Buffalo & L. Land Co. v. Bellevue Land & Improvement Co.

HARDIN, P. J. Manifestly, this action is for specific performance of the agreement set out in the complaint, and was so treated by the parties and the trial court. Upon all the proofs and allegations of the parties, a question was presented for the trial court to exercise a judicial discretion, as to whether there should be a specific performance of the contracts alleged in the complaint or not. Land Co. v. Roe, 8 App. Div. 367, 40 N. Y. Supp. 799. A similar doctrine was laid down in Dunckel v. Dunckel, 141 N. Y. 434, 36 N. E. 405, and in Frain v. Klein, 18 App. Div. 65, 45 N. Y. Supp. 394. In Stokes v. Stokes, 155 N. Y. 590, 50 N. E. 345, Martin, J., said: “The right of specific performance rests in the judicial discretion of the court, and may be granted or withheld upon a consideration of all the circumstances, and in the exercise of such discretion.” (Citing cases.) “It is a well-established principle relating to this subject that specific performance will ■ never be decreed where it would be inequitable. It is immaterial whether the fact that it is inequitable arises from the provisions of the contract, or from external facts or circumstances which affect the situation and relations of the parties; for in either case it may constitute a sufficient ground for a court of equity to withhold this peculiar relief, and to leave the parties to their legal remedy.” (Citing cases.) In Trustees v. Thatcher, 87 N. Y. 317, Danforth, J., said: “It certainly is not the doctrine of courts of equity to enforce by its peculiar mandate every contract, in all cases, even where specific execution is found to be its legal intention and effect. It gives or withholds such decree according to its discretion, in view of the circumstances of the case; and the plaintiff’s prayer for relief is not answered where, under those circumstances, the relief he seeks would be inequitable. * * * If for any reason, therefore, not referable to the defendant, an enforcement of the covenant would defeat either of the ends contemplated by the parties, a court of equity might well refuse to interfere, or if in fact the condition of the property by which the premises are surrounded has been so altered ‘that the terms and restrictions’ of the covenant are no longer applicable to the existing state of things. * * * And so, though the contract was fair and just when made, the interference of the court should be denied if subsequent events have made performance by the defendant so onerous that its enforcement would impose great hardship upon him, and cause little or no benefit to the plaintiff.” [23] In Story, Eq. Jur. § 751a, it is said: “Courts of equity will also, in allowing or denying a specific performance, took, not only to the nature of the transaction, but also to the character of the parties who have entered into the contract.” And in section 769 that same author says: “We have already seen that the specific execution of a contract in equity is a matter not of absolute right in the party, but of sound discretion in the court. Hence it requires a much less strength of case on the part of the defendant to resist a bill to perform a contract than it does on the part of the plaintiff to maintain a bill to enforce a specific performance.” And in section 742 he says: “In truth, the exercise of this whole branch of equity Jurisprudence, respecting the rescission and specific performance of contracts, is not a matter of right in either party, but it is a matter of discretion in the court,—not, indeed, of arbitrary or capricious discretion, dependent upon the mere pleasure of the judge, but of that sound and reasonable discretion which governs itself, as far as it may, by general rules and principles, but, at the same time, which withholds or grants relief according to the circumstances of each particular case, when these rules and principles will not furnish any exact measure of justice between the parties.” The evidence delivered at the special term satisfactorily establishes that the defendant had built, maintained, and operated the road in accordance with the provisions of the contract until December, 1894, and the three following months in 1895. Apparently the expenditure had been $150,000 to bring into existence the railroad, in compliance with the conditions of the agreements that the railroad should be constructed; and it seems that after it was constructed it was operated in strict accordance with the terms of the contract until the storms prevented in the four months mentioned, and subsequent to those months the railroad was operated in accordance with the terms of the agreement down to the time of the trial, which occurred on the 10 th of May, 1897. The evidence given at the trial satisfactorily supports the twentieth finding, to wit, “that it was practically impossible for the said Bellevue Land & Improvement Company to operate the said electric street railway during the winter of 1894-95 pursuant to the terms of the agreements dated June 1, 1892, and - March 1, 1893. * * The evidence also satisfactorily establishes that the plaintiff sustained no damage by reason of the non-operation during those months of the road. Indeed, the plaintiff did not become aware of the obstructions and inoperation until October, 1896, when it was seeking an opportunity to avoid its obligations. It is contended in behalf of the respondent that the obligation on the part of the defendant, by force of the language of the agreement of March 1, 1893, is absolute and unqualified to run cars every half hour from 7 a. m. to 8 p. m., under all conditions and