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209 January 11, 1921 short of what the pa~y is entitIed to, that founds a jurisdiction 2n equity. And it must be complete; that is, it must attain the full end and justice of the case. It must reach the whole mischief, and secure the whole right of the p~rty in a perfect manner, aT the p~esent, time, and in the _.~mtttre;- otherwise equity will interfere and give such relief and aid as the exigency of the particular case may require.' It can not be reasonably contended that a suit at law would afford recLress for the thre- atened injury. Only half of the term of the lease has expired. It has seventeen years still to run. It would be impossible To ascertain the amount of damage that the complainant wo~ld sustain from an abandonment of the road during the remainder of the lease. The injury from loss of traffic, from the natural and certain decay of buildings and structures, and from the p~ssible, if not probable, forfeiture of its franchises and property, could not ~e estimated or compensated bV da~ma~es. The remedy aT law would be neither complete nor adequate. "The enforcement of the contract is also objected to on the ground of hardship. It is not pretended that the lease was induced bv ~f~aud or false representations of facts. On the contrary, it was entered into after due deliberation, was reasonable and fair mhen made. Ope- ration under it haA demonstrated that the Franklin Co., instead of becoming a valuable feed- er to the main line of the lessee, had proved to be an unprofitable adjunct. The hardship is due in the main to misoalcuation in making the contract, and .in part to subsequent events and a chan~e of oiroumstances~ in no wise attributable to the lessor. "It is not doubted that there are adjudged oases which hold that a cottrt of equity will not decree specific performance of the agreement, where it would entail great hardship, and the hardship was due, in some measure at least, to,the conduct of the other party. "But we question whether a cottrt of equity ever refuses specific performance upon the sole objection of hardship, where the contract, in its inception, was fairly a~ud justly made, a~d the hardship is the result of m~soaloulation, or is caused by s~sequent events or a chance of circumstances, and the party seeking performance is wholly~ without fault. In Mar- ble Co. v. Ripley, l0 Wall (United States Supreme Cou~t) 356, Mr. Justice Strong, in speak- ing of contracts that were supposed to be fair and equal when made, but in the ~apse of time have become bad bar g~ins, said: 'Besides, it is by no means clear that a cour~ of equity will refuse to decree the specific performance of a contract, fair when it was made, but which has become a hard one by the force of subsequent circumstances and changing events.' The element of risk enters more or less into every contract, and the obligation to perform it can not be allowed to depend upon the question whether it has proven to be advantageous or disadvantageous, it would be a ~rmversity upon justice, and the reputed sancity of con- tracts would be of little avail, if parties could refuse the performance of contracts having some years to run~ which were fairly entered into, and believed to be just and equal when made, merely because 'from contingencies, they had turned out, in the course of execution, to be a losing instead of a profitable ba~g~in. "~n Schmidt v. L. & N. R. Co. (Kentucky), 38 L. R. A. 809, it appeared that the lessor was largel~ indebted t~ the defendant company, the assignee of the lease, for moneys furnish- ed for it under the contract of lease, and to be repaid by it; that judgment had been recov- ered for the amounT, and an effort made to sell the leased road to pay for it, but nothing could be made because no one would give anything for the road subject to the mortgage sub- sisting upon it~. It mlso appeared that th~ leased road was being run at a heavy loss, the necessary cost of operating having exceed~he receipts in thesum of $199,~11.$0. The defen- dant claimed that-it would be harsh and i~equitable, under these circumstances, to require it to continue to operate the road, but the court held that the facts in the case were no~ such ms to release the defendant from performing the contract. Nor cmn the objection of hardship, made in the case before us, avail t~ stay the hands of the This it seems to me is ~ case made to order, and leads me to advise unreservedly that the City of Portsmouth can maintain an action of specific performance upon its contract with the telephone company, and can compel it ~o install the automatic phone in Portsmouth. I might add, in conclusion, that the court can not, of course, oompei anyone to do that which is impossible, And if the telephone company can show to the satisfaction of the court that it is ~bsolutely impossible, irrespective of the hardship or cost, for them to furnish the automatic phone, then in such case the City would lose its case. However, this is a question of fact rmther than of law, and, while perhaps possible, seems to me ~o be most highly improbable. "Very truly yours, "GEO. BOSMAN, City Attorney." In connection with the above opinion, Mr. Brooks moved that the City Attorney be in- structed to proceed in Court to compel the Chesapeake ~ Potomac Telephone Co. ~o establish the automatic phones in the~City of Portsmouth under its contract with the City; and that the City Attorney be ~utho=iZed to employ additional counsel, if necessary, ~o assist himin the matter. The motion was adopted, and by the following vote: Ayes-- Brooks, Esle~ck, Smith, Hall, Hutchins, Oast, White, UNFINISHED BUSINESS The regular reports of the City Treasurer, City Collector, and City Clerk & Auditor fo~ the month of December, 1920, were presented and were ordered ~o take the usual course. Reports of the Portsmouth Public Library for the month of December, 1~20, and for the Year 1920, were read and were referred to ~he City Manager. The following resolution which had been presente~ by the City Manager December 30th and laid on the t~ole, was taken up, read, a~d adopted: "RESOLVED~ ~nat salaries and w~ges named herein so far as new employees are concerned shall be considered as a m~ximum and nothing herein stated shall be construed as prohibiting the City Manmger in his discretion from hit-