Pollak v. Brush Electric Ass'n of St. Louis

delivered the opinion of the court.

He stated the case as above reported, and continued:

1. The special pleas contained nothing of which the defendant could not have availed himself under his plea, of the gen *453 eral 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 of Alabama, 1886, § 2675; Kannady v. Lambert, 37 Alabama, 57, 59. .

. 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.” § 2770'. There was no, such plea in this case. ,

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 Poliak- - & Company 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 Poliak & 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 Poliak & Co., only twenty-three of the Brush electric lights. The machine, dial and lamps furnished by the defendant were used, and presumably were needed, in order that Poliak & Co. might perform that contract. He was to *454 pay only certain rental therefor in case the city council concluded “not to contmue lighting the streets of Montgomery with the Brush electric light after the expiration of the present contract with said Poliak & Go.” 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 Poliak & Co., was, within the meaning of the parties, such an adaption 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 $6180. 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 Poliak & Co., a condition precedent to the defendant’s obligation to buy the property at the aggregate price fixed. The communication of Poliak 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 Poliak & 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 Poliak, under date of October 4, 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. Montgomery Water Works, 77 Alabama, 248, 254.

4. It is also contended that the plaintiff was not entitled tc *455 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 and- 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 suih of $6180, 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 of Columbia 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 par ties 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 fulfil his contract, he must make his part of the agreement precedent, and cannot proceed' against-tjie other without an actual performance of the agreement on his part, -or a tender or refusal.”

But it is clear, as said in Philadelphia, Wilmington & Baltimore Railroad Company 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 and 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 Poliak & Co. and; by the Brush Electric Light and Power Company to the plaintiff, was the payment by Poliak 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 Poliak’s agreement to' pay, in a certain contingency, a specified sum for the machine. *456 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 transfer 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 tne transfer of the stock was to depend uppn 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.

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. Goodlet v. Louisville & Nashville Railroad, 122 U. S. 391; Kane v. Northern Central Railroad, ante, 91.

■The judgment is affirmed.