4 Daly 421 | New York Court of Common Pleas | 1873
—This case was an action for equitable relief, and it is so complicated, both as respects the facts and the questions that arise upon them, that it will be necessary to a clear understanding of the points that we have to pass upon to ascertain from the pleadings the exact nature of the case which the plaintiffs presented in their complaint, and the defense which the defendant set up to it, by his answer.
The plaintiffs set forth that they are the equitable assignees of a lease of a house and lot in Yesey street in this city, which
The plaintiffs, after they came into possession of the premises, expended a large amount of money in making improvements, in erecting an engine house thereupon and in setting up a steam engine to drive the machinery used in their business;' and whilst they were thus in possession, a fire occurred on the premises on the 31st of Harch, 1866, by which the buildings were greatly damaged and injured, so that extensive repairs became necessary to render the premises tenantable and enable the plaintiffs to carry on their business.
The complaint then recites that the plaintiffs repeatedly called upon the defendant to repair the building, which he wholly neglected to do, putting the plaintiffs off with various excuses, and demanded the rent, without disclosing .what he intended to do. That the plaintiffs gave him notice that if -he did not proceed with the repairs, an action would be commenced against him to authorize the plaintiffs to expend the accruing rent in making the repairs, and to restrain him in the-
That all that the defendant did after the fire was to employ a "few men to take down a part of the walls, which were considered dangerous as they stood. That, without indicating what he would do himself under the covenant, he applied to the plaintiffs upon several occasions to know what they would do about the lease, and stated to them that it would be much better for him to take down the building and erect a more modern •one in a better style, which would command a better rent, and asked if he did so, if they would be willing to pay a higher rent; hut the plaintiffs declined to enter into any such arrangements, and as during two-thirds of the time that had elapsed from the happening of the fire, nothing had been done, and as no materials had been brought to the premises for repairing the building, the plaintiffs, after nearly two months had elapsed from the time of the fire, commenced this suit to compel the defendant to perform his covenant to repair. The equitable relief asked for in the complaint was, that the defendant should be adjudged to perform his covenant; • that the plaintiffs might be authorized to expend the rent accruing under the lease in repairing the damages occasioned by the fire; that the defendant might in the meanwhile be restrained from taking any proceed
The defendant, in his answer, admits that the provision referred to was incorporated in the lease to relieve the lessees from the obligation they would otherwise be under to repair the premises in case of fire, but claims that the repairs intended to be provided for by this clause were such as might arise from a slight or moderate damage by fire, and not such as are required when a building is so damaged by the fire as to become untenantable; in respect to which, it is sufficient to say, that there is no such distinction in the covenant, nor can it, by any construction, be grafted upon it. If the court should be of the opinion that the covenant is not susceptible of such a construction, then the defendant asks the equitable aid of the court to correct the covenant, so that it may conform to the actual agreement and intention of the parties; but upon this point the judge below has found against him. He finds that the words “ damages by fire excepted,” interlined in the lease, do,in the connection in which they stand, truly express the agreement of the parties, and that no mistake was made in so inserting them. Ho 'evidence was given upon the trial by the defendant, of any such agreement or understanding. After he had closed his case, and was entitled only to give evidence in rebuttal, he asked a witness this question: “ How came that interlineation in the lease ? ” to which the plaintiffs objected, as presenting the case in a new aspect, and the judge excluded any further, testimony on this point, which, in that stage of the case, was a matter of discretion on the part of the judge, which is not reviewable.
