32 S.C. 528 | S.C. | 1890
The opinion of the court was delivered by
This was a proceeding on the equity side of the court to enjoin the enforcement of a judgment, and to have the execution marked “satisfied.”
It seems that James Long recovered a judgment in Spartan-burg against the plaintiffs for $1,093.01, besides interest and costs; that $245 of the judgment had been paid, and that the execution for the remainder was levied “on a lot of land in Gaffney City, with the wood-shop and all tools and machinery; one saw mill and steam engine; one yoke of oxen, one pair of mules, one cart and one wagon.” After the levy was made, the plaintiffs begged indulgence, and went to Union, where the plaintiff, James Long, lived. Some negotiations as to an agreement of compromise took place as to other security for the amount still due on the judgment.
As to what were the terms of the agreement, the parties widely disagree. The plaintiffs allege in their complaint “that James Long agreed that he would take a part of said property so levied
The proceeding was for permission to pay into court $9 short in the notes, that the original judgment against the plaintiffs should be perpetually enjoined, the execution marked “satisfied,”
The case came up on exceptions to this report, and Judge Fraser, among other things, held as follows: “It is not clearly stated in the complaint that Long ever accepted such performance on the part of the plaintiffs as was tendered ; and if it can be held that there is such an allegation in the complaint, the testimony does not sustain it. The plaintiffs may have put themselves in such a position as, in a proper case, would entitle them to a decree for specific performance; but this is not a contract to which that special relief is applied by the Court of Equity. If there has been no acceptance of what was tendered in payment, and this court cannot order the acceptance, then the only foundation on which, in any event, the plaintiffs can rest their case for injunction is wanting. I am not satisfied, however, that the plaintiffs have shown, as they ought to have done by a preponderance of the evidence, the character of the security which, was agreed on — whether only mortgage of personal property or of real estate also; or whether the negotiations among those parties ever terminated in an actual definite agreement at all,” &c.; and.he dismissed the complaint.
From this decree the plaintiffs appeal upon the following grounds of alleged error: “1. In holding that there was no allegation in the eomplant and no proof that the defendant, Long, ever accepted the performance on the part of the plaintiffs of the agreement he had made with them to take the property named in said complaint and said agreement, in full satisfaction and payment of the judgment he then held against them. 2. In not holding that plaintiffs complied fully with their agreement with the defendant, Long, when they turned over to Turner at his instance the property he had agreed to accept in payment of said
Considering this as a proceeding on the equity side of the court, to require James Long to perform specifically his alleged contract to enter “satisfaction” on his judgment against the plaintiffs, several things were necessary before there could be a proper case for the exercise of that peculiar jurisdiction. In the first place, it is only a certain class of contracts, where there is not plain and adequate remedy at law, which equity will require to be specifically performed. Without stopping to inquire whether the contract in contention here was or was not of a class capable of being enforced, it was still necessary that it should have certain elements and incidents, in order to authorize a Court of Equity to compel its performance. The court cannot make a contract for the parties, or even complete an imperfect one, and therefore it is indispensable that there should be a concluded contract “certain and explicit.” As Mr. Pomeroy puts it: “The
Now, taking this as the standard, was there such a contract shown in this case? The alleged contract here was verbal, and the testimony is admitted to be very conflicting. The plaintiffs lived in Spartanburg and Long in Union. After the first preliminary negotiation, the papers, without being examined or approved by Long, were sent to him by mail, and he objected to them. We have read the testimony carefully, and we must say that we agree with the Circuit Judge that Long never did yield his claim that 130 acres of land was to be included in the mortgage, or unqualifiedly accept the papers offered. As we understand it, the minds of the parties never met on the subject, and the contract was never finally “concluded.” Under these circumstances we cannot say that the Circuit Judge committed error in refusing to decree specific performance of a contract not certainly consummated or its terms clearly shown. See Davis v. McDuffie, 18 S. C., 500.
The judgment of this court is, that the judgment of the Circuit Court be affirmed, without prejudice to any legal remedy of the parties as they may be advised.