Broadview Oil Co. v. Livengood

• Decision Date: 06 March 1943
• Docket Number: 35729.
• Citation: 156 Kan. 514,134 P.2d 378
• Parties: BROADVIEW OIL CO. v. LIVENGOOD et al.
• Court: Kansas Supreme Court

134 P.2d 378

156 Kan. 514

BROADVIEW OIL CO. v. LIVENGOOD et al.

No. 35729.

Supreme Court of Kansas

March 6, 1943

Syllabus by the Court.

Findings of fact supported by substantial evidence will not be disturbed on appeal.

Evidence warranted judgment refusing to enforce a contract for conveyance by lessors of a royalty interest in oil and gas lease on ground that there was no meeting of the minds as to exact amount of mineral interest lessors were to give lessee.

A common intention and meeting of the minds on all terms thereof are essential to an "agreement" and no portion of the terms may be left unsettled.

Evidence warranted judgment setting aside royalty agreement executed by oil and gas lessors on ground that lessee did nothing in reliance on agreement that lessee would not otherwise have done, so that there was no "consideration" for the agreement.

To constitute an "estoppel", party against whom estoppel is claimed must have done some act or pursued some course of conduct with knowledge of facts and of his rights and party claiming estoppel must have been misled to his prejudice.

1. In an action to enforce a contract for the conveyance of a royalty interest in an oil and gas lease, the record is examined and it is held that there was substantial evidence to sustain the findings of the trial court.

2. In order for inconsistent conduct to constitute an estoppel, the party claiming the estoppel must have been misled to his prejudice.

Appeal from District Court, Rooks County; W. K. Skinner, Judge.

Action by the Broadview Oil Company against H. E. Livengood and others to enforce a contract for the conveyance of a royalty interest in oil and gas lease. From a judgment for defendants, plaintiff appeals.

George B. Collins, of Wichita (William F. Pielsticker, John J O'Shaughnessy, and C. L. Williams, all of Wichita, on the brief), for appellant.

D. A Hindman, of Stockton (G. A. Milani, of Centerville, Iowa, on the brief), for appellee.

SMITH Justice.

This was an action to compel the conveyance of a royalty interest in oil and gas. Judgment was for the defendants. Plaintiff appeals.

After the formal allegations, the petition alleged that on or about December 9, 1939, defendant, H. E. Livengood, executed a written instrument to the plaintiff, by which he agreed to convey to plaintiff an undivided one-eighth of a one-eighth royalty interest in a described 240 acres of land in Rooks county and that it was further agreed that the consideration for this conveyance was the drilling of three additional test wells on one quarter section of this land and that the conveyance should be made upon the commencement of a third test well on this quarter section during 1941. The petition further alleged that the plaintiff had complied with the provisions of the contract and that the defendants had tendered it a royalty deed conveying one-sixty-fourth of the one-eighth royalty interest and that this conveyance did not conform to the intention of the parties because it should have been a one-eighth of the one-eighth royalty interest and that plaintiff had requested defendants to convey the proper interest to it and offered to return the royalty deed by which the one-sixty-fourth of the one-eighth interest was conveyed, and prayed that the defendants be required to convey to plaintiff a one-eighth of a one-eighth royalty interest or an alternative that the decree of the court should stand as a conveyance of such interest. There was a further allegation as to certain money which had been paid to the Vickers Petroleum Company and which it was holding until it should be ordered to pay it to one or the other of these parties.

The petition prayed that the defendants be ordered to convey the undivided one-eighth of the one-eighth royalty interest in the lands described; that the Vickers Petroleum Company be required to pay into the court the money which it held and that the defendants be required to account for the proceeds from the sale of oil from the one-eighth of the one-eighth royalty interest. The defendants filed an answer, certain parts of which were stricken on motion of the plaintiff. As it stood with these parts stricken, the answer of the Livengoods alleged that they were the owners of the surface rights and an undivided three-fourths interest in oil and mineral rights in the land in question; that on January 20, 1938, they had given the plaintiff an oil and gas lease on the land in question and the plaintiff had sold an undivided interest in this lease to certain associates; that on the 9th of December, 1939, an action was pending in the district court of Rooks county, wherein the defendants were plaintiffs and the plaintiff in this action was defendant, in which action it was prayed that this oil and gas lease be canceled for failure of the oil company to pay delay rentals, drill proper offsets and otherwise properly develop the lease; that on December 9, 1939, the Livengoods had agreed to an adjustment of this litigation and other matters pertaining thereto; that this agreement was reduced to writing in two instruments, one being the contract which the plaintiff had attached to the petition, marked Exhibit "B" and upon which this action was based, and bearing the signature of H. E. Livengood, and the other the contract marked Exhibit "A" and which was attached to the answer; that the defendants signed both of these instruments and they were delivered to the agent of plaintiff with the understanding that he submit them to the officials of plaintiff and obtain their signatures thereon; that the plaintiff did not execute or return the instrument designated as a contract and did not comply with its terms; that on the 12th day of April, 1940, the parties again met, at which time a contract was agreed upon for a settlement of the litigation and that this contract was fully executed and had been complied with and a copy of it was attached to the answer; that the royalty deed, a copy of which was attached to plaintiff's petition, and which was executed on August 16, 1940, was delivered by Livengood to plaintiff under the belief he was legally bound to do so and was not tendered in connection with the letter dated December 9, 1939; that the letter dated December 9, 1939, was a part of the whole agreement arrived at by the parties; that the plaintiff failed to execute said agreement or any part of it or to comply with its terms.

The answer alleged that the Vickers Petroleum Company had impounded funds in its hands for which it should account to the proper party. The answer prayed that the plaintiff have no recovery and that the court make whatever orders were necessary pertaining to the impounding of the money.

For a cross petition the Livengoods alleged that an agreement made on the 10th of October, 1938, and a royalty deed executed by them, dated August 16, 1940, were null and void because the defendants had received no consideration in connection with the agreement for the deed; that the royalty deed had never been recorded or listed for taxation and was void under G.S.1935, 79-420; that the defendants were in the quiet, peaceable possession of the property and the purported agreement should be canceled.

The Vickers Petroleum Company answered that it was holding the impounded money subject to the order of the court.

For a reply the plaintiff filed a general denial to the answer of the...