Bell v. City of Fayette
| Decision Date | 06 June 1927 |
| Citation | 296 S.W. 1047,222 Mo.App. 184 |
| Parties | JOHN B. BELL, RESPONDENT, v. CITY OF FAYETTE, APPELLANT. [*] |
| Court | Kansas Court of Appeals |
Appeal from the Circuit Court of Saline County.--Hon. R. M Reynolds, Judge.
Judgment affirmed.
S. C Major, R. M. Bagby, R. K. Bridges and A. R. James for respondent.
Lionel Davis for appellant.
Trimble, P. J., absent.
This is a suit arising out of a written contract. Plaintiff and defendant in January, 1910, entered into a contract covering a period of ten years. There is no question as to the validity of the contract. Under the contract plaintiff leased from the defendant the electric light plant owned by said defendant, the city of Fayette. Under the terms of the contract at the end of each year an accounting and settlement was to be made and accounts were to be squared between the parties. These settlements were made and no controversy arose until the final settlement for the last year. The suit has to do with this last settlement.
Defendant agreed in this contract to pay the plaintiff ninety-five per cent of the cost of all new materials used in additions and extensions to the plant which were made by him in the last or 10th year of the contract.
The first item sued for is $ 1920.88. This represents ninety-five per cent of the actual costs to the plaintiff of new materials used by him in making additions and extensions to the plant in the 10th year of the contract. There seems to be no question as to the justness of this item. Interest on this amount was awarded from February 1, 1920.
It is further provided in the contract that at the termination of the lease, the city was to purchase from the plaintiff all supplies on hand that were merchantable, and of the kind then in use by electric light plants, and to pay the cash value therefor. An inventory was taken in accordance with the contract, an itemized list presented showing a balance of $ 748.27. The justness of these items does not seem to be questioned.
The next item is for eighty-seven meters at $ 6 each, amounting to $ 522.
An item for $ 45 for wiring the mayor's office is sued for, as is, an unearned insurance premium of $ 28.90.
The answer of the defendant sets up a counterclaim pleading a contract whereby plaintiff agreed to pay the defendant five cents per 1000 gallons, for water used from the storage cistern, and asks judgment for $ 1314 on this item, also defendant sues for pumping water for ice plant of plaintiff $ 1615.50. $ 120 is alleged to be due for damage to boiler. $ 792.22 for repairs. $ 5 for engine sold by plaintiff belonging to defendant. $ 100 for copper sold by plaintiff.
The reply of the plaintiff to the counterclaim denies owing the $ 120 for damages to the boiler tubes, denies $ 792.22 and admits that he is indebted to plaintiff in the sum of $ 100; that the item of the engine was fully adjusted by the city in prior settlements, and denies that he used any of the city water except as authorized by the contract.
A verdict was rendered for plaintiff in the sum of $ 4375.27.
A verdict was rendered for the defendant on his counterclaim for $ 268, probably the $ 100 which plaintiff admits he owes, and for one-half of the repairs to the boiler house with interest on both items. Judgment was entered in favor of the plaintiff for the difference between the two verdicts which gave plaintiff a judgment for $ 4107.27.
After an unsuccessful motion for a new trial the defendant has appealed.
Respondent first makes the point that the brief by appellant does not comply with the rules. However, we think the brief is sufficient to authorize an examination of the questions presented.
The appellant complains of the refusal to give its instruction No. 3 which is a peremptory instruction to find for the defendant as to the eighty-seven meters mentioned in evidence. The question then presents itself, were the meters included within the written contract? The seventeenth section of said contract provided that the city should buy "supplies on hand that are merchantable and of the kind then in use by electric light plants." The city took these meters over and sold some of them and collected the money for the same; they collected the rental for these meters. The court did not assume that the electric meters came under the contract, but submitted the question to the jury as to whether or not the meters were merchantable and used in connection with the operation of the electric light plant. We think under this evidence there is no error in refusing defendant's instruction.
The case of Crutchfield v. City of Warrensburg, 30 Mo.App. 456, l. c. 461, is not in point, nor is Brown v City of New Madrid, 208 S.W. 109, for the reason that in the case at bar, it is contended, and the jury found,...
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