Welsbach Street Lighting Co. v. City of Wichita

Citations

• 101 Kan. 452
• 168 P. 1090
• 1917 Kan. LEXIS 118

Syllabus

<p>SYLLABUS BY THE COURT.</p> <p>1. Street Lighting Contract — Expiration of Contract — Waiver of Contract Bights. A waiver of a contract right implies a voluntary and intentional renunciation of it, and some positive act or‘positive inaction inconsistent with the contract right is necessary to create a waiver.</p> <p>2. Same — Waiver of Contract Bights — Estoppel. Where the element of estoppel is involved in a waiver of a contract right, there must be some willful misrepresentation or fraudulent conduct tending to mislead or prevent the other party to the contract from doing what it is privileged to do to protect its rights.</p> <p>3. Same — Notice of Expiration Not Given — Contract Renewed. The plaintiff company made a contract with the defendant city to light its streets “for the term of five years, from the first day of July, 1905; it being mutually understood that this contract shall continue for another term unless official notice be given by .either party to the other sixty days before its expiration.” No official notice was given to terminate the contract. The defendant city sought to prove a waiver of the sixty-days official notice by the following incidents: (a) An unaccepted proposition offered by plaintiff suggesting changes and economies in the city’s lighting system and an unaccepted offer to change the existing contract; (&) the drafting of a proposed but unadopted lighting ordinance by plaintiff’s attorney at the suggestion of a city commissioner and pursuant to an agreement at a conference in the mayor’s office; (c) the plaintiff’s participation in a competitive exhibition of street-lighting systems at the city’s invitation, which recited that the city’s street-lighting contracts would soon expire; (d) the plaintiff’s participation in competitive bidding for a new contract for street lighting; (e) a voluntary, unauthorized statement by plaintiff’s attorney (and unaccepted by defendant) that if a new contract were awarded to another lighting company