Pollak v. Brush Electric Ass

• Decision Date: 19 November 1888
• Citation: 128 U.S. 446,32 L.Ed. 474,9 S.Ct. 119
• Parties: POLLAK v. BRUSH ELECTRIC ASS'N
• Court: U.S. Supreme Court

128 U.S. 446

9 S.Ct. 119

32 L.Ed. 474

POLLAK v. BRUSH ELECTRIC ASS'N.

November 19, 1888.

This writ of error brings up for review a judgment in favor of the Brush Electric Association of St. Louis, plaintiff below, against the plaintiff in error for the sum of $6,458.10. Besides the common count for goods and merchandise sold to the defendant, Pollak, the complaint contains a special count, based on a written agreement between the parties, executed November 13, 1883. By the first article of that agreement Pollak agreed to pay to the plaintiff the sum of $7,942, as follows: 'Seven thousand dollars in cash on the execution of this agreement, and the sum of nine hundred and forty-two dollars on the 1st day of January, 1884, in full settlement and satisfaction of all claims and demands due by Pollak & Co. and the Brush Electric Light and Power Company of Montgomery, Ala., to the said Brush Electric Association of St. Louis; and the Brush Electric Association agrees to transfer, or cause to be transferred, to said Ignatius Pollak, without recourse, all the shares now held by the said Brush Electric Association and the Brush Electric Company of Cleveland, Ohio, in the said Brush Electric Light and Power Company of Montgomery, Ala.'

The remaining articles of the agreement are in these words:

'Second. The said Brush Electric Association of St. Louis agrees to furnish to the said Ignatius Pollak one number 8 dynamo-electric machine, one automatic dial for said machine, and forty arc lamps of two thousand candle power each, of different styles, for which the said Ignatius Pollak agrees to pay to the said Brush Electric Association of St. Louis by the 1st day of January, 1885, twelve per cent. of the cost of said machinery, as per card-rate hereto attached, signed by the parties, and made a part of this agreement, which card-rate is agreed by the parties to be the cost of said machinery. This twelve per cent., it is agreed by the parties, is to be considered a rental of said machinery, dial, and lamps for the term of one year, and which are furnished to enable the said Ignatius Pollak to comply with his contract with the city council of Montgomery to light the streets of the city of Montgomery with electric lights.

'Third. It is further agreed that in case the city council of Montgomery shall conclude to adopt the Brush electric light for the future lighting of the streets of the said city of Montgomery, Ala., after the expiration of the time of the present contract between said Pollak and Company and the city council of Montgomery, that the said Ignatius Pollak will pay to the said Brush Electric Association of St. Louis, Mo., by the 1st day of January, 1885, the cost of said machinery, dial, and lamps, as fixed and ascertained by said card-rate hereto attached, and in that event the said Ignatius Pollak is not to pay the said twelve per cent.; said twelve per cent. being a separate and distinct arrangement, as a fair rental for the use of said machinery, dial, and lamps by the said Ignatius Pollak, and for the risk assumed by the Brush Electric Association in furnishing the same to the said Ignatius Pollak in case the said city council of Montgomery shall conclude not to continue lighting the streets of Montgomery with the Brush electric light after the expiration of their present contract with said Pollak & Co.

'Fourth. It is further understood and agreed that in case the said city council of Montgomery shall not conclude to continue lighting the streets of the said city of Montgomery with the Brush electric light after the expiration of their present contract with said Pollak & Co., the said Ignatius Pollak shall deliver the said dynamo-electric machine, said automatic dial, and said lamps by the 1st day of January, 1885, fully repaired and in good working order, to the said Brush Electric Association of St. Louis, at Cleveland, Ohio or St. Louis, Mo., as may be directed by the said Brush Electric Association of St. Louis, and that the title and property in and to said machinery, dial, and lamps shall be and remain in the said Brush Electric Association of St. Louis, until and unless the said Ignatius Pollak pays the cost of said machinery, dial, and lamps, as provided by this agreement, in the third clause thereof.

'Fifth. It is further understood and agreed that the said Ignatius Pollak shall have the right to purchase from the said Brush Electric Association of St. Louis any machinery, and any pieces and parts of machinery which may be necessary for repairing and keeping in working order the present machinery in said city of Montgomery, and the machinery furnished to him by this agreement, at the same rates at which such machinery and pieces and parts of machinery are sold at the time to other private consumers by the said Brush Electric Association of St. Louis.'

There was appended to this agreement a stipulation, signed by the parties, that the 'delivery of said dynamo-electric machine, dial, and lamps on board the cars at said city of Montgomery, consigned to the said Brush Electric Association of St. Louis, at Cleveland, Ohio, or St. Louis, Mo., as said Brush Electric Association may direct, cost of transportation prepaid, by the 1st day of January, 1885, shall be considered and held a delivery by said Ignatius Pollak, as provided in the fifth clause of the aforegoing agreement.' The card-rates attached to the above agreement, and referred to in its second article, were these:

"ST. LOUIS, MO., NOV. 13, 1883.

"Mr. Ig. Pollak, Montgomery, Ala.,

"83 Bought of the Brush Electric Association.

"Oct. 25. 30 No. 11 Lamps, 60 1,600

6 " 3 " 60 360

2 " 2 " 50 100

2 " 17 " 60 120

1 " 8 dynamo, 3,600

1 " 8 dial, 200

---------

6,180" At the time this agreement was made, Pollak had a contract with the city of Montgomery for the lighting of its streets, which expired November 1, 1884. On the 4th of October, 1884, he addressed a communication to the city council, referring to the fact that the contract between him and the city 'for twenty-three electric lights for street purposes' would expire on the 1st of November, and asking prompt action as to whether it would be renewed by the city, or whether additional lights would be taken. He further said in his communication: 'Having incurred very heavy expense in bringing extra machinery here, and having to pay a heavy rental for the additional dynamo required for the city purposes, it becomes absolutely necessary that your decision should be rendered as early as possible, so that in the event of your declension to renew the contract I may be able to take down, pack, and deliver the machinery at Cleveland, Ohio, within the time stipulated with the parent company of the Brush Electric Association.' On the 6th of October, 1884, that communication was referred by the city council to the gas committee; and on the 3d of November, 1884, the recommendation of the committee 'that the contract with Pollak & Co. to furnish the city with twenty-three electric lights be renewed for one year,' was adopted by the council. At a subsequent meeting of that body, held January 19, 1885, it was resolved that, 'renewing the contract for the electric light, the mayor is authorized and instructed to make the contract with the Brush Electric Light and Power Company.' Of that company Pollak was president, and seemed to have exclusive control and direction of its business, including the property and machinery connected therewith. It was in proof that the dynamo and machinery sued for in this...