24 Or. 396 | Or. | 1893
delivered the opinion of the court:
The specific performance of a building contract will rarely be enforced (Pomeroy, Specific Performance, § 23) upon the theory, as announced by Sir Lord Kenyon, master of the rolls, in Errington v. Ainsley, 2 Brown, Ch. 341, “that if one person would not build, another might be found who would,” and for the reason given by Lord Thurlow in Lucas v. Commerford, 3 Brown, Ch. 166, “that the court could not undertake to superintend the construction of a building.” Such contracts have in some instances been enforced, but they were exceptions to the general rule, and are clearly stated by Mr. Justice Miller in Ross v. U. P. R. R. Co. 1 Woolw. 26, as follows: “ (1) In each case the building was to be done upon the land of
The prayer of the complaint is for the specific performance of the building contract, provided it could be granted. The decree, however, does not fully comply with the prayer, if it had there might have been just reason for its reversal. The record shows that the stone which defendant agreed to furnish is of a peculiar kind, color, quality, and texture, and that no other stone of like character can be procured; that he had furnished enough of such stone to build about two thirds of the walls, and if plaintiff cannot procure a sufficient quantity of the same kind to complete the work, it will be necessary to use other stone and thus destroy the beauty and harmony of its building, or the walls must be taken down and rebuilt with other stone; that defendant is insolvent, and therefore unable to complete his contract, although he has received nearly the whole consideration therefor. Under this state of facts, can a court of equity decree a partial performance, so as to carry out as near as possible the original intent of the parties? The contract was to furnish the stone and other material, and erect the walls. The defendant’s pecuniary condition precludes a specific performance of that part of his contract which required him to furnish other necessary material and do the labor, if such a decree were possible (Pomeroy, Specific Performance § 293); but if he be inca= paciated from performing it in the precise terms, the court will, if it is possible, decree a specific execution according to its substance, by making such variation from unessen
Courts will not generally decree the specific performance of a contract to deliver personal property (Waterman, Specific Performance, § 16), and yet it was held in Hapgood v. Rosenstock, 23 Fed. Rep. 86, that “agreements for the assignment of a patent, and for the delivery of chattels which can be supplied by the vendor alone, are among those which will be specifically enforced.” This decision was approved by the supreme court of Massachusetts in Adams v. Messenger, 147 Mass. 185 (17 N. E. 491). Applying these rules to the case at bar, the defendant has stone which cannot be procured from any other quarry, and plaintiff must use it or the harmony of its building will be marred, and since the defendant cannot be required to do that which his pecuniary condition forbids, he can be negatively required to specifically perform-the contract by compelling him to allow the plaintiff to take the necessary stone to complete the building. It is a fundamental principle that equity will not decree the specific performance of a contract unless the undertaking to be enforced is founded upon a valuable consideration moving from the party in whose behalf the performance is sought: Pomeroy, Specific Performance, § 57. The contract which is sought to be enforced is under seal, and this constitutes primary evidence of a consideration: Hill’s Code, § 753. It is sufficient, however, if some profit is to inure to the promisor, or some detriment to be sustained by the promisee: Waterman, Specific Performance, § 188. The record shows that the contract was awarded to the defendant, and that plaintiff has voluntarily advanced to him a large sum in excess of the amount it would have been compelled to pay under the contract as the work advanced. The defendant having received the payment, ought not now to complain or say there is no consideration for the stone necessary to complete the building. The
The record further shows that defendant has some derricks which he uses at his quarry and at the church building for hoisting stone, which the decree provides the plaintiff may use. The stone cannot he taken from the quarry, loaded upon cars or placed in the building, without the use of these or similar machines; and, since the defendant has them, he is contributing no more than his share when required to permit the use of them by plaintiff. Such use, however, does not mean their destruction, and they must be returned in as good condition as when received, the usual wear thereof excepted. Because the contract has proved unprofitable to the defendant is no reason it should not be enforced as far as practicable. It was fairly entered into, and each party believed it could be completed for the consideration agreed upon, and the court' having granted such relief as was equitable under the circumstances of the case, its decree should be affirmed.
The recorder of conveyances of Benton County is enjoined from receiving for record any conveyance of, or incumbrance upon, the quarry premises. An injunction will not usually lie against a ministerial officer to restrain him from doing that which the law requires as a part of his duty, but since he has made default it must be presumed that he acquiesces in the decree. Affirmed.
