No. 24 | N.D. Iowa | Jan 28, 1920
This suit is by the incorporated town of Eaurens, a municipal corporation of Iowa, against the Northern Iowa Gas & Electric Company (and another party not material in this action) upon a contract between the parties substantially like that in the case of the Northern Iowa Gas & Electric Company against the town of Euverne, another municipal corporation of Iowa (No. 28, Equity, decided by this court May 26, 1919, and reported in 257 Fed. at page 818).
It was brought originally in the district court of Iowa in and for Pocahontas county, on November 25, 1918, against the defendant company, a West Virginia corporation, having a place of business at Humboldt, this state, for producing electricity for lighting, heating, manufacturing, and other purposes, and transmitting it to the plaintiff and to other towns in Northern Iowa, to restrain the defendant from disconnecting its transmission line from the line of the plaintiff, whereby it receives electricity from the defendant company, for lighting, heating, and other purposes, which said contract provides, among other tilings, as follows:
“The defendant (which is called the company) agrees to sell and furnish to the plaintiff, incorporated town of Laurens, a municipal corporation of Iowa, during a period of ten years from and after the 1st day of November, 1912, all electricity and current, that shall be desired by the town or its patrons along its transmission line (whether within or without the town) for lighting purposes, or for other lawful uses, at a stipulated price. At the close ol! said ten-year period the town may at its option renew this contract for another like period of ten years, and this may be done by the town at its option on the expiration of each recurring ten-year period thereafter until the year 1952. * * *”
There is no other provision of the contract specifying the amount of electricity that the plaintiff town agrees to ptirchase from the defendant company during the term of said contract, and.it is the contention of the defendant that the plaintiff is under no1 obligation to purchase or take from the defendant company any electricity or power during the period of said contract, or any renewal thereof, and that it is therefore lacking in mutuality and void.
The original petition as filed in the state court asks that the defendant be enjoined and restrained from violating any of the terms and provisions of the contract, which is attached to the petition, also from ceasing to furnish electricity and power as called for under the terms
The defendant removed the cause from the state court to this court upon the ground of diversity of citizenship and the record has been filed herein. An amendment to the petition was then filed by the plaintiff in this court after its removal here. Upon the removal of the case the defendant herein filed a "motion under the present equity rules to test the sufficiency of plaintiff’s petition as amended, to dissolve the temporary injunction issued against it by the state court, and dismiss the petition at plaintiff’s costs, upon the following grounds: That it appears upon the face of the petition that said contract, which is attached thereto, is void for want of mutuality, in that there is no obligation upon the part of the town to continue taking electricity from the defendant company for any purpose or in any quantity under or by virtue of said contract. Wherefore the defendant prays that the petition as amended be dismissed, that the temporary writ of injunction be dissolved, and that it recover its costs of the suit.
“Tills- form of relief is not a matter of absolute right to either party; it is a matter resting in the discretion of the court, to be exercised upon a consideration of all the circumstances of each particular case. The jurisdiction, said Lord Erskine, ‘is not compulsory upon the court,- but the subject of discretion. The question is not what the court must do, but what it may do under the circumstances, either exercising the jurisdiction by granting the specific performance, or abstaining from it.’ * * * The rule of equity in carrying agreements into specific performance is well known, and the court is not obliged to decree every agreement entered into, though for valuable consideration, in strictness of law, it depending upon the circumstances.”
“No rule of law is better settled than ‘that specific execution of a contract, in equity, is not a matter of absolute right, but it is a remedy the right to which rests alone in the sound discretion of the chancellor, a discretion controlled by established principles of equity in view of all the facts and circumstances attending the ease presented.’ [Citing cases.] Specific performance will not be decreed when it would not be equitable, * * * and the party will often be remitted to his legal remedy.”
And see Shubert v. Woodward, 167 F. 47" court="8th Cir." date_filed="1909-02-04" href="https://app.midpage.ai/document/shubert-v-woodward-8769916?utm_source=webapp" opinion_id="8769916">167 Fed. 47, 52, 53, 92 C.C.A. 509" court="8th Cir." date_filed="1909-02-04" href="https://app.midpage.ai/document/shubert-v-woodward-8769916?utm_source=webapp" opinion_id="8769916">92 C. C. A. 509.
It is ordered accordingly.