eevry gas well drilled on said premises; said payment to be made on each well 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. 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 rentals alleged to be due under an oil and gas lease. Reversed. 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. 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 action is substantially as follows: "In consideration 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 within 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 day of October, 1910, at $300 per year, with interest on each of said payments from the day they became due respectively until paid, aggregating the sum of $2,100. The damage laid in the writ and declaration is $2,500. 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. To the same effect is Lowther Oil Co. v. Miller-Sibley Oil Co. 53 W. Va. 501, 97 Am. St. Rep. 1027, 44 S. E. 433, 22 Mor. Min. Rep. 656. But in Carnegie Natural Gas Co. v. South Penn Oil Co. 56 W. Va. 402, 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. gas in paying quantities. He also drilled an oil well. When the gas wells ceased to produce gas in paying quantities he stopped paying the annual rentals therefor, but because the oil well continued to produce oil, did not surrender the lease. The appellate court held that it was necessary for plaintiff to aver and prove that the gas wells continued to produce gas in paying quantities for the period for which rental was claimed; that the lease sued on was a lease to take the profit from land, and when the profit became exhausted the liability to pay the consideration therefor was abrogated. Citing numerous cases from Indiana, Pennsylvania, and Ohio. Indiana Natural Gas & Oil Co. v. Wilhelm, 44 Ind. App. 100, 86 N. E. 86, was an action for gas rentals under a lease providing that if gas was found in sufficient quantities to market, lessor's compensation should be a certain sum per well. The complaint charged that gas was found in sufficient quantities to be marketed, and to be piped away to market, and that there were good markets within 10 miles, and others farther away, where gas could have been delivered and sold at a profit to defendant. The jury were properly instructed, so the appellate court held, that in order to recover plaintiff must, by his evidence, affirmatively answer the question: "Did said wells, or either of them, produce gas in sufficient quantities to enable the defendant (appellant) to pipe the same away to market therefor, and realize therefrom and thereon a fair, reasonable, and just profit, everything considered?" Now, while the lease in that case provided for payment of gas rentals if gas were found in sufficient quantities to market, a provision not in terms contained in the lease involved here, was not the plaintiff here bound to allege and prove that gas was produced in such quantities, considering the time, place, circumstances, and conditions referred to, that defendant did or could by reasonable effort have marketed, sold, or used the gas, with some reasonable profit? We think this must have been contemplated by the parties when they made their contract. And as to plaintiff, we have him admitting on cross-examination, that his understanding, at the time, was that a gas well meant one that would be profitable to operate. It is contended, however, that as the evidence shows the well was inclosed by a casing head, the gas confined, and turned into a circuit line, and connected with other wells producing gas on an adjoining lease operated by defendant, and the gas from this line used in operating the wells on both leases, regardless of whether the gas from plaintiff's lease escaped to and was consumed on the adjoining lease, or vice versa, defendant should be required to pay the gas rentals for all the years covered by the declaration. We cannot bring ourselves to the conclusion that this is a just or reasonable interpretation of the contract. We find little in the adjudged cases throwing light upon this question. There is much evidence in the record showing and tending to show a custom prevailing in this state not to charge the lessee with gas when produced in small quantities along with oil, and used for operating the well on the premises, unless the contract specifically provides otherwise. In Wright v. Warrior Run Coal Co. 182 Pa. 514, 38 Atl. 491, 19 Mor. Min. Rep. 102, it was decided, that under the custom which prevails in the anthracite coal region, coal used by a lessee in the operation of the furnaces of the mine is not subject to royalties, unless provision is made therefor in the lease, and we think this rule ought to be made applicable to the production of oil and gas under an oil and gas lease. Applying this rule in the case in hand, what are the facts disclosed by the record? It is not alleged nor proven that defendant ever sold a foot of gas or reaped any profit from the gas produced from the well. The evidence is overwhelming that when the well in question was drilled, in 1904, there was practically no market for gas in the vicinity of this well, and there was absolutely no market for gas produced from wells of its caliber. Not a witness swears that defendant by proper effort could have sold this gas locally or to the large gas companies engaged in piping and marketing gas commercially. A well was drilled on an adjoining tract about the same time, by another company, producing oil and about the same quantity of gas from the same sands, and one of the owners of that well swears its operation as a gas well was not even considered; that there was no market for the gas produced from such wells in that vicinity. Besides, defendant company about the same time drilled other wells on the Michael lease adjoining plaintiff's land and got gas along with oil in some of them, particularly No. 5, which they say was much stronger in gas than the well on plaintiff's land, and which they made the greatest effort to dispose of as a gas well to the gas companies, but without success; that these gas com- | NEW JERSEY COURT OF ERRORS panies declined to take gas from wells pro There is some ducing gas along with oil. 