Lewman & Co. v. Ogden Bros.

DENSON, J. The bill was demurred to and a motion to dismiss it for want of equity was made. On the hearing, the chancellor held that the bill was without equity and granted the motion to dismiss it; from the decree granting that motion this appeal was prosecuted. We confess that the purpose of the bill has not been made to appear to our minds as definite as it' seems to have appeared to the minds of the counsel for appellants. In their brief they assert, that the bill is clearly one' for the specific performance of an equitable mortgage. Referring by the terms equitable mortgage, to the contract which was entered into on the 22nd day of April, 1902, between complainants and respondents, Ogden Brothers, a copy of which was made a part of the bill as exhibit A. It seems to us that the essential features of a mortgage, equitable or otherwise, are lacking-in that instrument. No debt is shown to have existed at the time of its execution, for which the instrument was to stand as security, nor does it appear that it was intended by the parties that it was to operate as security for any contingent liability. — 359 — A cardinal rule to be applied in the construction of written instruments is, that- the intention of the parties to it must prevail, “And to ascertain that intention, regard may be had to the nature of the instrument itself, the condition of the parties executing it, and the objects they had in view.” — Strong v. Gregory, 19 Ala. 147; Bryant v. Bryant. 35 Ala. 315. Sometimes instruments inartificially drawn are held to operate as equitable mortgages, but, the essential feature of a debt due or to become due must exist, or it must appear that it was the intention of the parties that the instrument should operate as security for some contingent liability — Jones on Chattel Mortgages (3rd ed.), §§ 82, 83; Jones v. Charleton, 51 Ala. 166. 'If regard to the surrounding circumstances and acts of the parties, at the time the instrument or contract was executed, be permissible, it would seem that- the fact that Ogden Brothers executed, and complainants received, bond with security for the faithful performance, by Ogden Brothers, of the duties imposed upon them by the contract, would repel the idea of any intention that the contract should operate as an equitable mortgage. . The instrument does not appea-r to have been inartificially drawn, on the contrary, skill is manifested in its structure. Our construction of the contract in respect of the property is, that it is a covenant with the complainants by Ogden Brothers, for the use by complainants of the property in doing the work contracted to be done by Ogden. Brothers, in the event of a failure on the part of Ogden Brothers, in the performance of the duties imposed upon them by the terms of the contract, with the privilege or right on the part of complainants to take possession of the property for that purpose. It is manifest, however, that, if the complainants have any right to the possession of the property, it must be a right given under the contract; and the bill being based upon the contract, seeking its performance in lieu of a recovery of damages for its' breach, its sufficiency must be tested by the rules of procedure and substantive law applicable to cases of specific performance of contracts. This seems to be conceded by appellants. — 360 — This must be true, notwithstanding there is no special prayer for the enforcement of the performance of the contract, the subject matter of controversy. The bill contains the averment that there is no adequate remedy at law, whereby complainants can obtain possession of the property under the contract and to use the same in completing the work contracted to be done by Ogden Brothers. It also contains a prayer for injunction to restrain the defendants fr.om removing the property, or in any manner interfering with it. This must be- held as the equivalent of a prayer for specific performance, “Converting the bill, if not in form and letter, in substance and spirit into a bill of that character.”- — Electric Lighting Co. of Mobile v. Mobile & Spring Hill Ry. Co., 109 Ala. 190. “An injunction in aid of specific performance is merely ancillary. The primary inquiry is, necessarily, whether the contract on which the bill is founded is of the nature and character of which the court is accustomed to “decree specific performance. If it is not of this nature and character, or, if for the injury of which complaint is made the law provides an adequate remedy, the bill fails, and the incidental or consequent remedy by injunction must fail.”- — Electric Lighting Co. of Mobile v. Mobile & Spring Hill Ry. Co., supra; Hilliard on Injunction, p. 54, § 102. Construing the bill, then, as one for the specific performance of an executory contract relating to personal property, we will consider the equities of the complainants upon the averments of the bill, in the light of well established rules of equity applicable to that remedy. “Equity will not, in general, decree the specific performance of a contract concerning chattels, because their money value, recovered as damages, will enable the party to purchase others in the market of like kind and quality. Where, however, particular chattels have some special value to the owner over and above any pecuniary estimate — the pretmm, affectionis; and where they are unique, rare and incapable of being reproduced by money damages, equity will decree a specific delivery of them to their owner, and the specific performance of contracts — 361 — with reference to them.” — 3 Pom. Eq. Juris, p. 441, § 1402; Moses v. Scott, 84 Ala. 608; Dilbum v. Youngblood & Co., 85 Ala. 449; Powell v. Central Plankroad Co., 24 Ala. 441; Savery v. Spence, 13 Ala. 561; Morris v. Tuscaloosa Co., S3 Ala. 565. It is sought to exempt complainants’ case from the general rule above stated, upon the theory that the property is already located at the locks and dams, the places where the work is to he done; that the property is especially adapted to the work and that the work must be done at this season of the year (July, 1904), and stage of the water. The bill in this respect avers, “That most of said property consists of appliances and machinery bought specially and specifically for this work under said contract — Exhibit' A — and that it is fitted and adapted specially