The Wichita daily eagle. [volume] (Wichita, Kan.) 1890-1906, 1902-03-14

more relieve from the obligation 10
pay lquidated d. rlages than It can &c
iieve from me obligation 10 Iay prom
issory note executed upoa sufficient con
sidcration
The decree in the case should &c
that the plaintiff bin be dismissed lo.-
want of equity and as thus modified, ne
decree Of the circuit court is affirmed.
This settles the case Tor all THE Il
has gone To the highest court il The
land that has Jurisdiction IL the matter
! and by the decision OF that court the
city Is entitled 70 the Sl0.9p ana VIII
keep it.
The case vas submitted to and argued
! before Cicrcuit Judges Caldwell, Sam
born and Thsvor The opinion OF the
court was delivered ~ Judge Caldwell.
all the other justices concurring in that
opinion.
The opinion OF the court points out the
fact that in the contract between the
Wichita Railway. Light and Power com
pany, the sum Of 3lo,e1 had been agreed
on by both parties 20 the contract as
liquidated damages and not as a pen
atty. for the reason" as the contract
states. that the actual damages sus-
tanned by the city in case OF a breach
OF the contract cannot be definitely CT
accurately ascertained or computed
to show that both parties had snowl-
edge of the rules o. law AMI decisions
that have been handed down before IL
regard to precluding a city from recov-
erfns substantial damages IA this class
OF cases unless they are hqUidated by IN
agreement between the parties. X was
the knowledge of this fact OF the law
that led TO the agreement on the liGuiGa-
ton damages in case OF a breach.
The opinion goes on 10 state that
city is public corporation. it has no
private interests, it is q pubic agency,
and it acts for the public in establish
ing any public utility and does this for
the purpose Of promoting the convent
ence and preserving the health of its
citizens and protecting them in their
persons and property.
When private corporation engages
with a city to construct or maintain
a public utility and does not comply
with it's contract, the city in its cor po-
rate capacity does not suffer any loss
or damage capable OF judicial ascertain
ment.
Nor is the inconvenience and loss suf-
fered capable OF being computed. Hence
it is common for municipal corporations
in making contracts for the cOnst-uc-
ton and maintenance of public utili-
damages in case of the non-fulfllment of
the contract.
The opinion quotes a recent case before
the supreme court Of the United Staten
in regard TO damages when the amount
cannot be accurately ascertained and the
opinion of the supreme court states that
the damages viii be considered liGui-
dated if it is so denominated in the con-
tract and the language of the contract
evinces clear and undoubted intention
to fix the sum named as liquidated dam
ages in case Of default of performance
of some act agreed TO be done. The su-
preme court handed down an opinion in
q case similar 10 the one OF Mr.. Brooks
in which it was expressly stated that
the court should enforce the contract
when there was a clause for liquid2ted
damages, if the contract was legal in
other respects.
IN September. 1898, the Wichita Rail
way, Light and Power company con-
tracted to furnish this city with 80 arc
lnghts. These lights were 10 be placed
In operation by April !. 1893. The con
tract stated that the company had placed
in the hands of the city treasurer $1,000
to be held as Iiquidated damages and in
the case Of the non-fulf!ment OF the
contract this sum was to revert TO the
the city.
Mr. Brooks claimed that he furnished
the cash to the railway company to put
Up that bond.
The lights were never constructed and
the city declared the money forfeited
and it was turned into the city treasury.
Mr.. Brooks brought suit against the
city and light company to recover the
money. before Judge Hook in the United
States circuit court for the second d.
vision Of Kansas. Kos Harris vas his
attorney and the suit was brought in
equity.
City Attorney Helm filed q demurrer
70 the bill. alleging that tho city was
entitled 70 Il suit at law and should have
a jury before which the case was to be
tried.
At the last term of the circuit court.
Judge Hoo, sustained the demurrer of
the defendant and dismissed The case
without prejudice To the plaintiff. thus
giving him permission to file an action
at law and then the case should he
tried before a jury.
Mr.. Brooks refused 10 accept the de-
cision of tho circuit court and ordered
an appeal. The case came up for hear
ing before the circuit court of appeals
at St. Louis and the decision OF the lower
court was affirmed.
In the opinion it is stated to the plain
tiff that there is no further recourse
for Mr. Brooks. He cannot bring an
action in law or in equity and the city
keeps the cash