The Topeka state journal., 1904-09-21
VIII Decide About ProlOnging
Water Company Suits.
Question OF Damages Growing
Out of Fires.
THEY ASKED TO AMEND
Attorneys Want Chance to Fix
Over Petitions.
Judge VIII Listen to Citation
of AthOrities.

Between now and Saturday, Judge
Pollock of the United States district
court will decide whether or not he
will allow the petition in the insurance
damage suits, brought in the name of
Parkhurst & Davis and Joab Mulvane
against the Topeka Water company, to
be amended. The arguments in the
case were made before him in cham
bers this morning.
an appeal in the Schick. Bonebrake
and Horne cases, all of which he dis
missed on demurrers a few days ago.
The issues in these three cases are
slightly different from those in the
Mulvane and Parkhurst-Davis cases.
They go at once before the United
States court of appeals
Schick, Bonebrake and Horne mere
ly alleged in their petitions that under
the contract between the city and the
water company, the water company
was obliged to furnish sufficient fire
protection, and that having failed to
do so the company became liable to
the plaintiffs whose property was de-
stroyed. The water company in the
hearing a week ago demurred to the
evidence, and Judge Pollock sustained
the demurrers. These are the cases
which are now appealed to the united
States court of appeals.
The Mulvane and Parkhurst-Davis
cases not only alleged that the water
company was liable because of its con-
tract with the city, but also because of
an oral contract which existed between
those firms and the water company
by which for the sum of $50 a year,
the water company agreed to keep
standpipe in each building filled with
water, which, it is alleged, it had fall
ed to do.
AS to the validity of these oral con-
tracts. Judge Pollock has not decided,
but they stand on shaky ground for
he bat from
the petition that the contract for keep
ing the standpipe filled was a perpetu-
al contract. Under the statutes, an
oral contract can not be valid for
longer period than one year.
When this defeat was discovered,
the attorneys for the plaintiffs asked
permission to amend their petition by
inserting the words. during the con-
tinuance of the contract" and a few
other minor qualifying clauses, max
ing the oral contract provide that the
water company should keep the stand
pipe filled lat all time during the con-
tinuance of the contract instead of
merely ''at all times" as it was in the
original petition.
The attorneys for the insurance
companies are fighting the proposed
to the petition. They
want to practically wipe out the con-
sideration of the oral contract, in
which case they would be almost GER
tain to win their case in the higher
courts.
One of the water company attor-
neys. in speaking in opposition to the
proposed amendments, said today
THE only recourse which the plaint-
iff now has is by an appeal to the
higher court. 1t has no right to come
in here at this time and change its
petition so that practically a new pc
tition is made out of it. The plaintiffs
have already tangled up the negotia- |
tions for the sale of the water plant
to the city of Topeka, and have pre-
vented the water company from con-
summating the contract for this trans
fer which it has made with the city. |
We are ready and anxious to convey
our property to the city, but can not
do so as long as these suits are pend
ing"
n. H. Loomis said in reply: "I don't
like the high moral ground which the
counsel for the defendant has taken in
up any transfer of the waterworks COM
pany, nor delay the proceedings. We
do not propose to allow things to get
into such shape that the proceeds from
the proposed sale OF this property can
not be applied to the settlement of our
in case we should obtain |
them. If your honor refuses to permit
US to amend our petitions we will be
left without resources, under your, hon |
or's rulings concerning the limitations.
We can not file q new petition. We are
not attempting to change the nature of
our existing petition, but simply want
to amplify it. and qualify the language"
Judge Pollock said in deciding the |
case: 1.-The questions which were re- |
Gently presented in the demurers were |
delayed some time because I was in
doubt about the matter
myself. but / am fully convinced that
the decisions rendered on those demur- |
rers was warranted by the law. This
application for permission to amend the |
petitions brings. up a different question. |
In my mind this is a very close point, |
with a good many authorities botn ways. |
1 will allow the attorneys until tomor- |
row to submit their authorities to me, |
and will render my decision in the mat |
ter sometime between now and Satur- !
day."