Oconto Electric Co. v. Oconto Service Co. ( 1918 )

Siebecker, J.

The appellant insists that the city has the 'right to breach plaintiff’s contract with the city (dated May 20, 1914) for doing the municipal lighting in Oconto for five years from August 7, 1914, upon the authority of the decision of this court in the action brought by plaintiff against the city and appellant (then the Peoples Land & Manufacturing Company), which is reported in 165 Wis. 467, 161 N. W. 789. The claim is made that this court then adjudged and determined, by affirming the holding of the trial court, that the city had the right to breach plaintiff’s contract. The circuit'court held and adjudged that this contract beween the parties was valid and binding upon the parties “except as to the rate for service fixed thereby;” “that said Oconto Electric Company is not entitled to specific performance of said contract, but in case of breach thereof by said city is limited to the remedy of an action at law for damages.” Upon this ground the appellant asserts that the city is within the right there established when it expressly canceled plaintiff’s contract. As appears in the report of that case, the city council had made two contracts, one with the respondent and' one with the appellant, for doing the municipal lighting for five years from August 7, 1914, and that the appellant and respondent each insisted on the validity of its contract to do the municipal lighting for that period. These respective claims under these contracts led to the prosecution of the. litigation and a determination of the issues raised by the respective claims of the parties under the contracts.

It appears from the record that this court reversed the determination of the circuit court by adjudging that the appellant had no valid contract to do the municipal lighting for the five years beginning August 7, 1914, and affirmed the trial court’s decision that respondent’s contract to fio such lighting was valid and entitled it to occupy the municipal lighting field for that period. As a consequence of this determination by this court there was no question presented to this court to' determine the right of the city to breach respondent’s contract or to have it specifically performed. These questions are not necessarily involved in the decision of this court, nor did the court consider that such questions were determined by the decision of the case. The mandate of this court clearly did not approve what the trial court held to be the rights of the parties in the light of the facts found by it which were in part reversed by this court and thus eliminated these questions from the decision rendered. It follows that the former decision is not res judicata upon the right of the city tO' breach respondent’s contract nor upon the question that respondent’s contract is not specifically enforceable. The contract of the plaintiff' with the city is of a class that have been deemed within the equitable jurisdiction for relief by specific performance when it appears that they are of a distinctive and peculiar value other than a pecuniary one, and where the relief in damages is not an adequate and efficient remedy to make good the loss sustained for a breach. Burlington v. Burlington W. Co. 86 Iowa, 266, 53 N. W. 246; Walla Walla v. Walla Walla W. Co. 172 U. S. 1, 19 Sup. Ct. 77; Columbia W. P. Co. v. Columbia, 5 S. C. 225; Chicago M. G. L. & F. Co. v. Lake, 130 Ill. 42, 22 N. E. 216; Bienville W. S. Co. v. Mobile, 112 Ala. 260, 20 South. 742; Edison I. Co. v. Eastern Pa. P. Co. 253 Pa. St. 457, 98 Atl. 652.

There can be no question of the binding effect of the provision of the stipulation made by the parties at the suggestion of the railroad commission and that such agreements are in the nature of contracts and subject to enforcement as such. Deen v. Milne, 113 N. Y. 303, 20 N. E. 861.

The' allegation of fact concerning the making of this stipulation, the conduct of the parties connected therewith, plaintiff’s prosecution of the former action in reliance thereon, the costs and expenses incurred by plaintiff on account thereof, and the delays occasioned thereby in the enforcement of its rights under the contract, constitute such a material change of its rights and former status, to its disadvantage, which were induced by the appellant’s and city’s conduct, that they cannot now in conscience and equity be permitted to assume a different position which would deprive plaintiff of the fruits of the former litigation and an enforcement of its contract with the city established in that litigation. The morality and justice of the transaction and the rights of the plaintiff appeal especially to conscience and equity and afford a solid ground for the interposition by the court upon the principles of equitable estoppel. The grounds of such estoppel are clearly stated as follows:

“While waiver is not in the proper sense of the term a species of estoppel, yet where a party to a transaction induces another to act upon the reasonable belief that he has waived or will waive certain rights, remedies, or objections which he is entitled to assert, he will be estopped to insist upon such rights, remedies, or objections to the prejudice of the one misled.” 16 Cyc. 805.

The city fully acquiesced in and accepted the benefits of the stipulation and the fruit of plaintiff’s action, prosecuted in reliance thereon, and it would be unconscionable to permit it now to take the position of repudiating plaintiff’s established right, to which it cannot now be restored nor be awarded a complete, adequate, and efficient remedy in a legal action. We are satisfied that the city should in equity be prohibited from canceling the plaintiff’s contract and from refusing specific performance thereof as established in the former judicial proceeding under the stipulation of the parties. We are of the opinion that the, complaint states a good cause of action for restraining the city from breaching such contract and thus compel it to perform the same. Injunction is a proper remedy for enforcing the rights of the plaintiff under the facts and circumstances presented here, tending to show an irreparable injury. Ed. Schuster & Co. v. Kuryer P. Co. 165 Wis. 327 (162 N. W. 173) and cases cited on p. 330; Chicago M. G. L. & F. Co. v. Lake, 130 Ill. 42, 60, 22 N. E. 216; Walla Walla v. Walla Walla W. Co. 172 U. S. 1, 12, 19 Sup. Ct. 77.

The trial court properly overruled the demurrer to the complaint.

By the Court. — The order appealed from is affirmed.