Blue Ribbon Creamery v. Monk
| Decision Date | 03 April 1933 |
| Docket Number | 30325 |
| Citation | 147 So. 782,168 Miss. 130,147 So. 329 |
| Court | Mississippi Supreme Court |
| Parties | BLUE RIBBON CREAMERY v. MONK et al |
Suggestion Of Error Overruled May 1, 1933.
APPEAL from chancery court, Hinds county HON. V. J. STRICKER Chancellor.
Suit by J. T. Monk and others against the Blue Ribbon Creamery. From the decree rendered, the defendant appeals, and the plaintiffs cross-appeal. Affirmed on the cross-appeal, and judgment, reversed, and the bill of complaint dismissed on the direct appeal.
Affirmed on cross-appeal, and reversed and bill dismissed on direct appeal. Overruled.
R. H. & J. H. Thompson, of Jackson, for appellant.
An analysis of the bill of complaint reduces it to the mere allegation of the indebtedness claimed by complainants to, be owing to them by defendant. Everything else charged or recited in the bill of complaint is mere surplusage.
The decree denied each of the complainants a money recovery and adjudged that the defendant was not indebted to the complainants, or to either of them. This adjudication should have been followed by a decree dismissing the suit denying complainants all relief. They had no, existing causes of action. When the complainants were adjudged, as each of them was, to have no existing cause of action, the case was left resting upon matters set out in the bill which we submit consist of more surplusage, namely that part of it relating to a construction of the contract and its specific performance in the future, with no assurance that there would afterwards come into existence a cause of action between complainants, or any one of them, and the defendant arising from future sales of milk. If a future cause of action could be anticipated, this would not give complainants an existing one.
26 Am. & Eng. Encyc. of Law (2 Ed.), pages 114-135; 36 Cyc., pages 543 to 796; 58 C. J., pages 846 to 1284.
The chancellor seems to have had in mind advisory judgments, authorized by law in a few American states, but the courts of this state are not authorized to render such judgments.
Specific performance is rarely decreed in reference to personal property.
26 Am. & Eng. Encyc. of Law (2 Ed.), page 18 and notes; 36 Cyc. 554; Fry on Specific Performance, sections 29 and 30, pages 54, 55.
The Mississippi decisions deny specific performance in this kind of a case.
Hoy v. Hansborough, Freeman's Chancery Reports, 553-543; Murphy v. Clark, 1 Smedes & M. 221; Butler v. Hicks, 11 Smedes & M. 79; Scott v. Billgerry, 40 Miss. 119; Whitworth v. Harris, 40 Miss. 483; Aston v. Robinson, 49 Miss. 348; Bomer v. Cannaday, 79 Miss. 222; Sims v. Vanmeter Lumber Co., 96 Miss. 449.
The court will not grant specific performance merely to save a multiplicity of suits.
Our contention is that the schedule of milk prices cannot properly be interpreted to fix an exact sliding scale.
In equity the specific performance of a contract is not a matter of right, but of sound legal discretion. Hard and unconscionable bargains will never be decreed to be specifically performed, and only such contracts as are just and fair in all their parts will be enforced.
Daniel v. Frazier, 40 Miss. 507.
Enochs & Enochs, of Jackson, for appellees.
It will be noted that the contracts are silent as to the times of payment for the milk delivered thereunder. This being true, the contracts require payment on delivery of the milk each day.
This means that each dairyman, if he were remitted to a court of law, would have from twenty-eight to thirty-one lawsuits per month, a total of three hundred sixty-five per year, or three hundred sixty-six for leap years, which multiplied by seven, the number of dairymen, would be two thousand five hundred fifty-five to two thousand five hundred sixty-two lawsuits per year, and for three years, three times that. Learned counsel for appellant say this is a multitude of suits, and we agree with them.
A multitude of suits may or may not be a multiplicity of suits, notwithstanding multiplicity means, in common parlance, a great number.
Tribbett et al. v. Illinois Central R. Co., 70 Miss. 182, 12 So. 32.
Before parties may join their causes of action in equity to avoid a multiplicity of suits, it must appear that each separately might have begun his suit in equity.
A constantly recurring wrong under a contract is no different from a constantly recurring wrong by trespass, so far as equity jurisdiction is concerned.
Tribbett et al. v. Illinois Central R. Co., 70 Miss. 182, at page 192; Warren Mills v. New Orleans Seed Company, 65 Miss. 391, 4 So. 298; Illinois Central Railroad Co. v. Garrison et al., 81 Miss. 257, 32 So. 996; Cumberland Tel. & Tel. Co. v. Williams, 101. Miss. 1, 57 So. 559, 561; Guice v. Ill. Central R. Co., 111 Miss. 36, 71 So. 259, 260.
