Farr v. Duke Power Co.

• Decision Date: 25 September 1975
• Docket Number: No. 20098,20098
• Citation: 218 S.E.2d 431,265 S.C. 356
• Court: South Carolina Supreme Court
• Parties: Frank FARR, Respondent, v. DUKE POWER COMPANY, Appellant.

Page 431

218 S.E.2d 431

265 S.C. 356

Frank FARR, Respondent, v. DUKE POWER COMPANY, Appellant.

No. 20098.

Supreme Court of South Carolina.

Sept. 25, 1975.

Watkins, Vandiver, Kirven, Long & Gable, Anderson, for appellant.

Anderson, Kenyon & Epps, Anderson, for respondent.

PER CURIAM:

In this action the plaintiff-respondent, Farr, alleged breach of a contract by which appellant, Duke, purchased from Farr and others a water system located in Chateau Woods Subdivision near Anderson, South Carolina. Farr apparently succeeded to the rights of all others interested in the subdivision and the water system, as he was the sole plaintiff. Duke appeals from a verdict and judgment against it for actual damages in the sum of $13,404.40.

In October, 1968, Chateau Woods was a subdivision containing some 70 vacant lots most, if not all of which, were owned by Farr. Farr and associates had under construction a water system at a cost of $26,848.50. On October 25, 1968 such system was sold to Duke. The consideration for such purchase, included, inter alia, the following:

'For each service connection directly connected to said water mains as above described, to be laid by the Power Company, including connections made by the Owners named above for the property now owned by them, the Power Company, will repay to the Owners $291.20. Said repayment will be made during the term of five years, beginning on the date of the completion of said water mains but shall not be made after the sum of $26,848.50 has been repaid to the owners, nor after the expiration of said five-year period.'

Obviously Farr contemplated that most of the lots in the subdivision would have dwellings erected thereon within the five year period mentioned in the contract, but due to numerous circumstances, by March, 1973, only six homes had been completed and two more commenced. Farr realized that he could not complete the subdivision before 1976 and accordingly, on March 22, 1973, wrote to Duke requesting that it extend for an additional three years 'the period of time in which Duke makes payment to me for each water service connection.' In lieu of such extension, he requested that Duke make service connections to each vacant lot upon which Farr agreed to pay the regular $75.00 tap-on fee, plus minimum monthly water bills, for each of the lots, until such time as a home was built on each lot. Duke did not see fit to grant the extension or agree to Farr's alternative proposal. On October 23, 1973, two days prior to the expiration of the five year term, specified in the contract, Farr wrote Duke demanding, as a matter of right, that each vacant lot in the subdivision be service connected and that he be paid the full cost of the water system. His demand not being complied with, this suit was instituted.

The prayer of the complaint was for actual damages in the amount of $26,848.50, the total cost of the water system. On trial the judge reduced the prayer of the complaint to $13,404.40, the amount returned by the jury. Such was arrived at on the basis of $291.20 for each vacant lot in the subdivision less, however, $75.00 per lot tap-on fee. The result of the verdict and judgment is that, in addition to the money judgment, the tap-on fee of each of the lots has been paid in advance. Stated otherwise, by the judgment below Duke will have fully paid for the water system, the maximum contingent amount under the terms of its contract, although only eight houses had been constructed or started in the subdivision within the five year period of time.

Although several questions are argued we conclude that the appellant, Duke, was entitled to a directed verdict, or after verdict, to a judgment n.o.v., and such makes the discussion of any other questions unnecessary. It is, of course, elementary that in considering whether a directed verdict should have been granted the evidence and all the inferences reasonably deducible therefrom have to be viewed in the light most favorable to the respondent, Farr. The parties argue at length as to the meaning of the technical term 'service connection' used in the contract and the evidence thereabout. But, as we view the matter there is little, if any, conflict in the material evidence on this point. The term, generally, and as used in the contract obviously refers to a connection to the water mains, whereby a consumer obtains water, which normally, in a subdivision, takes place when a home is either constructed or at least under construction. As shown by the evidence, however, a service connection may be made, if one be so minded and is willing to pay therefor, to a vacant lot.

The question in this case is not what is the meaning of 'service connection', but is, whether...