Corbet v. Oil City Fuel Supply Co. , 1902 Pa. Super. LEXIS 311 ( 1902 )

Opinion by

Orlady, J.,

The plaintiff filed a bill in equity to restrain the defendant “ from shutting off and depriving him of gas. for a cook stove and laundry in his dwelling and to restore and return connections and mixers heretofore severed and removed to a furnace and grate in his dwelling and to a furnace in his office, and to supply him with gas therefor,” etc. A demurrer was filed, which was overruled and a preliminary injunction awarded, directing the defendant company to reconnect its service with plaintiff’s establishments and refrain from cutting off his supply. The record was removed to this court (5 Pa. Superior Ct. 19) and the decree was reversed, and it was ordered that the defendant answer the bill within such reasonable time after the return of the record as should be fixed by the court below. Pursuant to this decree, an answer was filed and considerable testimony taken.

On August 1,1891, the defendant company and Charles Cor-bet entered into two written contracts, wherein the defendant company agreed to furnish natural gas to the plaintiff to be used in his house and law office in Brookville, Pennsylvania. The agreements were on a printed form prepared by the defendant and submitted to the plaintiff for his signature by Mr, Fleming, -who was the active representative of the defendant at Brookville in making contracts with customers and who had general charge of its affairs necessary to the carrying on of its business at that place. Mr. Corbet expressed himself as dissatisfied with the printed form, and insisted on a provision in the contract, which materially changed the printed form in providing that the gas to be used in his dwelling and office should be for “ so long as he may desire to continue the use thereof ” for the purposes mentioned and at designated rates. The printed form was not changed in other respects. This agreement, as amended, was executed by Mr. Corbet and delivered to Mr. Fleming who in turn delivered it to the defendant and the plaintiff at once became a consumer of gas under these contracts. He paid for gas for five years in accordance with these stipulations, when the defendant gave him notice that the term of his contract had expired and that thereafter he would be required to pay in advance the monthly rates of the company, which were higher in amount than had been mentioned in the contracts. It is idle to say that the words “ so long as he may desire to continue the use thereof ” were inserted without the knowledge of the defendant, who alleged that they were first discovered five years afterwards. The testimony abundantly shows that when the application was submitted to Mr. Corbet, it was examined and criticised, an initial letter of his name was changed and the words quoted were inserted in the presence of Mr. Fleming by Mr. Corbet, who declared that he would not make the contract without them. The sending of the contracts to the main office of the company at Oil city may or may not have been known to Mr. Corbet; the contract does not suggest anything in regard to it. The defendant is designated as the Oil City Supply Company of Brookville, Pennsylvania, where the contract was signed and where the plaintiff resided. It is presuming a great deal to suppose that the principal would not examine the contract delivered to it by its agent until after five years of performance of its conditions. The plaintiff’s house and office were specially fitted up and piped for gas and connected with the pipe line furnishing it when the contracts were executed and the mains of the defendant were then and are yet the only source of supply. It is contended by the appellant that the insertion of the words “ so long as he may desire to continue the use thereof ” were without consideration and render the contract void for want of mutuality. The contract was not without consideration in view of the special preparation and expenditure of money in providing for and constructing the means to use the gas under the contract, and after stipulating for payment of gas at fixed rates for the future; neither can it be contended that the' defendant did not have legal power to make such a contract, if it so desired. The several covenants regulating the use of the gas and payment for it had regard to future consumption at the rate designated as well as for the quarterly payments as they became due. It is not a question of adequacy of consideration. If it is of some legal benefit to one party or injury to another, though of the slightest kind, it is a sufficient consideration: Hendrick v. Thomas, 106 Pa. 327 ; Steigerwalt v. Smeych, 9 Pa. Superior Ct. 363.

