Benson v. Paris Mountain Water Co.

• Decision Date: 08 April 1911
• Citation: 70 S.E. 897,88 S.C. 351
• Parties: BENSON v. PARIS MOUNTAIN WATER CO.
• Court: South Carolina Supreme Court

70 S.E. 897

88 S.C. 351

BENSON v. PARIS MOUNTAIN WATER CO.

Supreme Court of South Carolina

April 8, 1911

Appeal from Common Pleas Circuit Court of Greenville County; R. C Watts, Judge.

Mandamus by W. T. Benson against the Paris Mountain Water Company. From a judgment for petitioner, defendant appeals.

Affirmed.

Cothran Dean & Cothran, for appellant. J. J. McSwain, for respondent.

WOODS J.

The petition in this proceeding for mandamus alleged that the Paris Mountain Water Company, a corporation having the exclusive right to supply water in the city of Greenville contracted with the petitioner to furnish water at his residence, No. 318 North Laurens street, and also at a stable conducted by petitioner on the same street; that on April 1 1910, the water company rendered a bill according to the contract which the petitioner failed to pay because of his absence from the city, and the respondent on May 20, 1910, cut off petitioner's water supply; that on the next day the petitioner tendered the sum of $4.05, the amount due, and demanded that the water be turned on for his use, but the water company refused to comply with the demand. The relief asked is an order requiring the water company to furnish water to the petitioner as a resident of the city of Greenville, entitled to such service on compliance with the reasonable demands of the water company. In response to an order requiring cause to be shown why the writ of mandamus should not issue, a return was filed, in which, without denial of the material allegations of the petition, the water company set up in justification of its action in refusing to restore the water service to the petitioner a debt for water furnished some time before at a different place, amounting to $88, which alleged debt had been compromised with the petitioner on a promise by him to pay $15, and alleged that this settlement of the old claim was a part of the consideration of the new contract to furnish water to petitioner, made on December 1, 1909. On this point the return was traversed by an affidavit from Thomas L. Benson, a son of the petitioner, who averred that he made the affidavit because of his father's absence, that he was familiar with the matter, and that the petitioner did not agree to pay $15, as alleged by the water company, but did offer to pay $3 for the water which had been furnished prior to the date of the new contract, and that that sum was the reasonable value of the water so furnished.

The only provision of the written contract of December 1, 1909 material to the decision of the appeal is the following: "Should the water rent or any bill for meter repairs or for material furnished or work done remain unpaid fifteen days from date of bill, the water company reserves the right to shut off the water without further notice, and remove the meter, but no such cutting off shall deprive the water company of the right before the water is again turned on to demand and require payment of all water rents or other...