Acklin v. McCalmont Oil Co.

■ Opinion by

Mb. Justice Potteb,

This action was brought by George W. Acklin, administrator c. t. a. of the estate of Peter Swint, deceased, and J. E. Swint, for the use of J. E. Swint, against the McCalmont Oil Company to recover royalties under leases made by Peter Swint and J. E. Swint to W. G. Hunter & Company and to II. W. Locke, subsequently assigned to the defendant company, for certain oil lands situated in Franklin township, Allegheny county, Pennsylvania.

After suit brought, TI. W. Locke and F. W. Leidecker, assignees of all the right, title and interest of Peter Swint in the lease were admitted on their own petition as defendants in the case.

From the testimony the following facts appear: Peter Swint in his lifetime, was the owner in fee of a farm of 120 acres in Franklin township, Allegheny county. In 1883 his son J. E. Swint, came to live with him on the farm, and worked it on shares. On December 3, 1885, Peter and J. E. Swint made an oil lease to W. G. Hunter & Company for forty acres of the farm for the term of twenty years, which was duly acknowledged and recorded. On October 14, 1887, Peter and J. E. Swint made another oil lease to H. W. Locke for the entire 120 acres which was also acknowledged and recorded. By subsequent assignments, both of these leases became vested in the McCalmont Oil Company, the defendant.

Under these leases the lessors were to be paid a royalty of one eighth of the oil produced. On October 17, 1889, Peter Swint assigned to Henry W. Locke and F. W. Leidecker all his right, title and interest in the Locke lease. On May 3,1895, J. E. Swint brought an action against the McCalmont Oil Company to recover royalty under the leases. It appeared that the defendant in that suit had paid the royalties in full to Peter Swint and his assignees, and as the plaintiff had given no notice of any claim upon his part, he was not permitted to recover: Swint v. McCalmont Oil Co., 184 Pa. 202. It was also held in that case that the lessee might show the circumstances under which the plaintiff signed the lease, as a reply to his demand for one half of the rent reserved and that this would not amount to a denial of the landlord’s title, but only to a denial that as to the son, the lease created that relation.

On April 13, 1898, the present suit was brought to recover royalties which had accrued since the date of the first suit. On the trial, the plaintiff as his case in chief put in proof the leases and showed that he was a cropper, occupying the farm with his father and then rested.

The defendants showed title to the farm in Peter Swint, the father, and conveyances from him to Locke and Leidecker, the defendants. They also showed the circumstances under which J. E. Swint signed the lease, and that he did not do so as lessor, that he made no claim to the land, but stated that it was his father’s farm, but would probably be his when his father got through with it. The defendants offered no testimony whatever as to any declarations of Peter Swint.

The court below excluded any testimony offered by the plaintiff in rebuttal as to statements made by Peter Swint at and before the time of the execution of the lease, as to the alleged interest of J. E. Swint in the oil. The court further refused to give binding instructions for the plaintiff, and submitted to the jury the question, “Whether Joseph E. Swint although in the lease named as a lessor and presumptively entitled to one half of the royalty was in point of fact, such lessor and entitled to any of the royalty.” The verdict was for the defendant.

The first eleven assignments of error relate to rulings upon offers of evidence. The first assignment is in plain disregard of the rules of this court in that it fails to quote the testimony which was given under the offer. It will, therefore, be disregarded : Raymond v. Schoonover, 181 Pa. 357; Fritz v. Lebanon Mutual Ins. Co., 154 Pa. 384.

The second and third assignments allege error in the exclusion of certain questions, as not being cross-examination. We think the rulings were right. The questions asked were not properly cross-examination as they did not relate to anything which had been brought out by the examination in chief. These assignments are, therefore, overruled.

The fourth specification of error has given us some concern. It alleges that the court erred in sustaining defendant’s objection to the offer made by plaintiff to prove by the witness, Madie Swint, that at the time of the execution of the lease, her grandfather Peter Swint stated to the lessee that J. E. Swint was to have one half of the royalty. In other words, the offer was to prove the declaration of Peter Swint (who Avas dead) as made to Locke with reference to the interest of J.- E. Swint in the oil. The offer was objected to as incompetent, irrelevant and not rebuttal. As to the first objection, the witness was not a party in interest, and her testimony was therefore competent. We see no reason either, to question the relevancy of the offer. Its exclusion can, therefore, be only justified upon the ground that it was not rebuttal. Justice Strong said in Stetson v. Croskey, 52 Pa. 230, “ The general rule is that a plaintiff cannot claim as a right to give as evidence in rebuttal that which he might have given in chief. To this there are doubtless several exceptions not easily susceptible of classification. Most of them, however, are allowed in cases where the defense set up is some new matter not directly, but only inferentially conflicting with the averments of the plaintiff. Such a defense and the evidence to support it may not be anticipated, and hence a plaintiff is allowed to assail it by rebutting evidence, though that evidence may have been admissible in chief.”

