Gaslight Co. of Baltimore v. Colliday

• Decision Date: 10 May 1866
• Citation: 25 Md. 1
• Parties: THE GAS-LIGHT COMPANY OF BALTIMORE, v. JOSEPH S. COLLIDAY.
• Court: Maryland Court of Appeals

25 Md. 1

THE GAS-LIGHT COMPANY OF BALTIMORE, v. JOSEPH S. COLLIDAY.

Court of Appeals of Maryland

May 10, 1866

Where several contracts are made between the same parties for different pieces of property, each requiring its own meter as in this case, a failure to comply with any terms in relation to one, furnishes no excuse or ground to the company to withhold the gas from the other.

APPEAL from the Court of Common Pleas of Baltimore City:

This was an action instituted on the 3rd day of January, 1862, by the appellee against the appellant, upon a contract by which the latter agreed to supply the former with gas for certain premises described in the contract. The declaration also contained a count in trespass on the case for damages alleged to have resulted from the act complained of. The facts are stated in the opinion of this Court.

The cause was argued before BOWIE, C.J., and BARTOL, GOLDSBOROUGH and WEISEL, J.

Geo C. Maund and A. Sterling for the appellant argued:

1st. That the contract offered in evidence, to supply the premises No. 465 with gas, was for no definite period and was terminable by either party on reasonable notice, and the facts in evidence were sufficient proof of reasonable notice and the cutting off the supply was in accordance with the contract. Hoddison Gas Co., vs. Hazlewood, 6 C B., (N. S.) 239. (95 Eng. C. L. Rep., 238). And see the Act of 1860, ch. 291, to show that the appellant, legally, has no monopoly as contended by the appellee.

2d. That the contracts in evidence as to the supply of gas, both at No. 461 and 465, constituted an engagement with the plaintiff as an individual to sell him and supply him with gas, furnished or deliverable at two different places for no specified time, and was terminable by defendant on the exhibition of such conduct by the plaintiff, in his dealing with the defendant, as made him an unprofitable and troublesome customer, or such conduct as would justify a refusal to sell goods on running account; and the deliberate refusal of the plaintiff to pay part of his debt to the defendant for gas sold and delivered to him, though at different points of illumination, was a sufficient legal justification to the defendant to decline to supply the plaintiff with more gas, to be delivered in future, until he had paid for that already consumed. Norwich Gas-Light Co., vs. Norwich City Gas Co., 25 Conn. 19. Regina vs. White, 20 Eng. L. & E. Rep., 585, (proving that gas is the subject of larceny, as goods and chattels.) Hoddison Gas Co., vs. Hazlewood, and Act of 1860, ch. 291, supra.

3d. Because the house No. 461 and the house No. 465 being both owned by the plaintiff and occupied by him in the exercise of his own business, the contract to take and supply gas at No 461, entered into in 1857, was a contract to supply gas to another part of the same premises before contracted to be supplied in 1855, and the bills in evidence only show that a separate account was kept for each meter, which was a mere distribution of the machinery for supply, and that the premises were the same, and the default in paying part of the bills due was a default as to the whole premises.

