Burrows

This is an appeal by the defendant from a judgment against it for forty thousand dollars as damages for a breach of contract. The contract was one between the plaintiff Burrows and the defendant, and the other two plaintiffs are interested only as assignees of Burrows of partial interests under the contract. For simplicity in discussion, we shall treat the action as one by Burrows as sole plaintiff. The facts are:

In May, 1909, Burrows held five options for the purchase of adjoining tracts of land in the vicinity of the Kern County oil field. The land had not been explored for oil. Bach of the options specified the amount to be paid as purchase price and the time within which it had to be paid. One of the options, which we may call option A, contained no provision for drilling, but each of the others provided as a condition of its continuance during the term specified that the option-holder should immediately begin and diligently prosecute the drilling of a well on the land covered by option A.

Shortly after acquiring these options, Burrows assigned them to the defendant under the contract involved here. That contract provided, in effect, that the defendant should immediately…

I concur in the judgment for the reasons

stated in the main opinion, and for the further reason that if we assume, as the respondent contends, that the agreement required the appellant to sink the well to a depth of two thousand five hundred feet, the damages for breach of such an agreement, under the circumstances stated, are too speculative to justify a recovery of substantial damages. In this case the well was sunk within fifteen feet of the required depth, oil was struck, and property values were correspondingly enhanced, and upon the strength of that showing the appellant exercised the options and conveyed to the respondent all the land it was required to convey in the event that the well had been completed or oil struck in paying quantities. If the well had been sunk fifteen feet deeper, it would either have enhanced or depreciated the value of the surrounding property, and the question of whether it would enhance or decrease such value is purely speculative. (Escondido Oil Co. v. Glaser, 144 Cal. 494 , [ 77 Pac. 1040 ]; McComber v. Kellerman, 162 Cal. 749 , [ 124 Pac. 431 ]; Taylor v. North Pacific Coast R. R. Co., 56 Cal. 317 .)

Lennon, J., concurred.