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Am. St. Rep. 894; Swift v. Broyles, 115 Ga., instructions are not properly assigned in 885, 42 S. E. 277, 58 L. R. A. 390. It fol the motion for a new trial, and therefore lows, and we so conclude, that appellee in cannot be reviewed in this appeal. Other this action, under the averments of the questions are presented and discussed by second paragraph of the complaint, is entitled appellant's counsel, some of which may be to recover for the depreciation or diminu said to be decided by our holding on the tion of the rental value of his property oc points raised in respect to the complaint, and casioned by the alleged nuisance and there in regard to the others it may be said that it fore the court did not err in allowing him to is not clear that they will necessarily arise at introduce evidence to prove such damages. the new trial. Therefore, these questions are

The record discloses that the court on its not considered. own motion gave six instructions to the jury. For the error in giving instruction No. 4 the The giving of each of these was assigned by judgment below is reversed, and the cause appellant in its motion for a new trial. No. | remanded, with instructions to the lower 4 of these instructions is as follows: "No. | court to grant appellant a new trial and for 4. In determining the issues in this case you further proceedings not inconsistent with this should take into consideration the whole of opinion. the evidence and all the facts and circumstances proved on the trial, giving the several MONKS, J., did not participate in the de. parts of the evidence such weight as you cision of this case. think they are entitled to. And the court instructs you that when witnesses are otherwise equally credible and their testimony

(166 Ind. 211) otherwise entitled to equal weight, greater

STATE v. SIMPSON et al. (No. 20,703.) weight and credit should be given to those (Supreme Court of Indiana. Feb. 21, 1906.) whose means of information were superior On petition for rehearing. Petition overand also to those who swear affirmatively to ruled. a fact rather than to those who swear For former opinion, see 76 N. E. 544. negatively or to a want of knowledge or

C. W. Miller, Atty. Gen., and C. C. Hadley, recollection.” (Our italics.) Appellant's coun

W. C. Geake, Henry Dowling, and C. G. Scosel assail this instruction, and insist that

field, for the State. George A. Knight, for the giving thereof to the jury constituted

appellees. reversible error. In this contention we concur. An instruction identically the same as MONTGOMERY, J. Counsel for appellees that portion of the one in question which earnestly insists that the charge in this case we have embraced in italics was condemned | does not show with required certainty, that by this court and held to constitute reversi the person intended to be defrauded is the ble error in Jones v. Casler, 139 Ind. 382, one whose name is alleged to have been 38 N. E. 812, 47 Am. St. Rep. 274. The ques forged; and in support of this contention tion relative to the weight of the evidence cites, Shinn v. State, 57 Ind. 144, and Yount was one wholly for the determination of the v. State, 64 Ind. 443. In the Shinn Case the jury. That the trial court in giving the accused was charged with having uttered a charge in controversy clearly invaded the forged note purporting to have been executed province of the jury and therefore erred, is by "S. B. Skinner" with intent to defraud settled beyond controversy, not only by the "one Solomon B. Skinner," and upon appeal holding in Jones v. Casler, supra, but also by this court said: “It cannot be inferred the following cases: Blizzard v. Applegate, either as a matter of factor of law, that 61 Ind. 368; Fulwider v. Ingels, 87 Ind. 414; Solomon B. Skinner was the person meant Shorb v. Kinzie, 100 Ind. 429; Cline v. Lind- ! by 'S. B. Skinner,' which was subscribed to sey, 110 Ind. 337, 11 N. E. 441; Durham v. the note on which the charge of forgery was Smith, 120 Ind. 463, 22 N. E. 333; Newman predicated. So far as mere inference can v. Hazelrigg, 96 Ind. 73; Finch V. Bergins, go, and that is all, apparently, that is relied 89 Ind. 360 ; Lewis v. Christie, 99 Ind. 377 ; upon in the second count of the indictment, Billings v. State, 107 Ind. 54, 6 N. E. 914, it would be just as reasonable to infer that 7 N. E. 763, 57 Am. Rep. 77 ; Indianapolis St. Stephen, Silas, Solon, Smith, Samuel, or Saul Ry. Co. v. Taylor, 164 Ind. 155, 72 N. E. B. Skinner was the person meant or intended 1045, and cases there cited. There is a by the name 'S. B. Skinner,' as to infer that sharp conflict in some essential respects be Solomon B. Skinner was the person thereby tween the witnesses who testified in behalf meant and intended. Such a matter as this of appellant and those who testified on the ought not, in our opinion, to be left to mere part of the appellee, and under the circum inference in an indictment." In the Yount stances there is nothing in the record to dis- | Case, the defendant was charged with hav. close that the instruction in question was not ing forged a note payable to "E. J. Schweitprejudicial to appellant. The latter com zer" and having the indorsement "E. J. plains of the action of the court in giving Schweitzer,” with intent to defraud one certain instructions at the request of ap- | "Emily J. Schweitzer," and this court held

