Gabbert v. William Seymour Edwards Oil Co

CourtSupreme Court of West Virginia
Writing for the CourtROBINSON
Citation86 S.E. 671,76 Ga.App. 718
PartiesGABBERT et al. v. WILLIAM SEYMOUR EDWARDS OIL CO.
Decision Date05 October 1915

86 S.E. 671
76 Ga.App.
718

GABBERT et al.
v.
WILLIAM SEYMOUR EDWARDS OIL CO.

Supreme Court of Appeals of West Virginia.

Oct. 5, 1915.


(Syllabus by the Court.)

Error to Circuit Court, Kanawha County.

Action by Charles Gabbert and others against the William Seymour Edwards Oil Company. Judgment for defendant, and plaintiffs bring error. Affirmed.

Littlepage, Matheny & Littlepage, for plaintiffs in error.

Payne, Minor & Bouchelle, of Charleston, for defendant in error.

ROBINSON, P. The plaintiff in this action in assumpsit seeks to recover the sum of five hundred dollars which he claims is due him under the stipulations of an oil and gas lease. Recovery was denied him by the judgment of the circuit court.

The lease is the usual one, except that a special provision was inserted into the printed form by typewriting. That provision is as follows:

"Lessee is to begin operation in forty days and pursue same diligently till completed or pay to lessor the sum of five hundred dollars."

Decision turns on the question whether this inserted provision controls the printed provision left in the lease, as following the inserted one, that the lessee should have the right at any time to surrender the lease. This surrender provision is as follows:

"It is further agreed, that the lessee shall have the right at any time to surrender this lease, whereupon this lease shall be null and void and the payments which have been made shall be the full stipulated damages for the non-fulfillment of the foregoing deed."

It is perhaps well to state that fifty-eight dollars was paid in cash as a consideration for the lease, and after the first three months

[86 S.E. 672]

fifty-eight dollars was to be paid, each quarter in advance, by the lessee to the lessor, as delay or commutation money.

The facts are conceded. The lessee did not begin operation in forty days, but on the thirty-ninth day tendered in regular form a surrender of the lease, with one dollar as a consideration therefor, and a release of the premises from the binding effect of the deed. In other words, the lessee fully surrendered, if it could do so under a proper construction of the terms of the contract. The plaintiff, however, insists that the inserted typewritten provision controlled and abrogated the surrender provision, and that he is entitled to the five hundred dollars, for which he as lessor has sued the lessee by this action. He has sought to rely on some parol evidence explaining his purpose in inserting the...

To continue reading

Request your trial
6 practice notes
  • Marson Coal Co., Inc. v. Insurance Co. of State of Pa., No. 13452
    • United States
    • Supreme Court of West Virginia
    • 29 October 1974
    ...and printed portions thereof, the former will prevail over the latter. See, Gabbert v. William Seymour Edwards Oil Co., 76 W.Va. 718, 86 S.E. 671 On the other hand, counsel for the appellee contends that such rules of construction are not applicable where, as here, the provisions of the con......
  • Weil v. Black
    • United States
    • Supreme Court of West Virginia
    • 5 October 1915
    ...procure would seem to prove, it shows that the public service commission violated its official duty in making the order. But even if that[86 S.E. 671]be conceded, and we express no opinion concerning the charge, still it would be a violation of the statute to offer money to a member of said......
  • Walraven v. Walraven, 31789.
    • United States
    • United States Court of Appeals (Georgia)
    • 18 February 1948
    ...could be based that she received any benefit from the cutting of any timber. Also, gentlemen, attached to that amendment is the will of [76 Ga.App. 718] W. R. Walraven, the will was introduced in evidence only in support of those amendments in order to show what the will was under which the......
  • State v. Scott Const. Co., No. 14127.
    • United States
    • Indiana Court of Appeals of Indiana
    • 23 January 1931
    ...Obert Brwg. Co., 180 Ill. App. 69;Heyn v. New York Ins. Co., 192 N. Y. 1, 84 N. E. 725;Gabbert v. Seymour Edwards Oil Co., 76 W. Va. 718, 86 S. E. 671; and that with the finding of facts before them and the evidence to support the same, the appellant is not in a position to say that the con......
  • Request a trial to view additional results
5 cases
  • Marson Coal Co., Inc. v. Insurance Co. of State of Pa., No. 13452
    • United States
    • Supreme Court of West Virginia
    • 29 October 1974
    ...and printed portions thereof, the former will prevail over the latter. See, Gabbert v. William Seymour Edwards Oil Co., 76 W.Va. 718, 86 S.E. 671 On the other hand, counsel for the appellee contends that such rules of construction are not applicable where, as here, the provisions of the con......
  • Weil v. Black
    • United States
    • West Virginia Supreme Court
    • 5 October 1915
    ...procure would seem to prove, it shows that the public service commission violated its official duty in making the order. But even if that[86 S.E. 671]be conceded, and we express no opinion concerning the charge, still it would be a violation of the statute to offer money to a member of said......
  • State v. Scott Const. Co., No. 14127.
    • United States
    • Indiana Court of Appeals of Indiana
    • 23 January 1931
    ...Obert Brwg. Co., 180 Ill. App. 69;Heyn v. New York Ins. Co., 192 N. Y. 1, 84 N. E. 725;Gabbert v. Seymour Edwards Oil Co., 76 W. Va. 718, 86 S. E. 671; and that with the finding of facts before them and the evidence to support the same, the appellant is not in a position to say that the con......
  • Ries v. Pacific Fruit & Produce Co., 5493
    • United States
    • United States State Supreme Court of Idaho
    • 13 December 1930
    ...Foundry & Machine Co. v. Glen Allen Oil Mill, 84 Miss. 259, 36 So. 262; Gabbert v. William Seymour Edwards Oil Co., 76 W.Va. 718, 86 S.E. 671.) The trouble with appellant's requested instruction on this point is that it did not contain the qualification as to possible reconciliation of ......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT