Oak Grove Home Telephone Co. v. Round Prairie T. Co.

• Decision Date: 27 January 1919
• Docket Number: No. 13130.,13130.
• Citation: Oak Grove Home Telephone Co. v. Round Prairie T. Co., 209 S.W. 552 (Mo. App. 1919)
• Parties: OAK GROVE HOME TELEPHONE CO. v. ROUND PRAIRIE TELEPHONE CO.
• Court: Missouri Court of Appeals

209 S.W. 552

OAK GROVE HOME TELEPHONE CO. v. ROUND PRAIRIE TELEPHONE CO.

No. 13130.

Kansas City Court of Appeals. Missouri.

January 27, 1919.

Appeal from Circuit Court, Jackson County; Willard P. Hall, Judge.

"Not to be officially published."

Action by the Oak Grove Home Telephone Company against the Round Prairie Telephone Company. Judgment for plaintiff, and defendant appeals. Affirmed.

E. C. Hamilton, of Independence, for appellant.

Ingraham-Guthrie & Durham, of Kansas City, for respondent.

ELLISON, P. J.

The parties to this action are telephone companies covering a limited extent of country. Plaintiff's action was instituted to recover $610.10 for service rendered for defendant. The primary difference between them is the rate which plaintiff charges. There was a written contract whereby plaintiff agreed to charge a rate therein specified, which would make $388.99 due to plaintiff, and that sum was tendered by defendant and deposited in court.

Plaintiff, however, insisted that this contract had been abandoned, and that it was entitled to recover the schedule rates allowed and duly filed with the Missouri Public Service Commission, which were higher than the contract rate; and, that, even though the contract had not been abandoned, the Public Service Commission rate superseded the contract rate.

The trial was had by the court without the aid of a jury, The finding and judgment were for the plaintiff, the amount of which, if plaintiff is entitled to recover at all, is not made a matter of complaint. The amount of such finding after deducting the tender mentioned above would leave due plaintiff a sum less than $200.

The trial court gave several declarations of law and refused some that were offered by each party. These, whether given or refused, need not be considered in detail, since such declaration, when a case is tried without a jury, only serves to show the theory upon which the court acted in rendering judgment for the plaintiff.

Two prominent features of the case stand out in these declarations: One that the contract was abandoned by both parties prior to the service rendered by plaintiff for which it is now endeavoring to maintain this action, and the other is that the schedule of rates Sled with the Public Service Commission and approved by that body superseded the rates specified in the contract. In this connection, for a clearer understanding of the result reached in the trial court, we set out the first two declarations:

(1) "The court declares the law to be that the contract pleaded in defendant's answer was, when made, and continued thereafter to be, subject to the power of the state to fix and regulate the rates to be charged by all persons and corporations engaged in the telephone business, including plaintiff."

(2) "The court declares the law to be that said contract was indefinite as to the time for which it was to run, and that because thereof, after the lapse of a...