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Court of Common Pleas of Laneaster County—In Equicy

John W. Esbleman v. Grey Iron Casting Co., G. Ellsworth Higgins,

W. A. Coventry and I. R. Stewart (No. 2). Equity Jurisdiction - Specific performance-Breach of contract for

sale of personal property-Uncertainty of damages.

Where there exists an uncertainty in any calculation of damages for the breach of a contract for the sale of personal property, or where the measure of damages is purely conjectural, equity has jurisdiction to decree specific performance.

Where a bill in equity for specific performance of an agreement by the defendants to sell to the plaintiff a certain number of shares of stock, alleges that the defendants own all the stock of the company, and that the stock is not purchasable in the open market and has no quoted or ascertainable market value but has a special value to the plaintiff because of his intimate knowledge of the business of the corporation, and the measure of damages is purely conjectural, equity has jurisdiction.

Bill for specific performance. Demurrer of W. A. Coventry. Equity Docket No. 6, page 382.

John A. Coyle, for demurrer.
F. Lyman Windolph, contra.
March 5, 1921. Opinion by HASSLER, J.

W. A. Coventry, one of the defendants in this bill, has filed a demurrer to it. There is no merit in any of the reasons contained in the demurrer, as the complaint, in our opinion, does set forth facts sufficient to constitute a cause of action against the defendant; upon the face of the bill the plaintiff is entitled to relief against the defendant; the plaintiff's remedy is not at law; two causes of action have not been improperly united, as there is only one set forth in the bill; and the contract has been particularly set forth, and it is not controlled by the statute of frauds and perjuries, as defined by the sales act of May 19, 1915, P. L. 534, Section 4, because it was made nearly a year before that act was passed.

In the brief filed by counsel for the defendant, it is contended that the demurrer should be sustained, because courts of equity will not decree the specific performance of a contract for the sale of personal property. This is correct as a general rule, but it only applies to cases where compensation in damages furnishes a complete and satisfactory remedy. Where there exists an uncertainty in any calculation of damages for the breach of a contract for the sale of personal property, or where the measure of damages is purely conjectural, equity will entertain the case : Palmer v. Graham, 1 Parsons 476. Where there is a contract for the sale of stock in a private or business corporation which has no recognized market value, equity will entertain jurisdiction and decree specific performance of the contract upon failure to deliver the stock: Dietrich v. Tyson, 4 Phila. 352; Norristown Traction Co. ¥. Slingluff, 7 Mont. 126; Goodwyn Gas Stove and Meter Companies Appeal, 117 Pa. 514 ; Rumsey v. P. R. R. Co., 203 Pa. 579; Eichbaum v. Sample, 213 Pa. 216; Steinmeyer v. Siebert, 190 Pa. 471; Ralston v. Ihmsen, 204 Pa. 588.

John W. Eshleman v. Grey Iron Casting Co., G. Ellsworth Higgins,

W. A. Coventry and I. R. Stewart (No. 2). It is alleged in this bill that the capital stock of the Grey Iron Casting Company consists of only two hundred and fifty shares, and that it is all owned and held by this defendant and his co-defendants, I. R. Stewart and G. Ellsworth Higgins. It was the stock of this company that the defendants agreed to sell to the plaintiff. It is also alleged that the stock is not purchasable in the open market and has no quoted or ascertainable market value, but has a peculiar and special value to the plaintiff on account of his long connection and intimate knowledge of the business of the corporation, which is greater than the intrinsic value thereof. An action in damages, therefore, would not furnish a complete and satisfactory remedy to the plaintiff, as there would be an uncertainty in any calculation of damages sustained by him for the breach of this contract. The measure of damages would be purely conjectural, as the stock has not been sold and cannot be obtained on the open market. We, therefore, think this a proper case for equity jurisdiction, and overrule the demurrer filed by the defendant, and direct him to answer the bill within thirty days of filing this opinion.

Demurrer dismissed.

Court of Common Pleas of Lancaster County-In Equity

John W. Eshleman v. Grey Iron Casting Co., G. Ellsworth Higgins,

W. A. Coventry and I. R Stewart (No. 3). Bill for specific performance of contract to sell stock - Corporation as

party.

Where a bill in equity was filed against a corporation and three stockholders thereof for specific performance of an alleged contract by the three stockholders to sell certain shares of the stock to the plaintiff, the corporation, having nothing to do with the alleged contract, is not properly a party to the proceeding.

