Central District & Printing Telegraph Co. v. Commonwealth ex rel. Friend &. Co.

Mr. Justice Gordon delivered the opinion< of the court, The case submitted to us is founded on a petition by J. W. Friend & Co., praying for a writ of mandamus against the Central & Printing Telegraph Company. On the 27th day of February, 1886, a rule rvas granted on the defendant to show cause why the writ sued for should not issue. This rule having been duly served, and no answer having been made thereto, on March 20th, the court awarded an alternative mandamus, returnable on the 10th of April then next. To this writ an answer was filed, to which the relators demurred, and on that demurrer the court, after hearing the parties by their counsel, entered judgment against the defendant. We have, then, this demurrer for consideration, to the disposition of which by the court below, the plaintiff in error has excepted. The court necessarily founded its judgment on the insufficiency of the answer; but, as in considering a demurrer, regard must be had to all the pleadings, and not merely that part of them to which •the demurrer refers, we must, in order to reach a correct result, review the writ, which of course follows the petition. From an examination of this writ we gather the following facts: that the business of the relators is the manufacture of iron and steel, their place of business being at the corner of Steuben and Carson streets, on the south side of the Monongahela river, in Pittsburgh. That the defendant is a Pennsylvania corporation, engaged in the business of operatingtelephone lines, inter alia, in th'e said city and its vicinity; that it has the exclusive right to sell to others the use of telephones within the limits above stated, and that its office is at the corner of Fifth avenue and Wood street. That the respondent under [595] takes anti publicly offers to furnish telephone instruments to all classes of persons who will become subscribers to their telephone exchange, and agree in writing to pay an annual rental therefor, and comply with certain terms prescribed by the said company for the use of its instruments. That the relators applied to the respondent for a telephone,. to be put up in their mill, at the corner of Steuben and Carson streets, and offered to pay therefor an annual rent of eighty-four dollars, which, it is alleged, is the rent usually charged to its subscribers, they agreeing to pay in addition to the sum stated the charge which the Point Bridge Company might impose for the use of its structure in carrying the teléphone wire across the river; and that the respondent had refused to furnish an instrument at that rate, but demanded a rental of one hundred and fifty dollars, which, it is further alleged, is largely in excess of the rent charged by said company to other firms, and individuals, at points within the city of Pittsburgh, distant as far as, and farther from the central office than the office of the relators. It may be admitted that all that is essentially necessary to maintain the writ of mandamus is found in the above statement; that is, that a definite legal right exists in the relators to have the telephone service, and a consequent duty on part of tlie company to furnish it. There is, also, in this statement of facts, on which the right is made to depend, certainty to a common intent; that is, they are stated with a precision sufficient to express the right of the one and the duty of the other in such manner that the ordinary mind, disregarding technicality of pleading,' may easily apprehend them. So, also, as the want of a specific legal remedy is made to appear from the same source, we may concede that there is enough in the petition to warrant the alternative writ. But, on. the principles above stated, we are at a loss to discover why the answer was not sufficient. Certainty to a common intent is the rule, and that applies as well to the answer as to the petition, and it is sufficient that the former, without ambiguity or eyasion, responds to and denies the assertions of the latter: Commonwealth v. The Commissioners of Allegheny County, 32 P. S. R., 218. The material allegation, as found in the petition, seems to be, that a tender of eighty-four dollars per annum, the usual price charged to others, whose places of business were as far from the company’s office, or exchange, as that of the relators, was made to the company, and that tender was refused, and a rental of one hundred and fiftjr dollars a year was demanded. To this the respondents answered; (1), denying that it charges to all its subscribers an annual rental of eighty-four dollars, and averring that it charges various sums depending upon the service [596] rendered, the distance from the central office, and the cost of erection and maintenance. (2) ; replying to paragraphs 7, 8, 9, 10, and 11 of the petition, that the rent of eighty-four dollars only applies to those telephones within a radius of one half mile from the central office; and that the rate fixed for telephones at the same distance as that of the petitioners— that is to say, within a radius of one and one half miles from the central office, is one hundred and fifty dollars; and that the respondent has always been willing, and has offered to rent a telephone to the petitioners at that price. Surely, if this answer is not sufficiently definite it is not because it does not fully a'nswer' the allegations contained in the writ, but rather because the writ itself is not sufficiently specific. We think, however, both are as perspicuous as the case requires; the petition, in alleging the default of the company-in refusing to them the use of its telephones on tender of the usual rent; the answer, in denying that the sum stated was the usual rent for the service required, and averring that, for the price usually, charged to others at a like distance, as that of the relators from the central office, it was ready and willing to furnish the required apparatus. It is true, the counsel for the plaintiffs profess, as did the court below, to see an evasion in the denial of the company that it charged all its subscribers eighty-four dollars per annum, as though from this it might be inferred that there were some of its subscribers, within the same radius, that were charged less than others. But no one, having regard to the language of the answer, can reasonably come to any such conclusion, for if contains the explanation, that the rent of eighty-four dollars applies only to telephones within one half mile from the central office. The other exceptions are no better founded than the one above stated, and their very technicality and immateriality show the strain that was upon the acute and learned counsel to discover, or devise, faults in an instrument which plainly and positively meets, and contradicts the averments of the petition. Judgment reversed, and a procedendo awarded.