Camden Sewer Co. v. Mayor of Salisbury

Urner, J., delivered the opinion of the- Court. Upon the former appeal in this case ( 162 Md. 454 , 160 A. 4 ), the order of the lower court sustaining a demurrer to the bill of complaint was reversed and the case remanded for further proceedings'. The present appeal is from a decree dismissing the bill, after the filing of the defendant’s answer and the production of 'evidence by the respective parties. The opinion on the other appeal states in ample detail the material allegations made by the bill of complaint.

It is the purpose of the suit to enforce the specific performance of a contract for the purchase by the City of Salisbury of a sewer system of which the plaintiff, the Camden Sewer Company, is the owner, and by which a part of the city is served. An option for such purchase, reserved in the ordinance granting the franchise for the sewer, was alleged in the bill to have been exercised by the municipality through the institution by it of a suit to compel the transfer of the sewer in accordance with the terms of the ordinance. In sustaining that theory, as against the demurrer to the pending bill, this court held that the conversion of the option into a binding contract, by the action of the city in suing for its enforcement, was not affected by the fact that its suit to that end was subsequently dismissed. The decision to that effect is conclusive against the defense^ interposed by the city’s answer, that its suit against the sewer company was primarily for the purpose of ascertaining the cost of the sewer system to which the ordinance referred.

In regard to that question it was said, in the opinion by Judge Adkins ( 162 Md. 461 , 160 A. 7 ) : “The city, having filed its bill for specific peifformance and prayed that the company be required to transfer and assign to the city said sewerage system ‘upon the payment by the plaintiff to said defendant of the cost thereof plus interest as may be determined by tin's court,’ and pending the determination of the case having ⁴³⁹ sought and obtained from the chancellor an injunction restraining the company from performing part of its ordinary functions, is now estopped to say that the option has not been converted into a contract susceptible of specific performance. It could have been on no other theory than that the city had made its election that the chancellor restrained the company for more than two years, and compelled it by injunction to submit to acts of trespass on the part of the city declared to be such by this court in a suit between the same parties — reported in Salisbury v. Camden Sewer Co., 141 Md. 254 , 118 A. 662 . * * * We do not think the city could institute proceedings for specific performance; allege its willingness and readiness to- take over the sewer system under its option; hold up the company pending the proceedings; and then, when the cost is ascertained in accordance with the provisions of the ordinance-, change its election. Covington Gas Light Co. v. City of Covington, 58 S. W. 805 , 22 Ky. Law Rep. 796 ; Montgomery Gas Light Co. v. Montgomery, 87 Ala. 245 , 6 So. 113 .” It is denied in the- city’s answer that the cost of the- sewer system can be legally and correctly determined.

Upon that subject it was said in the former opinion ( 162 Md. 462 , 160 A. 7 ): “There is no indefiniteness in regard to the price to be paid, as in Schwaneback v. Smith, 77 Md. 319 , 26 A. 409 , and no uncertainty as to the- terms. The price to- be paid is the cost of the- work, and the bill alleges that this is easily ascertainable', and an itemized statement of such costs is filed as an exhibit. Nor was there lacking mutuality after the city made its election. Both parties were then bound, and each was then entitled to specific performance.

Dixon v. Dixon, 92 Md. 440 , 48 A. 152 ; Brewer v. Sowers, 118 Md. 688 , 86 A. 228 .” By the- exercise- of the- option, and under the- terms of the ordinance in which it was reserved, the Mayor and Council of Salisbury acquired the right to assume the- ownership of