ALLBEE v. ELMS, 93 N.H. 202 (1944)


37 A.2d 790

RICHARD C. ALLBEE v. ALICE R. ELMS a.

No. 3473.Supreme Court of New Hampshire Grafton.
Decided June 6, 1944.

Specific performance of an executory contract for personal services is not ordinarily decreed even when the party to render the services is the plaintiff. The legal remedy is ordinarily considered as adequate relief in cases of assault. Allegations in a bill in equity concerning a breach of contract, damage to the plaintiff’s garden, and an assault upon him do not involve such identity of issues which can be determined by the same questions of law and of fact to entitle the plaintiff to maintain such a bill on the ground of avoidance of a multiplicity of suits.

BILL IN EQUITY, for specific performance and for an injunction. The plaintiff alleged that on or about May 13, 1943, it was agreed between himself and the defendant Charles V. Elms that he was to have work as a dairy farm hand on the farm of the defendants for the term of one year with certain pay. The plaintiff claimed that on or about June 19, 1943, without cause he was discharged as a farm hand, that certain garden crops of his were damaged by the defendants and that he was assaulted by them. The defendants moved that the said bill be dismissed on the ground that the remedy at law was adequate.

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The Court (Blandin, J.) transferred without ruling the questions of law raised by the pleadings, which included as an amendment to the bill an allegation that equity would avoid a multiplicity of suits.

Luigi J. Castello, for the plaintiff, furnished no brief.

Pike Aldrich and H. K. Davison (Mr. Pike orally), for the defendants.

JOHNSTON, J.

Specific performance of an executory contract for personal services is not ordinarily decreed even when the party to render the services is the plaintiff. Knox v. Allard, 90 N.H. 157, 163; 49 Am. Jur., p. 160. The remedy at law is adequate. McCrillis v. Company, 85 N.H. 165, 167. The prayer for an injunction against interference with the harvest of the plaintiff’s garden raises a question now moot. Street Commissioners v. Dale, ante, 92. Nor is the plaintiff entitled to injunctive relief because of the allegation of an assault upon him. “The legal remedy is ordinarily considered as adequate in cases of torts to the person . . . and equity does not interfere.” 4 Pomeroy, Eq. Jur. (5th ed.), s. 1347.

The plaintiff does not stand any better in equity by reason of the amendment to the bill. Equity will take jurisdiction of various actions if they involve identical issues; that is, issues determined by the same questions of fact and of law. A good example is found in Smith v. Bank, 69 N.H. 254, brought by various owners of certificates of deposit, who alleged negligence in the management of a trust estate and asked for an accounting. The question of negligence so far as each plaintiff was concerned, depended upon the same facts and law, and the damages of each would be assessed upon the same principle. Avoidance of a multiplicity of actions in equity makes for economy in trial procedure and for greater consistency in discretionary findings. “Where numerous actions at law are brought, or are about to be brought, either by the same or by different parties, all involving and requiring the decision of the same questions of law or of fact, so that the determination of one would not legally affect the others, a court of equity may, in order to do full justice to the litigants and to avoid great expense, take cognizance and adjudicate upon all the rights and confer all the remedies in one suit, although both the primary rights and the final reliefs are legal.” 1 Pomeroy, Eq. Jur. (5th ed.), s. 181. The allegations concerning the breach of contract, the damage to the garden and

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the assault do not show such identity of issues as to warrant equity taking jurisdiction. Whether it may be more convenient for the trial Court to consolidate the trials in the actions at law, if brought, is for that Court to decide.

Bill dismissed.

All concurred.