Mt. Holly Water Co. v. Borough of Mt. Holly Springs

Opiítioít by

Beeber, J.,

By the terms of the case stated the contract between the Mt. Holly Water Company and the borough of Mt. Holly Springs, providing for the furnishing of water to the borough and the payment therefor, is found in the ordinance of the borough enacted the 23d of October, 1894, and approved the following day. This was within a few days of six months before the water company was incorporated. By the terms of this ordinance the borough was “ to have the use of water for,fire, sprinkling and sanitary purposes at least twenty plugs or fire hydrants for the annual rental of twenty dollars a plug.” Some time after its incorporation the water company established certain rule, regulations and water rates. The third paragraph of the rules is as follows: “ All rents shall be paid annually, in advance, on the 15th day of August. A discount of 10 per cent, on all bills of less than $50.00, and of 25 per cent, on all bills exceeding $50.00, will be allowed if the bills are paid on or before August 1st. An addition of 10 per cent, to the face of the bills will be made to all bills not paid on or before September 1st. No lease of water will be made for a shorter period than one year.” The borough tendered payment of six months’ water rent, less twenty-five per cent, to wit: the sum of $150, which the water company refused to accept, alleging that the borough was not entitled to this discount. The court below entered judgment in favor of the plaintiff, the water company, for the sum of $150, thereby holding that the borough was entitled to the discount as fixed in the rules and regulations. In this we think the court erred.

It is true that the words “ all rents ” and “ all bills ” are comprehensive enough to include the bills owing by the borough, but to hold that they do include them is, we think, in view of the contract existing between the company and the borough, to put a meaning into the words not intended by the company. An examination of the water rates, established by the rules and regulations, will show that the company was not attempting to regulate the prices and times of payment for the use of plugs or fire hydrants at all. The rates mentioned in these rules were for residences, fountains, barber shops, hotels and restaurants, building purposes, stores and offices, blacksmith shops, steam boilers, stables, bakeries, slaughter houses and greenhouses. Itemized prices for water likely to be used at these places and for these purposes were minutely set forth. Nowhere was' there any price fixed for the use of plugs or fire hydrants. The rents accruing under these rates and the bills rendered for the amounts accrued are the ones that the rules and regulations were providing a discount for. It appears clear to us that, when the water company provided for the payment of all rents annually in advance, and for a discount on all bills paid within certain times, it had in contemplation the rents which would be fixed as to amount by the rates established by these rules and regulations and the bills which would be presented for the rents thus accruing.

Our conclusion as to this is fortified by a consideration of the contract between the parties and the effect upon that contract if we held that these rules and regulations applied to its terms. The borough had a contract with the company to pay it $20.00 annually for each plug or fire hydrant when these rules were adopted. They not only change the payments to semi-annual ones, but they impose a penalty if not paid within a certain time. We cannot understand how one party to a contract can thus change its terms without the consent of the other. Furthermore, even if the company had intended to forego a part of the borough’s stipulated consideration for the water, it would have been a mere nudum pactum, and such an intention could have been repudiated at any time. This is not a case where the company has waived the collection of part of its claim upon receipt of an anticipated payment, or of something different from what is provided in the contract. The most that can be said of it is that the company has announced that it would discount certain of its bills if paid within a certain time. As to those who entered into their liability after this agreement of the company had been announced it would be valid enough, but as to those whose liability was already fixed by a prior contract, such a promise of a discount cannot be enforced against the consent of the company. There can be no accord and satisfaction of a prior contract by the substitution of a new one unless that new one has some consideration to support it. The acceptance of a less sum in payment of a greater is not a satisfaction — much less is a mere announcement that a less sum will be so accepted a satisfaction: Spruneberger v. Dentler, 4 Watts, 126; Rising v. Patterson, 5 Wharton, 316; Kidder v. Kidder, 33 Pa. 268; Hosler v. Hursh, 151 Pa. 415; Cumber v. Wane, 1 Smith’s Lead. Cases (8th ed.), pp. 646, 647, 652.

Judgment reversed and judgment now entered in favor of plaintiff for $200 with interest from the 15th day of February, 1898, with costs.