Tombigbee Valley R. R. v. Fairford Lumber Co.

47 So. 88 | Ala. | 1908

ANDERSON, J.

This court, in. a very full discussion of the doctrine of specific performance of contracts, speaking through Brickell, O. J., in the case of Irwin v. Bailey, 72 Ala. 467, says: “The principles upon which a court of equity exercises its peculiar jurisdiction to enforce the specific performance of contract are well known, and have been of frequent consideration and application in the past decisions of this court. The court, will not intervene, unless the contract is fair, just, reasonable, and equal in all its terms and parts, is is founded upon an adequate consideration, and its specific execution is free from hardship and oppressoin. If, on either of these points, there be a well-founded objection, the court abstains from interference, leaving the party complaining of a violation of the contract to the remedies afforded him in courts of law. In the exercise of the jurisdiction, the court is invested with a discretion — not arbitrary or capricious, but a sound, judicial discretion, molding and tempering its action, or the refusal to act, in view of the circumstances of the particular case, and from them determining whether the conscience of the party charged with a violation of the contract is so affected that moral and equitable duty compel him to a strict performance, rather than to a payment of such damages as a court of law would award against him. A primary duty of the court is to examine the contract, not merely as a court of law would examine it, to ascertain what the parties have in terms expressed, but what in truth Avas the real intention of the parties, and to carry that intention into effect, or leave the parties to their legal remedies. — Hipwell v. Knight, 1 Y. & C. Exch. 411. There is no class of cases, to Avhich the jurisdiction of a court of equity extends, that the maxim ‘he who seeks equity must do equity’ is more rigidly applied. Hence it results that the contract or agreement which the court is asked to enforce specifically must not only be certain, fair, just, reasonable, and equal in all its parts and terms, must, not be merely voluntary, but founded upon a. valuable and adequate consideration, and it must be mutual in its operation and effect. As is said by Prof. Pomeroy: "The contract must be of such nature that both a right arises from its terms in favor of either party against the other, while the corresponding obligation rests upon each towards the other, and also that either party is entitled to the equitable remedy of a specific execution of such obligation against the other contracting party.’ — Pomeroy on Contracts, § 162. Or as is said in another work: ‘A contract, to be specifically enforced by the court, must be mutual; that is to say, such that it might, at the time it was entered into, have been enforced by either of the parties against the other of them. Whenever, therefore, whether from personal incapacity, the nature of the contract, or- any other cause, the contract is incapable of being enforced against one party, that party is equally incapable of enforcing it against the other, though its execution in the latter way might in itself be free from the difficulty attending the execution in the former.’ — Fry on Specific Performance, § 286. ‘I have no conception,’ said Lord Redesdale, in Lawrence v. Butler, 1 Sell. & Lef. 13, That a court of equity will decree a specific performance, except when both parties have a right by the agreement to compel a specific performance, according to the advantage which might be supposed to have been derived from it.’ Were it otherwise, a specific performance might be decreed when, if it was disadvantageous to the party complaining, he could not, at the instance of the other party, be compelled to perform. There are some cases in which a want of mutuality in the contract at the time it was entered into is not regarded as an insuperable obstacle to specific performance. These rest upon their own peculiar circumstances and facts. Performance by the one party, and-its acceptance by the other, may entitle the party performing to the assistance of the court, though he could not have been compelled to perform. The contract of an infant is voidable; but, after arriving at age, he may affirm and enforce it, notwithstanding the original want of mutuality. The class of cases to which we refer ■ are exceptions to the general principle, and involve considerations which justify the court in the specific performance of the contract. But, when the contract, in -its nature and character and according to the intention of the parties, involves and imposes a reciprocity of obligation and duty, there is no authority for enforcing specific performance of it in favor of a party who on his part has not performed, cannot be compelled to perform, and is not capable of performing. — Cooper v. Pena, 21 Cal. 404.” The foregoing doctrine was reaffirmed in the case of Electric Co. v. Mobile, 109 Ala. 195, 19 South. 721, 55 Am. St. Rep. 927.

Applying the rule to the case at bar, the question arises, could a court of equity have required a specific performance on the part of Flower & Hagerman of the contract as entered into Avith Cochrane, the predecessor of this respondent? We think not. The contract required of them the continuous operation of the mill, so long- as they OAvned it (not exceeding, of course, the period of the contract), the granting of such a right of Avay as Avas required by the uoav company for the extension of its main line, the furnishing of roadbed and right of way and the laying of the ties ready for rails upon spurs to be built to and through lands whereon timber has been cut. “Contracts AAdiich by their terms stipulate for a succession of acts, AAdiose performance cannot he consummated by one transaction, hut aaúII he continuous, and require protracted supervision and direction, with the exercise of special knowledge, skill, or judgment in such oversight, '* * are not, as a rule, specifically enforced.” — Pomeroy on Specific Performance of Contracts, § 312, and cases cited in note 5; Waterman on Specific Performance of Contracts, § 49; Electric Co. v. Mobile, supra. So, too, must the contract be such a one as can he enforced in its entirety. A partial enforcement by piecemeal will not suffice. A court of equity would find it quite difficult to require and supervise the operating of a big sawmill for a considerable period, together with the other things covenanted to be done by the complainant’s predecessors, Flower & Hagermon. It is true, under the terms of the contract, the successors are not compelled to operate the mill, and that it was only to be operated while owned by Flower & Hagerman, so long as they owned it; but we must deal with the contract upon the -status existing at the time of its execution, and not according to subsequent conditions. As said above, there are some cases in which a want of mutuality in the contract at the time it was entered into is not regarded as an insuperable obstacle to specific performance; but this case is not within the exception, as it requires and involves and imposes a reciprocity of obligation and duty. Therefore, dealing with the contract as entered into between the parties, it was incapable of being specifically enforced in a court of equity as against Flower & Hagerman, and it would be inequitable to permit their successors to require specific performance of the respondent, even if their undertaking is susceptible of specific performance in a court of chancery, which we need not decide.

Moreover, while the original contract did not require the operation of the mill by the successors of Flower & Hagerman, yet this complainant was required, under the terms of the conveyance through which it claims any rights in the premises, to perform all the terms of paragraph 2 of the original contract, except as to the cancellation of certain bonds, and which included the operation of the mill and doing of other things hertofore enumerated. The cases of Evans v. Cincinnati R. R. Co., 78 Ala. 341; Baxley v. Tallassee Co., 128 Ala. 183, 29 South. 451, and Davis v. Williams, 121 Ala. 542, 25 South. 704, cited by counsel for complainant, refer to actions at law for damages for the breach of contracts. Of course, there are many contracts not specifically enforceable in equity which will afford an action at law for the breach of same. Nor do we consider the case of South & North R. R. Co. v. Highland Co., 98 Ala. 400, 13 South. 682, 39 Am. St. Rep. 74, which is an equity case, opposed to the opinion in the case at bar. The chancellor erred in not sustaining the motion to dismiss the bill for want of equity, and the decree of the chan-crey court is reversed, and one is here rendered dismissing the bill.

Reversed and rendered.

Tyson, C. J., and Dowdell and McClellan, JJ., concur.