Fullington v. Kyle Lumber Co.

MoCLELLAN, C. J. It is averred in the bill as a fact that the threatened breach of contract by Fulling-ton will result in injury to the complainant which cannot be adequately compensated in damages. The bill may be demurrable for the insufficiency of this averment, but if the fact be as averred the defect in the manner of the averment may, of course, be remedied by amendment, and it is just this sort of amendment which will be considered as having been made on motion to dismiss the bill for want of equity. This fact being there averred, it was not necessary to the equity of the bill in this connection to allege also Fullingtou’s insolvency, since though he be solvent compensatory damages could not be recovered of him. There is nothing in relation of tenants in common to prevent one of them binding himself to employ his interest in the common property only in a certain way or to certain ends, or covenanting with the other that he will not do certain things, with or in respect of the estate. [246] The assumption that the bill showed that complainant and Fullington became tenants in common of the mili site for the term of the current lease to the latter, by virtue of the contract set up in the bill, would not emasculate the bill of equity. But the bill, in our opinion, is without equity, for that the contract, which it sets up and seeks to have specifically performed through the instrumentality of an injunction against the breach, is, in its final analysis, a mere undertalcing on the part of Fullington to abstain from a certain legitimate use of his own property: The Kyle Company did not purchase Fullington’s leasehold 'of the mill site or any interest in the leasehold. They in substance and effect agreed to pay Fullerton a certain sum of money, amounting to half the rental Fullington had agreed to pay his landlord, for a covenant on Ful-lington’s part not to erect and operate a mill on the site, nor allow one to be erected and operated during the term of his lease of the site. This covenant is not distinguishable in principle from that considered in Tuscaloosa Icc Manufacturing Company v. Williams, 127 Ala. 110; and upon the consideration adverted to in the forepart of the opinion in that case, this undertaking is to be condemned as being inimical to public policy. This case is now a moot one since the undertaking sought to be enforced has expired by lapse of time — the lease of the site and the alleged agreement as to the non-user of it ended in April last — and we deem it unnecessary to enter upon an extended discussion of the questions involved. The decree of the city court overruling the motion to dismiss the bill for want of equity must be reversed, and a decree will be here entered granting that motion and dismissing the bill. Reversed and rendered.