The answer of the defendant further avers that there has been no want of diligence on his part; that the state of the
Assuming, as we must from the judges’ finding and the evidence, that the defendant was bound by the covenant to repair the building after the fire and to put it in a tenantable condition ; the further issues tendered by the defendant’s answer, with the evidence under them, and the finding of the court, I shall now proceed to consider. They may be summarily stated as follows : 1. That the refusal of the plaintiffs to pay rent for the time beyond the fire, was on their part an election under the statute of 1860 to quit and surrender the premises (4 Edm. Rev. Stat. p. 433). 2. That the plaintiffs did not notify the defendant to repair until the 7th of May, thirty-seven days after the fire. 3. That the delay was owing to the necessary propping up of the walls after the fire, their condition being such as to make it dangerous without this to work upon the premises ; to the employment by the plaintiffs of the defendant’s workmen to get out their safe, and to the negotiation between the plaintiffs and the defendant in respect to the purchase by the plaintiffs of the premises on the putting up of a larger and different structure at an enhanced rent; all of which may be embraced under the general averment in the answer, that the defendant after the fire proceeded in good faith and with due diligence to repair, and did all that it was possible for him to do to restore the building.
In respect to the averment that the plaintiffs did not notify the defendant to repair until the 7th of May, the testimony of the plaintiff Beck was, that he had an interview with the defendant three or four days after the fire, and told him that he was very anxious that the building should be put up as soon as possible. That upon another occasion the defendant told him that he would like to put up another building, and that Beck replied that was of no consequence to the plaintiffs, that all he wanted was to get the building put up as it was. That he saw the defendant five or six times, and that the substance of their conversation was all about the repair of the building; that he urged the defendant to go ahead at once, and that the substance of the defendant’s replies was, that he wanted to see his brother
The judge found that the defendant did not proceed with, due diligence after the fire in making the repairs, and was not proceeding with due diligence when the action was brought* and this finding is supported by the evidence. It is manifest from the perusal of the testimony, that the defendant had not determined when the- suit was brought what he intended to do; whether he would restore the building to the condition in which it was, as far as the fire laws would allow him to do so, or put up a new structure; or if he had, he kept his intention to himself. The building upon the adjoining lot, which was connected with his own by a party wall, belonged to his brother, and the party wall was so damaged by the fire that a part of it was dangerous and had to be shored up to enable the workmen to take it down. Between four and eight days after the fire, his brother informed him that he intended to put up a good substantial store upon his own lot; that he intended to build it as soon as he could, that he was going to build it in the modern style and to make it as substantial as he could. The architect testified, that in the erection of the building of the defendant’s brother, they could not take the party wall down separately on the defendant’s brother’s lot, but that the whole had to come down together; that the wall was taken down as soon as it could be done prudently and carefully; that on the 10th of May he asked the defendant’s permission to build a new party wall, notifying him that if he did not
What the. defendant manifestly wanted was to get rid of the obligation of complying with the covenants in the lease if he could. He therefore wanted the plaintiffs to purchase the premises. The plaintiff Beck’s account of what occurred upon that subject is very different from the defendant’s testimony, or from what was set up in the defendant’s answer. Beck says that the defendant told him that he did hot know what to do ; that he would like to sell the premises, as he was building in the country, and asked him to purchase; that he told the defendant that the plaintiffs were not in a condition to purchase ; that he, Beck, had property in Baltimore, and that all the money the plaintiffs had was locked up in it; that it was a matter he could not decide alone ; that he would see his partners, but that he, Beck, had no idea of purchasing. A week after the fire the defendant spoke to Beck about putting up a larger building. Either upon that or some other occasion, he talked about putting up a different kind of building, but that it would require the payment of more rent, and the plaintiffs told him that all they wanted was to have the building put back in its original state, but as to paying more rent, they could not think of that. In this respect there is a conflict between the defendant’s and Beck’s testimony; but upon the judge’s finding, we must assume that where they differed as they did in this instance, he gave greater weight to Beck’s testimony.
