Scott v. Lafayette Gas Co.
| Decision Date | 15 December 1908 |
| Docket Number | 6,763 |
| Citation | 86 N.E. 495,42 Ind.App. 614 |
| Parties | SCOTT v. LAFAYETTE GAS COMPANY |
| Court | Indiana Appellate Court |
From Blackford Circuit Court; Charles E. Sturgis, Judge.
Action by Addison Scott against the LaFayette Gas Company. From a judgment for defendant, plaintiff appeals.
Reversed.
A. R Long and L. F. Sprague, for appellant.
Ferdinand Winter and Condo & Browne, for appellee.
This was an action to recover rentals under the terms of a gas and oil lease.
We are confronted with a motion by appellee to dismiss this appeal for the reason that there was no precipe filed, and therefore that nothing is presented for our consideration. In the absence of a precipe directing the clerk to certify to certain portions of the record, it was his duty to make a complete transcript of all the proceedings, and this he may do upon the request of the party, either orally or in writing. If a transcript comes here without a precipe, we therefore, presume that an oral request was given to the clerk for a full and complete transcript. Elliott, App. Proc., § 200; § 641g Burns 1905, Acts 1903, p. 338, § 7; § 690 Burns 1908, § 649 R. S. 1881; Rutherford v. Prudential Ins. Co. (1904), 32 Ind.App. 423; Workman v. State, ex rel., (1905), 165 Ind. 42, 73 N.E. 917; Price v. Huddleston (1906), 167 Ind. 536, 79 N.E. 496. The motion is therefore not sustained.
The record in this case discloses that on January 2, 1906, appellant filed his complaint, and on January 25, of the same year, appellee filed its demurrer thereto. On June 17, 1907, the demurrer was sustained. On June 27, 1907, appellant, upon leave of court first obtained, filed his amended complaint in three paragraphs. On November 1, 1907, appellee filed its demurrer to this complaint, but did not denominate it as the demurrer to the "amended" complaint. It is therefore contended by the appellee that no question is presented by the assignment of errors. We cannot agree with this contention. The amended complaint superseded the complaint on file, which was thereby removed from the record of this cause. Western Assur. Co. v. McCarty (1897), 18 Ind.App. 449, 48 N.E. 265; Weaver v. Apple (1897), 147 Ind. 304, 46 N.E. 642; Britz v. Johnson (1879), 65 Ind. 561; Westerman v. Foster (1877), 57 Ind. 408; Kirkpatrick v. Holman (1865), 25 Ind. 293. The pleading filed June 27, 1907, became the complaint in this cause, and therefore the only pleading to which a demurrer could be addressed. City of Vincennes v. Spees (1905), 35 Ind.App. 389, 74 N.E. 277; Town of Whiting v. Doob (1899), 152 Ind. 157, 52 N.E. 759.
In addition to setting out the lease, it was alleged, in substance, in the first paragraph of the complaint, that appellant leased the described premises, containing forty acres, to appellee in June, 1897; that the term of the lease was for five years, with an option in the lessee to renew or continue the lease for an additional term of five years, by giving notice of its desire to do so; that notice was given, but not at the time required by the lease; that no well was ever drilled on the premises; that appellee paid all rentals accruing under the lease up to January 1, 1905; that "for the period from January 1, 1905, to July 1, 1905; there became due as rental $ 50, and for the period from July 1, 1905, to December 31, 1905, there became due as rental $ 50, making a total due as well rental the sum of $ 100, as made and provided in said contract;" and that appellant is the owner of the leased premises. Judgment for $ 100 is demanded. The clauses of the lease necessary to the consideration of the question raised are as follows:
"(3) Said party of the second part hereby covenants, in consideration of said premises, to pay unto said party of the first part, compensation at the rate of fifty cents per acre per annum for said land until the completion of a well upon said lands, as hereinafter mentioned. The party of the second part further agrees that from and after the completion of a well on said premises which shall, in its opinion, produce gas in sufficient quantity to justify said second party in marketing said gas it will pay to the party of the first part compensation at the rate of $ 100 per annum for each well on said land, so long as, in the opinion of the party of the second part, said well produces a marketable quantity of gas. Said payments shall become due semiannually, upon January 1 and July 1, and shall be paid within ten days of the maturity thereof, by depositing the same in the Fairmount Bank at Fairmount, subject to the order of said first party, or direct to said first party.
(4) Said party of the second part reserves and is hereby given the right to cancel and terminate this lease by giving to said party of the first part written notice of such intention three months before January 1 or July 1 in any year, and by or on January 1 or July 1 paying to said party of the first part all rents then due to said party of the first part according to the terms of this lease, and also paying to said party of the first part the sum of $ 5, and releasing of record this lease; whereupon the rights of both parties under this lease shall cease and determine, except that said second party shall have the right, without paying any further compensation therefor, to maintain, operate, repair, replace or remove any pipe-lines laid upon said premises.
(5) To drill one well upon said premises within two years from this date, and a second well within from the time the second party shall use the first well, unless said first well shall become useless to said second party before the expiration of said , all subject to the same condition.
(6) In case the well or wells are not drilled or utilized as herein provided, then, upon the payment of the well rental herein stipulated to be paid by the second party, this agreement shall continue, and shall have the same force and effect as though the well or wells had been drilled and utilized."
It will be observed that no forfeiture was provided for in the lease. Appellee, by exercising the right of notice, release of record, and payment of $ 5 and all accrued rentals, might terminate this agreement before its expiration by lapse of time, but no similar right or privilege was reserved to the lessor.
Appellee contends that the sixth clause is optional in form, and that the effect of such clause is that, if said well rental be paid by the lessee, then and in that event the lease would continue alive. It is optional in form, but it does not thereby permit the lessee to refuse either to drill wells or to pay the rent and thus entirely avoid the contract. Jackson v. O'Hara (1897), 183 Pa. 233, 38 A. 624; Thornton, Oil and Gas, § 73.
The lessee obligated itself to drill at least one well within two years from the date thereof. If it preferred not to perform that obligation, then there was the alternative provision for paying the "well rental" after the expiration of that time. The "well rental," as declared in the lease, was $ 100 per annum. Therefore, lessee, by its failure to drill a well upon the leased premises, incurred the alternative liability for the "well rental" of $ 100 per year.
Appellee further insists that the first paragraph is insufficient, in that there is no averment that the rent was due and unpaid at the time of bringing this action. It has been the holding of the courts of this State that a complaint upon a promissory note must aver that the note was due and unpaid at the time that the action was brought. This, however, need not be in direct terms. If sufficient facts are pleaded from which it may fairly be inferred that the note was due and unpaid, it will withstand a demurrer. In this case the fair...
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