118 Ky. 277 | Ky. Ct. App. | 1904
Opinion op the court by
Reversing.
This is an appeal from a judgment dismissing plaintiff’s petition, which, after being amended, was still held' to state mo cause of action. From the statements of the petition it .appears that appellant, the Campbellsville Telephone Company, built an exchange at Campbellsville; that appellee, the Lebanon, Louisville & Lexington Telephone Company, built an exchange at Lebanon. These two companies agreed, to unite their lines at Phillipsburg, which was a point about midway between Campbellsville and Lebanon; the Campbellsville Company building the line from Campbellsville to Phillipsburg, and the Lebanon Company, by which name we will designate appellee, from Lebanon to Phillipsburg. This diagram fairly presents the geographical situation:
The agreement under which this .connection was made and was to be operated was written, and is as follows: “It is hereby mutually agreed by and between the Lebanon, Louisville & Lexington Telephone Company (incorporated) of Lebanon, Kentucky, and the Campbellsville Telephone Company (incorporated) of Campbellsville, Kentucky as follows: The Lebanon, Louisville & Lexington Telephone Company to build, equip and maintain a first-class telephone line from Lebanon, Kentucky, to Phillipsburg, Kentucky, to meet and attach to the line of the Campbellsville Telephone Company at said place; and the Campbellsville Telephone Company to build, equip and maintain a first-class telephone line from:
There aré two points in the foregoing contract that have given rise to this controversy: (1) It' failed to state for what length of time the connection and the agreement were to continue. Appellant contends that it was to endure at least during the corporate lives of the two companies. Appellee contends that it was determinable at the will of either of the parties. (2) Did the contract include messages originating elsewhere than at Lebanon or Campbellsville, or on the line between those points? Appellant affirms that it did. Appellee insists that it did not.
The trouble between the litigants came up in this way: They were each “independent” companies; that is, not using the Bell patents. Subsequently a licensee- of the Bell patents, the Cumberland' Telephone & Telegraph Company, acquired a controlling interest in the stock of the Lebanon Company, and built a line from Louisville to Lebanon, there connecting with the Lebanon Exchange. Later an independent line was built from, Louisville to- Campbellsville by the Independent Long Distance Telephone & Telegraph Company. Until then the customers of the Campbellsville Exchange used the line in connection with the Cumberland Company’s line to
If the contract and all rights under it are determinable at the will of either party, appellee argues that will end this suit, for, it is claimed, a court will not direct the specific execution of a contract that either party has the right to terminate the next moment. However, if the parties have not terminated the contract, as they have not in this instance, but are continuing it, and' if one of them withholds a part to which the other is entitled, we perceive no good reason for refusing to compel him to bring up his end of the agreement, so long as it lasts. While the case might be rested here, we are not content to do so, but will decide the larger question, which is also presented, and which has been ably argued and fully considered; that is, whether the contract is one determinable at the will of either of the parties.
The fact that no time is fixed in the contract for which it shall endure is seized upon as affixing it to that class of contracts that run at the mutual will of the parties, and that
Appellee’s argument at this point is that section 199 is not self-executing; that, until the Legislature has provided a way of compelling its execution, it is nugatory, so far as enforceable rights growing out of it are concerned. It is true that the Legislature has not provided a method for compelling the physical connection required by the Constitution, and has not prescribed the terms upon which one corporation may coerce the use of another’s property. It is even insisted ■that such arrangement is so impracticable as to be impossible. The fact that these parties have made an arrangement which is not unreasonable on its face, and, so far as has been pointed out to us; is not. unreasonable in its application, would seem to answer the argument, of impracticability. But however that may be, these parties have done voluntarily all that was required of them by the Constitution — have made the necessary connection, and have entered into an arrangement by which each is to use, and is to pay for using the other’s property. We are asked — for such is the reach of the argument — to suffer one of them to annul this arrangement, although in doing so it violates the Constitution of the State, to the direct injury of the other party to the contract. The Constitution is as binding as a law upon all citizens of the State, and all persons doing business within the State, as a statute could be. The absence of a penalty
We will conclude that this contract was not determinable at the will of either of the parties to it, but that it must continue during the corporate existence of the two companies.
Appellee’s next position is that the contract limited the parties to it to the exchange of such messages as emanated at either Lebanon or Campbellsville. There is nothing in the language of the contract to exclude from its operation messages originating elsewhere, and being transmitted via the Campbellsville and Lebanon lines. The nature of the business in which the contracting parties were engaged wasi to handle telephone messages to and from their patrons. Of course, connecting and independent lines would have to have their part of the tolls. But that was not against the desirability of using them in connection with the local lines where tariff rates could be agreed upon. That such is the fact is not left to even reasonable conjecture, but it is admitted, as the record now stands, that for nearly eight years the parties to the contract have so interpreted its meaning, and applied it practically to their operations under it. Messages originating elsewhere were received and passed over the joint line, and through the other exchange, exactly as if they had originated in Campbellsville or Lebanon. 'Such contempor
We therefore conclude that when a message originating in Louisville, or on the line of the Independent Long Distance Telephone & Telegraph Company, destined for Lebanon or vicinity, connected with the Lebanon exchange, and to pass •via the Campbellsville exchange, it was the right of appellant to have the message passed over the joint wires of the two contracting companies, and through the Lebanon exchange, under the terms of the contracts. The mandatory injunction prayed for should have been granted.
Judgment reversed and remanded for proceedings consistent herewith.
Extension of opinion by Judge O’Rear, January 18, 1905:
Lest the expression in the original opinion that the duration of the contract between appellant and appellee “must