Ewer

Plaintiff brings the action to recover from defendants seven and seven-eighths per cent of the gross annual receipts collected by defendants for water supplied to the plaintiff and its inhabitants for the five years commencing. 1907 and ending 1911, stated in seven separate counts. ¡The amended complaint was filed August 5, 1912. It does not appear when the original complaint was filed. A general and special demurrer to the amended complaint was sustained, without leave to amend, and judgment passed for’ defendants that plaintiff take nothing by its action and that the action be dismissed.

It appears, from the amended complaint, that, on September 19, 1899, plaintiff passed a resolution directing the town clerk to advertise for bids for the sale of a franchise for supplying said town and its inhabitants with water, for domestic and general purposes, for a term of fifty years. The form of ordinance to be used in granting the franchise was adopted and it was ordered “that no bids, proposals or tenders will be received for a single amount stated, but that all bids, tenders, or proposals must be for the payment in lawful money of the United States of a stated per centum of the gross…