Koeberle v. Hotchkiss

[253]

SCOTT, J.,

pro tem.

Plaintiff sued to recover for services rendered to defendants in connection with certain oil-hearing property owned by them and leased to a corporation to enable the latter to produce therefrom oil and gas. From judgment for plaintiff this appeal is taken by defendants.

It is first contended that “the trial court committed prejudicial error in refusing to permit defendants to show the true consideration for plaintiff’s agreement” under the terms of which the latter recovered. The agreement between the parties, dated October 3, 1921, recited substantially that in consideration of ten dollars and for valuable services

rendered

by J. E. Koeberle in connection with the leasing of the land in question, by defendants to said corporation, defendants “agree and shall pay to J. E. Koeberle, his

heirs, executor, administrator

and assigns ten per cent of the full amount of cash and oil bonuses when and as received by us or either of us account of said lease and ten per cent of any and all royalties” so received. The lease was executed next day by defendants and said corporation; the latter entered into possession of the property, drilled wells and produced and saved oil and gas, and said corporation and its assignee paid royalties when due, up to August 20, 1928. Notice of cancellation of the lease had been served on the corporation August 17, 1928. Royalties were paid by the corporation to defendants on the twentieth day of May, June, July and August, respectively, in 1928, being in such sums that ten per cent thereof would equal the amounts to which the court found plaintiff was entitled under his contract and for which he recovered judgment. Defendants resisted payment of these amounts and claim that the contract between them and plaintiff was not correct in referring to the latter’s services as having been rendered in the past; that the true consideration for the agreement was intended to be continuing services rendered by plaintiff during the life of the lease, and that since he had not been rendering such services during the time that these last four installments of royalty were being earned and paid, he was not entitled to his ten per cent of them.