Philadelphia Co. v. United Gas Improvement Co.

Opinion by Mr. Chief Justice Sterrett, This action of assumpsit, to recover the difference between the price of natural gas actually supplied to defendant, and the minimum sum agreed to be paid according to contract, was submitted to a referee, under the act of May 14, 1874, whose findings of fact and conclusions of law were both in favor of the defendant. Exceptions to the report of the referee were considered by the court below and dismissed, and the report was thereupon confirmed, and judgment entered for defendant. Hence this appeal, in which we are asked to reverse both the referee and the court below on findings of fact as well as conclusions of law. [242] If the learned referee’s findings of fact are correct, his conclusions of law necessarily follow. To successfully challenge the former, it is not enough to point to evidence sufficient to support a different finding. It must be shown that there is no evidence sufficient to sustain the referee’s findings ; and this is especially so after they have been considered and approved by the court below. Without attempting to refer to the evidence in detail, it is sufficient to say generally that a careful consideration of it has satisfied us that there is no substantial error in any of the learned referee’s findings of' material facts. His clear and satisfactory report evidences the care and ability with which the case was tried and disposed of by him. We are all satisfied as to the substantial correctness of his conclusions. It is contended, however, that to support the referee’s conclusion of law, he should have found specifically that the diminution in the supply of gas was the proximate cause of defendant company’s failure to use the minimum of gas specified in the contract. A sufficient answer to this is, that he was not asked to make any such specific finding. If, therefore, his general findings are equivalent thereto, the plaintiff has no just cause of complaint. By the agreement of October 5, 1888, the plaintiff company —theretofore as then engaged in the transportation and delivery of natural gas, principally for fuel, in the city of Pittsburg and its vicinity — covenanted with the defendant company— then desiring “ to engage in the business of supplying said gas to be used as an illuminant by means of or in connection with its appliances (Welsbach burners) designed to fit said gas for such use” — to supply it with “all natural gas required for illuminating purposes in all buildings or places with which said first party now has or may hereafter have connections from pipe lines or mains owned or operated by it for fuel gas supply, so long as contracts made by consumers with said first party for fuel gas supply shall continue in force ; said gas to be supplied by said first party from its services inside of the buildings, and after passing its pressure valves.” The contract was for three years, and specified a minimum quantity which the defendant would take each year, or, failing to take, would pay for. Clause 6 of the contract provides, inter alia, as follows: “ If the failure of said second party to take the respective minimum [243] amounts of gas mentioned in the third paragraph hereof shall be due to the permanent failure or diminution of said first party’s gas supply, said second party shall be required to pay for only the quantity of gas actually received by said second party; but if the failure of second party to take such respective minimum yearly amounts shall be due to the temporary stoppage or interruption of said first party’s gas supply, said second party shall be entitled to a credit or reduction of said respective minimum quantities proportionate to the number of consumers affected, and the length of time during which such stoppage or interruption shall continue.” It was admitted, as reported by the referee, that the plaintiff had received pay for all the gas actually consumed. Whether it was entitled to recover the difference between that amount and the minimum sum agreed to be paid was the question in controversy. That question has been fully and carefully considered and correctly decided by the referee. His findings of fact, approved by the court below, were amply sufficient, as already stated, to justify his conclusion. Among other things, he reported as follows : “Very early, however, in the first year of the contract, the supply (of gas) sensibly diminished, and continued so to do, through the three succeeding years, and, while perhaps more noticeable at certain seasons, was decidedly appreciable at all times by comparison of any subsequent period with a prior one. The evidence showed a persistent diminution, notwithstanding the efforts made to augment it by the opening of new wells and curtailing its use for manufacturing industries. This diminution in supply caused a decrease in pressure which was immediately apparent by its effect on the Welsbach light. In the place of a bright and steady incandescence, the flame became a dull red color, and the light was practically useless. “ The material questions are not the extent of diminution, whether excessive or otherwise; not the amount of pressure at the stations, whether one pound or more; but was there an insufficiency of gas for illumination, and was such insufficiency instrumental in causing the defendant’s failure ? Keeping these in view and considering the evidence directly relevant thereto, ■ — -the testimony of plaintiff’s employees, the act of opening the regulators to allow a free flow, and the actual abandonment of [244] the lights for want of gas — it is scarcely possible to escape the conclusion that they must be answered affirmatively, and that the defendant is correct in the allegation that the contingency contemplated and provided for occurred.” In view of the facts established by the learned referee’s findings, the question whether the contract is entire or severable becomes unimportant. In neither event, according to those findings, was anything due the plaintiff company. Judgment affirmed.