« 이전계속 »
$ 1720. — Chattels of peculiar importance.— Continuing in a later section,' Lord Justice Fry further says: “Hitherto unique chattels have been spoken of; but it appears that such jurisdiction as the court exercises in the case of unique chattels it may also exercise in the case of chattels which, though not unique, possess a special and peculiar value to the plaintiff. Thus in North v. The Great Northern Ry. Co.,' the court upheld its jurisdiction to interfere to prevent the sale of certain wagons belonging to the plaintiff, which had been used by the plaintiff in his business of a colliery owner, and which the defendants asserted that they had a right to detain and sell. “Where specific things,' said Stuart, V. C.,' necessary for conducting a particular business are in the possession of persons who claim a lien upon them, and threaten an immediate sale, this court has undoubted jurisdiction to interfere by injunction and prevent irreparable injury to the debtor, by giving him an opportunity of redeeming assets.'"
$ 1721. — In accordance with this rule, it was held that, where one party had agreed to supply to the other certain goods indispensable to the business of the latter and which could not be elsewhere obtained, specific performance of the agreement would be enforced. The court approved “as a well-settled principle in the doctrine of specific performance” the rule “that a contract for the sale and delivery of chattels which are essential in specie to the plaintiff, and which the defendant can supply, while no one else can, will be specifically enforced. In such cases the plaintiff could not be indemnified by any such amount of damages as he could recover at law."
doctrine as to slaves was denied. See 2 2 Giff. 64. also Bryan v. Robert (1846), 1 Strob.
3 p. 69. (S. C.) Eq. 334; Butler v. Hicks (1848), 4 Equitable Gas L. Co. v. Baltimore 11 Sm. & M. (Miss.) 78; Savery v. Coal Tar & Mfg. Co. (1884), 63 Md. Spence (1848), 13 Ala. 561; Dudley v. 285. See also Conemaugh Gas Co. v. Mallery (1848), 4 Ga. 52.
Jackson Farm Gas Co. (1898), 186 Pa. 1 Fry on Specific Performance, ubi St. 443, 40 Atl. R. 1000. supra, S 85.
$ 1722, — "So, too,” says Lord Justice Fry further, “there is the high authority of Lord Ilardwicke for suggesting that specific performance might be maintained by a shipbuilder if he were to contract with a land-owner for the supply of timber from an adjoining estate, the ship-builder being under contract to complete a ship by a given time, for which the supply of such timber by the defendant was essential. But this seems open to doubt; and certainly the doctrine will not be extended to mere cases of convenience, as the supply of coal from an adjoining colliery when plenty of other coal can be procured in the neighborhood.”
$ 1723. — A limitation, however, has been put upon the jurisdiction over articles unique or of special value. For, says Lord Justice Fry, "it also appears that if the chattel be of a peculiar value, but by contract between the parties a price has been put upon the chattel, that circumstance has been treated as precluding the jurisdiction; for it is an admission that by a money payment full relief can be had.” 4
$ 1724. - Inadequate remedy at law.- Many cases state the rule still more broadly. Thus it is said in Maryland: 5 “ We take it to be well settled that where there is an agreement to buy a specific chattel for a specific purpose, and this purpose can only be answered by the delivery of the chattel
• Fry on Specific Performance, ubi gomery (1896), 148 N. Y. 519, 43 N. E. supra, 8 86.
R. 57; Cushman v. Thayer Mfg. Co. 2 “Per Lord Hardwicke in Buxton (1879), 76 N. Y. 365; Johnson v. v. Lister, 3 Atk. 383, compared with Brooks (1883), 93 N. Y. 337; Frue v. Pollard v. Clayton, 1 K. & J. 462. Houghton (1882), 6 Colo. 318. In And cf. Fothergill v. Rowland, L R. Brady v. Yost (Idaho, 1898), 55 Pac. 17 Eq. 132."
