Great Bend Water & Electric Co. v. City of Great Bend

Supreme Court of Kansas

Great Bend Water & Electric Co. v. City of Great Bend

205 P. 359, 111 Kan. 229, 1922 Kan. LEXIS 210

CourtSupreme Court of Kansas

DecidedMay 6, 1922

DocketNo. 23,596

StatusPublished

This text of 205 P. 359 (Great Bend Water & Electric Co. v. City of Great Bend) is published on Counsel Stack Legal Research, covering Supreme Court of Kansas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Great Bend Water & Electric Co. v. City of Great Bend, 205 P. 359, 111 Kan. 229, 1922 Kan. LEXIS 210 (kan 1922).

Pincite

Opinion

The opinion of the court was delivered by

Burch, J.:

The action was one to recover hydrant rental for the period, November, 1917, to September, 1918. The court denied the relief prayed for, and the plaintiff -appeals.

The action was based on a contract between the plaintiff and [230]*230the defendant, whereby the plaintiff was authorized to maintain a system of waterworks in the city, and the defendant -agreed to pay hydrant rental. The contract contained a guaranty that the system would be capable of meeting specified efficiency requirements. The city was authorized to demand tests of ability to fulfill the requirements, and the contract contained the following provision:

“If for any reason the said grantee shall be unable to comply with the said requirements for a test, the liability of said city to pay the hydrant rental'provided in this ordinance shall be suspended until said grantee shall be able to comply with said requirements.”

At a test made pursuant to demand, the system failed to meet the requirements, and the defendant discontinued payment of hydrant rental. - The plaintiff contends the provision for suspension of liability merely postponed time of payment. The court is of opinion the intention was no rental should be recoverable for any period during which service was demonstrated by test to be inefficient. This interpretation gives the word' “suspended” an approved meaning (Webster’s New International Dictionary, 1920, title “suspend,” 7), and gives to the whole provision the only practical effect which could have prompted inserting it in the contract.

It is contended the test was not binding, because, contrary to a provision of the contract, water was taken from the system' for public and private consumption while the test was in progress. ' The defendant knew what the consumption of water during the test would likely be-; knew what the effect on the test would be; knew notice had not been given-to refrain from using water during the test; and with this knowledge voluntarily proceeded with the test as a demonstration of efficiency according to contract. Under these circumstances the plaintiff was bound by result of the test.

The judgment of the district court is affirmed.

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The opinion of the court was delivered by

Burch, J.:

The action was one to recover hydrant rental for the period, November, 1917, to September, 1918. The court denied the relief prayed for, and the plaintiff -appeals.

The action was based on a contract between the plaintiff and [230]*230the defendant, whereby the plaintiff was authorized to maintain a system of waterworks in the city, and the defendant -agreed to pay hydrant rental. The contract contained a guaranty that the system would be capable of meeting specified efficiency requirements. The city was authorized to demand tests of ability to fulfill the requirements, and the contract contained the following provision:

“If for any reason the said grantee shall be unable to comply with the said requirements for a test, the liability of said city to pay the hydrant rental'provided in this ordinance shall be suspended until said grantee shall be able to comply with said requirements.”

At a test made pursuant to demand, the system failed to meet the requirements, and the defendant discontinued payment of hydrant rental. - The plaintiff contends the provision for suspension of liability merely postponed time of payment. The court is of opinion the intention was no rental should be recoverable for any period during which service was demonstrated by test to be inefficient. This interpretation gives the word' “suspended” an approved meaning (Webster’s New International Dictionary, 1920, title “suspend,” 7), and gives to the whole provision the only practical effect which could have prompted inserting it in the contract.

It is contended the test was not binding, because, contrary to a provision of the contract, water was taken from the system' for public and private consumption while the test was in progress. ' The defendant knew what the consumption of water during the test would likely be-; knew what the effect on the test would be; knew notice had not been given-to refrain from using water during the test; and with this knowledge voluntarily proceeded with the test as a demonstration of efficiency according to contract. Under these circumstances the plaintiff was bound by result of the test.

The judgment of the district court is affirmed.

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Bluebook (online)

205 P. 359, 111 Kan. 229, 1922 Kan. LEXIS 210, Counsel Stack Legal Research, https://law.counselstack.com/opinion/great-bend-water-electric-co-v-city-of-great-bend-kan-1922.