Decided August 1, 1911.
On Petition for Rehearing.
Opinion
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 plaintiff’s suit is upon a contract, and not estoppel. Mr. Walker, a witness for plaintiff, only claims that a tentative agreement 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, “It was an agreement that they (plaintiff) would present a contract” — meaning a contract in writing. That a final settlement of the terms of the agreement was to be had, when the contract was presented, is shown by the record of the fire commission meeting of November 5, 1902, and of January 5, 1903, set out in the opinion. Fliedner, chairman of the commission, testified that the board did not authorize the superintendent of the fire alarm system to connect up the auxiliary system. Permission to do so was held in abeyance until the written contract would be presented and signed. Everding, a member of the commission, 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 orders, although it was understood by himself and the superintendent of the alarm system that it was being connected. Plaintiff’s efforts in January, 1905, and again in February, 1910, to secure a franchise for such a right or license as it is claimed had been granted on January 5, 1903, tended strongly to corroborate defendant’s contention. According to the testimony of Campbell, at *419whose suggestion the boxes were to become the property of the city, the purpose of such contemplated ownership 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 were now contested, certainly its title would be of a very doubtful character, and in the subsequent efforts to secure the franchise, defendant’s ownership of the boxes was not recognized by either plaintiff or defendant. However,, plaintiff must be presumed to have acted at its peril in placing the boxes before the contract was effected. It was dealing with a municipal corporation that could act only by and through authorized channels and in a designated manner, of which it will be presumed to have had notice, and the fact that the boxes were connected by the city superintendent of the alarm system, or with knowledge thereof, by some of the other officers of the city, cannot aid plaintiff, as the fire commission or the city is not chargeable with knowledge that plaintiff was acting under a pretended parol contract with the commission. The contract made by the city on April 9, 1907, with the plaintiff, for an automatic auxiliary service at its barn, is in no manner a recognition of the pretended agreement of 1903. It was an independent contract and in no way dependable upon or referable to any further contract. Great weight should be given to the fact that the commission were seeking to have such a contract as was contemplated by the charter and refused to act until it was consummated, and that neither plaintiff nor defendant understood that a contract was concluded between them as shown by the evidence and by the continued efforts to complete such a contract.
The motion is denied.
Reversed: Rehearing Denied.