Clement v. Sneed Bros.

McCALEB, Justice

(concurring).

I agree with the majority that an intention to create a drilling obligation affecting solely Mrs. Clement’s lands is not indicated by the provision that the defendants would “drill or cause to be drilled a well on her land or on lands that would be pooled therewith” or'the provision that “there shall be enough acreage for the drilling of a well on the lease of Mrs. Ella Clement or the lands that shall have to be pooled therewith”. I also agree that there is no verbiage in the contract which shows that Mrs. Clement obligated herself to vol*239untarily unitize her lands with those of others.

However, I cannot agree that the above stated circumstances demonstrate that the Side Letter of Agreement, albeit inartisti-cally drawn, is ambiguous. It appears to me that the language of the agreement shows that Sneed Brothers obligated itself to drill, but had the choice of drilling on the land of Mrs. Clement, or on lands that would be pooled therewith. Since there were no lands "pooled therewith” at the time of the agreement, the parties obviously must have been looking to the possibility of pooling in the future and I think the agreement itself signifies the intention of the parties that a voluntary unitization agreement would be confected as soon as the “farm-out agreement”, which was then “in the trading stage”, was completed. Thus, even though Mrs. Clement was not obligated to pool her lands with others, a refusal by her to include her lands in a reasonable pooling arrangement amounted to her preventing Sneed Brothers from complying with its agreement to drill and released it from that obligation.

It must follow from this that, once Sneed Brothers no longer had an obligation to drill, it should have been able to keep the lease alive by no more than the proper payment of delay rentals as provided for in the lease. However, although Sneed Brothers alleged in its answer that it was entitled to have the lease extended for a period equal to the period of this litigation, it has abandoned this claim as it appears from the brief of its counsel submitted to this court that it is no longer contending that the lease is in effect. Therefore, the decree herein approving the judgment below to the extent that it cancelled the lease between the parties accords with the views I entertain.

The majority ruling herein produces unforeseen results insofar as Mrs. Clement is concerned. For, if the lease is null because of the lack of consent of the parties, Mrs. Clement is duty bound to restore the bonus of $35 per acre she received from Sneed Brothers as well as any rental payments, in order that the matter be placed in status quo. Yet, actually and factually, Sneed Brothers have had the right of entry on Mrs. Clement’s property for the exploration of minerals during the primary term of the lease.

It is for this reason, among others, that I cannot subscribe to the majority ruling. The principal cause in the case, as I see it, was the leasing of the property for oil development. A lease was made for a valuable consideration and this was all that was necessary to effect a binding contract.

True enough, a side agreement was made by which Sneed Brothers agreed to drill a well on the property or on property unitized therewith. The fact that a disagreement exists as to the intent of the parties in that agreement does not warrant a holding that the lease contract was a nullity.

Article 1823 of the Civil Code provides that “Errors may exist as to all the circumstances and facts which relate to a contract, but it is not every error that will invalidate it. To have that effect, the error must be in some point, which was a principal cause for making the contract, and it may be either as to the motive for making the contract, to the person with whom it is made, or to the subject matter of the contract itself”. (Italics mine).

Article 1825 declares: “The error in the cause of a contract to have the effect of invalidating it, must be on the principal cause, when there are several; this principal cause is called the motive, and means that consideration without which the contract would not have been made.” (Italics mine).

The principal cause, as I see it, for Mrs. Clement’s making the lease was the substantial bonus payment together with the rental she would receive. In addition, it was her desire that the lessee develop the property and this prompted the making of the “side” agreement. But the side agreement was not the principal cause or the “consideration without which” it can be *240fairly said “the contract would not have been made”. So, even if the majority opinion be correct in declaring that there was no meeting of minds anent the conditions under which a well would be drilled, it does not necessarily follow that the lease executed by the parties is a nullity.

I respectfully concur in the decree.