Woodward v. Harris

2 Barb. 439 | N.Y. Sup. Ct. | 1848

Edmonds, J.

I am very much inclined to consider this as one of that class of cases where equity would interfere to compel a specific performance, although it is a personal contract 5 because it would be so difficult, if not impossible, to measure the damages for a breach of it. But there are some features of this case peculiar to itself, which render it very questionable whether a specific performance would, in Chis instance, be enforced. In the first place, there is a want of mutuality, which is always necessary to warrant this court’s entertaining jurisdiction. Harris alone, it seems, is bound by the contract. He has agreed with Woodward, that he would sell the contract made with government, to him, but Woodward has no where

agreed that he Would buy. It has. been left optional with him whether he woiild or not. This is a sufficient and well established ground of objection to entertaining a bill for specific performance. (Benedict v. Lynch, 1 John. Ch. Rep. 373. 2 Story’s Eq. Jur. § 723.) Courts of equity act upon the ground that the remedy, if it exists at all, ought to be mutual and reciprocal as well for the vendor as for the purchaser.

The next objection is that a specific performance by Harris has been rendered impracticable by his assignment to Aspinwall without notice. Mr. Aspinwall avers that, until the 19th of November; he had never heard of any agreement between Harris and Woodward. Before that time, and on the 11th or 12th of November, an agreement had been made between H. and A. On the 15th, they went to Washington and concluded with the navy department thé terms of the contract for carrying the mail. On the 16th, he and Edgar Howland gave their bond to the government, in the penalty of $100,000, to perform the contract; and on the same day H. made an absolute assignment of the contract to him, and delivered it to him ; the execution and delivery of such assignment being exacted by Aspinwall as a condition precedent to the delivery of the bond to the navy .department. On thé same day the contract between the secretary of the navy and Harris was executed and delivered to Aspinwall, the secretary expressing himself satisfied with the security. Every thing therefore was complete, binding the respective parties to each other, and conveying to A. all Harris’ interest in the contract, three days before he heard of the contract between Harris and W’oodward. To such a state of things the rule applies, that wherévér it has become impossible, from subsequent events, for the party to perform his contract, as by a subsequent sale of the subject matter of the contract without notice, courts of equity will not decree a specific performance. (2 Story’s Eq. Jur. § 714. Greenaway v. Adams, 12 Ves. 395.) In such a case; the bill, it seems, may be retained for the purpose of awarding compensation. This is questioned in England; by Lord Cottenhani; in 5 Myl. Sp Or. 1, but seems to have been well settled in our court of errors in Woodcock v. Bennett, (1 Cowen, 711.)

I have not overlooked the considerations suggested by the plaintiff's counsel, going to show that the contract between A. and H. was not in fact completed till after the 19th, viz. that the contract with the department had been sent to New-York to obtain the approval of the district attorney as to the competency of the security, and was then in A.’s hands for that purpose ; and the fact that the agreement between them as to the particular manner in which the contract should be executed by them had not then been signed. The most that could be said of this is, that it rendered it doubtful whether A. had in fact taken an assignment without notice of W.'s claim. But that doubt is not enough to warrant the interposition of this court by a preliminary injunction. This power ought to be exercised with extreme caution and applied only in very clear cases. (2 Story’s Eq. Pl. § 959, b. Brown v. Newall, 2 Mylne & Craig, 570.) The writ will not be awarded in doubtful cases, or new ones not coming within well established principles. (Bonaparte v. Camden & Amboy R. R. Co., 1 Bald. Cir. C. Rep. 218.) Yet I do not consider that even this doubt is well founded. The contract with the department had been entrusted with Mr. Aspinwall, not for the purpose of giving him any option whether it should be operative or not, but merely to procure a certificate as to the sureties; and if, on being notified of Woodward’s claim, he had attempted to withhold it from the secretary, he could have been compelled to surrender it. Therefore whether any farther particular agreement had been made or not between H. and A. as to the manner in which they should conduct the adventure, was entirely immaterial in respect to the validity of the assignment made on the 16th of November. That assignment was absolute, and from that day Aspinwall’s interest became vested, and his title perfect.

There is, however, still another reason why there ought to be some hesitation on the part of this court in interfering on the complaint of Woodward. The bids were made in June, the lowest being Harris’ for $199,000, and the next being Woodward’s for $250,000 a year. In July, Harris agreed to assign the contract, if he got it, to Woodward, on W.’s furnishing the security. On the 4th of November, Woodward claimed from the department the acceptance of his bid, because of Harris’ having declined or delayed entering into a contract. Is there any doubt, if the department had listened favorably to his claim, that he would have insisted that his contract with Harris was entirely at an end 1 And how can he build his suit here upon the very opposite of that 1 It is true, there may be a satisfactory explanation of this, but that explanation is not yet before the court; and the case, therefore, in this regard, stands in too doubtful a posture to justify an injunction.

For these reasons, the order to show cause must be discharged.