36 Ind. App. 600 | Ind. Ct. App. | 1905
The averments of the complaint show that appellee, Indianapolis Light & Power Company, and appellant Merchants Heat & Light Company are corporations under the laws of Indiana, and severally engaged in the manufacture and production of electric current, and the distribution and sale of such currents for light, power and other purposes, in the city of Indianapolis, and are competitors in said business; that in August, 1902, appellee and appellant Beck entered into a contract, in writing, by the terms of which appellee was to supply Beck, .in the manner set forth in the contract, with electric current, upon the terms described in the contract, at a certain special price, to wit, seventy-five cents per ten thousand watts, measured by watt meter, for a period of sixty months, said' Beck agreeing to use, during said period, enough current, measured by watt meter, to make a monthly bill of $1, or to pay that sum should sufficient current to make a bill 'of that amount not be used for the service monthly, and that no electricity for light, heat or power, other than that covered by the contract, should be used upon said premises without the written consent of the appellee; that immediately after the execution of said contract, appellee’s
It is alleged that on October 9, 1903, Beck notified appellee that he would discontinue to receive current from appellee, would disconnect the service-wires, and would connect the service-wires of said Merchants Heat & Light Company with his own wires on said premises, and would thereafter receive electric current on his premises from said last-mentioned corporation; that upon the same day said Beck did disconnect appellee’s service-wires and connect the service-wires of said other corporation, so that appellee could not deliver the electric current, etc.; that since said time said Beck has not received, and has refused to receive, electric current from appellee, and has received and accepted, and has threatened and is threatening to continue to receive, electric current from said other corporation, all of which is done and is being done without the written consent of appellee, and contrary to the express provisions of said contract. Appellee avers further that, if said appellant Beck is permitted to do and to continue to do the above-threatened and wrongful acts, great and irreparable injury will result therefrom to the appellee, and that the damages which will be sustained by the appellee, by reason of said wrongful acts and breach of contract, can not now
(1) Appellant Beck uses a large amount of current. The amount used by him varies from hour to hour, day to day, month to month and year to year. The amount of current which would be used by the defendant during th'e remainder of this period could not be ascertained by the appellee, except by the statement of others. The wrongful disconnecting of the appellee’s service-wires, as aforesaid,if permitted, would render it absolutely necessary for the appellee to ascertain the quantity of current required or used on said premises from appellant Beck himself, by proceedings in the nature of discovery and accounting, but appellee in such proceedings would be compelled to rely upon the statements, accounts, measurements and records kept by said appellant, and upon the readings and meter measurements made and kept by said appellant competing corporation, and would be compelled to rely upon the appellants’ keeping and preserving, for the full period of said remaining contract term, full, true and accurate account of the measurements of the quantity of current used, and holding the same available for the use of the appellee, when needed for the purpose of proof.
.(2) Even if the quantity of current which would be required and used by appellant Beck could be ascertained, the profit appellee would make in selling the same to appellant could not be ascertained, and any effort to show the same in a judicial proceeding would be “exceedingly complicated, burdensome, expensive and inconvenient, and attended with great uncertainty as to correctness of results.”
(3) The appellee does not keep and believes and avers that it would be impracticable and impossible to keep any system of accounts by which the cost to appellant Beck or the net profit to the appellee, at a fixed price upon an as
(4) Because the cost of producing and delivering current during a specific period could not be ascertained, as this would require a balancing of defendant company’s accounts, with reference to that particular period.
(5) Because the contract entered into with appellant Beck is one of about two hundred long-time contracts of similar character heretofore entered into by and between the appellee and certain of its large consumers of electric current in the central business district of said city, and, in consideration of these contracts and to carry out their terms, this appellee has made large additional investments in machinery and other equipments necessary to carry on its business.
(6) Electric current is a product of peculiar nature, which can not be sold in said city or on any market at a fixed and common market price, such as wheat, corn, etc., the price of said electric current is fixed from time to time by contract with consumers. The electric current which said appellant Beck has so contracted to receive from the appellee, and for the furnishing of which the appellee has so' invested its capital, and which said appellant Beck is now refusing and threatening not to receive, appellee may not be able to sell to others during the period of said contract, and if it should offer to sell the same for the same or greater rate than that fixed in said contract, such sale would probably not indemnify the appellee in its damages for the threatened breach of said contract.
The prayer is for injunction to prevent appellant Beck from using, on the premises mentioned in the contract, electricity for light, heat or power other than is furnished by appellee. To this complaint appellant Beck filed a demurrer for want of facts. The demurrer was overruled,
The only error assigned questions the sufficiency of the complaint to state a cause of action. It is contended: (1) That the complaint shows that appellee has an adequate remedy at law in an action for damages, and in such, a case the injunction will not lie; (2) that an injunction will not be granted merely because the damages are uncertain; (3) the contract is not such a one that a court of equity can compel its specific performance, and for that reason it can not enforce its terms by injunction; (4) the contract provides for liquidated damages, and an injunction will not lie to prevent the violation of it. We will consider these claims in their inverse order.
