The facts are stated in the opinion.
Messrs. Neely & Lively for plaintiff in

error.

Messrs. B. L. Butcher and Harry Shaw for defendant in error.

eevry gas well drilled on said premises; | rentals alleged to be due under an oil and said payment to be made on each well gas lease. Reversed. within sixty days after each well is completed, and to be paid yearly thereafter while it is a gas well," interpreted in the light of all the facts and circumstances surrounding the parties, their relation to each other, the objects and purposes of entering into the contract, and what they subsequently did under the contract, mean a gas well which, considering its location with reference to any market for gas, its capacity as a gas producer, can be profitably operated as such, and not a well producing oil in large quantities and some gas, and operated for many years by lessee as an oil well, and without demand for gas rental by lessor. Same

one or

rentals - use of gas.

2. The fact that some gas is found in more of the sands penetrated in drilling such well, and is afterwards run from the casing head into a gas line from wells on an adjoining lease operated by the same lessee, and the gas from all utilized in operating the wells on both properties, according to a custom prevailing among oil operators, does not render the lessee in such a lease liable to the lessor for annual gas rentals provided for in such lease.

E

(December 22, 1914.)

RROR to the Circuit Court for Marion County to review a judgment in plaintiff's favor in an action for the recovery of

see can, by reasonable effort, market or sell the gas with reasonable profit, but is also made to include wells which produce gas in such quantities that the lessee can use it on the premises with reasonable profit. There seems to be some disagreement between that case and Taylor v. Peerless Ref. Co. 14 Ohio C. C. 315, 7 Ohio C. D. 368, with respect to wells which produce gas in quantities sufficient to be used on the premises, the latter case holding that an oilproducing well which gives off enough gas to run boilers on the premises, but not enough to market, is not a gas well in the general sense in which it is used in a lease providing for the payment of a certain rental for each gas well located on the leased property. The latter case, however, does not make it clear just how much gas was used on the premises, and it may be that in this case there was not such a quantity that the lessee could be said to have used it with reasonable profit, as prescribed in the definition in PRICHARD V. FREELAND OIL CO.

No other cases have been found which attempt to define the term in the general sense in which it is used in gas leases. In a few cases, however, questions have arisen as to what kind of wells will satisfy specific clauses in oil and gas leases referring to the construction of wells. In these cases the wording on the part of the leases under

Miller, P., delivered the opinion of the court:

In an action by lessor against lessee to recover gas rentals alleged to have accrued to him from an alleged gas well drilled on his land, under his lease, the covenant of

the lease relied on as the basis of his ac-
"In con-

tion is substantially as follows:
sideration of the premises, the said party of

the second part covenants and agrees, 1st,
to deliver to the credit of the first party,
his heirs or assigns, free of cost in the
pipe line. one eighth (1) part of
all oil produced and saved from the leased
premises; and to pay three hundred ($300)
dollars per year for the gas from each and
every gas well drilled on said premises;
said payment to be made on each well with-
in sixty days after well is completed, and
to be paid yearly thereafter while it is a
gas well."

On the trial plaintiff obtained a verdict and judgment for $2,669,13, and to that judgment defendant obtained this writ of error.

The lease is dated October 14, 1903. The consideration governs the conclusions of the courts.

In Hazel Green Oil & Gas Co. v. Collier, 130 Ky. 132, 110 S. W. 343 (rehearing denied in 130 Ky. 139, 112 S. W. 1090), the sinking of a test well within one year, as required by the terms of an oil and gas lease, is held not to be sufficient to satisfy a clause providing for the extension of the term of the lease if "wells are completed during said term." The court says: "Reading these provisions of the lease together, we think it manifest that the writing draws a distinction between the test well, which it provides for, and other wells. In other words, the expression, 'provided wells are completed during said term,' means that other wells are to be completed during the term, besides the test well, and that the mere sinking of a test well during the term, without marketing the gas found in it, does not entitle the lessee to an extension of the term."

