'11. CITY OF GOLDSBOROUGH.
(Cf,rcuU Court oj Appeats, Fourth Circuit. October 11, 1892.)
an ordina,lice certlloin persons tocQlJ.struct and opl'lrate gIving tb,empower to acqUlr:e the lalld, and makipg certain 1'e\tU'i1'Wrents as to purity of water, and' the replllrmg of gas }lilies, sewers, and :hithWay" dist:urbed in. J!i-Y!9g j;he watel1pipeil; . was also provided that the gran. 9perate the 20 'years, unless the city bought a pri.ce!tGbe !ftxedby agreement'or arbItratIon. There was no money consIderatIon, and fJ)1l· "'01111 was :the lmt after its passage the city required ;!iqnd as givenwltS c.onditioned be .void if the granteesfajthfully perc . fonnea them ll contract,L"d'11ring the constrUction of said works.." Held, that the , J;l,ot. constit\\t.l;l a lbin,ding1co!ltrll,Ct" and the Qt the grantees tQ theconstrnction of the :wor:li:s did Ilot render them liable on the bone; I , 411<Foo. Rep. 218, reversed., ." .
: ' r
triot, ot ;North, Carolina. Action: by.tthecity Qf Goldsborough against John F.. Moffett, Henry C. Hodgkins, and John V. Clarke, as principals, and Daniel G. GlTiffin a8I,suretj1,'upon ahond; giv,tm. to secure the. performance of. an alleged contract\tiii;constructwaterwc>rks.· Jury waived ,and, trial by the court. Judglllerit -for .plaintiff,· 49 Fed. Rep. 213. Defendants bring error. Reverlel;l.: ' . iLCYWiB Mar,BhaU, fOl! plaintiffs inert-or· .F. :H. Bmbee, for defendant in error. ·BeforeBoND and GOFb', Circuit Judges,and SIMONTON, District Judge.
In Erltod<Y..t he Circuit Court of the United States for the Eastern Dis-
BONn, ,Circl;lit Juqge, This is a 'Writ of error to the circuit court of the United States for the. eastern district. of North Carolina. The facts presented;.by'lihe record, at least so farlc\s it is necessary to state them that the poin.ts raised by the :writ of error may be understood, are these: Theoityof' Goldsborough, having power so to do by its charter, did on the 29th day of March, 1887, adopt an ordinance authorizing Moffett, HOdgkins, and Clarke, .citizens of the state of New York, to Qonstruct, maintain, and operate waterwol,'ks to supply the city with water. is: "An ordinance authorizing Moffett, HodgThe style of and operate waterworks to supkins, and ply the oityof; Goldsborough, North QJ.rolina, and it!! inhabitants with water, and; ,defining their rights, duties, privileges, and The first,seotion. giv,es. the grantees power to acquire the necessary land for the pUllpo,Se:QUhe grant. The sllcond provides for the purity of the water:.· thaHn:layingtheir. pipes and mains they shallllot .obstructany high way, ahan repair any gas pipe or sewer which they disturb, and leave the highwll-ysln as good as they found them when they commenced to lay their pipes and mains. The ordinance provided that the grantees might operate the waterworks for 20 years, unless within that ti'tle the city bought them at a value to be as-
MOFFETT '0. CITY OF GOLDSBOROVGH.
