G.E. Lothrop Theatres Co. v. Edison Electric Illuminating Co. of Boston

• Decision Date: 28 March 1935
• Citation: 195 N.E. 305,290 Mass. 189
• Parties: G. E. LOTHROP THEATRES CO. v. EDISON ELECTRIC ILLUMINATING CO. OF BOSTON.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

290 Mass. 189

195 N.E. 305

G. E. LOTHROP THEATRES CO. v. EDISON ELECTRIC ILLUMINATING CO. OF BOSTON.

Supreme Judicial Court of Massachusetts, Suffolk.

March 28, 1935

Report from Superior Court, Suffolk County; Donnelly, Judge.

Action by the G. E. Lothrop Theatres Company against the Edison Electric Illuminating Company of Boston. The trial judge found for plaintiff in the sum of $44.90 and reported the case to the Supreme Judicial Court.

Judgment for plaintiff on the finding.

E. A Whitman, of Boston, for plaintiff.

F. M Ives, of Boston, for defendant.

RUGG Chief Justice.

This action is brought to recover amounts collected by the defendant from subtenants of the plaintiff for electricity furnished them at retail rates for which the plaintiff had already paid the defendant at wholesale rates. The defendant before trial filed an offer of judgment under G. L. (Ter. Ed.) c. 231, §§ 74, 75, in the sum of $55, which the plaintiff declined to accept. The case was tried upon a case stated and upon evidence admitted under rights reserved. The finding was in favor of the plaintiff for $44.90 with interest and costs up to the date of the defendant's offer of judgment. The only present issue between the parties relates to damages.

The case stated shows these facts: The plaintiff was lessee of a building in Boston in which it operated a theatre. It contracted for its supply of electricity with the defendant an electric company subject to G. L. (Ter. Ed.) c. 164, and furnishing electricity in Boston and elsewhere. In order to perform this contract, the defendant extended its wires from the street into the basement of the plaintiff's building, where they were connected with the building wiring installed by the plaintiff's lessor and controlled by the plaintiff. For measuring the electricity thus supplied, the defendant installed its meter in the basement in the place known as the meter loop, provided by the plaintiff's lessor. The charges under the contract were in accordance with the defendant's general wholesale rate D. The plaintiff let rooms in its building to tenants. It did not offer or intend to furnish electricity to its tenants. They were expected to purchase their electricity from the defendant. On the application of one such tenant the defendant installed a meter in the meter loop provided by the tenant and supplied that tenant with electricity under its retail rate A, a much higher price than that paid by the plaintiff. On the application of another such tenant, the defendant installed another meter in a meter loop provided by that tenant and supplied electricity to that tenant under its retail rate F, also a higher price than that paid by the plaintiff. The building wiring consisted of two sets of wires, of which one set was connected with the defendant's service wires through the plaintiff's meters and the other set was connected with the defendant's service wires but not through the plaintiff's meters. It was later discovered that the meters of these two tenants were both connected with the set of wires which ran through the plaintiff's meters. Thus the electricity supplied to these tenants, for which they paid the defendant according to their respective meters at retail rates, also passed through and registered on the plaintiff's meter, was included in the plaintiff's bills, and has been paid for by it at its wholesale rate. The fact that the electricity used by the tenants passed through and registered on the plaintiff's meter affected in no way the rate, but only the amount, charged it. According to uncontradicted testimony, the plaintiff paid for the electricity thus supplied to its tenants $44.90 more than it ought to have paid for the electricity used by it at the rate due under its contract, and the defendant collected from these tenants at the retail rates due from them $253.45.

This case was submitted on a case stated supplemented by oral testimony admitted under rights reserved. It appears to have been tried upon the theory that all questions of pleading were waived and that the only question open was whether the plaintiff could recover in any form of action, as is the rule respecting a trial on a case stated. Elliott v. Worcester Trust Co., 189 Mass. 542, 75 N.E. 944; Boston & Maine Railroad v. T. Stuart & Son Co., 236 Mass. 98, 104, 127 N.E. 532; Nowell v. Equitable Trust Co., 249 Mass. 585, 586, 144 N.E. 749. The trial judge reported the case with the provision that if his rulings and finding in accordance therewith constitute error, then the required judgment is to be entered by this court. Subject to these terms, the case will be treated as the parties treated it at the trial.

The writ described the action as in contract. Briefly stated, it was alleged in the first count that the plaintiff entered into a contract with the defendant for a supply of electrical current for premises of the plaintiff at a stipulated rate that the plaintiff has leased certain offices to subtenants from whom the defendant has collected according to meters installed therefor charges for electricity passing through the plaintiff's wiring and already paid for by the plaintiff; wherefore the defendant owes the plaintiff the amounts collected from the subtenants. The second count is for money had and received by the defendant for the plaintiff's use. The trial judge ruled rightly that the plaintiff could not recover under the first count. If it be regarded as in contract, the agreed facts and evidence do not support any such contract. There is nothing to indicate that the defendant agreed with the plaintiff to furnish all the electricity used in the building of the plaintiff. The tenants expected to pay the defendant and were obliged to pay the defendant alone. Boston Ice Co. v. Potter, 123 Mass. 28, 25 Am.Rep. 9. The plaintiff did not offer or intend to furnish electricity to its tenants. The mistake in the connection of the wiring was an innocent one so far as concerns the defendant. It cannot rightly be held on this record that it was due to the negligence of the defendant, or to wrongdoing on its part. Brunelle v. Lowell Electric Light Corp., 188 Mass. 493, 74 N.E. 676. The count for money had and received is broad and includes all money received by the defendant which in equity and good conscience belongs to the plaintiff. Sherman v. Werby, 280 Mass. 157, 160, 182 N.E. 109; Montgomery Door & Sash Co. v. Atlantic Lumber Co., 206 Mass. 144, 155, 92 N.E. 71. It was the intention of the plaintiff and the defendant that the latter should sell electricity directly to the tenants of the plaintiff. The plaintiff's lessor provided a set of wires for this purpose. There was no error on the part of the defendant in collecting from the tenants the contract price for the electricity supplied to them. ...