The bill stated a purchase by the complainants, through E. Murray Co., as their agents, from the defendant, of eleven hundred barrels of rosin, about 7 May, 1862, and a payment of $3,575 for the same. The transaction was evidenced by a paper in words and figures following, to wit:
WILMINGTON, 7 May, 1862.
Received of E. Murray Co. three thousand five hundred and seventy-five dollars ($3,575), on purchase of eleven hundred sound barrels of virgin rosin, subject to weight on delivery, at three dollars ($3) per three hundred pounds to the barrel. Rosin in good order, and to remain under shelter for six months free of storage; if longer a reasonable rate of storage after the expiration of six months. My personal (51) attention, if required, will be given to it, and any additional cooperage to be paid for, it being at the risk of fire or otherwise by the purchaser. Said rosin is located immediately on the Wilmington, Charlotte and Rutherford Railroad — the above rosin to be delivered to the order of W. D. Reynolds Co., where located, the difference made by weight to be settled for, with interest, on delivery of the rosin.
ROBERT McKENZIE.
It stated that the complainants have always been ready to pay the reasonable rate of storage as well as what is due for the services of the defendant, etc., and that they have offered to the defendant so to do, and have requested him to deliver the rosin, which he has refused to do. It alleged that defendant is a mere warehouseman for plaintiffs, but is dealing with the rosin as his own, and threatens to sell the same, and send it beyond the limits of the State, or so to deal with it that it shall never benefit the complainants. The bill prayed for an injunction, the appointment of a receiver, and for general relief.
The answer admitted the execution of the paper (above), date 7 May, 1862; also, that sometime in the summer of 1865, complainants offered to pay (upon the defendant's having the rosin weighed to determine the overweight), and demanded a delivery of the rosin, which he declined; also, that after the filing of the bill complainants offered to pay storage and whatever other charges might be due for cooperage. It denied that, at any time before the summer of 1865, complainants had demanded the rosin, or showed any readiness to pay charges as stated in the bill, or as therein stated, had before the summer of 1865 demanded the rosin. That in 1863, under advice of counsel, he had offered to deliver to E. Murray Co., agents for complainants, the rosin, but Murray refused to receive it; that he then tendered to Murray Co. (52) "the money which had been paid by them as an earnest of the bargain, to wit, $3,575, together with interest thereon," which *Page 47 Murray also refused to receive; that a short time before he had offered, through Murray to the complainants to deliver the rosin, but that, as Murray told him, they refused to receive it; that in May, 1862, he had 1,160 barrels of rosin in mass, out of which the 1,100 sold to complainants were to be taken, and that no separation was to be had until complainants should comply with their contract, and then the barrels were to be weighed, and weight above three hundred pounds to the barrel was to be paid for. Defendant submits that the contract was executory, and that complainants have complete remedy at law. He claims the rosin as his own and intends to sell or otherwise dispose of it, denying, however, any intention to deprive complainants of it or its value, in case the law of the State shall determine that they are entitled to it, or its proceeds. Finally, he submits that no bill for an injunction will lie in such a case.
A preliminary injunction was obtained before Buxton, J., on 18 November, 1865; and the same at Spring Term, 1866, of ROBESON, was by him continued to the hearing. Thereupon the defendant appealed to this Court. There is no such want of equity on the face of the bill as to support the motion to dismiss.
1. The ground taken by the defendant's counsel, that a Court of Equity has no jurisdiction to compel the specific performance of a contract to deliver rosin or other articles of a like nature, having no intrinsic value, because the party has a plain and adequate remedy at law, is stated too broadly. Courts of Equity have jurisdiction to compel the specific performance of all contracts; in other (53) words, to make the party do the very thing he has agreed to do. This is equity. It is true that the court will not, except under peculiar circumstances, entertain a bill to enforce the specific performance of a contract like the one before us. This is not for the want of jurisdiction, but because it is not worth while. For the party may, with the money, go into market and buy an article of the same kind that will suit him as well.
Adams on Equity assumes that the court has general jurisdiction on the subject; but lays it down that, to induce the court to entertain a bill for specific performance — (1) There must be a valuable consideration. (2) A specific performance must be practicable. (3) Such a performance must be necessary for the purposes of justice; for if the party can maintain an action at law and recover damages, and with *Page 48 the money buy an article of the same kind, there is no occasion for the interference of a court of equity.
