*1 Central Power Louisiana Syllabus. Caden-
under the contract between they retain; head, the latter had the receive belong were funds that not did
Affirmed. Thomas.* Central Power Louisiana 31, (Division Suggestion B. Jan. Error Jan. 1927. Overruled 1927.) [110 No. 26054.] So. 673.
Electkjoity. company may, according rules, shut service Public off electricity nonpayment month, notwithstanding previous for for unliquidated- damages. counterclaim for may electricity furnishing public corporation engaged A service rules, if, off, according its the 15th of reasonable before shut month, electricity preced- up 20th of bill for furnished to the patron notwithstanding ing paid, not counterclaim month be electricity damages unliquidated cut off for been for through mishap. some OP EBKOB.
ON SUGGESTION [111 142.] injunctive Injunction. Chancery fundamentally bill court on for against jurisdiction foreign 'cor- not have demand does relief damages. poration for fundamentally foreign corporation against for one in- is Where recovery damages, chancery junctive relief, court does and not unliquidated damages. jurisdiction for of demand damages shutting down Electricity. Customer’s claim for legal electricity purely plant demand. was shut isoff after furnishing corporation, against claim Customer’s plant shutting elec- electricity, after down only demand, cognizable legal off, purely tricity was shut law. in court of Electricity, 20CJ, p, 333, In- Juris-Cyc. n. *Corpus References: 32CJ, p.
junctions, n. 54. Sept., 1926] Thomas. Power Co. CENTRAL Appellant. Brief County. cliaiicery
Appeal Pike court of Hon. R. W. Chancellor. Cutrer, Central Louisiana Suit Thomas C. J. *2 damages. Company injunction for Decree Power for plaintiff, appeals. judg- and defendant Reversed ment rendered. & for
Green, Potter, Green being Appellee’s given power bad, I. check cutting properly irre- acted off spective all else. (a) Only equity clean hands those come into with who guilty giving can this check was have relief. In predicted have no relief of a law and can violation of the thereon. pay-
(b)
given
no
was
check there
a bad
But
rights open.
precedent
thereby
all
ment of the
College
Corp.
Henry,
Boat
Point
v.
70 Miss.
Odeneal
Ed. 490.'
69-L.
v. U.
267 U. S.
8.,
by fraud-
acceptance
induced
“If
the check
payment.”
representations,
not constitute
ulent
does
v.
See, also,
2
376.
Pennock,
Martin
Pa. St.
Wileman
v.
—King,
Thus
sole
payment, there
payment;
was no
ment there
existing
the time that the service
at
a default
cut the service
that entitled
discontinued
Magruder, 92 Miss.
&
v.
Tel. Co.
off. Cumberland Tel.
(190'4)
Telephone
Baker
; 85 Miss.
Co.,
v.
716; Baker
Telegraph
(1905)
Valley,
City
87 Miss.
v.
Water
(1906);
Tel. Co.
U.W.
'8-9Miss.
Robert,
n & Go. v.
By.
Light
Steele,
Teague,
616.;
78 So.
Meridian
Springfield
Co.,
Water
McDavtAelv.
also
(c) mandatory injunction improperly A issued with- fundamentally ap- out notice on a untrue statement of pellee affirmatively appears necessitates dissolution. prior had been disconnected to the date of obtaining injunc- the institution of a suit tion, so the must be dissolved. Dixon v. Green County, (1899) Wiggins, 7GMiss. 794; Pearman v. (Miss.), Miss. See also, Miles v. Fink Here had not received revenue to which *3 it was entitled and had failed to receive such revenue executing delivering the fraudulent act in chack. Now, bad if there is a fundamental misstate- by party obtaining ment injunction, upon made an court advised thereof, will be dis- 32 solved. C. 14 R. 403, J. L. 331. C. Here failed to disclose this total failure of to do that which he should what was done-— owing. Failing appellee misrepresented therein, misrepresenting, which he done; must not there- profit. (d) Injunction granted already not wrongs perpetrated. 92 Hurt, 197, McDaniel Miss. 41 v. So. 381. Appellee
II.
is not
entitled
recover because
aof
proved.
contract
on
declared
only liability
duty
could
under
be
its
Carnaggio
at law as a
servant.
