Vanderlin v. Hovis

Opinion by

Mb,. Justice G-been,

By the expressed terms of the original lease, made July 1, 1884, the only obligation to pay the annual sum of $200 was by way of default in not commencing operations for drilling within thirty days. The stipulation on that subject is in the following words: “The parties of the second part agree to commence operations for said drilling purposes within thirty days from the execution of this lease or thereafter page the party of the first part $200 per annum until work is commenced, to be paid quarterly, and after work is commenced, it is to be prosecuted with due diligence until well is completed.” A copy of this lease, with the numerous assignments of the various interests of the lessees, is attached to the affidavit of defence, and the averments of the affidavit were to the effect, that the lessees entered upon the demised premises and, within the thirty days mentioned in the lease, bored two wells one of which produced oil, and was carried on with a constant production from that time to the time of filing the affidavit in May, 1890. This being so, of course, no part of the annual sum of $200 ever became due or payable under the lease.

On the trial the plaintiff gave in evidence a lease, dated July 1, 1884, directly from the plaintiff to the defendant for the same premises, which was substantially a duplicate of the first lease, and containing the same covenant as the first lease as to the commencement of operations within thirty days, or on failure to do so, to pay the same annual sum of $200, and rested, claiming that although the lease was dated July 1, 1884, it was in fact executed on April 9, 1886, and that as the defendant had not drilled any well within thirty days of that date, the plaintiff was entitled to recover four years’ payments of $200 each as for a violation of the stipulation on that subject.

Thereupon the defendant made numerous offers of testimony to show that the second lease was a mere substitute for the first one, made by the advice of counsel to whom the defendant had applied for the purpose of making a loan upon a mortgage of this and other leaseholds. That in consequence of the somewhat confused condition of the defendant’s title under the various assignments of the interests of the original lessees, counsel advised that inasmuch as the defendant held all the interests except the one third that belonged to the plaintiff, instead of perfecting the assignments and recording them all, the defendant should ask the plaintiff to make a new lease directly to the defendant and upon the same terms as contained in the former lease, in order that a more satisfactory mortgage could be executed to the person lending the money. That the defendant saw the plaintiff and explained what he wanted, and the plaintiff agreed to make the lease as requested, and that this was the way in which the second lease was given. That the terms of the first lease had been fully complied with, and therefore no part of the annual sums of $200 was due to the plaintiff. That the plaintiff had never demanded any part of said annual sums until the present suit was brought in May, 1890, and that the first lease had never been surrendered by the defendant or demanded by the plaintiff. Other matters of a kindred and corroborating character were contained in the offers of proof but it is unnecessary to repeat them here.

For some reason not expressed by the learned court below, and which we are unable to understand or appreciate, every one of the defendant’s offers of testimony, sixteen in number, was rejected. The objections to their admissibility were quite trivial and entirely untenable, and whether the learned court acted upon those objections or upon other considerations, we are clearly of opinion that every one of the offers should have been received and that it was grave error to reject them. The objections seem to be principally that the offers were immaterial and irrelevant, but in point of fact they were very material and entirely relevant, as they tended to show the precise circumstances and reasons for the execution of the new lease, that it was given for the very special' purpose of confirming and perfecting the defendant’s title under the old lease, and not in any sense as altering, contradicting or changing that title. That it would be. productive of a gross fraud upon the manifest rights of the defendant to permit this second lease to destroy and defeat his title under the first lease, in view of the facts offered to be proved, is too plain for argument. In every technical sense the offers of testimony were perfectly legitimate. Indeed the second lease was practically insensate without parol explanations. How could a lease which was dated in 1884 and contained a covenant to commence operations within thirty days from its date, be violated by a breach which did not commence till thirty days after April 9,1886 ? What reason existed for dating a lease actually executed in 1886, back to 1884, and whose operative words spoke only from the latter date ? How could a single step be taken to enforce its covenants without a preliminary explanation by testimony resting in parol, showing why, though it literally spoke from July 1, 1884, it was only to be interpreted as speaking from April 9, 1886 ? On the face of the paper, the defendant had made no default in commencing operations within thirty days from July 1, 1884, and had never incurred any obligation to pay any part of the $200 annual sums. How then could the plaintiff recover any part of those sums ? Only by parol evidence •showing that although the paper literally provided for a breach within thirty days from July 1, 1884, it was intended to provide for a breach occurring within thirty days from April 9, 1886. It was not enough to prove that the paper was actually executed in April, 1886, because although executed at that time it nevertheless by its literal terms related back to July 1, 1884, as the ineipiency of the rights it conferred and the terms it required. It is very plain to us that the plaintiff is quite as much in need of explanatory assistance in parol, to enforce a recovery, as the defendant is to establish his defence. Other manifest considerations are entirely applicable, but it is unnecessary to repeat them. We are clearly of opinion that every one of the offers of testimony was legitimate and that it was serious error to reject them. We sustain all the assignments of error.

Judgment reversed and new venire awarded.