240 S.W. 950
TELLURIDE POWER CO. OF TEXAS 
v. 
CITY OF TEAGUE.
(No. 8645.)
Court of Civil Appeals of Texas. Dallas.
March 25, 1922.
Rehearing Granted April 29, 1922.
Page 951
        Appeal from District Court, Freestone County; A. M. Blackmon, Judge.
        Action by the City of Teague against the Telluride Power Company of Texas. From the judgment 
rendered, the defendant appeals. Affirmed as modified.
        Locke & Locke, of Dallas, and J. E Woods, of Teague, for appellant.
        Williford & Geppert, of Teague, for appellee.
        HAMILTON, J.
        On March 17, 1919, a contract was made between the parties to this appeal which, omitting 
immaterial portions, contains the following provisions:
        "(1) That the company agrees to sell, furnish, and deliver to the city, and the city agrees to purchase 
from the company, all power and energy necessary up to but not exceeding 75 kilowatts, required by the 
city in the operation of its waterworks, pumps and pumping apparatus, consisting at present of triplex 
pumps (Gould) and two air compressors in its pumping plant or station, located near Teague, or in 
waterworks pumping plants or stations hereinafter constructed by the city, and in the illumination of said 
plants or stations and the grounds used in connection therewith, hereafter located as mentioned herein. 
Until increased by notice, as hereinafter provided, the minimum amount of power to be furnished by the 
company and to be paid for by the city hereunder shall not be less than seventy horse power, and said 
electric power and energy shall be used solely for the aforesaid power and illuminating purposes."
        "(3) The power and energy to be delivered and received hereunder shall be of the kind commonly 
known as sixty-cycle three-phase alternating current, delivered at an electromotive force of approximately 
twenty-two thousand volts (reasonable variations in either direction to be allowed in both the frequency 
and electromotive force), and said power and energy shall be delivered to and received by the city at the 
company's pole located nearest to and within two hundred feet of each of the city's waterworks pumping 
plants, at the location described in section 1 thereof. The points at which power and energy are so 
delivered and received are hereinafter referred to as `the points of delivery.'
        "(4) The city agrees that it will begin using power as soon as such power is available at the point of 
delivery, and on or before the 20th day from the date of billing (called herein the payment day) for each 
month following the date upon which the city shall have begun to take electric power and energy 
hereunder, until the expiration or other termination of this agreement, pay in legal tender to the company 
for the current consumed during such month a sum equivalent to:
        "No. 1. Two dollars for each contract horse power of connected load, which payment entitles it to 
consume 25 kilowatt hours of current for each contract horse power.
        "No. 2. For the first three thousand additional kilowatt hours of current consumed, at the rate of four 
cents per kilowatt hour.
        "No. 3. For the next six thousand kilowatt hours of current consumed, at the rate of two and one-
half cents per kilowatt hour; and,
        "No. 4. For all additional kilowatt hours of current consumed, at the rate of one and three-fourths 
cents per kilowatt hours.
        "(5) The amount of energy supplied to the city hereunder shall be determined by means of 
integrating watt-hour meters installed by the company at its expense in suitable places provided by the 
city within its pumping plants or stations, and the reading of these meters shall be deemed conclusive as 
to the quantity of electricity delivered hereunder, unless upon being tested said meters shall be found to 
register inaccurately and the error shall exceed two per cent. * * *
        "(6) All pumping shall be done at time and hours selected by the company, provided such hours do 
not interfere with maintaining a proper water supply. The city shall be entitled to call upon the company 
for power at any time in case of fire or other similar emergency.
        (7) The company shall exercise reasonable diligence and care to avoid interruption of delivery of 
power and energy hereunder (but it shall not be liable to the city for any damage, loss or claim of 
whatever nature or character due to or arising out of any failure or interruption of the delivery of such 
power and energy, occasioned by any break or accident to any of the company's transmission lines or 
machinery, or caused by any inevitable accident, act of God, fire, strike, riot, war or any other act or thing 
beyond control). If by reason of any of the causes above mentioned, the company shall fail, or be unable 
to deliver any power or energy hereunder for a period of thirty consecutive days, the city may, at its 
option, terminate this agreement and all obligations of the city hereunder by giving five days' notice to the 
company, but no failure on the part of the company to deliver power and energy occasioned by any such 
causes shall be deemed a breach by it of this agreement. The company shall use due diligence in making 
all necessary repairs to its transmission lines and machinery in case of any accident that interrupts its 
service to the city. If for any of the above causes the company is unable to deliver power the city shall be 
entitled to employ its own reserve power plant for the purpose of supplying the city with water during the 
time of interruption to the company's service."
