OREGONIAN RY. CO.". OBEGONB'f. &: NAV. CO.
upon the hearing on the bill it should appear that in the action at law judgment on the merits had gone against the plaintiff, the court would not proceed with the hearing, for it would thus appear that cause for a decree did not exist. In fact, therefore, the bill is in aid of the action at law. It is between the parties to the law action, and is dependent upon and auxiliary thereto, in such sense that sen>ice upon the attorneys charged with the duty of defending the law action may be had where such service cannot be made directly upon the party. There can be no possible question that service upon the attorneys in the law action of notice of the suing out commissions or letters rogatory for taking testimony would be good, and this proceeding is of the same general character. Should it be necessary, in order to properly defend the action at law, to obtain evidence by means of a bill of discovery or other proper process or proceeding, there can be no question that the counsel appearing for the company have the authority to institute such proceedings in performance of their duty to their client. They represent their principal in the field of evidence as well as in that of the pleadings and final trial of the cause, and in such capacity service may be had upon them in any auxiliary proceeding necessary in the preparation of the case for hearing. It is also urged that the complainant need not have commenced the action at law, but that he should have brought a bill for the reformation instance, and in the same proceeding have of the contract in the asked a decree for the damages sought. Such a course was doubtless open to the party , but he was not compelled to adopt it at his peril. He had a right to sue at law in the first instance. and then to bring his bill to perfect his evidence. The latter does not abate the former. The bill, as filed; does not seek relief beyond the reformation of the policy of insurance. If that is secured, the action at law remains to be heard. It is not 'perceived, however, that these objections hear upon the sale point involved in this malian, which is, whether service can be had upon the attorneys in the law action, under the facts appearing of record in this cause. As already indicated, the motion is not deemed well taken and is overruled. The defendant must plead to the bill by the April ruleday, or complainant will be entitled to a default pro conJe88o, and to proceed parte.
Ry. Co., Limited,
(Circuit Oourt, n. Oregon. April 20, 1885.)
SPECIFIC PERFORMANCE. A court of equity, 88
a rule, will not enforce the performance of a Clt\ntrll.ct to construct or repair a railway. .
(Syliabus.fJy the Court.)
In Equity. H.H. Norihup Rnd John W. Whalley, for plaintiff.
Dela,)" in publication caused by failure to obtain copy of opinion at time of ItBdelivery.
DEADytJ'.·· This isa bill for,an injunction requiring the defendant, ;aslellsee 'of the'plaintiff's road, to complete :the same, and put> certain in,repair, and.operate the sanie according to the cove:nantB'iiil:the lease, or 'far the appointment.ofareceiverwith authority to do such"work at the expense of fhe,defendant., , ·It, appears from the bHlthat .onAugustl,1881, theplaiiltiff being tl:Je owner'of a ,railway in the'WaBamet valley, commonlycaBed,the "Narrow-Gauge," leased the saine to the defendant for the period of 96 years, at. a rental of £28,OOOa;year, to be paid in half-yearlyinstaBmentS. AUhe date of thelease134 miles of the road \\ieresubstantially constructed, and 31 other miles were being constructed. By the terms ofthe lease the plaintiff was to finish the road, and put the same in good repair throughout, by January 1, 1882; but Oll October 1, 1881, the defendant, in consideration of the sum of $87,115, paid to it by the plaintiff, undertook to perform this covenant itself·. A covenalltin the lease bound the detl:mdant to maintain and operate the road, and keep it in good repair; And upon the failure of the defendant to keep any covenant in the lease, the plaintiff may enter and take posses&ion of the demised premises. and may have a receiver appointed,withsuch power and authority asroay E'eem best calculated to secure the, performance and observance of the obligations imposed by the lease on the.lessee. The bill alleges that the defendant has failed to finish the road according to its undertaking, and that since February 20, 1883, it has failed to keep the same in repair, and that 'the cost Of making such repairs, including twobridges over the North and South Santiam rivers, to replace those carried away by floods, will amount to $108,450. The defendant has also refused to pay the rent now falling due, and given notice of its intention to surrender the premises. and. cease to operate the road,upon the ground that the lease is void for want of power in itself to enter into any such contract. Pending the deciaionon the application for the injunction, the defendant has been required to operate the road, and is now doing so in pursuance of said direction. The defendant demurred to the bill for want of equity, and because the plaintiff had an adequate remedy at la w. As a general: rule a eontract' to build or repair will speoifically enforced by a court of equity. It is said that if one wont build another will; and if there is any loss sustained the remedy is at law, Jordamages. thisJs. especially so as contracts like in the present lease, to tepair during a perIod of many years.: The rule and the reason of it will be found stated and exemplified iljl. the following cases, and particularly in the one from 1 Woolw., in which Mr. Justice MILLER baR gone over the subj!!ctwjth his usual tboroughness and good sense: Ross v. Railway 00., 'IWoolw. 26; Storer v.Rail10ay 0(1.» 2:1 ,Eng. Ch. 48; Stuyvesant v. Mayor, etc., 11 Paige, 415; Gib98
'. :WHITcOMB fl. GANDY.
v. DaVid, L. R. 20 Eq. 378; Fry, Spec. Perf. 36-40. But see Pennsyz. 'lIaniaCo. v. Railroad 00., 118 U. S. 305, 6 Sup. Ct. Rep. 1094. The application for the injunction is denied. An order for the appointment of a receiver will be made, giving. him authority to operate the road, and apply the proceeds to the payment of current expenses and making repairs. And, if the plaintiff will ask for it, he may be authorized to borrow money on the security of the road, sufficient to put it in repair, and thereafter bring an action at law to recover the amount from the defendant. .
WHITCOMB tI. GANDY.
(Oireuit GO'lJ,Tt, D. Nebraska. Marchl, 1889.)
JUDGMENT-VACATION-MISTAKE. In,an action OD five notes. a parol
agreement was made b.etween counsellor the parties that. the case should be passed until the attorney for plaintiff, who was sickicould attend to it. Afterwards the plaintiff employed another attorney,and after the case had been passed several times it was, tried In the absence of defendant and his connsel, and judgment given for plaintiff. ,It appeared that neither the latter nor the attorney who tried the case knew of the agreement made byplaintift's former counsel, and that; after the case had been passed once or twice. the plaintiff wrote to defenpant's attorney that it would be pressed for trial at the then present terJI!.. Held" that on the Pll.Y· ment by defendant of one of the notes. the validity of which was satisfactorily shown by the evidence, the jUdgment would beset aside.
In Equity. On bill for injunction. .Reavis « Thorrw,s, for complainant. John L. Webster, for defendant.
BREWER, J. This case is before me on bill, answer, and proofs. The testimony is voluminous, many score of witnesses having been sworn and examined. It is monumental in the amount of falsehood which is developed. It is impossible tollivoid the conclusion that many witnesses have deliberately peJjured themselves, and in such a case it is not easy to separate the truth from the falsehood,or to 'determine what are the real facts. These are beyond question, and they must furnish the basis of investigation: Prior to April, 1884, John Anderson and Nels Ander80nformed the firm of Anderson Bros., residing at Humboldt, and engaged in the manufacture of wagons, buggies, etc. In April or May of that year, O. M; Whitcomb, the plaintiff, joined the firm, the name of which was changed to Anderson Bros. & Co. That firm was dissolved on September 29, 1884, plaintiff taking the property and assuming the debts. J. L. Gandy was a physician living at Humboldt, and as agent for his wife, M,E. Gandy, or acting for himself, bad sundry business transactions with the mm of Anderson Bros. &.00. On the day of the disaolution··of the firm ,...,.,.september 29th,-John· Anderson executed :to