
    Augustus D. Kelsey and Others, Appellants, v. Henry Distler and William Van Inwegen, Impleaded with Alfred Hodges, Defendants, Respondents.
    
      Pleading — equity — contract — specific performance—inability to perform— demurrer..
    
    .Appeal¡by the plaintiffs .from an interlocutory j udgment of the Supreme «Court, rendered at Special Term .and «entered in the office o'f the clerk of the county of Kings on the ,37th day of Bebruary, 1909, sustaining,a demqrrer to ¡the «complaint interposed toy the «defendants Henry Distler and William Van Inwegen, on the ground that it did not state facts «sufficient to constituí,te«a cause «of action.’ Interlocutory judgment affirmed, «with costs, on the opinion of Mr. Justice Marean at Special Term. Hirschberg, P. J., Jenks, Q-aynor, ¡Rich and Miller, JJ., concurred.
    "The following.is the .opinion delivered at Special Term;
   Marean, J. :

The action is for specific performance «of the contract between tire plaintiffs -and defendant Hodges, ;a cause «of action distinctly «different In its identify from «their cause of .action ¡at law for damages for breach «of (the ''contract; Where it is the pleadter’is «manifest intent to set up the equitable «cause of «action, and where he demands the relief afforded only in equity — where his demand of damages «is plainly .only «an assertion of the alternative right recognizable in equity in .a proper case "where, the «defendant is unable to perform; in such a case the complaint must well «allege the equitable cause of action «or it is demurrable. It is not enough «that there might be selected here «and there «out of it and assembled together the allegations necessary'to «an action "at law for damages. Some of the cases contain language seeming to cast doubt upon this, but such is not their true meaning. Under section 1307 oí the Code oí Civil Procedure the power of the court to grant relief unless an answer has been interposed is limited by the demand for relief, and nothing more has-been said than that a complaint is- not demurrable because its allegations do not show that the plaintiff is entitled to the precise relief demanded. Ho, case has gone further. It has never been held that where the whole scope of the action is unmistakably equitable the defendant has no remedy by demurrer, if, searching through the complaint with a lan-, tern,,allegations can be found which assembled together would amount to a,cause of action at law for damages, triable by jury. The remedy by demurrer was intended to be effectual t¡o terminate summarily without trial actions not maintainable- in their general scope and purpose, as set, forth in the complaint. Upon any other view that remedy becomes a farce unworthy of place in an enlightened system for the enforcement of rights. Allowing then that it is in- effect alleged that the demurring defendants instigated the breach of the contract by Hodges in order to advantage themselves (which is the equivalent of malice), and assuming that, this was an actionable tort for which damages are recoverable at law, the complaint is nevertheless bad unless, it states a, case against them for equitable relief in connection with the specific performance of the contract by Hodges. Since the contrary is nowhere. alleged it must be assumed that both the original and the renewed agencies, of Hodges for the -companies were revocable and that Hodges had and has no- power to, assign his agency or delegate his authority. His agreement, with the plaintiff was in effect: First, to procure for the plaintiff, from the companies, authority to represent them; second, to refrain, from acting as their agent himself, and, third„ to turn, over to. them in connection with that, authority the records: of business already done by him under his agency. An extension to May first of ' the time for completion of the contract having been made, Hodges was within his rights when he procured, on. February eleventh, the revocation of plaintiff’s Authority obtained by him on February first. He had a right to pursue his. own agency till May first. On May first, Hodges for- the first time made default in the obligations of his contract,, and it may be conceded that Hodges is liable in •damages for the breach; but since the companies were not under his control, and were and are entirely free to grant or withold authority to act as their agents, and as it is not alleged that, they were on May first, or now are, ready and willing to grant authority to plaintiff at Hodges’ request, the contract is, therefore, one which in its essential nature under the- conditions alleged is not susceptible of being specifically enforced. A court of equity does not entertain jurisdiction in such a case. Where the inability to specifically enforce a -contract arises out of some act of the defendant inconsistent with its obligations,, equity having, assumed jurisdiction may administer the legal remedy as, an alternative, but not where the insusceptibility of enforcement is due to something in the essential nature of the contract. In such cases t the action fails altogether and plaintiff is remitted to his action at law. It follows that the complaint does not state a cause of action in equity against Hodges even, much less against the demurring defendants, relief against whom would be only incidental to the relief against Hodges. But suppose I am wrong in this, and that the court will adjudge- that Hodges procure and deliver to the plaintiff the authority of the companies (a direction which it cannot enforce), have the demurring defendants, in their possession and exercise of an agency for the companies (the allegations of the complaint do not go beyond that) anything which Hodges agreed to deii-ver to the plaintiff? The allegations of the complaint must be taken to mean only that the demurring defendants have by the influence of Hodges obtained an agency to themselves under which they are doing business. There is no allegation that they have any material thing in their possession which the plaintiff upon a specific performance would be entitled to. The contract of Hodges was not to procure the plaintiff an exclusive agency. It is not alleged even that, his own agency was, nor that the agency under which the demurring defendants are doing business is exclusive. It is not-apparent, therefore,that the agency of those defendants is inconsistent with the fullest enjoyment of everything and every right which would he the plaintiffs’ if the contract were performed. In no possible view then does the complaint state a cause of action against the demurring defendants. Demurrer sustained, with costs, with leave to amend the complaint as against them on payment of costs.  