Pyle v. Pizitz

• Decision Date: 18 November 1926
• Docket Number: 6 Div. 645
• Citation: 110 So. 822,215 Ala. 398
• Parties: PYLE v. PIZITZ.
• Court: Alabama Supreme Court

110 So. 822

215 Ala. 398

PYLE v. PIZITZ.

6 Div. 645

Supreme Court of Alabama

November 18, 1926

Rehearing Denied Jan. 6, 1927

Appeal from Circuit Court, Jefferson County; C.B. Smith, Judge.

Action by Robert H. Pyle against Louis Pizitz. Plaintiff takes a nonsuit and appeals from adverse rulings on pleading. Reversed and remanded.

To be available, a statute of limitations must be specially pleaded.

The contract sued upon is as follows:

"This indemnifying contract made and entered into this January 23, 1922, by and between M.A. Rosansky, M. Leader and Louis Pizitz, parties of the first part, and Robert H Pyle, party of the second part, witnesseth:

"That whereas, the said Rosansky has conveyed to the said Pyle a certain oil and gas lease located in Warren county, Ky., and known as the M.M. Ennis lease on the Glen Lilly Pike, which contains 100 acres, more or less;

"And whereas, there have been certain attachment and other liens filed against said lease:

"Now, therefore, in order to indemnify and hold the said Pyle, or his assigns, harmless from any liens which may now exist against said M.M. Ennis lease and to fully protect him from any and all incumbrances which may up until this date be in existence against said lease, the first parties have made and entered into this contract whereby they guarantee the title to said lease to said Pyle, or his assigns, and hereby agree to protect and hold harmless the said Pyle, or his assigns, from any lien or incumbrances which may be existing upon said lease at this time and to further protect him and his assigns from any defect which may be in existence at this date against said title.

"In witness whereof the said parties have signed their names this the day and date first above written.

"[Signed] M.A. Rosansky, "By M. Leader, Atty. in Fact.

"M. Leader.

"Louis Pizitz."

Count 1 claims damages for breach of the foregoing contract and thus avers the breach:

That the defendant failed to hold the plaintiff harmless from any liens which existed against the said M.M. Ennis lease and to fully protect the plaintiff from any and all incumbrances which existed at the time of the execution of said contract against said lease, and that the defendant failed to protect the plaintiff and hold him harmless from any lien or incumbrance that existed at the time of the execution of this contract, upon said lease, and that the defendant failed to protect the plaintiff from any defect which was in existence at the time of the execution of said contract in the title to said lease. And plaintiff avers that, as a direct and proximate consequence of said breach on the part of the defendant, as aforesaid, the crude oil which was produced from said lease was attached, and the refining company which was at that time purchasing said crude oil which was being produced from said lease was garnished and the plaintiff was unable to receive payment for the crude oil produced from said lease for a long time, to wit, 8 months, that the plaintiff was greatly harassed and inconvenienced in and about his efforts to produce crude oil from said lease, and that he was caused to lose time and labor, and was unable to make the deferred payments which he had agreed to make as a part of the purchase price of said lease, and that said lease was foreclosed as a result of his failure to pay said deferred payments, and that he was caused to lose the same; plaintiff was further caused to lose a large sum of money, to wit, the sum of $9,000, which he had paid in cash on the purchase price of said lease and was further caused to lose a large sum of money, to wit, the sum of $15,000, which he had spent in making valuable improvements on said lease, and that the plaintiff was caused to lose the further and additional sum of, to wit, $5,500, which was part of the purchase price of said lease; and plaintiff avers that, at the time said lease was foreclosed and sold as aforesaid, its reasonable market value was to wit, $200,000, and that as a direct and proximate result of the defendant's breach of the contract, as aforesaid, the plaintiff was caused to lose said lease and to lose the profits that he would have made thereon, had the defendant carried out said contract. And plaintiff avers that all of his said injuries were directly and proximately caused by the failure of the defendant to protect the plaintiff, and hold him harmless from any liens or incumbrances that existed against said lease at the time the contract above set forth and described was entered into, all to the damage of the plaintiff in the sum aforesaid, hence this suit.

Count A-2 is as follows:

A-2. Plaintiff claims of the defendant the sum of $250,000, as damages, for that heretofore on, to wit, the 22d day of January, 1922, the defendant, in consideration of the plaintiff purchasing from one M.A. Rosansky a certain oil and gas lease, located in Warren county, Ky., entered into a written agreement with the plaintiff, in said Warren county, by the terms of which said written agreement it was agreed that there had been certain attachments and other liens filed against said lease, and that the defendant would protect and hold harmless the plaintiff from any lien or incumbrances existing against said lease on the date said contract was executed. And the plaintiff says that at the time he was purchasing said lease from the said Rosansky, as aforesaid, the defendant was present and aiding, advising, and abetting the consummation of said purchase. And the plaintiff avers, further, at the time the defendant was aiding and abetting and advising the consummation of said purchase, that the defendant falsely and fraudulent represented to the plaintiff that the said Rosansky was the lawful owner of said lease and of all the crude oil being then and there produced from said lease. And plaintiff avers that, relying upon the said representations then and there made to him by the defendant, he purchased said lease and took possession of the same. And plaintiff says that the representations made to him, as aforesaid, by the defendant were false in this; the said Rosansky was not the lawful owner of the crude oil being then and there produced from said lease, but that, on the contrary, the defendant was the owner of one-fourth of a seven-eighths interest in all the crude oil being produced and to be produced from said lease. And plaintiff further says that on, to wit, the 8th day of March, 1922, the plaintiff asserted his claim to the ownership of said crude oil, and took and received said oil, and plaintiff avers that, as a direct and

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