St. Louis Gaslight Co. v. City of St. Louis

• Decision Date: 31 March 1870
• Citation: 46 Mo. 121
• Parties: THE ST. LOUIS GASLIGHT COMPANY, Appellant, v. THE CITY OF ST. LOUIS, Respondent.
• Court: Missouri Supreme Court

46 Mo. 121

THE ST. LOUIS GASLIGHT COMPANY, Appellant,

v.THE CITY OF ST. LOUIS, Respondent.

Supreme Court of Missouri.

March Term, 1870.

Appeal from St. Louis Circuit Court.

On the 9th day of January, A. D. 1846, under the provisions of the original and amended charter of the St. Louis Gaslight Company, a contract in writing was entered into between the city of St. Louis and said Gas Company, which embraced among others the following provisions:

“The party of the first part do agree with the party of the second part that they will and do, under the provisions of the twenty-sixth section of the St. Louis Gaslight Company's charter, hereby order and contract for the erection of five lamps on each square or block within that part of the city of St. Louis bounded as follows: On the east by Front street, on the west by Fourth street, on the north by Cherry street and Franklin avenue, and on the south by Myrtle street, together with an equivalent number of lamps on the west side of Fourth street, as will complete the lighting of said street from Myrtle street to Franklin avenue.”

“And the party of the second part do hereby agree and bind themselves and their successors to furnish, in the shortest practicable time, to the party of the first part, in addition to the lamps hereby ordered, such additional lamps as may be ordered (from time to time) by the party of the first part, six months' notice being given to the party of the second part of the required extension: provided, that the extension required from time to time shall net to the party of the second part, upon the cost thereof, six per cent. per annum, which is hereby guaranteed by the party of the first part, provided the cost aforesaid shall be certified to by affidavit of the president of the aforesaid Gaslight Company.

Second. That the party of the second part do agree, under the twenty-sixth section of said charter, to erect and keep in repair such public lamps or burners in the streets or other public places within the city of St. Louis as are hereby contracted for and may be hereafter ordered under the provisions of said charter; and the said party of the first part agree to pay to the said party of the second part, for the gas used and consumed by each public lamp or burner, of an illuminating power equal to the gaslight of any other city in the Union, herein ordered by the party of the first part, and erected by the party of the second part, the sum of twenty-five dollars per annum, to be paid in quarterly payments; said lamps to be kept burning, commencing during twilight in the evening and ending at dawn of day in the morning, except when the clear moonlight renders it unnecessary; the party of the first part lighting, extinguishing, cleaning, and making such repairs, other than such as result from natural wear and tear, to said lamps, posts, or brackets herein or hereafter to be ordered: provided, that the sum of twenty-five dollars per annum for each lamp herein ordered shall be in full of all demands against the said party of the first part, for gas, furnishing lamps, lamp-posts or brackets, and gas pipes, and the cost of laying and erecting the same, and the interest on the cost thereof, anything in the twenty-sixth section of said charter of the St. Louis Gaslight Company to the contrary notwithstanding: provided further, that the city in no case shall pay to the party of the second part a sum greater than a majority of the private consumers are paying for gas.

Third. The said party of the second part agree to erect one-half of the lamps herein contracted for within one year, and the remaining half within two years, from and after the first of October, 1846.” * * * * *

“ Fifth. The party of the first part agree and do hereby relinquish the right to purchase the gas-works, property etc., of the Gaslight Company at the expiration of twenty years from and after the first of January, 1840, as provided by the twenty-seventh section of the charter of said company: provided, that in the event the said party of the first part shall decline to purchase the gas-works, property, etc., at the end of twenty-five years from and after the first of January, 1840, as is provided in the twenty-eighth section, they shall have the privilege of purchasing, as aforesaid, at the end of thirty years, from and after the first day of January, 1840, and at the period of every five years thereafter, in the manner as is provided in the twenty-seventh and twenty-eighth sections, and upon giving notice of intention so to purchase, as is provided in section 28 of said charter.” * *

“ Eighth. It is mutually agreed between the parties aforesaid that the second party may, at any time on or before the first of October, 1846, cancel the preceding provisions of this contract by giving notice to that effect, in writing, to the mayor: provided, that in such case the said second party shall, and they do, hereby bind themselves to surrender all exclusive privileges of lighting the city under their charter.

Ninth. That the parties to this instrument do mutually absolve each other from the conditions contained in a former contract, dated 8th of January, 1841, in reference to the lighting of the city of St. Louis with gas: provided, however, that unless the said company shall go on in good faith to fulfill the terms of this contract, all penalties accruing under the former contract shall be and continue in force.”

