1. Equity will enjoin one partner from violating the rights of
his co-partner in partnership matters although no dissolution of
the partnership be contemplated.
2. Where a person makes an entry on land owned by others jointly
interested with him in working it, but which is held by these last
subject to a right of entry and possession in him, for failure or
refusal by them to fulfill certain conditions and stipulations
about the products of the land, which they have covenanted to
fulfill, so that
prima facie his entry is a deforcement of
the owners and an invasion of their rights
Page 77 U. S. 340
as such, the burden is on the party entering to show that his
entry was justifiable.
3. Where a deed from one owner conveyed quarry lands to his
co-owners, reserving a right in the grantor, if the grantees did
not furnish marble from them, to enter and keep possession and take
the marble himself, till the grantees should be ready and willing
to fulfill the conditions of the contract on their part, an
injunction which, after unwarrantable and illegal entry for alleged
condition broken, enjoined the grantor from hindering the grantees
from retaking possession and occupying and using the premises
until the further order of the court, was held too broad,
and on appeal was modified so as only to enjoin against an entry
for any cause
theretofore existing, thus leaving the
grantor to enjoy his reserved right
thereafter
untrammeled.
4. Where a corporation, by its own voluntary act, has bought
lands charged by covenants inseparable from the deed by which the
land was originally conveyed, and which were part of the
consideration of the grant,
a court of equity cannot strike out a part of the covenants,
because though originally intended to operate for the equal benefit
of both parties, they have become in progress of time oppressive
and burdensome to the grantee or because the purchase would make
the corporation partners with the grantor in working the land,
whether they would or not, contrary to their duties as a
corporation, and the contract would thus become one restraining the
alienability of property.
5. Specific performance of a contract will not be decreed:
(a) Against one party in favor of another who has disregarded
his own reciprocal obligations in the matter; as
ex. gr.,
against a grantee of land charged with certain duties in regard to
it, in favor of a grantor who has made a reentry both unlawful and
fraudulent.
(b) Nor where the duties to be fulfilled by the grantee are
continuous and involve the exercise of skill, personal labor, and
cultivated judgment; as
ex. gr., to deliver marble of
certain kinds, and in blocks of a kind that the court is incapable
of determining whether they accord with the contract or no:
(c) Nor where there is a want of mutuality in the contract; as
ex. gr., where it is stipulated that one of the parties
may abandon the contract at any time on giving a year's notice:
(d) Nor where the party (a grantor) has a complete remedy at
law; as
ex. gr., in a grant of quarry land, the grantee
agreeing to quarry and deliver to the grantor certain sorts of
marble from it, and the grantor reserving a right of reentry in
case of nonperformance, in order to supply himself, and having
moreover a remedy by an ordinary suit at law on the contract.
6. A restriction upon absolute ownership in a grant of land
having on it a quarry, where the grantees agree to deliver to the
grantor, his heirs &c., so long as they might want, a certain
number of feet per annum of stone of certain kinds, for a
partnership purpose (the grantor reserving a right of reentry and
of taking the stone himself, if the
Page 77 U. S. 341
grantees do not fulfill their agreement) is not to be raised by
implication. Hence, in the case of such a grant, where there is no
obvious restriction upon the quantity of stone which the grantees
may take out, it cannot be inferred that the grantees were meant to
be limited to taking out no more stone than that which they have
agreed to deliver to the grantor.
7. Such a grant and reservation as that described in paragraph
No. 3,
supra, limited however in the extent to which the
grantees were bound to furnish marble, does not leave in the
grantor a corporeal interest in the marble
"in situ," and
hence his interest is not exclusive of the right of the grantees to
take marble on their own account
"ad libitum."
These were appeals from the Circuit Court for the District of
Vermont, in two decrees, one of them on a bill filed by the Rutland
Marble Company against a certain Ripley and one Barnes, and the
other one a cross-bill filed by the same Ripley against the company
just named. The case was this:
On the 22d of January, 1850, the said Ripley and the said Barnes
together owned a tract of land in Rutland Township, Vermont,
containing about twenty-one acres, in which was a valuable marble
quarry. On that day, Ripley, by his deed, released and quitclaimed
unto his co-tenant, Barnes, in fee simple, the tract of land. The
deed contained a reservation to the releasor, his heirs, executors,
administrators, and assigns, of
"the right to enter upon and take possession of the said
twenty-one acres, for the purpose of digging, quarrying, and
carrying away all the marble he or they might want, according to
the stipulations and conditions of a contract that day made and
concluded between the said Ripley and Barnes, in case the said
Barnes, his heirs, executors, administrators, and assigns, should
refuse or fail on their part to fulfill the conditions and
stipulations of the said contract."
By the contract referred to, which was made on the same day,
Barnes agreed,
"for himself, his heirs, executors, administrators, and assigns,
to quarry marble from the marble quarry, and draw and deliver at
the mill of the said Ripley, in Rutland, from the
layers of
marble usually denominated the white layers in said quarry,
all the marble that the said Ripley
Page 77 U. S. 342
might want to saw, manufacture, and sell, in good sound blocks,
of suitable size, shape, and proportion, and to quarry to order as
might be wanted to keep the mill
fully supplied at all
times, the amount to be not less than 75,000 feet per annum,
and for so long a time as the said Ripley, his heirs, executors,
administrators, and assigns might want."