Bros. v. Green-
Valley,
141;
108
Burke v.
40
wood,
So.
Water
820',
Ginnings
87
v.
732;
Meridian,
Miss.
Sept., 1926] Power v. Thomas. 355 LouisiaNa Central. Appellant. 145 Brief Miss.l Contract not call current, III. did continuous contingencies beyond imposed control no liability. may, obligations, Parties course, assume absolute they assumption if are but minded, such must be clear. Lloyd Guaranty J. North 635.; C. German Trust Co., L, 244 U. S. Ed. Tlie
IV. decree should be on the reversed facts. agreement part There was no accept unliquidated damages this claim in full at its fifty-six Appellant face dollars. never consented so do, and without under the univer- consent, rule, sal there be satisfaction of the debt—no could payment of it.
Appellant compelled was not to admit that judge judgment in could his own and that the fix- case, ing the a satisfaction admitted claim of the amount, to the extent of forty- claim for two hundred nine dollars and five cents in reduced his own case to fifty-three forty-five one hundred dollars and cents. The point precise Telephone decided Rushville (1901), App. Irwin Ind. 62 at Irwin Rushville- Telephone 'E. Co., 259 at Goodivin v. N. C'adwal- N. lader, E. 604. rule Indiana This so established supreme has had the sanction United States T. Damaher, Sou'thivestern T. & Co. v. U. S. L. '59 Ed. will be noted that service of the *4 appellant and, therefore, interstate commerce; opinion supreme absolutely of the is United States controlling. applied County The same rule Tel. Co. Rtiffalo (Nebr., 1908), Turner,
v. 118 N. where it said: W. telephone telephone company “A rule aof rural that paid be rent six months reasonable; advance is comply refusing therewith, subscriber is not entitled , ,, Nor service from will the company ex- 356 CENTRAL v. Power Appellant. Brief for by of a counter claim or set-oif asserted the sub- istence part large illegal, of which is exorbitant and scriber, given justify demanding" him in he be with- that service changes pay.” prepayment of as other subscribers out — Murphy, 140' Tel. v. S. See, also, Co. W. Southwestern (Ark., 1911); Telegraph Telephone Com- Jones Joyce panies, page 352 at on Electric Law section 337; Ed.), page 687 at section (2 authority contrary We have which denies the found corporation, public bills are service whose pub- whose master the small, numerous, whose customers they charges in cash, that their is, lic demand against have recourse who demand can and one has a compelled companies are to the courts but the recognize as such cash. demands Recoupment not allowable.
Y. during prior Appellee month he had that days, liable that shut down six been fifty-six profits aggregating which dollars, for loss without the consent of undertook, amount confessedly due amount to deduct from the Thereby, appellant.: into its own hands took compensation computation it would amount of of the the pay service, and demanded rendition acquiesce made in the determination (1) absolute the contract was and confess obligatory; (2) been breached the contract unliquidated by appellant; thereof reason (3) aggre arising profits therefrom form of in the gated dollars. Could Bir See corporation exaction1? an make such Littlejohn, 77 So. Light v. mingham By., & Power Co. v. 141; Burlce Wat Carnaggio 108 So. Greenwood, Tel. Co. Valley, Cumberland Miss.’ er So. 820, 89 Baker, liability, assumes an toAs (1) the law to determine judge his own case be a *5 Sept., 1926] Power v. CbnxRal Appellee. Brief for damages. (2) liability, of tlie admeasurement as Diego, Mayer R. L. v. 454; In S. San Duncan, re U. Rep. 600; Am. McGuire, Bonk First Nat’l A. Legal Maxims L. R. A. Brown’s Ellis, Parte Ex (7th. Ed.), 166. ap- company to declare tlie as much bad
The by pellee any rea- amount whatsoever not entitled to was suspended service.; the the of son of God acts company lia- of the amount liable, even if the twenty .to bility as did dollars, did not exceed fifty-six liability dollars. declare the Mansfield R, S.) (N. Humphries Mfg. A. 31 L. Go., appellee. Stewart, & and R. Price Price S. discontinued service was I. On the date consumption September covering the had power the bill any to him bill rendered and Wasnot arrears an The record shows due. at that time or bearing date of October exhibit a cheek forty-five fifty-three dollars and sum of one hundred memorandum sent debit check was cents, with this gin- fifty-six cotton, the bales of for fourteen the failure ning lost because of which obligated power it itself had furnish the -to tendered as settlement this furnish, and forty-five amounting nine dollars and to two hundred cents. knowing the check tender a settlement intended as were
the debit memorandum deny- appellee, and while it to full of the bill rendered appellee’s justice de- ing and the the correctness deposited collected accepted later it and check, mand, it. payment demanding
On October 24 the amounting dollars, of the bill the balance being cur- for short deducted the amount refusing arbi- to abide an furnished, rent or CeNtbal LouisiaNA PoweR Thomas.. Appellee. [145 Brief Miss. appellee, tration of the difference between it and the - give declining to a chance to obtain an in junction justice highhand- *6 to out the of his test demand, edly arbitrarily power off the and appellee cut fur- refused to obligated power nish it the by had itself to furnish imposition or him, whether contract now law, and appeal, justify time, the first on it undertakes to overbearing by saying its unwarranted and conduct appellee gave it a the bad check that, therefore, on the discontinued, date the service was the paid undisputed part not the of the bill.