and in refusing others over its re- the indictment insufficient, upon the author. quest; but the alleged errors in giving these ity of the Shinn Case. It is a well-settled

-EFFECT.

THE THEATER

principle of criminal pleading, that the full 3. TRIAL-QUESTIONS OF FACT AND LAtian and surname of persons mentioned REASONABLE TIME.

What is a reasonable time within which to should be given, unless the same are averred

perform an act is usually a question of fact, to be unknown. Gardner v. State, 4 Ind. 632; | though, if the facts are undisputed or clearly Zellers v. State, 7 Ind. 659; Gordon v. State, established, it may be a question of law. 59 Ind. 75; Burton v. State, 75 Ind. 477. It is

4. PRINCIPAL AND AGENT—PAYMENT TO AGENT evident that the decision in the cases cited in

Where an oil and gas lease provided for a behalf of appellees rested primarily, if not certain annual rental. and stipulated that a wholly, upon that principle; and, consequent deposit in a certain bank to the credit of the ly, it was held that the identity of persons

lessor should constitute payment, a deposit

of a payment after the expiration of the term was not sufficiently shown in the indictment

limited by the lease, which payment was acceptby the use merely of initial letters of the ed by the bank without notice from the lessor Christian name.

not to do so, was in effect a payment to the The charge in the case under considera

lessor. tion is wholly different. In the first and Appeal from Circuit Court, Wells County; second counts of the information, the name Edwin C. Vaughn, Judge. appearing to the alleged forged notes is Action by the American Window Glass "William Baxter, Sr.," and it is a verred Company against the Indiana Natural Gas & that the notes were uttered with intent to Oil Company and others. From a judgment defraud "the estate of said William Baxter, for defendants, plaintiff appeals. Affirmed. Sr." In the third count the notes purport

Carroll & Dean, Dailey, Simmons & Dailey, to have been signed by "William Baxter,"

and Cantwell & Simmons, for appellant. W. and it is charged that they were forged with

0. Johnson, W. H. Eichhorn, Miller, Elam & intent to defraud "the estate of William

Fesler, and Blacklidge, Shirley & Wolf, for Baxter, now deceased." The cases cited are

appellees. not decisive of the question before us. The identity of name in the present charge is ex MYERS, J. The parties to this action are act, and it requires no presumption or infer- each claiming to be the owners of the paturence to justify the belief that but one personal gas, oil, and other mineral substances by that name was mentioned. It is only by underlying certain real estate in Grant counindulging in speculative doubts that we may ty, Ind., with the exclusive right to enter become fairly uncertain whether the pleader upon, prospect, and remove such mineral had in mind two persons of the same name, substances therefrom; such ownership being or only one. We are of opinion that the based upon certain contracts or leases exeaffidavit and information are sufficiently cer 'cuted by the landowners, and not otherwise. tain in this respect.

The claim of appellee is founded upon four The petition for a rehearing is overruled. separate leases, two executed April 5, and

two March 12, 1888, by the then landowner,

James S. Wilson, to one Leonard H, Best, and (37 Ind. App. 439)

by virtue of various written assignments of AMERICAN WINDOW GLASS CO. V. IN these leases, thereafter made, on July 1, 1890, DIANA NATURAL GAS & OIL CO. appellee became vesteď with all the rights et al. (No. 5,488.)

of the original lessee. These leases and as(Appellate Court of Indiana. Division No. 1. signments were all duly recorded prior to the March 9, 1906.)

execution of the leases under which appellant 1. MINES AND MINERALS-OIL AND GAS LEASE

claims the ownership of said gas, oil, etc. -CONSTRUCTION-LENGTH OF TERM.

