DAWKINS, District Judge.
This suit, filed July 23, 1947, is for a declaratory judgment construing a contract entered into on February 21, 1918. Defendant has moved to dismiss the complaint on the grounds: (1) It failed to state a claim upon which relief could be granted; and (2) on a plea of prescription of ten years under Art. 3544 of the Louisiana Civil Code.
Plaintiff (called Imperial) makes part of its complaint the contract between itself, on the one part, and the DeSiard Development Co., Inc. (called DeSiard), and Ouachita Natural Gas and Oil Co. (called Ouachita), on the other. The allegations, in substance, are as follows:
That the defendants were the successors in title and assumed all the obligations of the DeSiard and Ouachita under said contract, which required DeSiard, as the owner of a lease upon 535 acres of land, known as the Phillips tract, “to acquire additional acreage,” sufficient to make a total of 1500 acres, “on which lands, owned and to be acquired” it promised to drill gas wells. Other pertinent recitals were that Imperial would engage in the manufacture of carbon black to be made from gas furnished by De-Siard from said wells, under terms of the contract. Relevant provisions appear in the footnotes.1
The complaint describes it as a “requirements contract,” and charges that, although DeSiard and Ouachita appeared as separate corporations, they had “substantially the [338]*338same stock ownership and (were) under common management and control”; that relying upon said contract, it (plaintiff) “proceeded at large expense to build its plant as therein contemplated and has ever since the date of said complaint continuously operated the same”; that DeSiard had conducted no development upon the acreage owned by it (the Phillips tract) at the date of the contract, acquired no additional [339]*339leases to make up the 1500 acres and had never delivered any gas to plaintiff; “but Ouachita, and subsequently those holding under Ouachita, who had assumed its obligations, including the present defendant, United,” have been furnishing to plaintiff, until Monday, July 14, 1947, its requirements under the terms of said written contract; that by letter dated April 11, 1947, copy of which was annexed to the com[340]*340plaint, defendant “now takes the position that despite its unconditional assumption of the obligations of DeSiard and Ouachita, it is no longer under obligation to furnish to plaintiffs the gas required by it, under said contract, and did, on or about July 14, 1947, curtail the supply * * * down to * * * approximately 2,600,000 cubic feet * * * per day * * * notwithstanding * * * plaintiff, by its letter * * * under date of June 4, 1947, * * * annexed * * * challenged the right of defendant to curtail below 15,000,000 cubic feet of gas per day * * * and called upon defendant to * * * comply with its obligations * * that this action of defendant caused plaintiff “to close down more than eighty per cent of its plant * * * making its investment with respect to such idle facilities valueless * * * ” and causing plaintiff irreparable damage. For those reasons it alleged “a serious and genuine controversy now exists * * * as to the obligations of” defendant “under the said contract and as to the meaning, construction, effect and mutual liabilities thereunder”; that defendants bound themselves to deliver and plaintiff agreed to take and-pay for not less than three million cubic feet of gas per day, with the privilege of demanding a maximum of fifteen million cubic feet, if the needs of business required; that had DeSiard complied with its obligation to .acquire the additional acreage and to develop the 1500 acres, it and its successors in ■interest would be amply able at this time to supply the maximum amount under said •contract; that defendant “now offers as an ■excuse for non-compliance” the claim that the needs of its patrons in Monroe and ■environs “make it impossible to supply the .-maximum of 15,000,000 cubic feet of gas per •day to the plaintiff”; that this contention is without merit for the reasons stated, and 'had the acreage been developed, the same would now furnish all the gas needed for other customers and to supply plaintiff with its requirements under the said contract; that no additional wells have ever been ■drilled upon the 6080 acres as promised by ■Ouachita for the fulfillment of this contract -notwithstanding said properties were acquired by defendant and its predecessors in .title more than sixteen years ago. Further, that had this 6080 acres been properly developed, sufficient gas for all purposes would now be available; and further, that defendants and their predecessors, whose obligations were assumed, acquired other large areas of gas producing lands in the Monroe field, more than ample to supply the maximum requirements under the contract.
It further alleged that because of the failure of DeSiard to develop the Phillips tract, and to acquire and develop additional acreage as promised, it and the defendants are now estopped to contend the said requirements cannot now be supplied from said acreage; that defendant has not only curtailed delivery below the minimum provided in the contract but threatens to reduce it further, and during the cooler months, to shut off the supply entirely; that if this is done, it will destroy the value of plaintiff’s investment in its plant; and, that since defendant notified plaintiff of its contention “'that it was no longer obligated to supply gas under said contract,” plaintiff has been endeavoring to secure from other producers in the Monroe held and elsewhere a “supply of gas * * * to operate its plant” at prices which would permit it to do so at a fair profit, all without success.
