The weekly clarion. [volume] (Jackson, Miss.) 1863-1882, 1881-02-03
VOLUME Xiv.
viding for its termination in case of a
n Il

viding for its termination in case of {
failure tosconply with the contract.
1t was objected by plea that
both suits could not be maintaincd
and it was asked that the city should b.
compelled to elect which remedy it would
persue upon the ground that it could not
recover damages upon a contract in one
court which it was seeking to annul in an
other. The motion was denied, as was the
one subsequently made to dismiss this bill
after there had been recovery in the action
at law. The defendant then answered, de-
nying most of the allegations Of the bill.
Proof was taken, and on final hearing Il
decree was entered cancelling the lease and
awarding writ Of assistance to put the
city in possession of the water works.
The defendant appealed.
CHALMERS, c. j.
YeLd-
/. The motion to compel the city ID elect
as between the action at law and this suit
was properly overruled 50 was the one sub
sequently made to dismiss this bill because
Of the recovery at law
Inconsistent remedies for the same subject
cannot be sought but the principle does not
apply where an action Is brought 70 recover
damages for the breach of a contract, and it
is sought at the same time to put an end to
the contract because of such breach. In this
case the recovery on the bond was for the
damaged machinery the bill seeks to annul
the contract which the lessee has denonstra-
ted his inability or unfitness to carry out.
,. In the absence Of a stipulation for ter
minating the lease, under ordinary crcum~
stances, a court of equity would not declare
a forfeiture upon failure to comply with the
obligations Of the contract. In general the
parties must be supposed to have looked To
their remedy at law to recover damages, es-
pecially where bOud has been delivered Tor |
the payment of such damages. But eases |
may arise even between private persons, /
where the duty is Of a continuing character,
and where the failure to observe il IS de |
structive Of the objects Of the contract and /
impossible of a forced observance, the courts
will put au end to the contract at the in
stance of the aggrieved party.
The duty of the courts to grant such relief /
where the interest of the public is concerned
is imperative, and it is difficult to conceive
Of a case which could more urgently demand
it than the present.
No pecuuiary damages could compensate
for the loss that might ensue from IL single
lays failure to perform the duties required
)f the lessee IN this case.
8. The water works belonged to the citi-
zens and not to the Mayor and Aldermen
They were provided at heavy expense for a
public purpose. While there was power
10 make the contract, when made it IS
subordinate to the authority of the courts to
cancel 1t, when its continuance would i'm
peril the city.
/. The authorities could not cede away
heir right Of control over these public
Tater works, and by express stipulation pro-
7ide that neither they nor the courts should
nave the right to put an end to the lease
wen though the lessee should fail to per-
orm the duties. If the contract in
question be given such q CON
truction as would forbid relief it
would be ultra Uires. 1t is only by holding
hat the city has the right, under the facts
hown, to invoke the jurisdiction of the !
curt to end the lease, that it can be held
yer to have had any validity.
.. 1t was competent for the city authori- q
les to lease the water works or to operate /
he same by employees. The absence of a
tipuIatlon for the removal Of the contrac- |
or, on failure to perform his duties, did not o
make the contract void In such case, how q
yer, there must exist somewhere a power q
II behalf of the corporation to put an end l
, a contract wholly unfultilled by the con l
ractOr under circumstances which render :
lch failure dangerous to the city. A con- Il
ruction that would deny the power to the e
ourts, would render the contract void as :
eing i'll excess of authority on the part of u
le city officials
Orr & Sims, for appellant. t.