Daily Democrat and news. [volume] (Davenport, Iowa) 1859-1864, 1862-06-16

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to fulfill this agreement because It could
not pay in the year 1853. Not on
30, bnt if i've milhon the dollar would
pot pay.this with other debts, If this
t4moust was Levied even. which is not
|Axerred, thea 10 question of raising
more could have been submitted to the
legal voters, as pointed ont in this plea
nor could the fact that the property,
holders to be benefited had failed 70
petition for the levy of specific tax
release the city. II there is no property
of the city from which the, debt can be
made, then the question'of the authority
Of the city council to raise the means to
liqa.date this debt By taxation or other.
wise, might add would become material;
but, ii the contract was binding upon
the city, and this is not denied SO far IS
the authority to execute it is concerned,
then the ability to finally pay the in
debtedness incurred and arising there
under, csnuot defeat this action.
Appellants counsel do not insist upon
the pleas numbered s, . and 10, and We
need not therefore notice thom.
4th. On the trial, plaintiff offered in
evidence certain bills for gas for the
months Of December, 1857, January,
February, March, April, May and June,
1853, the same having been presented
to and allowed by the city council and
paid. These bills were for gas furnished
lamps or posts in the streets Of the city,
being the same posts for the lighting Of
which in July and August this suit is
brought. This evidence was objected
to, lst, because such payment does not
imply q liability to pay q future bill,
and especially where the gas was fur.
nished after notice of refusal to pay, as
admitted by plaintiff; I'd, because it is
not competent to thus prove that the
lamps thus lighted were on public posts.
We have no hesitation in saying that
this testimony was most clearly admissi.
Bile. Whether it was competent to thus
prove the matter referred to in the Sec
ond objection, we do not now discuss,
as that will more properly come under
review when We come to consider the
instruction but to show the number OF
posts lighted and this was a question
of fact controverted by the parties and
that the city had recognized it's liability
TO pay the debt now sued on, the testi-
mony was very pertinent.
It is not true, As stated, that such
payment does not imply liability to
pay future bill. If one party has un.
iertaken to do particular thing from
month to month, and IS often as re-
quired perform the contract, the oppo-
site party has, from such acts, good
right to presume that as long as be per
fo,ms on his part, the party undertak-
ing will continue to comply. Thus, if
A agrees to furnish B one horse each
month for one year, and b pays for the
same from time to time as the bills are
presented, A has certainly a right to
presume, (aside from the binding effect
Of the coutract,) when he delivers an
other horse, that the bill will be in like
manner paid. But it is said there was
notice that the bills would not be paid,
and as this is much relied upon by de-
PENDANT, we here notice it. 1t seems to
us that the entire meaning and effect Of
this notice is inexperienced. II the
lamps lighted we're before public posts,
then the city could not repudsate this
contract upon the assumption that no
tax could be levid to pay the liability
thereby incurred without being petit
toned therefor by the owners OF more
than half the property so to be taxed.
And this IS all there is of this notice.
The resolutions passed by the City
Council, of which the Gas Company had
notice, were of date June 18th, 1858, as
follows:
First, That from and after the LIST
day of next July, the city will pay fol-
no more gas until property owners petit
ton therefor under the provision of the
charter.
Second, That notice be and is hereby
given to the Davenport Gas Light and
Coke Company, that from and after the
3Oth day OF June, we shall not use gas
in the public lamps, and that the Super.
intendent, or whoever has the matter in
charge, be directed, from and after that
date, to see that no gas lamps are light
ed, as the same will not be done by
order or consent OF said city.
But such resolves could not remove
the contract made with the Gas Com.
pany any more than they could compel
the furnishing of gas in a manner and
for prices ffcrent from those fixed by
its terms. If there was a liability to
pay these bills, the liability continues,
notwithstanding this action Of the City
Council and notice thereof to the Com.
pany. Not only so, but as applied tc
the admission of these bills the rule
applies, that individuals are held to " a
careful adherence TO truth in their deal.
ings with each other," and one party
cannot, by his representations or silence,
involve another in oncrous engagements
and then defeat the calculations and
claims his own conduct has superin.
duced. "-23 Ho,c., 3sl.
9th. We next come to the examina.
'ion Of the instructions, given and re.
fused, of which appellants complain. In
doing SO, We shall not undertake to
quote and give our views upon each
but shall state generally the law a.
applicable to the case. Before doing
this, matter somewhat preliminary
merits attention. From the bill OF ex.
ceptions, it appears that OF the fifteen
instructions asked by defendants, eleven
were refused, to which defendants ex.
cepted.. The charge of the Cour, covers