City of Greenville v. Greenville Water Works Co.

SHARPE, J. By its charter of March 9th, 1871, the City Council of Greenville Avas given power to “enact such laAvs and regulations not contrary to the constitution and laAvs of this State as they may deem necessary in relation to the streets and higliAvays, public buildings, poAvder magazines and every matter or thing which they may think indispensable for the'good order and Aceitare of said city.’’ — Acts, 1870-71, p. 128. A supply of Avater for the extinguishment of fires and other ordinary public uses is one of the necessities of a city and under the general authority so granted the defendant had the poAver to make a proper contract for such supply. — Livingston v. Pippin, 31 Ala. 542; Grant v. Davenport, 36 Iowa, 402; Mayor etc. of Home v. Cabot, 28 Ga. 50. Whether the ordinance embodying the contract giving-rise to this suit is ultra vires of the city in respect of the exclusive and continuing features of the franchise it purports to grant, need not be here determined. The -suit is to recoArer for the maintenance of a number of Avater supplied hydrants or fire plugs for the city’s use during the period claimed for at an agreed price payable semi-annually and the theory of the complaint is that the stipulation contained in the ordinance respecting those fire plugs is distinct and several from that part of the ordi — 640 — nance which grants the franchise and fixes the terms of •the grant. The same contract may contain a number of different promises wherein the performance of all is not essential to a recovery for the breach of one. This is so generally where the promise broken rests upon an 'apportionate part of the consideration moving from the promisee unless it appears that the parties intended the performance of the whole as a condition precedent to a recovery upon a part. — 2 Parsons on Contr. 677; Clark on Contr., 657; Fullmer v. Poust, 115 Penn. St. 224, 35 Am. St. Rep. 881. And part of a separable contract may be invalid because ultra vires, yet if it is neither malum in se nor malum prohibitum, that feature of invalidity does not 'prevent recovery for performance of the remaining part. — Ill. Trust & Sav. Bank. v. Arkansas City, 76 Fed .Rep. 271, 34 L. R. A. 518; East St. Louis v. East St. Louis Gas Light etc. Co., 98 Ill. 415, 38 Am. Rep. 97; Columbus Water Works Co. v. Columbus, 48 Kan. 99, 15 L. R. A. 354. Here the sum 'agreed to be paid by the city is not for the erection of the works but it is expressly stated to be for the rental of hydrants after their construction. It may be that the contract contemplated they would be charged with force upon the water according to the specifications made in another part of the ordinance, and that a deficiency in that respect would have furnished cause for their seasonable rejection; or if they were received and used under circumstances not amounting to a binding acceptance, any damage the city may have sustained by reason of the defect, might under appropriate pleading, have been shown in diminution of the claim for such use. But the several pleas which here, without denying the use of the hydrants averred in the complaint, -attempt to set up a mere non-compliance with the specifications, in absolute bar of all recovery, are insufficient for that purpose. — 4 Enejo PI. & Prac. 933. The act of providing the city with water for fire purposes peidained to the business powers and not to the governmental powers of the city council, and it had authority to bind the city on that account for a reasonable time, if not for the whole period named in the ordinance, — 641 — and whatever was done in execution of the contract will be referred to that power. It was said of a similar question in City Council of Montgomery v. Montgomery Water Works, 79 Ala. 233, “in legal effect the result is precisely the same as if the contract had been renewed from month to month and year to year, the plaintiff furnishing Avater to the defendant at the latter's mere pleasure.” The special pleas from 3 to 11, inclusive, Avere interposed to the complaint as a Avhole. They Avere each bad as to some of the counts and therefore bad as to all. The common counts aver no special contract, and while the last named pleas each refer to a contract — presumably that mentioned in the 29th and 30th counts of the complaint — none of them set it out either in substance or in terms. Applied separately to the common counts, these pleas cannot be understood. The particular promise to pay for the use of hydrants is averred in the complaint to have been made to the plaintiff and not to its predecessor, the American Pipe Manufacturing Company. Pleais 5, 6, and 7 each deny the execution of such a contract and they are not SAVorn to as the statute requires. The ordinance set out in the 12th plea sustains this aAnrment of the complaint since it shows that though the right to construct water works was given to the Manufacturing Company, the grant was in promotion of the Water Company to be thereafter organized, and the obligation to pay for hydrants is expressly made “to the said Water Works Company.” When the plaintiff company was organized in pursuance of that provision, the promise then enured to it directly. The plaintiff’s acceptance of its terms completed an agreement between the plaintiff and