Eureka Fire Hose Mfg. Co. v. City of Portageville

• Decision Date: 16 June 1937
• Docket Number: No. 5765.,5765.
• Citation: 106 S.W.2d 513
• Court: Missouri Court of Appeals
• Parties: EUREKA FIRE HOSE MFG. CO. v. CITY OF PORTAGEVILLE.

106 S.W.2d 513

EUREKA FIRE HOSE MFG. CO. v. CITY OF PORTAGEVILLE.

No. 5765.

Springfield Court of Appeals. Missouri.

June 16, 1937.

Appeal from Circuit Court, New Madrid County; James M. Reeves, Judge.

"Not to be published in State Reports."

Action by the Eureka Fire Hose Manufacturing Company against the City of Portageville. From an order for defendant, plaintiff appeals.

Affirmed.

C. G. Shepard, of Caruthersville, for appellant.

O. A. Cook, of Portageville, and Ward & Reeves, of Caruthersville, for respondent.

ALLEN, Presiding Judge.

This is an appeal from an order of the circuit court of New Madrid county, granting a new trial to the respondent, City of Portageville.

The petition was in three counts. The first count alleged that the defendant City of Portageville, on September 7, 1925, by its contract in writing, duly entered into with the plaintiff, promised and agreed to purchase of the plaintiff 150 feet of fire hose for the sum of $150, payable one year from date, with interest at the rate of 6 per cent. per annum; that the fire hose was delivered and received and used by the defendant city; and that the defendant had refused to pay therefor.

For the second count plaintiff sues for $150, the price of 150 feet of fire hose, purchased on the 18th day of November, 1927.

For the third count, plaintiff sues for 200 feet of fire hose at $1.20 per foot, or $240.

On each of these items the plaintiff pleaded full performance of its part, by delivering the hose, and that the defendant in each case received and used the hose.

Defendant's answer sets up that the City of Portageville is a municipal corporation, and a city of the fourth class, and denies that any person or officer of the defendant city was authorized to execute the contracts entered into, contracting with the plaintiff for the purchase of the fire hose.

Plaintiff, by reply, sets up that the defendant city, by reason of having received and used the fire hose in question, was estopped to assert as a defense that the hose was ordered without authority.

Plaintiff and defendant entered into a stipulation of fact, as follows:

"It is stipulated and agreed by and between the plaintiff and defendant that the following statement of facts may be introduced and used as evidence on the trial of this cause, both plaintiff and defendant reserving to themselves the right to introduce such other or further evidence as they may deem necessary on the trial of said cause.

"It is agreed that on the 7th day of September, 1927 the City of Portageville, by and through B. C. Grady, Superintendent of water works, ordered of plaintiff the hose mentioned in the first count in plaintiff's petition; that no ordinance was passed by the City, authorizing the superintendent of water works to make said order; that no board meeting was had in connection therewith, neither was there an order from the board of aldermen or from the city council authorizing the making of the order.

"That B. C. Grady, superintendent of water works, spoke to S. S. Thompson, the then mayor of the City of Portageville, about the purchase of said hose in question and the mayor told him to use his best judgment about the matter; that after talking with the mayor as above mentioned, the said Grady as superintendent of water works signed the order for said hose.

"That later said hose was shipped by the plaintiff to the City of Portageville, delivered in due time and used by the City.

"It is further agreed that the order called for 150 feet of Fortress brand of fire hose at $1.00 per foot, which said order on the part of the plaintiff was signed Eureka Fire Hose Mfg. Company by H. F. Gobert, Mgr., by H. J. Enochs, special representative.

"That on the 18th day of November, 1927 the City of Portageville, by and through B. C. Grady, its superintendent of water works, placed another order with the plaintiff for 150 feet of its Fortress brand of fire hose at $1.00 per foot, which said order was signed by said Grady as superintendent of water works for the City and signed Eureka Fire Hose Mfg. Company by H. F. Gobert, Mgr., by H. J. Enochs, special representative.

"That the same conditions prevailed as to the lack of ordinance being passed in connection with the order of November 18, as described and mentioned in connection with the order of September 7.

"That on the 10th day of September, 1928 the City of Portageville by and through B. C. Grady, who was the then acting superintendent of water works, and J. D. Parker, who was then an alderman of first ward in said City, ordered of plaintiff 200 feet of Trogan Jacket brand of fire hose at $1.20 per foot, which said order was signed by the plaintiff Eureka Fire Hose Mfg. Company by H. F. Gobert, Mgr., per C. W. Straub, special representative, which said order was signed on the part of defendant by B. C. Grady and J. D. Parker; that there was no meeting of the council in connection with making the purchase, no ordinance passed authorizing the purchase in either of said orders.

"That the hose ordered in each instance, however, was shipped in due time to the City of Portageville, and received and used by the City."

The plaintiff then introduced in evidence a letter from the city attorney, asking for further time in which to pay this account, which letter was as follows:

                                     "Portageville, Mo
                                     "May 3, 1932
                

"Honorable Charles G. Shepard, "Attorney at Law, "Caruthersville, Mo.

"My Dear Friend Charles:

"A recent letter of yours directed to Mayor S. S. Thompson relative to the claim that you hold or sent you by the claimant, Eureka Fire Hose Manufacturing Company vs City of Portageville, Missouri, has been handed to me to be answered.

"In the first place, on the 12th day of January, 1932 the Portageville Bank of Portageville, Missouri, closed its doors and is now in the hands of the Finance Commissioner of the State of Missouri for liquidation. We have filed the proper papers for our money and at the same time are preparing to sue the Treasurer and his sureties along with the claim against the bank. We are trying to force a preferred claim.

"All the money we had then was tied up and it was approximate of $4,000.00. We want to say in passing times are now hard and with our money tied up, we are not able to go any place in payment of debts. We don't want to beat any debts that we owe and want to pay them, but if forced to a suit, we will have to defend against suits. So we ask your indulgence for a while and this fall, we may see the light in the clearing to help us out of our trouble.

                    "Very respectfully
                                         "O. A. Cook."
                

Defendant offered section 16 of the Ordinance No. 267, at page 50 of Ordinance Book No. 3, which was as follows:

"Section 16. — Duties of Superintendent. — It shall be the duty of the Superintendent of Waterworks and Sewers, in conjunction with the waterworks committee to take and have charge and management of the City Waterworks, and any and all property pertaining thereto; and it shall be his duty to protect the same from unnecessary damage or loss, and keep such waterworks in good running order and repair; and he shall personally superintend and direct all work pertaining to the further extension of said waterworks system, and he shall make a monthly report to the Board of Aldermen, or oftener when required, of all his acts and doings in and about the same, and such report shall show the kind and amount of materials used, and the cost thereof and expenses attending to the work; and he shall present to the Board of Aldermen a correct map or...