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(-W. Va. -, 99 S. E. 457.)

has fully performed his part of the agreement.

Vice Chancellor Sir James Bacon, in Greene v. West Cheshire R. Co. L. R. 13 Eq. 44, 50, well expresses a reasonable view of such a situation in decreeing specific performance of a contract to construct and maintain a railroad siding of specified length. After commenting upon the failure of the defendant to offer a sufficient excuse or suggestion of impracticability or inconvenience of performance of its part of the contract, of which plaintiff had performed his, he proceeds: "But what they say is that the plaintiff may, by an action at law, recover against them in money such amount of damages as a jury may think he has sustained by their wilful breach of their contract, and that therefore a court of equity will not entertain the complaint. I do not understand that the law, as administered in this court, countenances any such defense.

It

would be a total departure from all principles by which the administration of this branch of the law has hitherto been guided to hold that it is at the option of a man who has persuaded another to part with his rights upon a specific condition to say: 'I can, but I will not, perform the obligation I have entered into; and, instead of keeping faith and honestly fulfilling my promise, I will leave you to take the chances of an action for damages, and reserve to myself the power of endeavoring to defeat your claim, and, instead of acknowledging your just rights, will compel you to receive, instead of them, such a sum as I may be able to persuade a jury will compensate you for the loss and injury and disappointment which my wilful wrongdoing may have occasioned to you."

A similar result was reached in Fortescue v. Lostwithiel & F. R. Co. [1894] 3 Ch. 621, 64 L. J. Ch. N. S. 37, 8 Reports, 664, 71 L. T. N. S. 423, 43 Week. Rep. 138, where the railroad company had agreed to

construct certain accommodation works for the plaintiff.

In this country the authorities generally have reached the same conclusion with respect to contracts for sidings or spur tracks. Taylor v. Florida East Coast R. Co. 54 Fla. 635, 16 L.R.A. (N.S.) 307, 127 Am. St. Rep. 155, 45 So. 574, 14 Ann. Cas. 472; New River Lumber Co. v. Tennessee R. Co. 136 Tenn. 661, 191 S. W. 334; Patton Twp. v. Monongahela Street R. Co. 226 Pa. 372, 75 Atl. 589; Southern Pine Fibre Co. v. North Augusta Land Co. (C. C.) 50 Fed. 26; Lane v. Pacific & I. N. R. Co. 8 Idaho, 230, 67 Pac. 656; Fry, Spec. Perf. 5th ed. § 104. The case of New River Lumber Co. v. Tennessee R. Co. supra, is very similar to this. It involved a contract between a timber company and a railroad, in which the latter agreed to extend its line to tap timber lands, the agreement to cover a period of twenty-seven years. The court enforced performance of the contract, saying: "Courts of equity do not, at this day, hesitate to specifically perform contracts for the construction and operation of railroads, merely because such contracts are continuous in their obligations and require skill in their execution." 136 Tenn. 678, 191 S. W. 339.

A similar result has been reached, during more recent years, in con

tracts for the operation of trains. The editor of recent editions of Pomeroy's Equity Jurisprudence, and of the treatise on Specific Performance in 36 Cyc., says at page 587 of the latter work: "Beginning with the year 1890, contracts involving the operation of railroads, often of the utmost complexity and extending over a very long term of years, or perpetually, have been enforced specifically."

Numerous cases cited in the note sustain the text.

The authorities in this state relative to the specific performance of railroad contracts are indicative of the trend of courts of equity toward greater latitude in enforcing construction contracts, where the only reason urged against them is the necessity of court supervision. In Lydick v. Baltimore & O. R. Co. 17 W. Va. 427, the author ity of a court of equity to enforce the performance of a contract to construct a switch was expressly recognized, though the holding seems to be obiter. Moundsville v. Ohio River R. Co. 37 W. Va. 92, 20 L.R.A. 161, 16 S. E. 514, holds that a municipal corporation may compel a railroad company to restore a street in which it has located its road, to its former condition, as nearly as may be, by mandatory injunction. And Johnson v. Ohio River R. Co. 61 W. Va. 141, 56 S. E. 200, and Harper v. Virginian R. Co. 76 W. Va. 788, 86 S. E. 919, Ann. Cas. 1918D, 1081, enforced specific performance: the first, of a contract to build and maintain road crossings, cattle guards, and other structures on the company's right of way; the other, of a contract to build and operate a depot on plaintiff's land, though not specifying the length of time.

