Appeal, No. 129 | Pa. | Jul 15, 1896
Opinion by
It was held in borough of Du Bois v. Du Bois Water Works Co., opinion filed herewith, supra, 430, that the circumstances would not sustain the cancellation of the contract between those parties by a court of equity, and of course they would not justify one of the parties themselves in attempting a rescission. The ordinance of the borough was beyond its authority and wholly ineffectual for that purpose.
But even if the ordinance had been effective the direction of a verdict for defendant could not be sustained. It is admitted that a considerable amount of water was supplied by the plaintiff, although it fell short of the contract quantity, and it was shown or offered to be shown that the defendant’s servants and employees had used it, notwithstanding the ordinance rescinding the contract! For such use the borough is responsible. Even if the borough was authorized to rescind it could not escape liability for continued use by its agents; it was bound not only to notify them to stop but to see that they obeyed.
This is not a case for the application of the rule as to entire contracts. Neither the thing to be furnished nor the consideration to be paid was single and indivisible. The plaintiff is entitled to go to the jury on the value of the service actually rendered, measured by the contract price for the service stipulated.
Judgment reversed and venire de novo awarded.