Central Louisiana Power Co. v. Thomas

• Decision Date: 03 January 1927
• Docket Number: 26054
• Citation: 110 So. 673,145 Miss. 352
• Court: Mississippi Supreme Court
• Parties: CENTRAL LOUISIANA POWER CO. v. THOMAS. [*]

110 So. 673

145 Miss. 352

CENTRAL LOUISIANA POWER CO. v. THOMAS. ^[*]

No. 26054

Supreme Court of Mississippi

January 3, 1927

Division B

Suggestion of Error Overruled Jan. 31, 1927.

APPEAL from chancery court of Pike County, HON. R. W. CUTRER Chancellor.

Suit by C. J. Thomas against the Central Louisiana Power Company for injunction and damages. Decree for plaintiff, and defendant appeals. Reversed and judgment rendered.

Reversed. Suggestion of error overruled.

Green, Green & Potter, for appellant.

I. Appellee's check given for power being bad, the appellant acted properly in cutting off the power irrespective of all else.

(a) Only those who come into equity with clean hands can have relief. In giving this check appellee was guilty of a violation of the law and can have no relief predicted thereon.

(b) But having given a bad check there was no payment of the precedent bill thereby and all rights open. Odeneal v Henry, 70 Miss. 181; College Point Boat Corp. v. U.S. 267 U.S. 12, 69 L.Ed. 490.

"If the acceptance of the check was induced by fraudulent representations, it does not constitute payment." Martin v. Pennock, 2 Pa. St. 376. See, also, Wileman v. King, Miss. , 82 So. 265.

Thus with this bad check as the sole predicate for payment there was no payment; and being no payment, there was a default existing at the time that the service was discontinued that entitled the appellant to cut the service off. Cumberland Tel. & Tel. Co. v. Magruder, 92 Miss. 716; Baker v. Telephone Co., 85 Miss. (1904) 486; Baker v. City of Water Valley, 87 Miss. (1905) 737; Telegraph Co. v. Hobert, 89 Miss. 259 (1906); W. U. Tel. Co. v. Teague, 78 So. 616; Meridian Light & Ry. Co. v. Steele, 83 So. 415. See also McDaniel v. Springfield Water Co., 48 Mo.App. 273; Sheward v. Citizens Water Co., 90 Cal. 635, 27 P. 439; Shiras v. Ewing, 48 Kan. 170, 29 P. 320; Irwin v. Rushville Telephone Co., 161 Ind. 524.

Hence, when Thomas was so in default, he could not complain of the discontinuance of service, because the check which he gave was not payment and was not paid until long after the service was discontinued. A bad check, in violation of the laws of Mississippi, is not a valid predicate for the issuance of a mandatory injunction.

(c) A mandatory injunction improperly issued without notice on a fundamentally untrue statement of appellee necessitates dissolution. It affirmatively appears that appellee had been disconnected prior to the date of the institution of a suit and the obtaining of the injunction, so the injunction must be dissolved. Dixon v. Green County, 76 Miss. (1899) 794; Pearman v. Wiggins, 103 Miss. 4. See also, Miles v. Fink (Miss.), 80 So. 534.

Here appellant had not received the revenue to which it was entitled and had failed to receive such revenue by the fraudulent act of appellee in executing and delivering a bad chack. Now, if there is a fundamental misstatement made by a party obtaining an injunction, upon the court being advised thereof, the injunction will be dissolved. 32 C. J. 403, 14 R. C. L. 331. Here appellee failed to disclose this total failure of appellee to do that which he should have done--pay what was just and owing. Failing therein, appellee misrepresented that which he had done; and misrepresenting, must not therefrom profit.

(d) Injunction not granted against wrongs already perpetrated. McDaniel v. Hurt, 92 Miss. 197, 41 So. 381.

II. Appellee is not entitled to recover because of a contract declared on and not proved.

The only liability of appellant could be under its duty at law as a public servant. Carnaggio Bros. v. Greenwood, 108 So. 141; Burke v. Water Valley, 40 So. 820, 87 Miss. 732; Ginnings v. Meridian, 56 So. 450, 100 Miss. 507. But as herein shown, there is no such liability as could be hereunder and herein asserted.

III. Contract did not call for continuous current, and contingencies beyond control of appellant imposed no liability.

Parties may, of course, assume absolute obligations, if they are so minded, but such assumption must be clear. 13 C. J. 635; North German Lloyd v. Guaranty Trust Co., 244 U.S. 22, 61 L.Ed. 965.

IV. The decree should be reversed on the facts.

There was no agreement on the part of appellant to accept this claim in full for unliquidated damages at its face of fifty-six dollars. Appellant never consented so to do, and without appellant's consent, under the universal rule, there could be no satisfaction of the debt--no payment of it.

