Omaha daily bee., 1907-11-30
Court Denies Boards Claim Company
Fell Short on Terms.
RETENTION OF BENEFITS PROVE II
Corporation Entitled to Rentals
Regardless Of the Contract.
NO CASE TO THE CONTRARY
Judge Hook Calls Water BoRrd's
Notice for More Pressure Mere
TactfuI ,24O.4s
Due Water Company,

|
circuit court OF appeals in the hydrant
] rental case has been received I'm Omaha
/ This opinion, written by Judge Hook and
! concurred in by Judges sanbon and Ad'
ans Is victory for the Omaha wator
company and defeat for the omaha Water
board. The issue was precipitated in tho
| United States district court when tho
water company brought action TO recover
| hydrant rcntals Of 94,2404S It claimed were
/ due from the city and which the city
that is, the Water board-protested on tho
ground that the water company had failed
! in the performance OF its contract existing
between It and the city.
| Going back to the notice served by tho
Water board on the company in June, 1906
for more pressure and clear water, the
court says on this matter of contract obli-
CATION:
/ Even II II were true. as contended, that
the company did not in full measure per-
/ form its duty, nevertheless under the facts
shown, It may maintain an action upon the
contract TO recover the accrued hydrant
| rentals It is well settled that sub
stantial performance of a contract by one
party, coupled with retention OF the benefits
thereof by the other, will authorize an ac-
tion by the former to recover the contract
compensation"
! OF this notice the court pointedly says:
This notice was evidently a mere tact
! full move in the midst of controversy and
litigation It required compliance within ten
days, though manifestly II the means em-
! ployed for many years without objection to
make the water clear had been insufficient
the adoption of the now process would have
taken much more time than allowed"
Text of the Opinion.
| Following is the text of the opinion;
! Hook, circuit Judge, delivered the opinion
OF the court.
! THE Omaha Water company brought two
| actions against the city of Omaha the first
/ for hydrant rentals for the six months
ending December 81, 1904. and the other
/ for IKE rentals for the six months ending
/ June 20 1906. They were brought shortly
after the ncerual Of the sums sued for re-
spectively. The Water board Of the city Of
Omaha. which had recently been created a
corporation by legislative act and vested
with certain powers respecting the munich
| pal water supply, was Joined as a defend
ant in the second action. The aggregate
amount claimed was S9i,24O.4S. 1t was not
denied that aside from the specific de-
fenses in the answers. the sums sued for
were due and owing The answers OF the
! city set forth that the contract between 1t
and the company, which was the basis of
! the actions, required OF the latter the con-
| tinued performance Of certain duties and
that 1t had failed in three material partlc-
ulars: D To furnish ample fire protection
| through hydrants without the aid OF hand
or steam engines. C2) To furnish pure,
! wholesome, clear water suitable for culn-
AIRY and drinking purposes (D To install
new hydrants upon new mains as ordered
| by the municipal authorities.
Counter Claim for Damages.
1.-THE answer in the second action also
contained a counter claim OF Ss1, ,645. .6s for
! damages for the failure OF the company
/ In the first OF the particulars mentioned. It
being averred that because Of the made
quate fire protection the city had been COM
! PEELED TO eXpend that sum in the pur-
chase and maintenance of FIRE engines, etc.
The actions were tried together. At the
conclusion of the evidence the trial court,
upon motion for directed verdcts, held
that the city had not made out its first and
second defenses. and therefore denied re-
covery upon the counter claim predlcated
/ upon the matters set out In the first de-
| fense. On the other hand II held that the
! company had failed to install new hy-
! drants by the city, that no legal excuse
| therefor had been shown. and that while
| In the position OF violating the contract II
could not recover upon the contract for
/ the rentals OF the hydrants II had installed
Verdicts for the defendants were directed
| and judgments rendered against the com
| pany on its causes Of action and a judg-
ment against the city on it's counter claim.
The city acquiesced in the result. but the
company prosecuted these writs OF error
Court Right ON First Two.
Upon the theory that II the trial court
should have directed tie verdicts upon any
ground its action should be affirmed
though St selected the wrong one, We have
considered all three OF the defenses OF the
city and have reached the conclusion that
the court was right in It's decision upon the
! first two Of them.
! by the contract and ordinances pur-
suant to which the water works were
built IN l8SO-lSs3 by predecessors in title
of the water company and in which the
municipal franchise was granted, the
! character and style Of the works and the
source from which the water supply was
/ 10 be obtained were definitely prescribed.
] The contract and ordinances left very
! little 20 the judgment end discretion of
/ the builder and practically nothing so far
as the efficiency OF the system depended
| upon the correct solution Of engineering
problems. Before the ordinances were
! adopted and the contract was made
! hydraulls engineer was employed by the
/ municipal authorities 20 study the
! topography OF the city and devise a plan
| for a system OF water works. In May,
! 1880, he submitted 10 the city council an
! exhaustive report describing with much
detail the results Of his layors The re-
! '1rt and an amendment thereto was aft
erwards embodied In the contract ana re-
ferred 70 and made a part Of the ordl-
! nances.
Features or the Report.
''The material features OF tAe report
we're as follows: The water for ali pur-
poses was 20 be secured from the Missouri
river and the point OF intake where tho
pumping station was 70 be installed was
designated The character OF the build
inBs at the pumping station and tho