Oliver-Mercer Electric Cooperative, Inc. v. Fisher

146 N.W.2d 346, 1966 N.D. LEXIS 134, 1966 WL 152013
CourtNorth Dakota Supreme Court
DecidedNovember 10, 1966
Docket8281
StatusPublished
Cited by19 cases

This text of 146 N.W.2d 346 (Oliver-Mercer Electric Cooperative, Inc. v. Fisher) is published on Counsel Stack Legal Research, covering North Dakota Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Oliver-Mercer Electric Cooperative, Inc. v. Fisher, 146 N.W.2d 346, 1966 N.D. LEXIS 134, 1966 WL 152013 (N.D. 1966).

Opinion

TEIGEN, Chief Justice

(on reassignment).

This is an appeal by the defendants, who hereafter will be referred to as Fisher and Faiman, from a judgment of the district court in favor of the plaintiff, which will be hereafter referred to as the Co-op, in the amount of $7,200, claimed to be the amount due under a contract for seasonal electric service entered into between the parties. The case was tried to the court without a jury, and trial de novo has been demanded on review in this Court.

It is agreed the defendants, Fisher and Faiman, were operating a sand and gravel business as a partnership under the firm name and style of Missouri River Sand & Gravel Company; that the Co-op was a supplier of electric power and a corporation operating under the corporate name of Oliver-Mercer Electric Cooperative, Inc.

In the spring of 1962, the defendants, Fisher and Faiman, opened a new gravel pit at Sanger, North Dakota, and were in need of three-phase electrical service of sufficient quantity to operate a 500 horsepower load. The defendants approached the plaintiff Co-op concerning electrical service to their gravel pit at Sanger, and it was determined that to provide the required service to this location would require construction of a 41,000 volt transmission line from a point approximately five miles distant, and would entail crossing the Missouri River with about an 1800-foot span. It also required setting up a 600 KDA substation at Sanger and a distribution transformer. After several conferences, the contract in issue in this action was entered into on March 21, 1962. Its execution by the respective parties is admitted.

The contract provides:
The Seller shall sell and deliver to the Consumer, and the Consumer shall purchase all of the electric power and energy which the Consumer may need at the location described in Exhibit A, attached hereto and by this reference made part hereof, up to 400 kilowatts, upon the following terms:
1. Service Characteristics.
a. Service hereunder shall be alternating current, 3 phase, 4 wire, sixty cycles, 120/240/440 volts.
*349 b. The Consumer shall not use the electric power and energy furnished hereunder as an auxiliary or supplement to any other source of power and shall not sell electric power and energy purchased hereunder.
c. Service hereunder shall be furnished on a seasonal basis (Less than 12 months per year) and the season (hereafter called “Season”) shall be defined in this section. The Season shall begin on April 1 and end on November IS each year.
2.Payment.
a. The Consumer shall pay the seller for services hereunder at the rates and terms and conditions as set forth in Schedule LP. Should the Consumer desire service during any period other than the Season, the attached Schedule B shall apply during the time such service is used.
b. The initial billing period shall start at the commencement of each Season.
c. Bills for service hereunder shall be paid at the office of the Seller in Hazen, State of North Dakota. Such payment shall be due on the 20th day of each month as provided in the Schedule for service furnished during the preceding billing period. If the Consumer shall fail to make any such payment within fifteen days after such payment is due, the Seller may discontinue service to the Consumer upon giving fifteen (15) days’ written notice to the Consumer of its intention so to do, provided, however, that such discontinuance of service shall not relieve the Consumer of any of its obligations under this Agreement.
d. The Consumer agrees that if, at any time, the rate under which the Seller purchases electric service at wholesale is modified, the Seller may make a corresponding modification in the rate for service hereunder. The Consumer may also request an annual review of the rate in effect should the investment/revenue ratio improve.
3. Membership.
The Consumer shall become a member of the Seller, shall pay the membership fee and be bound by such rules and regulations as may from time to time be adopted by the Seller.
4. Continuity of Service.
The Seller shall use reasonable diligence to provide a constant and uninterrupted supply of electric power and energy hereunder. If the supply of electric power and energy shall fail or be interrupted, or become defective through act of God, Governmental authority, action of the elements, public enemy, accident, strikes, labor trouble, required maintenance work, inability to secure right-of-way, or any other cause beyond the reasonable control of Seller, the Seller shall not be liable therefor or for damages caused thereby.
5. Right of Access.
Duly authorized representatives of the Seller shall be permitted to enter the Consumer’s premises at all reasonable times in order to carry out the provisions hereof.
6. Term.
This Agreement shall become effective on the date first above written and shall remain in effect until three (3) years following the start of the initial billing period and thereafter unless terminated by either party giving to the other six (6) months’ notice in writing.
7. Succession and Approval.
a. This Agreement shall be binding upon and inure to the benefits of the successors, legal representatives and assigns of the respective parties hereto.
b. If the KW demand shall exceed 350' kilowatts, approval of the Adminis *350 trator of the Rural Electrification Administration will be required.

Exhibit A, attached to the contract, reads as follows:

Exhibit A
Description and Location of Service
Type of Operation: Sand and Gravel Plant
Service Will Be Made Available On or Before: May 1, 1962
Size of Largest Motor: ISO HP (500 total HP)
Section: 26 Township: 143 Range: 81
Town: Sanger
Owner: Missouri River Sand and Gravel Co.
Address: % William Faiman 238 W Divide Bismarck, North Dakota

Large Power Service, Schedule LP, reads as follows:

LARGE POWER SERVICE
Schedule LP
Oliver-Mercer Electric Cooperative, Inc.
Rate
Demand Charge
$1.25 per month per KW of billing demand.
Plus Energy Charge

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Bluebook (online)
146 N.W.2d 346, 1966 N.D. LEXIS 134, 1966 WL 152013, Counsel Stack Legal Research, https://law.counselstack.com/opinion/oliver-mercer-electric-cooperative-inc-v-fisher-nd-1966.