Hess v. Iowa Light, Heat & Power Co.

• Decision Date: 28 September 1928
• Docket Number: 38789
• Citation: Hess v. Iowa Light, Heat & Power Co., 207 Iowa 820, 221 N.W. 194 (Iowa 1928)
• Parties: J. P. HESS, Appellant, v. IOWA LIGHT, HEAT & POWER COMPANY, Appellee
• Court: Iowa Supreme Court

221 N.W. 194

207 Iowa 820

J. P. HESS, Appellant, v. IOWA LIGHT, HEAT & POWER COMPANY, Appellee

No. 38789

Supreme Court of Iowa, Des Moines

September 28, 1928

REHEARING DENIED FEBRUARY 15, 1929.

Appeal from Carroll District Court.--R. L. MCCORD, Judge.

Affirmed.

B. I Salinger, for appellant.

Price & Burnquist and Ralph Maclean, for appellee.

OPINION

The nature of the action and the requisite facts are stated in the opinion.--Affirmed.

Per Curiam.--The plaintiff is now, and has been for many years, engaged in the banking business in the city of Carroll.The defendant, a corporation, is a public utility company, engaged in the business of furnishing electricity for lighting and heating purposes.The defendant company was preceded by the Carroll Light & Heat Company, a corporation, which was engaged in the same business.The Carroll Light & Heat Company is spoken of in the record as the "Long interests" and the Iowa Light, Heat & Power Company as the "Hooper interests," of which the "U. G. I." became the owner in 1925.Prior to November 10, 1915, the Carroll Light & Heat Company sold all of its property, and the same, with the capital stock of said corporation, was transferred to a Boston syndicate, and thereafter, the Iowa Light, Heat & Power Company was incorporated.The plaintiff had a contract with the Carroll Light & Heat Company whereby, for his becoming an officer of said company, and giving to it "friendly aid,"he was to receive from said company electricity for heating and lighting his home.The plaintiff was a stockholder, the treasurer, and a director of the Carroll Light & Heat Company at the time of the aforesaid sale and transfer.It is not shown by the record how soon after said sale and transfer the Iowa Light, Heat & Power Company was incorporated.It appears that Hooper was president of the company that was dispensing electricity in November, 1915.The plaintiff testified as follows:

"When Mr. Hooper got to the helm, I mentioned the fact to him that I had free light and free heat with the old company, and asked him what he expected if I served as an officer and, of course, gave friendly help.He says, 'You shall have the same.'And he walked back to his office,--that was in the forenoon,--and in the afternoon he mailed me a letter.It is the letter copied in my petition, and which confirmed the understanding I had with Hooper."

The following is the letter:

"Carroll, Iowa, November 10, 1915.

"J. P. Hess, Carroll, Iowa.

"Dear Mr. Hess: I write to confirm understanding had with you whereby in consideration of your services as director of the Carroll Light & Heat Company, you are to receive such light and heat as you may require for your personal use, free of charge.

"Lindsey Hooper, President."

(The italics are ours.)

The plaintiff served as treasurer of the Iowa Light, Heat & Power Company for about two years after 1915, but has never been a director of said corporation.The plaintiff received electricity for light and heating purposes until the time of the commencement of this action.On June 19, 1922, the plaintiff received a letter signed by Hooper, as president, in which he states:

"It has been brought to my attention that the company is still furnishing you with light and heat for your personal use, without charge.On referring to a letter which I wrote you under date of November 10th, 1915, it appears that the understanding had was to the effect that as compensation for your services as director of the Carroll Light & Heat Company you were to receive light and heat for your personal use gratis.As you appreciate, the Carroll Light & Heat Company went out of existence sometime ago and you have been relieved from your services in connection therewith for some time past.We therefore write to ask if you can conceive any reason why this company should make an exception in your favor."

To the aforesaid letter the plaintiff made reply, stating therein that he declined to agree to any abrogation of his contract.

After the "U. G. I." obtained control of the utility company, it sent the plaintiff a statement for the amount claimed by the company for electricity furnished the plaintiff for the month of December, 1925.The plaintiff refused payment, and wrote the company, claiming that his contract was still in force, and suggesting a friendly suit by the company, in which it should ask recovery for the light and heat which he claimed that the company was to furnish him under said contract.To plaintiff's letter the company replied, stating:

"We have concluded that at the end of the present heating season, we will furnish you no more heat under the present arrangement, thus giving you ample time during the summer months to install your own heating plant, or take our service at the same rates as other consumers pay."

And further stating:

"If you feel warranted in so doing, you can commence your action against us to restrain us from carrying out what we herein propose to do."

The plaintiff then began this action, alleging in his petition that the Carroll Light & Heat Company orally agreed with plaintiff that he should give aid to the standing of the Carroll Light & Heat Company by becoming one of its directors, and that, in consideration of his becoming a director, and otherwise aiding the standing of said corporation, plaintiff was to receive such light and heat as he might require for his own use, free of charge, which arrangement was confirmed by the letter of November 10, 1915 hereinbefore quoted; that, in accordance with said understanding, the Iowa Light, Heat & Power Company, the successor of the first named corporation, has continued to furnish plaintiff, for his personal use, the electric light and heat covered by said understanding, and that, unless restrained by the action of the court, the defendant will insist upon payment of said service, and, upon failure thereof, the shutting off of the light and heat from the dwelling house of the plaintiff.He prays that a writ of injunction issue, restraining the defendant from breaking its said contract, and from collecting or attempting to collect from plaintiff pay for the furnishing of such service to the plaintiff, and from in any way discontinuing said service.The defendant relies upon numerous defenses, among which are the following: lack of consideration; inadequacy of consideration; that the contract is void because it is...