Little Falls weekly transcript. (Little Falls, Morrison Co., Minn.) 1894-19??, 1897-05-28

i S0s 1917 Z G K 4
February, 1896. the CITY council III
sand city passed q resolution at
tempting to rescinu such con tract,
and notified said plaintiff that salh
city would not take Or pay for any
lights under said contract after
April l, 1886 The plaintiff, however.
cOntimue,t To furnish such lights uil-
der SAID contract for April and May
1886, Us stated In the first five causes
vi action set forth In the complaint,
and the defendant having refused
to pay for the same. the plainttn
brings this action tt recover the
agreed price TOR such months. %55
- Al grounds for the sixth cause Of
action set, forth in the complaint.
the plaintiff alleges, In substance,
that by virtue Of article three "
ordinance number thirty-jOur@ (34),
heing .'Ex. r." of the com plant, the
defendant in. cOnsiderat ton Of tine
right; to, use. the water. from the
twelve hyurants for the dire depart
ment. aud from its mains for supply
inx public buildings, agreed. 10 pay.
all assessments Of, taxes levied anu
assessed for; city purposes On che
said water works during the term
for which said charter was granted.
That plain till has all the time since
the completion 6f the water works,
furnished according to the require
ments Of said ordinance "a. water
from the. twelve hydrantB free u
charge for the fire department.. and
water free Of charge from the water
mains for supplying public buildings:
and has in every respect complied
with the terms Of said ordinance and
contract. That Tor the taxes
for the year j., 1898 there was
levied and assessed for city purposes
on the said water. works OF the
plaintiff the sum of one hundred and
six dollars ($lO6) for city purp"ses.
alone: That the taxes for school
purposes, city purposes, county pur.
poses and state purposes, while all
separately levied are all collected. at
one and the same time, and hat. on
the 18th day Of February, 1886, the
plaintiff paid all: OF the taxes levied
ON the said Water works. and that In
tile taxes paid as aforesaid was In
cludetl the sum Of one hundred and nix
dollars ($1O6). solely levied for: city
purposes which plaintiff paid. and
that the defendant having refused to
pay the same, the plaintiff asks judy
ment for the amount. ::
The question as to the validity OF
the contract of August q, 1880. for
ligh service. IL covered by our oe-
cisiOn In the Flynn case above re-
ferred To, and for reasons therein
sta ted we hold the same valid: The
resolutions above referred to where
in the city attempted to annul the
contract was Intellectual for such
purpose. Generally n contract can
not no rescinded unless by tbeconsent
of all parties: except In cases Offraud.
which il not shown In this case. 1t
is clear. therefore, that the con tract
remained IN full force nOtwithstand-
Ing this declaration Of the city au-
tb,5rities to the contrary. But al
though this resolution would not
have the effect Of resembling the con-
tract, the notice served upon the
plaintiff above referred to-, wOnld
effect materially the rights OF the
parties to this action. Al We under
stand the law applicable to such
cases, the city had, notwithstanding
the contract, the absolute right at
its own election to decline to receive
any NOR, light under IT.; thereby re-
fusibg performance on it's part. The
taking Of this, step, however, while
1t would not amount to- a RECESSION
vi the contract, would constitute a
breach Of 1t, for which, the plaintiff
company In a proper action would
be entitled TO recover adequate dam
ages. But, In such action, the con-
tract price of the lights furnished
after tho refusal to receive 1t, would
not necessarily he the measure OF
damages. In such cases the action
cannot be brought upon the con-
tract for the contract price, but can
only, be maint aimed for damages for
a breach OF it. See Nebraska City
W.. Nebraska City Gas & Light Co..
End N. w.. $50; Clarke vs.. MarsfSlia,.
l DEMO. 317, and as to the rights OF
the PARTIES in, such cases see also
United states vs.. Bohan, 10 u. j..
339; 4 Sup. Ct. App. 81; Masters0n &
SMITH vs. The Mayor, &c Of the City
of Brooklyn, HILL, 81; Rfttenhouse
vs.. Mayor of Bal fillmore, 70 Md, 336.
Applying the rule laid down In
these cases To the cd3e ut par, Tie
demurrer must be sustained as to
the first five causes of action. As to
tie sixth cause of action, the demur-
rer should be Overrnled. The con-
tract set up In the complaint as
grounds for this cause of action ia
enforcible under the rule laid down In
the case of Board of COuncilmen of
the City of Frankfort VS.. Capital
Gas & Electric Light Co., % South
western, $50.
s RazTnE' Judges.
CHANGE OF PROCEDURE.