39 N.J. Eq. 160 | New York Court of Chancery | 1884
The main object of the bill in this case is to procure a decree-directing the specific performance of a contract. The complainant asks for an injunction, pending the suit, as auxiliary to the principal relief sought; in other words, to preserve to it the possession and use of certain property, which it is now unquestionably entitled to hold and use, if it shall be made to appear on
The contract on which the complainant rests its right to relief was made by the complainant with the Bell Telephone Company, of New York, and bears date August 6th, 1879. ■ Prior to the date last named, the Bell Telephone Company, of New York, had, by force of a license granted to it by the Bell Telephone Company, of Boston, acquired an exclusive right to use, and of licensing others to use, the patented instrument, known as the Bell telephone, in all the territory lying within a radius of thirty-three miles from the New York city hall in all directions, and also in all the territory of Long Island, in the state of New York, and of Monmouth county, in the state of New Jersey, but excluding any part of the state of Connecticut lying within such boundaries. The contract is lengthy, and contains a great many provisions having no connection with the complainant’s present claim. Reference will only be made to such parts of it .as are necessary to show its general character, and to the particular provision on which the complainant’s action is founded.
It provides, in the first place, that the Bell Telephone Company, of New York, shall furnish to the complainant, in such quantities as may be required, Bell telephones to be used by the complainant in establishing a system of telephonic inter-communications within the city of Newark, in the county of Essex, and the townships of Harrison and Kearney, in the county of Hudson, but not elsewhere. The complainant binds itself to pay an annual royalty on each telephone delivered to it; to prosecute the business of introducing telephones diligently, not to use any other telephones than those furnished by the Bell Telephone Company, of New York, and not to permit any connection to be made between its lines and any other lines, except such as may be owned or controlled by the Bell Telephone Company, of New York. The’ Bell Telephone Company, of New York, reserves to itself the exclusive right of establishing telephonic communication between the complainant’s district and other districts, and to regulate the charges on messages passing from one district into
“ If, at the expiration of the above period of five years, the party of the first part shall not desire to conduct the business of telephonic district exchange directly within said district of the party of the second part, or of merging sai'd district into some other district, but shall, on the contrary, desire to have such business conducted for it, then, and in such case, the party of the second part, shall have the first right of acquiring the license or agency to conduct such business at such rate or rental, and upon such terms as may then be fixed and determined by the party of the first part.”
On the 1st day of July, 1880, the Bell Telephone Company, of New York, sold, and formally assigned, its telephone lines and business, and also all its rights under the contract with the complainant, to the Metropolitan Telephone and Telegraph Company, one of the defendants to this suit. The complainant assented to this transfer, and has since then fully recognized the
In April, 1884, the complainant applied to the Metropolitan Telephone and Telegraph Company for a renewal of its license, or a new license. Its application was refused. Subsequently, the bill in this case was filed to compel the Metropolitan Tele
The power of the court to give the complainant the relief it asks is unquestionable. Though courts of equity do not, as a. general rule, exercise as liberal jurisdiction over contracts of the kind which the complainant seeks to have enforced, as they do-over contracts relating to land, yet them power to decree the specific performance of such contracts in a proper case, as, for example, where the complainant has not a clear, complete and adequate remedy at law, or where some other ingredient of equity is mixed with the transaction, is now firmly established.. (Cutting v. Dana, 10 C. E. Gr. 265.
The complainant’s whole equity rests in the allegation that it is entitled, by the terms of the contract, to a renewal of its license. But upon what terms ? The complainant says: “ Upon such, terms as may be determined by the court.” Courts of equity may compel the specific performance of a contract which the-parties have agreed upon, and which is sufficiently certain and definite in its terms to enable the court to see what they meant,, but it is entirely beyond the power of any judicial tribunal to-make a contract for litigants, or compel them to make a contract with each other. The principle which must govern the-decision of this case is free from all doubt. No court has-power to make a contract for persons sui juris. No specific-performance of a contract can be decreed in equity, unless the-contract be actually concluded, and be certain in all its parts. If the matter still rests in treaty, or if the agreement, in any material particular, be' uncertain or undefined, equity will not!l interfere. McKibbin v. Brown, 1 McCart. 1; S. C., on Appeal, 2 McCart. 498; Potts v. Whitehead, 5 C. E. Gr. 55; 8 C. E.
The contract, it will be observed, does not contain an unconditional covenant of renewal, or, indeed, a covenant to renew at •all, but it merely provides that, on the expiration of the term of the first license, and in a certain contingency, the complainant ■shall have the first right of acquiring a license. The covenant is Hot that the licensor shall renew the complainant’s license, nor .that the complainant shall, if it desires, have a new license, but merely that it shall have a first or preferential right to acquire a license. This, it is plain, is not equivalent to a covenant to renew. Under a covenant to renew, the rights of the licensee are fixed and certain; they are superior to those of any other person, .and .determinate; no other applicant can compete with him, nor can the terms offered by any other applicant be contrasted with those offered by him. The licensor must renew if the licensee •so elects, whether he is willing to or not. But under the language of this covenant the thing promised to the covenantee is not a renewal of its license, but merely the first right or chance to make a bargain for a license. Before any right can arise under such a stipulation, it is clear that it must be shown that a bargain has been made. Construed for the complainant as favorably as its language will warrant, it is manifest that all that the covenant gives the complainant is the first right to make a bargain for a new license. Such a covenant cannot be enforced in ■equity. But let us-suppose that the contract gave the complainant an absolute right of renewal without specifying terms, thén the question would arise, Eor what period and on what terms should the renewal be granted? These matters, by the plain
Nor is the complainant’s case at all strengthened by the fact that since its contract was made, the corporation now having the right to grant a license for the complainant’s territory, has agreed with the corporation owning the Bell telephone patents that it will not charge its licensees, as royalty or rental for telephones, in excess of a specified sum. The complainant is not a party to that contract, and consequently acquired no rights under it and did not become bound by its terms. If it is broken, the complainant will sustain no injury—at least none that the law can redress. The other contracting party is the only person who-can suffer a legal injury by its breach, or ask legal or equitable-redress for its violation. But in addition it is not pretended that, that contract fixes or defines the period for which licenses shall be granted. The corporation to which the complainant must ge
The complainant contends that its case falls directly within the principle established by these cases. Its contention is this: That the contract on which its action is founded provides a method for settling the terms on which its license shall be renewed, and inasmuch as that is the fact an injunction should issue to preserve to it its business and the telephones now in its possession until the method provided by the contract for settling the terms shall have been tried and proved ineffectual. The sixteenth paragraph of the contract declares that in the event of
This is' not a case, in my judgment, in which an injunction should be granted. It is true that in cases of this kind, where an injunction is sought in aid of an action for specific performance, that the court will, as a general rule, if the complainant’s case is strong’ enough to render it at all probable that he may, on final hearing, be able to convince the court that he is entitled to relief, award an injunction; but in cases where there is no doubt—where it is clear that the contract sought to be enforced has not yet been made, or if it has been made, that it is so incomplete or uncertain that it cannot be enforced—an injunction must be denied, for the very obvious reason that the complainant has no equity which entitles him to the writ.
The order to show cause must be discharged, with costs.