Adams v. Messenger

• Decision Date: 19 June 1888
• Citation: 147 Mass. 185,17 N.E. 491
• Parties: ADAMS v. MESSENGER.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

147 Mass. 185

17 N.E. 491

ADAMS v. MESSENGER.

Supreme Judicial Court of Massachusetts, Middlesex.

June 19, 1888

COUNSEL

Wm.B Durant, for plaintiff.

"Agreements for the assignment of a patent, and for delivery of chattels which can be supplied by the vendors alone, are among those which will be specifically enforced." Hapgood v Rosenstock, 23 F. 86; Satterthwait v. Marshall, 4 Del.Ch. 337; Binney v. Annan, 107 Mass. 94; Fry Spec.Perf. § 33; Wat.Spec.Perf. § 18; Burke v. Smyth, 3 Jones & L. 193; Willis v. Astor, 4 Edw.Ch. 594. Specific performances will be ordered of an agreement to sell shares of stock, where the value is uncertain, or the stock cannot be purchased in the market, (Wat.Spec.Perf. § 19; White v. Schuyler, 1 Abb.Pr.N.S. 300; Treasurer v. Mining Co., 23 Cal. 390;) also of an agreement to construct an archway under a railroad, or a siding of a specified length, (Storer v. Railway Co., 2 Younge & C.Ch. 48; Greene v. Railway Co., L.R. 13 Eq 44;) and of an agreement to accept and pay for waterworks, ( Water-Power Co. v. Columbia, 5 S.C. 235.) It is evident from these decisions that the mere facts that the delivery of chattels may call for mechanical skill and personal labor on the part of the defendant will not prevent the court from exercising jurisdiction. The value of a patent-right cannot be ascertained by computation only, or by any sufficient certain estimate, so as to make a suit at law for damages an adequate remedy for a breach of a covenant to assign the right. This is the true test of the jurisdiction for specific performance. Satterthwait v. Marshall, 4 Del.Ch. 337. Equity will order a defendant to apply for a patent, and, when obtained, assign it to the plaintiff. Runstetler v. Atkinson, 4 MacArth. 382; Newell v. West, 13 Blatchf. 114; Somerby v. Buntin, 118 Mass. 279. Unless, then, the fact that the letters patent are to issue from the government of a foreign country prevents the exercise of equitable jurisdiction in this case, the plaintiff would be entitled to relief under the authority of the decisions just cited. The prayer of the bill is merely that the defendant perform his agreement to apply for letters patent, and, when received, (or if received,) assign them. It is not necessary, for this purpose, that the defendant should leave the state of Massachusetts. He can make application and receive a patent by mail. He is not asked or required to go out of the jurisdiction. It is sufficient if he simply signs his name, and makes affidavit to the application, here in Massachusetts. Pat.Laws Can. 35 Vict. c. 26; 36 Vict. c. 44, §§ 6, 11-15. "A personal appearance of the applicant or his representative at the patent-office is not required" Rules of Canadian Patent-Office, Nov. 1st, 3d, 5th. The plaintiff submits that the courts have gone further already than to order a defendant to apply by mail to the government of Canada, with the proper papers, and, if he receives a patent, assign it to the plaintiff. A person may be enjoined from suing abroad, in breach of a contract, or may be compelled to convey land situated abroad. Pingree v. Coffin, 12 Gray, 288; Dehon v. Foster, 4 Allen, 545; Wat.Spec.Perf. § 48; 2 Story, Eq.Jur. §§ 899, 900, 1291; Fry,Spec.Perf. §§ 102, 103. A creditors' bill may be maintained here to reach land in a foreign country, and a conveyance of the same compelled. Such conveyance, necessarily, must be according to the laws of the foreign country, and the deeds must be sent to the foreign country for record. Bailey v. Ryder, 10 N.Y. 363; Cleveland v. Burrill, 25 Barb. 532; Newton v. Bronson, 13 N.Y. 587. If a defendant can be ordered not to apply to the court of a foreign country, as has been decided, it would seem, conversely, that he might be ordered to apply, if he can do so without leaving the jurisdiction. Lord Portarlington v. Soulby, 3 Mylne & K. 104. But, however these grounds of demurrer may be disposed of, it appears that the plaintiff's bill prays also for an assessment of damages. Therefore, if the court, for any reason, should deny specific performance of the contract, the bill may be "retained, and, under the prayer for damages, the decree may be moulded to one of damages for nonconveyance." GRAY, C.J., in Pingree v. Coffin, 12 Gray, 305; Andrews v. Brown, 3 Cush. 136; Peabody v. Tarbell, 2 Cush. 226. Specific performance and damages may be prayed for in the same bill, and relief granted, partly by way of damages, and partly by order for specific performance. Curran v. Water-Power Co., 116 Mass. 90; Aldr.Eq.Pl. 201, 202; Milkman v. Ordway, 106 Mass. 253. "No action or suit shall be defeated on the ground that there is an adequate remedy at law, or that the relief sought can only be obtained by a suit in equity." The dismissal of the bill was therefore erroneous. St.1883, c. 223, § 17. If any argument should be addressed to the court upon the form of the bill, it seems sufficient to say that the form is taken from the statute of 1883, and the only text-book upon equity pleading and practice thereunder, and that it sets out a mutual agreement under seal. St.1883, c. 223; Aldr.Eq.Pl. & Pr. 322.

