Farmington Village Corp. v. Farmington Water Co.

Emery, J. In a written instrument of contract between tbe Farmington Village Corporation and the Farmington Water Company, dated October 17, 1891, (in which are various provisions as to the nature and extent of the water supply services to be rendered by the water company for the term of five years,) is the following provision as to the right of the village corporation to take over the company’s rights and works at the end of the five years, viz: “Article 10. It is further agreed that the said corporation shall have the right to purchase the said Company’s entire works and rights at the expiration of the term of this contract, or during the term of any renewal thereafter, at an appraisal to be fixed by three disinterested men, one to be selected by the said Corporation, one by the said Company, and the third by the two so selected; — and said appraisal shall be the sum at which the said Corporation shall have the right to buy said works and rights and for which said Company agree to sell said corporation the works and rights aforesaid.” At the expiration of the term of five years, the village corporation voted “ to proceed to ascertain the price at which it may purchase the works and rights” of the water company as provided in the contract, and selected a disinterested man as appraiser upon its part. The water company, though notified of the action of the village corporation and requested to select an appraiser upon its part, declines to do so, and insists that it is not required by the terms of the contract to do so, until the village corporation first binds itself to purchase at whatever sum might be affixed by the appraisers. This bill is brought to obtain a specific performance of the contract, by compelling the water company to select an appraiser under Article 10. The question raised is whether by the terms of the contract the village must bind itself to purchase at the appraisal before obtaining an appraisal, or may obtain an appraisal and then elect whether to purchase at the sum fixed. [200] Various arguments of more or less cogency have been advanced upon either side, but the last clause of Article 10, seems to us decisive. It is first provided in the article, that the village corporation “shall have the right to purchase the said company’s entire works and rights .... at an appraisal to be fixed by three disinterested men, one to be selected by said corporation, one by the said company, and the third by the two so selected.” This is all the language as to the rights and obligations of the parties before the appraisal. Had the parties stopped there, this language alone might indicate perhaps that the village corporation must elect and bind itself to purchase at the appraisal, as was held in Montgomery Gas Light Company v. City Council of Montgomery, 87 Ala. 245, (4 L. R. A. 616) by the defendant. The parties, however, were not content with this language. They did not leave to inference from it the rights and obligations of the parties after the appraisal. They proceeded to expressly describe them by the following additional language, “ and said appraisal shall be the sum at which the said corporation shall have the right to buy said works and rights and for which the said company agree to sell said corporation, the works and rights as aforesaid.” The antithesis is conspicuous and we must assume that it was designed. The water company clearly and expressly yielded an agreement to sell at the appraisal. The village corporation did not even by inference yield an agreement to buy at the appraisal. It expressly retained however “the right to buy.” This option of purchase was to be exercised after the appraisal. There was no such clause or language in the contract construed by the Alabama court in Montgomery Gas Light Co. v. City Council of Montgomery, supra, cited by the water company. The water company must at the request of the village corporation co-operate in an appraisal. After such appraisal the village corporation may or not, as it deems best, exercise its “ right to buy.” Such was the express contract of the parties. Bill 'sustained with costs.