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permitting the public square to be longer, of county commissioners above mentioned, obstructed by the structure so erected there and by another ordinance authorized the on, and asked that they be ordered forth borrowing of money to defray such expenses, with to remove the brick, stone, mortar, plas and directed the issuing of bonds of the ter, and other substances constituting the county therefor. Concerning the regularity building, and to restore the public square to of the proceeding of the county council in the condition which existed prior to April 13, these matters on this occasion, no objection 1905. when the construction was commenced, is suggested, and no ground of objection has and that, failing or refusing so to do, the been observed by us. By the motion now in sheriff of that county be ordered forthwith hearing we are asked to enjoin, pending the to procure the necessary tools and labor, and appeal, the board of county commissioners, to remove such obstruction and every part and all persons acting by, through, or under thereof, and to restore the surface of the that board, from entering into any contract public square to the condition in which it was for the completion or repair of the unfinished prior to the date last mentioned, and that structure to be used as a courthouse, and the expense of so doing be taxed as a part from selling any bonds of the county for the of the costs of this suit, and that the county purpose of raising money to defray expenses council and its members, named, be enjoined for the repair or completion of that building, from making any appropriation for the com it being shown in the motion, and further pletion of the unfinished building, or for proved upon the hearing, that the board, by any of the purposes for which an appropria advertisement, has given notice of the letting tion was so asked in the estimate of the board of such a contract, and notice of the sale of of commissioners of August 7, 1905, above such county bonds. It appears that, so far mentioned, and that the board of commission as the courthouse has been built, it has cost ers be enjoined from applying any of the $13,745. It is sufficiently shown that in its county funds, then or thereafter appropri. erection the county commissioners acted in ated or in their charge, to the expense of com good faith, believing that they were proceedpleting the building or to the expense of re ing according to law, though by the failure moving it, and that on the final hearing the of the county council to make the appropriadefendants, who are the appellees, being the tion and authorize the loan, and direct the board of commissioners and its members, issue of bonds by ordinance, instead of by orthe county council and its members, and der, the action of the board was rendered Lund, the contractor, be perpetually enjoined invalid, as has been decided by the Supreme from any and all of the acts which it was Court. There is no question involved in the herein sought to enjoin temporarily, and that case now here on appeal or in this applicathey be commanded to remove the obstruc tion for a temporary injunction in relation tion, and to restore the surface of the public to the action of the board of commissioners square to its former condition, etc. After in paying for the unfinished structure; that ward, August 29, 1905, in vacation, upon the is, it is not sought to recover the money so hearing of the application for a temporary paid, or to charge any individuals with peinjunction the judge of the court below, hold cuniary liability because of such payment. ing that there was no ground for a temporary The unfinished building, of considerable value, injunction against any of the defendants ex stands upon the public square, the land of cept the board of commissioners, made his or. the county appropriated to use as the site der temporarily enjoining that board from of its public office buildings. The person or applying any of the county funds already or persons who placed it there have been paid thereafter appropriated, in their charge or for it, though without authority of law. custody, to the expense of completing, re Such persons or other individuals have no modeling, improving, or in any manner ex. rights as owners of the structure as it pending funds of the county upon the un stands, or right to reclaim and remove the finished building, and expressly adjudging materials from the land of the county. If it that the county council was not in any way be admitted that the board of commissioners restrained or enjoined from making appro has authority to cause the building to be torn priations as asked for by the board of com down and its materials to be removed, this missioners, or from authorizing that board would occasion great expense, for the payto issue and sell bonds for the purpose of ment of which no appropriation appears to obtaining funds to build a courthouse, or have been made by the county council. The to remodel or to complete a courthouse. Af. county commissioners, having control of the terward, on the final hearing in term, Octo ground, permitted the structure to be placed ber 16, 1905, it was adjudged that the appel where it is, and without formal authority, lant take nothing by its complaint, and that though in good faith the board paid for it. the temporary injunction so granted in vaca Though the payment was unauthorized, yet tion be dissolved. Thereupon the appellant there being no individual owner of the strucbrought this appeal from that judgment. ture, of such permanent character, situated

It further appears that the county council, upon the real estate of the county, it must be at its regular annual meeting in September, treated as within the disposal of the county, 1905, by ordinance made appropriations in through its proper administrative representa: accordance with the estimate of the board | tives. Neither the county nor any citizen is seeking its removal. It is sought in the name , be taxed as part of the costs of suit in this of the state, as plaintiff, to compel its re- case. Whatever may be said concerning such moval, as constituting a nuisance or purpres- a prayer, which forms no part of the atture, and to restrain the representatives of tempted statement of a cause of action, it is the county from making any beneficial use of impossible to see how any benefit could acit. It does not appear that if the structure crue from the result to the appellant, the were destroyed, and its materials were re state, or to any political subdivision of the moved from the public square they would be state, or to the citizens thereof, or to any come the property of the state or of any in individual. Nor is it apparent how any dividual designated, nor is it indicated where public or private harm will accrue from the the great mass of valuable materials might proposed beneficial use of the partly conproperly be deposited without infringement of structed building. While the purpose of the public or private rights.

