LaHarpe Fuel Co. v. City of Iola

• Decision Date: 05 October 1940
• Docket Number: 34750.
• Parties: LAHARPE FUEL CO. v. CITY OF IOLA.
• Court: Kansas Supreme Court

105 P.2d 900

152 Kan. 445

LAHARPE FUEL CO. v. CITY OF IOLA.

No. 34750.

Supreme Court of Kansas

October 5, 1940

Syllabus by the Court.

Motions to strike pleadings and make pleadings definite and certain rest in the sound discretion of the trial court, and, unless it appears that the trial court's ruling affects a substantial right and in effect determines the action, the ruling is not appealable.

Trial court did not err in refusing to require the plaintiff to amend its petition, on ground that it failed to state a cause of action on a definite theory, where the defendant and the court had fair notice of the facts constituting the plaintiff's cause of action, and no prejudice to any substantial right of the defendant resulted.

On appeal by defendant from judgment in action against it for breach of written contract under which defendant agreed to purchase natural gas, defendant was in no position to raise the question that the contract was void on ground that the record failed to show that a certificate of convenience was issued to plaintiff, where question was not raised in defendant's answer, the contract was admitted to have been executed, and the trial court made general findings of fact, but no findings as to whether plaintiff had or did not have such certificate, or was required to have such certificate, since the trial court was presumed to have made findings of all facts on all questions necessary to sustain the judgment.

Where city had treated contract with corporation for purchase of natural gas as a valid and binding contract for five years it could not avoid its obligations by contending that the contract was contrary to public policy and void because the wife of the city's commissioner of finance and revenue owned one share of stock in the corporation and was a director and secretary of the corporation. Gen.St.1935 23-204.

A contract between city and natural gas company providing that city should purchase 50,000,000 cubic feet of natural gas per year, and providing that the city had already contracted with another natural gas company for the purchase of a minimum of 110,000,000 cubic feet per year, and providing that should the requirement of the city not equal the 50,000,000 cubic feet per year, over and above the minimum requirements of the contract with the other natural gas company, then the amount to be purchased under the contract should be reduced accordingly, and that the adjustments of the amounts of gas taken under the two contracts should be equalized as nearly as could be each month, was not void on ground that it lacked possibility of performance.

To entitle natural gas company to recover from city for breach of contract whereby the city agreed to buy a certain amount of natural gas per year, it was not necessary for the company to establish a market value for the gas.

City had authority under statute to enter into contract with natural gas company for the purchase of natural gas for the use of the city. Gen.St.1935, 12-842.

The parties to this action entered into a written agreement under which the plaintiff company agreed to sell and the defendant city agreed to purchase fifty million cubic feet of gas per year for a period of five years at the price of twenty-five cents per thousand cubic feet, subject to the provisions of the contract set out in the opinion. In an action for damages for breach of the contract, the record is examined, and held that as no error is found, the judgment must be affirmed.

Appeal from District Court, Allen County; Wallace H. Anderson Judge.

Action by the LaHarpe Fuel Company against the City of Iola to recover damages for breach of contract. From the judgment, the defendant appeals, and the plaintiff cross-appeals.

Judgment affirmed.

Burney Miller, J. S. Amick, and J. D. Conderman, all of Iola, and Paul Pinson, of Tulsa, Okl., for appellant and cross-appellee.

Stanley E. Toland and Frederick G. Apt, both of Iola, for appellee and cross-appellant.

ALLEN Justice.

This action was for damages for breach of contract. From a judgment in favor of plaintiff, defendant appeals.

On the 8th day of March, 1932, the parties to this action entered into a written agreement under which the plaintiff company agreed to sell and the defendant city agreed to purchase fifty million cubic feet of natural gas per year at the price of twenty-five cents per thousand cubic feet. The contract was to remain in force for five years. The contract provided:

"It being understood that second party has already contracted with the Oklahoma Natural Gas Corporation for the purchase of a minimum of One Hundred Ten Million cubic feet of natural gas per year with a minimum during the months of May, June, July, August, and September of One Hundred twenty-five thousand cubic feet per day, and

"It is agreed that should the requirement of the city not equal the said fifty million cubic feet per year, over and above the minimum requirements of the Oklahoma Natural Gas Corporation contract, then the amount to be purchased under this contract shall be reduced accordingly.

