Bellevue Gas & Oil Co. v. Pennel

The opinion of the court was delivered by Graves, J.: The only controversy between the parties arises upon the proper interpretation to be given to subdivision six of the lease, which reads: “To pipe gas to the house for domestic purposes as soon as well is completed.” The plaintiff insists that under this clause gas is to be delivered at his home free, and therefore the account presented by the gas company does not constitute any claim against him. On the other hand, the gas company claims that the word “free” is not used in this clause, and should not be arbitrarily jread into it. The trial court decided that, taking the whole instrument, the situation of the parties and the subject-matter of the contract together, it was apparent that the parties intended that gas should be furnished without charge. It will be observed that this is one of the agreements on the part of the lessee which constitutes the consideration for the lease. This clause expressly limits the amount to be furnished to “domestic purposes.” Why this limitation’if all the gas furnished was to be paid for at its market value? No price is named in this clause or anywhere in the- lease for the gas furnished. This omission seems at least unusual, if it was intended that the gas should be paid for. The omission of the gas company to collect or demand payment for gas [789] used prior to August, 1904, is also unusual, if payment therefor was expected. We are unable to say that the district court erred in its interpretation of this clause. The judgment is affirmed.