Thompson v. Weeks

Lacey, J.

We think the court below erred in holding that the complainant had a cause of action and that equity had jurisdiction to grant any relief whatever. As we interpret the contract the appellants reserved the special right to permit or prohibit any further excavation on the premises except at “the immediate neighborhood of the farm crossing and the Michigan Central "Railroad,” where a switch was then being placed. This being so, the appellee had no right to remove and commence to excavate at point “ 0” on the same farm eighty rods distant from the place first designated at point “A” without the consent of appellants. It is contended by appellee that the words in the parenthetical clause of the contract, to wit, “for the convenience of said Weeks and for the well-being of the farm and as may be agreed upon from time to time,” does not give appellants the right to arbitrarily and without reason refuse to allow other parts of the farm to be dug over and the sand and loam removed therefrom other than at point “ A;” that if the well-being of the farm, as a matter of fact, is considered and observed in the change in the place of excavation the consent of the appellants njay be dispensed with entirely. We do not so interpret the contract. The right to refuse the change is expressly reserved by appellants in the contract.

The words in the first part of the contract, which grants to appellee the ‘‘exclusive right of using and removingfor the purpose of trade, loam and sand from their farm in Mew Lenox, Will county, Ill., for a term of three years,” do not, when read with the coupled conditions, grant to the appellee the privilege to remove such material from the entire farm, irrespective of the subsequent right of appellant to agree or not to agree to any change. The first clause of the contract is specific in limiting the right to change the location of removing material to the agreement of the parties. Courts can not make new contracts for the parties, but must leave it as made by them. But, even if the contract should be so ini erpreted as that the appellants had no right arbitrarily to refuse assent to a change of the place of excavation, for the purpose of removing sand and loam, so long as the well-being of the farm was observed and considered in so making the change, yet, we are of opinion that a court of equity would have no jurisdiction under the facts as developed by the bill and evidence to grant the relief sought. If the appellee had been refused the privilege to make a change of place in his operations in removing loam and sand in violation of the contract, and to his injury, he had an adequate remedy at law, nor do we see anything in the evidence to show that complete damages could not be recovered in a suit at law in case of a breach of the contract by appellants. But it is insisted here that this suit in equity is in the nature of a bill to enforce a specific performance of a contract and therefore that the court had equity jurisdiction. Let us examine this claim for a moment.

Suppiose the appellants had refused the appellee the privilege of removing his operations from the first location to the second one, and forbade him from taking possession of any other part of the farm, and the appellee, instead of taking the law into his own hands, as he did in this case, and taking possession of the desired spot, had filed his bill in equity, asking strictly a specific perf or manee, designating the place where he would compel the assent of appellants to his work, alleging the well-being of the farm was observed in the new selection; would it be contended that a court of equity could entertain jurisdiction of such a case? AYe think clearly not. The contract, even in that view, is so vague and uncertain that no court of equity would undertake to enforce a specific performance of it; and then, again, a court of equity, at each subsequent refusal by appellants, might be called upon again and again to construe and enforce it, as vague and uncertain as it is. Where the contract sought to be specifically performed is uncertain in its terms, courts of equity will not undertake to decree its joerformance, but will leave the parties to their remedy at law. Bowman v. Cunningham, 48 Ill. 78; Fitzpatrick v. Beatty, 1 Gilm. 454; Gosse v. Jones, 73 Ill. 508.

In order to uphold appellee’s claim to remove dirt at excavation “C,” the court must order a performance of a portion of a contract not agreed upon, and which, if it has any existence at all, is uncertain and difficult, if not impossible, to determine. 2 Story’s Eq. Jur., Sec. 793, note A; 2 Wheaton, 290, 236.

If this bill is in its nature one to enforce specific performance, then, as we have seen, a court of equity would not take jurisdiction. But it is insisted that it is not a bill for specific performance, but one simply to restrain a]?pedants from interfering in a case where the appellee was only in the enjoyment of his rights under the contract, and to prevent irreparable injury. AYe can not think that this case comes within the rule contended for, when its subject and nature is considered. The appellants refused appellee the privilege under the contract to take possession of or excavate at point “0” on the farm. It then became a question of fact to be determined by the court, even under the contention of appellee, whether said point is one that may be worked under the contract, depending upon whether it can be excavated consistently with the well-being of the farm. Appellants deny it and refuse to agree, and appellee has taken possession of it, or proposes to do so, contrary to appellants’ will, thus determining the question in dispute for himself, at least temporarily, and tying up the hands of appellants, by this injunction suit, from interfering with him in his work, or by bringing suits, until a final hearing. By the time the cause would be heard the work would be done at the disputed point, and perhaps irreparable damage caused to the farm, and the court may finally decide that possession was wrongfully taken. By the time this cause is heard another and another point may be selected, and the same process repeated till finally the farm is ruined, and this by the unwarranted interference of a court of equity.

What is sought to be done by this injunction and bill is, in our opinion, farther- from being within the jurisdiction of a court of equity than a bill purely for specific performance. It encourages acts of trespass and .the taking the law into his own hands by appellee, by tying appellant’s hands by injunction, while the former takes execution of the contract as he interprets it at his own will before hearing. Thus, by the unwarranted interference of a court of equity, the appellants farm may be irreparably injured, which ought to be a sufficient - test to show that a court of equity ought not to take jurisdiction, as one of the principal grounds of equity jurisdiction is to grant injunctions to frevent irreparable injury, while taking jurisdiction in a case like this would be to aid it. Hence it will be seen that appellee by taking unwarranted possession of the point “ C ” and excavating there, did not give a court of equity jurisdiction where it -would not originally have had it, to enforce specific performance. The policy of the law is always to discourage parties from taking the law into their own hands, even though it turns out in the end that such party had the right in the case.

For these reasons we hold that the court below erred in retaining jurisdiction and in granting the relief sought.

The decree is reversed and the cause remanded with directions to dismiss the bill.

Reversed and remanded with directions.