Iron Age Pub. Co. v. Western Union Telegraph Co.

• Decision Date: 16 January 1888
• Citation: 83 Ala. 498,3 So. 449
• Parties: IRON AGE PUB. CO. v. WESTERN UNION TEL. CO.
• Court: Alabama Supreme Court

3 So. 449

83 Ala. 498

IRON AGE PUB. CO. v. WESTERN UNION TEL. CO.

Supreme Court of Alabama

January 16, 1888

Bill for specific performance and for injunction. The opinion states the facts.

SOMERVILLE J.

The bill is one in the nature of specific performance, seeking by the auxiliary force of an injunction, to prevent the breach of an alleged contract by the New York Associated Press, selling, as is insisted, to the complainant, the Iron Age Publishing Company, an exclusive right to receive and publish, at Birmingham, Alabama, all of the Associated Press dispatches gathered and prepared for the press by the New York company, and transmitted over the lines of the Western Union Telegraph Company, which body corporate is also made a party defendant to the bill. The breach complained of is averred to be the delivery of these dispatches for publication to the Morning Herald Publishing Company and the News Publishing Company, which companies publish a daily paper in the city of Birmingham, and are also made parties defendant to the present suit. The chancellor sustained a demurrer to the bill, and the complainant brings this appeal. Some of the grounds of demurrer we proceed to discuss:

1. The first which we notice is based on the alleged uncertainty of the contract, as set out in the third paragraph of the bill. The rule of law as to pleadings on this subject is more stringent in bills for specific performance than in other cases. The terms of the contract must be distinctly alleged so as to leave none of its essential details in doubt or uncertainty. Vagueness of statement or indefiniteness as to the matter of substance is not permitted. Facts must be clearly stated, not left to inference by the court. So, in like manner, the proof is required to be clear, definite, and satisfactory, and a strict correspondence must exist between the alleged terms of the contract and the proof seeking to establish it. Derrick v. Monette 73 Ala. 75. The contract, in other words, which the court is asked to enforce, must be alleged and proved to be "reasonably certain as to its subject-matter, its stipulations, its purposes, its parties, and the circumstances under which it was made." 3 Pom. Eq. Jur § 1405. Unless the court be fully advised as to what particular obligations the parties have undertaken to assume, and what specific rights they have mutually stipulated to confer, it would be impossible to adjudge whether the contract is sufficiently fair, just, and equitable in its parts to justify the enforcement by the strong arm of the court or to render a decree intelligibly, setting out all rights and duties of the parties which the court is asked to enforce. The contract averred to exist between the complainant and the New York Associated Press does not seem to us to possess these requirements. It is not stated with sufficient definiteness, if at all, when the contract was made, nor where it was entered into, nor where to be performed, whether in or out of the state of Alabama,-a fact material to the inquiry of jurisdiction. While it is alleged to have been made with an agent of the non-resident defendant, the bill fails to give the name of the alleged agent that issue may be taken on the fact of his authority. The consideration agreed to be paid by the complainant is not alleged, except that it was a "good and sufficient consideration, and that the complainant had paid large sums of money, ranging from $40 to $85 per week." The subsequent averment in another part of the bill, that the complainant had paid the amount provided for in the agreement, leaves the court to struggle by inference to frame the contract by putting together these several parts. We are of opinion that the description of the contract is not sufficiently certain in these and it may be in some other particulars, to justify the intervention of a court of equity for its specific enforcement.

2. The objection is further taken by the telegraph company and the publishing companies, that the facts stated in the bill show prima facie a want of jurisdiction of the case, because the contract sought to be enforced was made by the New York Associated Press, and the bill shows on its face that this defendant, being an indispensably essential party, is a non-resident corporation, against which, in the absence of appearance, it is impossible for the court to proceed. It is too plain for argument that this foreign corporation is an indispensably essential party, and that until jurisdiction can be obtained of its person, either constructively under statutory provisions or by voluntary appearance, the case must speedily end in a dismissal of the bill.

