Water, Light & Gas Co. v. City of Hutchinson

• Decision Date: 09 March 1908
• Docket Number: 2,675.
• Citation: 160 F. 41
• Parties: WATER, LIGHT & GAS CO. v. CITY OF HUTCHINSON.
• Court: U.S. Court of Appeals — Eighth Circuit

160 F. 41

WATER, LIGHT & GAS CO. v. CITY OF HUTCHINSON.

No. 2,675.

United States Court of Appeals, Eighth Circuit.

March 9, 1908

Frank Doster and H. S. Lewis, for plaintiff in error.

C. M Williams and A. C. Malloy (F. F. Prigg, on the brief), for defendant in error.

Before SANBORN and ADAMS, Circuit Judges, and PHILIPS, District Judge.

PHILIPS District Judge.

Broadly stated, the question for decision on this record is whether or not, under the facts pleaded, a suit founded upon an express written contract for electric lights furnished by the plaintiff in error to the defendant city, and judgment for the defendant, is a bar to a subsequent quantum meruit action for the value of the service so rendered by the plaintiff and enjoyed by the defendant. As judgment was directed in favor of the defendant on the pleadings, we must look to them for the facts. The petition, in substance, alleges that the plaintiff furnished electric lights for the defendant on its streets at its special instance and request, from the month of July, 1903, to the month of November, 1905, inclusive that the reasonable value of the light service so furnished was $262.04 per month, aggregating the sum of $7,423.81, with interest on each of the monthly bills rendered, the itemized account of which was attached to the bill. The answer, after denying that the plaintiff furnished said light at the special instance and request of the defendant, and alleging that such service was voluntary on the part of plaintiff against the objection of defendant, pleaded in bar of the action that on the 14th day of July, 1904, the plaintiff, in the United States Circuit Court for the District of Kansas instituted against it an action to obtain judgment for the electric light service aforesaid, as also for moneys alleged to be due the plaintiff for hydrant rental in said city, and that in said action the plaintiff recovered judgment for the sum of $8,301.77, which it pleads as an adjudication of the controversy in question. The defendant filed with the answer the record, pleadings, proceedings, etc., in said original suit as a part of the answer, to which reference is made, from which it appears that the first 12 counts of the original petition were based upon the written contract between the plaintiff's assignor and the defendant city for electric lights furnished to the defendant, covering the same monthly items sued for in the present action. Other counts in the original petition were for extra lighting service alleged to have been furnished by the plaintiff to the defendant. The other counts of the petition were for water furnished by the plaintiff's assignor to the city under written contract, amounting to $7,540, for which judgment was prayed, with interest. It seems from the verdict returned therein that the jury found the issues for the plaintiff on the counts for hydrant rental alone. As to the extra lighting service sued for, the court directed a verdict for the defendant, on the ground that no evidence was adduced in support thereof. The charge of the court to the jury in said first action, which is presented as a part of the defendant's answer, explicitly required that to warrant a verdict for the plaintiff on account of the electric lights furnished, they must find that the light was substantially in accordance with the terms and agreements of the contract sued on; but if the jury should 'fail to find by the greater weight of all the credible testimony in this case that the plaintiff has substantially kept and performed its contract with the defendant city in regard to the lighting of said city, then and in that event your verdict will be for the defendant on this branch of the case. ' The reply to the answer in the present action, after admitting the institution of the former suit on the counts for electric light furnished alleged that: 'Said plaintiff avers that, as to said electric light service, its demand for payment therefor was made wholly on a claim of express contract liability to it on the part of said defendant, and in nowise on a claim for the reasonable value of the light service furnished by it, as by it now alleged; said plaintiff further avers that on the trial of said action it is only proved by said defendant, and found by the jury, and adjudged by the court, that said defendant was not under any express contract liability to plaintiff to pay for said electric light service, but it was not in the pleadings in said cause in anywise alleged, nor by the plaintiff proved, nor by the jury found, nor by the court adjudged, that said defendant was not obligated to pay said plaintiff for the reasonable value of the electric light service furnished by said plaintiff to said defendant during the period of time alleged in the pleadings in said cause, and alleged in the plaintiff's petition herein.'

In other respects the reply tendered the general issue as to the new matter pleaded in the answer.

While not contending that the plaintiff had not the right in the first instance to a quantum meruit action, the position of defendant's counsel is that the plaintiff was entitled to pursue only one remedy, and having made its election to sue upon the express contract and lost, it is barred from thereafter resorting to the action quantum meruit. Judged by their argument, their position divides itself into two aspects, election of remedy and res adjudicata. It is true that where a man has a right to choose one of two modes of redress which are so inconsistent that the assertion of one involves the negation or repudiation of the other, his choice of the one, with knowledge of such facts as would authorize a resort to either, will preclude him from going back and electing again, as a litigant may not assume contradictory positions. This is illustrated by the principle applied in Robb v. Vos, 155 U.S. 13, 15 Sup.Ct. 4, 39 L.Ed. 52, where an attorney, without the knowledge of his principal, fraudulently consented to a judgment and obtained the proceeds of the sale under execution thereon. After knowledge of the facts the client appeared in an action in the state court and set up claim to the proceeds, founded upon the proceedings under the judgment and execution. It was held that he was estopped from proceeding in equity to set aside the sale on the ground that the attorney had no authority to appear for him. He was estopped, because he ratified the act by undertaking to obtain the proceeds. So in Thompson v. Howard, 31 Mich. 309, 312, where a father brought an action of assumpsit for a minor son's wages, and after the jury disagreed he discontinued suit, and brought an action for enticing away and harboring his son. It was held that his attitude was double and inconsistent. In the case where a contract was voidable for fraud, which the party wronged could affirm or rescind, he could not maintain an action for the sum due under the contract and, failing, then bring an action which repudiated the contract and proceed as upon a disaffirmance. 'One is to recover damages in respect to the breach of the contract, the other can be maintained only by showing that there was no contract. * * * By bringing the first action, after knowledge of the fraud practiced, the plaintiff waived the right to disaffirm the contract, and the defendant may justly hold him to the election. ' Conrow v. Little, 115 N.Y. 387, 393, 394, 22 N.E. 346, 347, 5 L.R.A. 693.

So, it is said in Connihan v. Thompson, 111 Mass. 272:

'The defense of waiver by election arises where the remedies are inconsistent, as where one action is founded on an affirmance, and the other upon a disaffirmance of a voidable contract for the sale of property.'

But such is not the case under review. It is familiar practice where A, under special contract, has done work for B, such as undertaking to build a house and the like, being apprehensive that he may not have come up to the full measure of the requirements of the contract, he may in a suit for the enforcement of the contract add a second count in quantum meruit. There is under the Code practice, extant in the state of Kansas, no legal incompatibility in counting separately on the two causes of action. He is entitled to so plead to meet the contingency of the proofs, so as to avoid the disaster of going out of court on failure to show full performance of the contract. Most certainly the court would not drive him to an election before hearing the evidence; and when at the close of the proofs there should be evidence sufficient to go to the jury on the two aspects of the case, it would be an abuse of discretion on the part of the court to deny the plaintiff the right to take the opinion of the jury on both issues under proper direction that the plaintiff is not entitled to recover on both counts. Both causes...