
    Frederick Miles, App’lt and Resp’t, v. The Dover Furnace Iron Co. et al., App’lts and Resp’ts.
    
    
      (Court of Appeals,
    
    
      Filed January 13, 1891.)
    
    1. Specific performance.
    The right to a specific performance by the decree of a court of equity rests in judicial discretion, and may be granted or withheld upon a consideration of all the circumstances and in the exercise of a sound discretion.
    2. Same—Agreement to execute—Mining lease.
    Where, by the terms of a contract, plaintiff was entitled to a twelve year lease of the right to take out iron ore from a mine twenty-five feet below the working of defendant, at a fixed price per ton, and the evidence justified a conclusion that the lease would bé of little benefit to plaintiff and yet work almost a destruction of the mine, the court has a right to substitute damages for' the breach in the room of specific performance.
    Appeal from judgment of the supreme court, general term, second department, affirming judgment for plaintiff for damages on trial by judge without jury, but not giving judgment for specific performance of agreement to execute lease.
    
      Homer A. Nelson, for pl’ff; H. D. Hufcut, for def’ts.
    
      
       Affirming 25 N. Y. State Rep., 1036.
    
   Finch, J.

These are cross appeals; the defendant questioning the judgment for damages awarded against him, and the plaintiff complaining that a specific performance of the contract for a twelve years lease of the iron mine.was refused, and small damages giyen him as the value of the lease.

I am unable to discover any question of law raised by the defendant’s appeal. None is suggested by its counsel’s brief, but the whole argument made is addressed to what is claimed to be the hard and unconscionable nature of the agreement. It is quite possible that the plaintiff made a better bargain for himself than he could have made if the necessities of the defendant company had been less pressing, but the court has found that the agreement was made upon a full and adequate consideration, and was entered into by the defendant freely, with full knowledge of its terms and effect, and without fraud or deception. The part of the contract ont of which these damages grew provided for the sale and delivery of certain quantities of iron ore at a certain rate per ton, and the hardship, if any, originated in the contract price. But men often sell their property at a serious reduction in prices, induced to do so by the necessities of their business or the dullness of the market, and the advantage gained by the purchaser, when the sale is freely made and without fraud or deception, is rightfully his, and cannot be challenged on that account. There is no ground upon which the defendant’s appeal can be sustained.

But the principal discussion has grown out of the plaintiff’s appeal. By the terms of the contract he was entitled to a twelve years lease of the right to take out iron ore from the mine at a level twenty-five feet below the working of the defendant, paying therefor a royalty of twenty-five cents a ton. Proof was given tending to show that the mine could not be profitably worked in that manner; that the upper drifts or areas could not be adequately supported from below at any cost leaving room for profit; that the earth and ore would be likely to fall in; and that difficulties and disagreements would prove inevitable. Upon the proofs the court found as facts that the plaintiff could not work and take out ore below the existing level without interfering with the owner of the mines in working the upper part, and that the mine would probably be very much injured in value should the lease be made; injured beyond the lease itself; and if worked by both interests would probably result in litigation and trouble. The court thereupon awarded damages in lieu of a specific performance, which was refused, and that refusal, it is claimed, was erroneous and should be reversed.

The right to a specific performance by the decree of a court of equity rests in judicial discretion, and may be granted or withheld upon a consideration of all the circumstances and in the exercise of a sound discretion. Seymour v. Delancey, 6 Johns. Ch., 222; Margraf v. Muir, 57 N. Y., 155. Enough appeared in the evidence to justify a conclusion that the lease would be of little benefit to the plaintiff and yet work almost a destruction of the mine, and so a specific performance would simply injure both parties and benefit neither. Under such circumstances the court had a right to substitute damages for the breach in the room of specific performance.

It is now objected that such defense should have been pleaded, and that the question was raised in time. I do not think the facts were new matter constituting a defense. Indeed they were not a defense at all. They left the defendant guilty of a breach of its contract and liable for its default, and so respected merely the form of the remedy which the court should administer. The plaintiff in his complaint asked, as he had a right to, both damages for a breach of the entire contract, and a specific performance of a single branch of it, and himself raised the question which, relief should be granted, and made admissible all the facts of the situation bearing upon the alternative and the exercise of the discretion invoked. It was his duty to show that the specific performance he sought would be, under the circumstances, an equitable and just remedy, and what he was required to establish the defendant might disprove, so long as he confined himself to the-character and consequences and effect of the very contract in issue.

It is further objected-that the Dover Iron Company cannot raise the question, because it had sold the mine to the Dutchess Mining-Company, and had no longer an interest in the land. Of course,, the Dover Company had put it out of its own power to grant a. lease, or give possession, and the only effective decree when the action was commenced must necessarily he against the Dutchess Company, if specific performance was awarded at all,, and that Company defending had a right to resist the relief sought if the Dover Company did not.

On the whole case we think substantial justice was done, and in entire accordance with settled equitable rules.

The judgment should be affirmed, without costs to either party against the other.

All concur.  