Hieronymus Bros. v. Bienville Water Supply Co. , 131 Ala. 447 ( 1901 )

SHARPE, J.

This suit is upon a -contract which included an undertaking on defendant's part to supply u ater to- a hydrant at plaintiffs’ saw mill, and intended to be used for the extinguishment of fires. The cause of action averred is in substance that defendant on April 17th, 1S9J, discontinued the supply of water in consequence -of which, on April 20th, 1897, plaintiffs suffered a loss by fire of their mill and other property located thereat. The seventh -count of the complaint -sets out the contract relied on a® having been in writing and which -contains recitals of the uses for which the water whs desired and the water company’s willingness to supply the -same “in accordance with their rules and regulations governing their water consumers,” and the following provisions: “As an inducement to the party of the ‘second part to make to the party of the first part a rate of charges for water less than their established regular meter rates, the party of the first part agrees to take from the party of the second part at least 1,-600,000 gallons of water per year, and to pay therefor monthly at the rate of ten cents per 1,000 gallons. The party o-f the first part further agrees to pay to the party of the second part for the use of the fire hydrant twenty-five dollars per year, in semi-annual installments of $12.50 on the first day of May and November of each year, and to use tbe hydrant for the extinguishment of fires only. In consideration of the agreement of the party of the first part to take from the party of the second part at least 1,600,000 gallons of water per year, and to pay therefor monthly, the party of the second part binds itself to accept payment for the measured water at the rate of ten cents per 1,000 gallons, said payment to be made in lawful money during the month following the time the monthly consumption was reckoned for. The life of this agreement is for one year, commencing January 1st, 1894, and to continue thereafter until either party shall give the* other thirty clays’ notice, in writing, of their desire for a discontinuance.”

The defense as set up by several special pleas and by a rejoinder, is substantially, that by agreement of the parties the water supply to the fire hydrant was due and payable in advance for the period extending from November 1, 1896, to May 1, 1897; that the same was not paid at any time before the’ fire occurred, wherefore the defendant avers by the second plea that it “terminated said contract by cutting off said water,” and by the third plea that it “rescinded said contract and cut off said water,” and by other pleas that it had a right to turn off the water from the fire hydrant. Demurrer to these pleas having been overruled, plaintiffs, besides replying generally, filed special replications, one of which after referring to the written contract averred that “on the 1st day of January, 1897, defendant had given no written notice to the plaintiffs, of its intention or -desire to terminate said contract, and the parties entered upon its performance for the term of another year, viz.: from the 1st day of January, 1897, to the 1st -day of January, 1898, and under the terms of said contract the first- installment upon the rent for said term was not payable until the 1st day of May, 1897, which day had not arrived at the time of said fire.” To this there was a rejoinder setting out the written contract and averring a subsequent promise by plaintiff to pay in advance, which averment was put in issue after demurrer overruled. Some counts of the complaint and some replications averred substantially that in a former suit, defendant recovered of plaintiffs for water supplied to the fire hydrant between November, 1896, to May, 1897. 'These replications were on demurrer, disallowed.

That damage by fire may be shown to have proximately resulted from a breach of a contract to supply water when it is known to both parties that the purpose of the contract is to provide against fires, is not here questioned. As authority for the proposition the case of Paducah Lumber Co. v. Paducah Water Supply Co., 7 L. R. A. (Ky.), 77, is in point.

Ordinarily, where one party to a continuing contract refuses to perform his part of it, the other party may treat the contract as ended, and though there are exceptional cases, this principle is in general applicable Avliere the default consists in a failure to pay an installment for sendees or goods to be furnished from time to time. — Drake v. Goree, 22 Ala. 409; South Fork Canal Co. v. Gordon, 73 U. S. (6 Wall.), 561; Dobbins v. Higgins, 78 Ill. 440; Bean v. Miller, 69 Mo. 384. A water company, though exercising quasi public functions in supplying the public, may avail itself of this principle, and may reasonably require payment in advance and may also, unless under exceptional circunn stances, enforce the requirement by cutting’ off .the supply for non-compliance thereiAdth by the consumer. Tacoma Hotel Co. v. Tacoma Light & Water Co., 14 L. R. A. (Wash.), 669, and authorities therein cited.

The contract by its last clause provides a Avay for its termination at the pleasure of either party, but that pro-vision aavis not intended to affect the right of either to insist on full performance by the other, or to stop performance for the other party’s, default. Being by -its terms so terminable at will after the first year the contract cannot be construed as running from year to year thereafter or as committing defendant to its performance during the year 1897, merely by delaying to act on plaintiffs’ alleged default- until April of that year. Assuming that as averred in defendant’s pleadings the payments were to have been in advance, defendant’s recovery by suit of the installment covering the period between November 1, 1896, and May 1, 1897, was not as a legal conclusion, effective to preclude defendant from maintaining here its asserted right to stop supplying the fire hydrant during that period. The doctrine applied in Caldwell v. Smith, 77 Ala. 157, Hill v. Huckabee, 70 Ala. 183, ‘and Hodges v. Winston, 95 Ala. 514, which prevents a party who has taken a position giving him an advantage over his adversary, from afterwards changing ground to the latter’s prejudice, cannot be here applied. This for the reason that the stipulation for payment in advance ivas independent of that for supplying the water and prima facie entitled defendant to sue immediately upon default in payment, and to recover without proof of its performance or of further continuance of the contract. — Drake v. Goree, 22 Ala. 409. Defendant could have been put to such proof by a counter claim for failure to supply water during the period in question, but so far as appears no phase of that suit exhibits the defendant as asserting therein anything necessarily inconsistent with its present attempt to justify the alleged breach. At the time the water was turned off, the contract had been so far executed that it could have been rescinded by an agreement only. Defendant’s privilege extended no further than to treat it as ended. The term rescinded as used in some of the pleas was inaptly employed in their averments of what was actually done by defendant, but the same pleas having each averred other facts sufficient to avoid the complaint they were not vitiated or rendered subject to the demurrers by their averments of rescission.

These considerations lead to the conclusion that the trial court’s rulings on pleadings were free from error. Looking to the evidence there appears a conflict as to whether the water rent was really payable in advance. The written agreement is silent as to whether it was payable at the first or at the end of the installment period. To show it payable in advance it devolved on defendant to prove an additional agreement so providing and such an agreement it undertook to establish as having been made between its superintendent and one of the plaintiffs in January, 1896. Its evidence of the latter agreement was, however, contradicted by the testimony of the. plaintiffs; and because of this conflict the ascertainment of that disputed fact belonged to the jury alone. The trial court’s action in excluding the whole of plaintiff’s testimony and in giving the affirmative charge requested by defendant made errors which necessitates a reversal.

Evidence objected to relating to transactions had by the parties under the .contract was properly received as tending to reveal the understanding of the parties respecting the time for payments and as tending to show whether payments were in arrears.

Reversed and remanded.