Edwin E. Stancliff et al., Respondents, v. Elmore P. Ross, President, etc., Appellant

Edwin E. Stancliff et al., Respondents, v. Elmore P. Ross, President, etc., Appellant. (Argued October 2, 1873; decided January term, 1874.) This was an action against defendant, as president of the Merchants’ Union Express Company, for the specific performance of a contract to take a lease of certain premises belonging to plaintiffs. Defendant’s company, by authorized agents, entered into a verbal agreement with plaintiffs, that on condition they would make certain repairs, and take up leases under which tenants were occupying a portion of the premises, the company would take a lease for five years of the whole premises. The plaintiffs went on and made the repairs and bought out the tenants in possession, so that the premises were ready for occupancy by defendant’s company at the time fixed. Duplicate leases were prepared, and, after negotiations as to certain alterations, the company declined to take the lease. After the commencement of this action, but before the trial, defendant’s company discontinued business and became consolidated with the American Merchants’ Union, and its property was in the hands of a receiver. The referee found that the officers of the company had no power to specifically perform; and he held that specific performance could not be awarded, but allowed plaintiffs damages. Held, that assuming that a specific performance would have been proper had the company been in a condition to perform, it was not a case where damages could be awarded in lieu thereof. Amasa J. Parker for the appellant. J. E. Dewey for the respondents. [MAJORITY — Reynolds, C.,] Reynolds, C., reads for reversal. All concur; Gbay 0., not sitting. Judgment reversed.