The opinion of the court was delivered by: SORG
On November 2, 1935, Harry Faber White, plaintiff, and C. E. Updegraff entered into a written contract wherein the said Updegraff retained the plaintiff as attorney to represent him before the Federal Trade Commission and other federal agencies, as well as in negotiations with gas concerns for the sale of gas from wells controlled by the said C. E. Updegraff. Under the terms of the contract, Updegraff agreed to pay the sum of $ 50,000 for plaintiff's services 'contingent upon said Updegraff selling said natural gas from his well in said pool to the major concerns, any or all of them as said Updegraff may decide upon, it being understood that when it comes to the final say on whether or not a contract for sale shall be entered into that said Updegraff has the full and exclusive say is said matter.'
The contract provided that White should receive 10 percent of the sales of gas each month until the sum of $ 50,000 shall have been paid in full. It also described gas wells 'from which production shall be obligated for the payment of said sum of $ 50,000.00' and provided further as follows: 'It is understood and agreed that this contract shall bind the heirs and assigns of all parties and that all parties in interest who may own any of the gas of which this is the subject matter shall be fully bound as set forth in this agreement as made by Updegraff for himself and all others and with the said White.'
This contract was duly recorded in the office of the Recorder of Deeds of Potter County, Pennsylvania, in which County the leaseholds and wells were located, on April 6, 1936, in Miscellaneous Book A-3, page 124.
On June 1, 1940, C. E. Updegraff entered into an agreement to sell and deliver all of the gas produced from certain of the wells covered by the above mentioned contract to North Penn Gas Company, a corporation having its principal office in the Borough of Port Allegany, McKean County Pa. Subsequently, C. E. Updegraff died and his son, Charles H. Updegraff succeeded to his interests in the leaseholds and gas wells covered by the contract. Charles H. Updegraff then sold, transferred and conveyed the said leaseholds and gas wells to the defendant, New York Natural Gas Corporation, incorporated under the laws of the State of New York.
North Penn Gas Company paid to the plaintiff various sums representing 10 percent of the proceeds of the sale of gas from said gas wells up to the date of the filing of the complaint in this action, amounting to the total sum of $ 23,765.48.
On April 25, 1957, plaintiff filed his complaint against New York State Natural Gas Corporation, North Penn Gas Company and Charles H. Updegraff, praying for an accounting of monies of which plaintiff has been deprived by reason of the cut back in gas production, that the defendants be restrained from continuing to restrict the gas production of the wells and that a mandatory injunction be issued requiring the New York State Natural Gas Corporation to produce and the defendant North Penn Gas Company to receive and pay the defendant for his share of the full potential production of the said wells.
On May 17, 1957, the defendant New York State Natural Gas Corporation moved to dismiss for lack of jurisdiction on the grounds that there is no diversity of citizenship between the plaintiff and two of the defendants, North Penn Gas Company and Charles H. Updegraff. Plaintiff filed his motion to amend and drop from the record as parties defendant the North Penn Gas Company and Charles H. Updegraff.
On, december 12, 1957, this Court entered an order granting the plaintiff's motion to amend the complaint.
Defendant New York State Natural Gas Corporation filed its answer on January 24, 1958, and on June 6, 1958, it filed its motion for summary judgment in accordance with the provisions of 56(b) and (c) of the Federal Rules of Civil Procedure, 28 U.S.C.A., on the ground that the pleadings on file show that the defendant is entitled to judgment as a matter of law. In support of its motion, defendant New York State Natural Gas Corporation contends that the plaintiff's rights under the contract in question are either limited to the personal covenant of Updegraff or that at most, they constitute an equitable lien on the proceeds of sale of gas actually produced and that, therefore, he has no claim unless and until a fund does arise from the production and sale of gas.
It is not disputed that New York State Natural Gas Corporation acquired its interest with notice of the contract between plaintiff and Updegraff, as well as the contract of sale between Updegraff and North Penn Gas Company, and that, therefore, its interest is held subject to plaintiff's rights under the contract.
Pomeroy's Equity Jurisprudence states the following in connection with equitable assignments and equitable liens in Volume 2 at Section 373:
'The operation of the grand principle that equity regards that as done which in good conscience ought to be done is perhaps less immediate and evident in producing these species of equitable property, or interest, but is no less real and certain. In all these instances an equity exists between the two parties, growing either out of an assignment which at law creates or transfers no property right, either present or future, in the subject-matter, or out of an executory contract which at law only creates a personal demand, -- a mere right of action, -- and equity, laying hold of the obligation thus assumed by or imposed upon one of the parties, transforms it, so to speak, upon the happening of the contingent event ...