Lamar Water & Electric Light Company v. City of Lamar

• Decision Date: 15 June 1897
• Citation: 39 S.W. 768,140 Mo. 145
• Parties: Lamar Water & Electric Light Company v. City of Lamar, Appellant
• Court: Missouri Supreme Court

39 S.W. 768

140 Mo. 145

Lamar Water & Electric Light Company v. City of Lamar, Appellant

Supreme Court of Missouri

June 15, 1897

Appeal from Barton Circuit Court. -- Hon. D. P. Stratton, Judge.

Affirmed.

E. L Moore, John B. Cole, H. C. Timmons and Burnett & Allen for appellant.

The only method whereby a city of the fourth class can contract with any person, company, or association to furnish water for the use of the city and its inhabitants is "by ordinance." R. S. 1889, sec. 1589. (2) Where the plaintiff is an assignee, the petition must allege the fact of assignment. 1 Estee's Pleadings, p. 255; Prindle v. Caruthers, 25 N.Y. 426; White v. Brown, 14 How. 282; Adams v. Holley, 12 How. 330. (3) Plaintiff being an assignee of Snyder and Guinney, and relying upon their assignments, should have pleaded the same. Failing to do so, the court committed error in admitting over defendant's objections, evidence on part of plaintiff concerning that assignment. (4) The court committed error in excluding the testimony of defendant's witnesses, Warden, McQueen, and Adams, by whom defendant sought to prove that at no time during the period covered by this suit did plaintiff's waterworks furnish any clear and wholesome water. If the waterworks failed to furnish clear and wholesome water for the use of the city and its inhabitants, the pay should stop until such water was furnished. (5) The court committed error in giving plaintiffs first instruction. It ignores that part of the contract which makes the consideration for the renting an agreement to furnish for the use of the city and the inhabitants thereof a constant and uninterrupted supply of clear and wholesome water. It also submits to the jury the question as to whether the hydrants were supplied with sufficient water, after refusing to allow defendant to introduce any evidence on that point. (6) The court committed error in giving plaintiff's second instruction. It misconstrues section 18 of the ordinance, when it tells the jury that defendant is required to notify plaintiff in writing when, from any cause, plaintiff shall fail to furnish water in the quantity and quality required by the contract. It is also erroneous in directing the jury to find that the water did comply with the terms of the contract, and was satisfactory to defendant, and defendant is bound to pay the contract price therefor, for all the time such notice in writing was not furnished to plaintiff. (7) The court committed error in refusing defendant's first instruction in the nature of a demurrer to the evidence, offered after all the evidence was in. (8) The court committed error in refusing defendant's second and third instructions. The receipts and expenditures of the city for the various years show that the expenditures in the years 1891 and 1892 exceeded the receipts. The forty cents water tax provided in bill number 99, if the whole thereof was collected without a cent of expense, would not raise sufficient revenue to pay the $ 3,000 annually falling due in 1891 and 1892. (9) The contractual ordinance is in violation of the Constitution of this State, and is therefore null and void. First. It provides for an extra water tax of forty cents on the $ 100 over and above the fifty cents authorized for ordinary city purposes, and is therefore in violation of the tax rate limit in section 11, article 10, of the Constitution. Second. It creates an indebtedness to an amount exceeding, in the years 1891 and 1892, the income and revenue provided for those years, without providing for the collection of an annual tax sufficient to pay the same as it falls due. Sec. 12, art. 10, of the Constitution. (10) The judgment rendered in this case is a general judgment, enforcible and collectible out of the ordinary revenues of the city.

Thurman & Wray for respondent.

(1) Before the city was authorized to enter into this contract with respondent under the ordinance, appellant must have determined for itself that respondent was either an associate or an assign of A. H. Snyder and J. Guinney and it was not necessary to plead the evidence constituting respondent an assign and authorizing appellant to so contract with it. The substantive facts are all that is necessary to be pleaded and that was done in this petition. Stewart v. Clinton, 79 Mo. 608, and authorities cited. A general objection to the introduction of testimony is no objection. Seligman v. Rogers, 113 Mo. 654; Gas Light Co. v. City of St. Louis, 46 Mo. 121; Patterson v. Camden, 25 Mo. 13; Jones v. DeLassus, 84 Mo. 545; Brewing Co. v. Sedalia Water Co., 34 Mo.App. 56; Deutmann v. Kilpatrick, 46 Mo.App. 627. This contract authorizes the city to take charge of the waterworks plant and machinery at any time when respondent fails to furnish an "uninterrupted supply of clear and wholesome water" and to operate it until satisfied that respondent will efficiently operate the same. According to the theory of appellant it may go along using the water for the purposes contemplated by the contract, not intending to pay for it, or not required to pay for it, and step in and take charge of the works without a word of warning to this respondent, without even an intimation that the water service was not in all respects as required by the terms of the contract. No such unjust and unreasonable construction is dictated by the language of the contract. (2) Appellant after having used the water from the hydrants for the purposes contemplated by contract can not now be heard to say the water was not good and therefore it ought not to pay for it. A party to a contract can not receive its benefits without complaint and at the same time avoid its burdens. Water Co. v. City of Aurora, 129 Mo. 584; Gas Light Co. v. City of St. Louis, 46 Mo. 121. (3) The city's ordinary current expenses together with the obligations for water and light exceed the "income and revenue" of the city. The only items of ordinary current expenses shown by this record is the salaries of officers of the city aggregating $ 1,694. The income and revenue of the city based upon a tax levy of ninety cents authorized in the city of Lamar for 1891 would yield the city $ 9,632 and for 1892, $ 10,351, with which to pay the official salaries, the expenses for light and water aggregating $ 6,196, leaving on any theory a balance of from $ 3,000 to $ 4,000 in the treasury to be used for any purpose that the city might see proper. Lamar Water & Electric Light Co. v. City of Lamar, 128 Mo. 188; Aurora Water Co. v. City of Aurora, 129 Mo. 540. (4) This contract does not charge any special fund with the payment of the debt to be created by it. Bryson v. Johnson Co., 100 Mo. 76. (5) The statute of limitation will have run against the taxes of 1891 and probably 1892 before any process can be enforced against the city compelling it to collect the same as required by law and we have no doubt that this very object is intended to be accomplished by this appeal, the city recognizing that an appeal will delay final judgment against it.

Barclay C. J. Gantt, Sherwood, and Robinson, JJ., concur in the foregoing opinion. Macfarlane, Burgess, and Brace, JJ., "concur in what is said in the opinion, but not in affirming the judgment".

OPINION

In Banc.

Barclay, C. J.

This case was before the Supreme Court on a former appeal, reported 128 Mo. 188 (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 eighteen 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 eight per cent interest as agreed. Three specific breaches of contract are charged, each covering six 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 first day of July, 1891, and the first 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...