70 Mo. 69 | Mo. | 1879
Lead Opinion
This suit was instituted in the circuit court of St. Louis county on the 21st day of May, 1870. Ah amended and supplemental petition was filed, by leave of court, on the 4th day of August, 1875, in which the La
It is alleged in the petition that defendant was incorporated by an act of the General Assembly approved February 4th, 1837, and was thereby vested with power to erect works in the city of St. Louis for supplying pure inflammable gas and the necessary apparatus for lighting said city and its suburbs with gas;*and that said city was empowered to purchase, hold and convey any estate, real or personal, for its use; that said charter was amended by act of the Legislature approved February 11th, 1839, which was immediately thereafter 'accepted and ratified by the stockholders, as provided therein; that said act of incorporation was further amended by an act approved February 28th, 1845. The petition further alleges that defendant duly organized under said original act and'the acts amen-datory thereof, and acquired certain real estate on which it erected its works, &c., uartieularly describing the real estate and other property thus acquired; tnat, by the acts incorporating the company, it is provided that if, after twenty years from the 1st day of January, 1840, the corporation of. the city of St. Louis shall resolve to purchase the gas-works from the St. Louis Gaslight Company, the price shall be fixed by arbitrators, one or more to be chosen by the president and directors of the company, and an equal number by the aldermen of the city, the arbitrators to take into consideration the value of the gas-works and the lands, grounds, buildings and utensils, rights and interests, and everything thereunto pertaining; and if they agree, their award shall be binding; to the amount agreed upon shall be added seven per cent, on the valuation, which aggregate amount shall be paid by the city to the company
Certain other provisions of the charter were set out, to-wit: That the charter should continue in force for twenty-five years from the 1st day of January, 1840, unless the company should convey to the city of St. Louis its gasworks, property, &c., in which event the gasworks, property, &c., should vest in the city and the charter of defendant should cease and determine; but should the city not determine to purchase at either of the times provided for, then the act of incorporation to remain in force tor an additional term.of twenty-five years from the last date mentioned for the sale and purchase; and further, that by the amendatory act of 1839 it was provided that the city of St. Louis and the board of directors of the gas company may contract for and make regulations relating to the lighting of the city with gas in such manner as may be agreed upon, and may make generally such contracts in relation to the business of the company as may be. beneficial to them and the public.
The petition, further states that plaintiff and defendant, on the 9th day of January, 1846, made a contract in writing, in the fifth clause of which the plaintiff relin
The petition also avers that defendant ought not to be heard in averring that the contract of 1846 was invalid, because the clause authorizing the purchase on the 1st day of January, 1870, was inserted therein, at the instance of defendant, for the fraudulent purpose of inducing the
It further alleges the incorporation of the Laclede Gaslight Company, and that it was authorized by various acts of the Legislature to vend gas within the corporate limits of the city, and to establish and lay pipes, mains, &c., necessary for that purpose; that a controversy arose between the two gas companies as to the right of the La-clede Gaslight company to exercise the above privileges, the St. Louis Gaslight Company disputing such right, and claiming that the exclusive right of making and vending gas belonged to it; that this controversy was, in 1872, com-prómised, under the terms of which the Laclede Gaslight Company undertook to purchase the pipes, mains, &e., of the St. Louis Gaslight Company north of a line coincident with the south line of "Washington avenue, and the St. Louis Gaslight Company abandoned its exclusive right to manufacture gas in that part of the city, and the manufacture and sale of gas therein was undertaken by said Laclede Gaslight Company. It is then alleged that said companies for the purpose of effecting and carrying out said compromise, caused an ordinance to be prepared and submitted, on the 10th day of February, 1878, to the city council of St. Louis, which on that day was adopted, and is entitled “ An ordinance to provide for the better lighting of St.
The first section of the ordinance provides that the St. Louis Gaslight Company waives, abandons and surrenders forever, to the city of St. Louis, irrevocably, any and all claim, and pretense of claim, of exclusive right to have gas-works, lay or have pipes or other appliances, vend or furnish gas, or do business as a gas company in said city-north of "Washington avenue, and the St. Louis Gaslight Company covenants and agrees with the said city and the Laclede Gaslight Company that it will not, within said district or portion of the city, at any time assert any claim or right to hinder or prevent the erection or completion of any gas-works or the laying down of mains, pipes or other things, or furnishing or supplying the city and its inhabitants, by any gas company or private individual; and that no suit shall ever be commenced, nor any act or thing be done by the St. Louis Gaslight Company to hinder or molest the Laclede Gaslight Company, or any other gas company. or private individual, in erecting, having or using the works, pipes and appliances for carrying on the business of a gaslight company, and furnishing gaslights in the aforesaid portion or district of said city, so that both of
2. The Laclede Gaslight Company and the St. Louis Gaslight Company, each and both of them, further covenant and agree with the city of St. Louis that each one of said companies shall act only under its own charter and franchises; that each shall have its own property and manage and prosecute its own separate business under its own charter and franchises, but the Laclede Gaslight Company abandons and surrenders fully and completely any and all exclusive rights and all claims, or pretense of claims, of sole or. exclusive privilege or right of lighting any part of the city of St. Louis with gas, or making or vending gas, gaslights or gas fixtures, and all sole or exclusive right whatsoever, whether claimed under its charter or by the aforesaid surrender to it or otherwise; such surrenders and' abandonments by both companies to be done and effected in a legal and binding manner. It being hereby understood and agreed that the district and portion of said city which is to be occupied by the Laclede Gaslight Company, and for and within which it herein contracts to furnish gas and do other things herein contracted for by it is, and shall be, the district aforesaid, all north of said line above' described; and that the district and portion of said city which is to be occupied by the St. Louis Gaslight Company, and for and within which it herein contracts to furnish gas and do all other things herein contracted for by it, is and shall be the remainder or balance of said city, so far as the charter of said St. Louis Gaslight Company extends and authorizes.
The third clause provides for the appointment of a gas inspector, the payment of his salary by the two companies, and prescribes the duties to be performed by him-
The fourth provides for the quality of the gas to be furnished, and the method of testing it, and that the price
The fifth and sixth clauses relate to supplying and keeping in repair lamps, lamp-posts, burners, &c., and toe the payment for gas furnished public.lamps.
