(concurring).
I call attention to these facts: Appellee’s plant at llenryetta had been in operation for about fifteen years and was using between three and four million cubic feet of gas a day when the contract sued on was entered into. Appellant began to deliver gas to the plant under the contract on October 25, '1927, and up to early in June in the following year, when appellee dismantled its plant after failing to induce appellant to reduce the contract price of gas, the average amount delivered per day by appellant was approximately six and one-half million cubic feet; from, which it appears that the capacity of the plant and appellee’s reasonable needs for fuel gas in its operation was far in excess of the two or three million cubic feet per day.
The basis of damages claimed by appellant was the refusal of appellee to further take and pay for the two or three million cubic feet per day at the contract price for the remainder of the three years. The seventh paragraph of the contract required appellant to deliver gas continuously in order that appellee might operate its smelter economically, and the first paragraph bound appellant “to sell, furnish and deliver gas to vendee to the limit of vendor’s capacity,* at a price of seven and one-half cents (7y2e) per thousand cubic feet, i!l * * providing, however, vendor shall not bo required to furnish more gas than the minimum agreed to be purchased, as hereafter specified.” So far there is no uncertainly in the meaning of the language used in the contract. Appellant was to furnish and deliver gas continuously during the contract term of three years to the limit of its capacity at the price named, but it could not bo required to furnish more than the minimum agreed to be purchased by appellee. The word “required” impresses me as important as well as the phrase “the minimum agreed to be purchased,” when wo come to consider the meaning of the second paragraph of the contract. Inasmuch as the vendor was bound to sell, furnish and deliver gas to the vendee to the limit of vendor’s capacity, appellant might have been in a position to lawfully demand that appellee receive and pay for more than the minimum later specified in the contract, at such times as it was able to furnish the excess, notwithstanding the first paragraph said that tho vendor could not be “required” lo do so, and therefore the second paragraph was intended as a protection to the vendee in that respect. This is the second paragraph of the contract:
“Vendee agrees to receive, purchase, and pay for said gas at said price and on the basis above stated, and to take during the first year of the contract, at least two million cubic feet of gas per day, and during the second and third years of tho contract, at least three million cubic feet of gas per day, provided that, if the total requirements of vendee for gas fuel does not equal or exceed tho two or three million per day that vendee shall be required to take only the amount of its total requirements.”
We therein find “the minimum agreed to be purchased” by vendee, and down to the proviso in that paragraph nothing that is said wonld protect the vendee from a demand of the vendor that the vendee take gas in excess of that amount, as pointed out above under paragraph one of the contract. Seemingly the proviso to paragraph two was intended to give that protection, and I am constrained to believe that it was not its purpose to relieve the vendee from taking “during the first year of the contract, at least two million cubic feet of gas per day, and during the second and third years of the contract, at least three million cubie feet of gas per day,” but it could not bo “required” to take in excess of what it agreed to purchase, notwithstanding the provisions of paragraph one. It therefore seems to me that this is not a requirement contract, for had that been the purpose of the parties it would have been a simple matter to have so stated (that the parlies agree that the vendor will sell and deliver to the vendee for a term of three years all of tho gas that vendee may require in the operation of its smelter at Henryetta, and the vendee will take and pay for the same at iy%& per thousand cubic feet). The vendee knew, and doubtless the vendor also, that tho requirements of the plant were in excess of “the minimum agreed to he purchased.” The first paragraph relieved the vendor from a demand by the vendee that it furnish more than the minimum, and the second paragraph was intended to relieve the vendee from a demand by the vendor that the vendee take more gas than the minimum, although the vendor had bound itself to furnish to tho limit of its capacity; but it left open to furnish and receive by mutual consent more than the two or three million feet at the agreed price. This is what the parties actually did during the first seven months in executing the contract, *836and that is a proper guide to the construction of a contract. This suit, as already said, is to recover damages because of vendee’s refusal to take the minimum that it had agreed to purchase, the two or three million cubic feet per day for the full three years, and inasmuch as the proof conclusively shows that the reasonable requirements of the vendee during the remainder of the contract would have been in excess of the amounts of gas so agreed to be purchased, the vendee could not relieve itself of liability by ceasing to operate its plant and voluntarily dismantling it.