Work v. Fidelity Oil, Gas & Mineral Co. , 79 Kan. 118 ( 1908 )

The opinion of the court was delivered by

Smith, J.:

The plaintiff assigns as error the exclusion of certain evidence offered by her, but in her brief she does not specify the portions of such testimony to which objection is made. She also claims as error the admission of evidence offered by the defendants, and refers to pages of the record. In the review of cases this court now looks only to the abstract.

The defendants, if there are more than one, devote practically their entire brief to the discussion of alleged errors of the court against them. It does not appear that they filed any motion for a new trial below, or that they filed any cross-petition in error in this court. These questions are not, therefore, pending here. Since the plaintiff fairly challenges the sixteenth finding of fact as not sustained by the evidence, and the defendants abstract no evidence in support thereof, this contention is sustained. .(Railway Co. v. Conlon, 77 Kan. 324, 94 Pac. 148.)

It does not follow therefrom that the court erred in the fifth conclusion of law. The court decided as a matter of equity and good conscience that the cancelation of the lease, which the plaintiff prayed for, should be treated as an expiration of the lease under the terms thereof, and not such a termination as would forfeit to the plaintiff property of great value placed on the premises by the lessee. It is an equitable suit to set aside and cancel a lease before its expiration by lapse of time. The court found that the lessee had bored on the premises eleven wells, nine of which at the time of the commencement of the suit were “producing wells averaging in capacity and output with oil-wells generally in the Humboldt district, in which the lands in controversy are located.” The court also found that the defendants had “in good faith . . . expended in the purchase of machinery, casing, tubing, boilers, engines, shackle-rods, tanks, tools, fixtures, and in the building of structures necessary for the development of said tract of land, approximately the sum of $20,000, and the further sum of about $4200 in wages and expenses in that regard.” The court set aside the lease and awarded the possession of the premises to the plaintiff, and enjoined the defendants from interfering therewith, except to remove from the premises certain specified machinery, buildings, tanks and the casing in dry wells.

The lease was set aside on account of the failure of the defendants to comply with certain conditions thereof, and according to the letter of the contract the defendants forfeited to the plaintiff thereby all of this machinery, buildings, etc. There is no contention but that the plaintiff had received the agreed royalty upon all the oil the defendants had produced upon the premises, and at a rate, as claimed by the defendants, considerably in excess of the customary rates in the district, and she is left nine producing oil-wells, cased and in good condition. We think the court of equity was amply justified in refusing to require the defendants to forfeit to the plaintiff $20,000 worth of other property, even though the letter of the contract so provided. Neither law nor equity favors forfeitures. The plaintiff had, but a short time before the bringing of the suit, waived the forfeiture of the lease, which she might have claimed by reason of the partial failure of the defendants to perform the conditions thereof. The defendants thereupon resumed the operation of the producing wells, but because of their failure or refusal to bore other wells the plaintiff asked a court of equity not only to cancel their lease and to enjoin them from operating the wells they had produced but also to forfeit to her $20,000 worth of machinery, buildings, etc.

In granting equitable relief under a contract the court should go only so far as is just and equitable, and neither in law nor in equity can a party enforce an unconscionable contract. This proposition is so universally recognized that no citation of authorities is deemed necessary.

The judgment of the court is affirmed.