Brush Electric Light & Power Co. v. City Council

BRICKELL, C. J. — The complaint contains three counts — the first is a mere'abbreviation of all the counts contained in the statutory form of a complaint on an account or verbal contract; the second and third are substantially the same, intended as a special statement of the cause of action, and claim compensation for seventeen electric arc lights, the plaintiff furnished the defendant during a particular period, at a specified rate or price. The defendant pleaded only the general issue. The undisputed facts are, that on the 14th day of December, 1887, the parties entered into a contract whereby the plaintiff agreed for a term of five years, commencing on the first day of January, 1888, to furnish and maintain for the use and benefit of the city of Montgomery, one hundred Brush or United States Electric lights, or other standard light of two thousand candle power each. The lights were to be located at such places in the city as were designated by the committee on gas of the city council. The plaintiff guaranteed and warranted that one hundred lights would "furnish good and sufficient light for an equal territory to that now lighted by the gas company.” A further stipulation of the contract is in these words : “The said party of the second part,” (the plaintiff) “ agrees and binds itself to light the public buildings of said city with electricity, under the direction of the committee hereinbefore named, .and the electricity used for this purpose, it is mutually agreed, will be taken from the supply necessary to maintain said one hundred lights, and will relieve the party of the second part from furnishing and maintaining so many of said one hundred lights as above stipulated, as the electricity so used in said buildings would be necessary to maintain — that is to say, eight lights in a building shall be deemed the equivalent of one of said street lights.” The stipulation on the part of the city is; “To take and use said one hundred electric lights for the period of five years, beginning on January!, 1888, and to pay therefor to said party of the second part, at the rate of, forty-two and a half (42i) cents per light per night; that is to say for each of said lights of said two thousand candle power, and the equivalent thereof, said price to be paid at the end of each month,” — 442 — The plaintiff furnished and maintained ninety-twó arc lights for the streets of the city, which were located as designated by the proper city authorities, and one hundred and ninety-four lights for the public buildings, the equivalent of twenty-four and a half of the arc lights furnished for the streets. The city had the use and benefit of all the lights, and regularly, on demand, paid monthly for one hundred, according to the terms of the contract. For the number in excess of one hundred, the plaintiff made no demand of payment until January 1892. Payment was refused, and after some negotiation and correspondence, the plaintiff requested the City council to designate which of the lights should be removed, so as to reduce the number to one hundred. The council refused to permit any of them removed, insisting that the contract stipulated that the teritory or streets of the city, should be as well lighted as it had been previously by gas — that the one hundred arc lights failed to do this, and the extra lights were put in, to conform to this stipulation of the contract. It is obvious that a construction .of the clause of the contract by which the plaintiff guaranteed that the one hundred lights contracted to be furnished and maintained for the use of the city, would furnish good and sufficient light-for a territory equal to that lighted by gas at the making of the contract, is necessary to determine the rights and obligations of the parties, in the events which have since occurred. A contract in writing must be read and construed in its entirety; it is not from parts but from the whole the intention of the parties must be collected; single clauses of sentences are not to be dissociated from others having reference to the same subject-matter, and force and effect given to them alone. The contract must also be construed according to its terms ; its words, if of common use, must be taken in their ordinary, usual significance; and' if technical words are employed, their technical meaning must be ascertained and accepted. This is the general rule in the construction of the words of a contract, prevailing, unless it ■clearly appears from the context of the instrument, that the parties did not use them in their ordinary or technical sense. The clause of the contract we are now considering, must be read and construed in connection with the; subsequent clause by which at the election of the de — 443 — fendant the public buildings of the city were to be lighted with electricity, and in the event the election was exercised, the electricity was to be taken from the supply necessary to maintain the one hundred lights, and to a defined extent, the plaintiff was relieved from the duty and obligation of furnishing and maintaining that number. The two clauses are connected in subject matter, and cannot be dissociated without doing violence to the integrity of the contract. The warranty has relation to the external lighting of the city, and is without relation to the lighting of buildings public or private. It relates to territory, an equal extent or compass of the streets and other external or exterior parts of the city, to that which was and has been lighted by the gas company. The clause is its own expositor — it is the lighting capacity of one hundred lights — it is not of the capacity of a less number, nor of the one hundred, if not located and used for the external lighting of the city. The principal object the parties had in view was, doubtless, the lighting of the streets of the city, and as the defendant was changing the mode of lighting them, employing another and different agency from that which had been employed, a guarantee or warranty of the capacity of the new or substituted agency, was matter of contract, the relations of the parties -would suggest. It became the matter of contract, and the agreement of the parties is expressed in the clause of warranty, and