'/saaAiNrt-avi^ > .^OFCAUFORtj, ^4 • — ^ T^ >&Aavaan'# ^^«E•UNIVER% ^lOSANCEUr^ ^ 6 f ^ < ,5MEI)NIVERS//i c=: 09 ^lUBRARYO^ ^nMLIBRARY ^tfOJIWJJO^^ ^^OJIIVDJO^ ;OFCAIIFO% C7 (AWE0NIVER% ^10SMEI^>. ^lUBRARYCr ^UBRARYOr ^\WEUNIVER% ^lOSANCElfx^ ^AOinVDjC^ ^.lOSANCEl£r^ t ' ^(SlJDNVSOl^ ^lOSANCEl^r^ ■%a3AINrt3WV^ ^tUBRARYQ^ ^^nNIUBRARYQa^ -^^Odnvj-jo^^ ;OFCA1IFO;?^ &AHVa8IH^ 5MEUNIVER% ^10SANCEI% ^ ^lOSANCElfj> '/ia9MNn-3WV ^IIIBRARYQ^ ^lUBRARYQr^ %JI1V3J0'^ '^itfOillVDJO'*^ ^WEUNIVERS"//^ ^•lOSANCElfj;. o FORi^ ^OFCAUFORi^ '^mim-^^ aOFCAIIF0% .^OFCAIIFC o I <^£UBRARYG^ ,-5:^'^.-UBRARYQ^ AOFCAtlFO% ,e,QFCAllFOff>(^ .^MEUNIVFRSyA ■^iUAiNnaiw^ '^.^ojnvDjo^ ^jdjitydjo'^ ^QuaNvsoi^ A\\EUNIVER% ^(^Aavjian^ '-^^AHvaan^ &Aavaani^ ^ vL ^IMCEl^^ o s %a3AINn3WV^ ^>^lUBRARYQc. 1^ i ir-' ^ IIBRARYQ^, \Qi\mi^^ mmmsi/-. ^'^OJI1V3JO^ <(5U3NVS01^ vvlOSANCE! o ^lOSANCElfjv o %a3AINI)l\\V <;,OFCAllF0i?^ CAIIFOM^ ^(^Aavaaiv^'^ "^•^Aavaaii-^ .^WEUNIVERi-ZA ^TiUONVSOl^ lYQ^, <^IIIBRARY<9/, AWEUNIVERJ/a ,vvlDSANCEl£u •jO^ '^(i/OJIWDJO'^ ^J'iiaQNVSOl^'" ^%ll3AINn-3VVv ^lUBRARYQ/r^ ^^OJIIVDJO^ L A TREATISE ON THE SPECIFIC PERFORMANCE OF CONTRACTS, INCLUDING THOSE OF PUBLIC COMPANIES. BY EDWARD FRY, OF LINCOLN'S INN, ESQ., 15. A., BARRISTER AT LAW. SerotxD ^merftnn IStjftfon: Notes, and Eeferences to recent English and American Cases. BY WILLIAM S. SCHUYLER, COUNSELLOR AT LAW. W. C. LITTLE & CO., LAW BOOKSELLERS. 1871. ^ 197/ Entbred according to act of Congress, in the year one thousand eight hundred and sixty-one, By WEARE C. LITTLE, in the clerk's office of the district court of the nortlieni district of New York. 2- -^6 - ^7 VAN Bbnthutskn Pkinting HotlSE, Stereotypers, Printers and Binders, Albany, N. T. SK 4 PREFACE TO THE ENGLISH EDITION. Thk following pages contain an attempt to inquire into the principles ■which govern Courts of Equity in the Specific Performance of Contracts. I offer this little book to the members of my profession, with somewhat of hope, because I know the indulgence with which they are wont to accept the results of honest labor spent on professional subjects ; but with much more of diffidence, because I am not ignorant of the diffi- culties of the subject on which I have written, or the shortcomings of my own performance. The scope and object of my essay will be sufficiently learned from the Table of Contents. It will at once be seen that they are essentially different from those of the admirable works of Lord St. Leonards and Mr. Dart on the Law of Vendors and Purchasers. Those treatises dis- cuss the contract of sale of real estate and all the relations thence arising, so that the doctrine of specific performance is treated of only as one mode in which that contract is enforced : whilst the present work is designed to elucidate the principles of specific performance in general, and the contract of sale only so far as it requires attention as one of the contracts which the court enforces. If the object of those learned ir FRY ON SPECIFIC rERFORMANCE OF CONTRACTS. treatises had not been thus distinct from that of the following pages, I should never have thought of committing them to the press. The connection of the different branches of law is, like the connection of the sciences, so close as often to embarrass the writer who attempts to treat of one subject by itself. I have found this difficulty continually recurring, as I have been engaged in composing this book, because it is by no means easy to decide how much of the law on many questions ought to find place in a treatise on the principles and practice of the courts in specific performance, and how much ought to be referred to a discussion of the particular species of contract to which the point may relate. I have endeavored on each occasion to solve this question with a view to the practical utility of the following pages, and to what I suppose a lawyer would reasonably expect to find in a treatise bearing the title of this volume. There is now pending in Parliament a bill which has been introduced by the solicitor-general. Sir Hugh M. Cairns, intituled "A bill to amend the course of procedure in the High Court of Chancery, the Court of Chancery in Ireland, and the Court of Chancery of the county palatine of Lancaster," by which it is proposed to be enacted, that "in all cases in which the Court of Chancery has jurisdiction to entertain an applica- tion for an injunction against a breach of any covenant, contract, or agreement, or against the commission or continuance of any wrongful act, or for the specific performance of any covenant, contract or agree- ment, it shall be lawful for the same court to award damages to the party injured, either in addition to, or in substitution for, such injunction or specific performance, and such damages may be assessed in such manner as the court shall direct." The desirableness of clothing courts of equity with a jurisdiction in damages in the cases referred to in this clause of the bill appears to be beyond question — as I have already remarked in the chapter on Compensation in the present work (see §795,) — and the passing of the solicitor-general's bill will be a most material improvement to the jurisprudence of the country. PREFACE TO THE ENGLISH EDITION. Y Several important decisions on the subject of specific performance have appeared during the progress of these pages through the press, references to which have been inserted in the notes. My friend Mr. J. P. Green, of the Middle Temple, has obligingly read the proof-sheets of this book ; I gratefully acknowledge his kind- ness in so doing. E. F. 5, New Square, Lincoln's Inn, 21th May, 1858. PREFACE TO THE AMERICAN EDITION, The aim of the present edition of Try on the Specific Performance of Contracts is to place in the hands of the American Bar a text-hook con- cerning this important head of Equity Jurisdiction, -which shall be at once illustrative of the law of England, and of this country. It has been the endeavor of the annotator to make the notes as com- prehensive as possible. To accomplish this, as well as to point out the analogy of the law, cases are frequently cited which do not relate strictly to Specific Performance, but which are of weight because of the unity of principle which they set forth. Use has been made of material wherever found collected. Hence an acknowledgment seems due to those authors from whom they have been taken, in most instances, verbatim. From the work of Mr. Justice Story on Equity Jurisdiction, and that of Mr. Theophilus Parsons, on the Law of Contracts, assistance has been received. But the most extensive use has been made of Messrs. White & Tudor's Leading Cases, to which we are indebted for a very valuable note on chattels. CONTENTS PAET I. OF THE JURISDICTION. CHAPTER I . OP THE COyTRACTS IN" GENERAL WHICn ARE SUBJECTS OF THE JURISDICTION'. Principle of the Jurisdiction. — Legal Remedy deficient. — By Default of the Plaintiff. —From something in the Contract. — From the Nature of the Subject Matter. — From the Parties. — From the Form of the Contract. — Former Practice of the Court. — Legal Remedy inade- quate. — Cases where Legal Remedy is adequate. — Contract for Yearly Tenancy. — Contract to make Railway. — Agreement to pay Money. — Alternative Remedy. — Cases where Legal Remedy not so beneficial. — Sir John Leach's Doctrine. — Contracts under Compulsory Powers. — Contract enforced by Vendor. — Stock. — Railway Shares. — Chattels. — Unique articles. — Defendant alone can supply the Plaintiff's Require- ments. — Savoring of the Realty. — Trust constituted. — Damages not an accurate Satisfaction. — Incapacity of the Court to execute the Contract. — Good will of a Business. — Where the Interference of the Court would be useless. — Agreements to enter into Partnership. — Agreement for Lease, where Covenant has been broken. — Contracts to build and execute Works. — Exceptions: 1. Where the ATork is defined and essential to the Plaintiff; 2. Where Part performance.— Hiring and Service. — Where Court had no original Jurisdiction. — Foreign Contracts. — Contracts as to Land abroad. — Voluntary Con tract. — Where Plaintiff has proceeded at Law, . . .42 X FRY ON SPECIFIC PERFORMANCE OF CONTRACTS. CHAPTER II. OF CONTKACTS -VVITII A PENALTY. Effect of a Penal Sum on the Jurisdiction. — The Question stated. — The whole Scope of the Contract regarded. — As to the Amount of the Penalty. — The Benefit of the Penalty and of the Agreement result to different Persons. — Single Sum and continuing Act. — Increased Rent — Where a Forfeiture in addition. — Where the Agreement reas- onable only as an alternative one. — Two Penal Suras. — Procedure, 72 PART II. OF PARTIES TO THE SUIT. CHAPTER I. OF THE GENERAL RULE. The Parties to the Contract to be Parties to the Suit. — Adverse Rights. — Sub-purchaser." — Alienee of Vendor. — Exceptions to General Rule. — Novation. — Reversioner. — Remainderman. — Assignees in Bankrupt- cy. — Some suing or sued on behalf of all. — Avoiding ^Multiplicity of Suits. — W^here one lot sold is involved with adjoining Lot. — Adverse claimants. — Voluntary Settlement. — Trustee and Cestui que trust. — Multifariousness, . . . . . . .81 CHAPTER II. OP A STRANGER TO THE CONTRACT. A Stranger cannot sue. — Hook v. Kinnear and Philips. — Exceptions. — 1. Exception as to Marriage-contracts. — As to Issue. — As to Collater- als. — 'Goring v. Nash. — As to Appointees. — Sutton v. Chetwynd. — As between Collaterals and Original Parties. — 2. Exception from Relationship of Parties. — 3. Exception where Third Party's Status changed, . . . . . . . .93 CHAPTER III. OF THE DEATH OF A PARTY TO THE CONTRACT. Death of a Party. — Death of Vendor. — Widow. — Contract enforced by Creditors. — Death of Purchaser. — Death of proposed Lessee. — Dis- charge of the Contract by Death, where personal Qualities are re- quired, ........ 100 CONTENTS. XI CHAPTER IV, OF AN ASSIGNMENT OF THE AGREEMENT OR OF THE PROPERTY. Assignment of the Agreement. — Assignment by way of Mortgage. — Exceptions. — 1. Where the Contract is Personal. — 2. AVhere there is a Proviso against Assignment. — 3. Illegality of Assignment. — Main- tenance. — Public Trust.— Offer not assignable. — Assignment of the Property. — Assignee a Defendant. — In case of Covenants. —Coven- ants for further Assurance. — Contracts to devise Lands. — By Amal- gamation of Companies, ...... 104 CHAPTER V. OF THE LIABILITY OP COMPANIES FOR THE CONTRACTS OF THEIR PROMOTERS. Edwards v. Grand Junction Railway Company. — Conditions under which the Doctrine is applicable. — The Company must have taken the Benefit of the Agreement. — The Agreement must have been warranted by the Terms of Incorporation. — Doubts on the General Principle, ........ 117 CHAPTER VI. OF AGENCY. Contracts by Agents. — Agents appear on Contract as such. — Agents appear on Contract as Principals. — Principals suing and being sued. — Agents not generally to be Parties.— Question whether Party is Principal or Agent. — Agent suing. — Agent being sued, . . 122 PAET III. OF THE DEFENSES TO THE SUIT. CHAPTER I. OF THE INCAPACITY TO CONTRACT. Nature of the Defense. — When Incapacity to be judged of. — ^Married Women.— Under Power informally exercised. — Parties to suit in re- spect of separate Estate. — As to real Estate. — Lunatics. — Persons standing in confidential Relations, ..... 130 Xll FIIY ON SrECIFIC rERFOllMANCE OF CONTIUCTS. CHAPTER II. OF THE NON-CONCLUSIOX OF THE CONTKACT. No Specific Performance except of a concluded Contract. — Proposal and Acceptance. — Essentials of the Acceptance. — The Acceptance must be unequivocal.— And without Variance from the Offer. — And not introduce any new Term. — What is not a new Term. — The Ac- ceptance must be without unreasonable Delay. — What determines the Proposal. — 1. Withdrawal. — 2. Refusal. — Variations of the Pro- posal. — How the Acceptance may be made. — By Parol. — By the Bill. — By Acts. — Time at which the contract is constituted. — An Agree- ment to do an Act on Demand and a Demand constitute a Contract. — Representation and Conduct. — Representation of Things past. — Representation of Things future. — Representation must be clear and absolute. — Where the Engagement is merely honorary. — Maunsel v. White. — Money V. Jorden. — Morehouse v. Colvin. — Cases where Rep- resentation binding. — In cases of Marriage-contracts. — Luders v. An- stey. — Saunders v. Cramer. — Montgomery v. Reilly. — Du Biel v. Thompson, . . . . . . . .135 CHAPTER III. OF THE INCOMPLETENESS OF THE CONTRACT. Contract must be certain, fair and just. — Where Part-Performance. — Completeness to be ascertained at the filing of Bill. — Exceptions. — When incompleteness arises from Default of Defendant. — Or may be made good from the Contract itself. — Completeness to be considered. — 1. As to Subject-matter. — Where ascertainable though not ascer- tained. — 2. As to Parties. — Z. As to Price. — Cases where not ascer- tained. — Mode of Ascertainment indicated by the Contract. — First class of Cases. — Second Class of Cases. — 4. As to Terms of the Con- tract. — Instances of contracts held incomplete. — Implied Terms. — Condition for good Title implied. — In Agreements for Under-leases. — Implication as to usual Stipulations. — Implied Terms rebutted by a Condition or by Notice, ...... 154 CHAPTER IV. OF THE UNCERTAINTY OF THE CONTRACT. What amount of Certainty required. — Instances, . . . 165 CONTENTS. Xni CHAPTER V . OF THE WANT OF FAIRNESS IN THE CONTRACT. Nature of the Fairness required. — When ascertained. — Contracts in- volving Contingencies. — The Contingency must be really such to both Parties. — The Contingency must have been understood as within the Contract. — Fairness of surrounding circumstances. — Intentional Unftiirness not necessary to be proved. — Suppression of a Fact. — Intoxication. — Contract injurious to Third Persons. — Contracts neces- sitating a Breach of Trust. — Cases of Quasi Trustees. — Rescinding Contract on this ground, ...... 171 CHAPTER VI. OF THE HARDSHIP OF THE CONTRACT. Hardship a Bar to the Court's Interference. — When ascertained. — In- stances of subsequent Circumstances disregarded. — Instances of sub- sequent Events regarded. — Subsequent Events dependent on Plaintiff". — Distinction between patent and latent Hardship. — Hardship in- duced by the Party himself. — Failure of Party's Scheme. — Hardship on Members of a Corporation. — Forfeiture. — Where Vendor would be left subject to a Liability. — Liability disregarded. — ^Miscellaneous instances of Hardship. — In contracts by Companies. — Sales of Rever- sionary Interests. — Where Principle does not apply, . . 