American Window Glass Co. v. Williams. such use of gas therefrom began, during the term specified in the lease. The term mentioned as such specifically in the habendum was a term of ten years from the date of the contract. It was further provided that the lessee should have and hold as much longer than ten years as gas should be found in paying quantities, or the rental should be paid as provided for in the lease. It was not contemplated that the lease should continue without rent. The rent of $50 per annum would not continue, in any event, longer than ten years; and the rent at $100 per annum would not commence until the lessee should begin to use gas for manufacturing purposes. Within the period of the definite term of ten years the lessee might drill a well, and cap and anchor it, and preserve the gas, and save itself from the obligation to pay the rental of $100 per annum, being obligated only for the rental of $50 per annum. The contract should be construed upon the theory that the parties intended its provisions to be consistent with each other, and they should be made to harmonize, if possible, by keeping in view the controlling intent. If at the end of the definite term no well had been drilled, there would be no provision for rent thereafter. The rent of $100 per annum could not commence with the mere drilling of a well capable of producing gas in paying quantities for manufacturing purposes, and the appellee was not bound to be content with a rental of $50 per annum longer than the ten years. If, at the end of ten years, such a condition had not arisen pursuant to the terms of the contract as to entitle him under the contract to the larger rental, he was not bound by the contract for a longer period than the ten years. He might rightfully then regard the principle and essential consideration of the contract as having ceased to be longer existent, and might relinquish the incidental benefit of free gas for his dwelling-house, and declare the contract ended. The hardship suffered through the large expenditure for Huston v. Fatka. the well was imposed by the appellant upon itself. The appellee could not forbid the drilling of the well within the term of ten years, when it was drilled. If the appellant had at once commenced to use the gas from the well for manufacturing purposes, and thereby, before the ending of the period during which it could retain its rights under the lease by paying an annual rental of $50, had created a relation under which the larger rental would be payable, it would have obtained the benefit of its expenditure for the well. This was a matter within the control of the appellant, wherein it was not and could not be influenced by the conduct of the appellee. The land with the well upon it being the property of the appellee, he had the right to use the gas from the well without incurring obligation under the contract to the appellant. Whether or not the appellant may recover compensation for the materials left by it in or about the well, or may remove such materials, are not questions in this case. Judgment affirmed. HUSTON V. FATKA ET AL. [No. 3,962. Filed January 29, 1903. Rehearing denied April 3, 1903. [ BILLS AND NOTES.—Assignment.—Action Against Assignor.—Res Judicata. The assignee of non-negotiable promissory notes brought suit thereon and for the foreclosure of a mortgage securing the same, and made the assignor a party, asking a personal judgment against him as indorser. Foreclosure was had, but no personal judgment was rendered, and the property failed to sell for a sum sufficient to satisfy the judgment and costs. Plaintiff subsequently brought suit to review the judgment on the ground that the court erred in failing to render a personal judgment against assignor, but judgment was rendered for defendant. Held, that said judgments did not constitute a bar to an action against the assignor. pp. 694-702. SAME.-Assignment.-Nonresidence of Maker.-Action Against Assignor.— Where the maker of a promissory note resided in this State at the time of the assignment of the note, but thereafter became and continued to be a nonresident, the assignee of the note is not re Huston . Fatka. quired to sue the maker outside of this State, nor resort to attachment of his property in this State before suing the assignor. pp. 702, 703. APPEAL AND ERROR.-Briefs.-Errors assigned upon the rulings of the court on demurrers to certain answers and replies will not be considered, where such matters are not presented by "a concise statement of so much of the record as fully presents every error and exception relied on," etc., as required by rule twenty-two of the Appellate Court. p. 703. From White Circuit Court; T. F. Palmer, Judge. Action by David J. Huston against Frederick Fatka and others. From a judgment for defendants, plaintiff appeals. Reversed. C. W. Hanley, J. J. Hunt, W. E. Uhl and E. B. Sellers, for appellant. Frank Foltz, C. G. Spitler, H. R. Kurrie, William Cummings and William Darroch, for appellees. BLACK, P. J.