Kirksey v. Fike, 27 Ala. 383

Kirksey v. Fike

27 Ala. 383 | Ala. | 1855

GrOLDTHWAITE, J.

The bill cannot be sustained under the act of 5th February, 1846, (Acts 1845-6, IT,) as there is no indebtedness to any specific amount charged, nor any affi- ' *386davit that any particular sum is due. — McGown v. Sprague, 23 Ala. 524.

We think, however, it can be sustained for the purpose of specifically enforcing the award. It is true, that if the damages resulting from the failure of Fike to perform were capable of being exactly measured,- and complete redress could be afforded at law, equity would not interfere. — Story’s Equity, (3 ed.) §§ 717a, 718; Savary v. Spence, 13 Ala. 561. In the present case the bill charges the insolvency of Pike ; and we are by no means certain that, under the special circumstances of this case, that fact would not give the complainant the. right to call upon a court of equity to enforce the award specifically. — Deloret v. Rothschild, 1 Sim. & Stu. 590. But, waiving the discussion of this question, we are of opinion, that the jurisdiction-of the court can be sustained upon the award itself. To bar the interference of equity, it is not enough that the party might successfully maintain an action at law upon the award. The question is, could he by a verdict obtain all that it was the object of the award to give him ? If he could not, then it would seem indispensable to justice that he should obtain it by a specific performance. In contracts for the sale of stocks, or goods, the reason why equity will not, in general, enforce them specifically, is, that the goods and stocks have usually a certain marketable value, and the purchaser can, on the breach of the contract, supply himself; and the money he would expend in the purchase of the quantity contracted for, with interest, would be given in the way of damages at law. — Story’s Eq., § III. But where there are special circumstances, operating as an inducement to the contract, which a court of law could not look at in giving damages, the case would be different. Thus, where a ship-carpenter purchased a large quantity of timber near his yard, for the purpose of carrying on his business ; as the market value of such timber, differently situated with respect to his yard, would not fully compensate him, -it would be a proper case for specific performance. — Buxton v. Lister, 3 Atk. 384, 385 ; Adderley v. Dixon, 1 Sim. & Stu. 607. So, here, the complainant was engaged in the business of tanning; he was to receive one-half of the skins in the yard, as well as of the leather, and was also to have the use of one-half of the vats. *387It is fair to presume, that the award had relation to his business — that it contemplated Ms tanning the skins and selling the leather; and although a court of law might give him their value, and allow him for the use of the vats, it could not look to the profits he might have derived from them in the business, or the losses he might sustain from the failure of the other party to perform in specie; and thus he could not, in a court of law, obtain full compensation.

Decree reversed, and cause remanded.