The seventh clause is as follows : It is further covenanted and agreed by and between said parties that this contract shall continue in force until the 1st day of January,.1890, or so long during that .period as both of said gas companies shall exist and continue to do business as gas companies in the city; and it is further agreed between the
The petition then alleges that the said ordinance and contract entered into thereunder were and are illegal and void; that the contract was without consideration, and that neither the city nor defendant had lawful authority to make it. The petition concludes with the following prayer: That the court compel the St. Louis Gaslight Company to appoint arbitrators to fix the value of the gas-works, &c., or that the court will appoint referees or commissioners to fix that value; that the rights or claims of the Laclede Company to any portion of the property may be ascertained and the price which the plaintiff ought to pay being determined “ that the plaintiff be allowed,” as it offers to do, “ to pay the same to the defendants,” as they may be respectively entitled to the same, or into court, and that the St. Louis Company be compelled to convey the works, property, &c., to plaintiff’, and the pretended right of the Laclede Company to any part thereof “ may be extinguished,” and that the court will, by its decree, pass the
On the 14th day of January, 1876, the defendant filed its separate answer, in'which it avers that plaintiff" is a municipal corporation with limited powers, admits that defendant was incorporated under acts of the General Assembly mentioned in the petition, and refers to said acts for the extent of its powers; admits that it was the owner of the property mentioned, but avers that all the said lands or lots, or the buildings thereon, were not the gas-works of defendant; and admits that all the personal property was necessary, as alleged. It denies the agreement of 1846 in the form stated, and avers that the fifth clause of the alleged contract was at no time submitted to or authorized by the stockholders of defendant; and that so far forth as Said terms and conditions existed, the same were beyond the power of defendant to make, without the authority of stockholders; and avers that the plaintiff" was without power to make or enter into any agreement such as is in the fifth clause contained. The answer then says that all the terms of the contract of 1846 are not set forth in the petition, nor is defendant given an opportunity to take issu,e thereon; that there were other terms binding upon it, affecting the fifth clause, to have been performed by the plaintiff" before any right at law or in equity could accrue to it by virtue of said fifth clause, but which plaintiff has failed at all times prior to the commencement of this suit and prior to the filing of said amended petition, to perform, and which plaintiff" still fails to keep and perform.- The answer next
Defendant then particularly avers tbat since said alleged appointment of arbitrators, and since tbe commencement of this suit, the plaintiff has waived all right to purchase said gas-works, on the 1st day of January, 1870, and has continued to treat the defendant as proprietor, and has paid defendant sums of money, to-wit: as proprietor and owner of the gas-works for gas furnished plaintiff. Defendant denies that the clause in relation to the purchase, by plaintiff, on or after January 1st, 1870, was inserted in the contract of 1846, at the instance of defendant, or for the fraudulent purposes averred, or that plaintiff, for any reason alleged, did forego its right to make purchase at either of the times mentioned in the charter, or that plaintiff would have purchased at either of those times if it had not relied upon the agreement stated, and denies that any penalties had accrued under the contract of 1841, and denies the compromise alleged between the defendant companies. It denies that the defendant prepared or presented an ordinance to the city council, as alleged, but admits that the ordinance set forth in the amended petition was passed by-the city council and approved by the mayor in due form, and admits and avers that on February 28th, 1873, a contract in three parts, drawn up in accordance with the ordinance recited by the plaintiff, and embodying the precise terms and language of the said ordinance in all particulars, was sealed, executed and delivered by and between the said city of St. Louis, the Laclede Gaslight Company and the St. Louis Gaslight Company, as stated in the amended petition, and that a copy is annexed and made part of the answer. Defendant denies the illegality thereof, and sets the same up, and says that by virtue of the seventh clause it was agreed, among other things, between the city and the St. Louis Gaslight Company, that the litigation between them should cease, all suits pending between them should lie dismissed, and all causes of action between them
The answer then avers that the plaintiff ought not to be allowed to allege anything against the contract of 1873, because it was made at the request of the plaintiff', and the plaintiff has received great benefit and profit thereunder, and the defendant has been put to great expense; that defendant has been induced thereby to waive its exclusive right over a large part of the city, and to dispose of large parts of its property, which, should said agreement be set aside, would become again necessary to the defendant to be
On the 1st day of June, 1876, the court, having heard the evidence, rendered an interlocutory decree to the following effect: that the contract of January 9th, 1846, was valid, and under it and the charter the city had the right to purchase defendant’s gas-works on the 1st day of January, 1870-; that defendant had refused to appoint arbitrators under the resolution and notice to fix the value of the gas-works; that the contract ought to he specifically enforced ; that defendant should be held to account for all sums realized in the operation of the works from the 1st day of January, 1870; declares the ordinance of February 10th, 1873, as well as the contract of February 28th, 1873? to be invalid, and that it cannot be set up to defeat plaintiff’s right of recovery; appoints a receiver to take posses-, sion of the property, and three commissioners to ascertain its value, as of the 1st day of January, 1870, and the profits realized from operating the works; and restrains and enjoins defendant from manufacturing or selling gas. Under this decree the receiver took possession of the property, and the commissioners proceeded to fix the value of the same and ascertain the profits derived from operating the works. On the 12th day of February, 1877, the report of said commissioners coming on to be heard; the court rendered its final decree, confirming the interlocutory decree and the report of the commissioners, except as modified by the decree. The court then, after finding the value of the gas-works and coal and gas on hand on the 1st day of January, 1870, the receipts from the operation of the works from that time to the 5th day of June, 1876, the expenditures in their operation during the same time, the indebtedness of the city to the defendant for gas furnished under the contract of 1846, the amount received by the defendant from the sale of gas-works property to the Laclede Company, decreed that the matter in controversy should be
■St. Louis Gaslight Company, Ur.
■ Total receipts from January 1st, 1870, to June 5,1876, $5,412,360/35.
Also with money received from the Laclede Gaslight Company, $655,000; amounting in the aggregate to $6,067,-360.35; and shall be credited as follows :
1. Value of defendant’s gas-works January 1st, 1870, $1,643,742.16.
2. Expenditures from January 1st, 1870, to June 5th? 1876, $3,506,403.35.
■ 3. Value of coal and gas on hand January 1st, 1870, $115,533.95.
4. Amount due to defendant from plaintiff March 1st, 1873, for gas furnished under said contract of January 9th, 1846, being $674,908.80.
5. • Amount due from defendant to plaintiff for gas furnished from December 6th, 1875, to June 5th 1876, $62,9.22.34.
6. Dividends paid to plaintiff by defendant from January 1st, 1870, to June 5th, 1876, $23,800.00 — making total of credits, $6,023,310.60.
The -court then decrees that the last named amount should be paid by deducting it from the amount named on the debit side, and then proceeds to render judgment for plaintiff for the sum of $40,049.75, that being the remainder after such deduction; and divests defendant of all right and title to the gas-works property, and vests the same in plaintiff. • This judgment rendered, on appeal to the St. Louis court of appeals, was affirmed, and is before us on appeal from the judgment of affirmance.