action by the state is to procure the destrucIt appears from the affidavits submitted tion and removal of the existing building, on this hearing that the structure is so and to prevent its use in the construction of situated that it does not interfere with the the contemplated courthouse, and to enjoin use of the old courthouse upon the same the incurring of expense by the county alone square, or impede business or obstruct the for completing it, we are now asked to ensquare to the detriment of the public. join, pending the appeal, the completion of Whatever might be said if it appeared to be the building and the putting it in such conthe purpose of the board of commissioners to dition that it cannot be regarded in any maintain the structure permanently in its sense as a nuisance or an improper obstrucpresent unfinished condition, or to allow it tion or inclosure of part of the public square, to remain indefinitely and to become ruinous and to enjoin temporarily the borrowing of and decayed, upon the public grounds to money for the payment of the estimated exwhich all citizens have a right to resort for penses in completing and in properly furnishlawful purposes, yet, on the contrary, it affirmatively appears that while it is now While an injunction granted by this court simply in the condition of a large unfinished is merely ancillary, and is awarded, not building, for the preservation of which from strictly upon principles of equity, but for the effects of the weather proper measures the purpose of so far preserving the subjecthave been taken, it is the purpose of the matter of litigation in statu quo that our board of commissioners to proceed as speedi judgment upon final hearing may not in any ly as is practicable to make a beneficial respect be ineffectual, yet it is proper for use of the structure by completing its con us to consider the record so far as to construction as a courthouse, much needed, and template intelligently the effect of such temby so equipping it that it will not have any porary restraint upon the litigating parties; quality of a nuisance, but will be an orna and, though our conclusion may sometimes mental and useful public building properly compel us to characterize the whole prolocated. It is not questioned that, if this ceedings, we must not hesitate to refuse to structure were removed, the administrative do an inequitable or useless or wrongfully officers of the county would have full authori injurious thing by our temporary order. The ty of law, by and through the forms which whole record is before us, and, if it plainly they have pursued for the completion of the appear therefrom that the appellant will not building, to construct on the same place a be entitled to relief sought therein upon the new building such as now in contemplation. final hearing, this may be given proper inIt does not clearly appear that the same fluence in deciding upon the application for materials might not, without infraction of a temporary injunction, as indicating that any rule of law, be used in such reconstruc there is no proper occasion for enforcing tion. It is impossible to recognize how any the preservation of existing conditions pendpublic or private interest would be subserved ing the appeal. All the items of expense by destroying this costly structure at great presented by the board of commissioners, expense in money and in time, preparatory through the auditor, to the county council, to commencing anew, after a long period, related to the completion of the unfinished the beneficial public enterprise of providing structure and the proper furnishing thereof a sufficient courthouse. It is not sought in as a courthouse, except certain items in rethis proceeding to recover damages as such, lation to the compensation to attorneys for or to impose punishment upon any individu services rendered the board, and the expenses als for the creation or maintenance of a of a certain suit in court. In the motion nuisance; but it is proposed that all and in hearing nothing is asked and nothing is each of the defendants be commanded to re said concerning such fees and expenses. We move the structure, and to restore the square have thought it proper not to enter upon to its former condition, and that if the mem-1 any discussion of the question suggested by bers of the board of commissioners, as in- counsel as to the propriety or admissibility dividuals, and the contractor, will not do so, of making the state of Indiana the plaintiff the sheriff be ordered to cause the building | in such suit, inasmuch as it has appeared to to be removed and the surface of the square us that the consideration of the merits of to be restored, and that the expense thereof the motion before us requires denial of the relief sought in this application, and the , tract, with electric current, upon the terms question as to the want of proper parties for described in the contract, at a certain any of the purposes of the suit may be left special price, to wit, 75 cents per 1000 watts, without discussion at this stage.

measured by watt meter, for a period of 60 The motion for temporary injunction is morths, the said Beck agreeing, during said overruled.

period, to use enough current, measured by watt meter, to make a monthly bill of one

dollar, or pay the amount of said bill, should (36 Ind. App. 600)

sufficient current not be used for the service BECK et al. v. INDIANAPOLIS LIGHT &

monthly, and that no electricity for light, POWER CO. (No. 5,698.)