It was also agreed that should Ripley, his heirs &c., at any
future time desire to increase the business, Barnes, his heirs,
executors, administrators, and assigns, should furnish the blocks,
as aforesaid, to the extent of 150,000 feet per annum of two-inch
marble slabs, on receiving one year's notice to that effect. It was
also agreed that Ripley, his heirs &c., or his or their agents,
might have the privilege of dividing each lot of blocks, as taken
and drawn from the quarry, taking an average share as to quality,
size, and shape, before any blocks should be taken from the lots by
any other person, the first choice always being taken by Ripley, or
for his mill. It was also stipulated that Ripley
might abandon
the contract at any time on giving one year's notice. The
contract further stipulated that if Barnes, his heirs, executors,
administrators, or assigns should fail or refuse to fulfill its
conditions, Ripley, his heirs, executors, administrators, or
assigns, or his or their agents, might enter upon the quarry and
the premises attached to, and connected with it, and might quarry
and dig, take and carry away, as much marble as they might want,
and might have the use of, and enjoy all the rights, privileges,
and appurtenances belonging to, or connected with, the said quarry,
without hindrance or obstruction, or in any way paying for the
same, and might keep possession
until Barnes, his heirs,
executors, administrators, or assigns, should be ready and willing
to fulfill the conditions of the contract on their part, it
being also provided that if, after making an entry as aforesaid,
Ripley, or his heirs &c., should make an opening, or put the
quarry in a better condition for getting out marble, Barnes, his
heirs, executors, administrators, or assigns should not reenter, or
resume possession, until Ripley, his heirs &c., should have had
the benefit of the work done and money expended by them, unless
Page 77 U. S. 343
Barnes should make payment for the same. It was further provided
that Ripley, his heirs, executors, administrators, and assigns
should receive the marble blocks so delivered at the mill; should
saw, trim, and prepare them for market; should sell them, advancing
from time to time to Barnes,
as the blocks should be
delivered, twelve cents per foot of two-inch marble, as
payment for drawing and quarrying, and retaining from the proceeds
of sales of the marble an equal sum per foot, as payment for sawing
and trimming, retaining also from the proceeds of sales the
expenses of transportation to market, and all the necessary
expenses of doing the business and collecting payment for the
marble (not including payment for his own time and labor), and
should divide the remainder of the proceeds of sale equally between
Barnes and himself, as collected. Ripley further agreed to pay
Barnes one cent per foot of two-inch marble for drawing and
transporting the marble from the quarry to the mill, the payment to
be made from his own funds. At the date of this contract the quarry
had been opened at the north end only, though Barnes contemplated
making an opening on the south end, for two persons named Allen and
Adams. The contract contained accordingly still another provision,
evidently an alternative, to-wit, that if the marble contained in
that part of the ledge which Barnes was about to open for Allen and
Adams should prove to be of better quality than the marble from the
quarry then opened and worked upon the land, Barnes should open on
the south end of the lot conveyed to him, and furnish Ripley with
marble from that place on receiving reasonable notice.
Barnes having thus become the owner in severalty of the land
containing the quarry, conveyed it, on the 1st of June, 1854, to
sundry persons, expressly excepting the right reserved by Ripley in
his deed aforesaid, and reserving to himself a right of entry in
case his grantees should fail to perform his contract with Ripley.
By several mesne conveyances the property became vested in the
Rutland Marble Company on the 31st of October, 1863. In all the
deeds, including that to the company, the right of entry
reserved
Page 77 U. S. 344
by Ripley in his conveyance to Barnes, and his rights under the
contract, were expressly excepted, and the grantors reserved also a
right of entry on the failure of their grantees to comply with the
engagements of the contract of January 22, 1850.
Soon after the contract was made, Ripley gave notice that he
required his supply of marble under it to be increased from 75,000
to 150,000 feet, and on the 24th of July, 1854, he gave notice that
he wanted the whole of his marble quarried from the south end of
the ledge, next to the opening of Allen and Adams, according to the
contract. On the 22d of August, 1855, he again gave notice that he
claimed, under his contract of January 22, 1850, to be
forever thereafter supplied with marble from a proper
opening of the ledge for the purpose, on the south end of the lot
conveyed by his deed to Barnes. Accordingly an opening was made at
the south end, necessarily at considerable expense, and he was
supplied therefrom for years, until the spring of 1864, and until
differences arose which resulted in these suits. Until that opening
was made in 1854, or 1855, there was none on the land except the
one which had been made at the north end before the contract
between Barnes and Ripley was signed.
In the year 1854, while Barnes was still the owner of the land,
a modification of the contract was agreed upon between him and
Ripley, the particulars of which it is not necessary here to
notice. The modification expired by its own limitation on the 1st
of February, 1864, leaving the original agreement in full force. As
already said, the marble company had, prior to that time, become
the owners of the property, and they had fulfilled, so far as it
appeared, the requirements of the modified contract. But very soon
after its expiration, if not before, differences arose between them
and Ripley respecting their rights under the agreement. On the 15th
of February, 1864, he gave them notice that he claimed a right to
divide every lot of blocks at all times thereafter, when taken from
the quarry, insisting on a right to a first choice, and when this
demand was resisted by the
Page 77 U. S. 345
marble company it was renewed by Ripley. Differences also arose
between the parties respecting Ripley's obligation under the terms
of the contract, calling for "layers of marble usually denominated
the white layers," to receive certain kinds of marble called
brocadilla, having in a basis essentially white considerable
deposits of blue or green; differences also respecting his right to
demand payment for unloading at his mill, and respecting his
obligation to pay for quarrying and hauling.
