64 P. 258 | Cal. | 1901
The suit was brought to recover of the defendant liquidated damages — amounting to thirteen hundred dollars — alleged to be due under the provisions of section 629 of the Civil Code, for refusal to furnish gas to the plaintiff. The judgment was for the defendant, and the plaintiff appeals. The provision of the code in question is, that, "upon the application, in writing, of the owner or occupant of any building or premises distant not more than one hundred feet from any main of the corporation, . . . . the corporation must supply gas as required for such building or premises," etc.; and further, that "if, for the space of ten days after such application, the corporation refuses or neglects to supply the gas required, it must pay to the applicant the sum of fifty dollars as liquidated damages, and five dollars a day as liquidated damages for every day such refusal or neglect continues thereafter." The case as presented by the findings is as follows: —
The defendant is a corporation engaged in supplying the city of Sacramento with gas, and the plaintiff is an occupant of premises within a hundred feet of one of its mains. September 22, 1898, the plaintiff served on the defendant a *212 written notice, which (omitting date, address, and signature) was as follows: "You will please immediately supply me with gas for the premises occupied by me," etc. (describing them). The defendant, in reply, within ten days thereafter, "notified plaintiff that it would supply plaintiff with gas for said building and premises, if plaintiff would furnish a meter, or agree to pay defendant fifty cents per month as rent for a meter," and "plaintiff refused to furnish a meter, or to pay said rent to the defendant." The rent demanded was found by the court to be "fair and equitable," representing the monthly cost of the meter to the defendant, for care, labor, interest on investment, etc. But it is found that the defendant had no rule requiring payment of rent for meters, nor did it charge its other customers therefor. The defendant, it seems, had, prior to September 8, 1898, been supplying plaintiff with gas; but the plaintiff, during the year preceding that date, had used electrical lights mainly and almost exclusively, and the total amount of gas used on the premises amounted only to the value of $1.75; and the defendant, on that date, had removed the meter, thereby depriving the plaintiff of gas. It is found — in a passage following the statement of the above facts, and the written notice — that "said gas" was and is necessary for the plaintiff's use on the premises in question. But — unless this expression be construed as referring to the gas used prior to September 8, 1898 — it does not appear how much or what gas was needed.
There can be no doubt, I think, of the right of gas companies, ordinarily, to charge rent for meters. (Civ. Code, sec. 632;Sheward v. Citizens' Water Co.,
I advise that the judgment be affirmed.
Gray, C., and Cooper, C., concurred.
For the reasons given in the foregoing opinion the judgment is affirmed.
McFarland, J., Henshaw, J., Temple, J.
Hearing in Bank denied. *214