Werden v. Graham

Mr. Justice Scholeield delivered the opinion of the Court: A bare reference to the terms of this contract would seem to be enough to demonstrate that it is now impossible of specific performance, however desirable it otherwise might be to hold appellee Alvaro B. Graham to its terms. It was made on the 25th day of November, 1865, and obligated appellants to “manufacture for sale, and sell the same, if they can, fifty of said machines,” (the Champion Reaping and Mowing Machine,) “the coming season, ” (i. e., the season of 1866,) to “manufacture for the season of 1867, and each succeeding year, one hundred machines before mentioned. ” The duration of the contract is, by its terms, limited to the period at which the patent therein provided for would expire, which, by virtue of sec. 4884, chap. 60, Rev. Stat. of the United States, is seventeen years. There is no allegation in the bill of a performance of the contract up to any recent period, but, on the contrary, it is alleged, in substance, that it never has been complied with by Alvaro B. Graham, and on that account, and for that claimed justification, it is alleged, inferentially at least, it has not been complied with by appellants. The precise date of the issue of the first patent is not alleged, but the issue of the second patent is alleged to have been on the 11th of February, 1867. From that date until the filing of the bill, October 25, 1881, lacks a little less than four months, only, of being fifteen years, or leaving but little over two years remaining within wdiich the contract was to run. To now specifically perform such a contract is, obviously, impossible. Whatever else may be decreed, in the very necessity of things it can not be specific performance. Courts of equity never decree the specific performance of a contract where the decree would be a vain or imperfect one. Tobey v. County of Bristol, 3 Story, 800. Treated as a bill for an account, we are also of opinion the bill can not be sustained. It is said in Story’s Equity Jur. sec. 794: “It may be stated as a general proposition, that for breaches of contract, and other wrongs and injuries cognizable at law, courts of equity do not entertain jurisdiction to give redress by way of compensation or damages, where these constitute the sole objects of the bill, for whenever the matter of the bill is merely for damages, and there is a perfect remedy therefor at law, it is far better that they should be ascertained by a jury than by the conscience of an equity judge,—and, indeed, the just foundation of equitable jurisdiction fails in all such eases, as there is a plain, complete and adequate remedy at law. Compensation or damages, it should seem, ought therefore ordinarily to be decreed in equity only as incidental to other relief sought by the bill and granted by the court, or where there is no adequate remedy at law, or where some peculiar equity intervenes.” There is not claimed to be any peculiar equity here intervening. The bill claims no profits or losses as the result of carrying out the partnership, for it is framed upon the hypothesis that the partnership was not carried out, and, we have just seen, there is no foundation for a decree for specific performance. Appellants claim a decree solely for damages, and these, they allege, result, first, from the refusal of appellee Alvaro B. Graham to keep and perform his contract to render his personal services in the shops of appellants, and in overseeing the manufacture of machines, etc.; and second, from his refusal to keep and perform his contract that before letters patent should be issued for the invention to be applied for, he would make such an assignment that the patent should issue to appellants and himself jointly, giving to each person an equal, undivided one-third interest therein, and that he should make a like assignment as to any improvements on that patent which he should apply for. These are clearly personal covenants between appellee Alvaro B. Graham and appellants, upon which, in case of breach, an action at law may be maintained. Alvaro B. Graham, as the party of the first part, covenants with appellants, as parties of the second part, each being, with respect to the other, an independent contracting party. The covenants are, in no sense, to the firm, or by the firm,' hut are to and by parties dealing with each other as individuals. The modified agreement is, clearly, of the same character, and differs from the original agreement only in that there is an additional party to it. It is between appellants, as parties of the first part, and appellee Alvaro B. Graham, and 0. G. Blaisdell, as parties of the second part, and the undertakings are expressly by the latter to the former, as individuals, and not to any firm of which they, or either of them, were members. For the breach of such covenants and agreements the remedy is, an action of covenant where the instrument is under seal, and where it is not, assumpsit. Parsons on Partnership, 27 5, note a; Collyer on Partnership, (Perkins’ ed.) sec. 245. See, also, Doyle et al. v. Bailey et al. 75 Ill. 418. Whether appellants shall be able to show a sufficient reason for their own failure to comply with their contract, will be left to he determined by the court of law, where they must seek their remedy. We think the demurrer was properly sustained to appellants’ bill, and that the judgment of the Appellate Court was therefore right. It must he affirmed. Judgment affirmed.