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Higgins v. Drucker.

upon said surety because of said breach," fixes the construction which the surety now seeks to have placed upon the bond.

Strictly there was nothing due the principal at the time he discontinued work under the contract, and strictly nothing thereafter became due and payable to him as he did nothing thereafter under the contract. Of course, if the amount remaining unpaid upon the contract, together with the penalty named in the bond, was more than sufficient to complete the work to be done under the contract, the subrogation to which the surety company was entitled, would have reduced the amount which the plaintiff was entitled to recover against the company, and this was what the court said in effect.

We hold that the court properly refused to charge on this proposition as requested by the surety company, and that the charge given in that regard is correct.

Complaint is further made that the court gave a wrong construction to the bond, in holding that the surety was bound as well for default in furnishing material for the building to be erected, as for default in performing the labor therein provided for. This contention is made because of this language in the bond:

"Whereas said principal has entered into a certain written contract bearing date of February 14, 1898, by and between him and the said Augusta Drucker to erect the building and finish the carpenter work of a certain brick store-building, * * etc."

But this, for a proper construction, must be read in connection with its context; and this context states that what Higgins has undertaken to do is under a written contract, "said contract being made a part hereof as fully to all intents and purposes as if set forth at length herein." Now, therefore, the condition of the foregoing obligation is such that if the said principal shall well, truly, and faithfully comply with all the terms, covenants and conditions of said contract on his part to be kept and performed according to its tenor, then this obligation to be null and void; otherwise to be and remain in full force and virtue in law."

Suppose this contract made by Higgins with Drucker had been set out in full in the bond, it would seem a very strained construction to say that the only thing which the surety company bound itself for was the completion of the labor on the part of Higgins to be performed. And remembering that "said contract being made a part hereof as fully to all intents and purposes as if set forth at length herein," it seems clear that the court was right in refusing to charge upon this point as requested by the surety company, and in charging the jury in these words:

"If you find the plaintiff is entitled to a verdict in this case as against the surety company, she is entitled to recover for both the costs of labor and material for the completion of said carpenter work provided for in said building contract.

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It is said that the application for the bond called for carpenter work only, and specified the contract price as $4,520; that the building expert of the surety company examined the specifications and estimated the cost of the labor only to be $4,700, and so reported to the surety, and that it was upon this report that the risk was approved and the bond given; but the bond was given with the written contract between Drucker and Higgins made a part of it; and the surety company must be supposed to have executed this bond with full knowledge of what that contract was.

15 O. C. D. Vol. 12

Cuyahoga Circuit Court.

It is further urged on the part of the plaintiff in error, that the bond was obtained from it by fraud in this: that when the bond was accepted, it was known to Drucker or her agents that Higgins had accepted the contract at a price much below that which would be necessary to complete the contract; and that it withheld such knowledge from the surety company; that Higgins made his bid under a mistake, and that this was known to Drucker. There is evidence in the record tending to show that the architect of Drucker regarded Higgins' bid as much too low and that he called the attention of Higgins to the fact that his bid was low, but that Higgins felt confident that he had made no mistake. Besides this, the surety company had full opportunity to know what Higgins had undertaken to do. The contract was made a part of the bond and should have been examined by the surety company. It had its expert make an estimate of the value of the work which Higgins had undertaken to perform and it might as easily have had an estimate made of the entire obligation which Higgins had assumed, as of this particular part of it; in short, it had the means of knowing everything which Higgins had undertaken to do, and could as well have determined as Drucker could, whether Higgins was liable to default.

It is further urged that the plaintiff should not be permitted to recover because, it is said, she put an end to the performance of the contract on the part of Higgins by ordering the discontinuance of the work. The evidence on this point is conflicting, and the court said to the jury in regard to it: "That if the plaintiff by her conduct and by her directions and orders, prevented the defendant Higgins and his employes from continuing the work upon the contract, no recovery can be had upon the bond in this action as against either one of these defendants." This was given upon the request of the defendants, and properly stated the law. The jury found the fact for the plaintiff, and, though the evidence was quite strong the other way, we are not prepared to say that the judgment should be reversed on that account.

Without going further into detail, we find nothing in this record justifying a reversal of the judgment, and the same is affirmed.

INJUNCTION-CONTRACTS.

[Cuyahoga Circuit Court, June 10, 1901.]

Caldwell, Hale and Marvin, JJ.

SIPE & SIGLER V. BARTLETT & PAlmer.

