Macon Gas Co v. Crockett

• Decision Date: 15 July 1938
• Docket Number: No. 26752.,26752.
• Citation: 198 S.E. 267,58 Ga.App. 361
• Parties: MACON GAS CO. v. CROCKETT.
• Court: Georgia Court of Appeals

58 Ga.App. 361

198 S.E. 267

MACON GAS CO.

v.CROCKETT.

No. 26752.

Court of Appeals of Georgia, Division No. 2.

July 15, 1938.

Judgment Adhered to on Rehearing July 27, 1938.

Syllabus by the Court.

1. In a written contract by which a gas company lays an extension of its gas pipes along a certain street so as to convey gas to an owner of property on the street, in consideration of the property owner paying a designated sum of money to the gas company, and which provides that this extension shall remain the property of the company and that the company shall have the right to continue the extension to other property, a provision, where the contract is written and prepared by the gas company, that the company shall refund to the property owner a designated sum of money "for each and every consumer taken on said extension, " within a designated period from the date of the completion of the extension, provided the total amount of refund shall not exceed the total sum paid by the property owner for the construction of the extension, when properly construed, provides that a consumer of gas "taken on" the extension is any consumer of gas who receives it from this extension, whether directly by a service pipe attached thereto, or indirectly by a service pipe attached to a main or pipe running from the extension.

2. Where consumers were taken on the extension by the gas company, and the property owner who had paid for the extension did not know, and by the exercise of ordinary diligence could not have known, that such consumers had been taken on because they were taken on by pipes attached to the extension and laid in the ground, and the gas company failed to give the property owner this information, and thereby kept him in ignorance of the fact that such consumers had been taken on the extension, the act of the gas company in thus failing to inform the property owner of the taking on of the consumers was a fraud which deterred the property owner from his action on the contract. The period of limitation within which the property owner could bring suit on the amount due under the contract by reason of the taking on of these consumers ran from the time when he afterwards ascertained that the consumers had been taken on the extension, and had therefore discovered the gas company's fraud, although at this date the period of limitation within which suit could be brought had otherwise not expired. The period of limitation began on the date of the discovery of the fraud, and a suit which was brought within the limitation period from that date to recover the amount due under the written contract by reason of these consumers being taken on was not barred by the statute of limitations.

Error from City Court of Macon; Earl W. Butler, Judge.

Action by Roy W. Crockett against the Macon Gas Company for breach of contract. Judgment for plaintiff, and defendant brings error.

Affirmed.

Roy W. Crockett brought suit, on May 15, 1937, against the Macon Gas Company, to recover for a breach of contract. The following appeared undisputed from the evidence: Crockett, who had a house on Ridge Avenue in the City of Macon, being desirous of having the Macon Gas Company serve his house with gas, entered into a written contract on January 26, 1928, with the gas company, which was prepared by the company and presented to Crockett for signature, by which the gas company extended a gas pipe along Ridge Avenue, a distance of 1, 710 feet, to a point where Crockett's house was located, and by a service connection furnished gas to Crockett's house. In consideration for this Crockett paid the gas company the sum of $1,812.60, which represented the cost of making the extension. It was "agreed that this extension when and as made should be the property of the Macon Gas Company, and said company shall have the right to continue said extension to other property, " and that the gas company would refund to Crockett "the sum of $75 for each and every consumer taken on said extension within a period of four years [which was afterwards by agreement extended until July 1, 1934], from the date of completion of said extension, provided, however, that the total amount of refund shall not exceed the total amount paid, " to the gas company by Crockett, namely, $1,812.60 representing the cost of making the extension. Afterwards, a number of customers on Ridge Avenue were connected with the extension, and for each one Crockett was paid $75. Afterwards, the gas company tapped the extension at two points before it reached Crockett's house, one at the intersection of Ridge Avenue and Roycrest Drive, and one at the intersection of Ridge Avenue and Forest Hill Avenue, by a gas pipe extending down Forest Hill Avenue about ninety feet, and from which, at that point, a service pipe connected it with a house on that street, and by a gas pipe extending along Roycrest Drive a distance of approximately 450 feet to its intersection with Drury Avenue, a street running generally parallel to Ridge Avenue, and continuing along Drury Avenue for some distance. To this pipe, extending from the Crockett pipe on Ridge Avenue along Roycrest Drive and Drury Avenue, one house on Roycrest Drive and nine houses on Drury Avenue were connected by service pipes. These connections made to the pipes which extended from the Crockett pipe were madewithin the life of the contract. Crockett contended that each one of these connections represented a "consumer taken on" his 1, 710 foot extension, within the meaning of the contract, and that for each one the gas company was indebted to him in the sum of $75, making a...