176 Ill. App. 185 | Ill. App. Ct. | 1912
delivered the opinion of the court.
This cause has been argued before us very elaborately both orally and in printed briefs. A wealth of authority has been cited on both sides of the controversy, the nature of which is fully shown by the detailed statement which we have prefixed to this opinion.
We have considered all of the points made by counsel and the citations by which they support them, but we do not think that a discussion of them all, or even of most of them, would be useful.
Thus, the question as to the propriety of Judge Cooper’s action in entering the order dissolving the injunction nunc pro tunc, following it by an order dismissing the bill, is to our mind academic.
The cause was fully heard by the superior court on a motion to dissolve on the face of the bill the temporary injunction granted without notice. The motion, which set forth, specific reasons for its allowance, was equivalent to a general and special demurrer to the bill. No relief but an injunction was asked. The superior court, after hearing, found and announced its decision on the questions involved and entered an order dissolving the injunction. Following this, it dismissed the bill, which was the proper and logical sequence of the dissolution of the injunction. The question before us, we conceive, is not whether the same judge of the superior court entered the order who heard the argument on and first announced his decision on the motion, nor whether the judge who dismissed the hill should have entered the order dissolving the injunction nunc pro tunc or as on the actual date of its entry; but whether the order dismissing the bill was justifiable.
This in another form is merely the single question of the sufficiency of the case shown by the face of the bill to warrant the issuance of an injunction. If that was sufficient, the injunction should not have been dissolved nor the bill dismissed. If it was not sufficient, the action of the superior court was proper in both the dissolution and dismissal, irrespective of whether the testimony of Judge Chetlain and his minute clerk and the evidence of Judge Chetlain’s own minutes (the best possible evidence by which to make an amendment of the record. Howell v. Morlan, 78 Ill. 162; Grand Pacific Hotel Co. v. Pinkerton, 118 Ill. App. 89), were sufficient in themselves to warrant Judge Cooper’s action in entering the order of dissolution nunc pro tunc.
Nor do we think that a discussion of the position of the defendant company that its contract with the complainant was ultra vires and void, would be more useful.
If we were prepared to accede to it, it would indeed involve the disposition of the cause before us. We are not so prepared, however, and as the view that we take of the cause leads to an affirmance of the action of the court below in dismissing the bill, anything that we might say in negativing this particular contention of the defendant would necessarily be merely obiter dictum. If the defense is valid, and the Bail-road Company was not at liberty, under its corporate powers, to advertise in its cars, or if it were, was not at liberty to delegate to another for compensation the power it had itself, that defense remains to be made, if it becomes necessary and desirable, before another tribunal, on which our views on a question which we did not decide in this cause would not be binding.
For the purposes of this case, therefore, we shall assume, as contended by the plaintiff in error, that the contract of January 1, 1909, was a valid and binding contract, and that under its terms the defendant was wholly without right or justification in breaking it.
The further contention of the plaintiff in error, however, that he is entitled to a remedy in equity by injunction, we cannot sustain. It is based primarily on the theory that the remedy at law by a suit for damages for a breach of this contract would not be adequate.
To establish this it is urged that the damages at law could not be accurately computed, or, by the usual rules of evidence, ascertained with reasonable certainty.
It is upon our opinion on this contention that we rest our judgment.
First, it is to be noted that mere difficulty in computing damages is not a ground for the interference of equity. As Mr. Justice Miller, speaking for the Supreme Court of the United States, said in Texas & P. R. Co. v. Marshall, 136 U. S. 393 (in which the computation of damages for the breach of the contract sued for was indubitably far more difficult than in the case at bar, and in which, nevertheless, the plaintiff was relegated to its action at law):
“Though there may not be any rule by which these damages can be estimated with precision, this is not a conclusive objection against a resort to a court of law, for it is very well known that in all judicial proceedings for injuries inflicted by one party on another, whether arising out of tort, or out of contract, the relief given by way of damages is never the exact sum which compensates for the injury done, but with all the rules which have been adopted for the measurement of damages, the relief is only approximately perfect. ’ ’
Our own supreme court has said in Carlson v. Koerner, 226 Ill. 15 (p. 21):
11 To show that damages are merely speculative'is not sufficient to give a court of equity jurisdiction. They may be approximated in an action at law as well as in chancery.”
When the damages are incomputable even approximately, they may be called irreparable, and equity will interfere, and where with the difficulty of computation there is joined insolvency, perhaps in some cases where the insolvency without the uncertainty exists, courts of chancery may decree relief to prevent a failure of justice.
