
    SPECIFIC PERFORMANCE OF BUILDING CONTRACTS.
    [Circuit Court of Franklin County.]
    The City of Columbus v. The Cleveland, Cincinnati, Chicago & St. Louis Railway Company, and The City of Columbus v. The Pittsburgh, Cincinnati Chicago & St. Louis Railway Company.
    Decided, January 19, 1904.
    
      Building Contract — Specific Performance of, will be Decreed, When— Purpose of the Structure Sufficiently Defined, When — Possibility of Change of Ownership of the Property.
    
    1. The general rule that a court of equity will not decree specific performance of a building contract does not apply where it is not competent for the plaintiff to enter upon the defendant’s premises to build, and where a measureable money equivalent can not be had.
    2. Where the contract of the defendant is to do defined work on his property, and the performance in specie will alone answer the purepose of justice, the court of chancery will compel a specific performance, instead of leaving the plaintiff to an inadequate remedy at law.
    3. In such case, where the purpose to be accomplished by the structure is expressed in the contract, and can be easily performed, the building is, for that purpose, sufficiently defined.
    4. Where the violation of the contract is flagrant and the injury serious, the court will not withhold a decree in specific performance, for that there is a possibility, but no pending probability, of its becoming inoperative by a change in the ownership of the property.
    Wilson, J.; Summers, J., and Sullivan, J., concur.
   These actions come into this court on appeal from a judgment in the court below, sustaining a general demurrer and dismissing the petition in each ease. They are submitted together as involving the same questions of law.

The actions are brought to enforce the specific performance of a contract made by the defendants, respectively, with the plaintiff in and about the erection of the viaduct on High street in said city. The contract is attached to the petition. The particular stipulation which is brought into question is con-tamed in what is designated as section fourteen of the contract. It' reads as follows:

“In consideration of the first party (the city) constructing the viaduct at the elevation shown upon said plan hereto attached, said second and third parties will, at their own expense erect, or cause to be erected, on their property fronting on the viaduct and its High street approaches, neat and ornamental buildings to obstruct from the part of said viaduct immediately opposite their said property the view of cars and engines; the construction of said buildings to be commenced within sixty days after the completion of said viaduct, prosecuted without unnecessary delay, and fully completed within two years from the completion of the viaduct. This stipulation shall not create any lien, charge or incumbrance on said fronting property, nor impair in any wise, the right or power of said second and third parties to lease, sell, convey or dispose of said property, or any part thereof, free from any claim or lien of the first party, arising out of this agreement; nor shall such lease, sale, conveyance or disposition release said second and third parties from their obligation to erect said buildings, or to cause them to be erected.”

The city pleads compliance with all of the terms of the contract on its part, and avers in the first case that the Cleveland, Cincinnati, Chicago & St. Louis Railway Company, owning property fronting on each side of the viaduct, and still being in possession of the same, has failed and refused, and still refuses to erect the buildings as it has agreed to do; and in the second case that the Pittsburgh, Cincinnati, Chicago & St. Louis Railway Company, owning and in possession of property fronting on both sides, having complied with the contract to the satisfaction of the city as to the property on the east side, has failed and refused, and still refuses to erect the buildings on the west side thereof.

The question raised upon the demurrer is: Do the petitions state a case for specific performance? The propositions made in support of the demurrer are: That the city is without power or authority to enter into the contract; that as a general rule courts of equity will not order the specific performance of a building contract, and the petitions do not state a case within any of the recognized exceptions to the rule; that the contract is too indéfmite and uncertain to form a predicate for such decree, and that, it being in the power of the defendants to render the decree inoperative by selling or leasing the property, the court will not order specific performance.

As to the first proposition it may be conceded, upon the authorities cited, that the city, on its administrative side, is without power to enforce the erection of these buildings; such power not being within any legislative grant, or a proper exercise of the police power. But we know of no authority, and none is cited, which will prevent the city, as a private business corporation, from entering into any contract that it may have good reason to believe advantageous and beneficial to the citizenship; and such, in our view, is the contract in question.

The general rule that a court of equity will not decree specific performance of a building contract does not apply where it is not competent for the plaintiff, or any one for it, to enter upon the defendant’s premises to build, and where a measurable money equivalent can not be had.

In a foot note to the case of Moseley v. Virgin, 3 Ves., 184, the reason for the rule is said to be, “If one will not build, another may, and there can be a full compensation in damages.”

