Lucky Thirteen Oil Syndicate v. Barrett

RILEY, J. The judgment below canceled an oil and gas mining lease drawn and executed and delivered by W. S. Barrett to the Commerce Development Company on September 12, 1929, covering lots 1 and 2, in block 13, Earlsboro, Pottawatomie county, Okla., and assigned, on December 4, 1929, to Harry Byrens, trustee for the Lucky Thirteen Oil Syndicate. The judgment below was based upon a construction of the terms of the lease. It was there held: “That said lease terminated and came to an end according to its terms on the 12th day of March, 1930.” The material portions of the lease contract are: : “Lessee agrees to immediately commence operations for drilling of a well upon this property and continue in diligent manner until well is drilled to Wilcox sand found around 4,200 feet. If this well is not completed to this depth within six months from this date this lease is null and void. “The term of five years is given so parties could drill to Cromwell sand or plug back the well in event it was dry in Wilcox sand. The drilling of a well is the consideration in this lease. “It is agreed that this lease shall remain in force for a term of five years from date, and so long thereafter as oil or gas, or either of them, is produced from said land by the lessee. * * * “If no well toe completed on said land on or before the 12th day of March, 1930, this lease shall terminate as to both parties, unless the lessee on or before that date shall pay or tender to the lessor, or to the lessor’s credit in the Bank of Commerce at Mc-Loud, Okla., or its successors, which shall continue as the depository regardless of changes in the ownership of said land, the sum of $20, which shall operate as rental and cover the privileges of deferring the commencement of a well for 12 months from date. In like manner and upon like payments or tenders, the commencement of a well may be further deferred to periods of the same number of months successively. And it is understood and agreed that the consideration first recited herein, the down payment, covers not only the privilege granted to the date when said first rental is payable, as aforesaid, but also the lessee’s option of extending that period as aforesaid, ¿rid any and all other rights conferred. ” The trial court found “that defendants deposited with the Bank of Commerce at Mc-Loud, Okla., the depository named in said lease, the sum of $20 on the_day of February, 1930,” but “that said well had not been drilled to the Wilcox sand, nor to the depth of 4,200 feet prior to the 12th day of March, 1930.” It is our view that the “unless” portion of the lease contract modified what may be called the first termination clause, so that upon the payment of rentals the completion of a well was deferred, thus continuing the lease in force and effect. It is urged by plaintiffs in error that, since Barrett drew the lease, the language of the instrument must be construed strongly against him (Prowant v. Sealey, 77 Okla. 244, 187 P. 235), and that, since rentals were paid before March 12, 1930, there was no abandonment despite the temporary cessation of operations. Rennie v. Red Star Oil Co., 78 Okla. 208, 190 P. 391. Defendants in error contend that the rule of construction is strongly against lessee, and this in order to promote development Superior Oil & Gas Co. v. Mehlin, 25 Okla. 809, 108 P. 545; Frank Oil Co. v. Belleview G. & O. Co., 29 Okla. 719, 119 P. 260; New State Oil & Gas Co. v. Dunn, 75 Okla. 141, 182 P. 514; Crain v. Pure Oil Co., 25 Fed. (2nd) 824. And that, as in the case of Johnston v. Shaffer, 74 Okla. 25, 176 P. 901, “Where written portion of an oil and gas lease is at variance with the printed part, the former should control and govern in the construction thereof as best indicative of the intent of the parties.” However, the unless clause of this lease was not without purpose, nor was its existence within the lease contract an oversight, for Barrett, lessor, who drew the lease, testified that he filled in that clause the date, by use of typewriter, just as he had written into the 88 form of lease the above-mentioned termination clause. It was in view of the provision continuing the life of the lease upon the payment of money in lieu of completion of a well prior to March 12, 1930, that the parties contracted. Thirty-six thousand dollars was spent by the owner of this lease in drilling a well and on February 28, 1930, the well *100 was flown to---the depth of about 3,000 feet and. on February ' 26th the contractual amount was tendered to the named deposi-: tory to defer completion of the well. Judgment reversed. LESTER, O. J., and SWINDALL, ANDREWS, and KORNEGAX, JJ., concur. HEENER . and McNEILL, JJ., dissent-. OLARK, V. O. J., and CULLISON, J., absent.