Niagara Oil Company v. McBee

• Decision Date: 16 March 1910
• Docket Number: 6,741
• Citation: Niagara Oil Company v. McBee, 91 N.E. 250, 45 Ind.App. 576 (Ind. App. 1910)
• Parties: NIAGARA OIL COMPANY v. McBEE
• Court: Indiana Appellate Court

91 N.E. 250

45 Ind.App. 576

NIAGARA OIL COMPANY v. McBEE

No. 6,741

Court of Appeals of Indiana

March 16, 1910

From Delaware Circuit Court; Joseph G. Leffler, Judge.

Suit by Miller McBee against the Niagara Oil Company. From a decree for plaintiff, defendant appeals.

Reversed.

Simmons & Dailey and F. A. Shaw, for appellant.

Walter L. Ball and A. E. Needham, for appellee.

OPINION

MYERS C. J.

Appellee instituted this action against appellant and others to collect $ 325.32 for coal, alleged to have been sold and delivered to appellant and others, and to enforce a mechanic's lien against certain property belonging to appellant. Appellee dismissed as to all the parties, named in the complaint as defendants, except appellant. The complaint was in one paragraph, to which appellant's demurrer for want of facts was overruled, and this ruling is assigned as error. The complaint shows that for coal sold and delivered by appellee to appellant, a certain sum of money was due and unpaid. It was sufficient to withstand a demurrer for want of facts. Farrell v. LaFayette Lumber, etc., Co. (1895), 12 Ind.App. 326. Appellant answered the complaint in two paragraphs. The first was a general denial. The second paragraph, in substance, averred that the Niagara Oil Company was the owner of an oil and gas lease on the real estate described in the complaint, and had no other interest therein; that, as such owner, appellant entered into a contract with Demick & Whitney, whereby the latter agreed to construct and complete oil and gas wells on said real estate for said company; that, in the construction and completion of said wells, said Demick &amp Whitney entered into a contract with plaintiff, whereby said plaintiff furnished to said Demick & Whitney the coal mentioned in the complaint, and which was used by them only as fuel to generate steam for power in the operation of machinery used in the drilling of said wells, and was used for no other purpose; that defendant never bought or received any coal from plaintiff, and at no time had any contractual relations with plaintiff for the purchase of any coal, and never agreed at any time to pay plaintiff for said coal; that said coal was used by said Demick & Whitney for the purpose before stated and for no other whatever. A demurrer to this paragraph of answer, for want of facts, was sustained, and that ruling is assigned as error.

Certain other proceedings were had in said cause whereby issues were formed, and the cause submitted to the court for trial. The court made a special finding of facts, and stated conclusions of law thereon. Over appellant's objection and exception to each conclusion of law, a decree was entered in favor of appellee. Error is based on the exceptions to the conclusions of law.

In substance, it appears from the special findings that on November 27, 1906, and for five years prior thereto, appellee was a resident of Delaware county, Indiana and was engaged in the grain and coal business; that on said last-mentioned date, and for a year prior thereto, Clarence Demick and one Whitney were engaged in the business of drilling and constructing oil wells in said county, under the firm name of Demick & Whitney; that during the months of August, September, October and November, 1906, the appellant was the owner of a gas and oil lease on a certain farm in said county, and, as such owner, contracted with said firm to drill and construct two oil wells upon said land, and in pursuance of said contract said firm, in the months aforesaid, did drill, construct and complete said wells; that appellee sold and delivered to said firm, while so engaged in constructing and completing said wells, a certain quantity of coal at a price named a ton for the first well, and a certain quantity for the second well, all of which was used in drilling, constructing and completing said wells upon said farm, and upon the lease of appellant and for appellant; that said coal was furnished and delivered by appellee to said firm upon a contract between them, and used by the firm as aforesaid; that within sixty days from the time of...