1. COVENANT For Services- INJUNCTION REFUSED.

A contract for services cannot be enforced by injunction. Therefore, where lessor covenanted, in a lease of a certain amount of floor space, to furnish horse-power, lessee is not entitled to an injunction to restrain lessor from refusing to furnish the power. In such case, the proper remedy is an action at law.

2. NO MULTIPLICITY OF SUITS-SINGLE ACTION SUFFICIENT.

A single action at law for damages for the violation of a contract for rent and use of power is sufficient aud an injunction will not be authorized to relieve from a multiplicity of suits.

HEARD ON ERROR.

W. C. Ong, for plaintiff in error.

Newton D Baker, for defendant in error.

Sipe v. Bartlett.

MARVIN, J.

This is a proceeding in error seeking to reverse an order of the court of common pleas dissolving a temporary injunction which had been allowed in that court.

The plaintiffs and defendants in this proceeding were plaintiffs and defendants respectively in the court below.

The facts were found by the court and are as follows:

"First-The court finds that on March 31, 1901, the plaintiff and defendant entered into a written contract of lease whereby the defendant leased to the plaintiff a fixed amount of floor space, together with an average of fifteen horse-power for ten hours per day for the sum of seventy dollars ($70.00) per month, payable on the first of each month in advance.

"Second-The court finds in pursuance and under the terms of the contract of lease, Sipe & Sigler established a plant for the manufacture of hard rubber, and installed its machinery in the premises thus leased for that purpose, and from its part of the premises, for the purpose of securing the power contracted for carried a belt from its machinery into the premises of Bartlett & Palmer, reserved the lease, and there placed it upon the pulley of the main shaft of said Bartlett & Palmer, which pulley was there placed by Sipe & Sigler, after operating for a short time, it was found that the belt, thus conveying power, jumped from the pulley and thus stopped the machinery, not only of the plaintiff and defendant in this case, but other power-takers in other parts of defendant's premises.

"Third-And thereafter, by consent between the parties, another pulley was placed upon the shaft by Sipe & Sigler upon the said shaft of Bartlett & Palmer, and another belt extending therefrom into the premises of Sipe & Sigler for transmitting additional power.

"Fourth-The court further finds from the testimony that after the operating of their plant by Sipe & Sigler through and by the power thus furnished by the defendant, Bartlett & Palmer, by reason of the two belts adjusted by consent, that a controversy arose between the parties as to whether or not Bartlett & Palmer were furnished more, and Sipe & Sigler receiving more power than was called for by the contract, or the plaintiffs were entitled to under the contract of lease herein before found to exist.

"Fifth-The court further finds from the testimony that during the contention between the parties, Bartlett & Palmer, the defendants, secured some expert tests as to the amount of power that was being conveyed and furnished to the plaintiff, and as a result thereof concluded that it, the defendant, was furnishing more power than the contract called for, and determined not to continue to so furnish the power, and as a result of such determination loosened the set-screws on one of the pulleys and belts established, thus preventing the further transmission of power through one of the pulleys and belt. The court further finds that the plaintiff remonstrated with defendant for thus interfering, and defendant stated to the plaintiff that it had determined not to and would not permit the set-screws to be tightened on the pulley thus loosened by them, and would not furnish the plaintiff power in addition to the amount furnished and transmitted to it by one belt.

"Sixth-The court finds that thereupon plaintiff secured a temporary injunction against the defendant, setting out in the petition for said injunction the lease existing between the parties, the description of the

Cuyahoga Circuit Court.

manner in which power had theretofore been transmitted, the loosening of said set-screws, and the refusal of the defendant to permit the same to be readjusted and alleging therein that the defendant threatened to cut the belt of plaintiff running over said pulleys, threatened to loosen and remove from the shaft in defendant's engine-room the two pulleys placed on shaft by plaintiff, and threatened to shut off the power altogether from the plaintiff in violation of its contract, alleging irreparable injury, that it had no remedy at law, asked for and obtained a restraining order against the defendant from in any manner interfering with the pulley or pulleys on the shaft described, or its interfering with the plaintiff repairing said pulleys, and restraining the defendant from cutting the belt or belts running from said pulleys, or from shutting off the power from plaintiff, and asking on final hearing for a perpetual injunction. A temporary restraining order was by the court allowed.

"Seventh-The court further finds from the testimony that the plaintiffs thereupon entered the premises of the defendant, readjusted the set-screws binding said pulley to the shaft within the premises of the defendant, restoring the situation as it had existed prior to the loosening of the set-screws by the defendants, Barlett & Palmer. Thereupon defendant filed a motion to dissolve the restraining order as granted, alleging among other things in their motion that the petition did not state facts sufficient to entitle the plaintiff to the equitable interference of the court by injunction, and that the defendant had an adequate remedy at law, and that injury, if any should be sustained, were measurable and not irremediable in character."

