Campbell v. Rust

Richardson, J. (after stating the case), delivered the opinion of the court. At the threshold we are met by the question which is raised by the demurrer and the motion to dismiss the bill at the hearing. The enquiry is whether or not this is actually a mere suit for damages under the guise of a suit based on undoubted equitable grounds. The bill prays that “ Campbell be compelled to specifically perform the contract of lease and pay to the complainant the money now due him with interest, and to pay him the several sums of money which may hereafter become due under said contract of lease; * * * and that if Campbell fail to pay complainant the money now due or hereafter to become due him, when decreed to be paid, then he be decreed to pay him, in lieu of said sums, a sum of money sufficient to compensate him for all injury and damage he has sustained, or may sustain by reason of Campbell’s failure or refusal to specifically perform said contract of lease ; * * and that all damages sustained by the complainant by reason of Campbell’s noncompliance with the terms of said lease, be decreed to be paid him.” Then follows a prayer for an account of all such damages. The above quotation from the bill at once discloses the nature of the case and serves to test its claims to be entertained by a court of equity. In the first place, the indenture set forth in the bill is not for a lease of the iron ore-bank therein mentioned, though it thus styles itself. It does not reserve a rent for the realty to its owner, but, on the contrary, it requires the return to be delivered to a stranger, the Shenandoah Iron Company. 2 Minor’s Insts. 43. It stipulates that the appellant shall mine, cleanse and deliver an average of sixty or one hundred and — 665 — twenty tons of iron ore weekly to said company and not to the appellee, who was to collect his own bonus of fifty cents per ton from the company, or other purchaser of his ore. The alleged subsequent parol contract to the effect that Campbell should collect the entire price, $1.75 per ton, of the ore and pay appellee his share thereof, was not established by the evidence. The appellant, then, had no right to collect the appellee’s portion, and was no more responsible therefor than the latter was for the former’s portion. And the relation of landlord and tenant did not exist between those parties, and Rust had no lien on Camp-hell’s portion, even though the ore had not been removed from the hank more than thirty days when the injunction was awarded and the receiver appointed. Under the sealed agreement Campbell was an employee of Rust. Coke Litt. 1426; 2 Black Com. 41; Lane v. Miller 3 Gratt. 196; Parrish’s Case, 81 Va. 1. Campbell’s engagement was to mine and prepare for market so much iron ore weekly and to ship same to the company at Milnes, and to receive as his compensation for his personal services, skill and judgment in that behalf, five-sevenths of the price agreed on between Rust and the company, whilst Rust himself was to collect the remaining two-sevenths. The appellee undertook, on his part, to furnish appellant an engine and washer to wash the ore which the latter was to mine and ship per week. Plainly enough this language meant a washer adequate for this purpose. If the washer furnished was inadequate to the required task, Rust himself was delinquent in. the performance of his duty under the agreement. And again, Rust contracted that the ore hank should yield one ton of iron-ore from every four tons of earth and ore removed, and that if the ore-hank failed at any .time to make such yield, then Campbell should he at liberty, if he so elected, to quit work and surrender possession to Rust. These two questions, as to the sufficiency of the washer and the capacity of the ore-hank, were questions of fact, which — 666 — should have been determined before the final decree was entered. But as to these questions the master’s report and the court’s decree are both silent, and the evidence in the record is pointedly conflicting and unsatisfactory as the basis of a safe conclusion the one way or the other; so that the court below certainly erred in not directing the proper issue to ascertain the facts. Alter over five months of diligent, but fruitless efforts (Campbell says), with the washer to prepare the weekly average for shipment, he, on the 24th of April, 1886, finding that the yield of the ore-bank for the week ending the day before was much less than one-fourth of the earth and ore removed and washed, notified Rust of his intention to quit work and surrender possession for said reasons; and did so. Five days later the bill was filed, the injunction awarded and the receiver appointed, all for the palpable purpose of recovering damages for Campbell’s alleged non-compliance with his part of the agreement, and to prevent him from collecting his five-sevenths of the price of the iron-ore shipped by him from the ore bank and unpaid for, and to have the same kept for the benefit of Rust. At this point, keeping in view the prayer of the bill, let us return to the question of jurisdiction. The appellee bases his claim to be entertained in a court of equity—first, upon the assumption that he was entitled to come into such court in order to compel a specific performance of what he calls “the deed of lease,” and if Campbell refused, or disabled himself to perform, appellee had a right to damages to be assessed by the court. It is true that it is the settled doctrine that when a court of chancery has jurisdiction of the case, and it is a case proper for specific performance, sucli court may, as ancillary to specific performance, decree compensation or damages; and where the ascertainment of damages is asserted in the case before it, the court ought not to send the parties to another forum to litigate their rights, but should refer the matter to one of its commissioners, or direct an issue quantum damnificatus to be tried at its own bar. Nagle v. Newton, 22 Gratt. 814. — 667 — In that case, Christian, J., pronouncing the opinion of the court, said: “ There is an obvious distinction between cases where the party seeks relief in equity as plaintiff, and where compensation is sought by the defendant in resistance or modification of the plaintiff's claim. In the latter case the maxim prevails that he who asks equity must do equity." And it is equally well settled that a chancery court will not ascertain and award damages in any case where specific performance or other equitable relief would be improper, or where there is an adequate remedy at law. • Tet it is the general rule that, courts of chancery will entertain suits for specific performance of agreements whenever the law courts will not afford an adequate remedy, whether the agreements relate to land or to specific chattels having some special value to the owner above any pecuniary estimate. But they will not entertain a bill for the specific enforcement of contracts for personal services or acts involving skill, labor and judgment. 