Ellsworth, J.
The city of New Haven, on the 2d day of'January, 1854, contracted to purchase, of Eli Whitney, certain lands, and so much of the water of Mill river, as should be found necessary to supply the city with pure water. Mr. Whitney has offered to perform the contract on his part, and has tendered his deed, prepared by the counsel of the city, which it is agreed, embraced the lands, waters and privileges, which he was to convey, and is itself entirely correct, and satisfactory. The defendants have refused to receive it, and have voted not to go on with the purchase, and, on their own account, have repudiated the contract, and decline to take any measures to carry it out, or pay the plaintiff the consideration, which he was to receive. Into the cause of this, it is not important for us to enquire. They have voted to abandon the water-works, and that is enough for the present purpose, preferring, as we suppose, if they are bound by the contract, to pay whatever damages a jury shall find that the plaintiff has sustained, rather than pursue a project which the citizens themselves have declared they do not desire to pursue, and the further pursuance of which, they believe, will unnecessarily aggravate their damage and loss, while it will not benefit the plaintiff beyond the money due him, which can be recovered by way of damages, at law. Mr. Whitney insists that the city shall go on, and shall specifically execute the contract as agreed, and he calls upon the court, in the exercise of a sound discretion, (for to that he, of course, appeals, in asking for its interposition,) to order the city to construct the water-works, so far as it concerns him, or, at least, to pay him the fifty thousand dollars.
The defendants resist the prayer of the bill, and urge, in [631]*631their defence, two considerations,—that there is not a valid contract, as set out by Mr. Whitney, in the bill, inasmuch as the water-commissioners had no power, or authority, under the vote of the city, to oblige the city to issue city bonds, or erect a permanent dam, thirty-three feet high, and a canal to accommodate the plaintiff’s works. On the other hand, the plaintiff insists that the power and authority is ample, and that the water-commissioners have only carried out the vote of the city, in a manner alike reasonable and judicious, and that what they contracted for, or to perform, beyond the mere purchase of water, was incidental to the purchase and fair enjoyment of the water, and the mode of payment. We briefly allude to this objection at this time, because it does not become important to decide it in this suit. We place our decision on another and different ground, and, therefore, we do not mean to decide it. The other objection is this, that, allowing the contract with Mr. Whitney to be good and valid, a suit at law can be brought upon it, to recover the damages, and there is no occasion for specific execution; and further, specific execution would be exceedingly oppressive, if hot tyrannical, toward the defendants. This objection, in our view, is entitled to much consideration, and is decisive of the plaintiff’s bill.
Our statute, as well as common law, forbids a party, that can obtain complete redress at law, to seek redress by specific execution. True it is, that, as a general rule, where the purchaser of real estate can come into a court of equity, to obtain a deed of it, the vendor can come there to get his money, which was agreed to be paid, but the rule is not universally true, and it should not be .applied, we think, where it will do unnecessary mischief to one of the parties. This is a case of that character. The plaintiff not only asks to recover his money, but he seeks to compel the city to construct, at a great expense, their water-works, with a dam thirty-three feet high, for an immense pond, or reservoir of water, with a canal,for surplus water,for the plaintiff’s works; [632]*632or, if the plaintiff will be satisfied, as he may be, to take a decree only for the fifty thousand dollars, and not pursue the rest of his prayer, then, we say, that the remedy is unequal and oppressive, and will not leave the parties where they should be left, and where they will be left, after a recovery of damages, at law. Is it not more equal and. just, that the plaintiff should recover his damages, whatever they may be, and retain his property, as it is, than to force the city to pay fifty thousand dollars, and go on with the water-works, whether they will use them or not; or, if the works are not to be constructed, to pay Mr. Whitney the fifty thousand dollars, and leave him, as they necessarily must do, in that case, in the undiminished enjoyment of the whole of this same property? ' The truth is, the city get nothing at all for the fifty thousand dollars, nor is the plaintiff to part with anything for it; under such circumstances, a court of equity, by granting the prayer of the bill, would, in our judgment, exercise anything but a wise and sound discretion. It is not enough, in this court, for the plaintiff to say that he has fairly made, what proves to be, a favorable bargain, and that he now wants only the benefit of it, by means of specific execution. The agreement, though good at law, is not, of course, to be enforced in a court of equity.
