119 F. 588 | 2d Cir. | 1902
The bill sets forth a written contract between the parties, by the terms of which defendant agreed to execute a lease for 99 years to complainants of certain cable lines and franchises upon complainants’ fulfillment of certain conditions,—notably, the beginning work on certain repairs within 45 days, and prosecuting the same to the extent of $10,000. It is expressly provided in the contract that it shall be null and void unless, within 45 days from its execution, complainants should commence the work of repairs, and within the same period pay to defendant any sum expended or agreed to be expended in the repairs in the contract contemplated, not to exceed $5,000. The bill alleges that within the 45 days complainants tendered $10,000 to the defendant, but does not aver that they commenced the work of repairs within the same period; that thereupon defendant refused to accept the $10,000, or to' carry out the terms of the contract,, viz., to execute the lease. Wherefore specific performance is prayed. The bill further avers that heretofore ■ complainants brought in this court a common-law action for damages for the breach of the same contract, specific performance of which is now prayed; that said action proceeded to trial and judgment upon a verdict sustaining the validity of said contract, and “awarding the plaintiff, by direction of the court, nominal damages,, said court having held that no substantial damages for breach of said contract could be assessed at law.”
The circuit court, in deciding the demurrer, held that, in view of the judgment between the parties in the common-law action, the question was no longer open whether the failure both to pay (or tender) and to begin work within the 45 days avoided the contract. The more serious difficulty with complainant’s claim, however, is that he not only elected to sue at law for breach of the contract, but actually prosecuted that suit to final judgment in damages. One cannot have damages
Some weight is sought to be laid on the language attributed to the trial judge in the averments of the complaint as to the disposition of the action at law,—that the court held “that no substantial damages for breach of said contract could be assessed at law.” Certainly the ■court did not hold, as a general principle, that, for the breach of a contract to lease personal property, substantial damages could not be assessed in an action at law. Nor does the language above quoted im
The decree of the circuit court is affirmed, with costs.
3. See Election of Remedies, vol. 18, Cent. Dig. § 17.