141 Ind. 251 | Ind. | 1895
This was an action by appellant to enforce specific performance of a written contract. So much of the contract as is material to this controversy is as follows:
“This agreement, made and entered into this 10th day of March, 1890, by and between the Bodenschatz Stone Company, incorporated under the laws of the State of Illinois, parties of the first part, and the Louisville, New Albany and Chicago Railway Company, parties of the second part.
“Witnesseth, that whereas, said first party is desirous
“Said first party further agrees to build said road bed and construct culverts and bridges, cattle guards, and also to do all necessary grading, both excavation and embankment, for the operation of said contemplated railroad free of cost to said second party, and said first party further agrees to be and become liable for all damage to land owners through which said line of road is built, and for all damages that may in any manner arise from such construction, either to owners of the land through which said first party obtains right of way, or to any party, company, person or persons, who are damaged, or may hereafter sustain damages on account of the construction of said switch or any part of said secorxd party’s right of way, except such only as may be incidental to the operation of the road by said second party and results therefrom, and in case any suit or suits are brought at any time for such damages as may result from such construction to any such land-owners, company or persons that said first party will defray all expenses which said second party xnay incur or become liable for in their behalf. And said second party having heretofore sub
“Said second party hereby agrees that after the delivery of the deed or deeds, aforesaid, for right of way and the completion of the right of way, and the completion of the roadway and bridges, in compliance with the aforesaid plans and specifications to furnish the ties, railroad rail, and do the labor completing said track, at the expense of said first party, for which rail ties and other track material, and lábor, said first party hereby agrees to pay said second party in cash upon the complex tion thereof and said second party agrees that said first party shall be reimbursed for the money so paid for labor, ties, rails and other track material, by thereafter receiving from said second party a rebate of one dollar ($1.00) per car on each and every loaded car passing into or out of said quarry and which is shipped from or to any station except Bedford and the saw mills at that place.
“And the said second party agrees that whenever the rebate shall amount to a sufficient sum to pay off the cost of said labor, rail, ties, and other track material, the rebate shall cease, and it will continue to furnish facilities for shipment of stone from said quarry.
“And said second party further agrees, that in case other quarries are opened up, by other parties, along the line thereof, or if the line shall be extended so as to embrace other quarries, before such party or parties shall be permitted to use such road, or any part thereof, such
The amended complaint is based upon the above contract, and alleges, in substance, that after the date of said written agreement, and in express performance thereof, the defendant stone company procured from the land owners, whose property lies between the point of connection of said proposed switch and the quarry of said stone company, conveyances of the right of way for said proposed railroad; that the stone company then proceeded to grade, construct and complete the roadbed for such proposed switch upon the survey and plans of plaintiff’s chief engineer; that afterwards, in June, 1890, said stone company notified the plaintiff that it had completed said roadbed ready for the superstructure, and requested the plaintiff to lay down the ties and rails on such graded roadbed, and complete said railroad from plaintiff’s main line grade to said stone company’s quarry; that before the plaintiff laid down the ties or rails upon such grade the stone company exhibited to plaintiff a form of deed purporting to convey said right of way with certain restrictions and covenants, which were contrary to said contract of March 10, 1890, to which restrictions and covenants the plaintiff objected, and refused to receive the same, as being contrary to said contract; that the stone company retained said conveyance and agreed that the objection of the plaintiff there
Plaintiff has in all things kept and performed the covenants obligatory upon it under said contract of March 10, 1890, and prays that the court adjudge that the plaintiff is the exclusive owner, in fee simple, of said right of way, and that said defendant be ordered to specifically perform said contract, and execute or cause to be executed and delivered to the plaintiff proper deed of conveyance, vesting in the plaintiff the perfect legal title to said right of way.
The appellee stone company answered in eleven paragraphs, the fourth, fifth, sixth and eighth of which were withdrawn at the trial. Demurrers were filed to each paragraph, and overruled, exceptions taken, reply filed. The court, by request, made a special finding and stated its conclusions of law thereon. Appellant excepted to the conclusions of law, and filed a motion
Appellant assigns as error here :
First. The court erred in overruling the separate demurrer to each paragraph separately of the answer.
