Careful study of the contract between the parties, quoted in the majority opinion, convinces me that one of the basic elements thereof is the minimum monthly charge which, in my opinion, respondent construction company agreed to pay for the term of the contract "whether energy is used or not." It seems to me that the intent of the contracting parties is clearly expressed in the contract, particularly in view of the situation of the parties and the large expenditure made by appellant to carry current to respondent's plant, and that respondent company should be held liable to appellant for the minimum charge specified in the contract over the term referred to therein.
During the month of June, 1928, respondent construction company assigned to respondent Osborn all its rights under the contract with appellant, the agreement between them reading in part as follows:
"It is further agreed between the parties hereto that if during the existence of said power contract the second party (Osborn) should desire to discontinue said services and disconnect the load, that he shall have the right so to do by making settlement with the Willapa *Page 427 Electric Company, in which event he shall notify the first party (Dennis Construction Company), and if the first party so desires, it may negotiate with the Willapa Electric Company for the cancellation of said agreement, and if said agreement should be cancelled or the load disconnected, then each of the parties hereto shall bear and pay one-half of the amount which the Willapa Electric Company receives in consideration of the cancellation of said contract or the disconnecting of the load. And if either party hereto should pay the whole of said sum, it shall be entitled to recover from the other one-half of the amount so paid."
The following appears on the contract following the signatures:
"It is understood and agreed that in case of cancellation that the second party (Osborn) shall not be required to pay more than $1,500.00."
Under date September 6, 1928, Mr. Osborn wrote the construction company the following letter:
"Mr. S.L. Dennis, September 6, 1928. "Raymond, Washington. "Dear Sir:
"Confirming our verbal statement to you, we have decided to cancel the contract with the Willapa Electric Company of Raymond, assigned to us in the agreement between S.L. Dennis Construction Company and the writer, dated June 27, 1928.
"We are notifying you to immediately arrange the cancellation of this agreement if you now desire to handle the matter, which right you reserved under the above mentioned contract. Kindly advise us immediately if you prefer that we, ourselves, negotiate this cancellation.
"Inasmuch as Mr. Snider is very anxious to have the matter settled, we would ask that you use due diligence in an effort to arrange settlement without delay. Yours truly, "W.R. OSBORN."
The contract between respondents, in the light of Mr. Osborn's letter, indicates that, as between themselves, *Page 428 respondents understood that a liability existed to pay appellant for the remainder of the three year period, the minimum called for in the contract between appellant and the construction company.
In my opinion, respondent construction company is liable to appellant upon the basis herein indicated, respondent Osborn being liable for his proportion of that amount.
For these reasons, I dissent from the conclusion reached by the majority.
TOLMAN, C.J., concurs with BEALS, J.