43 So. 854 | Ala. | 1907
The bill seeks to specifically enforce a certain contract made between complainant and J. W. Dimmick, and which provides for the employment of Stokes as the general manager of the company. Conceding that such a contract would be binding on the, company, which we need not decide, that clause of same will not support a bill for specific performance. Our court, in defining the class of contracts that can be specifically enforced in equity in the case of Irwin v. Bailey, 72 Ala. 467, says: “There is no class of cases to which the jurisdiction of a court of equity extends that the maxim, ‘He who seeks equity must do equity,’ is more rigidly applied. Hence it results that the contract or agreement which the court is asked to enforce specifically must not only be certain, fair, just, reasonable, and equal in all its parts and terms; must not be merely voluntary, but founded upon a valuable and adequate consideration; and it must be mutual in its operation and effect. As is said by Prof. Pomeroy: “The contract must be of such a nature that both a right arises from its terms, in favor of either party against the other, while the corresponding obligation rests upon each towards the other, and also that either party is entitled to the equitable remedy of a specific execution of such obliga
There is nothing in the contract in the case at bar so binding on Stokes as would support a special enforcement by the company or J. W. Dimmick against him in case he declined to serve as general manager. Applying the rule to this case, specific performance of the contract, in respect to the only feature thereof of which a breach is claimed, cannot be decreed. Construing the averments of the bill most favorable to the complainant, it merely seeks to reinstate the complainant as general manager of the corporation and to remove Wilson as president, which is not within the powers of a court of equity, in the absence of some special ground of equitable cognizance. It is true the bill avers that it was the opinion of complainant that J. W. Dimmick and Wilson at one time intended to settle the claim of the Mobile & Ohio Railroad at a reduction and make the company pay the claim in full; but it further shows that Dimmick informed complainant that he was not going to charge the company any more than the. claim cost him, with legal interest. Nor does the bill aver that it was the purpose or intention of J. W. Dimmick to charge the company with any more than the claim would cost him. He may have had such an intention at one time, yet may have had no idea of' doing so at the time the bill was filed, or when he informed the complainant that he was going to charge the company only what the claim cost him and legál interest.
The chancellor erred in not sustaining the motion to dismiss the bill for want of equity, and the decree of the
Beversed and rendered.