Dabney v. Key

STURTEVANT, J.

The plaintiffs commenced an action against the defendants to enforce a specific contract to make a lease of certain lands for the purpose of developing oil wells thereon. To the amended complaint the defendants interposed a demurrer and a motion to strike. The motion was granted in part and denied in part. On July 14, 1921, the demurrer was sustained and the plaintiffs were given ten days to amend. They did not amend and on August 16th an order was made awarding judgment in favor of the defendants for their costs. The plaintiffs have appealed from the judgment and have brought up the judgment-roll.

The motion to strike contained eight different assignments. It was granted as to assignments 5 and 7 and was denied as to the others. The whole of the amended complaint clearly shows that it was the theory of the plaintiffs that if a lease were made the same would run to J. B. Dabney as lessee and that the negotiations were carried on, at least in part, by Clifford R. Dabney acting as the agent for J. B. Dabney. Paragraph III alleged: “That at the time of the execution of said agreement to lease said

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J. B. Dabney, by and through said Clifford R. Dabney, paid to the defendants, and they still retain the sum of twenty-five ($25) dollars as consideration for the said agreement to lease.” Acting on assignment number 5 the court struck out the words, “by and through said Clifford R. Dabney.” The expression was but a probative fact not necessary to the sufficiency of the pleading and was properly stricken out. In paragraph IV, among other things, the plaintiffs had pleaded: “That the defendants then failed and refused to perform their said agreement to lease, and refused to execute to the plaintiffs or either of them any lease of said premises, and ever since have so failed and refused. [That defendants then repudiated their said agreement to lease, and declared to plaintiffs that the defendants were not bound by the same and would not perform.] That the plaintiffs and each of them duly performed all the conditions of said agreement to lease on the part of them or either of them to be performed, and that the plaintiffs and either of them since the time of said tender and offer always have and has been ready and willing to execute the said lease.” (Brackets ours.) Under assignment number 7 the court struck out the sentence inclosed in brackets. The sentence was clearly redundant and the court committed no error in striking it out. In the amended complaint the plaintiffs pleaded that the defendants are the owners of a certain tract of land in Los Angeles County; that on the fourteenth day of February, 1921, the defendants agreed in writing to execute a lease, “to contain the following terms and conditions: (1) Drilling to be started on or before six months from and after the date thereof; (2) rent to be $10 per acre per month payable monthly in advance during said term of six months unless drilling is started sooner, in which event, rent is to cease; (3) royalty to be the one-sixth part of all oil or gas obtained, saved and sold on or from said lands; (4) the said lease to be in other particulars the same as any usual and customary oil lease.” That plaintiffs paid $25 for the option; that on the sixteenth day of March, 1921, they tendered to the defendants a written lease which is set forth as an exhibit; that the defendants refused, and now refuse, to execute the lease so tendered and presented. They also plead “that as to the defendants the considera