City of Plankinton v. Gray

• Decision Date: 10 September 1894
• Docket Number: 392.
• Citation: 63 F. 415
• Parties: CITY OF PLANKINTON v. GRAY et al.
• Court: U.S. Court of Appeals — Eighth Circuit

63 F. 415

CITY OF PLANKINTON v. GRAY et al.

No. 392.

United States Court of Appeals, Eighth Circuit.

September 10, 1894

Robert J. Gamble and R. B. Tripp (Mr. W. M. Smith was with them on the brief), for plaintiff in error.

O. T Williams (Mr. Friend was with him on the brief), for defendants in error.

Before CALDWELL, Circuit Judge, and THAYER, District Judge.

CALDWELL Circuit Judge.

This action was instituted in the territorial court of Dakota, and transferred to the circuit court of the United States for the district of South Dakota upon the admission of that state into the Union. The action is founded on a contract entered into between Gray Bros., the defendants in error, and the town (now the city) of Plankinton, the plaintiff in error whereby the former agreed, for a consideration named in the contract, to be paid by the town, to bore, within the corporate limits of the town, an artesian well for the purpose of furnishing water to the town and its inhabitants. The well was bored, and, the city failing to pay therefor this suit was brought to recover the contract price for the work. A demurrer to the complaint, upon the ground that it did not state facts sufficient to constitute a cause of action, was overruled by the territorial court, and renewed in the circuit court, and overruled by that court, whereupon the defendant filed an answer and amended answer to the merits. By filing an answer to the merits after the demurrer was overruled, the defendant waived the demurrer. Railroad Co. v. Washington, 1 C.C.A. 286, 49 F. 347; Stanton v. Embrey, 93 U.S. 548; Campbell v. Wilcox, 10 Wall. 421; Evans v. Gee, 11 Pet. 80, 85; Asbach v. Railway Co. (Iowa) 53 N.W. 90; West v. McMullen, 112 Mo. 405, 20 S.W. 628; Richardson v. O'Brien, 44 Ill.App. 243; Ganceart v. Henry (Cal.) 33 P. 92; San Diego Co. v. Siefert (Cal.) 32 P. 644; Jones v. Terry, 43 Ark. 230; Anderson v. Lumber Co. (Or.) 28 P. 5; McFadden v. Fortier, 20 Ill. 509; Foltz v. Hardin (Ill. Sup.) 28 N.E. 786; Newman v. Moody, 19 F. 858; Elliott's App. Proc. 683.

Upon the trial the defendant objected to the introduction of any evidence in support of the plaintiff's action, upon the same ground it had demurred to the complaint, and the objection was overruled, and this ruling is assigned for error. The Code of the territory, in force at the date of the contract, prescribing the duties and powers of incorporated towns, provided:

'The board of trustees shall have the following powers, viz.: * * * (3) To organize fire companies, hook and ladder companies, to regulate their government, and the times and manner of their exercise, to provide all necessary apparatus for the extinguishment of fires; * * * to construct and preserve reservoirs, wells, pumps, and other water works, and to regulate the use thereof, and generally to establish other measures of prudence for the prevention or extinguishment of fires as they shall deem proper. ' Pol. Code Dak. c. 24, Sec. 22; Comp. Laws Dak. 1887, Sec. 1043.

A further provision of the same Code declared that:

'No incorporated town under this act, shall have power to borrow money or incur any debt or liability unless the citizen owners of five-eighths of the taxable property of such town, as evidence by the assessment roll of the preceding year petition the board of trustees to contract such debt or loan * * * .' Pol. Code, c. 24, Sec. 27.

The particular ground alleged against the sufficiency of the complaint is that it does not aver that before the making of the contract the citizen owners of five-eighths of the taxable property of the town had petitioned the board of trustees to contract the debt thereby incurred, as required by section 27, above quoted. The complaint alleged the town made and entered into the contract, and made a copy thereof a part of the complaint. The amended answer admitted that the town made and entered into the contract set out in the complaint, and set up various special defenses, and, among them, that the well did not furnish a satisfactory flow of water, as provided by the contract, 'and was not such a well as was required by the terms of said contract,' and that the well was improperly drilled and cased, by reason of which water flowed outside of the casing and pipes, and made the place in the street miry and unsafe, and the well a public nuisance; but nowhere in the answer or amended answer is there any suggestion of any want of...