The daily Gate City. [volume] (Keokuk, Iowa) 1855-1916, 1863-10-29

Jehn Rsss, Rsbprt =. 8tesls, \. F
and 1awafd TrsNbfidRS, In D. 3.
vs.. supreme
The Unien Paei6e Rai1waY. 4 Cont.
Company, Bastsxn Div.

7c: asws.s1 Ue.s, fss,ss ...e.s a;nsa;.eY ce-rs.
This case, which has been pending for
several doys before Mr. Justice Miller as
an application for injunction, was decided
by him this morning. g44
We cannot do more, than give a synop-
sis Of the points on which the case was
decided, as the delivery of the opinion
itself occupied nearly On hour. f.f
The Judge stated ip the outset that the
great Importance Of the case, and the fact
that il was, to . large extent, case oi
first impression, made it very desirable
that he should have taken more time for
it's examination, but that it was equally
important to the parties who were here,
long way from home, awaiting the re-
suit. that it should be decided speedily.
And as he had come to an opinion, not
likely to be changed by anything short of
very protracted consideration of the
subject. he would proceed to state it.
The contract was on the part Of plain
tiffs. that they would build for the defend
ant, and fully equip ready for use, rail
road in Kansas Of about three hundred
and sixty miles in length, part of the
great Pacific Railroad, provided for By
the act of Congress on that subject. The
defendant agreed that as each section OF
fifty miles was completed it would pay
tie plaintiffs therefor at the rate of $685.
500 per mile in the following manner,
namely: sl6.0 in the bond. Of the
United States, to be issued under the act
above mentioned; sll. 500 in the bonds
of the railroad company secured BY a
mortgage on the road, its franchises and
The lands which Congress had granted for
its construction and $1,000 in the paid
up stock of company This contrac, re-
mains practically an executory contract
on both sides, as the $50, 900 or $40, 600
worth of work done by plaintiffs. com
pared with the $4,000, 900 yet to be
dore, does not change its character In
that particular. The plaintiffs alege that
defendant has repudiated the contract,
and has made two mortgages on the road.
which will prevent it from complying
with it's contract with plaintiffs, If the
bonds secured by those mortgages are
issued, and alleging tha, the bonds are
not yet issued, asks for an injunction 10
prevent their issue, and that on final
hearing defendant may be compelled spe-
cifcally to perform its agreement.
The Judge said that the first question
presented for consideration was, whether
the contract fell within that Class OF which
court of equity would enforce specific
performance, for il it did not, the injunc-
tion would be useless. If it did, it would
remain for inquiry whether the plaintiffs
were under the facts shown by the affida-
wits entitled to the relief they have asked
The Judge then said that it was clear,
uron authorities, that that part of the de-
fendant's covenant which required tie
delivery Of the bonds of the United States
was not covenant which would be de.
creed to be specifically performed in n
court OF equity. For this be cited g
Story, Eq. Juris. secsions III, lila 7ls,
724a.
As to the covenant to deliver shares
Of the railway company he had great
doubt, but some recent cases in England
seemed to favor the jurisdiction of the
court over such contracts, but as to tha
and the other covenant to pay bonds o.
the. company secured BY mortgage. he
gave no opinion at present as it was MOI
necessary to the disposition Of the cause
Would the Court then undertake K
enforce contract of tho defendant only
psrt Of which was within Ms jurisdiction
leaving plaintiffs to pursue their actor
at law upon the other covenants. which
in amount were about half Of what de-
fendant had agreed to pay plaintiffs
! The Judge then remarked that II wa
a we'll settled rule of chanccry, that i
would not enforce contract specifcall,
against defendant, unless the covenant
on the part of the plaintiff we're of tn,
class which the Court would also enforce
or unless they had already been perform
ed. In other words the remedy mus, b
mutual. h8 4Ak
| This required an examination as t
whether the contract Of plaintiffs to bull,
a railroad, was one whicha Court of equi
ty would decree to be performed.
I On this question the Judge went int
an elaborate examination Of the authorizes
, in the course of which he cited 2 Story
Eq. s. 726; 2 Browns, chy, r. 34l