In the present instance the evidence offered by the plaintiff and rejected by the court does not seem to come within any such exception. The only question at issue here was whether or not the plaintiff was a co-lessor with Peter Swint. The matter set up in the defense was in direct denial of the plaintiff’s averment. The evidence given by the defendants to show that the plaintiff had claimed no interest in the land or in the oil at the time of the execution of the lease, was a direct answer to the plaintiff’s case. The evidence included in the plaintiff’s offer in rebuttal was but cumulative proof, of that which they were bound to establish, and which they had attempted to establish by their evidence in chief. We do not see that it can be considered as an answer to a new or unexpected defense. The offer was, therefore, properly excluded as not being rebuttal testimony.

Furthermore the offer was to contradict the evidence of the plaintiff himself upon that particular point, and he cannot complain that the court took the case as he made it, in this respect, even though another witness might have done more for him: Kohler v. Penna. R. R. Co., 135 Pa. 346, 357.

With reference to the fifth, sixth, seventh, and eleventh assignments of error, the offers to show declarations of Peter Swint to the plaintiff and his wife, were properly overruled. The issue was between J. E. Swint and Locke and Leidecker, who were assignees of Peter Swint, who was dead. The interest of the plaintiff was adverse to that of his father and the latter’s assignees. This brought him squarely under the express terms of the act of May 23, 1887. He was clearly not a competent witness. Nor is the plaintiff helped in any way by the act of June 11,1891. Locke did not testify as to the declarations of Peter Swint, and the question is directly ruled by Kauss v. Rohner, 172 Pa. 481, Thomas v. Miller, 165 Pa. 216, and Roth’s Est., 150 Pa. 261.

The eighth assignment alleges error in the exclusion of plaintiff’s offer to explain the long delay in proceeding upon his claim for royalty. The allegation of delay was not new matter brought out in the evidence of defendants, but was set up in the affidavit of defense, so that the plaintiff had full notice, and could easily have met the allegation as a part of the case in chief. As such, it might have had some relevancy, but when offered in rebuttal it was properly excluded.

In the ninth assignment, plaintiff complains that he was not allowed to explain what he meant by certain testimony in the former trial, offered by defendants. The complaint seems to be well founded. We can see no reason for denying the right to make the desired explanation. The general rule is that a party has a right in rebuttal, to re-examine his witnesses as to matters that require explanation. But whatever error there may have been in this ruling, was corrected by the voluntary statement of the plaintiff himself in the further course of Iris testimony in which he did make a full explanation of the testimony referred to, by stating that there was no conversation between himself and Locke, with reference to a share in the oil at the time the lease was made. This statement by the witness cured any possible injury which might have resulted from the ruling complained of in this assignment.

The tenth assignment of error is not entitled to consideration because of its failure to quote the evidence excluded, and we are therefore' unable to judge as to its admissibility. If however as indicated, it excluded testimony as to Peter Swint’s declarations, the offer was clearly inadmissible and was rightly rejected.

The remaining assignments of error are to the charge of the court, and refusal to give binding instructions in favor of the plaintiff. We see no merit in any of them. By his own evidence the plaintiff showed that he was merely a cropper, and as such he could acquire no property interest in the oil which was the subject of the lease: McCormick v. Skiles, 163 Pa. 590. The plaintiff also admitted that there was no conversation when the Locke lease was signed, about a share of the oil. Under this evidence the court would have been justified in directing a verdict for defendants. In submitting the case to the jury, the trial judge gave the plaintiff the full benefit of every doubt.

The twentieth assignment is to the action of the court in affirming defendant’s sixth request for instructions. This 'point was however directly in line with the opinion of this court in Swint v. McCalmont Oil Co., 184 Pa. 205; and its affirmation was therefore entirely proper.

The assignments of error are all overruled and the judgment is affirmed.