Wheeling register. [volume] (Wheeling, W. Va.) 1878-1935, 1890-12-27
InHN M,KEoMN WINS.
A Lessor Cannot Collect leu Dollars
Day Rental Without Rendering an
Equivalent.

Equivalent.
Puf.5ug Commercial Gn-s1s.
Some time ago the Commercial Gazette
noted the fact that John Mckcown
had had Judgment rendered against him
IN an Ohio court iu the sum OF
-, 800 and costs at the suit OF Joseph H..
Dcuham. who sued for the payment Of
rentals refused by MckcOwn. Ia May,
iSSg. Dcuham leased his farm, near
Glencoe, % Mckcowu, ON which 10 drill
for OH or gas OF both. y well was 90 bc
started within seventy days OF the date
OF the lease otherwise the latter should be
void 4 well was not started i'm the time
spccifed. and Denham, iu consideration
OF $50 paid by MckeOwn, renewed the
lease for seventy days more. No well
was started in that time either, and
Denham agreed 20 extend the time
again. McKeOwn agreeing to pay $40 a
day for the privilege until IN could
start. He was then drilling 4 well on
the sutton farm, on location $50 yards
from the Denham line. This well was
completed ina October, ls>I, and was "A
failure. McKeOwn then, after grading
for rig and paying four days rental at
StOa day, left the field and refused to
pay further rent. In April 1890. Dem
ham sued Mckeown for the amount
named. which he claimed was due on
the agreement. The latter answered
that a fair test had proved that there
was neither oil or gas under the
Denham farm, and that the agree
ment had become null aud void,
as 20 both parties by its own terms
The case was tried in the Common
Pleas Court. As already related, and was
Stubbornly contested. The Judge re-
fused to'charge the jury, rs requested by
McKeown'> attorneys, thata IL there was
neither gas nor oil under the premises
the plaintiff could not recover. The
trial resulted ia verdict for the plain
iii. i'm the amount Of the claims and
costs. amounting To S2,l20. Mckeown
took exception TO the Judge refusal tn
charge as requested and took an appeal.
Below is a synopsis of the opinion OF the
/ Circuit Court, rendered by Judge
/ I.aubie. in reversing tbs Court OF Com
mon Pleas:
That the extension Of the lease vas
mere proposition ON thu part OF th'
/ DenhamS that the lease might be kept
alive by Mckeown paying $40 per day
until he started well on the premises
that McKeown did not in that eNten
sion. expressly promise or agree 10 star
/ q well or pay the $40 per day, and
while he could by paying the $40. keel
alive the privilege originally granted IN
the lease for so long a time Is he paid
vet when he ceased TO pay, that put al
end 10 aud determined the lease, and nc
l cording 20 its terms, when II ceased Il
be of force or effect, neither party Ma
I to have any right of action against th'
other; ana hence plaintiH coui'
not recover. But whether that propO
Sition is correct or not. 10 Is plain that th'
Court below erred in not giving To tn
nrv the instruction asked by Mckeown'
counsel To the effect that if the jury
should lind from the evidence that ther'
WAS neither oil nor gas on the land. Tn
plaintif could not recover. This IN
Structiou should have been given, as TIT
$40 per day 10 be paid, was supply n
consideration of retaining the priviles
LOT testing the land for OF or gas, ana !
I'm were SnONN tnAS NSitNVy 81 @eS "a
, was on or i'm the land. it would be
worthless privilege for which the part
could not b. compelled TO pay. In sue
event il would be of no benefit To- clthe
party 10 maize the test. aud not maxim
81 il therefore ought t. produce no leg
injury to either. In this respect IN
ease cannot be distinguished from Coo
Is. Andrews. SO Ohio state Reports L.
and Friedrich Company IS. Pond, +
q. :. 80. Aud on theauthority OF theS
cases the Judgment of the Court belo
Is reversed and the cause remanded IL
retrial.