In this state of things, on the 5th of April or within a day or
two after it, a strike took place among the workmen at the
quarries. On its occurring, Ripley advised the company to hold out,
saying
"that he would aid in whatever way he could; that the workmen
had had their way long enough; that the company ought to resist the
thing
now, and ought to have done it years before."
When replied to by the agent of the company that the difficulty
to resistance was in the contract with him about the mill, he
said
"that the strikes affected his men and all the men at the mills,
and that he would rather wait six months, or even twelve, and have
the company get possession of the quarry and manage it as it ought
to be managed."
Evidence, however, showed that it was observed about the 13th or
16th of April that Ripley himself was having drills made of the
sort used in quarrying, and that he kept persons in ignorance of
the purpose for which he meant to use them, and that when told by
an agent of the company whom he had advised to hold out against the
strike, "that the men understood that
he was going to set
them to work, and that he was thus helping the strike along as much
as anyone;" his reply was "that they did not know but that he was
going to quarry somewhere else; that they did not know where he was
making drills to be used." Whether the company had furnished to
Ripley all the marble that he had a right to demand, under the
contract of January 22, 1850, was one of the matters in
controversy. His mills had been enlarged after the date of that
contract, so that they could saw 300,000 feet, and
so
enlarged were perhaps not fully supplied at all times. It
appeared, however,
Page 77 U. S. 346
by the testimony of Ripley himself, and by his cross-bill, that
between the 1st of February, 1864, when the already-mentioned
modification of the contract expired, and the 3d of April (about
which time the strike began), the marble company had delivered at
Ripley's mill about 26,687 feet of marble. Ripley, it appeared, was
in arrears at this time with his payments; and quarrying in the
winter, it was proved, is a sort of work which in a latitude so
high as that of Vermont, where frost necessarily pervades a quarry,
is performed with injury to the quarry worked on.
On the 26th of April, soon after the strike was complete,
Ripley, without giving any notice of his intended action, caused an
entry to be made upon the entire property, as well the southern
opening as the northern. The entry was made about three o'clock in
the morning, by Barnes, acting for Ripley, and a large number of
men were set at work, to the exclusion of the marble company.
The company hereupon filed a bill in the court below, setting
forth various alleged pretensions of Ripley, which it said were
unfounded, the strike and his complicity with the workmen, that his
mill was always sufficiently supplied &c., and praying
That Barnes and Ripley might be enjoined against further
unlawful interference with, or occupation of the then, the
complainants' said property:
That the contract might be decreed rescinded and terminated, or,
if not, that various questions respecting its construction might be
settled by the decree of the court, and that the defendant, Ripley,
might be required to account for the money of the complainants in
his hands.
To this bill answers were put in by the defendants, and a
cross-bill was filed by Ripley. The answer of Ripley, more material
than Barnes's, after a general history of things, denied most of
the important allegations of the bill. It admitted, however, the
strike, as stated in it, and after saying that the had expressed
the opinion that the company should at once have refused all
further employment of the laborers when the men struck, and have
employed a new set of men,
Page 77 U. S. 347
which he believed might have been done long before April 26 (the
date of his entry), he proceeded to answer that the company totally
disregarded his said opinions, and wholly neglected, so far as he
could learn, to make any arrangement to substitute new laborers or
to renew the business of quarrying, and being reliably informed and
believing that no arrangement
would ever be made with the
laborers for their return to work, and the use and possession of
the quarries having been to all appearance entirely vacated from
the time of the strike (which was April 5th or 6th), he
entered.
The cross-bill, after setting forth the same sort of a general
history, and an account of the disputes that had arisen &c.,
went on to represent that the marble company were working the
quarries to an enormous excess over and above the quantity
authorized or required by the contract of 1850, or any reasonable
or proper expectation of the parties under the same, and were
supplying other parties, and the trade in general, with great
quantities of marble taken from the quarries, in violation of the
rights of Ripley; that the whole mass and quantity of marble of the
kind and description mentioned in the contract contained on the
land, was limited and not inexhaustible, and that a continuance by
the company in their then present rate of exhaustion and supply of
the general market therefrom, would in a short time so exhaust the
quarry as to render the performance of the contract of 1850
impossible, whereby he, the defendant Ripley, would be entirely
deprived of his beneficial interest in the quarry arising under the
contract, and the whole profit and advantages thereof would be
absorbed and exhausted by the company. The cross-bill prayed
accordingly that the company might be decreed to perform
specifically the contract by furnishing the marble as therein
required, or deliver up the possession of the quarry and property
to the said cross-complainant, free and discharged from all claim,
right, or title which the said company ever had, or then had, in
and to the same, and that in the meantime they be restrained from
operating or working the quarry or selling any marble taken
therefrom; that they be decreed to pay such damages
Page 77 U. S. 348
as the complainant might have sustained in consequence of their
not having supplied his mill with marble as required by the
contracts of 1850 and 1854, and pay the same by a specified day,
and that the quarry be held as security therefor, and in default of
such payment the company should be foreclosed of all equity of
redemption or claim in and to said quarry and property.
The answer to the cross-bill, denying many other allegations,
denied upon belief, that the quarry was likely to be exhausted, at
least within a century, by any amount of work within the power of
the company to give, or justified by their interests, and it
insisted that the contract did not secure to Ripley the exclusive
product of the quarry, but that the company had a right to work it
for their own benefit independently of the arrangement, and
admitting that they were taking from the quarry, and were disposing
of more marble than was required to supply Ripley under the
contract.
