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was again tried. That court made findings found "did not produce oil sufficient to pay of facts which support the allegations of for operating the same at one-sixth royalty the answer as to the agreement to change as prescribed in the lease.” That court furthe royalty from one-sixth to one-eighth, but ther found that the defendants, now plaintheld that the agreement, not being in writing, iffs in error, informed the plaintiff, Amos, is within the statute of frauds, and therefore that they would abandon said premises and void. The defendant in error has filed a surrender said lease, unless he would agree cross-petition in error, alleging, in part, that to reduce the royalty stipulated therein from the findings of fact are not justified by the one-sixth to one-eighth, and they proposed evidence. These findings of fact are further that, if he would make that reduction, they noticed in the opinion. The court made a de- would proceed to further drill and operate cree for the plaintiff against the plaintiffs in the lease for oil. Thereupon the lessor and error, and error is prosecuted here to reverse lessees entered into a parol contract to the efit.

fect that, if the lessees would continue to fur.

ther drill and operate said lands for oil, the James O. Troup, for plaintiffs in error.

royalty should be one-eighth, instead of oneJames & Kelly, for defendant in error.

sixth, as provided in the lease, and, further,

that if, at the end of 30 days from the comPRICE, J. (after stating the facts).

| pletion of any well, the average production of There is no merit in the cross-petition

said lands should amount to 5 barrels per day in error filed in this proceeding by Amos,

for each well, the royalty to the lessor should the defendant in error. It seems that

be one-sixth; and, if the production at the he was not satisfied with the findings of fact

end of 30 days from the completion of any made by the lower court, but he did not file

well should amount to an average of 10 bara motion for new trial as a foundation for

rels per day from each well, the royalty to a review of such findings. Nor was the de

the lessor should be one-fourth of the oil profendant in error entitled to any relief in dam

duced. In consideration of this parol conages against the Buckeye Pipe Line Company

tract, the lessees drilled, equipped, and oper. on account of any facts appearing in the rec

ated five additional wells on said lands, at ord, and it was not liable to account to him

an expense to themselves of not less than for any oil which was the subject of contro $6,000. But at no time since the completion versy between the lessor and lessee. The

of either or any of said wells has the propipe line company took the oil as a common

duction exceeded an average of two barrels carrier, or bailee, for both parties, and when

per day for each well. When it came to sign they could not agree on a division of it, and

a division order according to the terms of the therefore not upon a division order upon the

parol contract, Amos, the lessor, refused, and company, it was unable to decide between

| demanded one-sixth royalty a3 stipulated in them on the only question of difference, and the written lease and brought action to en. the lessor resorted to the proper court for its

force specific performance of its terms. solution. This view will become quite clear

While the circuit court found all the above from our further consideration of the case.

facts to be established, it held that the verbal The lease of October 11, 1902, granted to

agreement so made is within the statute of the plaintiffs in error and their heirs and as

frauds and therefore Foid. Is its conclusion signs, "all the oil and gas in and under said

of law sound? That statute is found in sectract of land, and also said tract of land for

tion 4199, Rev. St. 1906, and its provisions the purpose and with the exclusive right of relative to the present controversy may be operating thereon for said gas or oil, with the quoted as follows: "No action shall be right of way, the right to lay pipes over and brought whereby to charge the defendant to use water from said premises; and also the * * upon any contract or sale of lands, right to remove at any time, all property tenements or hereditaments, or any interest placed thereon by the lessee." The grant is in, or concerning of them; nor upon any for a term of 20 years from date and as much agreement that is not to be performed withlonger as oil or gas is found in paying quan: in the space of one year from the making tities thereon, yielding and paying to the thereof, unless the agreement upon wbich lessor "the one-sixth of the oil produced and such action is brought, or some memorandum saved from the premises, delivered free of or note thereof, is in writing and signed by expense into the tanks or pipe line to the the party to be charged therewith, or some lessor's credit." There is another important other person thereunto by him or her lav. clause in the lease: "It is agreed further, fully authorized." that the second party (lessees) shall have the It is claimed for the lessor, who commenced right at any time to surrender the lease to the action under review, that (1) the parol the first party for cancellation, after which contract relied on relates to an interest in or all payments and liabilities to accrue under concerning land; and (2) that the contract and by virtue of its terms shall cease and de was not to be performed within the space of termine and the lease shall become absolutely one year from the making thereof. We cannull and void." The lessees proceeded to op- not assent to either proposition. The title to erate under this lease and drilled and the land is not involved, nor is any interest equipped one oil well, which the circuit court or estate therein. The question arises on