The exceptions to the rule and the authorities sustaining them are collected in a note to Section 1402, Pomeroy’s Eq., Vol. 3, p. 445. From them we quote:

“This court has jurisdiction to enforce the specific performance of a contract by a defendant to do defined work upon his property, in the performance of which the plaintiff has a ma- , terial interest, and which is not capable of adequate compensation in damages.” Storer v. Great Western Ry. Co., 2 Young & C. Ch., 48.
“Where from the nature of the relief sought performance of a covenant in specie will alone answer the purpose of justice, the court of chancery will compel a specific performance, instead of leaving the plaintiff to an inadequate remedy at law.” Stuyvesant v. The Mayor of New York, 11 Paige’s Ch., 414.

Another exception to the general rule, well sustained by authority, is where there has been a part performance, so that the defendant is enjoying the benefits in specie.

The eases at bar come clearly within the exceptions if the work is sufficiently defined. The relief here sought is, in the language of the contract, the erection of “neat and ornamental buildings, to obstruct from the part of said viaduct immediately opposite their (the defendants) said property the view of cars and engines. ’ ’

Nothing short of performance in specie will accomplish this purpose and at the same time give to the viaduct the appearance and advantages' of a continuous street. Nor is it perceivable how a rule in damages could be framed so as to give adequate relief.

But is the contract sufficiently definite?

In the case of Price v. Corporation of Penzance, 4 Hare, 507, the contract was that the corporation, having purchased the plaintiff’s land, “should at their own expense make a street, and also a market.”

The vice chancellor said:

“Under this contract the corporation has taken possession of the land and converted it; and having had the benefit of the contract in specie as far as they are concerned, I need not say that the court will go to any length which it can compel them to perform the contract in specie.”

The court asked this question, however: “If I make a decree for the performance of the contract, how is the court to know when the contract is performed?”

Subsequently the corporation having by resolution declared that the market should be one for the sale of fish and shoes, the court said in a further hearing of the case: “This has gone far to remove the difficulty to which I have adverted.” Thereafter the corporation performed the contract, leaving the case to be adjudged as to the costs only.

In Sanderson v. Cockermouth & Workington Railway Company, 11 Beavan, 497, “A railway company about to sever the plaintiff’s land by their railroad agreed to purchase the necessary portion of land, subject to making such roads, ways, and slips for cattle as might be necessary. ’ ’ And, having taken possession, and severed the land, the court held that ‘' though it was difficult to execute an agreement thus expressed, yet that the plaintiff was entitled to specific performance; that the word ‘necessary’ must receive a reasonable interpretation.” And it was held to mean ‘ ‘ Such roads, ways, and slips for cattle, as might be necessary and proper for convenient communication betwen the severed portions of the plaintiff’s land.”

In Storer v. Great Western Railway Company, supra, “The defendants agreed to purchase so much land as was necessary for their purposes, at a price named, and to construct and forever thereafter maintain one neat archway sufficient to permit a loaded carriage of hay to pass under the archway, at such place as the plaintiff, his heirs and assigns, should think most convenient, in his pleasure grounds, and should form and complete the approaches to such archway.” The vice chancellor said:

‘ ‘ There is no difficulty in enforcing such a ' decree. The court has to order the thing done, and then it is a question capable of solution, whether the order has been obeyed.”

In Lawrence v. Saratoga Lake R. R. Co., 36 Hun. (N. Y. Sup. Ct.), 467, the contract provided among other things, that:

“The defendant should simultaneously with the construction of said railroad erect at or near Excelsior Spring, owned by the plaintiff, a neat and tasteful station building, for the accommodation of passengers to and from said spring, which shall be a regular station of the road, and all regular trains shall stop at said station, the name of which shall be Excelsior Spring Station.- Reid: That the defendant could, and should be compelled to specifically perform the said agreement.”

This case is approvingly cited by the New York Court of Appeals in Prospect Park & Coney Island R. R. Co. v. Coney Island & Brooklyn R. R. Co., 1 Am. & E. Eq., 395. These cases are cited because the contracts might be said to be indefinite, and because they illustrate the length to which the courts of equity will go in order to do justice between the parties.

There is a class of cases holding that kindred contracts can not be specifically performed. Port Clinton R. R. Co. v. C. & T. R. R. Co,, 13 O. S., 545, is a leading case in that class.

In the nature of things this must be so, for the reason that some such contracts are capable of being performed while others are not. It is not then so much a question of authority as it is to which class does the contract belong; always remembering that a doubtful case will be cast on the side where complete justice can be done.

