SPECIFIC PERFORMANCE

I. Inadequacy or Impracticability of Damages1

CORBIN v. TRACY et al.

(Supreme Court of Errors of Connecticut, 1867. 34 Conn. 325.)

Bill in equity, brought by the petitioners, a joint stock corporation, to the superior court for Hartford county, to compel the specific performance of a contract to assign a patent right. The superior court (Loomis, J.) passed a decree in favor of the petitioners, and the respondents filed a motion for a new trial and a motion in error. The case is sufficiently stated in the opinion.

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CARPENTER, J.2 * * 2. Under the motion in error, it is objected that the petitioners have not made out a case for the interference of a court of equity,-that courts of equity in this state will not interfere to enforce agreements to sell personal property unless the circumstances are such as to make a trust, because there is in such a case a remedy at law by an action for damages.

The objection assumes that there is a distinction, in questions of this character, between real and personal property. If any such distinction exists, it does not go to the extent claimed.

The ground of the jurisdiction of a court of equity in this class of cases is that a court of law is inadequate to decree a specific performance, and can relieve the injured party only by a compensation in damages, which, in many cases, would fall far short of the redress which his situation might require. Whenever, therefore, the party wants the thing in specie, and he cannot otherwise be fully compensated, courts of equity will grant him a specific performance. They will decree the specific performance of a contract for the sale of lands, not because of the peculiar nature of land, but because a party cannot be adequately compensated in damages. So in respect to personal estate; the general rule that courts of equity will not entertain jurisdiction for a specific performance of agreements respecting goods, chattels, stocks, choses in_action, and other things of a merely personal nature, is limited to cases where a compensation in damages furnishes a complete and satisfactory remedy. 2 Story, Eq. Jur. §§ 717, 718.

The jurisdiction, therefore, of a court of equity, does not proceed upon any distinction between real estate and personal estate, but upon

1 For discussion of principles, see Eaton on Equity (2d Ed.) § 264. A portion of the opinion is omitted.

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the ground that damages at law may not, in the particular case, afford a complete remedy. 1 Story, Eq. Jur. §§ 716-718, and cases there. cited; Clark v. Flint, 22 Pick. (Mass.) 231, 33 Am. Dec. 733. When the remedy at law is not full and complete, and when the effect of the breach cannot be known with any exactness, either because the effect will show itself only after a long time, or for any other reason, courts of equity will enforce contracts in relation to personalty. 3 Pars. Cont. (5th Ed.) 373.

An application of these principles to the case before us relieves it of all difficulty. The contract relates to a patent right, the value of which has not yet been tested by actual use. All the data by which its value can be estimated are yet future and contingent. Experience may prove it to be worthless, another and better invention may supersede it, or it may itself be an infringement of some patent already existing. On the other hand it may be so simple in its principle and construction as to defy all competition, and give its owner a practical monopoly of all branches of business to which it is applicable. In any event its value cannot be known with any degree of exactness until after the lapse of time; and even then it is doubtful whether it can be ascertained with sufficient accuracy to do substantial justice between the parties by a compensation in damages. On the whole we are satisfied that justice can only be done, in a case like this, by a specific performance of the

contract.

There is therefore no error in the decree complained of. The other judges concurred.

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II. Exercise of Jurisdiction Discretionary

CONGER et al. v. NEW YORK, W. S. & B. R. CO. (Court of Appeals of New York, 1890. 120 N. Y. 29, 23 N. E. 983.)

Appeal from supreme court, general term, second department. Action by Clarence R. Conger and another against the New York, West Shore & Buffalo Railroad Company. A judgment in favor of defendant, entered upon the decision of the special term, was affirmed at the general term, and plaintiff again appeals.

HAIGHT, J. This action was brought to compel a specific performance of a contract. The Jersey City & Albany Railway Company was incorporated for the purpose of constructing and operating a rail

8 For discussion of principles, see Eaton on Equity (2d Ed.) § 265.

road from Fort Montgomery, in the county of Orange, to a point on the Hudson river opposite to the city of New York. As such incorporation it entered into a written agreement with one Catherine A. Hedges, the plaintiffs' grantor, in and by the terms of which she gave to the company a right of way across her premises in Rockland county upon certain conditions, one of which was that the company should locate a station in the gorge commonly known as the "Long Clove," and stop thereat five express trains each way daily. Subsequently the Jersey City & Albany Railway Company was consolidated with the North River Railway Company, under the name of the North River Railroad Company, and that company was consolidated with the defendant, which was incorporated for the purpose of constructing and operating a railroad from the New Jersey state line, through the state of New York, to the city of Buffalo.

The defendant has entered upon the lands of the said Catherine A. Hedges, and constructed its roadbed across the same, but it has not constructed any station thereon in the Long Clove gorge, or stopped any of its express trains thereat.

The trial court has found as facts that a suitable station for the accommodation of passengers, and the receipt and delivery of freight, at the Long Clove gorge, could be built by the defendant only at a considerable expense, because of the nature of the ground at that point; that the place where the plaintiffs demand that the station be located is near the mouth of a long tunnel, and at a sharp curve in the defendant's railroad, upon the side of a steep mountain approached by steep. grades in both directions; that it is sparsely settled, and if a station. were established there it would be of no use to the public; that very little, if any, benefit would result to the plaintiffs, by the erection of a station, or the stoppage of the trains thereat; that the public convenience would not be promoted, but the public travel would be delayed; and, as a conclusion of law, that a specific enforcement of the agreement would work hardship and injustice to the defendant, and such enforcement will not subserve the ends of justice; that specific performance should be denied, and the plaintiffs left to their action for damages for a breach of the contract. The evidence sustains the findings of the trial court, which have been affirmed by the general term. The questions for our consideration are therefore narrowed to a determination as to whether the conclusions of law reached are justified under the findings of fact.