"We do not deem it necessary to state or notice all the numerous grounds of error assigned ny the defendant’s counsel, and shall, therefore, confine ourselves to aconsid-eration of those only which we think have a material bearing on the rights of the parties. The most important of
The contract in question is between a private corporation, on the one side, and a municipal orpublic corporation on the other, and unless the authority of each to make it has been conferred by some law either in express terms or by necessary implication, it cannot stand. It being a well-settled principle that such corporations can only contract as they may be authorized by some statute, this necessarily leads us to an examination of said contract, an ascertainment of its scope and legal effect, as well as to a construction of the acts of incorporation which - are supposed to confer the power to make it, before its validity can be tested by the principle above announced:. For the purpose of construing it and ascertaining its legal-effect, we quote sections 5 and 6 of said contract, which have given rise to the present proceeding. They are as follows:
5. The party of the first part (the city) agrees and does hereby relinquish the right to purchase the gas-works property, &c.,’of the gaslight company at the expiration of*94 twenty years from and. after tbe 1st day of January, 1840, as provided for by tbe 27tb section of tbe charter of said company j provided, that in tbe event tbe said party of tbe first part shall decline to purchase tbe gas-works, property, &c., at tbe end of twenty-five years from and after tbe 1st day of January, 1840, as is provided in tbe 28th section, it shall have the privilege of purchasing as aforesaid at the end of thirty years from and after tbe 1st day of January, 1840, and at the period of every five years thereafter, in the manner as is provided in the 27th and 28th sections, and upon giving notice of intention so to purchase, as is provided in section 28 of said charter.
6. That whenever the said party shall have resolved' on a purchase of the gas-works, property, &c., of the gaslight company, as provided for by the 28th section of the charter of said company, or as provided for by the preceding 5th section of this contract, the abitrators chosen in accordance with the provisions of the 27th section of said charter shall take into consideration only the value of the gas-works and the lands, grounds, buildings, utensils and appurtenances belonging exclusively to said works; all privileges, rights and interests conferred by said charter, except the privilege of lighting the city with gas, as also all property and effects not necessarily connected or appertaining to the gas-works, being reserved to the said gaslight company.
It is a familiar principle that when a contract in writing refers to another instrument of writing as part of it, the contract should be read as if the writing referred to had been literally copied in it, as a part thereof, the reference being used simply to guide the mind to the writing referred to, and authorizing its interpolation in the contract, and in order that it may be so read, we quote sections 27 and 28 of the charter of he St. Louis Gaslight Company, which, as amended by section 10 of the act of February 11th, 1889, are as follows:
Section 27. That if, after the expiration of twenty*95 years from and after the 1st day of January, 1840, the corporation of the city of St. Louis shall resolve to purchase the said gas-works from the St. Louis Gaslight Company, which they hereby shall have a right to do, the price shall be fixed by arbitrators, one or more to be chosen by the president and directors of the company, and an equal number by the board of aldermen of said city. Said arbitrators shall not be stockholders in said company nor members of said board of aldermen. They shall take into consideration the value of the gas-works and the lands, grounds, buildings, utensils, rights and interests and everything therounto appertaining, and if they agree and so report in writing, their award shall be binding on the parties; but if they should not agree, then the said arbitrators shall elect some credable and disinterested person as umpire between them, whose decision and award in writing reported to the parties above shall be binding and conclusive, any law to the contrary notwithstanding. To the amount so agreed upon shall be added seven per centum advance on said valuation, which amount, with the seven per centum on the same, shall be paid by the corporation of the said city to the said company, in full consideration of their works, lands, grounds, buildings, interests, rights, utensils, &c., belonging to the said gas-works.
Section 28. That in the event the said city shall decline to purchase at the end of twenty years, as provided in the preceding section, then the company shall, in like manner, at the end of twenty-five years from and after the 1st day of J anuary, 1840, and provided the board of aldermen then resolve to purchase the same, sell and convey to the city all their estate, interests and titles to the said gas-works in manner as is before provided in section 27; except that to the amount of valuation then so to be agreed upon, shall be added only five per centum advance, which amount, with the said five per cent, on the same, shall be paid by the city to the company in full of all consideration for the said gas-works and their appurtenances ; provided,*96 however, that the corporation of the city of St. Eouis shall notify the president and directors of the company of their intention to purchase at either of the times prescribed, at least six months, previous to the .expiration of the said terms of twenty years and twenty-five years respectively, and a failure to notify, as herein provided, shall be deemed a refusal on the part of the city to purchase the interest of the said company.
The right with which plaintiff and defendant were dealing in the 5th and 6th sections of the contract of 1846, was simply a privilege conferred upon the city by defendant’s charter, of becoming the purchaser of the gas-works either on the 1st day of January, 1860, or the 1st day of January, 1865. The charter imposed no obligation on the city to purchase said works at either of those times, but the right conferred was to be exercised or not, entirely at the option of the city. This is clearly shown by the 81st section of the said charter, which provides that “should the said, city not resolve to purchase at either of the times as provided herein, then this act shall be in full force for an additional term of twenty-five years from and after this last date mentioned.” Now, according to the disposition made of this right by the contract of 1846, it is clear that the city could not exercise the charter privilege of becoming the purchaser of said gas-works on the 1st day of January, 1860, for the obvious reason that it explicitly and in terms relinquished the right to do so. It is also equally clear that the city, without any violation either of the letter or spirit of said contract, could have exercised the right of purchasing said works at the other time provided in the charter, viz: The 1st day of January, 1865. The said contract neither prohibited the city from purchasing on the 1st day of January, 1865, nor did it impose any obligation on the city not to purchase at that time. On the contrary, the contract expressly recognizes its right to purchase, the language of it being: “ That in the event the party of the first part (the city) shall decline to purchase the gas
Having considered the nature of the right with which the parties were dealing in the contract of 1846, and the disposition made of-it thereunder, it remains to apply as a test of its validity the principle heretofore announced, that corporations, whether public or private, must derive their right to contract from some power conferred by statute either in express terms or by necessary implication. We have been cited by plaintiff’s counsel to section 18 of the act of February 11th, 1839, which, it is claimed, confers such power as was exercised by plaintiff and defendant in the contract of 1846. That portion of the section bearing on the question is as follows: “The corporation of the city of St. Louis and the board of directors of the St. Louis Gaslight Company may contract for and make regulations relating to the lighting of said city with gas, in such manner as may be agreed upon; and they may make generally such contracts in relation to the business
This section is broad and comprehensive in its terms, and authorizes both plaintiff and defendant’s board of directors to contract relative to the business-of the company without limitation, they being left to determine the question as to whether any such contract would be beneficial to themselves and the public. But it is said that the contract of 1846-provides for the destruction of the business and selling out the entire property of the company and winding up its affairs, which, it is claimed, cannot be done without the assent of the stockholders. -