181 CHAPTER VII. OF INADEQUACY OF THE CONSIDERATION. How it may appear in the Contract. — Difference between Cases of Vendor and Purchaser. — Inadequacy with other Circumstances. — Inadequacy by itself. — As a Ground for setting aside Contracts. — As a Defense to specific Performance. — ]Mere Inadequacy not a Defense. — Reason of the Rule. — Rule of the Civil Law. — When Inadequacy is to be ascer- tained. — In Sales of Reversionary Interests, .... 191 CHAPTER VIII. OF WANT OF MUTUALITY IN THE CONTRACT. Mutuality required. — Instances. — In Contracts under Powers. — Time at which ^Mutuality is to be judged of. — Exceptions. — 1. Unilateral xiv FRY ON SrECIFIC PERFORMANCE OF CONTRACTS. Contracts. — 2. Waiver. — 3. Agreement signed by one Party only. — Alleged Reasons. — Agreement in Decrl-poll. — 4. Vendor has only Partial Interest. — Doubts of Lord Redesdale. — Restrictions on the Right of the Purchaser to take the Vendor's Interest. — 1. Compen- sation not ascertainable. — 2. Prejudice to Third Parties. 3. Large Part not Vendor's. — 4. Purchaser aware of Vendor's Title. — Pur- chaser privy to intended Fraud, ..... 198 CHAPTER IX. OF THE ILLEGALITY OF THE CONTRACT. Illegality a Bar to Performance of a Contract. — Peculiar nature of the Defense. — IIovv far the Illegality must be made out. — Where a Trust is constituted, . . . . . . ... 208 CHAPTER X. OF THE CONTRACT BEING ULTRA VIRES. Contracts by Corporations must be within their Powers. — But are Pre- sumed to be Good. — AVhere the Presumption is rebutted. — What Contracts are prohibited. — Contracts defeating Object of Incorpora- tion. — For Objects foreign to Incorporation. — Contract valid, when for something involved in the Object of Incorporation. — Where a Variation of Means only, not of Ends. — Where one Party has not Notice of its being ultra vires. — Cases between Shareholders and Directors, ........ 216 CHAPTER XI. ON THE STATUTE OP FRAUDS AND THEREIN OF PART PERFORMANCE. Fourth Section of the Statute. — I. How taken Advantage of. — By De- murrer. — By Plea. — By Plea and Answer. — By Answer denying the Agreement. — Or admitting a parol Agreement and pleading the Statute. — II. What satisfies the Statute. — The Writing must express ' a concluded Agreement. — A formal Agreement intended. — Signed by one Party. — Signature. — How far Intent to sign necessary, — Must be a Writing of the Name. — In Pencil. — In Print. — Initials. — Agency. — Ratification. — Revocation. — Auctioneer. — Clerk of Agent. — Solicitor. — Letters. — Letters referred to for Signature. — Letters to supply a Term. — Letters as constituting the Contract. — Letters re- CONTENTS. XV pudiating. — Parol Agreement before Marriage, written after. — Plead- ing. — HI. What takes an Agreement out of the Statute. — 1. Sale by the Court. — 2. Admission. — As against Representatives. — 3. Fraud. — In Marriage Contracts. — In Wills. — 4. Of part Performance. — Essen- tials. — The Acts must refer to an Agreement. — And not to any other Title. — The Acts must render Non-performance a fraud. — Where not fraudulent from Character of the Person. — From Nature of the Act. — From there being alternative Remedies. — The Agreement must be such as can be enforced. — And not of an honorary Charac- ter. — Or incomplete. — Of particular Acts. — Possession. — Laying out of Money. — Payment of Purchase Money. — Of other Money that may be repaid. — Payment of Auction duty. — Payment of additional Rent. — Marriage. Cohabitation. Previous Acts. Preparatory Acts. — Performance by another party to the Agreement. — Of the Evidence of the Contract. — It must be clear. — What Variations are immaterial. — Part reduced to Writing. — Agreement admitted in Answer. —Denied by Answer. —A different Agreement set up by Answer. — Inquiry, ....... 224 CHAPTER XII. OF MISREPRESENTATION. Effect of a Misrepresentation. — Elements. — 1. Statements actually un- true. — 2. The not knowing it to be true. — 3. The Intent of the Misrepresentation. — Corrupt Motive not necessary. — 4. The Reliance on the Statement. Vagueness of the Representations. Other Grounds for considering that there was not Reliance. — Resort to other Means of Knowledge. — Other Knowledge itself. — Where Defect is Patent. — Analogy with Warranties. — The Evidence of Knowledge must be clear. — Other Means of Knowledge open to the Purchaser not enough. — Doctrine of Notice does not apply. — General Statement inconsistent with the Misrepresentation is not enough. — Nor recom- mending other party to consult his Adviser. — Instances. — Sale with all Faults. — Assignment of a Contract affected by Misrepresentation. — 5. The Misrepresentation must be essential. — Effect of Misrepre- sentation, . . . . . . . . 269 CHAPTER XIII. OF FRAUD. Fraud. — Suppression of a Fact. — Suppres-sion by Purchaser. — PufHng at Auctions. — Fraud by Corporations. — Fraud by Agents. — Waiver, . 289 XVI FEY ON SrECIFIC PERFORMANCE OF CONTRACTS. CHAPTER XIV. OF MISTAKE. Kinds of ^listake that occur in Contracts. — Principle of the Defense. — Parol Evidence admitted for Defense. — Mistake of the Defendant. — Mistake purely of Defendant. — Parol Variation set up by Defendant. — Where enforced. — Where Bill dismissed. — Plaintiff put to his Election. — Variation, how set up. — Evidence. — Mistake, a Ground for Rescission. — And for Rectification. — Parol Evidence admitted for Rectification. — But must be clear. — What kinds of Mistake. — Mistake of Law. — Speculation as to Facts. — Mistake not about the Essence of the Agreement. — Where the Writing purposely differs from the Agreement. — Subsequent Parol Agreement. — Specific Performance, with Rectification of Mistake. — Cases of entire Exclusion of Parol Evidence for Plaintiff. — Previous Cases observed on. — Cases for Ad- mission of Parol Evidence for the Plaintiff. — Opinions of American Jurists. — Of Mr. J. Story. — Of Mr. C. Kent. — Cases of Rectification and Relief in same Suit, ...... 297 CHAPTER XV. OF THE INCAPACITY OF THE COURT TO PERFORM PART OF THE CONTRACT. Subjects of the Chapter. — Contract divisible or not. — Property in one Lot. — Distinct Lots. — Different Prices. — Cross-contracts of sale. — Court will not perform Part. — Where a Deed to be executed. — In Marriage Contracts — Exceptions. — 1. When Right of Suit is in itself perfect. — 2. Contract may be completely performed, though there are future Acts. — 3. Where Part cannot be performed through Defend- ant's Default. — 4. Where the Contract has negative and positive Stipulations. — 5. Where the Arrangement is partly honorary. — 6. Where the Agreement is alternative. — 7. W'here the Part which the Court could not enforce is performed, .... 329 CHAPTER XVI. OP DEFECT IN THE SUBJECT-MATTER OF THE CONTRACT. Nature of the Defense. — Defects patent or latent.— Patent Defects. — Latent Defects. — Defect unknown to both parties. — Variation which is not a Defect. — Uncertainty in Subject-matter and Description of it. — Sale with all Faults. — Effect on the Contract of a Defect, . 342 CONTENTS. XVll CHAPTER XVII. OP THE WANT OP A GOOD TITLE. Title must be free from Doubt. — Former Practice. — Present Rule. — Observations on the Rule. — Amount of Doubt. — Moral Certainty only required. — Titles depending on Presumption. — Cases where the Presumption not sufficient. — Of the Presumption Omnia rite esse acta. — Nature of the Doubt, ...... 347 CHAPTER XVIII. OP PAILURE OP THE CONSIDERATION. Events affecting the Subject-matter. — Events happening before the Con- clusion of a Contract. — When is the contract complete. — A condi- tion not performed. — Events subsequent to the contract being entered into and become absolute. — Instances. — Extinction of Subject-matter by Lapse of Time after filing of Bill and before hearing. — Suggested Result of the Cases. — Subsequent Illegality, .... 35f CHAPTER XIX. OP DEPAULT ON THE PART OP THE PLAINTIPP. Plaintiff must show Performance and Willingness to perform. — Repre- sentations. — Plans. — Default must be of an important Term. — Default in respect of collateral Contract. — What excuses Performance. — In- fancy. — Impossibility of Performance. — Exception as to Marriage Contracts. — Limitations of the Exception. — Default in respect of Acts to be done. — Assignees in Bankruptcy. — Bankruptcy of Plaintiff. — Insolvency. — Felony. — Loss of Deeds, .... 365 CHAPTER XX. OP ACTS IN CONTRAVENTION OP THE CONTRACT. Nature of the Defense. — In Cases of Leases. — In Cases of Purchases. — As to Covenants to renew. — Limitations of the Principle. — Breach not willful. — Nominal Breaches. — Waiver of Breach — Acts render- ing Performance inequitable, ...... 382 FRY — 3 Xvili FRY ON SPECIFIC PERFORMANCE OF CONTRACTS. CHAPTER XXI. OP THE NON-PERFORMANCE OP CONDITIONS. Contracts not to be performed until absolute. — Condition express or implied. — Railway Contracts. — Waiver, .... 386 CHAPTER XXII. OP THE INCAPACITY OP THE DEPENDANT TO PERFORM HIS PART OF THE CONTRACT. Principle of this Defense. — Instances. — When to be judged of. — Ap- plication to Parliament required. — Subject-matter not the Vendor's. — Consent of thiid parties. — Of Execution cy pres. — Contract mod- elled so as to be legal. — Contract modelled so as to be possible. In Railway Cases. — Impossibility of one Alternative. — One Alternative originally impossible. — One Alternative rendered impossible by the act of God. — One alternative prevented by the other party. — One Alternative prevented by a Stranger, .... 389 CHAPTER XXIII. OP THE RESCISSION OF THE CONTRACT. Modes of Rescission. — Right to rescind. — Novation by intervention of a new Person. — Novation by Introduction of a new Term. — Novation must be a valid Contract. — Evidence. — Rescission simply. — Evidence irrespective of Statute of Frauds. — Evidence under Statute of Frauds. — Evidenced by conduct. — Evidence must be clear. — Conduct may pre vent Party's Rights, yet not be a Rescii=sion. — Conditions for Avoid- ance of Contract ; how to be exercised ; when it revives. — Condi- tions for Rescission limited by another for Compensation. — Bill pray- ing a Rescission, ....... 399 CHAPTER XXIV. OF THE LAPSE OP TIME. Nature of Defense. — Time different at Law and in Equity. — 1. Origi- nally of the Essence. — By express Condition. — Condition must be clear. — Implied from Nature of Subject-matter or Purpose of the CONTENTS. XIX Contract. — From Hardship of Delay. — From other Parts of the Con- tract. — V here the Contract is unilateral. — 2. Engrafted by Notice. — The Time limited by Notice must be reasonable. — What Notice re- quisite. — 3. Time as Laches. — Contract not mutual. — What Delay suflBcient. — After Notice by the other Party. — Where Time will not run. — Contract substantially executed. — Pending Negotiation. — De- lay arising from Party objecting it. — Leaving Deposit. — Continuing in Possession. — Under Railway Acts. — Mere Claim. — Waiver of Ob- jections as to Time. — Waiver of Time of an Act no Waiver of the Act. — Waiver decided at the Hearing, ..... 412 PAET lY. OF THE MODE OF EXERCISING THE JURISDICTION. CHAPTER I. OF THE INSTITUTION OF THE SUIT. By Bill.— By Claim, ....... 431 CHAPTER II. OF INJUNCTIONS. How connected with Specific Performance. — 1. Injunction a IMode of Specific Performance of negative Agreements. — Where the Court will not interfere. — To restrain Applications to Parliament. — Mandatory Injunctions.— Limits of the Doctrine. — 2. Injunction as ancillary to Specific Performance. — Against Actions for Deposit or Damages for Delay. — Against Suits in Matrimonial matters. — Against Third Part- ies. — Caution of the Court, 432 CHAPTER III. OP THE WEIT OF NE EXEAT. As ancillary to Specific Performance, ..... 438 XX FRY ON SPECIFIC PERFORMANCE OF CONTRACTS. CHAPTER IV. OF IlELIKF SUBSEQUENT TO THE DECREE. No resort to any other Forum allowed— Rescission of Contract after De- cree for Performance, . • . . . . • • 440 PAET Y. OF INCIDENTAL MATTERS. CHAPTER I. OF CONDITIONS OF SALE AND PARTICULARS. Conditions Part of Contract. — How regarded. — Where ambiguous. — Sense not extended by Implication. — Fraud — Facts stated in Con- ditions, ......... 443 CHAPTER II. OF COMPENSATION. Origin of Doctrine. —Bill by Vendor. — Bill by Purchaser. — Compensation different from Damages. — Material Part Wanting. — Where Defect not material. — Principle of Calculation. — Material Diflference in the Sub- ject matter. — For incumbrance. — Tithes. — Indemnity. — Where no Compensation. — Misrepresentation. — Where no Data for ascertaining the Amount. — Where the Defect is patent. — Where excluded by Contract. — For matters subsequent to the Contract. — Deterioration. — Construction of Conditions for Compensation, . . . 447 CHAPTER III. OP REFERENCE OF TITLE. Where Purchaser is Defendant. — Where Purchaser is Plaintiff. — In res- pect of what contracts. — Where not repuired. — Where the Vendor sells such interest as he has. — Limited Inquiry. — Lessor's Title. — CONTENTS. XXI Waiver of Right. — By Vendor. — By Purchaser. — Express, by Admis- sion. — Implied. — To particular Objections. — 1. Where the Objection is known and curable. — 2. Where- known and incurable.- — Where an Agreement for Possession. — 3. Where the Objection is not known.— By Silence of subsequent Agreement. — Acts not a Waiver. — Waiver as to Lessor's Title. — Effect of Waiver. — Pleading Waiver. — Reference when made. — At the Hearing. — Before Hearing, but after answer. — What are Questions of Title. — Questions suitable for the Hearing. — Reference before Answer. — Fifth Order of 9th May, 1839.— Inquiries as to all Matters connected with Title. — When the Title may be made out. — Time not granted. — Old Title cured, or new Title. — Form of the Certificate. — Exceptions. — Reference back. — Title at Hearing on fur- ther Directions. — What is a good Title. — Distinctions between Ques- tions of Title and of Conveyance. — Distinction between Evidence and Title, 461 CHAPTER IV. OF INTEREST, RENTS, DETERIORATION, AND PAYMENT INTO COURT. Effect of a Contract in changing the Property. — 1. Vendor in Receipt of the Rents, the Purchase money being unpaid. — Interest runs from Time for Completion. — Exceptions. — What will discharge the Purchaser from Interest. — Delay from any cause whatever. — Condi- tions as to Interest dependent on Conditions as to Abstract. — Inter- est, Amount on which. — Rate. — What Rents the Vendor is charged with. — Deterioration. — Borne by Vendor. — By Purchaser. — 2. Vendor in actual Possession. — 3. Purchaser in Possession. — In Sales of Rever- sionary Estates. — Payment of Purchase money into Court. — Title made out. — Title not made out. — Possession according to Agreement. Possession under other Title. — Acts of Ownership. — Occupation Rent. — Procedure, ....... 