Canton Co. v. Northern Central Railway Co.

A Motion to Dismiss an Appeal from an order granting an injunction, based on the fact of exceptions for insufficiency having been taken to the defendant’s answer, will not be allowed to prevail, when all the averments of the bill, to which the Court can look in determining whether such a case is presented as entitles the complainant to the relief sou'ght, and on which the affirmance or reversal of the order granting the injunction depends, are fully answered or denied. Contracts, Specific Performance of. — The C. Co. of B. on the 24th of February 1853, proposed, by letter, to grant in fee to the S. R, Co. certain lands and right of way, upon certain specified conditions to be complied with by the latter. To this proposition- the S. R. Co., by its President, on the 13th of August 1853, replied as follows: “By resolution of the Board of Directors of this .company, passed at a meeting held yesterday, I am instructed to accept the proposition made by you to this company on behalf of the C. Co. of B., under date of the 25th February last; and 1 beg therefore to state my readiness to concur with you in such steps as may be necessary to give effect to the arrangement. If you will have the kindness to have prepared the proper conveyance on the part of the C. Co., and the proper obligation on the part of this company, 1 will submit them to the counsel of the company for his approval, and then execute them so far as to me may belong.” On a bill in equity for a specific performance, Held: That these two letters do not constitute a contract so far defined, certain and mutual, as to justify a Court of Equity in passing a decree for its specific performance. Injunction. — An application for an injunction goes to the sound conscience of the Court, acting upon all the circumstances of each particular case; and the Court, having the right to require a full and candid disclosure of all the facts, may refuse to exercise its extraordinary power by writ of injunction, if the proceedings are such as to show that a' full disclosure has not been made.

Appeal from the Circuit Court of Baltimore City : This is an appeal from an order of the Circuit Court of Baltimore City, granting an injunction, passed on the 29th day of April 1863, for the purpose of restraining the appellant from further prosecuting two suits at law, instituted by it against tbe appellee in the Superior Court of Baltimore City, and then pending before a referee to whom the same bad been referred, under a rule of said Court, onr of said actions being an ejectment, and the other trespass quare clausum fregit. The material allegations of the bill of complaint are set forth in the opinion of this Court. The prayer of the bill was for a conveyance of the lands referred to, and a specific performance of the contract alleged in the bill, and that the Canton Company be forever enjoined from prosecuting the aforesaid suits at law, and for further relief. The following are the complainant’s exhibits Nos. 1 and 2, filed with the bill: . Complainant’s Exhibit No. 1. — The Canton Company of Baltimore propose to grant in fee to the Susquehanna Rail Road Company, on condition that said company extends its road to the harbor on the Canton grounds, the following property, to wit: 1st. Free right of way through the grounds of said company to the water, one hundred feet wide, occupying some twenty-five acres, at, say $2,000 per acre: - $50,000 2nd. A piece of ground two hundred feet wide, extending from Clinton street to the Port Warden’s line, say eight hundred feet at $100 per foot, - 20,000 Cost of wharf on same, say, _ - - 10,000 3rd. One thousand feet of water-front east of the light house, extending from 10th Avenue to the Port Warden’s line, covering an area of thirty acres more or less, $20 per foot, - - 20,000 $100,000 This property said company proposes to deed free of any charge, on the above condition, to wit: that said road is extended to said property and occupies it for the business of the road. (Signed:) — J. H. Carter, on behalf of the Canton Company of Baltimore. February 2ith, 1853. Complainant’s Exhibit No. 2. Qketce or the Balto. & Susqa. B. E. Co.,. Baltimore, 13th August 1853. James H. Carter, Esq., On behalf of the Canton Company of Baltimore. Dear Sir: — By resolution of the board of directors of this company, passed at a meeting hold yesterday, I am instructed to accept the proposition made by you, to this company, on behalf of the Canton Company of Baltimore, under date of the 25th February last; and I beg therefore to state my readiness to concur with you in such steps as may be necessary to give effect to the arrangement. If you will have the kindness to have prepared