The findings of law are also embodied in the journal entry.

The question presented here, is whether upon the facts as found, the result in the court of common pleas was in accordance with the law which should have been applied to the case

It will be noticed that there is no finding that the defendants were not furnishing to the plaintiff all the power which, under the contract between them, they had agreed to furnish. Whether the pulley which was loosened by the defendants so as to render it inoperative, was the one first put upon the shaft by the plaintiffs or the one put on at a later time, does not appear. It does appear that the plaintiffs claimed that by the use of the two pulleys more power was being supplied to the plaintiffs than they were entitled to under their contract. The pulleys were upon the shaft of the defendants. The plaintiffs sought to so tighten the pulley which the defendants had loosened, as to cause it to be effectual to convey power to the machinery of the plaintiffs. Certainly without the existence of the fact that by the device left in operation the plaiutiffs were not receiving the amount of power to which under the contract they were entitled, they were not entitled to the injunction which was dissolved by the order complained of, and, as no such fact is found, it seems difficult to understand what principle was violated by the court in dissolving the injunction. However, the argument made here, was chiefly upon other grounds.

The plaintiff, assuming that the defendants were not furnishing the power which they had undertaken to furnish, urged that the only adequate remedy for it, is by injunction such as was prayed for in the original petition, and they rely upon the doctrine that equity may be resorted to wherever there is no adequate remedy at law. Numerous authorities are cited in support of this proposition; among them, Irvin v. Lewis, 50 Miss, 863.

Sipe v. Bartlett.

The third clause of the syllabus in this case reads:

"The test of the right to equitable interposition is not merely that there is a remedy at law, but that remedy must be adequate, as practical and efficient to the ends of justice, as the remedy in equity.'

""

The action in this case was by a party whose homestead which he claimed was exempt, was about to be sold upon execution by the sheriff; and it was held that there was no adequate remedy at law, and that injunction was the proper proceeding. In the opinion, on page 369, the court uses this language:

66

What damages could a court of law award against a sheriff and the judgment creditor who prompted his act, for the levy upon and sale of land? The sheriff does not break the close; he does not intrude upon the occupancy; his deed is effectual to pass the title. It can hardly be affirmed that more than nominal damages have been sustained. Yet it might be true, that the existence of his deed would impair seriously the sale value of the property, and might in after years, when evidence has faded, or grown dim, put in jeopardy the complainant's title."

Clearly here was a case where there could be no remedy in any wise adequate except by injunction.

To the same effect is Butler v. Burleson, 16 Vt., 176. This was a proceeding by injunction to restrain the defendant from practicing medicine within twenty miles of the town of Berkshire, in violation of his contract with the plaintiff, and that court held that this negative covenant might be enforced by injunction.

See also Manhattan Manufacturing Co. v. New Jersey Stockyard Co., 23 N. J. Eq., 161. In this case the plaintiffs had a contract with the defendants, by which the defendants were to furnish to the plaintiffs all the blood and animal matter from its slaughtering plant; and, in violation of the agreement, the defendants were permitting others to remove the matter so contracted for to the plaintiffs. It was held that the proper remedy was by injunction. On page 166 of the opinion the court say the injunction is not mandatory, it is not for an order that material be delivered to plaintiff, but only to prevent others from taking such material; and, again :

"The value of the blood is no measure of the injury, and it is hardly possible to compute the damages which the injury may occasion. And redress at law could only be obtained by a continued series of suits through the twenty or forty years of complainant's term."

See also Rogers v. Manufacturing Co., 20 Conn., 356, and Memphis (City) v. Dean, 75 U. S. (8 Wallace), 74.

In its findings of law. the court of common pleas stated that the principle announced by the Supreme Court of Ohio in Steinau v Gas Co., 48 Ohio St., 324 [27 N. E. Rep., 545], was decisive of this case. In that case, a contract had been made between the plaintiff and defendant, by which the gas company was to furnish at a fixed price, all the gas for illumination of the premises of Steinau for a given time, and Steinau agreed that he would use no means of illuminating his premises within that time except gas furnished by the gas company. Within the time fixed by the contract Steinau arranged for the illumination of his premises by electricity, and the gas company brought its suit to enjoin him from so making use of electricity for illuminating his premises. The circuit court held with the gas company. Cincinnati Gas L. & C. Co. v. Steinau, 1 Circ. Dec., 490 (2. R., 286.) The Supreme Court reversed the

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