(dissenting):
I would be convinced that this judgment should be affirmed except for one thing. It seems to me that proper construction has not been given to one of the provisions of the 5th clause of the contract itself, which as I view it furnishes a consideration. The 5th clause provides: “ Said Company shall take care of and make all necessary repairs to such Hydrants and connections, at the expense of the Village, and have control thereof except for fire purposes, and the Village shall not detach the Hydrants from the main pipes without the consent of the Company.” Mr. Justice Kellogg seems to think that the words “ have control thereof ” signify a burden or obligation rather than a benefit to the plaintiff. I cannot so construe them. This 5th paragraph contains by its express language more than obligations on the part of the company. It expressly indicates an obligation on the part of the village to pay the expense of the care and repairs of the hydrants and connections and to refrain from detaching the hydrants without consent of the company. I think it is reasonable to suppose *717that the word “ control ” was used in a permissive sense rather than in the sense of an obligation. I think it was intended that the company should control the use and have the right to use except for fire purposes. This is borne out by the last clause of that paragraph which safeguards the right of the company to use these hydrants for other than fire purposes. As a matter of fact the company did use the hydrants for its own purposes and for its own profit during this period. In order that the hydrants be under the control of the water company, the water company must have the right to turn them on and turn them off, to attach hose or pipes to them, draw water through them and in a word use them. If the village could prohibit their use other than in times when fire protection was' necessary, it cannot be said that the water company has control of them. The thing which the water company promised was the furnishing of the water. The benefit which the water company received was an outlay of $4,000 or $5,000 for the construction of these hydrants and their care and repair at the expense of the village, which hydrants, so paid for and maintained, the company could use for its own benefit and profit under" its right to control except for fire purposes, and the village could not detach the hydrants from the main pipes without the consent of the company. The village obtained the benefit of the water for fire purposes, which was the property of the water company and the village paid for the water by the erecting and agreeing to repair the hydrants. The water company obtained the benefit of the use of the hydrants, the property of the village, without having to expend the necessary moneys for the construction and repair of the hydrants. Here was a mutual consideration, a benefit to each promisor in the use of the other’s property and a detriment, to each promisee in that the property of each was subjected by the contract to a limited use by the property owner. It may be that the control of these hydrants was not of very great value to the company. Perhaps the value may have been trivial. Nevertheless you cannot say it was not in contemplation of the parties because the parties embodied a clause in relation to the same in the contract. It is well known that hydrants are used for flushing streets; to supply water for sprinkling streets and to supply water for public improvements in streets where large quantities of water are necessary. In fact it appears in this case that the hydrants were utilized for the purpose of flushing the plaintiff’s system and for the purpose of sprinkling the public streets of the village and for other purposes for which it has received compensation from the defendant and from other persons. This is some consideration, although it may have been a bad bargain on the part of the com*718pany. Still a contract cannot be set aside for the reason that the court does not think that the consideration is adequate. If there is any consideration, it must be sustained. I think the seventeenth proposed finding of fact by the defendant should have been found rather than refused. ,
Judgment affirmed, with costs.