78 Wash. 47 | Wash. | 1914
The town of Castle Rock seeks recovery upon a bond executed by Fred C. Furth and W. T. Brown, as principals, and The Empire Surety Company, as surety, to secure performance by Furth and Brown of certain things by them to be performed under the terms of an electric light franchise granted by the town. A trial before the court without a jury resulted in findings and judgment against all of the defendants in the sum of $500, from which they have appealed.
In October, 1911, the town council of Castle Rock passed, an ordinance granting to one Davis and his associates a franchise,
“To construct, maintain and operate electric light lines and lines for transmitting electric power, together with poles, wires, and other appurtenances upon, over, along and across the roads, streets, alleys, and other public ways within the corporate limits of the town of Castle Rock.”
Other provisions of this franchise ordinance, so far as we need here notice them, are as follows:
“The grantees shall by contract to be entered into furnish to the town of Castle Rock for street lights, as many standard arc lights, of not less than six amperes capacity and as many incandescent lights of thirty-two candle power as the council may for each contract period require, located as the council may direct, and shall furnish and maintain all such lights and fixtures appurtenant thereto at its own expense and the same shall be. their property. The monthly charge therefor shall be, for the contract period, such sum as may*49 be agi’eed upon, but not exceeding one ($1) dollar for each thirty-two candle power incandescent light and five dollars and fifty cents ($5.50) for each arc light of six ampere capacity and out of each eleven arc lights so contracted for, one shall be free.
“Further, the grantees shall light the council chamber of the city with such number of lights as the council shall deem sufficient, all not to exceed thirty-two candle power each. The grantees shall further furnish to the town of Castle Rock, during the term of this franchise free of charge, and at such points as the city authorities shall designate, one standard arc light, of not less than six amperes capacity for each additional three-hundred and fifty population of said town, as designated by the last federal or municipal census.
“The town of Castle Rock agrees to immediately enter into a contract for a period of ten years to be designated in said contract with said grantees to purchase sufficient and necessary street lights, under the conditions of the above outline, the minimum amount of said contract to be sixty dollars per month.”
Thereafter, appellants Furth and Brown succeeded by assignment to all of the rights of the grantees under this franchise. Thereafter, Furth and Brown, as principals, and the Empire Surety Company, as surety, executed the bond provided for in the franchise ordinance. The bond is in usual form, reciting that the principals and surety are bound unto the town of Castle Rock in the sum of $500, referring to the franchise ordinance, clearly showing that it was executed in pursuance of the provisions of that ordinance and is conditioned as follows:
“Now, therefore, if the said Fred C. Furth and W. T. Brown shall commence furnishing lights and power in the town of Castle Rock by April 1st, 1912, as provided in said ordinance No. 104 of the town of Castle Rock, state of Washington, then this obligation to be void; otherwise to be and remain in full force and virtue.”
Nothing was ever done by the grantees nor by Furth and Brown towards the construction of the electric light lines contemplated by the franchise ordinance, nor did they ever
It is first contended by counsel for appellant that the bond sued upon was executed without authority of law on the part of the town to require such a bond. It seems to us this contention needs no other answer than the language of chapter 228, Laws of 1907, p. 564 (Rem. & Bal. Code, § 7755 et seq.), which expressly authorizes cities and towns of the second, third and fourth class, Castle Rock being a town of the fourth class, to require a bond from persons receiving from any such city or town a franchise of the nature here involved, to secure the faithful performance of the conditions and terms of such franchise.
It is insisted, however, by counsel for appellant, that this law is invalid because, as it is claimed, the title embraces more
It is next contended that, since the council passed an ordinance revoking the franchise ordinance for which the bond was given to secure the faithful performance of on the part of Furth and Brown, such revocation amounted to a rescission by the town of the contract evidenced by the franchise ordinance, and that, therefore, there is no foundation for the recovery. We are unable to see the force of this contention. Furth and Brown had not only failed to perform their obligations under the franchise ordinance within the time therein specified, but it is also manifest that they were not in a position at that time to do so, and had no intention of doing so. In other words, they had abandoned all their rights and repudiated all their obligations thereunder. Clearly, the town had the right to treat the franchise contract as abandoned by Furth and Brown and to recover upon the bond for whatever damage it suffered by reason of such abandonment. Lake Shore & M. S. R. Co. v. Richards, 152 Ill. 59, 38 N. E. 773; see note to this case in 30 L. R. A. 33. If the contention of counsel for appellant be correct, then the bond would have been given to no purpose whatever.
Some contention is made that, since the town has not complied, or offered to comply, with its promise embraced in the franchise ordinance — that is, that it has not offered to enter into a contract for the purchase of electric light at the maximum rate specified, or any other rate, it is in no better position than as if there had been mutual rescission of the franchise contract. There might be some merit in this contention if the time had arrived, under the terms of this franchise, when the town would have been required to enter into the contract thereby contemplated, and had not the failure of Furth and Brown prevented all possibility of such a contract. Their contention upon this theory, we think, is wholly without merit. Some contention seems to be made upon the
It is contended that the evidence does not support the findings and judgment, in that there is a failure to show the amount of damage incurred by the city by the failure of Furth and Brown to furnish electric light as provided in the franchise ordinance. This presents only a question of fact. We think the evidence fully sustains the court’s finding that the town was damaged more than $500 because of the failure of Furth and Brown to comply with the terms of their franchise contract, in that the town was required, in order to furnish itself (not its citizens) light, to enter into a contract with other parties costing the town for such light in the aggregate, much more than $500, in excess of what it would have paid under the contract it was entitled to under the Furth and Brown franchise.
Some contention is made that the conditions of the bond are not broad enough to cover the damage awarded by the judgment, in that the bond was conditioned only that Furth and Brown “shall commence furnishing lights in the town of Castle Rock by April 1, 1912, as provided by said ordinance.” We think this condition secured not only the commencement of furnishing light “in the town,” but also secured the commencement of furnishing light to the town upon the date specified under a contract with the town such as was contemplated by the franchise ordinance.
The judgment is affirmed.
