Pollak v. Brush Electric Association/Opinion of the Court

1. The special pleas contained nothing of which the defendant could not have availed himself under his plea of the general issue. If the court erred in sustaining the demurrer to any of the special pleas, it was an error without injury, and therefore not constituting a ground of reversal. Code Ala. 1886, § 2675; Kannady v. Lambert, 37 Ala. 59.

2. It was not error to allow the written agreement between the parties to be read in evidence, without proof of its execution. The Code of Alabama provides that 'every written instrument, the foundation of the suit, purporting to be signed by the defendant, his partner, agent, or attorney in fact, must be received in evidence without proof of the execution, unless the execution thereof is denied by plea, verified by affidavit.' Section 2770. There was no such plea in this case.

3. By the terms of the agreement between the parties, the defendant was to pay a certain amount to the plaintiff, by a named day, for the machinery, dial, and lamps, provided the city council of Montgomery concluded 'to adopt the Brush electric light for the future lighting of the streets' of that city, after the expiration of the contract which Pollak & Co. then had with the city. The main question in the case is whether the contingency just stated happened prior to January 1, 1885; if so, the contract between the parties became one of absolute sale, and bound the defendant to pay on that day the specified card rates for the property. The defendant insists that the agreement, construed in the light of the circumstances attending its execution, contemplated something more than the adoption by the city council of the Brush electric light for the limited territory covered by the contract which Pollak & Co. then had with the city; and that the parties made their agreement with reference to an enlargement, after the expiration of that contract, of the area in the city to be lighted with the Brush electric light. We do not assent to this construction. The agreement was made in view of the fact that the city was then using, under the contract with Pollak & Co., only 23 of the Brush electric lights. The machine, dial, and lamps furnished by the defendant were used, and presumably were needed, in order that Pollak & Co. might perform that contract. He was to pay only certain rental therefor in case the city council concluded 'not to continue lighting the streets of Montgomery with the Brush electric light after the expiration of the present contract with said Pollak & Co.;' and if the council concluded otherwise, then the machine, dial, and lamps were to be returned to the defendant, fully repaired, and in good working order, by January 1, 1885. These provisions clearly show that the lighting of the streets after November 1, 1884, with the Brush electric light, under an arrangement for that purpose with the city council, even to the limited extent provided for by the contract with Pollak & Co., was, within the meaning of the parties, such an adoption of that light by the city as bound the plaintiff to purchase the machine, dial, and lamps in question, and pay therefor, by January 1, 1885, the sum of $6,180. It could not have been their intention to make the permanent adoption of the Brush electric light for an indefinite period for all the streets of the city, or for a larger territory than that stipulated for in the contract with Pollak & Co., a condition precedent to the defendant's obligation to buy the property at the aggregate price fixed. The communication of Pollak to the city council under date of October 4, 1884, supports this conclusion. He distinctly says that, if the then existing contract was not renewed, he was under a duty by his agreement with the defendant to take down, pack, and deliver the machinery at Cleveland, Ohio; implying that, if his contract was renewed, no such duty would rest upon him; and that the contingency happened upon which the defendant became bound to purchase the property outright at the price above named, appears from the fact that the contract of Pollak & Co. was renewed. That renewal is shown by the action of the city council on the 3d of November, 1884. Its action in response to the written communication of Pollak, under date of October 4th, and its monthly payments thereafter to him, operated as an effective renewal of his contract with the city, although such renewal was not evidenced by a written contract covering a fixed period of time. City Council of Montgomery v. Water-Works Co., 77 Ala. 254.

4. It is also contended that the plaintiff was not entitled to recover, except upon averment or proof that it had transferred or offered to transfer to the defendant the shares of stock held by it and by the Brush Electric Company of Cleveland, Ohio, in the Brush Electric Light & Power Company of Montgomery. This cannot be, unless, as insisted, his promise to pay, in the contingency named in the third article of the agreement of November 13, 1883, the sum of $6,180, was in consideration of the plaintiff's promise to transfer, or have transferred to him, the above shares. In support of this position the case of Bank v. Hagner, 1 Pet. 455, 465, is cited. It was there said that the inclination of the courts strongly favors as obviously just that construction of contracts which makes the covenants or promises of the parties dependent, rather than independent. After observing that the seller ought not to be compelled to part with his property without receiving the consideration, nor the purchaser to part with his money without an equivalent in return, the court said: 'Hence, in such cases, if either a vendor or a vendee wish to compel the other to fulfill his contract, he must make his part of the agreement precedent, and cannot proceed against the other without an actual performance of the agreement on his part, or a tender or refusal.'

But it is clear, as said in Railroad Co. v. Howard, 13 How. 307,339, that covenants are to be considered dependent or independent, according to the intention of the parties, to be deduced from the whole instrument. It is manifest that the covenant of the plaintiff in relation to the transfer of stock in the Brush Electric Light & Power Company is wholly independent of the agreement in relation to the machine, dial, and lamps in question. The consideration for such transfer, and for the settlement and satisfaction of all claims due by Pollak & Co. and by the Brush Electric Light & Power Company to the plaintiff, was the payment by Pollak of a certain amount, part in cash on the execution of the agreement of November 13, 1883, and the balance on the 1st of January, 1884. On the other hand, the consideration for Pollak's agreement to pay, in a certain contingency, a specified sum for the machine, * dial, and lamps, was his becoming the absolute owner of those articles, upon the happening of that contingency. The cost of the articles was fixed by the agreement at a certain aggregate sum, without reference to the transter of the above-mentioned stock. There is nothing whatever in the contract indicating that the payment for the machine, dial, and lamps was to depend, in any degree, upon the transfer of the stock, or that the transfer of the stock was to depend upon the adoption of the Brush electric light by the city. The covenants were wholly independent; and therefore it was not essential to the plaintiff's right to recover that it should allege or prove that its agreement to transfer or have transferred to the defendant the above-described stock had been performed. That may be the subject of a separate suit.

As the court below correctly interpreted the agreement between the parties, and as the evidence showed that the contingency happened which entitled the plaintiff to recover the sum specified in the agreement as the value of the property, the direction to the jury to find for the plaintiff was right. Goodlett v. Railroad Co., 122 U.S. 391, 7 Sup. Ct. Rep. 1254; Kane v. Railroad Co., 128 U.S. --, ante, 16. The judgment is affirmed.