Ramsey v. Holmes Elec. Protective Co.

• Decision Date: 02 May 1893
• Citation: 85 Wis. 174,55 N.W. 391
• Parties: RAMSEY ET AL. v. HOLMES ELECTRIC PROTECTIVE CO.
• Court: Wisconsin Supreme Court

85 Wis. 174

55 N.W. 391

RAMSEY ET AL.

v.HOLMES ELECTRIC PROTECTIVE CO.

Supreme Court of Wisconsin.

May 2, 1893.

Appeal from superior court, Milwaukee county; R. N. Austin, Judge.

Action by Thomas Ramsey and another against the Holmes Electric Protective Company. There was judgment for plaintiffs, and defendant appeals. Reversed.

The other facts fully appear in the following statement by PINNEY, J.:

The plaintiffs, Ramsey and McGuckin, partners under the name and style of the Milwaukee District Telegraph Company, brought their action against the Holmes Electric Protective Company to recover damages for the breach of a contract made between the parties, by which the latter company agreed to solicit orders for the use of its protective system, furnish all apparatus and materials pertaining thereto, right of way for wires excepted, and the labor necessary to put it in effective operation, in connection with such offices of the plaintiffs as might thereafter be designated by the parties to the contract, and the plaintiffs agreed to maintain said apparatus, connections, and appliances in good order, serve the users thereof promptly and properly, in accordance with the contract between the company defendant and its customers, (a copy of which was annexed to the contract between the parties,) and collect the rentals, and keep the accounts incident to the conduct of such business, and pay over to the company defendant one-half of the gross sum that might be derived from said rentals monthly, and accept the other half of the rentals as full compensation for their services. All contracts were to be made in the name of the company defendant, and the entire plant pertaining to the service was to continue to be its property, and the plaintiffs were to grant it the right of way for its wires as it might be required on such fixtures, or otherwise, as were or might be controlled by the plaintiffs, provided the use of such fixtures should not interfere with the business of the plaintiffs. The agreement was to remain in force for the term of three years from May 15, 1886, at the expiration of which the plaintiffs were to have the privilege of a further continuance of five years, and thereafter, until ninety days' notice in writing by either party to the other of its desire to discontinue the same; and the agreement was not to be transferable without the consent of both parties. The plaintiffs alleged that they entered upon their employment September 3, 1886, and discharged all its duties until October 3, 1886, when the company defendant refused, and still refuses, to allow them to perform all the conditions of the agreement on their part, although they were, ever since have been, and still are ready and willing to do so. The defendants answered, putting these matters in issue. At the trial, evidence was given tending to show what amounts had been paid by the customers of the defendant company for its protective service, which payments had been in the main made to the Wisconsin Telephone Company, which had its office in the same building as the Western Union Telegraph Company. One McLeod, as a witness for the plaintiff, testified, in substance, that the Wisconsin Telephone Company operated the defendant's system for it from October, 1886, to December, 1887, and, against the objection of defendant, was allowed to testify that the gross receipts for one year of that time were $1,321.30; that the expense of operating it might have been $10 a month. He did not include in this, care, risk, and responsibility independent of any cash disbursements, and said he did not know how to calculate that factor in the question, and, being asked to give his best judgment, the court directed him not to answer. He was asked if it would be something, and the court refused to permit him to answer. He was asked what, in his opinion, would be the expense of caring for the electrical galvanometer mentioned in the contract, but the witness was not allowed to answer. Evidence was given to show other gross receipts by the defendant from its customers down to March, 1892. One of the plaintiffs testified, in substance, that they started to perform the contract, and got the apparatus, etc., in working order in their office at 89 Michigan street, in the offices of the Western Union Telegraph Company. That a Mr. Roome, on behalf of the defendant, came into the office in September, 1886, and said he had orders from it to take the apparatus out; that the president had made a new contract with the Wisconsin Telephone Company; and they took the apparatus to the Wisconsin Telephone Company. That the plaintiffs were anxious, ready, and willing to go on with their part of the contract at the time they did this. That they forbade the plaintiffs going on with their work. That the defendant offered them the contract in 1890 under the same arrangements under which it is carried on now by Mr. Weller. That they did not take it, because Mr. Weller would not allow them to take it. “He put us out of the office.” Considerable testimony was given on the subject of the right of the plaintiffs to keep said apparatus in the office of the Western Union Telegraph Company, and it appeared, in substance, that in the first instance they had permission of the officers of that company to keep it there, but it was subsequently, and before the apparatus was taken out, revoked. They had a mere license, and the plaintiffs were under contract with the said telegraph company to deliver, day and night, including Sundays and holidays, with diligence, etc., all telegraphic messages received by that company at the main office, or such other places as it might elect, in the city of Milwaukee, and turned over to them for that purpose; plaintiffs agreeing to continue to furnish and pay the salary of a clerk in the telegraph company's main office, who should receive messages through the telephone in said office over the telegraph company's lines. The provisions of these agreements were to be in force from the 1st of April, 1884, thereafter, until after written notice had been given by one of the parties thereto of its intention to terminate the same. They ceased to work in the office of the telegraph company in December, 1887. One of the plaintiffs testified that no other place than the Western Union Telegraph Company was ever designated by the plaintiffs to the defendant as a place to carry on this business; that the business did not necessarily require a night watchman, but a night clerk, there; that it required some one to watch the instrument in the nighttime, and also some one to look after the lines; that, before then, there had never been any business of this kind carried on in the city. He identified the letter said to be a proposal for again employing them, dated November 22, 1888, signed by H. C. Roome, general manager of the defendant, addressed to the plaintiffs. It was offered in evidence on behalf of the plaintiffs, and is as follows: “Gentlemen: We are thinking of removing our system of protection from the Wisconsin Telephone Company. Will you take it under the same terms as they have it? The terms are the same as in your contract; that is, with the exception you are to receive sixty per cent. of the rental instead of fifty per cent., and to furnish lines instead of us. Have you any means of crossing the Milwaukee river other than that of the Western Union cable? I understood from you, when I was there, that the wires in that cable were all in use. I am sure, if you take hold of it, you can make it a success, and, as you are aware, I am very sorry that it was ever taken out of your hands. An early reply will oblige. Yours,” etc. The plaintiff Ramsey testified that it would be necessary to have some one to look after the lines in order to carry out the contract; that it required some one to be there to receive the signals as they came in. No evidence was given to show that the plaintiffs ever elected to extend said contract beyond the three-year term specified in it. The testimony showed that the defendant had but two contracts when the business was commenced. On behalf of the defendant, evidence was given to show that the defendant did not make, or attempt to make, any arrangement with the telephone company for transacting its business until after they were required to get the apparatus out of the office of the Western Union Telegraph Company, and that previous to that time no arrangement had been made with any other person for any office in which to set up the apparatus and carry on the business; that, on the 8th of September, plaintiffs told the defendant's general manager that the Western Union Telegraph Company refused them permission to use its offices and poles for the apparatus and wires necessary in their business; that he went immediately to Chicago to see Mr. Tubbs, the superintendent, and Gen. Stager, his superior officer, to obtain permission, and each of them refused to give it; that he afterwards saw one of the plaintiffs, McGuckin, and “explained to him the result of that interview, and requested him to allow me to take out the...