170 Mass. 199 | Mass. | 1898
The first question which is before us upon the report of the single justice, before whom the hearing was had on sending the case to a master, is whether, as requested by the defendant, the third and fourth questions should have been answered by the master, as it is admitted that the first and second were embraced in the order made, and the fifth is not now insisted upon.
When this case was last before us, Roberts v. Cambridge, 164 Mass. 176, it was held that the plaintiff was entitled to specific performance of his contract with the defendant.
The defendant contends that, where events after the making of the contract make the performance by the defendant so onerous that its enforcement would impose great hardship upon him, and cause little or no benefit to the plaintiff, the court will not interfere, but will leave the plaintiff to his remedy at law. See Beach, Mod. Eq. Jur. § 569. The defendant argues that the population of the defendant city has now increased, and that to perform the contract will cause great damage to the city, and that the court should have allowed the defendant to show “ what might be the proportion between the damage which would he suffered by the plaintiff in consequence of non-performance and that which would be suffered by the defendant in consequence of performance.”
The votes which were held to constitute a contract were passed on December 19, 1887. Soon after this time the defendant supplied the plaintiff with water, and continued so to supply him until on or about July 1, 1893, when it refused to fulfil the contract. The bill in equity for specific performance was filed on May 12, 1894, and the case was decided on June 28, 1895. It was open to the defendant at the hearing on the merits, if there had been any change in the situation be
The next question arises on the appeal from the final decree. While the defendant’s dam was building, the defendant, for the purpose of supplying the plaintiff with water for washing and purposes other than for power, supplied him with water pumped up from the Charles River. This amount is found by the master to have been three hundred thousand gallons daily. The first vote which was passed by the defendant’s water board was as follows: “ Voted, That on December 19,1887, we will open the four-inch gate at the gate-house of our dam at Stony Brook, and allow thereafter a quantity of water to pass through from the reservoir above the dam to Roberts Mills, sufficient for washing and steam purposes, to take the place of the water heretofore furnished to him by us for such purposes.”
The decree declares the legal import of the vote to be that the defendant is bound and obliged at all times to allow to pass to the plaintiff’s mills from its reservoir through the four-inch gate in the dam a quantity of water sufficient for washing and steam purposes for said mills, not exceeding, however, the quantity which was sufficient for these purposes as the mills existed and were equipped on December 19, 1887.
The contention of the defendant is that the amount of the water should be limited by the decree to three hundred thousand gallons, which was the amount furnished by the defendant before December 19, 1887. We are of opinion, however, that the decree has taken the correct view of the contract. The control
Decree affirmed.