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Illinois Comm. Com. v. Central Ill. Public Ser. Co

JANUARY 28, 1975.




APPEAL from the Circuit Court of Sangamon County; the Hon. JOHN B. WRIGHT, Judge, presiding. MR. JUSTICE TRAPP DELIVERED THE OPINION OF THE COURT:

Upon a complaint under sections 5-7 of the Electrical Supplier Act (Ill. Rev. Stat. 1969, ch. 111 2/3, pars. 405-407) by Coles-Moultrie Electric Cooperative (designated defendant in administrative review), the Illinois Commerce Commission found that defendant was entitled to provide all electrical service to Lot 10, Block G of Annis subdivision to the City of Mattoon, and ordered that Central Illinois Public Service Company (designated plaintiff in administrative review) was to discontinue service and remove its facilities from such lot.

The Commission found that on July 1, 1965, defendant had entered into a written agreement with the owners of real estate which thereafter became the Annis Subdivision:

"[I]n which Coles-Moultrie Electric Cooperative agreed to provide electric service to the south 122 feet of the Annis Subdivision and is therefore entitled to provide all electric service to Lot 10 in Block G of Annis Subdivision."

The right of defendant to provide electrical service was found to exist under the provisions of section 5 of the Electric Supplier Act (Ill. Rev. Stat. 1969, ch. 111 2/3, par. 405.) *fn1

Upon administrative review the circuit court reversed the order of the Commission. In its memorandum the court determined that the findings of the Commission were not "supported by the law" for the reason that the contract was lacking in mutuality, and concluded that as of the date of the Annis contract such "could not be enforced by either side."

The agreement at issue designated the owners of the described real estate, Annis, as "the DEVELOPER," and it was executed by them under such designation. The agreement recited that the "DEVELOPER" had title to land which was later described and was "desirous of electrical service to said land," that defendant was a corporation "desiring to provide electrical service to the said land," and after reciting valuable consideration and mutual agreement provided that the "Cooperative is to provide necessary electrical service to the following described land." A subsequent paragraph provided that the contract "shall continue until July 1, 1995," a term of 30 years, with provision for renewal for a further term of 30 years.

The record shows that on June 21, 1965, Annis had granted an easement to defendant to erect a system of lines upon such real estate upon the completion of a drainage ditch or "at the request of the owner." The record shows that at the time of the proceedings, defendant had supplied underground electrical service to all 15 lots in Block G.

It appears that an engineer employee of plaintiff had purchased Lot 10 in Block G and thereupon demanded that defendant remove its facilities from the lot. Thereafter plaintiff had extended its lines 182 feet overhead and 742 feet underground to provide service to Lot 10, effective September 12, 1969. The record does not show any notice by plaintiff to defendant of such extension as is provided in section 7 of the Electric Supplier Act. (Ill. Rev. Stat., ch. 111 2/3, par. 407.) It is not alleged that plaintiff came within any of the exception provisions for giving notice.

• 1 Before the Commission, plaintiff argues that section 5 of the Electric Supplier Act did not authorize defendant to supply service because the Annis contract was lacking in mutuality and was unenforceable. It is generally said that one who is not a party to a contract cannot complain that it is not mutual in character. (17 C.J. Contracts § 100(1)b (1963).) Want of mutuality is no defense where a contract has been executed. (Corso v. Dixon, 348 Ill. App. 378, 109 N.E.2d 241; Hall v. Gruesen, 22 Ill. App.2d 465, 161 N.E.2d 345.) As of the time that the plaintiff extended its line to Lot 10, defendant had executed the Annis contract to provide service to all Lots.

In Illinois Power Co. v. Illinois Commerce Com. 39 Ill.2d 406, 235 N.E.2d 614, it was held that the proprietors of a subdivision were "customers" and that the subdivision constituted "premises" within the terms of the Electric Supplier Act, sections 3.3, 3.12 and 5, even though no construction had occurred in the subdivision and no service had been supplied.

• 2 We do not agree with the conclusion of the trial court that the provision of "the necessary electrical service" is here so lacking in detail as to be meaningless, or that Annis was not required to purchase any electricity from the defendant.

• 3 In Armstrong Paint & Varnish Works v. Continental Can Co., 301 Ill. 102, 105, 133 N.E. 711, the court said:

"In construing a contract it is proper for a court to take into consideration the surrounding circumstances. It should place itself as nearly as it can in the same situation as the parties who made the contract, so that it may view the circumstances as they viewed them and so it may judge the meaning of the words and their application to the things described as the parties judged and applied them. [Citation.]"

The court's memorandum does not note or comment upon the fact that the Annis contract was for a term of 30 years with provision for extension for a like term and that the contract was designated as binding ...

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