That the defendant was anxious to get rid of the lease, appears from his own testimony. He says that when Beck replied that the amount offered was the rent up to the time of the fire, he, the defendant, said, “ Then you cancel your lease, and I accept it; ” and that when Beck said “ No,” the defendant laid the check for the amount offered down, and said he would not accept it on any other conditions. He testified that he never made any written contract with anybody for restoring the building to the condition in which it was before the fire; that he procured specifications of the work to be done for restoring it to its original condition, but never made any contract for any material for restoring it, and did not purchase
Before the plaintiffs called their witnesses, the defendant moved to dismiss the complaint upon the ground that it did not state facts sufficient to constitute a cause of action. Beyond this, the specific grounds of this objection do not appear in the case as settled; but upon the argument of this appeal, we are referred to the cases of Errington v. Aynesly (2 Bro. Ch. R. 343; 2 Dick. 692); Lucas v. Comerford (3 Bro. Ch. 166; 1 Ves. J. 235): Raynor v. Stone (8 Eden, 128); Flint v. Brandon (8 Ves. 163); and Hill v. Barclay (16 Ves. 405), as authorities for the proposition that a court of equity cannot and will not decree the specific performance of a contract to repair. In the first of these cases the plaintiff relied upon evidence on his part to show that a bridge could have been built on the foundation that would have stood, and insisted that if he had filed a bill for the purpose, he could, in equity, have compelled the plaintiff to execute the contract. To this, Lord Kenyon, Master of the Bolls, said, that he never knew a bill for the specific performance of a contract of that sort; that there was no case in which the specific performance was decreed of an agreement to build a house, in which, as will hereafter be shown, he was mistaken. He accordingly relieved against the bond, and directed an issue quantum damnificatus.
But it is not necessary to rest upon the authority of Lord Hardwicke, for the jm-isdiction in equity, to compel the specific performance of a contract to build or repair, was recognized at a very early period. In an anonymous case in the Year Books, ■8 Edw. IY, 4, Genny is put down as saying, “ If I promise to build you a house, and I do not do it, you have your remedy by a subpoena in chancery,” to which Stillington, the Lord -Chancellor, assented. In a later case, 27 Hen. YII, 41, Fineux, Chief Justice, said, “If a man covenants to build a house for me by a certain day, and does not do it by that day, I shall have my action on the case for the nonfeasance; and so if he does it ill, I may sue him for damages; ” which, says the report, he held to be the law. The report then proceeds, “ If a man makes a bargain with me that I shall have his land to me and my heirs for £20, and that he will convey it to me if I pay him the £20, and he will not convey it according to the covenant, I have an action on the case, and need not sue out a subpoena (in chancery).” This case has been supposed to be authority for the proposition that the only remedy for the -breach of an agreement to build, or to convey land, is by an
That the construction I have put upon this case is the correct one, will appear from the fact that Brooke, when incorporating it in his abridgment, was careful to add: “But by this remedy he would get nothing but damages; but by subpoena the chancellor could compel him to convey the estate, or imprison him, as it is said” (Brooke’s Abr. Action’Sur le Case, 72).
