132 Ark. 173 | Ark. | 1918
(after stating the-facts). The contract in question was executed on the 15th day of August, 1914. Prior to that time there was a contract between the light and power company and the Major Stave Company whereby the latter was to furnish the power for running the plant of the former- and was to receive therefor 40 per cent, of the gross earnings of the former. The light and power company desired to -furnish its own motive power and for that reason entered into the contract in question. In consideration of being released from its former contract, and all claims dr liability thereunder, it agreed that it would furnish the stave company the electric light used in its plant for the term of three years, provided the current should not .exceed an average of one kilowatt. The light and power company performed this contract from the date of its execution on August 15, 1914, until the early part of January, 1916, when War-mack purchased the property of the light and power company and its franchises, which were assigned to him.
(1) The court should not have directed the specific performance of this contract. In the case of Leonard v. Board of Directors of Plum Bayou Levee District, 79 Ark. 42, the court held that equity will not decree specific performance of an executory contract to do ordinary work, as to build a levee, for the reason that there is no method by which its decree could be enforced. It does not follow, however, that the stave company was not entitled to injunctive relief. The light and power company was granted a franchise by the town of Ashdown to furnish electric lights to the town and the inhabitants thereof. In the enjoyment of this public franchise, it had the exclusive right to furnish electricity to the town and the inhabitants thereof. The stave company owned and operated a stave plant in the town and the furnishing of electric current for lighting its plant was one of the ordinary and natural uses which was contemplated when the franchise was granted to the light and power company. The stave company had paid for the light. Under these circumstances an injunction will lie to prevent the cutting-off of the supply of light, or if the current has been turned off by the public utility company, a mandatory injunction will be issued to compel it to turn the current on again. McQuillan on Municipal Corporations, Vol. 4, § § 1773 and 1774, and Dillon on Municipal Corp., 5 ed., vol. 3, par. 1317.
(2) It is neither claimed nor shown that the contract in question is such a special contract that it prevents the corporation from supplying all its customers in the town of Ashdown. There is nothing in the record tending to show that there is anything in the ordinance granting the franchise to the light and power company that would prevent it from entering into the contract in question. The principle that the company must supply all impartially and without discrimination does not prevent it from entering into reasonable arrangements or agreements with its customers growing out of special circumstances. Dillon on Municipal Corporations, 5 ed., vol. 3, § 1317, p. 2207.
(3) Again it is contended that by the terms of the contract that Warmack was not required to carry out the contracts of the light and power plant. It is true the mere transfer of the assets of one corporation to another corporation or individual does not make the latter liable for the debts of the first corporation, but a corporation or individual may become liable for the debts of another corporation where it has expressly or impliedly assumed them. Spear Mining Co. v. Shinn, 93 Ark. 346, and Good v. Ferguson & Wheeler, etc., Co., 107 Ark. 118.
The chancellor found that Warmack had at least impliedly assumed to carry out the contract with the light and power company. It is a settled rule of this court not to disturb the finding of fact made by a chancellor unless it is against the preponderance of the evidence. As we have already seen, the light and power company was granted a franchise to supply the town of Ashdown and its inhabitants with electric lights. Warmack was operating the light plant under this franchise. He admits that he was carrying out all the contracts with consumers who were making monthly payments for lights furnished them. He also admits that he knew of the special contracts which had been made with the three railroads entering the town and with the school district. Sander-son testified that he told him of the existence of the contract in question. The plant of the stave company was situated near that of the light company and the wires ran direct from the plant of the light company to that of the stave company. It may be fairly assumed that Warmack saw these wires. He denies that he knew of the existence of the corporation called the Ashdown Light & Power Company, and says that .he thought Sanderson was operating the plant in his own individual right. Sanderson testifies, however, that he told him the corporation was operating the light plant. Besides this, the insurance policies and special contracts which were turned over to Warmack and which he--admitted receiving were notice to him that the corporation was operating the light plant. It is apparent from all the circumstances detailed in the statement of facts as well as others, small in themselves, which have been omitted from the statement of facts, that Warmack at least impliedly assumed to carry out all the contracts for furnishing lights of the light and power company with the inhabitants of the town. He knew he could only operate under the franchise granted to that company and all the circumstances introduced in evidence pointed to the fact that he assumed to carry out the lighting contracts of the company.
From the views we have expressed it follows that the court should not have directed the specific performance of the contract but was correct in granting a mandatory injunction to compel Warmack to again turn on the current at the plant of the stave company. In this way the relative rights of the other residents of the town to be supplied with lights impartially and without discrimination will be preserved should the occasion arise therefor, caused by the inability of the light company to furnish sufficient lights for all consumers, or for other good reason.
Therefore, the decree in so far as it grants specific performance of the contract will be reversed, and in so far as it grants a mandatory injunction in favor of the stave company against “Warmack to have the current again turned on at the plant of the stave company will be affirmed.