The People's Gas Company v. Fletcher

• Decision Date: 06 November 1909
• Docket Number: 16,020
• Citation: 81 Kan. 76,105 P. 34
• Parties: THE PEOPLE'S GAS COMPANY et al., Appellants, v. JOSEPH FLETCHER et al., Appellees
• Court: Kansas Supreme Court

105 P. 34

81 Kan. 76

THE PEOPLE'S GAS COMPANY et al., Appellants, v. JOSEPH FLETCHER et al., Appellees

No. 16,020

Supreme Court of Kansas

November 6, 1909

Decided July, 1909.

Appeal from Montgomery district court; THOMAS J. FLANNELLY, judge.

STATEMENT.

THE plaintiffs sought to enjoin Fletcher and wife and Yoke from operating for oil or gas or removing the same from land belonging to the Fletchers. The petition alleged that on September 4, 1899, Joseph and Matilda Fletcher executed and delivered to the Pennsylvania Oil Company, a partnership, an oil-and-gas lease to the northwest quarter of section 20, in township 34 south, of range 16 east of the sixth principal meridian, in Montgomery county, Kansas, for a period of ten years from that date, and as much longer as oil or gas should be produced in paying quantities, and that by subsequent assignments the lease became the property of the plaintiffs. The lease provided that if no oil or gas well should be sunk on the premises within twelve months the lease should become null and void, unless the second party should pipe gas to within one hundred feet of the residence of the parties of the first part and give them the right to use gas in consideration of the terms of the lease until a well should be drilled. The petition alleged a compliance by the plaintiffs with the terms of the lease, and that in October 1905, the Fletchers executed and recorded a lease to defendant Yoke covering the same premises, which Yoke accepted with full knowledge of the rights of the plaintiffs and that he had erected a derrick on the premises for the purpose of boring for oil and gas, and prayed that defendants be enjoined from operating under the second lease.

Defendants Fletcher and wife filed an answer, in which each denied under oath the execution of the lease described in the plaintiffs' petition. They further answered that the premises in controversy had been at all times their homestead, and were then so occupied; that the Pennsylvania Oil Company had not drilled a well of any kind on the premises within twelve months of the date of its alleged lease, and had failed to pipe gas to within one hundred feet of the residence of the answering defendants or supply them with gas within twelve months from September 4, 1899. They asked judgment against the plaintiffs declaring the lease set out in the petition to be null and void, and that their title to the premises be quieted.

The plaintiffs filed replies in which they sought to avoid the failure to pipe gas to the residence of the Fletchers within the twelve months, and alleged that in October, 1900, a short time after the year expired, the Pennsylvania company, with the knowledge and consent of the Fletchers, piped gas to their residence, and that the company and its assigns had continuously from that time furnished gas to them for domestic purposes under the terms and conditions of the lease, by reason of which facts it was alleged the Fletchers had ratified and confirmed the lease and were estopped from contesting its validity.

At the trial, which was before the court and a jury, the plaintiffs introduced the original lease under which they claimed signed "Joseph Fletcher and Anna M. Fletcher," and certified as acknowledged before J. F. McCorkle, a notary public. The notary was dead at the time of the trial and his signature was proved. A number of handwriting experts examined the signature of Mrs. Fletcher to the original lease and compared it with her signature to the affidavit denying the execution of it, and testified that in their opinion both signatures were written by the same person.

The foreman of the oil company testified that he had charge of the men who laid the pipe from the main line to within about twenty-five feet of the Fletcher residence; that they laid approximately 1500 or 2000 feet; that he saw Mr. Fletcher on the farm at the time and talked with him about where he wanted the line laid and it was laid at the place designated by Mr. Fletcher, and that Fletcher at no time by act or word made any objection to laying the pipe. Several other witnesses testified to substantially the same facts, and there was abundant testimony that the Fletchers piped the gas into the house and used it for domestic purposes.