a lease supplemented by a parol contract | sale of a dwelling house then annexed to with reference to the consideration. There real estate, but to be severed from the freeis no controversy over the extent of the grant, hold and delivered on rollers, after the same and the parol contract does not undertake has been so severed, and which was delivto lessen or enlarge the estate granted. ered in accordance with the contract. In that Touching the division of the oil when brought case the defense was that the dwelling house, to the surface, the written lease stipulates when the verbal contract for its purchase that the lessees shall yield and pay “to the was made, was standing upon the premises, lessor the one-sixth part of the oil produced erected upon permanent walls, a solid and and saved from the premises, delivered free strong foundation, permanently affixed to of expense into the tanks or pipe line to the the premises, and constituted a part of the lessor's credit. * * *" This share is the same. The defense was held bad and the lessor's compensation for the lease and the seller recovered. In Negley V. Jeffers et al., rights granted therein. The five-sixths go 28 Ohio St. 90, 91, it is held that when a to the lessees by virtue of the same instru deed to real estate has been executed, or ment, because the grant to them was the title in any other way passed, subsequent oil contained in the premises. Therefore the agreements between vendor and vendee, as to parol contract related to personal property, the pecuniary liabilities growing out of the and not real estate, or an interest in or con transaction, which do not take away or concerning the same. In Kelley v. Ohio Oil Co., fer any interest in the land, but only de57 Ohio St. 317, 49 N. E. 399, 39 L. R. A. 765, termine the time when the purchase money 63 Am. St. Rep. 721, this court held that becomes due, are not affected by the statute petroleum oil is a mineral, and while it is in of frauds. It is further held that a subsethe earth it forms part of the realty; and, quent contract between the parties, by the when it reaches a well and is produced on the

terms of which the vendee, for a valuable surface, it becomes personal property and consideration received, agreed to waive his belongs to the owner of the well. In the

| right to insist on the performance of conopinion by Burket, J. (on page 328 of 57 Ohio

ditions precedent which were in writing, St., page 401 of 49 N. E. [39 L. R. A. 765, 63

and take the property subject to incumAm. St. Rep. 721], it is said: “Petroleum oil

brances, and pay the balance due, is not a is a mineral, and while in the earth it is part

contract within the statute of frauds, and of the realty, and should it move from place

may be proved by parol. See, also, Blakeney to place by percolation, or otherwise, it forms v. Goode et al., 30 Ohio St. 350. In Shaw v. part of the tract of land in which it tarries Walbridge, 33 Ohio St. 1, this court decided for the time being, and, if it moves to the

that where a grantor in a deed, absolute on next adjoining tract, it becomes a part and

its face, claimed that it was a mortgage, in parcel of that tract; and it forms part of

a proceeding to establish that claim, it was some tract, until it reaches a well and is

competent for the grantee to show that, alraised to the surface, and then for the first

though originally a mortgage, the equity of time it becomes the subject of distinct own

redemption had been released by a parol ership separate from the realty, and becomes

agreement. Beyond doubt, the party repersonal property, the personal property of

leased an interest in real estate. We think the person into whose well it came. * * *

these authorities ample on the first propoIt is the property of, and belongs to, the per sition. The second contention is that the son who reaches it by means of a well and

parol contract was not to be performed withsevers it from the realty and converts it into

| in one year, and for that reason it is within personalty.” The same doctrine is again

the statute of frauds. We think this position laid down in Natural Gas Co. v. Ullery, 68

is also untenable. The only time fixed for Ohio St. 259, 67 N. E. 494.

