Adams v. Patrick

The opinion of the court was delivered by Bennett, J. The object of the bill is to compel a specific performance of a contract, and also to obtain a perpetual injunction against a suit at law, instituted by the defendant against Abraham Adams. It may be remarked, that the title of the Coffins in the factory, etc., passed to the orators before the suit was brought. The answer of the defendant admits that a contract was made, giving the right to dig and maintain the ditch, but sets it up somewhat variant from the contract set up in the bill, to which reference may be had, as well as to the answer. In view of all the testimony in the case, which I will not take time to recapitulate, we think it does establish the fact that the owners of the mill were to have the right to dig and maintain the ditch, upon the condition that they would build a good and substantial wall, so as to secure the defendant from damage from the water. We apprehend that what was said about removing the barns and opening the pass-way was a gratuitous conversation, and did not enter into and become a part of the condition, upon which it was agreed to give the right to dig and maintain the ditch. This is the express testimony of George S. Coffin, who made the contract, and he is confirmed in this by quite a number of witnesses. It is argued by the defendant’s counsel that, as this contract was not in writing, the case is not a proper one in which to decree a specific performance. But to that it may be answered, the defendant has not insisted upon the statute in pleading, or by his answer. [520] We understand this is necessary, otherwise the statute is waived. A contract is not illegal because it is within the statute of frauds, but it is only incapable of being enforced against the defendant without writing, and he may waive the immunity, if he sees fit to do it. Brown on Statutes 480. The case of Cooth v. Jackson, 6 Vesey 17, is not opposed to this position. In that case, though the statute was pleaded, yet it was coupled with another defence, and the chancellor said he could not allow the statute to be so pleaded, that is, to be coupled with another defence. Though he adds “ there was no purpose in pleading it, as the defendant might have the advantage of it at the hearingyet there is no intimation by the Lord Chancellor that it can be done at the hearing, unless first insisted upon in the answer. No doubt the statute may also be specially pleaded, and the only objection in the case in 6 Vesey was to its being coupled with another defence in the same plea. But I apprehend there has been such a part performance of the contract as to take it out of the statute. The owners of the mill went on under the contract, dug the ditch, and built the wall and sunk the wheel-pit, and lowered their wheel, at an expense of some eight hundred dollars. To permit the defendant, in such a case, to repudiate his contract would be to make the statute an engine of fraud, instead of a statute for the prevention of fraud. See Brown on Statute of Fraud 437; Angell on Water Courses 362, section 322. It is also insisted that the factory owners did not build such a wall as.their contract required, and, not having fulfilled on their part, they have no right to ask for a specific performance on the other side. We think, from the testimony, there was a failure to build the wall in all respects as it should have been built, yet we can not infer from the evidence any such gross negligence as could indicate any intention in the factory owners not to comply fully with the true spirit of their contract, and we have no doubt they acted in good faith in building the wall, and believed it would prove sufficient to answer all purposes for which it was designed. The doctrine of a court of equity is never to work a forfeiture of a contract where compensation can be made ; and this is clearly a case where compensation for damages, resulting from a want of a [521] strict compliance with the contract on the part of the factory owners, may be made. These damages the master has assessed, and we think the defendant should be satisfied with them. It would be highly inequitable that the defendant should have a forfeiture of the contract, simply because it turned out that the wall did .not fully answer the expectation of the factory owners. But a court of equity has a discretion in decreeing a specific 'performance of a contract, and will not do it where it will be useless and'-iiugatoj-y to the complainants to have it done. In this case the orators have ceased to have an interest in the subject matter of this controversy. In 1813 this factory became the sole property of Abraham and Shepherd Adams; and in February, 1851, they conveyed the property to the^Black River Bank, and in July of the same year, the bank conveyed it to George S. Coffin, who was one of the owners of the factory when the contract, upon -which this bill is predicated, was made with the defendant. It is agreed that Coffin, under his conveyance from the bank, continued the owner of the entire property down to 1856; and in 1852, while sole owner, he entered into a new agreement with the defendant, by which he secured the right to dig a ditch for the race-way so as to lower his wheel, by keeping up a good and sufficient wall, and in August, 1852, the defendant, by his deed, conveyed to Coffin and his heirs and assigns, all the rights that were ever claimed to have arisen against the defendant by virtue of the contract upon which this bill is predicated. A decree for specific performance can not give Coffin any greater rights than what he has under his deed, and would indeed be a nugatory act. We think the action of trespass in favor of the defendant against Abraham Adams, should be perpetually enjoined. Though we do not decree a specific performance of the contract, for the reason assigned; yet the orators, in equity, had a right to enter upon the lands of the defendant for all the purposes secured to them by the terms of that contract, by implication or otherwise. Though the defendant, in that action, might not be able to defend it at law, yet in equity he has an undoubted defence, and the further prosecution of it should be enjoined. The result is, the decree of the chancellor is reversed, and the cause is remanded to the court of chancery with directions that the [522] chancellor pass a decree perpetually enjoining a further prosecution of the suit at law, upon the orators paying to the defendant the damages reported by the master, and legal interest on the same by a short day, to be fixed by the court of chancery, and that neither party be allowed costs.