51 Kan. 104 | Kan. | 1893
The opinion of the court was delivered by
This case is argued and submitted with the case of City of Winfield v. Water Co., ante, p. 70. This action was brought by the water company against the city to recover hydrant rentals for the period of six months, from January 15 to July 15, 1890. In its amended petition, the water company alleges that on the 17th day of January, 1883, the mayor and councilmen of the city of Winfield duly passed a certain ordinance No. 167. The portions of said ordinance which are material to the consideration of this case — except the eighth section thereof, which makes provision for extensions of the mains and for additional hydrants, for which the city was to pay a rental of $65 each — are copied in the opinion in the preceding case. The petition avers the acceptance of the provisions of the ordinance by the parties therein named, and also by the water company as their assignee. It also avers the construction of the system of waterworks; the acceptance of the same by the defendant; the furnishing of water in accordance with the terms thereof to the city; and the payment of rental by the city in accordance with the terms thereof until the 15th day of July, 1890. It avers the continued use of the water for all public purposes named in the ordinance from the 15th day of January to the 15th day of July, 1890. It avers extensions of the water mains in accordance with the terms of the ordinance, and the addition of 29 hydrants, which it alleges were in use during said period of six months, and that water was furnished the city out of such additional hydrants during that term. It avers that the plaintiff performed all the provisions of its contract, and claims that by reason thereof the city became indebted to it for the use of said hydrants in the sum of $2,442.50. It
The answer contains, first, a general denial; second, an averment that the plaintiff had failed, neglected and refused to comply with the terms of the contract; that the plaintiff has persistently, for a long period of time, refused to supply said city and the inhabitants thereof, for domestic and sanitary purposes, well settled, wholesome water, and has refused to furnish the inhabitants of the city with water according to the prices and charges agreed upon and stipulated in said coutract, but extortionately, and without any authority from the defendant, imposed, and tried to impose, other and different prices and rates for water furnished, and refused to furnish water for domestic and sanitary purposes to citizens and others desiring the use of said water at the prices and rates provided in said contract; and also alleges that defendants have failed to transact the business pertaining to the waterworks within the corporate limits of Winfield; that it has failed to have a meeting of its board of directors in said city, and has only been represented by an inexperienced agent to manage its affairs in said city. It also denies that it ever entered into any contract for the additional hydrants mentioned in the petition, and asks judgment for its costs. No claim is made for damages because of the alleged failures of the plaintiff to comply with the contract.
The plaintiff, replying, alleges that the source of supply for said waterworks was the Walnut river; that the defendant permitted the water of said river to be obstructed by a dam, and to be contaminated by sewers and drains from the city; and alleges that if the water is not settled or wholesome, such condition was brought about wholly by the acts of the
Most of the evidence in the case is directed, to the question as to whether or not the water furnished was well settled and wholesome. There seems to have been little, if any, complaint as to the quality of the water prior to April. From some time in April till the middle of July, according to the testimony of the witnesses for the plaintiff, the water was roily at various times, and was also offensive to the taste and smell. Physicians also testified that in their judgment it was unwholesome. Experts were also examined on behalf of both parties, who testified with reference to the healthfulness and unhealthfulness of the water. Testimony was also offered- showing the manner in which the system was constructed, the source of supply, the mode of distribution and of settling, and the various extensions that had been made of the system. Many exceptions are preserved to the rulings of the court on the trial. Testimony was also offered with reference to the causes tending to contaminate the source of supply.