performance is when oil is “produced and The lessees, by the written instrument, saved," and on its face is susceptible of being agreed to drill and operate for oil, and of performed within a year, within the legal what they would thus produce from the signification of that term. One well had wells, and thereby severed from the realty, been drilled and was in operation when the they were to yield and pay to the lessor one verbal agreement was made. The premises sixth. Hence, when the parties entered into consisted of 60 acres, and the remaining the parol contract as found by the lower wells, five in number, could be, and perhaps court, they were not contracting for an in were, drilled and put in operation within terest in or concerning real estate, but for a the year, and they may all become worthless division of personal property in proportions and nonproductive within the year after each different from those named in the written had been operated. The rule is well stated lease. The royalty is an incident to the by Browne in his work on the Statute of written instrument as a means of compen Frauds, $$ 274–276. In section 274 it is said: sation to the lessor for the grant and privi "Suppose that the parties make no stipulaleges therein conveyed. Akin to the fore tion as to time; but the performance of going is the case of Long v. White, 42 Ohio the agreement depends either expressly St. 59. It is there held that the statute of | or by reasonable implication upon the lapfrauds cannot defeat the recovery of the pening of a certain contingency which may purchase money on a verbal contract for the occur within the year. In such case it is


settled upon authority, and is reasonable A very decisive case is found in Towsley v. in principle, that the statute should not ap Moore, 30 Ohio St. 184, 27 Am. Rep. 434. ply. The agreement may be performed en Miss Towsley was a minor about 11 years tirely within the year, consistently with the old, and with the advice and consent of her understanding and the rights of parties.” mother agreed to work for Moore in his The author in the following section cites household and kitchen until she arrived at illustrations of his meaning. And in sec the age of 18, for which service Moore was tion 276 he adds: “Cases where the promise to board, clothe, and furnish her with schoolis to continue to do something until an im ing, and at the expiration of her term of plied contingency occur-as, for instance, service pay her what such service was reato pay during the promisee's life, to pay dur sonably worth. She rendered the service ing the life of another, to work for another agreed upon. In her action to recover, during his life, to board the promisee dur among other defensive matter, Moore set ing his life, to educate a child, to support a up the statute of frauds that the contract child, or to pay during coverture are not could not be and was not performed within within the statute, because the contracting a year from its date. This was admitted parties contemplate that the one whose life by the reply, but it averred that she did is involyed may die within the year. Agree fully complete and perform the same, and ments to continue to do something for an that her services were worth the amount indefinite period, which may be terminated sued for. It was held on the above facts at any time by either party, or which may | that, “although an action cannot be mainbe terminated by such change in the cir- tained upon a verbal contract not to be cumstances of the parties as will make it | performed within one year, yet, when such unreasonable or unnecessary that they be contract has been fully performed by one further bound, the contingency of such party, the other having obtained its benefits, change of circumstances being inplied in the he cannot refuse to pay the reasonable value nature of the contract, are not within the thereof." That is a very instructive case statute." It is well to remember here on the one-year clause of the statute of that one of the stipulations in the lease is frauds, and the principles of various de that the lessees might abandon and surren- cided cases are well summed up in the opinder the lease at any time and remove their ion on page 194 of 30 Ohio St. (27 Am. Rep. property, terminating all further liabilities. 434). But we will not further pursue the discus

In the light of the authorities, only a few sion in the text-books.

