Boyd v. Brown.1

• Decision Date: 02 December 1899
• Parties: BOYD et al. v. BROWN.1
• Court: West Virginia Supreme Court

34 S.E. 907

47 W.Va. 238

BOYD et al.

v.BROWN.¹

Supreme Court of Appeals of West Virginia.

Dec. 2, 1899.

CONTRACT—VALIDITY—MUTUALITY — SPECIFIC PERFORMANCE.

1. A promise lacking mutuality at its inception becomes binding upon the promisor after the performance by the promisee.

2. Lack of mutuality is no defense, even in a suit for specific performance, where the party not bound thereby has performed all of the conditions of the contract, and brought himself clearly within the terms thereof.

(Syllabus by the Court.)

Appeal from circuit court, Tyler county; Romeo H. Freer, Judge.

Bill by W. F. Boyd and Archie P. Boyd and others against W. J. Brown. Decree for plaintiffs, and defendant appeals. Affirmed.

F. D. Young and Basil T. Bowers, for appellant.

F. L. Blackmarr, for appellees.

McWHORTER, J. At the November rules, 1897, W. F. Boyd and A. P. Boyd, partners as Boyd Bros., and A. J. Malarky and G. B. McMillen, partners as Malarky & McMillen, filed their bill in chancery in the circuit court of Tyler county against W. J. Brown, alleging that in the month of June, 1897, said plaintiffs, W. J. Brown, U. F. Randolph, H. W. Roberts, M. R. Seal, C. C. Marsh, J. L. Thompson, and O. Hickok, were the owners of an undeveloped lease for oil and gas purposes, situate in Ellsworth district, Tyler county, dated August 8, 1897, made by D. W. Snider and Sarah J., his wife, to J. L. Thompson and H. W. Roberts, on a tract of 30.47 acres of land, and held the same in the following proportions: Boyd Bros. Malarky & McMillen 1/12, W. J. Brown 1/4, U. S. Randolph 1/24, H. W. Roberts 1/8, M. R. Seal 1/16, C. C. Marsh 1/16, J. L. Thompson 5/24, and O. Hickok 1/24; and the said owners being desirous of having a test well drilled on the lease, which at that time was undeveloped, and considered what is known as "wild cat" territory, they met on the—— day of June, 1897, for the purpose of making some arrangement to have a test well on the lease, and said Brown, Randolph, Roberts, Seal, Marsh, and Thompson "made the following propositions to the said Boyd Bros. and Malarky & McMillen: That if they, the said Boyd Bros. and Malarky & McMillen, would drill a test well for oil and gas upon said D. W. Snider lease, and carry the interest of each of them free of any and all expense to them, and at once commence operations for the drilling of said well for oil and gas on said leased premises, and prosecute the same diligently to completion to the bottom of the Big Injun sand, unless oil and gas should be found in paying quantities at a less depth, and, if the said well should be a flowing, producing well, to make the necessary connections, and provide the same with not less than two 250-barrel tanks, and, should said well be a paying, pumping, producing well, to tube the same, and provide it with the necessary sucker rods, tankage, and complete pumping outfit, said well to be drilled and provided with the necessary machinery, material, and equipments by the said Boyd Bros. and Malarky & McMillen without cost or expense of any kind whatsoever to them, and, if said well should not be a producing well, that the said Boyd Bros. and Malarky & McMillen should have the right to keep, take, and remove all the machinery and material placed by them upon said lease, but, if said well should be a paying, producing well, that then they should each have, hold, and enjoy the same proportionate interest in said well and in the wood rig, boiler, engine, casing, tubing, sucker rods, pumping outfit, and all machinery, material, and equipments necessary for the operation of said well that they would hold and own in the leasehold upon whichsaid well should be situated after they one and all had complied with the terms of this agreement, without cost or expense to them of any kind. That they, the said W. J. Brown, U. F. Randolph, H. W. Roberts, M. R. Seal, C. C. Marsh, and J. L. Thompson would each give, assign, and convey unto the said Boyd Bros. and Malarky & McMillen the undivided one-half of the interest then held and owned by each of them in the said D. W. Snider lease, and the said Boyd Bros. and Malarky & McMillen then and there accepted said proposition, and agreed to drill said well upon the terms proposed by the said W. J. Brown, U. F. Randolph, H. W. Roberts, M. R. Seal, C. C. Marsh, and J. L, Thompson, and the said Boyd Bros. and Malarky & McMillen agreed that they would begin the putting down of said well upon the next day; and it was further agreed that, upon the completion of said well in accordance with the terms of the agreement proposed by the said W. J. Brown and others, and accepted by the said Boyd Bros. and Malarky & McMillen, being the same as heretofore stated, that the said W. J. Brown, U. F. Randolph, H. W. Roberts, M. R. Seal, C. C. Marsh, and J. L. Thompson would give and convey unto the said Boyd Bros. and Malarky & McMillen the following undivided interest in said