The grounds upon which the marble company rested their prayer
that the contract might be rescinded and cancelled were, that
Ripley had not performed the duties which it imposed upon him; that
though it was, when made, intended to operate for the equal benefit
of both parties, it had become, in the lapse of time, with the
increased demand for marble, the greatly enhanced cost of
production, and the entire change in the character and results of
the marble business, grossly unfair and unequal -- so much so,
indeed, that the defendant's net receipts under it had become more
than twelve times as much as those of the complainants; to him,
yielding a yearly revenue of $40,000; to them, resulting in a very
great loss on the marble supplied, and a return barely sufficient
to defray the expenses of executing the contract; an inequality
which they alleged was not denied, and was plainly unconscionable;
that in addition to this, the contract made the company partners
with Ripley, or his successors, in title to the mill, whether they
would or not; and that, if corporations could not enter into
partnership, they could not purchase the lands subject to the
obligation of
Page 77 U. S. 349
becoming partners, and therefore that the contract restrained
the alienability of the property.
One of the grounds on which Ripley rested his claim to a decree
for specific performance of the contract was a notice from the
marble company, given to him on the 18th of June, 1864, that they
would maintain that the facts set forth in their bill amounted
to a permanent breach and violation on his part of the
contract, authorizing them to treat it as rescinded, and that
they therefore rescinded it, asserting that they had always
performed it on their part until it was thus violated and broken by
him.
The circuit court, after a hearing, granted an injunction in
accordance with the prayer of the Rutland Marble Company,
restraining the defendants, Ripley and Barnes, from the further
occupation or possession of the premises and property described in
the bill, and from any interference therewith, and enjoining them
against hindering or disturbing the complainants from taking
possession of, occupying, and using the same
until the further
order of the court. But the court refused to decree a
rescission and cancellation of the contract itself.
The court also, in effect, decreed a specific performance of the
contract, as prayed in the cross-bill, and made several decretal
orders respecting the manner in which the contract should be
performed, but the injunction asked for in the cross-bill was
denied.
Among the decretal orders was one, that Ripley should pay over
monthly to the company its share of the money received by
him from the marble business, and there was none, as he by this
cross-bill had prayed for, that the court would enjoin the company
from selling and disposing of marble taken from the quarry. From
the decrees above mentioned and the decretal orders, appeals were
taken to this Court; Ripley, in
his appeal, specifying as
a second ground for it, the manner in which, as above stated, he
was required to account with the company, and as a sixth
ground,
Page 77 U. S. 350
"The omission and refusal of the court to enjoin the company
from selling or disposing of marble taken from the quarry."
The matters considered by the court, accordingly, were:
I.
Upon the bill by the marble company.
1. Whether the case was one for the injunction prayed for by the
company against Ripley and Barnes.
2. Whether the case was one for the cancellation of the contract
of January 22, 1850.
II.
Upon the cross-bill by Ripley.
1. Whether, it being decided that the contract was not to be
cancelled, Ripley was entitled to a decree for specific performance
of it by the company.
2. Whether the decretal orders above quoted and objected to by
Ripley were erroneous.
MR. JUSTICE STRONG, having stated the case, delivered the
opinion of the Court.
The first question presented for our consideration is whether
the pleadings and proofs exhibited a proper case for an injunction
upon the defendants, Ripley and Barnes, against disturbing the
complainants in their right to take possession, occupy, and use the
property entered upon by the said defendants, and against
continuing the occupation which they had commenced of the quarries
and other property, real and personal, of the company. The solution
of this depends upon another question, which is, whether the entry
made by Ripley, through his agent, Barnes, on the 26th day of
April, 1864, was lawful under the circumstances in which it was
made.
It is to be observed that the contract of January 22, 1850,
between Ripley and Barnes, was in a very practical sense a contract
of partnership, and that to Barnes's position under
Page 77 U. S. 351
it the complainants have succeeded. By its terms each of the
parties was bound to contribute to a common enterprise. Each had
his own duties to perform. Barnes was to furnish the marble needed
for the mill, and Ripley was to bestow his own labor and care in
manufacturing it for the market and selling it. When this had been
accomplished, the net proceeds of sale were to be equally divided.
Neither of the parties had a right to interfere with the specified
duties of the other so long as that other discharged his
obligations under the contract. But they had a common interest in
the business carried on, quite as truly as if theirs had been an
ordinary partnership. Any unauthorized attempt by one to oust the
other from the position and rights assigned to him by the contract
was therefore not only a breach of their agreement, but a fraud
upon the relation they had assumed to each other. Such a wrong it
is the province of a court of equity to prevent. A chancellor will
interfere by injunction to restrain one partner from violating the
rights of his co-partner, even when a dissolution of the
partnership is not necessarily contemplated. [
Footnote 1]
Prima facie, the entry of Ripley upon the quarry
property and the consequent deforcement of the complainants was an
invasion of their rights as owners of the land, and as jointly
interested with him in the marble business. The burden is upon him,
therefore, to show that his entry was justifiable. Has he shown it?
