46 Ind. App. 193 | Ind. Ct. App. | 1910
Appellant withdrew her third paragraph of complaint, the court sustained a demurrer to the remaining four paragraphs, and judgment on demurrer was rendered in favor of appellee.
The ruling of the trial court in sustaining appellee’s demurrer to the first, second, fourth and fifth paragraphs of complaint, for want of facts, is questioned in this court by proper assignments of error.
The facts common to the first and second paragraphs of the complaint show that- on March 27, 1893, appellant was
“This memorandum of agreement made this 27th day of March, 1893, by and between the Indianapolis Gas Company, of the first part, and Margaret Bruce, of the second part, witnesseth:
The party of the first part agrees to lay a four-inch low-pressure natural gas pipe in the first, second and third alleys west of College avenue, between Bruce and Sutherland streets. Said party of the second part agrees to pay said party of the first part the sum of $40 for one connection to each of the lots numbered from 1 to 132, both inclusive, in the district piped under this agreement.
In consideration of $1, hereby paid by said first party to second party, said second party hereby sells, transfers and assigns to said first party the pipe-lines to be laid under this agreement. Said transfer shall be absolute and in effect without any further consideration or acknowledgment whatsoever.
It is further agreed and understood that said pipeline laid under this agreement shall become a part of the low-pressure system of said first party, and services shall be laid from main to property line free of charge when the consumers are ready to use gas. Gas shall be furnished to consumers upon the same conditions and terms and subject to the same rules and regulations as other consumers in the city of Indianapolis, Indiana.
Indianapolis Gas Co.,
Attest: Per John R. Pearson,
S. D. Pray, Secretary. Assistant to President.”
In addition to the facts before stated,' in the second paragraph it is alleged that in the year 1903 natural gas failed to such an extent that appellee could no longer furnish it to its patrons; that it then abandoned that part of its business, and thereafter had no natural gas in its mains, nor has it since carried on the business of supplying natural gas; that it is unable further to carry out its contract with appellant, to her damage.
The fourth and fifth paragraphs contain practically the same facts as those alleged in the first and second, except that in these paragraphs an oral contract is relied on, not materially differing from the stipulations in the written Contract.
Appellant bases her right of recovery upon the principle of law announced in Matthews Glass Co. v. Burk (1904), 162 Ind. 608. That was a suit by a window glass manufacturer for a balance alleged to be due from a purchaser upon a written contract providing that the glass should be paid for on receipt thereof. The glass was delivered at different times in carload lots. The court in construing that contract held that it was the intent of the parties that all glass should be paid for on delivery, and that such payment closed the transaction to that extent. Here it is contended that the contract, as in the case cited, was divisible, and that each connection was a separate transaction, although paid for in advance.
Appellant- admits that the failure of natural gas relieved appellee from the discharge of its obligation to make natural gas connections. But it is claimed, that under the ruling in the ease of Indiana, etc., Gas Co. v. Anthony (1901), 26 Ind. App. 307, appellee ought not to be allowed to retain something it received for nothing. We are not persuaded that the doctrine announced in either of the cases last cited controls the case before us. The case of Indiana, etc., Gas Co. v. Anthony, supra, was one to recover damages for the wrongful turning off of gas from a heating stove, also for injuries resulting from the alleged negligence of the gas
Appellant says: ‘ ‘ The failure of natural gas, of its natural supply, classed as an act of God, would relieve appellee from the discharge of its obligation to make natural gas connections.” By this statement appellant impliedly admits that the continued existence of natural gas was an indispensable element of performance of that part of the contract relating to the making of connections. Therefore, if performance depended on the continued existence of natural gas, and there is no provision in the contract for a substituted performance, “the existence of the means of performance is a condition without which, in the absence of fault, there can be no liability. This doctrine is very clearly stated in 2 Chitty, Contracts .(11th ed.) 1076, 1078, and the cita
In the case of Siegel, Cooper & Co. v. Eaton & Prince Co. (1897), 165 Ill. 550, 46 N. E. 449, it was said: “We think the law is, that where a contract is entered into with reference to the existence of a particular thing, and that thing is destroyed before the time for the performance of the contract, without the fault of either party, both parties are excused from performing the contract, but neither is entitled to recover anything for a part performance thereof.”
Judgment affirmed.