6 Div. 574.
May 17, 1917.
Appeal from Circuit Court, Walker County; J. J. Curtis, Judge.
A. F. Fite, of Jasper, for appellant. John H. Bankhead, Jr., of Jasper, for appellee.
By this bill complainant seeks specific performance of a contract for the sale and delivery of personal property. It is well recognized, of course, that as a general rule specific performance is not decreed when the subject-matter of the contract is personal property. 36 Cyc. 554. There are, of course, exceptions to this rule, with which, however, we are not here concerned. The complainant seeks to show a peculiar necessity for the compliance on the part of the respondent with the contract here in question and the uncertainty of recovery of damages out of respondent, and thus seeks to bring the case without the general rule. The contract requires of the respondent to sell to the complainant all its output of straight mine run coal up to 100 tons daily average for each working day of 20 days per month, coal to be furnished from March 1, 1917, to February 28, 1918, loaded on railroad cars, for which complainant was to pay $1.50 per ton, loaded on the cars; payment to be made on the 15th of each month for all coal shipped the previous month. The respondent further agreed "to load good, clean, merchantable coal of standard quality and preparation." The contract clearly contemplates a continuous daily operation of the mines, requiring, of course, special knowledge, skill, and direction, running over a period of many months. It not only requires the delivery of the output of the mine up to 100 tons, daily average, for each working day of 20 days per month, but also that such coal shall be of a certain specified quality. Under the contract payment is not to be made upon delivery, but only on the 15th of each month for all coal shipped the previous month.
The contract stipulates for a succession of acts whose performance cannot be consummated by one transaction, but will be continuous, and require protracted supervision and direction, with the exercise of special knowledge or judgment in such oversight, and such contracts are not, as a rule, specifically enforced under the express holdings of this court. Tombigbee Valley R. R. Co. v. Fairford Lumber Co., 155 Ala. 575, 47 So. 88; Electric Lighting Co. v. Mobile Springhill Ry. Co., 109 Ala. 190; 19 So. 721, 55 Am. St. Rep. 927; Stewart v. Whim, 189 Ala. 192, 66 So. 623; Roquemore Hall v. Mitchell Bros., 167 Ala. 475, 52 So. 423, 140 Am. St. Rep. 52; Dimmick v. Stokes, 151 Ala. 150, 43 So. 854; South North. Alabama R. Co. v. Highland Ave. R. R. Co., 98 Ala. 400, 13 So. 682, 39 Am. St. Rep. 74; Wingo v. Hardy, 94 Ala. 184, 10 So. 659; American Laundry Co. v. E. W. Dry-Cleaning Co., 74 So. 58. Nor do we consider that the case of Hendricks v. Hughes, 117 Ala. 591, 23 So. 637, cited by counsel for appellant, at all out of harmony with these authorities or the conclusion here reached.
199 Ala. 154.
There are recognized exceptions to the rule, particularly in those cases in which the public has an interest. Stewart v. White, supra. Such was the case of Joy v. St. Louis, 138 U.S. 1, 11 Sup. Ct. 243, 34 L.Ed. 843, cited by counsel for appellant, as well as that of Schmidtz v. L. N. R. R. Co., 101 Ky. 441, 41 S.W. 1015, 38 L.R.A. 809, from the Kentucky Court of Appeals. We recognize that there have been some departures from this general rule, and an expansion by some of the courts of the remedy of specific performance (36 Cyc. 587; Montgomery L. P. Co. v. Montgomery Traction Co. [C. C.] 191 Fed. 657), but this court expressly adhered to its former rulings in the very recent case of Stewart v. White, supra.
It has been frequently held by this court that mutuality in the equitable remedy was of the essence of the right to specific performance of the contract. Electric Light. Co. v. Mobile Springhill Ry. Co., supra; Irwin v. Bailey, 72 Ala. 467; Tombigbee Valley R. R. Co. v. Fairford Lumber Co., supra; 36 Cyc. 621, 622, and note, where the rule is criticized. The question as to mutuality of remedy in cases of this character is made the subject of a statute in California. (Section 3386, Civil Code Cal.) There are also exceptions to this rule, but the case here is clearly not within any of them. Tombigbee Valley R. R. Co. v. Fairford Lumber Co., supra. The contract here in question provides for the delivery of coal to the complainant and contemplates its shipment by the complainant and a monthly credit extended. Had coal declined in price, rather than advanced, it is quite clear that respondent could not have maintained a bill requiring the complainant to accept the coal, and pay for the same at the price agreed upon, but his remedy would have been an action at law. Stewart v. White, supra.
The bill does not aver the insolvency of respondent, but contains averments indicating an uncertainty in the collection of judgment against the respondent. We are of the opinion that such averment of uncertainty alone is not sufficient to authorize the relief sought. 36 Cyc. 564.
It may be recognized that in some instances hardships result in the declination on the part of the court of equity to assume jurisdiction in cases of this character. Indeed, this court so expressed itself in Stewart v. White, supra. The case presented by this bill, however, comes within the rule long established in this state and undisturbed by any of our decisions, and we are not sufficiently impressed to a contrary view as to cause us to depart therefrom. In some of the states the question has been given consideration by the law-making body. 36 Cyc. 564, note.
It results that in our opinion the bill is without equity, and the decree of the court below will accordingly be affirmed.
ANDERSON, C. J., and McCLELLAN and SAYRE, JJ., concur.