Kempshall v. Stone, 5 Johns. Ch. 193

Kempshall v. Stone

5 Johns. Ch. 193 | New York Court of Chancery | 1821

The Chancellor.

This is a bill for the specific per*195Zbrmance of a contract, for the conveyance of land. The defendant sets up matter of excuse in his answer, and states that he had, on the 6th of May, 1817, which was long after the time he had agreed to convey to the plaintiff, and some time before the filing of the bill, conveyed the land in question to a third person, for a valuable consideration, and without notice to such grantee of the agreement. It is to be inferred from the facts in proof, and particularly from the testimony of Elisha Johnson, that the plaintiff was informed of the fact of this conveyance a considerable time previous to the commencement of the suit, and though the plaintiff may have a just and valid claim to compensation, in damages, for breach of the agreement, yet the question is, whether this Court ought to sustain the bill, under the circumstances of the case, for the purpose of having these damages assessed and awarded. The defendant insists, in his answer, that the plaintiff’s remedy, if any, is at law.

The jurisdiction of the Court, on this point, was discussed in the case of Hatch v. Cobb, (4 Johns. Ch. Rep. 559.) and it was considered, that the Court ought pot, except in very special cases, to sustain a bill merely for the assessment of damages. The more 1 have reflected on the subject, the more strongly do I incline to that opinion. Lord Eldon intimated, in Todd v. Gee, (17 Vesey, 273.) that the whole course of previous authority was against the decision of Lord Kenyon, in Denton v. Stewart ; (1 Cox, 258.) and in that case, Lord Eldon said, the defendant had disabled himself, pendente lite, from performing the agreement; and that fact ma terially distinguishes that case from this. When the defendant had disabled himself before the filing the bill, and the plaintiff knew of that fact before he commenced his suit, (and I consider such knowledge a material circumstance in the] case,) it is then reduced to the case of a bill filed for the so/ie purpose of assessing damages for a breach of contract, jihkh is a matter strictly of legal, and not of equitable ju*196risdiction. The remedy is clear and perfect at law, by an action upon the covenant; and if this Court is to sustain such a bill, I do not see why it might not equally sustain one in every other case sounding in damages, and cognizable at law.

This Court is not the ordinary and appropriate tribunal for such actions.

Bill dismissed without costs.