Defiance Water Co. v. City of Defiance

There are several very interesting legal propositions propounded and 'defended in this case; but we think that one point in the case is decisive, rendering it unnecessary to. consider any of the others. If it' 'be true that the contract between the defendant in error and Samuel R. Bullock & Co, to whose rights thereunder the plaintiff in error succeeded, was invalid fox 'any of the reasons assigned, it is clear that a cause of action to restrain its performance accrued as soon 'as the parties attempted to enter into it and to act upon it, that is, upon August 17, 1887. An action for relief of the kind sought in this action is barred in ten years. Section 4985, Revised Statutes. This suit was begun January 4, 1898, ten years, four months and seventeen days after the cause of action accrued. Meantime the water company constructed the waterworks at great expense and- .as it appears from the pleadings, the defendant in error accepted the waterworks under the alleged contract, took possession of and used hydrants 'as provided, and paid the water rent therefor for several years, without any question being raised as to- the legality of the contract or the liability -of the city. In fact, although there has been) some contention over the validity of the contract since 1896, the defendant in error has used the hydrants and paid the water rents until about the time the present suit was begun. It is a stale equity, if any, -which -it is now sought to assert. Kellogg v. Elly, 15 Ohio St., 64. It is true that the object of this action is to restrain the payment of a demand under the contract which only -accrued in 1897, and to restrain the payment of any other -or further claims; but the ground for the relief 509 sought, and the sole pretext for. refusing to pay for that which the plaintiff below has had and enjoyed, is the alleged invalidity of the contract which'it entered into on August 17, 1887, a ground -which it' might have asserted, and .which it was its- duty to assert, if at ail, long before it did so in this action. There are averments in the reply of unfitness of the water supplied and of the mains, pipes and hydrants being stopped with mud; but these can not be considered as a ground for injunction -in this ease, because the plaintiff can only recover on the cause of action stated in the petition. Durbin v. Fisk, 16 Ohio St., 533. The judgment of the circuit court is reversed, ihe demurrer to the petition is sustained and the petition is dismissed.