(Under the facts plead plaintiff alleges that it is entitled to “a judgment decreeing the specific performance of the obligations of United as the successor of DeSiard and Ouachita * * * and that it is entitled to injunctive process * * * ” for enforcement of such decree. It prays that the Court decree that (a) defendant is under obligation to furnish the gas requirements to plaintiff within the minimum and maximum limits provided by the contract; (b) that the judgment further decree specific performance of the said contract; (c) that a mandatory injunction issue for that purpose ; (d) that “for the purpose of affording the full and complete relief which should be extended by a court of equity, said judgment recognize that all the leases, mineral rights and other properties formerly belonging to Ouachita, now owned by Union Producing Company,” and, subject to the rights of plaintiff, under the aforesaid contract, for maximum delivery of 15,000,000 cubic feet of gas per day, be enforced by mandatory injunction; (e) that the Court [341]*341retain jurisdiction for those purposes; and (f) that jurisdiction be retained for the further purpose of “liquidating and decreeing damages accruing to this plaintiff by-reason of the wrongful acts of the defendants as hereinabove alleged”; or in the alternative that plaintiff’s right to sue for damages be reserved.
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DAWKINS, District Judge.
This suit, filed July 23, 1947, is for a declaratory judgment construing a contract entered into on February 21, 1918. Defendant has moved to dismiss the complaint on the grounds: (1) It failed to state a claim upon which relief could be granted; and (2) on a plea of prescription of ten years under Art. 3544 of the Louisiana Civil Code.
Plaintiff (called Imperial) makes part of its complaint the contract between itself, on the one part, and the DeSiard Development Co., Inc. (called DeSiard), and Ouachita Natural Gas and Oil Co. (called Ouachita), on the other. The allegations, in substance, are as follows:
That the defendants were the successors in title and assumed all the obligations of the DeSiard and Ouachita under said contract, which required DeSiard, as the owner of a lease upon 535 acres of land, known as the Phillips tract, “to acquire additional acreage,” sufficient to make a total of 1500 acres, “on which lands, owned and to be acquired” it promised to drill gas wells. Other pertinent recitals were that Imperial would engage in the manufacture of carbon black to be made from gas furnished by De-Siard from said wells, under terms of the contract. Relevant provisions appear in the footnotes.1
The complaint describes it as a “requirements contract,” and charges that, although DeSiard and Ouachita appeared as separate corporations, they had “substantially the [338]*338same stock ownership and (were) under common management and control”; that relying upon said contract, it (plaintiff) “proceeded at large expense to build its plant as therein contemplated and has ever since the date of said complaint continuously operated the same”; that DeSiard had conducted no development upon the acreage owned by it (the Phillips tract) at the date of the contract, acquired no additional [339]*339leases to make up the 1500 acres and had never delivered any gas to plaintiff; “but Ouachita, and subsequently those holding under Ouachita, who had assumed its obligations, including the present defendant, United,” have been furnishing to plaintiff, until Monday, July 14, 1947, its requirements under the terms of said written contract; that by letter dated April 11, 1947, copy of which was annexed to the com[340]*340plaint, defendant “now takes the position that despite its unconditional assumption of the obligations of DeSiard and Ouachita, it is no longer under obligation to furnish to plaintiffs the gas required by it, under said contract, and did, on or about July 14, 1947, curtail the supply * * * down to * * * approximately 2,600,000 cubic feet * * * per day * * * notwithstanding * * * plaintiff, by its letter * * * under date of June 4, 1947, * * * annexed * * * challenged the right of defendant to curtail below 15,000,000 cubic feet of gas per day * * * and called upon defendant to * * * comply with its obligations * * that this action of defendant caused plaintiff “to close down more than eighty per cent of its plant * * * making its investment with respect to such idle facilities valueless * * * ” and causing plaintiff irreparable damage. For those reasons it alleged “a serious and genuine controversy now exists * * * as to the obligations of” defendant “under the said contract and as to the meaning, construction, effect and mutual liabilities thereunder”; that defendants bound themselves to deliver and plaintiff agreed to take and-pay for not less than three million cubic feet of gas per day, with the privilege of demanding a maximum of fifteen million cubic feet, if the needs of business required; that had DeSiard complied with its obligation to .acquire the additional acreage and to develop the 1500 acres, it and its successors in ■interest would be amply able at this time to supply the maximum amount under said •contract; that defendant “now offers as an ■excuse for non-compliance” the claim that the needs of its patrons in Monroe and ■environs “make it impossible to supply the .-maximum of 15,000,000 cubic feet of gas per •day to the plaintiff”; that this contention is without merit for the reasons stated, and 'had the acreage been developed, the same would now furnish all the gas needed for other customers and to supply plaintiff with its requirements under the said contract; that no additional wells have ever been ■drilled upon the 6080 acres as promised by ■Ouachita for the fulfillment of this contract -notwithstanding said properties were acquired by defendant and its predecessors in .title more than sixteen years ago. Further, that had this 6080 acres been properly developed, sufficient gas for all purposes would now be available; and further, that defendants and their predecessors, whose obligations were assumed, acquired other large areas of gas producing lands in the Monroe field, more than ample to supply the maximum requirements under the contract.
