City of Greenville v. Greenville Waterworks Co.

• Decision Date: 03 April 1900
• Parties: CITY OF GREENVILLE v. GREENVILLE WATERWORKS CO.
• Court: Alabama Supreme Court

27 So. 764

125 Ala. 625

CITY OF GREENVILLE v. GREENVILLE WATERWORKS CO.

Supreme Court of Alabama

April 3, 1900

Appeal from circuit court, Butler county; John R. Tyson, Judge.

Action by the Greenville Waterworks Company against the city of Greenville to recover hydrant rentals. From a judgment in favor of plaintiff, defendant appeals. Affirmed.

This action was brought by the appellee, the Greenville Waterworks Company, against the city of Greenville, the appellant, and was instituted on July 20, 1897. The complaint contained 30 counts. Counts numbered from 1 to 16 of the complaint each claimed $2,000 due on account on January 1st and July 1st respectively, of each of the years 1895 and 1896. Counts 7 to 12 claim a like amount due upon counts stated upon the same dates, respectively. Counts 13 to 18 claimed the same amount for goods sold, and counts 19 to 24 claim the same amount for work and labor done. Count 25 claims $12,000 due by account on July 1, 1897, and count 26 claims a like amount upon an account stated on July 27th. Count 27 claims $12,000 due for goods sold during the years 1895 to 1897. Count 28 claims a like amount due for work and labor done during these years. Count 29 claims $12,000 of defendant for that by a special contract plaintiff agreed to furnish defendant water for fire plugs or hydrants for which defendant was to pay semiannually for 35 such plugs $875, and for each fire plug in excess the sum of $40 annually; and plaintiff alleged that it furnished to defendant water during the years from 1895 to 1897 for 60 fire plugs. Count 30 claims a like amount for that on June 9 1890, defendant, through its city council, adopted an ordinance or contract whereby it is provided that the American Pipe Manufacturing Company should procure the organization of a waterworks company to supply water for the city of Greenville, by which ordinance it was provided that it should be binding upon the defendant, the American Pipe Manufacturing Company, and the waterworks company so organized; and plaintiff alleges that the pipe manufacturing company procured the organization of the plaintiff company and duly assigned, transferred, and set over to the plaintiff company all its right, title, and interest to said ordinance contract. Plaintiff further alleges that by the said contract it was provided that, in consideration of plaintiff's furnishing water for fire purposes, the city would pay for 35 plugs $1,750 annually in semiannual payments, and $40 per annum in excess of the 35, and that it had complied with the contract during the years 1895, 1896, and 1897 by furnishing water for 60 fire plugs, in all things in accordance with the contract.

