Fletcher v. Allen

SHAW, J.

The purpose of this action was to have certain property and rights therein, legal title to which was vested in defendants Warring, Arundell, and Narver, declared to be the subject of a trust in favor of plaintiff.

Judgment went for defendants, from which plaintiff has appealed.

[776]

On November 1, 1910, the Southern Refining Company leased certain prospective oil lands, of which it had the possessory right, to Defendants Warring,- Arundell, and Narver. The lease provided that the lessees should, at their own expense, keep up the assessment work on the lands as required by law, and further provided that in case they should fail to commence operations under the terms of the lease by July 4, 1911, they should pay to the lessor the sum of $100 per month for each and every month in which they should make such default in the commencement of operations. The lessees made default in performing the covenants of the lease, and thereupon the lessor, on March 6, 1913, by written instrument transferred and assigned the lease, together with all rights of action arising from the breach thereof, to F. H. Allen who, on March 13, 1913, instituted an action against said lessees to recover as damages the penalty of $100 per month accruing prior to such time. A judgment therein for the sum of $2,469.38 was rendered against defendants, from which they prosecuted an appeal. Thereafter, and while this action was pending on appeal, Allen instituted other actions to recover against defendants for the penalty of $100 per month, in all of which plaintiff acted as his attorney. While these actions were pending, Allen, on March 17, 1916, by written instruments, sold, transferred, and assigned to Warring, Arundell, and Narver all his right, title, and interest in the lease so acquired 'by him from the Southern Refining Company, together with all right and interest in pending actions arising out of or under the terms of the lease, and entered satisfaction of.the judgment in his favor, from which defendants had appealed, for all of which and in consideration of the full acquittance granted to defendants, they, in the nature of a compromise, paid him the sum of $2,469.

As stated, the Southern Refining Company, by a naked assignment in writing, transferred all its interest in the lease to Allen on March 6, 1913. On August 1, 1914, an instrument to which Allen, Bacigalupi, and plaintiff were parties was duly executed, the effect of which was to _ employ plaintiff as attorney not only in pending litigation therein referred to, but “in all further suits, settlements, or compromises in connection with the contract” in question, and whereby, among other things, it was agreed that out