The New York herald. [volume] (New York [N.Y.]) 1840-1920, 1852-10-01
Supreme Ccurt-speciaI Term.

the rame end style Of the Wyoming Coal Assooin-
ton, by which tho defendants sgrood tn allow tho
association TO transport its c0al upon their canal
at n rate OF toll Designated in the contract that
such contract has been duly assigned to toe plaintiff
and that il Is entitled to the illi benefit thereof
This IL not d0niej by the defendants The com plant
further alleges cha: tho defendants claim that they
are entitled to receive, and insist on the payment
Of hity cents ton for the coal which is transported
their canal The plaintiff contends that it Is not
bound to paS that or any other amount until the
end Of the yes: whom il can be sscertsined what ia
tho aversgs price ~ which the belss OF lump coal
during the year shall have boon actually made md
the plaintiff COS pyks that preliminary injunction
may be gT0ntca, preventing the defendants from
withholding from any boat. owned Or used by tho
plaintiff for bot;aDs& on thocsusl any
of the facilities OF ngy gaien or rsnsportioa which
the canal shll s.iosa TO boats owned or used by
any other person or company, or by the
defendants, subject only to certain limitations as to
quantity. The contract provides that the lst of
Of lump coal Of tho Delaware aud Hudson Canal
Company, which shall at that time have been sold
to be delivered at Rond0ut, and to arrive by the
said canal during the said calendar year, shat. be
sseer'ainsd, ard the average price at which such
sales shall have been contracted shall also DO
certsined and from the average price thus ascer-
tanned two dollars and fifty cents shall DO sub
tracted, and half Of the remainder shall DO tho
toll per ton during such calendar year, except that
If any discount or deduction, contingent or other
wise, shall be agreed upon or contemplated in
the contracts for such sales, the said toll shall
be reduced correspondingly to such discount
OF deduction as shali be actually made But pro-
vioed nevertheless, that If, the first day Of May,
in any calender year, ahe quantity Of lump coal of
the said Delaware and Hudson Canal Company,
which sial at that time have been sold, rs afore-
said, shall be less than one half Of tho estimated
saes for such year, the toll during such year shall
DO calculated in the manner hereinbeforo provided,
IN the average price at which the Gales Of lump coal
for such yeor shall be actually made 1t is admitted
~ both parties that the contingency alluded
to in tho latter provision Of tho contract mas
cured. No part Of the contract stntes the time
whom the toll shall be payable. AL that
II PROCESSES to do ia to establish the prin-
cipe upon which the toll shall be calculated.
The first provision Of the contract lays down rule
by which the rate Of toll during the year easily
be nscerta;ned On tho first of May in each year,
capt in the case Of discounts and deductions aetu
ally made upon contracts for Sales These discounts
ana deductions will, of course, be made after the
first OF May; but it would hardly be reasonable to
infer from this, that the parties to the agreement in
tended that TO toll should be payable until al the
contract had been performed, and ali the deduc
tions had been actually made. 1t would be more
reasonable conclusion that the parties intended
that the rates shouid be fixed on the first of
May, and that toll n that rete should become pay
able as it accrued subject, however, TO future
adjustment to be made as soon as practicable. am
aware that this branch CT the agreement il not direct
y involved in the present controyeVsy but il mag
be proper to refer TO it, in order 70 ascertain the mean
ing OF the other parts OF the contract Tie provision
which is directly in question in this suit, kethe ono
which has already 0een alluded to, mentions no
time when the tel shall be payable Like the first
provision Of the agreement, al that it processes to
do is TO establish principle upon which the rate of
tols shall be calculated. II contemplstes state
OF things in which certain standard Of cacnlation
which shall govern the parties during the year. can.
not be Fixed at the beginning OF the year, On
the contrary, as the average Of actual sales
for the year cannot 20 ascez.aincd until
the end OF the year, there can be no certain
estimate Of the rates of toll until that time. Tho
plaintiff contends that this postpopes the time for
payment until the end of the year, II it was the
intention Of the parties that such unusual credit
should be given, it As singular that il was not 50
stated IN express terms. And there ig no obvious
reason why such creoit should nave been given ia
she CAFE mentioned IN the last provision of the argu
mont, rather than in that mentioned in the first.
But, suppose that u wss not tho intention Of the
parties 20 postpone the time oil payment until the
tho end of the year--what STANDARD shall be
adopted by which the rate Of tolls auring tho
year thali be asceFiainei2 Whatever. that
standard may he, it mus necessarily be
coneoural until the end of the year And
how shall that copiec.ural estimate he made
II must be admitted On all hands that the contract
in this respect il uncertain and incomplete The do
PENDANTS Oh their part have adopted rule founded
upon the actual Gales AM, contracts for salesalow
ing, as they contend, sufficient margin for future
discounts ana deductions. The plaintiff on the
other hand has offered to pay less sum than that
the plaintiff, sufficiently large TO secure the defon
dants, considering the probabilities Of discount and
deduction This offer ives made, it is true,
without admitting tho right Of the defen-
sna Of til. demand sa Buy 's5 shows until that the
was supposed that regard for fairness and equity
required such n concession. Enough has been said
to show the nature oftbe contract and character
Of the controversy between the parties. The object
Of the present motion is to obtain an order at this
preliminary stage OF the case, that this contract
shall be specifically performed for such would be
the effect Of tho injunction which the plainef now
asks. There arc many cases found IN the books in
which courts ofequity have indirectly compelled u
party to ascertain acts by epjoining him from doing
III EN-. In Eobinson VS.. il Byrne, U Bro CHI. 5SS,)
the defendant was restrained from constructing
dams, wiers, &c, otherwise than be had done. The
effect Of this was, that he was compelled to re-
move certain dams, weirs, &c, which he had made.
In Lane vs.. Newdigate, Q0 Yes l9L.) an order
essentially similar was made. In Rawkinvs Has
kin, q simons, l3,l party was restrained from
the erection ofcertain buiIdirs, ana from permitting
erected to remain In Spencer ys Lindon y Birming-
ham Railway Co., e Simons, 1873 party vas re-
strained from continuing the excavation Of road,
and was thus compelled to restore the road " W.
original condition. In Whitaker va. Howe, q
Bear 3S3 S95 note,) an injunction was granted re-
straining party fro OBTAINING and keeping posses
sion Of certain documents. In Taylor vs.. Davis,
Gb. 3ss note,) purchaser who had distracted
partnership book, contrary to his covenant, was re-
strained from continuing to violate the covenant.
In Rigby vs. The Cres. W...A-n RAILROAD Company,
G. Railway Go. 1852 the defendant was res..a'ned
from passing railway station without stopping for
the retIeshment Of passengers But in an anony-
nous case reported, Il Yer. Ju. l6,) in which Lord
Ihurlow made an order restraining party from fur
Their digging ditch he refused to restrain him from
continuing that part which had already been dug,
and said that he did not like granting these in
functions on motion" In Brakeman vs.. The Sa-
mar gamshire Canal Company, q Mylne and keene,
l5I,) Lord BTougham refused to grant prcinin@
ny Injunction in such form to compel party TO
do positive act and in doing so said "althouSh We
have right say that there is not precedent for
It. yet surely We may pause, and without deny
iug The jurisdiction, refuse to exercise TO-" In Mil.
ligan vs Mitchell, Gb lt6,) when similar appli-
cation wos mace, the Lord Chancellor although he
granted the prohibitoIy part Of the inunt ion said
that he should pursue tho course which he bad
always taken, Of not extending the payer which,
in cases of peculiar nature, the Court has come
tines exercised Of ordering a thing "a M done