#### J. K. Graves, Appellant, v. The Key City Gas Company.

Construction of Writing. An agreement to furnish gas to a resident, 1 for twenty years, for “ordinary purposes,” covers gas for a cook stove, though gas stoves were not in use when the contract was made.

Same. Such an agreement entitles plaintiff to all gas reasonably necessary for the purposes in view of the contracting parties. It 2 does not, on the one hand, limit him to a specified quantity or amounts used by large consumers, nor on the other, allow him to commit waste. Facts reviewed and maximum amount fixed.

Bights Under Contract: garnishment. That a corporation which has agreed to furnish gas to plaintiff for a consideration received, is 3 garnished as a debtor of plaintiff, is no defense to his action to enjoin it from cutting off his gas supply.

*Appeal from Dubuque District Court.*— Hon. John J. Ney, Judge.

Thursday, January 24, 1895.

Plaintiff brings this action in equity, under a contract sel .out, to enjoin the defendant from obstructing or cutting off the supply of gas to plaintiff’s residence and street lamps. The court found that plaintiff is entitled to one hundred thousand cubic feet of gas per annum, in addition to that properly required for the street lamps, during the continuance of said contract, and decreed as follows: “It is therefore ordered, adjudged, and decreed that defendant be, and is hereby, required to furnish such gas to plaintiff, and that defendant is hereby enjoined and restrained from obstructing or cutting off said supply of gas during continuance of said contract, so long as the total consumption, exclusive of said supply for the two street lamps, *471does not exceed said amount of one hundred thousand cubic feet of gas in any one year dating from this decree, to all of which both parties except. Judgment against defendant for costs, taxed at $-. ” Plaintiff appe als.

*—Modified?and affirmed.*

*B. W. Steioart*and *Bobert Bonson*for appellant.

Bowers, *Lacy*& *Brown*for appellee.

G-iven, G. J.

I. On and prior to June 30, 1880, plaintiff, then and ever since a resident of the city of Dubuque, was the owner of a gas plant in said city, known as the “Key City Gaslight Company,” from which said city, including plaintiff’s residence, was supplied with gas. He sold said plant to the defendant company, a corporation organized for the purpose of purchasing and operating the same. As a part of the consideration, defendant, by a resolution adopted by its board of directors, agreed as follows: “Be it resolved, that in consideration of the sum of one dollar, to us in hand paid by J. K. Graves, and as part consideration of purchase made by us of the gas works .and property of the Key City Gaslight Company, we hereby consent to and agree that all gas for ordinary purposes, including gas log in library, hereafter used in the present residence and out-buildings of said Graves, and including two street lamps in front of said residence on Fenelon Place, city of Dubuque, shall be free of cost for a period not exceeding twenty years, provided said premises are occupied by said Graves or his family as their residence. John Bell, President. A. McArthur, Sec. Key City Gas Co.” ■ Defendant continued to furnish the gas used by plaintiff in his residence and street lamps without complaint until April, 1890, when it complained to plaintiff that he was using gas in excess of what he was *472entitled to, and threatened to cut off the supply, but desisted on plaintiff’s saying that he “thought he could reduce it;” “that he would try and have it used more economically.” On November 12,1890, defendant notified plaintiff that his consumption of gas was excessive, and that, unless it was reduced, the company would cut off the gas. Thereupon plaintiff commenced this action to enjoin the defendant from cutting off the gas, and on hearing, in December, 1890, temporary injunction was denied. Defendant continued to furnish gas up to January 15, 1891, when the supply was disconnected and cut off from plaintiff’s premises, on the ground that his use was excessive. Plaintiff filed a supplemental petition, alleging that the gas had been cut off, and ashing that defendant be restrained from preventing plaintiff from removing the obstructions to the flow of gas to his premises. On a hearing, February 3,1891, this relief was denied; and, on plaintiff’s appeal, this action of the trial court was reversed, and the case remanded, “for the allowance of a temporary injunction and other1 proceedings in harmony with this opinion.” 83 Iowa, 714, 50 N. W. Rep. 283. On final hearing, decree was entered as stated above.