        "(13) The company shall at all times give reasonable service to the city, and, in case of 
disagreement between the parties hereto as to whether such reasonable service is being given, the 
following method shall be used: The city shall appoint one umpire, the company one, and the two thus 
elected shall appoint a third. These umpires shall then summon not less than ten representative taxpayers 
of the city of Teague and receive their testimony as
Page 952
to the service given. If such board of umpires, after hearing the testimony as above, and any other 
testimony they themselves desire, shall decide that the company is not giving the city reasonable service, 
and if the company refuse to correct its service when so notified in writing by the board of umpires, then 
the city may terminate this contract within thirty days.
        "(14) This agreement, unless otherwise terminated, shall continue in force for the term of five years 
from the date hereof, and shall inure to the benefit of and bind the respective successors and assigns of 
the parties hereto."
        Appellee instituted suit against appellant which resulted in a judgment by consent entered on 
December 8, 1919, as follows:
"In District Court, Freestone County, Texas. No. 6244.
"City of Teague v. Telluride Power Company of Texas.
        "The city of Teague, plaintiff in the above styled and numbered cause, appearing by its attorneys, 
Boyd, Bell & Smith and Williford & Geppert, and the defendant, Telluride Power Company of Texas, by its 
attorneys, Doyle & Woods, on December 8, 1919, have agreed that the following shall constitute the 
judgment in the cause:
        "It is hereby adjudged and decreed by the court that the plaintiff take nothing by its suit for 
damages in the several matters set forth in its petition. It is hereby adjudged and decreed by the court 
that a permanent writ of mandamus issue requiring the defendant, its manager, officers, and assigns, to 
furnish the city of Teague a 70 horse power connected load for the operation of its waterworks system and 
comply with the contract that has been filed in this cause; that the order and requirement shall not extend 
beyond the termination period of said contract, to wit, March 17, 1924.
        "It is further ordered, adjudged and decreed that the defendant, Telluride Power Company of Texas, 
shall install at the expense of the city five street lights, and furnish current for such lights free of charge to 
said city, during the present street lighting contract, terminating the 1st day of September, A. D. 1920, 
and after such date the plaintiff, city of Teague, and the Telluride Power Company of Texas, the 
defendant, may enter into any other street lighting contract they may agree upon, subject to its franchise.
        "It is further ordered, adjudged, and decreed that the defendant, Telluride Power Company of Texas, 
shall proceed at the earliest possible time to install an additional unit at its plant in Teague, Tex., or 
rehabilitate the steam plant it now has within 90 days from this date; providing, however, that, if this 
cannot be done in that time by cause not attributable to its negligence, but to causes beyond its control, 
then defendant shall have a reasonable time thereafter.
        "It is further ordered, adjudged, and decreed by the court that plaintiff do have and recover of and 
from the defendant all costs in this behalf expended, for which let execution issue."
        On October 24, 1920, the instant suit was begun. This suit involved the complaint on the city's part 
that the power company had refused to comply with the provisions of its contract and the terms of the 
above-copied agreed judgment, particularly with reference to the requirement that it supply a 70 horse 
power connected load for the operation of the waterworks system of the city of Teague. The case was 
tried before the court without a jury and a judgment was entered finding:
        "That under and by virtue of the decree of this court heretofore entered in cause No. 6244 on the 
8th day of December, 1919, which judgment is of record in volume 11, pp. 662, 663, of the civil minutes 
of this court, the defendant, the Telluride Power Company of Texas, is obligated and bound to furnish, 
from and after that date, to the plaintiff, the city of Teague, Tex., for its use at and in connection with its 
waterworks plant, a 70 horse power connected load, available for use by said plaintiff at all times during 
the existence of the contract between plaintiff and defendant, and in addition thereto to install and 
maintain at its (defendant's) plant an additional steam unit or steam engine, ready and available at all 
times for use when necessary to carry out its obligation to furnish plaintiff the aforesaid 70 horse power 
connected load," and that "the defendant has failed from and after the date of the judgment in cause No. 
6244 to comply with the provisions and orders in said judgment or decree contained."
        And adjudging that:
        "The said J. G. Miller is now here adjudged and held to be in contempt of this court, and is now here 
fined in the sum of $100, which sum he is ordered to pay over to the clerk of this court, and that the state 
of Texas do have and recover of and from the said J. G. Miller the sum of $100, for which execution may 
issue; conditioned, however, that execution for said amount shall be and is hereby ordered postponed 
until the further orders of this court made and entered of record."
