Pollak v. Brush Elec. Assn. of St. Louis, 128 U.S. 446 (1888)

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Filed: 1888-11-19Precedential Status: PrecedentialCitations: 128 U.S. 446Docket: 43

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128 U.S. 446
9 S.Ct. 119
32 L.Ed. 474

POLLAK
v.
BRUSH ELECTRIC ASS'N.
November 19, 1888.

This writ of error brings up for review a judgment in favor of the Brush
Electric Association of St. Louis, plaintiff below, against the plaintiff in
error for the sum of $6,458.10. Besides the common count for goods and
merchandise sold to the defendant, Pollak, the complaint contains a
special count, based on a written agreement between the parties, executed
November 13, 1883. By the first article of that agreement Pollak agreed to
pay to the plaintiff the sum of $7,942, as follows: 'Seven thousand dollars
in cash on the execution of this agreement, and the sum of nine hundred
and forty-two dollars on the 1st day of January, 1884, in full settlement
and satisfaction of all claims and demands due by Pollak & Co. and the
Brush Electric Light and Power Company of Montgomery, Ala., to the
said Brush Electric Association of St. Louis; and the Brush Electric
Association agrees to transfer, or cause to be transferred, to said Ignatius
Pollak, without recourse, all the shares now held by the said Brush
Electric Association and the Brush Electric Company of Cleveland, Ohio,
in the said Brush Electric Light and Power Company of Montgomery,
Ala.'
The remaining articles of the agreement are in these words:

'Second. The said Brush Electric Association of St. Louis agrees to furnish
to the said Ignatius Pollak one number 8 dynamo-electric machine, one
automatic dial for said machine, and forty arc lamps of two thousand
candle power each, of different styles, for which the said Ignatius Pollak
agrees to pay to the said Brush Electric Association of St. Louis by the 1st
day of January, 1885, twelve per cent. of the cost of said machinery, as per
card-rate hereto attached, signed by the parties, and made a part of this
agreement, which card-rate is agreed by the parties to be the cost of said
machinery. This twelve per cent., it is agreed by the parties, is to be
considered a rental of said machinery, dial, and lamps for the term of one
year, and which are furnished to enable the said Ignatius Pollak to comply
with his contract with the city council of Montgomery to light the streets
of the city of Montgomery with electric lights.
'Third. It is further agreed that in case the city council of Montgomery
shall conclude to adopt the Brush electric light for the future lighting of
the streets of the said city of Montgomery, Ala., after the expiration of the
time of the present contract between said Pollak and Company and the city
council of Montgomery, that the said Ignatius Pollak will pay to the said
Brush Electric Association of St. Louis, Mo., by the 1st day of January,
1885, the cost of said machinery, dial, and lamps, as fixed and ascertained
by said card-rate hereto attached, and in that event the said Ignatius Pollak
is not to pay the said twelve per cent.; said twelve per cent. being a
separate and distinct arrangement, as a fair rental for the use of said
machinery, dial, and lamps by the said Ignatius Pollak, and for the risk
assumed by the Brush Electric Association in furnishing the same to the
said Ignatius Pollak in case the said city council of Montgomery shall
conclude not to continue lighting the streets of Montgomery with the
Brush electric light after the expiration of their present contract with said
Pollak & Co.
'Fourth. It is further understood and agreed that in case the said city
council of Montgomery shall not conclude to continue lighting the streets
of the said city of Montgomery with the Brush electric light after the
expiration of their present contract with said Pollak & Co., the said
Ignatius Pollak shall deliver the said dynamo-electric machine, said
automatic dial, and said lamps by the 1st day of January, 1885, fully
repaired and in good working order, to the said Brush Electric Association
of St. Louis, at Cleveland, Ohio, or St. Louis, Mo., as may be directed by
the said Brush Electric Association of St. Louis, and that the title and
property in and to said machinery, dial, and lamps shall be and remain in
the said Brush Electric Association of St. Louis, until and unless the said
Ignatius Pollak pays the cost of said machinery, dial, and lamps, as
provided by this agreement, in the third clause thereof.

