Rembarger v. Losch

• Citation: 118 N.E. 831,70 Ind.App. 98
• Decision Date: 01 March 1918
• Docket Number: 9,441
• Parties: REMBARGER ET AL. v. LOSCH
• Court: Indiana Appellate Court

118 N.E. 831

70 Ind.App. 98

REMBARGER ET AL. v. LOSCH

No. 9,441

Court of Appeals of Indiana

March 1, 1918

Rehearing denied June 28, 1918. Transfer denied April 25 1919.

From Jay Circuit Court; James J. Moran, Judge.

Action by William J. Losch against Alva M. Rembarger and another. From a judgment for the plaintiff, the defendants appeal.

Reversed.

John W Newton, Simmons & Daily and John J. Kelly, for appellants.

Canada & Chenowith, LaFollette & McGriff and S. A. D. Whipple, for appellee.

BATMAN P. J. Hottel, J., dissents. Caldwell, J., not participating.

OPINION

BATMAN, P. J.

On March 4, 1914, appellee filed his complaint in two paragraphs against appellants, by which he sought the cancellation of a certain oil and gas lease, which he alleges he had executed to appellant Alva M. Rembarger. The first paragraph contains a copy of said lease, which, it is alleged, was executed on October 3, 1911. It provided in substance, among other things, that it was to run for ten years from its date and as much longer as mineral, oil, natural gas, or other valuable substances should be found on such premises in paying quantities; that appellee was to have one-eighth of all the oil produced and saved on the leased premises; that the lessee was to pay to the lessor "the sum of free gas for one well (for household use), and $ 50.00 per year for the gas from each and every well drilled on the premises, to be paid yearly thereafter while the gas from such well is so used off the premises"; that in the event the lessee should fail to comply with the conditions of such lease, or pay the cash consideration mentioned therein, within the ninety days given therefor, "the lease may be declared null and void, and the right to so declare this lease null and void shall extend to both parties to this agreement, together with their heirs, executors, grantees, successors or assigns, and sub-lessees." Said paragraph then alleges that by the mutual mistake of all the parties to the lease and by the mutual mistake of the scrivener who drew the same the real estate was erroneously described therein as being in section 20, when in truth and fact said land was in section 3. It then alleges facts showing a development of such premises in the years 1911 and 1912, by drilling of four wells which produced both oil and gas; the operation of the same, and the use of gas off said premises since March 15, 1912, from all of said four wells so drilled; the refusal to pay for the gas so used off said premises, although such payment had been frequently demanded; an election by appellee February 5, 1914, to declare said lease forfeited because of the refusal to comply with the conditions thereof as alleged; the service of notice of such forfeiture on the said Alva M. Rembarger and New Pittsburgh Oil and Gas Company, to whom said Rembarger claimed he had assigned said lease; the continued operation of said wells for oil and gas, and the use of gas off said premises from each of said wells, after the forfeiture and the service of such notice, and the continued refusal to furnish appellee gas for household use, or to comply with the conditions of the lease as alleged. Prayer that the lease be declared forfeited and appellee's title quieted.

The second paragraph of complaint is the same as the first, except that it asks in addition a judgment for $ 300 for the alleged use of gas off the premises. Appellants filed separate demurrers to each paragraph of the complaint for want of facts, which were overruled and proper exceptions reserved.

Appellants then answered by general denial, and also by two affirmative paragraphs of answer, to which a reply in general denial was filed.

Trial was had by the court, and judgment was rendered in favor of appellee on the first paragraph of complaint, reforming and canceling such lease, and giving appellee sixty days to remove his property from the premises. Appellants filed a motion for a new trial, which was overruled and proper exceptions reserved. The errors assigned by appellants are based on the action of the court in overruling their demurrers to each paragraph of the complaint, and in overruling their motion for a new trial.

Appellants have stated a number of points, and cited a number of authorities, in support of their contention that the court erred in overruling their demurrers to each paragraph of the complaint. Such contention, however, is not based on any defects stated in the memorandum filed with the demurrer, and are therefore waived. § 344 Burns 1914, Acts 1911 p. 415; State, ex rel. v. Bartholomew (1911), 176 Ind. 182, 95 N.E. 417, Ann. Cas. 1914B 91; Spurgeon v. Olinger (1917), 64 Ind.App. 176, 115 N.E. 680.

Appellants base their alleged error in overruling their motion for a new trial on the grounds that the decision of the court is not sustained by sufficient evidence and is contrary to law.

Since the judgment was rendered on the first paragraph of complaint, we are only required to consider the grounds for a new trial in relation thereto. The trial court evidently construed this paragraph as a proceeding in equity, seeking a decree reforming and canceling the lease in question, as appears from the relief granted. Said paragraph being susceptible of such construction, and the case being so tried, such theory will be adhered to on appeal. Pittsburgh, etc., R. Co. v. Lamm (1916), 61 Ind.App. 389, 112 N.E. 45; Studabaker v. Faylor (1908), 170 Ind. 498, 83 N.E. 747, 127 Am. St. 397; Ditton v. Hart (1911), 175 Ind. 181, 93 N.E. 961. By the allegations of said paragraph such right of cancellation is based on an alleged forfeiture by reason of certain specific violations of such lease stated therein. Before the judgment can be sustained, it must appear that appellee is entitled to the relief granted on the case thus presented, as he cannot sue upon one theory and recover upon another. Louisville, etc., R. Co. v. Renicker (1893), 8 Ind.App. 404, 35 N.E. 1047; Pennsylvania Co. v. Walker (1902), 29 Ind.App. 285, 64 N.E. 473.

Appellants first contend that the evidence fails to establish any alleged violation of the lease in question. The only violations alleged are the failure to pay the annual amounts for each well, while gas therefrom was used off said premises, and to furnish free gas for household use. The trial court evidently found that such allegations had been sustained, and, as there was evidence which tends to support the same, we are bound by such finding. It only remains for this court to determine whether such violations are sufficient to warrant the judgment rendered.

It is a well-settled rule that where there is an adequate remedy at law, equity will not interfere, and that extraordinary remedies cannot be invoked. Ploughe v. Boyer (1871), 38 Ind. 113; Geiser Mfg. Co. v. Lee (1904), 33 Ind.App 38, 66 N.E. 701; Handley v. Sprinkle (1904), 31 Mont. 57, 77 P. 296, 3 Ann. Cas. 531; Sunset Tel., etc., Co. v. Williams (190...