        Also that:
        "The judgment and decree heretofore entered in cause No. 6244 be, and the same is, now here in all 
things continued and held in full force and effect, and that the defendant, Telluride Power Company of 
Texas, is hereby ordered to furnish, from and after this date, to the plaintiff, the city of Teague, Tex., for 
its use in connection with its waterworks plant, a 70 horse power connected load, ready and available at 
all times during the period of the contract existing between the plaintiff and defendant, and in addition 
thereto to install and maintain at its plant in the city of Teague an additional steam unit or engine for the 
furnishing of power (meaning an additional unit to that in operation at the date of the decree in cause No. 
6244) ready and available at all times for use, should same become necessary to enable the plaintiff to 
furnish the power herein provided to the city of Teague for use of its water plant."
Page 953
        And directing that:
        "For the purpose of carrying into effect the terms of this judgment the clerk of this court is ordered 
to issue, and the sheriff of Freestone county is ordered to serve, a writ of mandamus addressed to the 
manager, G. A. Biersach, or the president, J. G. Miller, commanding them, their successors, agents, and 
employees, to carry out and observe the terms and conditions of this judgment."
        Further adjudging:
        "That plaintiff take nothing as against the defendant by reason of its claim for damages accruing up 
to this date, and that defendant go hence without day, and that defendant G. A. Biersach go hence 
without day, and that plaintiff take nothing as against him."
        The court made certain special findings of fact and conclusions of law. A portion of the findings of 
fact we copy as follows:
        "The court finds as a fact that the defendant company failed and refused to comply with the terms of 
the judgment entered in cause No. 6244, and did not furnish, as therein directed and enjoined, the 
plaintiff, city of Teague, a 70 horse power connected load for the operation of its waterworks, as was 
contemplated and understood by the parties to said judgment at the time of its entry, to wit, a 70 horse 
power connected load, available at all times.
        "The court finds that defendant did furnish a 70 horse power current, but did not furnish a 70 horse 
power connected load, available at all times, as contemplated by the decree in cause No. 6244."
        Appellant takes the position in its brief that it is of importance to know the meaning of the 
expression, "70 horse power connected load," and other technical expressions used in electrical science, 
and insists that judicial notice of the meaning of such expressions may be taken by the court, and that the 
court in judicially noticing the fixed meanings of such expressions must necessarily determine the 
judgment entered by the court to be erroneous. In the alternative, appellant insists that, if the court may 
not judicially know the meaning of "connected load" and other technical terms applied to electrical 
science, then, in any event, the judgment must be reversed because it was entered without the guidance 
of any expert proof from which the meaning of such expressions could be ascertained by the trial judge, 
and that the burden rested upon appellee to supply such evidence.
        We do not think that either the trial court or this court is required to know judicially, or through the 
medium of expert proof, the elements of electrical science concerning which appellant contends it is 
necessary to have definite knowledge as a basis for arriving at a judgment. Whatever a "connected load" 
technically may mean, and regardless of how the rate of flow of the electrical current is ascertained and 
the pressure producing the rate of flow is arrived at, the evidence reveals that power was not available in 
the minimum horse power fixed by the contract for the operation of the city's water pumps at very 
frequent intervals and during periods of long duration, which circumstances prevented the waterworks 
from functioning with required efficiency. This condition was alleged to result from a violation of the terms 
of the contract and of the decree of the court entered by consent. There was evidence offered by both 
parties without objection as to what was meant by a "connected load."
        The court found that appellant did furnish a 70 horse power current, but did not furnish a 70 horse 
power connected load available at all times "as contemplated by the decree in cause No. 6244."
        It seems that appellant's definition of "connected load" presented in its brief is sound. It is that the 
combined continuous rating of all the receiving apparatus on the consumer's premises, connected to the 
system or part of the system under consideration, is the "connected load." However, accepting this 
definition of the expression "connected load," and applying it, does not, in our view, vitiate the judgment 
of the court. The contract provides that "the minimum amount of horse power to be furnished by the 
company and to be paid for by the city * * * shall not be less than 70 horse power," and that there shall 
be paid by the city to the company "$2 for each contract horse power of connected load, which payment 
entitles it to consume 25 kilowatt hours of current for each contract horse power" per month.
        The decree entered by agreement in cause No. 6244 required appellant to furnish appellee "a 70 
horse power connected load for the operation of its waterworks system, and to comply with the contract 
that has been filed in this cause."