'Fifth. It is further understood and agreed that the said Ignatius Pollak
shall have the right to purchase from the said Brush Electric Association
of St. Louis any machinery, and any pieces and parts of machinery which
may be necessary for repairing and keeping in working order the present
machinery in said city of Montgomery, and the machinery furnished to
him by this agreement, at the same rates at which such machinery and
pieces and parts of machinery are sold at the time to other private
consumers by the said Brush Electric Association of St. Louis.'
There was appended to this agreement a stipulation, signed by the parties,
that the 'delivery of said dynamo-electric machine, dial, and lamps on
board the cars at said city of Montgomery, consigned to the said Brush
Electric Association of St. Louis, at Cleveland, Ohio, or St. Louis, Mo., as
said Brush Electric Association may direct, cost of transportation prepaid,
by the 1st day of January, 1885, shall be considered and held a delivery by
said Ignatius Pollak, as provided in the fifth clause of the aforegoing
agreement.' The card-rates attached to the above agreement, and referred
to in its second article, were these:
"ST. LOUIS, MO., NOV. 13, 1883.
"Mr. Ig. Pollak, Montgomery, Ala.,
"83 Bought of the Brush Electric Association.
"Oct. 25. 30 No. 11 Lamps, 60 1,600
6 " 3 " 60 360
2 " 2 " 50 100
2 " 17 " 60 120
1 " 8 dynamo, 3,600
1 " 8 dial, 200
--------6,180"
At the time this agreement was made, Pollak had a contract with the city
of Montgomery for the lighting of its streets, which expired November 1,
1884. On the 4th of October, 1884, he addressed a communication to the
city council, referring to the fact that the contract between him and the
city 'for twenty-three electric lights for street purposes' would expire on

the 1st of November, and asking prompt action as to whether it would be
renewed by the city, or whether additional lights would be taken. He
further said in his communication: 'Having incurred very heavy expense in
bringing extra machinery here, and having to pay a heavy rental for the
additional dynamo required for the city purposes, it becomes absolutely
necessary that your decision should be rendered as early as possible, so
that in the event of your declension to renew the contract I may be able to
take down, pack, and deliver the machinery at Cleveland, Ohio, within the
time stipulated with the parent company of the Brush Electric
Association.' On the 6th of October, 1884, that communication was
referred by the city council to the gas committee; and on the 3d of
November, 1884, the recommendation of the committee 'that the contract
with Pollak & Co. to furnish the city with twenty-three electric lights be
renewed for one year,' was adopted by the council. At a subsequent
meeting of that body, held January 19, 1885, it was resolved that,
'renewing the contract for the electric light, the mayor is authorized and
instructed to make the contract with the Brush Electric Light and Power
Company.' Of that company Pollak was president, and seemed to have
exclusive control and direction of its business, including the property and
machinery connected therewith. It was in proof that the dynamo and
machinery sued for in this action were received by the defendant, and used
by him in performing his contract; that, at the time of the trial below, they
were in use at the works of the last-named corporation, which had
furnished the electric light during the existence of the contract between the
city and Pollak; and that the city continued, after November 1, 1884, to
make monthly payments to the defendant. It was also in proof that there
were about 80 miles of streets, and more than 100 different streets within
the corporate limits of Montgomery, and that only a small portion of the
city was ever lighted by the Brush electric light; that Commerce street and
Dexter avenue were the only thoroughfares or streets that were thus
lighted continuously all the way from end to end; that only 23 ecectric
lights or lamps in all were or ever had been used or employed in the city
for street-lighting purposes; that the remainder of the lights not used on
Commerce street and Dexter avenue were employed on parts of certain
streets, and were confined within a narrow compass, mainly in the
business center of the city; that no greater number of lights or lamps were
employed or contracted for, at any time, in the city, for street-lighting
purposes, than were used in the year 1884 up to the 1st of November of
that year; that the area or territory covered with these lights had not in any
manner been enlarged; and that there were a great variety of electric lights
other than the Brush electric light serviceable for lighting streets, and
were in use in various cities of the United States. It was further proven by
a witness that the legislature of Alabama convened in Montgomery on the
11th of November, 1884, remaining in session, before its recess, during
the balance of that month and a part of the succeeding month; that, in the

