The City of Baxter Springs v. The Baxter Springs Light and Power Company

• Decision Date: 08 March 1902
• Docket Number: 12,474
• Citation: 64 Kan. 591,68 P. 63
• Parties: THE CITY OF BAXTER SPRINGS v. THE BAXTER SPRINGS LIGHT AND POWER COMPANY
• Court: Kansas Supreme Court

68 P. 63

64 Kan. 591

THE CITY OF BAXTER SPRINGS v. THE BAXTER SPRINGS LIGHT AND POWER COMPANY

No. 12,474

Supreme Court of Kansas

March 8, 1902

Decided January, 1902.

Error from Cherokee district court; A. H. SKIDMORE, judge.

Judgment affirmed.

SYLLABUS

SYLLABUS BY THE COURT.

1. CITY AND CITY OFFICERS -- Contract with Light Company. An ordinance of a city, duly passed and published, conferring certain privileges and imposing certain duties upon an electric light company which under the charter of the city it had power to confer, the terms of which ordinance were accepted by the company as therein provided, constitutes a contract between the city and such company, binding upon both.

2. CITY AND CITY OFFICERS -- Proof of Acceptance by Light Company. To show its acceptance of the terms of such ordinance, the company may introduce a written receipt signed by the city clerk, that a written acceptance of the terms thereof had been left with him, the ordinance itself providing that the company should file with the clerk of the city a written acceptance of the terms thereof within a given time.

3. CITY AND CITY OFFICERS -- Designation of Number and Location of Lights not a Contract. Such ordinance provided that the company should furnish at a price therein named as many lights as the city might order, to be located where it should order, within certain limits. Held, that such order need not be expressed in the form of an ordinance, although the charter of the city provides that it can only contract by ordinance, the mere designation of number and location of lamps not being a contract.

4. CITY AND CITY OFFICERS -- Estoppel Applies to Municipalities. An infirmity in an executory contract which might be taken advantage of by its repudiation before execution will not avail to excuse from payment for benefits received thereunder after execution. This rule applies to a municipality as well as to an individual.

5. CITY AND CITY OFFICERS -- Contract -- Oral Evidence. It is competent to show the acts of the parties to a contract ambiguous in its terms, as tending to explain their understanding thereof. SYLLABUS BY THE COURT.

W. R. Cowley, for plaintiff in error.

E. M. Tracewell, and Blue & Glasse, for defendant in error.

CUNNINGHAM, J. SMITH, GREENE, JJ., concurring.

OPINION

CUNNINGHAM, J.:

This was an action by the Baxter Springs Light and Power Company against the city of Baxter Springs to recover for electric-light service furnished to the city upon its streets. After the issues were joined the case was referred to a referee to make findings of fact and of law. This he did, and to several of these findings exceptions were taken and filed on the part of the city, which exceptions were nearly all overruled by the trial court, and judgment rendered for the company and against the city on the findings of the referee. The errors complained of arise out of the overruling of these exceptions. They will be considered in the order in which they were presented.

The facts necessary to a proper understanding and discussion of them are as follows: On December 20, 1888, the city council passed ordinance No. 52, by which the company was authorized to erect, operate and maintain a system of electric lights in said city. This ordinance also granted to it the right to use sufficient water-power from a dam owned by the city across Spring river, for the purpose of operating such light and power plant. The sections of the ordinance involved in this discussion are as follows:

"SEC. 3. That in consideration of the benefits to be derived by the said city of Baxter Springs by said company constructing and establishing said light and power plant, the said city of Baxter Springs hereby grants to the said company the right to use fifty (50) horsepower to operate their machinery, provided there shall remain from the wheels now in and running at the dam across Spring river owned by said city that amount of horse-power over and above what said city already granted to Messrs. Allen Brothers and Messrs. Willard and Morrison; if, however, said wheels are found to be insufficient to furnish said power, then the grantees shall have the right to place a water-wheel in the west pit of the forebay and connect the same with the main shaft now in. It being agreed that said city assumes no liability or expense in putting in or maintaining said power; and in case it becomes necessary at any time to repair the dam or any part thereof, or any appurtenances thereto, in order to maintain said power at said dam in running order, the said grantees agree to pay for said repairs the ratio that their power bears to the whole of motor power used at said dam; also, the said city of Baxter Springs hereby grants to said company the right to erect and maintain on their ground at or near the main shaft at said dam such buildings and make such connections as may be necessary to operate and carry on said light and power plant with the right of way to and from said ground."

"SEC. 6. In further consideration of the rights and privileges therein granted, said grantees agree to furnish and maintain free of charge lights for the city hall, to be located and adjusted in such manner as shall fully light said hall for all kinds of entertainments and amusements, whether of public or private entertainment, conducted by said city or private individuals, by consent or authority of said city, and council chamber during the continuance of this franchise, said city to be at the expense of maintaining and keeping in order said lamps after they have been placed in position; also said grantee is to furnish said city as many incandescent lights as said city may order, to be located by said city within one block of the lines of said wires, whenever said city shall notify said light and power company that they desire the same, said lights to be put up and maintained during the existence of this franchise and whenever so ordered. Said city hereby agrees to pay said company, its successors or assigns, the following rates:

"Lamps of 16 candle-power, $ 10.80 each per year.

"Lamps of 29 candle-power, $ 13.20 each per year.

"Lamps of 32 candle-power, $ 15.60 each per year.

"Payments to be made semiannually, on the first day of February and August of each year."

This ordinance was to go into effect after its publication, provided the company, within five days after its passage, should file with the clerk of the city its written acceptance of the terms thereof. The plant was erected and put in operation so that on or about April 20, 1889, it was ready for operation, and from that time until the last of the year 1892 the company furnished twenty-five sixteen-candle-power lights for the lighting of the streets, and received semiannual payments therefor as provided by section 6. Then there arose a controversy as to whether the company was bound, under the ordinance, to furnish an all-night service, or only lights until 12:30 A. M., as they had been furnishing. There was no adjustment of this controversy between the parties, but the company continued to furnish lights as they had theretofore done, without objection on the part of the city up to the time when this action was brought to recover compensation therefor under the terms of the ordinance. The principal controversy was as to whether the company was required to furnish all-night lights, or whether it was only required to furnish lights until midnight.

The exceptions filed by the city to the findings of fact went to the admissibility of various items of evidence offered by the company. It sought to establish its contract with the city, and for this purpose, having pleaded ordinance No. 52, it desired to show its written acceptance thereof, as provided therein, and, to do this, introduced the following paper:

"BAXTER SPRINGS, KAN., December 22, 1888.

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