That a contract for the purchase of chattels will not ordinarily be decreed to be specifically performed by a court of equity because the law affords an adequate remedy in damages for the breach of such a contract, is not seriously questioned. That such is the rule is plain. Clark v. White, 12 Pet. 178, 9 L. Ed. 1046; Richmond v. Ry. Co., 33 Iowa, at page 480; First Nat. Bank v. Day, 52 Iowa, 680, 3 N. W. 728; Hull v. Hull, 117 Iowa, 63, 90 N. W. 496; Pierce v. Plumb, 74 Ill. 326; Moulton v. Warren Mfg. Co., 81 Minn. 259, 83 N. W. 1082; 3 Parsons' Contracts, 364, 365; 3 Pomeroy's Equity (2d Ed.) § 1402; Pomeroy's Specific Performance of Contracts, § 11 et seq.; 2 Story's Equity, § 717.

In section 1402, 3 Pomeroy's Equity, it is said:

"Whenever a contract conveying real property is unobjectionable

it is as much a matter of course for a court of equity to decree specific performance as it is for a court of law to give damages for its breach. As to chattels, the doctrine is equally well settled that equity will not, in general, decree the specific performance of contracts concerning them, because their money value, recovered as damages, will enable the party to purchase others of like kind and quality. But where particular chattels have some special value to the owner over and above any pecuniary estimate, or where they are unique, rare, and incapable of being reproduced by money damages, equity will decree specific delivery of them to their owner, and the specific performance of contracts concerning them."

The rule and the exceptions thereto are more fully stated in Pomeroy on Specific Performance of Contracts, §§ 11, 12.

In Story's Equity, § 717, it is said:

"So courts of equity will not generally decree performance of a contract for the sale of stock or goods, not because of their personal nature, but because the damages at law, calculated on the market price of the stock or goods, are as complete a remedy to the purchaser as the delivery of the stock or goods contracted for, inasmuch as with the damages he may ordinarily purchase the same quantity of like stock or goods."

It is urged in behalf of the complainant that the case, upon its facts, is within the exception to the general rule stated in the authorities above cited, because of the allegation in the petition as amended "that the value of the cows is enhanced by reason of the contracts under which they are held by the farmers; that the cows so under contracts have a peculiar and distinctive value, that they would not have but for such contracts; and that plaintiff cannot be fully compensated by a money judgment in lieu of the specific performance of such contract.' The last clause is, of course, a mere conclusion. There is an entire absence of proof, however, to sustain this allegation, conceding it to be sufficient to make a case for equitable cognizance. The testimony of the plaintiff is silent upon the value of the cows, whether under lease or not. It is true, complainant himself says that defendant told him he was getting $6 a head a year for some, and $7 for others, and that the leases were to run from one to four years, and that the cows were to be valued at $25 a head in the trade; but, aside from this, there is no evidence whatever showing that the value of the cows was enhanced because of the contracts under which they were held, or that they were of any distinct or peculiar value because of such contracts, that could not be fully measured in dollars. It surely cannot be said, as a matter of law, in the absence of all evidence, that, because the

owner of a cow leases or lets her to a farmer for one, two, or three years for an annual rental or compensation of $6 or $7, the animal, regardless of peculiar conditions or characteristics, is thereby endowed with any unique or peculiar traits or qualities that would render her value, or the contract under which she is held, incapable or even difficult of being estimated in money; nor would the fact that 510 of such animals were so leased or let render the value of that number incapable of being proven or determined in a court of law. This allegation, in the absence of any evidence to sustain it, is the only ground upon which complainant relies to bring this case within the cognizance of a court of equity. By his own testimony, however, he agreed with the defendant upon the value of such animals under contract at $25 a head. Equity will not decree specific performance of chattels, though unique or peculiar in character, even, when their pecuniary value has been fixed by agreement of the parties, or can be readily ascertained, so that an adequate compensation in damages can be recovered at law. Pomeroy's Specific Performance of Contracts, § 12; Bodine v. Glading, 21 Pa. 50, 59 Am. Dec. 749. If the value fixed by complainant and defendant was less than the actual value of these contracts and cows, so that complainant obtained by his alleged agreement a valuable contract, nothing whatever is shown why the value in excess of the contract price cannot be fully proven, and the amount of such excess recovered at law. There is no averment or proof that defendant is insolvent. It is true, the petition avers the defendant has no tangible property in Iowa, other than this lot of cows, but that is far short of an allegation of insolvency. And if it were inconvenient, even, to fully prove the value of the animals and contracts, which, however, is not shown, that is not sufficient to show that the remedy at law is incomplete or inadequate. The presumption is that the value of the cows as agreed upon by the parties is their fair value, and it cannot be inferred, in the absence of testimony, that their actual value was in excess of the agreed value, or that the whole lot would not be sufficient to satisfy the excess of value which the testimony might show, if any. If this were shown, then the contract whereby their value was fixed at such price that a breach of it would require the whole or any considerable portion of the entire lot to satisfy this excess of value would be such an unconscionable one that a court of equity would not under any circumstances enforce it.