4th. Because, both by the rejection of the defendant's first prayer and by the instructions the Court neglected and took from the jury, the regulation 10, of the company, being part of the contract, that "the Company and its agents shall at all times have free access into the premises lighted with gas for the examination of the apparatus and the removal of the meter," and also regulation 15, "the Company reserves the right at any time to cut off the service pipe, if they shall find it necessary to do so, in order to protect the works against abuse or fraud;" and also the evidence that the plaintiff, before the supply of gas was cut off from No. 465, refused to allow the agents of the defendant admission to the place where the meter was, and prevented them from examining the apparatus as, by rule 10, they had a right to do, and the further evidence that before the supply of gas has been cut off the plaintiff had removed the meter from No. 465, which was the property of the Company, and had detained it from them; and thus, before any of the acts complained of had been done by the defendant, had destroyed the contract by taking away the means of measurement provided by the contract, so that gas could not be supplied to the premises according to the contract, and that the plaintiff had taken possession of and abused the machinery of the defendant. And herein the appellant insists that these acts of the plaintiff, at a time when the defendant had not done any act nor committed any breach of the contract, were a breach of contract on the part of the plaintiff, and constituted a bar to the plaintiff's recovery; that after the removal of the meter by plaintiff they had a right to cut the service pipe, under rule 15, to protect the works from abuse and fraud; that the cutting of the service pipe, after such refusal by the plaintiff to admit the defendant's agents into the premises, and after the meter had been removed and detained by the plaintiff, could not constitute a breach of contract by the defendant, whatever other motive or reason they might have had for such cutting off; and that at the time of such cutting off, the plaintiff had put it out of the power of the defendant to comply with the contract or to furnish gas in the mode of measurement and supply therein provided for. That said acts of the plaintiff were the first breach, and that thereafter the contract could not be insisted on by him. Parker Co., vs. O'Hern, 8 Md. Rep. 197. Harris vs. Bradley, 9 Ind., 166. Haskell vs. McHenry, 4 Cal., 411. Webster vs. Engall, 5 Gilman, 298. 2 Smith's Leading Cases, 27. Chapin vs. Norton, 6 McLean, 500. Wright vs. Haskell, 45 Maine, 489, 492. Allen vs. Webb, 4 Foster's R., (N. H.) 281.

The appellant's counsel also urged that the Court below erred in rejecting the second prayer and in that part of the instruction which relates to the measure of damages, for the following reasons:

That the proper measure of damages, if the plaintiff had a right to recover, was the actual damage the plaintiff had sustained by the deprivation of gas up to the time of bringing his action. That on the contract declared on, and proved, the plaintiff had a continuing right of action if broken; that the contract was with the plaintiff as an individual, and the supply was cut off for reasons personal to him which did not apply to any vendee or lessee of the plaintiff; that the sale or rental by him of No. 465 would have separated the same from any connection with No. 461, and the bill for 461 could not have been enforced against the vendee or lessee of No. 465, and on the evidence the plaintiff's vendee or lessee would have got the gas from defendant, and therefore the acts of the defendant could not affect the value of the property for sale or rent. But the Court leaves it to the jury to say that the house No. 465 was debarred of gas for all future time, and on that assumption to say what would be the depreciation of the value of that house in the market, and this as the mere result of the cutting off proved, and without any evidence that the house was to be debarred of gas for all time.

The appellant's counsel further insisted that the effect of this was to give the plaintiff damages for depreciation, although he might sell the house for its full value, and although he or his vendee might afterwards get the very thing for the want of which damages were awarded, and herein that there could be no "depreciation of the value for sale or rental," if the vendee or lessee could get gas; that the depreciation of value for sale or rent could only occur on the supposition that the company would refuse to contract with Colliday's vendee or lessee to supply him or them with gas, of which there was and could be no evidence, but of which there was evidence to the contrary; and if the vendee or lessee could contract for and get gas he would suffer no loss and would pay Colliday the full value, and he, by sale or rent, could therefore suffer no loss; that the fact that the company had refused to supply Colliday with gas at 465 did not prove or tend to prove that they would refuse to supply his vendee or lessee, but that by the "rules" in evidence it appeared that any new proprietor or tenant had to make a new contract for gas, and Colliday's rights on this contract were not assignable, and did not go with the house; and for these reasons they insisted that the rule of damages was unreal, fictitious, speculative, contrary to law, inequitable and had no evidence to sustain it.

That damages to the permanent value of property are not recoverable when the breach or wrong complained of affects the plaintiff only, and does not affect the property in the hands of a vendee or lessee, and that such damages, while they may be given where the property is affected in the hands of a vendee or lessee, can only be given in actions of tort and cannot be given in an action on a contract, to which the vendee or lessee is no party, and which does not run with the land or pass with the interest therein, or vest any rights in him; for if the things to be got by such a contract are of advantage to the vendee or lessee, he must make a new contract therefor; and that such is the contract in this case, and there was no evidence of any effect on a vendee or lessee, nor could there be in law, but there was evidence to the contrary, which the Court by its ruling refused to allow the jury to consider.

They also urged that the Court below erred in rejecting the second prayer, because:

It being admitted that the bill which Colliday refused to pay was a just bill, if the defendant cut...