Casey v. Holmes, Bott & Earle

ORMOND, J. We agree with the chancellor, that there is nothing in this contract, which would prevent the interference of a court of chancery by injunction, if a proper case is made out by the bill. The complainant and the defendants were proprietors of adjacent warehouses, and wharves, to each of which was attached an expensive apparatus for compressing bales of cotton, by steam power, and upon the consideration, that the complainant would allow the defendants the use of the principal part of his wharf, and abstain from receiving the wharfage on the cotton landed there, the defend, ants agreed not to compress cotton at their screw, during the business season. This contract has been partially executed between the parties, and the defendants have for some months had the benefit of it. The benefit which was to accrue to the complainants, was of a negative character, as it respected the action of the defendants; they were to abstain from the use of their screw. They now threaten to violate the contract, by the use of their screw and press, in compressing cotton. The bill charges that they are making preparations to break theii* contract, and threaten to use, and will use 'the press and screw, in compressing cotton, unless restrained by an injunction out of chancery. This contract is not in restraint of trade generally, nor can it be intended that it is for the purpose of creating a monopoly, and enhancing the price of compressing cotton. It appears on its face to be a contract entered into for the mutual benefit of the contracting parties, in which the public has no peculiar interest. It is also a case in which it would be difficult, if not impossible, to ascertain the damage which would ensue to the complainant from a breach of the contract. This results necessarily from the nature of the undertaking of the defendants, which is not to do certain acts. How far, and to what extent the doing of these acts would prejudice the other party, cannot be known, because it would be impossible to admeasure the effect of a rival, hostile establishment, pursuing the same business, in the same immediate vicinity. — 785 — Nor could it be known at the end of the season, how much of the cotton which would otherwise have been compressed by the complainant, had gone to this rival press; and equally difficult would it be to say, what eifect such competion might not have in depressing prices, when an ally was thus suddenly converted into an enemy. It therefore, in our opinion presents a case, in which it is proper the court of chancery should interpose its preventive justice, and by enforcing the performance of the contract, prevent the commission of the wrong. It is now the established doctrine of equity, that it will interfere, and compel the performance of contracts, whenever the remedy at law is doubtful, uncertain, or inadequate, although the agreement concerns personal property alone. Nor is it necessary that the agreement should be actually violated, it is sufficient if the danger of its violation is imminent, and actually impending. In the case of a covenant not to do a particular act, the danger could be correctly appreciated, by the language and conduct of the party — by his threats, and the preparations to do the act. All these exist in this case, as charged in the bill, and upon looking into the answer, we perceive that the defendants admit the fact, and state that they had notified the complainant, that the contract was at an end. These principles are fully illustrated in the following cases: [Mallan v. May, 11 Meeson & W. 652; Jarvis v. Peck, 10 Paige, 118; Franklin v. Tuton, 5 Madd. C. 285; Mechanics B. of Alex. v. Seton, 1 Peters, 300; Bonaparte v. The C. & A. Rail Road, 1 Baldwin, 231; Kemble v. Kean, 6 Simons, 333.] The chancellor also held, that this contract was fatally defective on its face for uncertainty, and could not therefore be specifically enforced. The portion of the contract here referred to is in the following words: “ The terms of the attachment of Hitchcock’s press to the Independent press, to be the same as was agreed upon by Thomas Holland and J. Al-sobrook, of the Factors’ press, for the business season of 1844 and 1845, to be determined on by them.” This objection goes the entire length of nullifying the contract, for certainly if it is so uncertain, that it cannot be ascertained from it, what its provisions are, it is void for that cause, and cannot be enforced, either at law or in equity. This is a conclusion, to — 786 — which a court would come with great reluctance, and which it would struggle against. The parties certainly affixed some meaning to the terms they employed, and in a case where the contract had been enteredupon, and in part executed, and especially in a case where the party making the objection, had derived a benefit from it, the court would be satisfied with probability, where certainty was unattainable. The case of Ellis v. Burden, 1 Ala. 464, was one of real doubt and uncertainty, and yet, as the contract had been partly executed, this court did not hesitate to expound the contract, and having ascertained the probable intention of the parties, enforced a specific performance. But the objection itself is without foundation. The “terms of the attachment” of the two presses, are to be the same as those of the Factors’ press, the terms of which were to be determined by two persons who are named. That is certain, which may be rendered certain, and the legal effect of this clause is precisely the same as if the terms of attachment of the Factors’ press had been embodied into the contract. This would be its effect, if it had not provided for the means of proving what those terms were, but it goes