Under the reservation in Ripley's deed, and under the
contemporaneous agreement, his right to enter existed only in case
Barnes, or his successors in the title, should fail or refuse to
fulfill the conditions and stipulations of the contract -- that is,
should fail or refuse to deliver the marble as required by it. A
right to enter for any other cause is not claimed. After a careful
examination of the evidence, we do not find that there had been any
such failure on the part of the complainants to deliver marble
prior to April 26, 1864, as justified Ripley in entering upon their
possession. They were not bound to keep in full supply
Page 77 U. S. 352
the mill which he then had. The contract had reference to a
supply of the mill as it was in 1850, when its capacity was less
than 150,000 feet per annum. And when, afterwards, he enlarged his
mill so that he could saw 300,000 feet, nothing in the contract
required Barnes, or his alienees, to keep the enlarged mill
supplied. The obligation was only to furnish 150,000 feet per
annum, as it might be wanted to supply the old mill. Nor did the
contract require that any defined portion of the whole quantity
should be delivered at any specified season of the year.
Undoubtedly its spirit demanded that the deliveries should be
reasonable. But it is in evidence that quarrying marble must be
principally in moderate or warm weather, when there is no frost. It
is therefore a reasonable construction that the parties intended
the deliveries should be greatest in the summer and fall. Yet the
evidence is that the complainants delivered at his mill, during the
months of February, March, and April of 1864, more than 26,000
feet, besides other blocks which he refused to receive. In fact a
considerably greater quantity was delivered. All this was between
February 1 (when the modification of the contract before mentioned
expired) and the 3d of April. This was in excess of a ratable
proportion of what the company was bound to quarry and deliver.
After the 2d of April, there was an interruption of deliveries,
caused by a general turn-out of the workmen at the quarries, of
which we shall have more to say hereafter. But what is most
significant and convincing that there was no failure on the part of
the company is Ripley's own sworn answer to their bill. It appears
from what he himself states in this answer, that the reason for his
entry was, not that there had been any failure or refusal to supply
his mill with marble, so far as he had a right to claim it, but
that the marble company disregarded his opinions, and he was
apprehensive they would not be able to induce the laborers to
return to work. It is plain that for such reasons neither the
reservation in his deed nor the provisions of the contract gave him
any right of entry. His intrusion upon the complainant's possession
was therefore entirely unjustifiable, and a
Page 77 U. S. 353
wrong the continuance of which a court of equity may well
restrain.
We are also of opinion that his entry was not made
in good
faith, merely to supply himself with marble. Very soon after
the modified contract came to an end, he set up claims, some of
which, at least, had no foundation in the contract. On the 15th of
February he gave notice that he claimed a right to divide every lot
of blocks, at all times thereafter, when taken from the quarry
referred to in his deed and in the contract, insisting upon a right
to the first choice; and this though he had elected forever to take
all his marble from the south opening, which he had required to be
made under the alternative provision of the contract. This was
either claiming inconsistently with his demand for all his marble
from that opening, or it was, in effect, requiring the company to
take therefrom twice as much as was necessary to supply the 150,000
feet for his mill. When the demand was resisted, it was renewed,
though without right. Differences of opinion also arose between the
parties respecting Ripley's obligation to receive particular kinds
of marble, respecting his right to demand payment for unloading it
at his mill, and respecting his obligations to pay for quarrying
and hauling. We do not enter now upon any consideration of the
inquiry which of the parties was right. It is sufficient to notice
that there were differences. It was while they existed, early in
April, the strike of the laborers occurred. The evidence
establishes beyond any reasonable doubt that Ripley advised the
agents of the company to hold out against the strike, and that when
told the mill contracts made a difficulty, he said he would rather
go without marble six months, or a year, than that the company
should submit to the strikers. Yet at this time, when giving this
advice and making these professions, he was preparing secretly to
make an entry on the property. He was having drills made at least a
week or ten days before he made his entry at night, concealing the
purpose for which they were made and his design to enter. When told
that he was aiding the strike, as the men understood he was
intending to set them at work,
Page 77 U. S. 354
he replied the men did not know but that he was going to quarry
somewhere else. Meanwhile he was himself refusing, or at least
neglecting to pay what he was bound to pay at the time when it was
due. It is impossible to read the evidence without being convinced
that he intended to secure the possession of the property by
surprising the complainants, and thereby force them to assent to
his demands and his interpretation of the contract. Such being the
conclusions to be drawn from the evidence, we cannot doubt that the
injunction decreed by the circuit court was correctly awarded.
It was, however, too broad. It restrained the defendants, Ripley
and Barnes, not only from the further occupation or possession of
the premises and property described in the bill, and from any
interference therewith, but it enjoined them against hindering or
disturbing the complainants from taking possession of, occupying
and using the same,
until the further order of the court.
The effect of this is to deny to Ripley the right of entry reserved
in his deed, and forbid his exercising it, though the complainants
should hereafter wholly refuse to deliver any marble, unless the
court by a future order shall allow an entry. This is probably more
than was intended. The decree should be modified so as only to
enjoin against an entry for any cause heretofore existing, leaving
Ripley to enjoy his reserved right hereafter entirely
untrammeled.
We proceed next to inquire whether there is any sufficient
reason for decreeing a cancellation of the contract of January 22,
1850, as prayed for by the marble company. This is a call for an
exercise of the highest chancery power, a power most frequently
exerted in cases of fraud, accident, or mistake. The grounds upon
which the company rest their claim that the contract may be decreed
to be rescinded and cancelled are, that Ripley has not performed
the duties which it imposed upon him; that though it was, when
made, intended to operate for the equal benefit of both parties, it
has become, in the progress of time, oppressive and burdensome
Page 77 U. S. 355
to the complainants, or, as they denominate it, unconscionable;
that it makes them partners with Ripley, or his successors in title
to the mill, whether they will or not; and that, if corporations
cannot enter into partnership, they cannot purchase the lands
subject to the obligation of becoming partners, and therefore the
contract restrains the alienability of the property.
