Hickman v. Cabot

• Decision Date: 20 December 1910
• Docket Number: 1,003.
• Citation: 183 F. 747
• Parties: HICKMAN et al. v. CABOT.
• Court: U.S. Court of Appeals — Fourth Circuit

183 F. 747

HICKMAN et al. v. CABOT.

No. 1,003.

United States Court of Appeals, Fourth Circuit.

December 20, 1910

William Beard, for plaintiffs in error.

B. M Ambler (Van Winkle & Ambler, on the brief), for defendant in error.

Before GOFF and PRITCHARD, Circuit Judges, and ROSE, District Judge.

ROSE District Judge.

The plaintiffs in error here are all citizens of West Virginia. They were plaintiffs below. They will be called plaintiffs. The defendant in error is a citizen of Massachusetts. He was the defendant below, and will be so referred to in this opinion. The plaintiffs had a gas well or wells. They wanted to sell their gas. The defendant had a carbon factory. All agreed that the defendant should construct a pipe line from his factory to plaintiffs' well, that he should take about 1,200,000 feet of gas a day, and should pay plaintiffs 2 cents a 1,000 feet for it. The plaintiffs were to care for the wells and keep them in good order and free from water, so far as this should be feasible. The agreement was to bind the parties, their heirs, personal representatives, and assigns for a term of three years, and thereafter until terminated by one month's notice from either party to the other. In case all the wells on plaintiffs' land should not be sufficient to furnish the required amount of gas, the defendant might buy elsewhere.

The contract between the parties also contained the following paragraph:

'If by reason of fire, explosion or other cause, the factory of (the defendant) shall be closed down, the (plaintiffs) may during such time, dispose of the gas elsewhere, and if such nonuse extends over one month, the (plaintiffs) shall have the right to cancel the contract. No claims for damages shall be made by the (plaintiffs) for nonuse of the gas, by reason of the shutting down of the factory nor by the (defendant) for the failure to supply, due to natural causes.'

The defendant constructed his pipe line, and connected it with the well of the plaintiffs. After taking the gas for something like 30 days in all, he shut down his factory, and disconnected his pipe line from plaintiffs' well. Some months later the plaintiffs brought suit, among other things for the $24 a day which the defendant would have owed them had he taken 1,200,000 feet of gas from them at the price of 2 cents per 1,000 feet.

There were many controverted questions raised upon the trial. There are a number of exceptions and of assignments of error. In our view, we need consider none of these, except such as relate to the construction placed by the court below upon the paragraph of the contract between the parties, which provided what their respective right should be in the event that the factory should be shut down by 'reason of fire, explosion or other cause. ' That clause has already been quoted in full.

The court instructed the jury that:

'The plaintiffs are not entitled to recover any damages or money from the defendant, by reason of his shutting down his factory. Cabot had a right to shut down his factory under the contract without liability to the plaintiffs on that account.'

The learned judge further told the jury that the defendant 'if he operated his carbon factory, would have to take the gas tendered by the plaintiffs to the extent and subject to the conditions prescribed by the contract. If, however, he did not operate his factory, but determined to wholly shut it down, he had the right to do so, and by the terms of the contract no claims for damage could be made for the nonuse of the gas by the plaintiffs while the factory was so shut down; they, on their part, having the right to sell the gas while the factory was shut down and to cancel the contract, if the nonuse by Cabot of the gas extended beyond 30 days. ' Under this construction of the contract, the defendant by operating his factory 1 day in every 30 could have for 3 years prevented the plaintiffs from canceling the contract. It is true that they could have sold their gas elsewhere during the other 29 days, provided they could have found some one who was willing to take it whenever the defendant did not want it, without out either such purchaser or the plaintiffs ever being able to know...