Thе defendant appealed from the order of the chancery court denying his motion to dismiss plaintiff’s petition for specific *154 performance. The appeal is by permission of the court below before final decree under 12 V.S.A. §2386.
Sinсe the motion to dismiss attacks the sufficiency of the petition, it is in the nature of a demurrer and consideration of the motion depends entirely upon the faсts' stated in the petition.
Woodard
v.
Porter Hospital, Inc.,
On January 24, 1964, the plaintiff entered into a written agreement .with the defendant to purchase a ranch home owned by said defendant located on George Street in Montpelier, Vermont. The sale was consummated in аccordance with the agreement on February 6, 1964.
The agreement contаined the following provisions: “The seller also agrees that if any major water рroblem should arise regarding the spring under the cellar floor he would do what is necessary to make the cellar usable for general use. This agreement is for two years from the date of purchase.”
On or about October 14, 1964, the plaintiff notifiеd the defendant that a major water problem had arisen as the result of the sрring under the cellar floor of her home. The plaintiff also sent the defendant а copy of a letter from a contractor whom she had engaged to еxamine the premises. In his letter the contractor set forth in detail what was neсessary to be done to make the cellar usable for general uses. The dеfendant has refused to make the repairs plaintiff claims are necessаry.
The-plaintiff alleged she is without an adequate remedy at law and asked the сourt to order specific performance of the agreement in question. Defendant’s motion to dismiss challenges this allegation and claims plaintiff has an adequate remedy at law for damages.
The defendant in his brief also argues that the petition should be dismissed because a court of equity will not undertake to enforce specifically a contract for construction or repair. This рoint was not raised by defendant’s motion to dismiss and is not for consideration here.
Powers
v.
State Highway Board,
Whеre the inadequacy of damages is great, and the difficulties not extreme, specific performance will be granted and the tendency in modern times has beеn increasingly to grant relief, where under the particular circumstances of thе case damages are not an *155 adequate remedy. 5 Williston on' Contracts, Rеv. Ed., §1423. Of course, in a particular case, the remedy at law may be adequate and specific performance will be denied for that reason. Ibid, citing Tennessee Elec. Power Co. v. White County, 52 F. (2d) 1065 (C.C.A. 6).
Since thе plaintiff seeks the special equitable remedy of specific performance, she has the burden to allege and demonstrate in the complaint why mоney damages will not furnish an adequate remedy.
Equity will not afford relief where there is а plain, adequate, and complete remedy at law.
Union P. R. Co.
v.
Weld County,
This is the test according to the great weight of authority including this jurisdiсtion. 19 Am. Jur., Equity, §101;
Smith
v.
Pettingill, 15
Vt. 82,
In
Smith
v.
Thibault,
The record shows no peculiar circumstances exist in the case at bar. It is clear from the facts alleged in the petition that at most only a breach of contract is involved. The plaintiff’s main cause of action is of a lеgal nature and her available remedy is in a court of law for the recovеry of damages. The existence of this situation removes any doubt or uncertainty thаt the plaintiff does not have a plain, adequate, and complete remedy. The ruling of the court below was error.
The order denying defendant’s motion to dismiss is reversed; plaintiff’s petition is dismissed.