Gas-Light Co. v. Colliday

Weisel, J., delivered the opinion of this Court: ' We are to inquire, on this appeal, -whether the Court below erred in its instraction to the jury, as to the plaintiff’s right to recovery, and the rule for estimating his damages if entitled to the verdict. The appellee, who» was the plaintiff below, sued the GrasLight Company of Baltimore in the Court of Common Pleas-for that city, for the breach of a contract between them for supplying with gas his dwelling and store, on the north-east corner of Schroeder and Eayette streets, No. 465, the breach consisting in severing the pipe which conveyed the gas to the premises from the main pipe, although all dues on the contract had been paid or tendered. The declaration also contained a count in trespass on the case for damages consequent upon the act complained of. No question was made upon the pleadings or the evidence. It appears from the reeox’d that the contract was made for the premises in question, in August-1852, by the plaintiff’s11 Signing tlie rules and regulations of tlie company, lie having first placed the necessary pipes and fixtures in. the house for the admission and consumption of the gas. He, also, in December, 1857, entered into a similar contract with the defendant for the supply of gas to another tenement on Fayette street, No 461, separated from the former by a small lot and dwelling belonging to another person than the plaintiff, but which he used in connexion with his business. The rules and regulations signed for the premises No. 461 were, in some particulars, variant from the other contract. Separate bills for gas for each, house had been regularly made out and presented, quarterly, to the first of February, 1861, when that for No. 465 was paid, hut tlie other, for 461, was disputed as excessive, and payment refused. This dispute and refusal to pay were continued to June following, when tlio company cut off the gas from it, with a claim for the arrearages due upon it. In the mean time a separate bill bad been rendered for No. 465 to 1st May 1861, and was paid. For the quarter ending 1st August 1861, another hill was rendered, which, for the first time, contained a charge for arrears of gas supplied to No. 461 to June 3d. The plaintiff tendered payment of what was due as rendered on No. 465, but refused again to pay for the arrears on No. 461. This tender was refused by the company upon the ground that it was entitled to the payment of the hills for both houses as the condition of continuing to furnish gas for No. 465, and the plaintiff was notified that if he did not pay the disputed bill for bouse No. 461, the supply of gas would be cut off from the other. This was accordingly done on the 8th September following by the company’s severing the service pipe from the main pipe in the street, five feet from the curb stone. There was proof that the gas-meter, (an instrument for aneasuring and ascertaining the quantity, of gas consumed,) — 12 — for house No. 461 was in good condition and registered correctly, and that the bill for the disputed quarter was correctly made out from the figures indicated by the register on the face of the meter; and that this bill was admitted to be true and correct, by the plaintiff’s counsel, for the purposes of this case. It was further proved that after the notice to the plaintiff, as already stated, and his declaration that he never would pay the disputed bill for house No. 461, because it was excessive, the company proceeded, by its agent, to remove the meter from the house No. 465, but that the plaintiff refused to admit him to the place where it was; that a writ of replevin for the meter was then resorted to, and search made for it, but it could not be found by the officer in charge of the writ; and that thereupon the service pipe was severed as before stated. The meter was the property of the company, but affixed to the pipes at a certain cost to the consumer. It was distinctly proved, however, by Mr. Brown, the secretary of the company, on his cross-examination, “ that the reason, and the only reason, why the service pipe to house No. 465 was cut, was the failure of the plaintiff to pay for the gas to house No. 461.” The “ Rules and Regulations” signed by the plaintiff when he applied for gas for house No. 465, contain the stipulations of the contract. They are declared to have been adopted by the Directors for the introduction of gas-fittings, and the terms upon which the public would be supplied with gas, and were ordered to be printed in pamphlet form for distribution, and a copy enrolled in a book in the office to which the names of all applicants for a supply of gas should be subscribed. The applicant in these consents that gas should be introduced into the described premises, “ and that in default of payment for gas consumed in said premises, he also consents that the flow of gas shall be stopped until the bill be paid.” The other material provisions in these rules are the following: — 13 — Hule 2, provides for the supply of the gas by the meter, and for changing the meter if found defective, and for arriving at the quantity consumed by other