It appears that, during the period for which the plaintiff seeks to recover, the water was drawn from the Walnut river, at a point about 1,000 feet above the original source of supply; that the reservoir, which was the only place provided for settling the water, is located on the other side of the city from that where the pumps are placed, and that in order to fill the reservoir water is pumped directly from the river through the whole system of pipes distributing the water through the city. When the pumps are not in use, the water flows back through the system from the reservoir to the various consumers. In the court’s instructions to the jury are included the following:
“4. If the plaintiff has satisfied you, by the preponderance of the evidence, that it furnished water in all of the hydrants for which it claims pay, through and by means of a*108 system of waterworks in substantial compliance with all of these ordinances and contract, and substantially of the kind and quality mentioned in said contract and ordinances, ready for use by the defendant at all times during the term for which it claims pay in this case, then the plaintiff will be entitled to recover the contract price for all hydrants which you may find were actually furnished, with 6 per cent, interest from July 25, 1890, to date.
“ 5. The defendant claims that the plaintiff did not, during the term for which pay is claimed, furnish the city with water of the kind and quality required by the contract, and did not keep and maintain the system of waterworks required of it in the contract; and this brings us to the contested issues between the plaintiff and defendant. The defendant also sets up other defenses to this action, but the court being of the opinion that these other defenses are not maintainable, you are not to consider them. If you settle the issue of whether the plaintiff did or did not furnish water ready for use in the hydrants during the term charged for, through a system of waterworks, of the kind and quality as required by the contract, in favor of the plaintiff, then that ought to end the case in favor of the plaintiff, and you should return a verdict for the plaintiff for the contract price; but if you should find this issue in favor of the defendant, then it will become your duty to inquire further in the premises. If you should find that the plaintiff has not complied with the terms of the contract on its part, in furnishing the defendant with water of the kind and quality through a system of waterworks as it ought to have done, that will not relieve the defendant from all liability, if you should further find that the defendant used the water during the term for which pay is claimed for the purposes, or any of the purposes, for which it has the right to use the same under the contract.
“6. The law will not permit one party to a contract to have the fruits thereof, or a part of the same, and then refuse to render to the other party to such contract any compensation, simply because such other party has broken the contract on his part. So, in this case, if you should find that the defendant used the water furnished by the plaintiff during the term for which pay is claimed for any of the purposes for which defendant had the right to use the same, then the defendant must be required to pay the plaintiff reasonable compensation for hydrant rental, notwithstanding the fact*109 that the plaintiff may have failed to comply with the contract on its part. And, in this last event, the question of whether the defendant did or did not use the water for any of the purposes it had the right to use it may become material in the case; but if you find that the plaintiff has on its part complied with .the contract, then the question of whether the defendant did or did not use the water is entirely immaterial in this case.
“7. The contract provides that the plaintiff shall at all times furnish the defendant ‘an ample quantity of well-settled and wholesome water.’ The defendant claims that this was not done. The plaintiff, in reply, denies this; but says, if it was not done, that the fault lies with the defendant, because of the place where the defendant had condemnation of grounds and waterway made, being in a certain mill pond; and because, further, that the defendant has permitted to be constructed, and constructed, certain sewers and drainage from the city into the river in such a way as to contaminate the water at the place from where the plaintiff must obtain the same, as it has constructed its works. If you should find that the place where said water is obtained was condemned by the defendant, and that the plaintiff or its assignors erected the waterworks at such a place after the passage of the ordinance and contract under which the plaintiff claims pay, and after such assignor or plaintiff had an opportunity to examine such place, then you ought to further find, that the plaintiff and its assignors agreed and undertook to furnish water of the kind required in the contract from such place. If the plaintiff or its assignors had an opportunity to examine the place from whence the water was to be obtained before the plaintiff or its assignors expended any money under the contract, and then undertook to furnish well-settled and wholesome water from such place, it must do so or suffer the consequences, unless the defendant has by its own conduct contaminated such place. .