defendant, the partial performanc of which ¿s betunen them in the subsequent furnishing and use of hydrants is the subject matter.of the suit. The real transaction did not involve the doing of business by the American Pipe Manufacturing Company, and whether that company had complied with requirements made by laAv of foreign corporations, and likewise the question as to the extent of its corporate powers were immaterial — 642 — matters. Having dealt-with the plaintiff as a corporation, the defendant is estopped to deny its corporate character. The statute of frauds was pleaded to the whole complaint without averring the terms- of the contract. The statute applies only to express -contracts and does not include promises implied by law like that supporting the count for money had -and received and which may support other common -counts. Neither does it apply to an executed part of a contract — Lagerfelt v. McKie, 100 Ala. 430. Furthermore it was competent for the city council to make the -contract without committing its execution to an agent and to do so by means of an ordinance embodying its terms followed by their acceptance by the plaintiff, and the -ordinance in itself is a sufficient writing to satisfy the statute of frauds. — Browne on Statute of Frauds (5th ed.) § 346; Dist. of Columbia v. Johnson, 1 Mackey, 51. None of the pleas -deny that water and hydrants were furnished by plaintiff and used by the defendant, and from -all that appeal’s in plea 20, the water, though averred to have been valueless for extinguishing fires, may have been supplied in -strict accordance with the ■contract. The objections to evidence introduced by plaintiff are without merit. The minutes of the city council show the original ordinance, subsequent agreements for the extension of pipes and the renting of additional hydrants, and adoption thereafter on November 22, 1890, of a resolution expressing “that the water works in this -city owned and constructed by the American Pipe Manufacturing Company, -appear to be constructed in a thoroughly substantial manner; that in some respects they exceed the specifications and requirement of the contract, as demonstrated on -the occasion of the test, when it wras shown that a -stream of water reached a vertical height of more than 50 feet through two hundred feet of fire hose attached to the highest plug located on Commerce Street, and that said water works are -satisfactory in every respect.” It further shows without dispute that the hydrants were thereafter maintained and — 643 — that the city beginning in 1890 made semi-annual payments at the agreed price for several years and after-wards paid irregularly up to January, 1896. Minute entries of the city council in January, 1896, recite that the plaintiff’s claim for arrears of rent had been investigated and that it “was disallowed,and the mayor instructed to inform the Water Works Company that the city would not pay their claim for the reason that they had not performed their contract.” This entry expresses no purpose to discontinue the contract or to release the plaintiff therefrom, nor is there any record evidence of such action being had until after this suit begun. The evidence offered by the defendant to show verbal instructions by the members of the council to the marshal to give plaintiff notice to discontinue the water and the pursuant action of the marshal, was incompetent. If the city was entitled to terminate the contract it required corporate action to do so. The best and only evidence of such action is in the records or minutes of the council’s proceedings. — Perryman v. Greenville, 51 Ala. 507. The issues of fact were made alone upon the pleas presenting the general issue and payment, and under them and in the absence of a plea in recoupment of damages the evidence offered by defendant to show the manner in which the works were constructed and the degree of pressure upon the water was inadmissible. It could not be used under the general issue to reduce the plaintiff’s claims, for the rate of its compensation having been agreed upon its right of recovery is according to the contract price and not upon the quantum valebat. — City Council of Montgomery v. Montgomery Water Works Co., 77 Ala. 248; Stafford v. Sibley, 113 Ala. 447. By the terms of the contract the payments were to begin “on the first day of the first month succeeding the completion of the works.” As interpreted and acted upon by the parties they became due respectively on the first of January and the first of July for the next ensuing six months. This suit was begun on July 20th, 1897, and the recovery was allowed so as to include the rental — 644 — for the six months period which had then begun but had not expired. The contract had not been terminated and the installment of rent for that period was then past due. By making it payable in advance the intention appears not to make the plaintiff’s performance during the time covered by it, a condition precedent to the payment of that installment, and as to that item the intention must govern the right. — 4 Ency. PI. & Prac. 935.' The evidence in its material parts is without conflict and under the principles we have stated it justified the charge given for the plaintiff and the refusal of those requested 'by the defendant. The judgment will be affirmed.