Baker v. San Francisco Gas & Electric Co.

GRAY, C.—

This action was brought to recover five hundred and thirty dollars as liquidated damages under section 629 of the Civil Code, for refusal and neglect of defendant to supply plaintiff with gas from January 9, 1900, to April 9, 1900. The defendant had judgment and plaintiff appeals.

The ease was tried upon an agreed statement of facts, which is made the findings in the case by stipulation between the parties. So far as necessary to this opinion, these facts are as follows: Plaintiff formerly resided at 124 Fulton Street, San Francisco, and there took gas of defendant after depositing with it five dollars in advance and receiving in return a receipt as follows:—

“Received from E. C. Baker, five dollars as deposit in advance for gas to be used at premises No. 124 Fulton Street.

[711]

This deposit is only to he refunded upon the surrender of this certificate at final settlement. The regular bills of the company must be promptly paid without reference hereto.

“For the Company, W. Keegan.”

Plaintiff moved from Fulton Street October 20, 1898, to 301 Grove Street in said city, owing $3.85 for gas used at the Fulton-Street house. Plaintiff continued to take gas of defendant at the Grove-Street house, and on December 22, 1898, defendant presented to her a bill for $2.45 for gas used at the Grove-Street house and also a bill for $3.85 for the gas consumed on Fulton Street. The plaintiff thereupon offered to pay the $2.45 for gas used on Grove Street, and offered to surrender to defendant the aforesaid receipt for the five-dollar deposit, and authorized defendant to deduct from said deposit said sum of $3.85 due for gas used on Fulton Street. The defendant refused so to do, and notified plaintiff that unless the sum of $6.30 was paid to it before noon of January 13, 1899, defendant would discontinue supplying said building on Grove Street with gas. Plaintiff failed to comply with this notice, and the gas was accordingly shut off by defendant. On January 20, 1899, plaintiff, in writing, demanded of defendant that gas be supplied for the Grove-Street house, but defendant refused to do so, and continued to refuse during the time involved in this action.

The section 629 of the Civil Code, upon which this action is based, reads as follows:—