Charles S. Knowles, for defendant.

The common law is, and the law of this commonwealth, both by common and statute law, has been, until altered by St.1887 c. 383, that no plaintiff shall be permitted to maintain a suit in equity when he has a plain, adequate, and complete remedy at law by a suit for damages. Russell v. Barstow, 144 Mass. 130, 10 N.E. 746; Pub.St. c. 151, § 2; Hodge v. Cole, 140 Mass. 116, 2 N.E. 774; Stetson v. Moulton, 140 Mass. 597, 600, 5 N.E. 809; Allen v. Storer, 132 Mass. 372, 377; Perkins v. Hendryx, 23 F. 418; Knight v. Ashland, 61 Wis. 246, 21 N.W. 72. St.1883, c. 223 § 17, did not extend or enlarge the equity jurisdiction of the court, but simply indicated a more speedy and direct course to be pursued by a plaintiff who had brought a suit in equity when his remedy was at law, and vice versa. Its construction is indicated by decisions rendered since the passage of said statute. Russell v. Barstow, 144 Mass. 130, 10 N.E. 746; Lenz v. Prescott, 144 Mass. 505, 514, 11 N.E. 923; Hodge v. Cole, 140 Mass. 116, 2 N.E. 774; Stetson v. Moulton, 140 Mass. 597, 600, 5 N.E. 809; Pratt v. Pond, 5 Allen, 59. St.1887, c. 383, does not give a court of equity jurisdiction over this case, since this suit was begun before the passage of that act. These statutes, enlarging and extending equity jurisdiction, must be construed strictly. Buck v. Dowley, 16 Gray, 555, 558; Pratt v. Pond, 5 Allen, 59. According to practice in this commonwealth, a bill is demurrable, not only if it show that the plaintiff has a remedy at law, but if it fails to show that he is without such remedy. Pool v. Lloyd, 5 Metc. 525, 528, 529; Woodman v. Saltonstall, 7 Cush. 181; Pratt v. Pond, 5 Allen, 59. The supreme court, sitting in equity, cannot grant the relief which is sought by the prayer of the plaintiff's bill. The general rule of the common law is that a bill in equity will not be maintained to enforce the specific performance of a contract, the subject-matter of which is personal property; and it devolves upon the party seeking such performance to put himself within one of the exceptions to this general rule. Specific performance of a part only of a contract will not be decreed; the door being left open for other suits. Marble Co. v. Ripley, 10 Wall. 339, 359; Pub.St. c. 151, § 2; Stocker v. Wedderburn, 3 Kay & J. 393, 407; Cowles v. Whitman, 10 Conn. 121; Coal Co. v. Canal Co., 31 N.Y. 91; Kimberley v. Jennings, 6 Sim. 352; McLane v. Elmer, 4 Ind. 239; McGarvey v. Hall, 23 Cal. 140; Bank v. Seton, 1 Pet. 299; Carlisle v. Carlisle, 77 Ala. 339. A court of equity will not enforce the specific performance of a contract for personal services, especially when such services stipulated for require the exercise of mechanical skill, intellectual ability, or judgment, (Wollensak v. Briggs, 20 Bradw. 50; Stocker v. Wedderburn, 3 Kay & J. 393; Clarke v. Price, 2 Wils. 157; Ford v. Jermon, 6 Phila. 6; Mapleson v. Del Puente, 13 Abb.N.C. 144; Kemble v. Kean, 6 Sim, 333; Marble Co. v. Ripley, 10 Wall. 339, 359; Hamblin v. Dinneford, 2 Edw.Ch. 529;) nor to enforce the specific performance of a contract to make an invention, or to build a machine embodying the same, (Wollensak v. Briggs, 20 Bradw. 50;) nor to enforce the specific performance of a contract when it is impossible for it to specify or describe in its decree the particular thing to be done, or when, if it attempted to lay its mandate upon the defendant to proceed, it could never know with certainty whether its order was obeyed, and especially never when there is any possibility that collusion may defeat the object of the decree, ( Id.; Ford v. Jermon, 6 Phila. 6; Marble Co. v. Ripley, 10 Wall. 339, 358.) The securing of letters patent in Canada involves the action of officers of a foreign government, and cannot be the subject of an order for specific performance, nor will the court ever require specific execution when a compliance with its mandate involves the acts, will, or volition of persons not parties to the action, and not within the jurisdiction of the court. Hurlbut v. Kantzler, 112 Ill. 482. The plaintiff's bill cannot be sustained, unless the objects of its prayer are definite and certain, and nothing is left to be supplied by inference or conjecture. Carlisle v. Carlisle, 77 Ala. 339; 12 U.S.Dig. (1st Ser.) 613; Marble Co. v. Ripley, 10 Wall. 339, 358. The plaintiff's bill was brought primarily for specific performance; and, as it cannot be maintained for that form of relief, the bill will not be retained for the granting of an injunction, nor for the assessment of damages, which objects are only ancillary and secondary to the prayer for...