Rudolf v. Covell

| Iowa | Apr 9, 1858

Woodward, J.

Cases for the specific performance of contracts, are said to lie in the discretion of the court of equity.

The following passage ■ fronr a case before the court of appeals in Maryland, (Tyson v. Watts, 7 Gill, 129,) expresses this doctrine, briefly and substantially: “ This is a bill for the specific performance of an agreement; and it is, therefore, an application to the sound discretion of the court, which withholds or grants relief, according to the circumstances of each particular case, as it presents itself. The discretion, it is true, is not arbitrary and capricious, but sound and reasonable, adapting itself, and being governed, as far as practicable, by general rules and principles, when those rules and principles are not in conflict with the justice of the case between the parties. There would seem to be no doubt that, when a court of chancery is called upon to. exert its extraordinary jurisdiction, in compelling the specific performance of contracts, though it is not entirely exempt from those general principles of equity which have been found, by experience, best and most surely to advance the aims and ends of justice, there is, nevertheless, more freedom in its action, than when exercising its ordinary powers.”

Should the present cause be disposed of by the discretion alone of the chancellor, it would be easily determined adversely to the prayer of the petitioner. But' although this may be within the lawful power of the court, yet it is always desirable to make the least draft, which is possible, upon this undefined power of discretion, and to determine causes upon established rules; and, we think, this cause may be decided upon the latter ground.

In order to prevail, the complainant must show that Zinck gave Grimm authority to sell the lot, and to make a contract which, should be binding on the.principal; and he must show that the agent did make such a contract of sale, and that it did not fall under the operation of the statute of frauds. In this case, the property has advanced in value some five or six-fold, since the making of the supposed contract, and the plaintiff seeks to enforce the contract of one now dead, against his administrator. Under these circumstances, and having regard to the rights of the possible heirs at law, it would seem that the court would be justified in looking at the case with even a more careful eye, than in a case where the vendor was living.

In respect to some of the facts having an important bearing in the case, there is a great degree of uncertainty and indefiniteness. Thus, in relation to the death of Zinck, the vendor, we are left in entire ignorance, except so far as mere rumor lends its aid. If he died before the contract was made, the authority of Grimm had ceased.

The bill says the contract was made in February, 1851, and the proof places it in.June, 1851. The bill is quite indefinite as to the time Zinck left Dubuque, but rather implies that it was a short time before the contract was made by Grimm; whilst the proof places it in the year 1848 or 1849, and facts are proved which render this probable. There is no attempt to show, either the period of his leaving, or that of his death. The only evidence bearing upon this question, is incidental. It would seem that he went to California after he left Dubuque, and the report was that he died at St. Louis in 1852, after his return from California. There is no proof, in fact, that he is dead, other than the grant of administration. There is none at all of the time of that event. For aught that appears to the court, he may as probably have died before, as after the making of the contract between Grimm and Rudolph.

With regard to the identity of the lot, there is also a very considerable degree of obscurity. The complainant claims that numbered two hundred and sixty-nine. Several of the witnesses speak of a lot “ on the corner of Eleventh and Olay streets,” and by other similar descriptions, ■without sufficiently connecting these with the above number. The proof might possibly satisfy some minds, but, at the best, it is not satisfactory, and does not give the mind that assurance of right, which ought to exist. And we must further say, that there is a vagueness — an indefiniteness, and want of certainty — concerning the authority given to Grimm, and the contract itself. The testimony is general and very brief, and does not possess the desired definiteness.

In other respects, also, the evidence is loose and unsatisfying. Thus, from the deposition of Grimm himself, it is quite uncertain when Zinclc left Dubuque and went to St. Louis, for Grimm gave his testimony in July, 1854, and says Zinck left about three years before, and that he, (Grimm) paid the taxes two years after Zinck left, and speaks of Zinck’s return; whilst in the same deposition, he says the contract was made in the spring of 1581; that Rudolph paid all the taxes after the contract was entered into; and that Zinck never returned after that point of time. Such being the state of the case, it appears to us that the uncertainty and obscurity resting upon it, forbid a decree for a specific performance.

Both the power to sell, and the contract of -sale, lying in parol entirely, they must be made out clearly, in order to warrant the court in a decree, giving the property to the complainant, and those things must be shown before we reach the other questions: namely, whether the contract was good under the statute of frauds; and whether there was a part-payment,, or whether the acts shown amount to a possession. Another question made is this: admitting that Zinck gave authority to sell, whether it was a power to make a conclusive and binding contract, or whether it was to be subject to his confirmation or rejection. "Without entering upon these points, we are of the opinion, that the petitioner fails to show such facts as will authorize the court in rendering a decision in his favor. 2 Sandf. Oh., 117. It should be remarked before closing, that possession •under the contract, is not averred, nor is it made an issue by any of the pleadings, but the case has been treated as if this were one of the issues made.

The decree of the district court is affirmed.