Martinsburg Bank v. Central Pa. Telephone & Supply Co.

• Decision Date: 13 July 1892
• Docket Number: 142
• Citation: 150 Pa. 36,24 A. 754
• Parties: Martinsburg Bank v. Central Pa. Telephone & Supply Co., Appellant
• Court: Pennsylvania Supreme Court

24 A. 754

150 Pa. 36

Martinsburg Bank v. Central Pa. Telephone & Supply Co., Appellant

No. 142

Supreme Court of Pennsylvania

July 13, 1892

Argued April 19, 1892

Appeal, No. 142, July T., 1891, from decree of C.P. Blair Co., No. 169, in equity, continuing injunction to restrain removal of telephone instrument.

The facts found by the master, Aug. S. Landis, Esq., were, inter alia, as follows:

Plaintiff in 1888, desiring telephone service at Martinsburg, was called upon by defendant's superintendent W. L. Malin who proposed to furnish telephone connection with the Hollidaysburg exchange, provided defendant would procure three other subscribers in Martinsburg. The terms for the first two years were for defendant $100 a year, and for the three other subscribers $60 a year each. Plaintiff's witnesses, who were the other subscribers, testified that the superintendent's verbal offer was that, after July 1, 1890, plaintiff and the others should pay at regular rates, to wit, those paid for services at Roaring Spring, the nearest point then served. Defendant denied the making of such offer, or that there was any regular or uniform rate for service. Further evidence on this point was as follows: On Feb. 3, 1888, plaintiff's cashier, Nicodemus, wrote defendant's superintendent: "We have fully considered your proposition, that is, $100 per year for two years, after that time at the regular rates, and . . . we accept it." The superintendent replied by letter dated Feb. 6: "I think your acceptance of my proposition closes the telephone matter for Martinsburg. . . . I have referred it to our general office and hope for orders in a few days to go to Martinsburg and close contract."

The superintendent afterwards prepared, upon defendant's usual blank, a form of contract, which was signed by plaintiff's president on Feb. 25, 1888. It requested defendant to furnish a telephone for plaintiff's use until July 1, 1890, and thereafter until the agreement should be terminated by thirty days' notice from either party to the other, the terms being $8.33 per month in advance, and continued thus: "This request becomes a binding contract so soon as accepted by the manager of the exchange, by his signature hereto, or by furnishing said instruments. Its terms cannot be varied or waived by any representations or promises of any canvasser or other person, unless the same be in writing and signed by the manager."

After July 1, 1890, plaintiff offered to pay four dollars a month, but defendant demanded five, which was the uniform rate paid by subscribers in Martinsburg, and, on its refusal threatened to remove the telephone on thirty days notice, unless paid as per contract. Plaintiff then filed its bill, and an injunction restraining defendant from such removal was granted and continued, and referred to the master, who found specifically (1) that the evidence was clear, precise and indubitable that there was an accident or omission in the written contract of Feb. 25, 1888, and that it violated the manifest intention of the parties; (2) that plaintiff was to pay defendant $100 per annum for the two years ending July 1, 1890, and after that was to pay the usual or regular rates; (3) that such rates were four dollars per month; (4) that the provision in the written contract, that its terms could not be varied except by writing signed by the manager, did not affect the question; and (5) reported a decree accordingly, continuing the injunction and putting the costs upon the parties equally. Defendants filed exceptions to the findings as above, which were dismissed by the court below, DEAN, P.J., and decree signed as suggested. Defendant thereupon appealed.

Errors assigned were (1-5) dismissing exceptions, quoting them; and (6) continuing injunction without limit as to time.

The injunction is limited to continue until the termination of the contract by notice in accordance with its provisions, and with this modification the decree is affirmed. Costs of this appeal as well as the costs below to be paid equally by the parties.

H. M. Baldrige, for appellants, cited, as to prior conversations, Caley v. Hoopes, 86 Pa. 493; Hill v. Schmucker, 1 Woodward 251. As to motive for signing, Spencer v. Colt, 89 Pa. 314; Thomas v. Loose, 114 Pa. 35; Ferguson v. Rafferty, 128 Pa. 314. As to varying terms of printed contract by agent, Advertising Co. v. Meyers, 20 W.N. 388. As to doubtful covenants, Hilliard, Inj., 2d ed., p. 293, § 8, p. 44, § 44; High, Inj., §§ 695, 696, 718, 720.

Martin Bell and John D. Blair, for appellee, cited Warner v. Landis, 137 Pa. 61. As to prior letters modifying contract, Mining Co. v. Jones, 108 Pa. 55. As to printed words in a blank, Grandin v. Ins. Co., 107 Pa. 26; Haws v. Fire Asso., 114 Pa. 431. As to clause against varying terms of printed contract by agent, McFarland v. Kittanning Ins. Co., 134 Pa. 590. As to master's findings approved by court, Kisor's Ap., 62 Pa. 428; Kirby's Ap., 134 Pa. 109; Bugbee's Ap., 110 Pa. 331. As to duty of defendant as common carrier to furnish telephone, Bell Tel. Co. v. B. & O. Tel. Co., 17 W.N. 605.

Before PAXSON, C.J., GREEN, WILLIAMS, MITCHELL and HEYDRICK, JJ.

OPINION

MR. JUSTICE MITCHELL:

It is with some difficulty that we...