Snider heirs' lease, to wit, the said W. J. Brown would convey to them an undivided 5/48 interest, the said U. F. Randolph would convey to them an undivided 1/48 interest, the said H. W. Roberts would convey to them an undivided 3/48 interest, the said M. R. Seal would convey to them an undivided 1/32 interest, the said C. C. Marsh would convey to them an undivided 1/32 interest, and the said J. L. Thompson would convey to them an undivided 3/48 interest. That, having accepted the terms proposed by the said W. J. Brown; U. F. Randolph, H. W. Roberts, M. R. Seal, C. C. Marsh, and J. L. Thompson for the drilling of said well upon said Snider heirs' lease, the said Boyd Bros. and Malarky & McMillen began operations upon the following day after said agreement was made for the drilling of said well, put up the necessary wood rig, purchased the necessary machinery, casing, and all material necessary for said well, and drilled and completed said well in accordance with each, every, and all of the terms of the agreement aforesaid, and said well proved to be a very large paying well; and thereupon said Boyd Bros. and Malarky & McMillen, having fully executed and completed and complied with the terms of the agreement heretofore stated for the drilling of said well, they called upon the said W. J. Brown, U. F. Randolph, H. W. Roberts, M. R. Seal, C. C. Marsh, and J. L. Thompson to give, assign, and convey to them the respective interest in the said D. W. Snider lease, a copy of which said lease is hereto attached, and made a part of this bill as 'Exhibit A'; and the said U. F Randolph, H. W. Roberts, M. R. Seal, C. C. Marsh, and J. L. Thompson readily complied with the terms of the agreement aforesaid on their part, and executed an assignment to the said Boyd Bros. and Malarky & McMillen for the undivided interests in said lease which they had agreed to give to Boyd Bros. and Malarky & McMillen as a consideration for the drilling of said well without any cost or expense to them. That the said W. J. Brown refused, and still refuses, to convey unto the said Boyd Bros. and Malarky & McMillen the undivided3/48 interest In said D. W. Snider lease hereto attached as "Exhibit A, ' which he agreed to give and convey to them in consideration of their drilling said well upon the terms and conditions as aforesaid, and of its proving to be a paying, producing well. And the said plaintiffs further complain and say that, having fully complied with and executed the terms of the agreement in regard to the drilling of said well upon their part, and having expended in so doing a large sum of money, to wit, the sum of more than —— thousand dollars, the said W. J. Brown in law and equity is bound to convey to them the said undivided 3/48 interest in said D. W. Snider lease, as he agreed that he would do. And the plaintiffs further complain and say that there were present at the time of the making of said agreement by the said W. J. Brown the following named persons, to wit, W. J. Brown, the defendant in this suit, U. F. Randolph, M. R. Seal, C. C. Marsh, J. L, Thompson, W. F. Boyd, A. P. Boyd, A. J. Malarky, and the said H. W. Roberts was represented by the said U. F. Randolph. And the said plaintiffs further complain and say that by and through the refusal of the said W. J. Brown to give and convey to them the undivided 3/48 interest in said D. W. Snider lease in consideration for the execution of the agreement by them for drilling said well as set forth in this bill of complaint they will suffer irreparable loss, and great pecuniary damage, the amount of which it is impossible to calculate." They further allege that said Brown was offering to sell and dispose of said 3/48 interest which he agreed to convey to them in consideration of their drilling said well and carrying his interest therein without any costs or expense to him, and was trying to get possession of the proceeds of the oil sold from said lease that would belong to said 3/48 interest, which was in the custody of W. L. Armstrong, who was appointed receiver of said Snider lease in the chancery cause of T. M. Darrah and others against W. F. Boyd, W. J. Brown, and others in the circuit court of Tyler county, and Brown refused to give or turn over to plaintiffs that share of the money produced from the said oil that would belong to the said 3/48 interest in the Snider lease that said Brown agreed to give to plaintiffs in consideration of drilling said test well, and prayed thatdefendant Brown be enjoined and inhibited from selling or disposing of or conveying to any one but plaintiffs the said undivided 3/48 interest in said lease, and from taking or receiving, or in any way disposing of, the money in the hands of said receiver, Armstrong, on account of said 3/48 interest, and that defendant Brown be required to convey to plaintiffs said interest in said lease, in accordance with his said agreement, together with a division order in the pipe line running the oil from the said Snider lease for an undivided 3/48 part belonging to the working...