Brooks v. W. U. Tel. Co.

to a person who had agreed to purchase it at a certain price, the measure of damages was the difference between the amount which he would have received for the property and the amount which he did receive on disposing of it after use of due diligence to obtain the highest price which could be had under the circumstances." In reversing the case upon this ground, Mr. Justice MCCARTY, speaking for the court, said: "This case must, however, be reversed and sent back for a new trial. It was not shown that the price for which the horses were sold was the highest price that respondents, with reasonable diligence, could have obtained under the circumstances; and there is no evidence in the record which even tends to show that there was or appeared to be any necessity for disposing of the horses before Searcy, the party to whom they were bargained, arrived. It will thus be observed that some of the elements necessary to entitle respondents to recover more than nominal damages are lacking, as the record now stands. Under these circumstances, the instructions asked by appellant should have been given, and it was error for the court to refuse."

The decisive question, therefore, now, is whether the evidence thus referred to, and the lack of which rendered the former judgment erroneous, has been

2

supplied herein. The witness R. S. Brooks, one of the plaintiffs, and the one who had the horses in charge at Green River, testified, in substance, that, upon failing to obtain a telegram from his partner, he believed the purchaser from Ogden was not coming; that thereupon, seeing some horsemen there, he tried to sell the horses to them; that he tried to sell to one Toponce, and "made inquiries whether there were any horse buyers there, and did not find any, except Mr. Toponce, up to that time;" that about 7:30 o'clock in the evening of the same day (September 24) he sold the horses at $9 per head which was the best price he could get; that on the next day the purchaser arrived from Ogden (Mr. Searcy), looked the horses over, and demanded them at

Brooks v. W. U. Tel. Co.

the agreed price of $11 per head; and that witness remained there for three days after the sale, but saw no other horse buyers around there. Respecting the point why he sold the horses so soon, the witness testified: "I sold them because I knew Mr. Searcy was not coming, and it was expensive keeping them there. The horses were shrinking every hour, and this was the only buyer I saw who wanted any horses, and I sold them to him. Green River has about six or eight hundred people. It is a division station, composed principally of railroad men and merchants. It is not a horse market, and Denver, which is about 400 miles distant, is the first horse market east of there. The next horse market east is Grand Island. I know of no horse market south or north of Green River, and Ogden is the first horse market west of Green River, and is about 180 miles away. Salt Lake is the next horse market. Mr. Searcy had not arrived at Green River on the 24th. He arrived on Tuesday, the 25th." This evidence appears to be uncontradicted, and we do not deem further reference to the testimony necessary. From the proof now before

us, it seems clear that the party in charge used his 2 best judgment, upon failing to receive the expected

telegram, in disposing of the animals, and exercised due diligence in his endeavor to obtain the highest and best price, under the circumstances. Nor, under the facts and circumstances as they now appear, can it justly be said that he acted too hastily in making the sale.

Under the authority of our former decision, above referred to, this judgment must be affirmed, with costs. It is so ordered.

BASKIN, C. J., and MCCARTY, J., concur.

Ogden City v. Waterworks & Irr. Co.

OGDEN CITY, a Municipal Corporation, Appellant, v.
THE BEAR LAKE & RIVER WATERWORKS
& IRRIGATION COMPANY, a Corporation, THE
BEAR RIVER IRRIGATION & OGDEN WA-
TERWORKS COMPANY, a Corporation, SAM-
UEL M. JARVIS and ROLAND R. CONKLIN,
Respondents.

No. 1501. (76 Pac. 1069.)

1. Municipal Corporations: Contract for Water Supply: Validity.

Sess. Laws 1888, p. 116, c. 48, art. 4, sec. 1, subd. 14, provided that a city council should have power, among other things, to construct and maintain waterworks, or to authorize the construction and maintenance of the same by others. Held, that a contract between a city and defendant for the construction and maintenance of a system of waterworks by defendant was valid, though made by a resolution, and not by an ordinance.

2. Same: Estoppel.

Where a city contracted with defendant for the building of a waterworks system, by which defendant was to supply the city and its inhabitants with water, and it permitted the construction of the waterworks, and for more than six years availed itself of the benefits of the system, and assessed and collected an annual tax thereon, and permitted a third person to acquire title to the system, the city was estopped to thereafter question the validity of the contract.

