140 Ga. 743 | Ga. | 1913
(After stating the foregoing facts.)
1, 2. The rule that specific performance of a contract (if within the power of 'a party) will be generally decreed, whenever the damages recoverable at law will not be an adequate compensation for the non-performance (Civil Code (1910), § 4633), is a statement of a general rule, but is not absolute and without exception. The codification of the general rule does not change this fact. Indeed the expression that under such circumstances specific performance will “be decreed, generally,” recognizes the existence of circumstances under which it will not be decreed. In 6 Pomeroy’s Equity Jurisprudence (3d ed.), § 757, is quoted a rule established by courts of equity as to certain cases in which specific performance will not be decreed, as follows: “Although the contract is valid, and the defendant is able to do what he has undertaken to do, if, through the want of appropriate means ,and instrumentalities, the court is unable, while pursuing its ordinary modes of administering justice, either to render a decree or to enforce the decree when made, then the remedy will be refused.” Among the illustrations' given by the author of the second class of cases mentioned are contracts for personal services, and those the performance of which would be continuous, and would require protracted supervision and direction. §§ 759, 760.
The general equitable rules on this subject have been recognized by this court. Atlanta & West Point R. Co. v. Speer, 32 Ga. 550 (79 Am. D. 305); Willingham v. Hooven, 74 Ga. 233 (58 Am. R. 435); Civil Code (1910), § 5496. Such cases differ widely from those in which a decree is granted to compel specific performance of a contract to convey property, which can be carried out by one decree, and requires no extended supervision by the court, and no compulsory performance of personal services.
Tested by these rules, the remedy by specific performance could not be granted to the plaintiff, for at least two reasons: (1) Because the remedy could not be given by one decree, but would require supervision, over the conduct of the defendants during the
Hitherto the case of Jarndyce v. Jarndyce, as reported by Dickens in Bleak House, has been considered as the typical illustration of the protracted exercise of jurisdiction over a ease by a court of chancery. But if the superior court, in the exercise of its equitable power, should undertake to decree the specific performance, for nearly a century, of the contract under consideration, and to supervise its proper execution during that time, the celebrated case mentioned would cease to occupy its bad pre-eminence.
The contract provides for the performance of certain personal services which are material and mechanical, and not peculiar or individual in character, and it is sought .to compel specific performance of such services.
3. This was not the sale of property with an easement appur
4. As to the Monticello Telephone Company the evidence is very meagre. It was alleged by the plaintiffs, that, after Pope and Ballard had made the contract with the plaintiffs or those under whom they claimed, they "incorporated their telephone interests in the county of Jasper, and, after incorporating said interests as aforesaid, accepted and transacted business according to the stipulations of said deed chargeable to said C. H. Pope and C. H. Ballard Jr., on the reservations in said deed to petitioners or their assigns.” This allegation is admitted in the answer of the defendants. The charter of the company was not introduced in
5. The evidence tended to show that Pope and Ballard had agreed that the parties with whom they contracted, and their heirs and assigns, should have and be accorded, free of charge, full connection with the exchange and certain other lines; that the plaintiffs had not been, accorded such connection; and that Pope and Ballard and the company which they organized had put it beyond their power to furnish such services, by selling their property to the Southern Bell Telephone. & Telegraph Company. Damages were prayed in case for any reason specific performance could not be granted. We think there was enough in the evidence to require a submission of the case to the jury, in so far as it sought to re-' cover damages against Pope and Ballard and the Monticello Telephone Company. Civil Code (1910), § 4639. It was contended that the allegata and probata did not agree, and that the evidence showed a substantial compliance with the contract. We think there was enough for the jury to pass upon as to whether there was a breach of contract, with damages arising therefrom. It does not follow, in this equitable proceeding, that, if all the plaintiffs may not show the same damage, there can be no recovery, if there has been a breach of the contract. By reason of the court’s announcement that it was useless to go further in the introduction of evidence the plaintiffs’ counsel did not fully develop his ease as to damages.
In accordance with what is said above, the judgment granting a nonsuit is affirmed so far as the Southern Bell Telephone and Telegraph Company is concerned, and is reversed as to Pope and
Judgment affirmed in part and reversed in part.