the proper conveyance on the part of the Canton Company, and the proper obligation on the part of this company, I will submit them to the counsel of the company for his approval, and then execute the'm so far as to uie may belong. I am sir, very respectfully, your humble servant. Bobbrt Clinton Wright, President. Upon the bill and exhibits, the Court (Krebs, J.) on the 29th of April 1863, ordered an injunction, which was accordingly issued. And on the 5th day of May following, the defendant filed its answer, and took this appeal from the order granting the injunction. The complainant filed exceptions to the defendant’s answer for insufficiency, and moved for a dismissal of the appeal, on the ground that the defendant could not appeal without first filing an answer, and that an insufficient answer was no answer at all. The motion to dismiss, and the appeal, were heard at the same time in this Court. 1st. On the question of the right of exception to the an-’ ■swer of the Canton Company, we refer to Art. 26, sec. 103, of the Code. Winchester vs. Bcdto. & Sus. li. B. Co., 4 Md. Bep., 232. Taggart vs. Boldin, 10 Md. Rep., 104. Boldin vs. Mayor & G. Q. of Bailo., 15 Md. Bep., 18. The answer in this case is not in evidence. This is not a motion to dissolve. The Court cannot here look at the answer, and we have no right to read it; its only purpose is to join issue, as a plea, and in that light it is sufficient. Union Bank of Georgetoion vs. Greary, 5 Peters, 111, cited hy EcoleSton, J., in 15 Md. Rep. Bartlett vs. Gale, 4 Paige, 504. 2nd. The appellant contends that a hill for a specific performance of a contract, like that for an injunction, is an application addressed to the sound discretion of the Court, and will he refused unless the agreement sought to he executed is defined and certain in all its parts, fair, just and equal, and proved as the law requires; and also mutual, so that if one of the parties is not bound or not able to perform his part of the contract, he cannot call upon the Court to compel a performance by tbe opposite party. Oliver vs. Palmer, 11 G. '& J., 446. Geiger vs. Green, 4 Gill, 475, •478. Tyson vs. Watts, 7 Gill, 154. Mundorfvs. Kilborn, 4 Md. Rep., 459. Stoddard vs. Bowie, 5 Md. Rep., 18. Rider vs. Gray, 10 Md. Rep., 285 to 293, 298. Beard vs. lAnthicum, 1 Md. Oh. Bee., 345. Buvall vs. Myers, 2 Md. Oh. Dec., 401. Allen vs. Burke, Id., 534. Philpot vs. Ellicott, 4 Md. Oh. Dec., 273. Bioddart vs. Tuck, Id., 475. State vs. Jarrett, 17 Md. Bep., 339. South Wales R. W. Go., vs. Withers, 3 Eng. Law & Eg. Rep., 226. Boone vs. Mo. Iron Co., 17 Sow., 343. 2 Story’s Eg., sec. 726. So" ■a party not bound by an agreement cannot call upon a Court to enforce performance against another contracting party by expressing a willingness to perform Ms part of tbe agreement. Duvall vs. Myers, -2 Md, Oh; Dec., 401. And in order to take a case out of the Statute of Fraud's on tbe ground of part performance, tbe complainant must make out by clear and satisfactory proof, tbe existence of the contract as laid in the bill, and the act of part performanee must be of the identical contract set up by Mm. Owings vs. Baldwin, 1 Md. Oh. Dec. 120. Beard vs. Linthicum, Id., 345. Duvall vs, Myers, 2 Id., 401. Mundorff vs. Kilbourn, 4 Md. Dep., 461. The appellant therefore contends, that the contract alleged in the bill to have been made between the Susquehanna Rail Road Company and the appellant, should not be enforced, because: 1st. The contract which was only authorized by the Act of 1853, ch. 191, was made dependent upon the assent of the city, and this assent, although given by Ordinance of 20th June 1854, was, with the express proviso, that the grades of all streets through -which the lateral railroad should pass, should be established by the city surveyor and commissioner, and the laying of the tracks through the streets of the city should be under the supervision of the Mayor and city commissioner, while the bill does not allege that this proviso was complied with, in regard to the track laid down by the appellee, so as to entitle it to the benefit of said contract. 2d. Because the appellee’s Exhibits Nos. 1 and 2 do not exhibit a contract as claimed in the bill, which equity can enforce. No 1 was merely the commencement of a correspondence with a view to a future contract,-and certainly a Court of Equity could not enforce any obligation contained in No. 2. 3rd. That the correspondence contained in the exhibits does not shew a perfect and complete contract, mutually binding on the parties and capable of being enforced against each other in equity; but, on the contrary, the contract therein proposed, is in the last of said letters left open for final adjustment and ratification, which never took place between said parties. 