Second. The court erred in its conclusions of law on the findings.
Third. The court erred in overruling appellant’s motion for judgment on the special finding of facts.
Fourth. The court erred in stating its conclusions of law on the findings.
Fifth. The court erred in overruling appellant’s motion for a new trial.
The first error complained of is overruling the demurrer to the third, fourth and one-half, ninth, tenth and eleventh paragraphs of answer of the stone company.
It will not be necessary to consider the tenth paragraph of answer, for the reason that the special finding as to that paragraph was in favor of appellant, and the error, if any was committed by the court below in overruling the demurrer thereto, was harmless. Walling v. Burgess, 122 Ind. 299.
In determining the sufficiency of the paragraphs of answer in this case, it being a suit in equity to compel the execution of a deed, it is only required that we consider whether the answer presents such a state of facts as would render it inequitable to grant the relief prayed for. Story Eq., sections 769, 770; 3 Pom. Eq., p. 2164; note 1, and section 1404 and note. Ikerd v. Beavers, 106 Ind. 483.
The facts alleged in the third paragraph of answer of the stone company, in substance, are, that the said defendant and its agents were strangers in Lawrence county, Indiana, where said stone quarry of plaintiff was situated, and not acquainted with its geography and topography
Counsel for appellant urge that this paragraph is not sufficient in this: That there is no allegation that the appellant, by deceit or any unfair practice, or by any means whatever, attempted to, or did keep the said appellee from a complete investigation of the topography of the country around the stone quarry; that the means of this information were equally open to both parties to the contract. The demurrer admits the truth of the allegations in this paragraph.
The representation by appellant’s civil engineer that a track can not be laid to a competing line from the appellee’s quarry, was the statement of a fact and not the mere expression of an opinion; it was a material fact, which he, as a civil engineer knew, and from his calling was presumed to know, and which was unknown to the appellee. It was of vital importance to the appellee, because, if true, it must contract with and transport the product of its quarry over appellant’s railroad.
The representation that appellant had a contract with the Evansville and Richmond Railroad Company, by the terms and conditions of which it could not enter the appellee’s quarry or transport its quarry product, was a matter known only to the officers of the two railroad companies.
The statements alleged to have been made were concerning matters which were within the knowledge and under the control of appellant, and upon which, under the circumstances alleged, appellee had a right to rely. Appellant can not now complain that appellee
The authorities cited by appellant, to sustain its contention as to the third paragraph being actions for breach of contract or to rescind the same, are not in point.
The principle which controls in a case like this, is that beneficent and farreaching one, that he who seeks equity must do equity. By virtue of this principle, an answer to a complaint for specific performance is sufficient which shows, that the complainant has secured the agreement by any sharp or unscrupulous practices, by overreaching, by not disclosing important facts, by trickery, by taking undue advantage of his position, or by any other means which are not conscientious. 1 Story’s Eq., section 769. Ikerd v. Beavers, supra.
The demurrer to the third paragraph was properly overruled.
Paragraph four and one-half of the answer avers, that contemporaneously with the execution of the contract set out in the complaint, the stone. company procured from Dr. Gardner, owner of the land between said quarry and appellant’s main line, a conveyance of the right of way over which the switch in question was built; that Gardner, when he conveyed the right of way, reserved the right to connect with switch from his quarries; that said stone company offered to convey the same title thus obtained; that plaintiff refused to receive a conveyance with said reservations and conditions, but demanded that it furnish a perfect title; that said stone company is not able to furnish any other title, although it has used every effort in its power to obtain a perfect one. This paragraph of answers shows that it is impossible for the stone company to convey a perfect title to said right of way as required by the contract and as demanded in the
But if it were conceded that these and the remaining paragraphs were bad, there was no available error in overruling the demurrers to the same, unless there was a good complaint. State, ex rel., v. Myers, 100 Ind. 487; Reeves v. Howes, 104 Ind. 435; Ice v. Bale, 102 Ind. 142.