To prevent numerous, expensive, vexatious and oppressive suits, "equity may properly interpose and afford relief."
The possibility of the relief at law is not sufficient to defeat the jurisdiction of equity.
Richardson v. Brooks, 52 Miss. 118, 124; 4 Johns. Ch., 290; Boyce v. Grundy, 3 Peters 215; Barnes v. Lloyd, 1 How. 584; Coahoma County v. J. H. Brown et al., 58 Miss. 835, 840; Bauer v. International Waste Co., 201 Mass. 197, 87 N.E. 637; Dailey et al. v. City of New York et al., 156 N.Y.S. 124; Walla Walla v. Walla Walla Water Co., 172 U.S. 1.
It is manifest, under the decisions of this court, and of the other courts, that the remedy at law of the appellees is inadequate.
Jurisdiction to compel specific performance does not rest upon any distinction between real and personal estate, but on the ground that damages at law will not afford a complete remedy.
Manifestly the appellees have no adequate remedy at law, and if not, then equity will afford the appropriate relief of specific performance and injunction.
Bomer Bros. v. Cannaday, 79 Miss. 222, 235, 30 So. 638; Great Lakes & St. L. T. Co. v. Scranton Coal Co., 239 F. 603; Montgomery Traction Co. v. Montgomery Light & Water Co., 229 F. 672, 144 C. C. A. 82; Ames, Lectures on Legal History, p. 376; Guffeey v. Smith, 237 U.S. 101, 35 S.Ct. 526, 59 L.Ed. 856.
The discretion resting in courts of equity to refuse specific performance of certain continuing contracts, is not a limitation upon their jurisdiction to require specific performance.
Municipal Gas Co. v. Lone Star Gas Co., 259 S.W. 684.
The jurisdiction of courts of equity to decree the specific performance of agreements is of a very ancient date, and rests on the ground of the inadequacy and incompleteness of the remedy at law.
Union Pacific Ry. Co. v. Chicago, etc. Ry. Co., 163 U.S. 564, 600; Gray v. Citizens Gas Co. of Port Allegheny, 206 Pa. 303, 55 App. 988; Franklin Telegraph Co. v. Harrison et al., 145 U.S. 459, 474.
In the case at bar, there can be no undue tax of supervision on the court. The learned chancellor below, who is undoubtedly the busiest chancellor in the state, saw no such burden of supervision. Indeed, there will be no supervision required of the court, as this is not a contract calling for personal service in the building of a railroad, cutting timber, and the like. But for the dispute as to the price, there is no controversy between the parties.
It is true courts of equity will not decree specific performance of unfair and unconscionable contracts, but the test of fairness and conscionableness is to be determined at the time they were entered into.
Great Lakes & St. L. T. Co. v. Scranton Coal Co., 239 F. 603; Carson v. Percy, 57 Miss. 97, 101.
Argued orally by J. H. Thompson, for appellant, and by D. G. Enochs, for appellees.
J. T. Monk and six others, dairymen, filed a bill in the chancery court of the First district of Hinds county against the Blue Ribbon Creamery seeking the specific performance by the creamery of separate contracts with each of said dairymen for the purchase by the creamery of all milk produced by them, and for alleged unpaid balances due them for milk theretofore delivered to the creamery. Upon the trial of the cause, there was a decree construing the contracts, and ordering specific performance by injunction against the breach thereof, but denying the dairymen recovery for any alleged past-due balances on the ground that there had been accord and satisfaction by the acceptance of the amounts tendered in bimonthly settlements for milk delivered. The decree retained full jurisdiction of the cause for further directions, supervision, and enforcement of the contracts in accordance with the construction thereof by the court. From this decree, the creamery appealed, while the dairymen prosecuted a cross-appeal from that part of the decree denying them a recovery for unpaid balances.
On and prior to May 27, 1930, the appellees were each separately engaged in the business of dairying, and were selling the milk produced by them at retail in the city of Jackson Mississippi, having established trade routes, regular customers, and good will, in said city, for the sale and distribution of milk. On that date...
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...Inc. v. Southwest Drug Co., 244 Miss. 877, 147 So.2d 635, motion overruled 244 Miss. 877, 149 So.2d 319 (1962); Blue Ribbon Creamery v. Monk, 168 Miss. 130, 147 So. 329, suggestion of error overruled 168 Miss. 130, 147 So. 782 (1933); Jones v. Mississippi Farms Co., 116 Miss. 295, 76 So. 88......
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