R. 542, it is held that a contract for 3 Fry on Specific Performance, ubi the sale by the defendant to the supra, 84.
plaintiff of a newspaper business, 4 Citing Dowling v. Betjemann, 2 printing plant and material used in Johns. & Hem. 544.
the business, with the purpose of 5 Gottschalk v. Stein (1888), 69 Md. continuing it, will be specifically 51, 13 Atl. R. 625. See also Clark v. enforced in equity, on the ground Flint (1839), 22 Pick. (Mass.) 231, 33 that there is no adequate remedy at Am. Dec. 733; Williams V. Mont. law.
itself; or where, from the nature of the subject matter of the agreement, the measure of damages must necessarily be uncertain; or where damages will not be as beneficial to the purchaser as the performance of the contract, equity will interfere, and decree the specific performance of the contract, because, in such cases, an action at law for a breach of the contract will not afford the purchaser a complete and adequate remedy."
$ 1725, -Chattels connected with enjoyment of estate.“Cases might probably arise,” continues Lord Justice Fry,' “in which the court would interfere in respect of chattels connected with the enjoyment of an estate, where but for such connection it would not exercise jurisdiction. In one case Lord Eldon made an order specifically to restore to a tenant the stock on a farm, which had been seized by the landlord under a distress and bill of sale; his lordship holding that, under the circumstances of that case, there was an entire contract by which the landlord agreed to let the tenant have both the estate and the chattels, the enjoyment of the chattels being requisite for the enjoyment of the estate.” 2 $ 1726.
Contracts for sale and delivery in instalments.-“Lord Hard wicke seems to have entertained the view,” remarks further the same author,3“ that where the contract was for the delivery of chattels by instalments and for payment in a like method, the court would entertain jurisdiction. In a case cited by his lordship, articles for the sale of eight hundred tons of iron, to be paid for by instalments, at periods running through some years, were specifically enforced." The case appears to have been, as already stated, approved by his lordship, but it was doubted by Lord Hatherley (when V. C.), who remarked on the absence of any case for the sale of mere goods being supported on the ground of their being to
1 Fry on Specific Performance, ubi 4 Taylor v. Neville, cited 3 Atk. 384. supra, $ 87.
Distinguish Nives v. Nives, 15 Ch. 2 Nutbrown v. Thornton, 10 Ves. 159. Div. 649.
3 Fry on Specific Performance, ubi 5 Pollard v. Clayton, 1 K. & J. 462. supra, & 89.
be delivered by instalments. Mr. Austin, too, has expressed his inability to understand on what principle the case proceeded, and a like inability is here confessed.”
$ 1727. — Contracts for sale of corporate stocks and bonds.—The same general principles apply to contracts for the sale of corporate stocks and bonds. If like securities are readily obtainable in the market so that the buyer may thus procure them;? if their value is certain and the buyer has in them no other than a mere pecuniary interest, so that an award of damages will adequately compensate him, the court will usually refuse to decree specific performance. But if they cannot elsewhere be obtained, and the buyer has some lawful and peculiar interest in them which cannot be adequately protected by an award of damages;4 or if their value is uncertain or there is other reason why the award of the law court will not
1 Jurisprudence, 808.
Commercial Coal Mining Co. (1863), 2 Todd v. Diamond State Iron Co. 23 Cal. 390; Avery v. Ryan (1889), (1889), 8 Houst. (Del.) 372, 14 Atl. R. 27; 74 Wis. 591, 43 N. W. R. 317. Cohn v. Mitchell (1885), 115 lll. 124, 4 Equity will decree specific per3 N. E. R. 420; Ryan v. McLane (1900), formance if like stocks cannot be 91 Md. 175, 46 Atl. R. 340, 50 L. R. A. procured elsewhere, or if the legal 501 and exhaustive note.