certained by agreement or arbitration. Upon the passage of this ordior licensees to give a bond (although nance, the city required the there is nothing in the ordinance requiring a bond) for the proper exercise of the powers granted by the ordinance. A bond was given in the words "KnQw all men by these presents that we. Moffett, Hodgkins & Clarke, of N. Y., as and· Daniel G. Griffin, as surety, of Watertown, are held and firmly bound unto the city of Goldsborough, N. C.. in the sum of five thousand dollars, ($5,000,) to be paid to the city or its assigns, for which: well and truly to be paid; we hereby jointly and severally bind ourselves, . "IJated:the 7th day of June, A. D. 1887. "Whereas, the city of C·· did on the 29th day of March, A. D. ,1l:l87, :adopt an ordinance authorizing a.nd empowering ¥offett;, HOdgk!ns and .operate, waterworks to the CIty of N.C., and Its Inhabitants With water; and the said orditlancewas duly accepted by said Moffett, Hodgkins & Clarke; and whereas, it: was further required by said city that the said Moffett, Hodgkins & Clarke give a bond in the sum of five thousand dollars ($5,000) :for the faithful performance of their contract: Now, if the said Moffett, Hodgkins & Clarke, or their assigns, do faithfully perform the terms of their contract during the construction of said works, then thiso1>ligation to be void; othel'wis(' to remain in full force and virtue. "MO.FFETT. HODGKINS & CLA.RKE. [Sea1.] "DA.NIEL G. GRIFFIN. [Seal.]" 'l'he circuit court held that the ordinance above recited was a contract on the part of the licensees,plaintiffs ine,rror, to build. and complete a system of waterworks for the supply of that city by a specified time, and that the bond above recited was. a security given by the grantees named in the ordinance for the performance of such contract. This suit is brought upon the bond, and not upon any failure to accept or comply with the ordinance. There are five errors assigned in the record, of which we think it necessary to consider but the first and second, which embrace the above-recited rulings of the court. It will be seen from the above statement of facts that there was no .money consideration which passed between the city of Goldsborough and its licensees 'under the ordinance. There was no'mutuality in the so-called "contract." The whole plant, when complete, was and remained the property ofthe grantees. If the city of Goldsborough found the works successful after they were put in operation, it could purchase them at an agreed valuation, or by ,an award of arbitrators, but the grantees in the ordinance under no obligation to let the plant remain longer than it was remunerative, and could remove it at any time. But there was in the ordin.anell upon the grantees to give any bon'Cl whatno ever. The third section ofitl'required the grantees to leave the streets of the city in as good repair after their use as they found them. The bopdrecited above, upon which this suit is brought, was apparently this desired end. It is a bond without consideration, executed to and even in its langqage .canonly be biridthe parties thereto v.52F.no.6-36
ina. o!85;OOO, the' waterw(jtlia 'wfll'obey' the, ptdqijlOl'lS df'tlie 'Ordmance., gralttees nevel" or atielupted to': Cdnstttibt aIiY waterworkBunder the licet1segivlSn'them by the city ordinanba, 'there has been,dt> breach of the condition of the bond. Weare of opinion that it was error in the drcuit Ool}rt, of tbe eastem'l:Iistrict of 'Nmh'Carolina to hold: that, by the terms df' the licensees therein the, citi with waterworks by the 1st of aM were bouqd\;pprsuant ,construct and operate waterworks for the use of that city; and that the court erred in holding that the defendants below(violated the conditiohsof a certain bonde:ll:ecuted:ibythem'ta'the plaintifi'(below)wherein they agreed to pa.y th,esu,tll did perJ3 Uf, o,J,w,aterw,'orks fQr these rtiHngs, for the ,9f. tpecollrti ,mlow s40uld reversed, 8.l1d the suit dis'itia ,SQ, ordered:'li
1 1 (1
. No.8i 88';
Upon a contract between manUfacturers, bywhicb, inoonsiJeratlOn of the party . of the first pBl't not using his'plant for a certain purpose, the parties of the second , part agree to pay 8 perceotage bn their sales, ne may' mailltaio an action one of them alone, where it is plain that is lu?ldenonly ror his .' , own pajment,
2. MANU1'AOTuBmG COBPORATIONs..;,;.Ur,T:RA Vt:R1!ls'-LnUTING PRODUCTION.
,AprlV:l!'t.El sw",ndson as an iodivillual with relipect to its power fAhnter mto conj;racts to lllmt productlOo, for, as it owes nospeciail duty to tbe pUblic, itcaO: ordinarily limit or omit tbe exeroise of its cor· porat6po\V1lrs· i ·, . ' ,
, '." "
A coutract between manufacturers, whereby the first 'patty agrees, in consider peroentage on the sales made bytthe'second ,party, not to use his plant for ation the proo,vctioo .of strap aod ,T binges for,fi!veyears, the,QOIltract to be in case the se<lo\ld party increase his,facilities'for the production of sucb binges. is void ,liS against publie policy..i' ,. ': , ,,,." Tbe content.i(ln of t.be party that, as he llad fullf performed llis promises, he could recover 1;he llecunilirt consideratton,eveQ though 'the contraot was not euforceable whUe entirely'executory; was
4. ElAME-.-ENFOROEMBNT-P.A:R'llIAJ:. PERFORlIUNCB.
At LllW. ,Action. by Olivet' and 'others, constitilting·the firm of Oliver 'Bros. &:PhillipsiagainstEdwinW.'Oilmore upon a con" tract. On declaration. Sustained.'