Southern Pub. Utilities Co v. City

• Decision Date: 09 May 1917
• Docket Number: (No. 443.)
• Citation: 92 S.E. 331
• Court: North Carolina Supreme Court
• Parties: SOUTHERN PUBLIC UTILITIES CO. v. TOWN OP BESSEMER CITY. TOWN OF BESSEMER CITY v. SOUTHERN PUBLIC UTILITIES CO.

(173 N.C. 482)

92 S.E. 331

SOUTHERN PUBLIC UTILITIES CO.

v.TOWN OP BESSEMER CITY.

TOWN OF BESSEMER CITY

v.SOUTHERN PUBLIC UTILITIES CO.

(No. 443.)

Supreme Court of North Carolina.

May 9, 1917.

Appeal from Superior Court, Gaston County; Cline, Judge.

Consolidated actions by the Southern Public Utilities Company against the Town of Bessemer City and by the Town of Bessemer City against the Southern Public Utilities Company. From a judgment for the Company, the Town appeals. Affirmed.

Plaintiff sued for $1,566.S7, and interest, being the amount it alleged to be due by the defendant for lights and current furnished to it under a contract dated November 8, 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 finding as to the contract of November 8, 1912, is as follows:

(1) That on the 8th day of November, 1912, the town of Bessemer City and the Southern Power Company entered into a written contract to the effect that the power company would furnish lights to Bessemer City for a period of five years, from December 1, 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 November 8, 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 November 8, 1912, and the latter, as to the rate stipulated, would govern and control the parties thereto.

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 March 10, 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 Mt. Holly plant. This was used for 60 days by defendant. The defendant fell behind considerably with its payments for the lighting service, and plaintiff then agreedthat, If it would enter into a new contract, and the past-due accounts were paid, it would install permanently the Mt. 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 $1,491.82 principal and $102.58 interest to December 29, 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 conclusions of law:

(1) The contract made between the town of Bessemer City and the Southern Power Company of November 8, 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 and being bound by the terms and conditions of the contract of November 28, 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 December 29, 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.

Osborne, Cocke & Robinson, of Charlotte, for plaintiff.

Whitney & Whitney, of Bessemer City, and Mangum & Woltz, of Gastonia, for defendant.

WALKER, J. (after stating the facts as above). 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, 133 N. C. 587, 45 S. E. 948, is one of the positions of ...