of which we have noted, how stands the case This court has spoken sufficiently plain at bar? Relying on the integrity of the on the subject in several cases. In Randall verbal agreement with their lessor, the plainv. Turner, 17 Ohio St. 262, it is held that a tiffs in error drilled, equipped, and put in verbal agreement for the sale of lands which operation five additional wells, at an exhas been fully performed on the part of pense of not less than $6,000, and tendered the vendor is not rendered void by the

him the eighth royalty agreed upon as the statute of frauds. In the opinion by Day, inducement to make the large expenditure. C. J. (on page 269), it is said: “The most They have fully performed the contract on that can be claimed is that it (the contract] their part, of which performance lessor has was not likely to be performed in a year; received the benefits, and can be now rebut it was clearly susceptible of performance pudiate the contract as invalid and defeat within that time. The road (railroad]

the rights of the lessees? He has brougbt might have been abandoned within a year,

his action in a court of equity for specific and thus a reasonable time to wait for its

performance of the terms of the original completion would have expired. There written lease, and the lessees plead the was surely nothing in the contract that change in the royalty merely. Courts of fixed the time of performance beyond a

equity do not always grant specific peryear. It is well settled by the authorities

formance of coutracts, and they will not do upon this point that the contract is not with

so where it would work manifest injustice in the statute of frauds. Moreover, the suit

to adverse parties. On the facts found in being for the purchase money of the land,

this case there is not a semblance of equity and the contract having been fully perform

in the lessor's claim, and the circuit court ed on the part of the vendor, the statute does

should have denied his prayer for relief. not apply.” Jones v. Pouch, 41 Ohio St. 146,

The judgment of the circuit court is reis a case where there was a verbal contract

versed, and rendering the proper judgment to construct a section of a road within a

on the facts found we find for the plainyear and 20 days from the date of the con

tiffs in error, and dismiss the petition filed tract. The work could have been com

in the court of common pleas by defendant pleted within the year, and it was held that in error. this was not an "agreement not to be per

Judgment reversed. formed within the space of one year from the making thereof"; and an action thereon! DAVIS, C. J., and SHAUCK, CREW, and was not prohibited by the statute of frauds. | SPEAR, JJ., concur.

(191 Mass. 54)

defendant bad become ixed by the default CARPENTER v. GODDARD.

of Worry, and Bankr. Act July 1, 1898, c. 541, (Supreme Judicial Court of Massachusetts. $ 16, 30 Stat. 550 [U. S. Comp. St. 1901, p. Suffolk. March 2, 1906.)

3428), provides that "the liability of a person 1. BANKRUPTCY - DISCHARGE EFFECT --LIA as co-debtor with or guarantor or in any BILITY OF SURETY.

manner a surety for the bankrupt shall not Under Bankr. Act July 1, 1899, c. 541, §

be altered by the discharge of such bankrupt." 16, 30 Stat. 550 [U. S. Comp. St. 1901, p. 3428), providing that the liability of a surety If the liability is not affected by the disfor a bankrupt shall not be altered by the dis charge, a fortiori it is not affected by an adcharge of the bankrupt, a surety on a poor judication. See Demelman v. Hunt, 168 debtor's recognizance is not discharged by the subsequent adjudication of the debtor as a bank

Mass. 102, 46 N. E. 436, in which it was derupt.

cided that under a similar provision in our 2. EXECUTION-ARREST OF PERSON-DISCHARGE insolvency law (Pub. St, 1882, c. 157, § 85) -POOR DEBTORS-LIABILITY OF SURETY.

the surety was not discharged. The liability of a surety on a poor debtor's

The defendant contends that, even if the recognizance as fixed by Rev. Laws, c. 168, 8 66, providing that the execution in an action on

adjudication was not a bar, still the plaintiff a poor debtor's recognizance shall not issue for would be entitled to recover only nominal less than the amount due on the original judge damages. It is contended by the plaintiff ment, with costs and damages, cannot be reduceu to nominal damages by reason of the sub

that, under the form of submission, this sequent adjudication of the debtor as a bank

question is not open to the defendant at this rupt; Bankr. Act July 1, 1898, c. 541, $ 16, 30 stage of the case; but, even if it be assumed Stat. 550 (U. S. Comp. St. 1901, p. 3428),

that the question is open, we think that providing that the liability of the surety shall not be altered” by a subsequent discharge in

there is nothing in it. After the default of bankruptcy of the debtor.

