The Wheeling daily intelligencer. [volume] (Wheeling, W. Va.) 1865-1903, 1889-05-20
AN IMPORTANT DECISION.
Judge Paul Refuses the Msuda-
tory Injunction Asked
AGAINST THE GAS COMPANY
10 Compel 1t 70 Supply the Hap Mil
with Natural Gus uel-Why
sacR q Contract Cannot be
1. Epforcsd by'the Courts

sANN - @fffNHFNNfN
I. Enfoced by the Courts
The decision Of Judge PAUL in the
case Of the Wheeling Iron and Nail
Company (Top AIilD against the Wheel
ing Natural Gas Company, to compel the
gas company to fulfill its contract to
furnish natural gas for fuel, has been
awaited with much interest by all manu-
iacEurers. 1t was rendered Saturday,
1t is printed below, and itexplains it
self, as well as gives a narrative OF the
suit; /, '-.t,'
On or about the third day Of June,
1886, the complainant entered into a
contract with Il, A, Gillespie and VII.
liam Finn, whereby the latteragreed to
supply the former, ut Its works in Wheel.
ing, w, Va, with natural gas for fuel
from September !, 1886, TO September !,
1880, upon the terms in the said contract
specified,
On or about the twenty.second day Of
September, 1888, the Wheeling Natural
Gas company, which had previously
thereto, with the assent OF the complain.
ant, assumed the obligations Of Gillespie
and Finn under the said contract,
began supplying the complainant with
gas Hereunder, and continued to do 80
until about the sixth day Of January,
1880, when 1t cut off the supply, and
has since refused to furnish any gas
whatever under the said contract,
The complainant now seeks to enforce
as against the gas company specific per.
Torrance oil this contract, on the ground
that Its remedy at law Is inadequate,
1t becomes necessary, therefore, to
determine, in the first place, whether
the compliments remedy at law Is In
adequate.
Pomeroy, in his work on contracts, in
discussing the subject OF specific per.
Torrance, on page 90, says: ut is the
fundamental principle regulating the
exercise Of this equitable jurisdiction,
that whenever the legal remedy Is suf-
ficient equity will not Interfere and the
specific performance will be refused, aud
this Is always the case when the con.
tract is satisfied by the payment OF
money"
The compliments injury, exclusive oil
the eHnenge OF making the connections
and appliances necessary Tor the use Of
natural gas, and then preparing its works
again for the use Of coal, after the gas
was shut of, consists solely In the In
creased cost OF labor and fuel resulting
from the use OF coal instead Of gas fol
It's manufacturing purposes. And the
evidence In the case GoncllsiYely elbows
that this increased cost can DO accurately
asccrtained attic end of any period o.
six months, II not at shorter Intervals oil
time, although IL may not be capable oil
asCertainment In advance.
But It Is claimed that, as thisincreased
cost cannot be ascertalned ip advance,
equity should take Jurisdiction In order
to avoid a multiplicity Of suits.
In Richmond vs.. the Dubuque &
Sioux City Railroad Company, 20 lowe
1923, 1t was held that while q court OIL
equity will sometimes take Jurisdiction
Of a cause ID order 10 avoid . multiple
ity 81 suits, yet this groundifor the exer
else Of chancery powers is not Of such
controlling nature to require the juris'
dicLion to be- assumed in disregard o.
other equitable principles" Beck, Oh
j., in delivering the opinion qt thG. court lalEr
In Chat case, on page 4Ss, says: 1--WE &c
not pnderstand the mere fact that there
exist divers causes oil action, which
may BIO the foundation Of as many DIFF
ierent suits between the parties thereto
Is ground on which equity may be
settle al such II matters Id 5onn1eerS ait. lFhe
case would not be different il SONG o.
the causes Of action were not mature
We have never heard 1t claimed thai
equity will entertain an action upon Q
contract requiring the payment Of money
daily, monthly or yearly. Yet In such
a case an action would accrue at each o.
such periods, and there would thus be-
prospeOtiTely, q great multiplicity Of
actions"
The case OF the Equitable Gas Light
Company vs. Baltimore Goal Tar Manu-
featuring Company, 83 Nd, 1856, was
cited by ColnplainRnt's counsel as au'
thorlty for enforcing specific authority
in this case. In that case, however
there were other circumstances besides
the mere fact that the damages could moi
be estimated in advance, circumstances
which gave to the coal tar a special and
peculiar value TO the plaintiff in Balti'
more, and which made It specially in.
equitable In the defendant 10 refuse t.
perform It's agreement" But the com.
plainant in this case does not claim that
natural gas as a fuel Is Indispensable tc
It's business or that coal, which can be
obtained in this city in abundance, will
not answer It's purpose Just as well as
natural gas, its only claim being that BY
the use 81 natural sas as fuel II had beer
enabled In the past, and would he en-
abled in the future, TO get out Its large
product, at much less expense.
Admitting, however, that complain
ants remedy at law Is inadequate be
cause OF It's inability 70 estimate It's dam
ages in advance. and the consequent ne
cessity IL wOuld-be under OF bringing
successive actions at law, there arc othel
elements, conditions and cidents which
must be shown 70 exist before its right
To decree forspeciac performance ID COM
plele. These elements, conditions and
incidents, as given in9 Pomeroy's EQ
Jur, page All are as follows; "Tht
contract must be concluded, certain, un
ambiguous, mutual and upon valuable
consideration II must be perfectly fail
In all It's parts, free from any miBfepre
sentation or Misrepresentation, fraud OF
mistake, imposition or surprise not ar
unconscIopable Of hard bargain; and ID
performance not oppressive upon the de,
lendant and, finally, II must DO capable
Of specific execution through decree o.
court"
II willnotb DO necessary for the purpose
Of is.decison, 10 consider any but the
last named Of these requisites, which IL
that the contract Unjust be capable o.
.nnriHa nxantttinn ihrouph a 1anraa nj