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Adkisson v. Ozment





APPEAL from the Circuit Court of Saline County; the Hon. HENRY L. McCABE, Judge, presiding.


Defendants, Kenneth Ozment, Mayor, the City of Harrisburg, Illinois, a municipal corporation, and Butch Biggs, Jerome Bishop, Charles Dee Barrett, Gene Ragan, as city commissioners of the City of Harrisburg, hereinafter referred to as "the City," appeal from a decree of the circuit court of Saline County permanently enjoining them from increasing certain water rates pursuant to a contract dated August 6, 1957.

Plaintiffs Adkisson, Rittenberry, Borders, Conrad and Swansey as Board of Trustees of the Dorris Heights Water Board Association of Saline County, Illinois, hereinafter referred to as "the Board," brought this action following an attempted termination on June 18, 1975 of the said contract. Defendants counterclaimed, inter alia, for a declaration that the August 6, 1957, contract did not constitute a valid, binding agreement or in the alternative that the contract had been lawfully terminated and that a new contract at a new rate had been created.

On August 11, 1975, the circuit court of Saline County issued a temporary injunction which was subsequently dissolved on September 17, 1975. The final decree, entered January 27, 1977, denied defendants' counterclaim, declared the August 6, 1957, agreement to be a valid contract and permanently enjoined the defendant "from failing to comply with the terms and provisions of said agreement" and "from in any way increasing the water rates of the residents of Dorris Heights, Saline County, Illinois, except pursuant to the provisions set forth in said agreement."

Because the agreement in question is relatively brief and because we are compelled to construe the contract as a whole, we quote it in its entirety:

"THIS AGREEMENT made and entered into this 6th day of August, 1957, by and between the City of Harrisburg, a municipal corporation, party of the first part; and Jim Rittenberry, Lewis Dalton, Ralph Adkisson, William Borders and Elmer Holland, members of the Dorris Heights Water Board Association, parties of the second part, as follows:

Party of the first part agrees to furnish water and available pipe to extend the water service to the Dorris Heights community commencing at the connection at the housing project in Wilmoth Addition and run North to Dorris Heights Main Road to the distance equivalent to the available pipe owned by the city of Harrisburg for the use and benefit of the parties of the second part and for other prospective water users complying with the terms of this agreement.

Parties of the second part promise and agree to install, maintain and secure the right-of-way for the installation of said pipe to the users thereof and to cause to be installed a separate water meter for each user of water and to install the said meters.

It is understood and agreed that the said water line shall be under the supervision, maintenance, control, and rules of the Dorris Heights Water Board until such time, if and when, the said territory should be incorporated into the city limits of the city of Harrisburg.

It is understood and agreed that water shall be billed by the party of the first part to the users in accordance with the current rates existing in the city of Harrisburg, and that the users shall be subject to all of the Ordinances of the city of Harrisburg and the rules and regulations of the Water Department of said City."

• 1 Defendants first contend that the agreement is unenforceable due to an absence of mutuality of obligation. In support of its argument defendants note that the terms of the contract demand nothing of the Board or the residents of Dorris Heights — neither that they use nor pay for the water it is obligated to furnish. While it is true that the contract does not explicitly require use or payment by plaintiffs, such promises are clearly implied from a reading of the contract as a whole. (Illinois Commerce Com. v. Central Illinois Public Service Co., 25 Ill. App.3d 79, 322 N.E.2d 520; Cook-Master, Inc. v. Nicro Steel Products, Inc., 339 Ill. App. 519, 90 N.E.2d 657.) In Thebest Laundry & Cleaning Co. v. Duffy, 293 Ill. App. 252, 12 N.E.2d 235, the court quoted from a New York opinion (Grossman v. Schenker, 206 N.Y. 466, 469), where it was stated:

"A contract includes not only what the parties said but also what is necessarily to be implied from what they said."

We feel that the language of the contract in this case necessarily implied a promise to use the water furnished and to pay for the service as billed.

• 2 Nevertheless, we recognize that even contracts which are defective due to a lack of mutuality at inception may be cured by performance in conformance therewith (Air Conditioning Training Corp. v. Majer, 324 Ill. App. 387, 58 N.E.2d 294). In this case the plaintiffs performed the implied promises of the contract using and paying for the water supply for approximately 18 years. Thus, we ...

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