478 CHAPTER V, OF THE DEPOSIT. Power of the Court over the Deposit. — 1. Where Vendor is Plaintiff. — 2. Where the Purchaser is Plaintiff, • 493 XXII FRY ON SrECIFIC TEKFORMANCE OF CONTRACTS. PAET YI. OF SOME CONTRACTS IN PARTICULAR. CHAPTER I. OF CONTRACTS KELATING TO CONTINGENT INTERESTS AND EXPECTANCIES. Such Contracts void at Law. — Secus in Equity. — Instances. — Circumstances under which not enforceable. — Such Contracts only personal, . . 496 CHAPTER IT. OP COVENANT TO RENEW. Such Covenants are now performed by the Court. — Requirements. — What amounts to such a Covenant. — Usage to renew not enough. — Renewals by Trustees. — Diligence of Lessee. — In Ireland, . . 500 CHAPTER III. OP CONTRACTS OF PARTNERSHIP. When enforced. — Illegal. — Impossible, ..... 504 CHAPTER IV. OF CONTRACTS FOR THE SALE OP SHIPS. The Contract must recite the Certificate of Registry. — Fraud, . . 505 CHAPTER V. OF AGREEMENTS FOR SEPARATION DEEDS. Extent of Jurisdiction. — There must be a binding agreement. — And of good Consideration, ........ 506 CHAPTER VI. OP AGREEMENTS TO COMPROMISE. Private.— Of Suits, . . . . . . .508 CONTENTS. XXlll CHAPTER VTI. OP AWARDS. Extent of the Jurisdiction. — Where not binding at law. — Grounds of Defense. — Agreement unreasonable. — Award excessive or defective. — Award unreasonable, . . . . . .510 CHAPTER VIII. OP AGREEMENTS TO REFER TO ARBITRATION. Court will not enforce them affirmatively. — But may refuse other Relief unless they be substantially performed, .... 513 Table op Cases, ....... 515 EDITIONS OF WORKS REFERRED TO. Except where otherwise stated, the following are the Editions of Works referred to : — Dart's Vendors, 2nd edition. Fonblanque's Equity, 5th edition. Maddock's Chancery Practice, 2nd edition. Story's Equity Jurisprudence, 4th edition. Sugden's Vendors, 13th edition. THE SPECIFIC PERFORMANCE OF CONTRACTS. PART I. OF THE JURISDICTION. CHAPTER I. OF THE CONTRACTS IN GENEKAL WHICH ARE SUBJECTS OF THE JURISDICTION. § 1. The specific performance of contracts is an ancient branch of the equitable jurisdiction of the Court of Chanceiy,(a) arising out of the incapacity of the courts of common law to enforce the actual performance of the contract : for these courts, though re- cognizing the obligation of the parties to a contract to perform their respective parts, enforce this obligation, not specificalij-, but only by way of damages. The maxim of the civil law, Nemo potest prcevise cogi ad factum^{Jj) is equally the principle of the common law of England. The grounds on which this jurisdiction is founded, and the consequent extent of it, will be best stated by a consideration of the contracts in respect of which equity will thus interfere. § 2. There are man^^ cases in which, though a contract is in conscience obligatory upon both the parties to it, yet*the L J common law, from the strictness of its forms, aflbrds no (n) The Court of Bankruptcy has not ju- Sidebotham, 1 Mon. & Ayr. 655, Ex parte ristliction in specific performance. Kx parte Harrington, '2 Mon. & Ayr. v!45. Cutts, i Deac. •U'l, overruling Ex parte (4) See Pothier, Tr. des Oblig. Part 1, cliap. ii. art. 2, § 2. PRY 4 42 FRY OX SrECIFIC T'EKFOKJIANCE OF CONTRACTS. rcniotly to the party injured by tho noii-porformance of the other. The defect of justice which would hence arise it? avoided by tlie jurisdiction of equity, which in such cases coui})els the specific execution of the contract, if in other respects fit for the intorvenlion of the court. § 3. At law, exact i)erf(>rniancc by the plaintiff of hip part of the contra(;t according to its very terms, must be averred and proved ; whereas, in equity, a distinction is made between those terms which are of the essence of the contract and those terms ■which are not thus essential, and a breach of which it is in- equitable for either party to set up against the other as a reason for refusing to execute the agreement between them. In these cases the doctrine of common law is foi-feiture, the doctrine of equity is compensation. "Lord Thurlow," to quote the lan- guage of his successor Lord Eldon,(c) " used to refer this doc- tiino of specific performance to this ; — tliat it is scarcely possible that there may not be some small mistake or inaccuracy ; as, that a leasehold interest represented to be for twenty-one years, may be for twenty years and nine mo)iths ; some of those little circumstances that would defeat an action at law, and 3'et lie so clearly in compensation that they ought not to prevent the execution of the contract." On this ground the jurisdiction I'ests in all cases where specific performance is decreed with com- pensation. § 4. The fact that the legal remedy has been lost by the de- fault of the very party seeking the specific performance will not exclude the jurisdiction, if it be notwithstanding conscientious that the agreement should be performed ; as in cases where the plaintiff has performed his part substantially, but not Avitli such exactitude as to be able to plead performance at ]aw.(./) [1] {r) In Mortlock v. Buller, 10 Ves. 305, (rf) Davis v. Hone, 2 Sch. & Lcf. 341, 30f5. See also Stewart v. AUiston, 1 Mer. 347. 26, 32. [I] Tliis rule is well established, and forms one of the leading features of equity jurisdiction. Performance to the letter is not required; and it is suf- ficient if the complainant can show that he has not been in fault, and that he ■\MIAT CONTRACTS ARE PERFORMED. 43 *^ 5. But besides these cases there are many others in ^ ^^ -, which the court interferes, because there is no remedy l ^ at hiw, by reason of something in the subject-matter of the con- tract, or the parties to it, or the form in which it is concluded. § 6. Thus it will give relief in resi)ect of an agreement to as- sign a chose in action, (e) or of an agreement respecting the hope (e) 1 Maa. Ch. 362. has taken all proper steps toward performance. McCorckle v. Brown, Smedes and Mar.sh. 167; Coale v. Barney, 1 Gill & John. 324, and Yoorhees v. De Meyer, 2 Barb. Sup. Ct. 37, are leading cases on this point. In the former case an agreement was entered into on the 27th of November, 1813, between the cestuis que trust for life, and of the remainder in fee, and the trustee of a certain estate held by the latter in fee ; the object of which was to lease out certain unimproved trust property, to secure to all the cestuis que trust an immediate participation in the profits. It was agreed that the trustees should appoint an agent to make leases for ninety-nine years, with liberty of renewal for such rents as should be thought reasonable by the parties interested, payable to the agent, in trust for the cestuis que trust, their executors and administrators, in certain proportions. On the 29th of September, 1823, a bill was filed by two of the cestuis que trust, against the third, for a specific execution of the agree- ment, on the ground that the defendant, since the year 1818, had prevented the execution of the leases, and refused to do any act toward carrying the contract into effect. This charge was proved, and it was held that the court would, in the exercise of its duty, satisfy the minor provisions of the agree- ment only so far as could be done consistently with the great design ; that the agreement containing provisions which, because of a technical principle of law, could not be literally performed, the court would give it that construction "which the rules of law would tolerate, and the intention of the parties, col- lected from the whole insti'ument, would justify; that the failure to complj^ with an engagement to do a merely nugatory act should not impair the rights of the complainants to the specific performance of the agreement; the facts in the case otherwise sustaining the bill ; and further, that the lapse of time did not amount to laches, so gross as to conclude the rights of the parties. In Voor- hees v. De !Meyer, G agreed wuth D. to pay for certain lands in five equal, annual installments. Twenty-eight years after the date of the agreement, having made payments from time to time, G. proposed to J), that he should give him, G., a deed for the lands, and secure the remaining payments by mortga e on the property. £>. tendered a deed which was not satisfactory and was refused, and G. filed a bill for a specific performance. Held, that G. had not so Hxr departed from the terms of his contract as to be refused relief; and that, where non-compliance with the terras of an agreement does not go to its 44 FRY ON SrECIFIC rERFORMANCE OF CONTRACTS. of succession of an heir,(/) although no damages could be re- covered at law for contracts dealing with these .sul)ject-niatters.[2] § 7. And so again, though no a(;tion would lie in respect of a contract to convey by a particular day, which was rendered im- possible by the death of the contractor before that da)^ yet spe- cific performance would be decreed against the heir.(/7) [o] And (/") Jones V. Roe. 3 T. R. 88, compared (?) See Arguments of Counsel in Milnes v. with IJeckley v. Newland, 2 1*. Wms. 1S2, Gery, 14 Ves. 403 ; 1 Mad 011.362. and case.s infra, i U40, ct seq. Sec also 1 Fonbl. Kq. •Zia. essence, relief will be granted, notwilh.standing the lache.s of the party seek- ing to enforce performance. See also Shaw v. Livermore, 2 Green's (Iowa) Rep. 338. [2] At common law, choses in action are not assignable. Green by v. Wil- cox, 2 John. 1. Coolidge v. Ruggles, 15 Ma.ss. 388. But they may be as- signed in equity. Breckenridge v. Churchill, 3 J. J. Marsh. 11. Hopkiss v. Eskridge, 2 Ired. Eq. 54. Spring v. Car. Ins. Co. 8 Wheat. 268. And the assignee has an equitable right enforceable at law in the assignor's name. Dix V. Cobb, 4 Mass. 511. Parker v. Grout, 11 Mass. 157 and note. Wheeler v. Wheeler, 9 Cow. 3 [. Eastman v. Wright, 6 Pick. 316. Welch v. Mandeville. 1 Wheat. 236. In reference to heirs expectant, it is said, in Davidson v. Little, 22 Penn. (10 Harris,) 245, that an unexecuted contract for the sale of land will not be enforced in a court of equitj'^, if it be found unconscionable. But after it has once been executed the chancellor will not interfere on account of its hardship, except in cases of an heir expectant, when the court will, upon that ground alone, declare it void. [3] In Glaze v. Drayton, 1 Dessau. 109, the contract of the ancestor was decreed to be performed by the infant heir at law, who was allowed six months after coming of age to show cause. Upon clear proof of a parol contract and a pai't performance thereof, the same decree was given against one AYilkinson, a minor, in the case of Wilkinson v. Wilkinson, 1 Dessau. 201. In Saunders V. Simpson, 2 liar. & John. 81, where a father, in 1777, gave a bond to his daughter, binding himself to convey certain lands, but died without doing so, specific performance was decreed against his devisees, on a bill filed by her in 1797. See also Newton v. Swazy, 8 N. H. R. 9. In New York, infant or adult heirs of a vendor are bound to fulfill his contract to convey lands, to the extent of the estate that descends to them, and may be compelled to do so, though not named in the contract. But, ordinarily, the court will not compel the heir to enter into personal covenants, in pursuance of an agreement by the ancestor. Therefore, where the vendor agreed to convey land by a good and sufticient deed, free of all incumbrances, and died leaving a widow entitled to dower, and heirs, one of whom was an infant, and the heirs were not named in the contract, it was held, in a suit against them for a specific performance WHAT CONTRACTS ARE PERFORMED. 45 the court has interfered specifically to execute an afrrcement evidenced by a bond given to a wife by her husband, or to a husband by his wife,(//) before marriage, though the bond, was suspended at law by the intermarriage. [4] § 8. The same principle equally applies to give the court ju- risdiction where, though the contract is in its nature such that a breach of it can be satisfied by damages, yet from some par- ticular circumstances this remedy is not open to the aggrieved party ; therefore, where a contract for the purchase of timber- trees was comprised in a memorandum which appeared not to be the final contract, but was to be made complete l)y subse- quent articles, so that it was doubtful whether the agreement, as it then stood, would not have been considered as law as in- complete, and so the plaintifl:' have been debarred of any remedy there, Lord Hardwicke *held that the contract was one ^ which the court could specifically perform. (/) In another l J case a contract to purchase a debt was enforced against the pur- chaser, on the ground that the debt had not been so assigned to him as to enable him successfully to sue at law;(7i') and in the case of a contract for the purchase of government stock, the fact that the plaintiff was not the original holder of the scrip, but merely the bearer, which rendered it doubtful whether he could maintain an action at law up ui the contract, was one ground ou which the court was held to have jurisdiction. (/) [5] (/i) Cannel v. Buckle, 2 P. Wms 212 ; (0 Buxton v. Lister, 3 Atky. 383, but see Acton V Acton, Prec. Ch. 237. See Gage intra, H 203. 