Magruder v. Cumberland Telephone & Telegraph Co.

46 So. 404 | Miss. | 1908

Calhoon, I.,

delivered the opinion of the court.

This is an action for damages by appellant against appellee because he was cut off from telephone connection in the month of May, and again in the month of August. The averment is that appellant had paid-every bill presented to him punctually and promptly for some years. He had paid, though, on presentment to him at his office. It appears, however, that in the instances where the telephone service was cut off, the appellant, in common with all subscribers to that service in the city of Jackson, had received previously a notice that the company would, from and after a certain date, cease to. present telephone bills through a collector, but require them to be paid at its office. The appellant received the notice, but had the idea that, as a matter of right, they should be presented for payment at his office, and this litigation is in the utmost good faith to obtain a solution of that question.

We think it thoroughly well settled for centuries that he who owes must find the creditor and pay him. Certainly this is true, if the creditor is in the same state. He must do this in person, or by agent, or by check at the risk of the debtor. 22 Am. & Eng. Ency. of Law (2d ed.), 533, and authorities cited to note 5 from England and America, covering eleven states of the American Union. This rule is without dissent anywhere, ■and includes merchants, lawyers, doctors, landlords, express companies, railroad companies, telephone and telegraph companies, and all the trades. It applies to all commercial paper not payable on demand or for protest to bind parties secondarily liable. The reverse would cripple commerce. If there had been a habit of presenting bills through a collector, such a habit is ex gratiaand may be abandoned at will on proper notice. . In the case before us notice was given, the custom of presentation by collectors was abandoned, and the company had the right, subsequently, to payment at its own office. This being our view of the law, it is wholly unnecessary to go into the question of the rulings on admissibility of testimony, because, if this view be right, it is immaterial as to what was the damage suffered, being not recoverable, and in the matter of discrimination it is sufficient to say that that is not within the scope of this particular proceeding,.and, besides, there is no sufficient evidence of discrimination to be found in this record.

Affirmed.