E. E. Souther Iron Co. v. Laclede Power Co. , 109 Mo. App. 353 ( 1904 )

BLAND, P. J.

(after stating the facts). — 1. In its motion for new trial, the appellant assigns as one ground therefor that the petition failed to state facts sufficient to constitute a cause of action and insists that the motion should have been sustained on that ground. The petition is somewhat voluminous, covering four printed pages of appellant’s abstract. It sets forth the making of the contract, the dispute as to its construction, the submission to arbitration of the disputed matter, the award of the arbitrators, the judgment confirming the award, the payment of monthly bills for electric power under the arrangement entered into between the parties pending the submission to the arbitrators, and alleges an overpayment and asks judgment therefor. It seems to us that this is sufficient, especially after verdict.

2. Appellant objected to the. award and decree thereon as evidence, on the ground, first, that the award and decree were impossible of performance and, second, that the arbitrators exceeded the power delegated to them by the written articles of submission. The contention is that hour meters measure time only and not power, and the arbitrators exceeded their authority in finding that appellant was entitled to four hundred and twelve dollars per annum under the terms of the contract when this question was not submitted to them. The award, when considered in the light of the contract, shows that the reference therein to the four hundred and twelve dollars is only a parenthetical quotation from the contract itself and is made as a matter of precaution to prevent the possibility of either party being misled by the language of the award and really constitutes no part of the findings of the arbitrators. In respect to the objection, that the award and decree is impossible of performance, it is shown by both parties that hour meters do not measure the power but only measure the time machines to which they are attached are operated, and it is also shown that without the aid of some other device, it is impossible to arrive at the quantity of power employed to operate a machine by electricity when nothing more than the time it was in operation is shown from which to make the calculation. But this fact does not appear on the face of the decree confirming the award and, even if it did, we do not think it would show that the judgment is absolutely void. The award and decree construing the contract are conclusive on both parties, and were admissible for the purpose of showing what the contract is; the application of that construction of the contract to conditions that arose under it is quite another thing.

3. The evidence shows that each of the four motors of respondent’s plant supplied power for the operation of a half dozen or more different machines, and that all the machines supplied with power from any one motor were scarcely ever in operation at one and the same-time; frequently one, two or three of such machines,, and sometimes but one, would be running. It appears, from tbe evidence produced by tbe appellant tbat the-basis of calculation for its bills was on the borse power multiplied by tbe hours used. Witness, Elwood Y. Mat-lack, said tbat tbe bour meter only registered tbe hours during which tbe current was used; tbat tbe bour meter could not indicate whether tbe power generated by tbe motor was actually used or not; tbat tbe appellant’s, bills took into account tbe amount of power actually used, determined by an ammeter operating at tbe same time tbe bour meters were in operation, and tbat the bills were made upon tbe basis of tbe power required to-operate tbe motors, shafting and machines attached. Tbat bis (witness’s) conception of what borse power means, under tbe contract, “is a maximum rate for use of power, and tbat per borse power means tbat tbe maximum rate for use of power, multiplied by the total number of hours shown by tbe bour meter, would be the-amount upon which tbe bill would be figured at the-contract rate of three cents” per borse power per bour. This evidence shows tbat, by ammeter measurement, tbe appellant ascertained tbe maximum amount of' power generated by tbe motors in respondent’s plant, and by tbe bour meters attached to each motor, it calculated tbe number of hours each one was in operation and on this basis made out its bills, tbat is, tbe calculation was based on tbe maximum power generated by each motor multiplied by tbe number of hours it bad been run, as indicated by tbe bour meter, irrespective-of tbe number of machines tbat were supplied with power by the motor. So it reasonably appears tbat the respondent was charged for maximum power generated by a motor whether that motor furnished power to one,, two or a half dozen machines depending on it for power. It was against this method of calculating tbe power furnished or claimed to be furnished, that respondent protested and which resulted in tbe submission of tbe contract to arbitrators for construction. Appellant insists that this method of calculating the power is the one provided for by the contract and there is no evidence that its calculations or bills are erroneous. The contract, as construed by the decree confirming the award, which is not only binding upon both parties, but also upon us, is that respondent should be charged for only such amount of electric power furnished and actually used by it, the quantity of the power to be measured by hour meters placed on the motors, and in addition thereto upon such particular machines as mig’ht be designated from time to time by respondent. This construction, according to the evidence, placed the parties in this dilemma. The appellant could charge for only the power actually used by the respondent, the quantity of this power to be measured by hour meters, an instrument or device by which electric power can not be measured. In other words, the appellant was required to make out its bills for power actually used, and a device was designated for measuring this power that would not measure it. For these reasons, appellant claims that its method of calculating the power is the only one permissible under the contract and, according to the decree, no other instrument can be used for measuring the power; yet, in the face of this contention, its evidence shows that it was compelled to use and did use an ammeter (not mentioned at all in the contract) for the purpose of ascertaining the maximum power generated by the four motors in appellant’s plant. The gist of the matter in controversy, when submitted for arbitration, was for what should respondent pay, the maximum power generated by the four motors in its plant, or for the actual amount of power used for operating its machines ? The decree is that it shall pay for the latter amount only. Now, because an impracticable or impossible means of ascertaining that power is designated in the contract and also by the arbitrators, is the amount of power furnished to be left to the guess of the appellant or should not some practicable and efficient means be used for the purpose of measuring the power actually used and thus carry out the real intention of the parties as construed by the decree of the court? If not, then the contract is not capable of execution at all and the respondent is liable only for the price of the power actually furnished by it (the price per horse power per hour, not exceeding the price of three cents). So, we think, it matters not which horn of the dilemma the appellant seizes upon, the result is the same; that is, the respondent is liable only for the actual power used by it, to be accurately ascertained by appliances adequate for the purpose.