Worry, the liability of the defendant, as has

been before stated, had become fixed. And Exceptions from Superior Court, Suffolk

by Rev. Laws c. 168, 866, it is provided County; Cushing Wait, Judge.

that in an action upon a recognizance taken Action by one Carpenter against one God.

on execution “the execution in such action dard. There was a judgment for plaintif,

shall not Issue for less than the amount due and defendant excepts. Overruled.

on the original judgment with costs and Chas. W. Bartlett and Elbridge R. Ander charges arising after the issuing of the orson, for plaintiff. Harvey H. Pratt, for iginal execution.” This, therefore, was the defendant.

extent of the liability of the defendant before

Worry was adjudicated a bankrupt. To hold HAMMOND, J. This is an action against that tbis liability was reduced by such ada surety upon a poor debtor's recognizance. | judication to nominal damages would be to From the agreed statement of facts upon disregard the federal statute above quoted, which the case was submitted in the superior which provides that the liability of the surety court, it appears that one Worry, against sball not be “altered." A change in the whom the plaintiff had recovered judgment extent of the liability would be no less an for several hundred dollars and costs, having alteration than a change in the nature of it. been arrested upon the execution, entered Exceptions overruled. into the recognizance with the defendant as bis surety; that on January 3, 1905, Worry made default; that on January 6th this

(191 Mass. 151) action was brought; and that on May 20,

BROOKS et al. v. SAWYER. 1905, Worry was adjudicated a bankrupt.

(Supreme Judicial Court of Massachusetts. The defendant filed a suggestion of the adjud

Middlesex. March 5, 1906.) ication of Worry's bankruptcy as a plea in INFANTS–Torty-FRAUD IN CONTRACT. bar to this action, "and the parties hereto No damages can be recovered for fraud of agree that, if the said adjudication shall be an infant in representing that she was not one,

whereby the other party was induced to pay a decided to be a bar to a recovery against the

sum on her agreement to convey real estate; said Goddard, then judgment shall be entered an attempt to establish such a liability being an for the sum of $1, but if it shall not be so attempt to sue the infant on contract and not decided, then judgment shall be entered for

for tort. the full amount due on the recognizance [as]

(Ed. Note.-For cases in point, see vol. 27, ir sucb adjudication had not been made.”

Cent. Dig. Infants, § 168.) At the trial the defendant asked the court

Appeal from Superior Court, Middlesex to rule that the adjudication in bankruptcy

County. of Worry was a bar to the maintenance of

Action by one Brooks and another against this action. The court refused so to rule,

one Sawyer. From a judgment in favor of found for the plaintiff, entered judgment in

defendant, plaintiffs appeal. Affirmed. the penal sum of the bond, and ordered ex. This was an action of tort, in which plainecution to issue in the sum of $474.69; "and tiffs alleged that the defendant falsely repthe plaintiff duly excepted." There can be resented that she was not a minor and was no doubt that the adjudication in bankruptcy legally competent to sell certain real estate, is not, as matter of law, a bar to the main- | and that plaintiffs, relying upon such repretenance of this action. The liability of the sentations, paid to her $200 and accepted from her an agreement to convey the prop-, September 30, 1903. The second count, as erty. They sought to recover damages fór amended, reads as follows: "The plaintiff her failure to carry out the agreement. In says the defendant owes him $1,478.99, for the superior court a demurrer filed by the the balance found due to the plaintiff from defendant was sustained, and plaintiffs ap the defendant on an accounting had between pealed.

the plaintiff and defendant on or about the Augustine J. Daly and Francis J. Carney,

6th day of May, 1903, together with interest for plaintiffs. J. J. Foley, for defendant

on said sum from the day on which the

plaintiff demanded payment of said balance LATHROP, J. We are of opinion in this

from the defendant, to wit, from the 30th day case that the demurrer to the declaration

of September, 1903.” At the trial before the was rightly sustained and judgment ordered