“8. If, since the erection of the waterworks, the defendant has, by the construction of sewers leading into the Walnut river, so contaminated the waters of said river that the plaintiff cannot, with reasonable diligence, furnish the defendant with well-settled and wholesome water, then the defendant is to blame for the injury of which it complains in this case, and in that event it cannot be heard to assert such defense. The law will not permit any person or corporation to take*110 advantage of his or its own wrong. So, in this case, if you should find that the defendant is to blame, by reason of the building of the sewers and drainage complained of by the plaintiff, for the bad condition of the water furnished, then you ought not to hold the plaintiff responsible therefor; but, on the other hand, if you should not find the defendant in fault in that behalf, then you ought to hold the plaintiff responsible for the unsettled and unwholesome condition of the water furnished, in case you should find the same to be in such condition.
“ 9. If you should find that the plaintiff has violated the contract under which it claims pay, and should further find that the defendant has used the water during the term for which pay is claimed, it will then become your duty to fix the amount which the plaintiff ought to have, as reasonable compensation for the hydrant rental for such term. You should assess and fix such sum, under the evidence in the case, as best you can, and you should not fix the same without regard to the evidence. If there is no evidence in the ease by which you can fix such compensation, you cannot fix the same arbitrarily and according to your own notions. If there is no evidence in the case from which you can fix such compensation, you can only award the plaintiff some nominal sum, such as 1 cent, $1, or some other small sum. . .
“11. The contract in this case requires the plaintiff to erect and maintain a system of waterworks of a certain kind, and to furnish to the defendant, from the Walnut river, at a place to be mutually agreed upon, well-settled and wholesome water for fire and fire-drilling purposes, for washing and flushing gutters and sewers, for a certain agreed price, and to furnish said defendant certain water at public places for drinking purposes free of charge; and the contract requires the defendant to pay for the water to be furnished a certain rental, and to enact all ordinances necessary to protect the waterworks property and the place of water supply, and to protect the plaintiff in the collection of its water rates from the inhabitants of the defendant at the agreed rates; and the contract is of such a nature as to require the utmost good faith toward each other on the part of both the plaintiff and defendant. This contract requires from the plaintiff the exercise of all reasonable and ordinary care and diligence on its part to comply with its part of the contract. And the contract requires the same kind of care and diligence from the defend*111 ant on its part and on its share of the contract. The law presumes that each of the parties to this contract contemplated and included therein any and all reasonable contingencies and conditions existing at the time of the making of said contract, as well as all reasonable contingencies and conditions that might be reasonably likely to flow out of the conditions and contingencies then existing. The law does not expect any person to comply with the conditions of an impossible contract, nor does the law require of any person any vain or foolish thing. So, in this case, if you should find that the plaintiff has exercised ordinary care and diligence in the furnishing of water for the defendant, and should further find that, the plaintiff has failed to furnish water of the kind required, and that its failure is the natural and reasonable result of the conditions and contingencies contemplated by the parties to the contract at the time it was made, then the plaintiff would be entitled to recover under the terms of the contract, notwithstanding its failure to furnish water of the kind required. This contract does not bind the plaintiff to furnish well-settled and wholesome water to the defendant under any and all conditions; but it does bind the plaintiff to exercise all reasonable care and diligence so to do, by the means, under the plan and from the place as set forth in the contract, in the light of all the conditions and contingencies which could have been reasonably contemplated by the parties at the time it was made, and which might be reasonably expected to result from natural causes or the acts of God. The plaintiff cannot be held responsible for any damages which result under this contract from natural causes, or the act of God, and which cannot be overcome by reasonable care and diligence on the part of plaintiff. But the plaintiff must be held for all such damages which can be so overcome by the exercise of such care and diligence.”
The theory of the plaintiff in this case fairly appears from the following instruction which was asked and refused:
“If you believe from the evidence that the plaintiff furnished and the defendant received and used water from the fire hydrants for which rental is claimed in this action between the 15th day of January, 1890, and the 15th day of July, 1890, then you will return your verdict in this cause for the contract price claimed for in the petition of the plain*112 tiff, together with 6 per cent, interest from the 15th day of July, 1890.”