4. Respondent showed by the evidence of H. H. Humphrey, an educated and experienced engineer, that according to actual measurements made by him of the power being furnished by appellant at the time the measurements were made, the entire amount furnished in one year would not, at the contract price, equal four hundred and twelve dollars. Respondent also showed that after the appellant ceased to furnish it power, it took electric power from the Laclede Gas Light Company for twenty months preceding the trial, and that the average horse power hours per month was 1008 9-10, while the average horse power hours per months for the thirty months appellant furnished power was, according to its bills and measurements, 2658, and yet the evidence shows that respondent used on an average more power per month while taking from the Laclede Gas Light Company than when taking power from the appellant. The power taken from the Laclede Gas Light Company was measured by wattmeters attached to the machines, appliances which the evidence shows measures both time and the amount and power of the current passing through the meter. All this evidence was objected to by appellant, on the ground that the parties having fixed the mode of measuring the power by the contract, no other mode could be resorted to. It is well settled law that where a mode of measurement for ascertaining an amount to be paid on a contract is specified in tbe contract, that mode and no other must be followed. [United States v. Robeson, 9 Peters 319; Herrick v. Belknap, etc., 28 Vt. 673; Hood v. Hartshorn, 100 Mass. 117; President, etc., v. Coal Company, 50 N. Y. 250; Laclede Construction Co. v. Tudor Iron Works, 169 Mo. 137, 69 S. W. 384.] B.ut the appellant proved that the method provided by the contract for measuring the power was an impossible one and it could not be measured at all by the meter mentioned in the contract, hence it follows that the contract, while it. undertook to provide a method, in fact, provided none. In these circumstances, what should be done to ascertain the amount the respondent should pay, try to apply an arbitrary but impossible method of measurement or take the best evidence obtainable to show the actual amount of power used? The latter course was approved by the learned trial court and it seems to us that it was not only the proper course but the only one by which the amount of power furnished by appellant could have been ascertained. The situation was not unlike one where a contract for work provides for payment to be made on the estimate of a particular engineer or architect and the engineer or architect dies before making the estimate, or refuses to make one after the work had been done, or acts fraudulently; in such circumstances, the party doing the work may recover on a quantum meruit not exceeding the contract price. [Williams v. Railway, 112 Mo. 463, 20 S. W. 631; Nordyke & Marmon Co., v. Kehlor, 155 Mo. 643, 56 S. W. 287; Herrick v. Belknap, supra.]

5. It is contended by appellant that respondent is not entitled to recover for the reason it failed to perform its part of the contract by refusing to pay the bills for the months of February, March and April. There are two answers to this contention, either of which is sufficient; one is that, according to the evidence and the finding of the court, each of these bills was for a sum in excess of what was actually due; the •other is that at the time these bills were presented the •appellant, according to the evidence and the finding of the court, owed the respondent a sum of money exceeding the aggregate amount of those bills.

6. Declarations of law were given, and some asked by defendant were refused. Error on this score is assigned . Either party had a right to ask declarations of law, though the issues were submitted to the court, and they are reviewable here. They serve to show on what theory of law the court decided the ease and if they show that the court adopted the wrong theory and came to a wrong conclusion, the judgment should be reversed. [Butler Co. v. Boatmen’s Bank, 143 Mo. 13, 44 S. W. 1047; Wheeler v. McDonald & Co., 77 Mo. App. 213.] The declarations of law given are in harmony with the views herein expressed. Those refused are to the contrary, and we conclude that the court committed no error in giving or refusing the declarations of law. There are a number of other assignments of error found in the appellant’s brief but as those examined and passed on cover the entire controversy, we deem it unnecessary to extend this opinion to a discussion of assignments of error that do not affect the merits of the •cause.

We think the judgment is for the right party and it is affirmed.

All concur.