heat, or power, other than that covered by (Appellate Court of Indiana, Division No. 2.

the contract, should be used upon the raid Nov. 28, 1905.)

premises without the written consent of the 1. ELECTRICITY - SUPPLY TO CONSUMERS CONTRACTS - CONSTRUCTION - LIQUIDATED

appellee; that immediately, upon the exDAMAGES.

ecution of said contract, appellee's service A stipulation, in a contract for the pur wires were conducted into and upon appelchase of electric current. providing that the

lant's said premises, and were connected applicant agrees to use enough current, if it is measured by the watt, to make a monthly bill

with his wires and appliances for the disof a dollar, or pay that amount, should sufficient tribution of current on said premises to current not be used, was a part of the direct points of consumption, and proper meter or obligation of the contract, and did not constitute

meters of appellee were then placed and an agreement for liquidated damages in case of breach.

connected for recording and measuring the 2. SAME-INJUNCTION-CONTRACTS-ENFORCE

current, etc., and appellee began to furnish MENT.

electric current under and pursuant to said Where a contract to purchase electric cur contract, continued to do so until prevented rent for a period of five years provided that,

by the wrongful acts of said Beck, and perin consideration of the rate fixed, the consumer should not use any electric current on the prem

formed and continued to perform all the ises not furnished by complainant, complainant stipulations, terms, and conditions of said was entitled to an injunction to restrain the contract, and was at all times, and still is, consumer from so using current furnished by others, though the contract was not one that

able, ready, and willing and offering to pera court of equity could compel defendant to

forin, for the remaining portion of the period specifically perform.

of the contract, as more fully set forth, all its 3. SAME-ADEQUATE REMEDY AT LAW.

stipulations, terms, and conditions. It is Complainant, a public service corporation, alleged that on the 9th of October, 1903, supplying electricity and bound to supply applicants on certain conditions, contracted to sup

Beck notified appellee that he would disply defendant at a special price per 10,000 continue to receive current from appellee, watts used for a period of five years ; defendant would disconnect the service, wires, and agreeing that during such period no current fur would connect the service wires of said Mer. pished by any other company should be used on the premises, and that he would pay at least

chants' Heat & Light Company with his a dollar a month. Held, that for a breach of own wires on said premises, and would there. such contract by defendant in disconnecting after receive electric current on his premises complainant's wires, and using electricity fur from said last-mentioned corporation; that nished by another, complainant had no adequate remedy at law.

upon the same day said Beck did disconnect

appellee's service wires and connect the Appeal from Superior Court, Marion Coun

service wires of said other corporation, so ty; Vinson Carter, Judge.

that appellee could not deliver the electric Suit by the Indianapolis Light & Power

current, etc.; that since said time said Beck Company against William Beck and others.

has not received, and has refused to receive, From an order overruling a demurrer to the

electric current from appellee, and has rebill, defendants appeal. Case transferred

ceived and accepted, and has threatened, and from Supreme Court. Affirmed.

is threatening, to continue to receive, electric Means & Buenting, for appellants. Scott current from said other corporation, all & Scott, for appellee.

of which is done, and is being done without

the written consent of appellee, and contrary 'COMSTOCK, J. The averments of the to the express provisions of said contract. complaint show that appellee, Indianapolis Plaintiff avers further that, if said defendLight & Power Company, and appellant ant is permitted to do and to continue to do Merchants' Heat & Light Company are corpo the above-threatened and wrongful acts, rations under the laws of Indiana, and sever great and irreparable injury will result there. ally engaged in the manufacture and produc from to the plaintiff, and that the damages tion of electric current, and the distribution which will be sustained by the plaintiff, by and sale of such currents for light, power, reason of said wrongful acts and breach of and other purposes, in the city of Indian- | contract, cannot now or at any future period apolis, and are competitors in said business; be accurately or even approximately measthat in August, 1902, appellee and appellant ured, and an action for damages for a Beck entered into a contract, in writing, by breach of said contract would not afford an the terms of which appellee was to supply adequate and complete remedy, because of Beck, in the manner set forth in the con- the following facts: First. That this defend

