160 Ind. 232 | Ind. | 1903
Suit by'appellee to recover on account for natural gas sold and delivered to appellant on a written contract. The written contract relied upon is in these words: “Agreement made and concluded August 7, 1899, by and between the Heat, Light & Power Company of first part, and the Palmer Steel & Iron Company of second part, all of Muncie, Indiana, withesseth: That for and in consideration of the payments and rentals to be paid by the second part, as hereinafter mentioned, and in the time and manner hereinafter stated, the first part agrees to allow second part to make connections to first part’s high-pressure city lines at the corner of Willard and-streets, and use gas therefrom for heating, lighting, and manufacturing purposes in the second part’s iron mill located at -street in the southeastern part of the city, at the rate of seven cents per thousand feet discharge from first part’s line where said connections are made, viz., at Willard and-streets; the gas to be used by meter
It is alleged in the complaint that it was the intention and agreement of the parties to the contract that the plaintiff the Heat, Light & Power Company was to, and did, obligate itself to supply gas to three puddling furnaces located on the north side of the defendant’s mill, and no others, but by mutual mistake of the parties and the scrivener who wrote the contract, a provision that gas should he furnished only to said three north furnaces was, by mistake and inadvertence, wholly omitted 4from the contract as written, and the writing was accepted and signed by the parties as expressing.the contract, believing that said provision was incorporated therein; that the plaintiff did attach the defendant’s system of mill pipes with the plaintiff’s high-pressure gas-main, so that gas could be supplied to said three north furnaces; that the defendant had three puddling furnaces located on the east side of its mill building, which were also connected with its system of gas-pipes about said mill, and when gas flowed into the mill pipes the only way to exclude it from said three east furnaces was by closing a stopcock set in one of the pipes, anil which said stopcock, under said contract, was to he closed and kept closed during the continuance of the contract; that on the-day of August, 1899, the plaintiff turned gas into the mill pipes, and the said stopcock was secretly opened, and the gas flowed to, and supplied, said three east furnaces as well as the three north furnaces, thereby supplying six of the defendant’s furnaces, instead of three as provided by the contract, for forty-three days in August and September, 1899; that under the contract the plaintiff was to receive $30 for each and every day gas was furnished to said three north furnaces, and the gas so obtained by the defendant for use in said three east furnaces was reasonably worth $i20 per day for each day so used (a bill of
Exhibit A sets forth in detail the account sued on, and contains an item of $9.95 for making the connection between the defendant’s mill pipes, and the plaintiff’s gas-main, and forty-three per diem items, stated thus:
August 9. To gas for one day for three furnaces on north side of mill as per contract . ..................i.....$30.00
To gas taken to east side of mill... . $20.00
-- $50.00
August 10. To gas for one day for three furnaces in north side of mill as per contract.................. $30.00'
To gas taken to east side of mill. ... $20.00
- $50.00
Etc., etc., making total of......... $2,154.95
Credited by payments..................... $199.95
Leaving the balance due and unpaid..........$1,355.00
The defendant answered by a general denial and payment. Trial by the court. Special finding, conclusions of law, and judgment in favor of the plaintiff for $591.59.
The sufficiency of the complaint, the action of the court in overruling appellant’s motion for a new trial, in overruling its exceptions to the conclusions of law, and in overruling its motion in arrest of judgment, are properly assigned as error.
The substance of the special finding is as follows: The plaintiff is an Indiana, and defendant an Illinois, cor
The first assignment is not well taken. Appellant submits that the complaint, being a suit for specific equitable relief, is not sufficient to sustain a money judgment founded upon facts cognizable only by a court of law. We perceive no infirmity in the complaint. This is a suit to recover the price of property sold and delivered under a contract in writing. The ultimate relief sought is exclusively pecuniary, but it is made to appear that such relief can not be adequately administered without a reformation of the writing in such way as to make it speak the truth with' respect to the contract that was actually made. The action
A more serious question arises upon the overruling of the motion for a new trial. Appellant insists that the complaint is drawn and that the trial proceeded on the theory that appellant was liable for gas at a per diem rate of $3$ for the three north furnaces, and a quantum valebat for the east furnaces, and that, under the theory adopted, the special finding that 19,737,000 feet of gas, worth seven cents per 1,000, was furnished the defendant, was unauthorized and ineffectual, and that the assessment of the amount of damages was too’ large. The contract stipulates that payment for the gas shall be at the rate of $30 per day until a meter is furnished by one party or the other. The complaint alleges that no meter, was at any time furnished by either party, and, therefore, under the contract, the plaintiff was to receive $30 for each and every day gas was furnished to said three north furnaces, and the gas so obtained by the defendant and used in said east furnaces was reasonably worth $20 per day. The bill of particulars accompanying the complaint sets forth the claim, exclusively, except one small item for making the connection, as com
Accepting appellee’s contention does not free the case of embarrassment. It seeks by its complaint to recover $30 per day for all gas furnished under the contract to the north furnaces, and the reasonable value of gas wrongfully appropriated and used by appellee in other furnaces. The burden of both issues was upon appellee. It was not entitled to recover for gas wrongfully taken until it had established that some was so taken. The finding of the court is that the defendant used the plaintiff’s gas for thirty-two
Thirty-two days supplying of gas to north furnaces at $30 per day..........................$960.00
Credit by payments on account before suit....... 799.95
Balance due plaintiff...................$160.05
The finding by the court of the quantity of gas used, under the contract, and its value, was not within the issues, and must be disregarded. Kitts v. Willson, 130 Ind. 492, 497; Louisville, etc., R. Co. v. Davis, 7 Ind. App. 222, 239; Woollen, Trial Proe., §4334; Elliott, Gen. Pr., §977.
Therefore the finding of the number of feet of gas furnished the defendant, and that it was of the aggregate value-of $1,381.54, must be regarded as surplusage, because no such finding was called for by any issue in the case; and the further finding that the plaintiff was entitled to recover said amount, less the payments made thereon, $799.95— to wit $581.59 — must be held to be excessive and erroneous.
It thus appearing that the finding and judgment, resulting from- an erroneous view of the pleadings and issues, is excessive, the judgment is reversed, and cause remanded, with instructions to grant appellant a new trial.