Bomer v. Canaday

Whitfield, C. J., delivered the opinion of the court. Doubtless the^’e are cases where equity will decree .the specific performance of contracts for the delivery up of chattels, even, other than those cases in which a pretimn affectionis attaches to them; but they are exceptional cases. It is claimed here, too, that this contract savors of the realty, since it is for the sale of standing trees. But, as said by the supreme court of North Carolina in Paddock v. Davenport, 107 N. C., at page 717 (12 S. E., 465), “The trees were purchased with a view to their severance from the soil, and thus being converted into personal property; ’ ’ and it is in this converted state that they were to be delivered — in the shape of manufactured lumber — to appellants. Passing by, however, the very ingenious and learned argument that this is a contract touching realty, we think it is clear, for two reasons, that this bill cannot be maintained: First, because the contract is too uncertain, vague and indefinite in its terms; and, second, because, if it were clear and definite, its performance by the receiver of the court would unduly tax the superintendence of the court. The cases in which receivers have, under the decrees of the court, specifically performed contracts for the construction and operation of railroads rest upon the principle that the public have a deep interest in the performance of such contracts, and that, ‘ ‘ when the inconvenience of the courts in acting is more [234] than counterbalanced by the inconvenience of the public if they do not act, the interest of the public will prevail.” The case of City of Burlington v. Burlington Water Co., 86 Iowa, 266 (53 N. W. Rep., 246), falls within this principle. See Mr, Freeman’s note to Standard Fashion Co. v. Siegel-Cooper Co. (N. Y. App.), 68 Am. St. Rep., at page 760, s.c. 51 N. E. Rep., 408; 43 L. R. A., 854. This exceptional doctrine has no application in a contract between private citizens about a private matter, wholly unaffected with a public interest. The best discussion we have seen of the class of cases into which this falls is in the above note. Mr. Freeman says, at page 753: “Tbei’e are two classes of cases in which, in a suit for the specific performance of a contract, equity will refuse to grant a decree, although there is no question as to the validity, certainty, mutuality or justice of the contract, and although there is no doubt that the defendant is entirely able to, and in all justice should, perform his contract. The first class, of which instances are rare, embraces those cases in which, by reason of the nature of the subject-matter of the contract sued upon, the court is unable to properly frame a decree for specific performance — as where the contract was to refrain from divulging the secret of an invention (Newbery v. James, 2 Mer., 446), or of a patent medicine (Williams v. Williams, 3 Mer., 157), or where it is sought to enforce the common covenants of husbandry (Rayner v. Stone, 2 Eden, 128), or where the contract is for the sale of good will (Baxter v. Conolly, 1 Jac. & W., 576; Coslake v. Till, 1 Russ., 376). The second class embraces the numerous cases in which, by reason of the nature of the thing contracted to be done, a decree of specific performance must prove an ineffective or inexpedient remedy. While equity aims to supply a remedy wherever there is a right that cannot be adequately enforced at law, it refuses to-be drawn into the absurdity of substituting for an imperfect legal remedy an equitable one less perfect, and more cumbersome and inexpedient. Accordingly, where the enforcement [235] of a decree of specific performance would unduly tax the attention and superintendence of the court; where it would necessitate the compelling of personal acts involving the exercise of special skill, taste or judgment; where the performance of the contract must stretch over a considerable time; where the contract is so complex in its nature that it would be difficult in any case to determine whether an alleged disobedience of the court’s decree was in fact a disobedience, and where the interests of other suitors and the general administration of justice must suffer if the court were to give the necessary care and oversight to the enforcement of its decree — in all these cases, by the general rule, a decree of specific performance will be refused. But the decree of specific performance rests within the discretion of the court. It is not generally granted as a matter of right, and respect for precedent does not influence equity courts as it does those of law.” Again, he says, at page 754: “The proposition is also settled that equity will not decree specific performance of a contract where the enforcement of its decree would involve the direct superintendence of the