It further alleged that because of the failure of DeSiard to develop the Phillips tract, and to acquire and develop additional acreage as promised, it and the defendants are now estopped to contend the said requirements cannot now be supplied from said acreage; that defendant has not only curtailed delivery below the minimum provided in the contract but threatens to reduce it further, and during the cooler months, to shut off the supply entirely; that if this is done, it will destroy the value of plaintiff’s investment in its plant; and, that since defendant notified plaintiff of its contention “'that it was no longer obligated to supply gas under said contract,” plaintiff has been endeavoring to secure from other producers in the Monroe held and elsewhere a “supply of gas * * * to operate its plant” at prices which would permit it to do so at a fair profit, all without success.
(Under the facts plead plaintiff alleges that it is entitled to “a judgment decreeing the specific performance of the obligations of United as the successor of DeSiard and Ouachita * * * and that it is entitled to injunctive process * * * ” for enforcement of such decree. It prays that the Court decree that (a) defendant is under obligation to furnish the gas requirements to plaintiff within the minimum and maximum limits provided by the contract; (b) that the judgment further decree specific performance of the said contract; (c) that a mandatory injunction issue for that purpose ; (d) that “for the purpose of affording the full and complete relief which should be extended by a court of equity, said judgment recognize that all the leases, mineral rights and other properties formerly belonging to Ouachita, now owned by Union Producing Company,” and, subject to the rights of plaintiff, under the aforesaid contract, for maximum delivery of 15,000,000 cubic feet of gas per day, be enforced by mandatory injunction; (e) that the Court [341]*341retain jurisdiction for those purposes; and (f) that jurisdiction be retained for the further purpose of “liquidating and decreeing damages accruing to this plaintiff by-reason of the wrongful acts of the defendants as hereinabove alleged”; or in the alternative that plaintiff’s right to sue for damages be reserved.
Basically, defendant, by this motion contends that the contract sued upon and annexed to the petition is not susceptible of enforcement by a decree for specific performance, in that (a) although it stipulated DeSiard was the owner of the Phillips tract of 535 acres, and bound itself to acquire 965 acres additional to make a total of 1500 acres, all of which was to be developed for fulfillment of the contract, these provisions were all executory and were never performed ; (b) the Court could not, in the beginning, and can not now, compel it to do so, particularly at this late date; and (c) that any cause of action for that purpose which may have existed has long since prescribed under provisions of the Louisiana Civil Code.
Of course, the motion to dismiss admits all the allegations of fact of the complaint as modified by the provisions of the contract and other exhibits annexed thereto. If, for the moment, we eliminate the Ouachita and consider the matter as if the De-Siard had owned, at the time of making the contract, producing leases sufficient to furnish plaintiff the minimum and maximum ■quantities of gas for the price agreed upon, and this condition had continued up to this time, there would appear to be no reason why it should not continue to do so, as was ■done up to July 14, 1947, in the absence of the happening of conditions provided in the contract, or of other circumstances now existing, which would make specific perform.ance either inequitable or impossible. However, the contract recognized that DeSiard, although owning the Phillips tract, had not developed it, and that to fulfill the undertaking, it was necessary to acquire the other acreage and to develop it all, in order to supply the quantities of gas stipulated. In this situation, without the joining of Oua- ■ chita in the contract, it would seem clear - that the court could not have enforced the . obligations to acquire and develop the acreage as agreed; but this would not necessarily have been true, after it had been so acquired and developed. Such failure, in the absence of Ouachita as a party to the contract, would have relegated Imperial to an action in damages, with the result that the matter would probably have been settled, judicially or otherwise, within a short time after default by DeSiard. But it was not left in that condition. Anticipating that DeSiard might not, for some reason, comply with its obligations, the contract in Article 5 declared that it should be “for the full term of a period of three years from the date hereof, and is to remain in full force and effect so long thereafter as the said DeSiard Company or Ouachita Natural Gas and Oil Company, to be hereafter named as a party to this contract and designated as Ouachita Company under the conditions and with the limitations hereinafter provided with respect to said Ouachita Company are able to furnish gas in at least the minimum amount stipulated herein.” (Emphasis by the writer.)
