Wilshire Const. Co. v. Union Elec. Co.

• Decision Date: 08 March 1971
• Docket Number: No. 2,WIELAND-SUGRU,INC,No. 54800,54800,2
• Citation: 463 S.W.2d 903
• Parties: WILSHIRE CONSTRUCTION COMPANY, a Missouri Corporation, Appellant, v. UNION ELECTRIC COMPANY, a Missouri Corporation, Respondent. ALFRED H. MAYER COMPANY, a Missouri Corporation, Appellant, v. UNION ELECTRIC COMPANY, a Missouri Corporation, Respondent. SPARTAN BUILDERS, INC., a Missouri Corporation, Appellant, v. UNION ELECTRIC COMPANY, a Missouri Corporation, Respondent. R.G.B. CONSTRUCTION COMPANY, a Missouri Corporation, Appellant, v. UNION ELECTRIC COMPANY, a Missouri Corporation, Respondent., a Missouri Corporation, Appellant, v. UNION ELECTRIC COMPANY, a Missouri Corporation, Respondent
• Court: Missouri Supreme Court

Page 903

463 S.W.2d 903

88 P.U.R.3d 113

WILSHIRE CONSTRUCTION COMPANY, a Missouri Corporation, Appellant, v. UNION ELECTRIC COMPANY, a Missouri Corporation, Respondent.

ALFRED H. MAYER COMPANY, a Missouri Corporation, Appellant, v. UNION ELECTRIC COMPANY, a Missouri Corporation, Respondent.

SPARTAN BUILDERS, INC., a Missouri Corporation, Appellant, v. UNION ELECTRIC COMPANY, a Missouri Corporation, Respondent.

R.G.B. CONSTRUCTION COMPANY, a Missouri Corporation, Appellant, v. UNION ELECTRIC COMPANY, a Missouri Corporation, Respondent.

WIELAND-SUGRUE, INC., a Missouri Corporation, Appellant, v. UNION ELECTRIC COMPANY, a Missouri Corporation, Respondent.

No. 54800.

Supreme Court of Missouri, Division No. 2.

March 8, 1971.

Lewis, Rice, Tucker, Allen & Chubb, Arthur R. Tucker, St. Louis, for plaintiffs-appellants.

William H. Ferrell, Keefe, Schlafly, Griesedieck & Ferrell, and Stewart W. Smith, Jr., St. Louis, for defendant-respondent Union Electric Co.

HENRY I. EAGER, Special Commissioner.

Five plaintiffs, each being a subdivider and builder of residential properties, sued Union Electric Company for alleged overcharges collected under contracts for the installation of underground wiring. Some of the suits involved two or more subdivisions and two or more counts. The amounts thus claimed varied from approximately $6,900 to more than $36,000, and totalled approximately $81,000. We have jurisdiction. All of these cases were consolidated under the title first shown above. A summary judgment was entered for the defendant upon its motion. An after-trial motion was overruled and the plaintiffs duly appealed. At this point we note the plaintiffs do not contend that there are any material issues of fact, or that a summary judgment could not properly have been entered for one party or the other. The sole issue involved the proper construction of a Rate Schedule filed by defendant, and perhaps of the contracts based upon it. The suits are identical except as to the differing tracts of land and the amounts involved.

On August 24, 1965, defendant filed with the Missouri Public Service Commission its Rate Schedule, designated as Section XII, G. 3, Schedule 5, of its General Rules and Regulations. The determination of this case depends upon the construction of a paragraph thereof which we quote: '3. Underground Extensions to Residential Subdivisions. * Underground service will be extended throughout an entire residential subdivision, consisting of a number of houses and/or multi-family dwellings and incidental common facilities which are provided primarily for the benefit of the residents of said subdivision, upon the request of the initial owner, developer or trustees of said subdivision or other persons having authority to contract on behalf of the owners of the individual premises therein, provided that there is no engineering, operating, construction, safety or legal reason which would in Company's judgment make it inadvisable to make the underground installation, and provided further that such owner, developer or trustees shall pay in advance to Company without right of refund the amount, if any, by which Company's estimated total underground extension cost to said subdivision exceeds 1.5 times the estimated total annual revenue to be received by Company therefrom. * Indicates change.'

