Clay v. Chesapeake & Potomac Telephone Co.

• Decision Date: 07 August 1950
• Docket Number: No. 10315.,10315.
• Citation: 87 US App. DC 284,184 F.2d 995
• Parties: CLAY v. CHESAPEAKE & POTOMAC TELEPHONE CO.
• Court: U.S. Court of Appeals — District of Columbia Circuit

87 US App. DC 284, 184 F.2d 995 (1950)

CLAY v. CHESAPEAKE & POTOMAC TELEPHONE CO.

No. 10315.

United States Court of Appeals District of Columbia Circuit.

Argued March 17, 1950.

Decided August 7, 1950.

Mr. Robert H. Driskill, Washington, D. C., with whom Mr. Lester Wood, Washington, D. C., was on the brief, for appellant.

Mr. Karl Michelet, Washington, D. C., with whom Mr. Michael J. Keane, Jr., Washington, D. C., was on the brief, for appellee.

Before PRETTYMAN, BAZELON and FAHY, Circuit Judges.

BAZELON, Circuit Judge.

Plaintiff¹ was engaged part-time in the business of supplying orchestras for dances, weddings and banquets. One of the two telephones at his home, Georgia 6012, was used for this business and was advertised in the classified directory. When plaintiff's wife secured employment in downtown Washington and was no longer able to take calls at the Georgia number, plaintiff requested that the advertised number be reassigned to his wife's place of employment. Although his request was denied, because it involved a transfer outside the Georgia exchange area, he was assured by the Company that the same result could be accomplished by its not assigning the Georgia number until a new directory appeared. Meanwhile, all calls to the old number were to be referred to the telephone at the new location. According to plaintiff's allegations, he relied upon the Company's assurance that the above would be done, abandoned any attempt to find an alternative solution, contracted for the new number, and continued to pay the charges for his advertisement of the Georgia number. After about five months, however, the old number was reassigned to someone else (no directory publication intervening), and calls to that number were no longer referred to plaintiff. Notice to the Company of the interruption in reference service, which lasted 48 days, resulted in a second assurance that calls to the old number would be directed to plaintiff — this time by means of a "split reference" service. Briefly, this entailed the following: When the old number was called, an operator would answer and inquire which of the two parties was wanted and then refer the call to the proper party. Despite its prior assurances to plaintiff, the Company acceded to complaints from the person newly in possession of plaintiff's former number and withdrew the "split reference" service without notice to plaintiff after it had been in use for ten days. Once again, plaintiff was promised that the error would be corrected, and thereafter there were no difficulties. But by this time, according to plaintiff's allegations, his customers no longer sought him out and his business was greatly damaged.

Plaintiff brought suit against the Company on two counts — one in contract, the other in tort. Summary judgment was awarded against him below on both counts, the court stating in its opinion that "there is no cause of action for damages. The Court does not feel that there is any breach of contract shown or any tort." Although not entirely clear, it seems to us that the court ruled not that plaintiff's damages were de minimis, but rather that the pleadings, affidavits and depositions on file demonstrated that the Company had not breached any duty owed by it to the plaintiff. If it were once assumed that the Company had incurred an obligation to provide the reference service to plaintiff, summary judgment for the Company would be precluded, for there is no dispute that such service was interrupted several times and ultimately discontinued.²

As we view the situation, there was a bilateral contract, the Company promising to furnish reference as well as ordinary service, the plaintiff promising to take and to pay for the new number. The Company mistakenly contends that there is no contract because it, the promisor, has received no valuable consideration. It is elementary contract law that neither money nor benefit moving to the promisor is essential to a contract; consideration may consist as well of detriment to the promisee. The essence of consideration, however, at least as viewed in the American Law Institute, Restatement of Contracts § 75, is that it is a bargained-for equivalent. Thus, plaintiff's single promise to take and to pay for the new phone was adequate consideration for any number of promises or performances on the other side.³

The only possible bar to the Company's liability would be that its agent had acted outside the scope of both his express and apparent authority when he promised reference service to plaintiff at no extra charge. There can be no doubt, however, that the Company's representative was acting within his authority, for the promise of reference service accorded with the Company's customary practice in such situations.⁴ If plaintiff had thought the Company had not obligated itself to supply reference service as part of the consideration for his taking the new phone, he might have done all the things retrospectively and belatedly suggested by the Company to prevent loss of customers. Thus, he might have informed those he knew that his telephone number had been changed. And to avoid the possibility that new customers might be prematurely lost or misdirected, he might have retained the old number and forborne entirely from taking the new phone.

The Company also assumes that unless a specific charge could be made for the reference service, i.e., unless its tariff schedule on file with the Public Utilities Commission permitted such a charge, the Company could assume no obligation to perform it. Such a view disregards the obvious fact that public utility status alone does not deprive a company of the power to contract.⁵ If followed, it would immunize the Company from liability for any of the incidental obligations incurred on its behalf by agents acting within their express or apparent authority. The root of the error in this contention is its failure to recognize that contractual duties may be assumed by the parties without regard to public obligation, so long as they contravene neither law nor dominant public policy. So here, although we make no effort to decide whether or not the Company was obligated, by virtue of its public utility status alone, to supply reference service to those who change phones during the period between directories, we see no reason why it could not contract to provide such service. Nor do we see any element of discrimination in a contract with one subscriber for a service which is customarily offered to all similarly situated subscribers.⁶

Since we find that the Company assumed the obligation to furnish reference service to this particular subscriber, there is no need to discuss the tort question of what its responsibility would be if there were no contract.

We hold that, in the present posture of the case, the undisputed facts show that the Company contracted to provide reference service to plaintiff and subsequently breached such contract. The award of summary judgment to the Company was therefore improper.

Reversed and remanded for action in accordance with this opinion.

PRETTYMAN, Circuit Judge (dissenting).

I disagree with my brethren in this case. The trial court said: "The Court does not feel that there is any breach of contract shown * * *." I agree with that.

A few facts must be noted. They are not in dispute. Plaintiff was a full-time Government employee. He was also a sundown orchestra broker, booking bands for parties, meetings, etc. Prior to July, 1947, his wife was not employed. They had two phones in their home, Georgia 6012 and Taylor 1381. Plaintiff advertised in the classified section of the telephone directory, showing the Georgia number and also showing the Taylor number as his night, Sunday and holiday number. In July, 1947, Mrs. Clay obtained daytime employment in a downtown office. They then had a phone, National 3257, installed at her office desk. So we have three phones involved, a Taylor number which remained untouched throughout, a Georgia number which was taken out, and a National number which was installed. The Taylor number would not answer to a call in the daytime, and the National number would not answer to a call in the evening.

The contract which plaintiff says he made with the Company was that all calls to him at the Georgia number be transferred to the National number. But he testified that "I can't prove that anyone called" the Georgia number and was not transferred. Later he testified that he had written statements from two persons who called him at the Georgia number and could not get him. But those persons said they called at 7:30 p. m. and at 7:50 p. m., respectively. If those calls had been referred...