Chapple v. The Kansas Vitrified Brick Company
| Citation | 70 Kan. 723,79 P. 666 |
| Decision Date | 11 February 1905 |
| Docket Number | 13,911 |
| Parties | F. H. CHAPPLE et al. v. THE KANSAS VITRIFIED BRICK COMPANY |
| Court | Kansas Supreme Court |
Decided January, 1905.
Error from Neosho district court; LEANDER STILLWELL, judge.
Judgment reversed and cause remanded.
SYLLABUS BY THE COURT.
LANDLORD AND TENANT--Gas and Oil Lease Construed. In an action for the recovery of real property the title was admitted to be in plaintiffs and the defendant had possession, and claimed a right of possession, under a gas and oil lease, which provided that it should become null and void at the expiration of two years from its date if a well had not have been sunk on the premises, unless the lessee should elect from year to year to continue such lease by paying, or depositing to the credit of the lessor at a designated bank, each year in advance, twenty-five cents for each acre covered by the lease. Held, that the placing of the lessee's check in the designated bank for the amount of money necessary to continue the lease was not a compliance with the condition requiring a deposit of money.
B. F. Shinn, Cates, & Cates, and Keplinger & Trickett, for plaintiffs in error.
Farrelly & Evans, and S. C. Brown, for defendant in error.
OPINION
This was an action for the recovery of real property. The defendant admitted the plaintiffs' title but pleaded possession and right of possession under an oil and gas lease. Judgment was rendered for defendant, from which plaintiffs prosecute error. While there are many alleged errors of which complaint is made, those which concern the instructions are the most important. The following portions of the lease become necessary to a clear presentation and determination of the question presented:
This lease also contained a provision by which its conditions extended to the executors, heirs and assigns of both parties. It was regularly assigned to the defendant.
The defendant having admitted title in plaintiffs, the right of possession followed, unless the defendant was possessed of some superior right. To establish this right it relied on the lease and the performance of its conditions. It was conceded that a well had not been sunk, or other prospecting completed, on the premises within the two years specified in the lease. The defendant contended that before the expiration of the two years from the date of the lease it deposited in the Chanute State Bank, to the credit of plaintiff, twenty-five cents for each acre covered by the lease. The evidence in support of this contention was that on January 2, 1902, the secretary of the defendant company drew its check on the bank for forty dollars, payable to the order of plaintiffs, and that Mr. Ward, one of the officers of the company, delivered this check to G. N. Lindsay, its treasurer, for his signature, together with a voucher, or receipt, to be signed by plaintiffs upon receipt of this check.
When the check and voucher were delivered to G. N. Lindsay he was the cashier of the Chanute State Bank. He testified that they were received by him on January 2, 1902, as treasurer of defendant company, and that as such treasurer he signed the check, and as cashier of the bank placed it and the receipt in a drawer of one of the desks; that the custom of the company would have required the plaintiffs to sign the receipt before the delivery of the check to them, and that he was so instructed on this occasion; that when the check was delivered to him the defendant had a deposit in the bank largely in excess of the amount of this check. No money was ever deposited in the bank by the defendant to the credit of the plaintiffs, and no credit to them was caused to be entered on the books of the bank by it. The check was not delivered to plaintiffs, and they had no information of its existence until the 17th day of February, 1902, when one of the plaintiffs called on Mr. Ward for the lease, informing him that it had terminated by reason of the non-compliance of the defendant. He was then informed for the first time that the defendant had drawn its check, together with a voucher or receipt for plaintiffs to sign, and had left them in the Chanute State Bank, and that if they would go there and sign the voucher they could get the check for the money.
It conclusively appears from the evidence that the plaintiff F. H. Chapple called at the bank on January 2, 1902, to have his bank-book balanced by the cashier; that he called on three or four occasions subsequent thereto, and before the 17th of February, and had his balance stated, and on neither of these occasions did Mr. Lindsay inform him that the defendant had left with him its check payable to plaintiffs' order. There is no dispute in the evidence upon any of these facts.
At the conclusion of the evidence the court instructed the jury as follows:
To continue reading
Request your trial
-
Kolachny v. Galbreath
...Base Ball Club v. McGuire, 116 F. 782; Fowler Utilities Co. v. Gray, 79 N.E. 897; Huggins v. Daley, 99 F. 606; Chappel v. Kansas Vit. Brick Co., 70 Kan. 723, 79 P. 666; Payne v. Newall, 99 P. 476; Pomeroy on Cont. secs. 162, 163, 465; Jenning-Heywood Oil S. Co. v. Houssiere L. Oil Company (......
-
Kolachny v. Galbreath
... ... R. A. 320; ... Cold Blast Transportation Co. v. Kansas City, etc., ... 114 F. 77, 52 C. C. A. 25, 57 L. R. A ... Ulrey, 233 Ill. 57, 84 N.E. 46; Pittsburg ... Vitrified Paving & Brick Co. v. Bailey et al., 76 Kan ... 42, 90 P ... grantee. In Chapple v. Kansas City Vitrified Brick ... Co., 70 Kan. 723, 79 P ... City Vitrified Brick Company), drew its check on the Chanute ... State Bank for $40 ... ...
-
E. Oil Co. v. Smith
...of Boynton to the credit of party of the first part." ¶36 The court then quoted with approval from the case of Chapple v. Kansas Vitrified Brick Co., 70 Kan. 723, 79 P. 666, which stated as follows:"No money was ever deposited by the defendant in said bank to the credit of the plaintiffs, a......
-
Shaffer v. Marks
...question here arises as to whether this contract is not merely an option to exploit for gas and oil.' Then is cited the holding in the Kolachny Case, supra, that such contract amounts to a grant, not of the oil that is in the ground, but of such a part as the grantees may find, and passes n......