        Construing the above-quoted provisions of the contract in connection with the requirement of the 
agreed judgment, we think that by fair ascertainment it can be said that such provisions clearly require 
that appellant shall render available a 70 horse power current as being necessary to supply the minimum 
capacity of all the current consuming devices to be used by the city at its pumping station whenever 
necessity for such use may exist. Hence the former judgment and the contract itself both contemplated 
that a 70 horse power connected load shall be available at all times for the operation of the waterworks 
machinery. As we understand the evidence introduced in appellant's behalf, it admits that no such voltage 
as could be derived from a 70 horse power connected load was available to the waterworks plant during 
certain periods and intervals when it was necessary to operate the waterworks machinery in order to 
supply water. Appellant concedes this, and
Page 954
gives as a reason the fact that during certain periods of the day the current used by its private patrons 
was so great that this current could not be supplied without disconnecting the waterworks plant. In the 
light of this evidence and admission, it is not necessary to determine the technical meaning of the 
different expressions mentioned by appellant relating to electrical science, but it is necessary only to look 
to the contract and the former judgment to ascertain whether or not a 70 horse power connected load, 
available at all times, is required by them, regardless of the precise technical meaning of the expression 
"connected load" or any other technical expression used in electrical science.
        The court held that the provisions of the former judgment required appellant to furnish a 70 horse 
power connected load ready and available at all times during the period of the contract's existence. The 
expression in the judgment "available at all times" was not intended to have, and of course could not be 
given, such expansive effect as to render appellant liable in any way for failure to supply such 70 horse 
power connected load when such failure might be attributable to such reasons as accidents, inevitable 
occurrences, or causes for which appellant might not be responsible, and therefore the use of this phrase 
did not have the effect to disturb the provisions of the contract contained in section 7 thereof. Neither do 
we think that the phrase "ready and available at all times for use" conflicts with section 6 of the contract, 
which provides that the pumping shall be done at times selected by the company provided such selections 
do not interfere with maintaining a proper water supply.
        We think a fair interpretation of the contract gives it the meaning that appellant was to supply a 
minimum of 70 horse power current to appellee's consuming devices at any time it might be required, and 
that the decree of the court correctly interpreted the contract to this effect as well as the mandate of the 
original judgment in requiring appellant to furnish a 70 horse power connected load available at all times. 
By making it available at all times the decree is not to be understood to mean that it shall be supplied 
continuously. It means that whenever it is necessary to operate the pumping machinery a minimum of 70 
horse power current shall be available immediately, and that appellant must keep itself in a position to 
respond to the requirement of the contract in this respect.
        The provision in the contract for a minimum amount of horse power, fixed at 70 horse power, and 
the provision in the agreed judgment requiring the appellant to furnish appellee a 70 horse power 
connected load, if construed to the effect contended for by appellant, would divest the city of its right 
under the contract to a reasonable supply of water. Such interpretation would be a subversion of the 
primary purpose of the contract, which was to secure for the city of Teague a reasonable supply of water.
        Appellant asserts that an examination of the pleadings in the former suit will disclose that the term 
"connected load" was not used therein, and that the pleadings made the suit primarily one for forfeiture of 
franchise for alleged failure of the company to provide a reasonable and efficient light system. This 
presents no error for our consideration. Whatever the pleadings in the former suit may have been, the 
judgment entered by consent was a waiver of every character of error, except fundamental error, going to 
the jurisdiction of the court. Any judgment which the parties to a suit cause to be entered by a bona fide 
agreement, no fraud being practiced in it, is binding upon them regardless of what the pleadings and 
evidence may be, and such judgment is conclusive as an estoppel. Lessing v. Cunningham, 55 Tex. 231; 
Lanier v. Blount (Tex. Civ. App.) 45 S. W. 202; 23 Cyc. 729.
        Appellant complains vigorously of that portion of the judgment of the court awarding a mandamus. 
Various propositions are submitted in support of its assault upon the judgment in this respect. The 
contention is made that mandamus ought not to issue because the right asserted by the city is 
substantially disputed by appellant; that mandamus is not available to compel the performance of a duty 
owing only contingently and at irregular intervals in the future; that mandamus is a writ the issuance, use 
and extent of which cannot be controlled by agreement of the parties; that the agreed judgment was that 
the company be directed to comply with its contract, install an additional unit, or rehabilitate an existing 
unit in its plant, etc. And it is also contended that it was error to issue a mandamus directing the 
installation of machinery which the evidence shows already had been installed.
