Southern Iron & Equipment Co. v. Vaughan

• Decision Date: 24 January 1918
• Docket Number: 3 Div. 327
• Citation: 201 Ala. 356,78 So. 212
• Parties: SOUTHERN IRON & EQUIPMENT CO. v. VAUGHAN.
• Court: Alabama Supreme Court

78 So. 212

201 Ala. 356

SOUTHERN IRON & EQUIPMENT CO. v. VAUGHAN.

3 Div. 327

Supreme Court of Alabama

January 24, 1918

Rehearing Denied March 23, 1918

Appeal from Circuit Court, Montgomery County; Gaston Gunter, Judge.

Bill in equity by the Southern Iron & Equipment Company against W.H Vaughan. Decree for defendant, and plaintiff appeals. Affirmed.

Gardner J., dissenting.

Weil Stakely & Vardaman, of Montgomery, for appellant.

Hill Hill, Whiting & Stern and W.A. Jordan, all of Montgomery, for appellee.

THOMAS J.

The suit, which was by appellant as complainant below, was to restrain appellee (respondent) from making disposition to others than complainant of certain railroad material alleged to have been theretofore purchased by complainant from respondent; and it is prayed in the bill that, upon final hearing, a decree be entered directing specific performance of the contract on the part of respondent. The bill does not aver the insolvency of the respondent. The court is sought to be given jurisdiction of such matter by the averment:

"That the nature of the contract now existing between it and the respondent is such that by a breach thereof by the respondent your orator will have no complete and adequate remedy at law, and if such a breach thereof is permitted, it will suffer great and irreparable injury thereby. Your orator avers that the kind and character of rails sold by the respondent to your orator cannot be procured by your orator in the open market, and, despite diligent efforts, your orator has not been able to procure them from any other source; that the market value of said rails cannot be ascertained; that if a breach of said contract is permitted, there will be no way to ascertain readily and completely and adequately the amount or extent to which your orator has been damaged; that your orator has sold the identical rails which it bought under its contracts aforesaid from the respondent to L.B. Foster Company of Pittsburgh, Pa., and said Foster Company are demanding of your orator a fulfillment of their contract with your orator, and the delivery of said rails; that if your orator does not secure the said rails from the respondent in order to make delivery of the same in accordance with its contract with said Foster Company, your orator will be unable to carry out its contract with the said Foster Company, and will be irreparably damaged."

The general rules obtaining, for specific performance, are that:

"Equity will not, in general, decree the specific performance of contracts concerning chattels, because their money value recovered as damages will enable the party to purchase others in the market of like kind and quality. Where, however, particular chattels have some special value to the owner, over and above any pecuniary estimate--pretium affectionis--and where they are unique, rare, and incapable of being reproduced by money damages, equity will decree a specific delivery of them to their owner, and the specific performance of contracts concerning them."

For example, paintings, statuary, an ancient horn which has gone along with plaintiff's estate (Pusey v. Pusey, 1 Vern. 273), an old silver patera dug up on plaintiff's estate (Duke of Somerset v. Cookson, 3 P.Wms. 389), a peculiar tobacco box belonging to a club (Fells v. Read, 3 Ves. 70), the dress and regalia of a Lodge of Free Masons (Loyd v. Loaring, 6 Ves. 373), family pictures (Lady Arundel v. Phipps, 10 Ves. 139), title deeds and valuable paintings (Lowther v. Lord Lowther, 13 Ves. 95), a finely carved cherry stone (Pearne v. Lisle, Amb. 75, 77), two very valuable jars (Falcke v. Gray, 4 Drew. 651), and a newspaper business, printing plant, and material used in said business (Williams v. Carpenter, 14 Colo. 477, 24 P. 558; Brady v. Yost, 6 Idaho, 273, 55 P. 542). Mr. Pomeroy says that:

"Where the party seeking to recover the property has himself fixed a value at which he has agreed to sell he cannot subsequently come into equity to obtain delivery of the chattel."

And he cites as authority for the text Dowling v. Betjemann, 2 Johns. & Hemmings Rep. 544; 6 Pom.Eq.Jur. § 748. A reference to that case discloses the fact that the subject of controversy was a picture painted by the complainant, and alleged to have a special value; the holding was that where, by the terms of an agreement and the frame of the pleadings, the artist, seeking the restitution of his picture, had in effect put a fixed price upon it, damages would be an adequate remedy. The vice chancellor said:

"It was, moreover, admitted at the bar that the payment of the pounds sterling>300 would dispose of the whole question in the suit. That is the fair view of the case which is made by the bill. Upon this an insuperable difficulty arises in the way of the jurisdiction which this court exercises, to order the delivery of a specific chattel of peculiar value, as in the Pusey Horn Case (1 Vern. 273). In such a case as this it appears to me that it would be an innovation on the practice of the court to say that a jury could not adequately estimate by damages the nonpayment of a price fixed, as it is here, by the agreement of the parties." Dowling v. Betjemann, supra.

While complainant in the instant case does not aver the price at which it had resold the property in question to L.B. Foster Company of Pittsburgh, Pa., yet such sale is specifically averred, and the price thereof fixed by complainant is easy of ascertainment for submission to a jury for estimation of damages for a breach of the contract under the rules of law obtaining in such matters.

The further averment that "said Foster Company are demanding" fulfillment of their contract with complainant for said rails, and that if complainant does not secure said rails from respondent to make delivery of the same in accordance with its contract with said Foster Company, complainant will be unable to carry out its contract with that company, and will be "irreparably damaged," does not make a case of irreparable damage that may not be fixed by a jury at law. In Black Diamond Co. v. Johnson Coal Co., 76 So. 42, the rule declared in Montgomery Light & Power Co. v. Montgomery Traction Co. (C.C.) 191 F. 657, was not followed and the previous ruling of this court in Stewart v. White, 189 Ala. 192, 66 So. 623, was reaffirmed. The contract, specific...