Town of Colorado City v. Townsend

• Citation: 47 P. 663,9 Colo.App. 249
• Parties: TOWN OF COLORADO CITY v. TOWNSEND.
• Decision Date: 11 January 1897
• Court: Colorado Court of Appeals

47 P. 663

9 Colo.App. 249

TOWN OF COLORADO CITY v. TOWNSEND.

Court of Appeals of Colorado

January 11, 1897

Appeal from district court, El Paso county.

Action by O.C. Townsend against the town of Colorado City on contract. Judgment for plaintiff, and defendant appeals. Affirmed.

On the 19th day of June, 1893, appellant and appellee made the following contract: "For and in consideration of the sum of thirteen dollars ($13.00) per month for each arc light furnished to said party of the second part, the said party of the first part agrees to furnish lights, and to light the streets and parks of Colorado City by electricity, for the period of ten (10) years from the first day of October, 1893, with as many arc lights as said party of the second part shall require, not less than nineteen (19); said lights to be arc lights known as two thousand (2,000) candle-power lights, such as are furnished to the said party of the second part. Said party of the first part further agrees to furnish additional lights in excess of the number of nineteen (19) as the city council of the party of the second part may require and demand, and also agrees to locate and maintain the lights so furnished at such points and in such places as the second party may direct, but no new lights furnished as aforesaid shall be located at a greater distance than two (2) blocks from the next adjoining light; and said second party agrees to pay to said party of the first part, for each additional light so furnished, the sum of thirteen dollars ($13.00) per month, said party of the second part hereby agreeing to accept said lights of the above-mentioned power and kind for the period of ten (10) years, upon the terms and conditions herein named. Said second party agrees to pay said first party on the 10th of each and every month at and after the rate of $13.00 per month for each arc light used the preceding month. Said party of the first part hereby agrees to turn on the light so furnished at a time not more than one hour after sunset in each day, and reserves the right to turn off said lights at not earlier than one hour before sunrise in each day. It is further agreed that said party of the first part may assign and transfer all his rights, or any portion of the same, in this contract, to any individual or electric light company hereafter to be formed, upon consent of said party of the second part, upon the condition that said assignee shall agree to conform to all the conditions, terms and reservations of this contract. The said party of the first part further agrees that if, at any time during the term of this agreement, it shall become a well known, fixed and established fact in electric lighting, that electricity for the purpose of arc lighting can be distributed by other and less costly processes than those at present known to be practicable, and as a proper and legitimate method, fully developed and in general use, then in such case said party of the second part may demand from said party of the first part or his assigns, such modifications of this contract as shall give said second party an equitable benefit arising from such new process. Such demand for modification of this contract shall be made in writing by said party of the second part and in case said parties hereto shall not be able to agree as to the terms, conditions, and modifications hereof, the same shall be submitted to three (3) arbitrators, one arbitrator to be chosen by each party hereto, and the two so chosen shall choose a third. The finding of such arbitrators so named to be final and conclusive on each party as to all matters submitted to them." On December 8, 1894 appellee brought suit to recover $1,235 and interest; alleging nonpayment of $247 each month for the months of June, July, August, September, and October, 1894; alleging full compliance by him with the terms of the contract. Appellant answered, denying any indebtedness; that appellee had complied with his contract,--and denied that appellee had furnished any lights after the 1st day of June, 1894, and added the following special defenses: "(1) That on the 10th day of June, 1893, said O.C. Townsend entered into a contract with defendant, and agreed to erect an electric light plant at the glass works, and to light the defendant town from said plant, for a period of ten years, at thirteen dollars per light per month. (2) That said plaintiff did, under said contract, erect an electric light plant, procured a franchise from said town, and erected poles, wire, and arc lights, and began to furnish lights and light said town, and continued so to do until about the 22d day of May, 1894, when said plaintif...