Muscatine Water Works Co. v. Muscatine Lumber Co.

• Decision Date: 14 May 1892
• Parties: MUSCATINE WATER WORKS CO. v. MUSCATINE LUMBER CO.
• Court: Iowa Supreme Court

85 Iowa 112

52 N.W. 108

MUSCATINE WATER WORKS CO.

v.MUSCATINE LUMBER CO.

Supreme Court of Iowa.

May 14, 1892.

Appeal from district court, Muscatine county; C. M. WATERMAN, Judge.

Action to recover an amount alleged to be due by virtue of an agreement to extend the system of water works of plaintiff to certain premises occupied by defendant. There was a trial by the court without a jury, and a judgment for plaintiff. The defendant appeals.Richman & Burk and E. F. Richman, for appellant.

J. Carskaddan, for appellee.

ROBINSON, C. J.

In the year 1882, plaintiff owned and operated a system of waterworks in the city of Muscatine, and defendant owned a lumber mill and lumber yard situated on blocks 18, 19, and 20 in the same city, between Front and Second streets, and on some lots north of Second street, opposite the blocks specified. On the 16th day of March, 1882, the board of directors of plaintiff took action, shown by the minutes of its proceedings, as follows: “Resolved, that the street mains be extended on Second and Cypress streets, * * * (when authorized by the city council:) * * * provided the Muscatine Lumber Company will, by proper instrument, entitled to be recorded, covenant and agree to pay to this company the sum of $250 per year for ten years succeeding the date when the water is turned on: * * * and provided no liability be incurred by this company for any failure to keep a constant supply of water in such extension.” On the 29th day of the same month the board of directors of defendant, as shown by the minutes of its proceedings, took the following action: “Mr. P. Musser reported that the water works company would extend the pipes, hydrants, and so forth, as asked for; the Muscatine Lumber Company to pay the water works company $250 per annum for ten years. Dr. Robertson moved that above proposition be accepted by the board. Same was unanimously agreed to. It was resolved that the whole matter of water works be left with the executive committee to arrange all details and special agreements with a like committee on the part of water works company.” On the 11th day of the next month, plaintiff was notified of the acceptance of its proposition, and a committee was appointed to draft a contract for execution by defendant. On the 25th day of that month, the committee reported an agreement for execution, which after amendment read as follows: “Whereas, it is proposed by the Muscatine Water Works Company (provided said company be duly authorized so to do by the city council of the city of Muscatine) to extend the street main or pipe on Second street in said city from Oak to Cypress street, and thence on Cypress to Front street, and place on such extension four fire hydrants for fire protection, to wit, one at the intersection of Second and Spring streets, one at intersection of Second and Poplar, one at intersection of Second and Cypress, and one at intersection of Cypress and Front streets; and whereas, such extension will be for the manifest advantage and benefit of the Muscatine Lumber Company, in affording protection from fire to its premises and property: Now, therefore, it is hereby covenanted and agreed by the said Muscatine Lumber Company to and with said water works company that in case the above-named extension is made, and hydrants placed, the said lumber company shall and will, at the end of every year from the date at which the said extension is completed, and water turned on the same, ready for use for fire protection, at and from said hydrants, pay into the said water works company the sum of two hundred and fifty dollars, ($250.00,) such yearly payments to continue and be made for the full term of ten (10) years from the aforesaid date. And the said water works company shall incur no liability to the said lumber company for any failure to constantly keep and have a suppy of water in the pipes and hydrants of said extension. In witness whereof, the said Muscatine Lumber Company has caused this instrument to be subscribed by the president and attested by the secretary thereof, this 29th day of April, 1882. J. S. PATTEN, Pres't. Attest: S. B. COOK, Sec'y.”

It appears that the agreement as amended was signed in behalf of the defendant, by its president and secretary, on the 29th day of the month; and on the 9th day of the next month plaintiff was informed that it had been executed, and directed its executive committee to order the necessary material for the extension. The extension was completed, and the hydrants placed as required by the agreement, in the spring or early in the summer of that year. The defendant paid to plaintiff the annual charge of $250 from the time the extension was completed, excepting for a short time in the year 1883 or 1884...