Supreme Court, March, 1904. [Vol. 43. a court of equity to interfere in a case like this, where it is shown that the contract is harsh and oppressive. It was held in a case where a town delivered over to a railroad company stock it owned in another company to induce the former company to accept the road and extend it, which would be very beneficial to the town, that, after the road was extended and the stock had been delivered many years, a court of equity would not spend much time in determining whether the arrangement was originally legal or illegal. Town of Mt. Morris v. Thomas, 158 N. Y. 450. The plea of ultra vires is of little avail to a party, in a court of equity, who is in receipt of and enjoying the benefits intended to be conferred upon him by the contract. A corporation lessee cannot remain in possession of leased premises and pay its rent by such plea. Such defense is not available. where the contract has been in good faith fully performed by the plaintiff, and the defendant has had the benefit of such performance and of the contract. Bath Gas Light Co. v. Claffy, 151 N. Y. 24; Vought v. Eastern B. & L. Assn., 172 id. 508; National Wall Paper Co. v. Hobbs, 90 Hun, 288. It seems sufficient, therefore, for the present to determine that the defendant had not the right to employ a principal for the Academy, and that it be restrained from so doing; that it has not the right to determine that nonresident pupils shall be admitted to the said Academy free, or upon what terms they shall be admitted. Findings and judgment accordingly may be submitted, and if not agreed upon, will be settled upon five days' notice. Costs are awarded to the plaintiff. Judgment accordingly. Misc.] Supreme Court, March, 1904. THE HUDSON RIVER POWER TRANSMISSION Co., Plaintiff, V. THE UNITED TRACTION Co., Defendant. (Supreme Court, Saratoga Special Term, March, 1904.) Action on an entire contract to furnish electrical energy by installments Insufficient pleading of performance - Prospective profits not recoverable unless there is an abandonment - Counterclaim when permissible to avoid cross-actions - Demand excused where the party liable to respond has already refused - Forfeiture made while the other party had been lulled into seeming security - Conspiracy to avoid the contract. A complaint alleging performance by the plaintiff, a power company, of an entire contract it had made with the defendant, a traction company, to furnish it with electrical energy for ten years in monthly quantities and on monthly payments to be made on the tenth day of the ensuing month, the defendant to be entitled to certain deductions if the power company failed to furnish the energy because of accident or lack of water, its motive power, or other matter beyond its control and the defendant to be entitled at a price named to all the surplus energy the plaintiff's plant produced, and seeking to recover the price of the second month's energy and prospective profits under the contract is demurrable for insufficiency where it admits the failure to furnish the whole month's power, alleges certain deductions or deficiencies without specifying how they are excusable under the terms of the contract relating to that matter and fails to allege the delivery or offer of delivery of all the surplus energy produced during the month. The defendant's failure to pay the monthly installment is not such a breach as entitles the plaintiff, where it has not abandoned, to rescind the contract and recover prospective profits. Where the plaintiff claims damages growing out of the contract the defendant may deny its liability or default and, as a counterclaim, allege and establish the liability or default of the plaintiff and recover damages of it. A counterclaim for the surplus energy produced but not delivered is not demurrable for failing to contain an allegation that the surplus energy was demanded where the counterclaim also alleges that the plaintiff had refused to deliver it and had wrongfully sold it to others. An answer alleging performance by the defendant, refusal by the plaintiff to perform, that the contract energy was cheaper than could be obtained elsewhere and that the refusal would entail large damages presents a proper counterclaim. Supreme Court, March, 1904. [Vol. 43. An answer, alleging in substance that while the parties were negotiating as usual through their engineers as to the amount due the plaintiff and it had requested time to consider the matter, the law day for payment passed and that the plaintiff instantly repudiated the contract although the defendant was ready and willing to pay, presents a defense to the action. An answer which, after repeating the allegations of the last above answer, alleges that the plaintiff after making the contract sold out to another company and that company to a third, that the companies together had a monopoly of the production on the Hudson river of electrical energy by water power, that the plaintiff conspired with the other companies to have the contract forfeited for nonpayment on the law day in order to compel the defendant to buy energy at a higher rate of the successor company in control, presents an appeal to the equitable power of the court to relieve the defendant from the condition of forfeiture which the plaintiff's acts have produced. DEMURRER to four separate counts of the answer. Richard L. Hand and Henry W. Williams, for plaintiff. Judson S. Landon and Edgar L. Fursman, for defendant. KELLOGG, JOHN M., J. The plaintiff having demurred