circumstances, until the plaintiff shall have sold the land which it purchased; and it therefore relies upon the doctrine laid down in Harmony v. Bingham, 12 N. Y. 99, and Beebe v. Johnson, 19 Wend. 500, and Tompkins v. Dudley, 25 N. Y. 272, and Ward v. Building Co., 125 N. Y. 230, 26 N. E. 256. Those cases related to contracts which in their terms were absolute and without any qualification, and were so treat-ed in the adjudications made in respect to them. However, there [24] are numerous cases where courts have implied a condition in a contract where a performance of it had, without the fault of the party, become impossible. Such was the case of Dexter v. Norton, 47 N. Y. 62; Lorillard v. Clyde, 142 N. Y. 456, 37 N. E. 489; Stewart v. Stone, 127 N. Y. 507, 28 N. E. 595. In searching for the intention of the parties at the time they used the language in respect to the building, maintaining, and operating the railroad, and the times when cars should be run, force must be given to all the language used, including that which expressly declares, “as such street railroads are usually run until said land is sold”; and that language is to be construed in the light of all the circumstances surrounding the parties at the time of the execution of the contract, as well as the purposes to be accomplished by the construction, maintenance, and operation of a street railroad. Railroad Co. v. Bowns, 58 N. Y. 573; Russell v. Allerton, 108 N. Y. 288, 15 N. E. 391. When the parties used the language, they were contemplating a suburban railroad, and it is not unreasonable to suppose that they contemplated that such railroad should be operated as railroads of that character are usually operated in the neighborhood of the locality of the one provided for. Doubtless the words “every half hour from 7 a. m. to 8 p. m.” related to the schedule that the road was to adopt in the operation of its cars, rather than for the purpose of making an imperative undertaking on the part of the defendant that its cars should thus be run in defiance of all obstacles or hindrances that might occur. It was understood by the parties that railroads adopt schedule time, and that there are, from sundry causes, embarrassments and difficulties which are encountered by street railroads in observing schedule time; and hence it is apparent, with that thought in mind, the parties used the words, “as such street railroads are usually run,” to indicate the extent and nature of the obligation to be assumed by the contracting party. The construction suggested seems to be such as to give rise to the supposition that that would accomplish the purpose of the parties, and to harmonize with the practical situation. The construction suggested would serve “the convenience of passengers,” which seemed to be one of the purposes of bringing the railroad into existence. In this case there was no willful or intentional ' departure from the usual course of operating suburban railroads by the defendant. The findings warrant the conclusion, as did the evidence, that the defendant made diligent efforts to operate the road without interruptions; and the findings also warrant the conclusion that the respondents’ lands were not affected by the interruptions caused by the excessive storms of December, 1894, and the three following months of 1895. Indeed, there is an express finding that “no damage appeared by the evidence to have been caused to any person interested in said land by the failure of the Bellevue Land & Improvement Company, or the company owning or engaged in the operation of said street railroad, to run cars on said railroad when it was obstructed or blocked with snow or snowdrifts.” In Town of Mt. Morris v. Bing, 77 Hun, 18, 28 N. Y. Supp. 281, it was held that a • "orfeiture is not favored by law, and the provisions of an agreement upon which it is based must be strictly construed.” In the course of [25] the opinion delivered by Haight, J., it was said in respect to an agreement then under consideration that its stipulations were not intended to cover “trifling breaches of the contract that might be made in many ways, such as the failure to keep the road, or some particular part thereof, in as high a state of repair as the officers of the town might think it should be in,” and that the special language used was to be read in connection with the whole contract. If we turn to the exact language of the contract, we find that it is a stipulation that in case said street railway shall not be constructed, maintained, and operated as hereinbefore provided, the said party of the first part will, at the request of the party of the second part, take back the said land. There has not been a failure to construct, to maintain, or to operate the road. As already suggested, the road was built at an expense of some $150,000. It was maintained by a large expenditure of money, and it was operated from the time it was opened down to the time of the trial, except the period when the storms interfered, for some four months. We think that that interruption was not such a breach of the contract as was contemplated by the parties at the time they entered into the agreement upon which reliance is placed for the right to have a court of equity enforce the alternative provisions of the contract. Kimball v. West, 15 Wall. 379. The foregoing views lead to the conclusion that the decision of the trial court should be reversed. Judgment reversed, and a new trial ordered, with costs to the appellant to abide the event. All concur, except FOLLETT and GREEK, JJ., dissenting, in favor of an affirmance, on opinion of WOODWARD, J., delivered at special term.