        It is true, as contended by appellant, that, since mandamus is an extraordinary remedy, a clear and 
definite right to it must be disclosed before the writ will issue. At the same time, however, it must also be 
recognized that the granting of the writ is largely within the sound judicial discretion of the court, a 
discretion which is to be exercised upon principles of equity, and, unless it appears that such discretion 
has been abused, the judgment ordering the writ to issue will not be disturbed on appeal merely because 
the right to be secured by it is substantially disputed by the adverse party. We cannot say that a clear 
right to the mandamus to compel the maintenance of a 70 horse power connected load, available at all 
times, was not established by the record. The mandamus to compel this does not prescribe or require the 
performance of a series
Page 955
of variable acts for a general course of conduct. It does not make the court the overseer, so to speak, of 
the performance by appellant of different and variable duties. It compels the doing of a specific thing, 
which is that appellant, from the date of the judgment until the expiration of the contract shall have 
available for the operation of appellee's waterworks plant a 70 horse power connected load. In this case 
the mandamus does not issue for the purpose of compelling the performance of a duty contingently and in 
the future at irregular intervals, but, on the contrary, it is to compel the performance of a duty owing 
presently and certainly. We accordingly overrule the proposition secondly above mentioned.
        While mandamus is a writ the use and extent of which is not to be controlled by mere agreement of 
the parties, yet the writ in this case rests upon a judgment which, although it was entered by mutual 
consent of the parties, has the same force, dignity, and effect as a judgment expressing the result of a 
contested case.
        None of the propositions advanced by appellant, except that last above stated, as complaining that 
mandamus ought not to issue to compel the installation of machinery already installed, is, in our opinion, 
meritorious. The evidence, we think, does show without dispute that the machinery which the court by 
mandamus directed to be installed had already been installed. Such being the case, we do not think the 
mandamus could issue to compel this specific thing. However, regardless of the fact that the machinery 
had been installed, the fact as found by the court that appellant did not furnish a 70 horse power 
connected load for the operation of its waterworks, available at all times, and that the failure thus to 
furnish such 70 horse power connected load was in violation of the former decree of the court, we think is 
sustained by the record, and, accordingly, although it appears that the equipment was in fact installed, 
yet, at the same time, the court was justified in finding that the former judgment requiring a 70 horse 
power connected load was not complied with, and, the mandamus requiring compliance with this feature 
of the judgment having been violated, the action of the court in imposing a fine of $100 we think was 
warranted.
        We think the spirit of the contract, as well as the import of the former judgment entered by 
agreement of the parties, under the facts of this case justified the judgment appealed from, and, for the 
reasons above stated, the judgment of the court below will be affirmed.
        Affirmed.
On Motion for Rehearing.
        Appellant on motion for rehearing contends that the effect of the decree of the trial court is to render 
appellant liable to supply to appellee a 70 horse power connected load during the peak hours of the load 
required for lighting houses and supplying other current required by private contracts, even though the 
city should neglect or refuse to take the current at other times when tendered by appellant for the 
purpose of filling the reservoir. Appellant suggests that the decree is construed by both parties to this 
effect. The language of the decree might justify such construction. To give it this effect, however, would 
be to abrogate and nullify section 6 of the contract, under which section appellant is given the right to 
designate the hours when pumping is to be done.
        The decree, as we have already construed it, does not have such effect, and it cannot be given a 
valid effect at variance with that expressed in our construction of it. But, since the parties have 
interpreted it as abrogating section 6 of the contract, we think it proper to give a more exhaustive 
interpretation and effect to the decree in its relation to that particular provision of the contract.
        The motion for a rehearing is therefore granted, and the decree of the trial court is explicitly 
modified so as to give it only the following effect in relation to section 6 of the contract:
        Appellant is required to keep a 70 horse power connected load available at all times during the 
period of the contract's existence. Appellant may select the time and hours during which all pumping shall 
be done, provided such hours do not interfere with maintaining a proper water supply. Should the water 
pumped at such times become exhausted from the reservoir through ordinary use or other necessity so as 
to require further pumping, then, whenever such requirement may arise, appellant, immediately upon 
appellee's request, shall supply a minimum 70 horse power current to the current consuming devices of 
appellee used for pumping water into its reservoir until the supply of water is replenished.
        All costs which have accrued since the judgment of this court was originally entered are taxed 
against appellee. The other costs of appeal are taxed against appellant.