in the subsequent clause by which if the public buildings were lighted by electricity, there was a reduction of the lights for the streets, or the external lighting of the city. There was the lighting of the public buildings, and the consequent reduction below one hundred of the number, of lights for other purposes, leaving no room for the operation of the warranty. This is the contract taken in its entirety, into which the parties entered, and however disappointing in its results, it must be effectuated. From this conclusion it results, that there was error in the admission of the evidence having a tendency to show that the city was not as well lighted by electricity as it was by gas. In no event could that have been a pertinent inquiry; if there had been occasion for the operation of the clause of warranty, the inquiry would not have been whether the city was as well lighted by electricity as it had been by gas, but whether the one — 444 — hundred lights furnished by the plaintiff gave good and sufficient light for an equal territory to that which had been lighted by gas, which would have necessitated other inquiries to which we need not now refer. It may as well be said here as elsewhere, that there .was no error in the rejection of evidence of the .reason assigned by Snodgrass, the clerk of the city council, for refusing payment of the bills presented for the extra lights. The acts or declarations of the officers or agents of a corporation, as matter of evidence against the corporation, stand upon the same footing as the acts or declarations of an agent of a natural person. To bind the principal, they must be within the scope of the authority conferred upon the agent, and must be done or made while in the exercise of the authority. What was the scope of the authority conferred on the clerk of the city council was not shown ; and it cannot be presumed that he had authority to reject, and assign reasons for the rejection of claims preferred against the city, as it could not be presumed that he had authority to create such claims. For the like reason, there was error in the admission of the declarations of Dunham, the president of the board of directors of the plaintiff, as to the furnishing extra lights, and the purpose to continue furnishing them, until the city was as well lighted as it had been by gas. In the absence of all evidence touching the scope of his authority as president, it cannot be presumed that he had any other or greater power than any other director. The duty of the plaintiff under the contract, and what course should be pursued in its performance was matter for the consideration and under the control of the board of directors when assembled, and by the acts or declarations of the president, or of any other member of the board, acting singly, the plaintiff could not be affected.— Spyker v. Spencer, 8 Ala. 333 ; Sampson v. Fox, 109 Ala. 662. There was no error in the rejection of the evidence of Pollak, that he was a member of the board of directors of the plaintiff, and did not, for, one or two years, know the plaintiff was furnishing lights in excess of one hundred. The purpose of the evidence was to remove whatever of unfavorable inference could be drawn against the plaintiff, from the delay in claiming compensation for the extra lights. But the delay is not to be explained — 445 — by reason of the neglect or laches of its own officers or agents. The contract obliged the plaintiff to furnish and maintain, and the defendant to pay for, one hundred lights only, without regard to the purposes for which they were used — whether for lighting the streets, or for that purpose and for the lighting of the public buildings. The undisputed fact is, that a larger number was furnished and maintained, of which the city had the use and benefit, and the more important question is, whether a contract on the part of the defendant to pay for them, may be implied. The statutes governing the city at the. time the contract was made and during the course of the subsequent transactions, conferred on the city council power “to establish or purchase and maintain gas and electric works, or contract for the furnishing of gas and electricity for fully supplying the city and its inhabitants, and to regulate the manner and rates of furnishing gas and electric lights to private consumers.” — Pamph. Acts, 1886-87, p. 488 ; Pamp. Acts, 1888-89, p. 518. Corporations not by the statutes creating or governing them, restrained or limited to a particular mode of contracting, may be bound by implied contracts. Keeping within the line of the capacity to contract conferred by the law of their creation, implications will be indulged against them whenever under like circumstances they would be indulged against natural persons fully sui juris. — 2 Kent, 291; 4 Thompson Law of Corporations, § 5181. In 1 Dillon Mun. Cor., § 459, it is said: “The present state of the authorities clearly justifies the opinion of Chancellor Kent, that corporations may be bound by implied contracts within the scope of their powers, to be induced by inference from authorized corporate acts, without either a vote, or deed, or writing. The doctrine is applicable equally to public and private corporations,' but in applying it, however, care must be taken not to violate other principles of law. Thus it is obvious that an implied promise cannot be raised against a corporation, when by its charter it can only contract in a prescribed way, .except it be a promise for money received or property appropriated under the contract.” In Gas Co. v. San Francisco, 9 Cal. 453-68, it was said by Field, J.: “Under some circumstances, a municipal — 446 — corporation may become liable by implication. The obligation to do justice rests equally upon it as upon an individual. It cannot avail itself of the property or labor of a party, and screen itself from responsibility under the plea that it never passed an ordinance upon the subject. As against individuals, the la,w implies a promise to pay in such cases, and the implication extends equally against corporations.” Implied contracts, it is said by Ch. Kent, “are those which the law raises or presumes, by reason of some value or service rendered, and because common justice requires it.” — 2 Kent, 