
    SAMUEL T. WILBUR, Respondent, v. THE GOLD & STOCK TELEGRAPH CO., Appellant.
    
      Equity.—Specific performance.—Pleading.—Supplemental answer.
    
    In an action for specific performance of a contract,—e. g., to furnish certain telegraphic information,—where it appears that the defendant is unable to specifically perform, the usual practice is to withhold the relief prayed for.
    Where the alleged inability arises after the beginning of the action, the defendant should be allowed to plead the facts tending to show such inability, by supplemental answer.
    Accordingly, where by the contract sought to be enforced, the defendant agreed to furnish plaintiff with information concerning the daily transactions of a certain Board of Trade, and after this action was brought, said Board of Trade refused to allow reports to be taken by the agents of the Western Union Telegraph Co., from whom alone defendant was able to obtain such information, and said board thereafter furnished such information to the Western Union Telegraph Co., only for transmission to certain specified persons, viz., subscribers approved by the board aforesaid, of whom plaintiff was not one. Held, that defendant should be allowed to set up said facts by supplemental answer.
    Before Sedgwick, Oh. J., and Freedman, J.
    
      Decided June 1, 1885.
    Appeal by defendant from order denying its motion for leave to serve a supplemental answer.
    The complaint contained, among other averments, the following:
    “I. That at all times herein mentioned, the plaintiff was, and still is, a dealer in grain, provisions and produce, having his office in the city of Hew York, and having a large number of customers dealing with him in his said business.
    “II. That the defendant is a corporation, organized as plaintiff is informed and believes, under the laws of the state of Hew York, for the purpose of furnishing to such person or persons as may pay the regular price or sum asked by defendant therefor, the market quotations of grain, provisions and produce dealt in at the Produce Exchange, in the city of Hew York, and at the Board of Trade, in the city of Chicago, and elsewhere.
    “III. That the said quotations and information are furnished and supplied to the persons so paying therefor by means of a recording instrument or machine, commonly called a ‘ticker,’ placed in the office or store of the person so paying, which machine or instrument is connected by telegraphic or electrical wires with the main circuit of the defendant’s lines.
    “ IV. That in or about the month of April, 1883, the defendant placed in the office of the plaintiff, at 18 Broadway, Hew York city, two of said ‘tickers,’ so called, the plaintiff agreeing to pay therefor, at the end of each and every month, the regular charge or fee therefor for the use thereof, and for all the quotations and information regularly recorded thereon; the said machines and instruments to be and remain with the plaintiff so long as he should well and truly pay therefor ; and the said plaintiff thereupon paid unto the defendant the sum of $100 by way of deposit to cover any deficiency that might at any time exist in said payments. That thereafter the said ‘tickers ’ remained in and upon said premises, but the defendant, without default of any kind on the part of the plaintiff, by its agents or servants, now threaten and are about to enter into and upon the premises of the plaintiff, and by force and violence to disconnect said machines and instruments, and remove them from the said place, and likewise to disconnect the wires connecting the said machines or instruments with the regular circuits of information of the defendant, and deprive him of all and all manner of quotation or information so agreed to be furnished him, in violation of its agreement and of its obligation and duty imposed by law, and to the ruin of his business and his irreparable damage and injury.”
    The complaint demanded as relief judgment that so long as plaintiff complied with the conditions of the contract on his part, the defendant be enjoined from removing said instruments, dec.
    The defendants moved for leave to file a supplemental answer, which contained the following averments :
    “First. The defendant alleges that at the time of the making of the contracts mentioned in the complaint, and in the original answer of this defendant herein, and thereafter until April 30, 1881-, the Chicago Board of Trade permitted the agents of the Western Union Telegraph Company to attend its daily sessions and to collect and transmit reports of prices and of transactions on the said Board of Trade, and during said period, to wit, until the said 30th day of April, 1881-, the said Western Union Telegraph Company furnished said reports to defendant, which was thus, and thus only, enabled to furnish the same to plaintiff by means of the reporting instruments mentioned in the complaint and answer herein as aforesaid.
    
      “ Second. Defendant further alleges that on or about May 1, 1884, the reporters and agents of the Western Union Telegraph Company were, and ever since have been, excluded by said Chicago Board of Trade from its sessions and from the floor of the Exchange, and since said last mentioned date the reports of prices and transactions on the floor of said Exchange, and all other information as to matters connected with the business of said Chicago Board of Trade, have been collected and compiled by the agents of said Board of Trade exclusively. That said reports so collected and compiled have since said 30th day of April, 1884, been delivered by said Chicago Board of Trade to said Western Union Telegraph Company for transmission to such persons, and to such persons only, as have been designated by said Chicago Board of Trade ; and said Western Union Telegraph Company and this defendant have been expressly forbidden to deliver said reports to any persons not so designated. That no persons have been so designated as entitled to receive said reports except such as by special contract have become subscribers therefor to said Board of Trade upon a regular application duly approved by said Board of Trade, and made pursuant to the terms of a circular letter, a copy of which is hereto annexed, marked (A.’ ”
    There were other averments tending to show that the defendants were unable to comply specifically with theircontract.
    The judge denied the motion, on the ground that the right of the parties to the contract must be determined by the contract, and that the directions given by the Board of Trade cannot excuse the defendant from performing their agreement with the plaintiff.
    
