Gray v. Citizens' Gas Co. ( 1905 )

Opinion by

Mb. Chief Justice Mitchell,

The learned judge below found all the facts in favor of the complainant, saying “ we see- therefore nothing in the way of preventing a decree for the specific performance of this contract by the defendant at the time of the filing of this bill.” But he was of opinion that in a proceeding of this kind the decree should speak as of the facts at the time of the hearing, and as to these he said: “ The facts-show that since the service of the bill, the defendants have been active in an effort to increase the supply of gas by materially increasing the number of wells of supply and the size of the conduits, and by this effort, which has cost a considerable sum, they have remedied the cause of complaint, and by reason of the character of such improvements, that correction may reasonably be expected to remain permanent.”

As the defendant was in fault when the bill was filed, the costs were imposed upon it, but the bill was dismissed on the ground that plaintiffs had secured the object for which it was filed, and the defendant was not now disputing their right. The judge further said : “We do not understand how an occasion might arise such as would entitle the plaintiffs to a decree without first bringing before the court allegations not found in their present bill for the support of which additional testimony would be required. In other words, new averments and proofs amounting to a new cause of complaint would have to be alleged and shown, and there is no reason why such may not be accomplished by a new bill as spe.edily and effectively as under the present one.”

In this there was the serious error of shifting the burden of proof to the wrong party. On a new bill the plaintiffs would be the actors, and at least to some extent would have to set out their case de novo. But with a decree in their favor such as they had shown themselves entitled to at the filing of the bill, all they would have to do at any time would be to come into court and show a breach, and the burden would then be on the defendant to show such change of circumstances or rights as would excuse it.

But independent of any such considerations of convenience of proof, the complainants had established their rights and were entitled to a decree of the court to enforce them. Courts do not of course desire to do vain or unnecessary things, and if this had been a completed contract, under which plaintiffs had already attained all they were or ever would be entitled to, the court might well say that its aid was no longer required. Blit this was a continuing contract, involving service in the future as well as in the past. Performance had been refused, and might be refused again. Defendant is now keeping its contract and sets up its willingness to continue to do so. If it so intends, then the decree carries no hardship to it, but will be a moral support against a change of heart which might occur if the impending hand of the chancellor were withdrawn. Plaintiffs were not bound to rely on a possibly changeable willingness. They had established their case and a decree of the court to enforce continued performance was of right.

Decree reversed and decree for specific performance directed to be made in accordance with the prayer of the bill. Costs to be paid by the appellee.