Canton Co. v. Northern Central Railway Co.

Cochran, J., delivered the opinion of this Court: This appeal was taken from an order granting an injunction to restrain the appellant from prosecuting two actions at law, one in ejectment, and the other for trespass guare clausum fregit, brought in the Superior Court for Baltimore City, which, by an agreement of the parties to refer, were then pending before a referee. A motion was made to dismiss the appeal, on the ground of alleged defects in the appellant’s answer to the bill of complaint. It was suggested, in the argument of this motion, that exceptions could not be taken to the answer of a — 393 — corporation, and that the motion should he overruled for that reason. Wo think it unnecessary however to decide that question, as we have concluded from an examination of the answer, and especially of the particulars in which it is alleged to be defective, that the objections made to it are, not well founded. The case differs essentially from that of Keighler vs. Sav. Man. Co., in 12 Md. Rep. There, Keighler and his co-defendants were factors, pressing their principal for the payment of a judgment, which was resisted by a hill for an injunction, in which the principal alleged, that they had received payments from collaterals, for which no credit was allowed; that they had rendered imperfect and false accounts, and that their hooks, in which the accounts of their factorship were kept, were inaccurate and fraudulent in particulars which the complainant could not specify, because the same were retained .in their possession, and access of the complainant thereto refused. The prayer of the hill was, that they should produce all the books, containing entries relating to the business and goods of the complainant, and that they should make full discovery, and proper statements of the accounts. The answer was excepted to, because no sufficient discovery was made, and as the equities of the complainant were dependent on the discovery sought by the hill, the exceptions were properly sustained, and the appeal dismissed. The purpose of the hill in this caso, was to obtain a decree for the specific performance of an alleged contract, and we find that all the averments to which we can look, in determining whether such a case is presented, as entitles the appellee to the relief sought, and on which the affirmance or reversal of the order granting the injunction depends, are fully answered or denied. Had the answer "been more explicit and full, in the particulars objected to, it could have added nothing to the complainant’s equities, nor could the matters charged, to which the answer does not explicitly respond, if admitted, have any effect, so far as we can discover, on the determination of the real question presented — 394 — by the material averments of the bill. We think the answer puts in issue all the allegations upon which the appellee’s right to relief depends, and we therefore overrule the motion to dismiss. In proceeding to determine the question, whether the injunction was properly granted, we are first to consider whether the contract alleged in the bill, is such as a Court of Equity will enforce by a decree for specific performance. The Northern Central Railway Company, the present' appellee, was created in 1854, by the consolidation of several railway corporations) one of which was the Baltimore & Susquehanna Railway Company, and by the Act authorising the consolidation, the appellee was clothed with the corporate powers and privileges, and also became liable-to the burdens, and entitled to the benefits of the existing contracts of that company. It also appears, that the Baltimore- & Susquehanna Railway Company was authorised by the Act of 1858, ch. 191, upon obtaining the assent of the Mayor & City Council of Baltimore, to construct a-lateral branch of its road from any point on the main stem to the water line of the northwest branch of the Patapsco River, east of Jones’ Falls. The bill, after stating that the assent of the Mayor & City Council had been obtained, alleges, that on the 25th day of February 1853, the Canton Company, the present appellant, proposed to the Baltimore & Susquehanna Railway Company, in writing, to grant for said lateral road, free of charge, the necessary right of way, (and other things, including landj water lots and water rights,) through and upon its lands, which proposal was accepted on the 13th of August 1853. These communications, appearing in the record as Complainant’s Exhibits Nos. 1 & 2, constitute the alleged contract, the-specific performance of which is sought by the bill. The other exhibits, from No. 3 to 12 inclusive, also filed by the' appellee, show the subsequent correspondence of the parties in relation to the same subject matter. The bill fur-ther alleges, that the appellant had brought two suits at' — 395 — law, one to recover damages from the appellee for entering upon and making- a section of its lateral road through the appellant’s lands, and the other to eject the appellee from a lot of ground at the river terminus of the road, which suits, the appellant was then pressing to trial before a referee, to whom they had heen referred under rule of Court. The appellant, insisting that it was competent for the referee to award upon and decide all matters in dispute, according to the equity and justice thereof, raised a question as to the right of the appellee to appeal to a Court of Equity for relief, after consenting to the rule for a reference of these cases. Under some circumstances, this proposition might require special attention, hut in our view of the case, the determination of that, question cannot affect the result, and we shall therefore express no opinion upon it. The appellee must he considered as clothed with all the corporate rights and privileges of the Baltimore & Susquehanna Rail Road Company, and also as entitled to the benefit of its contracts. Looking then to the communications between the appellant and that company, shown by Exhibits Nos. 1 and 2, we have to inquire, whether they constitute a contract, so far defined, certain and mutual, as to justify a Court of Equity in passing a decree for its specific performance. We are all of opinion that they do not. The first of these communications dated February 25th, 1853, is a proposal, made by the appellant in general terms, to grant to that company a lot of ground two hundred feet wide, extending from Clinton street to the Port Warden’s line; a lot of ground east of the light house, fronting one thousand feet on the water line of the river and extending from 10th Avenue to the Port Warden’s line, and a free right of way for a railroad through the appellant’s lands to the lots aforesaid; on condition, that the Railroad company should extend a lateral branch road to said lots, and occupy and use them for its business purposes. The company replied on the 13th of August 1853, — 396 — that it accepted the appellant’s offer, stating its readiness, to concur in such steps as might be necessary to give effect to ■ the arrangement, and suggesting that a conveyance should be prepared, as well as a proper obligation to be executed- on its own part. In view of the very important purpose, shown by these exhibits to have been mutually