Allen v. Burke

2 Md. Ch. 534 | New York Court of Chancery | 1849

The Chancellor:

This case transferred from the equity side of Baltimore County Court, has been argued by the counsel of the parties, upon the motion to dissolve the injunction, and is now laid before this court, for decision upon that motion.

The argument has turned very much upon the proof taken under the Act of Assembly, and order of Baltimore County Court passed in pursuance thereof; but I am relieved from the necessity of expressing an opinion upon the evidence, by the view which I have taken of the plaintiff’s case, as presented by his ■ bill. The object of the bill, is, to enforce the specific performance of the agreement therein referred to, and for an injunction in the meantime, to restrain the defendant from taking and carrying away from the premises, or from the wharf, in the proceedings described, a quantity of oyster shells deposited, and being there at that time. And it seems to me quite clear, that if upon the plaintiff’s case, as exposed by his bill, he is not entitled to a specific execution of the agreement set up by him, he cannot be entitled to the injunction which is only ancillary to the principal object of the suit.

It is also well settled, that the plaintiff must recover upon the case made by his bill, and that a defendant, although he answers it, may at the hearing object, that the case made in the bill does not entitle the party to equitable relief. Chambers vs. Chalmers et al., 4 Gill & Johns., 438.

The bill in this case prays that the defendant may be compelled specifically to perform an agreement for a lease, which it is alleged, was by parol, in the summer of 1848, (about the month of August,) entered into between the plaintiff and defendant. The premises, stated to have been so leased by the complainant, are described as being on Union Dock, in the city of Baltimore, and it is charged, that the defendant took possession thereof in pursuance of said renting, and now occupies, and uses them for opening and exporting oysters, and that the plaintiff was to have and receive therefor, all the oyster shells, produced from said establishment, be their value more or less, as rent for the premises aforesaid. The bill also states, that the plaintiff, in pursuance of the agreement, received and carried away all the shells, from the summer and fall of 1848, until November, 1849, when, for the first time, the defendant denied his right, and prevented the plaintiff from taking the shells away. And there is also an averment that the defendant had sued the plaintiff at law, for the value of the shells he had received, See.

The bill then seeks to enforce the specific performance of the lease, or the agreement for a lease, therein set up. But what sort of an agreement is it, of which this court is asked to enforce the execution ? It is stated to have been entered into some time in the summer of 1848, about the month of August, but when is the lease to expire ? There is to be a specific, that is, an exact, execution of the agreement set up in the bill; but how can the court decree any such execution, when it is not informed of one of the essential terms of the agreement it is asked to enforce ? Is the defendant to be compelled to perform the alleged contract on his part, for one year, or for ten, of for any other number of years ? It is no answer to say, that the duration of the lease, appears by the answer of the defendant, because the plaintiff’s right to a decree, must depend upon the case made by his bill, and the proof in support of it. If the answer of the defendant is relied on to show the agreement, then it will be found, that one, essentially differing from that contended for by the plaintiff, was actually made, and, of course, the plaintiff would have no title to the aid of the court. The plaintiff cannot ask for the interposition of the court in his favor, unless he states and proves an agreement sufficiently certain, and definite, to make it confident that the decree will enforce the agreement of the parties. In Parkhurst vs. Van Cortlandt, 1 Johns. Ch. Rep., 273, the necessity of certainty and precision, in the terms of the agreement, to enable the court to see clearly what is the contract of the parties, is dwelt upon, and in that case, it was said that the uncertainty of the terms of the agreement, was an insuperable objection to the specific execution sought by the bill.

Z. Collins Lee for Complainant. John H. Ing for Defendant.

My,opinion, therefore, is, that the contract in this case, is not set out in the bill, with the necessary degree of certainty to enable the court to decree its specific execution. It is impossible, looking at the bill, to say for what period the defendant should be required to comply with the stipulations sought to be enforced against him ; and, therefore, without intimating an opinion upon the evidence or upon the question affecting the jurisdiction of the court, I think the injunction must be dissolved.