-The appellant brought suit, June 10, 1899, to recover from the appellee Fatka, as assignor by indorsement in writing of certain promissory notes, not payable in bank. Other. persons were made parties, who are named here as appellees, but the contention here is between the appellant and the appellee Fatka. Issues formed were tried by the court and a special finding was rendered, substantially as follows: July 18, 1895, one Jones executed to Fatka five promissory notes, each for $500, with interest at the rate of seven per cent. per annum, payable annually, and attorney's fees, the notes being due, by their terms, March 1, 1897, 1898, 1899, 1900, and 1901, respectively. At the same time, Jones, being then the owner of certain real estate, described, in Newton and Jasper counties, executed a mortgage thereon, his wife joining, to Fatka to secure the payment of the notes. The mortgage with the acknowledgment thereof is set out in the finding. It contained among its provisions the following: "It is hereby agreed that if default be made in said principal or interest notes, or any part thereof, or the in Huston v. Fatka. terest thereon, as specified for the payment thereof, the whole of said principal sum with interest thereon shall immediately become due, and this mortgage may be foreclosed at the option of the mortgagee. But the omission of the mortgagee to exercise this option at any time or times. shall not preclude said mortgagee from the exercise thereof at any subsequent default or defaults of the mortgagors in payment as aforesaid, and said mortgagee is not required to give any written notice or other notice whatsoever as to the exercise of said option, but may proceed at any time or times without notice to foreclose hereon." The mortgage was duly recorded in Newton and Jasper counties. On September 27, 1895, Fatka assigned the notes and each of them to the appellant, by writing his name, "Frederick Fatka," on the back of each of them, and he also executed an assignment of the mortgage to the appellant, the assignment being made upon the back of the mortgage and duly acknowledged, and it was recorded in Newton county, January 2, 1896, and in Jasper county, December 30, 1896. July 21, 1896, Jones paid the interest which fell due July 18, 1896, being the first annual instalment of interest accrued on the notes, the payment being made to a certain bank in Rensselaer, Indiana, in the absence of the appellant, and the amount so paid was placed to his credit in the bank, and was afterward checked out and used by him; but he did not know that this instalment of interest was paid on July 21, instead of July 18, 1896, until the date of the commencement of this suit. The notes had been left by him at the bank for payment. Neither at the time of the payment of this instalment of interest, nor subsequently, at any time prior to March 1, 1897, did he declare the entire debt secured by mortgage, or any part thereof, due. March 1, 1897, the first note became due, and it remained unpaid until April 6, 1897, when the appellant elected to declare all of the notes due, and on that day he commenced suit in the Newton Circuit Court to forerclose the mortgage, and Huston v. Fatka. filed a complaint, which is set out in full in the finding. The appellant was the plaintiff therein and he made Jones and his wife defendants, also one Sanford, who was alleged to be the holder of a prior mortgage; also certain persons alleged to have received conveyances of the land subsequent to the mortgage to Fatka; also a person alleged to occupy the land as tenant; also the appellee Fatka, as to whom, after alleging the execution to him of the notes and mortgage, described and exhibited, and the acknowledgment and recording of the mortgage, it was alleged that the ap pellee Fatka indorsed and assigned said notes and mort gage to the appellant on the 27th day of September, 1895; the recording of the assignment in mortgage record, etc., also being alleged. The prayer was for judgment for $3,500 and the foreclosure of the mortgage and the sale of the real estate, etc.; also that the plaintiff therein "have personal judgment against the defendant Frederick Fatka." It was further stated in the special finding herein, that at the time of the filing of the complaint in the foreclosure suit, Jones and wife were nonresidents of this State, and had no property in this State subject to execution; that the plaintiff in that suit caused a summons to issue to the sheriff of Newton county, Indiana, for the defendant Jones, and it was served on him by reading at his home in the state of Illinois, where he then resided, and where he had resided since the year 1896, and due proof of such service was made and filed in the Newton Circuit Court, showing service on Jones more than thirty days prior to the return day of such writ, which was May 17, 1897; also that the plaintiff in that suit caused a summons to be issued for the defendant Frederick Fatka by the clerk of the Newton Circuit Court to the sheriff of Jasper county, Indiana, which was by that sheriff served on Fatka, April 15, 1897, more than ten days before the return day, May 17, 1897. It was further stated in the special finding that it was not alleged in the complaint in the foreclosure suit that the |