Gaulkin, Labrecque and Brown. The opinion of the court was delivered by Gaulkin, S.j.a.d.
Defendant appeals from a summary judgment in favor of plaintiff which adjudged that the rate which defendant charged plaintiff for water exceeded that permitted by a contract between the parties. The opinion of the trial court is reported in 84 N.J. Super. 197 (Ch. Div. 1964).
The solution of this dispute hinges upon construction of the contract. It was entered into by defendant and Defense Plant Corporation (hereafter DPC), an agency of the United States
government, plaintiff's predecessor in interest. It was dated December 26, 1942 and contained no time limit. The pertinent portions of the contract are these:
"WHEREAS, the Commission did construct and agrees to maintain a pipe line and to supply water to the Corporation's new plant in the Borough of Wood-Ridge * * *, which plant is to be occupied by Wright Aeronautical Corporation as lessee, the cost of the construction of said pipe line to be borne by the Corporation, and
WHEREAS, the Commission is organized and exists under the provisions of the Revised Statutes of New Jersey, 1937, Title 40:62-108 et fols., and
WHEREAS, the municipalities of Paterson, Passaic and Clifton acting under said Statute and through the Commission, acquired and own the water works from which the water will be supplied, which water works are operated by the Commission acting for said municipalities, and
WHEREAS, it is provided in Section 127 of the said Statute as follows: '40:62-127. Water rates and regulations
Such commission may prescribe and change from time to time rates to be charged for water supplied by the waterworks so acquired, and by any extension or enlargement thereof, but rates for the same kind or class of service shall be uniform in all the municipalities supplied by the waterworks. As soon as practicable after acquiring the waterworks rates shall be prescribed, and shall be revised from time to time whenever necessary, so that the waterworks shall be self-supporting, the earnings to be sufficient to provide for all expenses of operation and maintenance and such charges as interest, sinking fund and amortization, so as to prevent any deficit to be paid by taxation from accruing.' --
WHEREAS, the Corporation is desirous of having this agreement executed by the Commission to supply water not only to Wright Aeronautical Corporation but also to any subsequent owner or operator of the said plant at Wood-Ridge, New Jersey, at rates fixed by the Commission in accordance with the said Statute.
NOW THEREFORE, this agreement witnesseth, that the said Commission, in consideration of the premises, agrees that it will supply water not only to Wright Aeronautical Corporation, but also to any subsequent owner or operator of the plant at the above location at its published scale of rates for industrial consumers as may be fixed from time to time by the Commission in accordance with the provisions of the Statute above quoted.' (Emphasis added)
It is agreed that Wood-Ridge is not a municipality "supplied by the waterworks" within the meaning of said Section 127. It is also agreed ...