Daly v. City of Carthage

• Decision Date: 02 May 1910
• Citation: 143 Mo. App. 564,128 S.W. 265
• Parties: DALY v. CITY OF CARTHAGE.
• Court: Missouri Court of Appeals

128 S.W. 265

143 Mo. App. 564

DALY v. CITY OF CARTHAGE.

Springfield Court of Appeals. Missouri.

May 2, 1910.

1. CONTRACTS (§ 173)—CONSTRUCTION — DEPENDENT OR INDEPENDENT COVENANTS—INTENTION OF PARTY.

In determining whether covenants in a contract are dependent or independent, the intention of the parties must govern, to be determined according to the ordinary rules of construction.

2. CONTRACTS (§ 173)—CONSTRUCTION —"DEPENDENT OR INDEPENDENT COVENANTS" — COMPENSATION.

Where a breach of a covenant in a contract may be fully compensated by payment of damages, it will be held an independent covenant, but, if it cannot be so compensated, it is dependent, and performance is a condition precedent which must be shown before recovery can be had upon the contract.

3. WATERS AND WATER COURSES (§ 203) — MUNICIPAL WATER SUPPLY — CONTRACTS — CONSTRUCTION.

In a contract by which a city granted a franchise to install a water supply plant, and agreed to pay a certain hydrant rental for water furnished to the city, the contract and rental being subject to conditions to be performed by the grantee of the franchise, consisting of the addition of various improvements to the plant, the covenants to make such improvements were dependent covenants, and their performance was a condition precedent to the recovery of the rentals.

4. WATERS AND WATER COURSES (§ 203) — MUNICIPAL WATER SUPPLY—CONSTRUCTION OF CONTRACT.

In a contract whereby a city granted a water franchise and agreed to pay a hydrant rental for water furnished to the city, it being understood that, for the enforcement of the performance of conditions by the grantee of the franchise, the city might suspend payment of hydrant rentals for breach thereof upon giving prescribed notice, where the city gives the necessary notice, the holder of the franchise cannot recover the rentals without showing the performance of the conditions.

5. WATERS AND WATER COURSES (§ 203) — MUNICIPAL WATER SUPPLY — CONTRACT — WAIVER OF RIGHTS.

That a city continued to accept and use water furnished by the owner of a water franchise did not amount to a waiver of its rights under the contract granting the franchise, and authorizing the city to suspend payment of rentals in case of nonperformance of conditions by the holder of the franchise; the agreement to pay the rentals and the conditions imposed on the holder of the franchise being dependent covenants.

6. WATERS AND WATER COURSES (§ 203) — MUNICIPAL WATER SUPPLY — LIABILITY OF CITY—EFFECT OF CONTRACT.

A city cannot be held liable for water furnished to it, regardless of a contract making its liability dependent on the performance of conditions by the holder of the water franchise, where it does not seek to repudiate the debt, but only to suspend payment until the holder of the water franchise purges himself of his default.

7. WATERS AND WATER COURSES (§ 188) — MUNICIPAL WATER SUPPLY — CONTRACTS — WAIVER OF PROVISIONS.

Where a city ordinance granting a franchise to maintain a water plant provided that, if the holder of the franchise within a given time should not expend $100,000 in improving and extending the system, the franchise should be null and void, the failure of the holder of the franchise to make the improvements did not ipso facto annul the contract, and the city's long acquiescence without taking steps to secure the annulment waived the provision.

8. WATERS AND WATER COURSES (§ 203) — MUNICIPAL WATER SUPPLY — CONTRACTS — WAIVER OF PROVISIONS.

A city's waiver of the right to insist on an annulment of a water franchise for failure to make improvements of a specified value did not waive its right under the contract to suspend the payment of hydrant rentals for failure of the holder of the franchise to comply with conditions of the contract.

9. APPEAL AND ERROR (§ 1028) — REVIEW — HARMLESS ERROR.

In an action against a city for hydrant rentals for the city water supply, error in holding that plaintiff's water franchise was forfeited by his failure to comply with conditions of the contract was harmless, where, under the contract, the city had the right to suspend payment of hydrant rentals for failure of plaintiff to perform the conditions, so that the verdict for defendant was correct.

Appeal from Circuit Court, Jasper County; Henry L. Bright, Judge.

Action by M. B. Daly against the City of Carthage. From a judgment for defendant, plaintiff appeals. Affirmed.

McReynolds & Halliburton and A. L. Thomas, for appellant. R. A. Hockensmith and Perkins & Blair, for respondent.

COX, J.

The original plaintiff in this case was the Carthage Water & Power Company, and by consent this plaintiff has been substituted as party plaintiff as assignee of the water and power company. Plaintiff seeks by this action to recover water rents alleged to be due him from the city of Carthage under contract described as Ordinance No. 665 of said city for the period of time extending from January 1, 1904, to January 9, 1905, for which he alleges there is due the sum of $3,065.77. The answer admits the contract, and pleads the ordinance in full, and alleges that plaintiff cannot recover in this action because his assignor has not complied with its part of the contract, and that defendant had suspended payment of hydrant rentals, as provided by the ordinance, and had notified plaintiff of that fact as required, and alleges breaches of the contract by plaintiff's assignor as follows: (1) Failure to put in a new first-class pump. (2) Failure to put in a 16-inch iron intake pipe, and install a filter system as provided by the ordinance. (3) Failure to put in additional mains, and thus increase the capacity for water supply. (4) Failure to put in at least 10 more district cut-offs, so that smaller areas could be isolated in making repairs. (5) Failure to begin work in 30 days and prosecute the same with diligence to completion. (6) Failure to maintain the plant in best and highest condition, and to supply the city with ample pressure, and failure to supply consumers in all parts of the city where mains are laid, and failure to put in, from time to time, necessary improvements and additional works. (7) Failure to purchase and place in the city, or adjacent thereto, new material to be used in making improvements, as contemplated by the contract, to the value of $10,000. (8) Failure to expend within 20 months $100,000 in improving and extending the system. The evidence on the part of defendant tended to show that plaintiff's assignor had failed in nearly all of the particulars above described, and that notice, as provided by the ordinance, had been given to it that the city would not pay the hydrant rentals until the conditions were complied with.

Section 1 of the ordinance provides for hydrant rentals to be paid by the city, and then closes with the following provision: "This contract and rental, however, shall and is hereby made subject to the conditions, requirements and covenants to be performed on the part of said J. T. Linn, or his assigns, to wit." Section 2 provides that: "In consideration of the rental above provided for, to be paid by the city to the said J. T. Linn, or his assigns, the said J. T. Linn, or his assigns, shall, and by accepting this ordinance and contract does, agree and undertake to extend, reconstruct and improve the waterworks plant as follows." Then follows the provision requiring Linn or his assigns to do the things above set...