In Wood v. Tirrell (Cary R. 84, 19 Eliz.), the landlord covenanted with the tenant to build and repair a house by a certain day, and declared that, he was prepared to do it, but that'
In the case before Lord Hardwicke (City of London v. Nash, supra), the defendant insisted that the plaintiffs ought to be left to their action at law, upon which Lord Hardwicke said ; “ The objection will not hold, for upon a covenant to build, the plaintiffs are clearly entitled to come into this court for a specific performance; otherwise on a covenant to repair; for to build is one entire single thing.” In Pembroke v. Thorpe (3 Swans. 437, note), a part of the relief asked was to compel the defendant to perform an oral agreement to pull down an old house and "build as good a one in its place. The same objection was taken that the plaintiff had his remedy at law by an action to recover damages for the breach of his agreement. But Lord Hardwicke said : “ This court only compels him to perform his own agreement, which he entered into for a valuable consideration, and it would be suffering him to take advantage of his
In Mosely v. Virgin (3 Ves. Sr.), the bill was to compel the performance of an agreement to lay out a certain sum of money in building, and the conflicting decisions of Lords Hardwicke, Kenyon, and Thurlow were cited by the respective counsel. Lord Roslyn referred to the case I have cited from the Equity Cases Abridged (Allen v. Harding), respecting the building of a house upon the glebe land, as unsatisfactory, being a loose note from a book of reports, most of the cases in which, he said, were inaccurate; and in respect to Lord Thurlow’s decision, that contracts to build were too uncertain to be enforced in equity, he made this very proper distinction: “If the transaction and agreement is in its nature defined, perhaps there would not be much difficulty to decree specific performance; but if it is loose and undefined, and it is not expressed distinctly what the building is, so that the court could describe it as a subject for the report of the master, the jurisdiction could not apply; ” and this distinction has been approved by the Court of Appeals in this State in Lobdell v. Lobdell (36 N. Y. 330), the judge who delivered the opinion of the court declaring that specific performance of contracts will not be enforced unless the contract is clear, definite, and certain; for if it be uncertain, so that the court cannot say what its precise import or limitations are, specific performance will be withheld. It is in accordance
In Rayner v. Stone (2 Eden. 128), LordHorthington refused to enforce specific performance of the covenant of a landlord in a lease to make repairs, but it was upon the ground of the difficulty and uncertainty of knowing and determining on the part of the court what was to be done. “ How,” he said, “ can a master judge of repairs in husbandry % What is a proper ditch in one place may not be so in another; * * besides, how can a specific performance of things of this kind be decreed ? ” what the covenant enumerated being the repairing of hedges and ditches, the manor house and other buildings, and the setting up of land-marks, stones and fences; and an analogous decision was made by Lord Eldon in Hill v. Barclay (16 Ves. 404). In
The judge found that the building was not so destroyed by the fire as to be incapable of repair, and that four months was a reasonable time within which to make the repairs; but inasmuch as the building was very old, as it was no longer suited to the growth and increase of business in that locality; being, neither of the style, the strength nor of the size required for the business usually carried on there, he took into consideration that it would be a loss and injury to the defendant to compel him to restore the building to its former condition, in compliance with a covenant in a lease that had only about three years to run, and regarding the whole case as one addressed to-the equitable discretion of the court, he did not adjudge the specific performance of the covenant, but adjudged instead, that the defendant should pay to the plaintiffs the estimated excess of the value of the lease to them for the residue of the term, over the rent they were to pay, which he found to be $2,366 88; that is from the 1st of August, 1866, until the expiration of the extended term, after deducting the proportional rent from the 31st of March, 1866, the day of the fire, to the 17th of August of the same year. This amounted in fact to a rescission of the lease, whereby the defendant was relieved from the obligation of performing the covenant, and from all liability thereafter to any action at law thereon for the recovery of damages: whilst the plaintiffs were compensated by an award in damages for the loss and injury they sustained by the" non-performance of the covenant.
The judge regarded the special circumstances as affording-good reasons why the court should not, in the exercise of its equitable discretion, .compel a specific performance. The provision of the fire law (Session Laws of 1866, vol. 2, p. 2009),.
