PULLMAN PALACE CAB CO.
TEXAS & PACIFIC B.OO.
PULLMAN PALACE CAR CO.
(Circuit Court, E.
No decree should be entered or order allowed for the specific performance of a contract, where there is not a mutuality of remedy between the parties obtainable from the court.
SAME-WHEN NOT GJ'.ANTED-LAPRE OF
The court will not allow an injunction to compel the specific performance of continuous covenants with intricate detail, running through a period of nine years, over a vast system of railways, unreasonahly taxing the time, attention, and resources of the court aud its officers, and interfering in the general administration of justice.
OF A MONOPOLY.
Courts ought not to favor a monopoly in the accommodations which are necessaries to the traveling public, or foster it by the invention or application of extraordinary or unusual orders or remedies.
O. A. Lochrane and E. S. Isham, for complainant. John H. Kennard, W. W. Howe, S. S. P.rentiss, and John C. Brown, for defendant. PARDEE, C. J. The complainant sets forth in its bill an agreement alleged to have been made on the twenty-eighth d,ay of February, 1874, with the defendant company, whereby the Pullman Company was to furnish sleeping cars to be used by the railway company, sufficient to meet the demands of travel on its line of road, to provide the necessary attendants therefor, and also keep said cars in good running order and repairs, except repairs and renewals made necessary by accident and casualty; it being understood that the railway company should repair all damages to said cars, of every kind, occasioned by accident and casualty. The railway compauy to pay the Pullman Company for the use of said cars four ceuts per car per mile for each mile run, and the rail way company was to repair the cars in its own shops at cost price for the Pullman Company. Settlements to be made monthly. The railway company to furnish and apply lubricating materials, and provide fuel and lights for, and wash and cleanse, said cars. The railway company was to permit the Pullman Company to place its tickets on sale at the ticket offices of the railway company, and to permit the Pullman Company to collect from passengers using said
.Reported by Joseph P. Hornor. Esq., of the New Orleans bar.
cars "such sums as may be usual on competing lines furnishing equal accommodations." The Pullman Company was to furnish free passes on its cars for the general officers of the railway company, and the railway company to furnish free passes to the general officers, conductors, and porters of the Pullman Company when on duty. This agreement was to continue for two years, say till February 28, 1876, "unless another agreement shall have been entered into, as provided in the seventh article; but in case either of said companies should at any time fail to observe the covenants so entered into, it might be terminated by notice." By this seventh article it is alleged the Pullman Company was given "the option, if exercised within two years from the date hereof, to determine whether it will make with the Texas & Pacific Railway Company a contract of the form and kind hereunto attached and marked 'H,' and that if the Pullman Company shall within the said two years determine to make such contract, then and in that case the Texas & Pacifio Railway Company shall enter into such contract with the Pullman Company." The "Contract H," so annexed, is a blank form of agreement "between - - - , hereinafter called the railway company, and Pullman's Palace Car Company," and contains a considerable preamble and 15 articles, which may be briefly summarized:
(1) The Pullman Company is to furnish its cars snfficient to meet the requirements of travel over the lines of the railway company now controlled or hereafter to be controlled by ownership, lease, or otherwise; said cars to be satisfactory to the general manager or superintendent of the railway company. (2) The Pullman Company agrees to keep carpets, upholstery, and bedding in good order, and to make certain repairs. (3) 'fhe Pullman Company agrees to furnish and pay certain employes on said cars. (4) The railway company is to furnish certain free passes. (5) The Pullman Company is to furnish certain free passes. (6) The servants of the Pullman Company are to be governed by the rules of the railway company, and· sundry provisions are made for liability in caso ()f their injury, and indemnity by the Pullman Company. ' (7) Tho railway company is to have said cars on the passenger trains of its lines, now or hereafter to be controlled, in such way as will best accomodate passengers desiring to use them, and furnish fuel, lighting material, and make certain repairs and renovations. (8) 'fhe railway company is to furnish without charge, at con:venient points, room and conveniences for airing and storing bedding. .' (9) 'fhe Pullman Company is to collect certain fares. (10) The rail way company is to permit the Pullman Company to place its tickets on sale at the railway ticket-offices, and their sale to ue made by the railway's agents free of charge.
PULLMAN PALACE CAR CO. V. TEXAS" PACIFIO B. <lO.
