Electric Lighting Co. v. Mobile & Spring Hill Railway Co. , 109 Ala. 190 ( 1895 )

BRTCKELL, O. J.

The bill is without a special prayer for the enforcement of the performance of the contract, the subject matter of controversy, but the prayer for an injunction to be continued during the term of the contract, restraining the defendants from threatened breaches of the contract, is ihe equivalent of a prayer for specific performance, converting the bill, if not in form and letter, in substance and spirit, into a bill of that character. 1 Beach, Inj. § 443; Joy v. St. Louis, 138 U. S. 1; Johnson v. S. & B. R. Co.; 3 DeG. Mc. & G. 914-22. An injunction in aid of specific performance is merely ancillary. The primary inquiry is, necessarily, whether the contract on which the bill is founded is of the nature and character of which the court is accustomed to decree specific performance. If it is not of this nature and character, or, if for the injury of which complaint is made the law provides an adequate remedy, the bill fails, and the incidental or consequent remedy by injunction must fail. — 1 Beach, Inj., § 7; 2 High, Inj., § 1109, et seq.

The parties to the contract are corporations, organized under the laws of the State, having their domicil and place of business in the city of Mobile. As is to be collected from the contract, and from the allegations of the bill, the complainant was engaged in the generation of electric power, and the defendant in the operation of a street railway extending from the city to Spring Hill, a distance of more than six miles. The contract was entered into on the 13th day of May, 1893, to take effect on the succeeding first of July, and continue for a term of two years. The complainant had the option or privilege on giving notice, of' continuing or extending it for a further and additional term of three years, which had been exercised before the filing of the bill. The contract contains mutual stipulations or promises. The complainant agrees to furnish steam power delivered to the pulley of an electric dynamo, of the power of one hundred kilowatts, and to furnish the power “constant,” for eighteen hours per. day from six o’clock a. m. to twelve o’clock p. m. The defendant agrees to furnish generators and other electrical apparatus, to be placed in the station or powerhouse of the complainant, and to keep them in good repair ; connected by belt, ready for the pulley of the engine to be attached to the pulley of the generator. The complainant agrees to furnish all oil, and waste, and attendance for the running of the generator -and other apparatus, taking reasonable care of them, without responsibility for ordinary, wear and tear, or for accidents. The defendant promises to pay for the services rendered by the complainant twenty-eight dollars per day for four or less motor cars, each car of forty horse power; and every car privileged to tow a passenger trailer; and five dollars per day for an additional motor car with trailer. The contract con tains other stipulations, not material in the view we take of the case.

We have a contract which at the time of the filing of the bill had an unexpired term of five years, imposing on the complainant the rendition of continuous mechanical services, demanding the highest degree of skill, and necessitating the expenditure of considerable sums of money; on the defendant imposing the duty of maintaining costly machinery, keeping it in repair, and the daily use of cars moved by electricity on the line of its railway. This duty is to be performed though the necessities of its business may not justify it, or may require that some other motive power should be employed.

The general doctrine is that a court of equity will decree specific performance only when it can dispose of the matter in controversy by a decree capable of present performance. It will not decree a party to perform a continuous duty extending over a series of years, but will leave the aggrieved party to his remedies at law.— Pomeroy on Contracts, § § 22, 114, 312; Waterman Spec. Perf. § 49; 1 Beach, Inj. § 443; Iron Age Publishing Co. v. Western Union Tel. Co., 83 Ala. 458; S. & N. Ala. R. Co. v. Highland Avenue & Belt, R. Co. 98 Ala. 400; Marble Co. v. Ripley, 10 Wall. 339; Richmond v. Dubuque & Sioux City R. Co. 33 Iowa, 422; Port Clinton R. R. Co. v. Cleveland & Toledo R. R. Co., 3 Ohio St. 544; Johnson v. Shrewsbury & N. R. R. Co. 3 DeG. Mc. & G. 914; Blackett v. Bates, L. R. 1 Ch. App. 116. Suppose relief was granted the complainant, and the threatened breaches of the contract restrained, can the court retain the case, as the bill proposes, until by its own limitation the contract expires, superintending the conduct o£ the complainant and of the defendant, in the performance of the duties the contract imposes? There is no precedent or authority for such a decree. Mutuality in the equitable remedy is of the essence of the right to specific performance of a contract. As is said by Mr. Pomeroy, “the remedy must be attainable by both parties.” Pomeroy, Contracts, § 164. The defendant could not have a decree against the complainant for a specific performance of the contract. The complainant could not be compelled to keep and maintain its machinery and skilled employes to operate'it; to pursue its business, at a pecuniary lose, it may be. There can be no assurance that the complainant will remain of sufficient pecuniary ability to continue its business, to keep and perform its part of the contract. These, and like considerations, have induced the courts, in cases like the present, to ab-, stain from all interference by injunction ,or a decree for specific performance.

What is a further satisfactory reason for withholding equitable interference is that the complainant has an adequate remedy at law for all breaches of the contract; and by the terms of the contract, because of the defaults of tlie defendant in making payments of the compensation, has the unqualified right to terminate it.

We find no error in the decree of the chancellor, and it must be affirmed.