Sims v. McEwen's Adm'r , 27 Ala. 184 ( 1855 )

GOLDTHWAITE, J.

The principal object of the present suit is, to enforce the specific performance of an agreement made by the complainant with one McEwen, in his lifetime, in relation to certain real estate in the town of Cahaba. The bill purports to. set out this agreement according to its legal effect. The charge is, “ that upon the said purchase by the said James A. McEwen of the said lots and improvements, the said McEwen and your orator was to have and own jointly all the estate purchased as aforesaid by the said McEwen from the said Jackson — that is to say, the said McEwen was to own one half the property, and your orator one half of the said property; your orator to superintend the erection of certain buildings of brick, as mentioned in the deed of mortgage on said lots, to repay to the said McEwen the moneys by him paid out, and the interest thereon, on account of said purchase; and on account of the said buildings, and for all provisions, horses, wagons, and mules furnished by the said McEwen for the benefit of said firm ; and your orator to take charge of the same as a hotel, and have one-half of the profits thereof, and one-half of the rents thereof; and the said proceeds to be applied to the payment of said'debt.”

The bill concedes that the agreement was a verbal one, and seeks to take it out of the effect of the operation of the statute of frauds, by alleging a partial execution on the part of Sims. But it is entirely unnecessary to consider it with reference to this, as there are other grounds which would prevent a court of equity from enforcing it. We are inclined to the opinion, that the agreement as charged is so vague and uncertain, that a specific performance might well be refused upon that ground. But, if this objection does not apply, and if it be conceded that the testimony fully establishes the agreement as charged; yet, as it is proved that Sims is insolvent, the consequence would be, that if he was allowed to claim the benefit of it, there would be no certainty that his portion of the rents, and his share of the profits of the hotel, which are the only sources to which he could look as the means of furnishing his proportion of the purchase money, or repaying the advances, would be sufficient for those purposes. The purchase money has a long time to run; and if the rents are not sufficient to meet it, (and the evidence shows, it is not probable that it can be realized from that source,) then the deficiency, or at least Sims’ proportion of it, must be supplied out of the profits of the hotel business — a business uncertain and precarious in its character. Should this fail, Sims alone could be looked to ; and he, as we have seen, is insolvent. Equity uses a sound discretion in enforcing the specific performance of contracts ; and it could not, consistently with the principles which regulate its action in this branch of its jurisdiction, require one party to perform, when it was uncertain whether the other could fulfil the terms of the contract on his part. — Story s Equity, §§ 750, 751.

It must also be remembered, that the partnership in the hotel business was dissolved by the death of McEwen. There was no stipulation that the business should be continued after, his death; and whatever doubts there may be as to the right in such case to continue the partnership with his representatives after his death, had there been such a stipulation, in the absence of any such stipulation there can be no doubt that the partnership terminated. Suppose the chancellor had said, Go on, retain possession of the premises, keep up the hotel, apply the rents and profits to the discharge of the purchase money and the reduction of the advances made by McEwen ; and after five or six years the debt was not extinguished,— not even reduced, and Sims insolvent. It is no answer to say that such a result would not probably ensue. We cannot say, with any degree of certainty, that it would not, and courts of equity will not enforce contracts from which such consequences might flow. — Story’s Eq., § 750.

In relation to the unsigned writing, which, it is charged, embodies the agreement set up by the bill, and which is proved by the evidence : It does not in any respect strengthen the complainant’s case. If it is the same contract, the same objections which we have already considered apply to it, and it would be impossible to carry it into effect, so that the other party, or those who represent him, could be sure to have the benefit of what he contracted for.

If, however, the contract established by the evidence varies materially from that charged, (and we incline to the opinion that it does so in the present case.) although a specific performance may, if the terms are such as will admit of it, be decreed at the request of the defendant, who in his answer sets up the agreement as proved, instead of compelling him to resort to a cross-bill, as was the old practice (Story’s Eq. PI. § 391, note 1); yet the same rule applies to the plaintiff as in other cases — he must prove the case the bill makes.— Sugden on Vendors, (7th edit.) 217; Higginson v. Clowes, 15 Ves. 525; Lindsey v. Lynch, 2 Sch. & Lef. 1; Forsyth v. Clark, 3 Wend. 637; Deniston v. Little, 2 Sch. & Lef. 11, u.

It is urged, however, that, although the specific perform-anee of the contract cannot be decreed, the court should have allowed the complainant compensation for the labor performed by him in the erection of the building. It is to be observed, that neither the writing nor the contract charged provides for any other labor than the superintendence of the work, and for that reason any other services than those stipulated for by the agreement itself could not be taken into consideration in a suit of this character. In other words, there is no principle which would enable him, in a suit upon a contract in equity, to recover for anything outside of it.

But even as to the services performed by Sims in the superintendence of the building, which properly fell within the contract, we do not think he could properly obtain compensation in the present suit. The general rule is, that in suits of this character, compensation is regarded as an incident only, unless there is a special equity which would authorize the court to take hold of the subject-matter and grant relief (Story’s Eq. § 799, and cases there cited); and it would seem to be very clear, that equity could not take jurisdiction of a bill, for the sole purpose of assessing damages resulting from a breach of contract. Lord Kenyon went a great way in Denton v. Stewart, 1 Cox, 258, in awarding an issue of quantum dmmificatus on a bill for specific performance, where the enforcement of the contract was impossible from the fact that the defendant had sold the house to another; and it has been followed with doubt and reluctance. — Todd v. Gee, 17 Ves. 273. In the first case, however, the defendant had disabled himself pendente lite (Todd v. Gee, supra, note b), so that the court had jurisdiction when the bill was filed. There is, however, no special equity in the present case for the appellant to rest upon. The agreement, not being in writing, may be void at law, so that no action for its breach can be maintained ; but services rendered under it cansbe recovered for, upon the same principle that money paid under it could be recovered. — Allen v. Booker, 2 Stew. 21. There being no special equity, and the appellant not being entitled upon his agreement to a specific performance, no relief could be granted.

Decree affirmed, at the costs of the appellant.