American Brewing Co. v. City of St. Louis

• Decision Date: 24 December 1907
• Citation: 209 Mo. 600,108 S.W. 1
• Parties: AMERICAN BREWING CO. v. CITY OF ST. LOUIS.
• Court: Missouri Supreme Court

108 S.W. 1

209 Mo. 600

AMERICAN BREWING CO. v. CITY OF ST. LOUIS.

Supreme Court of Missouri, Division No. 1.

December 24, 1907.

Rehearing Denied February 26, 1908.

1. PAYMENT — RECOVERY — VOLUNTARY PAYMENT.

Where an ordinance required consumers to take out a water license every six months and pay in advance, the meter rate varying in proportion to the amount used, and three licenses were issued to plaintiff upon an estimated daily consumption, with the understanding that the difference between the estimated and the actual consumption would be adjusted at the end of the six months' period, plaintiff is not precluded from recovering an excess paid over the amount required by the ordinance on the ground that the payments were voluntary.

2. APPEAL — REVIEW — FINDINGS OF FACT — FINDINGS BY COURT — CONCLUSIONS.

In a law case an appellate court will not review the evidence further than to ascertain whether there was substantial evidence to support the finding of the trial court.

3. PAYMENT — RECOVERY — PLEADING — EVIDENCE — BURDEN OF PROOF.

In an action to recover an excess paid for water over the rates required by ordinance for water furnished for purely manufacturing purposes, the purpose for which the water was used was an essential allegation of the petition; and the burden was on plaintiff to show that water was in fact used for manufacturing purposes.

4. APPEAL — REVIEW — FINDING OF FACTS — FINDING BY THE COURT — CONCLUSIVENESS.

The rule that a finding of facts will not be disturbed on appeal when supported by substantial evidence is true where the finding was against the party on whom was the burden of proof, as well as when it was in his favor.

5. WATERS AND WATER COURSES — PUBLIC WATER SUPPLY — MANUFACTURING PURPOSES — WHAT CONSTITUTE — "WATER FOR MANUFACTURING PURPOSES."

In an action by a brewery to recover an excess paid for water from the rate required by ordinance for water furnished for purely manufacturing purposes, it was not necessary, in order that the water be deemed to be used "purely for manufacturing purposes," that all of it went into the composition of beer if it was used in the business of making beer, and a finding of the trial court, if based on such assumption, was reversible error.

Woodson, J., dissenting.

Appeal from St. Louis Circuit Court; Walter B. Douglass, Judge.

Action by the American Brewing Company against the city of St. Louis. From a judgment for defendant, plaintiff appeals. Reversed and remanded for new trial.

See 187 Mo. 367, 86 S. W. 129.

Harlan, Jeffries & Wagner, for appellant. Charles W. Bates and Chas. P. Williams, for respondent.

VALLIANT, P. J.

Plaintiff sues to recover a sum which it is stated in the petition the plaintiff was compelled to pay for the use of water furnished the plaintiff by the city in excess of the rate prescribed by the city ordinance. By the provisions of the ordinance set out in the petition the meter rate for water, when the quantity used for purely manufacturing purposes exceeded an average of 25,000 gallons per day, was 1¼ cents per 100 gallons, provided that, when the quantity exceeded 50,000,000 gallons annually, the rate should be one cent per 100 gallons. The petition stated that plaintiff used for purely manufacturing purposes within the time mentioned more than 50,000,000 gallons annually; yet the city required plaintiff to pay 1¼ cents per 100 gallons. This is the second appeal in this case. The former appeal was from the judgment sustaining a general demurrer to the petition. That judgment was reversed, and the cause remanded. Am. Brewing Co. v. St. Louis, 187 Mo. 367, 86 S. W. 129. When the cause went back to the circuit court, defendant filed an answer, the purport of which was a general denial and a plea that the plaintiff's payment was voluntary. The cause was tried by the court, jury waived. The plaintiff's evidence showed that, in order to obtain water from the city, the plaintiff was required to take out a license for which it had to pay in advance for the estimated quantity likely to be used for the ensuing period of six months, and a new or renewed license was to be taken out and paid for in advance every six months. If at the end of a six-months period a reading of the meter showed that the quantity used was either more or less than the estimate, the difference was adjusted and the account balanced to date. The plaintiff took out three licenses, each to cover a period of 6 months, the three covering a whole period of 18 consecutive months, and paid for the same at the rate of 1¼ cents per 100 gallons, which was the rate he was required to pay. At the end of the time it was shown by the meter readings that plaintiff used more than 50,000,000 gallons annually. The evidence also showed that after that period the licenses were issued to the plaintiff at the rate of one cent per 100 gallons. On the former appeal it was held that the plaintiff was not precluded from recovering on the theory that the payments made, under the circumstances above shown, were voluntary. The petition stated, and the evidence showed, that the plaintiff was dependent on the city for water, could not carry on its business without it, and could not obtain it except by complying with the demands. The plaintiff perhaps could have taken out a license estimated on an annual consumption of 50,000,000 gallons, and have paid in advance therefor only one cent per 100 gallons; but, if it turned out at the end of the year that less than 50,000,000 gallons had been used, plaintiff would have been liable to the city for the additional quarter cent per 100 gallons, and would have had to adjust the difference before taking out another license. The evidence showed that, in the beginning the quantity likely to be consumed was a mere estimate, neither the plaintiff nor the assessor of water rates could know...