A city waterworks system being in an almost worthless con-
dition, the city contracted with another to lease to him the
city's water right, in consideration of the benefits and ad-
vantages to be secured to the city, for an annual rental of
$1; and thereafter the city, under the contract, received a
satisfactory water service, and free water for the purpose
of flushing sewers, etc. Held, that the contract was not
void on the theory that a part of the consideration was
the leasing by the city of its water right, which had been
dedicated to a public use, for an annual rental of $1; the
true consideration being the construction of a new water
system, and the furnishing of a plentiful supply of water.

Ogden City v. Waterworks & Irr. Co.

4. Same: Power to Lease.

Where the waterworks system of a city was in such a condition that it was almost worthless, the city had authority to lease its water right to another in consideration of his erecting and maintaining a waterworks system for the furnishing of a proper supply of water to the city.

5. Same: Confiscation of Property: Constitutional Law. Where, by contract between a city and another, the latter agreed to build and maintain a waterworks system for supplying water to the city, and such party, relying on the terms of the contract and the good faith of the city, constructed, at a cost of many thousands of dollars, a satis factory water system, a decree holding the contract void because of any informality in its execution, and that the city was the owner of the waterworks system, and was entitled to the rents which had been collected, would have amounted to a violation of Const. art. 1, section 22, declaring that personal property shall not be taken for public use without just compensation.

(Decided May 28, 1904.)

Appeal from the Second District Court, Weber County. -Hon. H. H. Rolapp, Judge.

The facts are stated by the court. From a judgment in favor of the defendants, the plaintiff appealed.

AFFIRMED.

John E. Bagley, Esq., and John D. Murphy, Esq., for appellant.

Neither the city nor the taxpayers are estopped from contesting the validity of the proceedings if they act within a reasonable time. 2 Beach, Pub. Cor., sec. 1327; State v. Atlantic City, 9 Atl. 759; 15 A. & E. Enc. of Law, 1100; Seeger v. Mueller, 24 N. E. 515. Estoppel does not apply to the illegal acts of municipal corporations or acts done in violation of law. 1 Beach 217.

Municipal corporations can only be bound by con

Ogden City v. Waterworks & Irr. Co.

tracts authorized by ordinance duly passed. Borough of Milford v. Milford Water Co., 17 Atl. 186, 124 Pa. St. 610; 2 Beach on P. C., sec. 1328; Newman v. City of Emporia, 32 Kan. 456, 4 Pac. 818; Hunt v. Lambertville, 45 N. J. Law 281; State v. Bayonne, 6 Vroom 335; State v. Hoboken, 6 Vroom 205; 17 A. and E. Enc. of Law, 237, 238; McCoy v. Bryant, 53 Cal. 249, 251; Town of Durango v. Pennington, 8 Colo. 257, 7 Pac. 15; Pettis v. Johnson, 56 Ind. 136; City of Central v. Sears, 2 Colo. 589; Smith v. Com., etc., 41 Pa. St. 335.

And contracts not so authorized are not ratified by payments for water made by councils not interested in the company. 2 Beach on P. C., sec. 1328; Borough of Milford v. Milford Water Co., 17 Atl. 186, 124 Pa. St. 610; Town of Durango v. Pennington, 6 Colo. 257, 7 Pac. 15; San Diego Water Co. v. City of San Diego, 59 Cal. 592; McBrien v. Grand Rapids, 56 Mich. 95.

Not only the courts, but individuals, are bound to know the law, and cannot be received to plead ignorance of it. The holder of the bonds in question can claim no indulgence on that score, and can take no advantage from the allegation that he is a bona fide purchaser without notice. South Ottawa v. Perkins, 94 U. S. 260; Boone on Corp., sec. 104; Weisner v. Village of Douglass, 64 N. Y. 91; McPherson v. Foster, 43 Iowa 48; Seeger v. Mueller et al., (Ill.) 24 N. E. 515.

Where council can only act, originally, by ordinance, it can only ratify by ordinance. Cross v. Morristown, 18 N. J. Eq. 305; 15 A. and E. Enc. of Law, p. 1104; 1 Beach on Pub. Corp., sec 251 and n.; McCracken v. San Francisco, 16 Cal. 519; Pimental v. San Francisco, 21 Cal. 351; Town of Durango v. Pennington, 8 Colo. 257, 7 Pac. 15, 17; Brown v. Mayor, etc., of N. Y., 63 N. Y. 239; People v. Swift, 31 Cal. 26; New Orleans v. Clark, 95 U. S. 644; McCoy v. Bryant, 53 Cal. 249, 251.

The reference to the "contract" and the subsequent resolution to authorize the mayor to execute the engrossed copy did not validate it. South Ottawa v.