BLAIR, J.
This is an appeal from a judgment for relator in a proceeding by mandamus to compel appellants to audit, allow and pay a claim for a balance alleged to be due for water furnished during a period of about four years preceding the application for the alternative writ. The facts are stated in State ex rel. v. Eastin, 2'70 Mo. 193, and a restatement of them in detail will not be necessary.
Under a franchise ordinance adopted and accepted in 1900, relator, a public service corporation, agreed to furnish water to large consumers in the City of St. Joseph at the rate of six cents per thousand gallons. State Hospital No. 2, of which appellants are the Board of Managers, was situated outside the limits of the city. In 1905 appellants’ predecessors in office entered into a contract with relator whereby relator agreed to lay certain pipes and furnish water to the Hospital at a rate of ten. cents per thousand gallons. The main was extended and water furnished and paid for at the 1905-contract rate until the city extended its limits in such wise as to bring the Hospital within them.' Thereafter, the Board of Managers refused to pay in excess of the ordinance rate of six cents per thousand gallons.
February 23, 1912, relator instituted a mandamus proceeding in this court to compel payment for a balance then asserted to be due under the private contract rate. [668] The alternative writ was quashed by Court in Banc, November 26, 1912. Additional facts will be stated in the opinion.
Appellants contend that (1) an issue conclusive of this case was adjudicated in the former proceeding, (2) there was no compliance with the contract, (3) and acceptance of payment of six cents per thousand gallons estops relator.
Estoppel' I. It is contended the acceptance of payments equivalent to six cents per thousand gallons furnished estops relator to demand a balance, even though it be conceded the ten-cent contract. was and is in force. Relevant to this, question there is nothing urged save the fact of part payment. There was no plea of accord and satisfaction. There was no evidence the payments were accepted or agreed to be accepted, expressly or impliedly, in full of the claim. In these circumstances the acceptance cannot be held to have constituted either estoppel, accord or satisfaction. [Pollman Coal Co. v. St. Louis, 145 Mo. l. c. 656, et seq.]
Acceptance, II. The next point made is that sufficient pressure was not furnished to carry water to the upper floors of the Hospital; that this was a breach of the contract and precludes recovery for the water actually furnished and received. The only principle advanced in support of this is that relator “ cannot sue on one cause of action and recover on another.” No counterclaim was pleaded. Relator contends the contract did riot cover any liability for lack of pressure. The contract need not be construed. The Hospital accepted the water furnished. The point is ruled against appellants for the reason given in Waterworks Co. v. Joplin, 177 Mo. 1. c. 526 et seq., and cases cited.
[669] Res Adjudicata. [668] III. It is contended that a question vital to the case was decided in State ex rel. v. Geiger, 246 Mo. 74, and [669] that relator is estopped thereby. That was a final decision in a case between the same parties, Up0n a different claim or demand. In these circumstances “the inquiry must always be as to the point or question actually litigated and determined in the original action; not what might have been then litigated or determined.” [Cromwell v. Sac County, 94 U. S. 351, 353; approved in State ex rel. v. Mining Co., 262 Mo. l. c. 501, 502.] While the Mining Company case was a tax suit, the rule in this State is, in such cases, the same as the rule generally applicable, as the opinions in that case and cases cited (l. c. 500) show.
In the Geiger case, supra, the proceeding involved water delivered after July, 1909, and prior to February 23, 1912. Eelator relied upon the same contract here involved, and appellants (here) relied upon the same franchise ordinance. Eelator there contended it was erititled to be paid the 1905-contract rate of ten cents per thous- and gallons. Appellants (respondents there) contended the extension of the city limits abrogated the contract and that' the franchise ordinance rate of six cents applied. The contest was whether the one or the other rate was in force. The court summed up the controversy thus: “If, at the time of instituting this proceeding the contract of 1905 was in force, then the balance claimed by relator was due and it is entitled to the relief prayed for. On the other hand, if the extension of the city limits so as to include the hospital had the legal effect of limiting relator’s charges to the rate provided by the ordinance, then the writ should be denied. ’ ’
The court then held: (1) that in the absence of regulation by competent authority a public service corporation and consumers .may fix rates by contract; (2) that the extension of the city limits, in the absence of special provision to the contrary, extends to the added territory “all ordinances and contracts of a general nature;” (3) that the contract of 1905 was abrogated by the annexation of the hospital grounds; and (4) concluded that the ordinance rate governed.
[670] In the Geiger ease the pleadings did not present and the court did not determine the question of the constitutionality of the ordinance as applied in that case §nd as sought to he applied in this. In a case like this, in which the suit is upon a different demand, it is not to be held that a question was determined by necessary implication which question the pleadings did not present and, under a long and firmly settled rule, is not raised for determination unless it is so presented. The identical question whether a constitutional question is precluded in a second proceeding in circumstances substantially like those in this case has been the subject of adjudication.
