Gillespie v. Bobo

• Decision Date: 16 March 1921
• Docket Number: 3619.
• Citation: 271 F. 641
• Parties: GILLESPIE v. BOBO et al.
• Court: U.S. Court of Appeals — Fifth Circuit

271 F. 641

GILLESPIE v. BOBO et al.

No. 3619.

United States Court of Appeals, Fifth Circuit.

March 16, 1921

Alexander S. Coke, of Dallas, Tex., and William A. Sipe, Jr., of Tulsa Okl., for appellant.

R. W Flournoy, of Fort Worth, Tex., and F. O. McKinsey, of Weatherford, Tex. (Power, Dryden & Rawlings and Flournoy &amp Smith, all of Fort Worth, Tex., F. O. McKinsey, of Weatherford, Tex., and Stuart & Rattikin, of Fort Worth Tex., on the brief), for appellees.

Before WALKER, BRYAN, and KING, Circuit Judges.

WALKER Circuit Judge.

By a written instrument executed on the 30th day of October, 1917, the appellees, Arinda Bobo and her husband, J. W. Bobo, for a stated cash consideration, and for a named share in the oil or other minerals that might be produced, did 'grant, demise, lease and let' to C. L. Garrett a described 80-acre tract of land in Eastland county, Tex., 'for the sole and only purpose of operating for and producing oil, gas, coal and other minerals thereon and therefrom,' with rights of way and other specified privileges necessary, incident to, or convenient for the economical operation of said land for oil, gas, coal or other minerals. The instrument, which will be referred to as the lease, contained the following provision:

'If operations for the drilling of an oil or gas well are not begun on said land on or before the 30th day of October, 1918, this lease shall terminate as to both parties, unless the lessee on or before that date shall pay or tender to the lessor, or send to Arinda Bobo, the sum of $80.00, which payment or tender may be made by the check or draft of the lessee, and, however made, shall operate to confer on the lessee the privilege of deferring the commencement of such well, for six months from said date Thereafter, in like manner and upon like payments or tenders of said amount, the commencement of said well may be further deferred for additional periods of six months successively, provided always that this lease cannot be kept in force by such payments in the absence of drilling operations for a longer period than ten years from the date last above set forth, if within said time, oil or gas is not found in paying quantities, but if so found, this lease shall continue in full force and effect so long as oil or gas is found in paying quantities.'

On May 3, 1918, Garrett assigned the lease to Burford-Brimm Oil & Gas Company. On May 7, 1918, Burford-Brimm Oil & Gas Company assigned the lease to the appellant, E. N. Gillespie. Based upon allegations to the effect that operations for the drilling of an oil or gas well were not begun on said land on or before the 30th day of October, 1918, and that the above-quoted provision of the lease was not complied with according to its terms, the appellees, the lessors, asserted in this suit the claim that the lease had ceased to be effective. The appellant admitted that a well was not commenced on the leased land on or before October 30, 1918, but set up the following state of facts as support for the asserted claim that the rights conferred by the lease had not expired:

Appellant is a citizen and resident of Pennsylvania. Since prior to May, 1918, he has maintained an office in Tulsa, Okl., from which has been transacted such business as he has transacted in Texas. The head-quarters of appellant's assignor Burford-Brimm Oil & Gas Company, are in Tulsa. About two weeks prior to the 30th day of October, 1918, one Funk, appellant's representative at Tulsa, who was charged with the duty of paying rentals on leases held by appellant, examined the lease and found that it gave no information as to the address of the appellee Arinda Bobo. Thereupon Funk applied at the office of Burford-Brimm Oil & Gas Company for information as to the whereabouts or address of Arinda Bobo. The persons connected with Burford-Brimm Oil & Gas Company, from whom Funk expected to get the desired information, were not then in Tulsa, and Funk awaited the return of such persons until October 28, 1918, on which day he telegraphed to C. L. Garrett, the original lessee, at Eastland, Tex., for the address of Arinda Bobo. Failing to get a prompt response to that telegram, Funk, on the evening of October 28, got into communication with Garrett over the long-distance telephone from Tulsa. Garrett then promised to secure the desired address at once and advise Funk thereof by wire. During the afternoon of the next day Garrett sent to Funk at Tulsa a telegram stating, 'Arinda Bobo's address Box 43 A, Fort Worth, Texas. ' Funk received that telegram during the same afternoon. Immediately upon receipt of it Funk, by registered letter addressed to 'Mrs. Arinda Bobo, Box 43, Fort Worth, Texas,' sent appellant's check to her order for $80 in payment of rental under the lease. As in the telegram the letter 'A' was separated by spaces of equal length from the figures preceding it and the word following it, Funk, according to his testimony, construed the insertion of that letter as a typographical error. The registered letter was received at the Fort Worth post office on October 30th. It was not called for in response to notices mailed to the address found on the letter. Before that letter was returned to the...