Brockport-Holley Water Co. v. Vill. of Brockport

• Decision Date: 28 November 1911
• Citation: 203 N.Y. 399,96 N.E. 745
• Parties: BROCKPORT-HOLLEY WATER CO. v. VILLAGE OF BROCKPORT.
• Court: New York Court of Appeals Court of Appeals

203 N.Y. 399

96 N.E. 745

BROCKPORT-HOLLEY WATER CO.

v.VILLAGE OF BROCKPORT.

Court of Appeals of New York.

Nov. 28, 1911.

Appeal from Supreme Court, Appellate Division, Fourth Department.

Action by the Brockport-Holley Water Company against the Village of Brockport. Judgment of the Appellate Division (138 App. Div. 913,123 N. Y. Supp. 1108), affirming a judgment for plaintiff, and defendant appeals. Reversed, and new trial ordered.John D. Burns, for appellant.

W. A. Matson, for respondent.

HAIGHT, J.

The plaintiff is a public service domestic corporation, and brings this action to recover from the defendant, a municipal corporation, the contract price for the rental value of hydrants and the water supplied for fire and other services. The complaint contains two counts; one based upon contract, and the other for the value of the services rendered and water supplied. The answer denies performance of the contract on the part of the plaintiff, and alleges a counterclaim for money expended in procuring an engine and operating the same.

The contract under which the plaintiff seeks to recover provides as follows: ‘Thirteenth. The village hereby agrees to pay to the company an annual rental of $2,750 for the seventy-two hydrants, now located on its existing mains, during the fulfillment of the conditions of this fire service agreement by the said company; also $37.50 per year for each additional hydrant in excess of seventy-two located hereafter on now existing mains, said annual rental to be paid in equal quarterly installments at the end of each quarter in which the company has faithfully performed all the stipulations and promises of this agreement, the said payments to be made at the first regular meeting of the board of trustees in the months of December, March, June and September of each year. The first payment shall be due September 1st, 1903. The company agrees constantly, day and night, except in case of unavoidable accident, to keep all said water mains and hydrants supplied with water, in good order and efficiency, and with such pressure of water therein as will furnish prompt and efficient fire streams therefrom when hose is properly attached and used, but at no time less than fifty-five pounds pressure at public building, to be tested by a gauge to be furnished by the company, except that in September and October the pressure shall be at least fifty pounds. In case of fire the direct pressure shall be given from pumping station. No rental shall be paid for such time as fire protection service is not furnished.’ This contract was entered into on the 23d day of April, 1903, and was to continue for a period of five years.

The main question of fact litigated upon the trial was as to whether the plaintiff had committed a breach of the contract. It was conceded that it had failed to maintain the water pressure required by the contract; but it sought to excuse this failure upon the ground of unavoidable accident, owing to the fact that a long drought had so dried up the wells which furnished the plaintiff's supply of water that it was impossible to maintain the pressure required. This question the trial court submitted to the jury with the instruction: ‘If you shall find from the evidence that when it was discovered by the plaintiff that the water supply was failing that there was another available supply that could have been had, and the plaintiff knew of it, and did not exercise active vigilance to try and increase its supply, but, in effect, did not make an honest effort to increase it, and because of that failed to furnish the contract pressure, if you find these facts from the evidence, gentlemen, the plaintiff could not recover when the pressure was below the contract pressure, and your verdict would be for the defendant. But, if you shall find that the failure in the pressure was owning to natural causes over which the plaintiff had no control and that as soon as it was known that the supply was failing the plaintiff made an honest effort to augment its water supply, and exercised active vigilance to do so from any supply that was known to it, and which was avaliable and sufficient, if you find that the defendant has had the benefit of whatever services the plaintiff was able to give, and has used it, then, gentlemen, the plaintiff would be entitled to a verdict at your hands for the reasonable value of the service rendered by it and accepted by this defendant, after deducting whatever damage it has sustained and proved on account of the plaintiff being unable to furnish the contract pressure.’

[1][2] In view of the fact that the jury found a verdict in favor of the plaintiff it must be deemed to have found the question of fact so submitted in favor of plaintiff, and, inasmuch as the judgment has been unanimously affirmed, we are in our review bound by such determination.

[3] Assuming, therefore, the facts to be as found, the question arises as to the rule of damages that should be applied in this case. This involves a...