Appeal from Trial Term, Essex County.
Action by Daniel F. Payne against Witherbee, Sherman & Co. From a judgment dismissing the complaint and awarding damages to defendant, together with costs on its counterclaim, plaintiff appeals. Affirmed.
[117 N.Y.S. 16] Smith
& Wicks (Francis A. Smith, of counsel), for appellant.
Stokes & Owen (Edward T. Stokes, of counsel), for respondent.
Argued before SMITH, P. J., and CHESTER, KELLOGG, COCHRANE, and SEWELL, JJ.
Plaintiff seeks to recover an alleged balance of $1,461.84 for electrical power furnished by him to the defendant during the first five months of the year 1907 under a written contract entered into March 22, 1905, between him as the party of the first part and the defendant as party of the second part. The defendant contends, and the judgment determines, that the defendant has fully paid for the power so furnished, and that, by mistake of fact, the defendant has overpaid the plaintiff for power furnished under said contract during the year 1906 to the extent of $3,646.23, besides interest, which amount is awarded by the judgment to the defendant under its counterclaim interposed herein against the plaintiff. No question exists as to the amount of power furnished at any time under the contract. The controversy arises concerning the price to be paid for such power.
The contract provides that the minimum amount of power shall be 350 horse power and the maximum amount 750 horse power; that delivery of said power shall begin January 1, 1906, and continue for a period of 10 years. The other portions of the contract relevant to the purpose of this action are as follows:
" Such power to be furnished and delivered at least twelve hours per day and for twenty-four hours per day if required by party of the second part during each and every of the three hundred and sixty-five days in the year, except that during at least one day in each week party of the first part shall be required to furnish such power only for said minimum time of twelve hours. The said day in each week during which only said minimum time shall be required, to be mutually agreed upon between the parties, and shall be during each and every Sunday during the period of this contract if the necessities of the party of the second part will permit thereof, and party of the second part covenants and agrees to and with the party of the first part as follows:
" First. To accept and receive said amount of minimum power during at least twelve hours per day for each and every day during the period of this agreement.
" Second. To pay the party of the first part the sum of twenty dollars per horse power per year of three hundred and sixty-five days of twelve hours each, and at the same rate for each and every hour per day in excess of said twelve hours.*** It is further understood and agreed that if the party of the second part shall not require said power during each and every of the twenty-four hours per day, the party of the first part will furnish said power during the twelve hours of each day which shall be designated by the party of the second part."
Prior to 1906 the plaintiff had furnished power to the defendant under another and similar contract so far as this question is concerned. During all that time, and down to January 1, 1907, the power was measured by defendant's electrician Lamborn, and the price to be paid was computed by him in conjunction with the plaintiff. Such computations were made at the rate of $20 per horse power for 340 days of 10 hours each, instead of 365 days of 12 hours each, as provided by the contract. Bills were made out monthly showing the total amount of power furnished and the aggregate price therefor, but not showing the rate or method of computation, which bills were paid by the defendant in the usual course of its business. About January [117 N.Y.S. 17] 1, 1907, Lamborn left defendant's employ, and the person who succeeded him at once discovered that the prior computations had not been made in accordance with the contract, and reported his discovery to defendant. The latter through its general manager notified the plaintiff in writing of the fact and amount of the alleged overpayments, and that the plaintiff must return the same. Defendant thereafter made payments according to its theory of computation.
The theory of the plaintiff is best stated by quoting from his brief as follows:
" Lamborn, the defendant's accredited agent, and the plaintiff, when the first contract (Exhibit No. 2) took effect, settled the method of computing the plaintiff's compensation, and agreed that as the contract provided that during one-half day of 12 hours in each week the plaintiff should not be required to furnish power-that is to say, 26 days of 12 hours each out of the year-340 days should be counted for a year.*** The plaintiff's contention is that under both contracts, by their plain and unmistakable terms, the plaintiff was entitled to receive payment for 12 hours if the defendant took the power for only 10 hours. It is established that the defendant took power only 10 hours out of 12, 20 hours out of 24, except that the plaintiff delivered an average of only 75 to 100 horse power during 4 hours out of 24, or 2 hours out of 12, when the defendant shut off all but the limited power furnished."
It seems that during certain portions of the day when defendant's employés were at their meals the minimum of 350 horse power specified in the contract was not being received by defendant, and plaintiff's contention seems to be that because defendant was not receiving at least such minimum power during 12 consecutive hours, but as he says only 10 out of 12 or 20 out of 24 hours, and that because during one day in a week he was not obliged to furnish power for more than 12 hours, therefore the rate of compensation should be computed based on 10 hours a day and 340 days a year, and, as heretofore stated, it is at that rate that payments were computed and made during the year 1906, and for which plaintiff claims payment during the first 5 months of the ...