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


dssisios Of sonsidsrsbis importance hes
recently been made BY the Supreme Court, In
the litigation pending between The Davenport
Gas Light and Coke Company and the City
of Davenport. One Of the slsims made BY
the gas company against the city. 10 for profits
to large amount. which the company would
have made. undsr The contract. upsa the gas
to b supplied to the public lamps during the
psndssoy Of the former sais bet vssn the soa-
Pssy snd the city, bsisg from October. 1858.
70 Juiy. 1859; during which Interval the sup
ply Of gas was discontinued. the city having
refused TO receive or pay for II.
II vas eostsndsd BY the city. that the com.
pany could not rseovsr any profits for this 10.
tsrval Of time. bsssass the supply Of gas wss
discontinued under . written sgrssmsst be.
tween the city and the company that Il might
be discontinued during The pesdsney Of the
then litigation. without prejudice to the "sz.
listing right" Of either party.
This defence was sustained BY The District
Court efJehnsoa county. (vhsrs the action 10
pendiog) bat the decision hss been reversed BY
The SsPrsns Court. in appeal. We give be-
low % much Of the opinioa Of the court - r..
latss to the above question. Other points Of
Lees Importance were decided. also In fsvor Of
the gas company:
sUPaEHE OouRT, JUNE Term, 1858.
Davenport Gas Light 4 Coke Co., spPt.
The City Of Davenport.
appeal Jrsm Johnse~ Distriet Court.
Plaintiff appeals from ~ order sustaining .
demurrer to the fifth count OF the petition asd
ant. For the substance OF the pleading see the
opinion.
Putnam 4 Rogers for Appellant D. L.
shorsy for Appellee.
Wright J-lhs first count 10 the petition
sets forth In Words the contract between The
psrtiss. by which plaintiff undertook 10 fur.
Dish gas for the city for time therein named.
for . specified confederation. Inc fifth count
AYERS that said contract vas fully kept and
performed BY the parti.s until the Let Of Juiy,
1858. when the city efu.sd 70 receive OF pay
tor the gas, and notified plaistif Of such re-
fusal; that in Sept. 1858. plaintiff brought
suit against the city Tor gas furnished not
sithstsnding such refusal. 10 the months Of
July asd August Of that year that while
said suit Was pending & he plaintiff being ready
end willing t. furnish the gas according to
the contract.) to wit: On the lst day OF
October. 1858. sn agreement was entered into.
40 foliows:
"WaraEAs. the City Council, alta meeting
held on the 18th day Of September, 1856,
adopted the following resolution. to.wit:
"Resolved. That the City Attorney IL hereby
authorized and required. st the request Of the
davenport Gas Light and Coke Company, to
sn,sr: 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
iidity Of the contract shall be decided by the
courts. and no existing rights Of said company
Or the city shall b prejudioed or affected. but
the contract. II nov valid. shall BE- and remain
co. to the same extent - though the said coz
pany had ct shut of the said gee and
"WHEREAs. The said Davenport Gas Light
and Coke Company have requested the priv
ilsge In said resolution mentioned. 81 desire
said contrsct to be entered into BY said City
Attorney;
Nov. therefore. this agreement witnssssth
that ], james 7. Lane, City Attorney Of the
said city Of Davenport, by virtue Of The prem.
,ses heretofore recitsd, hereby agree and slip.
ulsts TO and with the said Davenport Gas
Light and Coke Company. that the said com
pauy shall have the privilege Of shutting of
the gas from the public lamps. until the quss
uon Of the validity Of the contract shall be de-
cidsd BY the courts. and no existing rights Of
said company or the city shall be PREF udiosd
or affected. but the contract. II nov valid shall
Do and rsmais 90 10 the same extent 90 though
the said company has not shut of the ssid
gas.
10 witness whereof, DO.
1t 10 also alleged that 10 the suit referred 10
10 in said agreement. the city answered. deny
ing PLAINTIFF right to recover under said Gen.
tract. that in December 1860 . judgment was
recovered in the District Court against the
city, which vas affirmed 10 the supreme Court
in June 1869 The appellate court Holding
that said contract was valid and binding thai
during the psndssoy Of said suit. to VT, from
the let Of Os,obsr. 1858. TO the = day Of July.
1897. plaintiff ceased and omitted 10 furnish gss
TO she public lsmps; end recovery 10 therefore
ksoaght 10 damage 70 The amount Of the profits
which plaintiff would have made nndsr the
contract. BY Furnishings ess duripg .sid period.
alleged to Be- the sum Of fifteen .hoss..a dol
lars.
The demurrer to this count 10 bsesuss II sp-
pears from the contract. that the - vas turn
cd of from the public lsnps By the plant a,
and With the consent Of the defendant. at tie
plaintiff request during the period for which
the damages are claimed.
The legal substance Of this ground II dsmur.
rer 10, thst the count states facts which avoid
The cause 81 setion. AID these facts are claim.
&C - BE- found In the agsssosnt Of Dot. lst.
1858. the agreement being that the gss vss
shat of 1t the reqssst Of the eompsny that
II vas net defendant but plaintiff Who asked 10
30 relieved from the contract; Or conesdiog
that It va the result Of mutual agreement.
then there can Be no recovery Of profits.
Appellee mistake the purport Of this agree
msns We do not under q end that the soppa-
~ had made any request On the ssbjsst prior
70 the astiss Of the city council. The len
gusgs Of the resolution under which the City
Attorney seteG. % veil - the agreement Il
self, clearly indicates that the city would cor.
sent TO shutting of the gee II the company
should request it-uot because Il had. but II 4
shsssld. II 10 doing violence TO language to coy
that the company had asked to be rsl-assd or