Bruce v. Indianapolis Gas Co.

• Decision Date: 21 June 1910
• Docket Number: No. 6,768.,6,768.
• Citation: 92 N.E. 189,46 Ind.App. 193
• Parties: BRUCE v. INDIANAPOLIS GAS CO.
• Court: Indiana Appellate Court

46 Ind.App. 193

92 N.E. 189

BRUCE

v.INDIANAPOLIS GAS CO.

No. 6,768.

Appellate Court of Indiana, Division No. 1.

June 21, 1910.

Appeal from Circuit Court, Boone County; S. R. Artman, Judge.

Action by Margaret Bruce against the Indianapolis Gas Company. Judgment for defendant, and plaintiff appeals. Affirmed.

Woodburn Masson, for appellant. F. Winter, for appellee.

MYERS, J.

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 the owner of a certain addition to the city of Indianapolis, which comprises 132 vacant lots. That running north and south through said addition were three alleys laid out and dedicated to public use. That on said date appellee was engaged in supplying the residents of said city with natural gas through connections with its system of low-pressure gas mains laid in the streets and alleys of said city. That said lots were in the resident district, and were adapted for the location of residences. That appellant desired to sell said lots, and, to facilitate the sale thereof, sought to have the same connected with appellee's natural gas mains, which facts were known to the appellee at the time of making the written contract following: “This memorandum of agreement made this 27th day of March, 1893, by and between the Indianapolis Gas Co., of the first part, and Margaret Bruce, of the second part, witnesseth: The party of the first part agrees to lay a 4? low-pressure natural gas pipe in the first, second, and third alleys west of College avenue between Bruce and Sutherland Sts. Said party of the second part agrees to pay said party of the first part the sum of $40.00 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 one dollar hereby paid by said first party to second party, the said second party hereby sells, transfers, and assigns to the 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 the said pipe line laid under this agreement shall become a part of the low-pressure system of the 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. The Indianapolis Gas Co., per John R. Pearson, Asst. to Pres. Attest: S. D. Pray, Sec'y.” It is also alleged that, upon the execution of said agreement and pursuant to the terms thereof, appellant paid to appellee the sum of $5,280 for one connection to each of said lots: “that defendant proposed to plaintiff, after the execution of said contract, that it would put in and make connections between any of said lots and the means to be so laid by it at any time plaintiff notified it to make such connections and indicated with which lots she desired connections made”; that prior to the year 1903, upon request of appellant, appellee connected with its said mains 46 of said lots on which residences had been erected; that the remaining 86 lots, in the year 1903, remained vacant and unsold, and never were connected with appellee's gas mains; that appellee abandoned its said contract and removed its mains laid by it under said contract, wherefore, etc.

In addition to the above facts in the second paragraph, it is alleged that in the year of 1903 natural gas failed to such an extent that appellee could not 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, etc.

The fourth and fifth paragraphs contain practically the same facts as those alleged in the first and second, except in these paragraphs an oral contract is relied on, not materially differing from the stipulations in the written contract. Eighty-six of appellant's lots, we may assume, the contrary not appearing, were never improved, and no demand was ever made upon appellee to lay service pipes from its mains to the property line of these lots. Ten years after the execution of the contract here sued on natural gas failed, thereby making it impossible for appellant to longer furnish gas to its then customers, and it ceased to do business. In 1904 the Supreme Court of this state said: “It is a matter of general knowledge, hence a fact, and of which this court has judicial notice, that natural gas, within the territory or field in question as formerly controlled by appellee, no longer exists in quantities sufficient to furnish the inhabitants of the city of Indianapolis with fuel for heating purposes.” State v. Indianapolis Gas Company, 163 Ind. 48, 71 N. E. 139. From the complaint, it does not appear that the conditions existing at that time have in any wise changed. So that the question here involves the right of appellant to recover from appellee $40 for each lot not connected with the latter's gas mains.

Appellant bases her right of recovery upon the principle of law announced in Matthews Glass Company v. Burk, 162 Ind. 608, 70 N. E. 371. 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 of same. The glass was delivered at different times in car load 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...