It has been the well-settled doctrine of this court that the specific performance of a contract is discretionary with the court, and that performance will not be decreed where it will result in great hardship and injustice to one party, without any consideration, gain, or utility to the other, or in a case where the public interest would be prejudiced thereby. Clarke v. Railroad Co., 18 Barb. 350; Trustees v. Thacher, 87 N. Y. 311-317, 41 Am. Rep. 365; Murdfeldt v. Railway Co., 102

N. Y. 703, 7 N. E. 404; Day v. Hunt, 112 N. Y. 191-195, 19 N. E. 414.

As we have seen, the Long Clove gorge is located upon the side of a steep mountain, in a sparsely settled district, and is approached by a steep grade, and that a passenger station, with an approach thereat, could be constructed only at a considerable expense. These are reasons worthy of consideration, but, if there were no others, the trial court might not have deemed them sufficient to refuse specific performance. But they are followed by another, which gives additional force and weight, and that is that the public travel will be delayed by the stoppage of the trains, and that the public convenience will not be promoted.

The defendant is a corporation organized under the laws of the state, and is a common carrier of passengers and freight. Its duties are largely of a public nature, and it is bound to so run its trains and operate its road as to promote the public interest and convenience, and, in view of the fact that but little if any benefit would result to the plaintiffs by the erection of a station and the stoppage of trains thereat, as found by the trial court, it appears to us that that court properly refused to decree specific performance and remanded the plaintiffs to their action for damages.

The judgment should be affirmed, with costs. All concur, except BROWN, J., not sitting.

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III. Contracts for Performance of Personal Acts

WM. ROGERS MFG. CO. v. ROGERS.

(Supreme Court of Errors of Connecticut, 1890. 58 Conn. 356, 20 Atl. 467, 7 L. R. A. 779, 18 Am. St. Rep. 278.)

This was a suit to enjoin the violation of a contract between Frank W. Rogers and the Wm. Rogers Manufacturing Company and the Rogers Cutlery Company as follows:

"(1) That said companies will employ said Rogers in the business to be done by said companies, according to the stipulations of said agreement, for the period of twenty-five years therein named, if said Rogers shall so long live and discharge the duties devolved upon him by said Watrous as general agent and manager of the business to be done in common by said companies, under the directions and to the satisfaction of said general agent and manager; it

4 For discussion of principles, see Eaton on Equity (2d Ed.) § 266.

being understood that such duties may include traveling for said companies, whenever, in the judgment of said general agent, the interest of the business will be thereby promoted.

"(2) The said companies agree to pay said Rogers for such services so to be rendered, at the rate of $1,000 per year for the first five years of such services, and thereafter the same or such larger salary as may be agreed upon by said Rogers and the directors of said companies, said salary to be in full during said term of all services to be rendered by said Rogers, whether as an employé or an officer of said companies, unless otherwise agreed.

"(3) The said Rogers, in consideration of the foregoing, agrees that he will remain with and serve said companies under the direction of said Watrous, as general agent and manager, including such duties as traveling for said companies, as said general agent may devolve upon him, including also any duties as secretary or other officer of either or both of said companies, as said companies may desire to have him perform at the salary hereinbefore named for the first five years and at such other or further or different 'compensation thereafter during the remainder of the twenty-five years as he, the said Rogers, and the said companies may agree upon.

"(4) The said Rogers during said term stipulates and agrees that he will not be engaged or allow his name to be employed in any manner in any other hardware, cutlery, flatware, or hollow-ware business either as manufacturer or seller, but will give, while he shall be so employed by said companies, his entire time and services to the interests of said common business, diminished only by sickness, and such reasonable absence for vacations or otherwise as may be agreed upon between him and said general agent."

The complaint was held insufficient, and the plaintiffs appealed. 2. ANDREWS, C. J. Contracts for personal service are matters for courts of law, and equity will not undertake a specific performance. 2 Kent, Comm. 258, note b; Hamblin v. Dinneford, 2 Edw. Ch. (N. Y.) 529; Sanquirico v. Benedetti, 1 Barb. (N. Y.) 315; Haight v. Badgley, 15 Barb. (N. Y.) 499; De Rivafinoli v. Corsetti, 4 Paige (N. Y.) 264, 25 Am. Dec. 532. A specific performance in such cases is said to be impossible because obedience to the decree cannot. be compelled by the ordinary processes of the court. Contracts for personal acts have been regarded as the most familiar illustrations of this doctrine, since the court cannot in any direct manner compel the party to render the service.

The courts in this country and in England formerly held that they could not negatively enforce the specific performance of such contracts by means of an injunction restraining their violation. 3 Wait, Act. & Def. 754; Marble Co. v. Ripley, 10 Wall. 340, 19 L. Ed. 955; Burton v. Marshall, 4 Gill (Md.) 487, 45 Am. Dec. 171; De Pol v. Sohlke, 30 N. Y. Super. Ct. 280; Kemble v. Kean, 6 Sim.