was again tried. That court made findings of facts which support the allegations of the answer as to the agreement to change the royalty from one-sixth to one-eighth, but held that the agreement, not being in writing, is within the statute of frauds, and therefore void. The defendant in error has filed a cross-petition in error, alleging, in part, that the findings of fact are not justified by the evidence. These findings of fact are further noticed in the opinion. The court made a decree for the plaintiff against the plaintiffs in error, and error is prosecuted here to reverse it.

James O. Troup, for plaintiffs in error. James & Kelly, for defendant in error.

PRICE, J. (after stating the facts). There is no merit in the cross-petition in error filed in this proceeding by Amos, the defendant in error. It seems that he was not satisfied with the findings of fact made by the lower court, but he did not file a motion for new trial as a foundation for a review of such findings. Nor was the defendant in error entitled to any relief in damages against the Buckeye Pipe Line Company on account of any facts appearing in the record, and it was not liable to account to him for any oil which was the subject of controversy between the lessor and lessee. The pipe line company took the oil as a common carrier, or bailee, for both parties, and when they could not agree on a division of it, and therefore not upon a division order upon the company, it was unable to decide between them on the only question of difference, and the lessor resorted to the proper court for its solution. This view will become quite clear from our further consideration of the case.

The lease of October 11, 1902, granted to the plaintiffs in error and their heirs and assigns, "all the oil and gas in and under said tract of land, and also said tract of land for the purpose and with the exclusive right of operating thereon for said gas or oil, with the right of way, the right to lay pipes over and to use water from said premises; and also the right to remove at any time, all property placed thereon by the lessee." The grant is for a term of 20 years from date and as much longer as oil or gas is found in paying quantities thereon, yielding and paying to the lessor "the one-sixth of the oil produced and saved from the premises, delivered free of expense into the tanks or pipe line to the lessor's credit." There is another important clause in the lease: "It is agreed further, that the second party (lessees) shall have the right at any time to surrender the lease to the first party for cancellation, after which all payments and liabilities to accrue under and by virtue of its terms shall cease and determine and the lease shall become absolutely null and void." The lessees proceeded to operate under this lease and drilled and equipped one oil well, which the circuit court

found "did not produce oil sufficient to pay for operating the same at one-sixth royalty as prescribed in the lease." That court further found that the defendants, now plaintiffs in error, informed the plaintiff, Amos, that they would abandon said premises and surrender said lease, unless he would agree to reduce the royalty stipulated therein from one-sixth to one-eighth, and they proposed that, if he would make that reduction, they would proceed to further drill and operate the lease for oil. Thereupon the lessor and lessees entered into a parol contract to the effect that, if the lessees would continue to further drill and operate said lands for oil, the royalty should be one-eighth, instead of onesixth, as provided in the lease, and, further, that if, at the end of 30 days from the completion of any well, the average production of said lands should amount to 5 barrels per day for each well, the royalty to the lessor should be one-sixth; and, if the production at the end of 30 days from the completion of any well should amount to an average of 10 barrels per day from each well, the royalty to the lessor should be one-fourth of the oil produced. In consideration of this parol contract, the lessees drilled, equipped, and operated five additional wells on said lands, at an expense to themselves of not less than $6,000. But at no time since the completion of either or any of said wells has the production exceeded an average of two barrels per day for each well. When it came to sign a division order according to the terms of the parol contract, Amos, the lessor, refused, and demanded one-sixth royalty as stipulated in the written lease, and brought action to enforce specific performance of its terms.

*

While the circuit court found all the above facts to be established, it held that the verbal agreement so made is within the statute of frauds and therefore void. Is its conclusion of law sound? That statute is found in section 4199, Rev. St. 1906, and its provisions relative to the present controversy may be quoted as follows: "No action shall be brought whereby to charge the defendant * upon any contract or sale of lands, tenements or hereditaments, or any interest in, or concerning of them; nor upon any agreement that is not to be performed within the space of one year from the making thereof, unless the agreement upon which such action is brought, or some memorandum or note thereof, is in writing and signed by the party to be charged therewith, or some other person thereunto by him or her lawfully authorized."