450. As a general principle, it may be stated, that one who knowingly takes the benefit of the service of another, or the use of his property, not under an express contract or engagement, impliedly promises - to make reasonable compensation. But services may be rendered, or there may be the permissive .use and enjoyment of property, under such circumstances as lead to the conclusion, that neither party intended that compensation should be claimed or made. Gratuitously, of mere grace or courtesy, a party may render services, or permit the use of his property, and in that event, the old maxim of the common law applies, that “a mere voluntary courtesy will not have consideration to uphold an assumpsit.” There may also, be the rendition of services, without the knowledge or consent of the party to whose benefit they inure, and who had not the opportunity to accept or reject them. In such case, a promise of compensation will not be implied; parties without their consent may not be forced into contractual relations; one man cannot make another his debtor without his consent, “unless it be, when he had the opportunity of consenting or refusing consent.” — 1 Beach Modern Law of Contracts, § 649, et seq.; Clark on Contracts, 777, et seq. There are indications in the evidence, that originally, the extra lights were furnished and maintained by the plaintiff, and accepted and used by the defendant, neither party intending that any other compensation should be made, than that which the existing contract required to be made for the one hundred lights. And this was the result of mutual mistake as to the true interpretation and meaning of the warranty clause of the existing contract. The mistake- did not compel the — 447 — parties into contractual relations they did not intend to assume — the plaintiff was not under the duty of continuing the further maintenance of the lights, nor the defendant under the duty of their further acceptance and use, making compensation for them. Whether there was the mistake, superinducing the conduct of the parties, is a fact for the determination of the jury. The delay in claiming compensation is not conclusive against the right of the plaintiff. Mere neglect to demand payment for services during the course of their rendition, will not of itself take away the right of the party rendering them to compensation. In determining whether the services were rendered and accepted without the intent that compensation would be claimed or made, it is a fact of more or less significance, dependent for its value upon the relations of the parties, their course of dealing, and other facts illustrative of their mutual, concurring purposes. Whatever may be true of the time anterior to the demand and refusal of payment for the use of the extra lights, thereafter, the relation of the parties was essentially changed. The defendant had notice that compensation for the use of them was demanded as matter of right, and had opportunity to refuse or continue their further use. Refusing to designate the lights which should be removed or discontinued, reducing the number to one hundred, or its equivalent, and notifying the plaintiff not to remove or-discontinue any of them, common justice requires that a promise to pay for the benefits it was claiming and receiving, should be implied. And as was said in Marsh v. Fulton County, 10 Wall. 678, and repeated in Louisiana v. Wood, 102 U. S. 294, “ the obligation to do justice rests upon all persons, natural or artificial, and if a county obtains the money or property of others without authority, the law, independent of statute, will compel restitution or compensation.” With full knowledge that the lights were not furnished and maintained gratuitously, that compensation for them was claimed, without making reasonable compensation,' the defendant could not accept and retain' the use and benefit of them. The law intervenes, and implies a previous request and the promise of reasonable compensation. — 1 Beach Modern Law of Contracts, § 650 ; Clark on Contracts, 783. What is reasonable compensation, or — 448 — the mode in which it may be ascertained, varies according to the facts and circumstances of each particular case. In cases of extra work, if it is of the same character as that for which the original contract provides, the general rule is, that the implied compensation must be measured by the rates or prices specified in the contract, and is deemed the better mode of ascertaining it, meting out' justice to the parties. Which were to be deemed the extra lights, separate from , the one hundred it was the duty of the plaintiff to furnish and maintain, was incapable of ascertainment; all were of the same capacity and quality, and were accepted and used as of the same value. The reasonable and just implication is, that the defendant contemplated, if compensation was made for them, payment would be made according to the terms of the original contract. The contract stipulates, that each of the lights furnished for the use of the streets, should be “of two thousand candle power and the equivalent thereof.” These are technical words, peculiar to the business of electric lighting, and must be understood in the sense in which they are used and employed in that particular business. Though the lights were accepted and used by the defendant, under appropriate pleading, it could have been shown, that taking the words in their technical sense, the lights furnished were not of this power, and were of consequence of diminished value, in reduction of the claim of plaintiff for compensation. But the only plea interposed was the general issue, a mere denial of the allegations of the complaint, limiting the defense to evidence in disproof of them, not authorizing the introduction of evidence in support of an affirmative defense. Am. Oak Extract Co. v. Ryan, 112 Ala. 337, and authorities cited. We have passed on all the questions arising on the assignment of errors, which will probably arise on a future trial. It is apparent from what has been said, there is no aspect of the case in which the general affirmative instruction should have been given. Let the judgment be reversed, and the cause remanded for further proceedings in conformity to this opinion. Reversed and remanded.