4th. That if said contract must be considered established, certain fair and mutual, yet it was not performed or even begun by the Susquehanna Rail Road Company, and is not now sought to be enforced by said company, and cannot be by any other party. 5th. That said contract cannot be enforced-by the appellee, because it was not duly adopted and assumed by the appellee as required by its charter, nor .could it be validly adopted and assumed without the agreement and consent of the appellant, which was never given. 6th. That if any contract existed as alleged, it was in writing., and being for an interest in, or concerning land, cannot be transferred to the appellee without a new contract in writing, duly made between the appellant and appellee, which is not pretepded. 7th. That if there was a valid contract made, and the appellee became entitled by substitution to all the rights of the Susquehanna Rail Road Company, with whom it was; made, yet the appellee has, by the terms of the contract, forfeited all its rights under said contract, by gross laches and failure to perform its part of the contract. Crofton vs. Ormsly, 2 Sch. & Lef., 602. 8th. That by the tenor of the correspondence contained in Exhibits Nos. 1 to 10, inclusive, from which alone the contract, if any was made, can be derived, time is made of the essence of the contract, and upon the failure of the appellee to begin and complete the road at a definite period, such as was prescribed by the contract, the appellant was entitled to withdraw from such contract, which it did by. the letter of the 19th of March 1859. Exhibit No. 11. Qth. And even if no definite time was fixed, as the appellant contends, a reasonable time will be prescribed by law, and the appellee having failed to perform within a reasonable time its part of the alleged contract, the appellant was authorised to withdraw therefrom, as it did by its let-, ter of the 19th of March 1859. 10th. That the bill relies alone upon the right of the. appellee to ^enforce a specific contract for a water lot and road hed, and if there is no such contract, or the appellee .cannot enforce.it, the bill and injunction must fail, and cannot bo sustained upon the theory of a license, (if there should be any foundation for such theory in the case, which the appellant denies,) in lieu of such contract, because no such license is alleged, and because any right to the appellee under such license, must depend upon the performance by the appellee of all the terms and conditions of the alleged contract between the appellant and the Susquehanna Rail Road Company, as a condition precedent to any right under such license, and which terms and conditions the appellee has utterly failed to perform. 11th. That it is still more fatal to the appellee’s case to rely upon a license from the appellant, if it were possible for it to do so under this bill, inasmuch as on such a license no contract could be founded mutually binding on both parties, and capable of being enforced in a Court of Equity against the appellee as well as appellant. 12th. The letter of Mr. Pleasants, the appellant’s President, of May 10th, 1856, even if it can be relied on as evidence of an agreement to grant a right of way on the part of the appellant, which is denied, certainly does not contain any evidence of an agreement in regard to the water lot, or the obligations of the appellee to make a lateral railroad of six miles from the main stem of the appellee’s road to tide water. (The argument on the effect of the reference to arbitration is omitted, as this point was not passed on by the Court.) I. On the motion to dismiss: We have excepted to the answer of the appellant for a number of reasons, as insufficient. An insufficient answer is no answer, and without an answer no appeal will lie. Porter vs. Timemos, et dl., 12 Md. Rep., 283. The appellants say that exceptions do not lie to the answer of a corporation, referring, to Barb. Ch. Pr., P76. But we answer, that on motions to dissolve injunction, corporations, as to their answers, stand on the same footing with individuals. Bolden vs. Mayor & City Council of Balto., 15 Md. Rep., 18. Code, Art. 16, sec. 103. The answer is by the very man who, constructed the lateral road, sworn to by him as president of the Canton Company, and better able to answer the several averments referred to in the exceptions, than any other. II. On the merits of the question: 1st. Upon the facts set out by the bill, the Railway Company has an equitable title to both the bed of its road, and the wharf and water lot at its tidewater terminus. This title can only be protected in equity, it not being recognizable at law. The Canto'n Company