It is claimed for the lessor, who commenced the action under review, that (1) the parol contract relied on relates to an interest in or concerning land; and (2) that the contract was not to be performed within the space of one year from the making thereof. We cannot assent to either proposition. The title to the land is not involved, nor is any interest or estate therein. The question arises on

*

a lease supplemented by a parol contract with reference to the consideration. There is no controversy over the extent of the grant, and the parol contract does not undertake to lessen or enlarge the estate granted. Touching the division of the oil when brought to the surface, the written lease stipulates that the lessees shall yield and pay "to the lessor the one-sixth part of the oil produced and saved from the premises, delivered free of expense into the tanks or pipe line to the lessor's credit. This share is the lessor's compensation for the lease and the rights granted therein. The five-sixths go to the lessees by virtue of the same instrument, because the grant to them was the oil contained in the premises. Therefore the parol contract related to personal property, and not real estate, or an interest in or concerning the same. In Kelley v. Ohio Oil Co., 57 Ohio St. 317, 49 N. E. 399, 39 L. R. A. 765, 63 Am. St. Rep. 721, this court held that petroleum oil is a mineral, and while it is in the earth it forms part of the realty; and, when it reaches a well and is produced on the surface, it becomes personal property and belongs to the owner of the well. In the opinion by Burket, J. (on page 328 of 57 Ohio St., page 401 of 49 N. E. [39 L. R. A. 765, 63 Am. St. Rep. 721], it is said: "Petroleum oil is a mineral, and while in the earth it is part of the realty, and should it move from place to place by percolation, or otherwise, it forms part of the tract of land in which it tarries for the time being, and, if it moves to the next adjoining tract, it becomes a part and parcel of that tract; and it forms part of some tract, until it reaches a well and is raised to the surface, and then for the first time it becomes the subject of distinct ownership separate from the realty, and becomes personal property, the personal property of the person into whose well it came.

* *

*

It is the property of, and belongs to, the person who reaches it by means of a well and severs it from the realty and converts it into personalty." The same doctrine is again laid down in Natural Gas Co. v. Ullery, 68 Ohio St. 259, 67 N. E. 494.

The lessees, by the written instrument, agreed to drill and operate for oil, and of what they would thus produce from the wells, and thereby severed from the realty, they were to yield and pay to the lessor onesixth. Hence, when the parties entered into the parol contract as found by the lower court, they were not contracting for an interest in or concerning real estate, but for a division of personal property in proportions different from those named in the written lease. The royalty is an incident to the written instrument as a means of compensation to the lessor for the grant and privileges therein conveyed. Akin to the foregoing is the case of Long v. White, 42 Ohio St. 59. It is there held that the statute of frauds cannot defeat the recovery of the purchase money on a verbal contract for the

sale of a dwelling house then annexed to real estate, but to be severed from the freehold and delivered on rollers, after the same has been so severed, and which was delivered in accordance with the contract. In that case the defense was that the dwelling house, when the verbal contract for its purchase was made, was standing upon the premises, erected upon permanent walls, a solid and strong foundation, permanently affixed to the premises, and constituted a part of the same. The defense was held bad and the seller recovered. In Negley v. Jeffers et al., 28 Ohio St. 90, 91, it is held that when a deed to real estate has been executed, or title in any other way passed, subsequent agreements between vendor and vendee, as to the pecuniary liabilities growing out of the transaction, which do not take away or confer any interest in the land, but only determine the time when the purchase money becomes due, are not affected by the statute of frauds. It is further held that a subsequent contract between the parties, by the terms of which the vendee, for a valuable consideration received, agreed to waive his right to insist on the performance of conditions precedent which were in writing, and take the property subject to incumbrances, and pay the balance due, is not a contract within the statute of frauds, and may be proved by parol. See, also, Blakeney v. Goode et al., 30 Ohio St. 350. In Shaw v. Walbridge, 33 Ohio St. 1, this court decided that where a grantor in a deed, absolute on its face, claimed that it was a mortgage, in a proceeding to establish that claim, it was competent for the grantee to show that, although originally a mortgage, the equity of redemption had been released by a parol agreement. Beyond doubt, the party released an interest in real estate. We think these authorities ample on the first proposition. The second contention is that the parol contract was not to be performed within one year, and for that reason it is within the statute of frauds. We think this position is also untenable. The only time fixed for performance is when oil is "produced and saved," and on its face is susceptible of being performed within a year, within the legal signification of that term. One well had been drilled and was in operation when the verbal agreement was made. The premises consisted of 60 acres, and the remaining wells, five in number, could be, and perhaps were, drilled and put in operation within the year, and they may all become worthless and nonproductive within the year after each had been operated. The rule is well stated by Browne in his work on the Statute of Frauds, §§ 274-276. In section 274 it is said: "Suppose that the parties make no stipulation as to time; but the performance of the agreement depends either expressly or by reasonable implication upon the Irappening of a certain contingency which may occur within the year. In such case it is

