Paldanius v. Strauss

JOHNS, J. 1,2. At the time the contract was made, we must assume that any pole which was in front of the defendant’s place of business or that any wires or cables stretched thereon or attached thereto were placed there by some authority or license from the city, and that the contract was made with reference to the conditions as they then and there existed. We must also assume that the defendants made the contract for the purpose of advertising their business. Although they deny its execution, one of the defendants testified that he signed the contract for the firm, and we must treat it as duly executed. The testimony is conclusive that the electric sign which is specifically described in the contract was delivered to the defendants. It will be noted that the contract does not specify where the sign shall be placed or how it shall be hung. The plaintiff relies upon the written contract and claims that parol testimony is not admissible to change or vary its terms and that the — 503 — Power Company having equipped and installed the electric sign, it fully complied with the contract. The defendants claim that although the contract is silent as to where the sign should be actually located or how it should be swung, that parol testimony is admissible for the purpose of showing the nature of their business and the reasons why they made the contract, and that it was to be used for advertising purposes and that in the manner in which it was hung it had but little if any value and could not be seen or read by the traveling public. It is claimed that the duty of the company to “equip” and “install” the sign is not broad enough and does not imply that the “sign” shall be so placed and swung that it could be seen and read by the traveling public. Corpus Juris, Volume 20, page 1301, in defining equipment, says: “The act of equipping or fitting, or the state of being equipped, as for a voyage or an expedition; whatever is used in equipping; the collective designation for the articles comprising an outfit. As applied to transportation, the necessary adjuncts of a railway; the rolling stock and other movable property used in operating the railroad, as cars, locomotives, etc.” In United States Rubber Co. of California v. Washington Engineering Co., 86 Wash. 180 (149 Pac. 706, L. R. A. 1915F, 951), the court says: “ ‘Equipment’ is, what the word imports, the outfit necessary to enable the contractor to perform the agreed service, the tolls, implements and appliances which might have been previously used or might be subsequently used by the contractor in carrying on other work of like character.” The duty to equip would not carry with it the duty to put the sign in any specified place or swing it in any particular manner. — 504 — Webster’s New International Dictionary defines the word “install” as follows: “To set np or fix in position for use or service; as, to install a heating or lighting system. Installation, the whole of a system of machines, apparatus and accessories set np and arranged for working, as in electric lighting, transmission of power, etc.” The New Standard Dictionary defines the word: “To establish in a place or position; as to install a guest at the fireside. To place in position for service or use; as, to install a hot-water system.” Although the use and installation of electric signs is modern, it is very common and general, and they are now very numerous in the cities and can be found in almost every little town, and it is a matter of common knowledge that they are used for advertising purposes. We have a right to assume that the defendants made the contract to advertise their business. It was the duty of the Power Company to install the electric sign specified in the contract, and put it in place ready for use and to furnish all the equipment. 3,4. The contract being silent as to where the sign should be placed or how it should be swung from the building, evidence was admissible of any parol agreement or understanding between the parties as to such matters, and in the absence of any parol agreement between them, it was the duty of the plaintiff to install the sign in the usual and customary manner, and parol testimony would then be admissible for the purpose of showing what was the usual or customary method or manner for the installation of that kind of an electric sign, but any contract verbal or written must be construed as to the actual and physical conditions which existed at the time it was made. After — 505 — the contract was signed, the defendants did not have any legal right to have a change made in any of the existing conditions. Any proposed change in the location of the pole, wires or cable should have been provided for in the written contract or should have been made before it was signed. The defendants had no legal right to terminate the written contract because the plaintiff refused to make any requested change in the location of the pole, power line or cable. 5. Although the proof is conclusive that the written contract was duly executed, the defendants pleaded an oral contract, and alleged that by its terms the Power Company agreed to hang the sign at a particular place and in a specified manner and it will be noted that each of the above instructions are founded upon the alleged oral contract. The defendant J. D. Strauss, with whom the alleged oral contract, if any, was made, testified: “Q. Do you know who put the sign up there? “A. I was there the day they were working on it. The only man I know by name was this man Housh. “Q. This man, the foreman of the Pacific Power and Light Company? [Indicating.] “A. Yes, sir. “Q. Did you have anything to do with the putting of the sign up there? “A. Nothing at all. “Q. Did you give him any orders as to where the sign was to be placed? “A. No. “Q. "What, if anything, did you say to Mr. Housh that day? “A. Mr. Housh told me the sign had arrived and I said, ‘Hang it up,’ and I supposed they knew their business and would hang it properly. “Q. Did you say anything to him further or did he say anything to you that day about this feeder wire? “A. No. * * — 506 — “Q. Did you see the meu working to put it up there? “A. Yes, sir, I saw them hanging the sign.” For such reasons each of the instructions were both erroneous and prejudicial. There was no parol evidence of any contract that the sign should be hung in any particular place- or specified manner. F. M. Housh was the construction foreman for the Power Company and the sign was installed under his directions. He testified that he had a talk with Mr. Strauss the morning that the sign was hung. “Q. "What was the talk? “A. I simply asked him if he had any specific place to hang the sign. He said no, if I remember right. He told me no, and I suggested that we should hang it there in the center of the building before the arch or on the side of the building lower down. “Q. Did you ask Mr. Strauss where the sign was to be hung? “A. I asked him if he had any preference as to where it was to be hung. “Q. And he did not direct you to any particular place? “A. No, only he said it was to be near the center of the building. “Q. You knew that the high tension wire extended right out there a few feet, didn’t you? “A. Yes, sir. “Q. You knew that the sign was to be a swinging sign? “A. Yes, sir. “Q. And swinging out from the entrance of the Theater? “A. Yes, sir. “Q. And you knew when you were hanging it that it would be unable to swing out at that time? “A. Yes, sir. * * “Q. You did not realize that the sign could not be swung out? — 507 — “A. Not until after the sign was swung up into place. * * “A. It was called to my attention that the sign was not swung out into the street the way it should have been.” Upon the question as to how the sign was installed Housh further testified: “Q. Wasn’t it practical to hang that sign out at an angle such as the sign was left at? “A. No. “Q. Leaving the sign out at the angle you did was not giving the results to these people that they were supposed to have and that they had paid for? “A. No.” 6. 7. This is strong evidence that the sign was not installed as it should have been and coupled with the fact that as it was put in place it could only be seen from one side of the street and for a short distance, and that it did not have any advertising value, makes it conclusive that for the purposes for which it was intended, the sign was not installed in the usual and customary manner under the conditions then existing. For such reasons the Power Company did not comply with the contract. Strauss left for Boise on the day the sign was installed. After his return he promptly made a vigorous complaint about the way it was installed and upon the refusal of the Power Company to adjust the matter, tore the sign down and tendered it back to the company. Although each instruction was erroneous, the judgment must be affirmed, under Article VII, Section 3, of the Constitution. Affirmed. Burnett, C. J., dissenting. Brown, J., concurs. Bean, J., specially concurs.