117 P. 285 | Or. | 1911
Lead Opinion
delivered the opinion of the court.
The principal question to be determined is whether the acts hereinbefore related amount to a license in favor of the plaintiff which the courts should sustain by perpetual injunction. It is contended on behalf of the plaintiff that it relied -upon the action of the board of fire commissioners and in pursuance thereof expended large sums of money amounting to upwards of $15,000 in the prosecution of its business and the installation of its system, and that on account of this it acquired a license which is irrevocable and cannot be disturbed by any action of the city.
It is beyond question that there were negotiations looking to the end sought by the plaintiff. In Falls City Lumber Company v. Watkins, 53 Or. 212 (99 Pac. 884), Mr. Justice Eakin says:
“If there were negotiations pending for a way, between Smith and the lumber company, and the flume was constructed before the consummation of the agreement, this was not sufficient to constitute a parol license. When both parties act with knowledge that a license is sought, and the improvement is made before the license is obtained, it will be at the risk of the party making it; but no license can be implied therefrom. The irrevocability of a parol license or the application of equitable estoppel proceeds upon the ground of preventing fraud and depends upon some conduct of the licensor which, if permitted to deny, will amount to fraud upon the licensee. This court has frequently defined an irrevocable license, recognizing three essential elements, viz.: The license must be upon some consideration paid by the licensee or some benefit accruing to the licensor; there must be an oral agreement therefor; and improvements or expenditure in reliance thereon.”
Was there an oral agreement for any license? Laying aside the question that the board of fire commissioners had no authority to make a contract, also disregarding the requirement of the charter that the board should keep a record of its proceedings, and considering the plaintiff on the one hand and the city on the other as natural persons doing the same acts before mentioned, it is plain that they contemplated further action before a contract was established, and that nothing more has been shown than mere negotiations.
Within the doctrine of Falls City Lumber Company v. Watkins, 53 Or. 212 (99 Pac. 884), whatever the plaintiff did, under these circumstances, in establishing its fire alarm system, it did at its own risk. The validity of its license depends upon the act of the superintendent of the city’s fire alarm telegraph, afterwards its own superintendent, in connecting the city system with the boxes of the plaintiff. If he had been the agent of some private party with whom the plaintiff had dealt, this act might have been set down as within the apparent scope of his authority, although in excess of his real authority and so have bound his principal; but this rule does not apply to municipal corporations in its unconfined significance.
In view of the many elements of uncertainty disclosed by the plaintiff’s case, this rule, if no other, would prevent the relief sought by the remedy of injunction.
The decree will be reversed, and the suit dismissed.
Reversed : Suit Dismissed.
Rehearing
Decided August 1, 1911.
On Petition for Rehearing.
Opinion
We have re-examined this case upon the whole record and are satisfied with the conclusion reached in the opinion.
The foundation of plaintiff’s suit is upon a contract, and not estoppel. Mr. Walker, a witness for plaintiff, only claims that a tentative agreement had been reached to the effect that plaintiff was to be permitted to connect its auxiliary boxes with the city wires — not a specific agreement. He says, “It was an agreement that they (plaintiff) would present a contract” — meaning a contract in writing. That a final settlement of the terms of the agreement was to be had, when the contract was presented, is shown by the record of the fire commission meeting of November 5, 1902, and of January 5, 1903, set out in the opinion. Fliedner, chairman of the commission, testified that the board did not authorize the superintendent of the fire alarm system to connect up the auxiliary system. Permission to do so was held in abeyance until the written contract would be presented and signed. Everding, a member of the commission, is equally positive that no agreement was reached, as is also Wilder, secretary of the commission. Campbell, fire chief, testified that no officer of the fire department was given directions to connect the alarm system of the city with the auxiliary system, and he did not give such orders, although it was understood by himself and the superintendent of the alarm system that it was being connected. Plaintiff’s efforts in January, 1905, and again in February, 1910, to secure a franchise for such a right or license as it is claimed had been granted on January 5, 1903, tended strongly to corroborate defendant’s contention. According to the testimony of Campbell, at
The motion is denied.
Reversed: Rehearing Denied.