Roquemore & Hall v. Mitchell Bros.

• Decision Date: 21 April 1910
• Citation: Roquemore & Hall v. Mitchell Bros., 167 Ala. 475, 52 So. 423 (Ala. 1910)
• Court: Alabama Supreme Court
• Parties: ROQUEMORE & HALL v. MITCHELL BROS. ET AL.

52 So. 423

167 Ala. 475

ROQUEMORE & HALL v. MITCHELL BROS. ET AL.

Supreme Court of Alabama

April 21, 1910

Appeal from City Court of Montgomery; William H. Thomas, Judge.

Suit by Roquemore & Hall against Mitchell Bros. and another.From a judgment dismissing the bill, complainants appeal.Affirmed.

Ray Rushton, for appellants.

Gunter & Gunter, for appellees.

MAYFIELD J.

The bill is one to enforce specific performance of a contract and to enjoin respondents from interfering with the performance thereof pending the suit.The respondents demurred to and answered the bill, denying its equity, and moved to dissolve the injunction issued upon its filing.On the hearing upon those issues the injunction was dissolved and the bill dismissed for want of equity.The chancellor also declined to fix bond and reinstate the injunction pending appeal.From this decree complainants appeal.

The contract is one not susceptible of specific performance.It is a contract for personal service or employment, to continue five years, but on condition that, if Montgomery county will consent to a transfer of a certain contract which it had with a part of the respondents to the complainants by such respondents, then it is to become a contract to transfer and assign such other contract.The condition subsequent is not shown to have happened, nor is the contract sought to be enforced upon this theory, but on the theory that it is one of employment.

The bill alleges that Mitchell Bros. made a contract with the county of Montgomery to load gravel from the pit of the county, and also to sell gravel to others from such pit, and to be paid therefor by the square yard of gravel loaded for the county, and to pay the county so much per square yard for the gravel sold to third parties.The bill then alleges that Mitchell Bros. employed complainants to carry out this contract with the county for the respondentsMitchell Bros. and for the same consideration that the respondents were to receive from the county.The contract then concludes as follows: "It is further mutually agreed that if the board of revenue of Montgomery county, Alabama, will consent for the said Mitchell Bros. to transfer and assign the above-described contract to Roquemore & Hall, then said Mitchell Bros. upon request of them will so transfer and assign said contract to them, but, if the said board of revenue will not agree for an assignment of said contract then the foregoing provisions and agreement to employ said Roquemore & Hall to load gravel in said contract shall be and remain in full force and effect."Such contracts are not susceptible of specific performance.

Courts of equity will not undertake to enforce the specific performance of a contract for personal services which are material or mechanical, and not peculiar or individual; but where the contract stipulates for special, unique, or extraordinary personal services, or where the services to be rendered are purely intellectual and individual in their character, the courts will grant an injunction in aid of a specific performance.William Rogers Mfg. Co. v Rogers,58 Conn. 356, 20 A. 467, 7 L. R. A. 779, 18 Am. St. Rep. 278.If a contract implies the performance of personal services requiring special skill, judgment, and discretion, a court of equity will not undertake its specific performance.South, etc., Alabama R. R. Co. v. Highland Ave., etc., R. R. Co.,98 Ala. 400, 13 So. 682, 39 Am. St. Rep. 74.Courts of equity will decline jurisdiction to decree specific performance of contract for personal services involving the exercise of special skill, judgment, and discretion, continuous in their nature, and running through an indefinite period of time; and injunctions to prevent the breach of such contracts are granted with great caution by the courts, although the remedy by damages at law may be inadequate.Iron Age Pub. Co. v. Western Union Tel. Co.,83 Ala. 498, 3 So. 449, 3 Am. St. Rep. 758.A court of equity can decree specific performance only when it can dispose of the matter in controversy by a decree capable of present performance, but it cannot decree a party to perform a continuous duty, extending over a series of years, but will leave the aggrieved party to his remedies at law.Electric Lighting Co. v. Mobile, etc., Ry. Co.,109 Ala. 190, 19 So. 721, 55 Am. St. Rep. 927.A contract for the personal services of an adult, as a general thing, is a matter for courts of law; and for a violation of it the remedy is in damages, and a specific performance will not be enforced.Hamblin v. Dinneford, 2 Edw. Ch.(N. Y.) 533;Haight v. Badgeley,15 Barb.(N. Y.) 501.SeeKemble v. Kean, 6 Sim. 333; Clark's Case, 1 Blackf.(Ind.) 122, 12 Am. Dec. 213;Smith v. Gould, 2 Ld. Raym. 1274;Rutland Marble Co. v. Ripley,77 U.S. 339, 19 L.Ed. 955;Cooper v. Pena,21 Cal. 403;Randall v. Latham,36 Conn. 48;Richmond v. Dubuque & S. C. R. Co.,33 Iowa, 422; Ford v. Jermon, 6 Phila.(Pa.) 6;Palmer v. Scott, 1 Russ. & M. 391;Mair v. Himalaya Tea Co., L. R.1 Eq. 411.Defendant, having contracted to perform at plaintiff's theater at a fixed compensation for a...