On the trial of
cause no contention
this
was made that
fifty-three
forty-
the check for one hundred
dollars
paid;
five cents had not been
as matter of
for,
fact,
a
the
previously,
checkhad been
25,
on November
as shown
by receipt.
only
a
The
reason
disconnecting
appellee’s
the 24th for
the
from the
gin
upon
amounting
was because he insisted
the credit
attempting
to
force him to
it, whether
not,
or
and refused to submit
arbi-
give
process
tration or to
the
time to obtain
adjudication.
that it
could
submitted to the court for
"We,therefore, submit that the
cases cited in
various
brief,
exhaustive
the effect
checks,
bad
corporation
of same and the
nonpayment
discontinue service because of
bill,
application
to the
facts
this case.
II. The check and the debit memorandum
ten-
were
dered as
settlement
full and were
settlement in full
accept
of the account. The
could not
the check
decline,
accept
give
or
credit,
the account
entirety,
not
offer was an
and when the
severable;
accept-
appellant accepted forced the
check,
law
appellee.
&
ance of the
credit asked
Greener
8on
(1924).
v. P.
&
859
Sons,
W. Gain
137 Miss.
injunction
right-
temporary mandatory
III. The
fully granted upon
showing
No
an-
made.
court has
Sept., 1926] CeNTRal Louisiana
Power Co. v. Thomas. Appellee.
Miss.]»
Brief for
injunction
nounced tlie rule tliat an
cannot issue without
hearing
first
in the case, and the law in our
injunction may
state is that such
issue even if a manda-
tory injunction.
Wiggins,
Ex Parte Perason v.
103 Miss
Pomeroy’s Equity Jurisprudence,
4, and
cited;
cases
paragraph 636;
Coast Co. v.'Bowers,
attention is addressed to the fact that
hill
was filed
given
and the bond
and writ
issued,
after the dis-
connection of the current, hut before.
settled
should not be dissolved or
award-
granting
injunction,
if at
ed
the time of the
complainant
Burroughs
to it.
entitled
Jones,
Miss.