to four separate counts of the defendant's answer for insufficiency, the defendant, as it may properly do, challenges the sufficiency of the complaint. And such demurrer brings before the court the whole record, and judgment goes against the party having the first insufficient pleading. Baxter v. McDonnell, 154 N. Y. 432. And this rule applies with equal force whether the demurrer is to an alleged defense or an alleged counterclaim. Village of Little Falls v. Cobb, 80 Hun, 20. In determining the sufficiency of the complaint and of the answer the pleading must be liberally construed, and every allegation, whether expressly or only impliedly or argumentatively averred, is admitted. National Contracting Co. v. Hudson R. W. P. Co., 170 N. Y. 439; Atkins v. Judson, 33 App. Div. 42. First as to the complaint. It seeks to recover payment for furnishing the electrical energy under the written con Misc.] Supreme Court, March, 1904. tract which it states is "Ready to be produced when and, where this court may direct," and then purports to give the pleader's conclusion as to what the contract is, reciting that the plaintiff was to furnish to the defendant electrical energy beginning July 1, 1902, and continuing ten years, in agreed amounts monthly, and for August, energy equal to 2,750 electrical horse power, for which it was to receive $4,670.84. All of the payments, less certain deductions, if any, were to be made prior to the tenth day of the next ensuing calendar month, and the deficiencies in the amount of energy supplied were to be compensated for at a fixed rate. That during the month of August the energy was furnished as agreed, of the value of $4,670.84, "less certain small deficiencies, which as measured and computed by the defendant entitled the latter to the deductions at the rate specified in the said contract," aggregating the sum of $210.26, leaving due to the plaintiff a balance of $4,460.58 for the month of August, and alleges nonpayment and seeks to recover $350,000, prospective profits. The demurrer admits that a copy of the contract is attached to the answer and the reference to the contract in the complaint as "ready to be produced when and where the court may direct," makes that contract when produced and identified a part of the complaint itself. The contract itself, therefore, takes the place in the complaint of the conclusions of the pleader as to its terms. In the fourth paragraph of the contract it is provided that if by reason of accident, lack of water or other matter beyond its control, the power company shall at any time be unable to furnish the electrical energy fixed in accordance with the terms of this agreement, the traction company shall have the right to deduct a certain price per horse power for such deficiency, which is fixed as the liquidated damages "for failure to furnish said electrical energy as herein provided." Section 13 of said agreement provides: "This agreement is an entire contract, each stipulation thereto being a part of the consideration for every other," and by the sixth provision of said contract it is provided that the plaintiff shall furnish to the defendant, in addition to the electrical energy before men Supreme Court, March, 1904. [Vol. 43. tioned, all electrical energy in excess thereof that the power company's water-power plant is capable of producing, at a price named therein. It is clear if the contract is considered as a part of the complaint that the plaintiff has not sufficiently alleged a performance of the contract upon its part, for the allegation that it has duly delivered the eléctrical energy which by said contract it had agreed to deliver to the defendant, and duly performed the said contract in all things, is qualified by the allegation that it did not deliver the full 2,750 electrical horse power during August which would entitle it to the $4,670.84, for by folio 12 of the complaint the other allegations are qualified by the statement that during the month of August it delivered the energy to be delivered for that month of the value of $4,670.84, less certain small deficiencies, which as measured and computed by the defendant entitled the latter to deductions at the rate specified in said contract, aggregating the sum of $210.26. Neither does the complaint allege that plaintiff delivered, or offered to deliver, all of the surplus energy, or any part of it, above that provided for in the first item of said contract. The plaintiff was absolutely bound to deliver the energy if it could produce it, and a full and substantial delivery or tender thereof was a condition precedent to its recovery except in the cases provided for in the contract where deductions were to be made if the failure arose from certain causes. The complaint gives no idea of what the deficiencies were or how caused. If the plaintiff willfully and intentionally refused to supply all of the energy agreed by it to be done, defendant would have a complete defense, for the plaintiff must show in order to recover that the failure to deliver the full amount is covered by one of the excuses mentioned in the contract, or arose in some indefinite way for which the defendant is as much responsible as itself, or by some inadvertence or excusable cause. It, therefore, seems that the complaint, by failing to show that the deficiencies arose in some excusable way, does not state a cause of action. The plaintiff's conclusion that the deficiencies as measured and computed by the defendant entitled it to the deductions is not an |