Pursuant to this schedule contracts were executed with all of the plaintiffs (individually) in each of which it was agreed that defendant would provide underground electric service facilities 'throughout the property' at a stated (estimated) cost, and that the owner should construct certain residential structures thereon, each to be equipped with certain designated electrical appliances, with a stated, though estimated, annual revenue to defendant from such buildings. Each plaintiff was required to pay the sum or sums for which it has sued, being the cost referred to above, 'without right of refund'; presumably, those amounts were all paid. The various contracts were executed in 1966, 1967 and 1968. The plaintiffs now claim that the amounts so charged were not justified or permitted by the Rate Schedule, that a sum of 1.5 times the annual revenue in each case exceeded the estimated cost of installing the service 'to said subdivision' (italics ours) and that no payment was legally required; hence, the claim is made of an overcharge to each plaintiff.

It was suggested by defendant in the trial court that perhaps these claims should have been made to the Public Service Commission. We note the suggestion; it is not pressed here, since defendant obtained a final judgment. That Commission does have exclusive jurisdiction of all utility rates, but when a controversy arises over the construction of a contract or of a rate schedule upon which a contract is based, and a claim of an overcharge is made, only the courts can require an accounting or render a judgment for the overcharge. The Public Service Commission cannot 'enforce, construe nor annul' contracts, nor can it enter a money judgment. May Dept. Stores Co. v. Union Electric Light & Power Co., 341 Mo. 299, 107 S.W.2d 41; Katz Drug Co. v. Kansas City Power & Light Co., Mo.App., 303 S.W.2d 672; Great Northern Railway Co. et al. v. Merchants Elevator Co., 259 U.S. 285, loc. cit. 291, 42 S.Ct. 477, 66 L.Ed. 943.

Plaintiffs and defendant both assert that the issue here is solely one of law. Each also asserts that the terms of the controverted Rate Schedule are clear and unambiguous, although each insists upon a different interpretation. However, that disagreement does not in itself make the terms of the contract ambiguous. Mickelberry's Food Products Co. v. Haeussermann, Mo., 247 S.W.2d 731; Kalen v. Steele, Mo.App., 341 S.W.2d 343; Needles v. Kansas City, Mo., 371 S.W.2d 300. In such event the question is to be decided by the court as a matter of law. Commerce Trust Co. v. Howard, Mo., 429 S.W.2d 702.

The entire substance of plaintiffs' claims is that the provision for payment of the amount by which the defendant's 'estimated total underground extension cost to said subdivision exceeds 1.5 times the estimated total annual revenue * * *' (italics ours) means only the cost incurred in running an extension to the boundary lines of the subdivisions in question; and, hence, that defendant may not use its estimated costs for installing the lines throughout the respective subdivision, and charge plaintiffs the difference between the latter cost and 1.5 times the estimated annual revenue, which it did. Plaintiffs' arguments are based largely upon their construction of the word 'to.'

We look first at the cases expounding the rules for the construction of unambiguous contracts. The courts seek to ascertain the intent of the parties by giving to the language used its natural, ordinary, and common sense meaning, but they also look to the entire contract; and the court should consider the object, nature and purpose of the agreement. Brackett v. Easton Boot & Shoe Co., Mo., 388 S.W.2d 842; Kalen v. Steele, Mo.App., 341 S.W.2d 343; Industrial Bank & Trust Co. v. Hesselberg, Mo., 195 S.W.2d 470; 17 Am.Jur.2d Contracts, § 246 et seq. In Am.Jur. (just cited), it is said also that the spirit, purpose and substance of the agreement must control rather than its letter, and that definitions from dictionaries, etc., are not to be used alone, without reference to the facts and circumstances of the case. We seek now to apply these rules to the Rate Schedule.

Plaintiffs say, quoting from Webster's (2nd International) that the word 'to' is used: 'Primarily to express the relation of direction of approach and arrival making its governed word denote the terminus.' Webster's contains nearly two columns of definitions for 'to.' Another definition defines it as a functional word to indicate 'purpose, intention, tendency, result or end * * * as, for the purpose of * * *.' Black's Law Dictionary (4th Rev.) is also cited for the definition that it is 'ordinarily a word of...