# Murtha v. Pet Dairy Products Company

> Court of Appeals of Tennessee · December 11, 1959 · 44 Tenn. App. 460

URL: https://www.frixlaw.com/law-library/cases/9772754

## Case

- **Full name:** FRANCIS J. MURTHA, Trustee, Et Al. v. PET DAIRY PRODUCTS COMPANY
- **Court:** Court of Appeals of Tennessee
- **Decided:** December 11, 1959
- **Citations:** 44 Tenn. App. 460; 314 S.W.2d 185; 42 L.R.R.M. (BNA) 2850; 1959 Tenn. App. LEXIS 74
- **Precedential status:** Published
- **Opinion:** On rehearing by Howard
- **Judges:** Hale, Howard, McAmis
- **Cited by:** 9 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9772754

## Opinion text

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.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9772754. Public record. Not legal advice.