Loyalton Electric Light Co. v. California Pine Box & Lumber Co.

[76]

HALL, J.

This is an appeal from a judgment entered for defendant upon sustaining a demurrer to plaintiff’s amended complaint, plaintiff having refused to further amend.

The action is for damages for a breach of a contract set forth in the complaint and entered into between defendant and the Plumas Box and Lumber Company, which has assigned its rights under said contract to plaintiff.

The defendant is the owner of a box factory, while plaintiff owns and operates an electric light plant. The contract sued upon in plain language expressly obligates defendant: 1. To employ a fireman to keep up steam, and to. permit appellant to use such steam; 2. To permit appellant to use a portion of the room in respondent’s powerhouse; 3. To permit appellant to erect and maintain poles and wires over the lands of respondent; and 4, To permit appellant “to use for fuel any refuse of the box factory which the first party” (respondent) “may not require for generating steam for its own purpose.”

It expressly obligates appellant: 1. To supply itself with any additional labor or fuel which it may need for the purpose of generating steam; and 2. To furnish respondent with such electric lights as it may require in its factories, etc., not to exceed in all two hundred lights, at the price of ten cents per month for each light. The contract is dated April 20, 1904. The defendant has not operated its box factory since May 6, 1908, but ever since said date the box factory has been shut down, in consequence of which no “refuse of the box factory” has been produced.

The theory of appellant is that under the contract respondent was and is obliged to operate its box factory in order to produce refuse of the box factory, to the end that appellant may use for fuel any such refuse as respondent may not require for generating steam for its own purposes.

This theory is entirely untenable. There is in the contract no express obligation to operate the box factory imposed upon respondent. Such obligation, if it exist at all, is imposed by implication only. Even the permission given to use refuse is only to use such as may not be required by respondent for generating steam for its own purposes. It is thus apparent that in order to give any value to the obligation claimed to be imposed by implication, we must go a step further and imply