In the 7th Article, the Ouachita is again mentioned along with DeSiard as having the right to extract the gasoline from all gas to be furnished, and Article 8 thereof stipulates that the “DeSiard Company and the said Ouachita, should it become necessary under the conditions hereinafter named and stipulated for delivery by said Ouachita Company of any gas under this contract” should keep their pipe lines in good repair “up to the meters installed under this contract” and that Imperial should keep in repair all pipe lines “from said meters into their said buildings,” and neither the DeSiard nor Ouachita should be liable for any damages occurring in the plant beyond said meters. By Article 9, it was further agreed that Imperial should begin erection of its plant “within thirty days from date of the signing hereof” and be completed as rapidly as was reasonably possible under existing conditions, during which time Imperial was to be furnished gas at the same price by Ouachita, and “in event the DeSiard Company has not completed its wells to the point or stage of being able to furnish, the same shall be. furnished by the Ouachita Company, as shall be hereinafter stipulated.” (Emphasis by the writer.)
[342]*342In Article 11 the parties were to be absolved from performing the contract in event of legislation prohibiting the use of natural gas for making carbon black.
In Article 13 DeSiard and Ouachita further agreed to keep their facilities in good repair, to conserve and not waste gas “to the end that there may be a uniform and continuous flow for the use of Imperial, * * * and DeSiard agrees not to sell gas” from the said 1500 acres to any one else “without the written consent of the said Imperial Company.”
In Article 14 DeSiard bound itself “to within 90 days from the date hereof acquire leasehold ownerships for the purpose of gas development of a sufficient acreage together with that now owned by it, to bring the total * * * up to fifteen hundred (1500) acres, said acreage to be acquired in proven gas territory.” The last paragraph of this article provided:
“And now hereunto comes Ouachita Natural Gas & Oil Company, Inc., hereinabove and hereinafter designated and called Ouachita Company, and makes itself a party -to this contract, and for the considerations herein flowing to it and of which it may be the beneficiary, agrees, obligates and binds itself to and in behalf of the other signatories hereto, as follows, to-wit:”
Then follows Articles 15, 16, 17, 18, and 19 appearing in the footnotes, from which it is seen that Ouachita, within certain limitations, in effect, agreed to furnish the gas stipulated if DeSiard “for any reason” failed, placing itself in the position of the latter in the performance of this contract, which it continued to carry out for almost thirty years. In such a situation the burden rests very heavily upon defendants to show that conditions have changed to a point which would now make it impossible or inequitable to perform within the terms of the assumption to the same extent as would have been required of DeSiard. The suit is not, it is believed, one to require, as contended by defendants, the development of the Phillips tract, or the acquisition and development of leases to make up the 1500 acres, but to compel them to continue to furnish the quantities of gas within the minimum and maximum stipulated. The allegations with regard to these failures are what may be called historical, as showing why defendants could not, in equity, be relieved.
Contracts for furnishing minimum and maximum quantities of commodities, to manufacturers, for definite periods of time, at fixed prices, have been sustained uniformly. Sometimes the option is in; favor of the buyer, and at others, the seller. If the former, he is bound to take the minimum and may demand the maximum; while the latter must supply the minimum and may require acceptance of the maximum. United Carbon Co. v. Interstate Natural Gas Co., 176 La. 929, 147 So. 37; Lee v. National Box Co., 170 La. 1065, 129 So. 638; Taggert v. Brimficld,, 3 Cir., 281 F. 830.
It does not necessarily follow that because the value of gas has increased, defendants for that reason alone should be relieved of their obligations. Nor, is it apparent on the face of the complaint that the court would have to do more, in the present proceeding than decide whether, in the light of the equities disclosed upon hearing, the relief prayed for should be granted. Since the demand, as such, is not one to compel the purchasing of lands or the drilling of wells, the prescription pleaded appears to have no application in view of the fact, that, according to the complaint, defendants continued to perform until a few days before the action was. filed, and plaintiff had no ground to complain as long as it was receiving all it was entitled to under the contract in the meantime.
According to its complaint, promptly upon being advised that the contract would not be carried out further, plaintiff brought this-suit for a determination of its right to specific performance, and the .matter can be determined only after a hearing.
The motion to dismiss and plea of prescription will be denied at this time.
Proper decree should be presented.'