Kendall v. Frey

• Decision Date: 12 March 1889
• Citation: 42 N.W. 466,74 Wis. 26
• Parties: KENDALL ET AL. v. FREY, MAYOR, ET AL.
• Court: Wisconsin Supreme Court

74 Wis. 26

42 N.W. 466

KENDALL ET AL.

v.FREY, MAYOR, ET AL.

Supreme Court of Wisconsin.

March 12, 1889.

Appeal from circuit court, Washington county.

Action by J. O. Kendall and others against Adam Frey and others, the mayor and aldermen of the city of Hartford, to compel the specific performance of a contract to erect a city-hall and lock-up, on a certain lot mentioned, and to restrain its erection on another lot. Injunction pendente lite dissolved. Plaintiffs appeal.H. W. Sawyer, for appellants.

Winkler, Flanders, Smith, Bottum & Vilas, for respondents.

COLE, C. J.

If we rightly understand this case, the action is brought to enforce the specific performance of a contract to erect a city-hall and lock-up upon a lot mentioned in the complaint, and to restrain the common council from building or attempting to erect such a building upon another lot. It appears from the complaint and supporting affidavits that the officers of the city, in 1887, purchased of the firm of Kendall & Co. a lot upon which to erect a city-hall and lock-up. According to the conditions in the deed of conveyance, the building to be erected was to be of a certain height, and constructed of specified materials, and, in case the city failed to maintain the building on the lot for five years, the title should revert to the grantors. The city accepted the conveyance, and took steps preparatory to the erection of the building. Some time subsequently the city obtained another lot, by gift or purchase, which was deemed more convenient and suitable for a public hall site, and abandoned the notion of building on the Kendall lot. It is alleged that the officers of the city threaten or are preparing to erect the city-hall upon the new lot. Hence this action to compel them to erect the building upon the Kendall lot, and enjoin them from erecting it on any other lot.

It seems to us there are serious objections to granting the relief asked for in this suit. Mr. Justice Story says it has been a matter of some conflict of opinion how far courts of equity ought to entertain a suit for the specific performance of a covenant to build or rebuild a house of a specified form and size on particular land. In the earlier cases the jurisdiction was maintained, but in the more recent authorities the doctrine has been denied, and courts of equity have not enforced such a covenant. See 2 Story, Eq. Jur. §§ 725, 726; Fry, Spec. Perf. §§ 65-76; Beck v. Allison, 56 N. Y. 366;Danforth v. Railway Co., 30 N. J. Eq. 12;Railway Co. v. Navigation Co., 11 Sawy. 33, 37 Fed. Rep. 733. Furthermore, there are the most cogent reasons why the court should refuse to decree the specific performance of the agreement to build the city-hall on the Kendall lot. The matter of erecting a public building which shall furnish suitable accommodations for the business and needs of the city is eminently a question for the common council to decide. In the decision of the question the common council exercises its judgment and discretion, and determines to erect a building, we must presume, where it will best meet the general convenience and wants of...