38 A. 721 | N.H. | 1892
The plaintiff in effect admitted that his lease was forfeited, that he could not legally hold the defendants' property under it, and that he did not intend to oppose them in tearing down the old block and building a new one. He desired to be reimbursed for the expense and loss he would incur in moving; and the defendants agreed to pay him what was equitable and right. Thereupon they proceeded to tear down the block, and to inflict irreparable damage upon themselves if he is allowed to deny the truth of his admissions. But his and their understanding was, that he would not yield to their legal right and leave the premises without an equitable adjustment of his claim for remuneration. During the time required for an adjustment of his claim, the full and complete protection of his rights does not, in equity, make it necessary that the defendants should suffer great and irreparable damage by being deprived of the possession of a part of their block. This is not an action at law. The plaintiff's prayer for equitable relief cannot be granted except on condition that he shall do what equity requires under the circumstances. Though the court found as a fact at the trial that he is not estopped to claim under his lease, yet it is matter of law that he is estopped to ask equitable relief without doing what, in equity, he ought to do; and equity requires him to do what he gave the defendants to understand he would do. He must therefore vacate the premises upon an adjustment of his claim that the defendants pay him what equity requires to remunerate him for the loss to be incurred by his removal. This result may be effectively accomplished by an order that the temporary injunction be dissolved upon the filing of a bond by the defendants running to the plaintiff in a sufficient amount conditioned to pay the plaintiff such sum as shall be found to be equitable. Whatever might be the result at law, equity will not inflict upon the defendants the gross injustice which the plaintiff asks.
Case discharged.
SMITH, J., did not sit: CHASE, J., dissented: the others concurred.
