I am not willing to approve the opinion of the court in Montgomery Gas-Light Co. v. City Council of Montgomery, 87 Ala. 245,6 So. 113, 4 L.R.A. 616, as establishing a rule of property.
The question of specific performance was not involved in that case, and what was said on that subject was in reply to the argument of the Montgomery Gas-Light Company that under the facts of that case such remedy would be an adequate remedy for the grievance complained of by the city, and that therefore the remedy pursued by the city — the ouster of the gas-light company — was destruction of its property rights, and the city council should be enjoined.
The holding in that case, in legal effect, is that there was no contract to be specifically performed, because the minds of the parties had not met on a price to be paid, an essential element of the contract, thus adopting the controlling thought in the old English case, Milnes v. Gery, 14 Vesey, Jr. 399.
Still the opinion in the Montgomery Gas-Light Company Case holds that the city council was within its right in ignoring the gas-light company in contracting with another, because it (the gas-light company) had violated its contract, by refusing to appoint an arbitrator.
These are clearly inconsistent ideas — no contract and a breach of contract.
I think it clear that the writer of the opinion in Montgomery Gas-Light Company v. City Council of Montgomery had no thought of laying down the rule that would enable a party to deliberately enter into a contract, *Page 694 to be violated with impunity, or to hold that the courts are powerless to protect the other party.
Milnes v. Gery, supra, has in effect been repudiated by the English courts — certainly it has been limited to the facts of that case — where the parties failed to make a binding contract. See comment in Howison v. Bartlett et al., 147 Ala. 408,40 So. 757.
Here the contract between the parties, in a large measure, has been fully executed, and it appears that the complainant has lived up to all of its obligations. To now deny it a remedy by compelling specific performance is to ignore the provisions of the Constitution: "That all courts shall be open; and that every person, for any injury done him, in his lands, goods, person, or reputation, shall have a remedy by due process of law; and right and justice shall be administered without sale, denial, or delay." (Italics supplied.) Constitution 1901, § 13.
SAYRE, J., concurs in the foregoing.