4. A binding contract was made and effected, even if there had been no writing. A proposal was made and the offer accepted. 139 U. S. 19; 42 Ν. Ε. 386.

5. The ordinance was properly passed by the council. Kirby's Digest, § 5473; 108 Ark. 24. The burden was not on the city, as the presumption is that the ordinance was properly passed when the book of city ordinances was produced. 108 Ark. 30. If any formalities necessary to be observed were omitted, appellant should have produced the records to show any invalidity, and on a failure to do so the presumption is that it was valid. 56 Ark. 370; 90 Id. 292; 108 Id. 4.

6. The statute of frauds was complied with. Kirby's Dig., § 3654; 25 R. C. L. 639; 95 U. S. 289; 45 Ark. 17; 128 С. С. А. 219. The statute does not apply to written contracts but oral ones. Browne, Stat. Frauds, § 354 A; 83 Atl. 212.

7. There was no error in granting a new trial. Kirby's Digest, § 1238; 120 Ark. 99; 33 Id. 166; 98 Id. 334; 133 Id. 167; 126 Id. 427; 129 Id. 448; 132 Id. 45. Under the law as above, the court properly set the verdict aside.

MCCULLOCH, C. J. This is an appeal from an order of the circuit court granting a new trial in an action in which appellee sued appellant for alleged breach of contract. In the trial of the case before a jury the court submitted the issues, and the verdict was in favor of appellant. The court sustained appellee's motion for a new trial, whereupon appellant filed the statutory stipulation making the order granting a new trial a final judgment (Kirby's Digest, section 1187, subdivision 2), and prosecuted an appeal.

A system of waterworks was constructed in the city of Paragould through the agency of two separate improvement districts, and when completed was taken over by the city pursuant to the statute (Kirby's Digest, section 5675) which provides that a city or town council, after the construction of waterworks or gas or electric lights by any improvement district, "shall have full power and authority to operate and maintain the same, instead of the improvement district commissioners, and said city or town council may supply water and light to private consumers and make and collect uniform charges for such service, and apply the income therefrom to the payment of operating expenses and maintenance of such works."

Appellant, a domestic corporation, was operating an electric light plant under franchise from the city of Paragould and furnished electric current for domestic and industrial purposes in that city. The city council passed an ordinance on February 12, 1916, establishing, when accepted, a contract between the city and appellant, whereby appellant was to furnish and install a motor pumping plant at the water works for the purpose of pumping water for the city in the operation of the water works and to furnish the necessary electric current for operating the pump for a period of ten years and that the city would pay to appellant out of the revenues derived from sale of water to consumers the sum of $4,400 for installing the pump and would pay for the electric current furnished as aforesaid at certain stipulated rates.

Under this contract, if accepted, appellant was to furnish the services of an engineer to assist in keeping the pumping plant in proper condition and to keep a supply of coal to be used in operating the plant in case of an emergency. The city was to keep its own boilers at the plant in proper condition for use in any emergency when the pumping plant furnished by appellant might be temporarily out of commission. The ordinance provided that the contract should extend "for a period of ten years from and after the passage, approval and publication of the ordinance by the city and its acceptance in writing by the company," and that the city should pay for the power furnished under the contract subsequent to the "filing of notice with the city clerk by the company that its equipment had been installed, and it is prepared to render said service of pumping water."

Appellant's plant in the city of Paragould was operated and the business there conducted by a local manager, a Mr. Reynolds, and on February 5, 1917, after the pumps and machinery had been installed, the following writing was delivered to the city authorities by Mr. Reynolds in the name of appellant:

"Paragould, Arkansas February 5, 1917.

"Honorable Mayor and City Council,

"Paragould, Arkansas.

"Gentlemen:

"We have this day completed the installation of the pumps and machinery as per contract with the city of Paragould.

Yours very truly,
"Arkansas Light & Power Company,

"W. T. Reynolds, Manager."

It appears from the testimony that prior to that time the Actuarial Bureau had required certain changes in the construction of the plant, which requirements were complied with, but delayed the final installation of the pumping plant and machinery. Immediately upon the giving of the above notice, appellant began operations pursuant to the terms of the contract by furnishing current and pumping water for the city, and that was continued from then until the month of August, 1918. A short time after appellant began pumping operations a controversy arose with the city as to whether the plant and machinery had been installed in accordance with the stipulations of the contract, and the city for a time refused to make payments for the current furnished, but finally consented to do so and made the payments under protest from month to month until appellant ceased to continue operations, as before stated, in August, 1918. At that time, appellant, through its president, repudiated the contract or rather raised the question that there never had been a written acceptance thereof and declined to proceed any further. This suit was then instituted to recover damages for refusal on the part of appellant to perform the contract.

It is contended that, according to the undisputed evidence in the case, the judgment should have been in favor of appellant, and that the court erred in granting a new trial. If appellant is correct in the statement that there is no liability according to the undisputed evidence in the case, then the court should not originally have submitted the issues to the jury, but should have given a peremptory instruction in appellant's favor, and should not have granted a new trial.

The first ground urged why appellant is not liable is that the contract was one beyond the power of the city. The argument is that the statute hereinbefore quoted merely authorized the city council "to operate and maintain" the water works, and not to reconstruct the system or to change in anywise the plan of operation. Counsel urge that the word "maintain" is synonymous with the word "repair," and that the city council had no authority to abandon the operation of the steam pumping plant and substitute an electric pumping plant to be operated by electric current furnished by someone else. We think that the argument of counsel puts too narrow a construction upon the term "operate and maintain." It must be admitted that, under this statutory authority, the city did not have the right to discard the plant turned over to it and to construct another in its place, but the words used in the statute, when construed in the light of the purposes to be accomplished, must be given more elasticity and breadth than the argument of counsel justifies. The purpose of the statute was to authorize the city council, after the water works had been constructed and turned over, to perpetuate the same by having the city maintain it up to a standard of efficiency. This would necessarily involve the repair of the plant and the renewal of parts which became worn out and in disrepair. There is nothing in the language which compels restriction of the repairs to a reconstruction in identical form in which the water works were originally constructed. Looking at it from a practical standpoint, what the statute requires is that the water works shall be kept up to the established standard, and that the city shall have control over it to determine in what way that standard of efficiency shall be maintained.

Under the contract involved in the present case, the city was not to reconstruct the plant in its entirety, nor was it even to discard wholly the pumping plant. That was to be held for emergency purposes, and appellant was to furnish an electric pumping plant, so that current could be supplied in the operation of the plant. This was not in any sense an abandonment of the plant or an attempt to reconstruct it. We are of the opinion that it falls within the wording of the statute.

Learned counsel for appellant insists that this case is controlled by the decision in Augusta v. Smith, 117 Ark. 93, but they are mistaken in their estimate of the effect of that decision. All that we held in that case was that the city council, after taking over a system of water works constructed by an improvement district, had no authority under the statute to sell the plant. The views that we have expressed are in accord with what was said in the opinion of this court in Browne v. Bentonville, 94 Ark. 80. Our conclusion on this branch of the case is that the contract was within the power of the city.

The next contention is that the passage of the ordinance was not shown to have been in accordance with the statute, which requires that the yeas and nays shall be called and recorded on the passage of an ordinance to enter into a contract and that a concurrence of a majority of the whole number of members elected to the council shall be required. Kirby's Digest, section 5473. Appellee introduced the ordinance book containing a record of the ordinance, which made a prima facie case of the due passage of the ordinance and cast upon the opposing party the burden of showing that the ordinance was not passed in accordance with the requirements of