
    NEW JERSEY SUBURBAN WATER COMPANY AND NEW YORK AND NEW JERSEY WATER COMPANY, DEFENDANTS IN ERROR, v. THE TOWN OF KEARNY, PLAINTIFF IN ERROR.
    Argued July 1, 1910
    Decided July 1, 1910.
    A contract between a town and a water company provided for a supply of water at the rate of $82.50 per million gallons, provided that if the water company shall furnish water at a lower price to any other municipality, to reach which it has to furnish water “through mains laid in our town,” it should furnish the town water at the same price during the time remaining of the contract at which it furnished the other municipality. A contract was subsequently made by the water company and another municipality by which the water company was to receive $89 per million for the first two million gallons per day, and the amount received in excess of that amount was to be charged for oil a sliding scale down to the sixth million, for which (lie water company was to receive $40, and the same price should be received for all in excess of the sixth million. The tovrn making the iirsr contract did not take two million gallons per day. Held, that it was not entitled, under its contract, to a rate of $40 per million gallons.
    On error fo the Supreme Court.
    Tor the plaintiff in error, 'Edward Kenny.
    
    Tor flic defendant in error, Gilbert Collins.
    
   The opinion of the court was delivered by

Garrison, J.

By a contract made on August 15th, 1904, the plaintiff and defendant entered into an agreement for a supply of water at the rate of $82.50 per million gallons, provided that “if the said water company shall furnish water at a lower price than is herein provided to any other municipality, to reach which they have to furnish the same through mains laid in our town, they shall furnish the town of ICearny water aforesaid at the same price during the time remaining of the said contract with the town of Kearny at which they furnish such other municipality.”

Since 1904 the city of Bayonne has been supplied with water under conditions that bring the price charged it within the terms of this proviso. The price at which Bayonne was furnished with water was on a sliding scale running from $89 per million for the first two million gallons per day, down to $40 for the sixth million and all in excess thereof.

In a suit brought by the defendant in error under its contract with the town of Kearny, the trial judge was requested to find that the town should be charged for water furnished at the rate of $40 per million gallons. The trial court, however, having found as a fact that the town of Kearny never took two million gallons per day, declined to find as requested and sealed an exception, on which error has been assigned.

There was no error; the contract gave the town the right to have the same prices charged it that Bayonne was charged; Bayonne was charged $40 only on the sixth million of gallons per day furnished to it. Kearny not being in a position to claim that price, there was no error in the denial of the defendant’s request. This is the only legal error complained of. The judgment of the Supreme Court is affirmed.

For affirmance—Ti-ie Chancellor, Chiee Justice, Garrison, Swayze, Trenchaed, Parker, Bergen, -Voorhees, Minturn, Bogert, Vredenburgh, Vrooai, Gray, Cong-don, JJ. 14.

For reversal—Hone.  