Conemaugh Gas Co. v. Jackson Farm Gas Co.

Opinion by

Mr. Justice McCollum:,

The assignments of error from the first to the tenth, inclusive, are based upon and call in question the correctness of the referee’s findings of fact. Presumably the findings were authorized by the evidence, and the presumption that they were is strengthened by the clear, concise and obviously impartial report in which they appear, and by the approval of the report by the court, after full argument upon and due consideration of the exceptions to it. A careful reading of the voluminous testimony in the case having satisfied us that the findings referred to were clearly warranted by it, an elaborate discussion of it is not called for. It is shown by many decisions of this court that the party complaining of the verdict of a jury or the findings of a master, auditor or referee, as unauthorized by the evidence, must specify the deficiencies in it and show that it is legally insufficient to sustain the verdict or findings of which complaint is made. In the case at bar a strenuous effort was made to convince us of error in the findings referred to, but it was unsuccessful because, as we have seen, they were sustained by the evidence.

The referee’s conclusions of law appear to be applicable to and in conformity with the facts as found, and the alleged errors in them are mainly predicated upon the alleged errors in his findings of fact. To the extent that this, contention is dependent upon errors in the findings of fact it needs no consideration, because it is only an indirect method of attacking them after a direct assault has proved fruitless.

The defendant’s printed argument is mainly devoted to the support of the proposition that the case is not within the jurisdiction of a court of equit}!", and that if it is technically cognizable there, the evidence should have induced the chancellor to dismiss the plaintiff’s bill, and thus referred the parties to another tribunal for an adjustment of their disputes. We do not assent to this view of the case. There is certainly no reasonable ground for denying that in view of the nature and subject-matter of the controversy a court of equity affords the most convenient remedy for a just disposition of the questions involved in it, while the remedy afforded by a court of law is obviously inconvenient, and the adequacy of it is at least doubtful. In the appeal of the Brush Electric Company, 114 Pa. 574, Mr. Justice Gordon said: “A bill may be sustained solely on the ground that it is the most convenient remedy.” In support of this statement he cited Kirkpatrick v. McDonald, 11 Pa. 393. See also on this point Drake v. Lacoe et al., 157 Pa. 17, and Warner v. McMullin, 131 Pa. 370. The cases of Whiteman v. Fayette Fuel-Gas Co., 139 Pa. 492, and Sewickley Borough School District v. Ohio Valley Gas Co., 154 Pa. 539, are also in point.

We do not concur in the argument or suggestion that the contract between the parties is against public policy and therefore the defendant company should be relieved from its liability for what is justly due the plaintiff upon it. In the first place, it has not been shown that the contract is violative of any provision of the law applicable to it, and this by itself is a sufficient answer to the suggestion. Besides, the law does not look with favor upon a defense based on the unlawful act of the party interposing it.

The case was carefully tried by the "learned referee who appears to have fairly considered and passed upon all the questions of law and fact raised before him. These questions are substantially raised by the assignments before us. As we are not able to discover in his findings of fact or conclusions of law any ground for reversing the decree recommended by him we overrule the assignments.

Decree affirmed and appeal dismissed at the costs of the appellant.