Cedar Rapids Water Co. v. City of Cedar Rapids
| Decision Date | 29 May 1902 |
| Citation | 117 Iowa 250,90 N.W. 746 |
| Parties | CEDAR RAPIDS WATER CO. v. CITY OF CEDAR RAPIDS. |
| Court | Iowa Supreme Court |
OPINION TEXT STARTS HERE
Appeal from district court, Benton county; Obed Caswell, Judge.
Action at law for the recovery of hydrant rentals. From a verdict and judgment for plaintiff, defendant appeals. Reversed.John N. Hughes and Jamison & Smythe, for appellant.
Chas. A. Clark & Son and William G. Clark, for appellee.
The plaintiff company was granted a franchise for a system of waterworks in the defendant city, and, by the terms of the ordinance granting the same, the defendant city undertook to pay plaintiff the sum of $65 per year per hydrant for 178 hydrants located upon the city streets. Thereafter 50 additional hydrants were located, and, as rent therefor, defendant agreed to pay the sum of $50 per annum for each hydrant. The rentals so provided were to be paid quarterly, and certain conditions were imposed, which will be hereinafter referred to. This action is to recover rentals from March 30, 1899, down to January 1, 1900.
The franchise contract was on the following (among other) conditions:
Defendant pleaded utter and absolute failure of the company to comply with section 9 of the ordinance quoted, and also averred that during a large portion of the time plaintiff failed to furnish water fit for domestic use. Plaintiff, in reply, pleaded a waiver on the part of the defendant of any breach of the conditions imposed by the ordinance; that defendant, through the chief of its fire department, had for many years directed the pressure to be maintained in case of fire, and that plaintiff had in every respect complied with these directions; that defendant at all times of fire failed to have the use of water except for domestic purposes shut off, as agreed; and that it has at all times relied on the direction of defendant's chief of the fire department in case of fire, and furnished pressure according thereto. Wherefore it insists that defendant has waived full compliance with the contract, and is estopped from asserting a breach thereof as a defense. Defendant moved to strike this reply on the ground, among others, that the matters therein set forth are not a proper subject of reply, but a departure in pleading, and that the facts therein alleged, if relied upon, should have been pleaded in the petition. This motion was overruled, and this ruling presents the first error assigned. Manifestly, the ruling was correct. The facts recited in the reply do not constitute a cause of action, either of themselves, or when connected with matters stated in the original petition. They simply avoided the matter alleged in the answer, and were properly pleaded in reply. Code, § 3576; Jacobs v. Insurance Co., 86 Iowa, 149, 53 N. W. 101;Dyer v. Insurance Co., 103 Iowa, 524, 72 N. W. 681;Creston Waterworks Co. v. City of Creston, 101 Iowa, 692, 70 N. W. 739.
2. Plaintiff was permitted to show that various chiefs of the fire department, from 1883 down to the time covered by this action, fixed the fire pressure, and posted in the engine room of the plaintiff company, and in the houses in which fire apparatus were kept, a card, of which the following is a copy:
Bearing on this evidence, the trial court gave the following (among other) instructions:
“(25) If you find from the evidence that the defendant city, under its ordinance, elected a chief engineer, or chief of the fire department, and constituted him the chief executive of that department, and gave him supervision and control over the same, and at fires; and you further find that said chief of said department gave to the plaintiff instructions or directions as to the amount of pressure desired by the defendant in case of fire alarm, or at fire, or so posted a printed notice to that effect at the pumping station of plaintiff, and requested the same to be obeyed, and notified the plaintiff that, if a different pressure was desired, the same would be called for, and notification thereof given,--it would not be a breach of said contract, so as to defeat a recovery herein, if the plaintiff in other respects should be found entitled to recover, to in good faith follow and obey said directions and request, so long as they were not countermanded, annulled, or changed. If not given, or when not in force, the terms of the contract in regard to pressure, if not otherwise waived, would govern, and should be by plaintiff substantially complied with.
(26) No particular words or form is necessary to constitute waiver or acceptance. An acceptance or waiver may be by words or acts, or, with full knowledge of all the material facts, such conduct as shows satisfaction therewith and assent thereto. Long silence, with such knowledge, and no objection and acceptance of benefits, and where such conduct is only consistent with acceptance, and is so understood and acted upon, may be a waiver of any other construction or performance, and become binding upon the parties.”
The giving of these instructions, and the rulings admitting the evidence as to what was done by defendant's chief of fire department, are complained of. It is strenuously argued that these chiefs had no authority to waive the provisions of the contract, for that their powers were limited, and their acts in this respect not binding on defendant. The duties of these chiefs were prescribed by ordinances, from which we extract the following:
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