But it does not follow, as the defendant insists, that if the court does not decree specific performance, it must dismiss the complaint, and is precluded from making what it considers a more equitable dispositition of the subject-matter before it, for it is a familiar rule that if the jurisdiction in equity attaches in any case from the want of an adequate remedy at law, it shall, having rightfully attached, be made effectual for the purpose of complete relief (1 Story’s Equity Jurisp. § 64, h, i, k). It attached in this case, because it was in the power of the court to decree the specific performance, as the repairing of the building was not impossible. The change made by the adjoining owner in the party wall, and the restrictions which are now imposed by statute in building upon an existing building, did not prevent the defendant from repairing the building, so
If, as was held in Bradley v. Aldrich (40 N. Y. 504), there is no ground whatever for equitable relief, if the facts-disclosed show, that there is a cause of action at law, but nothing-calling for equitable interposition, the complaint must be dismissed, and the party left to pursue that remedy to which he should have resorted in the first instance, instead of coming into equity. Thus, in the case cited, the plaintiff brought a suit in equity to have a contract set aside on the ground of fraud, and asked that certain real estate which he had parted with under the contract should be ordered to be reconveyed to him; the court held that the plaintiff was not entitled to the relief asked, having failed to satisfy the court of the frauds alleged, except in respect to one false representation, for which he was entitled to a judgment for whatever damages he might, in that respect alone, have sustained, and a reference was ordered to ascertain the damages. It was held, that upon refusing the
But in the present case the relief which the court gave could not be obtained in an action at law. In an action at law, damages could be recovered for a breach of the covenant to repair, but the court went much farther than this. It adapted to the special circumstances of the case the equitable relief which it considered appropriate. It relieved the defendant altogether from the strict performance of the covenant, so that instead of repairing, or rather of rebuilding upon the remains of the walls that were left, he might be enabled to erect such a structure as his interest as owner demanded. This relieving of a party from the strict performance of a contract, upon the ground that it would be hard or unreasonable to enforce it, is a very delicate branch of equitable jurisdiction, and is exercised only under strong or very peculiar circumstances (1 Story’s Equity Jump. §§ 331, 694, 700, and the cases there -cited). The judge regarded the circumstances of the case to be such as to warrant it, and the plaintiffs, who, upon the destruction of the building by fire, had nothing but this covenant, make no complaint at the defendant being relieved from the performance of it, or to the annulling of the lease, as the plaintiffs are, upon the equitable disposition which the court made of the whole matter, to receive an equivalent for the pecuniary loss they would otherwise sustain.
The defendant, it may be said, does not want the lease annulled, nor to pay the plaintiffs a pecuniary equivalent for the non-performance of the covenant. But the plaintiffs invoked the equitable aid of the court to compel a specific performance of the covenant, and the specific relief asked was denied, not upon the ground that the plaintiffs’ case was devoid of equity, but because the court considered that a more equitable adjustment of the whole matter might be made in the way it devised. The relief given is strictly equitable. It is founded upon a due consideration of the consequences to the defendant of • com-
The right of a court of equity, where it refuses a decree for specific performance, either because the defendant, by a conveyance of the property to another party, or by some other act, has incapacitated himself from performing, or in view of the hardship of compelling performance, to give the plaintiff as an equivalent a pecuniary sum, to be ascertained by the application of some equitable and precise rule, or by directing an issue to ascertain the amount of the plaintiffs’ damages, is a question upon which there has been such a diversity of opinion among judges, that the whole matter is involved in doubt and uncertainty. There is for the breach or non-performance of a contract a legal remedy by an action for the recovery of damages, and it being a fundamental rule that courts of equity will not interfere where the legal remedy is ample, it is very naturally assumed that if courts of equity cannot or will not compel the specific performance of a contract, they should not proceed to award damages for the non-performance of it, the plaintiff having an adequate remedy for the recovery of damages in an action at law.
There are, however, cases in which this jurisdiction to award pecuniary compensation in lieu of performance, can and ought to be exercised—in which the relief is in its nature equitable—and there is a well marked line to distinguish where a court of equity may and where it may not, upon refusing a
In Cleaton v. Levison (Finch’s R. 164), a case decided as early as 1674, the bill was to compel the execution of an agreement, and it was decreed that the defendant should execute the agreement in specie, as far as he was capable of doing so, and likewise satisfy the plaintiff for such damages as he had sustained in not enjoying the premises according to the agreement.
In Hedges v. Everard (1 Eq. Abr. 18, p. 7), in which ajointress sought to have satisfaction for a defect in the value of her jointure lands, which her husband bad covenanted were of a certain value, the objection was taken that the remedy was in damages, which were determinable only at law; but it was said that a master in chancery may properly inquire into the value- and defects of the lands, and report it to the court, which may decree that the defect be made good, or send the question to be tried at law upon a quantum damnificatus.