In our case there was no occasion for the interference of a Court of Equity on account of the intrinsic value of the rosin, but there was a necessity for it on another ground. At the time this injunction issued (November, 1865), although the offices of the courts of law existed, there were, by the result of the war, no judges to fill them. The offices were vacant. So there was no court in which the complainant could institute an action of assumpsit, for the recovery of damages for breach of the contract. The judges of the courts of oyer and terminer had no powers except those conferred by the President through the Provisional Governor. These did not embrace civil suits, and those conferred by the Convention. The ordinance, entitled "An ordinance to protect the owners of property and for other purposes," ratified 18 October, 1865, invests the persons appointed by the Provisional Governor Judges (54) of the Courts of Oyer and Terminer, with power to exercise at their chambers all such powers and authority as by the laws of the State are conferred on the Judges of the Superior Courts of Law and Equity at chambers, e.g., to issue writs of injunction, sequestration, etc. It is further ordained, that so soon as the Superior Courts are restored, the Judges of the Courts of Oyer and Terminer shall transfer the cases before them into the Courts of Equity, and the latter courts shall proceed as if the cases had been instituted there. Here is a declaration by the Convention that the ordinary courts of the State were not in the exercise of their powers, and that but for the ordinance the complainants could have had no remedy whatever when the defendant refused to deliver the rosin; so the interference of the Judge of Oyer and Terminer was necessary.
It was much discussed at the bar whether this contract was executed in respect to the rosin so as to vest the legal title in the complainants; or only executory, leaving the title in the defendants. We deem it unnecessary to express an opinion on that question, for it is certain that so much of the agreement as obliged the defendant to deliver the rosin to the order of the complainants was executory, and in respect to that part of the agreement the complainants are clearly entitled to a specific performance, and this is the primary equity which the bill seeks to set up.
2. It was insisted that, as in the first instance, the bill was entertained because there was at that time no court of law in condition to give a remedy; therefore, inasmuch as this reason had ceased by the restoration of the courts at the time that the motion was made to dismiss, the cause should not have been retained — under the maxim, cessanteratione, etc. *Page 49
As the court had jurisdiction over the subject, and it was necessary for it to entertain the case in the first instance, there is no principle by which the fact, that the courts of law were afterwards (55) restored, could oust the jurisdiction. Having possession of the case, it was proper to retain it and give relief. This is in analogy to the rule that where a Court of Equity has jurisdiction, it will not decline its exercise, although a statute be passed conferring a like jurisdiction on the courts of law, unless the statute contain words of exclusion, which oust the jurisdiction of the courts of equity. The subject of relief against penalties furnishes a familiar instance of the application of this rule.
3. It was insisted that the equity for a specific performance was lost by laches and unreasonable delay, and that this was a good ground in support of the motion to dismiss; or that, at all events, it supported the motion to dissolve the injunction on the coming in of the answer, by which it appeared that, in 1863, the defendant had offered the rosin to the complainants and they refused to come and take it away, or to take back the purchase money which the defendant tendered, with interest. This conduct, as the defendant insists, amounted in effect to a rescission of the contract, and certainly makes it unreasonable afterwards to ask for its specific performance.
We can not perceive the force of this reasoning. In 1862, the defendant sold the rosin to the complainants, and received the purchase money, and as a part of the bargain agreed that the rosin should remain under his shelter for six months, free of storage; if longer, a reasonable rate of storage was to be allowed — any additional cooperate that should become necessary to be paid by the complainants, and the rosin was to remain there at the risk of the complainants in respect of fire or otherwise. So, it was in the contemplation of the parties that the rosin would remain at the place where it was for some considerable time; how long is not expressed, but, say, a reasonable time. We do not consider that it was at all unreasonable, under the circumstances, that it should be left there until some time in the summer of (56) 1865, after the war was over, and things had somewhat cleared up, so that it could conveniently be removed. Taking into consideration the facts that the purchase money was paid, that the defendant was to be allowed storage, that the rosin was at the risk of the complainants by fire or otherwise (which includes the ravages of war), and that war was going on at the date of the contract, that the complainants could not, until its close, remove the rosin to a report without heavy expense, or ship it owing to the blockade — the silence of the agreement as to the time raises an almost necessary implication that the rosin was to remain there until the end of the war. In Falls v. Carpenter, 21 N.C. 237, specific performance is decreed, although the purchaser had failed for *Page 50 more than six years to comply with the contract, had become insolvent, and never would have been able to pay the price but for the discovery of a gold mine upon the land. In equity, time is not of the essence of the contract unless made so by its terms.
4. It was insisted that the injunction should be dissolved, because there is no reasonable ground to apprehend loss on the part of the complainants, as the defendant is solvent, and fully responsible for such damages as the complainants can recover at law. The bill avers that the defendant has threatened to sell the rosin and send it beyond the limits of the State. The answer admits that the defendant, considering the rosin as his own property, has the purpose to sell it, or otherwise dispose of it as may seem most to his interest, but he denies that he intends to defraud the complainants of it or its value. In other words, he thinks that although he has sold the rosin once, and received the price, he can, with a good conscience, sell it again, and let the first purchaser recover damages at law, if he can. This does not accord with the principles established in Courts of Equity. The maxim is: (57) Every one is obliged in conscience to do the very thing which for a valuable consideration he has promised to do; and the court will restrain the party from doing any act which will hinder or delay a compliance with its decree to that effect. See Parker v. Grammer,ante, 28.
PER CURIAM. Decretal order affirmed.