settled upon authority, and is reasonable in principle, that the statute should not apply. The agreement may be performed entirely within the year, consistently with the understanding and the rights of parties." The author in the following section cites illustrations of his meaning. And in section 276 he adds: "Cases where the promise is to continue to do something until an implied contingency occur-as, for instance, to pay during the promisee's life, to pay during the life of another, to work for another during his life, to board the promisee during his life, to educate a child, to support a child, or to pay during coverture-are not within the statute, because the contracting parties contemplate that the one whose life is involved may die within the year. Agreements to continue to do something for an indefinite period, which may be terminated at any time by either party, or which may be terminated by such change in the circumstances of the parties as will make it unreasonable or unnecessary that they be further bound, the contingency of such change of circumstances being inplied in the nature of the contract, are not within the statute." It is well to remember here that one of the stipulations in the lease is that the lessees might abandon and surrender the lease at any time and remove their property, terminating all further liabilities. But we will not further pursue the discussion in the text-books.

This court has spoken sufficiently plain on the subject in several cases. In Randall v. Turner, 17 Ohio St. 262, it is held that a verbal agreement for the sale of lands which has been fully performed on the part of the vendor is not rendered void by the statute of frauds. In the opinion by Day, C. J. (on page 269), it is said: "The most that can be claimed is that it [the contract] was not likely to be performed in a year; but it was clearly susceptible of performance within that time. The road [railroad] might have been abandoned within a year, and thus a reasonable time to wait for its completion would have expired. There was surely nothing in the contract that fixed the time of performance beyond a year. It is well settled by the authorities upon this point that the contract is not within the statute of frauds. Moreover, the suit being for the purchase money of the land, and the contract having been fully performed on the part of the vendor, the statute does not apply." Jones v. Pouch, 41 Ohio St. 146, is a case where there was a verbal contract to construct a section of a road within a year and 20 days from the date of the contract. The work could have been completed within the year, and it was held that this was not an "agreement not to be performed within the space of one year from the making thereof"; and an action thereon was not prohibited by the statute of frauds.

A very decisive case is found in Towsley v. Moore, 30 Ohio St. 184, 27 Am. Rep. 434. Miss Towsley was a minor about 11 years old, and with the advice and consent of her mother agreed to work for Moore in his household and kitchen until she arrived at the age of 18, for which service Moore was to board, clothe, and furnish her with schooling, and at the expiration of her term of service pay her what such service was reasonably worth. She rendered the service agreed upon. In her action to recover, among other defensive matter, Moore set up the statute of frauds that the contract could not be and was not performed within a year from its date. This was admitted by the reply, but it averred that she did fully complete and perform the same, and that her services were worth the amount sued for. It was held on the above facts that, "although an action cannot be maintained upon a verbal contract not to be performed within one year, yet, when such contract has been fully performed by one party, the other having obtained its benefits, he cannot refuse to pay the reasonable value thereof." That is a very instructive case on the one-year clause of the statute of frauds, and the principles of various de cided cases are well summed up in the opinion on page 194 of 30 Ohio St. (27 Am. Rep. 434).

In the light of the authorities, only a few of which we have noted, how stands the case at bar? Relying on the integrity of the verbal agreement with their lessor, the plaintiffs in error drilled, equipped, and put in operation five additional wells, at an expense of not less than $6,000, and tendered him the eighth royalty agreed upon as the inducement to make the large expenditure. They have fully performed the contract on their part, of which performance lessor has received the benefits, and can he now repudiate the contract as invalid and defeat the rights of the lessees? He has brought his action in a court of equity for specific performance of the terms of the original written lease, and the lessees plead the change in the royalty merely. Courts of equity do not always grant specific performance of coutracts, and they will not do so where it would work manifest injustice to adverse parties. On the facts found in this case there is not a semblance of equity in the lessor's claim, and the circuit court should have denied his prayer for relief.

The judgment of the circuit court is reversed, and rendering the proper judgment on the facts found we find for the plaintiffs in error, and dismiss the petition filed in the court of common pleas by defendant in error.

Judgment reversed.

DAVIS, C. J., and SHAUCK, CREW, and SPEAR, JJ., concur.

(191 Mass. 54)

CARPENTER v. GODDARD. (Supreme Judicial Court of Massachusetts. Suffolk. March 2, 1906.)

1. BANKRUPTCY-DISCHARGE-EFFECT-LIABILITY OF SURETY.

Under Bankr. Act July 1, 1898, c. 541, § 16, 30 Stat. 550 [U. S. Comp. St. 1901, p. 3428], providing that the liability of a surety for a bankrupt shall not be altered by the discharge of the bankrupt, a surety on a poor debtor's recognizance is not discharged by the subsequent adjudication of the debtor as a bankrupt.