remedy is doubtful or uncertain, and 3 Thus where there was a sale of a an award of damages will not be yacht, and the defendant [buyer) adequate (Manton v. Ray (1894), 18 agreed to pay therefor a certain R. I. 672, 29 Atl. R. 998, 49 Am. St. R. number of shares of the stock of a 811; S. C. again, 19 R. I. 423, 36 Atl. certain corporation, but there was no R. 1125; Brady v. Yost (1898), — Idaho, evidence tending to show that the 55 Pac. R. 542; Northern Central plaintiff had any wish or reason to Ry. Co. v. Walworth (1899), 193 Pa. St. become the owner of the stock rather 207, 44 Atl. R. 253; New England than of any other stock of equal value, Trust Co. v. Abbott (1894), 162 Mass. or that he would not have agreed to 148, 38 N. E. R. 432, 27 L. R. A. 271; take any other stock of equal value Williams v. Montgomery (1896), 148 in payment of the yacht, or a sum of N. Y. 519, 43 N. E. R. 57; Cushman v. money equal to that value, specific Thayer Mfg. Co. (1879), 76 N. Y. 365; performance was denied. Eckstein v. Johnson v. Brooks (1883), 93 N. Y. 337; Downing (1886), 64 N. H. 248, 9 Atl. R. Frue v. Houghton (1882), 6 Colo. 318); 626, 10 Am. St. R. 404. And, generally, or where the stock has some unique where no fiduciary relations are in- and special value to the plaintiff volved and the stocks have no pecul- (Bumgardner v. Leavitt (1891), 35 W. iar value, and compensation in money Va. 194). would be adequate. Treasurer v. A pledgor of shares of stock is en.
do full justice to the buyer,' especially if fiduciary or trust relations are involved, then the court may decree that the contract for their sale and delivery shall be specifically performed.
$ 1728. — Even here, however, there is room for the exercise of sound discretion and the furtherance of public policy; and if the execution of specific performance would operate harshly, unjustly or inequitably, or would promote objects opposed to public policy, * relief will be denied.
titled to specific performance when not be entertained to decree a spethe stock has no market or ascertain. cific performance respecting goods, able value, and the pledgor bought chattels, stocks and other things of it for investment with a view to its a merely personal nature is limited increase in value, and he cannot buy to cases where a compensation in more because no holder will sell. damages will furnish a complete Krouse v. Woodward (1895), 110 Cal. remedy. Where the wrong is a be638, 42 Pac. R. 1084.
trayal of confidence, equity will deA promise by a corporation to restitution, which may be transfer some of its bonds may be enforced specifically against the specifically enforced where it ap- wrong-doer. In McGowin v. Rempears that the corporation is insolv. ington, 12 Pa. St. 56, 51 Am. Dec. 584, ent and the bonds have no market a clerk was compelled to surrender value, such value being dependent drafts, maps, plans, etc., which he upon questions relating to title to had withheld from his employer; in real estate which can be determined Abbott v. Reeves, 49 Pa. St. 494, 88 only by a court of equity. Ames v. Am. Dec. 510, persons who had borWitbeck (1899), 179 Ill. 458, 53 N. E. rowed stocks and bonds from an ex. R. 969.
ecutor were required to make restiSpecific performance of a contract tution; in Pennsylvania Co. relating to stocks cannot be de- Franklin Fire Ins. Co., 181 Pa. St. 40, manded as a right. But a court of the defendant was required to issuie equity will grant it at its discretion new certificates of stock to an owner when it appears that damages would whose certificates had been transnot be adequate owing to the fact ferred under forged powers of attorthat the matter was in the nature of ney." an experiment, so that the result 2 Where trust or fiduciary relations could not be known. Williams v. are 'involved, the relief may be Montgomery (1896), 148 N. Y. 519, 43 granted. Goodwin's Appeal (1888), N. E. R. 57 [citing Matter of Argus 117 Pa. St. 514; Cowles v. Whitman Co., 138 N. Y. 557; Johnson v. Brooks, (1834), 10 Conn. 121, 25 Am. Dec. 60; 93 N. Y. 337].
Krohn v. Williamson (1894), 62 Fed. 1 Thus, in Steinmeyer v. Siebert R. 869. (1899), 190 Pa. St. 471, 42 Atl. R. 880, 3 Rigg v. Railway Co. (1899), 191 70 Am. St. R. 641, it is said: “The Pa. St. 298, 43 Atl. R. 212. rule that jurisdiction in equity will 4 As where the stock is sought in