American Brewing Company v. City of St. Louis

• Decision Date: 15 March 1905
• Citation: 86 S.W. 129,187 Mo. 367
• Parties: AMERICAN BREWING COMPANY, Appellant, v. CITY OF ST. LOUIS
• Court: Missouri Supreme Court

86 S.W. 129

187 Mo. 367

AMERICAN BREWING COMPANY, Appellant, v. CITY OF ST. LOUIS

Supreme Court of Missouri, First Division

March 15, 1905

Appeal from St. Louis City Circuit Court. -- Hon. Franklin Ferriss Judge.

Reversed and remanded.

Reynolds Koehler, Reiss & Harlan and Franklin Miller for appellant.

(1) The charge exacted by the respondent city, and paid by appellant for the use of all water at the meter rates, is a matter of contract between the parties, and not of taxation or license. Brewing Assn. v. St. Louis, 140 Mo. 428; Wagoner v. Rock Island, 146 Ill. 152; Savings Inst. v. Jersey City, 113 U.S. 514; Vreeland, v. O'Neil, 36 N.J.Eq. 402; Vreeland v. Jersey City, 37 N.J.Eq. 576; Appeal of Brumm, 12 A. 856; Savings Society v. Philadelphia, 31 Pa. St. 183; Preston v. Water Comrs., 117 Mich. 589; Bailey v. Mayor, etc., of New York, 3 Hill 539; Asher v. W.L. & P. Co., 61 L.R.A. 52, and exhaustive note at pp. 111, 114, 116; 1 Dill. Mun. Corp., secs. 27, 66. (2) The terms of this contract are the terms of the ordinance provision fixing the meter rates, and the contract is formed when the offer or proposal of respondent, made by its promulgation of the ordinance, is accepted by the appellant's election to take and pay for the water under the ordinance and its compliance with the conditions imposed thereby. Lancaster v. Elliott, 28 Mo.App. 92; 7 Am. & Eng. Ency. of Law, 125. (3) Therefore, the contract so formed being executed by appellant's payment at the contract rate for water furnished by respondent, the amount of appellant's payment in excess of such rate is without consideration, and may be recovered by it upon respondent's implied promise to repay the same, as money had and received for appellant's use. Argenti v. San Francisco, 16 Cal. 255; Kelly v. Solari, 9 M. & W. 54; Dowell v. Portland, 13 Ore. 245; Callaway v. Milledgeville, 48 Ga. 309; M. E. Church v. Mayor, etc., of Vicksburg, 50 Miss. 601; Stempel v. Thomas, 89 Ill. 147; Cook v. Railroad, 81 Iowa 551; Rogers v. Weaver, 5 Ohio 536; McDonald v. Lynch, 59 Mo. 350; Davis v. Krum, 12 Mo.App. 279; Chace v. Willman Merc. Co., 63 Mo.App. 486; Keener on Quasi-Contracts, pp. 26-40; 1 Dill. on Mun. Corp. p. 536; 15 Am. & Eng. Ency. of Law, p. 1103; 20 Am. & Eng. Ency. of Law, p. 1158. (4) And this is true when the overcharge was paid voluntarily and without protest, provided it was paid under mistake as to a material fact. Chatfield v. Paxton, 2 East 471; Windbiel v. Carroll, 16 Hun 101; Cook v. Railroad, 81 Iowa 564; Keener on Quasi-Contracts, pp. 26, 27; 15 Am. & Eng. Ency of Law, p. 1103.

Chas. W. Bates and Wm. F. Woerner for respondent.

The petition states no cause of action. It shows on its face that the payments made by plaintiff for the use of water were entirely voluntary. There are no facts alleged showing any authority or threat on the part of defendant or its agents to turn off the water in case of non-payment (which was the determining factor in the cases of Brewing Association v. St. Louis, 140 Mo. 419, and Westlake v. St. Louis, 77 Mo. 47), nor is duress of any kind claimed. Neither are there any facts alleged showing that the payments were made under protest or objection of any kind or claim of illegality. The petition is destitute of every allegation that the payments were made under any mistake of fact, or from which such mistake could fairly be inferred. There is no hint of fraud. It is not pretended that defendant acted in bad faith or wantonly exacted money to which it had no color of right. Plaintiff does not claim that he paid in ignorance either of the rate fixed by ordinance for the use of water, or of the amount of water consumed. On the contrary, it affirmatively appears from the petition that the plaintiff applied for the use of the city water and voluntarily paid the price charged, assenting to its correctness and satisfied therewith, being in full possession of all the facts. Now, after having used the water and paid for it, simply on the supposition, afterwards entertained, that the water could have been gotten for less money, plaintiff thinks to recover the difference. Under such circumstances there can be no recovery. Douglas v. Kansas City, 147 Mo. 440; Couch v. Kansas City, 127 Mo. 438; Brands v. City of Louisville (Ky.), 63 S.W. 2; Claflin v. McDonough, 33 Mo. 415; Walker v. St. Louis, 15 Mo. 575; Christy v. St. Louis, 20 Mo. 143; State ex rel. v. Stonestreet, 92 Mo.App. 220; Teasdale v. Stoller, 133 Mo. 651; U.S. v. Wilson, 168 U.S. 276; 22 Am. & Eng. Ency. Law (2 Ed.), under "Payment," p. 609, referring to a multitude of cases.