absence of any contract between the city and the defendant after the ist
day of November, 1884, the mayor of the city made a temporary
arrangement with the defendant to furnish the Brush electric light to the
city for the purpose of keeping the portion of the city above described
lighted during the balance of the month of November and the month of
December, 1884. This was in substance all the proof in the cause. The
court charged the jury that if they believed the evidence the plaintiff was
entitled to recover the prices of the machinery, as fixed in the above card
of rates, with interest from January 1, 1885.
S. F. Rice and A. A. Wiley, for plaintiff in error.
H. C. Tompkins, for defendant in error.
Mr. Justice HARLAN, after stating the facts in the foregoing language,
delivered the opinion of the court.

1

1. The special pleas contained nothing of which the defendant could not have
availed himself under his plea of the general issue. If the court erred in
sustaining the demurrer to any of the special pleas, it was an error without
injury, and therefore not constituting a ground of reversal. Code Ala. 1886, §
2675; Kannady v. Lambert, 37 Ala. 59.

2

2. It was not error to allow the written agreement between the parties to be read
in evidence, without proof of its execution. The Code of Alabama provides that
'every written instrument, the foundation of the suit, purporting to be signed by
the defendant, his partner, agent, or attorney in fact, must be received in
evidence without proof of the execution, unless the execution thereof is denied
by plea, verified by affidavit.' Section 2770. There was no such plea in this
case.

3

3. By the terms of the agreement between the parties, the defendant was to pay
a certain amount to the plaintiff, by a named day, for the machinery, dial, and
lamps, provided the city council of Montgomery concluded 'to adopt the Brush
electric light for the future lighting of the streets' of that city, after the
expiration of the contract which Pollak & Co. then had with the city. The main
question in the case is whether the contingency just stated happened prior to
January 1, 1885; if so, the contract between the parties became one of absolute
sale, and bound the defendant to pay on that day the specified card rates for the
property. The defendant insists that the agreement, construed in the light of the
circumstances attending its execution, contemplated something more than the
adoption by the city council of the Brush electric light for the limited territory
covered by the contract which Pollak & Co. then had with the city; and that the

parties made their agreement with reference to an enlargement, after the
expiration of that contract, of the area in the city to be lighted with the Brush
electric light. We do not assent to this construction. The agreement was made in
view of the fact that the city was then using, under the contract with Pollak &
Co., only 23 of the Brush electric lights. The machine, dial, and lamps
furnished by the defendant were used, and presumably were needed, in order
that Pollak & Co. might perform that contract. He was to pay only certain rental
therefor in case the city council concluded 'not to continue lighting the streets
of Montgomery with the Brush electric light after the expiration of the present
contract with said Pollak & Co.;' and if the council concluded otherwise, then
the machine, dial, and lamps were to be returned to the defendant, fully
repaired, and in good working order, by January 1, 1885. These provisions
clearly show that the lighting of the streets after November 1, 1884, with the
Brush electric light, under an arrangement for that purpose with the city
council, even to the limited extent provided for by the contract with Pollak &
Co., was, within the meaning of the parties, such an adoption of that light by
the city as bound the plaintiff to purchase the machine, dial, and lamps in
question, and pay therefor, by January 1, 1885, the sum of $6,180. It could not
have been their intention to make the permanent adoption of the Brush electric
light for an indefinite period for all the streets of the city, or for a larger
territory than that stipulated for in the contract with Pollak & Co., a condition
precedent to the defendant's obligation to buy the property at the aggregate
price fixed. The communication of Pollak to the city council under date of
October 4, 1884, supports this conclusion. He distinctly says that, if the then
existing contract was not renewed, he was under a duty by his agreement with
the defendant to take down, pack, and deliver the machinery at Cleveland,
Ohio; implying that, if his contract was renewed, no such duty would rest upon
him; and that the contingency happened upon which the defendant became
bound to purchase the property outright at the price above named, appears from
the fact that the contract of Pollak & Co. was renewed. That renewal is shown
by the action of the city council on the 3d of November, 1884. Its action in
response to the written communication of Pollak, under date of October 4th,
and its monthly payments thereafter to him, operated as an effective renewal of
his contract with the city, although such renewal was not evidenced by a written
contract covering a fixed period of time. City Council of Montgomery v.
Water-Works Co., 77 Ala. 254.

