
    The Kansas Crude Oil and Gas Company, Appellee, v. The Kansas and Texas Oil, Gas and Pipe-line Company, Appellant.
    
    No. 17,071.
    SYLLABUS BY THE COURT.
    Counterclaim —■ Gratuitous Service — No Recovery. When a service is performed or use given by one party to another with the intention that no charge shall be made or compensation paid therefor and it is accepted on that theory, the party can not subsequently, upon changing his mind, recover for such service or use, and it is further held that the facts and circumstances of the present case warranted the court in instructing the jury upon this rule of law.
    
      Appeal from Neosho district court.
    Opinion filed May 6, 1911.
    Affirmed.
    
      H. P. Farrelly, and T. R. Evans, for the appellant.
    
      John J. Jones, and James W. Reid, for the appellee.
   The opinion of the court was delivered by

Johnston, C. J.:

This was an action by the Kansas Crude Oil and Gas Company to recover $235.71 alleged to be due from The Kansas and Texas Oil, Gas and Pipeline Company, in which the plaintiff prevailed. The defendant appeals, and bases its claim of reversal upon an instruction given by the trial court.

It appears that in 1907 appellee was supplying and selling gas to consumers, and appellant desired to purchase gas from appellee but its main line did not reach appellant’s plant, being about four thousand feet away, and as appellant was in a hurry to obtain gas it laid a pipe line two thousand feet long which connected with a branch line two thousand feet in length built by appellee, and through these pipes gas was delivered to appellant for a time at a flat rate. The manager of appellant testified that under this first agreement there may have been a stipulation requiring appellant to make the connection with appellee’s system. Later an agreement was made that gas should be furnished at a meter rate and a meter was installed at appellant’s end of its pipe line so that the gas which it took passed through its own pipes before it was measured. Some time after the meter was placed appellee connected an auxiliary line with that of appellant through which gas was transported to other consumers. Monthly settlements were made between the companies until about June, 1909, when a dispute arose as to the state of their account and an agreement was made to arbitrate the matter and to abide the decision of the arbitrators. The arbitration was had, and the decision was that appellant was indebted to appellee in the sum of $231.17. Payment was refused and appellee brought this action to recover the amount of the award, when the appellant set up a claim for the use of its pipe line. On the trial it appeared that nothing was said before or during the arbitration of any claim of rental for the pipe line and that, although there had been numerous settlements between the parties for gas purchased, no charge had been made or bill presented for the use of the pipe line. The manager testified that he had always intended to make a charge but that he did not present a bill because the transaction was continuous and had not ended. In its charge the court instructed the jury that:

“Should you believe from the evidence in this case that at the time of the arbitration between the plaintiff and the defendant herein that the defendant did not intend to make any charge for the use of its pipe line, then and in that event you should allow it nothing by way of set-off in this case.”

The correctness of this instruction is the only question presented for determination.

Ordinarily when valuable services are rendered or the use of property furnished by one person to another, which are voluntarily accepted, and there is no express agreement as to compensation, the law implies a promise to pay a reasonable compensation for such services or use. On the other hand, if the services are performed or use furnished with the intention that no charge shall be made for them and if they are accepted in reliance upon such intention, the first party can not subsequently, upon changing his mind, recover for them. Where something is contributed by one and accepted by another as a gratuity or some service is rendered wholly as an act of friendship and mutual accommodation, no recovery can be had therefor as on an implied contract. This rule was applied in Collins v. Martin, 43 Kan. 182, where certain things were furnished by one neighbor to another with no intention to charge for them and afterward, when friendly relations were broken, an effort was made to obtain credit and compensation for them. The court held that articles furnished under those circumstances created no liability, and Stadel v. Stadel, 40 Kan. 646, Potter et al. v. Carpenter et al., 76 N. Y. 157, and Osier v. Hobbs, 33 Ark. 215, were cited as authorities. It is contended that the rule of Collins v. Martin, supra, does not apply here because that case was predicated- on the fact that there was no intention to charge for the things at the time they were furnished while here the court extended the rule and allowed the liability to be determined upon the intention of the parties at the time of the arbitration. That fact does not change the rule. The use of the pipe line had continued until that time and the contract between the parties in relation to supplying gas had not yet terminated. While there was a conflict of testimony as to the intention of appellant, the facts brought out in the case warranted the giving of the instruction. The admission that in the beginning there may have been a stipulation that appellant would build and make the connection, the provision in the written contract that gas was to be delivered to appellant near to appellee’s main line and that appellant’s plant was about three-fourths of a mile away, and that to transport gas this distance from the main line it was taken through two thousand feet of pipe line built by appellee and an equal length of pipe line built by appellant, the further fact that no bill was presented nor claim made for the pipes leading from the main line at any of the monthly settlements, and that when a dispute arose between the parties as to what was due from appellant to appellee the claim was not mentioned,' and also that it was not presented for the consideration of the arbitrators, and, added to these, the testimony in behalf of appellee that no charge was contemplated, all together furnished a sufficient basis for the instruction that the court gave. Other instructions, of which no complaint is made, stated the rule of implied liability based upon other circumstances.

The judgment is affirmed.  