Lamar Water & Electric Light Co. v. City of Lamar

• Decision Date: 16 March 1897
• Citation: 39 S.W. 768,140 Mo. 145
• Parties: LAMAR WATER & ELECTRIC LIGHT CO. v. CITY OF LAMAR.
• Court: Missouri Supreme Court

39 S.W. 768

140 Mo. 145

LAMAR WATER & ELECTRIC LIGHT CO. v. CITY OF LAMAR.

Supreme Court of Missouri.

March 16, 1897.

MUNICIPAL INDEBTEDNESS — LIMITATIONS — CONTRACTS OF CITY — WATER SUPPLY.

1. A contract by a city to pay a fixed price annually for a certain period — such payment to be contingent on the supply furnished — does not create an indebtedness on the part of the city, within Const. art. 10, § 12, fixing the lawful limit of municipal indebtedness.

2. An ordinance authorized a city to contract with one S. or his assigns for a supply of water. S. assigned his interest, and the city contracted with plaintiff, his assignee, for the work. Held, in an action on the contract, an allegation of the assignment of his rights by the first contractor to the plaintiff was unnecessary.

3. In an action to recover rental of hydrants for 18 months, except a period of 2 months for which due credit was given by plaintiff, it appeared that defendant received the water as supplied, and made no objection to its quality until after action brought. Held, such acceptance precluded any later objection on the ground of inferior quality of the water.

In banc. Appeal from circuit court, Barton county; D. P. Stratton, Judge.

Action by the Lamar Water & Electric Light Company against the city of Lamar. Judgment for plaintiff. Defendant appeals. Affirmed.

E. L. Moore, H. C. Timmonds, and Cole, Burnett & Allen, for appellant. Thurman & Wray, for respondent.

BARCLAY, C. J.

This case was before the supreme court on a former appeal, reported in 128 Mo. 188, 26 S. W. 1025, and 31 S. W. 756. Upon the trial following the return of the case to the circuit court, there was a judgment for plaintiff. The defendant, the city of Lamar, is now the appellant. The pleadings were amended before the last trial. As some questions are raised in regard to them, it will be necessary to state their purport: The action is to recover rental of hydrants for 18 months from July 1, 1891, under the terms of an ordinance (No. 99) ratified by more than two-thirds of the voters of the city at an election held for that purpose in 1890. Pursuant to the ordinance the city entered into a contract, the chief terms of which will be given. The petition states the substance of the contract, in so far as its terms bear upon the breaches alleged, and, after specifying the particulars in which the contract has been broken, prays judgment for about $4,000, with 8 per cent. interest, as agreed. Three specific breaches of contract are charged, each covering 6 months of time, between July 1, 1891, and January 1, 1893. The answer, after a general denial, sets up several defenses relating to constitutional grounds of objection to the ordinance and contract. These will be mentioned again further on. The answer also contained another defense, the substance of which is that said ordinance provided that a constant and uninterrupted supply of clear and wholesome water should be furnished for the use of the city and its inhabitants; that there were months at a time between the 1st day of July, 1891, and the 1st day of January, 1893, when the waterworks did not furnish any water of any kind (all of which was at the time well known to plaintiff), and all the water which was furnished at any time was not clear or wholesome, but was muddy, filthy, foul, impure, unhealthy, and of no value whatever to the city or its inhabitants (all of which was all along known to plaintiff); that by the terms of said ordinance it was provided that the city should not pay or be liable for any hydrant rental or charge during any time that the waterworks should, by reason of being out of repair, or from any other cause, fail to furnish water as required by the provisions of said ordinance. The plaintiff's reply took issue on the new matter of the answer above recited. The reply then declared that "defendant, without notice to plaintiff that said water furnished was not satisfactory, at all times used and received the benefits of said water so furnished, and that it ought not now to be heard to complain of the character of water furnished by this plaintiff." The cause was tried before Judge Stratton and a jury. The ordinance (99) was put in evidence by plaintiff. It authorized the city of Lamar to contract with Messrs. Snyder & Guinney, "their associates or assigns," for a term of 20 years, touching the exclusive right to erect and operate waterworks "for supplying water from the North Fork of Spring river, at a point north or northeast of this city, or from any other source of supply of water, not polluted by offensive matter of any kind, for domestic, manufacturing, fire extinguishing, and the various other uses of water that may be needed in the said city." Various sections of the ordinance describe the plant to be erected for supplying water, and the mode of distributing it within the city. A steel standpipe or tower, 125 feet high, is provided for. The third section stipulates for certain kinds of pumping machinery, with a capacity of not less than "one million gallons per day, and sufficient to supply all the clear, pure and wholesome water that may be required for the various uses in the said city during the continuance of this ordinance. * * * The reservoir and filtering basin at the source of supply shall be latest of modern filtrations, and shall have a storage capacity at all times necessary to supply the demands, and shall meet with the requirements of the city," — to quote the ordinance literally. The fifth section requires the location of 60 fire hydrants at various points in the city, as designated by the board of aldermen, and that the hydrants be kept in repair and supplied with water by the contractors. Section 7 contains an agreement by the city to pay for the use of the city hydrants (60 in number) "for the supplying of water for the extinguishing of fires, flushing of gutters and sewers, and fire department uses, the sum of fifty dollars per annum for each and every hydrant so erected for the original sixty hydrants," etc.; and in consideration of the above the contractors bound themselves and their assigns "to furnish for the use of said city, and the inhabitants thereof, a constant and uninterrupted supply of clear and wholesome water during the whole term of this contract, and in quality sufficient at all times and seasons to supply the reasonable needs and requirements of said city and inhabitants, in conformity, in all respects, with the provisions of this ordinance." The ninth section contains an agreement by the city to pay 8 per cent. per annum on money due under the contract and unpaid. The seventeenth section provides for a fire test, which, when satisfactorily made, shall inaugurate the actual effectiveness of the contract as to rentals. And from that time the contractors or their assigns are to "continue and furnish without default a constant and uninterrupted supply of clear and wholesome water, as heretofore set forth. Failing so to do, the said city may take possession, temporarily, of said works, machinery and appurtenances, and operate the same until insured that the works will be efficiently operated by the said A. H. Snyder and J. Guinney, their associates and assigns, and the...