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

BURNETT, J.

The appeal is from the judgment and order denying a motion for a new trial. On April 20, 1904, appellant’s assignor was engaged in operating an electric lighting plant and respondent was operating a box factory at Loyalton, in Sierra County. The power house for both plants was the same and was owned by respondent and con-

[359]

tamed the dynamo and engine of appellant. On that date the parties entered into a written contract whereby it; was agreed that respondent should keep employed a fireman for the purpose of keeping up steam in the boilers in the power house during the hours when the box factory should not and the lighting plant should be in operation and appellant was to be allowed the use of so much of the steam as might be necessary for the operation of its plant. Additional help, if needed, was to be employed by appellant. The right was accorded appellant to use the room in which was situated its dynamo and engine and to erect and maintain on and over the land owned or occupied by respondent such poles as might be necessary for the proper support and conduct of its wires used in connection with its lighting plant. Appellant agreed to furnish respondent with such electric lights as it might require in its factories, power house and other buildings, yards, and premises at Loyalton, not to exceed, however, in all two hundred lights for the price of ten cents per month for each of said lights. The main controversy, though, is over the following provision in said agreement: “The second party” (appellant) “shall have the right 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, and any" additional fuel which may be required for the purpose of generating steam for the use of the second party shall be supplied by the second party at its own expense. ’ ’

An alleged violation of this provision by respondent is the basis for the action, plaintiff alleging: “That on or about the first day of September, A. D. 1904, the defendant, in violation of the said* contract, refused to permit plaintiff to use the refuse of the box factory for the purpose of generating steam, and ever since said day, and up to the first day of July, A. D. 1908, has sold and disposed of all of the refuse of said box factory not required by it for generating steam for its own purposes. . . . That by reason of the said violation of said contract by defendant, plaintiff has been damaged in the sum of seven thousand, two hundred dollars. ’ ’