On August 29, 1895, appellee and wife entered into a contract with the Huntington Light & Euel Company whereby appellee, in consideration of $120, in hand paid, conveyed to the light and fuel company all the oil and gas in and under 242 acres of described real estate, together with the right to enter thereon for the purpose of drilling and operating for oil, gas or water, and to erect such structures and pipe-lines as should become necessary for the production and transportation of oil, gas or water from the premises. Appellee was to have one-eighth of all the oil produced and saved, to be delivered in pipe-lines connected with the wells. If gas only was found, appellee was to have $100 each year for each well. Further stipulations were in these words: “In case no well is completed within six months from this date, then this grant shall become null and void, unless second party [light and fuel company] shall pay said first party $120 in advance for each six months thereafter that such completion is delayed, and second party shall have the right to use sufficient gas, oil or water to run all necessary machinery for operating said wells, and also the right to remove all its property at any time. * * * All conveyances and agreements herein set forth between the parties hereto shall extend to their successors, heirs, executors and assigns.”
The Huntington Light & Euel Company assigned its interest in the contract to appellant Ohio Oil Company. After the initial payment of $120 at the time of the execution of the contract appellant Ohio Oil Company and its assignor advanced a like sum three times at the end of consecutive six-month periods, thus postponing to August 29, 1897, the time in which a well should be completed. In March, 1897, a well was sunk on the land by the company, which proved to be what is termed a “dry hole,” whereupon the company took down and removed from the premises its drill and other appliances. Ho further periodical, payments were made or tendered, and no further step was taken
The assignment calls in question the sufficiency of the complaint, and the overruling of appellants’ motion for a new trial.
1. The first assault upon the complaint is made in this court. The infirmities alleged are the absence of averment that the defendants are corporations, and that the defendants’ claim is a cloud upon the plaintiff’s title. The defendants are sued as the Huntington Light & Euel Company and the Ohio Oil Oompany. As to the last point,, the language of the complaint is “that the defendants’ claim is without right, and unfounded, and a cloud upon the plaintiff’s rights.” The complaint was good as against a demurrer, if one had been timely presented. There is no substance whatever in the last point, and it has been uniformly held in this State since the days of Judge Blackford (Harris v. Muskingum Mfg. Co. [1836], 4 Blackf. 267, 29 Am. Dec. 372), that in a complaint, where the name of the plaintiff or of the defendant is stated in such words as to imply a corporation, the party—plaintiff or defendant—-will be presumed to be a corporation until the fact is put in issue by a denial. Smythe v. Scott (1890), 124 Ind. 183; Adams Express Co. v. Harris (1889), 120 Ind. 73, 7 L. R. A. 214, 16 Am. St. 315; Indianapolis Sun Co. v. Horrell (1876), 53 Ind. 527.
2. Besides, the first attack, coming in this court, finds far less support, and, to be successful here, it must be pointed out that in the complaint there is a total absence of averment of some fact essential to the existence of a cause of action, or the presence of some averment that absolutely destroys the plaintiff’s right to recover. City of South Bend v. Turner (1901), 156 Ind. 418, 54 L. R. A. 396, 83 Am. St. 200, and cases cited.
Whether it proceeds from design of crafty speculators in oil and gas leases to enshroud their contracts with doubtful, ambiguous, inconsistent and absurd provisions, as a means of promoting their interests; or whether it comes from a custom in the rural districts of employing unskilled draftsmen, it is a notable fact that few subjects of contract contribute to the courts an equal proportion of written agreements for interpretation. The fact is so patent that courts generally, in gas and oil states, have come to place such contracts in a class of their own, and to look critically into such instruments for the real intention of the parties, because it so frequently happens that they can not, on account of incongruous provisions, be enforced according to the strict letter of the contract. Woodland Oil Co. v. Crawford (1896), 55 Ohio St. 161, 177, 44 N. E. 1093, 34 L. R. A. 62.
