Dilburn v. Youngblood & Co. , 85 Ala. 449 ( 1888 )

CLOPTON, J.-

Appellant makes application by the bill for specific performance of a contract in relation to the transfer of a note and mortgage. Ordinarily, a court of equity will not decree specific performance of a contract in reference to personal property, unless it clearly appears that, on account of the nature of the contract, or the character of the subject-matter, or for other causes, a court of law is incapable of affording full and adequate compensation in damages for a breach of the contract. — Savery v. Spence, 13 Ala. 561; Powell v. Central Plank-road Co., 24 Ala. 441. The note to which the contract related, was for the sum of two hundred and seventy-five dollars, and was made by Peter Lee and complainant, as his surety, January 19, 1884, payable October 15th of the same year. As security for the note, Lee executed a mortgage on personal property; and at the same time defendants gave complainant an instrument in writing, by which, in consideration of his becoming surety for Lee, they promised, if complainant paid, or caused to be paid, the sum of one hundred and sixty-five dollars, on the day of the maturity of. the note, or within a reasonable time thereafter, to transfer the note and mortgage to him, with all rights and remedies they might have in law or equity. The bill does not allege the insolvency of defendants, nor show any injury which can not be fully compensated in damages in a suit at law for a breach of the contract.

Performance, or an offer to perform, or a sufficient excuse for failure, of all material acts required by the contract of the party complaining, is essential to obtaining a decree for specific performance by the other party. It appears from the evidence that Lee turned over to complainant several bales of cotton, with which to pay the note. This cotton he sold in October and November, 1884, the proceeds of the sale amounting to more than the sum agreed to be paid defendants for the transfer of the note.. He did not pay, nor offer to pay defendants, until after they had sued out, in January thereafter, a writ of attachment against Lee, and caused it to be levied on his personal property. Complainant, after the attachment was levied, said to defendants, that he wanted to pay the amount; to which they replied, they were willing to receive it, if he would pay the costs of the attachment proceedings, which had been necessitated by his failure to pay previously. This, complainant refused to do. Afterwards, about March, 1885, defendants took and accepted from Lee, in satisfaction of the note and mortgage, the personal property levied on, at an agreed valuation, which is shown not to exceed a fair value of the property. After this settlement was made, complainant tendered to defendants one hundred and seventy-one dollars, which was the first tender made. It is shown by the witness who wrote the papers, that the words “a reasonable time thereafter,” were inserted, in order to allow complainant time in which to sell cotton, and procure the money to make the payment. Having realized enough, money with which to make the payment, by the middle of November, 1884, it was the duty of complainant to apply it to that purpose, without unreasonable delay. Under the circumstances, a mere offer to pay in January, after the attachment was sued out, is not within a reasonable time.

The bill was filed August 24, 1885. At the time of the filing of the bill, the note and mortgage had been satisfied, and a decree for specific performance would be nugatory. Hence, the bill prays, that the defendant be required to account to complainant for the property received from Lee; and is thus resolved into a naked suit in equity to recover damages for a breach of the contract. Had the complainant paid the one hundred and sixty-five dollars, and received a transfer of the note and mortgage, being a surety, he could not have required from his principal more than repayment of the amount paid by him. The principal having satisfied the debt for which complainant was surety, the latter was released from all liability, and has suffered no damage in consequence of the failure to obtain a transfer of the note and mortgage.

Neither the bill, nor the evidence, makes a case for the interposition of a court of equity.

Affirmed.