7 Pa. Super. 191 | Pa. Super. Ct. | 1898
Opinion bv
The plaintiff was incorporated for the purpose of supplying water to the public, including such residents, etc., of the borough of Hyndman, and adjacent thereto as may desire the same. It entered into a contract with the borough, whereby it was bound to complete an effective system of water works and furnish the borough an ample supply of water “ for the better protection of property therein against fire; ” and for this purpose the borough therein agreed to rent from the plaintiff twenty-five (25) fire hydrants at an annual rental of $600, payable $300 semiannually; the hydrants to be placed at such points in the borough as the authorities thereof might designate. The plaintiff erected hydrants according to the terms of the contract, and began to furnish water in July, 1892, and payment therefor was made until July 1, 1894, but not thereafter. Suit was brought for the rental from that date until October 1, 1896. On the trial, the defendant showed that, for a part of. the period for which a recovery was sought, the plain
It would serve no good purpose to follow the course of the trial and comment on the controverted phases of the proceedings. All matters about which counsel for the defendant entertained any doubt would appear to have been discussed in the argument here, both oral and printed. But we think the case was tried with fairness to both parties, and that the rulings and the charge are substantially accurate under the law and the evidence. Repeated efforts were made to introduce evidence showing that by reason of the consumption of water by a railroad company, a factory, and a tannery, the supply was diminished and the borough protection thus impaired. This testimony was rejected by the court, and its exclusion is made a principal cause of complaint here by the first three specifications. The plaintiff’s charter expressly requires it to furnish water to the public within the borough limits and adjacent thereto; it was therefore in duty bound to extend the water service to all who might require it, having due regard for the needs of its custom
The defendant offered to show, by a witness called in surrebuttal, the substance of a notice in writing, and that for reasons therein stated the borough would no longer use the water. The original notice or a duplicate or a copy thereof was not produced, and no reason was given for offering parol proof of its contents. The offer was objected to and the objection sustained. There was no error in this, even had the offer been made in chief, rather than in surrebuttal. Offers to prove matters in surrebuttal which should have been shown in chief,
The remaining specifications relate to the charge of the court. The contract was severable, under all the authorities on that question. Although the term of the contract is ten years, the consideration is expressly divided into yearly sums, and made payable semiannually. That the borough is liable for the actual service rendered in good faith under such a contract would seem to be a deduction from the authorities on that point, and is practically so ruled in U. S. Water Co. v. DuBois, 176 Pa. 439. In this view of the defendant’s liability, the court was right in refusing the defendant’s second and third points, contained in the eleventh and twelfth specifications.
All the questions of fact arising in the ease, and the equities growing out of them, were submitted to the jury for their determination, in a charge in which the rights of the parties under the law were clearly explained. Neither party obtained a verdict for its claim, but the verdict was fully warranted by the evidence, and we see no ground for disturbing it.
The specifications of error are all overruled and the judgment is affirmed.