342. V. Acton, 1 Salk. 325. (i) Wright v. Bell, 5 Pri. 325. (I) Doloret v. RotJiscliild, 1 S. & S. 590. of the agreement to convey, that the infant defendant must convey, but with- out covenants, and that the other defendants must also convey, but with covenants against their own acts, on payment of the sum due by the terms of the contract, deducting out of each payment due, and to become due, a pro- portionate share of the amount that should be found to be the vakie of the widow's right of dower. Hill v. Ressegieu, 17 Barb. 162. [4] See Costwaight v. Hutchinson, 2 Bibb, 407 ; Gould v. Womack, 2 Ala. 83. In New York, all contracts between persons in contemplation of mar- riage, remain in full force after such marriage takes place. Laws of New York, 1849, p. 529, ch. 375, § 3. [5] Where it is not clear that a court of law can give the relief asked for, 46 FRY ON SPECIFIC PERFORMANCE OF CONTRACTS. § 9. It is !said that before the time of Lord Somcrs the prac- tice was to send the parties to law, and to entertain the suit onl^^ in case of the plaintiff's there recovering damages, (r/?) a practice wliich of couise, involved the proposition that specific perfoimance could not be granted except in cases where dam- ages could be recovered at law. The cii^e in which this princi- ple was the most distinctly maintained, was that of Dr. Bettes- worth V. The Dean and Chapter of St. Paul's. (n) decided by Lord King in 172(), with the assistance of Lord C. J. liaymond and Mr. Justice Price. A lease had l)cen granted hy the defend- ants previously to the disabling statute of 13 Eliz., with the covenant to renew for ninety-nine years, and the plaintiff sought a renewal for the term allowed by the statute, which the lord chancellor refused, on the ground that no action could have been maintained on the covenant after the passing of the statute. " I take this to be a certain clear rule of equit}^" said Lord Raymond, (o) " that a specific performance shall never be com- pelled for the not doing of which the law would not give dam- r^.- -I aoes. The covenant to oblisfe *tbem to make a lease for ninety-nine years is gone, and damages cannot be recov- ered for part of a covenant, and therefore I am of opinion equity cannot interfere." This decision, which was opposed by the opinion of Sir Joseph Jekyll, was reversed in the house of lords ; and it is abundantly evident, from the cases already cited, that the jurisdiction at present exercised is not restrained within these limits, and that there are many cases in which specitic performance is granted where no action for damages could be maintained. ( J?) [6j (m) I'er Sir T. Clarke in Dodsely v. Kin- Bnckle, 2 P. Wnis. 242. The passage in nersley, Ambl. 406. Williams v. Steward. :', Mer 491, to which (n) .Sel. Cas. in Ch. 66. Mr. Justice Story (Ec). Jur. J 741,) has re- (o) P. 09. Terrell as a dictum of Sir Wm. Grant, is the ()> ) Per Lord Redesdale in Lennon v. lang'uage of counsel arguentio. Napper, 2 Sch. & Lef. 682; Cauiiel v. chancery will entertain jurisdiction. West v. Wayne, 3 Miss. 16. Wheeler V. Clinton Canal Bank, Ilarring, Ch. 449. Philips v. Thompson, 1 John. Ch. 132. [G] " The whole class of cases of specific performance of contracts respecting real estate, where the contract is by parol, and there has been a part perform- WHAT CONTRACTS AllE PERFORMED. 47 § 10. As the courts of equity interfere where the loijal remedy is entirely wanting, so they assume jurisdiction also where this remedy, though not entirely wanting, is yet inadequate to the full demands of justice. [7] § 11. The only remedy in courts of law for the non-perform- ance of a contract is in damages, that is to say, in the payment of a sum of money b}' the party who has broken the contract to the party injured l)y that breach. [8j If money were in all cases a measure of the injury done by this breach, it is evident that an exact equivalent for the wrong might be made, and that the justice done would be complete. But money is, it seems, an ance, or where the terms of the contract have not been stiictly compHed with, and yet equity relieves the part}', are proofs that the right to maintain a suit in equity does not, and cannot, properly, be t-aid to depend upon the party's having a rlAit to maintain a suit at law for damages. In cases of specific per- formance, courts of equit}^ sometimes follow the law, and sometimes go far beyond the law ; and their doctrines, if not wholly independent of the point, whether damages would be given at law, aie not, in general, dependent upon it. Whoever should assume the existence of a right to damages in an action at law, as the true test of the jurisdiction in equity, would tind himself in- volved in endless perplexity; for sometimes damages may be recoverable at law, where courts of equity would yet not decree a specific performance ; and, on the other hand, damages may not be recoverable at law, and yet relief would be granted in equity." Story's Eq. Jur. § 741. See also Getchell v. Jewett, 4 Greenl. .350; Andrews v. Andrews, 28 Ala. 432, which coincide in the doctrine as explained by Mr. Justice Stor}', and as laid down in the text. There are, however, contrary decisions in this country. See Allen v. Beal, 3 A. K. Marsh. 554, and Smith v. Carney, 1 Litt. 293. In this latter case relief was denied upon a verbal contract for the sale of land, after a delay of five years, upon the express ground that equity would net relieve where the law would not award damages, and assumpsit, the only action which cculd be maintained at law, the contract liaving been made before the introduction of the statute of frauds, was barred by the delay. [7] A specific performance will be decreed, when the part}- wants the thing in specie, and cannot be otherwise compensated; where an award of damages Avould not put him in a situation as beneficial as if the agreement were si^ecifi- cally performed ; or where the compensation in damages would fall short of the redress to which he is entitled. Philips v. Berger, 2 Barb. Sup. Ct. G()8. Phyfe V. Warden, 3 Edw. Ch. 47. Stuyvcsant v. Mayor &c. of New York, 11 Paige's Ch. 414. Nevitt v. Gillespie, 1 How. Miss. 108. [8] See McLane v. Elmer, 4 Ind. 239. 48 FRY ON SPECIFIC PERFORMANCE OF CONTRACTS. exact equivalent, only when by money the loss sustained by the breach of contract can be fully restored. Now, in a vast variety of cases, this is not so ; for though one sovereign or one shilling is to all intents and purposes as good as any other sovereign or shilling, yet one landed estate, though of pi-ccisel}' the same market value as another, may be vastly different in every other 'circumstance that makes it an object of desire ; so that it evi- dently follows that there would be a failure of justice, unless some other jurisdiction supplemented that of common law, by P^P I compelling the *dcfaulting party to do that which in con- science he is bound to do, namely, actually and specifically to perform his agreement. The common law treats as universal a proposition which Js for the most part, but not universally, true, namely, that money is a measure of every loss.((2') The defect of justice which arises from this universality of the legal principle is met and remedied by the jurisdiction of courts of equity to compel specific performance. § 12. The ground of this jurisdiction being the inadequacy of the remedy at law, it follows that where that remedy is adequate, chancery will not interfere to compel specific performance.[9j It is on this ground that the court refuses generally to entertain suits in respect of goverment stock or chattels, as will be here- after seen; and in all cases where the contract is satisfied by a mere payment of money, (r) § 13. The principle has been recently recognized in several other cases. It was one of the grounds on which the lords (q) See Aris. Eth. Xic. lib. ix. c. 1. (r) See the cases on contracts with a jjon- altj', infra, § 66, et seq. [9] There is probably no principle of equity more thoroughly established than this. Dhetegoft v. London Assur. Co., Mosely's R. 83. S. C, 1 Atkin's R. 547. Rose v. Clarke, 1 Y. & Col. 534. Hammond v. Messenger, 9 Sim. 327. Rees v. Parish, 1 McCord's Ch. 59. Bell v. Bemen, 3 Murph. 273. Sampson v. Hunt, 1 Root, 317. Pitkin v. Pitkin, 7 Cow. 315. Adair v. Win- chester, 7 Gill & John. 114. Carter v. United Ins. Co., 1 John. Ch. 463. Smiley V. Bell, Mart. & Yerg. 378. Mosely v. Boush, 4 Rand. 392. Thomp- son V. Mauley, 16 Geor. 440. Mechanics' Bank v. Debolt, 1 Ohio St. 591. Bonebright v. Pease, 3 Mich. (Gibbs,) 318. , Deggett v. Hart, 5 Florida, 215. Redmond v. Dickerson, 1 Stock. (N. J.) 507. Bailey v. Strong, 8 Conn. 278. WHAT CONTRACTS ARE PERFORMED. 49 justices acted in dismissing the bill in Lord James Stuart v. London and North-western Railway Company, (5) as far as re- gards specific performance, and only putting the defendants on terms to make certain admissions in any action at law to be brought l)y the plaintiff against them, — their lordships consid- ering that, the railway having been abandoned and complete re- lief being in their opinion obtainable at law, the case was not one for specific performance. It was also one of the reasons alleged for dismissino; the bill by Lord Cranworth in Webb v. Direct London and Portsmouth Railway Company, («;) he con- sidering that under the circumstances the vendor could obtain complete relief at law. The authority of these decisions has been subsequently questioned by Lord St. Leonard's, (w) but *as to the applicability of the principle to the circum- r */, n stances, and not as to the validity of the principle itself. § 14. In one case,(y) specific performance was sought of an agreement for a tenancy from year to year, the agreement speci- fying that the tenant was in all respects to abide by the terms entered into by a previous tenant, and that the tenant should pay for an agreement to be drawn up ; it was contended that the court would therefore interfere for the purpose of settling the proper terms of the agreement. But the court thought the rem- edy at law was adequate, and that the full terms of the agreement might be shown there, and therefore refused to decree perfor- mance. § 15. On this ground also, as well as that of the incapacity of the court to carry out the works, the courts refused specifi- cally to perform a contract to make a branch railway, although the agreement for the execution of it had been entered into during the pendency of the bill befoi'e parliament, and when sev- eral of the directors had thoughts of withdrawing the bill, and would have in fact done so, as the bill alleged, but for the agreement in question. (?o) § 16. And where a bill sought the specific performance of an is) 1 De G. M. & G. 721. (v) Clavton v. Illingworth, 10 Ila. 451. (0 1 l>e G. M. & G. 521. (w> Soiith AValcs Kailway Company v. (u) Hawks V. Eastern Counties Railway Wythes, 1 K. & J. 186; S. C. 5 De G. M. & G. Company, 1 De G. M. & G. 737 ; S. G. 5 Ho. 880. Lords, 331. 50 FRY ON SPECIFIC TERFORMANCE OF CONTRACTS. agreement whicli would have been effected by a mere account of profits and a payuicnt of the amount f(»und due, and there was no obstacle to the recovery of the amount at law, the court dismissed it. (a;) ^ 17. In nnaloofy with this principle, in a recent case(y) in which the plaintiffs souffht the specific i)erformance of an agree- ment to o-rant a wavleave for a railway for a *term of sixty ' J years, and between the filing of the bill and the hearing, the plaintiffs had obtained st;itutory powers to take the land in fee, the Vice Chancellor, Sir John Stuart, considered this to be a circumstance strongly influencing the discretion of the court against specific performance. § 18. But where the parties to an agreement might have com- pensation in damages, equivalent in value to what the court can give by its decree, l)Ut a court of law, not being able to modify its judirment, would be unable to preserve the benefit of the agreement to all parties, then equity has jurisdiction specifically to perform the agrement. So where A. gave a note to B., and C. ao-reed with B. for the relinquishment of his (B.'s) claim a«Tainst A. on the payment of certain sums, for which the notes were, in the contemplation of equity, to stand only as a security, it Avas held that the court would specifically perform the agree- ment, though the relations between the parties might have been worked out by actions at law.(<;.) § 19. Sir John Leach seems to have considered that the fact that the remedy in damages given at law depends for its benefi- cial effect upon the personal responsibility of the party, gave the other party to the contract a right to sue in equity for its actual performance. (rt) It is evident that this principle applies to all damages, and, if it were admitted, would give the court jurisdic- tion in all cases of contract, whether for the sale of chattels or of any other nature, which certainly is not the law of the court. Indeed that learned judge seems to have shown a tendency to (.r) Ord V. Johnston, 1 Jur. N. S. 1063, See also per Lord Cranworth in Morgan v. (Sciiiut V C ) See also bturgc v. Midland Milman, 3 Dc G. M & G. 35. Railway Coiapany, Week. Kcp. 1857-1858, (s) Beech v. Ford, 7 Ha. 208. Affirmed by 23'j !-'• ^• (y) MeyncU v. Surtees, 3 Sm. & GiC 101. (a) Doloret v. Rothschild, 1 S. & S. 590. ■WHAT CONTRACTS ARE PERFORMED. 51 extent! the jurisdiction in specific performance somewhat more liberally than other equity jntlges.(6) *§ 20. A question as to the adequacy of the legal remed}^ r *Q 1 has arisen in respect of the compulsory powers of rail- way or other public companies, to take lauds required for the pur- poses of their undertakings. It has been decided that a species of contract is constituted by a notice served on a landowner by such a company.(c) acceptance here being unnecessary inas- much as the vendor has no power to refuse ;((/) and that by this notice the company and the landoAvner are placed in the relation of vendor and purchaser, binding both parties, and taking the subsequent proceedings for the enforcement of the eontract thus constituted, out of the limitation of time for the exercise of the compulsory powers of the company. (e) § 21. With regard to the interference of the court in respect of such contracts, and the adequacy or inadequacy of the statu- tory remedies, a distinction must be taken. In those cases in which the contract depends entirely on the statutory powers of the company, and there are statutory methods prescribed by the Lands Clauses Consolidation Act for working out the rights of the parties, a court of equity will not, it seems, interfere : so that in one case,( /") Lord Cottenham, overruling a decision of Vice Chancellor Wigram, allowed a demurrer to a bill to com- pel the company who were in possession of the land to summon a jury, his lordship holding that the notice ^;er se did not give the *court jurisdiction, and that the rights of the parties r#,/.i were to be regulated by the statute. § 22. But when the contract is no longer an incipient one under the statutory provisions, but the company has bound it- (h) See Withy v. Cottle. 1 8. & S. 504; firmed in Cam. Scac. ovemillngBrocklebank Kcnney v. We.xham. G Mad. 355. Cf. Biea- v. Whiteliuven Junction Uaihvay Company, ley V. Collins. You. 317. 330. 