92 S.E. 331 | N.C. | 1917
Plaintiff sued for $1,566.87 and interest, being the amount it alleged to be due by the defendant for lights and current furnished to it under a contract, dated 8 November, 1912, between the Southern Power Company and defendant, the plaintiff having succeeded to the rights of the power company under the contract. The power company had previously, in the year 1907, contracted with the defendant to furnish lights to it at as low a rate as allowed to any other town for a similar service. The written contract of 1907 was lost, and parol evidence was offered by the defendant, and admitted by the referee, to show its contents. The exact wording of the clause in that contract as to the rate being as low as that of any other town was not given, and it is stated in the report that "no other stipulation or condition of the contract has been furnished from the testimony." The minutes of the town proceedings with reference to the contract were also lost. The findings as to the contract of 8 November, 1912, is as follows:
1. That on 8 November, 1912, the town of Bessemer City and the Southern Power Company entered into a written contract to the (483) effect that the power company would furnish lights to Bessemer City for a period of five years from 1 December, 1912, and the town agreed to pay for that period $36 per year per lamp (if 25 to 50 lamps were used), and that payments should be made, under said contract in monthly installments on the 5th day of each month succeeding that in which the service was rendered, as will appear more specifically by reference to said contract introduced in evidence.
2. That at the time the said contract of 8 November, 1912, referred to in the preceding paragraph, was entered into between the parties, the rate given by the power company to said town was as low as that furnished by it to other towns or municipal corporations for similar service.
3. That there was nothing in the contract (of 1907), referred to as the "franchise contract," to disqualify or prevent the town of Bessemer City from entering into and being bound by the terms and conditions of the contract of 8 November, 1912, and the latter, as to the rate stipulated, would govern and control the parties thereto. *533
The referee further finds that in or about August, 1913, the plaintiff contracted with the town of Belmont to furnish lights to it at $30 per lamp for each year during the continuance of the service, and the cost of the two systems was practically the same, though there was some slight difference in the cost of maintenance in respect to labor required for each. The defendant furnished lights as it had agreed to do in the contract of 1912, and was ready, able, and willing to do so at all times. This continued until 10 March, 1916, when, at the request of the defendant, the plaintiff installed a cheaper plant for lighting the town, it being of less candle power, and was, therefore, cheaper, being similar to the Mount Holly plant. This was used for sixty days by defendant. The defendant fell behind considerably with payments for the lighting service, and plaintiff then agreed that if it would enter into a new contract, and the past-due accounts were paid, it would install permanently the Mount Holly system; but no new contract was made, and the accounts then due to the plaintiff for lights were not paid. The defendant, though, insisted that it should be allowed some deduction on account of the fact that plaintiff had given a lower rate to the town of Belmont. The referee then finds what is due by the defendant to the plaintiff for lights furnished under the contract of 1912, the balance being $1,494.82 principal, and $102.58 interest, to 29 December, 1916, the date of the report, making, in all, $1,597.40, with interest on the principal from that date. In arriving at the result the referee, whose report is remarkably clear, distinct, and accurate, allowed nothing to the defendant for the difference between the rates charged under the contract of 1912 and those under the Belmont contract.
The referee, from his finding of facts, draws the following (484) conclusions of law:
1. The contract made between the town of Bessemer City and the Southern Power Company, of 8 November, 1912, would govern, control, and supersede any former contract as to the rate for lighting.
2. That there was nothing in the contract of 1907, known as the "franchise contract," to disqualify or prevent the town of Bessemer City from entering into an being bound by the terms and conditions of the contract of 28 November, 1912, and the latter would govern and control as to the rate stipulated therein for lighting.
3. That the town of Bessemer City is justly due thereon 29 December, 1916, to the Southern Public Utilities Company, the sum of $1,597.40, the same being $1,494.82 principal and $102.58 interest thereon.
The court approved and confirmed the report of the referee and entered judgment in favor of the plaintiff for the amount found by him to be due, and the costs. Defendant appealed. *534
We need not enter upon a discussion of most of the questions raised in the briefs. That the aldermen of the town of Bessemer City could not make a contract which in its operation would extend beyond their time of office, under Wadsworth v. Concord,
It appears from the finding of the referee that the intention of the parties was to come to a fresh agreement in November, 1912, and to enter into a contract, which should to complete in itself, and that there was nothing in the first contract which "qualified" the second or prevented the town from changing the form and substance of its contract as made in 1907, or from making an entirely new contract upon the same subject, as it subsequently did in 1912; and he further finds, (485) substantially, that the latter contract was intended to take the place of the earlier one. But even if the plaintiff's predecessor had agreed to give to the defendant the lowest of its rates, it was competent for the parties, by mutual agreement, to alter this contract, or to substitute another for it, by fixing a flat or unchangeable rate, as was done by the last contract. There is nothing unlawful in it, nor is it contrary to good morals, but, on the contrary, such a change or substitution may, in certain instances, be beneficial to the town by declaring exactly what the rate per lamp shall be in dollars and cents during the fixed period, so that it will not be subject to change by the power company on account of fluctuations in the cost of production to it, for it may be that even the lowest rate given to another town may, in the future, be raised above that stated in the contract, if the cost and expense of production increases, so as to meet and provide for such an increase. A stationary rate might, therefore, be of value to the town. If the parties had intended to provide for a standard or minimum rate, above which the defendant should not be charged, why was not something said about it in the contract of November, 1912? We cannot look *535
at this transaction from its beginning to its end without concluding that in 1912 the parties were then making a fresh contract, and an entire one, for the future, canceling all those behind them. Every detail of such a contract was provided for in the writing, and there was not the slightest reference to the first contract, or any stipulation of it, and the contract itself states that the prior contract of 12 November, 1908, is canceled and annulled, "and neither party shall have any rights thereunder against the other," except for the purpose of enabling the plaintiff to collect what was then due by the defendant, and it was continued only for that purpose. Smith v. Pritchard, at this term. In other words, it was to be no longer of any force or effect, except as evidence of defendant's indebtedness to plaintiff, and so that the same would not be extinguished by repealing the contract, as it was anticipated that such a result would follow. The plaintiff, perhaps, had in mind a decision of this Court in Lipschutz v. Weatherly,
The findings of the referee, approved by the judge, are adopted by us, if there is evidence to support them, and there is no suggestion that there is none in this case. The evidence was not sent up.
This case and one entitled Town of Bessemer City v. Southern PublicUtilities Company were consolidated by consent, and referred to Mr. J. W. Keerans, whose report embraces both cases, and only one judgment was rendered, which is applicable to both cases.
We are of the opinion that there was no error in the conclusion of the court or in its judgment.
Affirmed.
Cited: Power Co. v. Power Co.,
(487)
