145 P. 657 | Or. | 1915
delivered the opinion of the court.
It is the defendant’s theory of this case that, although the plaintiff performed the services in question of the reasonable value of $2,373.70, nevertheless the company was under no obligation to pay the plaintiff this sum, or any sum, for the rendition of the same. Defendant contends that the services in question were performed by the plaintiff under the terms of a contract by which the latter was required to render the same in consideration of the general compensation moving from the defendant to the plaintiff under the contract, which heretofore the defendant has fully paid.
On October 1, 1903, the plaintiff entered into a written contract with the Postal Telegraph-Cable Company, a New York corporation, by the terms of which it was provided that the plaintiff should deliver for this company all its telegrams for delivery in the City of Portland, Oregon, for a period of 10 years from the date of the contract. It was further provided that the contract should be binding upon the parties thereto, and upon their respective successors and assigns, and it was understood and agreed that the Postal
“Third. The Messenger Company further agrees to promptly deliver in the said City of Portland, Oregon, all telegraph messages handed it by the Postal Company for delivery. # *
“Fourth. The Postal Company * * agrees to pay to the Messenger Company three and one half (3V2) cents for each telegraph message collected by the Messenger Company within seven (7) blocks of any of its offices where messengers are kept for the collection of messages, and accepted for transmission by the Postal Company, and three and one half (3%) cents for each telegraph message delivered for the Postal Company by the Messenger Company within said limits; and further agrees to pay to the Messenger Company five (5) cents for each telegraph message collected by the Messenger Company between seven (7) and twenty (20) blocks distant from such offices, and accepted for transmission by the Postal Company, and five (5) cents for each telegraph*437 message delivered for the Postal Company by the Messenger Company within said limits. * *
Sixth. It is mutually agreed that # *' during the continuance of this agreement * * the Postal Company * * shall not without the consent of the Messenger Company collect or deliver telegraph messages by messengers or permit any other corporation, firm, or individual to collect or deliver telegraph messages by messengers for said Postal Company in the said City of Portland, Oregon. * #
‘ ‘Eighth. It is mutually understood and agreed that the Messenger Company may charge and collect from the addressees reasonable sums for the delivery of any of said' telegraph messages addressed to points out of the delivery districts hereinabove described in paragraph fourth, in said City of Portland, provided, however, that such charges shall not exceed the sums charged by other telegraph or district companies in said city for like service, * * it being understood and agreed that the Postal Company and its allied companies shall be considered as one and the same company. ’ ’
It was alleged and proved by the defendant that on November 20, 1911, the Western Union Telegraph Company, a business competitor of the defendant, adopted a policy of delivering telegraph messages free of delivery charges or tolls to the addressees thereof, at all places within the city limits of Portland. It is contended by defendant’s counsel that by express written agreement the plaintiff was required to deliver for the defendant all the latter’s telegrams addressed to points in the City of Portland; that the defendant, in addition to agreeing to pay the stipulated sums of money, extended to the plaintiff the privilege of collecting from the addressees of telegrams addressed to points out of the delivery districts above mentioned reasonable sums, “provided such sums should not ex
The trial court refused to accept the defendant’s theory of the case and charged the jury to find for the plaintiff the reasonable value for making the long deliveries mentioned. By exceptions to such instruc
The manager of the plaintiff company testified, in effect, that after the receipt of the notice not to charge he communicated with Mr. Annand, the manager of the defendant company, and asked him who would pay for the long deliveries, and was assured that the Postal Telegraph Company would pay the same; that after that telegrams were sent out under that arrangement.
The interpretation of the contract by the learned judge was correct.
The judgment of the lower court will therefore be affirmed. Affirmed.