15 Sim. 63'2, S. C. 5 Rail. C. 373; Waiquis ('■) Rex V. Hungerlord Market Company, of Salisbun' v. Great Xortheru Railway 4 B & Ad. 327; Walker v. Eastern Coun- Company, 17 Q B. 840. ties Railway Company. 6 Ha. 5!)4; Doo v. (/) Adams v. Blaekwal! Railway Com- l.ondon and Croydon Railway Company, 1 pany, 2 M'X. & G. 118, i)er Kniglit Bruce Rail. C. 257. ' L. J. iu Morgan v. Milmau, 3 De G. M. & {il) Per Lord Cottenham in Stone v. G. 36; Leominster Canal Co. v. Shrews- Commercial Railway Company, 4 My. & Cr. hury and Hereford Railway Company, 3 Jur. 124. X. S. 930, (Wood V. C.;) S. C. 3 K. &, J. (t) Re^. V. Birmingham and Oxford June- 654. tion Railway Company, 15 Q. B. 634 ; at- 52 FRY ON SPECIFIC PERFORMANCE OF CONTRACTS. self by a contract, valid under the Statute of Frauds, then its completion may be compelled by either party in an ordinary suit ; and that, notwithstanding that the circumstance which led the company into the contract may have arisen out of the act of parliament, or that the written contract is in part foinid in documents which were originally intended to be ancillary to the enforcing of the contract under the act of parliament.(5') § 23. It might appear at first sight that inasmuch as money in exchange for the estate is what the vendor of land is entitled to, he has a complete remedy at law, and therefore could not sus- tain a bill for the specific performance of the contract. But, on further consideration, it will be apparent that damages will not place the vendor in the same situation as if the contract had been performed ; for then he would have got rid of the land and of all the liabilities attaching to it, and would have the net pur- chase money in his pocket; whereas, after an action at law, he still has the land and, in addition, damages, — representing, in the opinion of a jury, the difterence between the stipulated price and the price which it Avould probably fetch, if re-sold, together with incidental expenses and any special damage which he may have suffered. (A) The doctrine of equity, of the conversion of the land into money, and of the money into land upon the exe- cution of the contI■act(^) — and the lien which the vendor has on the estate for the *purchase-money, and his right to L J enforce this in equity, are additional reasons for extend- ino- the remedy to both parties. Accordingly, it is well estab- lished that the remedy is mutual, and that the vendor may maintain his bill in all cases where the purchaser could sue for specific performance of the agreement, and this independently of any question on the Statute of Frauds.(^') § 24. On the principle that damages are a sutficient satisfac- (?) Inge V. Birmins^ham, Wolverhampton Hawkes. 5 Ho. of Lorrts. 331, 359, 376 ; Lewis and Stour Valley Railway Company, 3 Uo G, v. Lord Leolimere, 10 Mod. 503. M. & li. 058, atliriuins S. C. 1 Sin. & G. 347 ; (') Ibid. Regent's Canal Company v. Ware, 23 IJeav, (i) Clifford v. Turrell, 1 Y. & C. C C 138, 575 See al!*o Douglass v.Lon ) Dolorot v. Botlisclilld, 1 S. & S. 590. [m) 5 Viu. Abr. 538, pi. 21 ; S. C. 1 P. Wms. (? ) Withy v. Cottle, 1 S. & S. 174. 570. (/■) Bvcaley v. Collins, Yon. 317, 330. ()/) Cappur V. Harris. Bumb. 135. (s) Dunciirt v. Albrecht, 12 Sim. 1S9, 199. W lu .\utbrowu V. TUorutou, 10 Ves. IGl. See Jiicksou v. Cocker, 4 Bcuv 5a. 54 FRY ON SPECIFIC PERFORMANCE OF CONTRACTS. any sort of analogy between a quantity of £3 per cents or any other stock of that description, (which is always to be iiad by any person wlio chooses to apply for it in the market,) and a certain number of railway shares of a particular description, which railway shares are limited in number, and Avhich, as has been observed, are not always to be had in the market ;" and ac- cordingly spccitic performance was enforced of a contract to sell a certain number of railway shares, the shares not being j)artic- ularized. It may have been ou this principle that Lord King disallowed a demurrer to a bill for the transfer of York Building Stock •(() but a different view seems to have been previously en- tertained by Lord Maccleslield, inasmuch as he dismissed a bill for the transfer of £1000 of the same stock. (i«) [lOj § 28. A vendor of railway shares may maintain a suit against the purchaser to compel him to complete the purchase bv the exe- p,g-| cution and registration of a proper *transfer,(?j) and to indemnify the vendor against future calls. (i«) § 29. The court for the most part refuses to interfere in re- spect of chattels, both because damages are a sufficient remedy, aud because the price of such articles, especially of merchandise, varies so as often to render the specific execution of contracts for their sale and delivery an act of injustice, entailing perhaps ruin on one side, wheu upon au action that party might not (0 Colt V. Nettervill,2Sii7i. 304. (^•) Shaw v. Fisher, 2 De G. & Sm. 11; 5 (h) Dorisoii V. Westbrook, 5 Viu, Abr, De G. M. A G. HX. 540, pi. 22. (!(•) Wynne v. Price, 3 Do G. & Sm. 310 ; Walker v. Bartlett, 18 C. B. 815. [10] See Story's Eq. Jur. §744; Fergu.son v. Paschall, 11 Miss. 207; Brown v. Gilliland, 3 Dessau. 539; Strasbourg Rail Road Co. v. Elchternact, 21 Penn. 220, authorities in unison with the text. A contract for the sale of stock, on time, by a person who is not the owner of the stock at the time, is void though made through the medium of a broker, by whom the principal is not disclosed. And money paid on such a contract may be recovered from the broker, at any time before he has paid it over. Gram v. Stebbins, 6 Paige, 124. Stock is considered as a chattel, and therefore, as will be seen hereafter, is perfectly compensated in damages. Buxton v. Lister, 3 Atk. 383. And indeed, it is viewed with even less favor than chattels generally. Brown v. Gilliland, 3 Bes, .^29. Sec further, Austin v. Gillespie, 1 Jones' Eq. (N. C.) 201, and Bis- scU v. Fannors & Mechanics' Bank of Michigan, 5 i\IcLean, 405, WHAT CONTRACTS ARE PERFORMED. 55 have paid perhaps above a shilling damages. (.x*) [11] As these principles however do not apply to all cases of chattels, excep- tions arise which we shall now consider. § 30. When the chattel in question is unique, — when there is, over and above the market value, that which has been called the jpretium affectionis, the court has interfered, and not left the party to his legal remedy. The leading case in this branch of the law is Pusey v. Pusey,(7/) in which the heir of the family of Pusey recovered possession by a bill in equity of the cele- brated Pusey horn: the grounds of the decision are insufBciently reported, but the case ' turned," to quote Lord Eldon's language in respect of it, (5;) " upon the prefium affectionis, independent of the circumstance as to tenure, which could not be estimated in damages." This has l)een follou'cd by other similar cases, one having relation to an ancient silver altarpiece, remarkable for a Greek inscription and dedication to Hercules, (rt) another r^-i^-^ to a tobacco-box of a remarkable and *peculiar kind, (6) and another to masonic dresses and ornaments. (c) [12] (x) Per Lord Hardwicke in Buxton v. Lis- (-) In Kutbrown v. Thornton, 10 Ves. 163. ter, 3 Atky. 384. In Norton v. .Serle. Finch, (a) Duke of Somerstit v. Cookson, 3 P. 149, Lord Xottingliam specifically performed Wms. 390. a charter-party by directing tlie payments (b) Fells v. Read. 3 Ves. 70. to be made in pursuance of it. See also (c) Llovd v. Loaring. (i Ves. 773. See also Claring-boulil v. Curtis, 21 L. J. Ch. i>41. Savill v. Tancved, 1 Ves. Sen. 101, S. C. 3 Where the delivery of chattels is only part S\v. 141. n. Lady Arundell v. Phipps, 10 Ves. of a contract otherwise enforceable, the con- 139. Lowther v. Lord Lowther, 13 Ves. 95. tract may be performed. Marsh v. Milligan, Is a ship within this principle ? See Lynn v. 3 Jur. N. S. 979, (Wood V. C.) Chaters, i Ke. 521. (y) 1 Vorn. 273. [11] The ground upon which courts of equity refuse to interfere, in cases of this kind, is, that there is an adequate remedy provided at law ; but wherever a breach of the contract cannot be compensated by damages, equity will grant relief. Sullivan v. Fink, 1 Maryl, Ch. Decis. 59. Roundtree v. McLean, 1 Hemp. 245. Waters v. Howland, 1 Md. Ch. Decis. 112. Lloyd v. Wheatley, 2 Jones' Eq. (xN. C.) 2G7. [12] Wherever there is any thing peculiar in the value of the article, real estate or chattel, that cannot be compensated in damages, because of the es- pecial value which may be placed upon it, on account either of its individual or associate qualities, courts of equity take jurisdiction. Clark v. Flint, 22 Pick. 231, Chamberlain v. Blue, 6 Blackf. 491. In the southern states, nu- merous cases have arisen in regard to slaves, which are well adapted to dis- play the true gi-ounds upon which equity enforces, or refuses to enforce, a personal contract. In South Carolina, iu the earlier cases, it was held to bo 56 FRY ON SrECIFIC PERFORMANCE OF CONTRACTS. § 31. Most of these cases were rather in the nature of proceed- ings arising form toi-t than contract, but there seems no clonbt that the principle of the exception would be equally applicable in both cases. § 32. The Common Law Procedure Act, 1854, having, by the 78th section, given to the courts of common law power in ac- tions of detinue to order that execution shall issue for the return a general rule, that chancery did not enforce specific execution of contracts relating to personal property, and that the circumstance that slaves were the subjects of the contract, did not create an exception. Farley v. Farley, 1 McCord's Ch. 50G. Subsequently, in the case of Sarter v. Gordon, 2 Hill. Ch. 121, the considerations which give to domestic slaves a specific character and an individual value, in relation to their owner, were brought fully into view, and it was decided, that, as a general rule, a bill will lie for the specific delive- ry of slaves, as for the specific performance of a contract for the sale of lands, but that there might be exceptions to the rule. If it appeared that the pur- chaser contracted for the slaves as merchandise to sell again, this, according to the expression iu Buxton v. Lister, would be merely a matter in the way of trade, and, in such a case, complete justice might be done by a compensa- tion in damages. Shortly after, in Horry v. Glover, 1 McCord, 515, the rule was laid down as follows : " That if a man's slave has come into the pos- session of another, who refuses to deliver him, or if he has contracted for specific slaves, he has a right to a specific delivery ; but if the contrary ap- pears, that he contracted for slaves generally, with no view to any particular individuals, or if they were contracted for as merchandise, to sell again, the remedy is at law." In Young v. Burton, 1 McMuUan's Eq. 250, the subject was again discussed in the Court of Errors, and the rule was there propounded to be thus : " First, that a bill well lies for the specific deliverey of slaves, gen- erally, which are withheld from the possession of the rightful owner. Second, that it is difficult to give jurisdiction to the court, to state, in such bill, that the slaves are the property of the complainant, and that their possession is withheld by the defendant." See also Bobo v. Grimbe & McMartin, 1 MclMuU. Eq. 304. Eraser v. McClenachan, 2 Rich. Eq. 79. Ellis v. Com- mander, 1 Strobh's Eq. 188. In the late case however, of Bryant v. Robert, 1 Strobh's Eq. 335, the limits of equity jurisdiction on this subject were more specially and precisely defined, and the generality of the previous rule, per- haps, somewhat qualified. In that case, a slave had been sold, and a mort- gage taken upon him for the purchase money, and he had again passed through the hands of several vendees; the sureties of the original nfortgagor then paid the debt, and took an assignment of the mortgage, and sought to recover the slave. "I think," said Harper C, "there is a misconception in sup- posing this a case in which a bill will lie for the specific delivery of a slave. WHAT CONTRACTS ARE PERFORMED. 57 of the chattel detained, without giving the defendant the option of retaining such chattel upon paying the value assessed, the ue- cessity of resorting to a court of ecpiily in these cases appears to have ceased, though the jurisdiction no doul)t remains intact. § 33. Closel}^ allied with the instances of unique chattels are those cases which seem to establish that contracts tor the de- livery of chattels may be enforced, when the defendant can sup- ply them in such a way as is essential to the proceedings of the plaintiff, and no one else can : as if a man were to contract with a shipl)uilder for the supply of tinil)er the shipbuilder being under contract to complete a ship l)y a given time, for The general principle on which such a bill may be sustained, as determined by the cases of Sartor v. Gordon, Trapier v. Glover, and Young v. 13urton, rests on these grounds: that where an owner has had possession of a slave, and he has been deprived of it by the act of another, the presumption is, that there may be some qualities in the slave which would render him of more value to the owner th;in could be compensated by the price of such a slave, estimated at his mere market value. So, where a party contracts for the purchase of specific slaves, it is presumed that he may have made his contract with a view to some particular qualities in the slaves themselves, for which ordinary dam- ages would not be a sufficient compensation. Or, as in Trapier v. Glover, where one is entitled to slaves, by the gift or limitation of a friend, relation, or ancestor, there is very sufficient reason why he should have the slaves themselves, instead of any damages for their estimated value. A general ex- pression is used in one of the cases, that where a party states a defendant to be in possession of his slave, he states a case entitling him, prima facie, to the interference of this court. And so it is ; but it must be taken with the quali- fications I have suggested from the context of the cases. An exception is made in the cases, when it appears that without any view to peculiar quali- ties, there is a contract for slaves, to be sold again as merchandise. The same reason applies, and more strongl}^ in the case of a mortgagee of slaves. He is not supposed to know any thing of the peculiar qualities of the slaves, ex- cept that he might form an estimate of the market value of such slaves, and certainly not to have the same attachments or knowledge of their character and qualifications, as the owner, who has been in possession of them, and has been deprived of it. In this court, the mortgagee, though having the legal title, is not considered, in any manner, as the owner of the slaves; as, in a court of equity, in England, the mortgagee of land is not considered the owner. He is regarded as having taken a pledge or security for his debt, with no view to the possession of the property itself. His object is merely the recovery of his money." FKY— 5. 