National Enameling & Stamping Co. v. City of St. Louis

• Decision Date: 03 July 1931
• Citation: 40 S.W.2d 593,328 Mo. 648
• Parties: National Enameling & Stamping Company, Appellant, v. City of St. Louis
• Court: Missouri Supreme Court

40 S.W.2d 593

328 Mo. 648

National Enameling & Stamping Company, Appellant, v. City of St. Louis

Supreme Court of Missouri

July 3, 1931

Appeal from Circuit Court of City of St. Louis; Hon. Frank Landwehr, Judge.

Affirmed.

George Barnett and Thomas P. Moore for appellant.

(1) Where a city ordinance provides for the payment of water licenses in advance and authorizes the proper city officials to turn off the water supply of a consumer if said license be not paid, then payments made by a manufacturer wholly dependent upon the city for its water supply and requiring such water supply for the purpose of carrying on its business and made upon demand by the proper official designated by the ordinances of the city to collect such water license, are not voluntary, but made under compulsion and may be recovered in an action at law. American Brewing Co. v. St. Louis, 187 Mo. 367; Brewing Assn. v. St. Louis, 140 Mo 419; Westlake & Button Co. v. St. Louis, 77 Mo. 47. (2) The defense of estoppel set up by the defendant was not supported by the evidence, and in any event should have been left to the consideration of the jury. The letters (Defendant's Exs. A and B) relied on by defendant to support its plea of estoppel constituted no evidence thereof. 21 C. J. 1113-14. (3) Neither did these letters tend to prove that the payments of which complaint was made were voluntary payments. American Brewing Co. v. St. Louis, supra; Brewing Assn. v. St. Louis, supra; Westlake & Button Co. v. St Louis, supra.

Julius T. Muench and Richard S. Bull for respondent.

(1) The payments sought to be recovered were not made under duress or compulsion. Absent circumstances showing that payments were known to be excessive at the time they were made, and that they were induced by compulsion, duress does not exist. Ferguson v. Butler County, 297 Mo. 20; Douglas v. Kansas City, 147 Mo. 428; Brumagim v. Tillinghast, 18 Cal. 265, 79 Am. Dec. 176; "Duress." Webster's New Inter. Dict.; "Duress," Bouvier's Law Dict (Rawles 3 Ed.), vol. 1, p. 961; 21 R. C. L. 145, 149-150; 171-174, secs. 169, 174, 202-204. Cases cited by appellant, to-wit: American Brewing Co. v. St. Louis, 187 Mo. 367; Brewing Assn. v. St. Louis, 140 Mo. 419; Westlake & Button Co. v. St. Louis, 77 Mo. 47. (2) Where one, under a mistake of law or in ignorance of law, voluntarily pays money on a demand not legally enforceable against him, he cannot recover it back. Ferguson v. Butler County, 297 Mo. 20; 48 C. J. 755 et seq., sec. 312. (3) Where a consumer, questioned to determine the rate he should be charged, states that he is using water for purposes that do not entitle him to a special rate, and he is assessed and pays at the regular rate because of such statement, he is estopped from later asserting, in an action to recover an alleged overcharge, that his use of water was for other purposes. 21 C. J. pp. 1113-15, 1129, secs. 116, 131.

Cooley, C. Westhues and Fitzsimmons, CC., concur.

OPINION

COOLEY

Appeal by plaintiff from judgment upon a directed verdict in favor of defendant. The case comes to the writer on reassignment.

This action was filed in the circuit court of the City of St Louis to recover certain amounts paid by the plaintiff to said city for the use of water in excess of the amounts lawfully due defendant under the ordinances in effect at the time. The suit was based upon plaintiff's claim that it was entitled to use water at the manufacturer's meter rate and that plaintiff actually paid for water used under the general meter rate; that an ordinance was in force to the effect that in the event the amounts charged for water were not paid the proper officer of the city might shut off the water; that plaintiff was dependent upon the water furnished by the city for the conduct of its business and that the payments were therefore compulsory and not voluntary.

The petition is in seven counts. Payment for water was made for each six-month period in advance, and the seven counts of the petition are for seven different periods of six months each, running from June 1, 1917, to December 1, 1920.