for the specific work on said locks and dams; and orators aver further that the work on said locks must be done at this season of the year and at this stage of the water.” We do not understand that the mere fact that property which is adapted to certain use or work and is at the point where the work is to be done brings the party seeking specific performance within the exception to the general rule as above stated. It does not appear that like property might- not have been readily and without unreasonable delay procured. It may be that where goods of special value have been sold, and there are no other similar goods fin the market, a contract for the delivery of them would be specifically performed. But there is a total failure or lack of averments in the bill in this respect. “Or, specific performance might be decreed of a contract for the delivery of chattels, which no one but the defendant can supply, and which are necessary to enable the plaintiff to fulfill an engagement with a third party; but not where the delivery of the chattels by the defendant is a mere question of convenience.” — Waterman on Specific Performance, §§ 17, 18; Moses v. Scott, 84 Ala. p. 611. In order to maintain the bill upon the theory that complainants’ case is exempt from the general rule which has been enunciated, the facts which bring the case — 362 — within the exception to the rule must he averred. — Blackburn v. Fitzgerald, 130 Ala. on page 588. But if it should be .conceded that the hill in the respect above mentioned could he amended and that, on motion to dismiss for the want of equity, it should be considered as amended, yet, the objection to the bill that there is an adequate remedy at law would not be disposed of. Conceding that the property is particularly adapted to the uses it was desired to be put to by the complainants, and that other property of similar kind could not be readily procured, yet it does not appear that the plaintiff could not be fully compensated in damages in a suit at law against the respondents, Ogden Brothers, and the sureties on the bond which was executed by them to complainants for the faithful performance of their obligations under the contract. There is nothing averred in the bill which tends to show that the breach of the contract, on the part of the defendants, will result in any forfeiture cf complain ants’ contract with the government, or that time is of the essence of the complainants’ contract Avit-h the government. Neither does it appear from the averments of the bill that injuries, which may accrue to complainants from a breach of their contract with defendants, may not be readily estimated by a jury and damages commensurate with them all given in the courts of law. — Powell v. The Central Plank Road Co., 24 Ala. 441. The complainants, desiring the possession of the property and asserting their right to it under the contract, on the 25th day of July, 1904, made demand in writing on the respondents, Ogden Brothers, for possession of it and, upon the refusal by Ogden Brothers to deliver the possession, complainants on the 26th day of July, 1904, four days before the bill in this case was filed, commenced an act of detinue in the circuit court to recover possession of the property, and much of said property was seized under the writ. But the plaintiffs aver that the remedy by detinue is inadequate, in that the parties defendant may, bv executing forthcoming bonds, regain possession of the property and remove it from the jurisdistion of the courts. In this view of the case it might — 363 — be said, that the complainants’ appeal, to the chancery court for relief, was an appeal to that court to save them from themselves. They knew, at the time that the detinue suit ivas resorted to, of the statute which authorizes defendants to execute forthcoming bonds and thereby retain possession of the property, and they were also cognizant of the legal principle wihich regards property seized under a writ of detinue, although restored to-the possession of the defendants in the detinue suit, upon the execution of a forthcoming bond, as being in gremio le gis. Notwithstanding this principle of law, the chancery court by the bill for specific performance is asked to withdraw the property, seized.under a. writ issued at the suit of complainants in a court of law, from the jurisdiction of that court and give it into complainants’ possession. If this request should be granted, would not a conflict in the jurisdiction of the two forums be wrought? — Dollins v. Lindsey, 89 Ala. 217; Joseph v. Henderson, 95 Ala. 213; Stanton v. Heard, 100 Ala. 515. True,, the defendants may execute the forthcoming bond in the detinue cases, but is this, any reason for equitable interference when the complainants by their own act conferred that privilege upon the defendants? Moreover, the condition of the forthcoming bond under the statute is, that the defendants, if cast in the suit, will, within thirty days thereafter, deliver the property to the plaintiffs and pay all costs and damages which may accrue from the detention thereof. — Code § 1474. So it seems to us, that the complainants, having by their own conduct placed it in the nower of the defendants to retain the possession of the ruoperty bv executing forthcoming bonds, should not be alhnved to claim this as a ground for equitable relief. The doctrine that equity will interfere to prevent a multiplicity of suits has no foundation for its application in this case. — 1 Pomeroy’s Equity Juris, §§ 249, 255. If complainants have an adequate remedy at law against defendants for breach of the contract and the bond given to secure the performance of the contract, we do not see any necessity for, or danger of, a multiplicity of suits. Upon 'the whole case, as shown by the bill and amended bill, we do not see that a court of law, if applied to, could — 364 — not furnish ample relief. The chancellor took this view of the case, held that the complainants have an adequate remedy at law and dismissed the bill for want of equity. Without prolonging this opinion by further discussion of the case, our conclusion is, that, admitting the facts apparent on the face of the bill as amended, it is without equity and the decree of the chancellor dismissing the bill for want of equity is Affirmed. McClellan, C. J., Haralson and Dowdell, J. J., concurring.