3 Pom. Eq. Jur., §§ 1343, 1344, and 1402, note; Adam’s Eq. [81J. Tested by these principles, it seems that the appellee’s case, as presented by the bill and the evidence, is not such a one as entitled him to come into a court of equity for specific performance, and that in point of actual fact his suit is a damage suit. Eor what else could he expect to receive even upon and after a performance of the appellant’s covenants? Only money—fifty cents per ton for the iron-ore shipped from his bank to the iron company—for which bonus Campbell was liable neither originally nor as guarantor. The agreement was neither for a sale nor a lease of realty nor of specific chattels of peculiar value to the appellee, but was for personal acts or services involving the appellant’s labor, skill, and judgment in mining and preparing iron ore for market, and the converting real estate into mere money—into fifty cents a ton for the ore shipped—the loss of which is always readily compensated by the receipt of damages, for the recovery of which the remedy at law is clear, adequate and ample. The very language of the prayer of the bill on its face, in — 668 — effect, denies any demand for specific performance, and makes a demand for money—for sums of money due and to become due— the specific performance sought.. We here repeat the language of the hill: “ That Campbell may be compelled to specifically perform the contract of lease, and to pay the complainant the money now due him, with interest, and to pay him the several sums of money which may hereafter become due under said contract.” In Nagle v. Newton, supra, a case relied on by appellee to support the idea of equitable jurisdiction over his case, the plaintiff, Newton, filed his hill for the specific performance of his land sale to Nagle. The latter answered; did not object to performance, but claimed that he had been greatly injured by the failure'of Newton to perform the covenants on his part, and by his intermeddling with and disturbing his peaceable possession and enjoyment of the land. The case was a proper one for specific performance, and the damages claimed by the defendant were in modification of the plaintiff’s claim, and grew out of his failure to comply with the undertakings on his part; and hence, on appeal, this court held that the court below should have ascertained and awarded his damages. The case at bar comes much more nearly within the ruling of this court in Robertson v. Hogshead, 3 Leigh, 373, in which a hill was filed by a vendee against the vendor, alleging fraud by the latter against the former in the original agreement, and praying that the agreement he rescinded for the fraud. In that case, Oarr, J., pronouncing the opinion which denied the relief prayed for, said: “ The bill, so far as it related to the main end of it (the rescission), was never sustainable; and taking away that ground, there could be no propriety in filing a hill in equity for the purpose of obtaining compensation in damages.” The bill here charges also that Campbell was guilty of fraud in falsely representing to Rust that he was solvent and able to-fulfill his engagements, and likewise in abandoning the ore-bank without notice to Rust, and without having the yield of — 669 — ore properly tested. How, under the circumstances presented by the record, such representations can he construed as fraudulent, it is difficult to perceive, as it is not even alleged, much less proved, that he derived any advantage or benefit from them. The same difficulty exists as to the alleged abandonment without notice and without proper tests of the ore. Neither could be treated as more culpable than ordinary breaches of covenants. But it suffices that the evidence fails to sustain either of the charges. And thus fraud, which is relied on as a ground of jurisdiction, also fails. Tet another ground is set up. The bill prays for an account, and it is contended in argument that the fiduciary relations between the parties required Campbell to keep accounts of the number of tons of ore shipped; its condition; how much was rejected; the loss thereby ; and that it was his duty to furnish Bust with such accounts; and that the necessity for them is a ground for equitable jurisdiction. If the accounts were complicated, and the duty of keeping them devolved upon Campbell under the agreement, there might be some force in this contention. But the agreement and the bill itself are silent as to any such duty resting upon Campbell. The former merely provides that Campbell should deliver the weekly average of merchant.able ore at Bust’s siding on the railroad, whose weights are expressly specified as the guide of the parties, and the iron company at Milnes was to pay to Bust himself his part of the price, and to Campbell his part. There is no pretence that there was any advance in the price of the ore. Bust had only to apply to the railroad agent at Milnes for statements and take them to the receivers of the iron company and get his money. There was no promise by Campbell to pay or deliver anything to Bust, and no guaranty of the company’s payment to him. Hence there was obviously nothing between Campbell and Bust of which an account was necessary, except possibly an account of the damages for the alleged breach of covenants, as to which a jury was the appropriate tribunal. — 670 — The true doctrine on this subject is laid down in 1 Pomeroy’s Eq. Jur., §178, where it'is said: “Even when the cause of action, based upon a legal right, does involve or present, or is connected with some particular feature or incident of the same kind as those over which the concurrent jurisdiction ordinarily extends, such as fraud, accounting, and the like, still, if the legal remedy by action and pecuniary judgment for debt or damages would be complete, sufficient and certain—that is, would do full justice to the litigant parties in the particular case—the concurrent jurisdiction of equity does not extend to such case. For example, whenever an action at- law will furnish an adequate remedy, equity does not assume jurisdiction because an accounting is demanded or needed; nor because the case involves or arises from fraud,” etc. After full and careful examination, we come with some reluctance, but unhesitatingly, to the conclusion that the court below erred in refusing to dissolve the injunction and to set aside the order appointing a receiver, and also in overruling the demurrer to the bill and the motion to dismiss same at the hearing on the ground that a court of chancery was without jurisdiction to entertain the case. And as these views sufficiently dispose of the appeal, it is not necessary to pass upon other errors assigned. We are, therefore, of opinion to reverse and annul the decree appealed from, dissolve the injunction aforesaid, dismiss the bill and direct the receiver aforesaid to pay over to the parties, Campbell and Eust, the funds in his hands, in the ratio of five sevenths to Campbell and two-sevenths to Eust; and a decree to that effect will be entered here, but without prejudice to the right of the appellee, Eust, to sue at law if he shall be so advised. Decree reversed and bill dismissed.