George Wadsworth vs. Samuel Manning, James H. Stimpson, Alex. S. McTavish, and Josias Pennington, Trustee of Emily McTavish, 4 Md. 59

Le Grand, C. J., delivered the opinion of this court. We discover no error in the decree of the Superior Court, The pleadings and proof show', plainly enough, that it is not such a case as to demand of a court of equity a decree for the specific performance of the contract relied upon, nor to justify its interposition, by way of injunction, against the rights of the mortgagee.

It seems that the appellant, having an interest in a zinc mine in Pennsylvania, was anxious to make some arrangement by which it could be manufactured into paints, &c., and, with this view, entered into a contract with the defendants, Stimpson, Manning and McTavish, by which it was agreed on his part, to furnish each year, for the period of three years, two thousand tons of the ore, on his being paid ten dollars per ton; the other parties stipulating to provide suitable buildings and machinery for its conversion into paints, &c., and to divide with him the profits of the enterprise, in the proportion of one-fourth to themselves and the remainder to him.

It was also agreed, that the cost of the buildings and machinery, after ■a specified time, was to be paid out of the profits. In pursuance of this agreement the complainant, from time to time, delivered in all seven hundred and forly-six tons of the ore, and received therefor $5860, leaving a balance of $1600 still due.

The other parties refused to receive or pay for any more of the ore, and, also, to appropriate the buildings to the purpose of its manufacture as contemplated; alleging as a reason, that the manufacture of the ore, as originally designed, could only be followed by the ruin of all the parties concerned. It seems that Manning and Alexander S. McTavish, dissatisfied with the prospect of profits to be realised from the business, disposed of their interest to Stimpson, who, to secure Mrs. McTavish for loans made to him, mortgaged the buildings and machinery.

The hill prays for the appointment of a receiver to take possession of the premises, and work up the ore; or, that the plaintiff be permitted to do so; for compensation for alleged losses, and that Mrs. McTavish may be restrained from enforcing her mortgage. We regard the agreement, of date the 1st day of December 1849, as establishing a partnership between the complainant and those who at that time constituted the firm of Stimpson, Manning & Co., and did this appear to us to be a proper case, we would decree a performance of it.

The testimony shows that the business was one uncertain and speculative in its character. Scientific and practical persons differ most widely in their estimates in regard to the cost of conducting it; so much so, indeed, as to render it impossible for this court to see, with any degree of certainty, what would have been the probable result of the operation had the works been carried on in conformity with- the stipulations of the agreement.

By its terms the complainant was bound to furnish, each year, for the period of three years, two thousand tons of ore, and, according to the testimony of the witnesses, the cost of its manufacture was wholly uncertain. Some of them compute it at forty dollars per ton more than others, making a difference in the operations of three years of upwards of two hundred thousand dollars, or of four hundred thousand dollars in six years, if the business should be so long continued.

Such disagreement in the opinions of those supposed, from their scientific knowledge and actual experience, to be well acquainted with the business, was well calculated to induce the most adventurous to pause. As was properly remarked by counsel, a decree for specific performance is not ex debito justitice, but rests in the sound discretion of the court, to be given or refused as the particular circumstances of each case may demand. In the particular one now under consideration, it is manifest to us, the purposes of justice would not be subserved by granting the prayer of the bill.

The time specified for which the complainant was bound to furnish the ore has expired, and it is abundantly shown that the buildings and machinery are not adapted to its manufacture. In such a case a court of equity ought not to decree a specific performance, if the party complaining has a full and adequate remedy-at law; and, we hold it clear, if the complainant can make out the allegations of his bill, his redress is ample and complete at law.

Although it is true that one partner cannot sue another at law in an action of account, unless there be an account stated, yet it is equally so, that he may in covenant, if the articles be under seal, and any covenant or agreement in them be violated. If the partners agree to contribute each a particular sum, an action will lie by one partner against the other to recover it, and the sum agreed to be advanced will be the measure of the damages. Terrill vs. Richards, 1 Nott and McCord’s Rep., 20.

So where the partnership consists of more than two persons, and they have contributed severally, and in different proportions, and one of them withdraws from the co-partnership, in violation of their mutual agreement, each has his remedy for the breach. Dunham vs. Gillis, 8 Mass., 462. And it has been held, where a sole trader covenants in consideration of a certain sum being paid to him in instalments, and after one instalment- is paid he becomes a bankrupt, that his assignees may maintain an action for the remaining instalments. These, and the like, are cases where the articles are under seal.

But, to use the language of Mr. Gow, in his Treatise on Partnership, page 72, “it may be advanced as an indisputable proposition, that, in whatever instances an action of covenant is maintainable for the breach of a covenant comprised in a deed of co-partnership, in the same instances an action of assumpsit can be sustained, if the partnership, instead of being constituted by deed, were contracted verbally or by writing only.” Now we consider the case as made by the bill as one of total failure on the part of Stimpson, Manning and McTavish, to fulfil their agreement.

In principle — for they did grind an half ton of the ore — like the case of Gale vs. Leckie, 2 Starkie, 107. In that case one person agreed with another to furnish him with a manuscript to be printed by the latter, the profits to be equally divided between them. It appeared that a portion of the manuscript had been furnished, and that the work of printing had gone to the extent of upwards of three hundred pages, when the defendant refused to furnish any more matter for the printer.

It was held that an action of special assumpsit would lie in such a case, and that it ought not to be considered as an action for partnership profits, but for refusing to contribute the labor of the defendant towards the attainment of profits. So in the case now before us: the complainant alleges a refusal, on the part of those with whom he has contracted, either to contribute their labor and attention, or appropriate the proper buildings to the manufacture of the ore.

If this allegation be maintainable, then he has a clear right to sustain his action of assumpsit for the non-performance of the engagement on their part. These views dispose of the objection to Mrs. McTavish’s mortgage. We do not regard the complainant as having any lien on the buildings on the south side of the basin. They were not erected out of funds of the partnership.

The fact is, the defendants who constituted the firm of Stimpson, Manning & Co., refused to comply with their contract, in other words, they failed to furnish the necessary buildings and machinery, and they afe, therefore, responsible to the complainant for any damage which their non-compliance with their contract' may have, occasioned- him. A jury is the proper tribunal to-ascertain their extent.- For these reasons We' affirm- the decree of the court below.- Decree affirmed with costs.