Counsel for complainant cite and rely upon authorities which, in effect, hold that when one contracts for the purchase of stocks of corporations, or chattels or commodities for a specific purpose or of peculiar value, which are scarce or cannot be obtained generally in the market, or have no established market value which can be shown as a basis for damages, equity will decree the specific performance of such contracts. This rule may be conceded, but the facts in the present case do not come within it. McNamara v. Home Land & Cattle Co. (C. C.) 105 Fed. 202, is so cited. This was a bill filed to enforce specific performance of an agreement for the purchase of a lot of cattle, and it was alleged, among other things, that the purchase was made by plaintiffs to enable them to fulfill contracts which they had with the government. Specific performance was decreed by the Circuit

Court, but the decree was reversed by the Court of Appeals for the Ninth Circuit. Home Land & Cattle Company v. McNamara, 111 Fed. 822, 49 C. C. A. 642. That court, in its opinion, says:

"The bill alleges, it is true, that the cattle under contract possessed a special and peculiar value to the appellees, which could not be adequately compensated for in money damages. This averment is evidently inserted for the purpose of showing that the case is one for specific performance, but there is no evidence whatever of any such damages."

The decree was reversed and the case remanded, with instructions to dismiss the bill.

The complainant has in fact paid nothing upon this alleged contract, and, if it is not enforced against defendant, he suffers nothing but the loss of his bargain, and this alone is not sufficient to warrant a decree for its specific performance.

It may be that the tendency of modern decisions is to enlarge, rather than restrict, the right to the specific performance of contracts fairly entered into, both as to real and personal property. The right, however, is not absolute, but rests in the discretion of the court, to be exercised upon a consideration of all the circumstances of each particular case. Willard v. Tayloe, 8 Wall. 557-565, 19 L. Ed. 501. And when it appears in the particular case that the remedy at law is complete, and in its ordinary course will afford a full compensation by way of damages, the party will be remitted to his legal remedy. Especially is this true of the federal courts, under section 723, Rev. St. [U. S. Comp. St. 1901, p. 583], above.

It is urged that this objection should have been raised by demurrer, or in some way before answer, and that it is too late to do so upon the final hearing. In the courts of the United States this objection is regarded as jurisdictional, and to be enforced by the court upon its own motion, though not raised by the pleadings or suggested by counsel. Hipp v. Babin, 19 How. 271, 15 L. Ed. 633; Parker v. Mfg. Co., 2 Black, 545, 17 L. Ed. 333; Lewis v. Cocks, 23 Wall. 466, 23 L. Ed. 70; Allen v. Pullman's Palace Car Co., 139 U. S. 658, 11 Sup. Ct. 682, 35 L. Ed. 303. See, also, Keokuk Ry. Co. v. Donnell, 77 Iowa, 221, 42 N. W. 176.

It is unnecessary to consider the questions as to the character and value of the land, for, upon any view that can be taken of the case, the conclusion is that the complainant is not entitled to a decree; that the injunction should be dissolved, and the bill dismissed; and it is so ordered.

4. The case is one that calls for an equitable disposition of the costs. The testimony consists of more than 4,000 typewritten pages of legal cap. The complainant's abstract of it consists of 680 such pages, and the defendant's of 360 such pages. Much testimony was taken by both parties of witnesses residing in Missouri in regard to the character, quality, and value of the land. Defendant had the land surveyed, and a plat made, minutely describing it; and the surveyer who made these testified at length as to the character, quality, location, and value of the land. In addition to the surveyor, defendant produced and examined 20 witnesses, all or nearly all of whom decribed the land in detail as the surveyor had done; thus largely increasing the volume

of the testimony, and expense of taking the same. Five competent witnesses, including the surveyor, would have given full and complete information as to the character of this land and its value. The complainant examined eight witnesses to impeach the defendant, and the defendant examined twenty-two witnesses upon this point. Upon the reading of the testimony, the court limited each side to six witnesses upon this question. The defendant will be allowed, as costs, the fees of five of the witnesses examined in Missouri, including the surveyor, and the expense of taking their testimony; the fees of six witnesses in the matter of impeachment, and the expenses of taking their testimony; and the fees of the five witnesses taken at Iowa City as to the negotiations and alleged contract between the parties, and the expense of taking their testimony. These fees and the other costs of the case upon the merits will be taxed against complainant. The fees of all other of defendant's witnesses upon the merits, and the expense of taking their testimony, will not be so taxed. Ordered accordingly.

