes for execution by transmittal letter dated October 24, 1969, which among other things stated: 'Please attach a note indicating what bank you would like your annual rental checks deposited with.' Plaintiff Thurman Mayes and his wife executed the lease in Arizona and, together with a letter dated October 27, 1969, returned the executed lease to defendant. The transmittal letter stated in part: 'My bank in Arkansas is The Citizens Bank, Marshal(l), Ark.' This constituted the only instructions by plaintiffs to defendant as to a depository bank, or a mailing address for any of the plaintiffs. Defendant, through inadvertence, failed to insert the Citizens Bank of Marshall, Arkansas, in the lease form after receiving Thurman Mayes' letter, but a copy of his transmittal letter of October 24, 1969, and Mayes' reply letter of October 27, 1969, were placed in the files of the Corporation. Thurman Mayes, individually, was also the owner of 160 acres of other lands in the general vicinity of the lands involved in the above group lease. On October 27, 1969, Thurman Mayes and his wife mailed to defendant an oil and gas lease on their 160 acres of land, and in that lease the Citizens Bank of Marshall, Arkansas, was inserted as the depository bank. The Corporation was also the beneficial owner of this lease. Thereafter, on September 22, 1970, the Corporation, upon information contained in their files, mailed a check in the amount of $320 payable to all of the plaintiffs and their spouses. This check, in payment of the delay rental for the year beginning October 22, 1970, was mailed to the Citizens Bank of Marshall, Arkansas, was received prior to October 22, 1970, by the Citizens Bank, and thereafter was endorsed by all of the plaintiffs and cashed. The monies were then divided among the plaintiffs in proportion to their share of the property. No objection was ever made by any of the plaintiffs to the method of payment of the October 1970, rental. After making the October 22, 1970, delay rental payment, but before the October 22, 1971, delay rental payment was due, the Corporation drilled two test wells on land adjacent to plaintiffs' leased property. Both wells proved to be excellent gas producers. Plaintiffs Alice Mayes Ballard and John A. Mayes reside in close proximity to both of these wells and had actual knowledge of the drilling operations and the discoveries. In early October 1971, the Corporation, utilitizing the same method employed for the October 22, 1970, delay rental check, mailed to the Citizens Bank a check in the amount of $320 payable to all of the plaintiffs and their spouses. At the same time, the Corporation mailed a check to Citizens Bank for delay rental on the 160 acres leased from Thurman Mayes individually. Both of those checks were lost in the mail and never received by the Citizens Bank and were never returned to the Corporation. Upon learning that its delay rental check for the period commencing October 22, 1971, had been lost in the mail and not received by either the plaintiffs or the Citizens Bank, the Corporation tendered under cover of letter dated November 19, 1971, a substitute check in the amount of $320 to the Citizens Bank, which check was refused by plaintiffs on the grounds it was untimely made. The trial court also found that none of the plaintiffs ever objected to the use of the Citizens Bank as a depository, or objected to the delay rental check being sent to Thurman Mayes for 1970 and 1971. Further, no evidence was presented to the court to show that the defendants intended to terminate the oil and gas lease with the plaintiffs. On the contrary, all of the evidence submitted to the court manifests an intention on the part of the defendants not to terminate the lease.
Plaintiffs set forth eight points as grounds for reversal:
(1) That the trial court erred in altering the stipulation of material facts entered into by the parties (2) That no competent evidence was introduced which would alter the stipulation of material facts;
(3) That the court erred in refusing to cancel the oil and gas lease in question;
(4) That the acceptance by the plaintiffs of the 1970 delay rental check mailed to the Citizens Bank in Marshall, Arkansas, did not work an estoppel or waiver of any of plaintiffs' rights under the lease in question;
(5) That acceptance of the 1970 delay rental check did not establish a course of dealings between the parties;
(6) That the trial court erred in holding the plaintiffs are barred from recovery by estoppel;
(7) That findings of fact Nos. 19, 21, and 22 are immaterial and have no bearing on the case; and
(8) That the evidence in this cause consists primarily of stipulated facts and documents and, therefore, this court, on appeal, is not bound by the trial court's findings.
We believe that the following discussion of the first three points advanced by plaintiffs in urging reversal is dispositive of the appeal; hence, the remaining issues raised need not be considered.
Several weeks before trial, counsel for the parties entered into a stipulation of material facts, and one of their stipulations provided as follows:
Shortly before trial, attorneys for defendants became aware of the existence of the October 24, 1969, letter of transmittal of the lease agreement to plaintiff Thurman Mayes in Arizona, wherein defendant Miller said: 'Please attach a note indicating what bank you would like your annual rental checks deposited with.' The attorneys for defendant also discovered a reply letter of October 27, 1969, enclosed with the signed leases. The letter is handwritten, the name 'Thurman Mayes' is indicated as the writer, and the initials 'M.M.' appear on the left-hand margin of the letter. In the process of submitting the letter in evidence marked defendants' exhibit 1, the following testimony was adduced from the defendant Miller:
Exhibit 1, and ask you to state what that exhibit is, if you know?
'A. This exhibit is the cover letter that accompanied the returned executed lease to me.
'Q. And who is it...
To continue reading
Request your trial
- Dillon v. King
-
Cortez v. Cortez
...a check in the mail does not itself constitute a payment in the ordinary sense of the word. Finally, we have examined Ballard v. Miller, 87 N.M. 86, 529 P.2d 752 (1975). This case involved a suit to cancel an oil and gas lease. The lease provided for annual renewals of the lease provided th......
-
Wells Fargo Bank, N.A. v. City of Gallup
...whether its lien was inferior as a stipulation, a court may refuse to enforce a stipulation for good cause. Ballard v. Miller, 87 N.M. 86, 91, 529 P.2d 752, 757 (1974) (stating that “stipulations will be encouraged by the courts, and enforced by them, unless good cause is shown to the contr......
-
Pena v. Westland Development Co., Inc.
...the mistake is material to the case, and the mistake could not have been avoided through the exercise of due care. See Ballard v. Miller, 87 N.M. 86, 529 P.2d 752 (1974); Marrujo v. Chavez, 77 N.M. 595, 426 P.2d 199 (1967). The decision as to whether a stipulation should be set aside is wit......
-
CHAPTER 16 LEASE CLAUSE FLOW SHEETS
...land or any land with which the leased land is pooled, where pooling is permitted by the lease. DELAY RENTAL CLAUSE 1. Ballard v. Miller, 529 P.2d 752 (N.M. 1974). Oil and gas lease was not subject to cancellation on the ground that lessee had failed to make a timely and proper payment of d......