Lattin v. Hazard

Temple, C. Plaintiffs appeal from a judgment against them on demurrer to their complaint. It is their second appeal, the former (85 Cal. 58) being from a similar judgment. The complaint was amended so as to avoid the defect then pointed out, and is now questioned upon other grounds.

The action is to enforce specific performance of an [89]agreement between James McLoughlin, as party of the second part, and a number of persons who apparently owned, severally, various tracts of land in Los Angeles or the vicinity. Some of them agree to convey to him certain lands, and to give him the right of way for a street-railroad, in consideration of which he agrees to extend and operate his steam-dummy railroad through and by their lands on a route designated.

The party of the second part further stipulated “ that the road shall be well and substantially built, and operated by steam-dummy motive power for a period of not less than ten years, and shall have a carrying capacity and speed equal to all the requirements of the said section and the business thereof.” He further agreed that the fares should not exceed certain specified rates, “ and that the rate so established shall not be raised for a period of ten years.”

It was stipulated that the subscriptions by those who gave land should be by their several grants of land contiguous to the line of the railway, severally conveying a clear title in every case, at the date of the agreement, or within twenty days thereafter, to be held in escrow until the completion and operation of the railroad. It is averred that the contract had been fully performed by McLoughlin.

The contract was dated the ninth day of March, 1887. It does not appear when the suit was commenced, but the amended complaint was filed November 26, 1890. It is evident that some parts of the contract have not yet .been performed by McLoughlin, as whose assignee plaintiffs bring this suit.

The first point raised on the demurrer is, that specific performance cannot be decreed, because, in the nature of things, the remedy is not mutual; that the contract could not be specifically enforced against McLoughlin, and has not been fully performed by him, “ or nearly so,” and that the want of entire performance cannot be fully compensated in damages, because such damages [90]