168 Ind. 1 | Ind. | 1907
This is a suit for an injunction to prevent the violation of an oral agreement made about September 1, 1902, wherein appellant promised to install in appellee’s building a heating plant with sufficient capacity to heat said building to seventy-eight degrees Fahrenheit, and to connect the same with a central hot water heating plant, in consideration of the sum of $200 payable upon the installation of such plant, and $50 per year payable as long as appellee desired heat to be so supplied and appellant was operating its central plant under a franchise granted by the board of trustees of the town of Fowler. The annual payments were to be made in two installments—$25 on January 1, and $25 on October 1, of each year—and no greater charge for heating the building was to be made so long as appellee desired the same to be so heated. The complaint further alleged that the plant had been completed and heat supplied as agreed, and that appellee had paid said sum of $200, and all other payments as they accrued under said agreement, but that appellant is now demanding an increased price for heating
The assignment of errors properly challenges the sufficiency of the complaint. The right to a future supply of hot water heat at a special price, which appellee claims and is seeking to enforce by this suit, rests wholly upon contract. The theory of the suit, as clearly manifest from the record, is that appellant is bound to supply such heat for an indefinite time, to be determined solely by the arbitrary discretion and will of appellee. It is admitted that appellee is not bound to accept such heat for any particular period, and his only obligation is an implied promise to pay at the stipulated rate for such time as he may suffer the heat to be supplied.
The principle applicable to the contract under consideration is stated in the following paragraph, quoted from the case of Marble Co. v. Ripley (1870), 10 Wall. 339, 359, 19 L. Ed. 955 : “Another reason why specific performance should not be decreed in this case is found in the want of mutuality. Such performance by Ripley could not be decreed or enforced at the suit of the marble company, for the contract expressly stipulates that he may relinquish the business and abandon the contract at any time on giving one year’s notice. And it is a general principle that when, from personal incapacity, the nature of the contract, or any other cause, a contract is incapable of being enforced against one party, that party is equally incapable of enforcing it specifically against the other, though its execution in the latter way might in itself be free from the difficulty attending its execution in the former.”
It was held in the case of Philadelphia Ball Club v. Hallman, supra, that an agreement, whereby one engaged to play baseball for a period of time which at the option of the club might equal the term of the player’s life, and which reserved to the club the right to discharge the player on ten days’ notice without cause, was not enforceable by an injunction against its violation by the player, for the reason that the agreement was too unfair, and wanting in mutuality. .
The judgment is reversed, with directions to sustain appellant’s demurrer to the complaint.