The daily phoenix. [volume] (Columbia, S.C.) 1865-1878, 1873-09-26

sent case. Its use engrafts upon the
instrument, as the express agreement Of
the contracting parties, Independently
that it shall be !Assignable. The law
upon thisIpoiut isSoo plain and familiar
to require more that statement. IT il
had been shs intention of these CON
traoting parties that the contract should
not be assignable, it is inoonceivable
that they should not only fail to make it
it in terms non: :assignabie, but actually
adopt the word ''assigns."
To the further objection, that without
the assent Of the defendant, there is no
such privity as will enable the plaintiffs
to maintain this action, it is only neces.
sary to say that If the contract be as
signable, the assignment Of itself creates
privity, and operates to place the
assignees in the stead of the original
party. It is only in case the contract is
not, In its nature or terms, assignable,
that assent is necessary.
The second general issue presented
by the pleadings involves the fact Of the
performance by the plaintiffs Of that
part of the contract, upon the compile.
tion of which the plaintiffs were entitled
to furnish the oity with its daily supply
Of water for twenty years.
In the Investigation of this question,
it is important to consider what was the
contract which the plaintiffs undertook
10 perform as contract precedent to
the right to assume the performance of
the second and main purpose Of the
agreement. What the contract is be.
tween the parties, its terms, conditions
and meaning, is question for the Court,
to be determined upon an examination
of the written agreement applied to its
subject matter. The construction Of
contracts must depend upon the inten-
tion Of the parties, to be collected in
each particular case from the terms of
the agreement itself, and from the sub
ject matter to which it relates. ut can
not depend upon any formal arrange
ment OF the words, but on the thing, as
it is to be collected from the whole con-
tract. I'D Parsons on Contracts, 527.
The Court must, therefore, construct
this contract, and develop its terms and
provisions, upon an examination OF the
whole agreement with reference to its
subject matter, general scope and pur-
pose. From tho pleadings and proof, il
appears that at the time said contract
was entered into, the defendant had in
operation, system of water works,
complete in itself, with which the city
was then supplied with water; that these
works were then being operated with
steam power; that the only supplies of
water then available for the use of the
city were the springs then supplying
water to the reservoirs; that the supply
of water from these sources was some
thing over 2O0,0 gallons daily; that
it was deemed desirable, in view of
the possible present and certain pros
pective wants of the city, that the oapa-
city of the existing works should be in
creased, and other and greater supplies
furnished for the use of the city; and
that the works should thereafter be ope-
ratel by water, insteed Of steam power,
which water power was then owned and
controlled by the plaintiffs.
The stipulations of the agreement, on
the part of the plaintiffs, involve the
construction of such parts of the new
water works as should be required to
give to the then existing works, the de-
sired increase of forcing capaoity; the
furnishing to the city, during the term
Of the contract. Of its daily supply OF
water; furnishing the water power for the
operation of the works, and "all the
labor and management of the machinery
and appurtenances;' and the turning
over to the city, upon the expiration Of
the contract, of the works, sin good
order and repair" On the part of the
defendant. the agreement was to pay to
the plaintiffs, in consideration Of the
performance ny them of said contract,
the annual sum of $4,000, in quarterly
installments, the payments to commence
from the time when the plaintiffs should
begin to furnish the city its supply Of
water under the contract.
Other stipulations arc embodied in the
agreement, which need not, in this con-
nection, be considered, except in so far
as they tend to the proper understand
ing OF the foregoing salient elements Of
the contract. 1t is clear, that by the
terms Of the agreement, it was condi-
ton precedent to the plaintiffs right to
enter upon the contract to furnish water
that they should first construct the addi.
tional parts Of the works which were
required to be by them constructed
The whole contract may be considered
as an agreement, on the part of the
plaintiffs, to furnish the city its daily
supply of water for the stipulated term,
using for that purpose all of the old