Hissam v. Parrish et al.
| Decision Date | 21 March 1896 |
| Citation | 41 W.Va. 686 |
| Parties | Hissam v. Parrish et al. |
| Court | West Virginia Supreme Court |
In order that a contract may be specifically enforcedin a court of equity, it must be upon a valuable consideration, reasonably certain as to its subject-matter, its stipulations, its purposes, its parties, and the circumstances under which it is made; it must be, in general, mutual in its obligations and its remedy.
A contract, to be specifically enforced, must be mutual; that is to say, such that it might, at the time it was entered into, have been enforced by either of the parties against the other of them. Whenever, therefore, from personal incapacity, the nature of the contract, or any other cause, the contract is incapable of being enforced against rone party, that party is equally incapable of enforcing it against the other, though its execution in the latter way might in itself be free from the difficulty attending its execution in the former.
A court of equity will not entertain jurisdiction for specific performance of an agreement respecting goods, chattels, stock, choses in action, and other things of a merely personal nature, where compensation in damages furnishes a complete and satisfactory remedy.
Campebll & Holt and E. S. Doolittlb, for appellants, cited Pom. Eq. Jur. §§ 1401; 1402, 1405; Pom. Spe. Perf. § 165; Beach, Cor. § 517; Code c. 54, s. 8; 25 W. Va. 127, 528; 35 W. Va. 194.
Wyatt & Hutchinson and Northcott & Perry for appellee, cited 22 Am. & Eng. Enc. Law, 1020, 1021; 35 W. Va. 194; 25 W. Va. 470; 14 S. E. Rep. 255; 3 N. E. Rep. 142; 79 Ala. 180; 6 Colo. 318; 45 N. J. Eq. 95; 38 N. E. Rep. 432; 82 Ala. 370; 8 So. Rep. 368.
This was a suit in equity brought by D. F. Hissam, in the Circuit Court of Cabell county, against M. F. Parrish, S. J. Kane, S. W. Neville, and A. It. Nagle, on the 23rd day of May, 1893, praying that the defendants, and each of them, be required to specifiealty perform a contract bearing date the 28th day of September, 1891, a copy of which is exhibited with the plaintiff's bill, and which agreement purports to have been made between D. F. Hissam, of the first part, and the Milton Manufacturing Company, of the second part, but which agreement appears to have been signed and sealed by D. F. Hissam, M. F. Parrish, S. J. Kane, S. W. Neville, and A. H. Nagle.
The plaintiff's bill alleges that the defendants and one W. J. Miller formed themselves into a company, known as the "Milton Manufacturing Company," for the purpose of buying and selling timber, cutting saw logs, planing and dressing lumber, and for the manufacturing of doors, sash, frame, etc., and that the same was incorporated under the laws of the state of West Virginia, in the name and was known as the Milton Manufacturing Company, as above set out; that the stock of said company was composed of-shares of stock, at one hundred dollars per share;
that, before the creation of said corporation and the formation of the aforesaid company, the said defendants, and each of them, for the purpose of creating said corporation and formation of said company as aforesaid, and inducing complainant to take stock in said company to the amount of eight shares, of one hundred dollars per share, entered into a written contract with complainant, signed by him and each of the said defendants, and sealed with their seals (a copy of which contract is filed as part of complainant's bill); that, by the terms of said contract, the complainant was appointed and constituted bookkeeper and general manager of the said company, for the period of one year from the beginning of the operation of the business of the said company; that complainant did act as such bookkeeper and general manager of said company for the period of one year from the beginning of the said partnership business as aforesaid. Complainant also alleged that by the terms of said contract, the said defendants, and each of them, bound themselves, their heirs and assigns, to buy the stock of complainant, and pay him therefor at the rate of one hundred dollars per share; that, at the expiration of the said, one year, he did offer and tender his said eight shares of stock to said defendants, and each of them, together with the certificate thereof, and still offers said shares of stock to said defendants, and did at, before, and since the expiration of said one year notify said defendants, and each of them, that he expected to dispose of said stock to the said defendants, and for the said defendants to purchase the same, as by their contract they were bound to do; that, at the expiration of the first year, the said company then had a good business and considerable valuable property out of which his said shares of stock could have been paid for, at the rate of one hundred dollars per share, with, out taking more of the funds and stock in said company than his said eight shares of stock would bear to the whole stock of the said company; that the said defendants, and each of them, have the whole amount of the said stock in their possession and control, and are now receiving the rents, issues, and profits of the same, and have so received the rents, issues, and profits of the same tor considerable time, and, by reason thereof, have received large dividends from the said company, and that there has been no division of said funds with complainant; and he prays that the said defendants, and each of them, be required to perform and comply with the terms of the said contract.
The contract, a copy of which is exhibited with the bill, reads as follows: (Exhibit No. 1):
The defendants demurred to the plaintiff's bill, which demurrer, on consideration, was overruled. The appellants filed their answers. Depositions were taken and filed, and on the 21st of December, 1893, the cause was heard upon the...
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