Bill for specific performance. Demurrer of Grey Iron Casting Co. Equity Docket No. 6, page 382.

John A. Coyle, for demurrer.
F. Lyman Windolph, contra.
March 5, 1921. Opinion by HASSLER, J.

The Grey Iron Casting Company, one of the defendants in this case, has filed a demurrer to plaintiff's bill. The plaintiff alleges in his bill that on the twenty-sixth day of June, 1916, he entered into a contract with G. Ellsworth Higgins, W. A. Coventry and I. R. Stewart, three of the defendants named in the bill, to purchase from them sixtytwo and one-half shares, being one-fourth of the capital stock of the Grey Iron Casting Company, at one hundred dollars per share, the principal office of said company being in this county and within the jurisdiction of this court. The bill seeks to recover a decree compelling the said G. Ellsworth Higgins, W. A. Coventry and I. R. Stewart to perform their part of that contract.

John W. Eshleman v. Grey Iron Casting Co., G. Ellsworth Higgins,

W. A. Coventry and I. R. Stewart (No. 3). Three reasons in this demurrer allege, in substance, that there is no cause of action set forth in the bill against the Grey Iron Casting Company, and that, under it, no decree can be entered against it.

We are satisfied that this contention is correct. The Grey Iron Casting Company is not alleged to have had anything to do or to be in any way connected with or interested in the contract, which the plaintiff seeks specific performance of. Nothing is alleged against the said company that justifies its being made a party to this proceeding, nor is there any prayer in the bill for any decree against it. We, therefore, sustain this demurrer.

PENNSYLVANIA STATE BAR ASSOCIATION.

The Twenty-seventh Annual Meeting. The 27th Annual Meeting of the Pennsylvania Bar Association was held at the New Monterey Hotel, North Asbury Park, June 28, 29 and 30, 1921.

The meeting was largely attended and very satisfactory from every point of view. Eighteen members of the Lancaster Bar were present.

The address of President Gaither was an interesting study of the complicated questions arising out of the development of the coal industry.

An interesting and able paper on “The Administration of Criminal Law” was read by Edwin R. Keedy, Esq., of the Philadelphia on Tuesday evening, and on Wednesday evening an interesting paper by Mrs. J. Willis Martin of Philadelphia on “Welfare Legislation was read by the Secreary, Mrs. Martin being unable to be present on account of illness. On the same evening Harvey F. Carr, Esq., Presi. dent of the New Jersey Bar Association, after giving a hearty welcome to our Association, read an excellent paper on “ The Regulation of Public Utilities.'

The reports of the various committees gave rise to the usual interesting discussion, particularly that of the “ Committee to consider the advisability of recommending the adoption of a chattel mortgage law in Pennsylvania.” The majority of the committee reported a favorable recommendation, but a minority report was submitted by one member of the committee, F. Lyman Windolph, Esq., of the local bar, and after considerable discussion the Association favored Mr. Windolph's report and went on record as against Chattel Mortgages.

On motion, the President was authorized to appoint a committee to investigate the extent to which laymen and title and trust companies are attempting to practice law.

A motion was also adopted to appoint a committee to inquire into the workings of the jury system.

A resolution was passed endorsing the calling of a Constitutional Convention.

The dues of the Association were raised from $6 to $8 a year.

Col. Archie McC. Holding of West Chester was elected President John E. Malone, Esq., making one of the nominating speeches.

Bernard J. Myers, Esq., was made a member of the Executive Committee.

Court of Quarter Sessions of Lancaster County

In re Ordinance of the Borough of Mount Joy annexing Part of East

Donegal Township. BoroughsAnnexation of contiguous territory-Objection of township

supervisors and residents-Act of May 14, 1915, Sec. 9, Chap. 7, Art. 1, P. L. 312.

Exception to the annexation of part of a contiguous township by a borough is properly taken by the township supervisors and by citizens of the township whether or not they are residents of the territory attempted to be annexed.

A borough should not be permitted to annex a strip of land jutting into a township, not only spoiling its general conformation but making it more difficult for the township to maintain its roads and streets, against the protest of the supervisors and various citizens of the township, and at the behest of a business corporation which had located its plant outside of the boundaries of the borough but now desires to take its property into the borough.

Rule to declare borough ordinance void. September Sessions, 1920, Minute 112.