4. The mutual understanding and intent of the parties, as to purpose, scope and ultimate object to be attained by the contract, that inspired and accompanied its execution, is controlling, and must be determined, not by detached provisions, but by viewing the instrument as a whole. The contract before us belongs to a rare type. It contains no express covenant to be performed by the company. It contains no promise of the company that it will ever drill a well; no promise that it will renew the term of six months by payment in advance of $120, called “rent.” The sum total of the company’s unconditional agreement is that, if it failed to do one thing or the other— that is, if it failed for six months to complete a well, or advance $120 for another term—the contract should be at an end. This case is radically unlike the cases of Gadbury
In the case of Gadbury v. Ohio, etc., Gas Co., supra, it was stipulated that in case no well was completed within forty days from the date of the contract, the lease should he void, unless the company should pay the lessors $1 per day for the time completion was delayed heyond forty days. There was delay l)eyond forty days, and payment hy the company according to the contract.
In the case of Hancock v. Diamond Plate Glass Co., supra, no time was fixed for the commencement or completion of a well, and the contract was “deemed” to commence from its date, and to terminate whenever natural gas ceased to he used generally for manufacturing purposes.
In the case of Consumers Gas Trust Co. v. Littler, supra, no time was fixed for the beginning of operations, nor for the completion of a well, but a covenant by the company that it would pay $10 each year until gas was found in paying quantities, or until it was discovered that it did not exist.
5. In this, as in other contracts of its class, the manifest purpose of the parties was exploration, and the mining of oil and gas. But here, to say the most of it, the grant is inchoate, and not absolute. It purports, upon its face, to grant all the oil and gas under- the land, but in effect provides that, in consideration of $120,"the grantee shall have six months in which to decide whether it will accept the grant hy entering into possession and beginning the work of exploration. Viewed from end to end the contract amounts to nothing more nor less than a six-month option, with right of renewal, based upon a valid consideration, whereby the grantor bound himself not to lease the premises to another, and to give the grantee that length of
6. Another test: The rent, or option money, was paid, in accordance with the contract, to August, 1897, and included the six months ending at that time. Suppose, as the fact was, that thereafter for four years the company did not drill a well, make a payment, or have possession, and that appellee had at that time brought an action to recover .the hack rent, or option money; could it be said, under the contract, in such case, that nonassumpsit would not have been a complete answer? Could not the appellant Ohio Oil Company have successfully said to the appellee: “I did not promise to pay you money?” And it is certain that if said appellant had a right to enter after the expiration of the paid period, it was liable for the rent. Contractual rights and obligations are correlative. Eor very similar and instructive cases see Glasgow v. Chartiers Oil Co. (1892), 152 Pa. St. 48, 25 Atl. 232; Snodgrass v. South Penn Oil Co. (1900), 47 W. Va. 509, 35 S. E. 820. This leads us to the conclusion that the drilling of a dry hole in the spring of 1897, and then taking down the rig and removing all machinery and other property from the premises, accompanied with the failure to pay in advance for another six months, marked the end of contractual relations between appellee and appellant Ohio Oil Company’s assignor.
8. And we think the suit was well brought. Under the contract it had made, appellant oil company could not blow hot and cold with appellee, and postpone development of the land to suit its own good pleasure. It was a case of “fish or cut bait.” Having paid no money, completed no successful well, stopped operations, and quit the possession for more than seven months, it must be held that appellant Ohio Oil Company’s rights in the premises had ceased.
9. A return to the place six days after the commencement of this action, with tools and machinery, and the commencement of the third well, over appellee’s objection, did not better appellant Ohio Oil Company’s condition. Its rights in the land having been lost by a disregard of its obligation, or by the exercise of its option not to go on-with the exploration, its former rights could not, without appellee’s assent, be reclaimed by anything it did, or offered to do, subsequently to the bringing of this suit.
10. In the trial the court refused to allow a witness for the defendant to answer the following question: “Do you know how much money has been expended on that lease in constructing these three wells ?” The answer was properly refused for the reason, if for no other, that all the evidence shows that there had been but two wells drilled prior to the commencement of the suit.
11. Other questions as to the admission and exclusion of evidence are suggested, but not stated and presented as required by clause five of rule twenty-two of this court.
Judgment affirmed.