31 Minn. 390 | Minn. | 1884
The demurrer to the complaint was properly overruled, for there was certainly a cause of action set up for breach of the contract alleged, upon which plaintiff was entitled to recover at least nominal damages. But the complaint does not show plaintiff entitled to the judgment rendered. He is not entitled to it on the ground that the acts of defendant, complained of, created a nuisance, for they were done with the consent and license of the plaintiff, and therefore were not, as between these parties, wrongful. The plaintiff can make no complaint except that the defendant has not removed, as he agreed to do, the dirt which he deposited in the river with plaintiff’s consent. In other words, its sole cause of complaint is that defendant has committed a breach of his contract. And no case is made for specific performance. The general rule is that specific performance will not be decreed where the party has a perfect, adequate remedy in an action for damages. Upon the contract and the breach alleged in the complaint, we see no difficulty in the way of plaintiff establishing and recovering the damages it has sustained by the breach, and there is nothing in the case to suggest that that would
Judgment reversed.