The general doctrine that a board of directors of a corporation cannot sell out its business and property and defeat the-object of its organization without the consent of the stockholders, may be conceded, but it has no application in a case where in the charter creating it, such power has been conferred on the directors. "We think it clear that the General Assembly, regarding the erection of gas-works and supplying the city of St. Louis with gas as matters of public concern, did expressly provide that the board of directors not only could, but should sell out the business and property of the corporation either -in 1860 or 1865 to the city of St. Louis, provided the requisite steps were taken by the -city at either of the times to buy. This is provided for in the original charter of 1837; and in the amendment made to it by the act of 1839, the times at which said purchase might have been made under the act of’1839 -were extended, and the power given to the city and the board of directors to make any contract relating to the business of the company which they might deem proper. The city by its relinquishment of its right to purchase in 1860, absolutely continued the business of defendant, at the least till 1865, when, but for such relinquishment, it might have terminated its existence at that time. We think the language of section 13. of the amendment to the charter in the act of 1839 is broad
It is further objected that, as the circumstances and conditions of both corporations, which would exercise an influence and control the action of the board of aldermen in determining the question whether or not the city should purchase in 1860, did not exist in 1846, therefore, the board, in 1846, could make no contract surrendering such right of purchase which would be binding on the board that might be in existence in 1860. This argument addresses itself to the expediency or propriety of making such relinquishment, and not to the want of power to make it. We can perceive no reason why the city could not relinquish in 1846 the right to purchase in 1860, which it might or might not exercise at that time; and on this point we think the case of Indianapolis v. Gaslight Co., decided at the June term, 1879, of the Supreme Court of Indiana, (Law Rep. 800,) is conclusive. The evidence shows that in 1846 the St. Louis Gaslight Company was in embarrassed circumstances, and it may have been manifest to the board of aldermen that the gas company would not prosecute any further the work of furnishing gas to the city, so long as it retained the right to terminate its existence in 1860; and that, without the relinquishment of such right the company would abandon its work, give up its franchise, and thus not only deprive the city of any option to purchase either in 1860 or 1863, but leave it to supply its streets with light by means of its own appliances.
.Applying this principle to the facts in evidence, and a clear case pf estoppel arises. It appears from the evidence that in 1859 the plaintiff concluded to become the purchaser of the gas-works on the 1st day of January, 1860, and. took the first preliminary step to accomplish that end by resolving that it would purchase the gas-works; that defendant, on being notified of this action, refused to appoint arbitrators, orto sell, on the ground that under the contract of 1846 the city had no right to buy. This amounted, on the part of defendant, to an assertion of the validity of the contract of 1846, relying upon which the city took no further steps either in 1860 or 1865, but lost its right to purchase at both of said times, on the belief that under the contract, the validity of which defendant had thus asserted, it would have the privilege of purchasing according to its terms, on the 1st day of January, 1870, or at any period of five years thereafter. These facts bring the case clearly within the operation of the rule above laid down, and it would be against every principle of justice and right to allow defendant, when it is sued in 1870 on said contract, to assert its invalidity, when by reason of the assertion or its validity in 1860 it caused plaintiff to forego the privilege of purchasing at that time, and secured to defendant the enjoyment of the profits of the gas-works, and the extension of its privileges at the least from 1860 to 1865.
If the petition, in addition to the allegations it contains, had further alleged that the city resolved in 1859 to purchase on the 1st day of January, 1860, under the charter, giving timely notice thereof to defendant, and that defendant refused to appoint arbitrators or to sell, and asked relief on that ground, it would have been inconsistent with itself, and put the city before the court in the unenviable position of asking a recovery on its own breach of the very contract which in the same bill it was asking to have enforced. We may observe, in this connection,
Holding then, as we do, that plaintiff’s cause of action, as alleged in the bill, springs out.of the contract of 1846, and reading it as if sections 27 and 28 of defendant’s charter had been incorporated therein the question arises; can such a contract be specifically enforced in a court of
"We are of the opinion that the contract in question, referring, as it does, the matter of price to be paid -to arbitrators, which by them is to be fixed, lacks an essential ingredient in a contract of sale, and until such price is fixed in the mode prescribed in the contract, it cannot be specifically enforced, and in this opinion we think we are sustained by an unbroken line of authorities, from some of which we cite. Mr. Ery, in his work on specific performance of contracts, lays down the following: Section 214. “ In all cases of sale it is evident that price is an essential element of the contract, and that when this is neither ascertained nor ascertainable, the contract is void for incompleteness and incapable of enforcement.” Section 216. “ It is not, however, necessary that the contract should determine the price. In the first place it may appoint a way in which it may be determined, in which case the contract is perfected only when the price has been so determined. In case of default in this respect the contract remains imperfect and incapable of being enforced.” Section 217. “ The eases in which a mode is provided by the contract itself for the subsequent ascertainment of the price, fall under two classes. The first comprises those where the contract is to sell at a price to be fixed by arbitrators, this mode of ascertainment being an essen tial ingredient of the contract. The other embraces those cases where the contract is substantially for a sale at a fair price, the mode of ascertainment, though it may be indicated by the contract, fyeing subsidiary and non-essential. In the former class' of eases,'if the mode of ascertainment fail, the contract remains incomplete, and consequently incapable of being enforced; in the latter when the mode' of as
In the case of King v. Howard, 27 Mo. 25, where the agreement of the parties was that the plaintiff’s interest in certain-real estate should be valued by appraisers, one to be selected by the plaintiff and one by defendant, who, in the event of disagreement, were to choose an umpire; the court held “ that the agreement that each of the pai’fies should select an appraiser to value the portiou to be set off to plaintiff cannot be specifically enforced,” and quotes approvingly from Street v. Rigby, 6 Ves. 815 : “ that no instance is to be found of a decree for specific performance to name arbitrators,” and also from 8 Story 800, where it was held that an “ agreement to refer to arbitrators can neither bo set up as a bar to a suit at law or in equity; nor can it be enforced in a court of equity, when either party as plaintiff seeks it.” “How could the court compel the parties to select appraisers ? And if even the parties selected them the court could not require the parties to choose a third person to act as umpire in the event of their disagreement; and if either party should refuse to name an arbitrator, the court has no authority to name or substitute any other person.” So in the case of Biddle v. Ramsey, 52 Mo. 158, the doctrine of the above case was recognized to the fullest extent — Judge Sherwood, who delivered the opinion, observing : “The only question in this ease necessary for solutionis not, ashas been with so much adroitness urged by respondent’s counsel, whether, an agreement to arbitrate can be the subject of a decree for specific performance, nor whether, as has been further, and with equal ingenuity urged; the court can substitute itself in place of the arbitrators, because the authorities, to the contrary, are unbroken in their uniformity on both these points.”
