West v. Edwards

OPINION This appeal requires a construction of the following provision of a lease entered into by Fred D. West and one E. Edwards, formerly the husband of the respondent but now deceased, to wit: "It is understood and agreed that the lessor will furnish to said lessee * * * all necessary light and power up to a maximum of 4,000 watts; it being understood that the lighting and power service now available and used upon said leased premises does not exceed 4,000 watts, and in the event the lessee makes changes in his present light and power service that will utilize in excess of 4,000 watts, the lessee will pay to the lessor for such excess seven and one-half cents (7 1/2¢) per kilowatt hour; * * *."

Respondent succeeded to the interest of said E. Edwards in said lease, by reason of a decree of court distributing all the property of said deceased to said respondent as the surviving wife.

Respondent asserts that the question to be answered in arriving at a proper interpretation of said lease is: How much electrical energy is the lessee entitled to receive from the lessor free of charge before respondent becomes liable to appellant, the lessor, for excess at the rate of seven and one-half cents per kilowatt hour? This question respondent answers by asserting that the free power she is entitled to is an amount equal to 4,000 watts flowing through the wires for every minute of every hour of every day of the month. The trial court considered such to be the proper solution, and stated its position in the following language: "That the statements made (referring to the paragraph of the lease quoted supra) mean that the lessee may use all the electricity she may want, but should the lessee use electricity in excess of a steady flow of electricity amounting to more than 4,000 watts she would be required to pay for the same at the rate of seven and one-half cents per kilowatt hour."

In order to properly appraise what the parties had in mind when the term "4,000 watts" used in the paragraph quoted supra was incorporated therein, a consideration of the situation of the parties as it existed at the time is necessary. The leased premises are situated at West Wendover, Elko County, Nevada, and the electricity used in the business, which prior to the execution of the lease had been conducted by appellant, was generated upon the premises. No meters were installed at the time. From a reading of the record it appears that no knowledge of the actual amount of energy consumed, that is as measured in kilowatt hours, was had by the parties. However, it is apparent that appellant and respondent were aware of the then existing installations which consumed electrical energy; also they were aware of the amount of power, as defined in watts, which was connected up. In view of the stipulation in the paragraph of the lease quoted supra, namely: "It being understood that the lighting and power service now available and used upon said leased premises does not exceed 4,000 watts," it would seem unreasonable to suppose that the parties were referring to a use of the available power for every minute of every hour of every day in the month; that necessarily would have been the situation if the parties had in mind the construction which respondent gives the lease, because they speak of the available power being used. We cannot reasonably assume that the electric energy was flowing into the consuming fixtures in such a constant and uniform manner. This appeals to us as being a rather convincing circumstance in favor of the construction that the parties were dealing with connected power or installations rather than energy which was being used. It is a fair deduction from the evidence that the parties, by agreeing to the phrase "4,000 watts" as used in the lease, took the amount of watts represented by each installation and totaled them; for example, let us say they found a globe of 100 watts installed, another one of 50 watts, and a kitchen range of several hundred watts, etc., the grand total of which equaled 4,000 watts connected up to the wires which ran from the dynamo to the different rooms and places where lights and energy were used. The lessor, as well as the lessee, knew or were in a position to know the approximate amount of time the different installations were in use; that certain lights would only be used for a certain period of time, and that energy connected up to machinery would be in operation for a limited period during any twenty-four hours. No way existed of determining how much electrical energy, as measured in kilowatt hours, was ordinarily used during a twenty-four-hour period. But having in mind the power connected up and how it would ordinarily be used during each day, the lessor expressed a willingness to furnish the electricity that would take care of the then existing installations, and agreed to keep available an amount of power necessary to operate those installations and fixtures for the time that they would ordinarily and reasonably be used, and to do so without cost. The parties unquestionably understood that the business conducted by the lessee would increase, and being so advised, they further understood that an increase in business would require more lighting facilities or other power-consuming instrumentalities, and consequently the amount of energy needed would be greater. The appellant sought to protect himself in furnishing an anticipated greater consumption, by providing that such an increase would be charged for at seven and one-half cents per kilowatt hour.

1. In arriving at an answer to the question as to the amount of electricity respondent was to be allowed to use free of charge, we are convinced the intention of the parties was to limit it to the electrical energy which the respondent would use through the installations existing at the time the lease was executed, or their equivalent, and that the charge of seven and one-half cents per kilowatt hour would be for the energy used in installations in excess thereof. The installations existing at the time of the execution of the lease represented the connected load at that time.

As anticipated by the parties, the business expanded, and new installations were required and made, which increased the connected load from 4,000 to 17,473 watts, an increase of 13,473 watts. Mr. Lundergreen, an expert witness, testified that the load factor would be constant.

The greatest difficulty we have encountered in considering this appeal is the correct manner of arriving at the ratio of electrical energy used in the installations representing 4,000 watts and that used by the increased connected load of 13,473 watts. In the final analysis we find in the record on this point the testimony only of witnesses produced by appellant. Respondent's theory of the case being entirely different, no attempt was made by her to offer proof on this question.

2. Meters were installed, and for the period involved in this suit 30,154 kilowatt hours of energy were used. In arriving at the amount of free power in kilowatt hours the lessee was 4,000 entitled to without charge, ______ of 30,154 is the formula 17,473 deduced from the testimony given by appellant's witnesses; from this the figure of 6,902 kilowatt hours is obtained as the amount of free power; deducting this from the 30,154 kilowatt hours actually consumed leaves a balance of 23,252 kilowatt hours to be paid for at the rate of seven and one-half cents per kilowatt hour, which establishes an indebtedness due from respondent for excess power of $1,743.90; deducting from this the slot machine balance of $777.65 shown in the findings, and also credit by check of $130, leaves a balance of $836.25 due from respondent to appellant.

The judgment of the lower court is reversed and it is directed to enter a judgment in favor of appellant in accordance with the views herein expressed.

ON PETITION FOR REHEARING April 21, 1943.