The complaint seems to have been framed with a view to alternate relief—specific performance, if by the rules of equity the plaintiff is entitled thereto, and if not, damages at law for a breach of the contract. The Court below was of the opinion that the plaintiff was entitled to specific performance, and rendered judgment accordingly. The case comes here upon the judgment roll, without testimony or findings of fact, and the only point made by the defendant is, that the case made by the complaint does not entitle the plaintiffs to the relief which he has obtained.
The plaintiff is a newspaper carrier, and he alleges that it is a general custom in the newspaper trade for the publishers and proprietors of a newspaper to sell -what is called “routes” —that is to say, the exclusive privilege of furnishing or delivering the paper to all of its subscribers residing within a certain designated district; that the carrier receives the paper at the counter of the publishers at an agreed price, and delivers them to the subscribers at a higher price, which is also fixed by the proprietors of the paper, which is denominated the subscription price; that by the custom aforesaid, such routes are regarded as the separate and exclusive property of the carriers, subject to sale and transfer by the carriers, at their pleasure, provided the route is well cared for, and the transfer is not made to a person ivho is objectionable to the proprietors of the paper; that, some twelve years ago, a newspaper called the Daily Bee was established, and is still published in the City of Sacramento; that in accordance with said custom, the proprietors divided the. city into convenient routes, and sold them to the then , newspaper carriers-*453of said city; that among said routes was one known as the “ J street route,” which, some time prior to the 18th of April, 1867, had come into the ownership and possession of the defendant; and that on that day the plaintiff contracted with the defendant for the purchase of said J street route, and the defendant agreed to sell it for the sum of $1,500; that he was let into possession under this contract, and was to have a bill of sale of the route upon the payment of the purchase money, according to the terms of the contract.
The complaint then proceeds to detail the terms of the agreement, and some changes made by consent as to time of performance on the part of the plaintiff, alleging a part performance, and an offer to perform the rest, with the breach on the part of the defendant, none of which facts, however, are material to the present purpose. Than what has been stated, nothing more is said which illustrates or tends to illustrate the question whether damages at law would not prove, in all respects, full compensation for the wrong alleged to have been committed by the defendant in turning the plaintiff out of the J street route, and refusing to give him a bill of sale, according to the terms of the contract.
The jurisdiction of a Court of Equity to decree specific performance, does not turn at all upon the question whether the contract relates to real or personal property, but altogether upon the question whether the breach complained of can be adequately compensated in damages. If it can, the plaintiff’s remedy is at law only; if not, he may go into a Court of Equity, which will grant full redress by compelling specific performance on the part of the defendant. Accordingly, while it is a general rule that contracts for the sale and transfer of personal property will not be specifically enforced, yet, if there are circumstances in view of which a judgment for damages would fall short of the redress which the plaintiff’s situation demands, as that by non-performance he will be greatly embarrassed and impeded in his business plans, or involved in a loss of profits which a jury cannot estimate with any degree of certainty, equity will decree specific performance. (Duff v. Fisher, 15 Cal. 375; Treasurer v. The *454Commercial Coal Mining Company, 22 Id. 390; McLaughlin v. Piatti, 27 Id. 463.)
That such is the law is not denied by either side, but it is insisted that the plaintiff has failed to state any peculiar facts from which the Court can draw the conclusion that a judgment for damages will not afford him all the relief to which he is entitled; not only that, but that he has failed to aver, even generally, that he has no adequate remedy at law; that while the Court may speculate upon the matter and conjecture and infer a variety of circumstances which would bring the case within the exception to the rule, as above stated, yet the Court cannot thus eke the case made by the complaint, for that would be to make a case first and then decide it.
We think this point well taken. The general rule being that specific performance will not be decreed in this class of contracts, it devolves upon the plaintiff to state, not his contract merely, but its relation to his business plans, showing hów they will, be affected by a non-performance, or how and .why the value of the performance cannot be correctly estimated by a jury and taken in lieu of it, or the like; or, in other words, he who relies upon an exception must state the facts which bring his case within it.
Instead of adopting such a course, however, the plaintiff has content himself with averring in effect only that, bn a certain day, the defendant, by reason of a certain custom among newspapers, and by purchase, had come into the ownership of the exclusive right or privilege to deliver the Daily Bee to subscribers residing on the “J street route, ” .and on that day agreed to sell the right to him for the sum of $1,500, to be paid in instalments—a bill of sale to be given when the purchase money should be paid. In view of these •facts only, we are unable to perceive how it can be affirmed that, by reason of the non-performance of the contract, the plaintiff will be injured beyond the power of a Court of law to afford him redress. In view of these facts only, we cannot say, in the language of Mr. Justice Shatter, in McLaughlin v. Piatti (supra), “that, the thing bargained for is of unusual distinction or curiosity, or that it is so related to the situar *455tion and business arrangements of the plaintiff that the non-fulfillment of the contract will greatly embarrass and impede him in his plans and prospects—threatening or involving a loss of profits, which a jury cannot correctly estimate, or the like. ”
This right may have a certain and fixed value in market, for aught that appears. It is stated to have been repeatedly bought and sold. If it has, as in the case of public stocks, there can be no difficulty upon the question of damages which a jury cannot overcome. On the other hand, it may be that the subject-matter of the contract is so related to the business plans of the plaintiff, that a non-fulfillment of the contract may result in losses exceeding the mere market value of the right or privilege; but if so, the facts from which such a result may be deduced are not stated, nor is there a general averment, if such an averment could be allowed, that such will be the result. Further, it may be that the privilege has no market value; that the circulation of the Daily Bee on the “J street route ” is so uncertain and fluctuating that the profits cannot be correctly estimated by a jury; but if so, the facts showing such to be the case are not stated. There may be other grounds, in view of which the plaintiff would be entitled to specific performance; but if so, they have been neither specially nor generally alleged.
We add, in conclusion, that Courts of Equity do not decree specific performance as an idle ceremony, and should the plaintiff further prosecute this case with a view to that remedy, it may be important to allege that the sale of the right’ in question has the sanction of the proprietors of- the Daily Bee, which, according to the complaint as it now stands, does not affirmatively appear. According to the custom, upon which the title of the plaintiff to the right in question is founded—as it is- set out in the complaint—the title cannot be transferred so as to conclude the right of the proprietors to control the distribution of their paper; and, if that be so, a specific performance of the contract of sale might result in no benefit to the plaintiff, unless it has their sanction.
Judgment reversed, and cause remanded.