It will be observed that this instruction leaves out of consideration the quality of the water, and any and all objections that might have been urged against it. It was not claimed on the trial that there had been any affirmative acceptance of the water by the city, but the only claim of acceptance made by the plaintiff was founded on the receipt and use of the water by the city. No instruction was asked with reference to the effect of the evidence introduced as tending to prove acceptance on the part of the city, nor was any instruction asked with reference to the proof necessary to establish acceptance.
The counsel for the plaintiff in error contend that this case was tried by the court on a wrong theory, and particularly in announcing the rule to be that, regardless of the condition and quality of the water, the plaintiff would be entitled to recover what said water was reasonably worth, when in fact no such issue was made by the pleadings, and contend that the plaintiff was entitled to recover the entire contract price or nothing; that it was prejudicial error for the court to try the case on the theory that the plaintiff was entitled, to recover on quantum meruit. As before stated, there was no allegation of value in the plaintiff’s petition, and no claim made for damages in the defendant’s answer, so that the issue presented by the pleadings was as to the performance or nonperformance of its contract by the plaintiff. On the trial, the court held that the defendant could not avail itself of a failure on the part of the plaintiff to transact the business of the corporation in the city, or of any failure to supply water to private individuals at the rates specified in the ordinance, and confined the defendant’s proof under its answer to evidence as to the quality of the water and to the manner of supplying the same. The plaintiff contends that its case was made out when it proved the making of the contract and that the water was furnished for and used by the city, and that the defendant could only reduce the contract price by pleading
Generally the buyer has a right to examine the goods and ascertain their quality before he determines whether to accept or not, and a retention by him for a time sufficient for his examination, and no more, is not an acceptance. (3 Pars. Contr., 6th ed., 44.) There can be no acceptance where there has been no opportunity of rejecting. (1 Benj. Sales, 176; Phillips v. Bistoli, 2 Barn. & C. 511.) All the authorities are to the effect that the acceptance of property sold depends on the nature of the article, the mode of delivery, and the possibility of examination and return; and while some light may be thrown on the question in this case by the decisions of the courts in reference to the sale and delivery of ordinary chattels, we must not lose sight of the facts and circumstances connected with this transaction, and of the marked peculiarities which attend a sale and delivery of water through a system of waterworks. In the case of Pearson v. Crooks, 115 N. Y. 539, the court says:
“The mere use of an article on trial may in some cases be contemplated by the parties as a means by which the vendee is to ascertain whether it corresponds in quality with the article agreed to be furnished. In such a case mere use is not*114 inconsistent with a supposed right to reject for cause, and will not constitute an acceptance.”
The general rule is stated in Benjamin on Sales. In §§701, 706, the author says:
“The buyer in entitled before acceptance to a full opportunity of inspecting the goods to see whether they correspond with the contract.”
“ Where goods are sent to the buyer in performance of the vendor’s contract, the buyer is not precluded from rejecting them by merely receiving them. The receipt is one thing, and the acceptance another, but receipt will become/acceptance if the right of rejection is not exercised within a reasonable time, or if anything be done by the buyer which he would have no right to do unless he was the owner of the goods.”
“Where the subject-matter of the sale is not in existence, or not ascertained at the time of the contract, an engagement that it shall, when existing or ascertained, possess certain qualities, is not a mere warranty but a condition, the performance of which is precedent to any obligation of the vendee in the contract, because the existence of these qualities, being part of the description of the thing sold, becomes essential to its identity, and the vendee cannot be obliged to receive and pay for a thing different from that for which he contracted.” (2 Benj. Sale3, 1152.)
And again, the same authority (on page 1153) says:
“ In actual practice, the only difficulty which arises in these cases grows out of controversies whether the buyer has actually accepted the goods, and thus become owner. On this point the cases show that acceptance does not take place by mere retention of the goods for the time necessary to examine or test them, nor by the consumption of so much as is neces-t sary for such examination and testing; and it is always a question of fact for the jury whether the goods were kept longer, or whether a larger quantity was consumed than was requisite to determine the buyer to decide whether he would accept or reject.”
