Vicksburg Waterworks Co. v. Y. & M. V. R. R.

| Miss. | Mar 15, 1912

Cook, J.,

delivered the opinion of the court.

The Vicksburg Waterworks Company instituted this suit against the Yazoo & Mississippi Valley Railroad Company in the circuit court of Warren county, averring by its declaration that the defendant railroad company was indebted to it in the sum of four thousand, two hundred and sixty-seven dollars and fifty cents, for water furnished by it to said railroad company within a period of fifty months. The declaration contains two counts, and the written contract between the two companies was filed as an exhibit thereto, in which contract appears the following clauses: ‘ ‘ The party of the second part hereby agrees that it will take from the party of the first part all water required by it for use at the said tank and for distribution therefrom during the term of this agreement, and that for all water so used it will pay party of the first part six (6). cents per one thousand (1,000) gallons, payments to be made monthly within fifteen (15) days after presentation of bill therefor. If in any month, or part thereof, the meter shall fail to correctly register the amount of water used by the party of the second part, the amount of- water used the month preceding and the month following the month in which such failure to register shall occur shall be averaged, and such average shall he taken to be the amount of water used during the month in which the meter shall fail to register. ’ ’

The first count of the declaration averred that the meter registering the amount of water delivered to the railroad company was out of repair for a period of fifty, months, and did not correctly register the amount of water which passed through it and was supplied to the defendant during this period; that the water company had furnished the railroad company, on the first of each month, a statement of the amount due for the preceding month, which statements in every instance charged the railroad company with five million gallons of water, and on each statement the word “estimated” and the letters “E. and O. E.” were indorsed. It is also stated by said declaration that the plaintiff had furnished to the defendant water largely in excess of the amount which had been charged to and paid for by the railroad company; and it further states that, inasmuch as the meter was defective and unreliable, plaintiff had taken the last known correct amount which had passed through the defective meter, which amounted to five million gallons, and the amount which passed through the meter after the same had been replaced by a meter correctly registering the water which amounted to seven million, eight hundred and forty-five thousand gallons, and demanded as the amount which the plaintiff was entitled to recover the average between these two amounts for the fifty months for which they had furnished water upon an incorrect and mistaken basis, relying upon the second clause of the contract above quoted for this basis of recovery. The second count in the declaration simply avers that plaintiff furnished to defendant, under the first clause of the contract above mentioned, three hundred and twenty-one million, one hundred and twenty-five thousand gallons of water which, at the contract price of,six cents per one thousand gallons, aggregated the sum of nineteen thousand, two hundred and sixty-seven dollars and fifty cents, of which sum the defendants had paid fifteen thousand dollars in fifty monthly payments of three hundred dollars, and demands judgment for the difference between the amounts furnished and the amount paid, to wit, the sum of four thousand, two hundred and sixty-seven dollars and fifty cents.

To this declaration the defendants pleaded the general issue and special pleas setting up accord and satisfaction,- estoppel, and the three-year statute of limitation. Plaintiff demurred to the pleas, and the court carrying the demurrer back and applying same to the declaration, held that the declaration stated no cause of action. From this action of the court, plaintiff appeals.

We think it only necessary to discuss the averments of the declaration, as the trial court in opposing plaintiff’s demurrer to the declaration held that no cause of action was made thereby. The issues raised by the pleas will necessarily become involved in our observations.

We gather from the declaration that the plaintiff and defendant are bound by the' written contract which is made a part of the declaration, by the terms of which the defendant agreed to pay for all water furnished by plaintiff to defendant at the agreed price of six cents per thousand gallons. For the purposes of this opinion, we will assume that defendant does not deny that it has received more water than it has paid for, but does insist that when it paid the monthly bills presented by plaintiff, the mere presentation of the itemized bills and the acceptance of the amount claimed thereby was an agreed settlement of its dues to the city; but if this is not true, that the delay of plaintiff in failing to put in a correct meter estops it to now claim the right to reopen the matter for the purpose of demanding payment for the water furnished in excess of the amount stated in the monthly accounts. The mere negligence or lax business methods of the water company will not work an estoppel, unless it can be shown that the railroad company was misled thereby to its injury. If it can be shown that both parties to the contract understood that the payment of the monthly bills was made and accepted as a full settlement of the true amount due, or in other words, if the parties, knowing that the meter was out of commission had agreed to estimate the amount due and accept the estimate as the true amount, in that event there would be an accord and satisfaction; otherwise, we can see no reason why the defendant should not pay for the water at the rate of six cents per thousand gallons, which it actually received.

The suit is predicated upon a written contract, and the three-year statute of limitation has no application to this sort of case. It is quite true that the clause of the contract providing for an ascertainment of the amount of water furnished for any particular month does not furnish an exclusive basis for the proof of the amount furnished during the fifty months involved in this controversy; and if such is the theory of the first count in the declaration, it is not maintainable. However, we do think the method adopted may be evidential upon the trial of the issue; but this court is not concerned with the difficulties which may embarrass the plaintiff in establishing its case, and only mean to say that any evidence reasonably tending to establish the averments of the declaration may be used for that purpose.

If the alleged facts set out in the declaration be established by competent evidence to the satisfaction of the jury, the plaintiff is entitled to recover. We do not wish to be understood as anticipating any defense which defendant may be pleased to make, and have only discussed "the issues made by the pleas, treating the averments of the declaration as true for the purpose of promoting a final determination of the case upon its merits. We have not discussed the merits of the demurrer as applied to the special pleas, because the defendant may desire to file amended pleas which will correctly raise the issues accorded to our views of the case.

Reversed and remanded.