The applicable ordinances of the city of St. Louis were pleaded and offered in evidence. By these ordinances it was provided that consumers supplied with water at meter rates should be required to deposit in advance an amount sufficient to pay at the established rate for the estimated quantity of water to be used in the succeeding period of not to exceed six months, and further, that it should be the duty of the collector of revenue to notify the water commissioner of the non-payment of water bills within fifteen days after the same became due, and the water commission was authorized to shut off the water for the non-payment of bills upon being so notified that such bills had not been paid.

The defendant's answer to each count of the petition was the same. After a general denial it admitted the ordinances in question and alleged that a letter written by plaintiff in answer to one of defendant's amounted to a declaration on the part of plaintiff that it was not using water for manufacturing purposes, that the payment made therefor was a voluntary one and that plaintiff was estopped by reason of said letter from making the complaint set forth in its petition. It further set up that prior to the commencement of the suit the parties had compromised, settled and adjusted all claims for overcharge.

At the trial it was admitted by written stipulation covering each count of the petition that the ordinances were in force during the time involved and that plaintiff was authorized to use and did use water furnished by defendant at meter rates; that the assessor and collector of water rates of defendant charged plaintiff at a general meter rate set forth in each count in the stipulation; that the amount of water used by plaintiff was in excess of the minimum amount required to be used by one entitled to the manufacturer's rate, and for each count the amount actually paid by plaintiff at the general meter rate, the amount that would have been paid under the meter rate for purely manufacturing purposes, and the excess of the former over the latter amount was stipulated. The aggregate of these last amounts which the plaintiff would be entitled to recover if it prevailed in the action amounted approximately to $ 8,000.

Plaintiff offered but one witness, Mr. Ackerman, who was its master mechanic during the time involved and whose duties, according to his testimony, "included control of the water used in the plant," and whose business it was to know what the water was used for and how much was used. His testimony on direct examination tended to show that during the period involved plaintiff used a quantity of water for manufacturing purposes as defined in the ordinance such as to entitle it to the manufacturer's rate which it claims it should have paid.

On cross-examination he testified that during the years 1917 to 1920 inclusive, he did not know how the bills for water were computed or paid, nor what rates were charged, nor what rates were prescribed by the city ordinances; that some time in 1921 the manager asked him "to look into it," which he then did; that prior to 1921 he had not checked the water bills, it not being his duty.

"Q. You would be the one, wouldn't you, who would check up on the consumption from 1917 and thereafter? A. Well, I have done it a great deal since then. I suppose it was, but I wasn't told to do it. Not until 1917. It seems like about the first part of the year, probably the spring of the year. I couldn't mention exactly what month. Before that time the officials of the company had never come to me and told me that they thought they were being charged too much. At no time from 1916 to 1920, inclusive, did I take up with any city official an adjustment of the water rates. We had no manager from 1917 to 1920 . . . I don't think it was ever taken up in that time. I do not think it was."

The witness further stated that prior to 1921 he did not know of any ordinance authorizing the water commissioner or any other city official to shut off the water of a consumer; that he had had a conversation with the company's attorney "about the subject-matter of this suit" in the spring of 1921, but had never discussed it with him prior to that time.

On behalf of defendant, Robert Ecoff testified that he was deputy collector in charge of collection of water rates and familiar with the manner in which the records were kept; that notices of amounts due were generally sent out by the assessor; that if bills were not paid "we would notify the water commissioner the bill wasn't paid," and that as a rule turning the bills over to the water commissioner "had the desired effect."

William T. Kircheis, supervisor of water rates, testified that when they had any idea a customer was in the manufacturing business they sent letters requesting certain information, and he identified a letter written to plaintiff April 13, 1916, and plaintiff's answer, dated April 19, 1916, written for plaintiff by Mr. Gaibe (still in plaintiff's employ at the time of the trial), which letters were introduced as defendant's exhibits A and B respectively and were as follows, omitting captions:

Exhibit A. "Kindly advise if you maintain a manufacturing plant at the above premises, if so what is your product and in what way is water used in your process of manufacturing outside of heat, power, toilet and drinking purposes.

"A prompt reply to above would be appreciated, as this information is necessary before making up your next bill."

Exhibit B. "In reply to your letter of the 13th instant would say we have a manufacturing plant at 3400 N. 2nd St. (2nd & Destrehan), where we make sheet iron, pails, tubs and...