
    COCKRELL & COMPANY v. CHESAPEAKE & POTOMAC TELEPHONE COMPANY.
    Telephone Contract; Termination; Unla-wtul Kate.
    One who continues to accept telephone service after duo notice of the termination of his existing contract with the telephone company because the contract rates are unlawful, although declaring that he will pay only the contract rates, must pay the lawful rates for such service irrespective of the terms of the contract. (Citing Heiskell v. Chesapeake é P. Teleph. Co. 45 App. D. C. 13S.)
    No. 3058.
    Submitted February 6, 1918.
    Decided March 4, 1918.
    Hearing- on an appeal from a judgment of tlio Supreme Court of the District of Columbia for want of a sufficient affidavit of defense in an action for telephone service rendered.
    
      Affirmed.
    
    The Court in the opinion stated the facts as follows:
    Appeal from a judgment for the Chesapeake & Potomac Telephone Company, plaintiff, appellee here, under the 73d rule.
    Plaintiff was furnishing Cockrell & Company, defendant, appellant here, telephone service under flat-rate business telephone contracts which provided that either party might germinate them after the expiration of the first year by ten days’ notice in'writing. Subsequent to .the passage.of the Act of March 4, 1913 (37 Stat. at L. 974, chap. 150), creating the Public Htilities Commission, and the ruling of the Commission that such flat-rate contracts were discriminatory within the meaning of said act, plaintiff duly notified defendant of their termination. Thereupon defendant wrote plaintiff that if telephone service was continued “flic defendant would not pay for such service- upon any terms other than those contained in said contracts.” In another communication defendant said: “We demand a continuance of said fiat-rate service contracts; and if you render service on said telephones, we shall not, irrespective of any past or future notice from you, to the terms of which we shall not have agreed in writing, pay you for such service, upon any terms other than those contained in said flat-rate service contracts.” To these communications plaintiff responded that it could continue the service “only at our regular standard rates.” To this defendant answered again denying the right of the plaintiff to abrogate said flat-rate contracts, and insisting that it would be unlawful for plaintiff to demand a greater compensation than therein fixed. However, service ivas continued, and this suit is for $1,890.99, the difference between the amount called for by said fiat-rate contracts and the measured service.
    
      Mr. J. J. Darlington and Mr. IF. C. Sullivan, for the appellant, in their brief cited:
    
      Alexander v. Alabama. Western R. Co. 179 Ala. 484; Armour Packing Co. v. United Stales, 209 IT. S. 57, 72; Baldwin v. Com. 11 Hush, 426; Broughton v. Broughton, 11 Mich. 26; Cohn v. Hcimbavek, 86 Wis. 176, 180; Efron v. Siees, 113 Minn. 242 ; Ford v. MacVeagh, 55 111. 122; Gallagher v. Equitable Gaslight Co. 141 Cal. 705; General JAthograph & Printing Co. v. Washington Rubber Go. 55 Wash. 461; Gulf, Colorado R. Co. v. Ilefley, 158 II. S. 98; Heiskell v. Chesapeake & P. Teleph-. Co. 44 Wash. L. Rep. 295; Hickey y. Lundy, 168 Mich. 338; Iron 1 Forts v. Douglas, 49 Ark. 355; Jameson v. Carpenter, 68 N. IT. 63; Ladd v. Rogers, 11 Allen, 209; Louisville & N. II. Co. v. Mottley, 219 II. S. 467; Meyers v. Meinrath, 101 Mass. 366; Neiv Haven R. Go. v. Interstate Commerce Commission, 200 II. S. 361, 381; Perkins v. Hart, 11 Wheat. 237, 252 — 253; Phoenix Lumber Co. v. Houston Water Co. 94 Tex. 464; Seigel x. Borland, 191 111. 112; Sheriey x. Sherley, 84 Atl. 165; Sloan v. Wolf Go. 124 Fed. 196; Smith v. Great Northern R. Go. 15 N. D. 195; Southern 11. Go. x. Ilarrisoyi, 43 L.R.A. 385; Texas £ P. R. Co. v. Abilene Colton 
      
      Oil Go. 204 IT. S. 426; Texas & P. R. Go. v. Mugg, 202 U. S. 242; Thomas v. Richmond, 12 Wall. 349, 357; Tietz v. Tietz, 90 Wis. 60; Till v. LaSalle Silk Mfg. Go. 5 Daly, 19; Under-hill v. No. Amer. Kerosene Gaslight Go. 36 Barb. 354; Yoorhees v. Gombs, 33 N. J. L. 496; Walker v. Brown, 28 111. 383; Walson v. Gugino, 204 N. T. 542.
    
      Mr. Charles Cowles Tucker, Mr. Henry B. F. Macfarland,, Mr. J. Miller Kenyon, and Mr. Edward S. Bailey, for the appellee, in their brief cited:
    
      Armour Packing Go. v. United Slates, 209 IT. S. 57; Central R. Go. v. Mauser, 241 Pa. 003; Cunningham Mfg. Go. v. Holograph, Go. 30 App. D. O. 524; Georgia R. Go. v. Birmingham, Sand £ Brick Go. 64 So. 202; Ileiskell v. Chesapeake £ P. Teleph. Go. 44 Wash. L. Ilep. 295; Illinois O. B. Go. v. Henderson Elevator Go. 226 17 S. 440; Kansas City Southern R. Go. v. Carl, 227 IT. S. 639; Lends will e £ N. R. Go. v. Maxwell, 237 IT. S. 94; New York, N. II. £ II. 11 Go. v. York £ T. Go. 215 Mass. 36; Savannah F. £ 117 II Go. v. Bundid', 94 Ga. 775; Smith v. Great Northern R. Go. 15 N. D. 195; Texas £ P. 11 Gó. v. Abilene Gollon Oil Go. 204 IT. S. 445.
   Mr. Justice Hour

delivered tbe opinion of the Court:

It thus appears that there ivas a difference of opinion between this public service corporation and the defendant, one of its patrons, as to whether the flat rate or measured service rate ivas in force. That question was determined in Heiskell v. Chesapeake & P. Teleph. Co. 45 App. D. C. 138, where it was ruled that such flat-rate contracts were discriminatory and prohibited by said Public Utilities Act. The defendant insists, nevertheless, that plaintiff may not recover because “the law does not create an implied agreement where an express contract already exists.” Wc think this contention is inconsistent with our ruling in the Heiskell Case. When this service was rendered, the law had fixed the measure of compensation, and the plaintiff was without authority to exact more or receive less. The service having been rendered to and accepted by the defendant, recovery may he litid, as repeatedly held by the Supreme Court of the United States. The decisions on the point art' carefully reviewed in Louisville & N. R. Co. v. Maxwell, 237 U. S. 94, 59 L. ed. 853, L.R.A.1915E, 665, P.U.R.1915C, 300, 35 Sup. Ct. Rep. 494, where the court, speaking of the Interstate Commerce Act, said: ‘‘The rate of the carrier duly filed is the only lawful charge. Deviation from it is not permitted upon any pretext. Shippers and travelers are charged with notice of if, and they as well as the carrier must abide by it, unless it is found by the Commission to ho unreasonable. Ignorance or misquotation of rates is not an excuse for paying or charging either less or more than the rate filed.”

The defendant having stated no defense, it follows that the judgment must be affirmed, with costs. Affirmed.  