Before proceeding to a consideration of these it is proper to
remark that the agreement is inseparable from the deed for the land
made by Ripley to Barnes. They were made at the same time, and they
are parts of one arrangement. What is asked, therefore, is, not to
rescind an entire contract, but to strike out of it a part which
has become onerous to one of the parties. It is clear that the
rights secured to Ripley by the agreement were a part of the
consideration for his grant of the land, and so it was understood
at the time his deed was made. If there were nothing else to show
this, it is made apparent by the reservation in the deed of a right
of entry to secure the fulfillment of the stipulations of the
agreement. But the deed was an executed contract. It conveyed the
title to the grantee. If, therefore, the agreement is rescinded by
a decree of the court, the consideration of the grant is taken from
the vendor after his conveyance has taken effect, and yet his grant
is enforced. It is believed that such action by a court of equity
is quite unprecedented. It has been ruled that when a party seeking
to set aside a conveyance made by him has received part of the
consideration, he must return it before a court of equity will
cancel the conveyance. [
Footnote
2] That one party to an executory contract, partly executed,
has violated his engagements is generally no sufficient reason for
a decree by a court of equity, at the suit of the other party, that
the contract shall be annulled. Certainly it is not in the present
case. If the contract has been broken by Ripley, the marble company
has an adequate remedy at law. Nor is it any reason for rescinding
the contract that it has become more
Page 77 U. S. 356
burdensome in its operation upon the complainants than was
anticipated. If it be, indeed, unequal now, if it has become
unconscionable, that might possibly be a reason why a court should
refuse to decree its specific performance; but it has nothing to do
with the question whether it should be ordered to be cancelled. It
is not the province of a court of equity to undo a bargain because
it is hard. Nor have the other reasons assigned in support of the
complainants' prayer for cancellation any more weight in view of
the circumstances of the case. The marble company have, by their
own voluntary act, placed themselves in the position they occupy.
With a full knowledge of the reservation in Ripley's deed to
Barnes, and of the contract, the performance of which the
reservation was intended to secure, they purchased the quarries.
They purchased expressly subject to the rights guaranteed to
Ripley, and they undertook with their grantors to perform the
promises Barnes had made, so long as they held the land. At the
time when they purchased, the contract had been in operation for
years, and they knew its effect. It is fair to presume that the
burden of the contract was considered in fixing the price they
paid. They are therefore not in a condition to ask for its
rescission, and the circuit court rightly refused to decree a
cancellation.
The next question is whether Ripley, the defendant, was
entitled, upon his cross-bill, to a decree against the marble
company for a specific performance of the contract. The court below
substantially directed such performance, and from that decree the
marble company have appealed, and they now urge that the contract,
though supposed to be fair and equal when made, has, in the lapse
of time and by the operation of unforeseen causes arising from
changed circumstances, become exceedingly unfair, unreasonable, and
unconscionable, so that a decree for its specific performance would
tend to their oppression and ruin. It may be doubted, however,
whether the hardship of the contract is any greater than must have
been contemplated when it was made. It is
Page 77 U. S. 357
not unconscionable because Ripley obtains a larger profit from
it than was at first expected, or because the other party obtains
less. Those were contingencies the possibility of which might have
been foreseen. It could not have escaped the thought of the
contracting parties that the expense of quarrying might possibly
increase, and that the expense of sawing and preparing for market
might either increase or diminish in the progress of time. Of that
they took their chances. Besides, it is by no means clear that a
court of equity will refuse to decree the specific performance of a
contract fair when it was made but which has become a hard one by
the force of subsequent circumstances or changing events. Mr. Fry,
in his work on Specific Performance, [
Footnote 3] asserts that
"the question of the hardship of a contract is generally to be
judged of at the time at which it is entered into; that if it be
then fair and just, it will be immaterial that it may, by the force
of subsequent circumstances or change of events, have become less
beneficial to one party, except when these subsequent events have
been in some way due to the party who seeks the performance of the
contract."
Judge Story indeed, [
Footnote
4] states the rule somewhat differently, and there are some
cases that support his statement; but the rule as stated by Mr. Fry
must be applicable to contracts that do not look to completed
performance within a defined or reasonable time, but contemplate a
continuous performance, extending through an indefinite number of
years, or perpetually.
There are other objections, however, to a decree for a specific
performance in this case which are more serious. Such a decree is
not a matter of right. It rests in the sound discretion of the
court, and generally it will not be made in favor of a party who
has himself been in default. In Story's Equitable Jurisprudence,
[
Footnote 5] it is said
that
"in cases of covenants and other contracts, where a specific
performance is sought, it is often material to consider how far the
reciprocal
Page 77 U. S. 358
obligations of the party seeking the relief have been fairly and
fully performed. For if the latter have been disregarded or they
are incapable of being substantially performed on the part of the
party so seeking relief, or from their nature they have ceased to
have any just application by subsequent events, or it is against
public policy to enforce them, courts of equity will not
interfere."
To the same effect are Smith's Principles of Equity, [
Footnote 6]
Thompson v. Tod,
[
Footnote 7]
Lewis v.
