Christian & Craft Grocery Co. v. Bienville Water Supply Co.

COLEMAN, J. — The paramount question in the case is the proper construction of the contract between the parties. It is as follows : “Mobile, Ala. July 15, 1890. “This contract made and entered into the day and year .first above written between John H. Turner, Supt., and the Bienville Water Supply Co. of the first part, and Messrs. Craft & Co. (grocers), of the second part, all of • the city of Mobile, Ala. “The said parties of the first part agree to furnish the said parties of the second part the Bienville Water for the term of three years or longer, at the option of the said Craft & Co., or their successors, from the date first above written, for a twenty-four inch (24-in) Little Giant improved water motor, to be used for running a grist mill, and to pay for the same' at the rate of two hundred and fifty dollar’s for the first' year, monthly in advance; two hundred and seventy-five dollars for the second year, monthly in advance ; three hundred dollars per annum for the third and subsequent years during which said Craft & Co., or their successors, may desire [128] such service under this contract, provided said service is not increased. “In witness whereof, the said Bienville Water Supply Company have caused these presents to be legally, John H. Turner, their superintendent and agent, and the said Craft & Co. have signed these presents this 15th day of-July,- 1890. Witness : Bienville Water Supply Co. Wm. H. Tew. John IT. Turner, Supt. Craft & Co.” The water was supplied under the agreement for three years, and just before the expiration of this period, the Water Supply Company gave to the complainant the following notice : “Mobile, Ala., March 25th, 1893. “Messrs. Christian & Craft Grocery Co., Mobile, Ala. Gentlemen : — The contract existing between yourselves and this company for a water supply to a 24-inch water ■motor, expires on July 15th of this year. We shall decline to renew the contract under the same terms, or continue the service beyond that date, and notify you thus early in order to enable you to put in other power. Respectfully yours, W. C. Pooley, Supt.” The complainant filed the present bill to enforce a continuance of the supply of water under the agreement. The question is, whether under this agreement the optional provision to furnish the water for three years and “longer,” “or subsequent years” formed a part of one entire contract and constituted a part of the consideration which induced Craft & Co. to obligate themselves to take the water for three years at the stated price. If such was its character, we are of opinion that a court of equity will uphold and enforce it, provided Craft & Co. signified their election in due time, and in such manner as.to make the contract perfect and definite in all essential respects. — Wilks v. Pacific Railway, 79 Ala. 185 ; Ross v. Parks, 93 Ala. 153 ; Wailes v. Howison, 93 Ala. 375. We do not agree with appellee that the optional provision was void because of indefinite ness as to duration. It was left with Craft & Co. to elect and determine the number of years they would take the amount of water at three hundred dollars per annum, and upon the exercise of this right or option in a legal way, the duration be [129] came definite and fixed. We are unable to see upon what- principle the agreement can be divided and held to contain one entire agreement to furnish the water for three years, and another separate and distinct option for a longer term. Both are contained in one instrument made at the same time, and both equally accepted and concluded by the signature of Craft & Co. We can not say that Craft & .Co. obligated themselves to take the water for three years without regard to the optional agreement for a longer term. The principle is very similar to that declared in Hawralty v. Warren, 18 N. J. Eq. 126. The following authorities sustain this view also : 22 Am. & Eng. Encyc.of Law,pp 1020,1021.; Joy v. St. Louis, 138 U. S. 50-1; Burlington v. Burlington, 53 N. W. Rep. 249. We are of opinion that the option continued during, the three years for which Craft & Co. obligated themselves to receive the water and pay for it, according to the agreement and was not revocable during that time. Was the election made in such manner as to bind the Water Supply Company? We think not. In the original bill, the only election made is “to continue the service from month to month,” but for how long is not fixed, and in the amendment, the election is for “three years from the 15th of July, 1893, and reserves the right to elect to continue the service *. * * for a further period after the period covered by the election herein made.” Nothing could be more indefinite and uncertain, than to elect to continue the service “from month to month,” or than a “further period” without specification or limitation as to time. A contract which a court of equity will enforce, must be clear and specific-in all its essential elements, and when labor or service is to be rendered, time is as an essential element as quantity or character. The contract concluded by the election is an agreement on the part of the water company to supply water for an indefinite time to the Craft Co., which company agrees to receive it for an indefinite period and to pay for the water received, per month at the rate of three hundred dollars per annum. A court of equity is without power to enforce such a contract. We are of opinion that Craft & Co. have forfeited the right to make an election which will bind the Water Supply Company, and so far as the optional feature of the .agreement is concerned, it has ceased to exist. [130] On tlie 6th of March, 1894, the complainant amended its bill; and prayed relief upon the grounds of a duty owed by the Bienville Water Supply Company to furnish complainant with water independent of any contractual obligation. From our view of the case it is unnecessary to construe the provisions of the charter and determine the extent of its duties and obligations to supply water for motors and machinery, or other purposes than “domestic, sanitary and municipal wants.” The duty here relied upon, arises entirely independent of the agreement sot up in the original bill, and the case must be deter-, mined in this aspect as if there had been no agreement between the parties. The amendment to the bill was allowed some eight months after the expiration of three years stipulated in the agreement. The tender offered and paid into court by complainant was made under and in pursuance of rights claimed solely under and by virtue of the agreement. Any acceptance of the money by the respondent would have been in recognition of its obligation to supply tlie water under the agreement. ■ This, it Avas not bound to do.' We then have the case of complainant filing a bill to compel the Bienville Water Supply Company to furnish it water, in tlie first instance before applying to the company for water upon such terms as might be agreed upon, and without offering to pay what would bo reasonable and just. Such a bill would be without equity. We are aware that the pleader has attempted to connect the duty to supply water under its charter with its contractual obligation growing out of the written agreement, by averment, but the case made by the amendment of March 6th, 1894, is distinct and independent of that made in the original bill for a specific performance of the agreement. In any víoav Ave take of .the case, we are of opinion that the original bill and as amended Avas Avithout equity., and properly dismissed. The bill as amended should have been dismissed not absolutely, but without prejudice, and the decree so modified will be affirmed. Modified and affirmed.