In - v. White, reported in a note to Newmarch v. Brandling (3 Swanst. 108, note a), the court would .not decree a specific performance; but as the report expresses it, “ directed only a quantum damnifica/oit, by the defendants not taking the lease.”
In Cudd v. Rutter (1 P. Wm. R. 570), it would appear from the more correct account of that decision, in Mr. Cox’s note to the fourth edition of these reports, Lord Macclesfield reversed the decree of the Master of the Bolls, for the specific performance of a contract for the transfer of stock, and decreed instead, that the defendant should pay to the plaintiff the difference between the value of the stock on the day it was to be transferred and its value when the plaintiff brought his suit; which was decreeing to the plaintiff a compensation in lieu of specific performance, very nearly in the same way that Judge Brady did in the present case.
In Colt v. Netterville (2 P. Wm. 305), Lord King overruled a demurrer, stating that the case might at the hearing be attended with such circumstances as would make it just to decree
In the City of London v. Nash (3 Atk. 512), Lord Hardwieke refused a specific performance, saying, “ The relief must be by way of inquiry of damages; I am more inclined to this than a specific performance; ” and he directed an issue to try what damages the plaintiff had sustained.
In Denton v. Stewart (1 Cox, 258 ; 17 Ves. 276, note 5), the bill was for a specific performance, and it appearing upon the hearing that the defendant had incapacitated himself from performing, having assigned the lease during the suit, Lord Kenyon referred it to the master to inquire what damage the plaintiff had sustained, and decreed that the defendant should pay to the plaintiff such damage so to be ascertained, together with the costs of the suit.
So far, it may be said, upon the authority of these early cases, that a court of equity, where it cannot, or where it considers, in view of all the circumstances, that it ought not, to decree a specific performance, may, in lieu thereof, award an issue to ascertain the plaintiff’s damages; dr, if it can do so, may fix the amount of the compensation by the application of some equitable rule or measure.
In Clinan v. Cooke (1 S. & L. 25), Lord Bedesdale assented to the proposition of the defendant’s counsel, that if the plaintiff had put it out of his power to execute a lease, relief must be sought at law, and could not be obtained in equity. This, as will more fully appear hereafter, was correct, the defendant having, before the commencement of the suit, executed a lease to another party, and there was, therefore, no ground for equitable interposition, the plaintiff’s remedy being an action at law to recover damages for the breach of the agreement. Lord Bedesdale nevertheless decreed that thé money which the plaintiff had paid at the making of' the agreement should be repaid to him by the defendant with interest.
Sir William Grant entertained some doubt in Greenway v. Adams (12 Ves. 401); but upon refusing the specific performance, he directed a reference to a master to ascertain the plaintiff’s damages, upon the authority of Lord Kenyon’s decis
Afterwards, in Blose v. Sutton (3 Merv. 248), he said: “ The competency of a court of equity to give damages for the non7 performance of an agreement, notwithstanding the case of Den-ton v. Stewart, has been questioned by very high authority; ” and he points out as a discriminating feature in Denton v. Stewart that the defendant there had been guilty of a fraud in voluntarily disabling himself from performing the agreement.