The leases to appellant, two in number, were Under an oil and gas lease, giving the executed on April 15 and June 18, 1901, by lessee certain rights "for a term of 12 years,

Frank Wilson, Louie Wilson, his wife, and and so long thereafter as petroleum, gas, and mineral substances can be procured in paying

Frank Wilson, guardian of Wade H. Wilson, quantities or the payments hereinafter pro grantees of James S. Wilson. All of said vided for are made," the word "or" should be leases, in so far as they affect the question read "and,” so that the term was limited to 12 years, unless oil or gas was procured.

here for decision, are practically of the same

tenor. 2. SAME_EXPIRATION OF TERM_RIGHT TO DECLARE FORFEITURE-WAIVER.

The overruling of appellant's motion for a Where an oil and gas lease gave the lessee new trial is assigned as error. The reasons a right to explore the land for oil and gas for a

assigned for a new trial are: (1) The deperiod of 12 years, and so long thereafter as

cision of the court is not sustained by suffoil or gas should be produced, and provided for the payment of annual rentals, the acceptance

cient evidence. (2) The decision of the court of an annual payment after the expiration of is contrary to law. Under this assignment the 12-year period, and the execution of a re

of error appellant insists that at the time of ceipt stating that the payment continued the lease in form for another term, did not extend

the execution of the leases to it the leases the lease for an additional term of 12 years, by James S. Wilson to Best were without but did constitute a waiver of the right to force and effect and no longer enforceable claim a forfeiture at the end of the 12-year period, so as to entitle the lessee to notice and

against the property owner. If this be true, a reasonable time thereafter to comply with the

the judgment must be reversed. Therefore terms of the lease before forfeiture.

the determination of appellee's claim to the oil and gas will be decisive of this controver- | upon said real estate over the objections and sy. The leases under which it claims stipu orders of such landowners, and constructed late that "for the purpose and with the ex derricks, and continued its operations thereclusive right of drilling, mining, and operat on until it had constructed five gas wells, ing for petroleum, gas, or any mineral sub and was about to cominence piping the gas stance on said land, and appropriating the therefrom, when appellant applied for and said products so obtained to his own use and obtained a temporary restraining order henefit, except as hereinafter provided, and against appellee company, restraining it from removing the same from said land for the piping or removing any gas or oil from said term of 12 years and so long thereafter as wells; that appellant has complied with all petroleum, gas, or mineral substances can the terms and conditions of the leases under be procured in paying quantities or the pay which it is claiming the right to such gas ments hereinafter provided for are made ac and oil. Upon final hearing the restraining cording to the terms and conditions attaching order theretofore issued was dissolved, and thereto, * and the right to erect a finding and judgment entered for appellee. * * * machinery, tanks, pipe lines, and It will be noticed that the leases under other property necessary for the prosecution | which appellee is claiming gave to it cerof said business, and right of way over, tain expressed rights "for a term of 12 years * * * and, should gas alone be found in and so long thereafter as petroleum, gas, or sufficient quantities and under circumstances mineral substances can be procured in pay. making it profitable to pipe the same to other ing quantities, or the payments hereinafter localities, the said party of the second part provided for are made according to the terms shall pay to the said party of the first part and conditions attaching thereto." This lan$100 per annum for the gas from each well, guage is said to be ambiguous and uncertain when so utilized, and sufficient gas to heat as to meaning. This is true, but the ambiguiand light the dwelling on said premises, said ty is caused by the use of the word “or," inpayment to be accepted by the said party of stead of "and," thereby subjoining the stiputhe first part as full consideration and in lation, "the payments hereinafter," etc., as lieu of any other royalty, * * * to com an alternative. This was not the intention mence operations for said drilling and mining of the parties. It would be unreasonable to purposes within one year from the execution suppose that in one breath they would be so of this lease, or in lieu thereof, for delay in careful in fixing the time when the leases commencing such operations and as a consid were to expire and in the next undo it all eration for the agreements herein contained, by stipulating for a nominal annual payment thereafter to pay * . $36.00 per an to run indefinitely. The 12-year clause was num, payable in advance each year until incorporated into the leases for a purpose, such operations are commenced and a well and it is the duty of the court to so construe completed. A deposit to the credit of the the contracts as to give them effect, if it can party of the first part in the Marion Bank, be done consistent with the rules of law, to of Marion, Indiana, shall be considered a the end that the intention and purpose of the payment under the terms of this lease.”

