133 Ga. 375 | Ga. | 1909
It was contended by the plaintiff that inasmuch as the city on December 23 d used 147 additional horse-power over 300 horse-power, that being the greatest amount of excess power used at any time before the beginning of the quarter commencing January 1st, it was obliged for the quarter so ensuing to pay for that amount of excess horse-power, whether actually furnished to and used by or required by the city or not; it being contended that the maximum excess of horse-power used at any time during the month of December constituted a basis for and fixed the amount of excess power, so that its character should be changed from that of excess power and treated as an enlargement of the 300 horse-power specified in the contract, which the city was flatly and unconditionally bound to pay during the ensuing quarter. It was upon the theory that the city would be so liable that the suit was brought, and the amount sued for is alleged to be the cost of excess horsepower, not claimed to have been actually furnished, but for which the city was bound to pay under the contract, though not actually used or required. Counsel for plaintiff and defendant in their briefs take different views of the contract, but agree that the decision of the court must depend upon how the contract should be construed. If the construction should be according to the plaintiff’s interpretation, as above outlined, the petition was not open to general demurrer; otherwise, if not so to be construed. The question is not whether the defendant has construed it correctly, nor upon a construction of the contract generally, but is solely whether the construction insisted upon according to the allegations of the plaintiff’s petition is authorized by the terms of the contract. In other words, the plaintiff based its claim upon a state of facts which would render the city liable only in the event the contract obligated the city as the plaintiff, by its construction, contended that it did; and if that construction were not well founded, the case would fail. A careful examination of the contract as a whole will show that the obligations of the power company to furnish and of the city to pay for excess or additional horse-power over 300 horse-power are contained wholly in paragraphs 1 and 2 thereof. The paragraphs are to be construed together. Paragraph 2 provides that the city shall pay for 300 horse-power at the rate of $8,000 per annum, payments
Judgment affirmed.