THE ECHO.

(District Court, S. D. Alabama. May 21, 1904.)
No. 1,016.

1. COLLISION-STEAMER AND TUG AND TOW MEETING LIABILITY OF TUG. Where the navigation of a fleet consisting of a tug and two barges in tow, one alongside having her own master and crew and the other on a line, is in charge of a pilot employed by the owners of the barges, who is on the first barge and directs all movements, the tug is not responsible for the position of the fleet in the channel, nor for the failure of the barges to carry proper lights, and cannot be held liable for a collision between the leading barge and a meeting steamer, resulting from a violation of the rules in either of such respects.

2. SAME.

Conflicting evidence considered, in respect to a collision in the evening between libelant's steamer, passing down the Mississippi opposite New Orleans, and a barge alongside of a tug passing up, and held not to sustain the burden resting on libelant to show fault on the part of the tug, either in relation to the lights carried, the signals given, or the position of the tow in the river, but to show by a preponderance of testimony that in all of such respects the tug was without fault, and that the collision occurred through the fault and negligent navigation of the steamer. 3. SAME-LOOKOUT.

A steamer passing down the Mississippi in front of New Orleans in the evening, where other vessels are liable to be encountered, should have a lookout other than the master, who has also other duties.

In Admiralty. Suit for collision.

W. S. Benedict and Gregory L. & H. T. Smith, for libelants.
Pillans, Hanaw & Pillans, for claimant.

TOULMIN, District Judge. The libel alleges, among other things, that the steamboat Alma was, on the night of November 22, 1902,

18. See Collision, vol. 10, Cent. Dig. §§ 143, 211.

coming down the Mississippi river, and when at a point in the current of the river nearly opposite Napoleon avenue, in the city of New Orleans, the tug Echo, slowly ascending the river, collided with her, crashing into the starboard side of the Alma, greatly damaging her, and causing her final total loss. The libel charges that the collision would not have occurred, had the tug Echo, in accordance with the navigation laws of the United States, displayed proper lights and answered the proper signals of the Alma; that the collision could have been avoided, or prevented, had the said tug Echo, with her barges in tow, displayed the usual and customary lights, as required by the navigation laws of the United States; that it could have been avoided, had said tug, in accordance with the laws and regulations pertaining to navigation on inland waters, given the proper signals, or properly answered in due time those of the Alma; and that it could have been avoided, had said tug been in her proper place in the river, viz., ascending near the New Orleans bank.

The first question raised on the evidence and argument is whether the Echo is, under the circumstances of the case, responsible for the faults or acts of omission of the pilot on the tow, or of the crew of the tow, even if such faults or acts appear to have caused the collision? My opinion is that, in respect to a compliance with the general navigation laws, the tug Echo, so far as her own lights and signals are concerned, would be liable for her own faults or acts of omission, but that, so far as the faults or negligent acts of the pilot or crew of the barge Pendleton are concerned, as regards their own vessel, the latter was a separate and independent vessel, and would be solely liable; that is to say, if the collision was caused by the failure of the Echo to carry and display proper lights, or to make the proper signals, as required by the rules, it would be liable. If the collision was caused by the failure of the Pendleton to carry and display the proper light, the tug Echo would not be liable therefor; or if the collision was caused by the tug and tow not being in their proper place ascending the river, according to the custom, the tug would not be responsible. The barge Pendleton had her master and crew in charge of her, and a special river pilot aboard, employed by her owners, to control and navigate the fleet, which consisted of the tug and two barges in tow. The tug was bound to obey the orders of the pilot, at least so far as they did not conflict with the navigation rules. This certainly was true as relating to the fleet's proper place in the river; and I think the tug's nonliability as regards the lighting of the barge equally clear. Spencer on Marine Collisions, § 123; Hughes on Adm. p. 119; Sturgis v. Boyer, 24 How. 110, 16 L. Ed. 591.

Under the authorities I have some doubt that I am correct in the opinion that the tug would be liable for the failure to give proper signals, irrespective of the tow pilot's orders, in view of the circumstances of this case. However, from my view of the case, this is immaterial. There is a great volume of testimony in the case, and, as is usual in cases of collision, much conflict of evidence on important questions involved in it.

1. The charge that the Echo did not, in accordance with the navigation laws of the United States, display proper lights.