Sedalia Brewing Co. v. Sedalia Water Works Co., 34 Mo. App. 49

34 Mo. App. 49 | Mo. Ct. App. | 1889

Ellison, J.

Before discussing the evidence which has been presented to us for review, we will consider one or two legal questions which occur in the cause.

I. We determined in Harris v. Township Board, 22 Mo. App. 465, on ample authority therein cited, that “ in this state it is not essential that the injury threatened shall be irreparable, to warrant a resort to an injunction; ” nor that the defendant in all cases should be insolvent; it is sufficient if “an adequate remedy canuot be afforded by an action for damages.” We are of the opinion that so far as concerns this branch of the case, plaintiff is entitled to the writ.

II. The fact that the cont ract in question may be based on the city ordinance mentioned, or that the rights claimed by plaintiff may, in a degree, be held under the city’s ordinance, does not prevent the exercise of the court’s equity powers by the process here sought. Springfield Railway Co. v. City of Springfield, 85 Mo. 674. Neither does the fact that, under the contract, continuous duties arise prevent aid from this writ, although equity might not, in the given cases, decree its specific performance. Chouteau v. The Union Railway Co., 22 Mo. App. 286.

III. It will be observed that the injunction prayed is mandatory in character, and while the form of the order sought may not be so, the effect of the writ will be to compel defendant to continue to furnish water under the contract. This, however, will1 not bar the writ in a case otherwise showing the party entitled to relief. It seems that by an equity practice existing in England and in this country, the courts, while refraining from ordering the doing of an affirmative act, or, by its process, directing the specific performance of a contract, will nevertheless, by an indirect method, effect the same result. Thus in Cooke v. Chilcott, 3 Ch. D., 694, the chancellor says that: “This case is one seeking for the performance of works which are required to last a long time, and therefore an injunction expressly ordering the work to be done cannot be granted. But the defendant is subject to the obligation of laying down certain pipes and supplying water to the plaintiffs, and those pipes he must lay down and that water he must supply ; and though I cannot directly make him lay down the pipes, I can and will make an order by means of which he will be guilty of contempt of court if he does not lay them and provide the supply of water.”

So in Lane v. Newdigate, 10 Ves. 192, Lord Chancellor Eldon used this language, in speaking of a stop-gate: “The question is, whether the court can specifically order that to be restored. I think I can direct it in terms that will have that effect. The injunction I shall order will create the necessity of restoring the stop-gate; and attention will be had to the manner in which he is to use these locks ; and he will find it difficult, I apprehend, to avoid completely repairing these works.” This practice was reviewed in exhaustive opinions by Field and Sawyer, JJ., in the C. S. M. Co. v. The Virginia & Gold Hill Water Co., 1 Sawy. [U. S. C. C.] 470, and s. c., Id., 685.

IV. Much of the contest between the parties to this cause has been over the meaning which should be given to that clause in the contract providing for the use of water at the brewery “ for actual brewing purposes alone,” at the rate of five cents for each barrel of beer manufactured. The defendant contends that this means the water which actually enters into the barrel of beer brewed; while the plaintiff claims that it includes all use of water connected properly with brewing beer ; such as for the boiler, washing out vats, beer barrels, tubs, kettles, etc.

The chief object in the interpretation of contracts, which are in any wise ambiguous, is to get at the intention of the parties who made them. And if this can be ascertained by the act, and conduct of the parties, such interpretation should prevail. More especially should their acts control the meaning to be given when they have construed the ambiguous matter by actually carrying it out in a certain manner. This latter is as much an ascertainment of intention as if the parties had so written it down. A very able and instructive opinion was written by Judge Bliss in The St. Louis Gas Light Co. v. City of St. Louis, 46 Mo. 121, he says: “Nor should any regard be paid to loose declarations or equivocal or isolated acts, but the continuous conduct of the parties for a series of years concerning the subject matter of the contract, and in fulfillment of its conditions— every act pointing in the same direction — may make their understanding as clear as by the greatest precision of language.” Now the water account was kept by the water commissioner for the city of Sedalia and it shows the city to be charged with $1227.60 for the construction of the wa'ter main by the brewery company, and credited by water consumed at the brewery in the aggregate sum of $508.75. This credit is made up of separate entries at the first of each month for a period of nearly three years, beginning September 1, Í884, and ending May 1, 1887. These entries were made by the water commissioner with the knowledge of the extent of the consumption of water by the brewery and at each entry of a monthly credit to the city, he took as the basis of his calculation of the amount, the number of barrels of beer manufactured that month. So we have a practical and actual interpretation of this contract evidenced by what may be termed monthly settlements, extending through a period of thirty-three months. No room is left to doubt the understanding the parties had of the meaning of the words “ actual brewing purposes alone.” That meaning, as interpreted and acted upon by them, is, that the plaintiff is to be furnished with water at the brewery to be used for the purpose of brewing or manufacturing beer, that such use includes water properly connected with brewing beer, such as for cleaning the brewery, for use in the boiler, washing out vats, beer-barrels, tubs, kettles, and other things connected with the brewery.

Some evidence was introduced tending to show the use of water at a private house; this is not properly within the limit of the contract under the evidence, and if such has been done, it should cease.

We shall therefore reverse the judgment and remand the cause, with directions to the circuit court, by proper order, to restrain defendant from cutting off plaintiff ’ s supply of water for the uses herein indicated.

All concur.