196 Mo. App. 371 | Mo. Ct. App. | 1917
The áppeal herein is from the action of the trial court in sustaining a demurrer to plaintiff’s petition. It was filed February 19, 1916, and alleged that defendant was a public service corporation engaged in supplying gas for domestic consumption in St. Joseph, Mo., by means of pipe-lines in the streets, under a franchise granted to it by said city; that prior to 1907, defendant made extensions of its gas mains at its own expense, it, at that time, supplying artificial
The petition further alleged that on and prior to July 2, 1912, plaintiffs were each engaged in the real estate business in St. Joseph, Missouri, and were the owners of large tracts of land in a certain section of said city, and on account of the growth of the city in that direction the demand for property in said section had become very great, but, although said locality was supplied with water and electric light and had paved streets, it was impossible for plaintiffs to develop their said property without gas for domestic purposes; that thereupon plaintiffs requested defendant to extend its gas mains so as to serve the community in which their property was located and enable them, the plaintiffs, to carry on their said real estate business, but that defendant refused to extend its mains unless plaintiffs would themselves pay for the extension on the terms of a certain agreement set out as Exhibit A; this agreement consisted of an offer made by the defendant and accepted by the plaintiffs, and signed by all parties, and reading as follows:
“The St. Joseph Gas Company hereby agrees to turn tbe gas into a four-inch (4-inch) pipe laid by you in Twenty-second street from Jones street to Lover’s Lane (this pipe to be laid under the rules of the Gas Company governing such work), and to refund to you one-half of the amount paid for gas consumed on the above line of main for a period of three years from the time the gas is turned into the main; provided, however, that the total amount so refunded by the Gas*374 Company shall not exceed the cost of said work. The cost of said work having been estimated at the rate of fifty cents (50c) per foot, that amount is agreed upon as to the maximum to be refunded by the Gas Company in any event. If there is not sufficient gas consumed on said line of main within said three years for one-half of the charge of same to fully pay the agreed amount, namely fifty cents (50c) per foot, the unpaid balance of the cost of said main is to be waived by you, and the main is to become the property of said Gas Company. The computation will be made and paid at the end of the period of three years according to above terms.”
The petition then alleged that although plaintiffs protested against said rule, they were compelled, in order to develop and carry on their said real estate business, to accede to said rule and did accede to it. and constructed a four-inch gas main on Twenty-second street from Jones street to Lover’s Lane at a cost to plaintiffs of $2850, which main then became a part of defendant’s general system of gas mains and which it now claims to own without having paid plaintiffs any consideration therefor whatsoever; that plaintiffs have demanded of defendant payment of said sum of $2850 but have been refused.
The petition further alleged that said rule or regulation of defendant not to extend its mains to those parts of the city where the system had not yet reached, except at the cost of persons residing in such parts, was a violation of law and was made for the purpose of compelling such persons residing or having property in such parts of the city to extend defendant’s system of gas mains at their expense, when, under the law and defendant’s franchise, it was the defendant’s duty to do this at its expense; that said rule or regulation of said defendant and the acceptance thereof by plaintiffs, in this particular case, was never approved' by the Public Utilities Commission of the City of St. Joseph nor by the Public Utilities Commission of the State of Missouri, and plaintiffs’ acceptance of the
The petition further alleged that on or about the 31st day of January, 1916, the Public Service Commission of Missouri, after a full hearing thereon instituted by the city at the request of plaintiffs and others, decided and declared said rule or regulation to be unjust, discriminatory and preferential, and prohibited the further enforcement thereof. Wherefore, plaintiffs prayed judgment for said $2850 with interest at 6% from July 2, 1915.
It will be observed that there is no allegation that the defendant has not carried out its part of the contract, nor that the defendant has sought to evade its terms and has not paid, or is unwilling to pay, whatever is due plaintiffs thereunder. The execution of the contract is admitted but plaintiffs allege that it is illegal and void and they ask a return of the full amount of the money they expended under its terms in constructing said main together with interest thereon, although the petition shows that the contract was made long enough before suit was brought for it to have become fully executed. It is true, the petition says the defendant now claims to own said pipe-line without having paid plaintiffs any consideration therefor, but, so far as appears from the petition, this may be because no money was paid to defendant for gas consumed on said line within the thre.e years specified in the contract. There is no allegation that any gas was ever sold therefrom or that there is, or ever was, a single customer using gas on said line. However, these preliminary observations have no direct bearing upon the real meat or gist of plaintiffs’ complaint, and they are made merely to eliminate the thought that there possibly could be a theory on which plaintiffs might, under the wide and flexible scope of an action for money had and received, be entitled to recover at least a portion of the pipe-line’s cost even if some of plaintiff’s contentions are not entirely tenable.
The rule set forth in Thornton, supra, is announced in Board of Water Comrs. v. Bloomfield, 84 Conn. 522. In Village of Upper Alton v. Alton Gas etc. Co., 165 Ill. App. 333, one of the grounds for sustaining the demurrer to plaintiff’s petition was that it nowhere alleged that a sufficient demand for gas existed, in the extension sought, to insure the company a reasonable return for the necessary outlay. In Public Service Corp. v. American Lighting Co., 67 N. J. Eq. 122, l. c. 131, it is held that the obligation on a gas company to lay down a supply-pipe to furnish gas to a dwelling or tenement is “subject to the limitation that there shall exist a reasonable expectation that the consumption of gas shall be sufficient to warrant the necessary preliminary expenditure. ’ ’
It does not follow, from the allegation that the Public Utilities Commission of Missouri has decided that the rule which the company adopted in reference to the extension of its mains was unjust, that there is, therefore, an absolute duty imposed upon the company to make extensions under any and all circumstances. A rule that no extensions would be made at the company’s expense under any circumstances is no doubt unjust, but that is a very different thing from Ihe rule that every extension must he made, when such is requested, no matter what may he the circumstances or conditions.
It cannot he successfully maintained that the necessary inference, flowing from all the facts alleged in the petition, is that there was, at the time the contract was made, a large enough demand for gas in the territory in question to make it defendant’s duty to extend its main. On the contrary, the inference to he gathered from the facts alleged is that there were no customers there then, hut that plaintiffs, in order “to develop their said property” and to “meet the growing demands of the city,” wanted the main extended. In other words, that, according to plaintiffs’ view, judging from the way and direction the city was growing, the plaintiffs could in the future dispose of their prop
We think the petition was demurrable and that the action of the trial court was right. The judgment is, therefore, affirmed.