is consequently taking advantage of its legal -title, to recover land and damages from a party for whom it is, in point of fact, a trustee. Exhibits Nos. 1 and 2, are a proposition, and its acceptance, and the two constitute a contract between the companies, in writing, which is recognized by the Canton Company in Exhibit No. 3. The contract so made contained no limitation ’of time in which the work was to be begun or concluded. A desire was, subsequently, to wit, in October 1853, expressed, that the commencement should take place by the 1st April 1854, and theconclusion reached by the 1st July 1855, but it was not made a condition, and all that was said in regard to it was, that if not, the Canton Company might deem it expedient to withdraw its proposition. (Exhibits Nos. 4 and 5.) The work was not begun till-' after the time so suggested for its conclusion. It was comunenced in 1856, and ended in 1851. So far as time was. concerned, therefore, the only mention thereof being in Exhibits 4 and 5, there was clearly a waiver on the part of the Canton Company, not only by permitting the work to go on after the lapse of the time named, but also by its failure to make any withdrawal of its proposition, before the commencement or conclusion of the work. This contract, made with the Baltimore and Susquehanna Railway Company, was adppted by the Northern Central Railway Company, when it undertook to carry it out, and to such, adoption by acts in pais, tho Canton Company assented. The assent of the latter was shown, not merely by Mr. Pleasants’ letter of 10 th March 1856, (Exhibit No. 4,) but by tho entry of tho Railway Company into and upon tbe Canton Company’s lando and wharf, with the knowledge and consent of the Canton Company, which also participated in the work by assisting in the settlement of the route and grade, and whose president, Mr. Pleasants, was one of tho contractors. No more was necessary to constitute a contract by the adoption on tho one side, and a recognition of that adoption on the oilier. Union Bank vs. Bidgely, 1 II. & G., 324. Upon the ground of contract, therefore, in writing, he- - tween the two companies, the Railway Company was clearly invested with an equitable title to the bed of its road, and the wharf at its terminus, and is entitled to call for a conveyance of the legal estate. Till that conveyance is made, the C anton Company holds the legal title to the road bed in trust for the Railway Company, and the unconscientious use or abuse of that legal title to tho institution of suits, against the party which stands to it in tho relation of cestui que trust, will be restrained by injunction. Powell vs. Thomas, 6 Hare. 300, (31 Eng. Oh.,'200.) 2 Story’s Eq., sees. 872, 882, 886, 904, &c. Drury on Injunctions, 48 to 52, (36 L. L.) Waterworks Case, 2 Eq. Oa. Ab., 521. Short vs. Taylor, Id., 522. Williams vs. Earl of Jersey, 1 Craig & Phil., 91. Ches. & O. Can. Co. vs. Young, 3 Md. Rep., 490. 2nd. But specific performance may be claimed upon tbe ground of possession given and taken for a purpose, defined by the use to which the possession was pu t and also defined by such possession, as to the quantity and bounds of tbe land, added to which is the expenditure thereon of §200,000 by the railway company. If all the correspondence be thrown out as not. amounting to a contract, possession given and taken for a specified purpose, and carried. out by an enormous expenditure, furnishes abundant reason for presuming a contract between the parties, and. establishes, as between them, the same relation that would have flowed from a contract in writing, and such contract will he equally enforced by equity, and protected by injunction.. The temporary non-user of a part of the track, is sufficiently explained by the railway company’s embarrassments, in its progress outside the Canton Company’s land, which have now ceased. Drury on Injunctions, 38, (36 Law Lib.) 3. Independently however of any express or implied contract, there can be no doubt whatever that the entry on the Canton Company’s lands and wharf, and the construction thereon of the Railway Company’s works, with the knowledge, acquiescence and participation of the Canton-Company, all which are charged, amounts to a license on the part of the Canton Company. It is not pretended that such license was ever countermanded until 19th March 1859, (Exhibit No. 11,) when, and after all, the work had been done. Such license, so executed at great cost, gives the licensee the right to come into equity and claim its protection, both in its present and future enjoyment of the work which it was so licensed to execute. Berich vs. Kern,. 14 Serg. & Bawle, 267. Addison vs. Hack, 2 Gill, 228, and'cases there' referred to,