6 A.2d 884 | Pa. | 1939
By ordinance of June 4, 1906, the City of Philadelphia granted permission to defendant corporation "to carry its wires under and beneath the highways of the City of Philadelphia for connecting buildings occupied by its customers with its central station," and to use and operate such wires "for the purpose of conducting the business of conveying for its customers a burglar alarm, night watch and fire alarm signal system." Section 5 of the ordinance provided that defendant should pay to the City, on the first day of March in each and every year, "two per cent of the gross receipts of said Corporation up to thirty thousand (30,000) dollars, and three per cent thereafter up to forty thousand (40,000) dollars, and five per cent thereafter, from all its business done in the said City of Philadelphia, and for the ascertainment of the amount due to the City of Philadelphia the said Company shall keep books of account within the City of Philadelphia containing an account of all the business done and transacted within said City, which shall be subject to the inspection of the City Treasurer or by his duly authorized and designated representative."
The present action in assumpsit was instituted by the City to recover sums alleged to be due under this ordinance from March 1, 1918, to March 1, 1937, in excess of payments made by defendant for those years.
Defendant annually furnished sworn returns of its gross receipts upon the basis of which it remitted for the percentages due. In 1937 the City Controller audited its records and ascertained that whereas for several *276 of the earlier years it had included in its returns certain items of gross receipts it had omitted them from 1918 on. As a result of this discovery the City claimed there was owing by defendant the sum of $53,705.52. Of this amount defendant admitted liability for $13,309.70, which it paid. The City then brought the present action to recover the balance of $40,395.82. The learned trial judge gave binding instructions in its favor for this amount with interest, a total of $67,737.98, but the court in banc, being of opinion that part of the claim was barred by the statute of limitations, reduced the verdict to $14,438.05. Both parties thereupon appealed to this court, defendant because of refusal by the court below to grant its motion for judgment n. o. v., and plaintiff because of the reduction of the verdict.
The business of defendant involves the installation on the doors, walls and windows of residences and commercial establishments of devices or mechanisms which are connected by wires passing under the streets of the city with a gong or light at the central office of the company, so that if there is an attempt at burglary or any other interference by trespassers the tampering will become known and protection will be afforded.1 The items of defendant's receipts now in controversy are (1) those derived from construction work done by it on the premises of customers, consisting of the installation of the instrumentalities and devices above referred to, and (2) those derived from its inspections of local alarms which are not connected with the central office and are periodically tested, and, if necessary, repaired.2 It is defendant's contention that, since this construction and inspection work is done at or below cost, and because no license from the City is required to perform *277 such work, the receipts therefrom should not be included in the gross receipts in calculating the percentages due.
This position of defendant cannot be sustained. The language of the ordinance is "the gross receipts of said corporation" — not some of the gross receipts, — "from all its business" — not some of its business or such part of its business as requires a franchise or license from the City. The installation of the mechanisms on the premises of its customers is as much a part — indeed an indispensable part — of its business as any other. By "gross receipts . . . from all its business" must be understood all receipts arising from the employment of its capital. As a consideration for permitting it to operate underground wires in the streets the City could exact whatever payments in the nature of rentals it might deem proper, and in fixing for that purpose a scale of percentages on gross receipts the City was not obliged to limit such receipts to operation charges. It is not material that, as defendant alleges, no profit is derived from the construction work and inspection service; that would be a relevant consideration only if the charge were based on net instead of gross receipts.
In Commonwealth v. United States Express Co.,
Proceeding now to a consideration of the City's appeal, the question raised is whether the statute of limitations is applicable to its claim. The court below held that recovery was limited to the six-year period.
The immunity of the sovereign from subjection to statutes of limitations does not, in the absence of express provision to the contrary, extend to municipalities, counties, townships or boroughs: Evans v. Erie County,
Since, then, the City of Philadelphia is here suing, not to compel the performance of a duty imposed by law, nor to assert a governmental power inherent in it as a municipal corporation, but to enforce a contractual obligation assumed by defendant when it accepted the privilege granted by the ordinance, the statute of limitations is applicable to the suit. This being established, plaintiff seeks refuge in two contentions; — one, that defendant having paid part of the debt within six years prior to the commencement of the suit the statute was thereby tolled; the other, that defendant, by making false returns of its gross receipts, misled plaintiff and concealed from it the facts upon which the present cause of action is founded. Neither contention can be supported. In order that a part payment may stop the running of the statute it must constitute a constructive acknowledgment of the debt from which a promise to pay the balance may be inferred. The defendant's payment of $13,309.70 was to cover deductions which it had previously made in regard to receipts from wires leased from another company, but at the same time it denied liability as to the other items now in controversy. Under such circumstances the statute is not tolled, because, to accomplish that result, the acknowledgment by part payment must be referable to the very debt upon which the action is based: Graham v. Keys,
The judgment is affirmed.