Merced Irrigation Dist. v. San Joaquin Light & Power Corp.

THE COURT.

This action was commenced by plaintiff for declaratory relief involving its asserted rights under a contract with defendant and, as incidental to that relief, for a money judgment in the sum of $15,664.50. Judgment was rendered in plaintiff’s favor and the defendant prosecutes this appeal therefrom.

On February 21, ■ 1924, the parties to this litigation entered into a contract whereby the respondent agreed to erect and construct a hydroelectric generating plant near Exchequer on the Merced River “of about 25,000 kilowatts capacity” and the appellant agreed to purchase the electric output thereof saving and excepting only so much thereof as might be required in and about the operation of the reservoir and generating plant. Some time in June, 1926, the plant was placed in operation. Along in April, 1927, it commenced to produce in excess of 25,000 kilowatts which continued until August 1, 1927. The appellant refused to pay for energy in excess of 25,000 kilowatts output and respondent brought an action to recover $61,396.23 representing the contract price of the output in excess of 25,000 kilowatts. The appellant answered that complaint denying that it had agreed to purchase any electrical energy from respondent in excess of an output of 25,000 kilowatt hours, and alleging that respondent had failed to construct a generating plant of “about 25,000 kilowatts”, but had constructed in connection with its reservoir a plant with a capacity far in excess “of ‘about 25,000 kilowatts’ and of a capacity of at least 32,000 kilowatts”. This cause was tried before a jury which returned a verdict in favor of the plaintiff there, the respondent here. The cause was appealed and the judgment affirmed.

(Merced Irr. Dist.

v.

San Joaquin L. & P. Corp.,

101 Cal. App. 153 [281 Pac. 415].)

Subsequent to the judgment becoming final therein and during the year 1932, the output of the plant was increased

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so that for seventy-seven consecutive days it generated in excess of ■ 31,250 kilowatts, and in fact for fifty-two consecutive days produced 33,900 kilowatt hours. The appellant has paid for all energy up to 31,250 kilowatts but has refused- to pay for any in excess thereof. It is respondent’s contention that in the former action it was determined that the plant was one “of about 25,000 kilowatts capacity” and that appellant is bound to take and pay for the entire output. On the other hand appellant asserts that by the former decision it was obliged to receive and make payment for all of the output “within the maximum figure of 31,250 kilowatts”.