court. Ross v. Railway Co., 1 Wool., 26 (Fed. Cas., No. 12,080); Fallon v. Railroad Co., 1 Dill., 121 (Fed. Cas., No. 4,629); Blanchard v. Railroad Co., 31 Mich., 43 (18 Am. Rep., 142); Kidd v. McGinnis, 1 N. D., 331 (48 N. W. Rep., 22); Danforth v. Railway Co., 30 N. J. Eq., 12; McCann v. Railroad Co., 2 Tenn. Ch., 773.” In accordance with this general principle, it is now well settled, contrary to the ruling in the earlier-cases, that equity will not decree specific performance of contracts for building and repairing houses. See Id., 755; 22 Am. & Eng. Ene. L. (1st ed.), 996. This contract, as to its uncertainty, falls within the condemnation of the principle well expressed in Ikerd v. Beavers, 106 Ind., 483 (7 N. E., 326), quoted in Louisville N. A. & C. Ry. Co. v. Bodenschatz-Bedford Stone Co., 141 Ind., 264 (39 N. E., 707), where the court says: “In Ikerd v. Beavers, supra, Mitchell, J., speaking for this court, said: ‘With re [236] spect to its essential elements, the qualities of completeness, certainty and fairness, the contract set out in the complaint does not present the requisites warranting a decree for specific performance. Courts can only proceed in cases like this when the parties have themselves agreed upon all the material and necessary details of their bargain. If any of these are omitted, or left obscure or undefined, so as to leave the intention of the parties uncertain respecting the substantial terms of the contract, the case is not one for specific performance. Without supplying all its essential details, no court could so frame its decree as to afford any adequate protection to the defendant, nor can a judgment be entered which would be a final determination of the rights of all the parties.’ ” What, now, are the provisions of this contract, as to these two grounds of objection, uncertainty, and the undue taxing of the superintendence of the court ? We quote a well-put extract from appellee’s brief: “The standing timber sold the defendant, the contract concerning which is to be specifically enforced, is situated in two counties — -Yazoo and Warren. It is scattered over more than 5,000 acres of land. Before a decree for specific performance can be enforced, this timber must be located. Then it must be cut; then hauled; then sawed into lumber; then dried; then delivered to parties at Satartia or Bentonia, and classified. Whex-e the court or its receiver is to get the labor, teams, sawmill and other machinery, and the money to do all this, nowhere appeal’s; but yet it must be done. Again, in some cases all the poplar, oak and ash, on certain desci’ibed lands have been sold; in other cases a certain number of poplar, oak and ash trees, without other more definite description; and in another all merchantable timber. If a decree for specific performance is granted, how is the court to know, without personal supervision, when its order has been carried out ? In the cases where all the poplar, oak and ash were sold, is every tree of the variety mentioned, regardless of its size and condition, to be converted into lumber ? In [237] the cases where only a certain number of trees is conveyed, who is to say what trees are intended ? In the case where all merchantable timber is conveyed, who is to decide what is merchantable timber ? ” Undoubtedly, most of the lumber is indefinitely described where a certain number of poplar and ash trees is conveyed, how many ash and how many poplar are meant, and what particular trees are to be taken. Again, it is wholly optional with appellants whether to take the ash at all or not, and no price whatever is fixed for the ash. There are ten different bodies of timber in Yazoo county and four in Warren. Of the ten in Yazoo, those in paragraphs 1, 5 and 10, only, of the bill, can be said to be definitely described; and only the timber in paragraph 4 of the trees in Warren county. How is the court to be expected to first locate the trees in the other paragraphs, and designate the number of each kind to be taken ? Again, appellant is to specify to what thickness the lumber is to be cut. In view of the very great uncertainty in the terms of this contract, and also because, if certain, to require its specific performance would unduly tax the superintendence of the court, it is clear, we think, that the accurate and learned chancellor properly sustained the demurrer. We have not thought it necessary to refer to the fact that no decree could be made for present performance, and that three years of the five left would be required in which to carry out the contract; or to the admission in the bill that the remedy at law might be adequate through successive replevin suits but for, as is alleged, the multiplicity of such suits which would be necessary. We rest our decree on the two points indicated. Affirmed.