ant uses a large amount of current. That price of said electric current is fixed, from the amount used by bim varies from hour to time to time, by contract with consumers. hour, day to day, month to month, and year The electric current which said defendant to year. That the amount of current which Beck has so contracted to receive from the would be used by the defendant during the plaintiff, and for the furnishing of which remainder of this period could not be as the plaintiff has so invested his capital, and certained by the appellee, except by the state which said defendant is now refusing and ment of others. The wrongful disconnecting threatening not to receive, plaintiff may not of the plaintiff's service wires, as aforesaid, be able to sell to others during the period of If permitted, would render it absolutely nec- said contract, and, if it should offer to sell essary for the plaintiff to ascertain the the same for the same or greater rate than quantity of current required or used on said that fixed in said contract, such sale would premises from the defendant himself by probably not indemnify the plaintiff in its proceedings in the nature of discovery and damages for the threatened breach of said accounting, but plaintiff in such proceedings | contract. . would be compelled to rely upon the state- The prayer is for injunction to prevent apments, accounts, measurements, and records pellant from using, on the premises mentionkept by said defendant, and upon the read- ed in the contract, electricity for light, heat, ings and meter measurements made and or power other than is furnished by appellee. kept by said defendant competing corpora To this complaint appellant Beck filed a tion, and would be compelled to rely upon demurrer for want of facts. The demurrer the defendant keeping and preserving for was overruled, and judgment entered on the the full period of said remaining contract demurrer, enjoining this appellant as prayterm, full, true, and accurate account of ed for in the complaint, and for costs. The measurements of the quantity of current only error assigned questions the sufficiency used, and holding the same available for of the complaint to state a cause of action. the use of the plaintiff, when needed for the It is contended, first, that the complaint purpose of proof. Second. That, even if the shows that appellee has an adequate remedy quantity of current which would be required at law in an action for damages, and in and used by appellant could be ascertained, such a case the injunction will not lie; secyet the profit appellee would make in sell ond, that an injunction will not be granted ing the same to appellant could not be as inerely because the damages are uncertain; certained, and that any effort to show the third, the contract is not such a one that same in a judicial proceeding would be "ex à court of equity can compel its specific perceedingly complicated, burdensome, expen formance, and for that reason it cannot en. sive, and inconvenient, and attended with force its terms by injunction; fourth, the great uncertainty as to correctness of re contract provides for liquidated damages, sults." Third. The plaintifr does not keep,

and an injunction will not lie to prevent and believes and avers it would be impracti

the violation of it. We will consider these cable and impossible to keep, any system

claims in their inverse order. of accounts by which the cost to the defend Does the contract provide for liquidated ant or the net profit to the plaintiff, at a

damages? The contract contains the followfixed price upon an ascertained or deter

ing stipulation: “The undersigned applicant mined quantity of electric current delivered

hereby agrees to use enough current, in case by it to the defendant Beck, or which should

same is to be measured by the watt, to make be so delivered during the period of one or

a monthly bill of one dollar, or pay the more years, could be ascertained or determin

amount of said bill should sufficient current ed. Fourth. Because the cost of producing

be not used." This stipulation is a part of and delivering current during a specific pe

the direct obligation of the contract, and canriod could not be ascertained, as this would

not be properly construed to be an agreement require a balancing of defendant's accounts

to pay damages for the breach thereof. In

Johnston et al. v. Cowan, 59 Pa. 275, Cowan, with reference to that particular period.

by writing, granted to Johnston and others, Fifth. Because the contract entered into

as partners, the privilege to take clay from with the defendant is 1 of about 200, long

his ground for 20 years, at 12 cents per ton, time contracts of similar character hereto

to pay $150 at the end of every six months, fore entered into by and between the plain

although they should not have then taken tiff and certain of its large consumers of

away so much clay as would amount to that electric current in the central business dis

sum. Held, that the writing was an agreetrict of said city, and, in consideration of

ment to pay for the privilege of taking clay, these contracts and to carry out their terms,

whether exercised or not, and that it was imthis appellant has made large additional in

proper to call the fixed sums to be paid in the vestments in machinery and other equip event of the minimum of clay not being taken ments necessary to carry on their business. liquidated damages. "It is an alternative Sixth. Electric current is a product of pecu price to be paid in an event which it was liar nature, which cannot be sold in said foreseen might happen, not as damages, bnt city or on any market at a fixed and common in payment for the privilege.

