This was an action by appellee against appellants to enforce the payment of alleged rentals, claimed to be due him by virtue of a gas and oil lease.
From-a judgment in favor of appellee, appellants appeal, and assign as errors: (1) That the complaint does not state facts sufficient to constitute a cause of action; (2) the sustaining of appellee’s demurrer to the amended third para
This is the third appeal. Heller v. Dailey (1902), 28 Ind. App. 555; Heller v. Dailey (1905), 34 Ind. App. 424.
1. The complaint is first questioned in this court by an assignment of error that it does not state facts sufficient to constitute a cause of action. The only objection urged against it is that it fails to aver a breach of the contract. But the complaint not only avers that appellant failed to comply with the terms of the lease, but specifically states in what particular it failed. On each of the former appeals the court impliedly held the complaint sufficient in sustaining the demurrer to the answer.
2. It is true, the complaint shows an assignment of the lease, but it was held on the first appeal that the assignment did not release appellants from liability on the express covenant to pay contained in the lease. After judgment the complaint is sufficient to withstand the present attack.
3. Considering the second error, it will be observed that upon the first appeal (Heller v. Dailey [1902], 28 Ind. App. 555) the answers of the present appellants were held insufficient, upon the ground that they attempted to plead a parol surrender of their interest in the land which was granted in the lease. It was further held that the assignment of the lease on which action is brought did not relieve the assignors from liability on the express covenant therein. When the case went back for trial, appellants filed amended answers, which the court on appeal held to be substantially alike, and the substance of which is given in the opinion on the second appeal (Heller v. Dailey [1905], 34 Ind. App. 424). In that appeal it was held that the 'amended answers' did not constitute any different defense from that set up by the answers which were held insufficient on the first appeal, and the judgment was reversed, with instructions to sustain the demurrer to these answers. The
5. The reasons assigned for a new trial and argued are that the decision of the court is not sustained by sufficient evidence, and is contrary to law. In our opinion, the' evidence in the record is sufficient to support the finding of the trial court. It is true that the complaint shows an assignment of the lease, but no facts are pleaded in the complaint which can be said to show that appellants were relieved from the rental obligation by any assignment, and it is stated in appellants’ brief that "the appellants do not mean to.assert that by the assignment of the property they were relieved of the rental obligation. ’ ’ The evidence shows that appellants drilled but two wells, and that the time had long since passed within which they were to drill the other wells called for by their agreement in the lease. Prom the direct evidence given and the inferences that could properly be drawn from this evidence, it cannot be said that the evidence failed to show a breach of the contract. The motion for a new trial was properly overruled.
6. The motion to modify the judgment was based upon the theory that appellee in no event was entitled to more than $1 per day for the delay in sinking wells, instead of $3, as found by the court. It was not error to overrule the motion. The lease provides:
"In case no well is completed within sixty days from this date, then this grant shall be null and void, unless second party shall pay to the said first party $1 per day in advance for each day thereafter such completion is delayed. * * * And it is further agreed that the parties of the second part shall drill a well at the ratePage 384of one well every sixty days after date until five wells are completed. In case any well is not completed in said sixty days, as before provided for, parties of the second part shall pay $1 per day in advance until said well is completed.”
Two wells were drilled. The lease means that one well should be drilled within sixty days from the date. of the lease and another within one hundred and twenty days from that date, and not within sixty days from the completion of the first well. The time for drilling each well is definitely fixed in the lease, and does not depend upon any contingency. Bettman v. Shadle (1899), 22 Ind. App. 542. It appears that within 120 days from the date of the lease the two wells were completed. The parties were carrying out the provision ‘ ‘ of one well every sixty days after date, ’ ’ and they were-required to continue so doing until “five wells are completed.” Then follows the provision that “in case any well is not completed in said sixty days, as before provided for, parties of the second part shall pay $1 per day in advance until said well is completed.”
7. The first provision in the lease, providing a penalty for failing to drill a well within sixty days of the date of the lease, is not to be considered in determining the liability for failure to drill the last three wells, for the reason that this provision became ineffective after the first well was drilled within the time fixed, and the liability for failure to drill the wells for 'which this suit was brought is to be determined by* the concluding clause before set out.
8. It is true, the lease does not say that the lessee shall become liable for $5 or $4 or $3 per day; but, a well having been drilled within sixty days from the date of the lease, it does say that for the failure to drill any well within these sixty-day periods the lessee shall pay $1 per day until that well is completed. The parties to the contract expressly stipulated not only the number of wells that should be drilled, but when each one of that number should
9. Its haying been suggested that Michael Dailey, one of the appellants herein, has died since the submission of this cause, the judgment on appeal is ordered entered as of the date of submission.
Judgment affirmed.