Opinion
07-30-1901
ARMOUR et al. v. CONNOLLY et al.
A. C. Wall and R. V. Lindabury, for complainants. Joseph Anderson, for defendants.
Bill by Philip D. Armour and others against Michael T. Connolly and others for specific performance of an agreement. Demurrer to the bill sustained.
A. C. Wall and R. V. Lindabury, for complainants.
Joseph Anderson, for defendants.
EMERY, V. C. Complainants had erected a building on lands leased by them, and, having decided to vacate the premises on May 1, 1900, made a written agreement with defendant Connolly for a sale of the building. The agreement is annexed to the bill, and after a sale and conveyance of the building by complainants to Connolly for $250 further provides: "And said Connolly hereby agrees to take down or remove the said building or structure within two weeks from the date that the party of the first part shall vacate the said premises. And the said Connolly further agrees to deliver to the party of the first part (the complainants) all the ironwork, rail, track, etc., in and about the said structure or building." Complainants vacated the building on June 21, 1900. The bill, which was filed on June 29th, and before the expiration of the two weeks, alleges that Connolly does not intend to take down or remove the structure, but that he had sold the building as it stood to the defendants Adams & Co., with the intention that they should use it for the purpose of carrying on the wholesale meat business, and the same business formerly carriedon by complainants in the building. Adams & Co. were at the filing of the bill in actual possession of the premises,—this possession, however, being alleged to be unlawful; and complainants claimed lawful possession of the premises at the time of filing the bill. Specific performance of the agreement to take down or remove the building is prayed against Connolly, no relief being asked against Adams & Co., except under the prayer for general relief. The aid of the court is not asked to carry out the contract so far as it is a contract of sale, for this part of the contract was executed upon both sides by the written agreement, which, in terms, "sells and conveys the building for the sum of $250, which is by the agreement acknowledged to have been paid." The part of the contract unfulfilled is the agreement of Connolly to take down or remove the building; an agreement for services or work to be performed on lands, which, as alleged in the bill, are complainants' lands.
This court will not ordinarily enforce performance of building contracts, not only on the ground that damages at law are generally an adequate remedy, but also on the ground of the inability of the court to see that the work is carried out. Association v. Brittin (N. J. Ch.) 46 Atl. 652, 655 (June, 1900). This case comes within the application of this rule, and there is an additional obstacle to specific performance in the case, arising from the fact that the contract to be performed is in the alternative,—"to take down or remove" the building. A decree for specific performance must be certain, and usually follows the very terms of the contract; and although specific performance may be decreed of one of the alternative terms of a contract, where the performance of the other alternative has become impossible, and the contract is therefore rendered certain (Pom. Spec. Perf. pars. 298-302), I have not been referred to or found any case where the decree itself commanded the defendant to exercise an option, and proceed to do one of the two alternatives mentioned in the contract As this case stands upon the bill which was filed before the expiration of the time when Connolly had the right to exercise the option, the only decree against Connolly which could be rendered, if specific performance could be decreed, would be that he must either take down or remove. After the expiration of the time for Connolly's exercise of the option to take down or remove the building, complainants probably had the option as to which alternative of the contract it would choose as the basis of an action at law for damages. McNitt v. Clark, 7 Johns. 465; 2 Chit. Cont (11th Am. Ed.) 1061. Whether complainants had the right of option, under the contract as distinct from a right of action for breach before such expiration of defendant's option, by reason of his refusal to do either, is a different question. But a bill in equity for specific performance proceeds on the assumption that the contract is to be enforced according to its very terms, so far as these have not been rendered impossible; and, as the exercise of the option by the defendant continues practicable, the decree, if it goes at all, must call on Connolly to exercise the option, and take down or remove. If he remove the building entire, and as a building, having absolute title to it, there would be, under the contract, no restriction upon his subsequent sale of it to Adams & Co. as a building belonging absolutely to himself, or upon Adams & Co.'s use of it, after such purchase, on their own lands, even if these lands were leased lands. Under these circumstances, no decree for performance based on the option should be made.
The main claim upon which right to specific performance was based at the argument was that damages at law would, by reason of certain facts alleged in the bill, be inadequate. These facts were that the business carried on by complainants in the building had made the building itself in its location valuable as a part of the good will of their business; that they desired the destruction of the building in order to prevent the appropriation of any part of its good will by rivals in business; that before contracting for its removal with Connolly, they had declined to sell the building, as it stood, to Adams & Co., because they were such rival dealers. It is therefore claimed that Connolly's breach of his contract by a sale of the building to Adams & Co. has caused, or will cause, damage to their trade or good will, for which the remedy at law is inadequate.
Whether the complainants, in a transaction which was, as here, in part the sale of a building simply as personal property, and was not the sale thereof in connection therewith of any part of their business carried on in it, could lawfully impose a restriction on the future use of this personal property by the purchaser, or any subsequent purchaser, for the purpose of protecting the good will of their own business, is very questionable, and I know of no authority for such restriction on sale of personal property. But certainly no such restriction can be implied on the sale of a building by written contract and in the absence of such clear restriction in the contract against the use of personal property sold a court of equity should not undertake to enforce that portion of the contract referring to services to be performed in relation to the building sold, in order that it may give to the complainants a protection to their business or good will which was not provided for by the contract itself. The complainants, in my judgment, are not entitled to specific performance of their contract, but must be left to their remedy at law. The demurrer is sustained.