33 Fla. 322 | Fla. | 1894
The errors assigned on this appeal are the overruling the demurrer to the bill of complaint, and the rendition of the final decree against appellant.
After the demurrer to the bill as originally filed was overruled, complainant amended by adding a paragraph to the bill, alleging that the defendant gas company was exercising its franchises aud privileges in the city of Pensacola by virtue of the municipal ordinance passed November 18th, 1882, and issue was joined and the case disposed of in the Circuit Courts on the amended bill. The case will be considered here as presented by the amended bill and the issues raised thereon. In the answer to the amended bill the defendant gas company reserved the benefit of a demurrer thereto, on the ground that the facts alleged did not entitle complainant to any relief in equity.
It is insisted by counsel for appellant that the contract sought to be specifically performed imposes no obligation upon the gas company to furnish gas lamps in excess of 137 at its own expense. The bill alleges that the gas company has refused, and still refuses, to erect public street lamps in said city at points required, unless it pays the gas company the cost of erecting such lamps and the cost of pipes and other expenses inci
It becomes necessary, in the first place, for us to ascertain what is the contract, as well as its meaning, alleged to exist between the parties in reference to the subject-matter of this suit. The contract, according to the allegations of the amended bill, is contained in the ordinance passed by the city of Pensacola on the 13th of November, 1882, the contract between' the provisional municipality and the gas company, made in August, 1885,. and the ordinance passed by the provisional municipality in May, 1891. The existence of the ordinances and contract, copies of which were filed with the bill, are admitted, but there is a wide difference between the-municipality and the gas company as to their proper construction. The original ordinance passed in 1882 by its terms granted to Walsh
We said in McCrillis vs. Copp, 31 Fla., 100, 12 South. Rep., 643, that the “enforcement of the specific - execution of a contract in a court of equity is not a matter of strict legal right, but rests in the sound discretion of the court. This does not mean an arbitrary discretion, but a sound legal discretion, and it may be stated generally, that a court of equity will decree the specific performance of _ a written contract where it is -. certain, fair in all of its parts, not in contravention of law or public policy, and is capable of being performed.” Vide Knox vs. Spratt, 23 Fla., 64, 6 South.
Issue was taken upon the allegation of the answer •that the gas company had' fully complied with the terms and conditions of the contract of May, 1891, but that the city was, at the time of filing the bill, and still is, indebted to the gas company for gas furnished, and that said indebtedness was due and unpaid. The p ;oof shows that when the bill was filed in September
The reformation of the contract is not involved in this suit.' The city is in a court of chancery, and before it can ask equity it must do equity. It can not withhold from the gas company a large sum of money due it under the contract for supplying lamps and gaslight service, and at the same time ask the company to comply with the contract on its part in erecting more lamps. To permit this would be to enforce the contract for the city’s benefit when it was not complying with the contract in an essential particular. For this' reason the decree was erroneous.
In disposing of the case on the grounds considered we do not decide any others raised, or that may be involved in the record.
The decree is reversed, and it will be so ordered.