In Federal Betterment Co. v. Blaes, 75 Kan. 69, 88 Pac. 555, where a hole was drilled to the depth of 1,000 feet and then plugged up without being shot, it was held that a well had been drilled within the terms of the oil and gas lease providing for the forfeiture of the lease "if at any time after a well or wells have been drilled, six months shall elapse without any revenue being received by the lessors." E. L. D.

well in question, the only one drilled on uncontrolled, and uncontrollable, and finalthe land, was begun soon after the date of the lease and completed about August, 1904, and thereafter and up to the date of this suit, August 24, 1911, it was operated as an oil well, having produced some fifteen thousand barrels of oil, one eighth of which was delivered to the plaintiff lessor in accordance with the covenants of the lease.

Outside of his brother, who he says was a member of defendant corporation, but in what capacity he does not say, nor does it appear, and which he says was a year or two after the well was drilled, plaintiff does not pretend to have ever mentioned the subject of gas rentals, until about the time of bringing this suit. He never presented any bill, or made any demand for the gas rental. He says that about two years before giving his testimony on the trial at November term, 1912, he wrote the defendant company that he intended to make a demand for this rental, but did not tell them he expected to demand pay for five or six years back rent.

The declaration has the common counts in assumpsit, without bill of particulars, and a special count demands annual gas rentals alleged to have accrued to plaintiff under said lease, beginning with the day of October, 1904, to and including the

ly die, like some great giant, of self-exhaustion, a total loss to all concerned. Surely neither of these extremes could have been contemplated. Manifestly the parties contemplated a well having such a pressure and volume of gas, and considered with respect to its location, its proximity to the market, as could be operated profitably, and the gas utilized either on the leased premises, or disposed of commercially to others. True, we decided in McGraw Oil & Gas Co. v. Kennedy, 65 W. Va. 595, 28 L.R.A. (N.S.) 232, 64 S. E. 1019, with respect to a lease for oil and gas for five years "and as long thereafter as oil or gas, or either of them, is produced by the party of the second part," that the lessor could not forfeit it because he thought gas was not being produced in paying quantity, the lessee claiming that it was, and being willing to pay the stipulated sum for the well as a gas well. We held that it was for the lessee to say whether gas was being produced in paying quantities, acting in good faith. The ground of that decision was that as the lessor got the price of the gas well, he ought not to be heard to complain, if the lessee was willing to pay in good faith therefor, and to protect his lease for oil and gas from forfeiture.

day of October, 1910, at $300 per To the same effect is Lowther Oil Co. v. year, with interest on each of said pay- Miller-Sibley Oil Co. 53 W. Va. 501, 97 Am. ments from the day they became due re- St. Rep. 1027, 44 S. E. 433, 22 Mor. Min. spectively until paid, aggregating the sum Rep. 656. But in Carnegie Natural Gas of $2,100. The damage laid in the writ and Co. v. South Penn Oil Co. 56 W. Va. 402, declaration is $2,500. 49 S. E. 548, involving a co-operating conThe sole question presented on the trial tract, under which, if an oil well was deby pleadings and proofs, and by instruc-veloped by either, the oil company was to tions given and refused, and motion for a new trial, denied, is, what is a "gas well" within the meaning of the contract and the intendment of the parties?

One of the cardinal rules of construction, where there is ambiguity or uncertainty in the meaning of the words of the contract, is to take the instrument by its four corners and read and interpret it in the light of all the facts and circumstances surrounding the parties at the time of making the contract, their relation to each other, the objects and purposes of entering into the contract, and their actions and conduct at the time and subsequently, and the things done under the contract in the execution thereof.

Literally speaking, perhaps, a gas well is any well which produces gas. But it cannot be supposed that the parties to this lease meant a well which produced gas in such quantity that when ignited it should burn like a mere taper on the sacred altar, or, as sometimes happens, should send upward a screaming, hissing shaft of flame,

get the well, by paying the cost, and if a gas well was developed, the gas company should get it by paying the cost thereof, we decided, in effect, that "gas well" in the contract meant a well which developed gas in paying quantities, not a mere pittance of gas, or in a quantity that could not be marketed and used profitably by the owner.