The same principle is clearly stated in the case of Hug v. Van Burkleo, 58 Mo. 202, where it was held that “ when parties to a lease by the terms of the contract agree that upon
It is claimed by plaintiff’s counsel that in the above case, as well as the case of Biddle v. Ramsey, the court, while denying specific performance of the contract, afforded relief, and they have cited it as authority to sustain the decree rendered in this case. There is no analogy between the grounds upon which the court proceeded in those cases and the one in hand. In the case last quoted from, it appears that the contract was fully executed so far as the lessee was concerned. He had gone into possession of the demised premises under the contract, and on the faith of a stipulation contained therein, that at the end of his term, upon surrender of the premises, the lessor would pay the value of the improvements, he had gone on and made improvements which attached to the freehold, and thereby became the property of the lessor. To have allowed the lessor thus to become the owner of the improvements, and to take advantage of his own wrong in refusing to name an appraiser and escape paying for them, would have been allowing him to practico a fraud on the lessee, and hence the court, on the ground of fraud, could have entertained jurisdiction, and given relief on the principle stated in
The doctrine announced by this court in the cases cited is in accord with that of the highest courts both of England and our own country. In the leading case of Milnes v. Gery, 14 Ves. 400, where the agreement. for sale provided that the valuation of the property sold should bo fixed by two persons, one to be chosen by each party, and an umpire to be chosen by those two in .case of disagreement, the bill for specific performance praying that the court appoint a person to make the valuation or otherwise ascertain it, was dismissed, the Master of the Rolls observing, “ the only agreement into which the defendant entered was to purchase at a price to be ascertained in a specific mode. No price having ever been fixed in that mode, the parties have not agreed upon any price, * * the price is of the essence of a contract of sale. In this instance the parties have agreed upon a particular mode of ascertaining .the price. The agreement that the price shall be fixed in one specific manner, does not afford an inference that it is wholly indifferent in what manner the price is to be fixed. The court declaring that one shall take and. the other shall give a price fixed in any other manner, does not execute any agreement of theirs, but makes an agreement for them upon a notion that it may be as advantageous as that which they made for themselves. How can'a man be forced to transfer to a stranger that confidence which, upon a subject materially interesting to him, he has reposed in an individual of his own selection? No substantial difference arises from-the circumstance, that, in this ease, the decision may ultimately fall to an umpire not directly nominated by the parties, as, through the medium of the orig
* Upon the principle that a fixed price was an essential ingredient in a contract of sale, the ancient Roman lawyers doubted whether an agreement that did not settle the price was at all binding. Justinian’s Institutes and the Code state that doubt, and resolve it by declaring that such an agreement should be valid and complete when and if the party to whom it was referred should fix the price, otherwise it should be totally inoperative quasi nullo pretio statuto, and such is clearly the law of England. In this case the plaintiff seeks-to compel the defendant to take his estate at such price as a master of this court shall find it to be worth. Admitting that defendant never made that agreement, and my opinion is that the agreement he has made is not substantially or in any fair sense the same with that, and it could only be by an arbitrary discretion that the court could substitute the one in the place of the other.” "We have quoted extensively from this opinion, because what is there said applies to the facts of the case before us.
So in the case of Blundell v. Brettargh, 17 Ves. 241, the Lord Chancellor observed that “ there is no instance where the medium of arbitration or umpirage resorted to for settling the terms of a contract having failed, this court has assumed jurisdiction to determine that though there is no contract at law there is a contract in equity, and this court will specifically execute that contract to which the parties never assented.” So in Street v. Rigby, 6 Ves. 817, the court held that “no instance is to be found of a decree for specific performance of an agreement to name arbitrators, or that any discussion has -taken place in our experience for the last twenty-five years.” In the case of Agar v. Macklew, 2 Sim. & Stu. 418, the Chancellor observed : “I consider it to be quite settled that this court will not entertain a bill for the specific performance of an agreement
The principle thus firmly settled by these cases in England has been recognized by courts of the highest authority in the United States.. In the case of Toby v. County of Bristol, 3 Story 800, the legislature of Massachusetts had passed an act authorizing the county commissioners to examine the claims of Toby against the county, and for which he had no legal or equitable remedy, and refer the same -to the determination of arbitrators to be mutually selected-by Toby and said commissioners, whose decision was to be final. Toby filed his bill setting up these facts, and the additional fact that the county commissioners would not appoint arbitrators, and praying for their appointment by the court. The relief was denied, Justice Story, who delivered - the opinion, saying “ that, supposing there was a real agreement, not conditional, but absolute, on the part of the commissioners, to refer the claims to arbitration. Can such an agreement be enforced specifically ? No one can be bound, as I believe, and at all events no case has been cited by counsel or has fallen within the scope of my researches in which an agreement to refer to arbitration has ever been specifically enforced in equity.” It may be observed that in the above case the authority of the county commissioners to refer to arbitration, and appoint arbitrators, was expressly conferred by statute, which makes it peculiarly applicable to the case before us, inasmuch as plaintiff's counsel insist that the duty of the gaslight company to appoint- arbitrators to ascertain the value of its
So in North Carolina in the case of Norfleet v. Southall, 3 Mur. 190, where the agreement was'that Norfleet was to pay Southall for a certain interest in a mill, the amount such interest cost Southall, which sum was to be ascertained by four persons by them named, the arbitrators met and were unable to agree on the sum so expended, and South-all rejected every proposition to refer the matter to an umpire or select any other set of arbitrators. Norfleet thereupon brought his bill for specific performance, which was denied, the court holding “ that the parties have made an effort towards contracting, which has terminated in- an inchoate right, and if this court were to direct a reference to the master, or any other person, to ascertain the price and decree upon such a report, it would be making a contract for the parties and then enforcing it.” So in Rhode Island in the ease of the City of Providence v. St. John’s Lodge, 2 R. I. 46, it is said : “ It is undoubtedly true that a court of equity will not enforce a contract of sale when the juice is to be fixed by arbitrators to be chosen by the parties, and for the plain reason that the contract sought to be enforced is incomplete in an essential particular, and the court have no power to substitute themselves or a master to fix the price in the place of the parties or the arbitrators to be chosen by the parties. This would not be to enforce an existing contract of the parties, but to make one for them.” The same has been held in Wisconsin in the case of Hopkins v. Gilman, 22 Wis. 476, and in New York in case of Greason v. Keteltas, 17 N. Y. 491. No ease has been „cited by 'counsel where a contract for sale of property, in which it was agreed that the price to be paid should be fixed by arbitrators to be chosen by the contracting parties, has been specifically enforced.
