Rider v. Gray , 10 Md. 282 ( 1856 )

Tuck, J.,

delivered the opinion of this court’:

We have considered this case with every disposition to grant to the complainants the benefit of the agreement which they seek to have performed. Having, in good faith, paid $10,000 in part execution on their side, it is reasonable and just that the other party should comply on his part, if such relief can be enforced consistently with established rules of equity. But we have not been able to discover such stipulations in the agreement as exempt it from the operation of the principles laid down in the cases of Geiger vs. Green, 4 Gill, 472, and Tyson vs. Watts, 7 Gill, 124. The chief difference between them is, that here there was a substantial price advanced by the complainants, whereas no such consideration was paid by the parties claiming'execution of the contracts in the two cases referred to. That circumstance, however, cannot vary the construction'of the instrument, or supply essentials in which it may be deficient, although it is entitled to weight in the final disposition of the case.

The learned judge below has very clearly shown the similarity between these cases, and indicated the particulars wherein . the contract, now under consideration, is defective in qualities entitling the complainants to a specific performance. And, concurring with him, that it is not such an one as the parties can call upon a court of equity to execute, we are relieved from th'e necessity of inquiring whether the bill was filed within a reasonable time, and contains a sufficient offer, by the appellants, to execute the contract on their part.

The appellees insist, that the decree is erroneous in so far as it makes provision for compensation to the complainants as to the amount paid by them to Gray; and that, if correct in this respect, the appellants did not comply with the condition of the decree by an unqualified submission to its terms. As to the first objection it may be observed, that the defendants have not appealed, and cannot complain here of this provision in the decree, yet the complainants may, if, being entitled to compensation, the decree does not go far enough in that behalf; and, as to the second, that the terms imposed on the complainants did not take away their right of appeal. The bill was dismissed as to the material relief sought, and under their appeal the complainants may claim a reversal or modification of the decree to suit the equity of the case, and if they had filed the original agreement, without any protest whatever, the appeal might have been prosecuted. This part of the decree, we suppose, was not designed'to cut olf the appeal, but merely to secure the defendant, Gray, against another litigation on the same cause of action, after the complainants had accepted compensation in this case.

We must remember that the record is before us on demurrer which admits the case made by the bill, averring that, though true, it constitutes no grount for relief. Carroll vs. Waring, 3 G. & J., 497. 3 Bland, 135. If it be true, as we must, assume, that these parties were prevented from availing of the profits of their agreement by the fraudulent contrivances of the defendant Gray, in transferring large portions or shares of this property to others, in the manner stated in the bill, it would be a great failure of justice to discharge him altogether from performing the contract, without any compensation to them for the large amount advanced; especially as he has not defended the case on the merits, and offered to show that the complainants have suffered, if at all, by their own unreasonable delay, which, we may remark, is the only default imputed to them. The decree allowed him the benefit of the demurrer, as well as of an answer, to be filed, litigating the question of compensation. We think, in such a case, a party should be held to the confession made by his pleading, and that, having received the price agreed to be advanced on the contract, he should comply or refund the money. If, waiving special defences, the defendants had contested the bill on the merits, the case might have been governed by principles applicable to a state of facts, not appearing on this record, showing that the complainants were not entitled to any relief. - ,

We are aware that the power to grant compensation is not exercised in all cases of bills for specific performance; but, that such jurisdiction exists, we have no doubt, though it should be exercised “under special circumstances, and upon peculiar equities; as, for instance, in cases of fraud; or where the party has disabled himself by matters ex post facto, from a specific performance; or where there is no adequate remedy at law.” (2 Story’s Eq., 796, 797, 798, 799,) and it has been granted in cases for the transfer of stock. (Forrest vs. Elwes, 4 Ves., 493. Cud vs. Rutter, 1 Peere. Wms., 572, ‘notes,’) in which class of contracts specific performance is not generally decreed. The mode of ascertaining the compensation is not uniform. In some cases it has been by an issue quantum damnificatus; in others, by reference to the Master. But where, as here; the case is confessed, and no defence set up, we perceive no necessity for an inquiry on the point. The measure ought to be the amount paid with interest. This principle was acted upon in 1 Peere Wms., 572, note, and 4 Ves., 497. In the latter case it was said, by the Master of the Rolls, to be a moderate compensation for a breach of contract, by a party with his eyes open, to give back the money with interest; that a jury could not adopt a better rule. And in the case of Pratt vs. Law, 9 Cranch, 494, the court said: “An issue quantum damnificatus is certainly competent to the court to order in this case; but it is not consistent with the equity practice to order it in any case in which the court can lay hold of a simple, equitable, and precise rule, to ascertain the amount which it ought to decree.5 ’ Accordingly, the party was required to refund, with interest, at the rate of the original purchase, for the quantity of land as to which performance could not be decreed. It is shown by the bill, that the defendants, other than Gray, have paid but a small, if any, portion, of the consideration agreed to be paid by them to Gray, and that he has still a large interest in the property, or in reserved stock of the company. Without deciding how far the interests of the other parties can, under the case made by the pleadings, be made answerable for tbe advance by the complainants to Cray, wre are of opinion that bis entire interest should be held as security for the repayment, with interest from the date of the agreement, and shall remand the cause under the act of 1832, ch. 302, sec. G, that a decree may be passed accordingly: as to the specific performance the prayer of the bill will be denied.

Cause remanded.