Bomer v. Canady

• Citation: 30 So. 638,79 Miss. 222
• Court: United States State Supreme Court of Mississippi
• Decision Date: 28 October 1901
• Parties: BOMER BROTHERS v. WILLIAM K. CANADAY

30 So. 638

79 Miss. 222

BOMER BROTHERS v. WILLIAM K. CANADAY

Supreme Court of Mississippi

October 28, 1901

FROM the chancery court of Yazoo county. HON. HENRY C. CONN Chancellor.

Bomer Brothers, appellants, were complainants in the court below Canaday, appellee, was defendant there. Complainants filed their bill in chancery against the defendant below, seeking to restrain defendant, by injunction, from selling or in any way incumbering the title to certain standing timber, and seeking the specific performance of a contract. Complainants in their bill, allege that they are wholesale lumber dealers at Brownsville, Tennessee, and the defendant is a resident of Yazoo county, Mississippi, engaged in the operation of a sawmill at Phoenix, in said county; that, on the ninth day of February, 1900, the complainants and defendant entered into a contract, whereby the complainants sold a large quantity of standing timber, on certain lands described, to the defendant, and whereby the defendant executed to the complainants his promissory note for $ 2,999.76, payable on the ninth day of January, 1901, which said note was renewed that the first of said notes reserved an express lien on the timber for its payment, but in the execution of the second note, by oversight or mistake, a reservation of such lien was omitted, and charged that complainants were entitled to such lien nevertheless; that, as a part of the original contract Canaday bound himself to manufacture the standing timber so purchased by him from complainants into lumber, and to ship the same to complainants on certain terms and prices in the bill set forth; that, pursuant to the contract, the complainants began a course of dealing with the defendant, amounting to many thousand dollars, but that the lumber shipped to complainants and paid for under said contract was not manufactured out of the timber mentioned in said agreement, but from timber other than that acquired from the complainants, and that none of the timber so acquired by the complainants had been shipped or sawed; that, at all times since the execution of the contract, the complainants had been fully able and willing and were anxious to carry out the terms and provisions of said contract, etc.; that the defendant was fully able to carry out the terms of the contract, but refuses to so do, without good reason therefor; that complainants sold said standing timber to the defendant at a price much lower than they could have gotten for it from other persons, and made such sale in consideration of said contract, and that the timber so sold by complainants to defendant remains standing and unsawed, and that complainants have outstanding contracts to supply their customers with lumber from time to time, which contracts will consume and require all the lumber aforesaid; that, unless said defendant is compelled to comply specifically with said contract, the complainants will be unable to comply with their own contracts and obligations to their customers, and will sustain loss and damage irreparable; that complainants are without adequate remedy at law because such damages as they might recover against defendant for the breach of said contract would be wholly inadequate to reimburse complainants, because of the special practical features and incidents inhering in the subject-matter and terms of said contract, and because it would be impossible in a suit at law to arrive at a legal measure of the damage which complainants have sustained and will sustain; that complainants acquired the said timber under contracts which required the same to be removed from the land within five years' time, and, at the time of filing this bill, only three years remain in which said timber could be removed under the contract held by complainants, of which the defendant was well informed when he executed the contract sued upon, and that, owing to the limited time remaining in which to remove the timber, it would be wholly impracticable to remove the same unless the defendant, who is fully and amply prepared to do so, is compelled to carry out and specifically perform his contract; that the defendant, having legal title to said timber, has it in his power, and complainants have reason to fear that he will transfer the contract to other persons, or will remove said timber and sell the same to other persons, and thus deprive complainants of the benefit of their contract. The prayer of the bill is that a writ of injunction issue restraining the defendant from selling or in any way incumbering the title to said standing timber, and from selling or incumbering the title to any lumber manufactured therefrom, and, on final hearing, that a decree be rendered requiring the defendant to specifically perform his contract, etc., and for the appointment of a receiver to take charge of said property and carry out and specifically perform the contract.

