TWIN CITY POWER CO. v. BARRETT, 126 F. 302

KELLER, District Judge, (after making the foregoing statement). The first error assigned is that the court did not have jurisdiction, because complainant had a plain, adequate, and complete remedy at law. It is not enough to oust the jurisdiction of equity that a plaintiff may have a nominal or appropriate remedy at law, unless the legal remedy is as adequate, complete, and effectual as can be afforded in equity. In Boyce v. Grundy, 3 Pet. 213, 7 L. Ed. 655, decided in January, 1830, Mr. Justice Johnson, speaking for the Supreme Court, says: “This court has often been called upon to consider the sixteenth

section of the judiciary act of 1789, and as often, either expressly or by the course of its decisions, has held that it is merely declaratory, making no alteration whatever in the rules of equity on the subject of legal remedy. It is not enough that there is a remedy at law. It must be plain and adequate, or, in other words, as practical and efficient to the ends of justice and its prompt administration as the remedy in equity.” This principle has been reaffirmed in Drexel v. Berney, 122 U. S. 241, 252, 7 Sup. Ct. 1200, 30 L. Ed. 1219; Kilbourn v. Sunderland, 130 U. S. 514, 515, 9 Sup. Ct. 594, 32 L.

Ed. 1005; Gormley v. Clark, 134 U. S. 349, 10 Sup. Ct. 554, 33 L. Ed. 909; Allen v. Hanks, 136 U. S. 311, 10 Sup. Ct. 961, 34 L. Ed. 414; Rich v. Braxton, 158 U. S. 406, 15 Sup. Ct. 1006, 39 L. Ed. 1022. “The absence of a plain and adequate remedy at law affords the only test of equity jurisdiction, and the application of this principle to a particular case must depend altogether upon the character of the case as disclosed in the pleadings.” Watson v. Sutherland, 5 Wall. 74, 79, 18 L. Ed. 580. Tested by these rules, let us see what were the circumstances surrounding the plaintiff at the time he filed this bill.

These cannot be better stated than they are in the opinion of the learned circuit judge who tried the case below. He says: “When the bill was filed, the complainant was in this position: He had been induced to abandon the enterprise in which he had entered of developing the water power of the Savannah river above Augusta, and had surrendered that to Ohew and his associates, his competitors in that enterprise. He had transferred to them the options he had secured from landowners on each side of the river, which options were of essential necessity to the enterprise.

When the time for the fulfillment of the contract between them arrived, a grave difference was found to exist. The defendant had agreed to deliver bonds of the amount of $15,000, secured by a first mortgage on the property, the entire issue being not greater than 80 per cent, of the value of the property, with the privilege of paying in lieu of such delivery $15,000 in cash. Efforts were made to adjust this difference until March 28, 1901, which failed. The options all expired on 1st May thereafter. Complainant desired the fulfillment of the contract according to its terms or the return to him of his options.

It was a matter of impossibility to obtain any adjudication upon the differences of the parties in this contract at any time before May 1st. And in the meantime, if these options were allowed to,expire, the injury to complainant would be irreparable. It was of the last importance, therefore, to him that the status quo be preserved. And this could not possibly be effected except by the use of the powers of a court of equity in the issue of an injunction and the appointment of a receiver, who could protect and conserve the interest of both parties.

The statutory remedies provided by the Code of South Carolina could not oust the jurisdiction of a court of equity. The remedy at law which could prevent the exercise of equitable jurisdiction was one which was in existence when the judiciary act of 1789 was passed. McConihay v. Wright, 121 U. S. 206 [7 Sup. Ct. 940, 30 L. Ed. 932], Even if this statutory remedy could give relief, it does not oust the jurisdiction of the federal court. Smyth v. Ames, 169 U. S. 466 [18 Sup. Ct. 418, 42 L. Ed. 819].” From these considerations we are of opinion that the first assignment of error cannot be sustained.

As to the questions raised by the second assignment of error, namely, that there had been no breach of contract on the part of defendant, we reach the same conclusion as was arrived at by the learned judge below.

The defendant was entitled to release itself of liability under the contract with Barrett in any one of three ways: First, by delivering to Barrett, on or before February i, 1901, bonds of the character specified in the contract itself to the amount of $15,000; second, by paying to Barrett in cash the sum of $15,000 on February 1, 1901; third, by forfeiting the $5,000 already paid upon the options, annulling the contract, and returning the options to Barrett on February 1, 1901. The defendant did none of these things.