IV. the in that price, judge this credit of dollars set his as acted juror appellant right and and that the within its Ordinarily, complete when it discontinued an- service. a say swer this contention would he to to that the price damages much fix his as demand, demand the same as off-set to the an furnishing the fail in had to service and say any then that it not answerable for loss sustained is by appellee; the hut it is that the are well settled courts adjudicate proper disputes dif- the to settle forum very submit on the date serv- ferences and we appellant, by the re- ice was the discontinued quested power until he could it not to off motive cut his respective rights, their obtain an test out willing waiting to sub- but that without and without judgment of or the mit said matter either arbitration the could be restrained court, the before it forthcoming, knowing discon- order such would tinued service. urged should the same; to recover
amount demanded resorted to [Slip. V. POWER THOMAS. CENTRAL LOUISIANA * Opinion of the Court. A. 29 L. R. Cumberland Auburn, 376.; but see Woods Baker, & 37 So. Tel. Tel. perfect serv demonstration
We have here people ignoring corporation, a servant of the ice rights disobeying court, of the individual, of an ord.er denying in an effort to a customer paying an un coerce customer into-the to just such correctly held that as account. The lower court equity not be done. matter of could this Argued orally by Green, Garner W. opinion court. delivered the J.,
Anderson, chancery Appellee, in the filed his bill Thomas, J.C. county against Pow- court of Central Pike cutting Company enjoin the elec- off er latter from for the run- it to the tric current furnished ning gin grist the town of mill of his situated furnishing O'syka, require to continue and to have been suf- current, such and for deprived been fered account parte application, appellee ob- such current. Oln an ex temporary injunction tained from the chancellor prayer there Later, of the bill. accordance with resulting proof, in a decree answer, a trial on bill, injunction prayed perpetual, making and award- twenty- ing appellee damages four sum hundred prosecutes decree, five dollars. Prom that appeal. *8 public'
Appellee engaged running gin in a and was O’yska, appellant, public grist mill in of and a the town corporation, engaged furnishing in to lighting electric current for inhabitants of said town Appellant power purposes. had in force and provided a rule which patrons pay of its that, on failure their bills such current current, due, for electric when should be cut off.
Sept., 1926] Power. CbNTRal Opinion the Court. of» monthly by appellant appellee charge Tlie gin grist mini- operate mill was a and the current to his twenty per charge whether month, mum dollars of per four cents- addition, not, and, was used or current ending on the Appellee’s month bill for the kilowatt. day September dollars nine two hundred 20th of appellant, forty-five of the rules cents. Under payable On 15th of bill or before the October. on according day custom, the 1st of October, Previous amount due. a sent statement some, mishap through which over time, to that furnished current control, have no the electric claimed to grist gin running mill was of his a result of which time, off for a short cut fifty-six damaged of he the sum claimed was gin grist being mill run of able to deprived his on account during receipt current. the time he was On appellant, sent of the bill from fifty-three dollars and hundred check on his bank for one fifty- charge forty-five along bill cents, and with it represented dam- which latter dollars, six by appellee ages him have been suffered deprived of the electric on been so account Appellant plant. run refused with which to his current charge recognize dollars, allow this appellee payment the whole amount and demanded forty-five cents, of his two hundred nine dollars bill, appellee’s same, refusal to cut off and, gin power mill him for his furnished by appellant plant. taken after the This action was filed, but before bill in this case writ of was served. appellant, duty law, under the to con
Was it gin electric for his tinue to furnish plant, pending in the courts, settlement or other mill appellee’s considering In counterclaim? wise, of. kept appel question, mind that the fact should with is affected interest. business lant’s *9 Central Louisiana Poweb Thomas. Opinion of the Court. public corporation, furnishing
a current electric service lighting purposes inhabitants of and to the compelled Osyka. be town can law, Under it of it to communities is serv furnish electric current ing, regulations and as to the under reasonable rules furnishing therefor, manner tolls of such its service, payable. appellant’s and when such are Under tolls payable rules, its furnished are month tolls current ly on or of each for the month before the month 15th ending day previous, on its the 20th the month provide charges rules also that if such are not appellant right to cut time, shall have the off the delinquent patrons. electric current Such its rules necessary properly protect are reasonable and carry engaged They is in. the business are protect necessary plant up keep its efficiency. The necessar} enforcement such is rules a insure reasonable revenue the character of busi Appellant engaged ness in. is can maintain only through prompt payment an efficient service of its monthly tolls, and, because of fact, should have right