In Roberts v. Ft. Wayne Gas Co. 40 Ind. App. 528, 82 N. E. 558, the lessor sued lessee for gas rentals alleged to be due him under a lease for oil and gas providing, if "gas is found in sufficient quantities to market the same," the lessor should be paid $100 per annum in advance for each gas well drilled, and that operations, should be commenced and four wells completed within four months from date, or all paid for after that time, and that if lessee should fail to perform such work or to pay the rental, he should in lieu thereof, and in full for damages for his default, pay annually during the term $100, for each of such wells. The lessee drilled the four wells within the time prescribed, and for a time produced.

but without success; that these gas com- NEW JERSEY COURT OF ERRORS

panies declined to take gas from wells producing gas along with oil. There is some evidence that by using an extra string of casing in a well producing oil and gas from different sands, the gas and oil can be kept separate, but that the casing is very expensive, and unless the well is of such caliber as to be profitable, and there is a market for it, the operator would not be justified in incurring the expense of putting in a double line of iron casing.

But it is contended that defendant con

nected up this well by a circuit pipe line with the gas wells on the Michael lease, and used gas from the Prichard well to operate the wells on the Michael lease, and burned it in a couple of houses on the Michael land. Now the facts are that gas from the wells on the Michael lease was first piped to the Prichard well in 1905, and used to clean out that well, and to run the tools for a fishing job defendant had on hand at that well. After the work of cleaning out the well and the fishing job had been completed, that well was connected to the pipe line that had brought the gas from the other wells, and all run together for the mutual benefit of both leases, and the testimony of defendant shows, or tends to show, that the wells on the Michael lease, so joined up, produced more gas than the well on the Prichard, and that in fact the Prichard well got more gas from the Michael lease than it got from the Prichard, and that, therefore, defendant got no kind of profit, from the gas from the Prichard, as it had gas enough from the Michael lease to operate the wells on that property.

But the strongest phase of the case in favor of defendant is, that the well was operated not as a gas well, but as an oil well. There is little evidence that anyone connected with the property ever thought of treating it as a gas well, until the oil production had run so low as to bring small returns to lessor or lessee, and gas had come more into demand. Then it was, after seven years of operating the well as an oil well, plaintiff seems to have conceived the notion that his well was also a gas well, and that he ought to have the back gas rental, as well as the oil royalty; wherefore his suit.

We do not think a case has been made entitling plaintiff to the gas rental, and we are of opinion to reverse the judgment

and remand the case for a new trial.

4. It is presumed that a marriage contract, where no time is fixed, is not intended to be performed more than a year after its making, and therefore it does not fall within the statute of frauds, requiring a promise not to be performed within a year to be in writing; and, as such a contract is possible of performance within a year, a jury would have a right to infer that the defendfact he permitted five years to elapse withant did not intend to perform it, when in out having done so. Breach of promise

defense tender. 5. Defendant's offer of mariage after breach is, as a rule, no defense. Same

termination of contract.
6. An offer on the part of the defendant
to fulfil the promise of marriage after his
refusal to do so, or a renewed offer in his
answer or in open court, is not a defense
unless it is made bona fide, and unless, also,
the plaintiff has not signified an intention
to regard the contract as at an end. These
questions are questions of fact, and are
for the jury.

(Black, Terhune, and Williams, JJ., dis-
sent.)
(March 1, 1915.)

Headnotes by WALKER, C.

Note. Promise of marriage as within statutes of frauds as to contracts not to be performed within a year.

whether a promise of marriage is within Most of the authorities on the question

the statute of frauds as to contracts not to be performed within a year have simply Petition for rehearing denied April 20, applied the general rule as to the construc

1915.

tion of this clause of the statute of frauds.

PPEAL by plaintiff from a nonsuit whether the "tender" was such as would granted by the Hudson County Circuit fulfil defendant's engagement. of the Supreme Court in an action brought to recover damages for breach of a promise of marriage. Reversed.