Bismarck daily tribune. [volume] (Bismarck, Dakota [N.D.]) 1881-1916, 1914-03-07
TELEPHONES Cannot Be TAKEN .
OUT OF DEPOTS OVER THE STATE

those towns and stipulated agains
the right Of cancellation Of the con
tract or the removal Of the phones
by the telephone company; while thu
railway company reserved the RICH
to at any time, on thirty days notice
order the phones out and service dis
continued. Chapter 2a2, Session Law:
of 1911, requires railway companies
to install and maintain telephone ser
vice in their depots for the benefit O.
their patrons, with fine to be imposed
for noncompliance, after the enact
ment of which the telephone company
notified the railway company ItAa
free telephone service would beSSsflar
nished it no longer, and that the Hn'
tracts would be considered terminal,
ed. and attempted to remove its
phones and discontinue service to the
depots, when the railway company
oegan this action and the telephone
company was enjoined from so doing,
and on trial the action vas dismissed
and the contracts held unenfOrcible.
From this judgment the railway COM
paDy, plaintiff appeals. HELD 7
+ "a The contra cts Htr te--iEa$w.2k
and TOlha are not mutual iii oDliga,
ton, being subject TO termination at
the will of one Of the parties, with a
stipulation that's no corresponding
right shall be exercised by the other
party; that the lifetime of the CON
tracts may be practically perpetual
or for SO long a term as TO rem .er
the mere license o. privilege OF in.
stalling the phones wholly inade-
quate as a consideration for The con
tract, though the same was voluntar-
lily and understandingly entered into;
that such want of mutually. made
quacI of consideration and length of
term, considered togetnc".; renler-.the
contracts so inequitable that a court
of equity will not enforce spe2ih5 per:
Torrance of them but treat the same
as invalid and non.enlorciblc. .jrlg,
(2) The five year contracts as ito
Neville and Pekin are definite In
consideration and lifetime, witt, no
right Of cancellation reserved GatO
either party, and were entered into
understandingly and are not inequit.,
able and are valid and enforcibla.sc,i
(3) That specific performance Of
contracts wanting insmntIdlity Of ons
legation may be- enforced in, equity,
as mutually OF, contract. standing, en-:
forciblc and invalid in equity, aldif-%
ferent rule being recognized in4equftv
from that in, actions ut law as 70
want of mutually. 3. {
(4) While a court of equity will
not decree specific performance Of.
a non.mutual contract by compelling
performance of it according to- it's.
terms, it will indirectly effect ahe
same result, where possible. ~ mere.
.ly restraining. a breach of its nega
tive covenants, as here illustrated. by
enjoining the telephone, company
from disseminating service and re,
moval Of its phones from the lepots
In this instance at Neville and Pc.
kin. ". r,
90 Enjoining the breach OF .pga.
tive covenants is not, Stric.ly speak:
ing, however, specific performance, OF
the contract, but merely rho granting
OF equitable relief awarded on The
general equities OF, the case. j.,
C) Sec. GG14 Il. C. 1905, rrcriding
that an obligation to render p.rsnnal
service or to empty another i'll per
sonal service, cannot be specifically
enforced, is not involved in this
cast .'..lE
% Under the claim Of tue. tele.
N]lone company. that although uui,y
would otherwise recognize tho con