Keener v. Moslander , 171 Ala. 533 ( 1911 )

ANDERSON, J.

It seems that the chancellor proceeded upon the idea, that the bill in question, was not one for the enforcement of a contract, but was to enjoin the obstruction of a passageway through the respondent’s store and which said right of way had been conveyed to “Keener” by' a contract, exhibited to the bill and made a part thereof. Wheth er the bill contains equity or not, we are not called upon to- decide, and it may be conceded, that if the deprivation by the respondent- of this passageway, was a nuisance and would result in damage, which could not be fully compensated for in an action at law, the defendant could prevent the obstruction or closing of same by a suit in equity. There is no theory however, upon which the complainants would be entitled to use the respondent’s store as a passage way to the theatre, unless the right- thereto is derived under and by virtue of the terms of the. contract. The contract does grant the passageway for a certain period, and for certain considerations and upon certain conditions, but it calls for reciprocal duties on the part of Keener, who cannot put the respondent in default, for denying the right of way, without first avering and showing, that he had complied with the conditions enjoined upon him. He who seeks equity must do equity; and he who would put another in default for failing to comply with a contract must show that he has not breached his part of said contract, or else give an excuse for a failure to perform. The complainants must show a rightful claim to use the passageway before they can complain of the obstruction of same, and in order to do this they rely upon the contract. The contract requires certain things of Keener, present and continuous, but the bill avers only a partial performance of these requirements, and which is not sufficient to put the defendant in default for failing to maintain and keep open the passageway through the store. The bill avers a compliance with the contract as to changes and improvements of the property but it does not aver the erection and maintenance of the lights up to and until the closing of the passageway. The grounds of demurrer proceeding upon this theory, notably number 3, were properly sustained. If any one ground was properly sustained this would result in affirming the chancery court as to the ruling on the demurrer, but as there are grounds as to misjoiner, we will discuss them as a guide in the further progress of the case. The bill does not show a joint right of Keener and the Amusement Company to maintain same as Keener shows no personal damage to himself; he is only affected as a stockholder in the corporation and a majority of the court are of the opinion that grounds 13, 14 and 15 of the demurrer are well taken. The 'writer is also of the opinion that grounds 17 and 22 are well taken and that the corporation shows no right to maintain the bill, but the views on this point are not shared in by the other members of the court, a majority thinking that while there is a misjoinder, that the corporation shows a right to maintain the bill.

Pleas 2, 8, 4, 5 and 6, set up, in varying ways and forms, a breach of or non compliance with the contract before the closing of the passageway by the respondent and presented a good defense to the bill of complaint.—Ashe v. Bonifay, 147 Ala. 376; Pomeroy’s Eq. Jurisprudence, vol. 1, §§ 397-9; Sims’ Chancery Practice, 292.

The decree of the chancery court is affirmed.

Affirmed.

Simps'on, Mayfield, Sayre and Somerville, JJ., •concur in the opinion as to the pleas and the ground .01 demurrer testing the failure to aver a compliance with the contract and all except Mayfield;, J., concur as to the misjoinder. Mayfield, J., being of-the opinion that there is no misjoinder. Dowdell, C. J., dissents, being of the opinion that the demurrer is not good, but does not commit himself as to the sufficiency of the pleas. McClellan, J., dissents as to the demurrer and pleas and thinks that the decree should be reversed.