Dissenting Opinion.
Henley, J.It is said in the majority opinion in this case that: “To hold the appellee liable for a ratable part of the nnrmal rent accrued at the date at which the well became unprofitable seems to be just to both parties, and in accord with their intent, as expressed by the terms of the contract. We think the appellant is entitled to recover such ratable portion of the annual rent of $100 for the use of the well up to September 1, 1896, but that her claim for rent for subsequent years can not be sustained, inasmuch as at such periods the well was not producing gas as contemplated by the contract, and had been abandoned.” If this is a correct statement of the law as applied to the contract sued upon, does it not destroy plaintiff’s cause of action, and should not the demurrers directed to the answers have been sus*41tained to the complaint? Appellant was the plaintiff below, and, if the complaint is bad, the judgment ought to be affirmed, because it was not error for the court to overrule appellant’s demurrers to the answers of appellee,. even if we concede that they were bad. Grace v. Cox, 16 Ind. App. 150; McDonald v. Geisendorff, 128 Ind. 153; Indiana, etc., Ins. Co. v. Bogeman, 4 Ind. App. 237; Gould v. Steyer, 75 Ind. 50.
Appellant, if she recover at all, must recover upon the theory of her complaint; and her complaint must be construed upon that theory which is most apparent, and is most clearly outlined by the facts stated therein. For a case precisely in point, we cite Murray v. Cazier, 23 Ind. App. 600. Also, see, Dull v. Cleveland, etc., R. Co., 21 Ind. App. 571; Pittsburgh, etc., R. Co. v. Sullivan, 141 Ind. 83, 27 L. R. A. 840; Jones v. Cullen, 142 Ind. 335; Batman v. Snoddy, 132 Ind. 480; Cleveland, etc., R. Co. v. Dugan, 18 Ind. App. 435. With this rule as a guide, I think but one conclusion can be reached as to the theory of appellant’s complaint. The rental contract between appellant and appellee was for a tract of land twenty feet square, for which appellee was to pay as rental the sum of $18 per year; the rental to commence from the date of the execution of the contract. In addition to the $18 per year, the appellee was required, as a part of the consideration, to furnish natural gas for domestic use free of charge to appellant, which gas appellee was required to deliver in a main or pipe on a public highway nearest to the dwelling-house on said premises. The contract was executed January 21, 1891, and appellee agreed to furnish gas to appellant before the 1st day of February, 1891. Appellant’s complaint avers as facts that all the things above enumerated weré done and performed by appellee. The breach of the rental contract for which appellant seeks to recover is the alleged failure of appellee to perform the obligations imposed upon it by the following part of the contract: “And, as an additional *42consideration, the said second party [appellee] agrees to pay to said first party [appellant] an annual rental of $100 each year for each gas well drilled as aforesaid which produces gas in paying quantities sufficient for manufacturing purposes. Said payments to commence and become due and payable on the 1st day of September as to each of said gas wells after the completion thereof, and to continue thereafter annually during the continuance of this contract. Until the drilling of a gas well on said premises by said second party, they shall pay said first party an annual rental of $18, to be paid on the 1st day of September of each year at the office of the Diamond Plate Glass Company, Kokomo, Ind.” It is averred in appellant’s complaint that the rental of $18 per year was duly paid by the Diamond Plate Glass Company. The Diamond Plate Glass Company was the original second party named in the contract, appellee having whatever rights it has by assignment and transfer from said company. That said rental was paid until said gas well was drilled. “That said Diamond Plate Glass Company paid $100 rental maturing' under said lease on September 1, 1894, and the defendant [appellee] paid $100 rental maturing on September 1, 1895. That the rental of $100 maturing on September 1, 1896, $100 maturing on September 1, 1897, and $100 maturing on September 1, 1898, with interest from the several dates when the same became due, is still due to the plaintiff from the defendant, and wholly unpaid. Wherefore plaintiff prays a judgment therefor against the defendant with costs of suit.” The complaint, by its averments, shows upon its face that the well drilled upon appellant’s lands was by appellee abandoned before the maturing of the annual rentals for which judgment is demanded. The plain theory of the complaint, and the only one to which the pleading admits of or presents, is to hold appellee liable for an annual rental of $100, payable on September 1st of each year, beginning on the 1st day of September after the drilling of a gas well, and *43continuing as long as the contract shall exist between the parties; and appellant, in her complaint, demands judgment for the annual rentals and interest- which fell due after the abandonment of the well drilled upon the leased premises. Such annual rentals, the majority opinion holds, appellant can not recover. The reasons why she can not so recover are well stated, and are within the plain meaning of the language of the contract, making it useless to discuss them here. If W’e are correct as to the theory of appellant’s complaint, and the complaint is bad, then a bad answer is good enough for a bad complaint. If the complaint is good upon the same theory, then the opinion of this court is wrong, because it is therein stated that the annual well rental of $100 stopped whenever the well ceased producing gas in sufficient quantities for manufacturing purposes.