In Boyd v. State, 94 U. S. 645, Boyd had been indicted and convicted, under an act passed in 1871, of setting-up and carrying on a lottery without legislative authority. A previous act (1868) was conceded by the State authorities to authorize what Boyd did, if such act was constitutional. Boyd had complied with its terms. In a previous prosecution against Boyd, the State Supreme Court had held the Act of 1868 constituted a contract between the State and those complying with it. In the case then before the Supreme Court of the United States the question of the constitutionality of the Act of 1868 had been, for the first time, raised, and the State Court had held it was unconstitutional and affirmed Boyd’s conviction under the Act of 1871. In the United States Supreme Court the question was presented whether the State was estopped by the holding in the former prosecution. Upon this question the court said (1. c. 648) :
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BLAIR, J.
This is an appeal from a judgment for relator in a proceeding by mandamus to compel appellants to audit, allow and pay a claim for a balance alleged to be due for water furnished during a period of about four years preceding the application for the alternative writ. The facts are stated in State ex rel. v. Eastin, 2'70 Mo. 193, and a restatement of them in detail will not be necessary.
Under a franchise ordinance adopted and accepted in 1900, relator, a public service corporation, agreed to furnish water to large consumers in the City of St. Joseph at the rate of six cents per thousand gallons. State Hospital No. 2, of which appellants are the Board of Managers, was situated outside the limits of the city. In 1905 appellants’ predecessors in office entered into a contract with relator whereby relator agreed to lay certain pipes and furnish water to the Hospital at a rate of ten. cents per thousand gallons. The main was extended and water furnished and paid for at the 1905-contract rate until the city extended its limits in such wise as to bring the Hospital within them.' Thereafter, the Board of Managers refused to pay in excess of the ordinance rate of six cents per thousand gallons.
February 23, 1912, relator instituted a mandamus proceeding in this court to compel payment for a balance then asserted to be due under the private contract rate. [668] The alternative writ was quashed by Court in Banc, November 26, 1912. Additional facts will be stated in the opinion.
Appellants contend that (1) an issue conclusive of this case was adjudicated in the former proceeding, (2) there was no compliance with the contract, (3) and acceptance of payment of six cents per thousand gallons estops relator.
Estoppel' I. It is contended the acceptance of payments equivalent to six cents per thousand gallons furnished estops relator to demand a balance, even though it be conceded the ten-cent contract. was and is in force. Relevant to this, question there is nothing urged save the fact of part payment. There was no plea of accord and satisfaction. There was no evidence the payments were accepted or agreed to be accepted, expressly or impliedly, in full of the claim. In these circumstances the acceptance cannot be held to have constituted either estoppel, accord or satisfaction. [Pollman Coal Co. v. St. Louis, 145 Mo. l. c. 656, et seq.]
Acceptance, II. The next point made is that sufficient pressure was not furnished to carry water to the upper floors of the Hospital; that this was a breach of the contract and precludes recovery for the water actually furnished and received. The only principle advanced in support of this is that relator “ cannot sue on one cause of action and recover on another.” No counterclaim was pleaded. Relator contends the contract did riot cover any liability for lack of pressure. The contract need not be construed. The Hospital accepted the water furnished. The point is ruled against appellants for the reason given in Waterworks Co. v. Joplin, 177 Mo. 1. c. 526 et seq., and cases cited.
[669] Res Adjudicata. [668] III. It is contended that a question vital to the case was decided in State ex rel. v. Geiger, 246 Mo. 74, and [669] that relator is estopped thereby. That was a final decision in a case between the same parties, Up0n a different claim or demand. In these circumstances “the inquiry must always be as to the point or question actually litigated and determined in the original action; not what might have been then litigated or determined.” [Cromwell v. Sac County, 94 U. S. 351, 353; approved in State ex rel. v. Mining Co., 262 Mo. l. c. 501, 502.] While the Mining Company case was a tax suit, the rule in this State is, in such cases, the same as the rule generally applicable, as the opinions in that case and cases cited (l. c. 500) show.
In the Geiger case, supra, the proceeding involved water delivered after July, 1909, and prior to February 23, 1912. Eelator relied upon the same contract here involved, and appellants (here) relied upon the same franchise ordinance. Eelator there contended it was erititled to be paid the 1905-contract rate of ten cents per thous- and gallons. Appellants (respondents there) contended the extension of the city limits abrogated the contract and that' the franchise ordinance rate of six cents applied. The contest was whether the one or the other rate was in force. The court summed up the controversy thus: “If, at the time of instituting this proceeding the contract of 1905 was in force, then the balance claimed by relator was due and it is entitled to the relief prayed for. On the other hand, if the extension of the city limits so as to include the hospital had the legal effect of limiting relator’s charges to the rate provided by the ordinance, then the writ should be denied. ’ ’
The court then held: (1) that in the absence of regulation by competent authority a public service corporation and consumers .may fix rates by contract; (2) that the extension of the city limits, in the absence of special provision to the contrary, extends to the added territory “all ordinances and contracts of a general nature;” (3) that the contract of 1905 was abrogated by the annexation of the hospital grounds; and (4) concluded that the ordinance rate governed.
