Opinion
08-31-1898
HURD v. GROCH et al.
Thomas F. Bowers and Mr. Kearns, for complainant. Mr. Keer and Mr. McDonald, for defendants.
Bill for specific performance by Samuel A. Hurd against Max Groch and others. Application for preliminary injunction granted.
Thomas F. Bowers and Mr. Kearns, for complainant.
Mr. Keer and Mr. McDonald, for defendants.
EMERY, V. C. The complainant is entitled to a preliminary injunction pending final hearing to the extent given by the ad interim stay. While a court of equity will not, as a general rule, enforce the specific performance of a contract which is a mere contract for the sale of chattels, there are circumstances in reference to the contract on which the bill is filed which may fairly be urged as taking the case out of the general rule. One of these circumstances is that the contract is not merely a contract for the sale and purchase of a chattel, but is in terms a written contract for the conveyance of lands by complainant to defendant which land is to be paid for by a bill of sale of the launch in question. The complainant therefore, as a vendor of lands by written contract, is entitled to file his bill for specific performance; and as it is a fair question whether the contract for the exchange of the land for a specific chattel can be carried out except by the exchange under final decree of the court, which shall dispose of the chattel, complainant is entitled to have the status quo preserved until determination of the suit. Under some circumstances courts will enforce specific performance of contracts for the sale of vessels (Claringbould v. Curtis [Sir J. Romilly, M. R.; 1852] 21 Law J. Ch. 541), and it has been said that where, on account of the insolvency of the defaulting party, a court of law, by awarding damages, cannot give adequate compensation, a court of equity may decree specific performance (Ex parte Masterman, 4 Deac. & C. 751; Id. 4 Law J. [N. S.] Bankr. 54, cited 7 Chit. Eq. Index, p. 6554, par. 5). The most important principle governing the jurisdiction, as stated by Pitney, V. C, in Rothholz v. Schwartz, 46 N. J. Eq. 477, 481, 19 Atl. 312, 10 Am. St Rep. 409, is whether, on the whole case, there is a full, complete, and adequate remedy at law. The complainant's case, as presented on the preliminary hearing, is such that it is probable he may. on final hearing, be able to convlncethe court that he is entitled to the relief of specific performance; and, this being the case, he is entitled, under the general rule applied in cases of specific performance, to a preliminary injunction retaining the status quo until decree. Domestic Telegraph & Telephone Co. v. Metropolitan Telephone & Telegraph Co. (Van Fleet; 1884) 39 N. J. Eq. 100, 168, affirmed on appeal, 40 N. J. Eq. 287. The defense of fraud and misrepresentation set up by the answer is one to be determined on final hearing, and should not be definitely decided against complainant on the affidavits. Costs on the application will be costs in the cause.