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

• Decision Date: 31 October 1885
• Citation: 86 Mo. 495
• Parties: THE ST. LOUIS GAS LIGHT COMPANY v. THE CITY OF ST. LOUIS, Appellant.
• Court: Missouri Supreme Court

86 Mo. 495

THE ST. LOUIS GAS LIGHT COMPANY

v.THE CITY OF ST. LOUIS, Appellant.

Supreme Court of Missouri.

October Term, 1885.

Appeal from St. Louis Court of Appeals.

AFFIRMED.

Leverett Bell for appellant.

(1) The objection to the second and the remaining counts in the petition was well taken. Not one of said counts states a cause of action against the city of St. Louis in favor of the St. Louis Gas Light Company. Take the second count as an illustration. Its subject matter is the service rendered by the plaintiff to the defendant in repairing, lighting, cleaning, and extinguishing certain public lamps in December, 1875. The public lamps in question, the district occupied by them, the contract between plaintiff and defendant governing said repairing, etc., are not, nor are any of them, specified in said count, and yet they constitute the gravamen of the charge. The rule at common law and under our system of pleading, is that each count in the petition must state a good cause of action within itself, and defective allegations in one count cannot be aided by reference to another count. Bliss on Code Pleading, sec. 121; Leabe v. Deitrick, 18 Ind. 414; Day v. Vallett, 25 Ind. 42; Mason v. Weston, 29 Ind. 561; Clark v. Featherston, 32 Ind. 142; Silvers v. Junction Ry. Co., 43 Ind. 435, 445; Durkee v. City Bank, 13 Wis. 216, 222; Curtis v. Moore, 15 Wis. 134; Catlin v. Pedrick, 17 Wis. 88; Sabin v. Austin, 19 Wis. 421; Nelson v. Swan, 13 Johns. 483; Sinclair v. Fitch, 3 E. D. Smith, 677. (2) The court erred in refusing to instruct the jury that there could be no recovery in this case. (3) The court erred in permitting the bills sued on to be read in evidence to the jury. (4) The court erred in admitting the record kept in the street department of the location and number of street lamps. (5) The court erred in submitting the proof furnished by the witnesses Chauvenet and Caldwell, as to amounts due for the months of February, March, and April, 1876.

Glover & Shepley and Noble & Orrick for respondent.

(1) The separate statements are complete in themselves, averring facts, and a promise based on the facts. Either one is sufficient in itself to sustain the verdict rendered on it. Each one, moreover, refers expressly to the complete contract set forth in the introduction to the whole petition. ( a) The rule laid down in Clark v. Whittaker Iron Co., 9 Mo. App. 446, is obeyed in all particulars. Boeckler v. Mo. Pac. Ry. Co., 10 Mo. App. 448. Under such objection, which was made at the trial for the first time, “if a cause of action can fairly be gleaned from the petition, it ought to be held sufficient.” Clark v. Whittaker Iron Co., 9 Mo. App. 446. (2) The tripartite agreement of 1873 is valid; it has been so adjudged between the parties. St. Louis v. St. L. Gas Light Co., 70 Mo. 69. (3) The record of city lamps kept in the city engineer's office, was a regular public record, and was competent and relevant. Greenleaf on Evidence (13 Ed.) secs. 483, 484, 485. (4) The register of the city gas inspector was official, and competent evidence against the defendant. ( a) City ordinance, number 8434, approved July 11, 1873. ( b) Chauvenet's testimony that he contiued examination of plaintiff's gas bills up to the last, and kept the record even after disputes arose, by direction of the mayor. ( c) Greenleaf on Ev. (13 Ed.) sec. 496; Denning v. Roome, 6 Wend. 651; Gearhart v. Dixon,1 Pa. St. 224; Adams v. Mack, 3 N. H. 493; Mayor v. Wright, 2 Port. 230; Angell & Ames on Corp. (8 Ed.) sec. 679; Engl. Manf. Co. v. Van Dyck, 1 Stock. 498; Hedrick v. Hughes, 15 Wallace, 123. (5) The defendant did not attempt to show the gas was not burned or the lamps cleaned and repaired, as charged, and the case having been fairly tried on the pleadings and evidence, judgment should be affirmed, as the verdict was for the right party. Thompson Charging the Jury, sec. 118; R. S. 1879, sec. 3775.

BLACK, J.

This suit is based upon a contract made by the plaintiff, the Laclede Gas Light Company, and the defendant, dated February 28, 1873. The plaintiff seeks to recover for gas supplied to the public lamps in that district of the city which, under the terms of the contract, it agreed to light at thirty dollars per annum for each lamp, and for repairing, cleaning, lighting, and extinguishing the lights, at the rate of seven dollars per annum for each lamp. Payments were to be made monthly, and this suit is for gas furnished, and for such services, for the months of December, 1875, to and including May, 1876.

1. The petition consists of various counts, two for each month--one for the price of the gas, and one for the other services. The first count sets out the incorporation of the three parties to the contract, the ordinance directing the contract to be made, the contract and the terms thereof. These matters are not stated in the second and subsequent counts, but in them reference is made to the first by the use of such terms as “in the district aforesaid,” “under said contract,” and “agreed as aforesaid.”

The answer was a general denial. The sufficiency of the second and subsequent counts was questioned by way of an objection to the introduction of any evidence, on the ground that these counts did not state a cause of action. By following out the references thus made by the second and following counts to the first, each stated a good cause of action. This being so, the objection made, as it was for the first time, on trial, was properly overruled, even if well taken, had it been made in proper time. Aside from this, the point was not well taken. Formerly subsequent counts might be made certain by reference to a preceding one; nor was this rule always strictly confined to matters of inducement. 1 Chitty's Plead. 355; Crookshank v. Gray, 20 John. 347; Freeland v. McCullough, 1 Den. 414; Griswold et al. v. Ins. Co., 3 Cow. 96; Loomis v. Swick, 3 Wend. 205. The count to which reference is made should be a good one. Nelson v. Swan, 13 John. 484. This last rule, it is said, has no application to mere matters of inducement. Curtis v. Moore, 15 Wis. 134. We have held where the petition in the first count sets forth in the introduction the incorporation and corporate powers of the plaintiff and defendant it was not necessary to re-state such matters. Aull Savings Bank v. City of Lexington, 74 Mo. 104. Under the code each cause of action must be separately stated with the relief sought, so as to be intelligently distinguished. Yet the same cause of action may be stated in...