We have been cited by plaintiff’s counsel to a number of authorities where relief has been afforded in cases between lessor and lessee growing out of covenants for the
All the cases to which we have been cited by plaintiff’s counsel either fall, first, into a class of cases like the above,
It is, however, earnestly argued that plaintiff’s right of action does not rest on contract, but upon defendant’s charter, and that it is by virtue of a legislative enactment that it has the right to take the works and property of defendant, and that, therefore, the rule does not apply. Conceding, for the argument, that plaintiff’s right of action rests on defendant’s charter, and not on the contract of 1846, it does not follow that, the rule has no application. On the contrary, the reason upon which the rule is bottomed applies with much more force to such a case. The reason of the rule is that the chancellor, by substituting a master in chancery, or by appointing commissioners to fix the price of a thing sold, where the parties to the contract had agreed that it should be fixed by arbitrators chosen by themselves, would not be executing the contract of the parties, but would be making a contract for them, and then executing it% If, therefore, the chancellor . cannot substitute his own will, and make a contract for"'the parties to which they never assented, neither can he substitute his own will for that of the Legislature, and execute that to which the Legislature never assented. In the charter of defendant the Legislature has undertaken to declare its
Under the above expression of legislative will all that the city of St. Louis could be required to pay for the gasworks, in the event of a purchase, and all that the St. Louis Gaslight Company could demand would be the price fixed by arbitrators appointed by the city and defendant, and not the price fixed either by a master in chancery or commissioners appointed by the chancellor. The legislative will, that the price shall be fixed by arbitrators, to be chosen by plaintiff and defendant, would be as much de-feated by the appointment Of commissioners to fix the price of the gas-works, and compelling the city to pay and defendant to receive the price thus fixed, as would the contract of A and B, where A had agreed to purchase property of B at a price to be fixed by arbitrators, to be chosen by themselves, would be defeated by the appointment of com
But we are met with the argument that, under this view, the gaslight company could defeat the will of the Legislature by refusing to appoint arbitrators to meet with arbitrators appointed by plaintiff to fix the price. This bv no moans follows; on the contrary, in a proper case made in an appropriate proceeding, the defendant might have been compelled to appoint arbitrators. Had the city resolved to purchase at either of the times mentioned in
It is argued by counsel for plaintiff that the city, when it resolved to purchase the gas-works, gave notice of its intention to purchase and appointed arbitrators, became the owner thereof, and that the property thus acquired being for a public or governmental purpose, it was beyond the power of the city to agree to dismiss this suit in which such right was asserted, and cancel the contract of 1846, under which it claimed the right to purchase. "We think the argument unsound. ¥e recognize the principle, for the establishment of which counsel have cited numerous authorities, that in a completed contract of sale the vendee is treated in equity as the owner of the property sold,
Besides this, the following clause from defendant’s charter “that the corporation of the city of St. Louis and the board of directors of the St. Louis Gaslight Company * * may make generally such contracts in relation to the business of the company as may be beneficial to them and the public,” which has been cited by plaintiff’s counsel in support of the power of the city to make the contract of 1846, in like manner supports the power of the city to cancel it.
It is also insisted by plaintiff’s counsel that the St. Louis Gaslight Company, in the contract of 1873, transferred chartered rights, surrendered and abandoned a duty it owed to the public to furnish gas in that portion of the city north of Washington avenue, and that, therefore, the contract is void. We agree to the correctness of the principle contended for, that one corporation by transfer or sale to another cannot absolve itself from the performance of' a duty it owes to the public. It is claimed that this surrender and abandonment of a public duty and transfer of rights appear in the following provision of the contract: “ That the St. Louis Gaslight Company waives, abandons and surrenders, forever, to the city of St. Louis, irrevocably, any and all claims and pretense of claim of exclusive right to have gas-works, lay or have pipes or other appli-
By defendant’s charter it had “ the exclusive right ” to manufacture and sell gas in the city of St. Louis. What do the terms “exclusive right” import? They simply mean that the defendant had the right to exclude any
Nor does the contract transfer to the Laclede Gaslight Company the right to make and vend gas in that district. The Laclede Gaslight Company obtained its right to make and vend gas, not from the St. Louis Gaslight Company, but from the act of the General Assembly incorporating it, subject, of course, to the vested rights of .the St.-Louis
Besides this, it has been insisted by counsel, and we have so held, that the power conferred in section 13 of the act of February 11th, 1839, was comprehensive enough to uphold the directors of the St. Louis Gaslight Company in making the contract of 1846, whereby if a purchase had been perfected under it all the rights and property of defendant. would have been transferred to plaintiff, and the St. Louis Gaslight Company obliterated; and, if comprehensive enough to authorize the directors to make a contract of that kind, it logically follows that said section is comprehensive enough to authorize the directors in the contract of 1873 to stipulate for the surrendering, not of its right to make and vend gas in any part of the city, but
These conclusions necessarily lead to a reversal of the judgment. We, therefore, reverse the judgment and remand the cause, with directions to the circuit court to make a rule or order directing and requiring the receiver; appointed by the decree, to restore to the possession of defendant the gas-works and all property, real and personal by him received in virtue of said decree, together with the profits derived therefrom; that he report his action to said court, upon approval of which the bill shall be dismissed.
Concurrence Opinion
I fully concur in all the views expressed in the foregoing opinion.
As all the judges are agreed that the tripartite contract of 1873 is valid, and this conclusion virtually settles the case, I will only venture to add a few words explanatory of my individual views in regard to some of the subordinate points discussed.
It is of no importance, in my opinion, so far as results are concerned, whether the contract of 1846 be held valid or otherwise; if invalid, this suit, which is to enforce an obligation created by it, must of course, fail, and if valid, the discharge of that obligation, assumed in .1846, by the contract of 1873, is equally fatal to the maintenance of the action. Assuming the contract of 1846 to have been invalid, which I think it was, so far as it attempted to bar the city from purchasing under the provision of the charter in 1860, the resolution of the city in 1860, preceded by the notice .in 1859, undoubtedly imposed a duty, on t,he gas company which could not be evaded or annulled by any obstinacy on the part of the company. The plain intent of the charter was to effect a transfer of the property, and not a compensation in damages for a failure to
The Legislature had it in their power to dispense with any equity rules in regard to the specific performance of contracts, and would be so undersood to have done, unless an'equally efficient mode of producing the result rendered such dispensation unnecessary. But the latter question is, in my opinion, unimportant, since the proceeding begun in 1859 was abandoned by the city, as it had the right and power to do — for there was no obligation ever imposed on the city to buy the works at any time. Nothing was done by the city for ten years, until in 1870 this suit was instituted under the contract of 1846.