58 FRY ON SPECIFIC PERFORMANCE OF CONTRACTS. which the supply of the timber by the defendant was essential. But this Avill not be extended to mere questions of convenience, as the supply of coal from an adjoining colliery, when plenty of other coal can be procured in the neighborhood. ((/) § 34. Cases might probably arise in Avhich the court would interfere in respect of chattels connected with the enjoyment of r .^-ir -I •"! estate, Avhere but for such connection it *\vould not exercise jurisdiction. In one case(e) Lord Eldon made (d) Per Lord Ilardwicke in Buxton v. Lis- (e) Nutbrown v. Tliornton, 10 Ves. 159. ter, 3 Atkv. 383, compared witli Pollard v. Clayton, IK. &J.4G2. In Alabama, principles quite the same with those defined by Mr. Chancellor Harper, are laid down in Savcry v. Spence, 13 Ala. 501, which related to a contiact about slaves, that clearly involved pecuniary considerations only. "A court of equity," said Dai'gan, J., "will not decree a specific execution of a contract in reference to personal property, when compensation for the breach of contract in damages furnishes a complete and satisfactory remedy. Story's Eq. Jur. § 26. A court of equity will, in some instances, interfere, and decree a specific performance of a contract, in reference to personal property; but then it must be shown that a court of law cannot give full and complete re- dress by compensation in damages, for a breach of the contract, either from the nature of the contract itself, or from the peculiar character of the subject- matter of the contract, neither of which is shown in the present case, and therefore the complainant should be remitted to a court of law, which is fully competent to give redress in this case, if there has been a violation of the terms of any contract in reference to slaves." In Mississippi, in the case of Murphy v. Clark, 1 S. & M. 221, a bill was filed for the specific delivery of slaves, and the objection to the jurisdiction was urged that there was an ample and complete remedy at law, and that the bill did " not disclose those circumstances which are necessary to authorize the interposition of equity, or in the technical phrase of the books, the pretium ajfedionis was not set forth." Mr. Justice Clayton, after an examination of the authorites, said that the cases, to his apprehension, established the prin- ciple, " that wherever the bill states circumstances, from which the court may fairly infer that the owner prefers the property in specie to damages, and that this preference is of a character which it is not unreasonable to indulge, and exists in reference to property for which damages at law might not be a full compensation, equit}^ will entertain jurisdiction." The point was not consid- ered as judicially settled by this case, and came up again in Butler v. Hicks, 11 S. & M. 79, where a majority of the court confirmed the principle of Mur- phy v. Clark. But Sharkey, C. J., dissented, holding that the pretium affcctionis should not be inferred, but established. WHAT CONTRACTS ARE PERFORMED. 59 an order specifically to restore to a tenant the stock on a farm, which had been seized by the landlord under a distress and bill of sale : his lordship holding that under the circumstances of that case, there was an entire contract by which the landh)rd agreed to let the tenant have both the estate and the chattels, the enjoyment of the chattels being requisite for the enjoyment of the estate. The same subject was discussed in an interesting manner, in Dudley v. ^lal- lery, 4 Geor. 52. " His honor, the presiding judge," said Lumpkin, J., in de- livering the opinion of the supreme court, in error, " held, in accordance with the recent South Carolina cases, that a bill well lies in a court of equity for the specific delivery of slaves, which are withheld from the possession of the right- ful owner, and that it is sufficient to give jurisdiction to the court, to state in such bills, that the slaves are the property of the complainant, and that their possession is withheld by the defendant." But it may be submitted, that in this, as well as in other cases, the subject has been treated more with regard to humanity, than with reference to the peculiar doctrines of a court of chan- cery in relation to chattels and their specific delivery. Thus the learned judge goes on to say, " We yield our unqualified approval of the motive which has prompted these adjudications, namely, humanity to the slave, the interest of the owner, and a just regard for the ties which bind the master and slave together. Those who are acquainted with this institution, know that the mas- ter and slave form one family, or social compact, being usually reared together on the same lot or plantation, and feeling toward each other the kindest sympa- thies of our nature Instead of weakening, our desire is to main- tain and promote this mutual attachment and good will. But Ave cannot, for the very reasons assigned in those cases, go to the extent of holding that it is sufiBcient merely to allege in the bill, that the slaves ought to be recovered, are the property of the complainant, and withheld by the defendant. In many, I am prepared to say from my own experience, in a majority of the suits in- stituted for the recovery of slaves, humanity to both races requires that there should not be a specific delivery Female slaves are sometimes pledged for the payment of loaned money, and the borrower returns after the lapse of many years, tenders payment and claims the right to redeem his prop- erty, which has multiplied to a numerous familj" ; here, as it often happens, the best feelings of our nature are opposed to the legal or equitable right. Slaves, then, being by our law chattels, we think it best, that as a general rule, chan- cery should not entertain a bill for the specific delivery, and that, to give juris- diction, it is necessary to charge and prove peculiar circumstances — as, that they are family servants, a carpenter, blacksmith, wagoner, hostler, &c. This will give the defendant an oppprtunity of stating, in his answer, the peculiar circumstances connected with his possession ; and the special jury, under the 60 FRY ON SPECIFIC PERFORMANCE OF CONTRACTS. § 35. This apponrs to have been one gronnd on which the conrt uneienlly enfoieed agreements to I)uihl in certain cases ; as, where the father entered into artich's with a l)nilder, and died before the execution of the contract, the heir Avas allowed to sue the personal representative of his father and the Iniilder, the contract savouring of the reality.(/) So, in another case, an agreement to build was specifically enforced against a tenant who, having undertaken to rel)uild the faiin-liouse, had done >o on his own soil instead of his landlord's. (y) § 8(3. From the specific [)erf()rniance in respect of chattels must be discriminated the cases where a trust has been constituted in ( f) Holt V. Holt, 2 Vern.. 322. per Lord (?) Pembroke v. Thorite, 3 Sw. 437 n. Hardwicke in Rook v. Warth, 1 Ves. sen. 461. direction of the chancellor, will constitute a fit and proper tribunal to pass upon the peculiar features of each case, and to decree either a specific delivery of the propertj^ or its equivalent in money." In Nprth Carolina, in the case of Williams v. Howard, 3 Murp. 74, though the point was not considered as necessarily arising, the judges expressed their opinions upon it. " I have no hesitation in giving it as my decided opinion," Said Taylor, C. J., " that the reason of the rule in relation to the specific exe- cution of contracts relating to chattels, does not apply to slaves ; that they form an exception, for reasons equally cogent, or more so, than those applica- ble to laud. With respect to other chattel property, justice may be done at law by damages for non-performance, and therefore equity will not interpose ; but for a faithful or family slave, endeared by a long course of service or early association, no damages can compensate ; for there is no standard by which the price of affection can be adjusted, and no scale to graduate the feelings of the heart." " All the principles," said Henderson, J. in the same case, " which induce a court of equity to compel the specific execution of a contract for the sale of lands, or some favorite or personal chattel, apply with equal, if not stronger force, to the case of slaves." In A'ii-ginia and Tennessee, the rule is much, if not quite, the same as in Mississipi)i. In Summers v. Bean, 13 Gratt. 404, it is said that the specific delivery of slaves will be decreed regardless of their possessing or not possess" ing peculiar qualities. In the latter state it was held, in Loftin v. Espy, 4 Yerg. 84, that although, as a general rule, where there is an adequate remedy at law, equity will not interfere, yet there is an exception in regard to slave property. In Kentucky, it would seem, that a specific performance of slaves will be granted or refused upon the same grounds as other chattels; though the dis- cretion in the chancellor is very broad. Caldwell v. Myers. Hardin, 55i. "SVTIAT CONTRACTS ARE PERFORMED. 61 respect of personiil chattels : for the natui-e of the subject-mat- ter is no obstacle to the interference of the court to compel ex- ecution of the trust, whether it be one constituted by direct de- claration, or u constructive trust arising from the act of the parties.(//) [13] The court will accordingly restrain improper dealings b}' an agent with chattels, though they may be of no peculiar or intrinsic value. (?") § 37. It has been laid down that where the contract, though personal, is executory, specific performance will be decreed when the damages at law cannot accurately represent *the value r *i p -i of the contract to either part3'.(^) The cases we have lately considered may be regarded as particular instances of this general rule. But it has been carried into efiect in some other ways. Thus where the contract was for the sale of debts proved under (A) Wood V. Rowcliffe. 3 Ha 301; S. C. 2 (i) Wood v. Rowclifle, uhi supra. Phil. 382 ; Pooley v. liiibb, U Beav. 34. (k) Adderley v. Dixon, 1 S. & S. 607. [13] The exercise of equity jurisdiction does not proceed upon any distinc- tion between real estate and personal estate, but upon the ground that dam- ages at law may not afford a complete remedy. Thus courts of equity well decree perlbrniance of a contract for land, not because of the particular nature of the land, but because the damages at law, which must be calculated upon the general value of the land, may not be a complete remedy to the purchaser, to whom the land purchased may have a peculiar aud special value. So courts of equity will not generally decree performance of a contract for the sale of stock or goods ; not because of their personal nature, but because the damages at law, calculated upon the market price of the stock or goods, are as com- plete a remedy for the purchaser, as the delivery of the stock or goods con- , tracted for ; inasmuch as with the damages he may ordinarily purchase the same quantity of the like stock, or goods. Story's Eq. Jur. § 717. It was upon this distinction that the decision in Clark v. Flint, 22 Pick. 231, is based. It was there held, that, where the owner of a brig had contracted in writing, for a valuable consideration, to hold the vessel in trust for another, and sub- ject to his order aud disposition, and then sold her to another person, with notice of the contract, specific performance might be enforced, in case of the insolvency of the original contractor, since a judgment at law against an insolv- ent person would not be an adequate remedy. It is a point too well settled to admit of much doubt, that where a trust has been created, in relation to particular chattels, by contract, a bill in equity will lie to enforce the trust and have a transfer of the property. Cowles v. Whitman, 10 Conn. 121, which was a case of a trust in bank shares. See the dictum in Ferguson v. aschall, 11 Miss. 267. 62 FRY OX SPECIFIC PERFORMANCE OF CONTRACTS. two commissions of hanknipt, Sir John Leach granted specific performance, considering that to compel the plaintiff to accept damao-cs would he to compel him to sell these dividends, which Avere of unascertained value, at a conjectural price. (/) ^ 38. In one case, cited by Lord Ilardwicke, articles for the sale of eight hundred tons of iron, to he paid for ])y install- ments, at periods running through some years, were specilically enforced. (v??.) The case appears to have been approved by his lordship, but has recently been doubted by Vice Chancellor Wood, who remarked on the absence of any case for the sale of mere goods being supported on the ground of their being to be delivered by installments. (w) § 39. When the contract is from its nature such that the court cannot enforce its performance, it is necessarily no sub- ject of its jurisdiction in that respect. § 40. On this principle the court will not prohibit the making of a seci'ct medicine ; for if it be secret, then the court cannot tell whether it has been infringed or not,(o) nor will it for the same reason direct the specific performance of covenants in a farming lease, for " how," said Lord Northington, "can a mas- ter judge of repairs in husbandry ?(p) [14] § 41. And so too the court will not interfere to enfoi'ce acov- j^^r.-, enant by means of injunction, where the acts complained* ^ ^ of as breaches are frequent, and the court could not ascer- tain whether there has in each case been a breach without an ac- {/] S. C. See also per Wood, V. C. in Pol- (o) Kowbem- v. James. 