The general principles of equity, which govern cases like the present, are .too familiar to require from us any further comments, or the citation of authorities and cases. They are to be found, and are abundantly illustrated, in the books read at the bar, and in many other treatises. We entertain no doubt, that the law is, that where contracts are made for the purchase of real estate for public purposes, such as highways, railroads, canals, parks, and the like, but which contracts, being altogether executory, are abandoned, and the vendor remains in possession, he must seek his redress at law, and not in equity. In Webb v. The London & Portsmouth Railway Company, 9 Eng. L. & E., 249, on appeal, the defendants had entered into an agreement to purchase certain lands, not [633]*633exceeding eight acres, for a proposed railroad, and to pay £4,500 for them, but which was not taken, though the defendants entered to make a survey, and estimate, and cut one tree, and the plaintiff was not otherwise disturbed in his possession and enjoyment; the court held, that the plaintiff was not entitled to a specific performance; their language is, “it is the plain doctrine of the court, that it is not upon every contract that the court will interfere to decree specific performance. It does so, to give more complete justice to a party, who seeks the aid of this court, where a contract has-been entered into to purchase an estate.
Free access — add to your briefcase to read the full text and ask questions with AI
Ellsworth, J.
The city of New Haven, on the 2d day of'January, 1854, contracted to purchase, of Eli Whitney, certain lands, and so much of the water of Mill river, as should be found necessary to supply the city with pure water. Mr. Whitney has offered to perform the contract on his part, and has tendered his deed, prepared by the counsel of the city, which it is agreed, embraced the lands, waters and privileges, which he was to convey, and is itself entirely correct, and satisfactory. The defendants have refused to receive it, and have voted not to go on with the purchase, and, on their own account, have repudiated the contract, and decline to take any measures to carry it out, or pay the plaintiff the consideration, which he was to receive. Into the cause of this, it is not important for us to enquire. They have voted to abandon the water-works, and that is enough for the present purpose, preferring, as we suppose, if they are bound by the contract, to pay whatever damages a jury shall find that the plaintiff has sustained, rather than pursue a project which the citizens themselves have declared they do not desire to pursue, and the further pursuance of which, they believe, will unnecessarily aggravate their damage and loss, while it will not benefit the plaintiff beyond the money due him, which can be recovered by way of damages, at law. Mr. Whitney insists that the city shall go on, and shall specifically execute the contract as agreed, and he calls upon the court, in the exercise of a sound discretion, (for to that he, of course, appeals, in asking for its interposition,) to order the city to construct the water-works, so far as it concerns him, or, at least, to pay him the fifty thousand dollars.
The defendants resist the prayer of the bill, and urge, in [631]*631their defence, two considerations,—that there is not a valid contract, as set out by Mr. Whitney, in the bill, inasmuch as the water-commissioners had no power, or authority, under the vote of the city, to oblige the city to issue city bonds, or erect a permanent dam, thirty-three feet high, and a canal to accommodate the plaintiff’s works. On the other hand, the plaintiff insists that the power and authority is ample, and that the water-commissioners have only carried out the vote of the city, in a manner alike reasonable and judicious, and that what they contracted for, or to perform, beyond the mere purchase of water, was incidental to the purchase and fair enjoyment of the water, and the mode of payment. We briefly allude to this objection at this time, because it does not become important to decide it in this suit. We place our decision on another and different ground, and, therefore, we do not mean to decide it. The other objection is this, that, allowing the contract with Mr. Whitney to be good and valid, a suit at law can be brought upon it, to recover the damages, and there is no occasion for specific execution; and further, specific execution would be exceedingly oppressive, if hot tyrannical, toward the defendants. This objection, in our view, is entitled to much consideration, and is decisive of the plaintiff’s bill.
Our statute, as well as common law, forbids a party, that can obtain complete redress at law, to seek redress by specific execution. True it is, that, as a general rule, where the purchaser of real estate can come into a court of equity, to obtain a deed of it, the vendor can come there to get his money, which was agreed to be paid, but the rule is not universally true, and it should not be .applied, we think, where it will do unnecessary mischief to one of the parties. This is a case of that character. The plaintiff not only asks to recover his money, but he seeks to compel the city to construct, at a great expense, their water-works, with a dam thirty-three feet high, for an immense pond, or reservoir of water, with a canal,for surplus water,for the plaintiff’s works; [632]*632or, if the plaintiff will be satisfied, as he may be, to take a decree only for the fifty thousand dollars, and not pursue the rest of his prayer, then, we say, that the remedy is unequal and oppressive, and will not leave the parties where they should be left, and where they will be left, after a recovery of damages, at law. Is it not more equal and. just, that the plaintiff should recover his damages, whatever they may be, and retain his property, as it is, than to force the city to pay fifty thousand dollars, and go on with the water-works, whether they will use them or not; or, if the works are not to be constructed, to pay Mr. Whitney the fifty thousand dollars, and leave him, as they necessarily must do, in that case, in the undiminished enjoyment of the whole of this same property? ' The truth is, the city get nothing at all for the fifty thousand dollars, nor is the plaintiff to part with anything for it; under such circumstances, a court of equity, by granting the prayer of the bill, would, in our judgment, exercise anything but a wise and sound discretion. It is not enough, in this court, for the plaintiff to say that he has fairly made, what proves to be, a favorable bargain, and that he now wants only the benefit of it, by means of specific execution. The agreement, though good at law, is not, of course, to be enforced in a court of equity.
