Ashley v. Rocky Mountain Bell Telephone Co.

MR. JUSTICE MILBURN delivered the opinion of the Court. This is an appeal from a judgment in favor of plaintiff and from an order denying defendant’s motion for a new trial. The action is for alleged breach of contract. The complaint alleges that the plaintiff and the defendant -on April 10, 1894, entered into a written contract, which is set out at large in the complaint. This contract was for the use of a telephone belonging to the defendant company, for which use the plaintiff was to pay the sum of <$15 per quarter in advance and $1 additional for an extension bell, the rental all to be paid on the first day of each quarter. Among other filings, the contract provided: “Upon nonpayment of any sum due, * * .the lessor may terminate the lessee’s right immediately by written notice mailed toi or left at the aforesaid premises, and sever his connection, and remove the instruments.” It appears also that the rental was payable upon •demand, and, further, that the terms of the contract could not be varied or waived by any representations or promises of any ■canvasser or other person, unless the same-was in writing, and .signed by the general manager of the defendant company. On ■'Saturday, January 5, 1895, a quarter’s rent being due in ■advance on the 1st of said month, the collector of the defendant ■demanded of the plaintifl the sum of $16, which, on account <of the fact that the plaintiff did not happen to have his check — 291 — book with him at the moment, was not paid; but upon the suggestion. of the said collector the payment thereof was deferred until the following Monday morning, at which time the plaintiff handed the full sum of $16, due as aforesaid on January 1st, to the superintendent and manager of the defendant company. This money was then and there refused, and returned to1 the plaintiff with the statement on the part of the superintendent that the contract of rental and use of the said teleplumc had been by him, in writing declared terminated, and the telephone removed, on account of default in the payment of the sum due on the first of the quarter; and that said notice in writing had been served by leaving it upon the premises of the plaintiff where,the telephone had been in use; the contract providing for such termination, and for such service of notice. Plaintiff alleged that the defendant’s telephone system was the only one in the city of Helena, where he was doing business. He sued for $1,900 damages, alleged to have been sustained by him through the falling off of his business at his livery stable, where the telephone instrument had been established under said contract. Plaintiff alleged his willingness, readiness and ability to meet all conditions of the contract in case the telephone had not been removed. The defendant admits the making of the contract; denies that the sum of $16, due as aforesaid, was paid or tendered; admits that the said telephone was removed from the plaintiff’s place of business; but denies that the plaintiff was damaged. It alleged and offered to prove that in the same month of January, after the removal of the telephone in question, the defendant company offered, for the use of plaintiff, to put a telephone into' the place of business from which the former instrument had been removed, provided the plaintiff would pay to it the sum of $15, the cost of connecting the plaintiff’s place of business with the defendant’s system, such cost being necessary because of the fact that on or about the 1th day of the said month the right to the use of the poles near the plaintiff’s place of business had been by their owner taken away — 292 — from the defendant, plaintiff presumably to comply with the 'same rules and conditions applicable to other customers of the company, but that this offer xvas refused by the plaintiff. This latter defense xvas stricken out by the lower court on special demurrer. Judgment was entered against the defendant for the sum of $500 and costs. There are numerous assignments of error, only a few of Avhich Avill it be necessary to consider. The court refused defendant’s request for the following instruction: “If the jury believe from the evidence that defendant’s collector demanded of the plaintiff payment of the money due for such telephone seawice, and such payment Avas not then made, then the defendant-had the right to1 terminate said contract; and this is so even if such collector informed the plaintiff that he might make such payment at some subsequent time, unless the jury further believe from the evidence that the representation or promise of such collector, if any, xvas in writing, and signed by the general manager of the defendant company.” Under the terms of the contract the prayer for this, instruction should liaxm been granted. Several assignments are based upon the interpolation by the court in its charge of the Avords “before any tender of the amount due,” and words of a similar import, the ground of the alleged error being that the evidence was undisputed that a notice in xvriting terminating the contract and service Avas served before the alleged tender was made. Inasmuch as the jury Avere the sole judges of the credibility of the witnesses who testified to the circumstances attending the alleged sendee of the notice and of the weight to- be given to their testimony, we cannot say that, in view of the peculiar facts connected Avith the whole transaction, they did not have the right to determine the question of service adversely to the defendant. The defendant complains that the court erred in instructing the jury that “a Avitness false in one part of his testimony is to be distrusted in otliex*s; axxd if the jury believe that the witness IT. IT. Ashley, or axiy other AvitxieSs iix this case, has — 293 — testified falsely in any part of