Munn v. Town of Drakesville
| Decision Date | 02 May 1939 |
| Docket Number | 44066. |
| Citation | 285 N.W. 644,226 Iowa 1040 |
| Parties | MUNN v. TOWN OF DRAKESVILLE. |
| Court | Iowa Supreme Court |
Appeal from District Court, Davis County; Charles F. Wennerstrum Judge.
Action on claim for electric light service. At the conclusion of all the evidence defendant's motion for a directed verdict was sustained, and plaintiff appeals. The opinion states the facts.
Affirmed.
Heinrich C. Taylor, of Bloomfield, and W. W. Rankin, of Ottumwa, for appellant.
W. R Fimmen and Buell McCash, both of Bloomfield, for appellee.
This is an action which was commenced August 28, 1933, by A. F. Munn, plaintiff, against the town of Drakesville, Iowa, in which he endeavored to recover upon an alleged contract dated October 4, 1926, for services rendered in furnishing electric lights to the streets of the town from March 1, 1929, to August 31, 1933. The case was brought on for trial in 1936 at the September term of the Davis county court, and assigned for trial on September 30. After the jury was impanelled and on the next day, an amendment was filed to plaintiff's petition, without leave of court, increasing the amount demanded to the sum of $2982.75.
The original action was on a contract, and the amendment thereto was on quantum meruit and increased the amount claimed to be due on contract. On motion the court struck out the amendment. This action of the court is one of the grounds of plaintiff's complaint.
The plaintiff assigns as error this ruling of the court. We are satisfied that the court was justified in this ruling. The record shows that the petition had been on file for practically three years, that the pleadings were made up, that the jury had been impanelled and all parties were apparently ready to proceed with the trial. The objection made to the filing of count II of plaintiff's petition seemed to the court to be valid. It would have been unjust to the defendant to have had the cause continued, and it was not in position to ask for a continuance. Witnesses were in attendance, and it appeared to the court that their attendance at another time would have been not only difficult to secure, but also uncertain. The amendment was filed without leave of court, and to meet the claim made in such amendment would have necessitated other testimony. We think the court properly exercised its discretion in refusing the amendment at so late a period in the trial. The granting or refusing of such a privilege is generally considered to be within the sound judicial discretion of the court. Code of Iowa 1935, sections 11182, 11140. The ruling of the court on permission or refusal to amend will not be disturbed on appeal without a showing of abuse of discretion. McKeown v. McKeown, 220 Iowa 791, 263 N.W. 266; Cary-Platt v. Iowa Elec. Co., 207 Iowa 1052, 224 N.W. 89, and cases cited. We think the court was right in striking the entire amendment for the reasons above given.
The answer of defendant admits the signing of the instrument, copy of which is attached to plaintiff's petition, but alleges that it is invalid, that the defendant corporation had no power to enter into a contract of the nature pleaded; further alleges that the rate was reduced after the signing of the instrument and that a controversy arose between the plaintiff and defendant, and about October 14, 1929, a compromise settlement was effected. The answer pleads accord and satisfaction, and that plaintiff is estopped to bring this action.
At the close of all the testimony defendant filed a motion for a directed verdict, on various grounds, including insufficiency of evidence; that no action could be maintained on the alleged contract on account of lack of legal authority of the town to enter into a contract; because such contract was prohibited by law; because not enforceable for want of mutuality; and on the further ground that the evidence showed a resolution by the town for the termination of the contract, and that an accord and satisfaction was entered into between the parties on October 14, 1929, showing payment in full to said A. F. Munn, and a new agreement for lights supplanting and abrogating the old agreement.
This motion for directed verdict was sustained by the court, and from this action of the court the plaintiff appeals.
The validity of the ordinance adopted in 1922 has been discussed quite fully by the parties to this proceeding. The contract which was entered into after the franchise on October 4, 1926, provided for lighting the streets for " a term of fifteen years at $2.00 per bulb, with lights not less than twelve," and other provisions as to breakage and for the time when lights should be in operation.
Many authorities are cited and a great deal of space is consumed on the question of whether or not the town could enter into such a contract as is here referred to. We do not think it necessary for the purposes of this case to review the authorities cited on both sides, or to consider the validity of the ordinance and the contract, which, to say the least, is doubtful.
The facts, so far as they are essential to this opinion and can be gathered from the abstract and amended abstract in this proceeding, show that in 1922 one A. F. Munn was the proprietor of a garage in the town of Drakesville (an incorporated town), and had been for some time operating a small electric light plant. In 1921 the electors of the town voted to authorize the town council to grant a franchise to said Munn, and in the spring of 1922 an ordinance (No. 45) was passed granting such franchise. Some four years after this ordinance was passed an arrangement was made between the plaintiff and the officers of the defendant, by a written instrument in the form of a contract, for the lighting of the streets of the town by not less than twelve street lights, at the rate of $2 per month per light, and also such incidental charges as might be necessary for the replacement of bulbs, etc. From the time of the execution of such agreement until February 1929, the streets were lighted by the plaintiff under the agreement mentioned.
In 1929 the plaintiff cut his rates to private consumers 60 per cent and the council of the defendant town then demanded that its rates be also cut. There was some disagreement between the plaintiff and defendant's officers, and the bills of the plaintiff were refused by the council. On March 4, 1929, a resolution was adopted by the council which was, in substance, that the former council could not bind the present council, and that Munn having reduced his rates for electric lights to private consumers, the council demanded the same rate reduction for lights used for street lighting in the town, and in such resolution the council agreed to pay the reduced rate during the life of the existing council; and in the event that plaintiff or his company did not accept the agreement, he was notified to discontinue the street lights. A copy of this resolution was given to the plaintiff. No acceptance or formal declination was given by the plaintiff to the defendant, but plaintiff continued to present his bills for street lighting at the old rate, which bills were rejected. In May the council refused to allow a bill at the former rate (although allowing bills for breakage of bulbs) and plaintiff was notified by the mayor, pursuant to order of the council on May 6, to discontinue the service. On June 3 the plaintiff again tendered a bill for service for the three preceding months, and again on July 1, August 1, and until October 1, on which date a bill covering the seven months...
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