The Helena independent. [volume] (Helena, Mont.) 1875-1943, 1891-06-28
MUST PAY FOR SERVICE.
An Interesting Question in Connect
With Rent of Telephones.

An Interesting Question in Connection
With Rent of Telephones.
Judge Flsischer yesterday decided a case
of some interest to those who ent tele-
phones. 1t was in the suit of the Rocky
Mountain Bell Telephone company against
the Montana Abstract company, to recover
1906 for rent and service of one instru-
ment from April l to May %. By the terms
of the contract the abstract company was
to pay for the use of the telephone S15 pei
quarter. All ordinary expense of main
tenance was to be borne by the telephone
company. The uninterrupted working OF
the line was not guaranteed. but the tele-
phone company, in case communication
was interrupted from any cause, was tc
abate the rent for the time the instrument
was out of use, after twenty-four hours
written notice by the abstract company
The answer of the abstract com.
pan.y admitted the contract, but
out of order on March Z and after that was
of no use. 1t was also claimed that the tel
ephone company was notified Of the con-
dition of the instrument, but failed to put
it in a serviceable condition; that in conse-
quence of this failure, the abstract CON-
pany lost several jobs of work from Helena
parties who attempted to use the telephone
DuU SSuASA 1Aou tAb ~ Ian AO Y
company claims to have lost 500 IN this
way and asks damages to that amount.
The court finds that the telephone insrru-
ment furnished to the abstract company
did not answer all the purposes for which
it had been rented, and could only be used
one-third the time; that the telephone com
pany was notified through the central office
of the defect. which was remedied at vari-
GUS times so that the instrument
worked an hou or two now and
then and on other occasions
two or three days. The notification was
given, not in writing but verbally by tele-
phone message to central office. Judge
FIeischer rules that where there is a con-
tract to furnish a Telephone instrument, by
implication the lessor agrees to keep the
machine and lines in such condition that
they will be good for use; the only liability
of the lessor being to abate the rent during
the interruption, after twenty-four hours
written notice. The Telephone company
by acting on verbal notice in making re-
pairs waived its right to insist on the writ
ten notice required by the contract.
In regard to the damages claimed by the
abstract company, the judge rates that
these damages have not been proved. The
mere statement that one party said he had
a job for the abstract. com
with the manager by telephone. is too vague
and no proof of damages. In conclusion
the opinion says that the abstract company
had the use of the telephone one-third the
time; that where a party has failed to per-
form his express contract, but has per-
formed it effectively, if he has acted in
good faith he can recover for the amount
of the benefit received, if any. 1t was not
shown that the telephone company acted in
bad faith. "a party who has broken his
agreement" says the judge, will be liable
to the other to the extent of what has been
suffered and no more. He who has con
ferred upon another a benefit not meant to
be gratultious is entitled to be paid there
for" Judgment is given for the telephone
company for 1922, one-third the amount
claimed, and the costs are assessed to the
abstract company.