John H. Kent, Jr., Trustee in Bankruptcy of C. M. Jones & Company v. Walter E. Heller & Company ( 1965 )

WILLIAM P. SMITH, Circuit Judge.

The sole basis of this action is a warranty deed given by C. M. Jones & Company, a corporation, to secure loans previously advanced and to be advanced by the appellee. The deed was executed on January 8, 1963, but shortly thereafter, and before the financial arrangements were consummated, the said corporation was adjudged bankrupt. The appellant commenced this action in the Superior Court of Pulton County, Georgia, from which it was removed to the United States District Court for the Northern District of Georgia on the petition of the appellee. Thereafter the appellee filed its answer and counterclaim.

The matter came before the court below on the motion of the appellee for judgment on the pleadings, Fed.Rules Civ.Proc. rule 12(c), 28 U.S.C.A., and the motion of the appellant to dismiss the counterclaim. The counterclaim was dismissed on jurisdictional grounds and the motion for judgment on the pleadings was referred to the Referee in Bankruptcy as a Special Master. After hearing, the Special Master filed a report in which he recommended that the motion of the appellee be granted. The court below approved the report and entered an order dismissing the complaint. The present appeal followed.

The appellant challenges as erroneous (1) the dismissal of his complaint; (2) the reference of the matter to a master; and (3) the dismissal of his demand for a trial by jury. The arguments presented in support of this challenge are clearly without merit.

The present action is in substance one to compel specific performance of an alleged agreement to lend money. The general rule is well settled that a court of equity will not decree the specific performance of such contracts in the absence of exceptional circumstances. Annotation 41 A.L.R. 357-362; Corbin on Contracts, § 1152, 5A, at pages 167 and 168. There are no exceptional circumstances in the instant case. We have found no Georgia decision directly in point and the parties to this litigation have cited none. However, it seems reasonable to assume that the law of Georgia is in accord with the general rule. See generally Anderson v. Hilton & Dodge Lumber Company, 121 Ga. 688, 49 S.E. 725. The cases cited by the appellant in support of his position are not apposite.

The fact that the appellant may have misconceived his cause of action, if any, or his remedy, would not have warranted the dismissal of his complaint unless it appeared to a certainty that he was “entitled to no relief under any state of facts which could [have been proved] in support of the claim.” Arthur H. Richland Company v. Harper, 302 F.2d 324, 325 (5th Cir. 1962); Due v. Tallahassee Theaters, Inc., 333 F.2d 630, 631 (5th Cir. 1964). We have considered the complaint in the light of this principle and find that the facts therein alleged, if proved, would not support his claim for relief under any theory of the law.

The reference of this matter to the Referee in Bankruptcy as a Special Master, to which the appellant interposed no objection, was justified under the conditions recited in the Court’s order. Fed. Rules Civ.Proc. rule 53(b). However, even if the reference had been improvident the appellant would not be entitled to a reversal in the absence of a showing of prejudice. Johnson Fare Box Company v. National Rejectors, Inc., 269 F.2d 348, 351 (8th Cir. 1959). There has been no such showing in the instant case.

Any question as to the dismissal of the appellant’s demand for a jury trial is moot and therefore requires no discussion.

The judgment of the court below is affirmed.