St. Louis Gas-Light Co. v. City of St. Louis

• Decision Date: 11 October 1881
• Citation: 11 Mo.App. 55
• Parties: ST. LOUIS GAS-LIGHT COMPANY, Respondent, v. CITY OF ST. LOUIS, Appellant.
• Court: Missouri Court of Appeals

11 Mo.App. 55

ST. LOUIS GAS-LIGHT COMPANY, Respondent,

v.CITY OF ST. LOUIS, Appellant.

St. Louis Court of Appeals, Missouri.

Oct. 11, 1881.

1. An answer which neither denies nor confesses, and avoids the statements of the petition, is bad on demurrer.

2. A pleading which sets up a claim which shows on its face that it is barred by the statute of limitations is bad on demurrer.

3. A party to a contract with another therein described as a corporation, is, in an action on the contract, estopped to deny the other's incorporation.

4. The St. Louis Gas-Light Company was authorized to charge against the city of St. Louis the tax imposed by the United States upon illuminating gas.

5. A settlement made by the city auditor with the gas company is, in the absence of fraud or mistake, conclusive as to the amount due by the city at the date of the settlement.

6. That the city auditor entered as charges against the city, upon his books, the bills of the gas company, is presumptive evidence that each bill was properly audited at the date of its entry.

7. The books of account of a municipal corporation, kept by the proper officer, are prima facie evidence of the facts therein stated, and are competent to charge the city.

8. Under the tripartite agreement of February 28, 1873, interest on the bills of the gas company against the city ran from the date when each bill became due.

9. To warrant a charge of compound interest, a contract to that effect, either express or implied, must be shown

10. An accounting between the two parties, and the striking of a balance, are not evidence in this case of a contract for compound interest on the interest included in the balance.

11. The question as to whether the charter of a corporation has expired by limitation of time can be adjudicated only in a direct proceeding by the state.

APPEAL from the St. Louis Circuit Court, THAYER, J.

Reversed nisi.

LEVERETT BELL, for the appellant: If the suit is founded on a cause of action connected in any way with a contract, a counter-claim arising out of any other contract between the same parties, though sounding in damages, may be set up.-- Transportation Co. v. Boggiano, 52 Mo. 294; McAdow v. Ross, 53 Mo. 199; Life Assn. v. Cravens, 60 Mo. 388. The plaintiff is liable in damages for a breach of the contract embodied in the charter. The fact that the state created the contract does not exempt the Gas-Light Company from liability to the city for a breach of it. There is no provision in the charter excluding such liability. And although the charter is primarily a contract between the state and the corporators, and the company is answerable to the state for a failure on its part to observe its charter obligations, yet the charter is also, as to the provisions under consideration, a contract with the city, for a breach of which the company is answerable in damages to the party injured.-- Ketchum v. St. Louis, 11 Otto, 306. The city is not liable for the tax imposed by the United States upon illuminating gas.-- Gas Co. v. Pittsburg, 101 U. S. 219. Under the statute law of this state there must be a contract in writing to sustain a claim of interest upon interest.--Rev. Stats. 459, sect. 2728; Stoner v. Evans, 38 Mo. 461.GLOVER & SHEPLEY and NOBLE & ORRICK, for the respondent: This accounting was agreed to be made by the contract itself, which provided for time and interest from a day fixed. It was made by the proper officers and entered on the books of the defendant. Having been made, and the defendant having enjoyed the benefit of the credit given, the amount thus ascertained was not open to inquiry on the trial on any ground asserted by defendant, but was conclusive, regardless of the original items of the bills.-- Moore v. McCullough, 8 Mo. 402; Kronenberger v. Binz, 56 Mo. 121; Cape Girardeau, etc., R. Co. v. Kimmel, 58 Mo. 83; Stenton v. Jerome, 54 N. Y. 480; Young v. Hill, 6 Hun, 613. And the sum fixed was to bear interest as agreed.-- McClelland v. West, 70 Pa. St. 187; Lockwood v. Thom, 18 N. Y. 285. The gas tax was included by authority of law as well as consent at the settlement.--12 U. S. Stats. 463. The defendant, having enjoyed the benefit of the extension of time and dismissal of suits based on this agreement, will not now be heard to dispute the settlement.-- Taylor v. Zepp, 14 Mo. 482; Newman v. Hook, 37 Mo. 207; Bunce v. Beck, 46 Mo. 333. The contract of 1873, in its seventh clause, by providing for dismissal of suits and at the same time promising to pay bills for gas furnished, cannot be held to mean those bills only not in suit, because it does not say so; and the construction given by the parties at the time was to the contrary.-- St. Louis Gas-Light Co. v. St. Louis, 46 Mo. 121; Patterson v. Camden, 25 Mo. 13. The charter of the plaintiff was a contract with the state of Missouri only, and not with the defendant, nor can the defendant base a claim for damages on it.-- St. Louis v. Gas-Light Co., 70 Mo. 69. The facts stated are not sufficient to constitute a cause of counter-claim, for it neither relates to the same transaction as the plaintiff's claim, nor is it based on a contract between plaintiff and defendant.--Rev. Stats. 604, sect. 3522. It is barred on its face by the statute of limitations, and therefore subject to demurrer.-- Henoch v. Chaney, 61 Mo. 129. The question of the existence of a corporation cannot be raised collaterally, even though the manner of incorporation is prescribed by the constitution.-- St. Louis v. Shields, 62 Mo. 247; Railroad Co. v. St. Louis, 66 Mo. 228; Smith v. Clark, 54 Mo. 81; Cooley's Const. Lim. 254.

