SOMERYILLE, J.
The evidence discloses, without conflict, that the plaintiff had been furnishing the defendant, for eight or ten years, with water “ for fire purposes,” through a large number of hydrants; this water being used by the city authorities for the purpose of extinguishing fires, whenever required. No account was kept of the quantity of water consumed for this purpose; but the defendant had paid for this privilege, regularly, the annual sum of seventy-five dollars per hydrant, in monthly installments of six dollars and a quarter per hydrant.- This suxxx had been paid on the first of each month, on bills rendered for the preceding month, based upon the foregoing rates; and these payments had been continued up to the first of May, 1884. The bill for May, being presented on the first of the succeeding month, was refused payment by the defendant, and so with the bill for June; and for the amount of this bill the present action was brought. It [254] is further made to appear, that all water used by the city, for other purposes than that of extinguishing fires, was paid for on a quant/um. valebat, at prices charged private consumers. The court gave the general charge, at the request of the plaintiff, on this state of facts; probably considering that the law implied a contract from the facts, and that this implied promise to pay was not abrogated or affected' in any manner by a certain resolution of the city council of Montgomery, passed in the month of May, to which we shall advert in the consideration of the questions before us.
Nothing is plainer than the proposition, that the distinction between express contracts and implied contracts lies, not in the nature of the undertaking, hut in the mode of proof. As observed by this court in Keel v. Larkin, 72 Ala. 493, 502, “ both express and implied contracts are founded upon- the actual agreement of the parties, the only distinction between them being as to the mode of proof, or evidence by which they are substantiated.” — 2 Greenl. Ev. § 102. The evidence, in the present case, tended to show that the water furnished the hydrants, prior to the month of May, had been furnished and paid for under a contract between the parties. The terms of this contract riot being specially set out, we interpret the bill of exceptions to mean, that they were in harmony with the action of the contracting parties above indicated. The plaintiff declares, both upon a special contract, and upon the common count for water furnished to supply the fire-plugs, or hydrants.
If there was a special agreement on defendant’s part to pay a stipulated sum to the plaintiff, for the privilege of using water to extinguish fires, and defendant furnished the requisite amount, of suitable quality for the purposes intended, and this agreement continued in force and unrescinded, there can be no doubt of plaintiff’s right to recover under the first count, whether any water was actually consumed or not. And if the special agreement had terminated, and the defendant continued to use the water as before, in the-same manner, and for the same purposes, without any notice of intention not to submit to the same terms and conditions, the law would raise an implied promise to pay the rate of recompense fixed by the former contract. The case is not one of a quantiom valebat. The contract shown by the evidence, whether-express or implied, is not one to pay for the quantity of water actually consumed or taken from the hydrants, but an agreement to pay a stipulated sum each month, for the right or privilege of using as much as they needed. The obligation of the plaintiff was, to always have the requisite amount of water in their works, ready for use. If they had fully performed this duty, a recovery could as well [255] be had under the common count, as under a special agreement; the presumption being, that the price to be charged would be the contract price. — 2 Greenl. Ev. (14th ed.) §§ 104, 136, note 4; Grover & Baker Sewing Machine Co. v. Bulkley, 48 Ill. 180; Wolffe v. Wolffe, 69 Ala. 540 (44 American Rep. 526).
It is our opinion, that the facts in evidence presumptively established an agreement, whether express or implied it is immaterial, by which the jury, if they believed it, were required to infer a promise by the defendant to pay the plaintiff the sum of six dollars and a quarter for the privilege of using water from the fire-plugs, or hydrants, furnished by them to the city council of Montgomery.
