Miller v. Laneda

Mr. Justice Harris

delivered the opinion of the court.

1. The complaint alleges that all the defendants, except the Laneda, Incorporated, are insolvent. The allegation, therefore, is an admission that the corporation is solvent and able to respond in damages. The record does not exhibit any evidence at ail tending to show that any of the remaining defendants are nnable to pay any judgment that might be obtained; and consequently it must be assumed that all the defendants are solvent.

2. Resolved to its final analysis, the contract is one for the services of the plaintiff. An examination of the written contract discloses that Miller only agrees to survey the lands, prepare the plats, bear all expenses of advertising, pay all incidental expenses connected with the sale of the property, and to expedite the sale thereof according to his best judgment. The plaintiff did not pay any money for the agreement, and the contract does not require him to do anything except as stated. From time to time, as Miller shall designate, the corporation is obliged to plat the lands and dedicate the streets, as shown by plats prepared by plaintiff. Miller is given the ‘ ‘ exclusive right to sell and dispose of the lands, either as the same may be hereafter subdivided or in tracts unplatted, and at such prices and upon such terms as may be deemed advisable” by him, provided the corporation receives $606.66 per acre for the land involved. The plaintiff has the right to cause the platting of all or any part of the land, and at such ■time or times as he may see fit. Should the owner desire to plat and dedicate one part rather than another portion, or at one time rather than another time, the plaintiff could answer that he has not so designated. Should the corporation complain that no sales were being made, Miller could make a complete answer to such objection by saying that he was authorized to expedite the sales according to his best judgment. By inactivity he has it within his power to tie up the property until December 31, 1928; or by Ms activity he can dispose of the choice or more salable parts of the land, retain the lion’s share of the proceeds, and then leave the owner with the remainder of the land as a mere husk. All the positive and definitive stipulations which are capable of practical enforcement have been imposed upon the owner. The Laneda, Incorporated, would not have an adequate remedy against plaintiff if the latter should refuse to plat because Miller alone has the right to designate what shall be platted and when it shall be done; and so, too, would the corporation be remediless if the plaintiff delayed or even refused to sell because the latter has the exclusive right to sell, coupled with what is in form an agreement but in practical effect an express privilege of expediting the sale according to his best judgment. The plaintiff can injure the owner by selling only the best part of the land, or cripple the latter by not selling at all.

The granting of the injunction as prayed for would be equivalent to enforcing the specific performance of the contract. The right to the aid of a court of equity in the enforcement of an agreement is not an absolute right, under all circumstances. Equity will not promote hard bargains nor compel obedience to an unfair and one-sided agreement when the consequences will be harsh. Equity strives to do justice, seeks to prevent injustice, and refuses to go the ways that lead to unfairness or wrong. The writing under discussion is one-sided and unfair, and the enforcement of its terms would produce such harsh consequences that a court-of conscience will refuse equitable interference and leave the plaintiff to his remedy at law: Philadelphia Ball Club, Ltd., v. Hallman, 8 Pa. Co. Ct. R. 57; Sanders v. Newton, 140 Ala. 335 (37 South. 340, 1 Ann. Cas. 267); Goodwin v. Collins, 3 Del. Ch. 189; Jones v. Prewitt, 128 Ky. 496 (108 S. W. 867); Van Norsdall v. Smith, 141 Mich. 355 (104 N. W. 660); Cooper v. Chittenden, 33 Neb. 313 (50 N. W. 2); Mulligan v. Albertz, 103 Wis. 140 (78 N. W. 1093); Chambers v. Livermore, 15 Mich. 381; Pomeroy on Contracts, §§ 38, 40, 175, 180; 26 Am. & Eng. Ency. Law (2 ed.), 67; 22 Cyc. 851; 36 Cyc. 612.

The decree of the trial court is reversed and the complaint is dismissed. Reversed. Suit Dismissed.

Mr. Chief Justice Moore, Mr. Justice McBride and Mr. Justice Bean concur.