Chief Justice of this court it appeared that for the defendant. While the action is called the note declared on in the first count was one of tort, yet the action is clearly for the

given for services rendered in a criminal breach of a contract, and the fraud alleged

case in the United States Circuit Court for is directly connected with the contract. The

the District of Massachusetts, from February, case is governed by Slayton V. Barry, 175

1901, to March 20, 1903; that about March Mass. 513, 56 N. E. 574, 49 L. R. A. 560,

26, 1903, the plaintiff rendered to the de78 Am. St. Rep. 510, where the question is

fendant a bill for his services, showing the fully considered, and the rule laid down by

services rendered and amounts received and Chancellor Kent followed: "The fraudulent disbursed, leaving a balance due the plaintiff act, to charge him [the infant] must be of $9,926.72. There was also evidence that wholly tortious; and a matter arising ex

the defendant made no objection to the bill, contractu, though infected with fraud, can. and in April promised to pay it, and that not be changed into a tort, in order to he made similar promises after the date of charge the infant in trover or case, by a the note. There was also evidence that on change in the form of the action.” 2 Kent, May 6, 1903, the plaintiff sent to the deCom. 241.

fendant an itemized account of services renThe case of Drude v. Curtis, 183 Mass. dered to the defendant in other matters, to 317, 67 N. E. 317, 62 L. R. A. 755, disposes

which the defendant made no objection. The of the argument that the plaintiff may re defendant made six requests for instructions, cover as damages the sum paid by him which were refused. The jury were instructfor the option. It also disposes of the case ed that it was competent for them to return of Walker v. Davis, 1 Gray, 506, relied a verdict both for the amount of the note upon by the plaintiff.

declared on in the first count and for the Judgment affirmed.

account declared on in the second count as

amended. The jury returned a verdict for (191 Mass. 38)

the plaintiff on both counts; and the case PAUL V. DICKINSON.

is before us on the defendant's exceptions

to the refusal to rule as requested and to (Supreme Judicial Court of Massachusetts.

the ruling given, Suffolk. March 2, 1906.)

We do not think it necessary to state ACTION-SEPARATE CAUSES OF ACTION-JOINDER.

the requests in detail. They do not in any Under Rev. Laws, c. 173, § 6, cl. 5, pro way relate to the merits of the case, but are viding that a declaration may contain any num. founded upon the fact that the note declared ber of counts for different causes of action which belong to the same divisions of actions,

on in the first count is dated May 15, 1903, where the first count of a declaration was on a

while the second count alleges an accounting promissory note, dated May 15th, for legal serv together on May 6, 1903, showing a balance ices rendered in February and March, and the then due of $1,478.99; and it is contended second count was on an account stated May 6th, a recovery was properly allowed on both counts,

that the balance found due upon an accountwhere it was shown that the note had nothing ing together is a final adjustment of the to do with the matters embraced in the account respective demands between the parties. It stated.

is further contended that an indebtedness of Exceptions from Supreme Judicial Court, $1,478.99 will not support a promissory note Suffolk County; M. P. Knowlton, Judge. for $9,926.72, on account of the gross inade

Action by one Paul against one Dickinson. I quacy of the consideration. By Rev. Laws, Verdict for plaintiff, and defendant excepts. c. 173, § 6, cl. 5, a declaration “may contain Exceptions overruled.

any number of counts for different causes Benner & Foster, for plaintiff. Walter H. of action which belong to the same divisions Thorpe, for defendant.

of actions." The promissory note set out in

the first count had nothing to do with the LATHROP, J. This is an action of con- matters set out in the second count, of which tract for legal services rendered by the plain an itemized account had been given the de tiff to the defendant. The first count was fendant. It further appears that, although upon a promissory note for $9,926.72, dated the promissory note was dated after the alat Boston, May 15, 1903, signed by the de | leged accounting together, the defendant had fendant and payable to the plaintiff on de- promised to pay it before the date of the mand. The declaration alleged a demand on accounting together, as well as afterwards,

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