Franklin Tel Co v. Harrison
Decision Date | 16 May 1892 |
Citation | 36 L.Ed. 776,145 U.S. 459,12 S.Ct. 900 |
Parties | FRANKLIN TEL. CO. et al. v. HARRISON et al |
Court | U.S. Supreme Court |
STATEMENT BY MR. JUSTICE HARLAN.
Mr. Justice HARLAN, after stating the facts in the foregoing language, delivered the opinion of the court.
This suit was brought to obtain a decree restraining the appellants, the defendants below, from terminating or in any wise interlering with the use by the appellees, the plaintiffs below, of a telegraph wire upon the poles of the defendants between Philadelphia and New York, and requiring the defendants to maintain such wire in good working order for the use of plaintiffs and their licensees.
The plaintiffs base their claim to this relief upon a written contract made in 1867 with the Franklin Telegraph Company, a Massachusetts corporation, acting for itself and other companies. As the case depends upon the construction of that contract, it is given in full, as follows:
'Memorandum of agreement made this 21st day of May, 1867, by the Franklin Telegraph Company for their own account, and on behalf of the Insulated Lines Telegraph Company, of the first part, and Thomas Harrison, M. Leib Harrison, John Harrison, George L. Harrison, Jr., and Thomas S. Harrison, trading as Harrison Brothers & Co., manufacturing chemists of Philadelphia, of the other part:
'The party of the second part, however, agree that no assignment by them of their right under this contract shall give their assignees the right to demand a lease of the said wire after the expiration of the ten years, which right is to be a personal privilege of the party of the second part, or of that firm for the time being.
'It is further agreed that the right of giving the use of the wire to four other parties shall be exercised by the party of the second part or their assignees only by giving the same to any person or firm not being a telegraph company, a banker, or stock or exchange broker, or railroad company.
'And in case the party of the second part shall procure, a charter to carry on the business they are now engaged [in,] or a similar business, the privileges and rights of the party of the second part shall inure to said corporation in like manner as if such corporation had been named as the party of the second part herein.
'In case of any disagreement on that or any other point embraced in this contract, the decision of the same shall be left to two disinterested persons mutually chosen by the parties hereto, with a right to call in a third as umpire, whose decision shall be final.
'In case those objections are held valid by the arbitrators, and not acquiesced in by the parties of the second part, the party of the first part reserves the right to purchase the said wire at a fair valuation, to be determined by referees in the same manner as any other matter in this agreement; with the above exception, the party of the second part has the right of transfer.
'No change in the firm or firm name of the party of the second part, or those interested through them, by death or retirement, or by addition of members to said firm, or from any other cause, shall vitiate the right or title of the party of the second part under this contract, or destroy its continuance in full force to such new firm, and the members thereof, as if they were named herein.
'In case of a violation of this contract in this respect by the party of the second part, or their licensees, they shall respectively pay the parties of the first part four times the current rates of similar messages and the expenses of recovering the same, as liquidated damages; and if this should continue, and be found by arbitration to have been intentionally persisted in, it shall terminate this contract against the offending party, whether Harrison Bros. & Co. or either of their licensees.
'It is agreed by the Franklin and Insulated Lines Telegraph Companies that no debts at present made or hereafter contracted shall in any way affect or injure the rights of the parties of the second part under this agreement, or impair their title to the wire put up by them on the poles of said companies.
'In case the said wire shall at any time be out of order, or incapable from any cause of being used, the parties of the first part will transmit the messages of the party of the second part and their licensees from any of their offices to and from New York and Philadelphia in regular turn, with all other messages received for transmission, free of all charge and expense.'
The plaintiffs are the successors in business of Harrison Bros. & Co., parties to the above contract, and entitled to all the rights conferred, and subject to all the liabilities imposed, by its provisions.
The Franklin Telegraph Company, June 14, 1876, leased all its property and franchises to the Atlantic & Pacific Tele- graph Company, a corporation of New York, for the term of 99 years from May 1, 1876; and on the 19th day of January, 1881, the latter corporation sold and transferred all its property and franchises (except the franchise to continue its corporate existence) to the Western Union Telegraph Company.
The plaintiffs, at their own expense, put up the required wire on the poles of the Franklin Telegraph Company between New York and Philadelphia. After May 21, 1877,—10 years from the date of the above contract having expired,—they enjoyed its use, and paid to the Atlantic & Pacific Telegraph Company the stipulated sum of $600 per annum.
On the 20th of August, 1880, the plaintiffs received from the Atlantic & Pacific Telegraph Company a communication, in which it was said:
To this the plaintiffs replied: ...
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