In the original lease the description of the land was in typewriting. It appeared upon examination that there had been an alteration of the number of the section from 24 to 20, by writing over the figure 4 a cipher with pen and ink. Joseph Fletcher admitted his signature to the original lease, but contended that this alteration had been made after he signed and acknowledged it, and for this reason it was void as to him. He admitted that he intended to sign a lease for the land in section 20, and that this was the intention of the notary. He testified that he signed and acknowledged the lease while in the cornfield; that it was executed in duplicate; and that after he had signed it McCorkle went to the house. Mrs. Fletcher testified that McCorkle came to the house with the lease and said that her husband had signed it, and asked her for a tax receipt; that she brought him one, and went about her household duties; and that after doing some writing McCorkle went away without asking her to sign the lease, and that she had neither signed nor acknowledged it and would not have done so if he had requested it, as she was not satisfied with its terms. The testimony also showed that some weeks after this Joseph Fletcher received by mail a copy of the lease, and noted for the first time that the description of the section was wrong and that it purported to be signed by his wife; that acting for himself and wife he notified the manager of the Pennsylvania Oil Company that the description was wrong, that his wife had never signed the lease, that she was not satisfied with the terms of it, and that it was void; that the manager said he would prepare another lease that would be satisfactory, but never did so. He also testified that he had informed the manager of the People's Gas Company of the same facts and had an understanding with him that nothing would be done until a new lease was made out; that when the employees of the Pennsylvania Oil Company brought the pipe to the place he told them that they had no lease and went to the house and showed them his copy, in which it appeared that the year had expired; that the foreman said he would leave the pipe there over night and go back and inform the company; that afterward the pipe was removed, but without his knowledge was taken to another part of the farm, and the line laid in his absence; that he knew nothing about it until he returned. Some of the employees of the company who laid the pipe testified that, acting under the instructions of the manager of the company, they hauled the pipe away and brought it back and strung it along at another place on the farm, and afterward went there and made the connection. Mrs. Fletcher testified that her husband was away when the pipe was brought back and that she did not discover that the workmen were there until the pipe was laid; that there was a grove of trees between the house and where they were working. Both the Fletchers testified that they used the gas with the understanding that the company would carry out its promise and procure a new lease on satisfactory terms, and with no intention of accepting or ratifying the former lease.

The court submitted certain special questions to the jury, which were answered as follow:

"(1) Ques. Was the lease from Fletcher and wife to the Pennsylvania Oil Company, which is marked "Exhibit C," altered or changed as to that portion of the description with reference to the number of the section before or after the signing and acknowledgment of the lease? Ans. After.

"(2) Q. Did Mrs. Fletcher sign the lease? A. No.

"(3) Q. If you answer question No. 1 by saying that the lease was changed after it was signed and acknowledged, when, if at all, did Fletcher and wife first learn that such change or alteration had been made? A. Some time after copy of lease was returned to Fletcher and wife.

"(4) Q. If you answer question No. 2 by saying that. the lease was changed and the addition of the signature of Mrs. Fletcher after it had been signed and acknowledged, when, if at all, did the defendants Fletcher and wife first learn that such change or alteration had been made? A. When Fletcher and wife read copy of the lease.

"(5) Q. If you say the lease was changed, did Mr. Fletcher consent to the change? A. No.

"(6) Q. If you say that the lease was changed, did Mrs. Fletcher consent to the change? A. No."

The court adopted the findings of fact made by the jury, and, in addition, found all the issues in favor of the defendants and against the plaintiffs, and rendered judgment as prayed for in the cross-petitions; and this judgment the plaintiffs seek to reverse.

Judgment affirmed.

SYLLABUS

SYLLABUS BY THE COURT.

1. WRITTEN INSTRUMENTS -- Evidence of Execution -- Certificate of Acknowledgment -- Parol Evidence. A certificate of acknowledgment made by an officer authorized to take acknowledgments is only prima facie evidence of the execution of the. instrument, and while it is entitled to a strong presumption in favor of its truth it may be impeached by parol testimony.

2. WRITTEN INSTRUMENTS -- Denial of Execution -- Testimony of Parties. Where the parties have actually appeared and signed an instrument, and afterward attempt to contradict the certificate as to what. took place, the evidence to impeach the acknowledgment must be clear and convincing. (...