Mr. Ci-iiee Justice Stabler
¶1
(dissenting) : I regret that I am unable to agree with the very strong opinion written by Mr. Justice Bonham. I am satisfied, from a careful reading of all the testimony in this case, that Judge Stoll reached a correct conclusion. For the reasons stated by him, therefore, in his decree, which will be reported, the judgment of the Circuit Court should be affirmed.
Mr. Justice Fisi-iburne concurs.
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Case posture Posture Before STOLL, J., Williamsburg, July, 1936. Reversed and remanded with directions.Suit in equity by Marvin B. Mitchum and others against J.H. Mitchum. From a decree of the Circuit Court reversing the Special Referee's findings and conclusions and dismissing the complaint, plaintiffs appeal.
The decree of the Circuit Court is as follows:
This cause came on to be heard on the pleadings and proceedings and the report of W.C. Davis, Esquire, Special Referee, dated July 12, 1936, and the exceptions to such report. At the hearing before me I was attended by A.C. Hinds, Esquire, representing the plaintiffs, and Messrs. F.R. Hemingway and J.D. O'Bryan, representing the defendant.
This case is one in which the plaintiffs seek specific performance of an alleged oral contract for the removal of a tobacco barn located on the defendant's premises. The defendant denies the existence of the alleged contract, and the main point in the case is whether or not there existed a contract between the plaintiffs and the defendant. The plaintiffs claim that the alleged contract was made on a specific date between the plaintiff Marvin B. Mitchum and the defendant, J.H. Mitchum, at the front gate of the defendant's home. There was no one present when this alleged agreement was made except the plaintiff Marvin B. Mitchum and the defendant. Plaintiffs further claim that the defendant, together with the plaintiff Marvin B. Mitchum, then went to the point where a tobacco packhouse was being moved, and then and there the plaintiff Marvin B. Mitchum stated in the presence of witnesses the alleged contract and the defendant then and there agreed to the same, but no definite testimony was offered as to what the defendant said he would do and what the defendant said the agreement was. The defendant positively denies making any agreement with the plaintiff Marvin
B. Mitchum on the date in question or any other time as to removing the tobacco barn. Further denies that he visited the scene of the moving of the packhouse at the time testified to by the plaintiff Marvin B. Mitchum, and there agreeing to the terms of the alleged contract, and positively denies the existence of any contract in regard to the tobacco barn in question.
Before specific performance can be decreed, it is first necessary to determine whether there is a contract between the parties or not. If there is no contract, then there is nothing to enforce. Yawkey v. Lowndes , 150 S.C. 493 , 148 S.E., 554 , 560 .
The right to the remedy of specific performance is a matter of sound judicial discretion controlled by established principles of equity and exercised by a consideration of all the circumstances of each particular case. Maxwell v. Standard Furniture Company , 127 S.C. 225 , 120 S.E., 834 , 836 .
The enforcement of a contract for specific performance rests in the sound discretion of the Court, and in order for the plaintiff to avail himself of this doctrine: `He must show a clear, definite and unequivocal agreement together with acts of performance or parts of performance.' It is not a matter of absolute right but rests in the sound discretion of the Court and the exercise of that discretion would depend upon the facts and circumstances of each case. Yawkey v. Lowndes , 150 S.C. 493 , 148 S.E., 554 , 561 .
After hearing argument of counsel representing both plaintiffs and defendant, and after a careful consideration of the testimony, I am of opinion that the Referee erred in his conclusions and findings.
The alleged contract is an oral one, and the proof thereof offered by the plaintiffs is indefinite and uncertain, and is not clear, definite, and unequivocal as required by the rules governing such cases as laid down and adopted by our
Courts. The testimony offered by plaintiffs was to the effect that they offered to do certain sawing for the defendant if he would move the barn in question. The defendant testified that some time prior to the date on which the alleged contract was made the plaintiff Marvin B. Mitchum did make such offer, but the same was not accepted, and he (the defendant) in turn offered to move such barn if said plaintiff would furnish him sufficient shingles to cover a new barn, and this the plaintiffs refused to do; consequently, such negotiations did not result in any agreement as there was no meeting of the minds.
A Court of equity will not decree specific performance unless the contract before the Court is fair, just, and equitable. The plaintiffs were the movers in this case, and the contract set up in the complaint, if proven, was inequitable, in that the moving of the barn in question was entirely for the convenience and benefit of the plaintiffs; the undisputed testimony shows that the defendant had on hand a large part of the lumber necessary to construct a new barn and could use a portion of the material from the old barn, and all that the plaintiffs were to do towards the construction of the new barn was to saw the logs necessary to produce the balance of the lumber needed for the new building. This service the plaintiff Marvin B. Mitchum testified would be worth only $16.00, and, considering all of the facts and circumstances in the case, I have reached the conclusion that, if the alleged contract had been proven, it was not a fair, just, and equitable one and of such character that a Court of Equity should decree specific performance thereof.
Having reached the conclusion that no contract was ever made between the parties as to the removal of the tobacco barn which is the subject of this action, and that, even though the alleged contract had been proven, it was not a fair, just, and equitable one enforceable by a Court of Equity, the plaintiffs are not entitled to the relief demanded, therefore,
It is ordered that the exceptions to the report of Referee be sustained, the report of the Referee reversed, and the complaint be dismissed, with costs. Source: CourtListener
