171 P. 1055 | Or. | 1918
“The general rule has long been settled, after a period of conflict and uncertainty in the early cases, that contracts for building and construction, and contracts to make repairs, will not be enforced in specie on account of inconvenience in enforcing a decree by the process of attachment for contempt, when numerous questions must usually arise under the decree in such a case as to whether there has been substantial .performance, whether defective performance may be excused, what compensation should be made for the deficiency, and the like. Moreover, if the building is to be done on the plaintiff’s land, the remedy at law is usually adequate, since he may do the work himself and sue at law for the cost”: 6 Pomeroy’s Equity Jurisprudence, § 760.
“As a general rule a contract to bnild or repair will not be specifically enforced by a court of equity. It is said that if one won’t build another will; and if there is any loss sustained the remedy is at law, for damages. And this' is especially so as to contracts like the covenant in the present lease, to repair during a period of many years.”
In the case of Dove v. Com. Tit. Ins. Co., 6 Pa. Dist. 263, the court says:
“It appears to us that if there was any contractual relation between the Commonwealth Title Insurance and Trust Company and Dove, it was only for the completion of the houses, and if the company refused to complete the houses under any contract it made with Dove, there was a complete and adequate remedy at law, and equity cannot be invoked' to compel specific performance of a contract on the part of the company to complete the houses. All that Dove had to do was to do the work claimed to be necessary to complete the houses and sue the company, whose responsibility is not questioned, upon its promise to pay for the work.”
In Leonard v. Board of Directors of Plum Bayou Levee Dist., 79 Ark. 42 (94 S. W. 922, 9 Ann. Cas. 159), the court says:
“This suit is no more nor less than one to require of appellant the specific performance of his executory contract to construct the levee. The remedy at law is complete and adequate, and a court of equity is without jurisdiction of the subject matter. Equity will not decree specific performance of an executory contract to do work, for the obvious reason that there is no method by which its decree could be enforced.”
We might continue citing and quoting from a long line of authorities all to the same effect but do not deem it necessary. Our attention has not been called
The decree of the lower court is affirmed.
Affirmed. Rehearing Denied.