      Dillon & Swayne, and Melville Eglestone, for appellant.
    The proposed answer is conclusive. It states that, whatever may have been true some months ago, the defendant has now no right whatever, and can obtain no right to the desired quotations ; that they are the exclusive property of the Chicago Board of Trade, which delivers them to the Western Union Telegraph Co., for the special purpose of transmission only to certain designated persons, and expressly forbids that company to disclose them to plaintiff ; that the defendant receives them from the Western Union Telegraph Co., if at all, for the same special purpose only, and under the same restrictions as those under which they are received by that company. (a) The statute prescribing the duty of defendant and limiting its control, is explicit. “Any person connected with any telegraph company in this state, either as clerk, operator, messenger, or in any other capacity, who shall willfully divulge the contents, or the nature of the contents, of any private communication entrusted to him for transmission or delivery. . . shall, on conviction before any court, be adjudged guilty of a misdemeanor, and shall suffer imprisonment in the county jail or workhouse, in the county where such conviction" shall be had, for a term of not more than three months, or shall pay a fine not to exceed five hundred dollars, in the discretion of the court ” (3 R. S. [Edm. 2d Ed. ] 722 ; see Penal Code, § 641). (b) The settled practice of courts of equity is opposed to the demand of plaintiff. “ When defendant enters into a contract, the execution of which depends upon the voluntary consent of a third person, and such consent is refused, as there are no legal means of compelling it to be so given, the performance becomes an impossibility, and will not be decreed” (Pomeroy Spec. Perf. § 295). In .the cases of Kelly v. G. & S. Tel. Co., and Todd v. Same (mentioned 17 Hun, 551), it was long ago held that the Exchanges had a right to restrict defendant’s use of the information obtained from them. The federal courts have taken the same view. Blodgett, Circuit J.: “As the Telegraph Company enjoyed the privilege only at the will and sufferance of the Board, there can be no doubt of the power of the Board to close its doors against the employees of the Telegraph Company whenever it sees fit to do so ; and it necessarily follows that when the Board excludes the Telegraph Company from the Exchange, the company must cease to send reports of prices to complainant ” (Metrop. Grain & S. Exchange v. Board of Trade, 15 Fed. Rep. 847; Marine, Grain and Stock Exchange v. W. U. Tel. Co., 22 Ib. 23).
    II. The defendant is excused from performance by the provisions of the very contracts themselves under the state of facts now presented. The language of the contracts is : “ The Gold and Stock Telegraph Company will furnish to its subscribers as correct. . . produce. . . quotations. . . as it can obtain by the employment of experienced reporters ; but in view of the difficulties inherent in the business, the company will not be pecuniarily responsible for the accuracy of such quotations and reports, nor for errors, delays or omissions in the service.”
    III. The defendant, under the statute, has a clear right to set up the facts. Generally, a defendant has a right to set up, by supplemental answer, matter of defense which has occurred or come to his knowledge subsequently to the putting in of the first answer (Code, § 544; Holyoke v. Adams, 59 N. Y. 233 ; Spears v. Mayor, &c., 72 Ib. 443 ; Lyon v. Isett, 11 Abb. Pr. N. S. 355 ; Hoyt v. Sheldon, 4 Abb. Pr. 59 ; Palmer v. Murray, 18 How. Pr. 545 ; Morrell v. Carelly, 16 Abb. Pr. 269 ; Stewart v. Isidor, 5 Abb. Pr. N. S. 68).
    
      Simpson & Werner and Richard S. Newcombe, for respondent.
    I. The proposed supplemental pleading fails to disclose any defense. It seeks to set up matters between the Board of Trade and the" Western Union Co. This same attempt was made in a suit brought by the Public Grain & Stock Exchange against the telegraph Co., m the circuit court of Cook county, Illinois, but judge Tuley delivering the opinion (Oct. 25, 1884), struck the supplemental answer from the files, and disallowed the same. A similar effort was made in the N. Y. court of common pleas in a cause exactly like the present one, and resulted in an opinion by the court. • Allen, J.: . . “ The rights of the parties must be determined by their contract. The directions by the Board of Trade of Chicago cannot excuse o the defendants from a performance of their agreement with the plaintiff” (Hammond v. Gold & Stock Tel. Co., N. Y. Daily Reg., March 19, 1885). Leave is never granted where the proposed answer fails to set up a good defense (Jagger v. Littlefield, 3 Week. Dig. 317; Morel v. Garelly, 16 Abb. Pr. 269 ; Goddard v. Benson, 15 Ib. 191).
   By the Court.—Sedgwick, Ch. J.

The present action is not for damages for a breach of the contract. It is, in substance, an action for specific performance of the contract. This is not matter of absolute right. Equity does not always compel specific performance. Circumstances may exist that will justify the court in using its discretion by denying an application for such a judgment. A leading inquiry always is, whether or not the plaintiff can obtain full satisfaction by an award of damages at law. Another, relates to the disposition of a case where the defendants are unable to specifically perform. The usual practice, at least, is not to give such relief. Where the inability arises after the beginning of the action, it must ■ be pleaded, if at all, by a supplementary answer. In a general sense, the defendant appeals to the' discretion of the court. As the canse of action is an appeal to discretion, the counter appeal by the other party is, in its nature, a defense, which, upon a hearing, may be maintained by the court. The proposed supplemental answer contains averments of facts which a court would be bound to hear before giving the judgment demanded by the plaintiff. It is not necessary now to say absolutely, that if the facts referred to are proved, the court would be bound to dismiss the complaint. It is enough to say that the defendant has a right to prove facts that tend to show that it would not be equitable to maintain the contract perpetually or that the defendant is unable to perform.

The order is reversed with $10 costs and disbursements to be taxed, and the motion below is granted, with $10 costs to abide event.

Freedman, J., concurred.  