Opinion by
Mr. Justice Green,
The claim of the plaintiff was strictly limited in the statement of claim filed to a right to recover for gas under the original contract as modified by the subsequent letters, during the months of Januaiy, February and March, 1892. The claim is for $542.50 for the month of January, $507.50 for the month of February, and $490 for the month of March, aggregating $1,540. There was not, and there could not be, either under the original contract, or under'the subsequent letters modifying [565]*565it, any right of action to recover anything except for gas actually furnished by the plaintiff to the defendant during the months named. Yet there is no precise and definite averment in the statement of claim that the gas for which the claim is made was actually furnished to the defendant during the months mentioned, or at any time. The first part of the statement alleges that the claim is to recover $1,540 for natural gas furnished to the defendant for the months of January, February and March, 1892, in accordance with a written contract of March 10,1888, and certain letters of which the dates are given, and copies attached. There is a description of what the claim is. Then follows an averment that the defendant used for fuel natural gas furnished by the plaintiff during the months named, and thereby became liable to pay the plaintiff at the rate of $3.50 per day for each of five boilers, amounting in the aggregate to $1,540, and adds a statement for each month.
This statement amounts to this, that the defendant used, as fuel, natural gas, which was furnished by the plaintiff during the three months named, at the rate of $3.50 for each one of five boilers, and became liable to pay therefor $1,540. All this may be true, and yet the plaintiff may not have actually furnished any more than a mere fraction of the quantity really required for the use of the boilers. It would still be the use for fuel of natural gas furnished, although the quantity furnished may have been infinitesimal, and the defendant may have been actually required to furnish other fuel in large quantities to supply the deficiency. The amount of the liability specified in the statement does not help the insufficiency of tbe allegation as to the quantity furnished, as it is nothing more than a legal conclusion, and its correctness as such necessarily depends upon the quantity actually furnished, adjudged by the terms of the contract. Now the contract requires that the amount of gas to be furnished should be “ an amount sufficient to supply the boilers now in use, or hereafter to be erected for use in its paper and pulp mills at West Newton in said county for the period of five years.” By the subsequent terms of the contract it appears that there were thirteen boilers then in actual use, and each one was to be paid for at the rate of $2.65 for every day of twenty-four hours. It is also further provided that, in case of an interruption or failure in the gas supply ne[566]*566eessitating the shutting down of the mills, no charge should be made for gas for the days the mills are not running; and also that, if for any other cause the mills are not in operation, no charge for gas shall be made for the period of such cessation, “ it being the intention of the parties hereto, that said second party shall pay at the rate hereinbefore stated for the number of days and fractions of days said mills are in actual operation, and said gas is actually used.”
It will be seen therefore that the obligation of the defendant is to pay for gas actually furnished only, and the amount to be furnished was to be sufficient to supply the boilers. The contract was made in 1888. In May, 1891, the correspondence commenced, and it is to be inferred from the letters, and is alleged in the affidavit of defence, that the plaintiff did not furnish enough gas to supply the thirteen boilers. Thereupon the original contract was modified so as to require the plaintiff to furnish enough gas to supply a minimum of five boilers at a price of $3.50 per day for each. But the defendant, by the two final letters of June 4 and June 12, 1891, expressly stipulated as follows, “ we do not want to agree to pay for any gas we do not use,” and “ we shall probably be glad to use all of the gas you (San furnish us, but our understanding of the result of our correspondence is, that you accept our proposition as contained in our letter of May 14th and that we are to pay for gas only as used.” In the letter of June 12th the defendant, writing to the plaintiff, says, “ I feel authorized to accept your suggestion that five boilers shall be the minimum of boilers in use, and if we cannot be supplied with this amount of gas, we will want to discontinue the use of gas altogether.” As this is the last of the letters appearing before us, we conclude that it was the modified agreement of the parties that the plaintiff, from that time on, should furnish as much gas as was required to supply at least five boilers per day, and that only such gas as was actually furnished and used should be paid for.