To the complaint thus filed the defendant, "for answer to said complaint, and separately to each count thereof," originally filed 11 pleas. Subsequently the defendant amended its pleas by filing additional pleas numbered from 12 to 20 inclusive. These pleas were, in substance, as follows, the pleas being designated by their respective numbers: (1) The general issue. (2) Payment. (3) Statute of frauds, because the contract sued on was not to be performed within one year. (4) This plea alleges that the contract was void, in that under the charter of the city of Greenville its city council had no power or authority to make and enter into the contract which was the foundation of this suit. (5) The alleged contract sued on was not made by the plaintiff with the defendant, but the American Pipe Manufacturing Company, a corporation organized under the laws of New Jersey, entered into said contract; and said American Pipe Manufacturing Company was without authority to make said contract. The sixth and seventh pleas aver that the defendant was without authority to enter into a contract for the American Pipe Manufacturing Company. The eighth and ninth pleas aver that at the time of making said contract said manufacturing company was a foreign corporation, and did not have a known place of business in this state, and a resident agent thereat. (10) This plea, after averring the making of the contract sued on with the American Pipe Manufacturing Company, averred that said manufacturing company failed to perform its part of said contract. (11) This plea is verified by affidavit, and avers that the plaintiff is not a corporation, as alleged in said complaint. (12) In this plea the defendant set out the ordinance adopted by the city council of Greenville, which constitutes the contract sued on. This ordinance contained 12 sections. By the first section the city of Greenville granted to the American Pipe Manufacturing Company or their assigns, who are to procure the organization of a company to be styled the Greenville Waterworks Company, the exclusive right and privilege of contracting, maintaining, and operating a system of waterworks for the purpose of supplying said city and its inhabitants with water for protection against fire, and for domestic, sanitary, and other useful purposes. In the second section the ordinance granted to the company the right to construct, operate, and maintain a system of waterworks through each street. The third section related to the specifications as to the time of beginning the work and to the system of waterworks to be built and maintained. The fourth section was in words and figures as follows "Sec. 4. That the said city of Greenville, in consideration of said company's guaranteeing to it for a period of twenty-five years, and as long thereafter in periods of ten years each, until said city shall purchase said waterworks, as hereinafter provided, a free and unrestricted use of its water in case of fire, and for protection against conflagrations, and agreeing to establish at convenient places along the line of its pipe, fire plugs of approved pattern, and to exceed 35 in all, hereby obligates itself to pay to the said waterworks company the sum of seventeen hundred and fifty dollars annually for twenty-five years in semiannual payments of $875 each, and for additional periods of ten years each, at same price, if said waterworks had not been purchased by the city, and in case said city shall not have sufficient funds at the time said payments are due, warrants shall be issued on the city treasurer in favor of said company for the amount due payments to commence on the first day of the month succeeding the completion of the work." Section 5 provided for the extension of the water main from time to time as the increasing demand required. Section 6 was as follows: "Sec. 6. The city of Greenville shall pay to the said waterworks company the sum of ($40) forty dollars per annum for each additional fire hydrant required by them in excess of the 35 hydrants provided for in section 4." The remaining sections of this ordinance related to the regulation of the supply of water, and other provisions incident to the establishment of waterworks. The twelfth plea averred that under said ordinance contract it was the duty of the plaintiff to build a water tower at a sufficient elevation "to allow one good fire stream, through 200 feet of fire hose and one-inch nozzle, to be projected at least 40 feet vertically from any plug located upon the main street"; and the defendant avers that the plaintiff did not build or maintain such a tower. The thirteenth plea averred that the ordinance was void because said city council of Greenville was without the power or authority to pass such ordinance conferring the rights thereby attempted to be granted. The fourteenth, fifteenth, and sixteenth pleas were substantially the same as the twelfth, averring in different ways the failure of the plaintiff to comply with the requirements of the ordinance so far as the supply of water was concerned for fire purposes. The seventeenth, eighteenth, and nineteenth pleas were substantially the same as the thirteenth. The twentieth plea was substantially the same as the twelfth, averring that the plaintiff failed to supply the defendant and its inhabitants with water useful as a protection against fire, and the water sued for was valueless to this defendant for the purposes of protection for which the defendant had agreed to pay therefor. To the third plea the plaintiff demurred upon the grounds that the contract sued on was not such a contract as was required by the statute of frauds to be in writing; (2) that it appears that the contract sued on was, at the time of the institution of the suit, executed, and not merely executory. To the fourth plea the plaintiff demurred upon the grounds that it appears by the complaint, and is not denied by said plea, that the defendant is a municipal corporation, and as such corporation has implied power to make the contracts such as the one sued on; (2) the contract sued on provided for what was necessary for the welfare of the inhabitants of the defendant, and does not deny in the plea that the defendant has received and used the water the price of which is sued for. To the eighth plea the plaintiff demurred upon the following grounds: The defendant cannot set up in this suit the failure of the American Pipe Manufacturing Company to conform to the constitutional and statutory requirements of foreign corporations doing business in this state; (2) it does not appear that the American Pipe Manufacturing Company did business in this state; (3) it appears from the complaint and said plea that the contract sued on was executed, and not merely executory. To the tenth plea the plaintiff demurred upon the grounds: (1) That the plea purports to answer the whole complaint, but it is not alleged or shown that the defendant received or used any of the water the price or value of which is sued for; (2) it is not shown by said plea wherein any condition precedent to the contract was...