In Gwillim v. Stone (14 Ves. 128), Sir William Grant refused to order an inquiry before the master to ascertain what compensation should be made to the plaintiff for the loss he liad sustained from the defendant’s failure to carry the contract into execution. He referred to his former decision in Greenway v. Adams, where he had, he said,- some doubt upon the principle; but he distinguished the former case, which was for a specific performance, from the one then before him, where the bill was for the delivering up to the plaintiff of the contract for the purchase, on the ground of the defendant’s defective title, and that compensation should be made to the plaintiff for the loss he had sustained. He decreed the delivering up of the contract, but denied the reference to ascertain the plaintiff’s damages, for the reason that the defendant’s defective title was set up by the bill, and the plaintiff therefore knew when he brought the suit that the defendant could not perform the contract and that his proper and only remedy was an action at law to recover damages. In Hatch v. Cobb (4 Johns. Ch. 560), Chancellor Kent, for the same reason (that the plaintiff knew when he filed his bill, that the contract could not be specifically performed), doubted the jurisdiction of the court in such a case to assess' damages merely; and Lord Cottenham, affirming the decision of the Master of the Rolls, in Sainsbury v. Jones (2 Beav. 464), on appeal (5 My. & Cr. 1), held expressly that there was no ground for equitable relief in such a case. He said the plaintiff knew
. In deciding this case, Lord Oot.tenham said: “ I certainly recollect the time at which there was a floating idea in the profession that this court might award compensation for the injury sustained by the non-performance of a contract, in the event of the primary relief for a specific performance failing, and I have formerly seen bills praying such relief; but that arises from my having known the profession sufficiently long, to recollect t^ie time when the decision of Lor<j Kenyon, in Denton v. Stewart, had not been formally overruled, but, at that time, very little weight was attached to it, and very few instances occurred in which the plaintiffs were advised to ask any such relief; and for a short time Sir W. Grant’s decree in Greenway v. Adams, added something to the authority of Denton v. Stewart, although he threw out strong doubts as to the principle of that case. This, however, lasted but a short time, for Greenway v. Adams occurring in 1806, Lord Eldon, in 1810, in Todd v. Gee (17 Ves. 273), expressly overruled Denton v. Stewart; and from that time there has not, I believe, been any doubt upon the subject. Certainly, during the thirty years which have elapsed since that time, I have never supposed the granting of any such relief as. being within the jurisdiction of this court.”
This is a very strong statement, and by an able equity judge, and yet it is found that equitable tribunals, both before and since, have thought and ruled differently. Lord Eldon, in the case referred to by Lord Cottenham (Todd v. Gee, supra), did not overrule Denton v. Stewart, although he questioned and qualified it. He said, “ I should be inclined to support the whole course of previous authority against Denton v. Stewart, not being aware that this court would give relief in the shape of damages, which is very different from giving compensation out of the purchase money.” As regards this remark ábout “ the whole course of previous authority,” it js sufficient to state, that the prior cases which I have cited show that, in this respect, Lord Eldon was mistaken. He said further, “ My opinion
Chancellor Kent, in Phillips v. Thompson (1 Johns. Ch. 150), instead of dismissing the bill for the specific performance, retained the case and ordered an issue of guantum damnificabas, and in Parkhurst v. Van Cortland (Id. 273), which was a bill for the specific performance of a contract to sell land, he refused the specific performance, but decreed compensation, referring it to the master to ascertain the amount in the mode pointed out by the court. He afterwards, however, in Hatch v. Cobb (4 Johns. Ch. 560), had'doubts respecting the extent of the jurisdiction. He thought that in very special cases equity might possibly sustain a bill for damages on a breach of contract ; but that it was not the ordinary jurisdiction of the court. In that case the defendant had disabled himself from being subjected to a decree for a specific performance by parting with his interest before the suit was brought, and the chancellor said that if he had not parted with his interest it might even then be a point deserving of consideration, whether the plaintiff was entitled to assistance. In the subsequent case of Kempshall v. Stone (5 Johns. Ch. 193), he again declared that the court ought not, except in very special cases, to sustain a bill merely for the assessment of damages, saying that the more he reflected upon the subject, the more strongly he inclined to that opinion. He referred to Lord Eldon’s remarks in Todd v. Gee (17 Ves. 273), and was evidently strongly impressed by Lord Eldon’s erroneous statement that the whole previous course of authority was against the exercise of the jurisdiction. Whatever doubt may have arisen from this expression of opinion on the part of Chancellor Kent, it was, at
In Kendall v. Beckett (2 R. & My. 88), which was a suit for a specific performance, the plaintiff failed to show that the transaction had been on his part in all respects fair (the weight of evidence tending to prove that the price had been inadequate), and the court held that he had altogether failed in mating out a case for equitable interposition. The bill prayed, that in the event of the court’s refusing a specific performance, it would decree the repayment of the sum deposited at the mating of the contract. Lord Brougham refused to do so, “ especially,” as he said, “ in favor of a party whose conduct was tainted with unconscientious dealing.” He further remarked, that “ even under circumstances entitled to favor, the jurisdiction was, at best, extremely doubtful,” referring to what was said by Lord Eldon, in the case before cited, of Todd v. Gee, as showing that it could not be exercised, except in a very special case.
