after stating the case: The defendant, insisting that The Charlotte City Water-works Company mentioned had failed to supply the city with water, as by its contract it was bound to do, suspended the further payment of rent claimed by that company to be due to it to the amount of twenty-two hundred dollars. The company claimed that it had in all material respects complied with its contract, and that the sum of money mentioned was due to it. It sold its claim for such rent to the plaintiffs, and they demand judgment in this action for the amount so alleged to be due.
It is not questioned that the plaintiffs allege a cause of action, and there was evidence produced on the trial tending to prove the material allegations of the complaint except in a single respect, and as to this the plaintiffs insist that it was not material in this action and could not affect adversely their right to recover. If this is true, there is error, because, although the evidence was in some respects conflicting, still if it had been submitted to the jury they might have believed so much of it as was favorable to the plaintiffs to be true, and rendered a verdict in their favor. For the purpose of the assignment of error, the evidence must, be accepted as true. The Court, in effect, expressed the opinion that, taking *126the evidence as true in its most favorable aspect for the plaintiffs, they could not recover.
The plaintiffs’ alleged cause of action must be treated just as if the water-works company was the present plaintiff and suing upon the same; they bought it in the same plight and condition as when the company owned and sold it to them, and subject to the rights of defendant under the agreement. The latter provides in the sixth paragraph thereof, among other things, that if the company named “shall fail at any time after the said water-works are completed to furnish an adequate supply of water for all fire, sanitary and other public purposes as herein stipulated, excepting by reason of accidents or injury to machinery and making necessary repairs, no rent shall be paid by the city of Charlotte during the time of such failure.” The seventh paragraph further provides, among other things, that the company “guarantee at all times to furnish, if required * * * a sufficient force or pressure to throw from any five of said fire hydrants at one and the same time through one-inch nozzles and fifty feet of two-and-a-half-inch hose, five streams of water to the height of seventy-five feet.” The evidence went to prove that the company complied with the agreement, and that the water supply was sufficient in all respects except that the “force or pressure” was not sufficient at any time to throw the water as specified to the Height of seventy-five feet. The defendant, then, had no right to suspend the payment of rent as it did do, unless the failure of the machinery to throw the water to the height of seventy-five feet came within the meaning and purpose of the sixth paragraph of the agreement just recited as to the failure in the supply of water and the stipulation that no rent shall be paid during such failure. It is to be observed that this sixth paragraph has special reference to an “adequate supply of water for all fire, sanitary and other public purposes as herein (therein) stipulated,” and taken in connection with provisions *127of the first paragraph, to have like reference to a supply of “pure and wholesome water fit for domestic purposes, and sufficient for all purposes hereinafter (thereinafter) stipulated for.” It contemplates such an adequate supply of water as the parties to the agreement at the time it was executed deemed and intended to secure as continually necessary for the good of the city. The provision that no rent should be paid during the time of failure to make such supply of water was intended as a means the more effectually to secure the same
The seventh paragraph of the agreement contemplates and intends a larger supply of water at all times — equal to the quantity therein specified, and that the water-works machinery shall have capacity to throw the quantity of water specified to the height of seventy-five feet, if the appropriate city authorities should so require. This provision was ■cautionary. It was agreed that the city authorities might afterwards avail themselves of it, if, upon reflection or experience, they should determine that the greater good of the city and its inhabitants so required. It was not at first deemed necessary to so require. To provide for an adequate supply of water was then supposed to be sufficient, and the main leading purpose was to secure that as thoroughly as practicable. The seventh paragraph was inserted in the agreement with the view to enlarged advantages to the defendant. It contained a distinct, particular and express guaranty, showing the intent of the parties to make this part of the agreement separate from the provisions of the sixth paragraph, and the purpose of the defendant to rely upon the guaranty as sufficient of itself. It did not deem it necessary to provide that the payment of rent should be suspended if the Water-works Company should fail to throw the water seventy-five feet high, as required. As to that, it required a special guaranty of the company that it would do so, and, in case of failure, it was content to rely upon its remedy for a *128breach of' the guaranty. Else, wherefore the special guaranty? And why was the suspension of payment, as provided in the sixth paragraph, confined to a failure “ to furnish an adequate supply of water for all fire, sanitary and other public purposes”? The seventh paragraph was exceptional, and intended to secure a particular and specified purpose, if the defendant should so require. Considering the nature of the matter apart from the terms and the relations of the several parts of the agreement, it is not at all probable that the parties intended that the payment of rent should be suspended if the supply of water was adequate and the force or pressure was not sufficient to throw the water to the height of seventy-five feet. It is much more probable that it was intended that the defendant should rely upon its remed}'- by action in that case.
The plaintiffs contended that the defendant never required the observance of the seventh paragraph, but if it be granted that, as it contends, it did, this was of itself not sufficient cause for suspending the payment of the rent.
As to a breach of the guaranty, the defendant can have its remedy. Indeed, it seems to seek the same in this action by asking affirmative relief. We are, therefore, of opinion that there is error. The judgment of nonsuit must be reversed and the action disposd of according to law. To that end, let this opinion be certified to the Superior Court.
Error.