City of East St. Louis v. East St. Louis Gaslight & Coke Co.

Pillsbury, P. J. The alleged contract set out in the declaration requiring the city to receive and pay for gas for lighting the streets at a stated price for the period of thirty years, was before the Supreme Court in a suit between these same parties (98 Ill. 415), brought to recover for gas furnished by defendant in error to the city and received and used by it without objection ; and while the principal opinion does not in terms hold the contract void as being beyond the powers conferred upon the city in this respect, and making the city liable upon the ground of estoppel for the gas received and used, there is a clear intimation that the contract is valid only so far as it has been executed, and that the city can at any time refuse further to take gas under it or be bound by its terms by notice to that effect to the Gas and Coke Company. The separate concurring opinion of Mr. Justice Walker discusses the question of the validity of the contract, and its reasoning seems to be conclusive that as an executory contract it is null and void. The sixth plea admitted by the demurrer to be true, avers that before any of the gas was furnished for which this suit is brought, the city notified the plaintiff in error in writing, that it in no manner recognized any liability arising out of said contract, and that it would not recognize or pay any claim or bill whatever for lighting any of the streets of said city after that date, unless some other agreement was made therefor, which was never entered into for the furnishing of gas thereafter. The questions of the validity of the contract, and the right of the city at any time to refuse longer to be bound by its terms, is thus distinctly raised by the said plea, and it being substantially conceded in the opinion of the court in the cited case, that the city could at “ any time avoid the contract,” and the separate opinion of Mr. Justice Walker being such an able exposition of the law regarding the power of the city to enter into such contract and for reasons that seem to be unanswerable and so much better expressed than it is possible for us to do, concluding that the contract was void, we have no hesitation in saying that the sixth plea presented a good defense to this action and the city was not liable under the contract for gas after avoidance of the contract by notice as therein stated. The contract, then, being voidable, and disaffirmed by the city, no liability is shown and the judgment will be reversed. Judgment reversed.