II. The first question discussed is whether the words “all gas for ordinary purposes,” as found in said 1 resolution, were intended as a limitation upon the appliances and quantity to be used, or only upon the appliances. This intention we are to ascertain fr om the language employed, construed in the light of the subject of the contract and the surrounding circumstances. The language' we have quoted. The subject-matter is the supplying of gas to plaintiff for use in his street lamps and residence, and the surrounding circumstances are in substance these: Plaintiff’s residence is large, having thirty-two rooms, and so constructed, with basement, dining room, etc., as to require *473an unusually large supply of gas to light it His family was such that a number of different rooms were occupied and lighted in the evenings. ■ In addition to the gas used for lighting, he had two street lamps in front of his residence, a small heater in the dining room, and a gas log in the library. This g'as log was used a large part of the time in cold and chilly or damp weather at its full capacity, and consumed nearly sixty cubic feet per hour. It is manifest that, at and for years prior to the maMng of this contract, plaintiff was a large consumer of the gas manufactured at his works. Several of the men employed in connection with the works continued in their positions after the sale'to the defendant; several who became active in the organization of the defendant company,, and, as officers in its management, were familiar with the size of plaintiff’s residence, the appliances being used by the plaintiff, the purposes for which used, and that a large amount was being used. There being no meter attached, the amount consumed could only be known in a general way. We have much discussion as to what defendant’s officers knew as to the amount of gas consumed by plaintiff at and prior to the contract, and how far defendant should be bound thereby. We are in no doubt but those who made this agreement on the part of. the defendant knew of the appliances being used try the plaintiff, the purposes for which he used gas-, and that he was a large consumer. It was under these circumstances and with this knowledge that the defendant agreed to furnish plaintiff with “all gas for ordinary purposes,” including tibie gas log and street lamps. Aside from the lamps- and log, the purposes contemplated were ordinary domestic purposes. Therefore it must have been contemplated that plaintiff might use any appliance used in consuming gas for ordinary domestic purposes. The contract had twenty years to run. Therefore it was not intended to *474limit plaintiff to the appliances then in use, but to permit *the use of*any *that*might thereafter *be*adapted to the use of gats for ordinary domestic purposes. The limitation is as. to the purposes, and not to thie means by which the gas is applied to the authorized purposes. Plaintiff tried the experiment of generating' steam by gas to heat his house. He concedes that this was not an ordinary domestic purpose, and does not claim the right to such use under the contract The experiment failed, and after a short trial was abandoned. He purchased a gas cook stove from the defendant, and therie-after used it. If the use of such stoves was not common at the time the contract was made, it certainly became so, and they were thereafter in ordinary nse for domestic purposes by consumers, of gas. . Wie think the use of the cook stove was one of the ordinary purposes for which plaintiff was entitled to be supplied with gas, and that, aside from the experiment of making steam, he did not use gas by any other than ordinary appliances, nor for other than ordinary domestic purposes, unless it was in the use of the gas log a.nd street lamps, which are expressly authorized.

III. It was surely not intended to limit plaintiff’s consumption of gas to a certain number of cubic feet, 2 nor to the amount consumed by any one or more other consumers. If either was intended, it would have been so written in the contract. It is evident that, at the time the contract was made, the intention and expectation of both parties was that plaintiff would continue to use liis street lamps, his gas log, and gas for ordinary purposes in his house in the future as he had in the past It is certainly not contemplated, however, that lie had or would permit the gas supplied to his premises to- he wasted. No meter was attached in plaintiff’s house until in 1889, except on one occasion, for a few hours; hence we have no means of *475determining accurately the amount of gas consumed prior to the contract. Except in the experiment to make steam, which was soon abandoned, and the use of the cook stove, there was no change in the appliances nor the purposes for which gas was used. If the same economy was observed, this fact would indicate that the consumption before the contract and before the meter was attached was substantially the same as that shown by the meter. Prior to the contract the plaintiff was consuming all the gas he needed for ordinary purposes, including his gas log and two street lamps, and this he is entitled to under the contract; but he is entitled to none for extraordinary purposes, whether it be unreasonable and unnecessary consumption or other manner of waste. In view of the evidence as to the amounts consumed by others somewhat similarly situated, we do not believe that plaintiff^ consumption, prior to the contract, was near, what was shown by the meter. His consumption, as shown by the meter, during the year ending July 1,1890, was three hundred and eight thousand five hundred and one cubic feet; while that of the next largest consumer, with a similar demand, was only sixty-four thousand. Twenty-six of defendant’s largest consumers ran from eighteen to sixty-four thousand cubic feet during said year. Because of the size and arrangement of plaintiff’s house, the manner in which it was occupied, and the use that he was entitled to make of the gas log and street lamps, we are satisfied that it required a much larger supply of gas for his premises than for any other of defendant’s consumers. We do not think, however, that it required three hundred and eight thousand five hundred and one cubic feet a year, nor that plaintiff consumed that amount prior to the contract There must have been a want of reasonable economy on the part of *476plaintiff’s servants and others.controlling the consumption of gas in his house in the later years to' have run it to such an extraordinary amount. Though used with liberality prior to the contract, it was at the cost to plaintiff of its manufacture, but this incentive to economy did not exist under the contract. While the contract is not for any specific amount of gas, and while plaintiff is entitled to the full measure of all that he may need for the purposes named, it is necessary that •an amount be determined beyond which h)e is not entitled, so that the rights of tifie parties may be definitely fixed, and causes for dispute removed. That the consumption of 1890 was extravagant we think is fairly shown. Therefore we cannot accept it as the measure to which plaintiff is entitled. To fix an amount less than he is-entitled to, and thereby leave him unsupplied for any part of the year, would be to deny to him the full benefit of Ms contract; bnt it does not follow that, because an-amount is fixed greater than he needs, he is privileged to waste the supply. In view of these facts, and of what we think plaintiff’s consumption was before the contract, and what his reasonable demand is now, we conclude that the limit fixed by the District Court should be increased to one hundred and fifty thousand cubic feet per annum. This insures to plaintiff all that he is entitled to, and leaves defendant its remedy for any consumption over that amount, and for any waste of gas that plaintiff may commit or permit.

IV. Pending tMs litigation, defendant was garnished a.s a supposed debtor to plaintiff, and.this garnishment 3 is urged as a defense. We held on the former appeal that this garnishment is no ground for refusing plaintiff relief. The judgment and decree of the District Court are modified so far as to fix the amount of gas to be furnished to plaint*477iff at one hundred and fifty thousand cubic feet per annum, and affirmed in all other *respects.*— Modified *and affirmed'.*