Avery v. Ryan

Lyon, J. I. The appeal from the order sustaining the general demurrers to the amended complaint will first be determined. The action is essentially one to enforce the specific performance of an executory contract to transfer to plaintiff certain shares of the capital stock of the defendant the Milwaukee City Railroad Company, the new corporation organized by the purchasing defendants, and, failing that, to recover, by way of compensation, $75,000, the alleged value of such stock, from the defendants. The demurrers raise the question whether the plaintiff has an adequate remedy at law. If he has, the demurrers were properly sustained. Gale v. Cutler, 1 Pin. 253; Trustees of Kilbourn Lodge v. Kilbourn, ante, p. 452, and cases cited. The stock which the plaintiff seeks to obtain in this action, through the specific enforcement of his executory contract with Ryan and his associates, is personal property. [600] R. S. sec. 1151. It is also a kind of property customarity bought and sold in the market, like grain, lumber, and numerous other commodities; and from its very nature has no peculiar special value other than its market value. The plaintiff has ascertained and stated such value. The case could not be different in principle were the subject matter of the controversy 1,000 bushels of wheat or 100,000 feet of pine boards, or any other quantity of a specified grade, instead of shares of stock in a street railroad companjn In all such cases compensation in damages is considered and held to be an adequate remedy for the breach of an execu-tory contract to sell or purchase, especially where no trust relation exists between the parties. Such relation did exist in Dousman v. Wisconsin & L. S. M. & S. Co. 40 Wis. 418, and Dousman was the equitable owner of the stock. No-such relation exists here. The plaintiff never owned the stock in controversy, and never had any lien upon it. H& dealt with Byan and his associates at arms-length and on equal terms. Neither is the solvency of the purchasing defendants questioned. The presumption is they are pecun-iarily responsible for any judgment for damages the plaintiff may recover against them for their failure to transfer the stock to him as they agreed. Under these circumstances the plaintiff has an adequate remedy at law, unless it is destroyed or impaired by the facts that Byan and the Fahn-stocks reside in another state and have no property in this-state. The learned counsel for the plaintiff cites authorities to the proposition that those facts render the remedy at law inadequate. The principle of these adjudications seems to be that, if the plaintiff must resort to a foreign tribunal to enforce his legal rights, the remedy is inadequate. We do not here controvert this doctrine, although we do not determine its correctness. The plaintiff has an adequate legal remedy in the courts-of this state. His amended complaint shows that the cap [601] ital stock of the Milwaukee City Railway Company — worth by his own showing $1,500,000- — has been transferred to the new corporation, and that the defendants are the owners thereof. He may bring his action at law against the purchasing defendants for damages for the breach of his contract, attach their stock, and, after he obtains judgment, sell sufficient thereof on execution to pay such judgment. E. S. sec. 2731, subd. 5; Id. secs. 2738, 2989, 2990. If the new corporation has not actually transferred the stock to the defendants, the same may be reached in a garnishee action against such corporation. We conclude that the plaintiff has an adequate remedy at law, and hence that the demurrers were properly sustained. II. It necessarily results from the above conclusion that the preliminary injunction was properly dissolved. A bill barren of equity will not support an injunction. This proposition is not controverted. It is claimed that the order of reference to ascertain the damages sustained by reason of the injunction was prematurely made. The point is well taken. There is no breach of the undertaking on the injunction until the court finally decides that the plaintiff was not entitled to an injunction. E. S. sec. 2778; Kane v. Casgrain, 69 Wis. 430. The order of' reference in this case was made before any such final decision. But, although the order was prematurely entered, it does not necessarily follow that it must be reversed. It is now finally decided that the plaintiff was not entitled to an injunction, and the condition of the undertaking is broken. It would be idle to reverse the order of reference, when, upon the cause being remanded, it would be the duty of the superior court to repeat the order, or in some other way to assess the defendants’'damages on the injunction. The order is now correct, and should not be disturbed, although prematurely made. See State ex rel. Voight v. Hoeflinger, 31 Wis. 257. [602] Perhaps a more elaborate opinion would have been written had not the legal questions involved in the case been so fully and ably considered and discussed by Judge Notes in his opinion sustaining the demurrers, which will be inserted in the report of the case. By the Court.— The orders from which these appeals were taken are both affirmed.