Waymart Water Co. v. Borough of Waymart

4 Pa. Super. 211, 1897 Pa. Super. LEXIS 109

Opinion

Opinion by

Rice, P. J.,

By resolution adopted July 18, 1893, the borough council granted to the plaintiff company the exclusive privilege of laying and maintaining water pipes in the borough streets. At a meeting of the council on August 5, 1893, before the reservoir was built or the pipes were laid, officers of the company presented a contract previously prepared, providing, inter alia, as follows : “ That the said first party in consideration of the rents to be paid and the agreements hereinafter to be kept and performed by and on the part of the second party, doth hereby grant and lease unto the said second party a supply of water, unless temporarily ¡erevented by accident or unavoidable casualty, for six fire hydrants, to be used for the purpose of extinguishing fires and for no other purpose, through three inch taps to be made in the mains of the first party by said first party into service pipes laid by second party to connect with hydrants to be erected by said second party near the mains of the first party upon locations in said borough of Waymart to be agreed upon by said parties, for and during the term of ten years from the 1st day of September, A. D. 1893, at a rent of $20 per annum, for each hydrant: to be paid quarterly in advance on the first days of January, April, July and October in each year during the term and continuance of this agreement, and every lawful renewal, holding over or increase in the number of hydrants shall be subject to the provisions of this agreement.” After some discussion, to which we shall hereafter refer, the burgess and clerk signed the contract and affixed the borough seal. This was an action to recover the cost of six fire hydrants, furnished and put in place by the plaintiff, and water rent from November 1, 1893, to January 1,1895, at the annual rate stipulated in the writing. The plaintiff obtained a verdict for the cost of the hydrants, but as to the other branch of the claim there was a verdict and judgment for the defendant, from which the plaintiff appealed.

As this is at the foundation of the plaintiff’s case we quote, in this connection, from the minutes, the only recorded evidence of the action of council relative to this matter: “Waymart, August 5, 1893. Meeting of council on call .of the burgess at the house of James Staples to consider the matter of purchasing fire plugs of the Waymart Water Company. Present, the full board, viz: L. E. Stanton, burgess,” (here follow names of councilmen). “ On organization and consideration of the matter, it was resolved by the burgess and council to purchase six fire plugs at $25.00 each, and an agreement with the Water Company of Waymart was signed by the burgess and clerk of the council to that effect: See agreement on file. Attest J. B. Tuthill, clerk.” Immediately below this entry appears the following memorandum, which, although not strictly part of the official record, the defendant claimed and gave evidence to show was written, read and assented to by the plaintiff’s officers before the contract was signed: “ The above agreement on file to be void and of non-effect unless the water company fulfill their verbal agreement with the burgess and council to erect a reservoir that will contain water and force sufficient to throw an unbroken stream of water of size and force enough to put out fires over any building in Waymart. No water furnished according to said agreement, no pay to be demanded of the borough.”

It will be observed that the meeting of August 5th was called for a single purpose, namely, to consider the matter of the purchase of fire plugs, that not a word is contained in the resolu tion relative to any other matter, and that not a word is contained in the contract in evidence relative to that matter. In short, the resolution was to purchase fire plugs, while the written contract offered in evidence was to furnish to the borough for the purpose of extinguishing fires a supply of water for six fire hydrants, for the term of ten years, for which the borough was to pay a rent of $20.00 a year for each hydrant. When’ this contract was offered in evidence the defendant’s counsel objected to its admission upon the ground that it was broader than the authority given. The plaintiff’s counsel, appreciating the force of the objection, met it, in the only way it could be met, as follows : “It-is to be followed by parol evidence that the written contract embodies the entire action of the town council at that meeting in which it was drawn, notwithstanding the written minutes may not show it.” The contract was then admitted in evidence, but the only attempt to make good the offer was to prove a verbal agreement relative to the price to be paid for the hydrants (really contradictory of the minutes) and what may be implied in the following question put to the plaintiff’s secretary and his answer: “ What else is there that is not on the minutes ? A. The contract for the water service.” The only other witness for the plaintiff who was present at the meeting testified that, so far as his knowledge went, nothing was discussed but the question of the hydrants and where they were to be located. We refer to these details for the purpose of showing, not merely that the plaintiff opened the door to the ádmission of parol evidence of the unrecorded action of the borough council relative to the water supply, but that without such evidence it could not have proceeded a step in the case. It was incumbent on the plaintiff to prove the assent of the borough council to the contract executed by the burgess ; for without that the borough would not be bound although the paper was executed with all due formality. But the plaintiff was unable to show such assent by any ordinance or resolution entered on the minutes or, indeed, by any formal action of the borough council. A body of this kind, ordinarily, must exercise its powers by joint action as a board: School Dist. v. Fuess, 98 Pa. 600; Nason v. Poor Directors, 126 Pa. 445. Loose discussions without any motion or united action are not sufficient: Butler et al. v. School Dist., 149 Pa. 351. Moreover, even if the assent of the council could be proved by evidence of what was said at the meeting when the contract was signed, the great preponderance of the parol testimony as to what took place was to the effect that the councilmen gave assent — such as it was — to the contract proposed by the plaintiff’s officers only upon condition that the company would build a reservoir of sufficient capacity to throw an unbroken stream of water over any building in Waymart and of size and force enough to put out fires, and that before the borough should be bound a test should be made which would be satisfactory to the council. Instead, therefore, of the parol testimony showing that the paper embodied the entire action of the council, it shows the contrary. The burgess had no power to bind the borough beyond the authority given by council. Strike out the parol testimony, and the plaintiff’s case fails for want of proof that the council authorized the contract. Admit it, and it proves that the writing does not embody the whole action of the council regarding the matter. If the entire action of the council, as far as it can be gathered from the testimony of the councilmen, had been put in the form of a resolution, and entered on the inmutes, no one would contend that the borough would be bound to pay the stipulated rent without proof of compliance, on the part of the plaintiff, with the conditions and agreements upon the faith and in consideration of which their consent was expressly given. The same is true where the plaintiff’s case depends upon parol testimony of what the unrecorded action of council was. It cannot rely upon such evidence to prove assent of council and object to that part of it which goes to show that it was given conditionally.