(ll) The Pullman Company is to have the exclusive right for 15 years t(} furnish such drawing-room, parlor. sleeping, and reclining chair cars on all passenger trains of the railway company. on its entire lines, present, prospective, now controlled or hereafter to be centrolled by ownership, lease, or otherwise, and also on all passenger trains on which it may, by virtue of contracts with other roads, have the right to run such cars, and the railway compauy is t(} agree that it will not contract with any other parties to run said class of cars ' over said lines of road for 15 years. (I2) The Pullman Company is to guaranty the railway company against damages for infringements of patents and expenses of litigation.' etc. (I3) Elaborate provisions are made in regard to cleansing and repairing cars in case of default by party charged with this duty. (14) Provisions are made for each party having the right to terminate the contract in case the other does not comply with its obligations. (15) Provisions are made whereby the railway company might, on certain terms, acquire a half interest in all the equipment so furnished.
The bill alleges that on or about the fourteenth of February, 187,6, the complainant notified the defendant that it would exercise the option aforesaid, and sent to defendant a letter advising it that "your orator had thus decided, and that on and after the twenty-eighth day of February, 1876, it would operate its cars upon the lines of the railway company, under the terms of the said contract marked 'H,' as aforesaid, and your orator causes duplicate copies of said contract to be prepared, which were duly executed on the part of your orator, and sent by your orator to the said Texas & Pacific Railway Company for execution by said company." The bill then alleges that complainant has continued to operate its cars on defendant's roads under the authority and provisions of said contract, and then alleges that the defendant has notified it that its cars will not be handled any longer. It charges "that the officers and agents of the Texas & Pacific Railway Company do publicly declare that the said railway company has, by contract with others than your orator, engaged for use on its said road, on and after the firteenthday of December, 1881, other and different drawing-room and sleeping cars than those of your orator, namely, the cars of the company known as the Wagner Sleeping-Car Company, and your orator has reason to believe, and does believe, that on and after the fifteenth day of December, 1881, the cars of your orator will be put off the line of the said Texas & Pacific Railway Company, and their use discontinued, and the cars of persons other than your orator Bubstituted therefor in the operation of the business of said road, in violation of the express terms and provisions of the contract," etc.
The Wagner Company is not made party. After sundry allegations of apprehended injury the complainant proceeds to ask for an injunction, which is the only relief requested. The injunction is asked for in the following form: That the defendant.. May be enjoined and restrained from discontinuin.g the use and employment of the cars of your orator, on and after the twenty-second of December, 1881, over its line of railroad; and from refusing to handle the cars of your orator upon any of the passenger trains contemplated and referred to in and by said contract; and from refusing to keep for sale and to sell, at their ticket offices, tickets for the accommodations furnished upon your orator's cars, as provided in said contract; and from making or entering into any contract or agreement with any person other than your orator for the supplying of and sleeping cars for use upon the line of said Texas & Pacific Railway Company; and from permitting any other person than your orator to engage upon said line of road in the business of furnishing such cars as aforesaid for the use of said road; and from hauling said cars, for any other person than your orator, upon any of the trains of the said Texas & Pacific Railway Company; and from selling, offering for sale, or allowing to be solli, at the ticket offices or other places under the control of said railway company, the tickets of any other person than your orator, for the accommodation of drawing-room and sleeping cars operated on said road; and from transacting and operating upon the said road the business of drawing-room and sleeping cars, or other Caf'S Of: the sort, contemplated by the contract aforesaid with· the said Texas &. Pacific Railway Company, except in accordance with the provisions of said contract with your orator; and from violating any of the covenants or agreements in said contract contained; and for such other relief." etc.
On .this bill a restraining order has been granted in the terms prayed in the bill for a final injunction, and the question now presented to the court is whether such an injunction shall issue pending the suit. The parties have had ample notice for preparation, and counsel have presented the case fully on all the merits it has, and a decision Ol'l this question should be decisive of the whole case. It is not necessary, nor have I the time, to argue fully on all the points presented. I shall merely try to present my conclusions so that they may be understood by counsel. It is not necessary that the Wagner Sleeping.Car Company should be a party to this suit. That company was no party to the original contract. The bill does not declare it to have any subsequently-acquired rights, 'and clearly it can have,no rights' that would affect this litigation, or control in any manner the remedies sought· by the complainant herein, nor will