[670] In the Geiger ease the pleadings did not present and the court did not determine the question of the constitutionality of the ordinance as applied in that case §nd as sought to he applied in this. In a case like this, in which the suit is upon a different demand, it is not to be held that a question was determined by necessary implication which question the pleadings did not present and, under a long and firmly settled rule, is not raised for determination unless it is so presented. The identical question whether a constitutional question is precluded in a second proceeding in circumstances substantially like those in this case has been the subject of adjudication.
In Boyd v. State, 94 U. S. 645, Boyd had been indicted and convicted, under an act passed in 1871, of setting-up and carrying on a lottery without legislative authority. A previous act (1868) was conceded by the State authorities to authorize what Boyd did, if such act was constitutional. Boyd had complied with its terms. In a previous prosecution against Boyd, the State Supreme Court had held the Act of 1868 constituted a contract between the State and those complying with it. In the case then before the Supreme Court of the United States the question of the constitutionality of the Act of 1868 had been, for the first time, raised, and the State Court had held it was unconstitutional and affirmed Boyd’s conviction under the Act of 1871. In the United States Supreme Court the question was presented whether the State was estopped by the holding in the former prosecution. Upon this question the court said (1. c. 648) :
“It is true, that,-in a former case against the same defendant, upon an indictment of a similar kind, for a previous offense of setting up and carrying on a lottery, the Supreme Court of the State held that the statute in question constituted a contract, and that the repealing act was for that reason void. But in that case the only subject before the court was the meaning of the statute — whether its provisions in their terms amounted to a contract which a subsequent enactment [671] could not impair. The constititionality of the act was not drawn in question; that was not denied.
‘ ‘ Courts seldom undertake, in any case, to pass upon the validity of legislation, where the question is not made by the parties. Their habit is to meet questions of that kind when they are raised, but not to anticipate them. Until then, they will construe the acts presented for consideration, define their meaning, and enforce their provisions. The fact that acts may in this way have been often before the court is never deemed a reason for not subsequently considering their validity when that question is presented. Previous adjudications upon. other points do not operate as an estoppel against the parties in new eases, nor conclude the court, upon the constitutionality of the acts, because that point might have been raised and determined in the first instance. So when, in the present case, the point was taken for the first time against the constitutionality of the Act of 1868, the court was not precluded by the previous decisions from freely considering and determining it.”
In Philadelphia v. Railway, 142 Pa. 1. c. 493, it was said
“The argument of the company’s counsel now is that, although, in the case referred to, the point does not appear to have been made or decided, yet the constitutionality of the Act of 1872 must be taken to have passed in rein judicatam; that the judgment in that case necessarily involved a decision that the statute imposing the tax was to that extent valid, and, although the cause of action is not the same, the city is estopped of record from re-litigating that question. [Cases relied on by counsel are then cited.]
“Whilst the general rule declared in these authorities is undoubtedly correct, it does not extend to estop a person from setting up the unconstitutionality of a statute, when the cause of action is not the same. The former judgment is absolutely conclusive upon parties, as to the cause of action involved in it, although the statute upon which the proceedings were taken was not [672] constitutional; that judgment can only he impeached collaterally. for fraud or want of jurisdiction. It is a matter of no consequence now that the Act of 1872, upon which judgment was entered for the amount of the tax, was unconstitutional and void; judgment having been entered, and no appeal taken, the subject-matter of the issue in that suit is res judicata. The former judgment, therefore, operates as a bar to any subsequent action founded on the same demands. [Bigelow on Estop. 80-88.] In the case at bar, however, whilst the point in issue may perhaps he the same, the cause of action is different; and, although the verdict) with the judgment thereon, would furnish conclusive evidence of the matters in controversy upon which the verdict was rendered, and operate as a bar to the further litigation thereof, it would not preclude the plaintiff in this suit from asserting the unconstitutionality of the act upon which the previous action proceeded. [Bigelow on Estop. 90-103.]”
The rule has other support: Freeman v. Barnum, 131 Cal. l. c. 389; Bigelow on Estoppel (6 Ed.), pp. 112, 113; Cromwell v. County of Sac, supra.
The principle is sound, applicable and determinative of the question before us.
This disposes of all questions appellants present. The judgment is affirmed.
All concur except Woodson, J., not sitting.