The learned judge submitted the case to the jury upon the theory that, presumptively, the written instrument embodied the agreements of the parties as made at the time, and that the principle that the parol evidence to reform a written instrument must be clear, precise and indubitable was applicable to the case. This was presenting the case in quite as favorable a light as the plaintiff could ask; and even upon that theory we are not to be understood as saying that the evidence was incompetent or was insufficient to sustain a verdict for the defendant. See School Furniture Co. v. Warsaw, 130 Pa. 76, and cases there cited. But as we look at the case the controlling ques tion is, not whether a written agreement of a borough, duly executed by the proper officers pursuant to an ordinance or resolution of the council authorizing it, may be reformed or explained by parol evidence of promises made by the other party at the council meeting, but whether the burgess was unconditionally authorized to execute the agreement sued upon, and if not, what was the agreement which the council made or authorized. Looking at the case from this point of view the plaintiff has no reason to complain of the submission of the question to the jury or of any of the rulings specified in the first, third, fourth and eighth assignments. They are all overruled.

By the written contract the plaintiff agreed to furnish a “ supply ” of water for six fire hydrants, to be used for the purpose, and no other, of extinguishing fires. A primary meaning of the term is, “ an amount sufficient for a given use or purpose,” and it was evidently used in that sense in this connection. The clause, fairly construed, not only restricted the use of the water, but clearly implied that the supply to these hydrants should be of sufficient force and volume to be reasonably effective for the purpose for which the company agreed to supply it. This seems to us too plain to require discussion or a citation of authorities. The second assignment is overruled.

The instruction complained of in the sixth assignment, read with the context and the answer to the defendant’s fourth point was free from error. “ It is undoubtedly true, when the agreement is to make and deliver an article to the satisfaction of the person for whom.it is made, the latter, acting in good faith, and not from mere caprice, may refuse to accept if, for any reason, it is really not satisfactory to him: Singerly v. Thayer, 108 Pa. 291; Seeley v. Welles, 120 Pa. 69. But when the refusal to receive is made before an actual, bona fide inspection of the article or before an opportunity is had to judge of its quality or merits, no such rule could obtain; for it would be impossible, in such a case, to decide whether the article is satisfactory or not: ” School Furniture Co. v. Warsaw, 180 Pa. 76-93. The learned judge submitted the question as to the test and as to the result of the same, and as to the bona fides of the council in declaring it unsatisfactory, hr exact accord with the principles enunciated in the cases above cited. If the assent of the council was given upon condition that the borough should not be compelled to pay the rent until after a test, satisfactory to them, should be made, and if the council acted in good faith, and without delay in expressing their dissatisfaction it was not for the court or jury to say that the borough would be bound if the test was or ought to have been partially satisfactory. The sixth assignment is overruled.

The seventh assignment relates to the admission in evidence of the memorandum entered on the minute book immediately after the regular minutes of the meeting of August 5th. This, it is true, was no part of the minutes, and it was not admissible as such, but only as a written memorandum 'which was read in the hearing of, and assented to by, the plaintiff’s officers before the contract was signed. This was fully and clearly explained to the jury by the court, and there was ample evidence to warrant its submission to them as part of the deliberations which took place in connection with the signing of the contract. This assignment and the fifth, which relates in part to the same subject, are overruled.

We see no error in permitting the cross-examination complained of in the ninth assignment. The witness had testified, in chief, that water was being supplied to the hydrants and that the supply was ample. It was clearly competent upon cross-examination to inquire as to his means of obtaining a correct and certain knowledge that the supply was ample.

The judgment is affirmed.