Melatiah H. Lawrence, Respondent, v. Stephen W. Van Deventer, Appellant

Melatiah H. Lawrence, Respondent, v. Stephen W. Van Deventer, Appellant. (Argued January 15,1873; decided March term, 1873.) This action was brought to recover back moneys paid to defendant upon two contracts, plaintiff claiming to rescind upon the ground of defendant’s non-performance. Defendant had a lease of certain lands in Yenango county, Pennsylvania, for the purpose of boring for oil, by which he was bound to commence on the 10th January, 1865, and bore, or cause to be bored, a well of sufficient depth to obtain oil. On the 30th December, 1864, defendant made a contract with' one Armstrong, by which, in consideration of $500 paid, he agreed to sell Armstrong one thirty-second part of all the oil produced, and agreed to put down one well 650 feet deep, unless he struck oil in paying quantities at a less depth. He also entered into a similar contract with plaintiff, upon which the latter paid $250. By this contract defendant was to put down one well to a sufficient depth to obtain oil, if any could be found. Defendant made efforts to find oil, and failed. He never, however, dug a well to the depth of 650 feet. Armstrong and plaintiff tendered to defendant all the interests conveyed to them, and demanded the money paid. Armstrong assigned his claim to plaintiff. The court below found that defendant had not fulfilled his contracts, “ but failed in every part thereof.” Meld, that the finding was justified, and that plaintiff was entitled to recover -the amount paid upon the contract. David B. Prosser for the appellant. Morris Brown for the respondent. [MAJORITY — Reynolds, C.,] Reynolds, C., reads for affirmance. All concur. Judgment affirmed.