58 Ga. App. 829 | Ga. Ct. App. | 1938
The City of East Point, a municipal corporation, brought a suit against the Upchurch Packing Company, in the sum of $2118.21, for electric power furnished to it by the city from August, 1934, through February, 1937. The petition alleged that the amount sued for was the difference between what defendant was charged for power during the above-stated period and what it should have been charged, because of the fact that the readings of the meter measuring the current were multiplied by “30,” whereas they should have been multiplied by “40.” The defendant in its answer denied any indebtedness; and, in an amendment thereto, set up an estoppel by alleging that, when the meter was installed in the defendant’s plant, Ernest Hutchinson, acting for the plaintiff, as superintendent of its water and electric-light department, advised the defendant that, in computing the amount of current consumed, the reading of the meter should be multiplied by “30;” and that thereafter the plaintiff had rendered to defendant bills on such basis until early in 1937, when defendant’s East Point plant had been discontinued and dismantled; that defendant had relied on the plaintiff’s representations, made through its agent Hutchinson, and had no way of knowing they were not true; that all of said current was used by the defendant in processing its
The plaintiff demurred to said amendment on various grounds, the principal ones being: (a) that it is not alleged in the amendment that Ernest Hutchinson, while acting as superintendent of the water and light department of the city, was authorized by the city to advise the defendant that the cost of electric power used by it should be ascertained by taking the reading of the meter and multiplying it by “30,” or that such an agreement was made with the consent or knowledge of the city, or that it was ever known by the city; and (b) that no facts set up in the amendment are sufficient “to raise an estoppel” against the city. The amendment was allowed, and the demurrer thereto was overruled. The case proceeded to verdict and judgment for the defendant; and, subsequently, the plaintiff’s motion for a new trial was overruled.
The first question is whether the demurrer to said amendment was properly overruled. We think this question, as well as the question whether the court erred in denying a new trial, is controlled by the answer to the further question: was the city, under the pleadings and the evidence, estopped from denying the correctness of the bills for electric current which it had collected from the defendant? It is well-settled law in this State that “in the operation of an electric-light and water plant, a municipal corporation is engaged in a non-governmental function.” Carruthers
It is true that a municipal corporation, while exercising its governmental functions, is not subject to an estoppel, but, in our opinion, where, as in the instant case, it was acting in its privante or proprietary capacity, it may be so subject. This precise question does not seem to have been directly passed upon by either of the appellate courts of this State, but it has been .decided by the courts, State and Federal, of our sister States, and by other law authorities. In 21 C. J. 1190, 1191, § 193, the following statement is made: “A municipal corporation, as well as a private corporation, may be subject to an estoppel in pais from the words, acts or conduct of its officers or agents as to its business affairs, if acting within the scope of their authority, even if acting as de facto officers or agents, where the public [the corporation ?] is acting through its officers or agents in its private or proprietary, as distinguished from its governmental, capacity, and the subject-matter is not ultra vires.” In Griffin v. Oklahoma Gas Cor., 37 Fed. (2d) 545 (10), it is held that the doctrine of estoppel applies to a city acting in its proprietary capacity. In City of Denver v. Denver Cor., 23 Fed. (2d) 287, the court, in paragraph 12 on page 299, said: “When acting in a proprietary capacity, the city is subject to many of the same restrictions as a private individual, including estoppel.” In Safety Cable Co. v. Baltimore, 66 Fed. 140 (1), the court held: “Cities and towns, as municipal
In the instant case, the evidence authorized the jury to find that Hutchinson, the superintendent of the plaintiff’s water and electric-light department, was acting within the scope of his duties as such superintendent when he installed the meter in question, and when he advised or instructed the defendant that, in computing the current measured by the meter, the readings of the meter should be multiplied by “30.” On this point Hutchinson testified: “I did not have to take it up with the city council to put in a new meter [the meter in question]. I had authority to get a new meter. I had the new meter checked. Any time I had to make an installation, I never took that up with the council at all, all the time I was there. I gave the multiple to the office when the test was made. I took it up with the chairman of the light and water committee.
The above-stated evidence amply authorized a finding that the plaintiff, through its authorized agent, had made to defendant the misrepresentation of fact upon which the defendant’s plea of estoppel was based. In our opinion, the overruling of the. demurrer to said plea was not error. The evidence supported the verdict for the defendant, and none of the special grounds of the motion for new trial shows cause for a reversal of the judgment.
Judgment affirmed.