Dimmick v. Stokes , 151 Ala. 150 ( 1907 )

ANDERSON, J.

The bill seeks to specifically enforce a certain contract made between complainant and J. W. Dimmick, and which provides for the employment of Stokes as the general manager of the company. Conceding that such a contract would be binding on the, company, which we need not decide, that clause of same will not support a bill for specific performance. Our court, in defining the class of contracts that can be specifically enforced in equity in the case of Irwin v. Bailey, 72 Ala. 467, says: “There is no class of cases to which 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 a 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 obligatio3i agaitist the other contracting party.’ Pomeroy on Contracts, § 162. Or, as is said in another work: ‘A contract, to he 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 fro3n 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 Redesale, in Lawrence v. Butler, 1 Sch. & 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 disadvantage 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 a.t 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. Perfoamiances by the one party, and its acceptance by the other, 3nay e3ititle 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 consideration 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 á 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.”

There is nothing in the contract in the case at bar so binding on Stokes as would support a special enforcement by the company or J. W. Dimmick against him in case he declined to serve as general manager. Applying the rule to this case, specific performance of the contract, in respect to the only feature thereof of which a breach is claimed, cannot be decreed. Construing the averments of the bill most favorable to the complainant, it merely seeks to reinstate the complainant as general manager of the corporation and to remove Wilson as president, which is not within the powers of a court of equity, in the absence of some special ground of equitable cognizance. It is true the bill avers that it was the opinion of complainant that J. W. Dimmick and Wilson at one time intended to settle the claim of the Mobile & Ohio Railroad at a reduction and make the company pay the claim in full; but it further shows that Dimmick informed complainant that he was not going to charge the company any more than the. claim cost him, with legal interest. Nor does the bill aver that it was the purpose or intention of J. W. Dimmick to charge the company with any more than the claim would cost him. He may have had such an intention at one time, yet may have had no idea of' doing so at the time the bill was filed, or when he informed the complainant that he was going to charge the company only what the claim cost him and legál interest.

The chancellor erred in not sustaining the motion to dismiss the bill for want of equity, and the decree of the chancery court is reversed, and one is here rendered dismissing the bill.

Beversed and rendered.

Tyson, C. J., and Haralson, Simpson, Denson, and McClellan, JJ., concur.