This implication is not rebutted by the resolution of the city council, passed in the month of May, 1884. This resolution, while it does not admit, pointedly fails to deny, the existence of the alleged contract. The objection raised goes rather to the good quality and sufficiency in quantity of the water furnished ; and the declaration is, that nothing will be paid for the use of the water until these alleged defects are remedied. There was no notice to the plaintiff not to continue to supply the fire-hydrants with the customary supply of water, and the use of the water by the defendant continued during the months of May and June precisely as before. It does nof appear that the quality or quantity of the water had in any manner depreciated, but that it continued the same. If such a defense had been interposed, the burden of proving it would have devolved upon the defendant. Under this state of facts, the continued enjoyment of the benefits of the existing contract must be presumed to be accompanied with its attendant burdens. The defendant knew that the plaintiffs had given no consent to reduce the price of the privilege, and the continuation of the use of the hydrants was their own voluntary act. In such a case, the law presumes an implied agreement to pay the contract price.
We find no error in the rulings of the court on the evidence; and in'our judgment, the general charge to find for the plaintiff was properly given.
STONE, O. J.
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SOMERYILLE, J.
The evidence discloses, without conflict, that the plaintiff had been furnishing the defendant, for eight or ten years, with water “ for fire purposes,” through a large number of hydrants; this water being used by the city authorities for the purpose of extinguishing fires, whenever required. No account was kept of the quantity of water consumed for this purpose; but the defendant had paid for this privilege, regularly, the annual sum of seventy-five dollars per hydrant, in monthly installments of six dollars and a quarter per hydrant.- This suxxx had been paid on the first of each month, on bills rendered for the preceding month, based upon the foregoing rates; and these payments had been continued up to the first of May, 1884. The bill for May, being presented on the first of the succeeding month, was refused payment by the defendant, and so with the bill for June; and for the amount of this bill the present action was brought. It [254] is further made to appear, that all water used by the city, for other purposes than that of extinguishing fires, was paid for on a quant/um. valebat, at prices charged private consumers. The court gave the general charge, at the request of the plaintiff, on this state of facts; probably considering that the law implied a contract from the facts, and that this implied promise to pay was not abrogated or affected' in any manner by a certain resolution of the city council of Montgomery, passed in the month of May, to which we shall advert in the consideration of the questions before us.
Nothing is plainer than the proposition, that the distinction between express contracts and implied contracts lies, not in the nature of the undertaking, hut in the mode of proof. As observed by this court in Keel v. Larkin, 72 Ala. 493, 502, “ both express and implied contracts are founded upon- the actual agreement of the parties, the only distinction between them being as to the mode of proof, or evidence by which they are substantiated.” — 2 Greenl. Ev. § 102. The evidence, in the present case, tended to show that the water furnished the hydrants, prior to the month of May, had been furnished and paid for under a contract between the parties. The terms of this contract riot being specially set out, we interpret the bill of exceptions to mean, that they were in harmony with the action of the contracting parties above indicated. The plaintiff declares, both upon a special contract, and upon the common count for water furnished to supply the fire-plugs, or hydrants.
If there was a special agreement on defendant’s part to pay a stipulated sum to the plaintiff, for the privilege of using water to extinguish fires, and defendant furnished the requisite amount, of suitable quality for the purposes intended, and this agreement continued in force and unrescinded, there can be no doubt of plaintiff’s right to recover under the first count, whether any water was actually consumed or not. And if the special agreement had terminated, and the defendant continued to use the water as before, in the-same manner, and for the same purposes, without any notice of intention not to submit to the same terms and conditions, the law would raise an implied promise to pay the rate of recompense fixed by the former contract. The case is not one of a quantiom valebat. The contract shown by the evidence, whether-express or implied, is not one to pay for the quantity of water actually consumed or taken from the hydrants, but an agreement to pay a stipulated sum each month, for the right or privilege of using as much as they needed. The obligation of the plaintiff was, to always have the requisite amount of water in their works, ready for use. If they had fully performed this duty, a recovery could as well [255] be had under the common count, as under a special agreement; the presumption being, that the price to be charged would be the contract price. — 2 Greenl. Ev. (14th ed.) §§ 104, 136, note 4; Grover & Baker Sewing Machine Co. v. Bulkley, 48 Ill. 180; Wolffe v. Wolffe, 69 Ala. 540 (44 American Rep. 526).
