Texarkana Pipe Works v. Caddo Oil & Refining Co.

LEVY, J. (after stating the facts as above). The appellant insists that under the evidence it was entitled, as a matter of law, to have judgment rendered in its favor; and we conclude that appellant is entitled to have judgment here rendered in its favor on the cross-action. It is again determined, as on the former appeal, that the option stipulation in the contract of November 3, 1915, was in effect an agreement to renew or extend during the two succeeding years the original contract on the terms therein stated, but at the prices stipulated in the option clause, and became a binding contract for sale on its acceptance by appellant. Texarkana Pipe Works v. Caddo Oil & Refining Co. (Tex. Civ. App.) 228 S. W. 586. The evidence conclusively shows an acceptance in writing in the time required, and a part performance thereunder of the contract of sale by appellee. There is no dispute in the evidence that the appellee failed to deliver and the appellant had to purchase in the market 6,968.4 barrels of oil, which was necessary for the operation of the pipe works, during June and July, a part of August,'and a, part of September, 1918. It is admitted that appellant paid $3,814.37, as the market value of the oil, in excess of what it would have cost at the contract price of $1.22 per barrel. As an excuse for the partial performance of the contract by it, the appellee relied on the conditions of the contract which would excuse performance by it; and further pleaded the provisions of paragraph 2 of article 1933 and article 3556 of the Civil Code of Louisiana. The conditions in the contract, as pleaded, are: “It is expressly agreed and understood that neither of the parties hereto shall be liable to the other for failure to perform and respect obligations to this contract or any part thereof when such failure to perform is directly or indirectly occasioned by reason of any war * * * or act of God.” The provisions of the Louisiana Code, as copied in the record, are: “Where, by a fortuitous event or irresistible force, the debtor is hindered from giving or doing what he has contracted to give or do, or is from the same causes compelled to do what the contract bound him not to do, no damage can be recovered for the inexeeution of the contract. Fortuitous event is that which happens by a cause which we pannot resist.” It appears that the .appellee owned the Caddo Oil Refinery at Cedar Groye and the Shreveport Refinery at Shreveport. From these two refineries the appellee was supplying under contracts of sale fuel oil to appellant and to some six other concerns. The refinery at Cedar Grove was destroyed by fire about May 26, 1918, and by reason thereof the appellee was unable for a time to furnish and deliver all the oil contracted. The appellee supplied the six concerns during June, July, August, and September, and did not supply appellant during this time except in part of August and in part of September. Under the restrictions laid upon the appellee by the United States Fuel Administration, it was, under the evidence, clearly required, we think, to give preference to the six named concerns in furnishing the oil obtainable from the remaining refinery after the destruction by fire of the other refinery. But being required to give preference to the named concerns would not relieve appel-lee from liability for failure to perform its contract with appellant, unless the destruction by fire of the refinery at Cedar Grove was occasioned (I) by an act of God, or (2) by a fortuitous event or irresistible force, as used in the Civil Code of Louisiana. If the partial performance of the contract with appellant was not hindered and made impossible of performance by either of the two events, then the appellee, as a matter of law, would not be excused from performing the thing it agreed to do. The evidence regarding the loss by fire does not exclude, or tend to exclude, the idea of human agency or intervention. The evidence suggests, even reasonably accounts for, the origin of the fire to be leaking pipes. The fire was not caused by spontaneous combustion without any default or intervention of human agency. Some negligence or oversight regarding the condition of the pipes is evidence. The burden of proof was upon the appellee to show a destruction of the refinery through an “act of God,” as the term is used in law, and that burden is not met in the evidence offered. And we conclude that the evidence regarding the fire in question also fails to show that the destruction of the refinery was an accident occasioned by a “fortuitous event” or by “irresistible force,” as used in the Louisiana Code. The “fortuitous event” is defined by the Code as- being “that which happens by a cause which we cannot resist.” As construed, the term means “an accident which human prudence can neither foresee nor prevent.” Lehman, Stern & Co. v. Ry. Co., 115 La. 1, 38 South. 873, 70 L. R. A. 562, 112 Am. St. Rep. 259, 5 Ann. Cas. 818. “Irresistible” or “superior force” is a force which absolutely cannot be resisted or controlled. 38 South, supra. Quoting from the case supra: “In the civil law loss by fire is not considered a fortuitous event, as it arises almost in* variably from some act of man.” *817 The peremptory instruction should have been given. The judgment, so far as it denies any recovery on the cross-action, is modified §o as to allow a recovery in favor of appellant against appellee on the cross-action in the sum sued for, and as so modified the judgment will then in all things be affirmed. The appellee is to pay costs of the appeal.