parties may be effectuated. To our minds The undisputed facts in this case, other the language of the leases last above quoted than those shown by the leases and as here evidences an intention on the part of the lestofore stated, are that on February 1, 1893, sor to grant to lessee the exclusive right for Frank and Louie Wilson and Wade H. Wil. the term of 12 years to operate upon said son, by conveyance from James S. Wilson, land for petroleum, gas, etc., or the right became the owners of the land described in to delay such operation for such term by paythe complaint; that all rentals for the delay ing a certain stipulated annual sum as comin developing the lands, until February, pensation for such delay; but, in case lessee March, and April, 1901, were duly paid and should in the meantime explore such land and accepted by the landowners; that the rentals procure the granted product in paying quanti. for the years 1901 and 1902, ending Febru ties, while this condition existed the lease ary, March, and April, 1903, were by appel would continue, although it may go beyond lee deposited in the Marion Bank of Marion, the limit of the 12-year period. The evident Ind.; that the landowners had not per intention of the landowner was to have his sonally, nor does it appear that any one on land developed, and the lessee by the 12-year their behalf had, notified the bank not to stipulation in the leases is given an agreed receive such rentals; that the rental for the fixed time within which to develop the land year ending in 1901 was paid in February or and provide a way of utilizing the mineral March, 1900, by a representative of appellee, substances thus obtained. Therefore, in our to said Frank Wilson; that the landowners, opinion, had the landowners, at the end of after said last payment, did not receive any the 12-year term, notified appellee that they payment from appellee or from said bank; would not receive any further payments, and that appellee did not, nor did its assignors refused to accept the same, and before payor any other person on its bebalf, ever take ment to the bank gave it notice not to repossession of the real estate for any purpose ceive any payments for their use and beneprior to May 1, 1902; that on said last date | fit on account of these leases, the rights of appellee, by itr agents and servants, entered | appellee under the leases would have terminated. American Window Glass Co. v. facts are undisputed or admitted, or are Williams, 30 Ind. App. 685, 66 V. E. 912; In- clearly established, "reasonable time" bas diana Natural Gas & Oil Co. v. Grainger, 33 been held to be a question of law; bnt should the Ind. App. 559, 70 N. E. 395; Western Penn. I question of reasonable time depend upon any Gas Co. v. George, 161 Pa. 47, 28 Atl. 1004; controverted facts, or "where the motives of Cassell v. Crothers, 193 Pa. 359, 44 Atl. 446; the party enter into the question, the whole Murdock-West Co. v. Logan, 69 Ohio St. 514, is necessary to be submitted to a jury before 69 N. E. 984; Brown v. Fowler, 65 Ohio St. any judgment can be formed as to whether the 507, 63 N. E. 76; Northwestern, etc., Co. V. time was or was not reasonable." Words City of Tiffin, 59 Ohio St. 420, 54 N. E. 77; and Phrases, 5977. In Scannell v. American Bettman v. Harness, 42 W. Va, 433, 26 S. E. Soda Fountain Co., 161 Mo. 606, 61 S. W. 889, 271, 36 L. R. A. 566. The facts here show reasonable time is defined to be such "time that the property owners accepted from ap that preserves to each party the rights and pellee the thirteenth advance annual pay advantages he possesses, and protects each ment, in the same amount and for the same party from losses that he ought not to sufpurpose as theretofore paid by appellee under fer.” To the same effect is the language of its leases; that they acknowledged such pay the court in Bowen v. Detroit City Ry. Co., ment by executing a receipt therefor, which 54 Mich. 496, 20 N. W. 559, 52 Am. Rep. receipt includes the statement, "which pay- | 822. The court in Cameron V. Wells, 30 ment continues said lease in force for an- | Vt. 633, quotes from Graham V. Van Die other term.” In our opinion this transaction inan's Land Co., 11 Exch, 101, that "reasonalone would not be sufficient to extend such able time will not begin to run until some one leases for an additional term of 12 years, interested in the matter calls for something but it is sufficient to constitute a waiver by to be done respecting it." the landowners of the definite time of ter The only landowner who testified in this mination therein fixed. It was therefore a case was Frank Wilson. In this matter he waiver of their right to claim a forfeiture seems to have been acting, not only for himof the leases at the end of the 12-year period, self, but also for his wife and as guardian of and effective to require notice to the lessee Wade H. Wilson. He received what is and a reasonable time thereafter to comply termed "land rentals" for the year ending with the terms of the lease before forfeiture.

