123 N.Y.S. 733 | N.Y. App. Div. | 1910
Lead Opinion
The plaintiff made a contract with the court house commission of New Orleans, La., for the construction of ,a court house building, and subsequently entered into a contract with the Perth Amboy Terra Cotta Company, whereby the latter agreed to furnish and deliver the ornamental terra cotta for the building for the sum of $80,000. That contract was assigned to and its obligations were assumed by the defendant. By reason of the defendant’s breaches of the contract, the plaintiff was damaged in the sum of $32,000, and at the time of - the commencement of the action the defendant had not completed its contract. The plaintiff has received from the court house commission and paid to the defendant the sum of $25,000 for the terra cotta delivered by the defendant, leaving a balance unpaid on the contract of $55,000. The- plaintiff has completed the building and performed his contract with the court house commission except for the terra cotta yet to be delivered, and has procured an acceptance of the building; but the commission retains the $55,000 for terra cotta work for the reason that the dispute between the parties hereto has not been adjusted, and because, the defendant has filed "a claim or pretended lien against the moneys in their hands to the amount of $55,000. The said commission is a part of the State government of Louisiana, and under the laws of that State is a non-suable body or board. It has declared its intention to retain said sum of $55,000 until the dispute between the parties to this action has been determined by judicial decree or by agreement. The complaint prays that the rights of the .parties in and to the said sum of $55,000 in the hands of said commission be fixed and determined ;. that it be determined that the plaintiff is entitled to. receive the said. $55,000 and to retain therefrom the sum adjudged to be
It might be possible to spell out of this complaint a cause of action at law, but the plaintiff seeks to sustain it only as an action in equity, and we shall, therefore, consider it only from that standpoint. The defendant asserts that a cause of action in equity is not stated for the reason that the plaintiff has an adequate remedy at law and that a court of equity cannot render a decree which will have any practical effect.
It is difficult to see what remedy the plaintiff has at law. He would have an adequate remedy if he could sue the court house commission. The only action at law which he has is an action against the defendant for damages for its breach of contract, but the plaintiff .concedes that he owes the defendant more than the amount of such damages. Such an action, therefore, would result in a judgment against the plaintiff for such excess together with the costs of the action. To be sure such an action would determine the amount of the damages which the plaintiff would have a right to offset against the sum owing the defendant. But no one should be compelled to resort to an action in which costs are sure to be imposed upon him.
It is true that the judgment in this action will not legally be binding upon the said commission; but presumably that commission, being a branch of the State government, will respect a decree determining the rights of the parties. The obligation of the commission to pay is a moral obligation, precisely as its obligation to recognize such a decree would be a moral obligation. The commission is in the position of a stakeholder. It cannot be compelled by legal process to pay, but it recognizes its moral obligation and is willing to pay whenever the dispute between the parties can be resolved. The fact that the fund is not within the jurisdiction of the court is of no consequence. The binding effect of the decree would be no greater if the fund were within the State of New York. The court has jurisdiction of the parties. While it cannot directly reach the fund or by legal process compel the stakeholder to pay it over, it can determine the rights of the parties, and by a judgment in personam compel them to execute assignments either to an officer of the court or to each other, which presumably the commission
The judgment should be affirmed, with costs, with leave to the defendant to withdraw demurrer and. to answer on payment of costs in this court and in the court below. 1
Clarke-and Scott, JJ., concurred; Ingraham, P. J., and Laughlin, J:, dissented. - ‘ '
Dissenting Opinion
(dissenting):
The complaint alleges that the plaintiff and the defendant entered into a contract whereby the defendant was to furnish certain terra cotta to be used in the erection of a court house in Mew Orleans, La., and the plaintiff was to pay to the defendant $80,000. ' The plaintiff .paid the defendant $25,000, leaving a balance due of $55,000, theplaintiff thus conceding that he owes the defendant $55,000. ■ He. then' alleges that the defendant neglected' to perform the contract in that he did not complete the delivery of the terra, cotta within theperiod limited thereby, and has'not up to the time of the commencement of the action delivered all the terra cotta required to complete the building, and other particulars which' it is claimed constituted a breach of' the contract. It is then alleged that by reason of these acts and omissions of the defendant the-plaintiff sustained damage in the sum of $32,000.
It is impossible for me to see under what head of equity jurisprudence there is a cause of action in favor of the plaintiff. There is no fund in. court, or under the control of the court, over which equity could assume jurisdiction and determine its ownership. No accounting is asked for or could be required. The plaintiff has a remedy at law to recover the amount of his damages, if any, sustained by the defendant’s breach of the contract, and while it might be that the defendant could set up a counterclaim to recover the $55,000 due him under the contract, still, even if such a counter? claim was interposed, the parties could settle their differences and such a judgment would follow as the proof justified. No case is cited in which any court of equity has ever entertained such a cause of action. - It is true that equity takes jurisdiction in cases of trust or fraud, but no trust or fraud is alleged. The fact is admitted that the plaintiff is indebted to the defendant; that he has not paid his debt, and because he has not paid his debt the plaintiff cannot claim the money from the State of Louisiana, and, therefore, he comes intd court and asks the court to ascertain how much he owes the defendant. It seems to me to be entirely outside of any juris
I am utterly at a loss- to see any principle upon which any fact here stated gives any jurisdiction to a court of equity to determine any question as between the parties.
I think, therefore, that the judgment should be reversed and the demurrer sustained;
Dissenting Opinion
(dissenting):
I concur in the views expressed by Presiding Justice Ingraham, but I wish to make some further observations.
It is alleged in the complaint that by virtue of the provisions of the contracts between the plaintiff and the defendant and between the plaintiff and the court house commission, the plaintiff is entitled to receive from the court' house commission the moneys payable under the" contract between him and the defendant, and is only obligated to pay the defendant after receiving his pay from the commission. If the alleged lien filed by the defendant with the court house cofnmission be valid, then it should be enforced in Louisiana. If, however, the court house commission be, as alleged, a non-suable body, it is difficult to see upon what theory the lien can be valid. If no valid lien could be filed, and if, as alleged, the plaintiff is entitled to receive the moneys from the commission before he is obligated to pay the defendant, then the action of th,e court house commission in withholding the moneys due to the plaintiff would seem to be arbitrary, and there is no ground for an inference that it will pay the plaintiff after an adjudication between him and the defendant, which will not be binding on the commission. That is one of the risks the plaintiff took in contracting with a non-suable body, and it affords no ground for a court of equity to take jurisdiction of the controversy on the mere allegation of a cause of action at law in favor of the plaintiff and the admission of a cause of action at law in favor of the defendant against the plaintiff. On the allegations of the complaint neither party has an equitable cause of "action against the other or to recover the moneys due from the commission. The complaint is not framed upon the theory that the plaintiff is entitled to have the defendant assign to him its claim on being paid the amount to be found due on the trial,- nor is such relief demanded; and it is unnecessary, therefore, to express an opinion as to whether or not the plaintiff might, on some other theory than that disclosed by his pleading, present a cause of action of which a court of equity would take cognizance.
I, therefore, vote for a reversal.
Judgment affirmed, with costs, with leave to defendant to withdraw demurrer and to answer on payment of costs.