2. EXECUTION-ARREST OF PERSON-DISCHARGE -POOR DEBTORS-LIABILITY OF SURETY.

The liability of a surety on a poor debtor's recognizance as fixed by Rev. Laws, c. 168, § 66, providing that the execution in an action on a poor debtor's recognizance shall not issue for less than the amount due on the original judgment, with costs and damages, cannot be reduced to nominal damages by reason of the subsequent adjudication of the debtor as a bankrupt; bankr. Act July 1, 1898, c. 541, § 16, 30 Stat. 550 [U. S. Comp. St. 1901, p. 3428], providing that the liability of the surety shall not be altered" by a subsequent discharge in bankruptcy of the debtor.

Exceptions from Superior Court, Suffolk County; Cushing Wait, Judge.

Action by one Carpenter against one Goddard. There was a judgment for plaintiff, and defendant excepts. Overruled.

Chas. W. Bartlett and Elbridge R. Anderson, for plaintiff. Harvey H. Pratt, for defendant.

HAMMOND, J. This is an action against a surety upon a poor debtor's recognizance. From the agreed statement of facts upon which the case was submitted in the superior court, it appears that one Worry, against whom the plaintiff had recovered judgment for several hundred dollars and costs, having been arrested upon the execution, entered into the recognizance with the defendant as his surety; that on January 3, 1905, Worry made default; that on January 6th this action was brought; and that on May 20, 1905, Worry was adjudicated a bankrupt. The defendant filed a suggestion of the adjudication of Worry's bankruptcy as a plea in bar to this action, "and the parties hereto agree that, if the said adjudication shall be decided to be a bar to a recovery against the said Goddard, then judgment shall be entered for the sum of $1, but if it shall not be so decided, then judgment shall be entered for the full amount due on the recognizance [as] if such adjudication had not been made."

At the trial the defendant asked the court to rule that the adjudication in bankruptcy of Worry was a bar to the maintenance of this action. The court refused so to rule, found for the plaintiff, entered judgment in the penal sum of the bond, and ordered execution to issue in the sum of $474.69; "and the plaintiff duly excepted." There can be no doubt that the adjudication in bankruptcy is not, as matter of law, a bar to the maintenance of this action. The liability of the

defendant had become fixed by the default of Worry, and Bankr. Act July 1, 1898, c. 541, § 16, 30 Stat. 550 [U. S. Comp. St. 1901, p. 3428], provides that "the liability of a person as co-debtor with or guarantor or in any manner a surety for the bankrupt shall not be altered by the discharge of such bankrupt." If the liability is not affected by the discharge, a fortiori it is not affected by an adjudication. See Demelman v. Hunt, 168 Mass. 102, 46 N. E. 436, in which it was decided that under a similar provision in our insolvency law (Pub. St. 1882, c. 157, § 85) the surety was not discharged.

The defendant contends that, even if the adjudication was not a bar, still the plaintiff would be entitled to recover only nominal damages. It is contended by the plaintiff that, under the form of submission, this question is not open to the defendant at this stage of the case; but, even if it be assumed that the question is open, we think that there is nothing in it. After the default of Worry, the liability of the defendant, as has been before stated, had become fixed. And by Rev. Laws c. 168, § 66, it is provided that in an action upon a recognizance taken on execution "the execution in such action shall not issue for less than the amount due on the original judgment with costs and charges arising after the issuing of the original execution." This, therefore, was the extent of the liability of the defendant before Worry was adjudicated a bankrupt. To hold that this liability was reduced by such adjudication to nominal damages would be to disregard the federal statute above quoted, which provides that the liability of the surety shall not be "altered." A change in the extent of the liability would be no less an alteration than a change in the nature of it. Exceptions overruled.

(191 Mass. 151)

BROOKS et al. v. SAWYER. (Supreme Judicial Court of Massachusetts. Middlesex. March 5, 1906.) INFANTS-TORTS-FRAUD IN CONTRACT.

No damages can be recovered for fraud of an infant in representing that she was not one, whereby the other party was induced to pay a sum on her agreement to convey real estate; an attempt to establish such a liability being an attempt to sue the infant on contract and not for tort.

[Ed. Note. For case in point, see vol. 27, Cent. Dig. Infants, § 168.]

Appeal from Superior Court, Middlesex County.

Action by one Brooks and another against one Sawyer. From a judgment in favor of defendant, plaintiffs appeal. Affirmed.

This was an action of tort, in which plaintiffs alleged that the defendant falsely represented that she was not a minor and was legally competent to sell certain real estate, and that plaintiffs, relying upon such representations, paid to her $200 and accepted

from her an agreement to convey the property. They sought to recover damages for her failure to carry out the agreement. In the superior court a demurrer filed by the defendant was sustained, and plaintiffs appealed.

