Opinion
No. 20921
Decided May 31, 1928.
Public utilities — Property of realty company not dedicated to public service — Landlord not compelled to furnish electricity except pursuant to voluntary contract — Court will not fix price for service to tenant.
ERROR to the Court of Appeals of Cuyahoga county.
This action was instituted in the court of common pleas of Cuyahoga county by Samuel Jonas against the Swetland Company. The petition averred that the plaintiff below was the lessee of the defendant under a lease which demised to the plaintiff a certain part of the defendant's premises in Cleveland, to be used as a store, in consideration of certain rent therein specified. The lease also contained the following provision:
"The lessee is to keep the show windows of said premises well lighted from dusk until 11 p. m. each day during the term of this lease whether said premises are open for business or not, and hereby agrees and binds himself to light said premises with electricity only, and to heat said premises with steam only, and to buy electric current and steam for the same during the period of this lease from said lessor at the usual rate charged to tenants of its building generally therefor, payment for such electric current and steam heat to be made immediately on presentation of bills therefor by the lessor, the lessor reserving and it is hereby covenanted and agreed by the parties hereto that it is to have the right to cut off and discontinue without notice to the lessee said electric current and heat or any other service whenever and during any period for which bills for rent or electric current or other service are not promptly paid by said lessee."
This provision was in substance repeated in another part of the lease, an additional provision also being inserted therein to the effect that the lessor should not be liable for damages, nor the rental abated, for failure to furnish water, heat, electric current, gas, or other service when such failure to furnish or delay in furnishing is occasioned by needful repairs, renewals, or improvements, inability to secure coal, or by any accident or casualty, or by any cause or causes beyond the reasonable control of the lessor.
Under this lease, the price charged by the lessor to Jonas for electric current was seven cents per unit. Subsequently to the execution of this lease between the parties, a controversy arose over the price to be paid for electric current. This controversy was settled after certain negotiations between the parties; the settlement being evidenced by a letter, a copy of which is as follows:
"The Swetland Company, Swetland Building, Cleveland."September 15th, 1924.
"Jonas Millinery Co., Swetland Building, Cleveland, Ohio — Gentlemen: In accordance with the understanding and agreement had between your Mr. Murray Jonas and the writer, we have passed a credit to your account in the amount of one cent for each unit of electric service used by you to September 1st, as shown by our records, this credit being in the amount of $296.86, making a net amount due us of $1,676.02, which amount is to be paid to us at once.
"In consideration of such payment, it is agreed between us that the rate to be charged for electric service under your lease and paid to us by you is to be six cents per unit beginning September 1st and continuing as long as the present schedule of the Cleveland Electric Illuminating Company for service to us may be in effect. If there is a schedule filed by the Cleveland Electric Illuminating Company in the future either decreasing or increasing their present schedule or rate effective as against us, the rate of six cents as billed to you is to be adjusted either downward or upward as the case may be.
"Further, it is agreed that all future electric service, bills rendered you are to be paid in accordance with the terms of the lease and in any event not later than the 10th of any month; and, further, that you are to immediately dissolve the injunction or restraining order which you have obtained against this company preventing the turning off of your electric service and furnish up copy of court order showing such dissolving of such restraining order.
"Your signing copy of this letter will evidence our understanding of the matter.
"We are glad to have same adjusted and remain,
"Very truly yours,
"The Swetland Company,
"By R.H. Swetland.
"RHS — FEC.
"Agreed to: The Jonas Millinery Co., by Sam Jonas."
The petition claimed in substance that the defendant, although not authorized or qualified as a public utility company, was nevertheless vending the electric current used by plaintiff, and should be subject to the regulation of the public utility statute; that it was charging excessive and discriminatory rates to plaintiff, which plaintiff was refusing to pay, and that the defendant was about to cut off the plaintiff's supply of current and to forfeit plaintiff's lease as a means of exacting payment of such excessive charges and of prohibiting plaintiff from buying its current from the Cleveland Electric Illuminating Company, a qualified public utility. The petition prayed for injunction against cutting off the electric current and against forfeiture of the lease, as well as for accounting and general relief.
The answer admitted the execution of the lease and the formal allegations of the petition, but in general constituted a general denial, and set up the letter above quoted as evidence of a settlement entered into between the parties. The defendant also filed a counterclaim for amounts averred to be due from the plaintiff for electric current furnished under the contract.
A reply was filed to the answer, and the cross-petition. The reply did not deny the furnishing of the current, nor the amount alleged to have been furnished, but denied that the contract was to be taken as the measure of such price, and that the amount claimed to be due was the correct amount.
Upon final hearing the court of common pleas found on the issues joined in favor of the defendant, dissolved the temporary restraining order, found for the defendant upon its cross-petition, and entered judgment for the Swetland Company in the sum of $4,853.97, which is the amount agreed to be due if Jonas is liable under the contract.
Upon appeal to the Court of Appeals, that court found on the issues joined in favor of the Swetland Company, both upon the petition and the cross-petition, and entered judgment in a similar sum.
The case comes into this court upon allowance of motion to certify the record.
Messrs. Stanley Horwitz and Mr. James E. Mathews, for plaintiff in error.
Messrs. Thompson, Hine Flory and Mr. Jerome C. Fisher, for defendant in error.
There being no evidence in the record that the realty company had dedicated its property to the public service, nor had been willing to sell current to the public, under the holding of this court in Hissem v. Guran, 112 Ohio St. 59, 146 N.E. 808, the Swetland Company is not a public utility. The cases cited on behalf of plaintiff in error were cases in which the companies in question furnished service to the public generally, not confining their services to their tenants and employees — an entirely different situation from that disclosed by this record. Not being a public utility, the Swetland Company cannot be compelled to furnish electricity except pursuant to the terms of its voluntary contract. The petition asks that the Swetland Company be forced to furnish electric current at a price to be fixed by the court, which is less than the price voluntarily agreed upon by Jonas and the Swetland Company as one of the terms of the lease and as part of the consideration thereof. To state this proposition is to state that the judgment of the Court of Appeals must necessarily be affirmed.
Judgment affirmed.
MARSHALL, C.J., DAY, ALLEN, KINKADE, ROBINSON, JONES and MATTHIAS, JJ., concur.