Winfield Water Co. v. City of Winfield

• Decision Date: 11 March 1893
• Citation: 51 Kan. 104,33 P. 714
• Parties: THE WINFIELD WATER COMPANY v. THE CITY OF WINFIELD
• Court: Kansas Supreme Court

33 P. 714

51 Kan. 104

THE WINFIELD WATER COMPANY v. THE CITY OF WINFIELD

Supreme Court of Kansas

March 11, 1893

Error from Cowley District Court.

ACTION by the Winfield Water Company against the City of Winfield to recover water rents. The plaintiff company recovered a judgment for $ 1 only, and brings the case to this court. The material facts are stated in the opinion.

Judgment affirmed.

Eaton Pollock & Love, for plaintiff in error.

McDermott & Johnson, for defendant in error.

ALLEN J. All the Justices concurring.

OPINION

ALLEN, J.:

This case is argued and submitted with the case of City of Winfield v. Water Co., ante, p. 70. This action was brought by the water company against the city to recover hydrant rentals for the period of six months, from January 15 to July 15, 1890. In its amended petition, the water company alleges that on the 17th day of January, 1883, the mayor and councilmen of the city of Winfield duly passed a certain ordinance No. 167. The portions of said ordinance which are material to the consideration of this case -- except the eighth section thereof, which makes provision for extensions of the mains and for additional hydrants, for which the city was to pay a rental of $ 65 each -- are copied in the opinion in the preceding case. The petition avers the acceptance of the provisions of the ordinance by the parties therein named, and also by the water company as their assignee. It also avers the construction of the system of waterworks; the acceptance of the same by the defendant; the furnishing of water in accordance with the terms thereof to the city; and the payment of rental by the city in accordance with the terms thereof until the 15th day of July, 1890. It avers the continued use of the water for all public purposes named in the ordinance from the 15th day of January to the 15th day of July, 1890. It avers extensions of the water mains in accordance with the terms of the ordinance, and the addition of 29 hydrants, which it alleges were in use during said period of six months, and that water was furnished the city out of such additional hydrants during that term. It avers that the plaintiff performed all the provisions of its contract, and claims that by reason thereof the city became indebted to it for the use of said hydrants in the sum of $ 2,442.50. It alleges that a sworn and itemized statement of such indebtedness was duly presented to the city council, and that the defendant refused to pay the same, refused to allow said account, and asks judgment against the city for said sum. There is no averment in the petition as to the value of the water furnished nor of the value of the services rendered the city under the contract during the period for which payment is claimed.

The answer contains, first, a general denial; second, an averment that the plaintiff had failed, neglected and refused to comply with the terms of the contract; that the plaintiff has persistently, for a long period of time, refused to supply said city and the inhabitants thereof, for domestic and sanitary purposes, well settled, wholesome water, and has refused to furnish the inhabitants of the city with water according to the prices and charges agreed upon and stipulated in said contract, but extortionately, and without any authority from the defendant, imposed, and tried to impose, other and different prices and rates for water furnished, and refused to furnish water for domestic and sanitary purposes to citizens and others desiring the use of said water at the prices and rates provided in said contract; and also alleges that defendants have failed to transact the business pertaining to the waterworks within the corporate limits of Winfield; that it has failed to have a meeting of its board of directors in said city, and has only been represented by an inexperienced agent to manage its affairs in said city. It also denies that it ever entered into any contract for the additional hydrants mentioned in the petition, and asks judgment for its costs. No claim is made for damages because of the alleged failures of the plaintiff to comply with the contract.

The plaintiff, replying, alleges that the source of supply for said waterworks was the Walnut river; that the defendant permitted the water of said river to be obstructed by a dam, and to be contaminated by sewers and drains from the city; and alleges that if the water is not settled or wholesome, such condition was brought about wholly by the acts of the defendant. A jury was impaneled, before which a large amount of testimony was taken. The jury rendered a verdict for $ 1 in favor of the plaintiff, and the plaintiff brings the case to this court, alleging various errors.

Most of the evidence in the case is directed to the question as to whether or not the water furnished was well settled and wholesome. There seems to have been little, if any, complaint as to the quality of the water prior to April. From some time in April till the middle of July, according to the testimony of the witnesses for the plaintiff, the water was roily at various times, and was also offensive to the taste and smell. Physicians also testified that in their judgment it was unwholesome. Experts were also examined on behalf of both parties, who testified with reference to the healthfulness and unhealthfulness of the water. Testimony was also offered showing the manner in which the system was constructed, the source of supply, the mode of distribution and of settling, and the various extensions that had been made of the system. Many exceptions are preserved to the rulings of the court on the trial. Testimony was also offered with reference to the causes tending to contaminate the source of supply.

It appears that, during the period for which the plaintiff seeks to recover, the water was drawn from the Walnut river, at a point about 1,000 feet above the original source of supply; that the reservoir, which was the only place provided for settling the water, is located on the other side of the city from that where the pumps are placed, and that in order to fill the reservoir water is pumped directly from the river through the whole system of pipes distributing the water through the city. When the pumps are not in use, the water flows back through the system from the reservoir to the various consumers. In the court's instructions to the jury are included the following:

"4. If the plaintiff has satisfied you, by the preponderance of the evidence, that it furnished water in all of the hydrants for which it claims pay, through and by means of a system of waterworks in substantial compliance with all of these ordinances and contract, and substantially of the kind and quality mentioned in said contract and ordinances ready for use by the defendant at all times during the term for which it claims pay in this case, then the plaintiff will be entitled to recover the contract price for all hydrants which you may find were actually furnished, with 6 per cent. interest from July 25, 1890, to date.

"5. The defendant claims that the plaintiff did not, during the term for which pay is claimed, furnish the city with water of the kind and quality required by the contract, and did not keep and maintain the system of waterworks required of it in the contract; and this brings us to the contested issues between the plaintiff and defendant. The defendant also sets up other defenses to this action, but the court being of the opinion that these other defenses are not maintainable, you are not to consider them. If you settle the issue of whether the plaintiff did or did not furnish water ready for use in the hydrants during the term charged for, through a system of waterworks, of the kind and quality as required by the contract, in favor of the plaintiff, then that ought to end the case in favor of the plaintiff, and you should return a verdict for the plaintiff for the contract price; but if you should find this issue in favor of the defendant, then it will become your duty to inquire further in the premises. If you should find that the plaintiff has not complied with the terms of the contract on its part, in furnishing the defendant with water of the kind and quality through a system of waterworks as it ought to have done, that will not relieve the defendant from all liability, if you should further find that the defendant used the water during the term for which pay is claimed for the purposes, or any of the purposes, for which it has the right to use the same under the contract.

"6. The law will not permit one party to a contract to have the fruits thereof, or a part of the same, and then refuse to render to the other party to such contract any compensation, simply because such other party has broken the contract on his part. So, in this case, if you should find that the defendant used the water furnished by the plaintiff during the term for which pay is claimed for any of the purposes for which defendant had the right to use the same, then the defendant must be required to pay the plaintiff reasonable compensation for hydrant rental, notwithstanding the fact that the plaintiff may have failed to comply with the contract on its part. And, in this last event, the question of whether the defendant did or did not use the water for any of the purposes it had the right to use it may become material in the case; but if you find that the plaintiff has on its part complied with the contract, then the question of whether the defendant did or did not use the water is entirely immaterial in this case.

"7. The contract provides that the plaintiff shall at all times furnish the defendant 'an ample quantity of well-settled and wholesome water.' The defendant claims that this was not done. The plaintiff, in reply,...