The contract, which was made an exhibit to the bill, is as follows: "This contract, made and entered into by and between Bomer Bros., of the first part, and W. K. Canaday, of the second part (Bomer Bros., of Brownsville, Tenn. and W. K. Canaday, of Yazoo county, Miss.), viz.: The party of the first part this day sells to the party of the second part certain poplar, ash and oak timber in the county of Yazoo and state of Mississippi, as per contracts this day transferred by the parties of the first part to the party of the second part for the sum of $ 2,999.76, for which amount he, the said W. K. Canaday, this day executes his promissory note, with interest from date. The party of the second part agrees to manufacture said timber into merchantable lumber, to put same on drying sticks, and deliver f. o. b. barge at Satartia, on Yazoo river, or f. o. b. cars at Bentonia, Miss. for the following prices, and sell to the parties of the first part, viz.: Twenty-three dollars for first and second poplar and clear saps thirteen inches and up, for common and saps $ 13 per thousand, for white oak $ 23 per thousand for first and seconds, and $ 13 per thousand for common; the oak to be delivered f.o.b. cars Bentonia. The party of the second part also agrees to give (party of the first part) the refusal of all ash. The above prices are f. o. b. barge Satartia, less 2 per centum on f. o. b. cars at Bentonia, net. The party of the second part (W. K. Canaday) further sells to the party of the first part (the said Bomer Bros.) all poplar lumber that he may manufacture from other standing timber that he now owns in Yazoo county, Miss. at above prices and terms; there being 5,000,000 feet more of the latter. The party of the second part agrees to cut the lumber to the thickness as may be directed by the party of the first part. This 9th day of January, 1900."

The defendant demurred to the bill generally, setting up the following grounds: Want of equity, multifariousness, adequate remedy at law, that complainants are not entitled to relief prayed for. This demurrer the court below overruled, and defendant moved the court for a dissolution of the injunction on the face of the bill. This motion was overruled, and the defendant then filed a special demurrer to portions of the bill as follows: To so much of the bill as prayed for a specific performance of said contract as to the timber purchased of Bomer Bros., and to so much thereof as prayed for a decree for the purchase money of said timber, the note therefor not being due. The special demurrer was sustained by the court, and from this decree complainants appealed to the supreme court.

Affirmed.

A. S. Buchanan and Mayes & Harris, for appellants.

The point which lies at the foundation of this case is the claim on the part of the appellee that this is a bill for the specific performance of a contract for the sale of chattels, and as such will not be decreed, because the remedy at law in damages is adequate. To this position we offer three distinct replies:

1. The bill is not one for the specific performance of a contract for the sale of property merely personal in its nature, but it is for the specific performance of a contract which plainly savors of the realty. Counsel in their demurrer misconceive, we respectfully submit, the true nature of the contract. Harrell v. Miller, 35 Miss. 700.

2. It does not follow that, even if the contract were one for the sale and delivery of property purely personal in its nature, the prayer of the bill would be denied. In connection with such contracts, there are often circumstances of equity and considerations of a special nature which will induce courts of equity to declare an exception to the usual rule and decree specific performance, nevertheless.

3. The objection made, even it were otherwise well taken, cannot be made by a demurrer, but is a defense which must be availed of, if at all, on the hearing; for the reason that the court cannot say, as a matter of law, that a bill will not lie for the specific performance of a contract for the delivery of chattels.

The foregoing propositions are sustained by the following authorities: Waterman on Specific Performance, secs. 16, 17, 19, 28, 29; Fry on Specific Performance, secs. 29, 35; Story's Equity Jurisprudence (10 Ed.) 718.

An objection to the prayer for a specific performance is urged on the ground that the matter which the court is asked to undertake, involves a continuous and personal service, and courts of equity will not essay to enforce a contract specifically under those conditions.

We answer: That the specific performance of a contract is a matter of sound judicial discretion; and while there is such a general rule, it is a rule applied by the courts for their own protection, and not a matter of right with the defendant and the various cases where specific performance has been...