The Davenport Gas Light and Coke Company v. The City of Davenport. 7 Hill, 61; 2 Smith's Lead. Cas. (4th Am. ed.), 40; Am. note to Cutler v. Powell, and the cases there cited; Costigan v. The Mohawk and Hudson Railroad Company, 2 Denio, 610. D. L. Shorey, City Attorney, for the appellee. 1. The demurrer is substantially the general demurrer which does not prevail under the new practice. Rev. 1860, §§ 2894, 2877. 2. It is not necessary that the answer should contain a general or special denial of the allegations of the petition, nor matter of counter-claims, set-off, &c. 3. If it contains allegations of evidence or argument, the remedy is by motion and not by demurrer. 4. The second plea is pleaded in strict accordance with § 2919, Rev. of 1860. 5. The second contract was made at the request of the gas company, and they cannot, after being relieved from the performance of the contract, at their own request, claim damages for a non-performance on the part of the city. 6. The Court erred in sustaining the motion to strike out the interrogatories appended to the answer. WRIGHT, J.-The first count in the petition sets forth in words the contract between the parties, by which plaintiff undertook to furnish gas for the city for a time therein named, for a specified consideration. The fifth count avers that said contract was fully kept and performed by the parties until the 1st day of July, 1858, when the city refused to receive or pay for the gas, and notified plaintiff of such refusal; that in September, 1858, plaintiff brought suit against the city for gas furnished, notwithstanding such refusal, in the months of July and August of that year; that while said suit was pending (the plaintiff being ready and willing to furnish the gas, according to the contract), The Davenport Gas Light and Coke Company v. The City of Davenport. to wit: on the 1st day of October, 1858, an agreement was entered into, as follows: "Whereas the city council, at a meeting held on the 15th day of September, 1858, adopted the following resolution, to wit: Resolved, That the city attorney is hereby authorized and required, at the request of the Davenport Gas Light and Coke Company, to enter into a stipulation with said company or their attorney, that the said company shall have the privilege of shutting off the gas from the public lamps until the question of the validity of the contract shall be decided by the courts, and no existing rights of said company or the city shall be prejudiced or affected, but the contract, if now valid, shall be, and remain so, to the same extent as though the said company had not shut off the said gas. "And, whereas, the said Davenport Gas Light and Coke Company have requested the privilege in said resolution mentioned, and desire said contract to be entered into by said city attorney. And therefore this agreement witnesseth that I, James T. Lane, city attorney of the said city of Davenport, by virtue of the premises heretofore recited, hereby agree and stipulate to and with the said Davenport Gas Light and Coke Company, that said company shall have the privilege of shutting off the gas from the public lamps, until the question of the validity of the contract shall be decided by the courts, and no existing right of said company or the city shall be prejudiced or affected, but the contract, if now valid, shall be and remain so to the same extent as though the said company had not shut off the gas. In witness whereof, &c." It is also alleged, that in this suit referred to in said agreement, the city answered, denying the plaintiff's right to recover under said contract; that, in December, 1860, a judgment was recovered in the District Court against the The Davenport Gas Light and Coke Company v. The City of Davenport. city, which was affirmed in the Supreme Court in June, 1862, the appellate court holding that said contract was valid and binding; that, during the pendency of said suit, to wit, from the 1st of October, 1858, to the day of July, 1862, plaintiff ceased and omitted to furnish gas to the public lamps, and recovery is therefore sought in damages, to the amount of the profits which plaintiff would have made, under the contract by furnishing gas during said period, alleged to be the sum of fifteen thousand dollars. The demurrer to this count is, because it appears from the contract that the gas was turned off from the public lamps by the plaintiff and with the consent of defendant, at plaintiff's request, during the period for which the damages are claimed. The legal substance of this ground of demurrer is, that the count states facts which avoid the cause of action. And these facts are claimed to be found in the agreement of October 1, 1858, the argument being that the gas was shut off at the request of the company- that it was not defendant, but plaintiff, who asked to be relieved from the contract; or conceding that it was the result of a mutual agreement, then there can be no recovery for profits. Appellee mistakes the purport of this agreement. We do not understand that the company had made any request on the subject prior to the action of the city council. The language of the resolution, under which the city attorney acted, as well as the agreement itself, clearly indicate that the city would consent to shutting off the gas if the company should request it, not because it had, but if it should. It is doing violence to language to say that the company had asked to be released or relieved from its agreement, that the city had consented, and that thereafter the company was estopped from claiming damages under the same. But whether the company first made the request to shut The Davenport Gas Light and Coke Company v. The City of Davenport. off the gas, is not very material, for we think the concluding part of the resolution and agreement places the matter beyond controversy. As the city had refused to receive or pay for the gas to be furnished under the contract, and had so notified the company, (and this is averred in the pleading and taken to be true,) it was competent for the company without any agreement to shut off the gas and recover damages as claimed in this court. The city had violated the agreement by refusing to pay for the gas already furnished; had expressly repudiated and notified the company not to continue the supply, and instead of complying with the agreement and recovering the contract price, or treating it as wholly abandoned, it was the right of the company, whether the city assented or not, to withhold the gas and recover the difference between the cost of furnishing and its value by the terms of the contract. Instead of leaving the matter thus, however, it seems that out of abundant caution on the part of both parties, the agreement was made, by which the gas was to be shut off until the question of the validity of the contract should be decided by the court "and no existing rights of said company or the city shall be prejudiced or affected, but the contract if now valid shall be and remain so to the same extent as though the said company had not shut off the gas." Now if this agreement has the effect of depriving the company of their profits then is it not thereby prejudiced in an existing right? Will not such a construction 'affect a right which was clear and unquestionable, and which has not been surrendered save by the terms of the instru ment, which (under such a view) defeats the leading object of its execution? The plain meaning of the agreement is that the parties mutually undertook to suspend all controversy as to their respective rights and liabilities, under the contract for fur`nishing gas, until the question of its validity was settled by The Davenport Gas Light and Coke Company v. The City of Davenport. the courts, and when the question was determined they were to be reinstated to all their rights just as they existed, if such agreement mere had been made. No rights were impaired by it, and it certainly was not intended to take away existing ones. We, therefore, conclude that the facts stated in this count do not avoid the cause of action, and that the demurrer should have been overruled. 2d. The second division of the answer demurred to by plaintiff is quite lengthy, and without abstracting the same, we state generally our views of the law applicable to the questions made. The grounds of demurrer are, that said division "consists of matters of mere evidence or argument, and not of statements of the ultimate results of evidence; that the matter pleaded is neither in denial, nor a confession and avoidance of the petition or of one or more count or counts thereof," and then more specifically that it "does not contain either a general denial of each allegation in the petition or any one or more count or counts, or of any knowledge or information thereof, sufficient to form a belief, nor a specific denial of any material allegation in the petition or in any one or more counts thereof; nor a statement of any new matter constituting a defense to the petition or to any one or more counts thereof, in ordinary and concise language without repetition, nor a statement of any new matter constituting a set-off or a counter-claim, or a crossdemand, or a cross-petition, in ordinary and concise language without repetition." These several grounds of demurrer are consecutively numbered by the pleader as required by the Revision, but we state them as above to place them in a more condensed form. Appellee first claims that this is substantially the general demurrer, which does not prevail under our system in a law action, and should, therefore, have been overruled. The language of the Revision, § 2894, is that: "When the |