Shepherd v. Mil. Gas Light Co.

11 Wis. 234 | Wis. | 1860

By the Courts

Cole, J.

We think the nonsuit in this case was improperly granted. But after the full examination given to the case between the same parties, involving substantially the same questions of law as are presented by this record, which is reported in 6 Wis. R., 539, we do not deem it necessary to state our views at length. The decision in 6 Wis. appears to be applicable to this case, and decisive of it It is insisted that the new suit was right, because the plaintiff here, and plaintiff below, failed to show, as a part of his case, that an application in writing was made for the gas, as required by the first rule of the company, stating therein the probable number of burners he would require or use; and, it is suggested on the brief of counsel, that the nonsuit was granted mainly upon this ground. In the former case, in considering the rules and regulations which the company might rightfully impose and require an applicant to subscribe to, as a condition precedent to his right to demand the gas, the court said it could see no objection to one requiring applications to be made in writing.. We think so still; and had the company placed its refusal to furnish the gas upon the ground that the plaintiff did not, or would not, make application therefor in writing, the case would have been different.

But it did no such thing. On the contrary, the witness, McKenzie, testified that when he applied to the superintendent, Clarke, for gas, and tendered him five dollars, that Clarke refused the money, and said, “ we could have gas when we signed the rules and regulations, and not till then.” No other condition was required, except the signing of the rules and regulations, some of which this court has pronounced unreasonable and unjust, and of a character which the company had no right to require applicants for gas to subscribe to. Now, should this not be deemed a waiver on the part of the company of the right to insist upon a written application? The superintendent said the gas would be refused until the rules and regulations were signed; that was the position of the company at the time of the demand, and it ought not now to be permitted to change its ground, and say the plaintiff should have made an application in writing, or done something else not then required or insisted upon. It seems to us very clear, that when the company, by its superintendent, said that the gas would not be furnished until the rules and regulations were signed, that it waived the right to require a written application.

Some question has been made as to the right or power of the superintendent Clark to waive a written application. But can there be any serious doubt upon that point ? Clark’s name was attached to the printed rules, as secretary and superintendent, and his was the only name attached to them. He was at the office of the company exercising a general control over its business and affairs. Applications for gas were made to him, and he assumed to act for and refuse for the company. We think it was competent for him to waive the written application as we have held he did distinctly do by saying that the gas would not be furnished until the regulations were signed.

Neither do we think there can be any doubt as to whether McKenzie was the agent of the plaintiff to demand the gas. He testified that he was the general agent of the plaintiff, under Clarence Shepherd’s instruction, and he was directed by the latter to demand the gas. The plaintiff was carrying on an extensive mercantile business in Milwaukee. He resided in Buffalo and Clarence Shepherd was his general agent and managed his business in Milwankee. Now if it should be assumed that McKenzie had no direct authority from the plaintiff to make the demand, yet from the nature of Clarence’s agency, he would have an implied power .to authorize McKenzie to make the demand in behalf of the principal. It could not be supposed that Clarence Shepherd was to do everything connected with the plaintiff’s business in person. This would be impossible.

It follows from these views, that the judgment of non-suit must b.e set aside and a new trial ordered.