It is true many of the cases cited involve contracts entered into by the railroad company in consideration of the conveyance by the plaintiff of a right of way through his land. The consideration here is of a different nature, but of equal dignity. Besides, the extent of the duty created by a contract is not determined by the

Contractconsideration

kind of considerasufficiency. tion on which it is based. It is sufficient if the consideration is such as the law deems valuable without regard to its nature or character.

A bill having for its chief object the enforcement of an oral contract not executed as required by clause 6, chap. 98, Code (§ 4171) is subject to the challenge of a demurrer, as stated in Hogg's Eq. Pro. § 306, and as appellee contends. But the challenge becomes ineffective as a cause for dismissal of such a bill, when, by reason of part performance of the contract, to sanction that course clearly

would operate to the manifest prejudice of the complainant. If in relying in good faith upon the promises of the covenantor, part of the consideration of a contract, and with the knowledge and consent of the latter, he expends a vast amount of money, he thereby produces such a situation as warrants a

formance-oral

ute of Frauds.

court of equity in Specific pergiving him the re- contract-Statlief to which he may be entitled, notwithstanding the statutory requirement. Its purpose was to prevent, not sanction, fraud. That principle of law or legislative enactment would be an anomaly which, while attempting to prevent fraud, would become an instrumentality for the perpetration of fraud. Richardson v. McConaughey, 55 W. Va. 546, 47 S. E. 287. Here, performanceif the agreement statute of to permit plaintiff to store his lumber on defendant's property be construed to be a lease within the meaning of clause 6, chap. 98, Code, the partial performance effected by the storing of lumber thereon removes the bar of the statutory provision. Miller v. Lorentz, 39 W. Va. 160, 19 S. E. 391. The case of Pifer v. Brown, 43 W. Va. 412, 49 L.R.A. 497, 27 S. E. 399, and other similar cases respecting the revocability of parol licenses, though acted upon by the licensee, have no bearing here, for the permission to use defendant's land was part of the consideration for a contract, and therefore of greater dignity than a mere license. But, no time having been prescribed for the duration of the right to use the land for storage purposes, the exercise of that right can continue a reasonable time only, and is subject to termination by the railroad company whenever the land becomes necessary for the proper discharge of its public functions.

Again, it is urged that, as the statute forbids the bringing of an action upon an agreement not to be performed within a year, the pro

(-W. Va., 99 S. E. 457.)

vision for the extension of the sidetrack is not enforceable. There is nothing in the contract considered, or in any of its terms or provisions, which indicates or from which can be inferred a necessity to prolong performance of the work beyond the period forbidden by the statute, or anything inconsistent with complete performance within the oneyear period. In that event the contract is not within the statutory inhiwithin year. bition, and is enforceable. Reckley v. Zenn, 74 W. Va. 43, 81 S. E. 565; McClanahan v. Otto-Marmet Coal & Min. Co. 74 W. Va. 543, 82 S. E. 752. Here there is no occasion for the assump

-performed

tion that more than a year is necessary to complete an 800-foot extension of the yard track.

Specific per

of

Superfluous, perhaps, is the observation that we are now only testing the sufficiency of the bill on demurrer, and, while we think the bill presents on its face a cause for re- formance-conlief, the case may, structiotrack. when fully matured for final hearing upon bill, answer, and proof, show plaintiff not to be entitled to any relief. In the meantime, however, the status quo should be maintained, and to this end we reverse the decree, overrule the demurrer, reinstate the injunction, and remand the cause.

ΑΝΝΟΤΑTION.

Specific performance of contract by railroad company to build or maintain sidetracks, extension, or branch line.

