Southern Public Utilities Co. v. Town of Bessemer City

Walker, J., after stating tbe ease: ¥e need not enter upon a discussion of most of tbe questions raised in tbe briefs. That tbe aider-men of tbe town of Bessemer City could not make a contract which in its operation would extend beyond their time of office, under Wadsworth v. Concord, 133 N. C., 587, is one of tbe positions of tbe plaintiff; but we may pass it by without any expression of opinion upon it, as tbe decisive question, in our view of tbe case, is whether tbe first contract was superseded by tbe second, tbe latter being fully substituted for it by the parties. . There is a contention that tbe -first contract has not been established, but only one of its terms, and it is said to be supported by 8 Enc. of Evidence, p. 359; 3 "Wigmore on Evidence, sec. 1957, and Dulin v. Bailey, 172 N. C., 608. Let this be as it may, as we will confine ourselves to tbe other and controlling question, and, for tbe sake of tbe argument we will assume that tbe first contract has been sufficiently shown to be as defendant asserts that it was. It appears from tbe finding of tbe referee that tbe intention of tbe parties was to come to a fresh agreement in November, 1912, and to enter into a contract, which should be complete in itself, and that there was nothing in tbe first contract which “qualified” tbe second or prevented tbe town from changing tbe form and substance of its contract as made in 1907, or from making an entirely new contract upon the same subject, as it subsequently did in 1912; and be further finds, *485 substantially, that the latter contract was intended to take the place of the earlier one. But even if the plaintiff’s predecessor had agreed to give to the defendant the lowest of its rates, it was competent for the parties, by mutual agreement, to alter this contract, or to substitute another for it, by fixing a flat or unchangeable rate, as was done by the last contract. There is nothing unlawful in it, nor is it contrary to good morals, but, on the contrary, such a change or substitution may, in certain instances, be beneficial to the town by declaring exactly what the rate per lamp shall be in dollars and cents during the fixed period, so that it will not be subject to change by the power company on account of fluctuations in the cost of production to it, for it may be that even the lowest rate given to another town may, in' the future, be raised above that stated in the contract, if the cost and expense of production increases, so as to meet and provide for such an increase. A stationary rate might, therefore, be of value to the town. If the parties had intended to provide for a standard or minimum rate, above which the defendant should not be charged, why was not something said about it in the contract of November, 1912? We cannot look at this transaction from its beginning to its end without concluding that in 1912 the parties were then making a fresh contract, and an entire one, for the future, canceling all those behind them. Every detail of such a contract was provided for in the writing, and there was not the slightest reference to the first contract, or any stipulation of it, and the contract itself states that the prior contract of 12 November, 1908, is canceled and annulled, “and neither party shall have any rights thereunder against the other,” except for the purpose of enabling the plaintiff to collect what was then due by the defendant,' and it was continued only for that purpose. Smith v. Pritchard, at this term. In other words, it was to be no longer of any force or effect, except as evidence of defendant’s indebtedness to plaintiff, and so that the same would not be extinguished by repealing the contract, as it was anticipated that such a result would follow. The plaintiff, perhaps, had in mind a decision of this Court in Lipschutz v. Weatherly, 140 N. C., 365, and inserted the clause in order to preserve its rights to enforce payment of the amount already accrued. This shows what the parties intended when they met in November, 1912, and carefully prepared the contract to govern for the next five years. Rights acquired under a contract may be abandoned or relinquished either by agreement, or conduct, or by contract clearly indicating such a purpose. Redding v. Vogt, 140 N. C., 562; Falls v. Carpenter, 21 N. C., 237; Faw v. Whittington, 72 N. C., 321; Miller v. Pierce, 104 N. C., 389, and cases cited in Redding v. Vogt, supra. It was said in Lipschutz v. Weatherly, 140 N. C., 365: “Of the -several methods by *486 which a contract may be discharged, one is by substitution of a new contract, the terms of which differ from the original. In such cases the release of the obligations of the old and the substitution of new obligations constitute valuable considerations. It is also now well settled that ordinarily a written contract, before breach, may be varied by a subsequent oral agreement, made on a sufficient consideration, as to the terms of it which are to be observed in the future. Such a subsequent oral agreement may enlarge the time of performance, or may vary other terms of the contract, or may waive and discharge it altogether.” It was said in Mather v. Butler County, 28 Iowa, 253, 256: “The execution of the second contract was in law a substitute for the first, and an abandonment of it so far as it then remained unperformed; what the plaintiff had performed under it and what he had received under it were thereby closed, and the new contract controlled as to future materials, work, and prices, according to its provisions. We have examined the two contracts, and whether regarded by themselves alone or in the light of the circumstances under which they were concluded, it is' our opinion that there was no error in the view of the court. They were not intended to coexist, but the second was designed to take the place of the first and to embody the whole agreement of the parties.” And in Redding v. Vogt, supra, we said: “If upon the facts of our case, therefore, we can gather that the parties intended the two contracts not to coexist, and the second was designed to take the place of the first, the former must be taken to embody the entire and final agreement of the parties,” citing Mather v. Butler County, supra. It further appears, by the finding of the referee, that at the time the contract of 8 November, 1912, was executed the rates therein fixed were the lowest allowed to any town. The findings of the referee, approved by the judge, are adopted by us, if there is evidence to support them, and there is no suggestion that there is none in this ease. The evidence was not sent up. This case and one entitled Town of Bessemer City v. Southern Public Utilities Company were consolidated by consent, and referred to Mr. J. W. Keerans, whose report embraces both cases, and only one judgment was rendered, which is applicable to both cases. We are of the opinion that there was no error in the conclusion of the court or in its judgment. Affirmed.