83 N.Y.S. 785 | N.Y. App. Div. | 1903
The. plaintiff in his complaint alleges that on the 8th day of December, 1899, and for some time prior thereto, the defendant McLean had been and was then the owner of a certain device for “ propulsion ” purposes; that he was without funds to develop it, and was desirous of procuring and receiving the services of one Everett D. Barlow, an attorney at law, to introduce him to some person who would undertake to furnish money to place his device on. the market for commercial purposes, which facts were well known to defendants ; that said Barlow was acquainted With Straus, who was then and is now' a man of large means, and that said defendant Straus was desirous of being introduced to the defendant McLean by said Barlow for the purpose of making the contract thereinafter stated; that an introduction of the defendants by said Barlow followed; that on the 8th day of December, 1899, the defendants entered into an agreement, in writing, with Everett D. Barlow whereby, in consideration on behalf of said Barlow of his introduction of McLean and the defendant Straus, and services to be performed by said Barlow, the parties thereto agreed that said defendant McLean was the owner of said invention and was desirous of obtaining $2,000 to develop it; on behalf of defendant Straus it was agreed that, in consideration of his advancing $2,000, to be deposited with the defendant Barlow for the joint benefit of the defendants and the said Barlow, which sum was to be for expenses in testing said
To this complaint the defendant Straus interposed a demurrer, which was overruled, and from the interlocutory judgment entered*, upon that decision he appeals.
The respondent states in his brief that the action is for specific*, performance to compel defendants to deliver the stock, or, in lieu, thereof, that plaintiff may have judgment for $100,000. I think that we may take him at his word, and treat this complaint entirely from the standpoint that it is an action in equity to compel specific performance, nor do we think those words of his brief were inadvertent or misstated the fact relative to his pleading. His demand for judgment is that the defendants be ordered and decreed to-deliver to the plaintiff 1,000 shares of the capital or preferred stock of the Standard Rotary Motor Company, -or in lieu thereof that the. plaintiff may have the sum of $100,000, the amount of the capital, or preferred stock of the said corporation, as damages, which the. plaintiff is entitled to receive for the withholding of said stock from him, together with such other and further judgment as may be proper. It has been held that a formal demand for. relief with, which the complaint concludes is not conclusive as to whether the*. character of the action is legal or equitable; but where-the complaint sets forth facts which niay support equally an action at law- or in equity, its character is determined by the relief demanded (O'Brien v. Fitzgerald, 143 N. Y. 377.)
The question before us is, then, whether upon the facts pleaded an action for specific performance for $100,000 worth of this stock will, lie. It is not to be doubted that equity may decree the specific, performance of a contract of chattel property. Danforth, J.,. speaking for the court in Johnson v. Brooks (93 N. Y. 337), says : “But while it may be conceded that in general a court of equity will not take upon itself to make such decree where chattel property alone is concerned, its jurisdiction to do so is no longer to be doubted, and it is believed that no good reason exists against its. exercise in any case where compensation in damages would not furnish a complete and satisfactory remedy.” Jurisdiction of a court of equity to enforce specific performance of a contract relating to* personal property, though rarely exercised, cannot be denied* and-.
The plaintiff’s complaint, however, does, not allege that this stock ".has any peculiar value, nor that the product of the Standard Rotary "Motor Company is in any such experimental stage as to render computation of the value of the stock difficult or impossible, and nowhere in the complaint does he allege the facts from which it could be inferred, that he has no adequate remedy at law, nor that exact language. On the other hand, the pleading seems inferentially to allege thevalue of the stock to be $100,0.00. "Without such a showing equity would not, under the decisions we have quoted, ■exercise its discretion to award specific performance of the agreement set out in the complaint, and without such averments, the pleading cannot be said to state a cause of action in equity for -specific performance.
These conclusions lead to a reversal of the interlocutory' judgment, with leave to the plaintiff to amend upon the usual terms.
In view of this disposition of -the appeal from the interlocutory judgment, it becomes unnecessary for us to pass upon the appeal in the same case from the order denying the motion of the- defendant .Straus to make the complaint more definite and certain.
The appeal from that order should, therefore, be dismissed, with-out costs to either party. ' ,
Goodrich, P. J., Bartlett, Woodward and Jenks, JJ., concurred.
Interlocutory judgment reversed, with leave to the plaintiff to amend -within twenty days upon payment of costs of demurrer and costs of this appeal, Appeal from order denying motion to make complaint more definite and certain dismissed, without costs of this appeal to either party.