45 Ind. App. 613 | Ind. Ct. App. | 1910
On March 33, 3905, appellee’s decedent brought this action against appellant, to recover damages for the alleged breach of a covenant in a contract to furnish gas free for use in the dwellings on certain land. Prom the complaint it appears that continuously since January 6, 3.900, appellee’s decedent was the owner of a certain described 112-
The vendee had twelve months* from July 25, 1889, to drill a well, “or thereafter pay a yearly rental of $56” until a well was drilled. Should oil be found the vendor was to have a certain portion of it, and in ease gas was found he was to have $200 yearly for each well from which gas was transported off the premises. The fourth and ninth clauses of the contract are as follows:
‘ ‘ (4) First party shall have, free of expense, gas from the well or wells, to use at his own risk, to light and heat the dwellings now on the premises, with pipe to conduct the same to said dwellings free of cost. * * * (9) Second parties agree to furnish gas to first party for use at his premises on or before November 15.”
No well was ever drilled on said land. The yearly rental of $56 was fully paid. Appellant refused to furnish appellee’s decedent with gas for use in the dwelling, under the terms of the fourth and ninth clauses of the contract, and for this failure and refusal damages are demanded. Appellant answered in three paragraphs: (1) A general denial; (2) payment; (3) that by the provisions of clauses four and nine of the contract appellant was not bound to furnish appellee’s decedent gas, except from wells drilled upon the premises; that no wells were drilled; that appellant was prevented by appellee’s decedent from putting down a well, by denying its right to enter upon said land under the contract, and on December 17, 1900, brought a suit in the Madison Circuit Court against this appellant for the cancelation of said contract, asking that said contract be declared null and void and that his title be quieted as against it. On change of venue that suit was tried in the Grant
Several errors are here assigned, but appellant states its contention as follows: ‘ ‘ The sole question presented to the court in this case for argument is, Can a party, as appellee did in this case, wholly repudiate a contract which required a certain service to be performed, and keep up that repudiation, by obtaining judgment of court in his favor, for a number of years, and then collect damages because the service was not rendered?”
From the undisputed evidence in the record it appears that James W. Lee became the owner of the land in question on January 6, 1900. He resided upon said land and occupied it as a home with his family during all the time from the date of purchase up to the time of the trial. At the time he purchased the land it was subject to the contract in suit. ' No gas well had ever been drilled upon the land described in the contract. The “yearly rental of $56” had been paid by appellant. On March 6, 1900, Lee, by his attorney, made a demand upon appellant to furnish him with gas, as provided in clause nine of said contract, and in case it failed to do so, or to make satisfactory arrangements in regard thereto, he would consider the contract forfeited. On August 24, 1900, he requested appellant to surrender and release of. record
The complaint, and other proceedings had in the case commenced December 17, 1900, were admitted in evidence, and by reference thereto we find that one paragraph of that complaint counted upon appellant’s failure to furnish gas for fuel and lights from January 6, 1900, to the beginning of that suit. This court held that complaint sufficient to withstand a demurrer for want of facts. The decree in that ease was reversed because of the insufficiency of the second and fourth paragraphs of complaint. Indiana Nat. Gas, etc., Co. v. Lee (1904), 34 Ind. App. 119. Appellant has at all times insisted and still insists that the contract in question is valid and in full force‘'and effect, but denies any liability under clauses four and nine, for the reasons before stated.
No question is here made that the landowner in this case had waived the provision in the contract to furnish gas; but, on the contrary, it appears that for eleven months prior to December 17, 1900, he was demanding from appellant gas for fuel, as stipulated in the contract. It is clear, as disclosed by the record in this case, that the suit commenced December 17 was prompted and incited by appellant’s failure and refusal to perform a positive agreement. A party should not be permitted to take advantage of his own default to defeat a liability created solely by such default, and such would be the effect of the rule which appellant insists that this court should declare. Appellant’s reasons in support of this appeal are not well grounded.
Judgment affirmed.