If we consider the statement of claim in the light of the original contract and the modified contract as appears by the letters, it would seem that it is quite insufficient to support the claim made, as it does not aver that an amount of gas necessary to supply a minimum of five boilers per day was ever actually furnished. It is extremely doubtful therefore whether [567]*567a right to judgment could be sustained, even in the absence of any affidavit of defence.
But the affidavits filed allege specifically and positively, not only that the plaintiff never did supply enough gas to run the thirteen boilers, and set out at length the precise injury done thereby in dollars and cents which they were obliged to expend in obtaining coal to make up for the defieiencj^ of gas, but also charge that during the three months for which the plaintiff’s claim is made “ the plaintiff continued to divert its supply of natural gas from the defendant and to deliver the same to consuméis subsequent in date of contract to the defendant, and that the gas furnished by plaintiff to defendant during said three months, by reason of such deficiency in quantity, was only worth the following sums: January, 1892, one hundred and eight and dollars (#108.50) ; February, 1892, one hundred and one dollars (#101.50) ; March, 1892, ninety-eight dollars (#98.00).”
As we are bound to assume the truth of the averments in the affidavits of defence, it is clear there can be no right of recovery for #1,540 for the gas furnished in the three months, when the value of all that was actually furnished was only #308.
Free access — add to your briefcase to read the full text and ask questions with AI
Opinion by
Mr. Justice Green,
The claim of the plaintiff was strictly limited in the statement of claim filed to a right to recover for gas under the original contract as modified by the subsequent letters, during the months of Januaiy, February and March, 1892. The claim is for $542.50 for the month of January, $507.50 for the month of February, and $490 for the month of March, aggregating $1,540. There was not, and there could not be, either under the original contract, or under'the subsequent letters modifying [565]*565it, any right of action to recover anything except for gas actually furnished by the plaintiff to the defendant during the months named. Yet there is no precise and definite averment in the statement of claim that the gas for which the claim is made was actually furnished to the defendant during the months mentioned, or at any time. The first part of the statement alleges that the claim is to recover $1,540 for natural gas furnished to the defendant for the months of January, February and March, 1892, in accordance with a written contract of March 10,1888, and certain letters of which the dates are given, and copies attached. There is a description of what the claim is. Then follows an averment that the defendant used for fuel natural gas furnished by the plaintiff during the months named, and thereby became liable to pay the plaintiff at the rate of $3.50 per day for each of five boilers, amounting in the aggregate to $1,540, and adds a statement for each month.
This statement amounts to this, that the defendant used, as fuel, natural gas, which was furnished by the plaintiff during the three months named, at the rate of $3.50 for each one of five boilers, and became liable to pay therefor $1,540. All this may be true, and yet the plaintiff may not have actually furnished any more than a mere fraction of the quantity really required for the use of the boilers. It would still be the use for fuel of natural gas furnished, although the quantity furnished may have been infinitesimal, and the defendant may have been actually required to furnish other fuel in large quantities to supply the deficiency. The amount of the liability specified in the statement does not help the insufficiency of tbe allegation as to the quantity furnished, as it is nothing more than a legal conclusion, and its correctness as such necessarily depends upon the quantity actually furnished, adjudged by the terms of the contract. Now the contract requires that the amount of gas to be furnished should be “ an amount sufficient to supply the boilers now in use, or hereafter to be erected for use in its paper and pulp mills at West Newton in said county for the period of five years.” By the subsequent terms of the contract it appears that there were thirteen boilers then in actual use, and each one was to be paid for at the rate of $2.65 for every day of twenty-four hours. It is also further provided that, in case of an interruption or failure in the gas supply ne[566]*566eessitating the shutting down of the mills, no charge should be made for gas for the days the mills are not running; and also that, if for any other cause the mills are not in operation, no charge for gas shall be made for the period of such cessation, “ it being the intention of the parties hereto, that said second party shall pay at the rate hereinbefore stated for the number of days and fractions of days said mills are in actual operation, and said gas is actually used.”
