Carrico v. Stevenson

• Decision Date: 21 February 1911
• Citation: 135 S.W. 260
• Parties: CARRICO v. STEVENSON et al.
• Court: Texas Court of Appeals

135 S.W. 260

CARRICO v. STEVENSON et al.

Court of Civil Appeals of Texas.

February 21, 1911.

Error from District Court, Harris County; W. P. Hamblen, Judge.

Action by M. W. Carrico against J. E. Stevenson and others. There was a judgment of dismissal, and plaintiff brings error. Reversed and remanded.

Lewis R. Bryan, for plaintiff in error. C. R. Wharton, for defendants in error.

REESE, J.

In this case M. W. Carrico sues J. E. Stevenson and others upon a written contract containing many complicated provisions, but the salient features are that, by the terms of the contract, plaintiff was to clear a large body of land belonging to defendant, for which he was to receive as compensation all of the wood and timber taken from the land, and to be paid in addition $3 per acre for the land cleared. Defendant was to have a certain quantity of the land surveyed and marked off by a certain date preparatory to the work of clearing to be done by plaintiff, and by certain other dates other portions of the land. Plaintiff alleged that he at great expense made preparations to do the work, and that defendant had refused to carry out the contract, or to allow him to do so. It is also alleged that defendant had pointed out, as part of the land to be cleared, a tract of 2,000 acres, and plaintiff had, at great expense to himself, performed certain work in clearing this land, when he found that it did not belong to defendant, and he received nothing for his work. The petition with much detail sets out the profits he would have received if he had been allowed to do the work, consisting of the net price which he would have been able to realize from the sale of the cordwood cut from the land and from such logs as were suitable to be manufactured into lumber, amounting to over $100,000. Plaintiff prays that defendant be compelled specifically to perform the contract, and, in the event that he be not entitled to this remedy, that he have damages for the loss of profits, and also for the amount expended by him in the work of clearing the 2,000 acres pointed out by defendant, which, in fact, did not belong to him. Various exceptions were made to the petition and to certain portions thereof, nearly all of which were sustained by the court, and, the plaintiff declining to amend, the cause was dismissed, from which judgment the plaintiff appeals.

There is no merit in appellee's contention that the judgment rendered is not such a final judgment as will support an appeal. The cause was dismissed, and that put an end to the case as effectually as it could be done. That there was no judgment as to the costs, or that plaintiff take nothing, did not operate to render the judgment of dismissal any less a final judgment. R. R. Com. of Texas v. Weld & Neville, 95 Tex. 283, 66 S. W. 1095; Land & Loan Co. v. Winter, 93 Tex. 563, 57 S. W. 39.

There was no error in sustaining exceptions to appellant's prayer for specific performance. We doubt whether the nature of the contract on the part of appellee is such as would authorize a decree for specific performance, where it is apparent that a suit for damages for the breach will afford appellant full relief. 6 Pom. Eq. (3d Ed.)—2 Pom. Eq. Rem.—§ 744. But we think it is an insuperable objection to the relief by specific performance prayed for by appellant that, on account of the nature of the work required by the contract to be done by him, the court could not properly compel him to perform it. It is entirely clear that the court could not properly compel appellant to perform his part of the contract. It involved, not only personal service by him, but, independent of this, the character of the work to be done, that is, the clearing of a large body of land, about 25,000 acres, as stated in the contract, which by the terms of the contract was to extend over a considerable period of time, with many complicated provisions regarding the details of the work, would require of the court such supervision of the work to be done by appellant as it could not properly undertake. We think that it is universally held that a court of equity will not undertake to decree specific performance of contracts of this nature. 6 Pom. Eq. Juris. (3d Ed.) §§ 757-760. This is not controverted by appellant, but he seeks to avoid the application of this principle upon the ground that he is ready, able, and willing and offers to perform. This is not sufficient for appellee's protection. If the contract on the part of a plaintiff who seeks this remedy is not such as he can be compelled to perform, if he has in fact done so, he would be in a position to require specific performance on the part of the defendant, who would not be allowed to defend on the ground that plaintiff could not, on account of the nature thereof, be compelled to perform his part, but that is as far as the plaintiff's rights extend on this point. "Before plaintiff has performed the personal service, he could not have specific performance, but after his part is executed he can get the land." 6 Pom. Eq. Juris. (3d Ed.) 771. That equity will not compel one party to a contract to perform, where it cannot also compel specific performance by the other party, is, we think, well settled. 6 Pom. Eq. Juris. § 769 et seq.; Waterman, Sp. Perf. § 198; Redwine v. Hudman, 133 S. W. 426; Marble Co. v. Ripley, 77 U. S. 359, 19 L. Ed. 955. We might...