Bardeen v. Commander Oil Co., Ltd.

McCOMB, J.

From a judgment in favor of defendants after trial before the court without a jury in an action to quiet title to a leasehold estate and for an accounting, plaintiff appeals.

So far as material here, the essential facts are:

August 23, 1938, plaintiff commenced the present action, which is in three counts. The first is a simple cause of action to quiet title to a leasehold. The second is the same as the first, except that it alleges a number of defaults by defendants. The third is substantially a repetition of the second cause of action with the addition of paragraphs relative to a request for an accounting by reason of defendants’ alleged unauthorized occupancy of the property involved. The master lease, which is the basis of the instant suit, contained the following provision :

“ ... In the event said first well shall produce more than one hundred (100) barrels, and legs-than two hundred fifty (250) barrels per day over a period of the first thirty

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(30) days after production is reached, the party of the second part shall pay to the party of the first part the sum of FIFTY THOUSAND AND NO/lOO DOLLARS ($50,000.00) payable out of twenty-five percent (25%) of the total amount of oil produced from the said well or other wells thereafter drilled.”

Plaintiff in the instant suit pleaded a waiver by the interested parties of a full production test as required by the terms of the master lease and acceptance by the interested parties of their observations of a partial production test as being sufficient to mature the obligation contained in the master lease as set forth above. Defendants denied the allegations of waiver and acceptance. The trial court failed to find on either of such issues.

This is the sole question necessary for us to decide:

Was

it prejudicial error for the trial court to fail to malee a finding upon the issues of waiver and acceptance as pleaded

supra

and denied ly defendants?

This question must be answered in the affirmative. The law is established in California that it is prejudicial error for the trial court to fail to make a finding upon a material issue presented by the pleadings, where it appears from the record that there was substantial evidence introduced upon such issue which would have sustained a finding in favor of the appealing party