It will be seen therefore that the obligation of the defendant is to pay for gas actually furnished only, and the amount to be furnished was to be sufficient to supply the boilers. The contract was made in 1888. In May, 1891, the correspondence commenced, and it is to be inferred from the letters, and is alleged in the affidavit of defence, that the plaintiff did not furnish enough gas to supply the thirteen boilers. Thereupon the original contract was modified so as to require the plaintiff to furnish enough gas to supply a minimum of five boilers at a price of $3.50 per day for each. But the defendant, by the two final letters of June 4 and June 12, 1891, expressly stipulated as follows, “ we do not want to agree to pay for any gas we do not use,” and “ we shall probably be glad to use all of the gas you (San furnish us, but our understanding of the result of our correspondence is, that you accept our proposition as contained in our letter of May 14th and that we are to pay for gas only as used.” In the letter of June 12th the defendant, writing to the plaintiff, says, “ I feel authorized to accept your suggestion that five boilers shall be the minimum of boilers in use, and if we cannot be supplied with this amount of gas, we will want to discontinue the use of gas altogether.” As this is the last of the letters appearing before us, we conclude that it was the modified agreement of the parties that the plaintiff, from that time on, should furnish as much gas as was required to supply at least five boilers per day, and that only such gas as was actually furnished and used should be paid for.
If we consider the statement of claim in the light of the original contract and the modified contract as appears by the letters, it would seem that it is quite insufficient to support the claim made, as it does not aver that an amount of gas necessary to supply a minimum of five boilers per day was ever actually furnished. It is extremely doubtful therefore whether [567]*567a right to judgment could be sustained, even in the absence of any affidavit of defence.
But the affidavits filed allege specifically and positively, not only that the plaintiff never did supply enough gas to run the thirteen boilers, and set out at length the precise injury done thereby in dollars and cents which they were obliged to expend in obtaining coal to make up for the defieiencj^ of gas, but also charge that during the three months for which the plaintiff’s claim is made “ the plaintiff continued to divert its supply of natural gas from the defendant and to deliver the same to consuméis subsequent in date of contract to the defendant, and that the gas furnished by plaintiff to defendant during said three months, by reason of such deficiency in quantity, was only worth the following sums: January, 1892, one hundred and eight and dollars (#108.50) ; February, 1892, one hundred and one dollars (#101.50) ; March, 1892, ninety-eight dollars (#98.00).”
As we are bound to assume the truth of the averments in the affidavits of defence, it is clear there can be no right of recovery for #1,540 for the gas furnished in the three months, when the value of all that was actually furnished was only #308.
But the supplemental affidavit further alleges that gas was not furnished for the number of days claimed in the statement,, but for a less number of days, which are specified for each month, and further avers, “ That during said months plaintiff wholly failed to deliver to defendant natural gas sufficient to supply five boilers with fuel, and that in order to heat said boilers, and to supply fuel for the operation of its mill, which under the original contract, and the contract as amended, by the letters set forth by plaintiff, defendant was compelled to purchase and did purchase coal at the market price thereof, which market price was the sum of five thousand and nineteen dollars, which was paid by defendant, and defendant was compelled to employ laborers, at the fair market price of labor, to handle said coal and the ashes and waste therefrom, and that the sum so paid for labor was thirteen hundred and forty-seven and x8090 dollars, all of which was lost to defendant by reason of plaintiff’s failure to supply gas for heating the boilers of defendant according to the - contract as it originally stood and as amended.” The affidavit further alleges that the [568]*568said sums of money were paid out because of the plaintiff’s failure and refusal to supply a sufficient quantity of gas for heating the boilers of the defendant at its mills, and particularly the five boilers set forth in the plaintiff’s statement, and that the expense was incurred on the days when the plaintiff undertook to furnish the said gas. Other averments of a specific and positive character are made which tend directly to defeat the plaintiff’s right of action. As all the averments in the two affidavits must be taken as verity, there can be no recovery for want of a sufficient affidavit of defence, and it was error to enter such judgment in the face of the facts alleged in these affidavits. They are precise, definite, positive, and, if true and unexplained, they seem to be fatal to any recovery.
Judgment reversed and procedendo awarded.