Capital City Gas Company v. Phillips Petroleum Company, No. 236

CourtUnited States Courts of Appeals. United States Court of Appeals (2nd Circuit)
Writing for the CourtWATERMAN, MOORE and KAUFMAN, Circuit
Citation373 F.2d 128
PartiesCAPITAL CITY GAS COMPANY, Appellee, v. PHILLIPS PETROLEUM COMPANY, Appellant.
Docket NumberDocket 30818.,No. 236
Decision Date14 February 1967

373 F.2d 128 (1967)

CAPITAL CITY GAS COMPANY, Appellee,
v.
PHILLIPS PETROLEUM COMPANY, Appellant.

No. 236, Docket 30818.

United States Court of Appeals Second Circuit.

Argued December 16, 1966.

Decided February 14, 1967.


373 F.2d 129

Wick, Dinse & Allen, Burlington, Vt., for appellee.

F. Elliott Barber, Jr., Brattleboro, Vt., William J. Zeman, Lloyd G. Minter, Chas. H. Purdy, Bartlesville, Okl., for appellant.

Before WATERMAN, MOORE and KAUFMAN, Circuit Judges.

WATERMAN, Circuit Judge:

Phillips Petroleum Company (Phillips) appeals from an order of the United States District Court for the District of Vermont requiring it to continue to supply Capital City Gas Company (Capital City) with liquefied petroleum gas (propane) until May 31, 1967.

Phillips is a Delaware corporation. Capital City is a Vermont corporation with its principal place of business at Montpelier, Vermont. Federal jurisdiction is based upon diversity of citizenship. On June 22, 1964, the two companies, continuing a long-time business relationship, entered into a contract for the sale of liquefied petroleum gas by Phillips to Capital City to cover the period from June 1, 1964 to May 31, 1967. The contract contemplated the purchase by Capital City of propane gas between certain specified maximum and minimum quantities per month at a price to be determined by the prevailing market price. Later the contract was modified by a written agreement so as to provide that the price would be eight cents per gallon throughout the life of the contract.

The contract contained the following provision:

14. Force Majeure
No failure or omission by Seller in the performance of any obligation of this contract shall be deemed a breach of this contract nor create any liability for damages if the same shall arise from any cause or causes beyond Seller\'s control, including but not restricted
373 F.2d 130
to: acts of God, war, accident, fire, storm, flood, earthquake, or explosion, acts of or compliance with requests of federal, state, or local government, or any agency thereof, strike, lockout, disputes with workmen, labor shortages, transportation embargoes or failures or delays in transportation, unavailability of suitable tank cars or transport trucks or parts therefor, or exhaustion, reduction, or unavailability of liquefied petroleum gas at the source of supply from which deliveries are normally made hereunder, * * *. (Emphasis supplied.)

The contract remained in force and apparently there was no friction between the parties until June 24, 1966, when Phillips addressed a certified mail letter, received June 27, informing Capital City that as of July 1, 1966 it was terminating its propane sales to Capital City and that as of that day it was invoking the Force Majeure provision recited above. Phillips based this action upon its statement that liquefied petroleum gas (propane) was not available to it after June 30, 1966 "at Delaware City, the source of supply from which our deliveries are normally made to you." In a July 1, 1966 letter Phillips also based its termination upon Capital City's failure to purchase the minimum contract requirements of propane during the months of May and June 1966. The source of supply at Delaware City, Delaware was Tidewater Oil Company's Flying A Refinery, also known as Reybold.

On July 6, 1966 Capital City filed this action in the court below seeking injunctive relief to prevent Phillips from terminating the contract. On July 6, 1966, the court issued, without notice to Phillips, an ex parte temporary restraining order, effective until July 15, to prevent Phillips from withholding delivery of three railroad tank cars of propane gas already ordered by Capital City for delivery on July 20, 1966. On July 14 and 15, 1966 the court held a hearing, upon notice, for the purpose of determining whether to continue the temporary restraining order or to grant a preliminary injunction.1 On July 14 Phillips filed its answer to the complaint. When the case was called neither party was aware that anything other than the

373 F.2d 131
proceeding noticed in the order was to be held, and that a full determination on the merits would be forthcoming in normal course on complaint and answer at a later date. Nevertheless, the court proceeded to take testimony and then issued a judgment order that Phillips continue to supply Capital City with propane for the entire remaining period of the contract at the price of eight cents per gallon

This order is not designated as either a temporary or permanent injunction order, but is only designated "Judgment Order." Whatever it might have been labeled, it is a permanent injunction because it grants Capital City all the relief it might ultimately be entitled to and makes no provision for further hearings.

Of course the judgment order cannot be permitted to remain in force as a permanent injunction; Phillips has a clear right to have a full hearing on the merits of the complaint, for the order was...

