243 Pa. 586 | Pa. | 1914
Opinion by
This case came before the court on petition for mandamus, answer and demurrer; the demurrer was over
The petition avers a written agreement between the relator and the respondent telephone company, under which the latter rendered service from 1904' to 1913, when it terminated the contract and disconnected the line; this action of the respondent was alleged to be a violation of its contractual obligations and an unreasonable discrimination against the relator; and the court was asked to compel the telephone company “to furnish and continue to furnish” its service under the terms and conditions of the contract. The answer admits the contract, a copy of which is attached to the pleadings, but denies that the relator’s rights thereunder are as stated in the petition; it further denies any discrimination and states that the company is and always has been “ready and willing to furnish its telephone service to the relator at the same rates and upon the same terms” as paid by all other subscribers for a like service. The respondent avers that it had not furnished service to any other of its customers under this particular form of contract “nor at the rates provided therein” for some six years past; that since such contract was made, in 1904, the company had been obliged to established new and revised rates, and that all other contracts in the form of the one possessed by the relator had been cancelled; that “after due notice” respondent had “terminated relator’s contract and discontinued its service thereunder” ......“in justice to its other subscribers” and to avoid “unfair and unjust discrimination” against over 63,000 patrons in the Pittsburgh district. In addition, the respondent avers that it has and always has had two classes of subscribers, viz, business and residence, with different forms of contracts applicable to each, and that a higher rate is charged to the former class; that the form of contract which the relator had “was intended to be used in residences only”; that the relator at the present time conducts a grocery business at the address
For present purposes it is not necessary to determine whether or not mandamus is a proper remedy in this case; for, conceding, but not deciding, that it is, we are not convinced that the court below, under the pleadings, erred in refusing the relief prayed for, or in granting judgment against the relator. The answer having been demurred to, all facts properly averred therein must be taken as established, and the only question necessary to be determined is, in view of the established facts, did the telephone company have the legal right to terminate the contract upon “due notice” to the relator? She contends that it had not, for the reason that the contract itself provides for several contingencies upon which it might be terminated, and none of these is averred in the answer as a reason for discontinuing the service. It is argued that the maxim “expressio unius est exclusio alterius” applies and that the contract could not be cancelled by the telephone company except for one of the reasons stated therein. The written agreement provides for a certain rate to be paid by the subscriber “during the term of one year” and makes no express provision for .an extension beyond that period. This was a contract for one year; but it contains at least one provision which shows an intention that, should the line remain connected after the year,, the service would continue under, its terms until the substitution of another'contract. The agreement provides, “The subscriber, may terminate this contract at any time after the first year by. giving thirty days’ notice in writing”; but no provision, as to how the company may terminate the contract “after the first year” appears, therein. Our
We conclude that the learned court below did not err when it refused the mandamus.
The assignments of error are overruled and the judgment is affirmed.