Eastman v. Reid , 101 Ala. 320 ( 1893 )

HARALSON, J.

I. This bill is one ostensibly for specific performance of a contract, alleged to have been made by defendant, Elwell Eastman, with complainant, Jno. B. Reid.

Without deciding whether the alleged contract is one that can be decreed by a chancery court, to be specifically performed or not, — as to which, it may be said, there are grave doubts, — yet, if the bill was filed and entertained for that purpose, an assessment of damages against defendants could not properly have been made, until it appeared that the defendant, Elwell Eastman, was, or might be unable to perform his contract, and then, not without giving him the opportunity to do so. Damages in such a case should be awarded in the alternative.

It may be accepted as a general and a correct rule, that if a complainant knows, at the time he files his bill, that the contract can not be specifically performed or decreed, the bill will not be sustained for a compensation in damages, for it would be one, then, purely for the recovery of a moneyed demand, of which a court of equity has no jurisdiction. — Waterman on Specific Performance, § 516; 1 Pom Eq. Jur., § 178.

This same author (Waterman) says : “Where the defendant deprives himself of the power to perform the contract specifically during the pendency of a suit to compel such performance, a court of equity may retain the suit, and award to the complainant compensation in damages, to prevent a multiplicity of suits. And such a decree will be proper, where the defendant has deprived himself of the power to perform the contract, prior to the filing of the bill, but without the knowledge of complainant, or, even when the defendant never had the power to perform, if the complainant filed his bill in good faith, supposing, when he brought the suit, that specific performance of the contract could be obtained. The rule assumes, of course, a sufficient contract and performance by the plaintiff, and every other element requisite on his part, to the cognizance of his case in chancery ; and that, the special relief sought is defeated, not by any defense or counter equities, but simply because an order therefor would be fruitless from the inability of the defendant to comply. * * * Belief must then be given by a decree in the alternative, awarding damages unless the defendant should secure the specific performance sought. In many cases, this would be an effective and proper course, inasmuch as the defendant, although not having himself, at the time, the title or capacity requisite to such performance, might be able to procure it otherwise.” — Waterman on Spec. Perf., § 517.

II. Nor was it proper or consistent with equity practice in such a case, to render two separate decrees against the defendants, one in favor of each complainant, for one-half of the total damages assessed against both. The decrees of a chancery court are very numerous and elastic. Speaking on this subject, Mr. Pomeroy says: “It is absolutely impossible to enumerate all the special kinds of relief which may be granted, or to place any bounds to the power of courts in shaping the relief in accordance with the circumstances of particular cases. * * * The ordinary remedies, however, which are administered by equitj', those which are appropriate to the circumstances and relations most frequently arising, are well ascertained and clearly defined.” — 1 Pom. Eq. PL,§ 170.

It is not pretended that complainant, McCants, had any contract -with the defendant, Eastman, for which he alone could sue him, either for a specific performance, or for damages. Beid simply endorsed on Eastman’s proposal for a contract with him, a proposition to McCants, — 'Tf you will aid in this matter, I will divide equally with you.” This was done, so far as appears, without the knowledge or consent of Eastman.- If it were conceded that under the allegations of the bill, McCants, having aided Beid to get up the stock, was a proper party plaintiff, still that did not subject defendants to a double moneyed decree. AVith all the elasticity and adaptability of chancery decrees to meet variant reliefs, there were no peculiar equitable considerations in the case, to make such a decree as vras rendered proper. If free from any other objection, the decree should have been a joint one, in favor of complainants.

III. But, on what pi'inciple was it, that this double moneyed judgment was rendered against Mrs. Eastman? It is not averred that she had any thing to do with Mr. Eastman and Ms proposed contract with complainant, Reid, or that she ever knew about it. Nor is it averred or shown, that she had any connection with the fraud by which it is alleged her husband sought to deprive complainants of their stock. The only allegation which connects her with the case at all is, that said Eastman “has placed all of the stock of the said Benton Iron and Land Company which he owns in the name of his wife, Mary E. Eastman, as appears on the books of the company, but [he] still owns and controls said stock and has the larger part thereof in Ms possession.” The only excuse for making her a party was, that in the event the stock was found to be in her name on the books of the company, as alleged, and complainants presented a case for relief, the court might, by its decree, divest the title out of her, and invest it in complainants, to the extent of their rights, or order her to transfer it to complainants, but, never to expose her to an absolute and unconditional moneyed judgment on such an allegation as is made concerning her. In allowing the decree pro confesso to be taken against her, whan did she admit? Nothing to show that she knowingly had any responsible connection with this matter whatever. Surely a judgment should not have been rendered against her, on an allegation of fraud committed by her husband, with which it is not alleged she had any knowledge or connection.

IV. It may be, that under the 'authorities, Mamie L. could be taken and held to be identical with Mary E. Eastman, but to avoid any question as to the identity of the two names, it will be safer to eliminate that question from the case by an amendment.

Reversed and remanded.