Eckstein v. Downing , 64 N.H. 248 ( 1886 )

The plaintiff agreed to sell to the defendant his yacht, claimed and admitted for the purpose of the question of jurisdiction to be worth $6,000, for sixty shares of stock in the Abbot-Downing Company found to be worth $3,600. This executory contract, entered into August 14, 1884, was rescinded six days afterwards by the defendant's guardian. The plaintiff seeks to enforce and the defendant resists specific performance of the contract. Equity does not ordinarily interpose to enforce specific performance of a contract respecting personal property unless an adequate remedy at law cannot be had. Hill v. Bank, 44 N.H. 567, 568. If in this case the contract had been that the defendant should pay for the yacht in money, the plaintiff could not maintain a bill for specific performance without showing that his remedy by an action at law was inadequate. Noyes v. Marsh, 123 Mass. 286, and cases cited. His measure of damages would be the difference between the value of the property at the time of the breach of the contract, and the price fixed by the contract. We do not see that the result is different because payment was stipulated to be made in shares of a corporation. If the value of the stock be regarded as the contract price of the yacht, the question still is, How much are the plaintiff's damages by reason of the defendant's refusal to purchase his yacht?

It is not shown that an award of damages for the breach of the contract will not do exact justice between the parties. The general rule in regard to contracts for the sale of stocks may be stated to be, that specific performance will not be decreed, because such contracts are capable of exact compensation in damages. 2 Story Eq. Jur., s. 724. This rule is especially true of contracts for the sale of government stocks or bonds, which are always readily purchasable at their market value. Specific performance of contracts for the sale of stocks in purely private corporations, such as banking, mining, manufacturing, and commercial companies, has sometimes been decreed upon the ground that damages at law do not furnish an adequate remedy for the breach. In Cushman v. Thayer Manufacturing Company, 76 N.Y. 368, stress was put upon the fact that the controlling motive of the purchaser may have been that the real worth of the stock may consist in the prospective rise which he anticipates might follow, or that his desire was to hold the stock as a premanent [permanent] investment. See, also, White v. Schuyler, 1 Abb. Pr. (N.S.) 300. The criterion whether there is an adequate remedy at law has been said to depend upon the fact of the purchasability in the market of the stock contracted for. 22 Am. Law Reg. (N.S.) 489, 500. The authorities, however, are conflicting. In Foll's Appeal, 91 Pa. St. 434, decided in 1879, Payson, J., said, — "I know of no instance in this state in which a court of equity has decreed specific performance of a sale of stock." In Todd v. Taft, 7 Allen 371, the point that the plaintiff had an adequate remedy at law was not raised. In Cud v. Rutter, 1 P. Wms. 570, a decree for specific performance of a contract to deliver South Sea stock was denied, because the plaintiff might buy of any other person and be no more out of pocket than if the stock were delivered to him according to the agreement. In Cappur v. Harris, Bunb. 135, the plaintiff was left to his remedy at law. But in Nutbrown v. Thornton, 10 Ves. 161, and in Mason v. Armitage, 13 Ves. 37, specific performance was decreed. In Ross v. Union Pacific Railway Company, Woolw. 26, Miller, J., said he saw no sound reason for any distinction between shares of the defendant company and government stocks, and that the rule in regard to them should be the same. In Ashe v. Johnson, 2 Jones Eq. 119, specific performance was decreed. And see 2 Story Eq. Jur. (13th ed.), s. 767 a, n. (a).

There are many other cases bearing more or less directly upon the question, of which it is unnecessary to speak in detail. We do not hold that specific performance of a contract for the sale of stock or shares in a manufacturing corporation cannot be decreed under any circumstances, but this case comes within the general rule that equity jurisdiction for enforcing such performance is based on a want of adequate remedy at law. The stock of the Abbot-Downing Company is not commonly offered for sale, and actual sales are very rare. The plaintiff may be unable to purchase an equal number of shares for the same price. But there is no evidence tending to show that he had any wish, or reason for wishing, to become the owner of the Abbot-Downing Company stock rather than any other stock of equal pecuniary value, or that he would not have agreed to take any other stock of equal value in payment of the yacht, or a sum of money equal to that value. 3 Pars. Cont. 370, 371.

The plaintiff contends that the defendant can maintain a bill for specific performance of the contract in regard to the sale of the yacht, and may therefore be compelled specifically to perform the same contract; in other words, he invokes the aid of the rule of mutuality of remedy. It is said in some of the textbooks that equity interferes to decree specific performance of a contract where the remedy is mutual. 2 Story Eq Jur., s. 723; Pomeroy Spec. Perf., s. 165; Adams Eq. 80; Batten Spec. Perf. 66. Parsons says the meaning of the rule is not very clear, nor is it easy to make a satisfactory classification of the cases in which it has been announced as the ground of decision. 3 Pars. Cont. (6th ed.) 409, n. (t). It has been held in England that an infant cannot maintain a suit for specific performance of a contract, because the remedy is not mutual. Flight v. Bolland, 4 Russ. 298. The same reason may not exist in this state. Hall v. Butterfield, 59 N.H. 354; Bartlett v. Bailey, 59 N.H. 408. So where the plaintiff is insolvent, or is a servant employed to perform services of trust, it has been held he cannot maintain such a bill. 3 Pars. Cont. 409, n. (t). But these are cases where the remedy is not mutual, because the parties do not stand on an equal footing.

