Hyndman Water Co. v. Borough of Hyndman , 7 Pa. Super. 191 ( 1898 )

Opinion bv

Smith, J.,

The plaintiff was incorporated for the purpose of supplying water to the public, including such residents, etc., of the borough of Hyndman, and adjacent thereto as may desire the same. It entered into a contract with the borough, whereby it was bound to complete an effective system of water works and furnish the borough an ample supply of water “ for the better protection of property therein against fire; ” and for this purpose the borough therein agreed to rent from the plaintiff twenty-five (25) fire hydrants at an annual rental of $600, payable $300 semiannually; the hydrants to be placed at such points in the borough as the authorities thereof might designate. The plaintiff erected hydrants according to the terms of the contract, and began to furnish water in July, 1892, and payment therefor was made until July 1, 1894, but not thereafter. Suit was brought for the rental from that date until October 1, 1896. On the trial, the defendant showed that, for a part of. the period for which a recovery was sought, the plaintiff failed to supply water according to the agreement, and the court instructed the jury that if “ there was a total failure to furnish water in quantity sufficient for use as contemplated by. the contract, for any time or times during that period, you will allow the borough a credit for such total failure, if any, at the rate of $50.00 per month, for the time this continued, and for such time as there was not a total failure, but only a partial failure, to allow the borough a further credit for such amount as it may be entitled to under the evidence, bearing in mind that the amount of such credit must be measured by the contract price.” The court further held that the contract was severable, and therefore that the plaintiff was entitled to recover for such period as it had in good faith supplied water according to the requirements of the contract. Considerable testimony was introduced, pro and con, in relation to the rendition by the plaintiff of the service stipulated for; the sufficiency or insufficiency of water at certain times; the capacity of the water works; the excessive drought during the summer seasons; the adequacy of the pumping apparatus provided by the company to divert the water when necessary to meet the demands of the borough; and the furnishing of water to other consumers. It appears from the verdict that the jury disallowed compensation for four months of the period for which the plaintiff claimed.

It would serve no good purpose to follow the course of the trial and comment on the controverted phases of the proceedings. All matters about which counsel for the defendant entertained any doubt would appear to have been discussed in the argument here, both oral and printed. But we think the case was tried with fairness to both parties, and that the rulings and the charge are substantially accurate under the law and the evidence. Repeated efforts were made to introduce evidence showing that by reason of the consumption of water by a railroad company, a factory, and a tannery, the supply was diminished and the borough protection thus impaired. This testimony was rejected by the court, and its exclusion is made a principal cause of complaint here by the first three specifications. The plaintiff’s charter expressly requires it to furnish water to the public within the borough limits and adjacent thereto; it was therefore in duty bound to extend the water service to all who might require it, having due regard for the needs of its customers, the rights of the inhabitants, and the sources of supply. It was not alleged that the agreements with other consumers were not made in good faith, or that there was any restriction on the extension of the water service, in favor of the borough. The company therefore was bound to regard its obligation to those consumers, as well as to the borough, in equal degree. In the absence of any allegation of fraud on the defendant, the offers to show a consumption of water by other consumers was no defense to this action, and it was not error to reject them. The court instructed the jury that recovery could only be had for such time as the company furnished water, with a proper pressure, and that “ if the company supplied some water to the fire hydrants, but in not sufficient quantities or with insufficient pressure for use by the borough for the purposes for which fire hydrants were rented, then the borough should not pay anything for the time such wholly inadequate service was given it.” From this and other parts of the charge it distinctly appears that the plaintiff was not permitted to recover for any time during which it failed to furnish water in accordance with the contract. The contract was for ten years, without option of rescission, and covered the period for which this suit was brought. The defendant was bound by its terms and without adequate cause could not rescind it or defeat its operation. Nor could liability be evaded by electing to rescind. A notice to rescind unaccepted by the plaintiff would be ineffective, and the defendant could be held liable for the stipulated rental, if the plaintiff was in no default. The plaintiff asserted full compliance with the contract, which the defendant denied. The denial rested therefore on the failure of the plaintiff to perform its contractual ^duty, rather than nonliability by reason of attempted rescission.

The defendant offered to show, by a witness called in surrebuttal, the substance of a notice in writing, and that for reasons therein stated the borough would no longer use the water. The original notice or a duplicate or a copy thereof was not produced, and no reason was given for offering parol proof of its contents. The offer was objected to and the objection sustained. There was no error in this, even had the offer been made in chief, rather than in surrebuttal. Offers to prove matters in surrebuttal which should have been shown in chief, if admissible at all, were rejected because not admissible at that time. The trial court is vested with a discretion as to the order of proof and the conduct of the case. The observance of the rules of orderly procedure in judicial proceedings are essential to the due administration of the law, and their enforcement in the present case was not error.

The remaining specifications relate to the charge of the court. The contract was severable, under all the authorities on that question. Although the term of the contract is ten years, the consideration is expressly divided into yearly sums, and made payable semiannually. That the borough is liable for the actual service rendered in good faith under such a contract would seem to be a deduction from the authorities on that point, and is practically so ruled in U. S. Water Co. v. DuBois, 176 Pa. 439. In this view of the defendant’s liability, the court was right in refusing the defendant’s second and third points, contained in the eleventh and twelfth specifications.

All the questions of fact arising in the ease, and the equities growing out of them, were submitted to the jury for their determination, in a charge in which the rights of the parties under the law were clearly explained. Neither party obtained a verdict for its claim, but the verdict was fully warranted by the evidence, and we see no ground for disturbing it.

The specifications of error are all overruled and the judgment is affirmed.