Gas Light and Coke Co. of New Albany v. City of New Albany et al.

right not only to go on and furnish the city with light according to the old and discarded method of lighting cities, at the old price for twenty-three years, in spite of the provisions in the contract that the city should have the right of requiring the company to substitute electric lights, but it insists that the city shall not get any other company to furnish electric lights. It is true, it says it is ready to agree with the city authorities as to price and number of electric lights to be furnished, but it not only objects to entering into competitive bids for such work with another company, but it nowhere says that it has offered or proposed to furnish and substitute the electric lights at such price as they are reasonably and fairly worth. The contract relied on contemplates that they were to be furnished at what they were reasonably and fairly worth, because it says "the price at which said electric lights shall be furnished to be fixed by an equitable agreement between the common council and the gas company.

Equitable is defined by Webster as meaning "marked by a due consideration for what is fair, unbiased or im-. partial." Therefore, the agreement provided for in the ordinance must be marked by a due consideration for what is fair. An agreement forced on the city as a choice between that and doing without electric lights for 23 years would not be an equitable agreement. This is an attempt to invoke the equity powers of the court to wield the extraordinary arm of its power to enjoin the city from violating its alleged contract. The terms of the whole agreement between the parties has not as yet been definitely settled; and for that reason this extraordinary remedy can not be invoked according to the principles. laid down in the quotation counsel has referred us to. It is also a familiar rule in equity that he who seeks equity must do equity. Had the appellant offered to en

Gas Light and Coke Co. of New Albany v. City of New Albany et al.

ter into an agreement with the city, to substitute the electric lights at such price as they were fairly and reasonably worth, it would have occupied a much more favorable attitude in a court of conscience. It is true, in a court of law it might be just as incumbent on one party as the other to tender performance, but in a court of equity, seeking relief in the nature of specific performance, it is incumbent on the complaining party to tender performance. Mather v. Scoles, 35 Ind. 1; Vawter v. Bacon, 89 Ind. 565.

Courts will refuse specific performance on the ground of incompleteness of the terms, or of the uncertainty in the construction or in the application of the terms of the contract. If the parties have made no certain and definite contract, the court will not make a contract for them. Uncertainty in the following particulars has been held to defeat a claim for specific performance, viz: Uncertainty and indefiniteness as to the promise itself, as to the time and mode of performance, as to the amount of consideration, and as to when the consideration was to be paid; so specific performance has been refused where it was provided that the purchase-money must be paid on such terms as may be agreed between the parties. Lawson Rights and Remedies, section 2608; Bowman v. Cunningham, 78 Ill. 48; Hamilton v. Harvey, 121 Ill. 469.

*

"So,

In High on Injunctions, section 1120, it is said: too, if there are disputes concerning the rights of the parties under the terms and obligation of the contract itself, an injunction will be withheld until the rights of the parties are ascertained and adjusted."

And in section 1121, the same author says: "Upon similar principles, it is held that an injunction will not be granted in aid of an action for specific performance, when the agreement which it is sought to enforce is so

Gas Light and Coke Co. of New Albany v. City of New Albany et al.

uncertain in its terms as not to be the subject of a decree for specific performance.'

Unless we eliminate that provision in the contract relating to the substitution of electric lights for gas lights the terms of the contract between the parties are too uncertain and indefinite to warrant interference by a court of equity by injunction. To do that would be to defeat the intention of both parties to the contract. Had the circuit court granted the perpetual injunction asked for, the city never could have substituted electric lights for gas lights for 23 years after April 7, 1888, so long as that decree remained in force, unless it did so at the expense of paying therefor whatever the appellant gas company might see fit to charge or demand for the same; that would be giving the appellant an unconscionable advantage. A court of equity will not afford relief to a party by way of injunction where it will result in such unjust consequences.

It is further said, in High on Injunctions, section 1106, that, "While the remedy for past violations of contract is to be sought only in courts of law, the protection of contract rights and the enforcement of specific covenants are matters which are properly cognizable in courts of equity. The jurisdiction by way of interlocutory injunction to restrain the violation of contracts is based upon the necessity of protecting the legal right, and is exercised for the prevention of irreparable mischief. To warrant a court of equity in interfering, the contract itself must be free from doubt, and the injury apprehended from its violation must be of such a nature as not to be susceptible of adequate compensation in damages at law. And a doubt as to the correctness of the construction of the contract on which the injunction is asked is sufficient ground for refusing to interfere. Nor will an injunction be allowed to restrain the violation of

Gas Light and Coke Co. of New Albany v. City of New Albany et al.

a contract tainted with champerty and maintenance. And if the contract is uncertain and vague in its provisions, or is of an unjust and oppressive character, the relief will be withheld."

Section 1107, same author, says: "The fact that ample remedy exists at law for the violation of an agreement, is always a sufficient objection to the interference. of equity. Thus, where a railway has been constructed under a contract whose terms provide for its construction in a particular manner, for the protection of the owners of real estate over which the road passes, the remedy for violation of the agreement is not by enjoining the use of the road until the terms of the contract are complied with, but by an action at law for pecuniary damages, and in such a case equity will not interfere."

To the same effect are Allen v. Winstandly, 135 Ind. 105; Champ v. Kendrick, 130 Ind. 545; Hendricks v. Gilchrist, 76 Ind. 369; Ricketts v. Spraker, 77 Ind. 371; Caskey v. City of Greensburg, 78 Ind. 233.

The finding shows that appellant had an adequate, complete and efficient remedy at law in an action for damages for a breach of the contract, even though the appellants' construction of the contract is the correct one.

Conceding that the city wrongfully repealed the sixth section of the supplemental ordinance of March 19, 1888, by which the city undertook to bind itself to keep in service all public lamps theretofore ordered, except the same be removed by agreement of said city and said company, and that it further violated its contract obligations to the gas company when it ordered all street lamps within the district in controversy to be taken out of service, yet the finding shows that the amount of ap pellant's damages occasioned by such alleged breach of contract is easily ascertainable, and in fact was ascer

Gas Light and Coke Co. of New Albany v. City of New Albany et al.

tained by the court as far as they had accrued, and that the city was solvent and able to pay it.

Assuming that the appellant's contention is tenable that it is not bound to enter into competitive bids with other companies to get the contract to furnish the electric lights, and that it is not bound to agree to furnish such lights at such price as they are reasonably and fairly worth, and that by its refusal or failure so to do, the original contract of $18 per lamp per year for furnishing gas still remains in force, and assuming that the threatened letting of the contract to another company will deprive appellant of the power of complying with its contract in furnishing gas for the lamps within the district in question, for the whole unexpired period of time its contract was to run, yet the finding shows that appellant had a remedy at law which was as adequate, complete, and efficient as any equity could afford. When an injury may be fully compensated in an action at law for damages where the wrongdoer is solvent, the extraordinary remedy of injunction will not lie. See the authorities last above cited. Also, Laughlin v. President, etc., 6 Ind. 223; Smith v. Goodknight, 121 Ind. 312.

The court, therefore, did not err in its conclusions of law.

We intimate no opinion as to the validity of the ordinances in question, for the reason that it is unnecessary, and because, as we are informed, that question is being litigated in another action between the parties.

The judgment is, therefore, affirmed.

Filed Dec. 14, 1894.