Bromberg v. Eugenotto Const. Co.

• Citation: 158 Ala. 323,48 So. 60
• Parties: BROMBERG v. EUGENOTTO CONST. CO. ET AL.
• Decision Date: 17 December 1908
• Court: Supreme Court of Alabama

48 So. 60

158 Ala. 323

BROMBERG v. EUGENOTTO CONST. CO. ET AL.

Supreme Court of Alabama

December 17, 1908

Appeal from City Court of Birmingham; C. C. Nesmith, Judge.

Suit by F. W. Bromberg against the Eugenotto Construction Company and others. From a decree dismissing the bill, complainant appeals. Affirmed.

Tillman Grubb, Bradley & Morrow, for appellant.

Campbell & Johnson, for appellees.

DOWDELL J.

The appeal in this case is taken from a decree on the demurrer to the bill. The bill is to enforce the specific performance of a contract, and in the alternative, as it is urged in argument, to enjoin the violation of a contract. The contract is for the lease of a storeroom in a proposed building, and by the terms of said lease contract the lessee was to have a certain amount of floor space, of a part of which he complains in his bill he is being deprived of by the respondent, lessor, in the manner of construction of the said building. The question is whether a court of equity will entertain a bill for the enforcement of this contract.

In Madison Athletic Association v. Brittin, 60 N. J Eq. 160, 46 A. 652, in speaking of the specific performance of building contracts, it was said by the New Jersey court "The doctrine of the later cases is that the court will not ordinarily enforce specific performance of building contracts, not only on the ground that damages at law are generally an adequate remedy, but also on the ground of the inability of the court to see that the work is carried out." In Wharton v. Stoutenburgh, 35 N. J. Eq 266, it was said: "There is a class of special and exceptional contracts in which courts of equity refuse to exercise jurisdiction by way of specific performance. These are contracts having such terms and provisions that the court could not carry into effect its decree without some personal supervision and oversight over the work to be done, extending over a considerable period of time, such as agreements to repair or build, to construct works, to build or carry on railways, mines, and the like." In Kendall v. Fray, 74 Wis. 26, 42 N.W. 466, 17 Am. St. Rep. 118, which was a suit to compel specific performance of a contract to erect a building on a certain lot, the court, adopting the rule above announced, denied relief. In Beck v. Allison, 56 N.Y. 366, 15 Am. Rep. 430, where the suit was for the specific performance of a contract in a lease on the part of the lessor to repair damages by fire, among other things, it was said by the court: "The idea that the court can appoint a receiver to take possession of the property and cause the work to be done with money furnished by the defendant would be, in the language of Lord Worthington, absurd." The relief sought was denied. In a case of our own (Bridgeport Co. v. American Fire Proof Co., 94 Ala. 592, 10 So. 704) it was said: "We are of opinion that a bill for specific performance would not lie under the facts as they appear in the present case. The consideration offered is 'the erecting and operating of a car factory,' etc. To carry out this agreement requires the exercise of labor and special skill, judgment, and discretion; * * * and, furthermore, a court of chancery will not undertake to enforce a specific performance, where it involves the exercise of special skill, judgment, and discretion"--citing Iron Age Publishing Co. v. W. U. Tel. Co., 83 Ala. 498, 3 So. 449, 3 Am. St. Rep. 758, and Clark's Case, 1 Blackf. (Ind.) 122, 12 Am. Dec. 214.

It seems, both on reason and authority, that where the erection of the building requires the exercise of skill, judgment, and discretion a court of equity will not assume jurisdiction for the enforcement of specific performance of a contract in such a case. There can be no doubt that the erection of the building, such as is referred to in the contract in this case, would require the exercise of "special skill judgment, and discretion," and would extend over a considerable period of time. The erection of such a building would require the services of the architect, the skilled mechanic, and various workmen and superintendents. Necessarily the distribution and placing of the beams, vents, and air-shafts, component parts of such a building, and the very things of which the bill complains as diminishing the "floor...