further, and distinctly states what shall be proof of the terms of attachment. The chancellor appears to have considered, that this would be to permit a portion of the contract to be in writing, and the residue to rest in parol. It is to be observed, that this is not a contract which is required by law to be in writing, yet even in regard to such contracts, as for example, a devise, it is well settled, that when the subject of a devise is described by reference to some extrinsic fact, parol proof of such fact may be made. The law is the same in respect to deeds, and other instruments, as held in this court in Ellis v. Burden, supra, and fully expounded by Sir William Grant, in Ogilvie v. Foljambe, 3 Mer. 52, and see the long train of authorities printed by Cowen & Hill, 3 vol. P. Ev. 1399. We consider it therefore clear, that the contract is not void, because it refers to the terms of another contract, existing between other parties, as one of the stipulations then agreed upon, but that proof may be made, what those terms thus referred to were, and enforced as a part of the contract. — 787 — It is further supposed, that admitting the contract to be such as can be enforced, it is not sufficiently set forth in the bill, so as to justify the court in granting the relief which is sought. It is only necessary that the complainant should state the facts, upon which he relies, with reasonable certainty. In this case the relief prayed for grows out of the apprehended breach of a contract; it was therefore necessary that the contract should be stated, either according to its tenor or legal effect. It is stated almost in haec verba. It was. also necessary that he should show himself entitled to the aid of the court, by an allegation that he was not himself in default, and it is explicitly alledged, that the complainant has fulfilled and performed, and is desirous to fulfill the contract on his part; but that, the defendants threaten to break, and are making preparations to break the contract in its most essential particular ; in that part which constituted the whole inducement on the part of the complainant for entering into it. The objection is, that he has not set out in the bill, what the terms of the attachment of the Factors’ press are. We do not consider this a matter of any moment, whatever they are, they are covered by the allegation, that he has performed, and is willing to continue to execute, the entire contradi. It is not necessary in any case, that the complainant should anticipate that which is properly matter of defence. The gravamen of the bill is, that the defenants were about to set their press in motion. This was a violation of the contract, and if the complainant has performed the contract on his part, he is entitled to the relief he seeks, upon the face of his bill. The defence made by the answer, is, that the complainant has not acted in good faith with them, but has broken the promises, and disregarded the inducements held out to them to enter into the contract, by which the contract has ceased to be beneficial, and they have been prevented by his acts from reaping the benefit they expected from it. The facts narrated in the answers are, that the complainant the year previous, had established a warehouse, wharf and press, and had interested the planters owning cotton s.ent to Mobile, to direct their cotton to be sent to his press, by promising to reduce the rates of wharfage, &c.; and by breaking — 788 — down the combination, which had existed among the presses in the city — that he promised to continue these exertions among the planters, and thus to secure custom to the “ Independent Press,” the wharfage and storage of which would belong, under the contract, to the defendants. That he had failed to use his exertions with the planters, but had entered into the “ combination” with the other presses of the city, by which he had encountered the disapprobation of the planters, and thereby materially diminished the quantity of cotton sent to the Independent press, and consequently affected the profits of defendants. So far as these promises or inducements are considered as matter of contract between these parties, it is very clear they are entitled to no consideration whatever. All previous promises or inducements are merged in the written contract. It is not pretended that it was entered into by mistake, or that it is not precisely what the parties intended it should be ; nor is it alledged that the defendants were induced to enter into it by the fraudulent misrepresentations of the complainant. It is true, it is alledged in the answer, “that the agreement was obtained by said deceit and unfair practices,” but the deceit here alledged consists in the supposed violation by complainant,0 of his promises, subsequent to the execution of the contract; and although this might constitute a breach of the contract, and be a sufficient reason for refusing relief, it would not affect-the instrument itself, with fraud. See this question fully considered in Hair and Labuzan v. La Brouse, at the present term. The instrument therefore not being-void for fraud, must be its own expositor, and from it must be ascertained the relative rights, and obligations of the parties. It is nevertheless true, that cases of this kind are appeals to the extraordinary power of the court, and that it will be refused, where the performance of the contract would be un-conscientious, or where the bargain is hard and unreasonable,' where, in a word, under all the circumstances of the case, it would be inequitable to enforce a performance of the contract; and in such cases the parties will be left to their legal remedy. [Gould v. Womack and wife, 2 Ala. Rep. 83.] It appears also, that a