modes when the meter ceases to register. No. 4, prescribes the costs to the consumer for the service pipe and the meter, to be furnished and put up by the company. No. 5. “'The company shall have the authority, whenever it may deem it necessary, to substitute alcohol for water in the meter.” Nos. 6 and 7 regulate the size and character of the tubing, fittings and screws in the house to be provided and put up by the proprietor of the building, and for their examination *and approval by the Inspector of the company before gas will be supplied. No. 8. “ The Inspector shall at all times he in readiness to -examine the apparatus and premises of applicants, free ol charge, on receiving three days’ notice.” No. 10. “ The company, its inspector and other authorised agents, shall at all times have the right of free access into the premises lighted with gas for the purpose of examining the whole gas apparatus or for the removal of the meter and service pipe.” 13. “ In default of payment for gas consumed within thirty days after the end of each month, or in case of a leak or injury done to the meter or pipes within the premises of any consumer, the flow of gas may he stopped, until the hill is paid or the necessary repairs are made.” 14. “ The company reserves to itself the right to refuse to introduce gas into any premises until all arrears due on the said premises shall have been paid.” 15. “ The company reserves to itself the right at any time to cut off the communication of the service pipe, if they shall find it necessary to do so, in order to protect the works .against abuse or fraud.” — 14 — The plaintiff having entered into the contract, (of which the foregoing are the particulars most important to the inquiry,) for the supply of gas, and having been supplied for a series of years, for house No. 465, until the difficulty arose about the bill for the other premises, the question as to the right of the company to discontinue it under the contract, for cause assigned and proved by the evidence in the bill of exceptions arises, and is to be considered and determined. The character of the defendant, (the appellant in this appeal,) cannot be overlooked in such an inquiry. The “ GasLight Company of Baltimore,” was incorporated by the Legislature of Maryland in 1816, for the pttrpose of. manufacturing gas and for lighting with it the streets, squares, &e., and the houses and other buildings and places in 'the city and precincts of Baltimore or elsewhere within the State, with all necessary powers and rights for the pttrpose under the law and the ordinances of Baltimore, and for raising by subscriptions of stock a capital, and for the holding of real and personal estate of a value adequate to such an undertaking. At the time of the contract in 1852 for house No. 465, the appellant was the only incorporated institution in the city of Baltimore for the manufacture of gas, and therefore it enjoyed a monopoly in this branch of business. Those who were induced to fit their houses for the introduction and use of gas could look only to this company for their supply, and it was upon its proffers and in accordance with its prescribed terms and rules that the necessary tubings and fittings were placed in their houses. In considering the question of the obligation of a party or company of this character to continue the supply of gas to a customer, such matters cannot well be overlooked. It is very clear in this case that the gas was cut off from the building No. 465, not because the plaintiff had failed to pay for the gas furnished to it as charged by the company,— — 15 — not because it was necessary to do so in order to protect tbe works against abuse or fraud, or for the purpose of repairs, but solely because the plaintiff failed or refused to pay for the arrears of gas to house No. 461. If the defendant had no right to withhold the gas on this account, then its act in severing the service pipe was a violation of the contract for which the plaintiff was entitled to recover. Does this appear í The contracts for the two houses were separate and distinct, and in no wise dependent.’ They were entered into at different times, each for its distinct property. The bills had been made out and rendered separately. Each house had its own meter. The terms in one case wore different in some respects from those in the other. Eor the failure to discharge the bill for arrearages on lot No. 461, the gas to that property had been cut off, the company availing itself of its right to do so, reserved in the terms of the contract. The plaintiff had complied with all the terms in the contract respecting the house No. 465, and the defendant continued to manufacture gas for the public, and there was no legal hindrance to supplying it to the property in question. The non-payment on one house and contract constituted no ground, upon a proper construction of the contracts, as this Court thinks, for withholding the gas from the other house. It is our opinion, viewing the chartered powers of the defendant, the peculiar nature of the article to he supplied, the peculiar mode of furnishing it, and the exclusive control which the