In Jenkins v. Parkinson (2 My. & K. 12,13), Lord Brougham said Lord Eldon did not, in express terms, overrule Denton v. Stewart, but he did everything short of denying it to be law, and then after some remarks distinguishable for their inaccuracy in the statement of what occurred in the particular cases referred to, he very confidently disposes of Denton v. Stewart, and Sir Wm. Grant’s ruling, in Greenway v. Adams,
In Andrews v. Brown, 3 Cush. (57 Mass.) 135, the question of this jurisdiction was very fully discussed, and the conclusion arrived at by the court was that the decision of Lord Kenyon in Denton v. Stewart was reasonable, and conformable to the principles of equity. That it did not make any material difference whether the property was conveyed by the defendant during or before the commencement of the suit, provided the plaintiff was not aware, when he filed his bill for relief in equity, that the defendant had conveyed the property to another, and even in such a case that there might be equitable jurisdiction if the purchaser knew of the existence of the agreement with the plaintiff, and was made a party to the suit; and in the following American cases the jurisdiction was either recognized or exercised (Oliver v. Crosswell, 42 Ill. 41; Bell v. Thompson, 34 Ala. 633 ; Stockton v. The Union Oil Co. 4 West Va. 273; Barlow v. Scott, 24 N. Y. 40).
In Prothero v. Phelps (25 L. J. Ch. 105), Lord Justice Turner said, “ That it is competent to this court to’ ascertain damages, I feel no doubt. It is the constant course of the court in the case of vendor and purchaser, where a sufficient case is made for the purpose, to make an inquiry as to the deterioration of the estate, and in so doing, the court is, in
It may be stated, as the result of this review, that if there was no ground whatever for equitable interposition when the suit was brought, as where the plaintiff knew, when he brought it, that the defendant could not perform (either from having conveyed the property to another, or from any other cause), the complaint is to be dismissed, the. plaintiff having no right to come into a court of equity to get a pecuniary compensation .for the injury he has sustained, as he has a full and adequate remedy for obtaining it by an action at law. In such a case it is not only the appropriate, but it is the sole, remedy, for in the common-law action for the recovery of damages, the defendant has a right to a trial by jury, and this cannot be taken away by bringing a suit in equity to obtain what the party can obtain by an action at law. But where it appears affirmatively by the plaintiff’s complaint or bill that the contract is just and fair—that it is one which the defendant ought to and can perform—then the jurisdiction in equity attaches; the defendant is put to his answer, the case corned before the court upon the issue and the proofs for its equitable consideration, and it may decree a specific performance, or, in lieu of performance, award to the plaintiff a compensation in money, to be ascertained by some equitable rule, or by a trial by jury, unless a trial by jury is waived (Barlow v. Scott, 24 N. Y. 45, 46), or it may, on the merits, dismiss the complaint altogether.
The exercise of this jurisdiction, where there is anything' upon the face of the complaint, or in the proofs, that calls for an equitable determination, is no violation of the right of a trial by jury, for the power to compel the specific performance of agreements is as old as the Oourt of Chancery; bills filed for that specific relief being amongst the earliest records of the
The judgment should be affirmed.
Judgment affirmed.
Present, Daly, Oh. J., Larxemokb and J. F. Daly, JJ.