Buffalo Merchants' Delivery Co. v. Frontier Telephone Co. , 112 N.Y.S. 862 ( 1908 )

POUND, J.

It has been held in the Rochester Case that, where a telephone company voluntarily enters into a contract with the city conferring rights in the public streets and in consideration thereof fixing maximum rates for service, it recognizes the right of the city to make the same, and may not repudiate that part of its agreement limiting its telephone rates as provided in the contract, on the ground that the municipality is not authorized to make it. Rochester Telephone Co. v. Ross, 125 App. Div. 76, 109 N. Y. Supp. 381. The converse of this proposition is also true: Where a private citizen, for whose benefit the contract is made between the city^ and the telephone company fixing maximum rates for telephone service, voluntarily and with full knowledge of the facts enters into a contract with the telephone company for service at a different rate than that prescribed by the municipal franchise, he cannot, while said contract is still in force, elect to repudiate his contract and demand a different service at a different rate, by virtue of the franchise, in place and stead of the service he has contracted for, on the ground that the telephone company is bound by its franchise to render the service demanded at the more favorable rate.

As it has been held that the telephone company may, by entering into a voluntary agreement with the city fixing maximum rates, be es-topped from questioning the authority of the city .to enter into such agreement, só I hold that the citizen may, by entering into a contract with the telephone company, be estopped from questioning the authority of the company to make such contract with him. Plaintiff has recognized the right of the telephone company to make the contract now in force between it and defendant, and the policy of the law denies that a man may take inconsistent positions, repudiate his acts, and disturb an agreement voluntarily made by him with full knowledge of the facts, although his present claim, asserted independently of his contract, may in fact be legal.

Motion denied.