City of Farmington v. Farmington Telephone Co.

135 Mo. App. 697 | Mo. Ct. App. | 1909

GOODE, J.

(after stating the facts). — We are not called on to determine the adequacy of the original petition, because that point was determined in favor of defendant, which has appealed, contending the amended petition should have been struck out as constituting a substitution of an entirely different cause of action; in other words, a departure. This position is untenable. Whether good or not, the first petition sought to recover from defendant the identical debt alleged to be owing in the amended petition, to-wit: payment for the use of the streets and public grounds of the city by defendant in the maintaining and operating a telephone system from June, 1904, to April 21, 1906. The difference between the two petitions is the first one declared on an ordinance granting an exclusive franchise to defendant, or its promoters, in consideration of certain-payments, whereas the amended petition counts on an agreement to pay a rental for the nse of the streets, etc., without saying the agreement was formed by an ordinance granting an exclusive, or any other franchise. The second count of the amended petition declares for the same debt as being the reasonable value of the use of the city streets during the period mentioned. It ought to be needless to say, that though a petition is demurrable for stating no cause of action, it may be so amended as to state one, if a new cause is not substituted by the amendment. The motion to strike out was rightly overruled; for the amended petition was not a departure, but related to the same matters, called for the same measure of damages and might be supported by the same evidence as the original one. [Lottman v. Barnett, 62 Mo. 159; Rippee v. Railroad, 154 Mo. 358; Schwab v. Railroad, 71 Mo. App. 241.]

The whole argument in favor of the demurrer to the amended petition goes back to the alleged invalidity of the original petition, and counsel for defendant insist the latter stated no cause of action because it declared on a contract which conferred a monopoly on defendant and was, therefore, invalid; citing Town of Kirkwood v. Meramec Highlands Company, 94 Mo. App. 644. We cannot look at the original petition to determine whether the demurrer should have been sustained to the amended one, for a demurrer reaches only defects in the pleading against which it is lodged. Hence we will not say the ordinance granting an exclusive franchise was either void or valid; for this ordinance is not presented or alluded to in the amended petition and is not before us for construction. Section 7659 of the Statutes, which regulates the form of contracts entered into by municipalities though referred to in the demurrer, is not brought forward or even mentioned in the brief for defendant as relevant to the propositions for which they contend.

The judgment is affirmed.

All concur.