On December 19, 1900, the defendant, through Chew, its vice president and general manager, wrote Barrett a letter, in which its obligation was fully recognized, and in the course of the letter said: “Should we fail in getting the bonds ready, you will be paid as per agreement, as that is our intention to comply with all contracts made and approved of by this company.” On January 25, 1901, the defendant, through Mac-Kaye, its treasurer, first notified Barrett that it would be unable to deliver the bonds at the date specified in the contract, and proposed to substitute an order on the treasurer thereof.

On January 28, 1901, Barrett replied, peremptorily declining any extension of time for the actual delivery of the bonds, and demanding cash if the bonds were not ready by January 31, 1901 (should be February 1, 1901). On January 30, 1901, and after receipt of Barrett’s letter, such ah order was sent to Barrett, and the fact that he did not immediately return it is made the basis of a claim that he is now estopped from denying that he received this order in satisfaction of the terms of the contract. This contention has no foundation.

Barrett had already declined such a proposition, and demanded his money, and he was under no obligation to pay any attention whatever to the letter of January 30, 1901, or its inclosure. It was a case in which Barrett asked for bread and they gave him a stone. He had stipulated for bonds of a certain character delivered at a time certain. They tendered an order for bonds of a character unspecified, not then in existence, and deliverable at an uncertain time in the future. This, under no circumstances, could be a delivery such as was contemplated by the contract.

Besides, the bonds, when they came into existence, were not at all of the character specified in the contract.

Barrett, in his contract, specified that they should be first mortgage bonds of an issue which should not exceed 80 per cent, of the amount “paid, laid out, and expended in the purchase of the various tracts of land and the land covered by these options, and in the development of said water power.” These bonds were part of an issue of $1,000,000, which, by the terms of the mortgage, were to be certified and delivered by the trustee as the board of directors might, from time to time, by resolution, direct; and the promise of the company, verbally' or in writing, to Barrett, that the bonds would not be placed on the market more rapidly than contemplated by the contract, furnished no sort of security or stability to the bonds themselves.

They were, moreover, incumbered by unusual terms and conditions, such as that relieving the stockholders from liability for unpaid subscriptions. The defendants neither tendered the cash mentioned in the contract nor did they annul the contract, and return the options. On the contrary, when Barrett, on March 22, 1901, went to New 'York and demanded of Chew, individually and as trustee for Fisher, the return of his options, their return was refused, and the next day formal transfer was made of the options to Twin City Power Company, showing the deliberate intent not to return the options to Barrett.

There is no merit in the second assignment of error. As to the third assignment of error, it seems only necessary to look at the contract of June 1, 1900, to ascertain the value fixed upon the options by the parties themselves. This appears to have been $20,000, payable $5,000 at date of contract and $15,000 in eight months thereafter, either in cash or bonds’, at the option of purchaser; in default of either form of payment, the contract to be annulled, and options returned, and the advance payment to be forfeited.

With regard to the fourth assignment of error, to-wit, that “the American Surety Company is no party to this suit, and therefore no judgment against it herein is authorized,” we are also, of opinion that the contention cannot be sustained.

The bond upon which the judgment was founded was voluntarily given by the defendant, Twin City Power Company, in the progress of the cause to recover the possession of the property theretofore placed in the hands of a receiver by the court, and provided in distinct terms that it was to secure the performance of the provisions of the agreement of June I, 1900, as construed by the court upon the final hearing of the cause.

The bond given for the purpose of releasing the property of the company from the hands of the receiver was one which the court had inherent power to take, and, as a necessary consequence, has power to enforce. A court of equity has inherent power to impose conditions upon granting or dissolving injunctions, appointing and discharging receivers, and the like.

See Kerr on Injunctions, 212, and High on Receivers, § 124, where it is said that, where the court refuses a receiver upon condition of defendant executing a bond to account as receiver for all goods and money which had come into his possession, and to pay them over pursuant to the decree of the court, such a bond will be deemed good as a common-law obligation, and the obligor, although not considered as a receiver or officer of the court, stands in the light of one who, for a personal accommodation, has assumed a legal responsibility, and after receiving the benefits of the obligation he is es-topped from denying its legality.

See, also, Ferguson v. Glidewell (Ark.) 2 S. W. 711. The court did not err in decreeing against American Surety Company as surety of Twin City Power Company. The bond given was in the nature of a forthcoming bond, and as such has the force of a judgment. The fifth assignment of error may be disposed of by reference to what has been said under the head of the third assignment. The court, under the evidence, did necessarily find the value of the options to be $20,000, the value put upon them by both parties, and decreed for this sum, less the $5,000 already paid.

There being no error in the decree complained of, the same is accordingly affirmed.