in 1901 from a Mr. Branch, representing apThere is no claim of fraud or bad faith any. pellee. Branch died prior to the trial of this where in this deal, whereby the landowners cause. From the testimony of Wilson it were overreached or induced to grant such appears that in February or March, 1900, and waiver. It must be presumed that they accept at the time he received such rentals, Branch ed the thirteenth payment with full knowledge told him “they were going to operate the of all the facts, as well as its legal effect. They lease next year, making preparations." The were at liberty to insist upon a termination witness was then asked the following quesof the leases according to their terms or to tion: “I will ask you if you did not state waive such stipulations. For a valuable con to him, in that connection, that unless they sideration they choose the latter. By their did operate that lease that you would not perown voluntary choosing they must be content. mit them to hold it any longer ?" Answer: Therefore to give the transaction the force “Yes, sir." This seems to be all that occurred we have ascribed to it does not take away between the parties at the time the payments from the landowners the right to declare a were made in 1900 with reference to when forfeiture of such leases; but before they operations on these lands were to commence. would be entitled to such forfeiture, under Whether the parties considered this converthe decisions of our Supreme Court applica sation as referring to the calendar year ble to this special class of contracts, they must 1901 or the year for which appellee was give appellee a reasonable time in which to de making payment, would make but little ditvelop the lands after notice of such intention, ference, as appellee, without any notice from Consumers', etc., Co. v. Littler, 162 Ind. 320, the landowners that they would not receive 70 N. E. 363; Consumers', etc., Co. v. Worth, any more payments, paid to the bank, as pro163 Ind. 141, 71 N. E: 489; Consumers', etc., vided in the leases, the fourteenth annual Co. v. Ink, 163 Ind. 174, 71 N. E. 477; La payment when it became due. Such par. fayette Gas Co. v. Kelsay, 164 Ind. 563, 74 | | ment, being accepted by the bank for the use N. E. 7; Indiana, etc., Co. v. Beales (Ind. of the Wilsons, and without notice from Sup.) 76 N. E. 520. In this class of cases a them not to do so, in a legal sense constituted reasonable time, as a rule, is a question of a payment to the Wilsons, and by reason fact and not one of law; for its determina thereof extended the leases until 1902. Lation largely depends upon the circumstances fayette Gas Co. v. Kelsay, supra; Indiana, surrounding the particular case and the means etc., Co. v. Beales, supra. But, aside from and ability of the person by whom the con the payments made to the bank, nothing furtract is to be performed. See Consumers', ther was said or done by either of the par etc., Co. V. Littler, supra, page 329 of 162 ties until about the time the payments for the Ind., page 363 of 70 N, E.; Island Coal Co. v. fourteenth year became due, which was in Combs, 152 Ind. 379, 387, 53 N. E. 452; Ran February and March, 1901. Some time in dolph v. Frick, 57 Mo. App. 400. Where the the latter part of January, 1901, a representa

tive of appellant called upon Wilson relative knowledge of appellees' leases and was claimto leasing the same lands covered by the ing the gas and oil privileges covered by leases of appellee, and was told by Wilson them. Therefore upon this feature of the that he would not do anything about leas- case we are inclined to the opinion that ap ing the land until he had beard from the pellant occupied no better position than its Chicago parties, meaning appellees. But lessors, for the reason that it cannot be we find no evidence in the record where the regarded as a bona fide lessee for value withmatter was taken up with appellees, nor do we | out notice. find any evidence showing any further notice Judgment affirmed. to appellees of intention to terminate the leases, nor do we find any evidence of notice to the bank not to receive such rentals, al