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. Trial AND APPEALS. - jury marriage. 93 Atl. 724.) good faith of tender of 4. It is presumed that a marriage contract, where no time is fixed, is not intended to be performed more than a year after within the statute of frauds, requiring a its making, and therefore it does not fall 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 defendant did not intend to perform it, when in fact he permitted five years to elapse without having done so. Breach of promise tender. defense 5. Defendant's offer of mariage after breach is, as a rule, no defense. Same termination of contract. (Black, Terhune, and Williams, JJ., dis- 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. A 1191 a nonsuit, whether the "tender" was such as would PPEAL by plaintiff from granted by the Hudson County Circuit of the Supreme Court in an action brought to recover damages for breach of a promise of marriage. Reversed. The facts are stated in the opinion. Messrs. William D. Edwards, and William G. McLoughlin, with Messrs. Edwards & Smith, for appellant: 38 Cyc. 166, 167; 21 Enc. Pl. & Pr. 554; Kaufman v. Bush, 69 N. J. L. 645, 56 Atl. 291, 15 Am. Neg. Rep. 137; Hayward v. North Jersey Street R. Co. 74 N. J. L. 678, 8 L.R.A. (N.S.) 1062, 65 Atl. 737; Laragay v. East Jersey Pipe Co. 77 N. J. L. 516, 72 Atl. 57; Western Electrical Instrument Co. v. Benecke, 82 N. J. L. 445, 82 Atl. 878, Ann. Cas. 1913D, 11; Arrowsmith v. Van Upon the evidence as to the alleged "tender" of marriage by the defendant on the Harlingen, 1 N. J. L. 26; Shotwell v. Dennevening of January 15, 1913, a question ofman, 1 N. J. L. 174; 28 Am. & Eng. Enc. fact was presented which the trial court Law, 31; Nantz v. Lober, 1 Duv. 304; Potts had no right to withdraw from the jury, v. Plaisted, 30 Mich. 149; McPherson v. In 20 Cyc. 206, it is said generally with the time the English statute was passed "A were not actionable at law; but that, neverreference to this clause of the statute: verbal contract which is susceptible of com- theless, at an early day after actions on plete fulfilment within one year is not void such contracts became cognizable in courts under the statute of frauds because it is of law, the defense of the statute of frauds merely not likely or merely not expected to was interposed under that clause of the even statute which denies the right of action upbe performed within that time, or because it is probable that it will not be on any agreement made upon consideration so performed. The question is not what of marriage unless the agreement is in the probable, expected, or actual perform- writing, and, though it was held that such ance of the contract may be, but whether, clause related only to agreements for maraccording to the reasonable interpretation riage settlements, there seems to have been of its terms, it requires that it should not no doubt in the minds of the judges that The promises to marry were within the general be performed within the year. contingency upon which the performance of purview of the statute. the contract depends must be such as, in the ordinary course of nature, is likely to occur within a year." Under this general rule, the agreements in most of the cases have been held not to be within the statute, and the court was not called upon to decide whether a contract to marry was in its nature such as to come within the statute of frauds if it was not to be performed within a year. In the few cases in which the latter question has arisen, the courts have disagreed. On the one hand, it has been held that a contract to marry, not to be performed within one year, is within that clause of the statute of frauds providing that no action shall be brought upon an agreement that is not to be performed within one year from its making, unless in writing. Nichols v. Weaver, 7 Kan. 373. And in Ullman v. Meyer, 10 Fed. 241, 10 Abb. N. C. 281, it was held that a contract to marry, to be performed more than a year after it was made, was within the statute of frauds in New York; and it was held also that such contracts were not taken out of the statute by reason of the fact that, in the clause of the statute referring to agreements made upon consideration of marriage, there was an exception of mutual promise to marry, the exception being held to refer only to the clause in which it was found. In Ullman v. Meyer, supra, the court Also in Derby v. Phelps, 2 N. H. 515, it was held that a contract to marry which was not to be performed till the expiration of about five years was within the statute The court said that had the of frauds. agreement been that the contract should be fulfilled on a certain event which might or might not have happened within a year, but which in fact did not happen till after a year, the agreement would not have been within the statute; but that such was not the tenor of the agreement. It was said also that such contracts cannot be "taken out of the statute by the circumstance that when the original statute of frauds passed under Charles the II., these contracts were not sued at law, but were the subject of proceedings to merely For numerous kinds of compel a performance of them in the ecclesiastical courts. contracts, not then in use and not then prosecuted in the common-law courts, have since had birth under the new exigencies and improvements of society, and are all brought to the test of the general provisions of the statute." The weight of authority, it was said in Barge v. Haslam, 63 Neb. 296, 88 N. W. 516, affirmed on rehearing in 65 Neb. 659, 91 N. W. 528, seems in favor of the proposition that mutual promises to marry are within the inhibition of the provision of the statute of frauds avoiding contracts unless in writing which by their terms are not to be performed within a year. On a later appeal, 69 Neb. 644, 96 N. W. 245, the court, without deciding whether the instructions of the trial court were correct that a contract to marry, to be performed |