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

Opinion by

Mb. Justice Mitchell,

It is with some difficulty that we sustain the finding of parol stipulations of the contract not included in the writing. The latter is clear and explicit, and the evidence to vary it is entirely lacking in the element of any misleading representation at the time of signing, or of any fraud or accident. The only ground of equitable reformation is the mistake of the bank president as to the agreement of the writing with the previous negotiations. As to this the learned master finds that the president “ when he signed the agreement supposed it was in accordance with what he had learned was concluded upon in the negotiations between his subordinate bank officers and Mr. Malin.” But it was his business to know, or if he did not know, to inquire of his subordinates who did. Signing upon mere supposition without knowledge or inquiry comes dangerously near negligence, and “ the mistake to be relieved against in equity must be one that is mutual, material and not induced by negligence: ” Bispham, Equity, § 191. The evidence however does tend to show, by the letter of Malin, appellant’s superintendent, and by the testimony of the bank cashier and others, that the preliminary negotiations were on the basis of “ regular rates ” after the first two years, and there is no evidence of any subsequent or different negotiations, the finding of the master being that “ no conversation as to the contents of the paper took place ” at the time of signing. Moreover the subsequent action of appellant in offering to reduce the rate for complainant to the same as the others were paying is some evidence that the understanding of the bank officers as to the reduction of the charge to regular rates after two years was mutual. This is the view taken by the learned master and confirmed by the court below, and we conclude, though as already said, not without difficulty, that no such plain error has been shown as requires us to reverse upon this point.

Conceding then, that the contract was for “ regular rates ” after the first two years, we come to the question what are such rates. Prima facie the term must be construed with reference to rates paid by other parties at the same time, in the same place, and for the same service. They are not necessarily the same for different places, even though in the same vicinity. The distance from the central office, the nature of the country between as affecting the cost of construction and maintenance, the number of customers and the kind of service supplied are all elements to be considered in fixing a remunerative and yet reasonable rate. But while therefore there is no presumption that regular rates for one place are the same as for another even though near at hand, yet what parties mean by the use of the words in a parol contract is always a question of fact in the particular case. The witnesses on the part of the complainant concur in their testimony that in the negotiations with the appellants for the introduction of the telephone line into Martinsburg the term regular rates was used with reference to the rates paid by subscribers in neighboring towns, especially in Roaring Spring. Thus Skyles says explicitly that, at the interview between Malin, Nicodemus and himself, he wanted to know why they charged more than at Roaring Spring, and the explanation was that it was on account of the expense (presumably of the introduction of the line) and would only last two years, and “ after that to come in at the Roaring Spring rate.” This part of the agreement is denied by Malin, but his denial is based largely upon his general testimony that there were no regular rates at all, which in turn is materially weakened by the admitted fact of the use of that term in the correspondence immediately preceding the contract, as well as in the verbal negotiations. The master has found as a fact that the parties dealt on the basis of the existence of regular rates, by which they meant at least -for the purposes of this contract the rates charged in the neighboring town of Roaring Spring. It was purely a question of fact, the master had the witnesses before him and we have not been convinced that his conclusion was wrong.

In one respect however the decree needs modification. Though the injunction is not in terms called perpetual yet that is the general effect of the wording. There is nothing in the bill to support such a decree. The bill is founded entirely on the contract between the parties, and the contract is express that after two years it may be terminated by either party on thirty days notice in writing. Complainant is clearly not bound to a perpetual or indefinite continuance of its subscription, nor by the contract can the appellant be so held to render the service. Whether the appellant by reason of 'its public franchise is under obligation to supply the complainant so long as it maintains its line in Martinsburg is a question not raised by the case, though discussed in the paper book of appellee.

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.