greater latitude is allowed the defendant in his — 789 — defence, than would be accorded to the plaintiff in making out his case. But in looking into the attendant circumstances, and the conduct of the complainant, we can perceive no reason for refusing the relief. As it respects his efforts to induce planters to send their cotton to his wharves, it appears from the testimony of Mr. Salomon, that he made great exertions, visiting nearly every county in the State, which shipped cotton to Mobile, either in person or by his agents; and causing 2,000 hand-bills to be sent to planters throughout the State, to induce them to send their cotton to his press, and continued his exertions with the captains of steamboats during the winter, furnishing hands to unlade the boat, &c. &c. The “terms of attachment,” is a charge which one press or warehouse pays another, for “arranging” cotton. What these terms, or rules, were, between Holland & Alsobrook, was furnished in writing by the latter, to one of the defendants, which it appears he presented to Holland, who declined to sign it, although he admitted it was in the main correct, because, as he says in his deposition, Alsobrook and himself had not reduced their contract to writing. This paper it appears, furnished the rule by which the complainant’s clerks were by him directed to govern themselves, and by which they were in fact governed. It does appear, to be sure, that there was some difference of opinion as to what the terms were, but it is not shown that the complainant did not endeavor, in good faith, to execute this part of the contract. The principal matter relied on in the answer, and to prove which much testimony was taken, is, that the complainant contrary to his promises, paralyzed his interest with the planters, and materially affected the receipts of cotton, by joining what is called the “ up town combination of presses,” which he had pledged himself to “ fight against.” So far as we can understand this part of the case, the facts are, that Casey had, a year or two since, erected a warehouse and press in the lower part of the city, in which quarter of the town Hitchcock’s press was also situate; and to induce the planters to send their cotton to his press, had represented that the presses “ up town” were combined together, and that he would reduce the rate of charges, and did so, by which means — 790 — he had doñea large business in the season of 1844-5. That in November, or .December, 1845, he united with the presses “up town,” in a regular tariff of charges, and thus lost the sympathy and support of the planting interest. This appears to us, to bemothing more than a scramble for the public favor, and it is evident, that if Casey had joined, wh^t he had previously denounced as a “combination,” and supported those composing it in their alledged exhorbitant demands, he would lose the public favor, which he had obtained by promising to put it down — but it is difficult to see, how this result should follow, when the “ up town” presses came to terms, and adopted his rate of charges, and established it as a tariff, binding on all. It was a measure probably forced on him, by the threats of the others to reduce the charges still below his. Be the motive what it might, we ean see nothing improper in it, and it was probably necessary to his own security. This arrangement was entered into and the tariff of charges published, oh the third December, 1845, and during the residue of this month, the entire month of January, and nearly all February, comprising the most active portion of the business season, the defendants continued in the use, and enjoyment of the‘wharf of the complainant, under the contract, and enjoying its benefits. If the conduct of Casey was in violation of the inducements held out by him to persuade them to make the contract, they should have acted promptly, and abandoned it on their part. They cannot be permitted to act upon it, as subsisting, and at the same time insist that it does not bind them. It also appears, that they successively refused $10,000, $8,000, and $6,000, at different periods after the tariff of charges was agreed upon, for the use of their wharves. These offers certainly would not have been refused, if the effect of the agreement of Casey in the general tariff, had materially impaired the value of the wharf. We have considered this matter at some length, because it was earnestly pressed by the counsel for the defendant, although it scarcely comports with the gravity and dignity of judicial proceedings, to enter seriously upon the ' consideration of the merits of these squabbles for popular favor, for this at last is what it all amounts to. — 791 — Again, we have considered this matter as if it was fully proved, that these promises were made, and inducements held out by the complainant to the defendants, without which the contract would not have been made. This is, it is true, made out by the testimony of Mr. Earle, to some extent, but is as flatly denied by the witness, who was present when the contract was made, and who, at the instance of the parties drew it up. And certainly, if in any case a specific performance could be prevented by the proof of facts dehors the contract by the defendants, such facts must be fully proved. See the cases on this subject collected by Sugden in his Treatise on Vendors, C. 3, § 4. Upon the entire case, we are fully satisfied, first, that this is such a contract as a court of chancery may direct the specific performance of. Secondly, that under the circumstances of this case, a specific performance should be decreed. From this, it follows, that the decree of the chancellor must be reversed, and a decree be here rendered perpetuating the injunction.