Canewood Oil Co. v. Cox

• Decision Date: 20 October 1933
• Citation: 63 S.W.2d 945,250 Ky. 800
• Parties: CANEWOOD OIL CO. et al. v. COX.
• Court: Kentucky Court of Appeals

63 S.W.2d 945

250 Ky. 800

CANEWOOD OIL CO. et al. v. COX.

Court of Appeals of Kentucky

October 20, 1933

Appeal from Circuit Court, Wolfe County.

Action by S.D. Cox against the Canewood Oil Company and others. From an adverse judgment, defendants appeal.

Affirmed.

C. F Spencer, of Winchester, for appellants.

Leebern Allen, of Campton, for appellee.

DIETZMAN Justice.

This is the second appeal of this case. The opinion on the first appeal is reported in 207 Ky. 168, 268 S.W. 1081. It is a suit brought by the appellee against the appellant, the Canewood Oil Company, a partnership composed of Harry B Clay, L. C. Neal, and Frank Thompson, to recover under an alleged express contract, the terms of which as claimed by the appellee are that the appellants were to and did employ him to operate a drilling machine for them in drilling for oil and gas at such points and places as they were to designate upon the Fred Adams lease or the A. C. Creech lease in Wolfe county, Ky. the appellants to furnish a drilling outfit and everything complete with the exception of the labor, and the appellee to furnish all labor with which to do the drilling; that at least two wells for oil or gas on one or both of said leases were to be drilled and as many more as should be mutually agreed upon; that the appellants were to pay the appellee the sum of $1 per lineal foot from the surface or top of the ground down until the cap rock of the oil sand should be reached, and thereafter to pay appellee the sum of $40 per day until the well should be completed that, in the event the appellants did not have the machinery on the leases and ready for the appellee to begin drilling by July 28, 1919 (the contract having been entered into on the 15th day of July, 1919), or in the event the machinery should thereafter for any reason be shut down by the appellants, then the appellee was to be paid for each day of "shutdown time" the sum of $40. The appellee claimed that the appellants had breached the contract, in that they had never furnished the drilling machine or made any location, and that, after keeping the appellee in a state of waiting for 68 days thereafter, declined to go forward. He claimed damages in the sum of $40 per day for the 68 waiting days and the profit he would have made on the drilling of the two wells--a total of $3,720. The answer was a complete traverse of the appellee's claims. On the first trial, the appellee took the position that the contract between him and the appellants was made for the appellants by Frank Thompson. Thompson being dead at the time of the first trial, the appellee was not then permitted to testify concerning the terms of the contract. The verdict which the appellee secured on that trial was reversed by this court, because there was no competent proof to establish the contract claimed by the appellee. On the return of the case to the circuit court, it was retried before a jury, and this time the appellee claimed that the contract he relied upon was made for the appellants by Clay and Neal. These men denied that any contract had been made by them with the appellee. The court submitted the case to the jury, instructing it by the first instruction that it should allow the appellee in the event it found that a contract had been entered into as claimed by the appellee and that the appellants had breached it, as claimed by the appellee, the sum of $1 only for the profit he would have made had he carried out the contract, and by the second instruction that, if found that a contract had been entered into and breached as claimed by appellee, it should find for appellee whatever shutdown time had occurred at the rate of $40 per day. The jury awarded the appellee the $1 damages allowed by the first instruction and under the second instruction $40 a day for 23 days. From the judgment entered on that verdict, this appeal is prosecuted.

Appellants for reversal first insist that they were entitled to a peremptory instruction because the appellee had testified on his first trial that he had made the contract here relied upon with Thompson and not with Clay and Neal, but on the second...