In the light of all the authorities there are no insuperable difficulties in the contract sued upon here. The words “neat and ornamental” should receive a reasonable construction, looking to the purpose it is sought to accomplish. The contract specifies the purpose, in so far as the city is concerned. It is to obstruct the view of cars and engines, to persons and animals crossing the viaduct — a very useful purpose, and, it would seem, very easy of accomplishment to the satisfaction of the city. The fact that one of the railroad companies has erected buildings on the east side of the viaduct satisfactory to the city is a demonstration of this view of the contract.

The defendants should not be heard to complain of the latitude in the contract, which will permit them to erect buildings suitable otherwise to their own purposes, and within their discretion as to cost and material.

The court will not assume for the purpose of defeating the contract that they will use material they should not, or that they will build other than upon approved architectural lines. Nor will the court be without power to execute its decree. It could, under the contract, enjoin the erection of a building that was being made purposely grotesque and unsightly, or that was plainly fraudulent and evasive of the contract. The same power will execute the decree.

A more serious question is, whether the court should order specific performance in the face of the other stipulation that the property may be leased or sold free from incumbrance. As a general proposition, it may be stated that the court will not do a vain thing, and that it would be vain to order specific performance if the defendants have the right at any time to revoke or annul their obligation to perform. Marble Co. v. Ripley, 10 Wall., 339; Express Co. v. Railroad Co., 99 U. S., 191; Rust v. Conrad, 47 Mich., 449.

These stipulations are not easily reconcilable. Ordinarily the right to sell the property free from incumbrance would imply the right to hold it unincumbered in order that it might be so sold at any time. But this would be in plain contradiction of the obligation of the railroad companies to build these structures; and if this interpretation is to obtain, it would seem that the contract had been purposely made to be broken, in order that an abatement in the consideration might be sought in the way of damages. Such indirection is not fairly presumable. A more reasonable construction would be that the railroad companies should build the structures at all events if they remained in possession; but if they proved to be a losing investment, so that their maintenance would be a charge and incumbrance upon the property to the diminution of its value, they should have the right to lease or sell the property freed from any such liability.

It is a familiar principle in specific performance that a party tc a contract may, at the election of the other party, be compelled to perform to the extent he is capable, before resort is had to the remedy at law.

In this case the plaintiff is entitled to have the contract executed during the time the defendants remain in possession, in order that it may, to that extent, enjoy the protection and the benefits flowing from it. This is particularly true when it is obvious the remedy in damages is wholly inadequate.

There was no want of mutuality in this contract at the time it was made, and can be none so long as the defendants remain in possession. That there may be such between the plaintiff and the lessees or assignees of the defendants is a question with which the court is not now concerned. The power of revocation or annulment of this stipulation to build is not vested in the defendants. On the contrary, it is expressly, and by the last words on the subject, inhibited. To this extent these cases are distinguished from the authorities above cited, upon which the defendants rely. That it may exist in the lessees, or assignees, is no defense here. They may not elect to exercise it, but may buy or lease for the express purpose of complying with the contract. If it be a sale or lease of the property “fronting” on the viaduct, and nothing more, it is difficult to .see how they could be benefited without compliance. Their property would be “in air” until it was physically attached to the viaduct by some structure fronting thereon. Just what is meant by property fronting on the viaduct at an agreed elevation, and whether the sale or lease of the property for railroad purposes only would absolve the defendants from the liability to perform, are questions which do not arise upon the petition and may be reserved for that contingency. It might also become a question whether a sale or lease agreed upon for the express purpose of defeating the contract could be upheld in equity.

Butler & Marshall, for plaintiff.

W. 0. Henderson, for P., C., C. & St. L. Ry. Co.

J. F. Wilson, for C., C., C. & St. L. Ry. Co.

Where the violation of the contract is flagrant and the injury serious, the court will not withhold a decree in specific performance merely for the reason that there is a possibility, but no pending probability, of its becoming inoperative by a change in the relation of the parties.

As is said by Judge Mellvaine, in D., X. & B. R. R. Co. v. Lewton, 20 O. S., 411, “Whether a court of equity has power to decree and means to execute its decrees in such eases are the ultimate questions in this case, and not preliminary ones.” If the. want of power does not necessarily appear from the facts pleaded, the court should not be called upon to determine that question upon demurrer to the petition.

The demurrer to the petition will, in each case, be over-' ruled.  