Ralston v. Ihmsen

Opinion by Mr. Justice Fell, The court had jurisdiction in this case, and it was properly exercised in granting the relief prayed for. The bill was to enforce the specific performance of a contract made by the administrators of a deceased partner to sell the interest of the decedent to the surviving partners at a price to be fixed by referees. The contract was not that of the decedent, but that [592] of the administrators for the settlement of the partnership affairs by the statement of an account, the ascertainment of the interest of the deceased partner, and the sale thereof. The jurisdiction was in the common pleas and not in the orphans’ court: Wiley’s Executors’ Appeal, 84 Pa. 270; Miller’s Estate, 136 Pa. 349. The value of the interest having been determined in the manner provided for, and payment tendered and refused, the plaintiffs were entitled to a decree for specific performance. The thing contracted for was an interest in a glass manufacturing business, nearly the whole value of which was in the plant and fixtures. The purchase was not with a view to the general profit, but because the interest was of peculiar and specific value to the purchasers, as the possession of it enabled them to continue without interruption a business to which they had contributed five sixths of the capital. For the breach of this contract the law could furnish no complete remedy. The purchasers could be made whole only by the delivery of the thing bought. Specific performance of a contract will be decreed on account of the damages at law being an insufficient remedy, where there is something peculiar in the subject of the contract that cannot be represented by damages, and where the - measure of damages at law is uncertain or unascertainable because of the contingent nature of the property: Notes to Cuddee v. Rutter, 1 Lead. Cases in Equity, 1094. Referring to the instances in which contracts relating to personalty will be specifically enforced because the damages in money cannot be ascertained, it is said in Bispham’s Equity, sec. 370: “ In short an agreement will be enforced specifically in a court of equity where the specific thing or act contracted for and not mere pecuniary compensation is the redress practically required.” The referees chosen by the parties agreed upon the value of all the property of the firm except the furna'Ces and ovens, of the value of which they had no knowledge. As provided by the agreement, they chose a third referee who was an expert as to the value of these things, and the appraisement was completed and an award made, which by the agreement was to be final and conclusive as determining the value of the interest. The objection that all of the referees did not pass on the value of each item of property in estimating the value of the interest [593] is without merit. The two appraisers selected by the parties agreed as to the value of certain items, and the third appraiser was selected with the understanding that there had been an agreement as to these matters which he was to accept, and that he was to assist in the appraisement of the remaining items only. He accepted the appraisement made as far as it went, and it was not a subject of dispute. There was no revocation of the agreement of reference. The notice given by the appellants was not to the surviving partners but to the third referee, objecting to his acting for the reasons stated, that he had not been chosen; and that there had been an adjournment because of the failure of the referees to agree. Neither of these reasons was valid, and the notice was without effect. The decree is affirmed at the cost of the appellants.