2 Mer. 446 ; Wil- lanl V. Clavton, 1 K. & J. 46i. liams v. Williams, 3 aier. 157. [m] Taylor v. Xeville. citeil 3 Atky. 384. ( ;;) Kayncr v. Stoue, 2 Ed. 128. (n) Pollard V. Clayton, 1 K. & J. 462. [14.] Under this head may be ranked contracts to do purely personal acts. It may be laid down that equity never enforces these contracts unless they have some reference to property of some kind, or a partnership of some nature. In England, equity will interfere negatively, that is, by injunction. Although the court could not carry out the positive part of the agreement ; which, in Lumley v. Wagner, 1 de G. M. & G. G04, was an engagement to sing at a theatre ; the court preventing the singer from performing elsewhere. But in New York, at least there are no cases of this kind where the court has interfered either actively or negatively. Haight v. Badgley, 15 Barb. Sup. Ct. 501. Hamblin v. Dunneford, 2 Edw. Ch. 522. De Rivafinoli v. Corsetti, 'VVTIAT CONTRACTS ARE PERFORJIED. 63 tion ;it law; as of a covenant not to sell water from a certain well to the plaintlft''s injury. (5'.) § 42. The inca[)acity of the court to execute the contract limits its jurisdiction in cases of agreement for the sale of the goodwill of a business. For where the contract has respect to a goodwill alone, unconnected with business premises, the court re- fuses specific performance, by reason of the uncertainty of the subject-matter, and the consequent inca]:)acit3' o^" the court to give specific directions as to what is to i)e done to transfer it.(r) But where the goodwill is entirely or mainly annexed to the premises, and the contract is for the sale of the premises and goodwill, the contract may be enforced.(.v) For in that case the good- will is merely the advantage attached to the possession of the house or other place of business, (/) — " the probability," to use the words of Lord Eldon,(?<) " that the old customers will re- sort to the old place," — together with the right which arises to the purchaser to restrain the vendor from setting up a new, or coutinuiug the identical trade he has contracted to sell, — but without any right, independently of stipulation, to prevent the vendor's setting up a similar business.(y) In the case of agree- ments for the sale of a business of an attorney, the legality of stipulations comprised in them, for the purpose of giving to the party to carry on the business the advantage of the name *or of the recommendation of the party not eno-aired in , it, has been questioned by the highest authorities, in- *- -' eluding Lord Eldon, Sir William Grant, and Lord Justice (7) ColUns V. Plumb, 16 Ves. 454. See mery v. Paul, 1 C. B. 316, 326; and see also City of London v. Nash, 3 Atky. 512, lurther. as to the nature of a good will. Pot- 515. tev V. Commissioners of Kevenue, 10 Exch. (/-) Baxter v Connolly, 1 J. & W. 576 ; 147 ; Allison r. Monkwearmoulh, 4 Ell. & Bozon V. Farlow. 1 Mer. 559. Coslake v. Bl. 13. Till, 1 Russ. 376 («) In Cnitwell v. Lye. 17 Ves. 346. (*) Darby v. Wliittaker, 14 Drew. 134, 139, (r) Crutwell v. Lve, 17 Ves. 335; Shackle 140. V. Baker, 14 Ves. 468. (0 Chissum v. Dewes, 5 Russ. 29; Mum- 4 Paige 261. Sanquirico v. Benedetti, 1 Barb. Sup. Ct. 315. Where property is concerned, the rule is different. Stuyvesant v. The Mayor of New York, 11 Paige, 414. In regard to contracts relating to partnerships, the Eng- lish rule, as established in Morris v. Coleman, 18 Ves. 437, Clark v. Price, 2 Wilson 157, and Kemble v. Kean, 6 Sim. 333, has never been controverted. See note. 64 FRY ON SPECIFIC PERFORMANCE OF CONTRACTS. Knight Bruce. (?r) But it seems to be uow estiihli.slied, not only that such transactions are valid at la\v,(«) hut that they maybe specitically executed by injunction or otherwise, by courts of t-'quity.(//) § 4?). The court will not enforce a contract Avhich is in its nature revocable ; for its interference in such a case would be idle, inasnuich as what it had done might be instantly undone by either of the parties.[15| § 44. Thus where the registrar of a consistory com t agreed to grant a deputation of his otHce, it was held that such a deputa- tion was in its nature revocable, and therefore could not be en- forced by the court. (2;) § 45. It is on the same principle that the court generally re- fuses to interfere in cases of agreements to enter into partnership, which do not specify the duration of the partnership, — that re- lation, unless otherwise provided, being dissoluble at the will of cither party.(fl) There is indeed some authority to the contrary of this proposition, consisting of a. dictum of Lord HardAvicke's(^y) in general terms, and two or three cases(c) in which specific performance of such agreements seems to have been enforced, but with regard to which it does not appear whethei- the part- nerships thus constituted were for a term or not ; and it is in- deed said that Lord Eldon was not quite satistied with his de- cision ill the case quoted as establishing the principle.((^) *§ 4(5. The doctrine, however, appears to be generally •- -* accepted as that of the court. Thus in a recent case(e) (U-) Per Lord Eldon in Candler v. Garden, {a) Herey v. Birch, 9 Ves. S.")?. Jac. 231; Bozon v. Farlow, 1 Mer. 459; (i) In Buxton v. Lister. 3 AtKy. .385. Thombuvv V. Beville, 1 Y. & C. C. C. 584. (') Anon. 2 Ves. sen. 629; Anon. 1 Mad. See Gilrtlliin v. Henderson. 2 CI. & Fin. 1. Cli. 411, n.; Hibbert v. Hibbert, Colly. Partn. (.T) Bnnii V. Guv, 4 Kast, 100. 133. (y) Wliittaker v. Howe. 3 Beav. 383; Aubin [d) 1 iMad. Ch. 411, n. V. Holt. 2 K. & J. 6(5. (t) Sheflield Gas Consumers' Company v. (2) Wheeler v. Trotter. 3 Sw. 174, n. See Harrison, 17 Beav. 294 See also as to agree- also Stur{i;e V. Midland Railway Company, ments to tbnn a company, Stocker v. Wad- Week, llep. 18.57-1858, 233, (Stuart V. C.) dcrburu, 3 K. & J. 393. [15] Thus, while equity will sustain a post nuptial voluntary settlement in favor of the wife, when executed, and will specifically enforce, as against any other person than the party himself, an agreement to make such a settlement, it will refuse to execute such an agreement against the party himself, because, until executed, it is revocable. Andrews v. Andrews, 28 Ala. 432. ^VHAT CONTRACTS ARE PERFORMED. 65 before the muster of the rolls, the principle was acted on ; the defendant entered into an agreement with the plaintiff company, to take a certain number of shares and to execute the deed of settlement when required ; and of this agreement the court refused specific performance, because the defendant might, by the rules of the com[)any, have ceased again to be a partner within fouiteen days aftei' becoming such. § 47. It is on the same reasoning that the court declines to perform an agreement, if such covenants must be introduced into the instrument to be executed that the party resisting the performance may inmiediately take advantage of them to de- prive the other of all benefit under the instrument ; as, for in- stance, an agreement for a lease which is to contain a proviso for re-entry on breach of a covenant, which the plaintifi' had already broken. (/) § 48. In some old cases the court entertained suits in respect of building contracts ; and what has been considered the earliest trace of the jurisdiction in specific performance is a dictum of Justice Genney in the 8 Edward IV., that a promise to build a house would be specifically enforced. (^r) Lord Hardwicke also maintained this view of the jurisdiction of the court. (/-) But it is now clearly settled that, suliject to certain exceptions, the court will not interfere in cases of contracts to build or repair,(/) both because specific performance is " decreed(/,') only where the party Avants *the the thing in specie and cannot have it r*i,r,i any other way," and because such contracts are for the most part too uncertain to enable the court to carr}^ them out.(^) §41). For the first of the reasons stated. Sir William Grant refused specific performance of a covenant to make good a gravel-pit (/;/) § 50. On the ground of both of these reasons, specific per- formance was refused in a recent case(/i) of an agreement for (f) Per Sir William Grant, in Jones v. Aynesley. 2 Bro. C. C. 343 ; S. C. 2 Dick. 692. Jones, 12 Ves 18.S. Accorfliiigly Lucas v. Comiiiertbrd, 3 Bro. (s) 1 Mad. Ch. 361. C. C. 166. (/i) Buxton V. Lister. 3 Atky. 385 ; Citv of (/) Mosely v. Virgin, 3 Ves. 184. London v. Nash, 3 Atky. 512, S. C. 1 Ves. (m) J^lint v. Brandon. 8 Ves. 159. sen. 12. (n) South AVales Railway Company v. (I) Paxton V. Xewton. 2 Sm. & Gif. 437. Wythes, 1 K. & J. 186 ; S. C, 5 De G. M. & G. (/c) Per Lord Keuyon in EiTington v. 880. 66 FRY ON SPECIFIC PERFORMANCE OF CONTRACTS. the exection of a branch railway, which was entered into during the pendency of the bill before pailianient, and when several of the directors had llionahts of Avithdrawiiig the bill, and, as the 2)laintills alleged, would have done so, l)Ut for the agreement in question : and in other cases, s[)ecitic performance has been re- fused of agreements for the working of quarries (o) and coal mines.(jt;) § 51. There are however exceptional cases on such contracts, in respect of which the court will interfere. Lord Kosslyn, in a judgment which appears never to have been overruled, main- tained that where an ao;reement for buildinsj is in its nature de- fined, the court might without much difhculty entertain a suit for its performance ]{q) and Mr. Justice Story argues in support of this view.(r) [IG] It may also be added that in Scotland many contracts to build are specifically performed, in respect of which equity would decline jurisdiction in England, — the Scotch courts appointing some prcjperly qualified person, under whose super- intendence the work is directed to be executed. (.§) § 52. But whether the court will, or will not. interfere to en- force all such contracts where definite, it appears to be settled P^ --, that it will assume jurisdiction where we have the *two *- " -^circumstances, — first that the work to be done is defined, (o) Booth V. Pollard, 4 Y. & C. Ex. 61. (r) Eq. Jnr. § 728. (p) Pollard V. Clayton, 1 K. & J. 4()a. (s) Clark v. Glasgow Assurance Compa- 19) Mosely v Virgin, 3 Ves. 184. See ny, 1 31Queeii, 668. also Brace v. Welinert, Week. Rep. 1857- ISoS, 4-2.J, (M. K.) [16] There seems to be considerable doubt on this point. See Story's Eq. Jur. § 726, § 727. As to the specific performance of covenants to repair, see Rayner v. Stone, 2 Eden, 128; Hill v. Barclay, 16 Ves. 405. In Lucas v. Commerford, 10 Ves. 235, the court was of opinion that the contract, which was one to build, should not be enforced. But it appears that the agreement was, in every respect, too uncertain and undefined to be made the subject of a master's report. See note [2] to Lucas v. Commerford, 1 Ves. 235, (Sumner's edit.) Birchett v. Boiling, 5 Munf. 442, is an authority on this point. In that case, a contract to build a tavern, at the joint risk and expense, and for the joint benefit of the parties, was decreed to be specifically performed, at the instance of one of them, who had furnished the land to be built upon, and performed his part of the agreement, the others objecting, on the ground that a change of circumstances rendered the scheme uuadvisable. yniAT CONTKACTS AKE TERFORMED. 67 and secondly, that the phiintifF has a material interest in its execution, which cannot adequately be compensated for by dam- aijes. Thus the court enforced on a railway company an agree- ment to make and keep an archway through their railway to connect lands of the piaintilf, severed by tlie railway :[t) and in another case(w) it speciHcally carried out a similar agreement, although its terms were more general and difficult to execute. § 53. To the same pi-inciple we may perhaps refer a case(v) in which Sir John Leach compelled a defendant to alter the ele- vation of a house which had been erected in contravention of a covenant ; and another,(?6") in which Lord Eldou, though ex- pressing a difficulty in decreeing repairs to be done affirmatively, yet by means of an injunction, in fact granted performance of a covenant to keep a canal and arch in repair for the benefit of the lessee of a mill interested in them. § 54. The part-performance of a contract may give the court jurisdiction where it would not otherwise have it. Thus, where the plaintiiFhad sold lands to the defendants, they by the deed of sale covenanting forthwith to make a road and erect a market- house on the land, and they entered and made the road, but neglected to build the market-house. Vice Chancellor Wigram observed that the defendants having had the benefit of the con- tract in specie, the court would go any length that it could to compel them to perform their contract in specic.(a;) It is to be remarked that both in this case and in the one previously quo- ted of *Storer v. Great Western Railway Company(?/) p^.-,^-, the plaintiff" having parted with the land, had no oppor- '- ^ tunity of doing the work which the defendants had contracted to do, and so ascertaining the amount of damages sustained by their non-performance ]{z) and it seems that in no case will part-performance enable the court to intervene where it has (0 Storer v. Great Western Railway Com- Ha. 506. See also Sannderson v. Cocker- pany, 2 Y. & C. C. C. 48. nioulh and AVorkington Railway Company, (M) SauniJerson v. Cockermonth & Work- 11 Beav. 497 ; Rembroke v. Tliori)e, 3 Sw. ington Railway Com])any. 11 Beav. 497. 437, n. (r) Franklvn v. Tnlton, 5 iMad. 409. (y) 2 Y. & C. C. C. 48. (ic) Rane v. Newdigate. 10 Ves. 192. (z) Rcr Wood V. C, in South Wales Kail- (,r) I'rice V. Corporation of Rcuzaucc, 4 way Company v. AVytlics, 1 K. & J. 200. 68 FRY ON SrECTFIC I'ERFORMAXCE OF CONTRACTS. no jurisdiction in the original subject-matter of tiic con- tract, (a) fl7j § 55. Where the act alleged :i? part-iiorf'ormancc is one proper to be brought bcibre a jui-y and can be answered in damages, iion-pcrfornKUicc of the I'est of the contract does not constitute that fraud which is the origin of the court's jurisdiction in cases of pai't-performance in this respect, as well as when treated as an exception to the Statute of Frauds. (A) § 56. The rehitiou established by the contract of hiring and service is of so ])ersonal and confidential a character that it is evident such contracts cannot be specifically enforced l)y the court against an unwilling jnirty with any hope of ultimate and real success ; and accordingly the court now refuses to enter- tain jurisdiction in regard to them. § 57. In former times this seems to have been otherwise. In a case(c) decided by Lord Cowper and the house of lords, there was an agreement by which a skilled person had bound himself during his life as manager and overseer to a company engaged in the manufacture of brass, and the company had agreed to pay him a certain salary and 3.s. 6d., for every hundred weight of brass wire made by him or au}^ other person for them during his life : on a bill by the manager. Lord Cowper decreed the pay- r#.9Qi me'its according *to the articles for past services, and spe- cific performance of them for the future, by the plaintiiT's again repairing to the works and acting according to the articles, if the defendant should require the same. The appeal from {a) Kirk V. Bromley Uuion, 2 Phil. 640, {() Ball v. Coggs. 