one of these options, if either, was claimed to have been exercised does not appear in the affidavit.

Question: Could a claim of that character give plaintiff the status of a creditor of defendant within the meaning of the Sales Act on the 12th of November, when defendant transferred his property?

True, pro tanto, as to the balance unpaid on the October delivery the relation of debtor and creditor, pure and simple, then existed. But that was duly extinguished by payment, and it cannot serve to characterize the demand now in suit. There was a mere potential liability which could become fixed and determined only upon future performance on part of vendor-something necessarily uncertain. Many things could happen to prevent it.

The beneficiaries of the Sales Act are the existing creditors at the date of the transfer. They are b nefi: ed at the expense of the transferee. In its practical operation, therefore, the statute is rather drastic, and its scope should not be enlarged by any fanciful construction. The rational conclusion would seem to be that the term creditor as used in the Act must be understood in its most characteristic sense and thus limited to those having determinate claims on account of transactions theretofore fully consummated on credit, and not including merely prospective demands contingent upon an eventual breach by defendant of an outstanding contract for future deliveries of merchandise. Such claim is wholly conjectural and uncertain. The contingency may be determined by vendor's failure to deliver, as well as buyer's refusal to accept. But suppose there had been no default in this case on either side and acceptance had followed delivery. While a debt would have been thereby created, its existence couldn't have been made to relate back to the 12th of November. A fortiori the same would be true of a claim for "damages arising out of the cancellation" of the contract relied upon by this plaintiff. See Cain v. Samuels, 69 Pitts., 155.

The fitness of the allegation of actual fraud in a case of this kind is doubted, but determination of that question may await some occasion when decision shall be deemed necessary. The present issue can be disposed of on the other grounds above stated, namely, that plaintiff

is not a creditor of defendant within the meaning of the Bulk Sales Act.

The rule to show cause is accordingly made absolute and the lien of the attachment dissolved.

PARSONS v. BRADFORD.

Equ y-Jurisdiction-Ind finite Averment.

In a claim for damages for breach of a written contract, modified in some particulars by parol, an incidental allegation of fraud, and a request for an accounting, will not give jurisdiction in equity, as there is an adequate remedy at law.

An averment that the same kind and quantity of stone cannot be purchased in the open market, standing by itself, is too indefinite.

In the Court of Common Pleas of Lehigh County, in Equity. No. 2 January Term, 1921, in Equity. William Parsons v. A. W. Bradford. Bill in Equity. Demurrer. Case certified to law side of court.

Grim & Grim and Dewalt & Heydt, for Plaintiffs.

C. William Fried and Francis J. Gildner, for Defendants.

Henninger, J., June 6, 1921. In the above case a bill in equity was filed in the Court of Common Pleas of Lehigh County on November 22, 1920 by the plaintiff, complainant. The defendant on December 13, 1920 filed a demurrer and in the Sixth and Seventh Paragraphs thereof, avers and pleads as follows:

"6. If there is any liability whatsoever from the defendant to the plaintiff on the contract on which this suit is brought, the plaintiff has a full, adequate and complete remedy at law.

7. If there is any liability whatsoever to the plaintiff of and from the defendant, on the contract on which he seeks the relief as prayed for, such contract shows that the plaintiff is not entitled to equitable relief; but that plaintiff thereunder has a full, complete and adequate remedy at law for any alleged. breach thereof."

The court has carefully examined the allegations in the plaintiff's bill of complaint and the agreement thereto annexed and marked Exhibit "A." The court has

reached the conclusion as a matter of law, from such an examination that the claim of the plaintiff against the defendant is to be recovered by an action in assumpsit for damages for breach of contract. An incidental allegation of fraud and a request for an accounting do not take the case away from the law side of the court. The claim is for damages for breach of a written contract modified in some particulars by parol. The plaintiffs has an adequate remedy at law; and the court decides in limine that equity has no jurisdiction upon the bill and demurrer filed in the case as the plaintiff has an adequate remedy at law.

