Carolee v. Handelis , 103 Ga. 299 ( 1898 )

Simmons, C. J.

The facts appear in the official report. From these facts it will be seen that this was an effort on the part of the plaintiff in error to have specific performance decreed of a contract for the sale of personal property. Section 4036 of the Civil Code declares that “Specific performance of a contract (if within the power of the party) will be decreed, generally, whenever the damages recoverable at law would not be an adequate compensation for the non-performance.” As a general rule, a court of equity will not decree specific performance of a contract relating to personal property, for the reason that, genererally, in a suit at law for damages, adequate compensation can be awarded for the violation of such contract. Where breach of the contract can not be adequately compensated at law, a court of equity will as readily decree specific performance of a contract relating to personal property as it would if the contract related to realty. But in order to obtain this aid from a court of equity, where the contract sought to be enforced is one relating to personal property, the plaintiff must show some good reason in equity and good conscience to take the case out of the general rule. He must allege some element or feature of the contract, or in the conduct of the defendant, to show that the relief at law would not be adequate. He may show that in case the contract is not specifically performed his damages will be irreparable, or he may show that the measure of damages resulting from the non-performance of the contract is uncertain or difficult of ascertainment. He may show that the thing contracted for has some intrinsic or special value, such as is possessed by an heirloom, having a special and peculiar value to its owner over and above any market value that can be placed upon it in accordance with strict legal rules; or he may show that the property, though personal, is not of a common class, but is unique of its kind, and can not be readily reproduced, so that others of a similar nature and equal value can not be procured by damages assessed by means of legal rules, as is the case with paintings or other works of art. Pom. Spec. Perf. 14,

The petition in the case under consideration does not allege any of these reasons, or any other reason why in equity and good conscience this particular contract should be specifically performed. There is nothing alleged to show that adequate compensation for the violation of the contract could not be awarded in an action at law for damages. It is true that it is alleged that the good will of the business was to be transferred to petitioner by defendant, but it is well settled that equity will not decree specific performance of a contract for good will alone. A court of equity can decree specific performance of a contract for the sale of good will of a business only where such good will is connected with certain premises which mrist, in the contract, accompany the good will. It is not alleged or proved in this case that the premises or locality where the fruit-stand was kept were to be purchased by the plaintiff. Moreover, it appears from the record that a large portion of the property purchased consisted of fruit and other articles perishable in their nature. It is difficult to see how a court of equity could decree specific performance of this contract and compel the defendant to .deliver to the plaintiff fruit which was on hand at the time of the tender of the purchase-price, and which, if kept, would have rotted and decayed months before the decree. It is well settled that a court of equity will not render a decree which is impossible of performance, or which the court has not power to enforce. On the subject above treated, see 22 Am. & Eng. Enc. L. 989 et seq.; Cohn v. Mitchell, 115 Ill. 124; Civil Code, § 4038; Fry, Spec. Perf. § 56 et seq.; Cuddee v. Rutter, 1 White & L. C. Eq. 907.

This was the first grant of a new trial, and could have been affirmed under section 5585 of the Civil Code, as construed by this court in Johnson v. Ga. R. Co., 102 Ga. 577. In that case it was held that the first grant of a new trial, whether upon general or special grounds, would not be disturbed by this court unless it manifestly appeared that the judge had abused his discretion, and that the verdict, in each material issue involved, was demanded by the law and the evidence. Inasmuch, however, as the point here involved was somewhat new in this court, we concluded to write the above opinion, in order that the trial judge, if there is another trial, shall be possessed of our views.

Judgment affirmed.

All the Justices concurring.