The Supreme Court of Rhode Island in The American Electrical Works v. Varley Duplex Marget Co., 26 R. I. 295, has gone as far as any tribunal of a state where the distinctions between law and chancery proceedings and remedies are preserved, in upholding, on the ground of the necessary uncertainty in the estimation of damages, an injunction against the breach of a contract.
But in that case the court asserts its belief that the breach of the contract, under the circumstances alleged would tend to destroy the business reputation of the complainant. We cannot see such an element of possibly irreparable and inestimable injury in the case at bar, and we do not think, after an examination of all the many cases cited by the plaintiff in error, that justification can be found for holding that the mere difficulty of computation of damage, as distinguished from the impossibility of such computation, the difficulty being unmingled with some other element making legal relief inadequate, warrants the use of an injunctive process to enforce the keeping of contracts.
But we are disposed to go further in this case. We cannot see the great and insuperable difficulties in the approximate computation of damages in this case which seems so apparent to the plaintiff in error. We have quoted at length in the statement prefixed to this opinion the paragraph of the complainant’s bill, in which he sets forth his argument in this behalf— an argument which his counsel have repeated in the discussion of the cause before us.
The first specific statement of that paragraph is that his monthly net profits would therefore “doubtless” amount to between twelve and fifteen hundred dollars, but that a court of law could not estimate them. Undoubtedly there would be difficulty, but no insuperable one. Future profits lost by breach of contract may be recovered in a proper case, and no more difficulty exists in this case in estimating them than existed in cases where they have been recovered. If they would “doubtless” have been a certain sum, they must be capable of proof with “reasonable certainty.” Chapman v. Kirby, 49 Ill. 211; Cleveland, C., C. & St. L. R. Co. v. Wood, 189 Ill. 352.
The next elements of damage asserted to be inestimable are the amounts for which complainant may become liable to persons with whom he has subcontracts which will be broken.
Computations quite as difficult as these could be are the daily accompaniments of the assessment of damages for breaches of contract in courts of law. So," too, with “commissions,” which the complainant “has paid and is legally liable to pay for the obtaining of the various and numerous unexpired advertising contracts he now has.”
The further statement that a court of law cannot correctly estimate the damages for the conversion or destruction or rendering useless of fixtures and equipment belonging to the complainant, is not even plausible.
On the ground alone that the complainant has an adequate remedy at law, we should hold that the injunction in this case was properly dissolved and the bill dismissed.
But this view may well be fortified by a correlative proposition. Not only do we think that the remedy at law is adequate and complete, but it seems to us that the remedy in equity is inadequate and incomplete.
It is undoubtedly true, as contended by the complainant, that there are cases where threatened breaches of contract will be and have been enjoined, where breaches of negative covenants in contracts have been enjoined, and where such negative covenants or stipulations have been inferred from exclusive grants. So, too, it may be conceded that there are cases in which it has been authoritatively held that a court of equity will interfere by injunction where it would not decree a specific performance.
But no one of these cases is, in our opinion, like that at bar, and it would be a needless labor to discuss and distinguish them. In the case at bar, the plaintiff in error contends that even though specific performance could not be compelled, he is entitled to the relief which would be given him by obliging .the defendant to lose the benefit of the breach of the contract. He admits that the temporary injunction which was granted went further than this, and his counsel still say that such an injunction restraining any breach of the contract is warranted by the authorities.
But in the event that this court, they say, is of a different opinion, they will be satisfied with an injunction merely enforcing the negative covenant implied in the grant of “a sole and exclusive right to place advertisements in suburban passenger cars of the defendants. ’ ’
It seems very clear to us that to go farther than this would be to make a mandatory injunction to enforce a contract in a case where no specific performance could, under any theory, be decreed, and that this, under the facts of this case, is plainly inadmissible. We are forced to the conclusion in which we think we are justified by the arguments of counsel before us, that the real insistence of plaintiff in error is on the modified form of the injunction that counsel has indicated as satisfactory.
But in the case of such relief only, it rests with the defendant itself to render it utterly nugatory to the complainant. It has only to allow no advertisements in its cars to take from the complainant any advantage of the relief granted,—save as it might gratify him to see the Railroad Company forego a possible item of income. He relies, probably, on the self interest of the company to bring about, in such a case, a renewal of the contract relations with himself; but it seems to us illogical and unreasonable to allege the difficulty of assessing damages at law as a reason for resorting to equity, if equity can only give a remedy which furnishes compulsorily no damages or compensation at all, and no enforcement of the broken contract, but only a morally coercive' pressure which may lead to juster dealing. The order of the superior court dissolving the injunction and the decree dismissing the bill are affirmed.
Affirmed.