JAUP
v.
OLMSTEAD.
Docket No. 9, Calendar No. 45,380.
Supreme Court of Michigan.
Decided October 6, 1952.Schulman & Schulman (Meyer R. Rubin, of counsel), for plaintiffs.
O'Brien & Nertney and Isaac M. Smullin, for defendant Olmstead.
Dyer, Angell, Meek & Batten, for Michigan Consolidated Gas Company.
BUSHNELL, J.
Plaintiffs Sadik Jaup and Clara Jaup entered into an agreement with defendant Charles M. Olmstead in September of 1949, to purchase 2 stores in the city of Detroit. This agreement stated in part:
"It is understood that the partitions and 2 gas heating plants (are considered as part of the purchase price and shall remain on this property)."
In October, Olmstead conveyed the property to plaintiffs. He remained in possession as a tenant of plaintiffs until September of 1950, when he vacated the premises. Plaintiffs charge that when he did so he "took with him portions of the heating unit *616 plants, without right or lawful authority, and then fraudulently had this gas unit and services transferred to his new place of occupancy and the gas heat then was removed from the premises that was purchased by the plaintiffs from the defendant."
Plaintiffs further charge:
"That as a consequence of this unlawful conversion and as a consequence of the breach of the contract and fraud on the part of the defendant, Charles M. Olmstead, the Michigan Consolidated Gas Company has refused and will not furnish any gas heat until these units removed by the defendant are restored to the plaintiffs' premises, as well as a direction by the defendant that the unit and the gas service belong to the plaintiffs rather than to the defendant covering the above described premises."
Michigan Consolidated Gas Company was joined as a defendant for the reason that it had, under order of the Michigan Public Service Commission, discontinued selling gas and servicing gas heaters for any new customers. Since the gas company had a monopoly in the area, plaintiffs were unable to obtain gas after the removal of the heating plant.
Plaintiffs sought a preliminary order to show cause and a final order directing Olmstead to return the heating units and directing the gas company to restore the service. They also asked for the damages resulting from the breach of Olmstead's agreement.
The judge who heard the order to show cause denied Olmstead's motion to dismiss, ordered the return of the heating units, and issued a temporary injunction against the gas company. This order recited that if plaintiffs were obliged to purchase new heating units, the gas company should service them.
The pretrial statement indicates that plaintiffs thereafter purchased new equipment which, apparently under the first order, is being serviced by the *617 gas company. The trial judge, however, entered a final order dismissing plaintiffs' action on the ground that their bill lacked equity and their rights, if any, were enforceable on the law side of the court.
The controlling question presented on appeal is whether plaintiffs' bill of complaint presents a case for equitable relief.
Under the circumstances recited in the bill and answer, plaintiffs did not have an adequate and complete remedy at law. An action in replevin might have resulted in their regaining possession of the heating units, but neither that action nor one for damages for breach of contract would secure the relief essential to the operations of the stores, viz., the right to obtain heating gas. The court of law could not require the gas company to furnish service.
"Where the remedy at law is not plain, adequate and complete, but is difficult or doubtful, equity will entertain jurisdiction." Multiplex Concrete Machinery Co. v. Saxer, 310 Mich. 243, 258, and authorities there cited.
See, also, Steggles v. National Discount Corporation, 326 Mich. 44, 49 (15 ALR2d 208).
Plaintiffs' bill is in the nature of an action for specific performance of a contract to sell personal property. Generally, specific performance is not decreed where the subject matter of the contract is personalty. However, if the specific property is not obtainable on the market and damages will not provide adequate compensation, equity may take jurisdiction. Cole v. Cole Realty Co., 169 Mich. 347, 351; Gallagher v. Studebaker Corporation, 236 Mich. 195. Here the right to possession of the heating units determined the right to the gas service, which was otherwise unobtainable. Plaintiffs' bill of complaint, therefore, presented a case for equitable relief.
*618 The order is vacated and the cause is remanded for further proceedings not inconsistent with this opinion. Costs to appellants, but only against defendant Olmstead.
DETHMERS, BUTZEL, CARR, SHARPE, BOYLES, and REID, JJ., concurred.
The late Chief Justice NORTH did not sit.