Admitting that this contract of 5§46 was valid, so far as to allow the city to purchase in 1870, it would seem that the parties to it would have equal power to abandon it. A transfer of the property of the gas company to the city could not be etlected by a mere resolution to buy and, therefore, the contract of 1873 was no sale of property already belonging to the city. ”W hether such property, after being conveyed to the city, would be any longer within the power of the city to sell, is outside of the present case. Aside from all questions as to specific execution of contracts, or as to the condition of the property, had the agreement been specifically executed, the tripartite contract 1873 was a settlement, upon adequate consideration, of all antecedent disputes, and put an end to all claims arising under the contract 1846. As to the relation of the two companies, the Laclede and the St. Louis, towards each other, and towards the city, the subject is fully considered in the opinion of the court, in which 1 concur.
The interest which this ease has excited, the zeal and ability which counsel for the respective parties have exhibited mine argument, together with the fact
I hold that the contract of 1846 was invalid, whether the charter, of the city or that of the gas company gave the city a general power to purchase or not. The charter of the gas company, by express provision, gave the city the right to purchase in 1860 or 1865, whether the gas company should desire to sell or not. The city had the option to purchase at either of those periods, while the company had no option in the matter, but by the terms of its charter was compelled to sell if the city, in the manner indicated by the charter, expressed a desire to purchase; and, conceding that the city, under some general power in its charter or the charter of the company, might either before or after those periods have purchased its gas-works and property of the company, the latter agreeing to sell, yet no board of aldermen, prior to the time at which initial steps toward the purchase could have been taken under the charter, could nullify the provisions of the charter authorizing a purchase by the city in 1860 or 1865. This view the city held and acted upon in 1859, when it duly notified the company of its purpose to buy. The Legislature declared that in 1860 or 1865, the city should have the right to buy, and that at either of those periods if the city properly declared its purpose to purchase, the gas company should sell. Admitting that at any time, with the consent of the company, the city had the right to purchase, yet by no contract, except one of purchase of the company’s property prior to 1860, could a board of aldermen waive the right and prevent its exercise by the city at the designated period. The aldermen in 1860 might have declined to make the purchase, but could not bind the aldermen of 1865 not to Durchase at that period.
But, conceding the validity of the contract of 1846, there can be no specific performance of the contract enforced, as I think is conclusively shown in the opinion of
The resolution of the board of aldermen in 1859 declaring, in conformity with the charter, the purpose of the city to buy the gas-works, was a nullity, if the contract of 1846 was valid and binding on the city, and on the proposition that it was valid the plaintiff must, in this case, stand or fall. That resolution was in direct violation of the contract of 1846, by which the city relinquished the right to purchase in 1860. And how the city, suing upon that contract, can derive any benefit from an act in flagrant violation of that contract, I cannot conceive. But the purpose expressed in that resolution was abandoned'by the city. The company refused to sell, whether rightfully or wrongfully we need not stop to inquire, and the city ever since has acquiesced; for this suit is not to enforce the charter right of the city to purchase, but the right acquired 'by the contract of 1846. There is nothing in the provision of the charter to countenance the idea that the board of aldermen which passed the resolution to purchase, could
Rehearing
On Motion for Rehearing.
At the argument of this cause three leading propositions were affirmed on behalf of the city : first, the validity of the contract of 1846; second, the power of a court of equity to specifically enforce that contract; third, the invalidity of the tripartite agreement of 1873.
Two of the members of this court present at the hearing inclined to the opinion that the contract of 1846 was-originally invalid; two were of opinion that it was originally valid; all were of opinion that if valid, it was not susceptible of specific enforcement; and all were of opinion that the tripartite agreement of 1873 was a valid and binding agreement. A motion for rehearing has” been filed, in which we are asked to review our judgment upon the last two points.
The rule of this court in relation to motions for rehearing requires that such motion shall “be founded on papers showing clearly that some question decisive of the case, and duly submitted by counsel, has been overlooked by the court, or that the decision-is in conflict with an express statute, or 'with a controlling decision to which the
The first case to be noticed is that of Wilks v. Davis, 3 Mer. 509, decided in 1817. It is unneccessary to state the facts. Cooth v. Jackson, 6 Ves. 34 ; Milnes v. Gery, 14 Ves. 400, and Blundell v. Brettargh, 17 Ves. 232 were- cited in'argument. The Lord Chancellor said: “It has been determined in the cases referred to, that if one party agrees to sell and another to purchase at a price to be ascertained by arbitrators named by the parties, if no award has been made, the court cannot decree respecting it; on the other hand, there are cases which determine that if the parties are agreed as to the valuation, but have not appointed any person to make the valuation, the court will itself interfere so as to ascertain the value in order to direct the specific performance; but the case now before the court is different from either, the court being here called upon, not to ascertain the value but decree specific performance by the defendant conveying at such price as certain arbitrators named shall hereafter fix. No arbitration bond having
“ In the’ case at bar on the theory that the 27th and 28th sections of the charter of the gas company are part of the contract of 1846, and that they have no other force than that which was derived from being in that contract, it will be seen that the parties agree to the valuation of certain specifically named property, but do not appoint the persons to make the valuation. Lord Chancellor Eldon says, in this case of Wilks v. Davis, that under such circuim stances the court will itself ascertain the value and decree specific performance. No better authority is needed to sustain our hill than this case of Wilks v. Davis.” Counsel manifestly misconceive the meaning of the chancellor. The chancellor did not mean that when the parties had agreed upon a valuation, and had stipulated in their contract that arbitrators should be chosen by them respectively to make such valuation, and the parties failed to select arbitrators according to their agreement,- the court would itself interfere in order to ascertain the value. No such case is to be found 'in the books. Besides, such a construction would be- in direct conflict with the principle announced in Milnes v. Gery, approvingly referred to by the chancellor in the first paragraph of his opinion, wherein it was expressly decided that when in the sale of property, a valuation is agreed upon and a specified mode of making such valuation is likewise agreed upon, and that mode fails, there is no agreement between the parties which can be carried into execution. What the chancellor evidently meant was, that where it was agreed that property should-be taken at a valuation, and no appraisers were named in the contract, and none were directed by the contract to be named by the parties or to be otherwise appointed to fix*128 such valuation, the court could fix it.. In such case as the parties have agreed that'the- property is to be taken at a valuation, and as they have-not-designated any persons to fix the-value,-the agreement is nothing more than an agreement to sell at a- fair valuation-. Sir William Grant in Milnes v. Gery, after speaking of agreements to sell at a price to be fixed by arbitrators, said: “ The case of an agreement to sell at a fair valuation is essentially different. In-that case no particular means of ascertaining the value are pointed out; there is nothing, therefore, precluding the court from adopting any means adapted to that purpose.”
