Kristofferson v. Stewart

348 Mich. 119 (1957) 82 N.W.2d 485

KRISTOFFERSON
v.
STEWART.

Docket No. 10, Calendar No. 47,001.

Supreme Court of Michigan.

Decided April 22, 1957.

Ray D. Markel, for plaintiff.

Dennis J. O'Keefe and Harry E. Converse, for defendant.

KELLY, J.

This appeal involves the construction of a written agreement, copy of which was attached to plaintiff's declaration, together with letters in connection therewith. On motion of defendant, the court concluded that the declaration, contract and letters attached, did not establish a cause of action, and plaintiff appeals.

Plaintiff prepared the agreement, dated December 4, 1954, which was accepted by the defendant on December 6, 1954, whereby, in consideration of the payment of $6,000 to plaintiff, defendant contracted to drill test wells on plaintiff's property. Defendant promptly drilled the first well and on January 14, 1955, informed the plaintiff by letter that in view of the fact that the first well resulted in a dry hole that he did "not desire to exercise our option under your letter of December 4, 1954, either to drill the second test well on or before January 20, 1955, or to delay drilling until March 15, 1955, by payment to you of $3,500."

On the following day plaintiff wrote defendant, stating:

"Your letter of January 14 refers to our agreement of December 4, 1954 as an option. Our agreement was not an option, but required the drilling of 3 test wells on your part."

The paragraph of the December 4th agreement that will determine this appeal is as follows:

"Time is of the essence of this agreement, and failure on your part to commence actual drilling of any of said test wells as provided for herein, shall make this letter of agreement null and void, and I will not be obligated to make any assignments of leases after any such default."

It is the claim of the plaintiff that this contract gives to plaintiff the right to determine whether the second and third wells mentioned therein should be drilled, but does not give that option or right to the defendant.

In granting the motion to dismiss, the court commented upon the provision of the contract that "failure on your part to commence actual drilling of any of said test wells as provided for herein, shall make this letter of agreement null and void," and stated that if that right was restricted solely to plaintiff, plaintiff should have so stated.

The contract provisions are not ambiguous. Plaintiff prepared the contract, and defendant paid $6,000 for the privilege or right to drill upon plaintiff's property. We agree with the trial court's construction of this contract.

Judgment affirmed. Costs to appellee.

DETHMERS, C.J., and SHARPE, SMITH, EDWARDS, VOELKER, CARR, and BLACK, JJ., concurred.