Bernard J. Myers, for rule.
John A. Coyle, contra.
February 28, 1921. Opinion by LANDIS, P. J.

It appears that, about the year 1915, the Bachman Chocolate Manufacturing Company purchased a tract of land, containing between nine and ten acres, located in East Donegal Township. At the same time, the company took an option on a tract of land, adjoining on the east, situated partly in East Donegal Township and partly in Mount Joy Borough. This option was exercised by it in 1920, so that it now has about sixteen acres of land located partly in said township and partly in said borough.

On May 3, 1920, the said Bachman Chocolate Manufacturing Company made an application to the borough councils of the Borough of Mount Joy, asking to be taken into said borough, and on May 6 or 7 an ordinance was introduced in the councils to that effect. This ordinance was passed September 9, 1920, and on September 10, 1920, was approved by the burgess. The following is the context of the same:

An ordinance annexing to the Borough of Mt. Joy, Lanc. Co., Pa., land adjacent to said borough, situated in East Donegal Twp., Lanc. Co., aforesaid, fixing and determining the corporate boundaries of said borough, regulating assessments in the annexed territory, and repealing all ordinances or parts of ordinances inconsistent herewith.

“ Section 1. Whereas a petition has been presented to the burgess and town council of the Borough of Mt. Joy, praying for the annexation to said borough of certain land adjacent to the borough and situated in East Donegal Twp., Lanc. Co., Pa. Signed by all the freehold owners of the said adjacent territory.

“ Therefore be it ordained and enacted by the burgess and town council of the Borough of Mt. Joy, and it is hereby ordained and en

VOL. XXXVII, No.91

In re Ordinance of the Borough of Mount Joy annexing Part of East Donegal

Township. acted by the authority of the same that the section of land adjacent to the said Borough of Mt. Joy, situated in East Donegal Twp., Lanc. Co., Pa., herein more fully and at length described and as appears on a certain plan or plot thereof which is hereto attached and made a part hereof, be and the same is hereby annexed to and included within the corporate boundaries of the said Borough of Mt. Joy, the said section of adjacent land being fully described by metes and bounds as follows:

“ Beginning at a stone on the side of the Penna. R. R. Co. land (a corner of the boro. line of Mt. Joy Boro.) thence along the boro. line by land of Elias Helman south thirty degrees and two minutes west three hundred and thirty feet to a stake on the northern side of the Elizabethtown and Florin Street Railway, thence along the northern side of the same by lands of Elias Helman and the Bachman Chocolate Mfg. Co. respectively north seventy-six degrees and eighteen minutes west four hundred and seventy-two and five-tenths feet to a stake, thence still by lands of the Bachman Chocolate Mfg. Co. north seventyone degrees and forty-one minutes west two hundred and fifty feet, north sixty-four degrees and thirty-five minutes west two hundred feet, and north sixty degrees and three minutes west one hundred and twentyseven and two-tenths feet to a stake on the eastern side of Chocolate Ave., thence along the eastern side of said Ave. by same lands north sixteen degrees and eighteen minutes east three hundred and seventyseven feet to a stake on the southern side of the Penna. R. R., thence along the southern side of said R. R. and by same lands south sixty-seven degrees and twenty-nine minutes east three hundred and eleven feet to a stake and south sixty-eight degrees and twenty-four minutes east four hundred and eighty and eight-tenths feet to a stake, thence by lands of Elias Helman south sixty-eight degrees and forty-five minutes east three hundred and thirty-four and seven-tenths feet to the place of beginning. Containing nine acres and fifty- two and six-tenths perches of land.

Section 2. For the purpose of taxation for the year 1920 for borough purposes the respective properties and lands included within the enlarged limits of said borough which lands are described in Section One hereof shall be assessed at the valuation placed on them by the respective assessors of the corporate bodies of which they were formerly a part and upon such valuation at such rate as the borough shall adopt the tax for the year 1921 shall be levied and thereafter the assessment of the annexed territory shall be made by the borough assessor and the taxes and other assessments levied thereon as in the former limits of the borough

“ Section 3. All ordinances or parts of ordinances inconsistent herewith are hereby repealed."

The draft presented, marked "Exhibit R.C.-B,” shows that the property of the company in East Donegal Township extends east and west 1126.5 feet on the north side, and 1049.7 feet on the south side. Running north and south, on the east side it is 330 feet and on the west side 377 feet.

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