Creston Waterworks Co. v. City of Creston

• Decision Date: 10 April 1897
• Citation: 101 Iowa 687,70 N.W. 739
• Parties: CRESTON WATERWORKS CO. v. CITY OF CRESTON.
• Court: Iowa Supreme Court

101 Iowa 687

70 N.W. 739

CRESTON WATERWORKS CO.

v.CITY OF CRESTON.

Supreme Court of Iowa.

April 10, 1897.

Appeal from district court, Union county; H. M. Towner, Judge.

This is an action to recover water rents alleged to be due from the defendant for water furnished during the year 1894 by the plaintiff in pursuance of the provisions of an ordinance of the defendant city known as “Ordinance No. 128.” The defendant answered, setting up a number of defenses, of which those insisted upon will be hereafter noticed. Two cases in equity, then pending against this plaintiff,--one to enjoin payment by the city of water rent for the year 1893, and the other to declare said ordinance illegal,--were, by consent, consolidated, and submitted with this case. The grounds for the relief asked in those cases are similar to those alleged as defenses to this action. The cases thus consolidated were tried as in equity, and judgment rendered in favor of the plaintiff for the amount claimed, and decree dismissing both petitions in equity. The defendant appeals. Affirmed.John B. Sullivan, Earle & Prouty, Sullivan & Sullivan, and N. W. Rowell, for appellant.

Maxwell & Winter, Smith McPherson, and John N. Baldwin, for appellee.

GIVEN, J.

1. The record in this case is unavoidably voluminous, but it is not necessary that we consume space to set out even a summary of it. There is no question but that ordinance No. 128 was enacted by the defendant city, and accepted by the plaintiff company, and that, but for the matters alleged in these cases against the plaintiff, it would be entitled to the judgment and decree appealed from. Our inquiry being as to these matters, we will proceed to consider the claims of the appellant made in argument in the order made, and, in connection therewith, so much of the issues and proofs as may be necessary to an understanding of each question argued. We may say here that we have been very much aided in our investigation by the able opinion of the learned judge who heard the case.

2. Said ordinance provides, in effect, that plaintiff shall furnish said city and its inhabitants with “wholesome, clear, potable water for all purposes,” the city to pay rent for 140 hydrants at a rate of $7,800 per annum. Defendant states its first contention as follows: “The plaintiff is not entitled to recover, because the water furnished did not comply with the contract sued on.” The evidence shows quite conclusively that during a part of the year 1894, especially in the summer and fall months, the water was not as required, and that it contained such an amount of vegetable matter as to be unfit for drinking or domestic use. Defendant's counsel state the law to be “that one suing to recover the contract price must show full compliance with the contract, or such conduct on the part of the promisees as amounts to an acceptance of the thing done or furnished as being a full compliance therewith.” We have seen that the appellee did not fully comply with the contract as to the quality of the water. Therefore it only remains to inquire whether there was an acceptance of that furnished, as a full compliance with the contract. The facts are that appellee kept the required supply in quantity and pressure in the hydrants during all the year, and that the city received and used the supply for the purposes and in the manner prescribed. No complaint was made by any of the representatives of the city of the water supplied, as to quality or otherwise, and the city council voted orders, from time to time, to pay hydrant rents. On the 14th of January, 1895, the city council acted upon plaintiff's bill for hydrant rent for the last half of 1894. They did not even then, though this suit was pending, object because of the quality of the water, but, acting upon the theory that they could not pay more than was realized from the special tax for that purpose, voted to pay that amount. Carthan v. Lang, 69 Iowa, 384, 28 N. W. 650, is cited to show that neglect of duty on the part of the city's officers, or a failure to protest, will not constitute an acceptance. Other authorities are cited to the effect that the nature of the article deliveredmust be considered, and it is argued that under the circumstances of this case the city should not be held to have accepted the water as a compliance with the contract, because it did not complain. We recognize the force of the argument if acceptance rested merely on silence, but we think the city council was neither negligent nor silent, but, alive to the facts and the best interests of the city and its people, wisely concluded to receive the water as a compliance with the contract. Let us note briefly the circumstances that surrounded the parties. The remoteness of the city from any large stream or natural body of water rendered it difficult to procure a supply of water, and efforts that had been made by sinking wells had failed. These parties agreed to try the plan of making an artificial lake or reservoir to collect the water from small streams and surface drainage, and the plan was carried out at a large expense to appellee, and to the approval of the city. Owing to the protracted drought in 1894, the body of water accumulated in the reservoir became greatly reduced (though ample in quantity to supply the city), and the impurities therein more dense and difficult to remove. The city was without any other source of supply, and appellee without any other means of supplying it than from this lake. It was under these circumstances that appellee continued to furnish, and appellant to receive without complaint, water which the officers of both doubtless knew was not strictly of the quality contracted for. Without enlarging further upon the facts, we will say that we are satisfied that the city officers intended to and did in good faith accept the water furnished during 1894 as a substantial compliance with the contract. City of Burlington v. Burlington Water Co., 86 Iowa, 266, 53 N. W. 246, and other authorities, are cited to show that the city could have brought an action to compel specific performance of this contract. It does not follow from this that the city authorities might not, under the circumstances that existed, have accepted the water furnished as a compliance with the contract. The learned district judge found that, while appellee's appliances for purifying the water were sufficient under ordinary conditions, they were not under the conditions that existed during part of 1894; that to maintain the supply to the city the means in use had to be forced, and that additional means of filtering the water would have remedied that. These facts would be potent if the action was, as in the Burlington Case, to compel specific performance; but they do not tend to show that the city officers did not, by affirmative action, wisely accept the water furnished during 1894, as a substantial compliance with the contract. Appellant cites and relies largely upon Winfield Water Co. v. City of Winfield, 51 Kan. 104, 33 Pac. 714, to the effect that in an action upon a contract the plaintiff must prove a compliance, and cannot recover on the quantum meruit. This action is on the contract, and compliance has been proven by showing acceptance. That the city council might, in good faith, and in the interest of the city and its inhabitants, waive a strict compliance with the contract, and accept the water furnished, see 1 Beach, Pub. Corp. § 694; City v. Hays, 93 Pa. St. 72; Dill. Mun. Corp. § 477.

3. Said ordinance provides for levying a special tax in accordance with section 8, c. 78, Acts 14th Gen. Assem., and that, if the tax so levied and collected be insufficient at any time to pay the water rentals, as provided, as the same are earned, “then the city hereby agrees to annually or semiannually set apart in money out of its general funds and annual revenues a sufficient sum or sums to keep up said water fund so that said water rentals can be promptly paid when due.” The city realized $4,925.65 for this special levy for 1894, being $2,875.35 less than the amount agreed to be paid. Appellant contends that “the contract for rental is void, at least as to the excess beyond the proceeds of a five-mill tax upon the taxable property within the limits of benefit or protection.” Appellant insists that said section 8 limits the power of the city to contract for water rentals to the amount that may be realized from the special tax authorized, and appellee insists that the limitation is not upon the power to contract, but simply as to the amount for which, and the territory upon which, the special tax may be levied....