Roberts v. City of Cambridge

• Decision Date: 08 January 1898
• Citation: 49 N.E. 84,170 Mass. 199
• Parties: ROBERTS v. CITY OF CAMBRIDGE.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

170 Mass. 199

49 N.E. 84

ROBERTS v. CITY OF CAMBRIDGE.

Supreme Judicial Court of Massachusetts, Middlesex.

January 8, 1898

Following is the form of the order of reference requested by defendant, viz "In the above-entitled case it is hereby ordered that Alfred Hemmenway, Esq., be, and is hereby, appointed special master to hear the evidence, and report: (1) As to the amount of damages, if any, that the plaintiff may have sustained by the defendant's failure to furnish water; (2) what amount of water, if any, the defendant shall be directed to furnish the plaintiff from its reservoir; (3) what the damage will be to the defendant if it shall be compelled to supply water from its reservoir to the plaintiff; (4) what the damages will be to the plaintiff if the defendant shall not furnish water from its reservoir; (5) to find such other facts bearing upon the case and report such evidence as either party may request."

COUNSEL

G.A.A Pevey, for appellant.

E.C Bumpus and H.S. Milton, for appellee.

OPINION

LATHROP J.

The first question which is before us upon the report of the single justice before whom the hearing was had, on sending the case to a master, is whether, as requested by the defendant, the third and fourth questions should have been answered by the master, as it is admitted that the first and second were embraced in the order made, and the fifth is not now insisted upon. When this case was last before us ( Roberts v. City of Cambridge, 164 Mass. 176, 41 N.E 230) it was held that the plaintiff was entitled to specific performance of his contract with the defendant. The defendant contends that where events, after the making of the contract, make the performance by the defendant so onerous that its enforcement would impose great hardship upon him, and cause little or no benefit to the plaintiff, the court will not interfere, but will leave the plaintiff to his remedy at law. See 2 Beach, Mod.Eq.Jur. § 569. The defendant argues that the population of the defendant city has now increased, and that to perform the contract will cause great damage to the city, and that the court should have allowed the defendant to show "what might be the proportion between the damage which would be suffered by the plaintiff in consequence of nonperformance and that which would be suffered by the defendant in consequence of performance." The votes which were held to constitute a contract were passed on December 19, 1887. Soon after this time the defendant supplied the plaintiff with water, and continued to supply him until on or about July 1, 1893, when it refused to fulfill the contract. The bill in equity for specific performance was filed on May 12, 1894, and the case was decided on June 28, 1895. It was open to the defendant at the hearing on the merits, if there had been any change in the situation between the making of the contract and the filing of the bill which would render specific performance so onerous that it ought not to be decreed, to present evidence to this effect; but this was not done, nor was any reason given for the stoppage of the water supply to the plaintiff. Nor does it...