In reaching this decision the court was guided by the principle of law enunciated in the following cases here cited. In the case of Holland v. Halahan 211 Pa. 223 Fell J. rendering the opinion decides as follows:

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'Equity will take jurisdiction on the ground of account, notwithstanding that the accounting involved is on one side only, if it is complicated as seriously as to embarrass the remedy at law and in cases where discovery is needed and is sought. But it will not take jurisdiction where there is no relation of trust and the accounting is not complicated and is merely a basis for ascertaining damages: Gloninger v. Hazard, 42 Pa. 389; Grubb's Appeal, 90 Pa. 228; Pittsburg & Connellsville R. R. Co.'s Appeal 99 Pa. 177; Graham v. Cummings, 208 Pa. 516. Jurisdiction has been taken in cases where the accounts were not mutual, but ascertainment of the amount due involved the examination of the whole business of the defendant, as where an agent was entitled to a share of the net profits of a business as compensation for service, or the owner of a patent was entitled to a share of the profits derived from the manufacture and sale of a patented article by his license. But our cases have not gone further than to hold that a bill by an agent or employee, for commission or salary will be sustained where the amount due is uncertain and to be determined by ascertaining the profits of a business, or the accounts are so complicated as to make it impossible to obtain an intelligent result by a jury trial. If we went further than this, we should have difficulty in finding a logical stopping place."

In the case of Koch & Balliet's Appeal, 9 Weekly

Notes of Cases 543, Sterrett, J., in delivering the opinion of the court decides:

"Assuming, then, that appellants neglected and refused to work the mines with reasonable diligence, it is very clear that the appellees had a complete and adequate remedy at law for the recovery of such damages as they may have sustained.

There was no allegation of fraud, accident, or mistake in the procurement or execution of the agreement, nor was there anything alleged or shown that would justify a mandatory order on the appellants, requiring them to proceed and prosecute the work of mining within a specified time, on pain of forfeiting their rights under the agreement. Nor could it be justly claimed that proceeding in equity a multiplicity of suits would be avoided. While the agreement remains in force, the right of action must necessarily depend on breaches of its provisions, and non constat that any will occur hereafter. The only claim that has been made, and sustained with any degree of success, is the demand for damages resulting from a breach of the agreement, and for that there was no doubt an adequate remedy at law. Where proper ground for equitable relief is laid and sustained, and jurisdiction has thus attached, courts of equity will proceed to award compensation or damages when they are incidental to such relief, but not otherwise. We think the conclusion reached by the master, in both of his reports, that the bill should be dismissed, was correct.'

The decision in the case of Strause v. Berger, 220 Pa. 367, by Fell, J., states the principle of law involved as follows:

"On the question of jurisdiction the case is near the border line. The general rule undoubtedly is that the specific performance of contracts for the sale of personal property will not be enforced for the reason that ordinarily compensation for the breach of the contract may be had by way of damages. A well-recognized exception to the rule is where the thing contracted for cannot be purchased in the market and, because of its nature or the circumstances, the delivery of the thing itself and not mere pecuniary compensation is the redress practically required: McGowin v. Remington, 12 Pa. 56. "The general rule is not to entertain jurisdiction to decree a spe

cific performance repecting goods, chattels, stocks, choses in action and other things of a merely personal nature; but the rule is qualified, and is limited to cases where the compensation in damages would furnish a complete and satisfactory remedy': Notes to Cuddee v. Rutter, 1 Leading Cases in Eq. 1099. Ordinarily a complete remedy may be had in an action at law for the breach of such a contract as that under consideration, but in this case we have the finding that the timber had a special value to the plaintiff for the use for which he bought it because of its quality and because of the difficulty of procuring such timber in the locality in which his business was conducted. The case does not differ in principle from that of Vail v. Osburn, 174 Pa. 580, where a contract to cut and deliver bark to a tannery from trees in proximity to it was enforced."

In the case of Appeal of Pittsburg and Connellsville Railroad Co., 99 Pa. 177, Green, J., after stating the facts of the case files the following opinion:

"Returning to the consideration of the principal contract involved in this controversy, we find that the injury complained of is the non-payment of moneys which would be due to the plaintiffs, if the defendant continued to maintain and work the line. For the time that it was working according to the agreement, the moneys actually received were in good faith divided. The plaintiffs have no ownership of the telegraph line. They have no right to participate in working it. The defendant has the exclusive right to take the earnings, and when they are received they are the sole property of the defendant After their receipt. arises the obligation, to pay to the plaintiffs a sum equal to one half of the amount received. Surely, this is but a bare pecuniary obligation, the breach of which is fully and adequately compensated by a recovery in damages of the amount which ought to be paid.

And so also, if the defendant fails to carry on the business according to the agreement, and by reason of such failure, does not receive the moneys which would have come to hand, had the business actually been conducted, here again is but a breach of contract, which can be compensated in damages. In either or any aspect of the case, therefore, the remedy of the plaintiffs is adequate and ample by action at law. In the present case