Macon Gas Light & Water Co. v. Freeman , 4 Ga. App. 463 ( 1908 )

Hill, C. J.

(After stating the facts as above.)

1. The admitted facts in this ease prove that there was no breach of its public duty by the water company in cutting off the water from the plaintiff’s residence. Under its franchise and the contract made with the city, the water company was unquestionably under a duty, as a public-service corporation, to furnish water to the citizens of Macon for domestic use; but the citizens were under a correlative duty to pay for the water so furnished to them. The failure to pay for the water according to the tolls and the rules of the company releases the water company from the duty of furnishing water. Payment for the water, and time of payment, were of the essence of the contract to furnish water; and a failure on the part of the citizen to pay for the water when furnished, within the period fixed by the company for payment, was such a breach of the agreement by the citizen as entitled the company to rescind the contract made with the city to furnish the water, in so far as the delinquent citizen was concerned. No citizen could justly claim the benefit of the contract, without performing his correlative obligation. Savannah Ice Delivery Co. v. American Refrigerator Transit Co., 110 Ga. 142 (35 S. E. 280).

Conceding that the water company could not exercise its right to discontinue the water on failure to pay for it according to its rules and regulations, without first giving a delinquent five days’ notice of its intention to cut off the water on account of such failure of payment, yet the evidence in this case incontestably shows that the plaintiff in the court below had in fact had much longer than the five days’ notice from the company that his bill was past due and that the water would be discontinued unless payment was made. This notice had been sent to and received by the plaintiff each month for four months before the water was cut off, and it seems to us that, under the admitted facts, the company had fully complied with the requirement as to notice. In other words, ww think the evidence shows that the company had been more indulgent to the delinquent customer on the subject of notice than was required by the contract, even as construed by the court.

2. The contention of the plaintiff in the court below that at the time when the water was cut off he did not owe the bill for the four months is not sustained by evidence. His contention that Mr. Ellis had been accepted by the company as its debtor, in lieu of himself, is not supported by his statement that Mr. Ellis had told him that he had settled the matter with the president of the company. This testimony, being hearsay, was of no probative value, and besides was completely refuted by the admitted fact that the company had personally notified him that Mr. Ellis had not paid the bill, and that he (the plaintiff) would be required to pay it before the payment of his April bill would be accepted.

In the view that we take of this case, it is not necessary to consider the other numerous assignments of error. On the merits, under the uncontroverted evidence, the plaintiff was not entitled to any recovery at all. He had failed to pay his water rent for a period of four months. He had repeatedly received notices from the company that the water rent must be paid by the 15th of the current month, or the water would be discontinued without further notice. He had disregarded the repeated notices so given to him, and had persisted in his delinquency. His conduct had fully absolved the company from any duty it owed him by reason of its contract with the city, and he had thus given to the company the right to discontinue the water. Instead of there being any breach by the company of its public duty, it had exercised its manifest right to discontinue the water, properly and indulgently; and the verdict against it is wholly unsupported by the evidence, and is therefore contrary to law. The judgment refusing a new trial is Reversed.