54 Ill. App. 337 | Ill. App. Ct. | 1894
delivered the opinion op the Court.
The appellee is a public corporation engaged by the authority of the State in opening a channel through which a portion of the water of Lake Michigan will be diverted from the Gulf of the St. Lawrence to the Gulf of Mexico.
The appellant made with the appellee a contract by which the appellant undertook to do a portion of the work, and gave a bond with security in the sum of $100,000, conditioned for the performance of the contract on his part.
The contract provided in effect that the appellee might take the work from the appellant upon the happening of contingencies which the appellee claimed had happened, and therefore did take the work from the appellant. Thereupon the appellant filed this bill for an account as to so much as the appellant had done under his contract, and damages for the wrong done him, and an injunction to prevent the appellee from interfering with his “ possession and contract of said work or his prosecuting the same, from re-letting the same, or any part thereof,” and other relief.
The bill does not in terms pray a specific performance of the contract, but under the prayer of general relief, such performance might be enforced if the nature of the contract permitted it, and an injunction as the bill prays, would necessitate such enforcement as a consequence; for if the work may not be taken from the appellant, and must be done, he must do it.
Now that such a contract can not be specifically enforced in equity is familiar law. The principle is stated in Grape Creek Coal Co. v. Spellman, 39 Ill. App. 630.
As is there said, “ It is apparent that the damages alleged can be ascertained at law, and we see nothing to prevent the application of the general rule, that chancery will not entertain a bill to specifically enforce contracts relating to personal property, nor contracts which by their terms call for a succession of acts whose performance can not be consummated by one transaction, and which require protracted supervision and direction.”
And “ Where an agreement is of such a nature that it is practically impossible for a court to enforce it, and the bill for an injunction is in effect a bill for a specific performance, equity will not interfere.” High on Injunctions, Sec. 1162.
A very elaborate case decided last year, in which is collected a great mass of authority, is Fargo v. New York, etc., R. R., 23 N. Y. Supp. 360. See also, Johnson v. Shrewsburry & Birmingham Ry., 3 De Gex, M. & G. 914.
Exceptions to the rule may be found in cases relating to theaters. Kennicott v. Leavitt, 37 Ill. App. 435; High on Inj., Sec. 1164.
So of operating contracts between railroads. South & North R. R. v. Highland Ave. R. R., 13 Southern Rep. 682.
There is another very important feature of this case. The appellee is a public corporation, engaged in the prosecution of a work of great public and pressing necessity.
Delay in completing it is to be deprecated. If the appellant has suffered wrong the courts of law are open to him, and better for the public it is to pay damages than have the work delayed. High on Inj., Sec. 1185.
That objection to the equity of the bill may be made by answer .seems to be the rule in this State. Sachsel v. Farrar, 35 Ill. App. 277; Chi. Pub. Stock Exch. v. McClaughry, 148 Ill. 372.
The decree dissolving the interlocutory injunction and dismissing the bill for want of equity is affirmed.
The court awarded $1,000 to the appellee as damages, caused by the injunction.
The only evidence as to damages was the testimony of one of the attorneys, who, after stating his experience in the profession, and the services of the attorneys for the appellee, said: “ I think a very low fee for the services of the. attorneys in this case would be one thousand dollars.” This is not enough. Cors v. Tompkins, 51 Ill. App. 315.
Only reasonable solicitors’ fees paid, or agreed to be paid, by the appellee for services rendered in procuring the dissolution of the injunction, can be recovered. Lawrence v. Trainor, 136 Ill. 474. And such only as are usual and customary. Zibell v. Barrett, 30 Ill. App. 112.
A motion to dissolve for want of equity on the face of the bill would seem to have been all that was necessary; the answer and affidavits seem to be superfluous, and, if so, are not to be considered in awarding damages. Hayes v. Chi. & N. W. S. & G. Co., 37 Ill. App. 19.
Since the case last cited was decided, the Supreme Court, in Lawrence v. Trainor, 136 Ill. 474, has set the example of dividing the costs, which example we follow, and direct that each party pay one-half of the costs of this court.
Decree affirmed as to the principal case; and as to damages reversed and remanded.