THOMPSON, J., delivered the opinion of the court.

This action is brought to recover the sum of $545,670.48, with interest thereon from the first day of March, 1873, which the plaintiff claims to be the amount due for lighting the city of St. Louis with illuminating gas, from November, 1866, to March, 1873. The petition states in substance that the contract under which this service was rendered by the plaintiff to the defendant was entered into between the plaintiff and the defendant on the ninth day of January, 1846; that under this contract, the terms of which it is not necessary to set out, a large indebtedness accrued from the defendant to the plaintiff for furnishing the city with gas from the thirtieth day of October, 1867, to the first day of November, 1869, and also for United States revenue tax thereon paid by the plaintiff, and which the plaintiff was entitled to charge against the defendant; that the defendant having refused to pay this indebtedness, suit was brought for the same in 1870, which suit was defended, so that the same was pending on the first day of March, 1873; that the plaintiff continued, under the provisions of said contract, to furnish to the defendant illuminating gas, for the purpose of lighting its streets, from the first day of November, 1866, until the first day of March, 1873, and to pay the revenue tax thereon to the United States; that on the amount due for the same, only a portion was paid, and that a large sum remained due, including the amount sued for, as already stated; that for the purpose, among other things, of settling said suit and other litigations then pending between the plaintiff and the defendant, and of obtaining time for the payment of the amount thus due to the plaintiff, the defendant, on the tenth day of February, 1873, passed an ordinance embodying the terms of a contract between the plaintiff, the defendant, and the Laclede Gas-Light Company, which contract was, on the twenty-eighth day of February, 1873, formally executed by the proper officers of the said contracting parties, as provided for in the ordinance. This ordinance is known as the “tripartite ordinance,” and the contract executed in pursuance of it is known as the “tripartite contract,” and they will be hereafter so designated. They are both set out in full in the plaintiff's petition. They contain the following clause, which is the only one material to this suit: “And it is further agreed between the said city and the St. Louis Gas-Light Company, that the litigation between them shall cease; all suits pending between them are to be dismissed, and all causes of action between them to be considered as settled. And the bills of the St. Louis Gas-Light Company against the city, for gas heretofore furnished to the city under the contract of date January 9, A. D. 1846, with interest at the rate of six per centum per annum until paid, are to be and will be paid by the city as follows: The city is to have two years from and after the 1st of July, A. D. one thousand eight hundred and seventy-three, for such payment, but it may make payment of any parts thereof at any time within said two years, or may pay the amount then due thereon at any time within said two years in six per cent gold bonds of the city, at their current or market value. And this contract and agreement is a substitute for and in lieu of said contract of date January 9, A. D. 1846, between the city and the St. Louis Gas-Light Company, and which last-named contract is to be cancelled by the parties thereto, and each and both parties to be absolved therefrom.” The petition then proceeds to state in substance that the plaintiff on its part has performed all the conditions of this contract; that the defendant, by its proper officers, agreed with the plaintiff that the amount due the plaintiff from the defendant on account of the bills before rendered by the plaintiff under the contract of January 9, 1846, after allowing the defendant certain credits to which it was entitled, was the sum of $545,670.48, being an amount less than the plaintiff had previously claimed to be due; that thereupon the plaintiff, on the third day of May, 1873, dismissed the suit which it had brought against the defendant for a portion of this indebtedness, as already stated; and that by virtue of this contract of March 1, 1873, and of this...