Dilburne v. Youngblood

• Decision Date: 17 December 1888
• Citation: 85 Ala. 449,5 So. 175
• Parties: DILBURNE v. YOUNGBLOOD ET AL.
• Court: Alabama Supreme Court

5 So. 175

85 Ala. 449

DILBURNE v. YOUNGBLOOD ET AL.

Supreme Court of Alabama

December 17, 1888

Appeal from chancery court, Lowndes county; THOMAS W. COLEMAN Judge.

This was a bill filed by H. H. Dilburne against P. E. Youngblood and Peter Lee, to compel specific performance of a contract to transfer a note and chattel mortgage. The bill was dismissed and complainant appeals.

Gamble & Richardson, for appellant.

W R. Houghton, for appellees.

CLOPTON J.

Appellant makes application by the bill for specific performance of a contract in relation to the transfer of a note and mortgage. Ordinarily a court of equity will not decree specific performance of a contract in reference to personal property, unless it clearly appears that on account of the nature of the contract, or the character of the subject-matter, or for other causes, a court of law is incapable of affording full and adequate compensation in damages for a breach of the contract. Savery v. Spence, 13 Ala. 561; Powell v. Central Plank-Road Co. 24 Ala. 441. The note to which the contract related was for the sum of $275, and was made by Peter Lee, and complainant, as his surety, January 19, 1884, payable October 15th of the same year. As security for the note, Lee executed a mortgage on personal property; and at the same time defendants gave complainant an instrument in writing, by which, in consideration of his becoming surety for Lee, they promised, if complainant paid or caused to be paid the sum of $165 on the day of the maturity of the note, or within a reasonable time thereafter, to transfer the note and mortgage to him, with all rights and remedies they might have in law or equity. The bill does not allege the insolvency of defendants, nor show any injury which cannot be fully compensated in damages in a suit at law for a breach of the contract. Performance, or an offer to perform, or a sufficient excuse for failure, of all material acts required by the contract of the party complaining, is essential to obtaining a decree for specific performance by the other party. It appears from the evidence that Lee turned over to complainant several bales of cotton, with which to pay the note. This cotton he sold in October and November, 1884, the proceeds of the sale amounting to more than the sum agreed to be paid defendants for the transfer of the note. He did not pay, nor offer to pay, defendants until after they had sued out, in January...