East Liverpool Traction & Light Co. v. City of East Liverpool ( 1912 )

It is ordered and adjudged by this court, that the judgment of the said circuit court be, and the same hereby is, reversed for error in reversing the entire judgment of the court of common pleas, in this, to-wit: This court finds that the proper construction of the contract pleaded in plaintiff’s petition authorized the city of East Liverpool, on the date of the execution of such contract or at any time during the term of said contract, to reduce the number of arc lights then and on that day being furnished by said plaintiff in error to the defendant in error, to 165, and the further right to reduce the incandescent street lights, then being furnished by said plaintiff in error to defendant in error, to 25. That by the further provisions of this contract the defendant in error had the right at its option to increase the number of lights specified in paragraph seven of the contract to such further number of arc or incandescent lights as its needs might require, but that, having so increased this number, it had no right or authority under said contract to again decrease the same to the minimum number specified in the contract, but that such increased number must be read into paragraph seven of the contract instead of the original provision thereof as the minimum to which such lights might be decreased. It is admitted that at the time of the making and entering into this contract the plaintiff was furnishing to the city 178 arc lights and 41 incandescent lights, so that the city then had and continued to have the right to reduce such number at its pleasure to 165 arc lights and 25 incandescent lights, and that it did exercise its authority in that behalf and did properly order the discontinuance of the same, and to the extent of that number of lights the plaintiff in error is not entitled to receive any payment from the defendant in error, and the judgment of the common pleas court is excessive to the extent of 13 arc lights at $5.50 per month per light, amounting to $71.50, and 16 incandescent lights at $2.33 1/3 per month per light, amounting to $37.33, amounting in the aggregate to $108.83, and that the proper judgment to be entered for the plaintiff in the common pleas court, allowing for the outages agreed upon, is $77.44, with interest from March 1, 1909. And this court coming now to render the judgment that the circuit court should have rendered,

It is ordered and adjudged that the judgment of the common pleas court be modified by the reduction of said judgment by the aggregate cost of the lights that the city was authorized by its contract to discontinue, to-wit, $108.83, and that the said The East Liverpool Traction & Light Company have and recover from the city of East Liverpool, Ohio, the sum of $77.44, with interest from March 1, 1909, at six per cent, per annum.

Davis, C. J., Spear, Shauck and Donahue, JJ., concur. Johnson and O’Hara, JJ., dissent.