Though the courts will not ordinarily decree specific performance of building or construction contracts, for the reason that an adequate remedy exists at law by the recovery of damages, and for the further reason that the granting of such relief would be impracticable, since it would involve a supervision of the work by the court which it is not qualified to assume, the rule is not an absolute one, but merely one of discretion. A recognized exception to such rule has been made in cases where the particulars of the work are definitely ascertained and the plaintiff has a substantial interest in having the contract performed, which is of such a nature that he cannot adequately be compensated for the breach in damages.

Such is ordinarily the situation in the case of contracts to build or maintain a sidetrack, extension, or branch line of railroad, and the propriety of granting specific performance has been upheld in several cases. See Southern Pine Fibre Co. v. North Augusta Land Co. (1892) 50 Fed. 26; Taylor v. Florida East Coast R. Co. (1907) 54 Fla. 635, 16 L.R.A. (N.S.) 307. 127 Am. St. Rep. 155, 45 So. 574,

4 A.L.R.-34.

14 Ann. Cas. 472; Lane v. Pacific & I. N. R. Co. (1902) 8 Idaho, 230, 67 Pac. 656; New River Lumber Co. v. Tennessee R. Co. (1916) 136 Tenn. 661, 191 S. W. 334; BROWN v. WESTERN MARYLAND R. Co. (reported herewith) ante, 522; Greene v. West Cheshire R. Co. (1771) L. R. 13 Eq. (Eng.) 44, 41 L. J. Ch. N. S. 17, 25 L. T. N. S. 409, 20 Week. Rep. 54; Lytton v. Great Northern R. Co. (1856) 2 Kay & J. 394, 69 Eng. Reprint, 836, 2 Jur. N. S. 436, 4 Week. Rep. 441; Todd v. Midland Great Western R. Co. (1882) Ir. L. R. 9 Eq. 85. The court will, however, decline to exercise its coercive power to compel specific performance of such a contract, if to do so will adversely affect the performance by the railroad company of its full public duties (see Taylor v. Florida East Coast R. Co. (1907) 54 Fla. 635, 16 L.R.A. (N.S.) 307, 127 Am. St. Rep. 155, 45 So. 574, 14 Ann. Cas. 472, supra; BROWN v. WESTERN MARYLAND R. Co.), or otherwise prejudice the public interest (see Windham Cotton Mfg. Co. v. Hartford, P. & F. R. Co. (Conn.) infra).

In Windham Cotton Mfg. Co. v. Hartford, P. & F. R. Co. (1854) 23 Conn. 373, where two railroads, running parallel, had contracted to make and maintain a sidetrack from either or both of their main tracks for the accommodation of a manufactory near the track, the court held that if the contract required the sidetrack from the line further away from the manufactory to be so constructed as to utilize the track of the other road as a part thereof, by passing along it, and thence by a single track to the factory, as claimed by the plaintiff, they would not specifically enforce it, there being no finding by the committee to whom the case had been submitted that this mode of construction was necessary, and it appearing that such mode would be no more detrimental to the public from interruption of traffic and danger of collision than a crossing of the main line at right angles.

In Taylor v. Florida East Coast R. Co. (Fla.) supra, where it appeared that the owner of a hotel had conveyed land to a railroad company upon which to construct its right of way for the main line, a spur track, and depot, the railroad company agreeing to maintain the spur track and depot and at a point near the grantor's hotel, and to operate all its regular passenger trains upon the spur track to the depot during a certain season of the year, and that the controlling consideration for the conveyance was the maintenance of such spur track and the operation of passenger trains thereon, which would be peculiarly beneficial to the grantor's hotel and business, and that extensive improvements of the hotel property had been made upon the faith of the agreement, it was held that such agreement might be specifically enforced in equity unless such enforcement would directly, materially, and injuriously affect the rights of the general public.