, .- In-the case of Agar v. Macklew, 2 Sim. & Stu. 418, decided eight years after Wilks v. Davis, the contract provided that the plaintiff’ should, within a time named, be at liberty to purchase certain property-aí a price to be fixed by two persons, indifferently to be chosen as appraisers, one by each party, and in the event of their disagreement, they were to select an umpire. The .plaintiff, as in the case at bar, selected an appraiser and requested the defendant to select one, .which he refused to do. The plaintiff filed a bill for specific performance, and the defendant put in a general demurrer for want of equity. The case of Wilks v. Davis was cited .in argument,, and the paragraph of that opinion now relied upon by counsel, was brought to the attention of.the court; but the court held-that it was powerless to grant, the. plaintiff’ any relief, sa-ying: “I consider it to be quite settled that this court will not entertain a bill for the specific performance of an agreement to refer to arbitration, nor. will, in such case, substitute the master for the arbitrators, which would be to bind the parties contrary to their, agreement. ' The demurrer must be allowed.” In further confirmation of the correctness of this view, it will .not be inapt to quote the language of Lord Chancellor Oran worth, in the ease of Morgan v. Millman, 13 Eng. L. &. Eq. 34, and 3 DeG., M. & G. 24, decided by the lords justices of appeal-in 1853. He said: “All the authorities .(the case of Milnes v. Gery, 14 Ves. 400; Blundell v. Bret
The next case cited, the opinion in which seem to be both misunderstood and misapplied, is that of Morse v. Merest, 6 Maddock’s Rep. 25. In that case three referees were named in the agreement of sale, who were to make a valuation on or before a certain day. The defendant prevented the valuation by the day named, by refusing to permit the referees to go upon the land. The court held that he could not take advantage of a delay which he had himself improperly occasioned, and then said, “that a man who agreed to sell at a price to be named by A, B and C could not be compelled by a court of equity to sell at any other price; but it appearing that the defendant refused to permit the referees to come upon the land, the court had jurisdiction to remove that impediment, and would decree that the defendant should permit the valuation to be made according to the contract, and if it were so made then a supplemental bill must be filed for a specific performance upon the terms of their valuation.” This case, .it will be seen, is in perfect harmony with the opinion of this court.
The last case we will notice is Dinham v. Bradford, 5 Chancery Appeal Cases 519, on the reasoning of which counsel for the city declare themselves perfectly willing to rest their ease. In that ease Bradford, who was a manufacturer of washing-machines and the owner of several patents relating to such machines, admitted Dinham into partnership with him for three years. The whole ulant
In this case it will be perceived the partnership was at an end, the accounts were to be settled, the joint property was on hand and had to -be disposed of in- some way, either by a sale thereof','which,-as the Lord Chancellor said would have been contrary to the whole spirit and object of the agreement, and might have deprived Bradford of his patents and the power to continue his business; or by-ascertaining the value of Dinham’s share therein and charging the amount thereof against Bradford. In such case's it is plain the valuation provided for is not the very essence and substance of the contract, so that no contract can be made -out except through the medium of the arbitrators. The-essence and substance of the contract between the parties ivas not the acquisition by Bradford of Dinham’s interest in the property of the partnership, for at the time the contract was entered into Bra ford already owned the. property, and Dinham had no interest in it. The essence of the contract was that these parties should do a manufacturing business, as co-partners, for the period of three years, and share the profits in certain proportions; and this part of the contract was fully performed. In .order to prevent-the sale of the plant and patents and other property of theffirm for the purpose of settling the affairs of the partnership at its termination, it was provided that Bradford should take Dinham’s -interest at a valuation; and this being a mere incident to the main contract, which had been fully performed, the chancellor held'it must be carried into effect, and if the valuation'could not be made modo et forme,
The glaring dissimilarity between that case and the case at bar would seem to render all comment unnecessary. The city never transferred the gas-works to the defendant and permitted it to enjoy the profits thereof on condition that it was after a time to have them back again at a valuation. The city never owned the gas-works. It was not even required to purchase them. It had no right to them in 1860, as is assumed by counsel. The city had the mere privilege of acquiring a right in a certain specific mode— nothing more — and this privilege it voluntarily surrendered for the privilege contained in the contract of 1846.
It is not every contract for the sale of property which can be specifically enforced. Suppose two citizens of St. Louis should, by written contract, agree that within a given time, or on a day named, one should have the right to purchase from the other a valuable estate at such price as they should on said day mutually agree the same was worth. Such an agreement would manifestly seem to contemplate that the property should be fairly valued. But suppose that on the day named, the parties should meet together, and could not or'would not agree, would any one pretend that in such a case the owner could be compelled to sell his estate for such an amount as some other person should determine was a fair price? Would not a decree of court which should, under such circumstances, compel the owner to sell against his will and against his agreement, for a price to be fixed by a master in chancery, deserve to be characterized as an arbitrary and illegal interference with the rights of private property ? Now there is in reality no difference between the case put and one in which the parties stipulate that they will not personally meet to negotiate about the price, but that" each will send au agent or representative or arbitrator to act for him. Unless these arbi
As to the second point. It is now contended that the contract of 1873 is invalid, because the city had no power to surrender the right to purchase conferred by the contract of 1846. The suit of the city is founded upon that contract of 1846. The city asserts the validity of that contract. It asserts, therefore, that it had the power to surrender the privilege conferred upon it by law, of becoming the purchaser in a specified mode, of the property of the defendant in 1860, for this was yielded by the contract of 1846. Of course it had equal power to relinquish the privilege of purchasing in 1865. Now it seems to us too plain for argument that if the city could relinquish a privilege conferred upon it by law, it could relinquish a similar privilege conferred upon it by-its own contract; that it relinquished the privilege of purchasing under the contract of 1846 is, therefore, no objection to the validity of the contract of 1873.
As to the agreement between the St. Louis company and the Laclede gas company of Eehruary 14th, 1873, forbidding mutual encroachments upon designated territory therein allotted to each, and now urged upon our attention,
My views on-his case have already been stated. The case was fully argued at the bar orally and in thirteen printed briefs, and was held under advisement by the court for a month. The motion for a rehearing pointed out no omission or misunderstanding of facts in the opinion of the court. I, therefore, voted against granting a rehearing or allowing further time for re-argument of the points decided, and take this occasion to enter my protest against rehearing and redeciding cases under such circumstances.