Wood, [
Footnote 8] and
many other cases. Applying these principles to the case in hand, it
would appear that the conduct of the cross-complainant has not been
such as to justify the court in decreeing a specific performance at
his suit, against the marble company. Without relying upon his
alleged unfounded claims set up from time to time or his alleged
refusals or failures to make the payments due from him at the times
required by the contract or his alleged comfort given to the
turn-out of the workmen and his advice that the company should
resist it, his unlawful and unwarranted entry and ouster of the
marble company was such an invasion of the contract as leaves him
no standing as a complainant asking for its performance in a court
of equity.
Another serious objection to a decree for a specific performance
is found in the peculiar character of the contract itself and in
the duties which it requires of the owners of the quarries. These
duties are continuous. They involve skill, personal labor, and
cultivated judgment. It is, in effect, a personal contract to
deliver marble of certain kinds, and in blocks of a kind, that the
court is incapable of determining whether they accord with the
contract or not. The agreement being for a perpetual supply of
marble, no decree the court can make will end the controversy. If
performance be decreed, the case must remain in court forever, and
the court to the end of time may be called upon to determine not
only whether the prescribed quantity of marble has been
Page 77 U. S. 359
delivered, but whether every block was from the right place,
whether it was sound, whether it was of
suitable size, or
shape, or
proportion. Meanwhile, the parties may
be constantly changing. The marble company are liable so long as
they hold the land, and Ripley's rights exist only while he holds
the mill. It is manifest that the court cannot superintend the
execution of such a decree. It is quite impracticable. And it is
certain that equity will not interfere to enforce part of a
contract, unless that part is clearly severable from the remainder.
[
Footnote 9] Many of the
difficulties in the way of decreeing specific performance of a
contract, requiring, as this does, continuous personal action, and
running through an indefinite period of time, are well stated in
Port Clinton Railroad Company v. Cleveland & Toledo
Railroad Company. [
Footnote
10]
Another reason why specific performance should not be decreed in
this case is found in the want of mutuality. Such performance by
Ripley could not be decreed or enforced at the suit of the marble
company, for the contract expressly stipulates that he may
relinquish the business and abandon the contract at any time on
giving one year's notice. And it is a general principle that when,
from personal incapacity, the nature of the contract, or any other
cause, a contract is incapable of being enforced against one party,
that party is equally incapable of enforcing it specifically
against the other, though its execution in the latter way might in
itself be free from the difficulty attending its execution in the
former. [
Footnote 11]
But what is a still more satisfactory reason for withholding a
decree for specific performance is that the party who asks for it
has an entirely adequate remedy provided by the reservation in his
deed, and by the contract itself. In addition to his remedy by suit
at law, he has a right of entry and the privilege of supplying
himself with marble, as much as he may want, if the owners of the
land do not fulfill the
Page 77 U. S. 360
conditions and stipulations of the contract. He may take marble
without making payment for it, and in case of such entry he may
hold possession until the tenants of the fee are ready and willing
to carry out the agreement, and until he has been compensated for
all his expenditure. This is a remedy more adequate and full than
any decree for specific performance could give him, and it renders
such interference of a court of equity entirely unnecessary.
For these reasons we are of opinion that the circuit court
should not have decreed performance in specie of the contract, but
should have left the cross-complainant to his action at law, or to
the remedy reserved in his deed.
It is true that the marble company, on the 18th of June, 1864,
gave notice to Ripley that they would claim that the facts set
forth in their bill amounted to a permanent breach and violation on
his part of the contract, authorizing them to treat it as
rescinded, and that they therefore rescinded it, asserting that
they had always performed it on their part until it was thus
violated and broken by him. But this was after his wrongful entry,
which certainly relieved them for a time from delivering marble,
and the notice in no way interferes with any remedy he may have at
law, or with any right he has to enter under the reservation in his
deed.
The decree, so far as it orders specific performance, will
therefore be reversed, as also all the decretal orders that direct
the mode of performance.
We have thus disposed of all the questions raised by the appeal
of the complainants, The Rutland Marble Company, and of most of
those raised by the appeal of the defendant Ripley. Two or three
questions remain to be considered. It is sufficient to say, in
answer to the second specification of his appeal, that we do not
perceive that he was required to pay the company's share of the
money received by him from the marble business any more rapidly
than the contract, giving to it a reasonable construction,
demanded.
In the sixth specification it is averred that the decree is
Page 77 U. S. 361
erroneous in that it omits to order and direct that The Rutland
Marble Company, their agents, servants, and assigns, be enjoined
from selling or disposing of marble taken from said quarry of said
company. Though the appeal is in these broad terms, it is presumed
the appellant does not mean to be understood as claiming that the
marble company should be enjoined against selling as much marble as
the quantity furnished by them for the mill. If this is not so,
then the construction he would have given to the contract is that
the tenants of the fee must quarry every year 300,000 feet and
deliver one-half thereof at the mill, leaving the remainder unsold
and undisposed of. This is a construction so unreasonable and so at
variance with the words of the contract that it needs only mention
to show its inadmissibility. Assuming, then, it to be meant that
the court should have enjoined against a sale of marble from the
land greater in quantity than that which was required by the
contract to be delivered at the mill, we are of opinion the claim
cannot be maintained. It has been argued in support of it that the
evidence shows the quarry to be exhaustible within a definite
number of years; that the contract contemplated a perpetual supply
for the mill, or a supply so long as the marble shall last, while
the quarry shall be worked in the manner contemplated and
prescribed by it; and hence that taking out marble and disposing of
it in greater quantities than the mill requires, with a right of
choice of blocks in Ripley, is an invasion of his right.
