Hodge v. Shea

Littlejohn, J.

(dissents) :

I respectfully dissent and would affirm the order of Judge Weatherford.

The ordering of specific performance of a contract is a discretionary matter. Here we have a finding of both the Master in Equity (who had the benefit of observing the witnesses) and the Circuit Court that specific performance should be directed. Their concurrent finding and conclusions are entitled to much weight. The ruling of the lower court is amply supported by the evidence.

My conclusion is based on the entire record, but there are a few undisputed facts which to my mind compel an affirmance of the lower court. On August 26, 1965, several days after the contract was signed, Mr. Shea accepted a new Cadillac in part payment for the land, and executed proper instruments conveying to Dr. Hodge his old Cadillac. Three months later, on November 19, 1965, when the summons *614(only) in this suit was served, Mr. Shea was riding in the Cadillac.

In the Spring of 1966 he refused to sign a deed presented by Attorney James R. Turner for Dr. Hodge, but stated “that he didn’t want to sign it ’til after he got this tax lien out of the way and then he’d sign it.”

When the complaint was filed on September 12, 1966, some thirteen months after the contract was signed, Mr. Shea was still riding in the Cadillac.

It was not until counsel filed an answer for him in this suit that he asserted any of the defenses as a reason for failing to comply with the contract.

The evidence is just as susceptible of the inference that Mr. Shea was reluctant to carry out the contract as it is that he was incapable of managing his affairs properly. He attended to other business matters just before and after the date of this contract.

The majority opinion leaves the matter unsettled. So far as the record shows, at no time has anyone offered to return the Cadillac or reimburse Dr. Hodge for the same. The answer in March 1967 says that he is willing to make an adjustment, but the prayer for relief only asks that the complaint be dismissed.