Brooks v. City of Wichita

• Decision Date: 03 March 1902
• Docket Number: 1,636.
• Citation: 114 F. 297
• Parties: BROOKS v. CITY OF WICHITA et al.
• Court: U.S. Court of Appeals — Eighth Circuit

114 F. 297

BROOKS v. CITY OF WICHITA et al.

No. 1,636.

United States Court of Appeals, Eighth Circuit.

March 3, 1902

On the 23d day of September, 1898, the Wichita Railway, Light &amp Power Company entered into a contract with the city of Wichita by which it agreed to furnish the city with 150 arc lights of the standard of 2,000 candle power, and to have the same 'in operation by April 1st, 1899. ' The contract contained the following provisions: 'And it is further agreed that in the event that the said first party shall fail to furnish and put in operation for the use of the said city the one hundred and fifty (150) arc lights before referred to by the first day of April, 1899, then it is agreed that the said first party is to forfeit and pay to said second party, as liquidated damages, and not as a penalty, the sum of ten thousand (10,000) dollars now on deposit with the city treasurer of the city of Wichita. It is further agreed that the ten thousand dollars ($10,000) is to be treated as liquidated damages in case of a breach of this contract, for the reason that the actual damages sustained by the said city in case of a breach of this contract cannot be definitely or accurately estimated or computed. And it is further agreed and understood that, as a part of the consideration of this contract, the sum of ten thousand dollars ($10,000) has been deposited with the city treasurer of the city of Wichita, as a guaranty that the said first party shall begin to furnish lights herein contracted for by the first day of April, 1899 the said sum of ten thousand dollars ($10,000) to be treated as hereinbefore set forth, as liquidated damages, and not as a penalty; and further conditioned to pay the second party all damages, penalties, and forfeitures that may arise under this contract in case of the first party's failure to perform its part of the same by April 1st, 1899. ' The $10,000 was deposited with the city treasurer as recited in the contract. The company never furnished and put in operation the 150 arc lights, or any of them. The appellant, Francis A. Brooks, brought this bill in equity against the city and the Wichita Railway, Light & Power Company to recover the $10,000 deposited in the treasury of the city under the contract, alleging he had furnished the company the money to make the deposit, and was the equitable owner thereof; admitted the company did not put the arc lights in operation, but denied that the money was thereby forfeited to the city under the contract; and prayed 'that the said city of Wichita may be ordered and decreed to account with him for so much of the money deposited with it by him in September, 1898, as is not required to meet and satisfy the damages, loss, or injury caused to or sustained by said city, if any there was, by reason of the failure of said railway, light, and power company to keep and perform the contract made by it as aforesaid. ' A demurrer to the bill was sustained, and the bill dismissed 'without prejudice to an action at law,' and the plaintiff appealed to this court.

Kos Harris, for appellant.

A. E. Helm (David Smyth and C. V. Ferguson, on the brief), for appellees.

Before CALDWELL, SANBORN, and THAYER, Circuit Judges.

CALDWELL Circuit Judge, after stating the case as above, .

Waiving any consideration of the question of equitable jurisdiction, concerning which there may be some doubt, owing to the equitable character of the plaintiff's alleged claim to the fund, we will proceed to dispose of the case on its merits.

By the express terms of the contract, if the 150 arc lights were not put up and in operation within the time limited, the company was to forfeit and pay to the city, 'as liquidated damages, and not as a penalty, the sum of ten thousand dollars now on deposit with the city treasurer of the city of Wichita. ' Cases of penal bonds between private persons where the damages resulting from a breach are readily ascertainable, have no application to this case. A city is a public corporation designed for local government. It is an agency of the state to assist in the civil government of the territory and people of the state embraced within...