Equity will decree performance of a contract for land, because the damages recoverable at law may not be a complete remedy for the purchaser, to whom the land may have a peculiar and special value[.] 2 Story Eq. Jur., s. 717. And the cases are numerous where the vendor has maintained a bill for the specific performance of a contract for land, and to compel payment of the purchase-money. Ewins v. Gordon, 49 N.H. 444. Equity compels specific performance in favor of the vendor, not on the ground of mutuality of remedy, but because compensation in damages, measured by the difference in price as ascertained by the market value and by the contract, is not regarded as adequate indemnity for the non-fulfilment of the contract. Jones v. Newhall, 115 Mass. 244, 248; Old Colony Railroad v. Evans, 6 Gray 25. In the English courts the doctrine of equitable conversion is held to be an additional ground for exercising chancery jurisdiction to compel specific performance of contracts for the sale or purchase of land. Fry Spec. Perf., s. 23.

The rule of mutuality of remedy is of English origin. 1 Spence Eq. Jur. 220, n. (f); 3 Pars. Cont. 350, n. (a). In that country there is no limitation upon the jurisdiction of their chancery courts, except so far as it is fixed and defined by usage. For no other reason, apparently, than the arbitrary one that the remedy should be mutual, the rule became established that either party might maintain a bill for specific performance if the other could, although the party bringing the bill could have no other relief than the recovery of the same amount of money or damages as would be recovered in a suit at law. Hall v. Warren, 9 Ves. 605; Walker v. Eastern Counties Railway, 6 Hare 594; Kenney v. Wexham, 6 Mad. 355. In Massachusetts the jurisdiction of their court to decree specific performance of a contract is limited to cases where "the parties have not a plain, adequate, and complete remedy at common law." Neither in that state nor in Pennsylvania does the English rule of mutuality of remedy seem to be followed in its fullest extent. Jones v. Newhall, 115 Mass. 241, 251; Kauffman's Appeal, 55 Pa. St. 383. It may be found upon examination that much of the obscurity in the cases upon the subject is due to the failure to recognize the difference in the chancery powers of the courts of the different states. One learned writer says the arguments in support of the rule "are often mere repetitions of time-honored verbal formulas, which, when closely analyzed, are found to have little or no real force and meaning." Pomeroy Spec. Perf., s. 169, n. (1); — see, also, Walker v. Eastern Counties Railway, 6 Hare 591, 602, Kenney v. Wexham, 6 Mad. 355, 357, Withy v. Cottle, 1 Sim. St. 174, Adderley v. Dixon, 1 Sim. St. 607, Cogent v. Gibson, 33 Beav. 557. Although equity has always existed as a part of the common law in New Hampshire (Wells v. Pierce, 27 N.H. 503,512, Penhallow v. Kimball, 61 N.H. 596, 598), it has never been held, so far as we are aware, that a party is entitled to a decree for specific performance without regard to the fact whether his remedy at law is plain, adequate, and complete, merely because the other party would be entitled to it if he should ask for it. We do not say, however, that cases may not arise where equity, upon the principle of even-handed dealing, may not afford the relief of specific performance under such circumstances. The rule appears to have been applied with greater strictness in the older than in the later decisions. "Indeed, the rule, so far as it relates to the mutuality of the remedy alone, is evidently based upon no principles of abstract right and justice, but at most upon notions of expediency." Pomeroy Spec. Perf., s. 169, n. (1). A technical rule is or should be subordinate to the general inquiry whether a party requires other and better relief than a suit at law can give.

The rule, however, is far from being universal. Specific performance of contracts in regard to personal property is decreed only where the vendor stands in need of the specific relief which a court of equity only can give. Kauffman's Appeal, 55 Pa. St. 383; City of Memphis v. Brown, 20 Wall. 289. Indeed, in this respect there is no distinction between real estate and personal estate. 2 Story Eq. Jur., s. 717. Hence it is a well established rule that relief by a decree for specific performance of a contract is not a matter of right in either party, but rests in the discretion of the court. Pickering v. Pickering, 38 N.H. 400; Eastman v. Plumer, 46 N.H. 464; Willard v. Tayloe, 8 Wall. 557. The discretion to be exercised, however, is not of an arbitrary and capricious character, but, in the language of Story, "that sound and reasonable discretion which governs itself so far as it may by general rules and principles, and at the same time grants or withholds relief, according to the circumstances of each particular case, when those rules and principles will not furnish any exact measure of justice between the parties. On this account it is not possible to lay down rules or principles which are of absolute obligation and authority in all cases." 2 Story Eq. Jur., s. 742. The question of discretion is a question of fact, and the question of fact often is the adequacy of the remedy at law under the circumstances of a particular case.

Equity enforces specific performance when there is no adequate remedy at law. This is the ground of this branch of equity jurisdiction, and it is not consistent with the test of mutuality of remedy. When payment is to be made in money, mutuality of remedy is not the test for the right to this remedy; and when the exchange on one side differs neither in purpose nor reason from a sale for money, the remedy of specific performance need not be mutual. The mutuality required is that which is necessary for creating a contract enforcible on both sides in some manner (Ewins v. Gordon, 49 N.H. 444, 457), but not necessarily enforcible on both sides by specific performance. In this case the exchange on the side of the defendant differs neither in purpose nor reason from a sale for money. The plaintiff was benefited, not injured, by the defendant's breach of the contract. Specific performance is a remedy decreed only in case of want of adequate relief at law. Here there is no such want, and equity does not require a remedy by which the plaintiff would be injured to the amount of $2,400. But if the plaintiff was injured by the breach, it is not found as a fact, nor can it be inferred as matter of law from the facts, that the plaintiff's remedy at law is not convenient and complete; and for this reason the bill cannot be maintained.

Bill dismissed.

CARPENTER, J., did not sit: the others concurred.