150 Pa. 36 | Pa. | 1892
Opinion by
It is with some difficulty that we sustain the finding of parol stipulations of the contract not included in the writing. The latter is clear and explicit, and the evidence to vary it is entirely lacking in the element of any misleading representation at the time of signing, or of any fraud or accident. The only ground of equitable reformation is the mistake of the bank president as to the agreement of the writing with the previous negotiations. As to this the learned master finds that the president “ when he signed the agreement supposed it was in accordance with what he had learned was concluded upon in the negotiations between his subordinate bank
Conceding then, that the contract was for “ regular rates ” after the first two years, we come to the question what are such rates. Prima facie the term must be construed with reference to rates paid by other parties at the same time, in the same place, and for the same service. They are not necessarily the same for different places, even though in the same vicinity. The distance from the central office, the nature of the country between as affecting the cost of construction and maintenance, the number of customers and the kind of service supplied are all elements to be considered in fixing a remunerative and yet reasonable rate. But while therefore there is no presumption that regular rates for one place are the same as for another even though near at hand, yet what parties mean by the use of the words in a parol contract is always a question of fact in the particular case. The witnesses on the part of the complainant concur in their testimony that in the negotiations with the appellants for the introduction of the telephone line into Martinsburg the term regular rates was used with reference to the rates paid by subscribers in neighboring towns, es
In one respect however the decree needs modification. Though the injunction is not in terms called perpetual yet that is the general effect of the wording. There is nothing in the bill to support such a decree. The bill is founded entirely on the contract between the parties, and the contract is express that after two years it may be terminated by either party on thirty days notice in writing. Complainant is clearly not bound to a perpetual or indefinite continuance of its subscription, nor by the contract can the appellant be so held to render the service. Whether the appellant by reason of 'its public franchise is under obligation to supply the complainant so long as it maintains its line in Martinsburg is a question not raised by the case, though discussed in the paper book of appellee.
The injunction is limited to continue until the termination of the contract by notice in accordance with its provisions, and with this modification the decree is affirmed. Costs of this appeal as well as the costs below to be paid equally by the parties.