Home Gas Co. v. Mannington Co-Op. Window Glass Co.
| Decision Date | 17 December 1907 |
| Citation | 61 S.E. 329,63 W.Va. 266 |
| Parties | HOME GAS CO. v. MANNINGTON CO-OPERATIVE WINDOW GLASS CO. et al. |
| Court | West Virginia Supreme Court |
Submitted September 7, 1907.
Rehearing Denied May 1, 1908.
Syllabus by the Court.
To justify rescission of a contract for fraudulent representation in procurement thereof, such representation must be a positive statement of a material existing fact present or past, made for the purpose of procuring the contract, and actually relied on by the other party, who must be misled thereby.
[Ed Note.-For cases in point, see Cent. Dig. vol. 11, Contracts §§ 420, 421, 424.]
In absence of fraud or mistake, when an agreement is reduced to writing all previous negotiations resting in parol are resolved into and extinguished by the writing; it being the highest and safest evidence of the true final agreement of the parties to it.
[Ed Note.-For cases in point, see Cent. Dig. vol. 20, Evidence, § 2030.]
This rule would inhibit ingrafting on a contract prior or contemporaneous conversations or stipulations not carried into the written contract, so as to add to or conflict with the agreement spoken by the writing itself.
[Ed. Note.-For cases in point, see Cent. Dig. vol 20, Evidence, § 1756.]
Whether confession of judgment by a defendant at law will be required as a condition of granting him an injunction to restrain the proceeding at law is within the sound discretion of the court.
[Ed. Note.-For cases in point, see Cent. Dig. vol. 27, Injunction, § 27.]
Where such defendant has a legal defense to the action at law on which he relies, as well as a distinct ground for equitable relief, he should not be required to abandon his legal defense by confessing judgment, before proceeding in equity to enjoin the action at law.
[Ed. Note.-For cases in point, see Cent. Dig. vol. 27, Injunction, § 27.]
Appeal from Circuit Court, Marion County.
Suit by the Home Gas Company against Mannington Co-Operative Window Glass Company and others. From a judgment for plaintiff, defendant Mannington Co-Operative Window Glass Company appeals. Reversed, and decree of dismissal ordered.
J. B. Handlan, for appellant.
W. B. Cornwell and W. S. Haymond, for appellee.
MILLER, P.
July 9, 1900, plaintiff entered into a contract in writing with F. J. Barrett and R. W. Gipson whereby it agreed to sell to them natural gas for five years from October 1, 1900, barring "accidents and unavoidable contingencies" in the business of either party, for the purpose and in quantity sufficient to supply "a window glass manufactory of at least 12 pots," measured by meter, at 2 1/2 cents per 1,000 cubic feet, delivered at the window glass factory then being erected by Barrett and Gipson at Mannington in Marion county; it being "specially understood and agreed that in the event the said party of the first part shall before the expiration of the aforesaid five years sell or dispose of its property and business, or should the same undergo any radical or material change, the said parties of the second part shall be protected in their rights under this agreement, and such provision shall be made as will guarantee and secure to the said parties of the second part gas as herein contracted for." At the time the negotiations leading up to this contract began Barrett and Gipson represented themselves and associates, all window glass workers residing in Indiana, who had resolved to seek a location in some gas belt in Ohio or West Virginia, organize a corporation, and build a window glass factory. Among other places Barrett and Gipson visited Mannington, and were directed to the Home Gas Company, and their negotiations were with C. R. Snodgrass and Wm. H. Furbee, respectively its president and secretary. At home they had received an offer of free gas, and at Clarksburg an offer of gas at 4 cents per 1,000 cubic feet and a building site, of both which they informed Snodgrass and Furbee. It appears that the Home Gas Company was organized particularly to supply gas cheaply and to induce industrial enterprises to locate at Mannington. Barrett and Gipson were particularly anxious to obtain a flat rate, or fixed price per month, for gas to supply their proposed plant. They returned home to Indiana leaving with the plaintiff a proposition of $200 per month, taking with them to their associates a proposition from the plaintiff of 3 cents per 1,000 cubic feet, and were followed by a letter from the plaintiff to Gipson of June 26, 1900, saying: In response Barrett and Gipson returned, authorized to accept this proposition if better terms could not be secured, and, after some further negotiations, concluded the contract referred to. They removed at once to Mannington, secured a location, and began erection of the plant; the corporation being organized, and a number of their associates having followed soon after to assist in the work of construction. The plant was completed early in November, 1900, and connection being made with the gas line of the plaintiff, manufacture of glass was begun. It developed almost immediately that the plaintiff had not sufficient gas for the window glass company to operate its plant. Complaints were lodged with the plaintiff, and promises of better supply made, but not fulfilled, greatly hindering and delaying the glass company. Pending fulfillment of these promises permission was sought and obtained from the plaintiff to disconnect temporarily and procure gas to operate the plant from other companies. Subsequently, when application was made by the glass company to again connect with the plaintiff's gas line, the request was refused, and the glass company was thereafter compelled to and did secure gas elsewhere to operate its plant, notifying, at first in writing, and afterwards verbally, the gas company of its purpose to rely upon its contract and to hold it liable for damages. But these notices had no other effect than to bring a proposition from the plaintiff to enter into a new contract to furnish gas at the higher rate of 4 cents per 1,000 cubic feet, which was declined. In February, 1904, the window glass company instituted in the circuit court of Marion county its action in assumpsit against the gas company to recover damages for such alleged breach of said contract, the bill of particulars claiming $16,465.65, or the difference between the contract rate and the price plaintiff had been compelled to pay with interest. The gas company appeared, and filed the pleas of nonassumpsit and non est factum; but before that case was finally brought to trial the present bill was filed to cancel and annul said contract, and a temporary injunction obtained restraining prosecution of said action.
The sole ground alleged for equitable jurisdiction is that "said contract and its execution was procured and obtained from the plaintiff by the said F. J. Barrett and the said R. W. Gipson by their fraud and deceit, at least by the fraud and deceit of the said F. J. Barrett, practiced upon and misrepresentations made to the officers, agents, directors, and stockholders of this plaintiff"; that Barrett and Gipson represented "that 6,000,000 to 8,000,000 cubic feet of gas per month would run said glass plant; and that under no circumstances would it require more than 8,000,000 cubic feet for any one month," the bill alleging, and the evidence showing, that a much larger quantity was required. Besides this equitable defense to said action the bill further alleges that the plaintiff has legal defenses thereto upon which it relies, namely: (1) That it denies the right of the window glass company to recover in said action of assumpsit; (2) that said window glass company committed the first breach of said contract by cutting loose from its glass plant the gas line of the plaintiff and quitting use of said gas; (3) that an unavoidable contingency in the business of the plaintiff arose rendering it unable to perform said contract and discharging it from further performance. Gipson and Barrett, who had assigned the contract to the glass company, were made parties to the bill; but no relief or discovery was prayed against them. The answer of the glass company fully denied all material allegations of the bill. Gipson, who had evidently become unfriendly to the glass company, answered, giving some slight color to the charge in the bill of fraudulent representation. Barrett did not answer; but his deposition supported all denials in the answer of the glass company.
Upon final hearing, after many depositions had been taken and filed, the court decreed that the injunction theretofore awarded be perpetuated in so...
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