Loveless v. Diehl

364 S.W.2d 317, 236 Ark. 129, 1963 Ark. LEXIS 589

• Court: Supreme Court of Arkansas
• Decided: February 18, 1963
• Docket: 5-2841
• Status: Published

Opinions

Ed. F. McFaddin, Associate Justice

(dissenting). I dissent from the opinion of this Court granting a rehearing; and stoutly maintain that the opinion of December 3, 1962, was correct and should stand. In that opinion there was this language:

“Under the situation as it existed in December 1959, the judgment of $1,000.00 gives the Diehls all the relief that a deed from the Lovelesses would have given them. The Diehls admitted that they could not have purchased the property except by obtaining the money through resale to Dr. Hart. He was ready, able, and willing to purchase in December 1959, but was not bound to do so thereafter. Furthermore, the Diehls prayed for damages in the alternative to specific performance, and we conclude that the amount of $1,000.00 is the amount of damages they established in connection with the option to purchase; and this conclusion eliminates any rental claims of the Diehls after December 15, 1959. In thus awarding the clearly established damages in lieu of specific performance, we are exercising the sound discretion which a court of equity has in cases involving-specific performance. Such discretion has been recognized in: Orr v. Orr, 206 Ark. 844, 177 S. W. 2d 915; Cole v. Salyers, 190 Ark. 53, 76 S. W. 2d 669; and Simms v. Best, 140 Ark. 384, 215 S. W. 519. See also Jamison Coal Co. v. Goltra (8th Cir.), 143 F. 2d 889; 154 A. L. R. 1191; and see also 49 Am. Jur. p. 13 et seq., ‘Specific Performance’ § 8 and § 9.”

The present opinion granting the rehearing uses this language:

“Our prior decisions recognize the possibility that in a few unusual situations a court of equity may in its discretion deny the plaintiff the right of specific performance. But the remedy of specific performance, in giving the complaining party exactly what he bargained for, ordinarily affords complete and perfect relief and therefore is usually to be awarded as a matter of course

The opinion quotes from Simms v. Best, 140 Ark. 384, 215 S. W. 519, and Dollar v. Knight, 145 Ark. 522, 224 S. W. 983, following the above quoted language. But the opinion on rehearing fails to quote this language from Dollar v. Knight:

“ It is allowable in the exercise of a sound discretion to deny specific performance ‘ where the case is not clear, or where the complainant is in the wrong, or there are considerable countervailing equities.’ Watkins v. Turner, supra.”

The case at bar comes within the last quotation from Dollar v. Knight, because (a) the case is not clear; and (b) there are considerable countervailing equities. The dissenting opinion of the Chief Justice in this case shows that it is not entirely clear that the Diehls made a sufficient tender of any kind; and there are certainly countervailing equities because the sum of $1,000.00 is all that the Diehls would have gained if they had received the deed under the contract; and to grant them judgment for that amount is to end the litigation. In Watkins v. Turner, 34 Ark. 663, Judge Eakin denied specific performance because the case was not clear.

Furthermore, I desire to make reference to the case of Cole v. Salyers, 190 Ark. 53, 76 S. W. 2d 669, which is more recent than any of the cases cited in the opinion that is granting a rehearing. Cole brought suit for specific performance; there was uncertainty as to the power of the agent to give time for Cole to act. In denying specific performance because of such uncertainty, this Court used this language:

“ ‘Courts of equity have always reserved the right of exercising a sound discretion in suits for specific performance and generally refuse relief where the case is not clear, or where the complainant is in the wrong, or there are considerable countervailing equities. In such cases equity refuses to interfere, and leaves the parties to their rights and remedies at law.’ Watkins v. Turner, 34 Ark. 663; Smith v. Price, 125 Ark. 589, 189 S. W. 167; Dollar v. Knight, 145 Ark. 522, 224 S. W. 983.”

Also in Cole v. Salyers, Cole as plaintiff had, as an alternative to specific performance, prayed for damages. This Court refused damages, not because of the absence of the right of specific performance, but because no damages were shown. The Court said:

‘ ‘ The appellant asked in the alternative, in the event he should not be able to procure specific performance, that he have damages. The proof indicates that, under the prevailing conditions, the value of the property ivas not substantially in excess of $900. That being true, there could be ho damages, even if there were a breach of contract. ’ ’

Original opinion delivered Dec. 3, 1962 (235 Ark. 805).

The plaintiffs’ prayer to the complaint in the case at bar was in this language:

‘ ‘ WHEREFORE, Plaintiffs pray that defendants be required to specifically perform said lease agreement and the option therein contained, and that plaintiffs be adjudged to be entitled to conveyance of said lands from defendants; that, in the alternative, defendants be required to reimburse plaintiffs for expenditures made by plaintiffs in making permanent improvements to and upon said lands in the sum of $7,000.00, and for judgment against defendants for breach of contract in the sum of $2,000.00; for the costs herein, and for all other relief to which they may be entitled. ’ ’

When the plaintiffs prayed for damages as an alternative to specific performance, the court of equity has the right to decide whether to award specific performance or damages; certainly when the case is not clear and when there are countervailing equities, as in the case at bar. Without prolonging this dissent, it is sufficient to say that I stoutly maintain that the opinion of December 3, 1962 reached a practical result in giving the Diehls $1,000.00 as damages, which is all they would have received if the deed had been delivered to them; and the opinion of December 3, 1962, therefore, would have ended the litigation. Now the majority is continuing the litigation by remanding it for further consideration by the Chancery Court.