BRIDGEWATER GAS CO. v. HOME GAS FUEL CO., 59 F. 40

SEVERENS, District Judge, having made the foregoing statement of the case, delivered the opinion of the court. The leading questions in the case are involved in the cons traction of the contract upon which the action was founded, and will he dealt with in considering the instructions given by the court to the jury. We will first dispose of the allegations of error in the rulings of the court upon the rejection and reception of evidence. The defendant offered to prove by the witness Hice what was the expense of the pipe line to Youngstown which, the defendant liad laid down.

This evidence, upon objection by the plaintiff, was excluded by the court, and we think properly. It is argued by counsel for the plaintiff in error that this proof was admissible to rebul the imputation of bad faith and improper motive on the part of the Bridgewater Company in failing to furnish the gas. But the -action was founded updn contract, and the damages sought to be recovered were such as How from the alleged fact of failure to perform its stipulations. The motive of defendant in performing or violating its agreement was wholly immaterial.

The question in issue was whether it actually did the one or the other. Reference is made to the allegation in the petition that the defendant’s refusal was “with willful intent to violate the rights of this plaintiff.” But this is mere superfluity, and adds nothing whatever to the substance of the pleading. Guch an averment did not change the real issue1 which the court was required to try and determine. In cases of contract, as a general rule, the. law takes no notice of the motives of the defaulting party.

The intent cannot be averred in pleading, except as matter of form, nor evidence be given in regard to it. Sedg. Dam. (6th Ed.) pp. 36, 187, 188; 1 Greenl. Ev. § 51; Bromfield v. Jones, 4 Barn. & C. 380. It is also urged that, the proof offered would be persuasive1 evidence that the defendant, having so great an interest at, stake, would not, without good reason, abandon the performance of the contract. But such evidence was too remóle, and involved the necessity of considering too many other circumstances not relevant to the issue, to warrant its admission. 1 Greenl. Ev. § 448; Bank v. Stewart, 114 U.

S. 224, 231, 5 Sup. Ct. 845. It is next assigned as error that the court, against the objection of the plaintiff in error, admitted in evidence the contracts of July 1. 1887, between the Bridgewater Oompany and three of the rolling-mill companies mentioned in the principal contract. But, those contracts, besides bring contemporaneous with that in suit, and connected with it by mutual references, fixed the

schedule of prices to be paid by the rolling-mill companies for the gas to be supplied them, and this furnished the basis for estimating the value of the receipts which were1 to be divided between the parties 1o the contract, in suit, and were, therefore, competent evidence in respect to the damage's sustained from the defendant’s nonfulfillment. We see no reason to doubt that the ruling of the; court in the reception of -this evidence was right. Fpon the construction of the contract, on which the controversy mainly turned, the parlies differed widely.

The defendant, the Bridgewater Company, contended that the contract was to be construed as if the prior obligations of the company, which were known to the second party, were recited in the agreement, and its stipulations then read as subject to them. The court, in its instructions to the jury, seems practically to have adopted this view, and the defendant’s contention in that regard was satisfied. We are therefore not required to determine whether that construction was proper or not, the ruling being in the defendant’s favor.

The question left open to review arises upon the provision in the contract that the defendant should not be held liable for the failure of gas if that result happened notwithstanding the exercise of due energy and diligence in maintaining existing wells in good working order and in sinking new ones from time to time, as needed, in its present or future acquired territory. The defendant below contended that it was not bound to acquire the new territory in Allegheny county, and that, if it did, such acquisition not being obligatory, it was not bound to turn the supply from that territory into the Youngstown line.

The plaintiff insisted, on the contrary, that upon the acquisition of that territory, if it could, with a fairly reasonable effort and expense, having regard to all the circumstances, be brought into connection with the Youngstown line, it was brought under the operation of the contract, and the defendant was bound to exercise diligence and energy in sinking and maintaining its wells in that territory for the supply of the gas contracted for. The court agreed with the plaintiff in this construction, and instructed the jury accordingly. We think that this was right.

There was nothing in the contract which restricted the area within which the after-acquired territory might be located to Beaver county. The business of the Bridgewater Company was the production of gas, and its supply to distant localities. Yothing appears from which it should be necessarily implied that it was in the contemplation of the parties that its operations for supply should be limited to Beaver county.

It may be that the territory in the adjoining county of Allegheny was more nearly contiguous to, and even more conveniently operated in connection with, its fields in Beaver county, than other lands in the latter county which it might acquire. There is therefore no such limitation in the express terms of the contract, and there is nothing in the nature of the circumstances as shown by the proof, from which the court would be justified in interpolating it by implication.

We think the limitations put by the court upon the liability of the defendant to use its gas fields in Allegheny county to contribute to the supply of gas under the contract were sufficiently favorable to the defendant.

The court, after giving full instructions to the jury upon this subject, and explaining the rights and obligations of the parties under the contract upon the construction which we hold to be the proper one, yielded to a request of the defendant to charge the jury as follows: “If the jury shall find from the evidence that, after the parties entered into the written contract in question in this action, the defendant company found, procured, and developed a natural' gas field or territory in the county of Allegheny, no part thereof being in the county of Beaver, and did connect the same by pipes with its other natural gas field! within Beaver county, in order to increase its supply of natural gas for general distribution, as well as the supply to the plaintiff company, then the court charges you that so doing would not change in any manner, in the absence of a new or additional contract or agreement between the parties, the obligations of defendant under the written contract originally entered Into by the parties, so as to require defendant company to continue such supply from such natural gas field outside of Beaver county to plaintiff.

The original contract being specific and unambiguous in its terms with respect to the fields to be drawn on for a supply of gas, its provisions cannot be changed by the acts of the parties, under it, unless such acts amount to a new or different or subsequent agreement for some valid and new or additional consideration.” It is now insisted that the charge of the court was inconsistent, that the law was rightly stated in the request of defendant, and that the previous instruction of the court was therefore wrong.

We do not agree to this, and, for the reasons already stated, think that the defendant was not entitled to this instruction. But though we think it was error to give it, it is clear that the defendant, having invited the court to do so, is not in position to complain of it, or allege for error any inconsistency produced thereby. Upon the whole record we are of the opinion that the defendant has no reason to complain either of the result or the rulings upon which it was reached. The judgment must be affirmed, with costs.