| Va. | Oct 12, 1882
delivered the opinion of the court.
These causes are separate bills brought by the appellant for the specific performance of contracts, and were heard together.
In such cases it is held that the plaintiff is not entitled ex debito justitice to a decree of specific performance. The question whether there shall be a decree of specific performance, or the party be left to his remedy at law, is addressed to the sound discretion of a court of equity. It is not an arbitrary discretion. But in a proper case, it is as much of course in a court of equity to decree specific performance of the contract as it is for a court of law to give damages for the breach of it. But the agreement sought to be enforced must not only be clearly proved; “it must be
The bill in the first named case alleges that in 1871 the plaintiff entered into a contract with John B. C. Lewis for the right of way for its road through his farm, and also through the farm's of his brothers, George W. Lewis and H. L. D. Lewis, for whom he was acting, and sets out the terms of the contract, and avers that said contract was reduced to writing, and delivered to it, and was accepted by it, as will appear from a certified transcript of the record of its board of directors, which is made an exhibit.
The answer of John B. C. Lewis positively and responsively denies the allegation of the bill. He says it is not true that the said railroad company contracted with this respondent for the right of way through his farm and through the farms of his brothers, George W. Lewis and H. L. D. Lewis. The respondent then denies that any contract was ever made by which he agreed to grant to said company the right of way through his said farm on the terms set out in the bill which he recites in his negation, in the words in which the allegation is made.
Further answering, he denies that any such contract was reduced to writing and delivered to complainant and accepted by it, and insists that the certified transcript from the record of the company’s board of directors, made an exhibit with its bill, is not evidence against him, and asks that it be disregarded and stricken from the record.
He further “denies, specifically and in detail, each and all the averments of the bill concerning said alleged contract ; and he further denies that any contract, written or
He further “ denies that he ever did contract, or had power to contract, with complainant, to grant or convey the right of way through the lands of his brothers, George W. Lewis, H. L. D. Lewis and E. P. C. Lewis, or either of them.”
The deposition of J. E. C. Lewis was taken, in behalf of the defendants in the cause, one of whom was his wife, and was excepted to by the plaintiff upon the ground that he was an incompetent witness to testify in the cause, because of the interest of his wife in the matters in controversy. The court sustained the exception and excluded his testimony. We are of opinion that there is no error in that ruling of the court. But that he is a competent witness in the other suit in which his wife is not a party, and has no interest, and that his deposition may be read in that case, it having been agreed by the counsel that depositions taken in this case might be read in the other—so far, of course, as the evidence was legal and applicable.
In the decision of this cause, we cannot therefore consider the testimony of J. E. C. Lewis. We do not propose, nor do we deem it necessary, to go into a critical examination of the other testimony; we have examined it with care, and we regard it as insufficient in the face of the denial of the answer to establish the contract alleged, and which is sought to be enforced. The evidence is too vague/ uncertain and contradictory, upon which to found a decree in chancery for the specific performance of a contract. And this court is of opinion that there is no error in the decree of the circuit court in this cause and that the same be affirmed.
Decbee aeeibmed.