his evidence given before- you, you should distrust- that witness as to other parts of his testimony.” For the reasons laid down in Cameron v. Wentworth, 23 Mont. 70, 57 Pac. 04-8, it was error to give this particular charge to the jury, notwithstanding the, language in Subdivision 3 of Section 3390 of the Code of Civil Procedure, which provides that the jury are to be instructed on all proper occasions “that a witness false in one part of his testimony is to be distrusted in others.” The words “wilfully” and “material” should be used in proper places in such instructions. The error in said instruction, so far as the special reference to II. II. Ashley, who is plaintiff and respondent, is concerned, was not prejudicial to him, the jury having found in his favor; and, lie being the respondent, we cannot consider or pass upon the same. It is further assigned as error that the court refused to charge the jury that the tender alleged to have been made by the plaintiff the day that defendant claims to have terminated the contract and removed the telephone should have been “kept good, and paid into court for defendant’s use.” The rent was payable in advance, and was refused by the defendant. The manager of the defendant company declared that, he- would not. render service longer. By what rule or principle of law should the plaintiff have laid aside the $16 for the use of the defendant, when service, for which he should pay in advance, was positively refused? If the telephone had been put back immediately, then he would have owed in advance, and then ho would have been obliged to keep the money ready to pay, if refused for any reason by the defendant. When a tender is refused, by the party to whom it is made, and tlie0 contract is by him ignored, or declared terminated, it is not necessary for the other party to keep the tender good, or to make further tender. (McCormick Harvesting Machine Co. v. Markert, 107 Iowa 340, 78 N. W. 33; Williams v. Patrick, 177 Mass. 160, 58 N. E. 583, and cases cited; Hills v. Bank, 105 U. S. 319, 26 L. Ed. 1052; 10 Rose, Notes U. S. Reports, p. 295 ; and — 294 — Schultz v. O’Rourke, 18 Mont. 418, 45 Pac. 634.) In Hills v. Bank, supra, the United States Supreme Court said:. “It is a general rule that, when the tender of performance of an act is necessary to the establishment of any right against another party, this tender or offer to perform is waived or becomes unnecessary when it is reasonably certain that the offer will be refused, — that payment or performance will not be accepted.” The sustaining of the special demurrer to that part of the answer setting forth that the defendant had in said month of January, after the removal of the telephone and the alleged notice of termination of the contract, offered to put in a telephone for the use of the plaintiff at his barn, presumably at the same rates as agreed upon under the first contract, provided that the plaintiff would pay the sum of $15 for the expense of putting up poles, was error. The record does not clearly disclose the ground of the special demurrer, but we gather that it was on the ground of want of substance as a defense. Whether, if a motion to strike had been interposed on the ground that the matter was evidence in mitigation inserted in the answer, the motion should or should not have been granted, we do not decide, as the question is not presented. The offer as set out in the answer was not open to1 objection as a defense. Plaintiff’s counsel takes the position that to accept the offer 'would be a modification of the original contract and a waiver of the alleged breach. The offer, as it is pleaded, is not a modification. If it appeared on the trial to be in fact in such terms as to state or reasonably imply a waiver or modification, then, of course, it would not be incumbent upon plaintiff to accept. To accept telephone service from the defendant, if service was necessary to his business, and it could not be obtained except from the defendant (the defendant company having, as alleged in the complaint, a monopoly of the 'telephone business in Helena), would not necessarily be a waiver or a modification. The authorities declaring it to be the law, long settled, that — 295 — it is tlie duty of the injured party, if in his power, to take reasonable measures by which his loss may be less aggravated,, are legion. In the case at bar the defendant offered to prove, as aforesaid herein, that by expenditure of $15 the plaintiff could have avoided the alleged loss of $1,900. What was the duty of the plaintiff? Should he have accepted the offer? Mr. Sutherland in his excellent work on Damages (volume 1, p. 155), speaking of the duty of the injured party to reduce or prevent damages, says*- “A claimant of damages is bound to accept reasonable offers of the other party, or a third person, having direct reference to the subject of the loss, which would have the effect of reducing or preventing damage.” A contract having been' broken by one party, the making of a new contract by the parties thereafter does not necessarily take away the right of action for damages for the breach of the first contract. (14 Am. & Eng. Enc. Law (Ed. 1890) p. 797, Sec. 14, and cases cited.) A foreman was discharged as incompetent to hold his position as foreman, but was by his late employer offered employment in the same general line of business at the same compensation, and the defendant, sued for damages for breach of contract, offered to prove the tender of new employment; in the case (Squire v. Wright, 1 Mo. App. 172) the court held that while, strictly, such an offer might not have been a full defense, still it w7as admissible in mitigation of damages; citing Pond v. Wyman, 15 Mo. 175. The judgment and order appealed from are reversed, and the case remanded for a new trial. Reversed and remanded.