Rector of the Church of the Holy Communion v. Paterson Extension Railroad

The complainant seeks nothing but compensation and damages. The bill is presented in the guise of a bill for specific performance, nominating the recovery it seeks, substituted performance.

It presents a case in which specific performance was, by the complainant’s own act, rendered impossible before the filing of the bill, and it couples with claims that grew out of the nonperformance of the contract, to which it refers, demands for the value of lands takeij and for damages occasioned by the operation of a railroad which it does not pretend were connected with the contract which was not performed. For each matter thus put in suit, the complainant, if it may have redress at all, may have it at law. There it may maintain an action for the damages caused by the breach of the contract, and trespass and ejectment will secure compensation for the land unwarrantably*entered upon and taken possession of. There is no allegation that the railroad was not operated with care and skill. It has been decided in this state that damages incidental to the proper operation of a railroad,' authorized by law, cannot be recovered. Beseman v. Pennsylvania Railroad Co., 21 Vr. 235; S. C. on error, 23 Vr. 221.

Courts of equity have given compensation or damages as relief ancillary to specific performance, where the main relief, having *377Been sought in good faith, cannot be afforded. In so doing, they have been actuated by the desire to save multiplicity of suits, or do give redress to which the complainant is justly entitled, but which he cannot have, or adequately have, at law. For instance, where in a suit for specific performance the defendant, pending :the suit, has deprived himself of the power to specifically comply with the terms of the contract, the suit has been retained and •compensation in damages has been awarded to the complainant rather than send him to another suit at law. Morss v. Elmendorf, 11 Paige 277; Milkman v. Ordway, 106 Mass. 232. And the same course has been pursued where the defendant, without the knowledge of the complainant, has deprived himself of power to perform the contract prior to the filing of the bill. Morss v. Elmendorf, supra; Milkman v. Ordway, supra. And even where the defendant never had the power to comply with the terms of the contract, if the complainant, at the time of filing his bill, in good faith supposed that he could have specific performance. Morss v. Elmendorf, supra. And where the contract itself was of such a character that the court would not .specifically enfoi’ce it, and the complainant was in such a situation that, while justly entitled to relief, he could not adequately .have it at law. Copper v. Wells, Sax. 10; Berry v. Van Winkle’s Exrs., 1 Gr. Ch. 269; Phillips v. Thompson, 1 Johns. Ch. 131; Parkhurst v. Van Cortlandt, 1 Johns. Ch. 273.

But it has also been held that where the complainant, having adequate redress at law, at the time he files his bill, knows that the defendant cannot specifically perform the contract, his suit becomes purposely a mere naked claim for damages, under the .guise of a proceeding to secure specific performance, and will not lie. Hatch v. Cobb, 4 Johns. Ch. 559; Kempshall v. Stone, 5 Johns. Ch. 193; Morss v. Elmendorf, supra.

In Peeler v. Levy, 11 C. E. Gr. 330, in this court, the complainant had contracted with the defendant for the exchange of property which belonged to the latter’s wife, knowing, at the ■time, that the title was in the wife. The wife separated from her husband because of his ill-treatment of her, and refused to >consent to the exchange. Upon a bill being filed- for specific *378performance, the vice-chancellor-' (Van Fleet) declared it to be' unconscionable for one man to take the promise of another to do • a particular thing which the promisee knows at the time the promise is made that the promisor cannot perform, except by the-consent of a third person, and then, when consent and concurrence is refused by the third person in good faith, to demand a-strict and literal fulfillment of the promise, and that therefore-the complainant was not entitled to assistance from a court of equity, and then added, upon the authority of Hatch v. Cobb, Kempshall v. Stone and Morss v. Elmendorf, that a court of equity will not take jurisdiction of a naked claim for damages,, even when it is made under the guise of a suit for specific performance. -

In Milkman v. Ordway, above cited, it was adjudged that when it is ■ determined that the complainant has the right to-equitable relief, the court’s jurisdiction is established, and then, damages may be awarded as an alternative if the defendant shall, fail to do,-or procure to be done, that which strict equity demands, or the court may proceed directly to award damages orcumpensation. This rule, however, is qualified, in the court’s opinion, by this language: “ The peculiar province of a court of equity is to adapt its remedies to the circumstances of each case, as developed by the trial. It is acting'within that province when it administers a remedy in damages merely in favor of a party who fails of other equitable relief to which he is entitled without fault on his own part.”

This view of the court’s province, which is inconsistent with, the doctrine of Hatch v. Cobb, and the cases which follow that decision, has the approval of Vice-Chancellor Van Fleet, in Ludlum v. Buckingham, 8 Stew. Eq. 71,83, as being “ founded in good-sense and supported by sound logic.”

Ludlum v. Buckingham was reviewed by the court of errors- and appeals (12 Stew. Eq. 563), but that court did not determine- or discuss’the question as to the jurisdiction of this court to-award damages, but, expressly disavowing- the necessity of so-doing, affirmed the decision of' the vice-chancellor upon the-ground that, if damages or compensation could be given it would *379be by way of substituted performance, winch would not be decreed in favor of one whose conduct was not free from fraud and inequity, and that the conduct of the complainant, in that case, was of such a character as to forfeit his right to equitable relief..

In the case before me, the complainant, by its own act, in repairing the church and securing its foundation, has deprived the defendants of the ability to specifically perform their contract-. While it had the right to sue for' specific performance, it deliberately put it out of the power of the defendants to perform the contract, and then, having, of course, full knowledge of what it had done, applied to this court for what it terms substituted performance. The present application to this court is alike objectionable under either the doctrine of Hatch v. Cobb or the-doctrine of Milkman v. Ordway. The complainant’s action, in itself doing that which would be performance of the contract if done by the defendant, when the doors of this court stood open, to it, cannot be regarded otherwise than as an abandonment of its right to come into equity. The claim to damages now is not ancillary to an equitable right-, which, without the complainant’s-fault, is unavailable to it, but it is the principal relief, made so. by the complainant’s own act, and it must be sought in the appropriate tribunal.

The claim for compensation for the land taken by the defendant-, which stands independently of the contract, is not supported, by, or subordinate to, any matter cognizable in equity.

It is not necessary to determine whether the other grounds of demurrer are sufficient. I am fully satisfied that the bill fails-to present a case for equitable relief, and. upon, that ground alonewili sustain the demurrers.