These contentions, in our opinion, are not impressed with merit. These ideas, carried to their full extent, would require every later subscriber to pay more for the same service than his former neighbor subscriber. While it is probably true that the cost of operating a telephone exchange increases with the increased volume of business, it is equally true that the whole body of subscribers, whether new or old, makes the added expense, and reaps the added benefit. A telephone exchange with one thousand members is manifestly more valuable to every subscriber than one with one hundred members, but it is equally valuable to each member in the same class, and its value to the subscriber does not depend, in any degree, upon whether he is a new subscriber or an old one. It is difficult to understand why new subscribers should pay any more for the right to talk to old members than the latter do for the right to talk to new ones. What by way of investment or extension benefits one equally benefits the other. If the defendant is running its business at a loss at the price charged old subscribers, and taking on new subscribers increases the loss, then it may increase its rates, but it should do so without discrimination, and treat alike the 389 subscribers getting the same class of service. The manager of the defendant testified that he stated to complainant that there was no charge for installation, that the basis of defendant's charge of thirty dollars to complainant was not based on installation expense, but that the sum named was an established rate for new subscribers, and that was the only reason for making that charge. The statute above quoted is but declaratory of the common law, and in addition provides the remedy in case a telephone company attempts to discriminate between subscribers of the same class.

In 27 American and English Encyclopedia of Law, second edition, at page 1021, it is said: "Telephone companies, whether corporations or not, are affected with a public interest and are bound to serve impartially, and without unjust discrimination, all who apply for their service and offer compliance with their reasonable regulations. In many of the states statutes exist which provide for the recognition and enforcement of these obligations, but it seems that these are merely declaratory of the common law on the subject." See many cases there cited. Counsel upon both sides cite Western Union Tel. Co. v. Call Publishing Co., as it appears in 44 Neb. 326, 48 Am. St. Rep. 729, 62 N. W. 506, 27 L. R. A. 622, 58 Neb. 192, 78 N. W. 519, and 181 U. S. 92, 21 Sup. Ct. Rep. 561, 45 L. ed. 765. Counsel for defendant relies upon the following language, taken from the decision of the United States supreme court in said cause: "There is no castiron line of uniformity which prevents a charge from being above or below a particular sum, or requires that the service

shall be exactly along the same lines. But that principle of equality does forbid any difference in charge which is not based upon difference in service, and even when based upon difference of service must have some reasonable relation to the amount of difference, and cannot be so great as to produce an unjust discrimination. . . . . It is not an undue preference to make to one patron a less rate than to another 390 when there exist differences in conditions as to the expense or difficulty of the services rendered which fairly justifies such a difference in rates."

The distinction is clearly pointed out in the headnote to the case cited, as follows: "Where there is dissimilarity in the services rendered by a telegraph company to different persons, a difference in charges is proper.

case.

In the case at bar no such distinction exists or is present. The service to the old and to the new subscriber is identical. The case is readily distinguished from the Call We have examined the following cases cited by counsel: American Waterworks Co. v. State, 46 Neb. 194, 50 Am. St. Rep. 610, 64 N. W. 711, 30 L. R. A. 447; Richmond Natural Gas Co. v. Clawson, 155 Ind. 659, 58 N. E. 1049, 51 L. R. A. 744; Snell v. Clinton etc. Power Co., 196 Ill. 626, 89 Am. St. Rep. 341, 63 N. E. 1082, 58 L. R. A. 284; Griffin v. Goldsboro Water Co., 122 N. C. 206, 30 S. E. 319, 41 L. R. A. 240. We are of opinion that the defendant in its conduct complained of was guilty of a discrimination against the complainant in violation of the letter and spirit of the statute, and that the circuit judge reached the proper conclusion.

The decree below is affirmed, with costs to complainant. Ostrander, Hooker, Moore and Blair, JJ., concurred.

The Business of a Telegraph or Telephone Company is Public in its nature and a public interest is impressed thereon to such an extent that no discrimination can be made against persons or corporations in its business of receiving and transmitting messages: Inter-Ocean Pub. Co. v. Associated Press, 184 Ill. 438, 75 Am. St. Rep. 184; Western Union Tel. Co. v. Call Pub. Co., 44 Neb. 326, 48 Am. St. Rep. 729; Stewart, Morehead & Co. v. Postal Tel. C. Co., 131 Ga. 31, 127 Am. St. Rep. 205.

'AMERICAN TRUST AND SAVINGS BANK v. MOORE. [161 Mich. 436, 126 N. W. 716.]

BILLS AND NOTES-Parting With Value by Vendor of Chattel. Where a seller of an automobile keeps it under control by putting it in the hands of one of his employés as driver until he can ascertain whether a certificate of deposit received in payment is good, he does not part with value for the instrument, and cannot recover thereon. (p. 519.)

SALES-Rescission by Seller-Restoring Consideration.-It is the duty of the seller of a chattel to tender back the note or money received, as a condition to the right to recover the property, except when the paper is worthless or the tender impossible. (p. 520.)

SALES-Recaption by Vendor-Suit for Purchase Price.Where the vendor of an automobile receives a certificate of deposit in payment, but, on being informed by the bank that the certificate is not good, takes and retains possession of the machine, he cannot recover on the certificate of deposit. (p. 520.)

Clifford A. Bishop and John H. Farley, for the appellant. Andrew L. Moore and Henry E. Walbridge, for the appellees.