It was admitted, partly by pleadings and partly by stipulations on the trial, that the total number of lamps ordered and erected in the city limits described in the contract, and in the time therein allowed, was 263; also, that subsequent to the erection of the above 263 lamps, the city did from time to time order, and the Gas Company did from time to time erect, large numbers of additional lamps on other streets and in other parts of said city not embraced within the district so specified in said contract; and that the total number of lamps erected by said company and in use by the city, and for the gas used in which the city was responsible to the Gas Company, at the several dates mentioned in the petition, was as follows: during the quarter ending April 30, 1866, an aggregate of 2,095 lamps, viz: 263 lamps within the district specified in said contract, and 1,832 lamps outside of that district; during the quarter ending July 31, 1866, 263 lamps within and 1,999 lamps outside of said district--in all 2,262 lamps; during the quarter ending October 31, 1866, 263 lamps within and 2,196 lamps outside of said district--in all 2,459 lamps.Glover & Shepley, and Krum and Hitchcock, for appellant.

I. Taking the whole contract of January, 1846, together, the meaning of the words “herein ordered,” used therein, is perfectly clear and unambiguous, and they should be applied only to lamps erected within the district particularly described in the beginning of the contract.

II. For evidence of a latent ambiguity to be admissible, it must be made out clearly. (Sugd. on Vend. 140; 2 Phillips on Ev. 750; Smith v. Jeffries, 15 M. & W. 561; Walpole v. Cholmondeley, 7 T. R. 138.)

III. The term “herein ordered” being perfectly clear in meaning, and without ambiguity, latent or patent, parol evidence was inadmissible to show the intention of the parties using it, either directly or indirectly. (1 Greenl. on Ev. 277-8, 295; 2 Phillips on Ev. 233-4; 2 Stark. on Ev. 563, 566; 2 Pars. on Cont. 564; Chit. on Cont. 106; Shore v. Wilson, 9 Cl. & Fin. 566 et seq.; Cortelyou v. Van Brundt, 2 Johns. 362; Clifton v. Walmesley, 5 T. R. 289; Meres v. Ansell, 3 Wils. 276; Allen v. Kingsbury, 16 Pick. 238; 7 Greenl. 423.)

IV. Even if the term “herein ordered” were ambiguous, as alleged, whether the ambiguity were patent or latent, the court erred in admitting evidence of the actions of the parties subsequent to the contract, to show their intention in using words contained in said contract. Such evidence is admissible only in the case of ancient deeds, grants, etc. (Sugd. on Vend. 1404; Stark. on Ev. 629; 2 Saund. Pl. and Ev. 697; Chit. on Cont. 106; Munro v. Taylor, 8 Hare, 56; Simpson v. Margitson, 11 Ad. & El., N. S., 32; Baynham v. Guy's Hospital, 3 Ves. 298; Moore v. Foley, 6 Ves. 237; Livingston v. Ten Broeck, 16 Johns. 14; Allen v. Kingsbury, 26 Pick. 228; Parsons v. Miller, 15 Wend. 561; 2 Phillips on Ev. 672 et seq., and note p. 526.)

V. The words “herein” and “hereafter,” throughout the second clause, are in such direct antithesis to each other that it would be impossible to give defendant's construction to “herein” without striking out “hereafter” wherever it appears in the contract. This would be to vary the contract, not to construe it, and would be beyond all precedents. Parol evidence can in no case be allowed to take from or add to the language of a written instrument.

VI. Parol evidence of the acts of the parties under the contract being inadmissible, and the question being upon the construction of the terms of a written instrument bared of all extraneous circumstances, it was for the court, and not for the jury, to give the meaning of the terms in question as used by the parties. (Sugd. on Vend. 141; 2 Pars, on Cont. 492, 556, note b; Caldwell v. Dickson, 26 Mo. 61; Belt v. Goode, 31 Mo. 128; Simpson v. Margitson, 11 Ad. & El., N. S., 32; Eaton v. Smith, 20 Pick. 156; Hutchinson v. Bowker, 5 Mees. & Ed. 540; Browne v. Holton, 9 Ired. 327; Wason v. Rowe, 16 Verm. 528; Hitchin v. Groom, 5 C. B. 519; Begg v. Forbes, 30 Eng. L. & Eq. 508; Allen v. Kingsbury, 16 Pick. 239.

Geo. P. Strong, for respondent.

I. The proper construction of the language of the contract, when all its provisions are duly considered, supports the claim of the city as to its proper meaning. Such was the manifest intent of both parties as to the meaning the contract should have, and this intent is to govern in the construction of the contract. (2 Sto. on Cont., §§ 634, 636, 640, 441 a, 640 b, 657, 658 a; Bell v. Bruen, 1 How....