4

4. It is also contended that the plaintiff was not entitled to recover, except upon
averment or proof that it had transferred or offered to transfer to the defendant
the shares of stock held by it and by the Brush Electric Company of Cleveland,
Ohio, in the Brush Electric Light & Power Company of Montgomery. This
cannot be, unless, as insisted, his promise to pay, in the contingency named in
the third article of the agreement of November 13, 1883, the sum of $6,180,
was in consideration of the plaintiff's promise to transfer, or have transferred to
him, the above shares. In support of this position the case of Bank v. Hagner, 1
Pet. 455, 465, is cited. It was there said that the inclination of the courts
strongly favors as obviously just that construction of contracts which makes the
covenants or promises of the parties dependent, rather than independent. After
observing that the seller ought not to be compelled to part with his property
without receiving the consideration, nor the purchaser to part with his money
without an equivalent in return, the court said: 'Hence, in such cases, if either a
vendor or a vendee wish to compel the other to fulfill his contract, he must
make his part of the agreement precedent, and cannot proceed against the other
without an actual performance of the agreement on his part, or a tender or
refusal.'

5

But it is clear, as said in Railroad Co. v. Howard, 13 How. 307,339, that
covenants are to be considered dependent or independent, according to the
intention of the parties, to be deduced from the whole instrument. It is manifest
that the covenant of the plaintiff in relation to the transfer of stock in the Brush
Electric Light & Power Company is wholly independent of the agreement in
relation to the machine, dial, and lamps in question. The consideration for such
transfer, and for the settlement and satisfaction of all claims due by Pollak &
Co. and by the Brush Electric Light & Power Company to the plaintiff, was the
payment by Pollak of a certain amount, part in cash on the execution of the
agreement of November 13, 1883, and the balance on the 1st of January, 1884.
On the other hand, the consideration for Pollak's agreement to pay, in a certain
contingency, a specified sum for the machine,* dial, and lamps, was his
becoming the absolute owner of those articles, upon the happening of that
contingency. The cost of the articles was fixed by the agreement at a certain
aggregate sum, without reference to the transter of the above-mentioned stock.
There is nothing whatever in the contract indicating that the payment for the
machine, dial, and lamps was to depend, in any degree, upon the transfer of the
stock, or that the transfer of the stock was to depend upon the adoption of the
Brush electric light by the city. The covenants were wholly independent; and
therefore it was not essential to the plaintiff's right to recover that it should
allege or prove that its agreement to transfer or have transferred to the
defendant the above-described stock had been performed. That may be the
subject of a separate suit.

6

As the court below correctly interpreted the agreement between the parties, and
as the evidence showed that the contingency happened which entitled the
plaintiff to recover the sum specified in the agreement as the value of the
property, the direction to the jury to find for the plaintiff was right. Goodlett v.
Railroad Co., 122 U. S. 391, 7 Sup. Ct. Rep. 1254; Kane v. Railroad Co., 128
U. S. ——, ante, 16. The judgment is affirmed.

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