Daily capital journal. (Salem, Oregon) 1903-1919, 1911-08-14
Nat. Automatic Fire Alarm Co. "
City Of Portland, ct al, MultnOmah


County.
National Automatic Fire Alarm
company, of Oregon, a corporation
respondent, V. The City Of Portland,
a municipal corporation, David
Campbell and Chas. A. Sayarian, ap-
pellants. Appeal from the circuit
court for Multnomah county. The
Hon. John S. Coke, Judge. Argued
and submitted June 27, 1911. On pc
tition for rehearing. Reversed and
dismissed, July II, 1911. Frank S.
Grant and VIM. C. Benbow, for ap-
pellants. Kollock & ZOllinger and H.
W. Hogue, for respondent. Per Cur
lam. Denied.
Per Curiam. We have re-eXamined
this case upon the whole record and
are satisfied with the conclusion
reached in the opinion.
The foundation of plaintiffs suit
is upon contract and not estoppel.
Mr.. Walker, a witness for plaintiff,
only claims that a tentative agree
ment had been reached to the effect
that plaintiff was to be permitted to
connect its auxiliary boxes with the
city wires-not a specific agreement.
He says: at was an agreement that
they (plaintiff) would present a con-
tract" meaning a contract in writ
ing. That a final settlement of the
terms of the agreement was to be
had, when the contract was present
is shown by the record of the fire
commission meeting of November o,
1902, and of January 3, 1903, set out
in the opinion Fliedner chairman of
the commission, testified that the
board did not authorize the superin-
tendent of the fire alarm system to
connect up the auxiliary system.
Permission to do so was held in
allegiance until the written contract
would be presented and signed.
Everding, a member of the commits
sion, is equally positive that no
agreement was reached, as is also
Wilder, secretary of the commission.
Campbell, fire chief, testified that no
officer of the fire department was
given directions to connect the alarm
system of the city with the auxiliary
| system and he did not give such or
ders, although it was understood by
himself and the superintendent of the
alarm system that it was being con-
nected. Plaintiffs efforts in JaDu-
airy, 1905, and again in February,
1910, to secure a franchise for such
a right or license as 1t is claimed
has been granted on January 5,
1908, tended strongly to corroborate
defendants contention According
to the testimony of Campbell, at
whose suggestion the boxes were to
become the property Of the city, the
purpose of such contemplated own
ership was evidently that the city
might control the boxes but they
were neither for the public use nor
the use of the city. If the city's
ownership of the boxes we're now
contested, certainly its title would be
of very doubtful character, and in
the subsequent efforts to secure the
franchise, defendants ownership OF
the boxes was not recognized by
either plaintiff or defendant. How
ever, plaintiff must be presumed to
have acted at its peril in placing the
boxes, before the contract was eff.
fected. 1t was dealing with muni.
cipal corporation that could act only
by and through authorized channels
and in designated manner of which
it will be presumed to have had no.
tice, and the fact that the boxes were
connected by the city superintendent
Of the alarm system or, with know
ledge thereof, by some of the othel
officers of the city, cannot aid plain
tiff, as the fire commission or thu
city is not chargeable with knowl
edge that plaintiff was acting undel
pretended parol contract with thu
commission The contract made b,
the city on April 8, 1907, with tn,
plaintiff, for an automatic auxiliar,
service at its barn, is in no manne
a recognition of the pretended agree
ment of 1903, 1t was an independen
contract and in no way dependen
upon or referable to any further con
tract Great weight should be givel
to the fact that the commission wer,