Daily Democrat and news. [volume] (Davenport, Iowa) 1859-1864, 1863-06-30
The Gas Centsoversy.

A decision Of considerable impsrtanss hes
recently been made BY the Supreme Court. In
the litigation pending between the Davenport
Gas Light and Coke Coopany and the City
Of Davenport. Oos Of the slsims made BY
the gas company against the city. 10 for proflts
to . large amount. which the company would
have made. under the eontrses. upsa the gss
to be supplied to the public lamps during the
psndsscy Of the former sais between the soa-
pssy and The city, bsisg iron Ostobsr, 1858.
70 July. 1869; during which interval the sup
ply Of gas vas discontinued. the city having
refused to receive or pay for it.
II Vas eostsndsd BY the city. that the com.
psny could not recover any profits for this 10.
tsrval Of time. because the sspply Of gss was
discontinued under . written agrssmsst be.
tween the city and the company that It might
be discontinued during The pesdsney Of the
then litigation, without prsjudiee to the "ez.
issing yights" Of either party.
This defence Vas sustained BY The District
Court Of Jshnsoa sounty. (vhsrs the aotisn 10
pending) bat the dscision hss been reversed BY
the SsPrsns Court. in appeal. We give be-
Iov % much of the opinioa Of the court - re-
latss to the above question. Other points Of
lees Importance we're decided. also In favor Of
the gas company:
sUPREhE ooUaT. JUNE TERM, 1868.
Davenport Gas Light 4 Coke Co., appt. J
We,
The City Of Davenport.
appeal frsm johnson District Court.
Plaintiff appeals from 40 srdsr sustaining .
demurrer to the fifth count OF the petition .asd
| ovsrruiing one to the second plea Of defend
ant. For the substance Of the pleading sss the
( opinion.
Putnam 4 Rogers for Appellant; D. L.
Shorsy for Appellee.
Wright -Ihs fret count in the petition
sets forth ia words. the contract between The
| psrtiss. by which plaintiff undertook 10 fur.
oish gas for the city for time therein named.
| for . specified confederation. rhs fifth count
avers that said contract was fully kept and
psrfermed by the parti.s until the Let OF July,
1858. when the city sfu.sd . receive or pay
| tor the gas and notified plaistif Of such re-
fussl; that In Sept. 1885,. plaintiff brough.
suit against the city for gas furnishsd not
| sithstsnding sueh refusal. 10 the months Of
July asd August Of that year that while
| sAid suit Was pending (ihs plaintiff being ready
aud willing to furnish the gas according to
the contract. to wit: On tue Let day OF
October. 1858. an agreement was entered Into.
~ foliows:
| "WHEaxAs. the City Council. sta meeting
seld on the 18th day Of September, 1855,
adopted the following resolution. to.wit:
"Resoived. That the City Attorney is hereby
| suthOrizsd and required. st the reqaest Of the
7 S..hs
| enter: into . stipulation. With said company Or
! their attorney. that the said company shall
have the privilege Of shutting of the gas from
the public lamps until the question Of the va
dity Of the contract shall be decided by the
| courts. and no existing rights Of said company
sr the city shall bs prejudioed or affected. but
the contract, II nov valid, shall bs and remain
20. to the same extent % though the said coz
pany had OF shut of the said gas and
"WBEREAs, The said Davenport Gas Light
| and Coke Company have requested the priv
| ilege In said resolution mentioned, aid desire
| said Contract TO be entered into BY said City
Attorney;
Nov. therefore. this agreement witnssssth
1 that ]. Jsmss 7. Lane. City Attorney OF the
! said city Of Davenport. by virtue Of ,hs prem.
| ,ses heretofore recitsd. hereby agree and ssip-
| ulate TO and with the said Davenport Gas
htSut euu OOeo ~ S10Peuys soss soo seio oVtn
| psOy shall have the privilege Of shuttibg Of
! the gas from the public lamps. until the quss
ion Of the validity Of the contract shall BE- dc.
cidsd BY the courts, and no existing righss Of
said company or the city shall be pref udiesd
or affected. but the contract, II nov valid shall
| bs and rsmais 90 TO the same extsnt 90 though
The said company has not shut of the ssid
gas.
In witness whereof, DO.
1t 10 also alleged that in the suit referred TO
| 10 10 said sgresmsnt, the city answered. deny
| log PLAINTIFF right to recover under said cen
tract, that in Dscsmbsr 1860 . judgment was
recovered in the District Court against the
city, which was affirmed in the Supreme Court
in June 1869 The appellate coart Holding
| that sad contract was valid and binding thst
during the psndssoy Of said suit. to VII, from
The Let OF October, 1858 TO tbs - day Of July,
1892, plaintiff ceased and omitted 70 furnish gas
TO She public ismps: end recovery 10 sthersfors
csoaght IN damagss to ths amount Of the pss6ts
which plaintiff would have made under the
contract. BY furnishing eas duripg esid period,
alleged to Be the sum Of fifteen .hvusaua dol
lars.
The demurrer to this count 10 bscsuss II sp-
psars from the contract. that the sas was turn-
cd of from the public lamps BY the plant r.
and With the consent Of the defendant. At the
PIo'ms.fS re9us" earing the psr'oo 'oe wnieu
the damages are claimed
The legal substance Of this ground II dsmur.
rer 10, that the count states facts which avoid
The ssuse st setion. Asd these facts are claim,
se % bs found 10 the agreement oi OCT. let
1858, the agreement being that the gas VA
shat of 1t the requsst Of the company /; thai
It was net dsfend.nt but plaintiff vho asked e
b relieved from the eontTset or copcedipe
that Il vs. the result Of mutual agreement
then there can be no recovery Of profits.
} Appellee mistakss the purPort Of this agree
msns. We do not under srsisnd that the soWpa-
oy had made ssy request On the ssbjsst priol
70 the astiss Of the city sosnsil. The len.
gage Of the resolution under which the CITY
Attorney scteG, % veil - the agreement /
sslf, clearly indicates that the city would con
, cent TO sEutting of the gas II the conpap,
should request it-pot bssssss Il had. but II
sheasld II 10 doing violence TO language 10 ssJ
that the company had asked to Be rsl-ased o.