Parties may, by agreement, fix upon a certain sum as liquidated damages, but where the sum is so fixed it must appear, either from the intent of the parties as expressed in the entire instrument, or from expressed words, that the sum was fixed as liquidated damages. The law ordinarily regards a general sum stated in a bond as a penalty, and will allow only a recovery of the damages actually sustained. Dill v. Lawrence (1887), 109 Ind. 564; Muhlenberg v. Henning (1887), 116 Pa. St. 138, 9 Atl. 144; Jaqua v. Headington (1888), 114 Ind. 309.
In Singer Mfg. Co. v. Union Buttonhole, etc., Co. (1873), Holmes (U. S.) 253, Fed. Cas. No. 12,904, the English and American authorities are considered. There was a contract that the complainant was to be the sole and
The contract does not stipulate that the company is to furnish any specific quantity of current, nor that the applicant shall take any specific quantity of current. It does stipulate that the applicant will use enough current to make a monthly bill of $1, or pay that amount should sufficient current to make a bill of that amount be not used. By negative averment the applicant agrees that no electricity for light, heat or power, other than that covered by this contract, shall be used in his premises, without the written consent of the company indorsed on said contract. Without reciting specific facts averred in the complaint, we think they show that the damages for the threatened and continuing breach of the contract can not be accurately or even approximately measured or ascertained, and that an action for damages for a breach of said contract would not afford an adequate and complete remedy, unless the stipulation that the applicant will use enough current to make a monthly bill of $1, or pay that amount if sufficient current to make a bill of that amount be not used, can be held as a stipulation in the contract fixing the damage to be paid for a breach thereof. We can not admit that this stipulation is sufficient to fix the amount of damages.
In Metropolitan Electric Supply Co. v. Ginder (1901), 70 L. J. Ch. 862, the facts are as follows: “The defendant, Thomas Ginder, was a publican carrying on business in a public house in Holborn. On November 16, 1898, he signed what was called in the proceedings, a contract, but which in point of fact was a request, delivered to the plaintiffs under the statutory rights conferred by the act of parliament, requesting a supply of energy to his premises. This request was made subject, among other terms and conditions, to the following: (1) ‘The consumer agrees to take the whole of the electric energy required for the prem
Among the cases cited in Xenia Real Estate Co. v. Macy, supra, is Whiteman v. Fayette Fuel-Gas Co. (1891), 139 Pa. St. 492, 20 Atl. 1062, in which a contract between a natural gas company and the owners of a glassworks provided that the former should supply gas for fuel to the latter for all purposes connected’ with the manufacture of the wares aforesaid, “so long as natural gas may continue to be produced from the _ territory now or hereafter owned or operated by said Payette Euel-Oas Company, its successors or assigns.” On a bill averring that, relying on the contract, plaintiff’s works had been constructed for the use of natural gas only as fuel, and that the company had shut off the entire supply while the works were in operation,
In Simpson v. Pittsburgh, etc., Glass Co. (1902), 28 Ind. App. 343, it was held that where, by the terms of a natural gas lease, the lessee, as a part consideration for the execution of the lease, agreed to furnish gas to lessor for domestic use during the continuance of the lease, injunction will lie to restrain the lessee from cutting off the supply of gas. The court, on page 354, states the ground for injunctive relief in such case as follows: “The application for an injunction can not be said to be an appeal to equity for the enforcing of performance of a corporate duty of such, or of a duty of public nature, yet the appellant, upon the facts stated in the complaint, will suffer great injury by the cutting off of the supply of gas for domestic use, and he has not a remedy by a single action at law, plain and adequate, and as practical and efficient to the ends of justice and its prompt administration as the remedy in equity. This is sufficient to entitle him to an injunction. Xenia Real Estate Co. v. Macy [1897], 147 Ind. 568.”’
In Ferris v. American Brewing Co. (1900), 155 Ind. 539, the court held that where a covenant was inserted in a lease prohibiting the lessee from selling beer rzpon the leased premises, other than that manufactured by a certain brewing company, the company for whose benefit the contract was made may enforce such provision by injunction, the remedy at law being inadequate. In the course of the opinion it is said: “It is said in Greenhood, Pub. Policy, p. 677: ‘A 'contract which secures to the obligee the exclusive custom of the party contracting, especially when by such contract the party making it procures • an advantage not otherwise obtainable, is valid although the covenantor be engaged in public business, unless its enforcement would be prejudicial to the public.’ Among the illustrations given
Appellant strongly relies upon Steinau v. Gas Co. (1891), 48 Ohio St. 324, 27 N. E. 545, a case like the one at bar in some of its features. The action was to obtain an injunction, and a demurrer to the complaint was overruled, and upon appeal the judgment was reversed. In conclusion, the court said: “But a decision of this question is not necessary to the disposition of the case at bar, and that, as well as whether a court of equity should, in any case, where full performance can not be enforced, decree performance of negative covenants of one party, may properly be left to be
The appellant Merchants Heat & Light Company has not joined in the assignment of errors and has not filed a brief.
The court did not err in overruling the demurrer to the complaint.
Judgment affirmed.