Nelson v. Eachel

Opinion by Mr.

Justice Thompson,

The note upon which the judgment in this case was entered, and subsequently opened to let appellees into a defence, was dated April 25, 1889, and was made payable in one year from its date. The indorsement upon it was : “ This note to be paid within two months after the year expires on lease No. 1 on east part of farm, provided the well on said lease should prove good paying well; the well to be completed within the year.” If this indorsement was a part of the note, its effect was to extend conditionally the date of its maturity for two months, and to negative any liability in case the well sunk upon the lease mentioned should not prove a good paying well. The first question, therefore, which arises is whether there was sufficient evidence to be submitted to the jury in regard to it. The learned trial judge said : “ That if this memorandum were on the back of the note at the time the instrument was delivered it is as much a part of the note as if it were written upon the face thereof, and just as binding upon the parties.” If the parties made this indorsement a part of the note, and as such binding upon them, the place where it is written cannot change that effect.

The substantial question then was, did the parties so make it? The learned judge submitted it to the jury, and the evidence warranted him in so doing. The proofs showed that the note remained in the custody of R. W. Stewart, the decedent, up to the date of entering it, February 11, 1892; that it was retained with the indorsement upon it; that it was in the handwriting of John D. Irons, one of the appellees, who it is not suggested ever had access to it or opportunity to write anything on the note ; that the well was to be located upon lease No. 2 instead of No. 1, and justified the .conclusion that the indorsement was made at the time of the delivery of the note, and therefore was made a part of it. As it provides for the sinking of a well upon lease No. 1 the appellees were liable, unless R. W. Stewart waived his right to have it sunk there. It appears there were two leases between the same parties, Nos. 1 and 2, the former being upon the .east half and the latter upon the west half of Stewart’s farm. He doubtless wanted to develop his farm, and naturally was concerned about the sinking of a well at the point most likely to be successful. Charles Eachel, one of the appellees, conferred with him upon the subject and consulted him about its location. O. D. Harrington testifies : “ Mr. Eachel desired to drill another well. He had drilled a well on No. 2 and desired to drill another one there, and Mr. Stewart agreed that he should do so and it should fulfill the requirements as related to lease No. 1.” And 'C. W. Duncan testifies : “ He said when the well was completed and she would come in dry, 11 wish we had drilled the well and kept the old location over on the other side.’ ” The well on No. 2 proved a dry well, and therefore if Stewart agreed to its location there instead of upon lease No. 1, appellees were not liable. The question under the evidence was for the jury, and the learned trial judge in submitting it to them cannot be convicted of error. His charge was not misleading.

The assignments of error are not sustained, and this judgment is affirmed.