GrABBERT v. WlLLIAM SEYMOUR EDWARDS OIL Co.

• Decision Date: 05 October 1916
• Citation: 76 W.Va. 718
• Court: West Virginia Supreme Court
• Parties: GrABBERT v. WlLLIAM SEYMOUR EDWARDS OIL Co.

76 W.Va. 718

GrABBERT

v.WlLLIAM SEYMOUR EDWARDS OIL Co.

Supreme Court of Appeals of West Virginia.

Submitted September 7, 1915.

Decided October 5, 1916.

Contracts Construction Written and Printed PartsIrreconcilable Conflict.

In the interpretation of a contract partly printed and partly written or typewriten, as in the use of a printed form, the writing will not be given greater weight than the printing if the one is consistent and reconcilable with the other. It is only where there is irreconcilable repugnance and conflict between the written and the printed portions that the former will prevail over the latter. Both must be given force where they can consistenly stand together.

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, for defendant in error.

Robinson, President:

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 twpewriting. 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 of the lease, and after the first three months 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 720'

lessee by this action. He has sought to rely on some parol evidence explaining his purpose in inserting the typewritten provision; but the same is certainly incompetent and immaterial. The two provisions are not inconsistent. They make no repugnance or ambiguity. Not what the...