128 Pa. 421 | Pennsylvania Court of Common Pleas, Warren County | 1889
We are unable to agree with the learned court below in the conclusion dismissing the plaintiffs’ bill. The defendants’ exceptions were all dismissed except those which denied the right to an account. As this ruling practically sustains the findings of the master upon the matters of fact in dispute, and as the master found that the plaintiffs had substantially performed their stipulations of the contract between the parties, we have difficulty in understanding why the whole substance of the litigation should not be disposed of in this equitable proceeding. Undoubtedly, equity has jurisdiction, whether the relation established by the contract be one of partnership or merely one of licensor and licensee. Mutual duties of accounting, under the contract, are imposed upon both parties; and, as the accounts are continuing and not single or simple, that circumstance is alone sufficient to bring the case within equitable cognizance. It would scarcely he possible to dispose of such a controversy in a common-law proceeding. Whatever may be the rights of the contending parties, under the various allegations and proofs presented upon both sides, it is manifest they are of quite too complicated a character to be dealt with by a jury.
The reason given by the court below for dismissing the bill, as we understand it, is, that it is a bill for specific performance, and, as the plaintiffs failed .to perform their part of the contract, they cannot claim performance by the defendant. The bill as we read it is a bill for discovery and for an account, and is in no sense a bill for specific performance within the technical meaning of that term. As a matter of course, all partnership bills and all bills for an account seek to obtain the redress which would have been obtained if the contracts of the parties had been performed. But this redress is compensation for non-performance, and not specific performance in the technical sense of doing the particular thing which the contract requires to be done, such as the conveyance of a specially described tract of land, or some unusual or extraordinary character of chattel. We cannot regard this bill as a bill for specific performance, in any point of view, and hence cannot apply to it the rule which controlled the court below in dismissing it. These parties are in litigation respecting their ultimate rights
The question now before us is scarcely more than a question of jurisdiction to determine the case on its merits. We think the decree recommended by the master should have been made, and when that is done, and the further and final proceedings have taken place, so that a final decree is reached, the full merits of the controversy will be in proper shape for the action of the court below, and for review in this court, if that shall be desired.
The decree of the court below is reversed at the cost of the appellees, and the record is remitted for further proceedings in accordance with the decree recommended by the master.
