175 N.W. 622 | N.D. | 1919
This is an appeal from an order sustaining a demurrer to the complaint. The complaint purports to state three separate causes of action, and the demurrer was directed to only the third cause. The causes are related, and the court, in ruling upon the demurrer to the third cause, indicated that if the action should be brought to trial he would sustain an objection to the introduction of any testimony under the first and second causes of action, thereby expressing an opinion that the proposition of law which was decisive against the plaintiff as to the third cause of action was also applicable to the first and second. There is nothing before this court involving the legal sufficiency of the complaint as applied to the first two causes of action alleged, but it may be proper to refer to them for whatever bearing they may be thought to have upon the allegations concerning the third cause of action. The complaint alleges as a first cause of action that during the period between February 1, 1918, and July 1, 1918, the plaintiff furnished and supplied to the defendant, at its special instance and request, electric current to be used for lighting the streets and public places of the defendant city; that the reasonable, customary, and usual value of the service was $2,784; that payment therefor has been demanded
For a third cause of action it is alleged as follows: “That continuously from the 28th day of December, 1908, to this date, plaintiff has furnished and supplied to said defendant for the purpose of lighting a public library and reading room within the said city of Jamestown electric current of the value of which, calculated according to a reasonable schedule of rates made and published by the plaintiff and known to the defendant at all times during the period aforesaid, with interest at the rate of 6 per cent per annum from the date at which the same was furnished, amounts to the aggregate sum of $1,402.02. That payment of' said sum has been demanded and such demand refused. That there is now due the sum of $1,402.02.”
Briefs have been filed which exhaustively treat of the contractual and quasi contractual liability of municipalities. Throughout the briefs and throughout the' oral argument, however, both counsel have drawn freely from sources of information in applying authorities that may or may not be applicable to the case in hand when the proof is in. For instance, hypothetical situations are assumed, the bearing of which upon the legal questions presented will depend upon the actual condition of the ordinances of the city, the practice thereunder, and the terms of the franchise of the plaintiff company. True, we might take judicial notice of the ordinances, but they alone would not necessarily be decisive. On account of the variety of ways in which the merits of this case may be affected by considerations, the direct bearing of which we cannot know until the proof is in, we do not deem it to be advisable to enter upon a discussion of the law which can be based upon nothing more substantial than assumed hypothetical situations. We rather regret the seeming necessity that precludes us from considering at length the propositions that counsel have so ably and exhaustively treated in their briefs. The fault, however, lies in the practice that permits ap
The statement of the third cause of action is legally sufficient. Whether or not the requisite proof to support it may be forthcoming, we cannot, of course, venture to say. The complaint states that the plaintiff furnished to the defendant, for lighting a public library and reading room, electric current which, at a reasonable rate, was worth the aggregate sum of $1,402.02, and that the defendant has not paid therefor. It is not incumbent on the plaintiff to allege all of the circumstances surrounding the furnishing of this current, ánd it may appear on the trial that it was furnished in such circumstances that no liability on the part of the city would result, or the contrary might appear. But the allegation is that it was furnished to the city, and that it is not paid for. This is sufficient to state a cause of action, and, in .our judgment, this is all that can properly be decided at this time.
For the foregoing reasons the order appealed from is reversed.
