Opinion

Murtha v. Pet Dairy Products Company

  • 44 Tenn. App. 460
  • 314 S.W.2d 185
  • 42 L.R.R.M. (BNA) 2850
  • 1959 Tenn. App. LEXIS 74
Court
Court of Appeals of Tennessee
Filed
Dec 11, 1959
Status
Published
Author
Howard
On the bench
Hale, Howard, McAmis
Cited by
9 cases

The opinion

On Petitions to Rehear.

Howard, Justice.

Petitions have been filed herein by both sides, the Union respectfully seeking a rehearing, and the Pet Dairy Products Company respectfully calling attention to our failure to consider its assignment of error relating *475 to the permanent injunction ordering- specific performance of the collective bargaining- contract by the Company.

In the Union’s petition no questions are raised which have not heretofore been considered and determined, and the petition is denied.

Though we did not consider the question called to our attention by the Company’s petition, we deemed it unnecessary for the following reasons:

According to its terms, the contract upon which the suit is predicated expired on September 30, 1957. The case was argued before the Bar of this Court on September 13, 1957, and the opinion was filed on December 5th following. Meantime the contract had expired rendering the question of specific performance moot.

Assuming, however, that the question is not moot, and anticipating that the parties might wish to rely thereupon on appeal, we have decided to respond to the Company’s assignment of error and petition.

As pointed out in the original opinion the suit is for damages predicated upon breach of contract and obviously, the Company being solvent, a monetary decree would not only be adequate, but complete.

The rule is well settled that where damag-es are practicable, as here, and would be adequate, as here, the Court as a rule will not decree specific performance. Yol. II, Gibson’s Suits in Chancery, 5th Ed., See. 995, p. 237; 81 C. J. S. Specific Performance sec. 6, p. 414. Accordingly, that portion of the decree awarding specific performance is vacated.

McAmis, P. J., and Hale, J., concur.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

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