Augustine J. Daly and Francis J. Carney, for plaintiffs. J. J. Foley, for defendant.

LATHROP, J. We are of opinion in this case that the demurrer to the declaration was rightly sustained and judgment ordered for the defendant. While the action is called one of tort, yet the action is clearly for the breach of a contract, and the fraud alleged is directly connected with the contract. The case is governed by Slayton v. Barry, 175 Mass. 513, 56 N. E. 574, 49 L. R. A. 560, 78 Am. St. Rep. 510, where the question is fully considered, and the rule laid down by Chancellor Kent followed: "The fraudulent act, to charge him [the infant] must be wholly tortious; and a matter arising ex contractu, though infected with fraud, cannot be changed into a tort, in order to charge the infant in trover or case, by a change in the form of the action." 2 Kent, Com. 241.

The case of Drude v. Curtis, 183 Mass. 317. 67 N. E. 317, 62 L. R. A. 755, disposes of the argument that the plaintiff may recover as damages the sum paid by him for the option. It also disposes of the case of Walker v. Davis, 1 Gray, 506, relied upon by the plaintiff.

Judgment affirmed.

(191 Mass. 38)

PAUL v. DICKINSON. (Supreme Judicial Court of Massachusetts. Suffolk. March 2, 1906.) ACTION-SEPARATE CAUSES OF ACTION-JOIN

DER.

Under Rev. Laws, c. 173, § 6, cl. 5, providing that a declaration may contain any number of counts for different causes of action which belong to the same divisions of actions, where the first count of a declaration was on a promissory note, dated May 15th, for legal services rendered in February and March, and the second count was on an account stated May 6th, a recovery was properly allowed on both counts, where it was shown that the note had nothing to do with the matters embraced in the account stated.

Exceptions from Supreme Judicial Court, Suffolk County; M. P. Knowlton, Judge.

Action by one Paul against one Dickinson. Verdict for plaintiff, and defendant excepts. Exceptions overruled.

Benner & Foster, for plaintiff. Walter H. Thorpe, for defendant.

LATHROP, J. This is an action of contract for legal services rendered by the plaintiff to the defendant. The first count was upon a promissory note for $9,926.72, dated at Boston, May 15, 1903, signed by the defendant and payable to the plaintiff on demand. The declaration alleged a demand on

September 30, 1903. The second count, as amended, reads as follows: "The plaintiff says the defendant owes him $1,478.99, for the balance found due to the plaintiff from the defendant on an accounting had between the plaintiff and defendant on or about the 6th day of May, 1903, together with interest on said sum from the day on which the plaintiff demanded payment of said balance from the defendant, to wit, from the 30th day of September, 1903." At the trial before the Chief Justice of this court it appeared that the note declared on in the first count was given for services rendered in a criminal case in the United States Circuit Court for the District of Massachusetts, from February, 1901, to March 20, 1903; that about March 26, 1903, the plaintiff rendered to the defendant a bill for his services, showing the services rendered and amounts received and disbursed, leaving a balance due the plaintiff of $9,926.72. There was also evidence that the defendant made no objection to the bill, and in April promised to pay it, and that he made similar promises after the date of the note. There was also evidence that on May 6, 1903, the plaintiff sent to the defendant an itemized account of services rendered to the defendant in other matters, to which the defendant made no objection. The defendant made six requests for instructions, which were refused. The jury were instructed that it was competent for them to return a verdict both for the amount of the note declared on in the first count and for the account declared on in the second count as amended. The jury returned a verdict for the plaintiff on both counts; and the case is before us on the defendant's exceptions to the refusal to rule as requested and to the ruling given.

We do not think it necessary to state the requests in detail. They do not in any way relate to the merits of the case, but are founded upon the fact that the note declared on in the first count is dated May 15, 1903, while the second count alleges an accounting together on May 6, 1903, showing a balance then due of $1,478.99; and it is contended that the balance found due upon an accounting together is a final adjustment of the respective demands between the parties. It is further contended that an indebtedness of $1,478.99 will not support a promissory note for $9,926.72, on account of the gross inadequacy of the consideration. By Rev. Laws, c. 173, § 6, cl. 5, a declaration "may contain any number of counts for different causes of action which belong to the same divisions of actions." The promissory note set out in the first count had nothing to do with the matters set out in the second count, of which an itemized account had been given the defendant. It further appears that, although the promissory note was dated after the alleged accounting together, the defendant had promised to pay it before the date of the accounting together, as well as afterwards,