The testimony in this case shows that the water was received with little or no complaint up till April. There is testimony showing that it was bad during part of the time in April, and
The trial court treated this as an action to recover the reasonable value of the water consumed, but the plaintiff introduced no evidence as to its value, but relied on its proof of performance of the contract, and acceptance by the city. Defendant introduced no evidence with reference to the value of the water, or for the purpose of proving damages sustained by the city. We are inclined to think that the court erred in its theory of the case, and that, under the pleadings
We think that the evidence in this case clearly shows that the water was not uniformly of the quality required by the contract. The plaintiff’s own witnesses testified that during periods of high water it became muddy; that when the pump was running, the supply to consumers came directly from the river, in its unsettled condition. Plaintiff’s own witnesses testified to the presence of algae in the reservoir, and claimed that the offensive odor complained of by witnesses for the city was attributable to such growth. They also testified to the character of the water in the dead ends. It is true that the plaintiff’s witnesses would seem to think that such conditions were unavoidable. On the other hand, the defendant claims that the plaintiff’s system is defective; that no means have been provided for settling the water, as required by the contract; and it is suggested that the reservoir should be filled through an independent pipe, disconnected from the distributing system; that this would afford an opportunity for the water to settle in the reservoir before passing to the consumers. Various devices might be suggested for a mode of set
Is this contract divisible? Plaintiff contends that it is. Plaintiff contends that the city is not entitled to well-settled and wholesome water for its uses, because any kind of water will put out fires and wash gutters. The question of divisibility of contracts is not always an easy one, and in this case we have to consider the question in two aspects : First, is it divisible into a contract between the city and the water company for water solely for public purposes, to be drawn from the hydrants, and a contract for water for private citizens, to be supplied through private connections? Plaintiff contends that it is so divisible. Again, may the plaintiff recover for such portion of the time as it supplies such water as is required by the terms of the contract, and may the city only defeat its claim for those days or other periods of time when it can show that the water was not such as was stipulated for? We have decided in the preceding case that the city alone can enforce the provisions of the contract against the water company, and that it is the duty of the city authorities to see that private citizens are supplied with such water as the ordinance requires. Further comment on that question is unnecessary here. The question as to the right of the water company to partial compensation in case it fails to perform its contract is not so easy to determine. We are of the opinion, however, that where the city continues to use the water, the plaintiff may recover such sum as it can show the water furnished to the city to be fairly worth. If it substantially complies with its contract during any semiannual period for which hydrant rentals became payable, we would think that the fact that it had failed to perform its contract during some preceding period would not bar a recovery for that period during which it had furnished such water and in such manner as the contract required. Where suit is brought, as in this case, to recover for hydrant rentals for six months, if it be shown that the plaintiff has failed to substantially com
“ Where the owner of a five-story tenement building leased it on a rental of $1,500 per year, payable quarterly, and gave possession of the first three stories to the lessee, and agreed to give possession of the remainder upon demand, which he after-wards refused to do, he cannot recover rent from the lessee for the use of the first three stories, as the contract must be regarded as an entirety, and the landlord who has failed to keep his contract to deliver complete possession to his lessee cannot recover from him for the use and occupation of a part of the demised premises.”
The facts in this case, however, show that the city has, during all of the periods prior to the time for which this suit was brought, accepted, used and paid for the water under the contract. We think that, in any subsequent period of six months during which it may be shown that the plaintiff complied substantially with the requirements of the contract, it may recover the full contract price, but if it fails to so comply,
While, under the pleadings, the court erred in instructing the jury that the plaintiff might recover whatever the water furnished was shown to be worth, the error was in favor and not against the plaintiff, and resulted in giving the plaintiff a verdict for nominal damages and costs, where it otherwise would have been entitled to no verdict in its favor.
We perceive no material error in the record prejudicial to the plaintiff, and the judgment will therefore be affirmed.