Wilbur v. Gold & Stock Telegraph Co. , 20 Jones & S. 189 ( 1885 )

By the Court.—Sedgwick, Ch. J.

The present action is not for damages for a breach of the contract. It is, in substance, an action for specific performance of the contract. This is not matter of absolute right. Equity does not always compel specific performance. Circumstances may exist that will justify the court in using its discretion by denying an application for such a judgment. A leading inquiry always is, whether or not the plaintiff can obtain full satisfaction by an award of damages at law. Another, relates to the disposition of a case where the defendants are unable to specifically perform. The usual practice, at least, is not to give such relief. Where the inability arises after the beginning of the action, it must ■ be pleaded, if at all, by a supplementary answer. In a general sense, the defendant appeals to the' discretion of the court. As the canse of action is an appeal to discretion, the counter appeal by the other party is, in its nature, a defense, which, upon a hearing, may be maintained by the court. The proposed supplemental answer contains averments of facts which a court would be bound to hear before giving the judgment demanded by the plaintiff. It is not necessary now to say absolutely, that if the facts referred to are proved, the court would be bound to dismiss the complaint. It is enough to say that the defendant has a right to prove facts that tend to show that it would not be equitable to maintain the contract perpetually or that the defendant is unable to perform.

The order is reversed with $10 costs and disbursements to be taxed, and the motion below is granted, with $10 costs to abide event.

Freedman, J., concurred.