Bryson v. United Gas Public Service Co.

• Decision Date: 26 June 1936
• Docket Number: 5292
• Citation: 169 So. 350
• Court: Court of Appeal of Louisiana — District of US
• Parties: BRYSON et al. v. UNITED GAS PUBLIC SERVICE CO

169 So. 350

BRYSON et al. v. UNITED GAS PUBLIC SERVICE CO

No. 5292

Court of Appeal of Louisiana, Second Circuit.

June 26, 1936

Albert E. Bryson, of Shreveport, for appellants.

E. S Klein and Wilkinson, Lewis & Wilkinson, all of Shreveport for appellee.

OPINION

HAMITER Judge.

Under a deed dated November 27, 1926, Mrs. Allie Bridges Latham conveyed to plaintiffs herein a tract of land in Caddo parish, containing 47.83 acres, reserving to herself, however, one-sixth of the oil, gas, and other minerals in and under and that might be produced from said property. On that same date she executed a separate instrument in which plaintiffs were constituted and appointed her agents to sign, execute, sell, and deliver an oil and gas lease on the above property, "upon any terms that they might see fit, retaining for their services, in leasing the undivided one-sixth interest belonging to the said Mrs. Allie Bridges Latham, any consideration that they may receive for the sale of said lease, excepting, however, the undivided one-sixth interest in the royalties reserved in any lease so made."

Pursuant to such authorization, and also on their own behalf, plaintiffs, on December 24, 1932, executed and delivered to defendant a five-year commercial oil and gas lease covering said tract for a cash consideration of $ 48. This sum, which included payment for the lease on the interest of Mrs. Latham, was paid to and retained by plaintiffs.

The lease contained the usual delayed rental provision that, "if drilling operations are not commenced on said land on or before the 24th day of December, 1933, this lease shall then terminate as to both parties, unless lessee shall pay or tender to lessor or to the credit of lessor in City Savings Bank at Shreveport, (which bank is lessor's agent), the sum of $ 48.00 (hereinafter called rental), which shall extend for twelve months the time within which drilling operations may be commenced. Thereafter, annually, in like manner, and upon like payments or tenders, the commencement of drilling operations may be further deferred for periods of twelve months during the primary term." No drilling operations were commenced under the lease, and defendant, instead of paying to plaintiffs the entire rentals due on December 24th of the years 1933, 1934, and 1935, deposited in the bank, to the credit of Mrs. Latham, one-sixth of the rentals for each of such years.

Plaintiffs claim that under the instrument executed by Mrs. Latham, which is of record, all of the delay rentals should have been paid to them. Accordingly, they filed this suit for the purpose of setting aside the lease on the ground that such rentals were not paid to the proper parties.

An exception of no cause or right of action filed by defendant was sustained in the trial court, and plaintiffs have appealed.

In passing on the issues presented, we desire to first consider the instrument executed by Mrs. Latham, and attempt to determine its nature and status. Plaintiffs' counsel recognizes that it is in the form of a power of attorney, for it provides for the appointment of plaintiffs as agents. But he contends and argues that it is more than a mere mandate, and calls attention to the consideration agreed to be paid thereunder to the agents for services rendered. Under article 2985 of the Civil Code it is provided: "A mandate, procuration or letter of attorney is an act by which one person gives power to another to transact for him and in his name, one or several affairs." The instrument is, therefore, a mandate or power of attorney, as authority is therein given for plaintiffs to sign the lease in her name and to sell and deliver it for her. But does the provision thereof relating to the payment of compensation render it a mandate coupled with an interest? If it is one coupled with an interest, as provided for in article 3027 of the Civil Code, it was irrevocable. If otherwise, Mrs. Latham could revoke it whenever she so desired. Civ. Code, art. 3028.

A power of attorney coupled with an interest is one wherein a property in the thing which is the subject of the agency or power is vested in the person to whom the agency or power is given, so that he may deal with it in his own name. Fowler v. Phillips, 159 La....