Ex parte Jim Dandy Co.
| Citation | 286 Ala. 295,239 So.2d 545 |
| Decision Date | 17 September 1970 |
| Docket Number | 6 Div. 771 |
| Parties | Ex parte JIM DANDY COMPANY, a corporation. In re I. H. SUGERMAN v. The JIM DANDY COMPANY. |
| Court | Alabama Supreme Court |
Hobart A. McWhorter, Jr., Warren B. Lightfoot, Birmingham, for petitioner.
Lucien D. Gardner, Jr., Leigh M. Clark, Francis Hare, Birmingham, for respondent.
In this case, this court reviews an order of the circuit court, in equity, denying the respondent's motion to transfer from equity to law a proceeding which the complainant commenced by filing in the equity court a bill for declaratory decree and supplemental coercive relief.
The bill was filed by I. H. Sugerman, a natural person, who will be referred to as the complainant. The bill is filed against a corporation formerly named Western Grain Company and now named The Jim Dandy Company. The corporation will be referred to as the respondent.
The respondent filed its motion to transfer the suit to the law side, and the trial court denied the motion. Respondent applied to this court for rule nisi to be directed to the trial judge requiring him as such judge, to vacate his order denying the motion and to grant the transfer to law, or, in the alternative, to appear and show cause why he should not vacate the order denying transfer and transfer the suit to the law side. This court issued the rule nisi. The trial judge filed demurrer and answer in this court and asserts various reasons why the cause should not be transferred to law.
Counsel for the trial judge say in brief:
'. . .. Consequently we will concede, for the purpose of this petition, that a respondent in equity is entitled to move to transfer to the law side of the court and to have the motion granted if the action is not one of equitable cognizance because the remedy at law is adequate. . . ..'
In Ex parte Louisville & N.R. Co., 211 Ala. 531, 100 So. 843, this court held that mandamus would lie to review an order denying transfer of a cause from law to equity. The reason for the holding is stated as follows:
(211 Ala. at 532, 100 So. at 844)
See Jones v. Wright, 220 Ala. 406, 125 So. 645, where the court said:
(220 Ala. at 407, 125 So. at 646)
For the reason above expressed, review by appeal from the final decree in the instant case would not be an adequate remedy for respondent and review by mandamus appears to be appropriate here.
On the merits.
In his bill, complainant avers that on August 1, 1966, he and respondent entered into a contract, for a term of approximately thirteen years, whereby complainant was employed by respondent '. . . in an executive capacity, to have such duties and responsibilities and to do and perform such offices and functions in an executive capacity as Western (respondent) may determine.' (Par. Added)
The contract provides that complainant agrees to work full time for respondent and not to work for anyone else without respondent's consent during the term.
Complainant's compensation is to be $70,000.00 per year plus deferred compensation to be credited, as stated in brief, at the rate of $22,000.00 per year.
Complainant avers that at the time the contract was entered into, and thereafter until July 14, 1969, complainant was president and chief executive officer of the respondent corporation, and that it was understood and agreed by the contracting parties that, during the term of the contract, complainant was to be the chief executive officer of the corporation.
Complainant avers that on July 14, 1969, the board of directors of respondent terminated his relation as chief executive officer and divested him of his position and duties as chief executive officer; that on September 2, 1969, and thereafter he has been assigned duties that are not in an executive capacity; that at the contract date and thereafter, respondent had its principal office, a factory, and an office building in Birmingham, Alabama, which was the only place for complainant to perform his duties under the contract; that to induce complainant to make his permanent residence in Birmingham, respondent agreed to lend complainant $131,000.00, without interest to assist him in acquiring a permanent residence there; that it was understood and agreed that his principal location for performance of his duties was to be Birmingham; that on August 20, 1969, respondent ordered him to report to offices at Savannah, Georgia, for regular performance of his duties under the contract and he reported to Savannah; that respondent removed him from the office of president and designated him as a vice-president; that he has been demoted from the highest echelon of duties to one of the lowest echelon of duties in the 'official family' of respondent if he has any authority or is a member of said official family.
Other grievances are alleged in the bill. We understand that complainant is continuing to perform the duties assigned to him and that respondent continues to pay him the agreed compensation.
Complainant alleges that respondent has breached the contract; that a justiciable controversy exists; and that he is ready, willing, and able to perform the contract on his part according to its terms, and that it would constitute a breach of the contract for respondent to pay the total compensation thereunder in one sum at the present time and denies the right of respondent to do so.
Complainant prays for relief as follows:
'. . . that upon final hearing the Court will ORDER, ADJUDGE, DECREE and DECLARE as follows:
'(1) That respondent has breached said contract and complainant is entitled to all of the rights afforded him under said contract.
