Sease v. Cleveland Cooperative Stove & Hollow Ware Foundry Co.

• Decision Date: 23 November 1897
• Parties: Sease et al., Appellants, v. Cleveland Cooperative Stove and Hollow Ware Foundry Company et al
• Court: Missouri Supreme Court

42 S.W. 1084

141 Mo. 488

Sease et al., Appellants, v. Cleveland Cooperative Stove and Hollow Ware Foundry Company et al

Supreme Court of Missouri, First Division

November 23, 1897

Appeal from Greene Circuit Court. -- Hon. James T. Neville, Judge.

Affirmed.

White & McCammon for appellants.

(1) The plaintiffs brought the proper action in this case and sought proper remedy. Lilly v. Tobbein, 103 Mo. 488; Michael v. St. Louis, 112 Mo. 610; Newmeyer v Railroad, 52 Mo. 81. (2) Ejectment could not be maintained in this case because it is not a conditional estate. Messersmith v. Messersmith, 22 Mo. 369; O'Brien v. Wagner, 94 Mo. 96. (3) It has always been held that equity will enforce the specific performance of covenants similar to this. Waterman on Spec. Perf. [1881 Ed.], secs. 10, 11, 21, 29, 30, 110, 115; Grubbs v Sharkey, 20 S.E. 784; Zipp v. Walker, 40 N.Y.S 325; White v. University L. Co., 49 Mo.App. 450; Cook v. Bartholomew, 22 A. 444; Clark v. Brookfield, 81 Mo. 503. (4) There is no principle of equity or law which permits a party to escape the obligations of a contract on the grounds that he has done something else that is not required by the contract or which may have been incidentally necessary from the performance of it. (5) It is evident throughout the record that it never was the intention to carry on a permanent factory, but that from the start Baldwin intended it as a real estate deal. (6) The trial judge could not have taken into consideration the permanent improvements to the real estate, and if he did it was not proper to do so, because the only improvements to the real estate was the moulding room, costing about $ 9,000, and it was entirely finished when the contract was entered and is mentioned in the contract as being already performed, so that the conditions upon which the reconveyance should be made depended entirely upon the number of workmen employed. (7) It can not be said that there was an approach to a substantial compliance with the terms of the contract. The contract provided for fifty moulders continuously and the average was less than one half, and part of the time only on one half time. It provided for a force of one hundred workmen of all grades, and the average must have been less than forty. Sult v. Waran, 38 N.E. 291.

T. K. Skinker and C. R. Skinker for respondents.

(1) This is an attempt to enforce a forfeiture, not only of the land conveyed to defendant company, but also of very valuable improvements put on it by the company. Courts of equity do not enforce forfeitures, but leave parties to their remedies at law. Messersmith v. Messersmith, 22 Mo. 369; Towne v. Bowers, 81 Mo. 497; 1 Pomeroy, Eq. Jur., sec. 459; Railroad v. Railroad, 57 Pa. St. 65. (2) The seventeen plaintiffs are not entitled to sue for the three hundred and twenty subscribers. Story, Eq. Plead. [10 Ed.], secs. 94, 96; Jones v. Garcia Del Rio, 1 Turn. & Rus. 297; Attorney-General v. Heelis, 2 Sim. & Stu. 76; 1 Dan. Ch. Prac. [6 Am. Ed.] 238, side p. 243; Bainbridge v. Burton, 2 Beav. 539; Kerrison v. Stewart, 93 U.S. 155; Jewett v. Tucker, 139 Mass. 577. (3) As an attempt to enforce specific performance of a contract, this suit was properly dismissed. The exercise of this jurisdiction always rests largely in the sound discretion of the court, and that discretion was wisely exercised in this instance. Veth v. Gierth, 92 Mo. 97; 3 Pomeroy, Eq. Jur., sec. 1404.

OPINION

Macfarlane, J.

The petition states that in the year 1890 plaintiffs, who are seventeen in number, and about three hundred other citizens of the city of Springfield, purchased, at a cost of $ 15,000, and caused to be conveyed to defendant corporation, a tract of land in said city for the purpose of inducing it to establish, maintain and operate a stove factory thereon. That in consideration thereof, on the eighteenth day of July, 1890, said defendant executed and delivered to one B. U. Massey, as trustee for the said citizens, a written agreement which is as follows:

"This agreement, made and entered into this 18th day of July, 1890 by and between the Cleveland Cooperative Stove & Hollow Ware Foundry Company, a corporation organized under and by virtue of the laws of the State of Ohio, and located at the city of Cleveland, in said State, party of the first part, and Benj. U. Massey, of the second part, as trustee for the subscribers to a fund, raised and applied to the purchase of the real estate hereinafter described, purchased by said subscribers for, and deeded to, said party of the first part, witnesseth: that whereas, certain citizens of the city of Springfield, Greene county, Missouri, have heretofore entered into an agreement, to and with each other, in writing, to subscribe and pay the respective amounts set opposite their names in said writing, for the purpose of buying the following described real estate situated in the city of Springfield, Greene county, Missouri, and conveying same to said parties of the first part, viz., beginning at the southwest corner of the southeast quarter of section 13, township 29, range 22, thence east twenty-seven poles and twenty-one links; thence north twenty-five poles, thence west twenty-seven poles and twenty-one links; thence south twenty-three poles, to beginning, except rightway of Gulf Railroad in Springfield, Greene county, Missouri; which said subscription, upon the delivery of this agreement, has been duly paid, and said property has been purchased and conveyed to said party of the first part, and now as consideration for said property paid, done, to be done and performed by said party of the first part, the said parties of the first part have at the delivery of this agreement erected on said parcels of ground a building of the dimension of one hundred by two hundred feet, one story high, to be used as a moulding room, and have repaired and remodeled the buildings which were already on said premises, and have placed in said buildings the machinery and fixtures needed to fit up said property as a foundry, for the manufacture of stoves, ranges, hollow ware and metal castings, and have agreed to and with the said subscribers to maintain and operate said plant for a period of five years from this date. Now this agreement is that the said parties of the first part, for and in consideration of the conveyance to them of the property aforesaid, do hereby agree to and with the said Massey, as trustee as aforesaid, party of the second part, that they will operate and maintain upon said premises a foundry for the manufacture of stoves, ranges, hollow ware and metal castings, for the period of five years from this date, for a capacity for employing and keeping at work continuously at said premises and in said business a force of not less than an average number of one hundred skilled and other laborers necessary to sustain a force of not less than fifty moulders, said moulders to be considered a part of the one hundred and other skilled laborers, that they will employ and retain that number of men as soon as they can be obtained and retained, at the prevailing rate of wages throughout the country for that class of laborers, and that they will conduct said business in a good and business like manner during that period. It is not intended that providential hindrances of any kind, of labor strikes or stoppages of any kind, the causes of which are not brought about directly by said party of the first part, and not intended as a permanent shutting down and stopping of said business, shall be considered as a failure to continuously operate said plant. The intention of this agreement is, that said parties of the first part shall manage and conduct said business at said premises as business of a similar character elsewhere is usually managed and conducted by active and prudent business men. If said party of the first part, their associates or assigns, shall fail to maintain and operate said manufacturing establishment at and...