437 HOOKER, J. The plaintiff is the assignee in bankruptcy of the Weber Company, a Chicago concern, which was engaged in the sale of automobiles before it became insolvent. Gilmore applied to it to purchase an automobile. A machine and price were agreed on, the latter being three thousand three hundred dollars. Gilmore tendered in payment a certificate of deposit, issued to him by the defendants, copartners, 438 doing business in Michigan under the name of the "Bank of Linden." Whether the machine was delivered unconditionally to Gilmore or not is a disputed question of fact. He was allowed to use it, at all events, the same being driven by a man whom plaintiff claims to have been employed by him at the suggestion of Weber. The certificate was deposited to the credit of the Weber concern, and both the bank with which it was deposited and Weber telegraphed the Bank of Linden to know if it was good. The following telegram was received by the Weber Company in reply: "No good. Hold certificate and arrest man." Thereupon the Weber Company ordered the driver to leave the machine in a garage adjoining its salesroom, run by another concern, Orlando Weber being president of both companies. Gilmore disappeared, and has not been seen since. The machine remained from that time under the control of the Weber Company, and it was ultimately sold by said company for two thousand dollars, after putting upon it somewhat extensive repairs and paying storage. This action was begun by the Weber Company soon after the discovery that

defendants repudiated the certificate. Subsequently it was declared a bankrupt, and the assignee was substituted as the party plaintiff by stipulation. An amended declaration in all respects similar to the original declaration, except in the matter of the names of parties, was filed. This declaration was "the common counts," with a copy of the certificate of deposit attached. To a plea of the general issue a notice was attached alleging the fraudulent character and invalidity of the instrument and the want of good faith in its purchase. A verdict for the defendants was directed, judgment was entered thereon, and plaintiff has appealed.

The counsel for the plaintiff in the opening statement to the jury admitted the foregoing facts, but claimed that the Weber Company was a purchaser in good faith and for value, and that plaintiff was entitled to recover the face of the instrument, but was willing, if it could be properly secured against a claim by Gilmore, to take a verdict 439 for its actual damages, stated to be about two thousand dollars, otherwise it would ask the full amount of the certificate. To establish its case, plaintiff offered testimony showing its sale of the car and its acceptance of the certificate as payment. Cross-examination brought out many of the other facts relied on by the defense. This was supplemented by testimony offered by the defendants. In rebuttal, the plaintiff sought to show the expense put upon the car and what it had lost in the transaction. This was taken under objection. Counsel for defendants then asked that the testimony in rebuttal be stricken out and a verdict directed for the defendants upon the ground that unliquidated damages could not be recovered in an action on the common counts. The court thereupon directed a verdict for the defendants and plaintiff has appealed.

At the threshold of the case was a disputed question of fact; i. e., whether plaintiff's president parted with the title to the automobile. He claims that on receipt of the certificate he made and delivered a statement of the item marked "Paid in full," and signed by him, and delivered the machine to Gilmore, who took it away. On the other hand, defendants offered testimony tending to show that he actually kept control of it until he should hear from the certificate by putting it in the hands of one of plaintiff's employés as driver for Gilmore. This was an important question, for, if defendants' claim is found true, it cannot be said that the plaintiff parted with value for the instrument, and therefore it could not recover, but this was a question that the court erred in taking from the jury, unless some other question in the case justified such a charge. It is claimed that there is at least one such question in the case.

440

It is contended that, by the recaption of the automobile, the plaintiff recovered back all that it paid Gilmore for the certificate, and therefore that it cannot now claim to be a purchaser for value; that this was a rescission of the contract; and that it had no longer any title to the certificate, having repudiated the transaction upon which its alleged title rests. Let us suppose that it had paid three thousand three hundred dollars in money for this certificate, and had succeeded in recapturing the identical money paid. We doubt if it would be, and still more if it could be, successfully contended that the plaintiff still had a title to the instrument, which under the old case of Vinton v. Peck, 14 Mich. 287, would entitle it to sue upon and recover the full face of the certificate. In that decision we held that if a purchaser in good faith paid any value, the face of the note, and not the lesser amount paid, was the measure of damage in a suit upon the paper: See, also, Hunter v. Parsons, 22 Mich. 96.

Upon what ground, then, could we hold, as I think we would, that the plaintiff could not recover, except upon the theory that, having elected to take back his money, he no longer owned the note. It might be a rescission though he did not recover all or any of the money, and the effect of the disaffirmance would be the same. We all know that in such a case it is usually the duty of the vendor to tender back the note or property paid, as a condition to the right to recover his property. Exceptions to this condition are when, as in this case, the paper is worthless in the hands of the vendee, and where the vendor is unable to tender back the paper. In this case money was not paid for the certificate, but upon plaintiff's theory an automobile was sold and delivered. Grant it; but two or three days later the plaintiff acted. It had a choice of remedies, viz.: (1) It might have let the sale stand and rely on its bona fides; (2) It might disaffirm the contract and take its property. It claims that it did neither, but that it seized the automobile for the benefit of the defendants, admitting that it was a wrongdoer in taking the property.

We have examined the proof in this case, and we think that it conclusively shows a plain case of rescission as against Gilmore in law. Having done this, plaintiff cannot 441 recover upon the instrument, which it sought to do, and the court did not err in saying so.

The judgment is affirmed.

Ostrander, Brooke and Blair, JJ., concurred.

Montgomery, C. J., who heard the arguments in this case, resigned before decision rendered.