summary remedy denying to resort to the nonpayment Appellant service for of tolls. cannot patron pre be denied the benefit of such rules because unliquidated damages. Appel sents a counterclaim for required stop adjudicate lant cannot be such payment claims. It has the to enforce cur its remedy, summary regardless rent dues and tolls patron fact that claims that in debted to him for an To demand. hold leaving public otherwise would have the effect such utility as to continue forced service to its patrons, pending settlement counterclaims for un- liquidated damages, by' until such claims were settled might the courts. Such forced service continue indefi nitely, efficiency and, thereof, because of the service public might materially to the interferred with. Such corporations appellant, as a rule, Sept., 1926] Power Co. CeNTrai, LouisiáNA Opinion Court. oí the charges monthly except tolls revenues tlieir against patrons, which tolls are numerous, who per charges only usually month are few *10 patron. depends upon efficiency each The the service charges. prompt payment .monthly of the tolls expenses by legal proceed The to their collection incident Telephone ings might prohibitive. he Co. v. Rushville App. Irwin, Ind. N. Goodwin v. 62, 327; 59 Cad E. E. wallader, 319; 87 N. E. 619, 644, Ind. 89 N. Buf Telephone 841, 118 N. W. Turner, 82 Neb. falo Rep. S.) (N. 699; 19 L. R. A. 130 Am. 693, St. Telephone Danaher, Southwestern 489, Co. U. S. Joyce 35 S. Ct. 59 L. Ed. Electric Law (2 Ed.), p. section allegation appellant
There was insolvent, that respond damages therefore not be made to could alleged for its to failure furnish current gin complete grist Appellee run his had a mill. remedy recovery damages at law for of the he if claimed, he entitled thereto. opinion appellant
We are of
had the
deprive
gin
current
his mill
to run
plant,
pay
because of his failure to
tolls
he
due
appellant
previous
for the
and that
month,
that is the
appellee’s
though
rule,
sounder and
even
better
coun
appellant. Appellee
terclaim was
due
monthly
should have
continued
his
bills and
brought
against
suit
suffered
wrong
alleged
depriving
him
him
plant.
of the current
run his mill
We think to
hamper
operation
hold otherwise
would
corporation
appel
of the character of
materially
lant that it
efficiency.
would
interfere with its
question
Telephone
This
decided in
was not
Co. v. Baker,
only question
Reversed
Reversed. Suggestion oe Error. On opinion court. delivered J., Anderson, suggestion ar- error, Appellee, on the in his brief chancery jurisdiction de- of his gues damages, mand corporation. foreign cites He was a because the courts to the effect decisions of this court jurisdiction causes, chancery in such of this state proposition given by trouble about statute. The foreign attachment was not a bill in this case this: The *11 appel- against injunction chancery; for a bill it was man- on the and served issued lant. The plant Gfsyka, ager The in this state. at of sum mon- gravamen of to recover of bill was not the withdrawing enjoin ey, elec- its but to plant, appellee’s gin inci- and, mill tric current from damages dentally, to have been suf- claimed to recover having by appellee been account such current fered of plant prior filing of time to the at a withdrawn from his injunctive fundamentally one bill. The bill the damages. recovery of relief, and not for the damages cannot stand the decree And, furthermore, damages the suffered for the reason that it covered appellant’s cutting current of off the on account monthly pay as well bill, his because refused n deprived by appellee being damages as the suffered period prior during a thereto of the current some time opinion through alleged In the fault of the (and holding gone.down, we we adhere after held question) of reconsideration the appel- right under the law to cut off tlie current to the Sept., 1926] et al. v. Green. ThompsoN Syllabus. monthly hill plant, Ms lee’s failed lie liad "because decree much of the overdue. It that so follows, therefore, depriving appellee damages him for so awarded the appears' stand; current cannot larger part which for four hundred decree, ap- twenty-five based on that action of dollars, was pellant. appellee only damages deprived fifty- in the current first time sum six dollars. ap-
As to whether is entitled to recover from pellant plant period shutting down at his prior filing for which cause, he claimed to have sum suffered in the question open for dollars, this it left the decision of jurisdiction proper of the claim. It is purely legal cognizable only demand in a court of law.
Suggestion error overruled. et al. v. Green.* Thompson (Division 3, 1927.) B. Jan.
[110 25858.] No. Perpetuities. Devise, showing testator’s intention to use word children, “heirs” to mean per- held not violative lawof petuities (Hemingway's Code, 2269). section creating children, Will devise to to descend to their heirs alter death, showing their testator’s intention was to use children, word “heirs” to mean held violate the two donee *12 (Hemingway’s Code, 2269) perpetuities. statute section as to perpetuities, avoid To Wills. courts must hold “heirs” as mean- ing children, manifestly when such was testator's intent. perpetuities construing testamentary provi- In order avoid sions, duty it is of court hold word “heirs” means chil- dren, where it is manifest that such is intent of testator. *Corpus Juris-Cyc. Perpetuities, 30Cyc, p. 1522, References: n. Wills, 40Cyc, p. n. 24.