contemplated, it would seem almost impossible to suppose that this general offer and acceptance were intended to he absolute and binding on either side, or that they were taken and considered as reciprocal stipulations of a complete and consummated contract. The general terms of the offer, as well as of the acceptance, show beyond all controversy, that both sides contemplated something further as necessary to he done, in the way of ascertaining the subordinate details and conditions, essential and incident to the main subject matter of the proposed contract. The proposal of the appellant was • unquestionably so regarded by the railroad company, for in accepting the offer it assumed that other steps were necessary to make it effective, and further, that an obligation to he excuted on its own part, was required to perfect the contract proposed. We think it clearly appears that the appellant’s offer, as made and accepted, was considered by neither party as definite or final, and indeed they could not have done so, for it was impossible, by the terms of the offer, to locate, with any degree of certainty, either of the lots mentioned in it. The Port Warden’s line runs nearly parallel with Clinton street and 10th Avenue, hut where, between the lines thus designated, the lots were to he located, does not appear. The offer did not indicate the route of the road “ for which the right of way was to he granted, nor was there any reference to the time to he allowed for the construction of the road, depots and wharves, and in fact, all the details and conditions involved in the execution of the mutual purpose indicated by these exhibits, and necessary to the certainty and mutuality of such a contract as the hill alleges, are wholly omitted. The construction of the lateral road. — 397 — was undoubtedly a matter of interest to tbe appellant, but it is scarcely credible that it intended, without anything further, to be bound as a contracting party by the indefinite and general terms of its offer to the Railroad Company. Although these exhibits are evidence of a general concurrent purpose of the parties to effect an arrangement hy which the branch road could he constructed through the appellant’s lands, yet we think they do not show a clear, definite, and binding contract. The offer seems to us to have been made and accepted, not in the sense of positive binding stipulations, from which neither party could recede, but as the mere basis for such negotiations as should be found necessary to tbe consummation of a contract, mutual and certain in all its parts. This view of the undefined and inchoate character of the understanding of the parties, as gathered from these exhibits, is supported throughout by their subsequent correspondence, appearing in the other exhibits filed with the bill. The appellee, however, alleges and contends, that it has so far performed the contract set up by tbe bill, with tbe knowledge and consent of the appellant, as to take it out of tbe Statute of Frauds, and free it from all objections on the ground of uncertainty and want of mutuality. A brief review of tbis proposition is necessary. When the Act of 1853, chap. 191, was passed, we find that the Baltimore & Susquehanna Railroad Company had constructed the whole line of road proposed by its charter, and that by tbe Act referred to, power was given to it to extend its road, by a lateral branch, to the northwest branch of the Patapsco. River, east of Jones’ Falls, upon tbe express condition, however, that tbe assent of the Mayor & City Council of Baltimore should be obtained before any portion of said lateral branch road should be made within the limits of the city. Tbe corporate powers of the Baltimore & Susquehanna Railroad Company, and of the appellee, as its successor, to make the lateral road as alleged in the bill, thus appears to have been a conditional one, dependent entirely — 398 — on the assent of the Mayor & City Council; and it is also certain, that the assent required could be given in no other way than by the passage of an ordinance to that effect. We may here observe, that the bill, after setting forth the power and authority thus conferred, alleges generally that the assent of the Mayor & City Council was duly obtained, but there is no averment that the extension of the road was made in conformity therewith, nor is there any as to the time, where, nor • of the manner in which the assent was given, nor does the bill state whether the assent was unqualified and absolute, or coupled with conditions necessary to be observed in extending the road. The bill is silent on all these points, and, under the circumstances, the question as to the sufficiency of the averment, that the assent of the Mayor & City Council was duly obtained, becomes an important one. It must be remembered, that the application for an injunction goes to the sound conscience of the Court, acting upon all the circumstances of each particular case, and that the Court, having the right to require a full and cordial disclosure of all the facts, may refuse to exercise its extraordinary power by writ of injunction, if the proceedings are such as to show that a full disclosure has not been made. Here, the assent of the Mayor & City Council was a material fact in the appellees case, and it should have been so alleged as to satisfy the Court of its real character and effect. But that the appellee has not done; the ordinance showing what the action of the Mayor & City Council was, is neither set forth in substance, produced, nor referred to in the bill; the actual character and effect of the assent given being thus left in the field of uncertain conjecture. It is no reply to say, that the ordinances of the Mayor & City Council so far partake of the character of public laws that the Court may take judicial notice of them, for even on that questionable assumption, a reference, to the ordinance relating to the extension of the road will show that the assent given was qualified by conditions, Yhich the appellee neither alleges nor pretends it has com? — 399 — plied with, The rule stated in the case of the Union Bank vs. Poultney, 8 G. & J., 324, properly applies here, and we accordingly hold that the averments of performance b y the appellee of the contract set up by the hill, are wholly unsatisfactory and insufficient, whether they he considered with reference to the certainty and mutuality of the contract, or as evidence of a license from the appellant, upon which the appellee could found any right to protection in a Court of Equity. The principles or rules observed by the Courts of this State in granting injunctions, as well as in cases of contracts, where relief is sought by way of specific performance, are well settled and familiar, 80 much so, that we deem a particular review of the authorities supporting them unnecessary. As the hill stands, we are clearly of opinion that it does not show such a contract as a Court of Equity can enforce by decree, and, failing in that, it follows that the injunction, which was intended to aid the general relief sought by the hill, was improperly granted. We shall therefore reverse the order granting the injunction, and remand the case. (Decided May 25th, 1864.) Order reversed with costs to the appellant, and cause remanded,.