The argument is faulty in several particulars. It assumes that
the contract prescribed a mode of use of the quarries exclusive of
any other. Such is not the agreement. It bears upon its face the
evidence that supplies of marble to other consumers than Ripley's
mill was contemplated. There certainly is no express restriction of
the quantity which the owners of the land may take out, and
restriction upon the absolute rights of ownership in fee is not to
be raised by mere implication. When Ripley required, under the last
provision of the agreement, all his marble to be furnished from the
south opening on the lot, and when, in obedience
Page 77 U. S. 362
to his demand, the opening was made by Barnes, it should require
unambiguous language to satisfy a court that Barnes and his
successors in the title were excluded from taking marble from any
other opening for the purpose of sale.
The argument also misapprehends the nature of such a right as
Ripley's, even though it be conceded that it was intended to
provide for a perpetual enjoyment of a marble supply. Neither the
contract nor the reservation in his deed gave him a corporeal
interest in the marble
in situ. It was not a grant to him
of the marble or a grant of a right to quarry and take it all. If
his interest was real in any sense, which may be doubted, it was
incorporeal. Of course it was not exclusive of the right of the
owners of the land to take marble on their own account
ad
libitum. In
Lord Mountjoy's Case, reported by
Godbolt, [
Footnote 12] by
Leonard, [
Footnote 13] in
Coke Littleton, [
Footnote
14] by Moore, [
Footnote
15] and more fully by Anderson, [
Footnote 16] a leading case, the words of the reservation
were:
"Provided always, and it is covenanted, granted, concluded and
agreed between the said parties to this indenture and the said John
Brown and Charles (the grantees),
and their heirs covenant
and grant to and with the said Lord Mountjoy, his
heirs and
assigns, by these presents, in form following -- that is to
say that it shall be lawful for the said Lord Mountjoy, his heirs
and assigns at all times hereafter to have, take, and dig in and
upon the heath ground of the premises, from time to time,
sufficient ores, heath, turves, and other necessaries for the
making of alum and copperas."
Here was a reservation from grantees and their heirs to a
grantor, his heirs and assigns quite as large as in the present
case. Yet it was held an incorporeal hereditament, and not a grant
of an exclusive right. It was likened to a grant of common
sans
nombre, leaving the grantors a right to dig and take ore
though their so doing might exhaust it.
Chetham v.
Williamson, [
Footnote
17] is another case equally decisive to the same effect. Other
decisions asserting the same doctrine
Page 77 U. S. 363
are at hand:
Caldwell v. Fulton, [
Footnote 18]
Johnston Iron Company v.
Cambria Iron Company, [
Footnote 19]
Gloninger v. Franklin Coal Company.
[
Footnote 20] In all of
them, the covenants ran with the land. The grants were of undoubted
real interests. They contemplated a perpetual supply to the
grantees as plainly as it was contemplated in this case. The rights
of the grantees were not limited, as here, to any defined quantity,
and yet it was held they did not interfere with the right of the
grantors to take ore, coal &c., from the property out of which
the incorporeal interests issued, and to take it without suit. The
appeal of the cross-complainant cannot therefore be sustained.
Nor, under the circumstances of the case, can the marble company
be decreed to account for failures to supply the marble required by
the contract to be delivered at the mill, if there have been such
failures. Holding as we do that there can be no decree for a
specific performance, and that Ripley is not entitled to an
injunction against selling marble from the quarry, the substantial
basis of the defendant's cross-bill fails, and having disturbed the
plaintiffs' possession wrongfully and thereby interfered with their
power to perform the contract, he is not in a situation to invoke
equitable aid. If he has any claim to damages for a breach of the
contract, it must be asserted at law, and there his remedy is
complete.
It remains only to add what must now be apparent -- that that
part of the decree which directed Ripley to pay the taxable costs,
except such as accrued from the portion of the complainants' bill
which sought to annul the contract, was correct.
Decree reversed and the cause remitted with directions to
enter a decree in accordance with the opinion above given, the
costs of the appeals to be divided and one-half be paid by each of
the parties.
[
Footnote 1]
Story's Equity § 669.
[
Footnote 2]
Miller v. Cotten, 5 Ga. 341; Story's Equity ? 707.
[
Footnote 3]
Page 116,
and see entire chapter 6.
[
Footnote 4]
Equity Jurisprudence, §§ 750 and 776.
[
Footnote 5]
§ 736.
[
Footnote 6]
Page 220.
[
Footnote 7]
Peters C.C. 380.
[
Footnote 8]
4 Howard's Mississippi 86.
[
Footnote 9]
Ogden v. Fossick, 9 Jurist N.S. 238.
[
Footnote 10]
13 Ohio 544.
[
Footnote 11]
Fry on Specific Performance § 286.
[
Footnote 12]
Case 24.
[
Footnote 13]
4 Leonard, 147.
[
Footnote 14]
Page 104.
[
Footnote 15]
Page 174.
[
Footnote 16]
Page 307.
[
Footnote 17]
4 East 469.
[
Footnote 18]
31 Pa.St. 482.
[
Footnote 19]
8
id. 241.
[
Footnote 20]
55
id. 9.
