Indiana Natural Gas & Oil Co. v. Wilhelm
| Decision Date | 24 November 1908 |
| Docket Number | No. 6,217.,6,217. |
| Citation | 44 Ind.App. 100,86 N.E. 86 |
| Court | Indiana Appellate Court |
| Parties | INDIANA NATURAL GAS & OIL CO. v. WILHELM. |
OPINION TEXT STARTS HERE
Appeal from Circuit Court, Grant County; H. J. Paulus, Judge.
Action by Jane Wilhelm against the Indiana Natural Gas & Oil Company. Judgment for plaintiff, and defendant appeals. Affirmed.W. A. Johnson and Blacklidge, Shirley & Wolf, for appellant. Joseph L. Custer, A. L. Cline, and G. A. Denlter, for appellee.
This was an action by appellee to recover rentals for gas under the terms of a lease between the parties hereto, for a period of six months for one of the wells, and for a period of one year for each of the remaining four wells. The lease provided: Issues were joined, and trial had before a jury, which returned a verdict for appellee, with damages in the sum of $825, and judgment was rendered on the verdict.
Appellant assigns as errors: (1) The amended complaint does not state facts sufficient to constitute a cause of action; (2) the court erred in overruling appellant's demurrer to the amended complaint; (3) the court erred in overruling appellant's motion for a new trial. The complaint alleged the drilling of each well, and that “gas was found in sufficient quantities during the year thereafter following to be marketed and in sufficient quantities to be piped away from the premises to a market for such gas, that during all such time there were good markets for such gas at Upland, Matthews, Gas City, and Hartford City, and at other places, all within 10 miles of said well, and at other places further away, to which said gas could have been then delivered, used, and sold at a profit to the defendant. ***” These allegations, it is urged by appellant, are not statements of fact, but mere opinions.
It is a familiar and well-settled rule that alleging the ultimate facts to be proved will be sufficient. Guenther v. Fohey, 26 Ind. App. 93, 59 N. E. 182;Penn. Co. v. Zwick, 1 Ind. App. 280, 27 N. E. 508. The allegations objected to clearly set out a state of facts which, if proved, along with the other material averments of the complaint, would entitle appellee to recover. Consequently they cannot be said to be averments of mere opinions. There is also the objection that the complaint does not aver the amount of gas produced in any well, the cost of production, or the cost of transportation to market. Such objection cannot avail appellant, for the reason that each of the facts thus set out is evidentiary in character, and must necessarily appear in the proof of the ultimate facts alleged in the complaint.
The reason assigned for new trial is that the sixth instruction given by the court leaves out of consideration the original cost of the wells, and also the rental required to be paid each year. The instruction objected to is as follows: “Under the terms of the contract in suit, gas is found ‘in sufficient quantities to market the same and to be piped away from the premises to such market’ whenever gas is found or exists in any wells drilled on the premises in such quantities that, taking into consideration the opportunity to sell the same, the cost and expense attendant thereon, and in connection with the operation of such well for oil, if you find the same to have been so operated, the gas in such well could or might have been reasonably sold at a profit to the lessee.” It will be observed that in this instruction the court specifically told the jury that they were to consider the opportunity to sell the gas, with the cost and expense attendant thereon. The court in giving such instruction must clearly have had in mind the amount of rental to be paid in case gas was marketed, for appellant would become obligated for such sum upon the production of a marketable quantity. It is reasonable to...
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