The judgment and order should be reversed and' a new trial granted, with costs to the appellant to abide event.
The action was brought to recover under a written contract for a quantity of natural gas furnished in December, 1908, and January and February, 1909. The defense was that the contract provided. that; the gas should be furnished under a pressure of eight ounces, that in. fact the pressure was much less than that, and that the gas furnished was of an inferior quality and of little or no value, and, therefore, the defendant' should not be required to pay for it at the contract price. There was also a counterclaim set up for the expense of pumping water from plaintiffs’ gas well.
First. There was no question but that .during the three months in question the gas was furnished under a pressure much less than eight ounces. The court so stated in ordering the verdict.' There was evidence from which the jury might find that gas, so furnished, was of an inferior quality, and was of little or no value'to the consumer. It was not so much a question of the quality of the gas,, however, as its usefulness.- Under a low pressure sulphuric acid gas would escape into the room and smolce everything up that was set in it. There was evidence from which the jury might find that the plaintiffs had thejentire control of the flow of the..gas and could shut-it off and allow the well to rest -for awhile and then, the pressure-would be restored to eight ounces, that the defendant could not stop the flow of the gas and that it requested the plaintiffs to shut - it off, but the plaintiffs neglected and refused to do so. If, therefore, the defendant is right in its construction of the contract, that it required the plaintiffs to furnish gas under an eight-ounce pressure, the question of a right to recover for the gas furnished was one for . the jury and the verdict was improperly ordered. The defendant operated a-natural' gas plant in the .village of Rushville, Yates-county, K. Y., and distributed the gas to consumers in the village. It had one or more gas wells itself. The plaintiffs put a well down in the vicinity and very -likely struck the same vein that supplied defendant’s well.' Thereupon the agreement in question was made between the parties. Among other .things it' was agreed that the defendant should purchase gas -from plaintiffs to use with that from its own wells, for the supply of the consumers in the village, the
*299plaintiffs not agreeing to furnish any stipulated quantity at any one time, and reserving the right to shut off the gas at any time and allow the well to rest for such time as they deemed necessary. It was further agreed that each party should attach to the pipes from their respective wells an instrument known as a mercury pressure gauge and that these gauges should at all times show an eight-ounce pressure, that the regulation and control of the gas from the plaintiffs' well should he so adjusted that its gauge should at all times show an eight-ounce pressure and this gauge should in all things he the controlling and determining gauge as to the pressure to he used. This language seems to me to be plain and unequivocal and to permit the defendant to object to receiving or paying for any gas not furnished under the eight-ounce pressure. If gas at a less pressure was of inferior quality and the plaintiffs had the exclusive control of the supply of gas, and the defendant requested it to be turned off so the well could rest until the required pressure was restored, and plaintiffs refused to comply with this request but' permitted the inferior gas to flow into defendant’s pipes, then certainly the defendant was under no obligation to pay for such gas as was furnished. Respondents’ counsel seems to claim that inasmuch as defendant had the gas and sold it to the consumers and received full pay for it, the same as though it ivas up to the required pressure, it suffered no damage and should pay plaintiffs for the gas at the agreed price. Defendant could not avoid receiving the gas ; plaintiffs alone had control of the supply, and refused, on request of defendant, to shut it off and rest the well. Under the contract the defendant, in view of these facts, which tlie jury might find from the evidence, was not liable to pay for the gas so received. Second. The counterclaim was based upon the provision in the contract that the plaintiffs should' at all times use all known means and appliances to prevent the waste of gas from their well, and the evidence offered by the defendant that water had gotten into the Strata from which both parties’ wells were supplied and prevented the flow of the gas at an eight-ounce pressure, and that it wras the duty of the plaintiffs to share in the expense of pumping out this water and to pay one-half thereof. The court held that-the waste of gas referred to in the contract was waste after it got to' the surface of the ground and not waste resulting from water get*300ting in the well. Very likely the court was right in its ruling. The language of the contract in this regard is-found among the provisions relating to the flow of the gas through the pipes and does not-seem to relate to any care of the wells themselves. If it is necessary to determine this question now, I should say no evidence was given authorizing a verdict for the counterclaim.
• All concurred; Kruse, J., in a separate memorandum ; Robson, J., not sitting.