I am not sure upon what ground the majority opinion relieves the city of interest as per contract on one hand and the water company from accounting for net profits on the other.
That complainant must aver and prove he is ready, able, and willing to perform is a well-known condition to specific performance.
But on last appeal, following former decisions in this cause, we defined such requirement as applied to this case. The contract contemplated an accounting to ascertain the amount to be tendered and approval of a bond issue before the actual completion of the transaction.
The fact that the city has never known what amount to tender, and need not make ready therefor until a decree in this cause fixes the amount, has been definitely held not to stand in the way of specific performance. I do not understand the present opinion to overrule former decisions on this point.
How, then, can this failure to make tender or have funds in hand affect the amount which in equity should be paid on specific performance?
The kind of property, the conduct of a going business therewith, and profits earned by reason of special skill and financial management, may present equities that should be considered when writing a final decree with all the evidence in.
A decree relieving the city from all interest, I submit, is the making of a new contract in that regard; not a specific performance of the contract made by the parties.
To arbitrarily set off this interest charge against net profits, balancing one against the other, may be equitable, but how does this court know this to be true without evidence?
The fundamental aim of specific performance is to put both parties, as nearly as practical, in the position they would have been if performance had been effected within a reasonable time as contemplated.
For thirteen years respondent has assiduously resisted specific performance. Without questioning the right to litigate, nor the good faith of same, still our repeated decisions have held no sufficient defense has been presented. Although not a trustee ex maleficio, yet a relation of trustee and cestui que trust, in equity, has subsisted during all these years.
The present decree, therefore, seems to me to set a dangerous precedent; to offer a reward to litigation which may assure great profits, although ultimately found to be without merit.
If it be said each case should stand on its own equities, I fully agree; but no decree can be justified on that ground without knowing the equities of the particular case.
I therefore adhere to the carefully considered opinion of this court on last appeal, Alabama Water Co. v. City of Anniston, 223 Ala. 355, 135 So. 585.