Capital Gas & Electric Light Co. v. Gaines

• Decision Date: 09 February 1899
• Citation: Capital Gas & Electric Light Co. v. Gaines, 49 S.W. 462 (Ky. Ct. App. 1899)
• Parties: CAPITAL GAS & ELECTRIC LIGHT CO. v. GAINES. [1]
• Court: Kentucky Court of Appeals

49 S.W. 462

CAPITAL GAS & ELECTRIC LIGHT CO. v. GAINES. ^[1]

Court of Appeals of Kentucky.

February 9, 1899

Appeal from circuit court, Franklin county.

"Not to be officially reported."

Action by Noel Gaines against the Capital Gas & Electric Light Company to enjoin defendant from refusing to supply plaintiff with gas, and to recover money paid under mistake. Judgment enjoining defendant as prayed, and dismissing plaintiff's claim for money paid, and defendant appeals, plaintiff prosecuting a cross appeal. Affirmed on original and reversed on cross appeal.

John W Rodman and John B. Lindsey, for appellant.

W. H Julian, T. P. Tremere, and Guy H. Briggs, for appellee.

PAYNTER J.

The appellant was incorporated under an act of the legislature (Acts 1881-82, vol. 2, p. 1000), and by the sixth section it was authorized to "furnish gas light *** to any person on such terms as the company and such person may agree upon," and by the tenth section of the act the gas furnished consumers was to be at a price not to exceed $3 per 1,000 cubic feet. The city of Frankfort owned a gas plant and was supplying gas to private consumers in that city, and on May 30, 1882, sold it to the Southern Gas-Works Company, and by assignment the appellant succeeded to all the rights under the contract which the city had made with that company. Numerous provisions were in the contract with reference to the property, repairs, the laying of new pipes, etc. The city, with the view of giving an opportunity to its citizens to use gas at reasonable prices, had placed in the contract a stipulation as follows, to wit: "And the second party or its assigns are, and hereby agree and bind themselves, to supply consumers of gas at the rate of not exceeding ($2) two dollars per thousand cubic feet: provided, however, that if on July 1, 1887, the average price of gas supplied to private consumers in cities or towns of this state of the same or less population than that of the city of Frankfort shall be less or more than ($2) two dollars per thousand cubic feet, then and thereafter the price charged to private consumers in Frankfort shall not exceed such average price, to be ascertained July 1, 1887, and also at expiration of each five years thereafter; and the party of the second part or its assigns bind themselves to supply the said city and the private consumers with a good quality, and keep the said works in constant operation, reasonable time for repairs and unavoidable accidents excepted." It is not complained that the appellant is charging the appellee more for gas than the contract authorized, but that it is furnishing a meter to measure the gas, which it supplies him at the rate of 25 cents per month. So the sole question in this case is whether, under the terms of the contract, it is authorized to charge meter rent.

This court, in Gas Co. v. Dulaney, 38 S.W. 703, construed a provision of the charter of the gas company which required it to furnish gas to private consumers at a price not to exceed $1.35 per 1,000 cubic feet; and the court held that the company was not authorized to charge, in addition to that amount, for the use of meters which it furnished consumers to measure the gas supplied to them. The court said, "The gas meter is the property of the company, and is as necessary to the company in the measurement of its gas as are its works for its manufacture."

In the absence of the allegations of the answer, the court would find but little difficulty in reaching a conclusion that the appellant was not entitled to charge meter rent, but it is alleged in the answer that at the time the contract was entered into, and for 20 years previous thereto, the city of Frankfort had been supplying gas to private consumers for $3.50 per 1,000 cubic feet; that it had been the usage of the city during that time to charge, and the consumers to pay meter rent; that the gas company furnished the meters at the rate of 25 cents per month each; that since the contract was entered into the usage prevailed; that such usage was known to the parties to the original contract; and that the deed for the city's gas plant, and the contract to which we have referred, "were made with reference to said custom and usage, as an incident to said business, and in making said contract it was contemplated by all parties that this defendant would continue to collect from private consumers, who did not own or supply their own meters, said meter rent, at the rate of twenty-five cents per month to each consumer for each meter attachment." Where parties enter into a written contract, unless there is something in it to negative the inference, the parties to the contract are presumed to have contracted with reference to a well-established usage pertaining to the subject concerning which they made the contract, if such usage is not in contravention of well-settled rules of law and is reasonable; so we may say it is a well-settled doctrine that usage known to parties in entering into a contract is binding, unless the terms of the contract exclude it. In Castleman v. Insurance Co., 14...