Millan v. Bartlett

• Decision Date: 11 April 1911
• Citation: 71 S.E. 13,69 W.Va. 155
• Court: West Virginia Supreme Court
• Parties: MILLAN. v. BARTLETT.

71 S.E. 13

69 W.Va. 155

MILLAN.

v.BARTLETT.

Supreme Court of Appeals of West Virginia.

April 11, 1911.

(Syllabus by the Court.)

1. Contracts (§ 168^*)—Construction—Covenants Implied.

An express covenant to perform certain acts implies a covenant to refrain from performance of other acts which operate to defeat performance of the express covenant.

[Ed. Note.—For other cases, see Contracts, Cent. Dig. § 751; Dec. Dig. § 168.*]

2. Mines and Minerals (§ 71*)—Oil Leases —Breach of Covenant.

A covenant by the assignor of an interest in an oil lease that he will pay the rental and prevent a forfeiture is broken by a sale thereafter of the lease to another, who makes a surrender of it, or who by failure to pay the rental suffers a forfeiture.

[Ed. Note.—For other cases, see Mines and Minerals, Dec. Dig. § 74.*]

Error to Circuit Court, Marion County.

Action by Alpheus F. Millan against Fred W. Bartlett. Judgment of dismissal, and plaintiff brings error. Reversed and remanded.

U. N. Arnett, Jr., and Thos. P. Jacobs, for plaintiff in error.

W. B. Cornwell and W. S. Meredith, for defendant in error.

WILLIAMS, P. Plaintiff has obtained a writ of error to a judgment of the circuit court of Marion county, pronounced on the 16th of June, 1908, sustaining a demurrer to his amended declaration in an action for breach of covenant, and, on his declining to further amend, dismissing his bill.

The sole question presented is whether the amended declaration sufficiently states a good cause of action. It avers that defendant, for valuable consideration fully paid, assigned to plaintiff, by contract in writing under seal, an undivided one-eighth working interest in 21 certain oil leases, describing them by the dates of their execution, the names of the lessors, the number of acres of land embraced in each, and the terms of years they had to run. It also avers that defend-ant made certain covenants with plaintiff, which he has since broken, whereby plaintiff has suffered damages to the amount of $50,000. Stripped of the verbiage of formal pleading, the covenants alleged are: (1) That Bartlett agreed to relieve Millan of the payment of any part of the money necessary to keep the leases in force; or, if Bartlett preferred to suffer the leases to lapse, which it is alleged he had a right to do, then he was bound to notify Millan, and thus give him an opportunity to pay the rental and prevent their forfeiture; and (2) that Bartlett was to assign to Millan, on his request, such leases as Bartlett might decide he would not continue to pay the rental on.

Briefly stated, the breaches assigned are: (1) That Bartlett did not relieve plaintiff of the payment of the rental necessary to keep alive the leases, and did not pay it himself; (2) that he did not notify plaintiff of his intention to let any of said leases lapse; (3) that he did not assign to plaintiff such leases as he did not desire to keep in force; (4) that, without notice to plaintiff, he sold and conveyed an undivided one-half interest in the leases to Neely and Sheakley, and afterwards united with said...