104 Cal. 326, 18268, Visalia Gas &Amp; Electric Light Co. v. Sims

Docket Nº:18268
Citation:104 Cal. 326, 37 P. 1042
Opinion Judge:TEMPLE, Judge
Party Name:THE VISALIA GAS AND ELECTRIC LIGHT COMPANY, Respondent, v. J. F. SIMS et al., Appellants
Attorney:W. H. H. Hart, Aylett R. Cotton, and Nowlin & Fassett. for Appellants. Bradley & Farnsworth, for Respondent.
Judge Panel:JUDGES: Temple, C. Haynes, C., and Searls, C., concurred. Garoutte, J., Harrison, J., Van Fleet, J.
Case Date:October 03, 1894
Court:Supreme Court of California
 
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Page 326

104 Cal. 326

37 P. 1042

THE VISALIA GAS AND ELECTRIC LIGHT COMPANY, Respondent,

v.

J. F. SIMS et al., Appellants

No. 18268

Supreme Court of California

October 3, 1894

Page 327

Department One

Hearing In Bank Denied.

Appeal from a judgment of the Superior Court of Tulare County.

COUNSEL:

W. H. H. Hart, Aylett R. Cotton, and Nowlin & Fassett. for Appellants.

The plaintiff having availed itself of the privileges conferred on it by the ordinance of said city of Visalia, it became its legal duty, itself, to maintain and operate its gas and electric works, and to supply the inhabitants of that city with gas and electricity for illuminating purposes, and it was therefore against public policy, and in violation of such duty, to lease these works and privileges. (2 Morawetz on Corporations, secs. 656, 1114, 1116; Thomas v. Railroad Co ., 101 U.S. 83; York etc. R. R. Co. v. Winans, 17 How. 30; Black v. Delaware etc. Canal Co ., 22 N. J. Eq. 130; State v. Hartford etc. R. R. Co ., 29 Conn. 538, 547; New Orleans Gas Co. v. Louisiana Light Co ., 115 U.S. 659; People v. Chicago Gas Trust Co ., 130 Ill. 268; 17 Am. St. Rep. 319; Gibbs v. Consolidated Gas Co ., 130 U.S. 411; Green's Brice's Ultra Vires, 2d ed., 120, 124, 125, 398-400.) Even if the lessee had received any money under the contract which continued in his hands, or any benefit thereunder, an action could not be maintained upon the contract itself, as is attempted in this action, the contract being against public policy, ultra vires, and void, and a suit could only be sustained when brought to recover the money actually received, on an implied promise to pay for the benefit received. (Green's Brice's Ultra Vires, 729, 747, 748; San Francisco Gas Co. v. San Francisco , 9 Cal. 453; Foulke v. San Diego S. P. R. R. Co ., 51 Cal. 365; Davis v. Old Colony R. R. Co ., 131 Mass. 275; 41 Am. Rep. 221; Railway Co. v. Keokuk etc. Bridge Co ., 131 U.S. 389; Central Transp. Co. v. Pullman Palace Car Co ., 139 U.S. 54, 55.)

Bradley & Farnsworth, for Respondent.

The defendants having received all the benefits under the contract, and it being an executed contract as to them, they are estopped from relying on such a defense. (Bigelow on Estoppel, 5th ed., 465, 466; Morawetz on Private Corporations, sec. 689; Beach on Private Corporations, secs. 424, 425; Argenti v. City of San Francisco , 16 Cal. 264, 265, 273; Union Water Co. v. Murphy's Flat Fluming Co ., 22 Cal. 630; Main v. Casserly , 67 Cal. 127, 128; Grangers' Business Assn. v. Clark , 67 Cal. 634; Magee v. Pacific Imp. Co ., 98 Cal. 678; 35 Am. St. Rep. 199; Whitney Arms Co. v. Barlow , 63 N.Y. 70; 20 Am. Rep. 504; Woodruff v. Erie Ry. Co ., 93 N.Y. 610; Rider Life Raft Co. v. Roach , 97 N.Y. 381; Wright v. Hughes , 119 Ind. 324; 12 Am. St. Rep. 412.)

JUDGES: Temple, C. Haynes, C., and Searls, C., concurred. Garoutte, J., Harrison, J., Van Fleet, J.

OPINION

TEMPLE, Judge

Page 328

The complaint charges that plaintiff leased to one Lynch, June 24, 1887, certain premises, including the plant of the electric light and gas company, for the term of two years from June 1, 1887. That Lynch agreed to take possession, manage, control, and operate the same, and to pay said company every three months during the term all the receipts of said gas and electric light business, after paying all necessary charges and expenses incurred in carrying on said business; and further agreed that the amount so paid should be sufficient to enable it to pay an annual dividend to its stockholders of five per cent upon its capital stock of twenty-eight thousand dollars, and, in case of deficiency, he would pay to such company every three months such further sums as would enable...

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