'(2) That respondent be required to pay complainant the compensation and benefits under said contract over the period of years designated in the contract at the times provided for in the contract.
'(3) That respondent be restrained and enjoined from directing or requiring complainant to perform services under said contract, in such a way as to constitute a breach of said contract as particularized alternatively in lettered subparagraphs of paragraph 3 hereof.'
Complainant prays also for general relief.
In the petition for mandamus filed in this court by the respondent, it is alleged:
'. . . paragraphs numbered '(2)' and '(3)' of the prayer for relief . . . represent in truth and in fact a request for specific performance of a contract for personal service contrary to the provisions of Tit. 9, § 55, Ala.Code 1940 (Recompiled 1958).' 1
In his answer to the rule nisi, the trial judge takes issue with and 'denies specifically' the allegation in the petition for mandamus that prayers (2) and (3) of the bill of complaint represent a request for specific performance of a contract for personal service. The trial judge states in his answer that:
'. . . neither prayer (2) nor prayer (3) of the prayer for relief represents a request for specific performance of a contract for personal service contrary to the provisions of Tit. 9, § 55 . . ..'
An issue of law is thus presented whether prayers (2) and (3) of the bill are prayers for specific performance of a contract for personal service.
By its terms, the contract provides that the complainant '. . . is now employed by Western (the respondent) in an executive capacity . . . to do and perform such offices and functions in an executive capacity as Western may determine,' (Par. Added) and that complainant '. . . shall devote his full time and attention, knowledge and skill to such employment . . ..' Surely this is a contract for personal service. Counsel for the trial judge do not appear to suggest that complainant's obligation under the contract is not 'An obligation to render personal service' or that respondent's obligation is not 'An obligation to employ another in personal service.' Counsel do appear to contend that in prayers (2) and (3) complainant is not asking for specific performance of the contract. In brief, counsel say that:
'The second prayer asks that Petitioner (the respondent) be required to pay Sugerman the compensation and benefits under the contract over the years at the times provided for in it. . . ..' (Par. Added)
It seems to us that prayer (2) is a prayer for direct and express enforcement of respondent's obligation with respect to payment of compensation to its employee for his personal service under the contract.
Counsel say further:
The contract contemplates that respondent shall direct or require complainant to perform duties and responsibilities in an executive capacity as respondent may determine. Prayer (3) seeks to enjoin respondent from directing or requiring complainant to perform duties contrary to the terms of the contract.
What complainant seeks appears to be specific performance of respondent's agreement to assign complainant duties of an executive nature and to compel respondent to perform its agreement by enjoining respondent from not performing the agreement. 2
In a suit for injunction...
To continue reading
Request your trial
-
Melof v. Hunt
...the requested relief generally will benefit not only them but all other persons subject to the challenged tax. See Ex parte Jim Dandy, 286 Ala. 295, 239 So.2d 545, 554 (1970) (determination rendered subsequent to taxpayer paying allegedly illegal taxes under protest "is in substance and eff......
-
Harper v. Brown, Stagner, Richardson, Inc.
...and not to be dependent upon the absence of another adequate remedy. City of Dothan, 738 So.2d at 909 (citing Ex parte Jim Dandy Co., 286 Ala. 295, 239 So.2d 545 (1970)). The trial court's ruling in a declaratory-judgment action carries no presumption of correctness; we must view the allega......
-
City of Dothan v. Eighty-Four West, Inc.
...of declaratory relief was intended to be alternative and not dependent upon the absence of another adequate remedy. Ex parte Jim Dandy Co., 286 Ala. 295, 239 So.2d 545 (1970). We find the existence of two controversies: (1) the volume of water allowed to pass through the May 1991 drainage e......
-
Ellis v. Pope
...Act, § 6-6-220 et seq., Code of Alabama, 1975, does not depend on the presence or absence of other remedies. Ex parte Jim Dandy Co., 286 Ala. 295, 239 So.2d 545 (1970). The fact that another remedy is available to the plaintiffs does not preclude an action seeking a declaratory judgment, pa......
-
Specific Performance of Enlistment Contracts
...42 Eng. Rep. 687 (Ch.). 110 Cent. New York Basketball, Inc. v. Barnett, 181 N.E.2d 506 (Ohio Com. Pl. 1961). 111 Ex parte Jim Dandy Co., 239 So. 2d 545 (Ala. 1970). 112 U.S. Dep’t of Def., DD Form 4/1, Enlistment/Reenlistment Document Armed Forces of the United States (Oct. 2007) [hereinaft......