defendant possessed in its manufacture for the public use, that the defendant was hound by the contract to furnish gas to one who had made the necessary preparation and incurred the expenditure for its use, and who had contracted for its introduction hy signing the terms and regulations of the company as long as the company manufactured the article for the public use, and the' customer paid for the supply to the property described in the contract, and complied with its other terms. — 16 — We are also of opinion that where several contracts are made between the same parties for different pieces of property, each requiring its own meter, as in this case, a failure to comply with any terms in relation to one, furnished no excuse or ground, to the company to withhold the gas from the other. As long as the terms in regard to the latter are complied with, the company, continuing its manufacture, is^ bound to continue the supply of gas to it. Without adopting or rejecting the views of the Court of Common Pleas in England, in the case of the Hoddison Gas & Coke Company vs. Hazelwood, 95 Eng. C. L. Rep., 239, relied upon by the appellant in this case, it is sufficient to say that in this case there is an express contract in writing be-between the parties, and the right to discontinue does not depend upon circumstances and facts from which to imply the existence of a contract and its terms, as in the reported case. It would be going very far for this Court to lay down the principle that the company can discontinue when its convenience or caprice may dictate, even after notice. We would not be prepared to advance such a doctrine even in the case of an implied contract, when one of the parties enjoys, in effect at least, a chartered monopoly from the sovereign power to deal in an article of public use and benefit, and when the citizen, designed to participate in the benefit, has adapted his premises to its introduction, avails himself of the proffered advantage, and complies with all the just and legal requirements of the company. Some stress was laid upon the conduct of the appellee in reference to the meter, as constituting a breach of the contract by him in the first place and putting it out of the power of the company to continue to him the flow of gas afterwards, and therefore the breach complained of could not be insisted upon. It will be remembered that the removal of the meter was determined upon and attempted by the company as one — 17 — means of cutting off tbo gas for not paying the bill in arrears on house No. 461, and tbo plaintiff had been so notified. The company then resorted to the other mode of accomplishing the same thing, and it cannot ask to be shielded from responsibility by any conduct of the plaintiff which he may have interposed for his protection against an act which the company had no right to do. Resides, the testimony of Mr. Brown, the Secretary of the company, is a complete answer to the ground taken, and that was, “ that the reason, and only reason, why the service pipe to house No. 465 was cut, was the failure of the plaintiff to pay for the gas supplied to house No. 461.” ¥e are therefore of opinion that the act of the appellant in cutting off the gas from the premises No. 465, for the cause assigned, was unauthorized by the terms of the contract, and was a breach of its provisions, for which the appellee, who was the plaintiff below, was entitled to recover, and that the instruction of the Court below' was correct. We see no objection to the rule of damages as laid down in the Court’s instruction. There wtU3 evidence that the property was a good business stand, calculated to command, with the advantages of water and gas, a certain rent, wdiieh would bo materially diminished by being deprived of either, and that to restore the property, by cutting off oven the projections of the pipes into the rooms, should the owner not choose to remove the pipes themselves, w'ould be attended with a certain expense. The condition which the company asserted as the only one upon which gas would be restored to the premises, was one which it had no right to impose; and unless the company chose to recede from this position, the owner, his tenant or alienee, could avail himself of the improvement only by a compliance with an unauthorised and illegal demand. This operated to depreciate the property to a value below that of surrounding premises which — 18 — enjoyed the privileges and benefits of the improvement. Tins depreciation, in case of sale or lease, would therefore be a proper and fair element in the estimate of damages. (Decided May 10th 1866.) The residue of this branch of the instruction is not very clear as to its precise meaning; but the jury had a right to consider the costs of restoring the premises in any of the modes- covered by the proof. The disuse of gas would naturally lead to a change in the arrangements of the house, more or less expensive* and the cost of which, under the circumstances of the case, the jury were at liberty to- consider and allow. There being no error in the instruction given by the Court below, the judgment will bo affirmed. Judgment affirmed.