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

86 Mo. 495

• Court: Supreme Court of Missouri
• Decided: October 15, 1885
• Status: Published

Opinion

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 fiqthe 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. 855; 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 different ways in different counts. Brinkman v. Hunter, 73 Mo. 172. So, too, the petition must be a plain and concise statement of the facts constituting the cause of action without unnecessary repetitions. The code was not designed to require or encourage useless prolixity. Where, therefore, as in this case, allegations are once clearly made which are common to all the counts, it is sufficient to make reference thereto in subsequent counts. Beckwith v. Mollahan, 2 West Va. 481.

2. Further defence is that the contract sued upon must bind all of the parties or none, and that the Laclede Gi-as Company had no power to make the contract in question, and hence it is void as between the city and plaintiff. It is assumed, not decided, that the first branch of the proposition is correct, but the second is not true in point of fact or law. The sixth section of the act of March 2, 1857, incorporating the Laclede Gras Company, gave to it and the city power to make any contracts they deemed best, with regard to lighting a portion of the city, and to the city the right to purchase the property of the company at the expiration of twenty years. This section, it is trae, was repealed by the act of March 26, 1868, and hence the conclusion contended for is drawn. But, by the fifth section of the act of 1857, that company had power- within a defined district to light the Same, to make and vend gas and gas light, and to lay down pipes therein, and all “other powers necessary to execute and carry out the privileges and powers ” thereby granted. All of these rights, privileges and franchises-are, by the same act- of March 26, 1868, extended over the corporate limits of the city. This legislation shows no intention to take away from the Laclede Gas Company its powers to contract with the city, but, on the contrary, its powers in this respect are extended over the entire city limits. The power to make and vend gas, lay down pipes, and light the city, would carry the power to make all necessary contracts with respect thereto, but express-power is given to do all those things necessary to execute and carry out the privileges granted, and this must be held to include the power to make all needful contracts-with the city. The validity of this contract was affirmed in a suit between these parties (70 Mo. 69), and the conclusion here stated is but a corollary of what was then-said. It is true, the precise point now urged was not then ruled, but it was only because the exigencies of that case did not require it.

3. By the ordinance read in evidence it was made-the duty of the engineer, by whom the lamps were erected, to report to the gas inspector the location of the lamps as soon as they were reported ready for lighting by the gas companies, and of the gas inspector to examine and certify as to the correctness of the bills of the gas companies against the city. Both were important public offices of the municipality, and both kept records of these matters. The records of lamps kept in the city engineer’s office, and the register kept by the gas inspector, were - competent evidence. Greenleaf on Evidence (13 Ed.) secs, 483, 484, 496. Defendant did not attempt to show that the services sued for were not rendered, nor that the bills were incorrect or had been paid. The judgment is clearly right-, and it is affirmed. Sherwood, J., did not sit in the consideration of this cause. The other judges concur.