Consideration, like every other part of a contract, must be the result of agreement. The parties must understand and be influenced to the particular action by something of value, of convenience or inconvenience, recognized by all of them as the moving cause (Kirkpatrick v. Muirhead, 16 Pa. 117) ; and the testimony in this case is overwhelming as found to be a fact by the court below, that Mr. Corbet emphatically refused to sign the contract without a provision such as was then inserted by him. This was clearly and legibly done, and the contract was accepted and acted upon for five years without objection. In defendant’s answer it is admitted that it entered into two contracts with the plaintiff on or about August 1,1891, but denied that the contracts exhibited were true copies of the contracts signed, sealed and entered into with the plaintiff. No other contracts than these were offered in evidence, and the defendant’s notice of July 31,1896, that it had concluded to terminate the contracts and put Mr. Corbet’s property on meters thereafter, fully identifies these in evidence as the only ones in existence. The undertaking of the defendant under an agreement under seal was a sufficient consideration to support the undertaking of the plaintiff and it does not lack mutuality for the reason that Mr. Corbet cannot be compelled to use gas. He applied for its use so long as he may desire to continue the use thereof, but must pay in advance before any is used. The principle that contracts must be mutual, must bind both parties or neither, does not mean that in every ease each party must have the same remedy for a breach by the other. Covenant may .lie against one, where only assumpsit can be maintained against the other. The mutuality required is that which is necessary for creating a contract in some manner enforceable on both sides, but not necessarily enforceable on both sides by specific performance : Grove v. Hodges, 55 Pa. 516; Northern Central Railway Co. v. Walworth, 193 Pa. 207 ; Phila. Ball Club, Ltd., v. Lajoie, 202 Pa. 210. Even if the defendant had waived the provision for payment in advance and had allowed the gas to flow without payment, it had an ample legal remedy to enforce appellee’s covenant to pay for it.

Where a large part of the consideration for entering into a contract has been received and the contract is not in violation of law, it ought to be enforced specifically, if it be of such terms as that it is capable of enforcement in equity, and if the parties, as they now stand in relation to each other, can be brought within the jurisdiction of equity so that the hand of a chancellor will reach them: Cumberland Valley Railroad Co. v. Gettysburg, etc., Ry. Co., 177 Pa. 519.

Where there are mutual covenants stipulating reciprocal advantages in an executory contract, and even if not mutual in the sense of equality of benefit, that is, not the mutuality which stands in the way of an enforcement, yet, if the contract be accepted and performed by one, equity will compel performance on the part of the other: Yerkes v. Richards, 153 Pa. 646 ; Borie v. Satterthwaite, 180 Pa. 542. If the agreement, as signed by Mr. Corbet, be treated only as an application, nevertheless it was accepted and approved in all of its terras, and, after five years of ratification, and acceptance of payments by the defendant as therein stipulated, it is now too late to deny that there was a contract between the parties or that it was at all different from that contained in this writing. The defendant company was incorporated under the Act of May 29, 1885, P. L. 29, and its supplement of May 11,1897, P. L. 50, and under its charter it became its duty “ to furnish gas to persons, corporations and associations within convenient connecting distance of its line of pipe, as may desire to use the same, upon such terms, and under such reasonable regulations, as the gas company shall establish.refusal to discharge this duty brings it within equitable jurisdiction. A substituted remedy at law could not under the facts be fully adequate, complete or reasonably convenient: Johnston v. Price, 172 Pa. 427. Or as stated in Pennsylvania Co., etc., v. Franklin Fire Insurance Co., 181 Pa. 40, “ to oust jurisdiction in equity, it (the remedy) must be complete ; that is, it must attain the full end and justice of the case; it must reach the whole mischief and secure the whole right of the party, in a perfect manner, at the'present time, and in the.future : ” Steinmeyer v. Siebert, 190 Pa. 471. A bill in equity may be sustained solely on the ground that it is the most convenient remedy (Brush Electric Co’s. Appeal, 114 Pa. 574) ; and this especially so where the remedy afforded by a court of law is obviously inconvenient and of doubtful adequacy: Conemaugh Gas Co. v. Jackson Farm Gas Co., 186 Pa. 443.

The plaintiff’s house is equipped for the use of gas after the outlay of considerable money, and the defendant has a monopoly of the business of furnishing gas. Under such circumstances the measure of damages would be purely conjectural and an action at law is not adequate'./

The argument that there is no irreparable damage would not be so often used by wrongdoers, if they would take the trouble to observe that the word “ irreparable ” is a very unhappily chosen one, used in expressing the rule that an injunction may issue to prevent wrongs of a repeated and continuing character, or which occasion damages that are estimable only by conjecture and not by any accurate standard. As this argument is generally presented, it seems to be supposed that injunctions. can apply only to very great injuries; and it would follow that he who has not much property to be injured, cannot have this protection for the little he has. Besides this, where the right invaded is secured by statute or by contract, there is generally no question of the amount of damage, but simply of the right. He who grants a right cannot take it away, even on giving a better, without a new agreement for the purpose: Commonwealth v. Pittsburg & Connellsville Railroad Co., 24 Pa. 159.

The assignments of error are overruled and the judgment is affirmed.