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37 practice notes
  • Inmates of Attica Correctional Facility v. Rockefeller, No. 284
    • United States
    • United States Courts of Appeals. United States Court of Appeals (2nd Circuit)
    • December 1, 1971
    ...Accordingly plaintiffs are not precluded from presenting additional evidence at trial. Capital City Gas Co. v. Phillips Petroleum Co., 373 F.2d 128, 131 (2d Cir. In regard to the counsel claim, we affirm the district court's denial of plaintiffs' application to maintain the suit as a class ......
  • Auracle Homes, LLC v. Lamont, No. 3:20-cv-00829 (VAB)
    • United States
    • United States District Courts. 2nd Circuit. United States District Court (Connecticut)
    • August 7, 2020
    ...condition which must be present to support the granting of a temporary injunction." Capital City Gas Co. v. Phillips Petroleum Co. , 373 F.2d 128, 131 (2d Cir. 1967) (citation omitted); Reuters Ltd. v. United Press Int'l., Inc. , 903 F.2d 904, 907 (2d Cir. 1990) ("the moving party must firs......
  • City of Newburgh v. SARNA, No. 09 Civ. 5117(CM)(LMS).
    • United States
    • United States District Courts. 2nd Circuit. United States District Courts. 2nd Circuit. Southern District of New York
    • February 5, 2010
    ...injury during the pendency of the trial will result." (emphasis in original) (quoting Capital City Gas Co. v. Phillips Petroleum Co., 373 F.2d 128, 131 (2d For example, in Hudson Riverkeeper Fund v. Yorktown Heights Sewer District, 949 F.Supp. 210 (S.D.N.Y.1996), the plaintiff environmental......
  • Hershey Creamery Co. v. Hershey Chocolate Corp., Civ. A. No. 66-3915.
    • United States
    • United States District Courts. 2nd Circuit. United States District Courts. 2nd Circuit. Southern District of New York
    • May 8, 1967
    ...Hudson Pulp & Paper Corp. v. Swanee Paper Corp., 223 F. Supp. 617, 618 (S.D.N.Y.1963); Capital City Gas Co. v. Phillips Petroleum Co., 373 F.2d 128, 131 (2d Cir. 1967). Even if this burden is met, the party seeking the preliminary injunction is not necessarily entitled to that drastic relie......
  • Request a trial to view additional results
37 cases
  • Inmates of Attica Correctional Facility v. Rockefeller, No. 284
    • United States
    • United States Courts of Appeals. United States Court of Appeals (2nd Circuit)
    • December 1, 1971
    ...Accordingly plaintiffs are not precluded from presenting additional evidence at trial. Capital City Gas Co. v. Phillips Petroleum Co., 373 F.2d 128, 131 (2d Cir. In regard to the counsel claim, we affirm the district court's denial of plaintiffs' application to maintain the suit as a class ......
  • Auracle Homes, LLC v. Lamont, No. 3:20-cv-00829 (VAB)
    • United States
    • United States District Courts. 2nd Circuit. United States District Court (Connecticut)
    • August 7, 2020
    ...condition which must be present to support the granting of a temporary injunction." Capital City Gas Co. v. Phillips Petroleum Co. , 373 F.2d 128, 131 (2d Cir. 1967) (citation omitted); Reuters Ltd. v. United Press Int'l., Inc. , 903 F.2d 904, 907 (2d Cir. 1990) ("the moving party must firs......
  • City of Newburgh v. SARNA, No. 09 Civ. 5117(CM)(LMS).
    • United States
    • United States District Courts. 2nd Circuit. United States District Courts. 2nd Circuit. Southern District of New York
    • February 5, 2010
    ...injury during the pendency of the trial will result." (emphasis in original) (quoting Capital City Gas Co. v. Phillips Petroleum Co., 373 F.2d 128, 131 (2d For example, in Hudson Riverkeeper Fund v. Yorktown Heights Sewer District, 949 F.Supp. 210 (S.D.N.Y.1996), the plaintiff environmental......
  • Hershey Creamery Co. v. Hershey Chocolate Corp., Civ. A. No. 66-3915.
    • United States
    • United States District Courts. 2nd Circuit. United States District Courts. 2nd Circuit. Southern District of New York
    • May 8, 1967
    ...Hudson Pulp & Paper Corp. v. Swanee Paper Corp., 223 F. Supp. 617, 618 (S.D.N.Y.1963); Capital City Gas Co. v. Phillips Petroleum Co., 373 F.2d 128, 131 (2d Cir. 1967). Even if this burden is met, the party seeking the preliminary injunction is not necessarily entitled to that drastic relie......
  • Request a trial to view additional results

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