The general principles of equity, which govern cases like the present, are .too familiar to require from us any further comments, or the citation of authorities and cases. They are to be found, and are abundantly illustrated, in the books read at the bar, and in many other treatises. We entertain no doubt, that the law is, that where contracts are made for the purchase of real estate for public purposes, such as highways, railroads, canals, parks, and the like, but which contracts, being altogether executory, are abandoned, and the vendor remains in possession, he must seek his redress at law, and not in equity. In Webb v. The London & Portsmouth Railway Company, 9 Eng. L. & E., 249, on appeal, the defendants had entered into an agreement to purchase certain lands, not [633]*633exceeding eight acres, for a proposed railroad, and to pay £4,500 for them, but which was not taken, though the defendants entered to make a survey, and estimate, and cut one tree, and the plaintiff was not otherwise disturbed in his possession and enjoyment; the court held, that the plaintiff was not entitled to a specific performance; their language is, “it is the plain doctrine of the court, that it is not upon every contract that the court will interfere to decree specific performance. It does so, to give more complete justice to a party, who seeks the aid of this court, where a contract has-been entered into to purchase an estate. It may often happen that the mere legal remedy of recovering damages, for the non-performance of the contract, would afford inadequate relief, and, from the earliest time, it has been the doctrine of this court to interfere to make the party do what he has engaged to do, namely, convey the land he has agreed to sell,” * * “but even in the ease of a suit by a purchaser, if there be circumstances, rendering it unjust that the court should interfere, the court will not interfere in his favor; and I should say, much more readily will the court listen to an objection, that is made against a vendor seeking a specific performance; because of necessity the vendor can get complete redress at law,” * * “ but here it is admitted that what the contract amounts to is really this: a contract to pay five thousand five hundred pounds, to select eight acres of the plaintiff’s land and take it from him, and for such land, and consequential damage, to pay the £4,500.” The court, after stating the rule for finding the damages, resulting from a refusal by the defendants to take the land, proceed to say: “ The amount of damages, to be calculated, will then, as I conceive, be a calculation made on the agreement, as to what, taking all the circumstances into consideration, will do justice, whereas, the relief that would be afforded in this court would be positive injustice. It would be giving to this gentleman £4,500 as the purchase money for that which they had not taken, and which I believe they never pow cap [634]*634take.” Much more is said by the court, which is in point to this case, for here it is too obvious to remark, that if the city do not pursue their works, they will receive absolutely nothing for what they pay, nor can they sell anything belonging to the purchase, while, in the above case, the purchasers might probably have sold to other persons, the eight acres of land. The same is decided in Stuart v. The L. N. W. R. R. Co., 11 Eng. L. & E., 112. Lord Cranworth says: “The ground, on which we proceeded in Webb, &c., was this; that, whether it was a contract or not, the circumstances of the case made it such, that it was not fit for this court to interfere by way of specific performance, because these two circumstances conspired; first, that complete relief might be obtained at law, if the parties were entitled to any relief, and, secondly, the principle of mutuality wholly failed, for it was impossible for the company to hold the land for their benefit, in consideration of the money they were to pay.” So in Gooday v. The C. & S. V. R. R. Co., 15 Eng. L. & E., 596, a case of similar character, where the company had not taken possession of the land, and had abandoned, forever, the project contemplated; the master of the rolls says, “had there existed any such contract, then it has been settled as a rule of law, by recent cases, that assuming a contract to have existed betweeñ an individual and a railway company, and if the undertaking had been abandoned, the court will, nevertheless, in the exercise of its discretion, send the case to law, instead of granting specific performance.” We think the good sense of these decisions must commend itself to the approbation of every person, the moment he hears them, and that the doctrine they contain, is as applicable, and as important in this country as in England.
In coming to this conclusion, it will of course be understood, as already stated, that we do not mean to give an opinion, one way or the other, upon the validity of Mr. Whitney’s contract. That question is left open and un[635]*635touched, as there may be an action at law, for the breach of the contract.
There was another question discussed at the bar, which we notice only to say, that it is unimportant in the view in which we dispose of the case. We mean, the effect of the act of 1854, and the succeeding vote of the city of New Haven. Was this act constitutional, and does the vote of the city impair any of the rights of Mr. Whitney, and if so, what is the operation of the saving clause of the act, in preventing it ?
For these reasons, we advise that the bill be dismissed with costs.
In this opinion the other judges concurred.
Bill dismissed.