Appellant was not compelled to admit that appellee could be judge in his own case, and that the judgment fixing the fifty-six dollars was a satisfaction of the admitted claim of the appellant to the extent of that amount, and that the claim for two hundred nine dollars and forty-five cents was reduced by appellee in his own case to one hundred fifty-three dollars and forty-five cents. The precise point was decided in Rushville Telephone Co. v. Irwin (1901), 27 Ind.App. 62 at 67; Irwin v. Rushville Telephone Co., 69 N.E. 259 at 261; Goodwin v. Cadwallader, 87 N.E. 694. This rule so established in Indiana has had the sanction of the United States supreme court in Southwestern T. & T. Co. v. Danaher, 238 U.S. 489, 59 L.Ed. 1422. It will be noted that the service of the appellant was interstate commerce; and, therefore, the opinion of the United States supreme court is absolutely controlling.

The same rule was applied in Buffalo County Tel. Co. v. Turner, 118 N.W. 1064 (Nebr., 1908), where it said: "A rule of a rural telephone company that telephone rent be paid six months in advance is reasonable; and a subscriber refusing to comply therewith, is not entitled to service from the company . . . Nor will the existence of a counterclaim or set-off asserted by the subscriber, a large part of which is exorbitant and illegal, justify him in demanding that he be given service without prepayment of changes as other subscribers pay." See, also, Southwestern Tel. Co. v. Murphy, 140 S.W. (Ark., 1911); Jones on Telegraph and Telephone Companies, section 352 at page 337; 2 Joyce on Electric Law (2 Ed.), section 687 at page 1100.

We have found no contrary authority which denies the right of a public service corporation, whose bills are small, whose customers numerous, whose master the public is, to demand that they be paid their charges in cash, and one who has a demand against it can have recourse to the courts but the companies are not compelled to recognize such demands as cash.

V. Recoupment is not allowable.

Appellee claimed that during the prior month he had been shut down for six days, so that appellant was liable for loss of profits aggregating fifty-six dollars, which amount the appellee undertook, without the consent of the appellant to deduct from the amount confessedly due the appellant. Thereby, appellee took into its own hands the computation of the amount of compensation it would pay for the rendition of the service, and demanded that appellant acquiesce in the determination made by the appellee and confess (1) that the contract was absolute and obligatory; (2) that the contract had been breached by reason thereof by appellant; (3) that the unliquidated damages in the form of profits therefrom arising aggregated fifty-six dollars. Could appellee as against a public service corporation make such an exaction? See Birmingham Ry., Light & Power Co. v. Littlejohn, 77 So. 570; Carnaggio v. Greenwood, 108 So. 141; Burke v. Water Valley, 40 So. 820, 89 Miss. 732; Cumberland Tel. Co. v. Baker, 37 So. 1012.

As to an unliquidated liability, the appellee assumes to be a judge in his own case and to determine (1) the law as to liability, and (2) the admeasurement of damages. In re Duncan, 139 U.S. 454; Mayer v. San Diego, 41 L. R. A. 764; First Nat'l Bonk v. McGuire, 76 Am. Rep. 600; Ex Parte Ellis, 25 L. R. A. 653; Brown's Legal Maxims (7th Ed.), 166.

The company had just as much right to declare the appellee was not entitled to any amount whatsoever by reason of the acts of God that suspended the service; and even if the company was liable, that the amount of liability did not exceed twenty dollars, as appellee did to declare the liability was fifty-six dollars. Mansfield v. Humphries Mfg. Co., 31 L. R. A. (N. S.) 308.

Price & Price and R. S. Stewart, for appellee.

I. On the date service was discontinued the appellee had paid the bill covering the September consumption of power and was not in arrears for any bill rendered to him at that time or that was due. The record shows as an exhibit a check bearing date of October 17, 1925, for the sum of one hundred fifty-three dollars and forty-five cents, and with this check was sent a debit memorandum of fifty-six dollars for fourteen bales of cotton, the ginning of which the appellee lost because of the failure of the appellant to furnish the power it itself had obligated to furnish, and this was tendered as a settlement of the bill amounting to two hundred nine dollars and forty-five cents.

The appellant knowing that the tender of the check and the debit memorandum were intended as a settlement in full of the bill rendered by it to appellee, and while denying the correctness and the justice of the appellee's demand, accepted the check, deposited it and later collected it.

On October 24 the appellant demanding the payment of the balance of the bill amounting to fifty-six dollars, this being the amount deducted by the appellee for short current or power not furnished, refusing to abide an arbitration of the difference between it and the appellee, and declining to give the appellee a chance to obtain an injunction to test out the justice of his demand highhandedly and arbitrarily cut off the power and refused to furnish appellee the power it had obligated itself to...