Are the facts stated in the complaint sufficient to entitle appellant to specific performance? It is necessary, in order to give a court of equity jurisdiction to enforce specific performance of a contract, that the same be complete and certain as well as fair, just and equal in all its parts, and that it be founded on a valuable consideration. The contract must be capable of being specifically enforced, and be of a nature that the court can decree its complete performance against both parties without adding to its terms. It must appear that the plaintiff has no adequate remedy at law, and that a refusal to perform the contract would be a fraud upon him. The circumstances must.be such, when the court is called upon to act, that its enforcement would not be hard or oppressive upon the defendant. Pomeroy Contracts, sections 145, 159, 162, 175; 1 Story Eq. Juris., sections 750a, 751; Modisett v. Johnson, 2 Blackf. 431; Ikerd v. Beavers, supra; Seymour v. Delancey, 6 Johns. Ch. 222; Carberry v. Tannehill, 1 Har. & Johns. (Md.) 224; 22 Am. and Eng. Encyc. of Law, p. 939, and note 2; Marble Co. v. Ripley, 10 Wall. 339; Waterman Contracts, sections 196, and note 1; 1 Story’s Eq. Juris., section 736; Atlanta, etc., R. R. Co. v. Speer, 32 Ga. 550, 79 Am. Dec. 305; Adderley v. Dixon, 1 Sim. & St. 607.
The general rule is, when the consideration on the
In Ikerd v. Beavers, supra; Mitchell, J., speaking for this court, said: “With respect to its essential elements, the qualities of completeness, certainty and fairness, the contract set out in the complaint does not present the requisites warranting a decree for specific performance. Courts can only proceed in cases like this when the parties have themselves agreed apon all the material and necessary details of their bargain. If any of these are omitted, or left obscure or undefined, so as to leave the intention of the parties uncertain respecting the substantial terms of the contract, the case is not one for specific performance. * * * Without supplying all its essential details, no court could so frame its decree as to afford any adequate protection to the defendant, nor can a judgment be entered which would be a final determination of the rights of all the parties. * * * Unless such an agreement has been substantially and fully performed by both parties, it ought not, in any
So far as the rights of appellant are concerned they are protected by the conditions of the contract in the most rigid manner, and the duties of the stone company are stated with completeness and certainty, but when we seek to ascertain what is required of appellant we find those duties lie in the future, that there is no provision to secure their performance, and that they are not stated with completeness or certainty.
The object of the stone company was to secure transportation of the product of its quarry to the general market all over the country. To secure this to the stone company it was provided in the contract that appellant would repay said company the $4,321.45, by allowing a rebate of one dollar on each loaded car passing in or out of said quarry, and that when said sum was repaid in that manner, the rebate should cease and it would continue to furnish facilities for shipping stone from said quarry.
The statement of what appellant is to do could not well have been made in more obscure and uncertain language. No decree can be framed by which appellant can be compelled to comply with its covenant “to furnish facilities for shipping stone,” without adding to the terms of the contract and supplying essential details. This the court has no power to do.
The duties of appellant under the contract lie in the future and are continuous and successive, the performance of which can not be consummated by one transaction, but will require protracted supervision and direction,
The language of the court in Atlanta, etc., R. R. Co. v. Speer, supra, is pertinent in this case, the court said: “We are not asked to compel the plaintiffs in error to transport a particular article of freight now being on the platform awaiting transportation. We are asked to decree that they shall, in all future time, transport all freight and deliver it, as required by defendant in error in terms of the contract. It is evident that any such decree must be as general, and as indefinite in its terms as the contract itself. It can not be specific as to the kind of produce, the quantity, the time of performance; nor can it make a decree which will be satisfied by any specific act of performance. After decree * the case must be kept open, and if the defendant (in that decree) be contumacious, there must be action of the court to enforce it twenty, perhaps fifty times a year, for all time.” The authorities heretofore cited are to the same effect.
It being impossible to execute the contract against appellant, specific performance thereof can not be enforced against appellee. For the reasons stated, the complaint is not sufficient, and the overruling of the demurrer to the answer is not available error. The complaint not being good it is not necessary to consider the other errors assigned, although the legal principles which render the complaint insufficient sustain the finding of facts, and the conclusion of law stated by the court below, and the judgment in favor of appellee rendered thereon.
We think it is clear, from a consideration of the whole case, that appellant is not entitled to the aid of a court of equity.
The judgment is therefore affirmed.