We market price, such as wheat, corn, etc. The hold that the contract was not a mere license,

but a grant of the right or privilege which , ders by the court in its efforts to superin. the parties were bound to pay for, whether tend the details of an extensive and peculiar they enjoyed it or not. This was their con business. Where a complaint stating a cause tract and they must abide it.”

of action for specific performance of a conParties may, by agreement, fix upon a cer tract for business dealings, between the plaintain sum as liquidated damages, but, where tiff and the principal defendant, calling for the sum is so fixed, it must appear, either varied and continuous acts, also seeks an from the intent of the parties as expressed injunction to restrain the breach of a negain the entire instrument or from expressed tive and severable covenant through the words that the sum was fixed as liquidated transaction of the business by the principal damages. The law ordinarily regards a gen defendant with a competitor of the plaintiff eral sum stated in a bond as a penalty, and | joined as a defendant and alleged to be will allow only a recovery of the damages ac knowingly promoting the breach, the case tually sustained. Dill et al. v. Lawrence, may properly be retained by the court as 109 Ind. 564, 10 N. E. 573; Muhlenberg v. | one permitting the exercise of the discre. Henning, 116 Pa. 138, 9 Atl. 144; Jaqua v. tionary power of injunction, although a speHeadington, 114 Ind. 309, 16 N. E. 527.

cific performance of the affirmative provisions Third. The contract is not such a one that of the contract would probably be impraca court of equity can compel its specific per ticable through the difficulty of its enforceformance, and for that reason it cannot en ment.” Affirmed in 30 App. Div, 564, 52 N. force its terms by injunction. In Xenia Y. Supp. 433. In Singer Sewing Machine Real Estate Company et al. v. Macy, 147 Ind. Co. v. Union Buttonhole, etc., Co., Holmes, at page 574, 47 N. E. at page 149, the court 253, Fed. Cas. No. 12,904, the English and say: "To the doctrine that an injunction American authorities are considered. There will not be allowed when the contract is was a contract that the complainant was not capable of an enforcement by specific to be the sole and exclusive agent for the performance there are exceptions. Singer sale of machines made by the defendant con. Manufacturing Co. v. Union Buttonhole, etc., pany, and the defendant company was to Co., 6 Fish. Pat. Cas. 480, Holmes, 253, furnish complainant with machines as called Fed. Cas. No. 12,904; Chicago & A. Ry. for up to the full capacity of the factory at Co. v. New York, etc., Co. (C. C.) 24 Fed. I a certain agreed price, to be paid monthly 516; People v. Manhattan Gas Light Co., 45 in cash. Defendant company neglected to Barb. (N. Y.) 136; Dietrichsen v. Cabburn, deliver machines they requested. Contract 2 Ph. Ch. 52; Hooper v. Brodrick, 11 Sim. provided that plaintiff should not engage 47; 2 High on Injunctions, $ 1109, on page in selling any other buttonhole machines 862; Fetter on Equity, p. 269, note 21, and than those manufactured by defendant. In § 189, pp. 294, 295, and cases cited in notes the opinion it is said: “If the court cannot 22, 23; 2 Beach, Eq. Jur. $ 767, and cases order a contract for the making of buttoncited." The case from which we have just hole machines, to be specifically performed, quoted was one in which injunction was by reason of the impossibility of superintend. granted to prevent appellants from discon ing the details of such a business, it does necting appellee's electric light plant from not follow that the bill may not be retained a natural gas well, which, under the con as an injunction bill. It was formerly tract between the parties, was to furnish thought that an injunction would not be the supply of natural gas for the operation granted to restrain the breach of any conof the electric light plant, in which it was tract, unless the contract was of such a contended, as in the case at bar, that the character that the court could fully enforce contract was one which a court of equity the performance of it on both sides." After could not enforce in a proceeding for specific reviewing the earlier cases, the court conperformance, and for that reason it could tinues: “But all of these cases were overnot enforce its terms by injunction. In ruled by one of the ablest chancellors who Standard Fashion Co. v. Seigel-Cooper Co. has adorned the woolsack, in Lumley v. Wag. et al., 157 N. Y. at page 60, 51 N. E. at p. ner, 1 De G., M. & G. 616. In that case a 410 (43 L. R. A. 854, 68 Am. St. Rep. 749), singer had agreed to sing at the plaintiff's the court say: "The complaint for specific theater for three months and not sing at performance, which sets forth a lawful con any other, and the court enjoined her from tract between the parties, capable of per performing at a rival establishment, though formance by both, if no reason for nonper it was clear and was admitted that the court formance by either, readiness to perform on could not oblige her to sing for the plaintiff. one side, a refusal to perform on the other, This case was fully in accord with Morris and facts showing no adequate remedy at V. Coleman, 18 Ves. 437, which had been law, is not demurrable on the ground that disregarded or explained away in many of it does not state a cause of action, merely the intervening cases. It is now firmly esbecause it discloses a case which would tablished that the court will often interfere justify a refusal by the court, in its sound by injunction when it cannot decree perdiscretion, to exercise its jurisdiction to grant formance." The case further, in substance, a specific performance, for the reason that holds that if it appears that the negative the nature of the subject-matter is so com- | remedy of injunction will do substantial plicated as to require a multiplicity of or- | justice between the parties by obliging the

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