26 S.W. 676 (Mo. 1894), Johnson v. Geneva Publishing Company

Citation:26 S.W. 676, 122 Mo. 102
Opinion Judge:Sherwood, J.
Party Name:Johnson, Appellant, v. Geneva Publishing Company et al
Attorney:Leverett Bell for appellant. W. C. Marshall for respondent, city of St. Louis.
Case Date:May 24, 1894
Court:Supreme Court of Missouri
 
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Page 676

26 S.W. 676 (Mo. 1894)

122 Mo. 102

Johnson, Appellant,

v.

Geneva Publishing Company et al

Supreme Court of Missouri, Second Division

May 24, 1894

Appeal from St. Louis City Circuit Court. -- Hon. D. D. Fisher, Judge.

Affirmed.

Leverett Bell for appellant.

(1) The appellant, as creditor of the Geneva Publishing Company, is entitled to the relief asked against the city of St. Louis. Pendleton v. Perkins, 49 Mo. 565; St. Louis v. Lumber Co., 114 Mo. 87. (2) Under the terms of the contract between the parties, the city of St. Louis can not withhold money earned by the Geneva Publishing Company, to repay itself for the increased expenditure incurred under the Star-Sayings contract. 2 R. S. 2141; Rev. Ord. of 1887, 937. (3) The reletting of the public printing contract to the highest bidder was unlawful. 2 R. S., 2141; Rev. Ord. of 1887, 937. (4) The city of St. Louis has a complete remedy for any damages it may have sustained by the default of the Geneva Publishing Company on its contract by proceeding against the surety on said contract; and it can not by its own act adjudge itself entitled to damages against the publishing company and the amount thereof, and apply the money of the company in the city treasury to the satisfaction of the same.

W. C. Marshall for respondent, city of St. Louis.

The judgment of the circuit court in favor of the city of St. Louis was right. Barnes v. McMullins, 78 Mo. 260, 271; Adams' Equity [4 Ed.], marg. p. 270, and cases cited in note 1, p. 578, and cases cited in note 1, p. 581; 8 Am. and Eng. Encyclopedia of Law, p. 1160 and note 4; Ibid. pp. 1189 and 1190 and notes 1, 2, 3 and 4; Healy v. Butler, 66 Wis. 9; Railroad v. Wheeler, 18 Md. 372; Poe v. College, 4 Gill, 499; McPherson v. Railroad, 66 Mo. 103; National Bank v. Staley, 9 Mo.App. 146; Funkhouser v. Eveland, 3 Mo.App. 602; Barbour on Set-Off [1 Ed.], 189; Green v. Darling, 5 Mason, 202.

OPINION

[122 Mo. 103] Sherwood, J.

The city of St. Louis employed its codefendant the Geneva Publishing Company to do the city's printing, Ben Deering being the manager of that company. After doing the printing for a while at a certain figure, its manager informed the city's authorities that it could no longer comply with its printing contract and abandoned the same. At that time the city was owing the publishing company some $ 750. Thereupon the...

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