In order to reverse the decision of the lower court in this cause, it is necessary for this court to hold: (1) That the complaint is good; (2) that the third, fourth, and fifth paragraphs of appellee’s answer are bad. These answers are by the court held insufficient because they do not present a defense to appellant’s entire claim; in effect, that the rental of $100 per year was chargeable to appellee from the time said well was so drilled up to the 1st day of September following its completion: In support of the position that this holding of the court is erroneous, two reasons can be given: (1) The complaint does not seek to recover any such rental; (2) by the contract sued upon, and under which appellant must recover, if at all, the time at which the rental charge for a gas well was to commence was fixed at September 1st after the completion of a well. In this particular instance it would commence on the 1st of September, 1894, the vmll having been completed November 1, 1898. What has been said in regard to the theory of appellant’s complaint applies with equal force to the first reason advanced. As to the second reason, the words of the contract sued upon are as follows: “Said payments to com*44menee and become due and. payable on the first day of September as to each of said gas wells, after the completion thereof, and to continue thereafter annually during the continuance of this contract.”
If A rents of B a dwelling-house at $100 per month, under an agreement by which the payment of rent is not to commence until the 1st day of the month immediately following his taking complete possession of the property, would any court hold that, for the part of the month A occupied the premises prior to the 1st day of the following month when payment was to begin, that B could recover from A a ratable proportion of the stipulated monthly rent? Again, suppose A leases of B a house for a term of years at $50 per month. It is agreed in the lease that whenever B shall put an elevator in the building, A shall pay $75 per month, payment of said additional rental to commence on the first day of the month following the completion of the elevator. The elevator is put in the building and completed on the 15th day of.July. Could there be any question as to the amount of rent due from A for the month of July? Another illustration: A leases of B a tract of land twenty feet square, for which he agrees to pay an annual rental of $18. It is provided in the lease that if at any time A shall build a-slaughter house on said tract, he shall pay an additional rental of $100 per year; payment of such additional rental to commence on the 1st day of September following the completion of the house. Could such contract be interpreted to mean that A would be chargeable with the increased rent from the date of the completion of the house? I think not. I think the illustrations and the case at bar are precisely alike. "What else could the word “commence” in the rental contract mean, if any meaning at all is given it, when preceding the words “and become due and payable”? If the word “commence” is entirely omitted from the contract, it reads, “Said payments to become due and payable on the first day of September,” etc. With *45the word “commence” omitted, or given no meaning whatever, I can see how the contract could be construed as it is in the principal opinion. The time for the beginning of the rental year would then be the date at which the well was completed, and the time when that year’s rent would be due as fixed at the 1st day of September following the completion of the well. But giving the word “commence” its plain, ordinary meaning, what is the proper interpretation of this clause? Said payments (Payments of what? Most certainly of rent.) to commence, to begin, and to be due on a certain day. Not only is the payment of rent to commence then, but the rent is made due at that time. This rental was for the use of certain premises for certain purposes, and if appellee was to commence to pay for such use at a specified time, it cannot be inferred (nothing to the contrary being expressed in the contract) that compensation was to be demanded for such use prior to that time, under the same contract. The annual rental was payable annually in advance. It was undoubtedly the intention of the parties, and it is the plain meaning of the contract, that appellee should have the right to enter upon the premises at any time for the purpose of drilling a gas well. If the gas well, when completed, should furnish gas in quantity sufficient for manufacturing purposes, then, on the 1st day of September following, appellee should commence to p’ay an annual rent therefor. Eor the protection of the lessor, the rent is thus made payable in advance, and if the well is abandoned by the lessee the landowner can in no event lose more than the rental value from the date of the completion of the well to the time fixed in his contract when by agreement the payment of rent is to commence. When such charge shall commence is simply a matter of contract between the parties, as it was in this case, where the date from which payment was to commence was fixed at the 1st day of September following the completion of the well. No one *46realized this more forcibly than did the learned and able counsel for appellant when he drafted the complaint in this cause, seeking to recover, not rent accrued and due on September 1st immediately following the completion of the well on appellant’s land, but the annual rentals due on the 1st day of September of each year so long as the rental contract remained in full force and appellee held the possession of the premises under such contract. I am convinced that the conclusion reached by the majority in this cause is wrong, and that the judgment of the lower court ought to be affirmed.