OPINION

MARSHALL, J.

This is an action to recover nineteen hundred and seventy-five dollars, paid by the plaintiff to the defendant, for water furnished by the defendant to the plaintiff between the first of September, 1897, and the first of March, 1899, and used by the plaintiff in its business of manufacturing beer at its plant, located wholly in city block 851, in the city of St. Louis, and being one-quarter of one cent per hundred gallons, which it it alleged was that much in excess of the rate prescribed, for such purposes, by the city ordinance.

The trial court sustained a general demurrer to the plaintiff's petition, the plaintiff refused to plead further, and judgment was entered for the defendant. Thereupon, the plaintiff appealed.

The petition is as follows:

"1. Plaintiff states that defendant is, and at all times hereinafter mentioned was, a municipal corporation created existing and operating under and by virtue of the laws of the State of Missouri.

"2. That the plaintiff is, and at all times hereinafter mentioned was, a manufacturing corporation created, existing and operating under and by virtue of the laws of the State of Missouri and engaged in the business of manufacturing, brewing and selling beer.

"3. Plaintiff further states that in and by section 1742, article 3, chapter 46, of the Revised Ordinances of 1892 of the city of St. Louis, it is provided as follows:

"'All persons requiring the use of water applying for a meter shall have the right to pay for water in proportion to the quantity used, to be determined by a meter; provided, that in all such cases, the watertaker shall pay the cost of the meter and of placing the same. The assessor and collector of water rates shall have the power to ascertain by meter measurement the quantity of water used for any purpose, and exact payment therefor at meter rates, and in such cases the rates fixed as a license rate shall not apply. In all cases where the water is to be paid for at meter rates, the persons taking out license shall be charged the following rates on the average quantity of water used during the year, the year to be estimated at three hundred days: When the quantity used averages one thousand gallons per day or less, three cents per one hundred gallons. When the quantity used averages from one thousand to twenty-five hundred gallons per day, two and one-half cents per hundred gallons. When the quantity used averages from twenty-five hundred to five thousand gallons per day, two cents per hundred gallons. When the quantity used averages from five thousand to ten thousand gallons per day, one and three-fourths cents per hundred gallons. When the quantity used averages from ten thousand to twenty-five thousand gallons per day, one and one-half cents per one hundred gallons. When the quantity used exceeds an average of twenty-five thousand gallons per day, one and one-fourth cents per one hundred gallons. The meter rate for use of water from the waterworks for purely manufacturing purposes and livery stables is hereby fixed at one and one-fourth cents per one hundred gallons; provided, that when the quantity used exceeds fifty million gallons annually by any manufacturing plant, located in one or more blocks adjoining each other, the rate shall be one cent per one hundred gallons.'

"4. And that by section 1722 of said article 3 of said chapter 46 of said Revised Ordinances of 1892, it is provided that:

"'Licenses for the use of water from the city waterworks shall be issued by the assessor and collector of water rates, and the amounts charged shall conform to the rates established by this article. The rates assessed shall in all cases be paid in advance, and all licenses shall be dated on the first day of the month in which the same are granted. Licenses may be granted for six months or for one year as the applicant may desire, except as hereinafter provided in section 1724.'

"5. The plaintiff further states that the ordinances hereinabove set out and referred to and made a part of this petition were in force and effect at all of the times herein mentioned.

"6. The plaintiff further states that its brewery now is, and at all times herein mentioned was, entirely dependent for its supply of water, by it used and to be used in and about the manufacture and brewing of plaintiff's beer, upon the city waterworks, which at all times hereinbefore mentioned were and now are under the sole control and operation of the defendant, the city of St. Louis.

"7. That the plaintiff as it was authorized to do under the terms and provisions of said sections of said ordinances aforesaid at all times hereinafter mentioned, applied for meters and elected to pay for the quantity of water by it used, at meter rates and to be determined by meter, and complied with the terms of said ordinances by paying the cost of the meter by it used and the cost of placing the same; that it thereafter and during the period of time hereinafter mentioned, used large quantities of water, drawn from the said city waterworks, and that thereupon the assessor and collector of water rates of the city of St. Louis, who at all times had sole control and...