
    No. 921
    McGOWAN v. PORTSMOUTH (City)
    Ohio Supreme Court
    No. 17334.
    Decided Dec. 30, 1922
    (To Appear — OS.)
    259. MUNICIPAL LAW.
    Provision in contract for partial use of waterworks before acceptance by city, does not authorize charges for additional labor, repairs and super-pn, in operating and maintaining the plant, official syllabus, see 5 Abs. 135.)
    Attorneys — Hosea, Knight & Phares, Cincinnati, and Miller & Searl, Portsmouth, for McGowan; Cher-rard M. Johnson, Sol and S. A. Skelton, Portsmouth, W. J. Meyer, Columbus, and E. G. Miller, for Portsmouth (City).
   MATTHIAS, J.

Epitomized Opinion

By a contract in writing, McGowan Co. agreed to construct a waterworks plant for the city of Portsmouth and it was provided that the city could enter upon and use the whole or any portion of the work previous to its acceptance by the city. It further provided that the contractor would be held responsible for the entire work. In accordance with the terms of the contract, the city entered upon and used the waterworks plant after the installation of the machinery and pumping equipment by the company, but prior to the acceptance By the city. McGowan contended that when the city entered upon and operated the plant under the privilege granted, it thereby agreed that it would protect, supervise, repair and maintain the machinery and pumping equipment and operate it with skilled labor, but that the city failed to do this and it was necessary for the company to provide skilled labor at a cost of about $12,000. The jury returned a verdict for the company. This judgment was reversed by the Court of Appeals. In affirming the latter judgment, the Supreme Court held:

1. There is no expressed provision in the contract relative to the expense of operation of any portion of the plant which the city was, under its terms, permitted to use pending acceptance. Presumably, it would be at the city’s expense, but there was no warrant for the company to volunteer to provide labor or materials for the benefit of the city and it could not volunteer such service and maintain an action as upon quantum meruit.  