At the pre-trial conference the question arose whether this alleged cause of action formerly instituted in the Court of Chancery should be heard by the Chancery Division or tried by a jury in the Law Division of this court.
Summarily stated, the plaintiff, a lessee in possession prays for a judgment commanding the defendants as lessors specifically to perform a covenant to make alterations and improvements in the building situate on the demised premises.
It is suggested by counsel for the defendants that the plaintiff in view of the circumstances has mistaken its remedy and that the pleadings should be appropriately amended to enable the plaintiff to seek recovery of compensatory damages at
law. Moreover, he represents orally that a judgment of specific performance, if rendered, would be vain since the defendants do not have the capital with which to finance the required work.
It may be said with reasonable certainty that courts of equity jurisdiction will not ordinarily undertake to enforce the performance of so-called building and construction contracts. The general policy inheres in the circumstance that in most instances damages at law constitute an available and adequate remedy and, additionally, in the practical inability of the court to compose a judgment or decree embracing with requisite precision the specifications of the work and to engage in the supervision of its performance.
However, not unlike many general rules and policies, there are exceptions. To identify the exceptions reference in our jurisdiction is usually made to the decision of Vice-Chancellor Leaming in Atlantic & Suburban Ry. Co. v. Atlantic Freeholders , 84 N.J. Eq. 618, 94 A. 602, where the concurrent elements essential to create the exception are defined as follows: "1. In each case, the building was to be done upon the land of the person who agreed to do it. 2. The consideration for the agreement, in every instance, was the sale or conveyance of the land on which the building was to be erected; and the plaintiff had already, by such conveyance on his part, executed the contract. 3. In all of them, the building was in some way essential to the use or contributory to the value of adjoining land belonging to the plaintiff."
Here the plaintiff is in possession of the premises in the enjoyment of its leasehold estate. It has long been the general rule that Chancery will not assume to compel a defendant specifically to perform a contract to build, construct, or repair a building situate upon the plaintiff's land or upon land over which the plaintiff maintains legal control. 164 A.L.R. 804, 807.
It may be proposed that the general rules to which reference is made have been subjected to additional exceptions by the adjudications of more recent date. Whether such adjudications should be characterized as modifications or exceptions, or regarded
as cases significantly divergent and distinguishable in nature remains at most debatable. Cf. Zygmunt v. Avenue Realty Co. , 108 N.J. Eq. 462, 155 A. 544; Fiedler, Inc. v. Coast Finance Co., Inc. , 129 N.J. Eq. 161, 18 A.2d 268.
I peruse the complaint and its amended schedules and exhibits to ascertain the nature and extent of the construction work, the performance of which the court is requested to enforce. Whether plans and specifications prepared by a registered architect have been approved by the parties and signed by them as contemplated by the terms of paragraph 28 of the lease is not made evident. Observable, however, is "Exhibit II," a ...