3. The whole subject of jurisdiction of non-residents is one of statutory creation and regulation. Our statutes make no distinction in this particular between non-resident natural persons and foreign corporations. There are but two general classes of cases where they allowed to be sued in the courts of Alabama. The first is by process of attachment at law under like circumstances and in like manner as against natural persons residing within the state. Code 1876, § 3253. The other is in any case in equity arising under subdivision 2 of section 3753 of the Code of 1876, designated as section 3414 of the present Code of 1886, which confers jurisdiction on courts of chancery against non-residents, in four particular classes of cases: (1) when the object of the suit concerns an estate of, or a lien or charge upon, lands within this state, or the disposition thereof; (2) any interest in title to or incumbrance on personal property within this state; or (3) where the cause of action arose in this state; or (4) when the act on which the suit is founded was to have been performed in this state. The jurisdiction, as thus conferred, is plainly statutory and limited, and the general rule being that a foreign corporation cannot be sued unless it voluntarily appears to defend, being impossible for the court to extend the arm of its process into a foreign state or territory for the purpose of reaching it, it follows that the bill cannot be retained unless the case made by it falls within the statute, or else it is made to appear that this objection has been obviated by an actual appearance of the defendant, so as to confer jurisdiction of its person. Sayre v. Land Co., 73 Ala. 85; Galpin v. Page, 18 Wall. 350; Field, Corp. (Wood's Ed.) § 329, note 3; Camden v. Iron Co., 32 N. J. Law, 15; Freem. Judgm. (3d Ed.) §§ 567, 568. The present case concerns neither land nor personal property, but a contract for personal services, as we have above said. The bill fails to aver, with sufficient certainty, that the contract arose in this state, or was to be performed within its jurisdiction. The place where it was made, whether in New York or Alabama, is not stated, nor does it appear from the bill with sufficient particularity that the telegraphic dispatches were, under the contract, to be delivered to the complainant by the New York Associated Press at Birmingham, through the agency of the telegraph company, or only to the latter company in New York, to be by them transmitted to complainant, as complainant's agent, without further liability on the part of the Associated Press. The bill thus fails to bring the case within the class specified by the statute, and, therefore, shows no jurisdiction in chancery.

4. The question of jurisdiction, as we have seen, is raised by demurrer of the resident defendants, the telegraph company and the publishing companies.

If the New York company had attempted to raise it, the appropriate and better mode would, no doubt, have been by plea to that jurisdiction. Camden v. Iron Co. 32 N. J. Law, 15, supra. But in this case, where the granting and perpetuation of the injunction prayed for is the whole case made by the bill, we think it eminently proper that the question should be raised by demurrer or motion to dismiss, when the defect of jurisdiction appears on the face of the bill, and is raised by the co-defendant. It is said that the court cannot inspect the bill, and from it know that the foreign corporation has not appeared. To this it may be answered that the bill itself shows an indispensable and leading party, whose rights are prejudiced by the injunction, and in whose absence no decree of any kind can be rendered, had not been brought before the court, by reason of the impossibility of reaching it by process. There is no presumption that the New York corporation, chartered by and domiciled in a foreign state, will leave that territory, where it is alone suable, and respond to proceedings in Alabama, where it is suable. If the complainant is entitled to an injunction, based on the contrary presumption, he must show by the bill a case in which an injunction can be equitably and properly granted, such a one as would be binding on the non-resident party and enforceable in some mode known to chancery procedure. A brutum fulmen is no more to be tolerated in courts than in any other forums charged with the responsibility of preserving their own respect; nor when the case made by the bill fails to authorize the extraordinary process of injunction can the court grant it upon the speculative contingency that the parties, by subsequent appearance, may make a case where its action would be justified. "No sovereignty," says Mr. Story, in his Conflict of Laws, "can extend its process beyond its own territorial limits to subject either persons or property to its judicial decisions. Every exertion of authority of this sort beyond this limit is a mere nullity, and incapable of binding such persons or property in any other tribunal." Story, Confl. Law, § 539. Says another author touching the same subject: "The authority of every judicial tribunal,...