(37 Ind. App. 435) though Wilson acknowledged having received MULLEN V. CLIFFORD et al. (No. 5,565.) notice from the bank that it had received the (Appellate Court of Indiana, Division No. 1. same for his account. The first positive

March 8, 1906.) steps taken by the Wilsons to forfeit the COVENANTS—WARRANTY-BREACH. leases, as shown by the evidence, was when A deed of a lot made on January 6, 1902,

provided that it was subject to assessments for they leased the land to appellant. As we

street improvement after 1901. At the time of have said, these latter leases were made in

the deed certain installments of an assessment April and June, 1901. Under this state of for the improvement of a street were a lien facts we cannot say, as a matter of law, that against the lot, and installments of an assess

ment for the improvement of another street, appellee was called upon to do anything to

which were primarily a lien against another lot, ward developing the lands prior to the at would, under the statute, become a lien against tempted forfeiture in April and June. The the lot sold if the other lot should not on sale testimony of Wilson covers 50 typewritten to satisfy the assessments bring enough for

that purpose. This contingency afterwards pages of the record, and from a careful ex

arose. Held, that there was no breach of the amination of his testimony we think its

covenant of warranty in the deed. weight and the inferences to be drawn therefrom are matters for the trial court, and its

Appeal from Circuit Court, Madison Counconclusion upon the questions of notice to

ty; Henry C. Ryan, Judge. appellee, and as to reasonable time in which

Action by John Mullen against Elmer Clifto develop the territory were questions of fact,

ford and others. From a judgment for deand the court's finding thereon, ought not fendants, plaintiff appeals. Affirmed. to be disturbed on appeal.

Ellison & Ellis, for appellant. Byron Mc Any delay by appellee in the beginning or Mahan and Jno. C. Teegarden, for appellees. prosecution of the work, after the execution of the leases to appellant, have no bearing ROBINSON, J. Suit by appellant for upon the decision of this case. Consumers', breach of covenant of warranty. On Januetc., Co. v. Ink, supra. Appellant confidently ary 6, 1902, appellee conveyed to appellant, relies upon the case of Bettman v. Harness, by deed of general warranty, lot 116 in Evasupra, for a reversal of the judgment in the lyn addition to the city of Anderson. The case at bar. We admit the case is exceeding- deed was in the ordinary form, except the ly persuasive of appellant's views; but under provision: "Subject to assessments for the construction given this class of contracts street improvement after 1901." Prior to and the law, as declared by our Supreme that time the city had improved Locust street Court on the question of reasonable time to and assessed lot 114, which lies lengthwise lessees, the Bettman Case on the question of on the street, and adjacent to this lot and the extension of leases is not applicable. within 150 feet of the street are lots 115 and Therefore, if this appeal was prosecuted by 116. The assessment against 114 was $195, the landowners, the judgment should be which, the owner having signed the waiver, affirmed.

was given the privilege of paying in installThe remaining question in the case de. ments; the first installment being payable in pends upon whether appellant had knowledge 1895 and the last in 1904. On May 2, 1901, of appellees' right at the time it accepted the the holder of Locust street improvement leases under which it is claiming. Of the re bonds brought suit to foreclose the lien of corded leases and their assignments it was the assessment against lot 114 and other bound to take notice. The evidence is undis. lots, and a decree was rendered July 28, 1902, puted that it knew of the payments and ex. and the lots subsequently sold under the detension of the leases for the additional period cree; appellant purchasing the same, paying of one year. It knew that pending its nego- | $100 for lot 114, $110 for lot 115, and $108.97 tiation for the leases, and at the time it re for lot 116. Appellees were parties to this ceived the same, that appellee had deposited suit. Appellant was not. Among the dein the Marion Bank money for the use of the fendants in that action was the holder of landowners, in an amount sufficient, under Second street improvement bonds, who filed the stipulations of its leases, to cover a peri- a cross-complaint, asking to foreclose a lien od ending in 1902. From these facts, and against lot 114 and other lots; Second street other evidence in the record, the trial court running in front of lots 114, 115, and 116. was authorized in finding that appellant had | In the decree the lien of this cross-complaint

76 N.E.-64

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