It is our opinion, that the facts in evidence presumptively established an agreement, whether express or implied it is immaterial, by which the jury, if they believed it, were required to infer a promise by the defendant to pay the plaintiff the sum of six dollars and a quarter for the privilege of using water from the fire-plugs, or hydrants, furnished by them to the city council of Montgomery.
This implication is not rebutted by the resolution of the city council, passed in the month of May, 1884. This resolution, while it does not admit, pointedly fails to deny, the existence of the alleged contract. The objection raised goes rather to the good quality and sufficiency in quantity of the water furnished ; and the declaration is, that nothing will be paid for the use of the water until these alleged defects are remedied. There was no notice to the plaintiff not to continue to supply the fire-hydrants with the customary supply of water, and the use of the water by the defendant continued during the months of May and June precisely as before. It does nof appear that the quality or quantity of the water had in any manner depreciated, but that it continued the same. If such a defense had been interposed, the burden of proving it would have devolved upon the defendant. Under this state of facts, the continued enjoyment of the benefits of the existing contract must be presumed to be accompanied with its attendant burdens. The defendant knew that the plaintiffs had given no consent to reduce the price of the privilege, and the continuation of the use of the hydrants was their own voluntary act. In such a case, the law presumes an implied agreement to pay the contract price.
We find no error in the rulings of the court on the evidence; and in'our judgment, the general charge to find for the plaintiff was properly given.
STONE, O. J.
The resolution of the city council of Montgomery, a copy of which was served on the Montgomery Water Works Company, was in no sense a repudiation of the price charged, and previously paid for the use of the fire-plugs. It was a determination to pay nothing to the company for its water, “until that company, in the judgment of the council, furnish the city with a sufficiency of water, both in quantity and quality, to supply the water-plugs now located in the city, [256] with good water.” The resolution being to pay nothing, its most natural interpretation is, that unless the Water Works raised the supply of water up to the standard which the council termed good, both in quantity and quality, then the city would cease to use the fire-plugs; for it can not be supposed the intention was to use the water, and yet pay nothing for it, because of its inferiority. The rule^ must be applied, observed in kindred questions, that a specification of particular objections, is a waiver of every thing not expressed. Indusio wnius est exdusio alterius. It is like the objection to testimony, or to the preliminary proofs in the case of insured property destroyed by fire, or to the sufficiency of a tender, on specified grounds. In either such case, a specified objection is a waiver of all other objections that might be made, and concedes there is in fact no objection, other than that which is specified. — 1 Brick Dig. 887, § 1194 ; Firemen's Ins. Co. v. Crandall, 33 Ala. 9 ; 2 Greenl. Ev. § 601. The city council, by the course it pursued, must be held to have precluded itself from raising the question of the price it would pay for the use of the fire-plugs, if it used them.
The witness Báldwin, against defendant’s objection, was permitted to testify that there was “ no relation between the water actually consumed and the price charged for furnishing hydrants with water for fire protection.” The present action claimed a recovery, not for any extra water consumed, but for supplying water to a given number of fire-plugs, or hydrants, for fire protection, or for use. Supplying water to hydrants, for use in case of fires, denotes, ex vi termi/norum, that the Water Works Company bound itself to keep the hydrants supplied with water for use, when needed, and that it can have no relation to the quantity of water that may be needed or used. The testimony, tending as it did to prove only what the law, in its absence, would have inferred from the very terms of the contract, it is immaterial whether the testimony was legal or illegal. It could work no possible injury. Let it be understood, how-ever, that what I have said applies only to this suit, where the only claim made is for so much per hydrant, for keeping them supplied with water for fire purposes. Should there be a claim asserted for water used, not in extinguishing fires, but for some other purposes, my remarks must be construed asffieciding nothing on that question.
I fully concur in the conclusions reached by mv brother Somerville.
Clopton, L, not sitting.