184 F. 988 | 5th Cir. | 1911
A majority of the judges are of opinion that the contract, which is the basis of this suit, lacks mutuality in this: That Kennon does not contract to receive and pay for all the shavings furnished or tendered him, nor any definite quantity thereof, but only such shavings as he shall be able to receive and take care of; só that in case Kennon’s electric light plant' should break down or be otherwise disabled, or Kennon should find other and cheaper fuel, or, in short, find any reason satisfactory to himself, he could decide not to receive and pay’ for any more shavings, and the Brooks-Scanlon Company could have no relief, except the right to temporary use of Kennon’s blowpipe. See Rutland Marble Co. v. Ripley, 10 Wall. 339, 19 L. Ed. 955, and cases 7 Rose’s Notes, p. 332. And it is further concluded that, if the mutuality of the contract be conceded, the specific performance thereof is within the discretion of a court of equity, and should be refused, because it can, only be enforced by a mandatory injunction covering a term of years, and particularly in this case, where the plaintiff has a remedy at law substantial, if not fully complete and adequate, from the equity standpoint. See Javierre v. Central Altagracia, 217 U. S. 502, 508, 30 Sup. Ct. 598, 54 L. Ed. 859. The decree of the Circuit Court is affirmed.
