Brush Electric Light & Power Co. of Montgomery v. City Council of Montgomery

• Decision Date: 09 April 1897
• Court: Alabama Supreme Court
• Parties: BRUSH ELECTRIC LIGHT & POWER CO. OF MONTGOMERY v. CITY COUNCIL OF MONTGOMERY.

21 So. 960

114 Ala. 433

BRUSH ELECTRIC LIGHT & POWER CO. OF MONTGOMERY v. CITY COUNCIL OF MONTGOMERY.

Supreme Court of Alabama

April 9, 1897

Appeal from circuit court, Montgomery county; John R. Tyson, Judge.

Action by the Brush Electric Light & Power Company of Montgomery Ala., against the city council of Montgomery, to recover for the use of certain electric lights furnished by plaintiff to defendant. There was judgment on a verdict for defendant, and plaintiff appeals. Reversed.

R. B Snodgrass was introduced as a witness in behalf of the defendant, and he stated that he had been city clerk or clerk of the city council for a long time; that he held said position on December 12, 1887, and has held it ever since then; that, by virtue of his office, he was keeper of the records and proceedings of the city council of Montgomery that he had looked over the books of proceedings or the journal of the city council from the 1st day of January 1887, to ascertain whether or not the council ever authorized the placing of more than 100 lights on the streets of the city of Montgomery; he could not find anything on the minutes to that effect. PLaintiff objected to the question drawing forth this answer, and moved to exclude the answer from the jury, the objection to the question and the motion to exclude being based upon the ground that it was irrelevant and illegal, and that it was not necessary for the city council to have expressly authorized the placing of the extra lights; but said objection and motion to exclude were both overruled by the court, and to said ruling of the court the plaintiff then and there duly excepted. Witness further stated that he entered the proceedings promptly as they are had on the record. He further testified that, at the time of the making of the contract and for some time after and at the time of the conversation, Mr. B. Dunham was president of the Brush Electric Light & Power Company and as such signed the said contract. Witness was then asked by defendant if, while Dunham was president, as aforesaid, he stated to Dunham that there was great complaint by citizens in parts of the city that the city was not lighted as well as by gas, and, if so, what reply Dunham made. To this question plaintiff objected, upon the ground that Dunham had no authority to bind the company by any declarations he may have made; and, secondly, that said question was irrelevant and illegal. But the court overruled said objection, and permitted the witness to answer, and to this ruling of the court plaintiff then and there duly excepted. In response to said question, witness stated that, "about 3 or 4 months after they commenced putting in the lights, Dunham and Gesner came into his office, and commenced a conversation about the lights. I informed him that there was a great deal of complaint by citizens in parts of the town that it was not lighted as well as by gas. Dunham said, 'We have placed extra lights, and will continue to put in as many extra lights to light the city as it was by gas."' Witness further stated: That all bills against the city were presented to him, and came through his office. That, under the system existing at that time, bills were presented to him before the meeting of the council each month, and they were read in the council chamber by the finance committee, and passed or rejected, or referred to some committee, as the case might be. If passed for payment, he issued warrants on the treasurer for their payment, who paid the drafts. That the first bill for the extra lights claimed to have been furnished was for the month of January, 1892, and that thereafter bills for extra lights, 16 1/2 lights, at 42 1/2 cents per lamp per night, were regularly and for each month presented for payment. The bills for these extra lights were never paid, and never recognized as a liability by the city council, but payment was made each month regularly for 100 lights, and only 100 lights. On cross-examination witness stated that the city council just took no action on the claim, and bills for the extra lights claimed to have been furnished, and "that they did not consider that they were liable,-ignored them." Plaintiff then moved to exclude all the testimony in reference to the question as to whether the city was as well lighted by electricity after the contract between plaintiff and defendant as it had been before lighted by gas, upon the ground that the contract itself does not guaranty anything of the sort, and upon the further ground, if the contract did so guaranty, the evidence shows that, if there is a breach of this guaranty, it has been waived by the city by the payment of the 100 lights, which are not the subject of this suit, and which are not in controversy, and upon the further ground that, if such evidence was admissible and relevant under any circumstances, it could not be introduced under the general issue, but as matter of special plea. The court overruled this motion to exclude, and plaintiff then and there duly excepted to said ruling of the court. Plaintiff then moved to exclude all matter of evidence in reference to the candle power of the 100 arc lights-First, because the contract itself provides a remedy which is not in recoupment; second, because the 100 lights are not in controversy or the subject of this suit, but, if so, that, by the payment by defendant for said lights, there had been a waiver on the part of the city of any breach of said guaranty; third, because such a defense could not be set up under the general issue, but is matter of special plea. The court overruled this motion to exclude, and the plaintiff then and there duly excepted to said ruling of the court. Upon the hearing of all the evidence, the court, at the request of the defendant, instructed the jury as follows: "If the jury believe the evidence, they must find for the defendant." To the giving of this charge the plaintiff duly excepted. There were verdict and judgment for the defendant. The plaintiff appeals, and assigns as error the several rulings of the trial court to which exceptions were reserved.

John G. Winter, for appellant.

Graham & Steiner, for appellee.

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 17 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 1st day of January, 1888, to furnish and maintain for the use and benefit of the city of Montgomery 100 Brush or United States electric lights, or other standard lights, of 2,000 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 guarantied and warranted that the 100 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 periods of five years, beginning on January 1, 1888, and to pay therefor to said party of the second part, at the rate of forty-two and a half (42 1/2) 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." The plaintiff furnished and maintained 92 arc lights for the streets of the city, which were located as designated by the proper city authorities, and 194 lights for the public buildings, the equivalent of 24 1/2 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 100, according to the terms of the contract. For the number in excess of 100, the plaintiff made no demand of payment until November, 1891. 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 100. The council refused to permit any of them removed, insisting that the contract stipulated that the territory or streets of the city should be as well lighted as it had been previously by gas; that the 100 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...