"It is also provided that should the requirements exceed the said fifty million cubic feet per year over and above the said minimum of the Oklahoma Natural Gas Corporation, the second party may purchase the same from other parties or if it does not wish to do so, the additional requirements may be added to the said fifty million minimum.

"Provided: also that adjustments of the amounts of gas taken under the said two contracts shall be equalized as nearly as can be each month."

It was further provided that "this contract shall be given priority over any and all sales or use of gas for industrial purposes and other contracts made subsequent hereto."

The case was tried on plaintiff's second amended petition. After setting forth the terms of the contract, the petition alleged:

"3. That by the terms of said contract between plaintiff and defendant, the purchase of gas by the defendant from the plaintiff for the purpose of supplying the inhabitants of the defendant City for domestic and other uses and consumption, was subject only to the purchase by the defendant from the Oklahoma Natural Gas Corporation of a minimum of 110 million cubic feet of natural gas per year with a minimum during the months of May, June, July, August and September of 125 thousand cubic feet per day and said contract between plaintiff and defendant, by its own terms, was given priority over any and all sales or use of gas for industrial purposes and other contracts made subsequent to the date of said contract.

"That the volumes of gas, by months, which the defendant City purchased and received from the Oklahoma Natural Gas Corporation and its assigns, and from the plaintiff, are set forth in Exhibit 'C' to the amended petition, which exhibit is made a part hereof by reference, with the following results, to-wit:

------------------------------------------------------------------------------- ------------------------------------------------------------------------------- Year Volumes of Gas Delivered by Volumes of Gas Delivered Oklahoma Natural Gas by the LaHarpe Fuel Corporation and its Company into The City Assigns into City Lines. Lines. ------------------------------------------------------------------------------- March 5th, 1932 to March 5th, 1933 ..................... 257,991,000 cu. ft. 35,747,400 cu. ft. March 5th, 1933 to March 5th, 1934 ..................... 235,302,000 cu. ft. 33,576,200 cu. ft. March 5th, 1934 to March 5th, 1935 ..................... 257,718,000 cu. ft. 30,733,600 cu. ft. March 5th, 1935 to March 5th, 1936 ..................... 267,399,000 cu. ft. 37,892,400 cu. ft. March 5th, 1936 to March 5th, 1937 ..................... 270,373,000 cu. ft. 37,001,000 cu. ft. --------------------------- ------------------------ Grand Totals .................. 1,288,783,000 cu. ft. 174,950,600 cu. ft. ------------------------------------------------------------------------------- -------------------------------------------------------------------------------

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"6. That at the times during the term of said contract, the plaintiff maintained a sufficient supply of gas to comply with all of the requirements imposed upon plaintiff by the terms of said contract.

"7. That the amount of gas which the defendant should have taken from the plaintiff during the first year of said contract term, but which it failed and neglected to take, amounts to 14,252,600 cubic feet.

"8. That plaintiff was obliged to keep said amount of 14,252,600 cubic feet of natural gas available for the use of the defendant in supplying the inhabitants of the defendant City with gas for domestic and other uses and consumption. That because of said contract, plaintiff was unable to make any other use of said gas because of the requirements imposed upon plaintiff by said contract, and plaintiff has had no other market or use for said gas and will have no other market or use for said gas.

"9. That as hereinbefore set forth, the defendant City failed and neglected to take from plaintiff 14,252,600 cubic feet of natural gas during the first year of the contract, which amount the said defendant had contracted and agreed to take and receive under the contract of the plaintiff at a price of 25¢ per thousand cubic feet. That by reason of the failure of the said defendant City to take said 14,252,600 cubic feet of natural gas during the first year of said contract term, as it had contracted and agreed to take, and which the plaintiff was ready, able and willing to furnish said defendant City the plaintiff has been damaged in the sum of $3,563.15, which amount is the sum total of the value of said 14,252,600 cubic feet of gas figured and based upon the...