Welty v. Jacobs , 1896 Ill. App. LEXIS 900 ( 1896 )

Mr. Justice Waterman

delivered the opinion of the Court.

The only remedy that a court of equity could give the complainant that might not be given by a court of law, would be to direct a specific performance of the contract, and to forbid the defendant to allow any one, save the complainant, to use the theater during the period from December 29th to January 4th, inclusive.

The court could not compel a complete specific performance. It could not compel the defendant to supply “ stage hands, flymen, regular ushers, property men, janitor, ticket seller, door-keepers, orchestra,” although it might mulct the defendant in damages for not supplying such help. The distinction between restraining one from interfering and restraining a party from refusing to furnish, is obvious.

The contract contemplated that the defendant Jacobs should supply the regular help belonging to his theater. Such help might refuse to work, and could not be compelled to. Am. Live Stock Com. Co. v. Chicago Live Stock Exch., 41 Ill. App. 149; Kennicott v. Leavitt, 37 Ill. App. 437.

It was impossible for the defendants to be brought into court, and this cause heard, before the time for the execu- ' tion of the contract would have been at an end. The performance was to begin December 29 th and end January 4th. The bill was filed December 28th; the defendants could not be compelled to answer the bill until after January 14th. The law is such that ere a hearing could have been had the contract would have expired. It was for this reason, also, impossible for the court to compel a specific performance of the contract. A court' of equity ought not to entertain a bill for specific performance of a contract when it»is manifest that before a hearing can be had, the time for performance, it being of the essence of the agreement, will have expired. Hovannian v. Bedessern, 63 Ill. App. 353; Pomeroy’s Eq., Sec. 1405.

The injunction granted was too broad, and as granted could Mot have been enforced. The defendant Jacobs could not, by an injunction restraining him from refusing to furnish? to the complainant the usual and necessary “ light, heat, music, regular stage hands, stage carpenter, flymen, ushers, gas man, property men and equipment in accordance with the terms of said contract,” have been compelled to supply such men and equipments.

If the defendant Jacobs refused to carry out his agreement, the complainant liad an adequate remedy at law, while under the circumstances a court of equity could not give anything save money damages.

The decree of the Superior Court, dismissing the bill, is affirmed.