In Lane v. Pacific & I. N. R. Co. (1902) 8 Idaho, 230, 67 Pac. 656, it was held that, where a railroad had acquired and taken possession of a right of way under a contract by which it agreed to construct a siding at or near the grantor's dwelling, specific performance of the agreement to

construct a siding would be granted, it being apparent that no measure of damages could be found whereby the damages accruing to the plaintiff by reason of the defendant's failure to comply with the contract could be ascertained with certainty. It was further held to be no objection to the decree of specific performance that the contract did not specify the length of the switch or sidetrack, it being inferable that the parties contemplated the usual country siding.

In New River Lumber Co. v. Tennessee R. Co. (1916) 136 Tenn. 661, 191 S. W. 334, a contract by which a railroad agreed to extend its lines to tap timberlands, covering a period of twenty-seven years, was specifically enforced, although the railroad bondholders would not receive full compensation by collection of freight rates until the expiration of twenty-seven years.

In Lydick v. Baltimore & O. R. Co. (1880) 17 W. Va. 427, it was said, in passing, that a verbal agreement made by a railroad company to build and maintain a switch to a mill on a tract of land, in consideration of a right of way for the road through such tract, would be specifically enforced in a court of equity at the instance of the subsequent owner of the mill, who had an equitable or legal title derived from the original promisee.

In Southern Pine Fibre Co. v. North Augusta Land Co. (1892) 50 Fed. 26, it was held that a demurrer to a bill for specific performance of a promise on the part of a land company to build a sidetrack to a factory to be located on its property, on the grounds that there was no equity in the bill, that the promise was too vague and uncertain to be enforced, and that the complainant had an adequate and complete remedy at law, must be overruled, the court saying: "The term 'sidetrack' has a well-known signification. It means connection with some railroad affording communication with market. Its value to a factory in operation is self-evident. Its absence would cause great injury to the factory, not only increasing expense up

on every article needed for or turned out of the factory, but perhaps operating, in this age of competition, fatal results to its business. There is no want of sufficient certainty in the

terms of the agreement, and there is
sufficient evidence of continuing and
increasing damage which cannot be
compensated except by a succession of
verdicts."
E. S. O.

FARMERS' NATIONAL BANK of Beaver Falls, Pennsylvania, Appt.,

V.

PEOPLE'S NATIONAL BANK of Pittsburgh.

Pennsylvania Supreme Court - January 4, 1919.

(263 Pa. 266, 106 Atl. 311.)

Bank - failure to forward notice of protest.

1. Failure of a bank, which receives a note for collection and forwards it for that purpose to its correspondent, to send the notice of protest forwarded to it by the correspondent upon dishonor of the paper, to the indorser or to its principal, does not charge it with liability to its principal in case the indorser is discharged for want of notice, if the principal receives notice of protest and is advised that notice for the indorser has been forwarded to the bank to which it sent the note.

[See note on this question beginning on page 534.]

- collecting agent - duty to give notice of dishonor.

2. A bank to which a note is forwarded for collection is under no obligation to its correspondent to give notice of dishonor to the indorsers, failure to perform which will render it liable to the correspondent in case the indorsers are discharged by want of such notice, if the correspondent himself has notice of the dishonor.

[See 3 R. C. L. 621.] Evidence facts in other case.

3. The court cannot consider, in a

case before it, facts not appearing in such case, but which appeared in another case which had been brought before it.

Proximate cause

failure to give no

tice of protest to indorser.

4. Failure of the holder of a note to give the addresses of indorsers to a bank to which the note is forwarded for collection is the proximate cause of loss, through release of an indorser by failure of the collecting bank to give notice of protest to the indorser.

APPEAL by plaintiff from a judgment of the Court of Common Pleas for Allegheny County (Brown, J.) sustaining a demurrer to plaintiff's statement in an action brought to recover for the loss of a note alleged to have been caused by defendant's negligent failure to notify an indorser of the note of its dishonor. Affirmed.

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of the court.

note of D. A. Nelson and David Knight for $5,000, and there was deposited as collateral security for its payment a note dated February 24, 1912, made by T. C. Hulings, payable to the order of T. N. Barnsdall and others, at the Second National Bank of Clarion, for a like amount. Shortly before the due

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