concurring. I concur in the majority opinion, but I feel that I should state the reasons for my agreement on the jurisdictional question. I deplore the tendency to seek declaratory judgments in chancery court when the anticipated action would otherwise be a matter for jury trial. For this reason, such actions for a declaration of rights should always be carefully scrutinized for the basis of equity jurisdiction. We have held, and properly so, that the mere filing of an action for declaratory judgment does not give the chancery court any jurisdiction it would not otherwise have and that courts of equity could render declaratory judgments only where the subject matter of the declaration is within equity jurisdiction. Jackson v. Smith, 236 Ark. 419, 366 S.W. 2d 278. See also, Robinson v. Morgan, 228 Ark. 1091, 312 S.W. 2d 329. When the subject matter is such that a chancery court is totally devoid of power to interfere, it is not necessary that the question of jurisdiction be raised in any particular manner or at any particular time. Roper v. Rodgers, 249 Ark. 416, 459 S.W. 2d 419; Robinson v. Morgan, supra.
I do not take this to be a case in which the chancery court is totally devoid of power. As I read the petition of Mayer Aviation, Inc. and the cross-complaint of Priddy, they partake of the nature of an action for specific performance, and did not sound in tort. It seems that the weight of authority supports the view that a prospective insured may elect to sue for negligent failure to obtain or deliver an insurance policy either ex delicto or ex contractu. Ursini v. Goldman, 118 Conn. 554, 173 A. 789 (1934); Wiles v. Mullinax, Jr., 267 N.C. 392, 148 S.E. 2d 229 (1966); Hall v. Charlton, 447 S.W. 2d 5 (Mo. Ct. App. 1969); Pittman v. Great American Life Ins. Co., 512 S.W. 2d 857 (Mo. Ct. App. 1974); Winans-Carter Corp. v. Jay & Benisch, 107 N.J. Super. 268, 258 A. 2d 131 (1969); Waldon v. The Commercial Bank, 50 Ala. App. 567, 281 S. 2d 279 (1973); MacDonald v. Carpenter & Pelton, Inc., 31 A.D. 2d 952, 298 N.Y.S. 2d 780 (1969).
There was an election here to proceed upon the contract theory. The inquiry then turns to the jurisdiction of equity, which ordinarily cannot be invoked in an action for breach of contract. But it is within the power of a court of equity to award damages for breach of contract when the relief sought is specific performance. Loveless v. Diehl, 236 Ark. 129, 235 Ark. 805, 364 S.W. 2d 317; Ashworth v. Hankins, 241 Ark. 629, 408 S.W. 2d 871. Equity does have power to order specific performance of a contract to insure or to deliver a policy of insurance, even though a loss has occurred, if the remedy at law is inadequate. Henry Clay Fire Ins. Co. v. Grayson County State Bank, 239 Ky. 239, 39 S.W. 2d 482 (1930); Collins v. Aetna Ins. Co., 103 Fla. 848, 138 S. 369 (1931); Gerrish v. German Ins. Co., 55 N.H. 355 (1875); Bohnsack v. Detroit Trust Co., 292 Mich. 167, 290 N.W. 367 (1940), 71 Am. Jur. 2d 137, Specific Performance § 106. Where the chancery court has power to act on the subject matter, but jurisdiction depends upon the inadequacy of the remedy at law, the jurisdiction may be questioned only by a motion to transfer and a failure to move for such a transfer is a waiver of the jurisdictional question. Stolz v. Franklin, 258 Ark. 999, 531 S.W. 2d 1 (1975); Titan Oil & Gas, Inc. v. Shipley, 257 Ark. 278, 517 S.W. 2d 210. A demurrer will not be adequate to raise the question. Reid v. Karoley, 232 Ark. 261, 337 S.W. 2d 648.