1 Bro. P. C 140. Tliis 648. case involves tlie validity of contracis of ser- (b) South Whales Railway Company v. vice for life; as to which see also Wallis t. Wythes, 1 K. & J. 186, and see infra, § 405 et Day, 2 M. & W. 273. seci- [17] In a very similar case, — where the city of New Haven had agreed to buy of the plaintiff certain lands, and as much of the water of Mill river as should be necessary to supply that city with pure water, for the consideration of $'50,000, and of the covenant to construct a costly dam, and a canal to con- vey, for the plaintiff's use, the surplus water of said river, — specific perform- ance was refused, upon the ground that he had never parted- with the posses- sion of the property, and consequently, that he had the means of complete redress at law. Whitney v. New Haven, 23 Conn. R. G24. WHAT CONTRACTS ARE PERFORMED. G9 this decree to the house of lords was by the plaintiff on a point of the construction of the agreement as to the S*. 6d. per ton, which resulted in a modification of the decree according to his contention. And so in another case (d) Lord Hardwickc spe- cifically enforced an agreement by the East India Company to employ a man as a packer. § 58. But the diffi 'ulty of carrying out such contracts in specie is now admitted l)y the court. Thus, in a recent case,(e) where the plaintitis had contracted, for a specified sum, to work the line of a railway company and to keep the engines and rolling stock in repair, the court, considering this to be an agreement for services, refused to enforce it. " We are asked," said Lord Justice Knight Bruce, {/) " to compel one person to employ against his will another as his confidential servant, for duties with respect to the due performance of which the utmost confidence is required. Let him be one of the best and most competent persons that ever lived, still, if the two do not agree, and good people do not always agree, enormous mischief may be done." § 59. So in a previous case (y) a grant having relation to an office of a personal and confidential character, was held to be in- capable of being specifically enforced; and in another instance, (Zj) where an indenture was held to constitute the relation of master and servant, and not of partner, Lord Chancellor Truro dis- solved an injunction which had been previously granted, re- straining the defendant from excluding the plaintiff from the management of the business. *§ 60. It is no objection in specific performance, that y^^^.n the subject-matter with which the contract deals was not L "^ J originally within the jurisdiction of the court, as the contract it- self may give the court jurisdiction in specific performance, just as it gives a court of law jurisdiction to award damages. The original jurisdiction in respect of the boundaries of our planta- tions in North America resided in the king and council ; but a contract respecting them having been entered into between ad- (r/) E.ist Iiuiia Compauy v. Vincent, 2 if) V. &2(). Atky. 8:5. ' (if) I'ickerlng v. Bishop of Ely, 2 i . & (e)' Jniinson V. Slirowsbiirv an<1 Binning- C. (J. C. "219. haiii Uailway (Junipuuy, 3 'De (i. M. & U. {!') stuoUcr v, Eiocklebauk, 3 M"N, & 0. 914. 250. 70 FRY ON SrECIFIC rERFORMANCE OF CONTRACTS. joining proprietors, was held by Lord Ilurdwicke to give the court jurisdiction ; and on the same principle, althongh the court has no jurisdiction in matrimonial canses, jet, where there has been an agreement or covenant, it may interfere to enforce the execution of a proper separation deed, or to restrain the breach of a covenant contained in \t.{k) § ()1. And so again contracts entered into al)road ma)', l)y the residence of the parties in this country, fall under the jurisdic- tion of equity and be s[)ecilically enforced ; thns, for instance, a marriage contract made in France was specifically execnted here, the parties to it having come to this country as refugees.(^) § 62. But where the court is called upon to exercise this juris- diction in respect to foreign contracts, the question is not only whether the contract is valid according to the law of the country in which it was entered into, but whether or not it is consistent with the law and policy of this countiy.(?w) It is further to be observed that the contract, if from its nature it falls within the fourth section of the Statute of Frauds, must satisfy the terms of that section, though, in the country where the contract was l-^ _, was made, it *might be valid without writing : for that ■^ section applies to the procedure, and not to the solemni- ties of the contract. (n) § 63. This jurisdiction is not confined to cases of personal con- tracts, but extends to those relating to real or immovable prop- erty, when the parties who have entered into it are resident within the jurisdiction of the court ; wquilas agit in ]^erso7iam. Therefore, where Sir Philip Carteret, the owner of the Island of Sark, had mortgaged it, and a bill was brought against him by the mortgagee for foreclosure, a plea put in l)y the defendant, that the island was not within the jurisdiction of chancery, was overruled. (o) [18] (?) Penn v. Lord Baltimore, 1 Vos. sen. («) Leronx v. Brown. 12 C- B. 801. 44-1. (o) Toller v. Carteret, 2 Vem. 49.5; Ar- (k) Wilson V. Wilson, 1 Ho. Lords, 538; glas.se v. Musclianii), 1 Voi-n, 75; Jackson 6. C. 14 Sim. 405 ; 5 Ho. Lords. 40. v. Pctrie, 10 Ves. 154 ; Lord Portarlington (/) Foubert v. Turst, 1 Bro. P. C. 129. v. Soulbv. 3 JNIy. & K. 104. 108 ; Story, Eq. (»!) Hoiie V. Hope, 26 L. J. Ch. 417, (L, Juris. I J43. J.J.) [18] It has been decided, in New York, that a court of equity may compel the specific performance of a contract to purchase land, though such contract ■WHAT CONTRACTS ARE PERFORMED. 71 § G4. It must be observed that the court will never lend its assistance to enforce the specific execution of contracts which are voluntar}', or where no consideration emanates from the party seeking performance, (^>) even though they may have the legal cont-ideration of a seal ; and this principle applies, whether the contract insisted on be in the form of an agreement, a covenant, or a settlement. (5') [19] § G5. Where a plaintiff had proceeded at law and recovered damages for breach of the contract, he cannot afterwards sue in equity for its specific performance.(r) [20] (p) Groves v. Groves, 3 Y. & J. 163; (r) Sainter v. Ferguson, 1 M"N. & G. 286. Houghton V. Lees, 1 Jui\ X. T 862, (.stuart, As to orders for tlie plaintill' to elect, see v. G. ;) Ord v. Johnston, id. 1063, (Stuart, Ambrose v. Xott, 2 Ha. 64i) ; Fenning v. v. C.) Humphrey. 4 Beav. 1 ; Gedye v. Duke of (f/) Jeffreys v. Jeffreys. Gr. & Ph. 138; Montrose. "Week Kep. 18.56-1857. 537, (Wood, Harvey v. Audland, 14" Sim. 531. See the V. G. ;) Setou Decrees, 492 et seq. older cases discussed in Mad. Gh. 413. was both made and to be performed, and the land lies within a foreign juris- diction, provided that the defendant has been duly served with process and subjected to the jurisdiction of the court. Cleveland v. Burnell, 25 Barb. 532. Newborn v. Bronson, 3 Kernan, N. Y. 587. [19] Voluntary agreements are not enforceable in equity. Shepherd v. Shepherd, 1 Md. Ch. Dec. 2-14. Valser v. Valser, 23 Miss. 378. But there is an important qualification to the rule : if the contract is actually executed, then a court of equity will enforce all the rights growing out of the contract against any body. Wyche v. Greene, 16 Geor. 49. As regards the weight which should be attached to the presence of a seal, the law is, perhaps, not quite uniform. In Livingston v. Tremper, 4 John. 416, it was said, by Van Ness, J., that a seal imports consideration, as much as if it were expressed in so many words. And this is undoubtedly the rule of the common law. Thus, writing, scaling, and delivery, are alone essential to the validity of a deed, and BO inquiry can be made as to the consideration. Plowd. 308. Viner's Abridg. tit. Nudum Pactum, A 7. Comyn's Dig. B. 2. It seems that the adequacy of the consideration of an agreement under seal, can only be im- peached upon the grounds of fraud or iUegality. Gwj'^ne v. Heaton, 1 Brown's Ch, 10. Chesterfield v. Janisen, 1 Atk. 352. Bardiston v. Lingoode, 2 id. 133. But, in the State of New York, the rule is different since the passage of the revised statutes, (2 R. S. 406 and 407.) The presence of a seal has become TciQrely presumptive evidence of adequate consideration. See the case of Tal- madge v. Wallis, 11 Wend. 106, whore the whole question is reviewed, [20] Neither can a defendant, after an action at law has been commenced for the breach of a contract, go into equity for a specific perfonnance of it 72 FKY ON SrECIFIC rEllFOKMANCE OF CONTKACTS. [*2G] *CIIAPTER II. OF CONTPtACTS WITH A PEXALTY. § 6G. From the principles stated in the hist chapter, it appears that where an agreement is substantially performed by the payment of a sum of money, the jurisdiction of law being adequate, equity will not interfere. Hence in cases where a clause for the payment of a })enal sum is added to an agree- ment, the question arises Avhether the contract will be satisfied by its payment, or whether it will not. In the former case, equity will not interfere ; in the latter, it may. § 67. The question always is, what is the agreement ? Is it that one certain thing shall be done, with a penalt}^ added to secure its performance, or is it that one of two things shall be done, namely, the performance of the act or the payment of the sum of money? If the foinier, the fact of the penalty l)eing annexed will not prevent equity from enforcing performance of the very thmg, and thus carrying out the intention of the par- ties -.{a) if the latter, the contract is satisfied by the payment of a sum of money, and there is no ground for equitable pro- cedure against the party having the election. [1] § ()8. The distinction before us is the same as that between a {a) Howard v. Hopkins, 3 Atky, 371 ; French v. Macale, 2 Dr. & W. 20!) ; Roper v. Bartholo- mew, 12 I'ri. 797. unless there are some particular equitable grounds to excuse and relieve against his breach of it, and entitling him, in equity, to the specific execution of it. Long V. Colston, 1 Hen. & Mun. 111. [I] The test, in these cases, by which to determine whether relief will, or will not, be granted in equity, is to consider whether compensation can be made or not. If it can be made, then equity will interfere ; if it cannot, equity will not interfere. Hackett v. Alcott, 1 Call, 533. Skinner v. Dayton, 2 John. Ch. 431. City Bank of Baltimore v. Smith, 3 Gill & John. 265. But the case must be such that the party can be fully and clearly indemnified, and placed in statu qiin. Skinner v. Dayton, 2 John. Ch. 431. S. P., Skinner v. White, 17 John. 357. CONTRACTS WITH A PEN^^TY. 73 penalty and liquidated damages, which arises at law on deeds or agreements, but in equity also on bonds. [2J *The povl distinction being cognizable in both courts in the former ^ case, is of itself no ground to support a bill in equity.('^) § 69. In deciding on this question, the court will look at the whole agreement, and will not be guided by the mere words in which the penal sum is expressed. Thus, where the word " penalty" is used, the court may treat the sum as liquidated damages, (c) and where the words "liquidated damages," as a penalty.(t/) Nor is it material that the contract may be alter- (6) Ranger v. Great Western Railway Com- (c) Jones v. Green, 3 Y. & J. 298. pany, 5 Ho. Lords, 73 {U) Cole v. Sims, 5 De G. M. & G. 1. [2] The legal operation of a penalty, properly so called, is not to create a forfeiture of the entire sum named, but only to cover the actual damages occa- sioned by the breach of contract ; and therefore, on payment of such dam- ages, or in the case of a bond, of the principal and interest actually due, the party who has incurred the penalty Avill be relieved or discharged from it. But in the case of what is termed liquidated damages, the whole of the precise sum named may be exacted of the party who is in default, and the court will not interfere to relieve him. Burr. Law Diet. The theory in courts of equity, in granting relief in cases of penalties, treats them as securities for the conditions of the contract — as a means of securing payment — and it is only on this ground that relief is granted. 1 Fonbl. Eq. B. 1, ch. 6, § 4, note (/i)> Peachy v. Duke of Somerset, Pre. Ch. 568. Skinner v. Dayton, 2 John, Ch. 535. It is in cases of this kind only,— that is, in the nature of a security, — that a court of equity will ever enforce a forfeiture. " It is admitted, indeed," says jNlr. Justice Story, " that where the condition, or forfeiture, is merely a security for the non-payment of money (such as the right of re-entry upon non-payment of rent), there, it is to be treated as a mere security, and in the nature of a penalty, and is accordingly relievable." Hill v. Barclay, 18 Ves. 58. Wadham v. Calcraft, 10 Ves. 68. Reynolds v. Smith, 19 Ves. 140. But if the forfeiture arises from the breach of any other covenant of a collateral nature, as for example, of a covenant to repair, there, although compensation might be ascertained, and made upon an issue quantum damnificatus, yet it has been held that courts of equity ought not to relieve, but should leave the parties to their remedy at law. Wadham v, Calcraft 10 Ves. 6S. Hill v. Barclay, 16 Ves. 403 S. C. 18 Ves. 59. Reynolds v. Pitt, 19 Ves. 140. Bracebridge v. Buckley, 2 Price's R. 200. In England it is held, that in all cases of forfeiture for the broach of any covenant, other than a covenant to pay rent, no relief ought to be granted, in equity, unless upon the ground of accident, mistake, fraud or surprise, although the breach is capable of a just PKY — 6 74 FRY ON SPECIFIC PEKFOllMANCE OF CONTRACTS. liiitive in its form, if the court can clearly see that it is essentially an agreement to do one of the alternatives : so that where there "^'as an agreement to renew a certain lease, with an addition of three years to the original term, or to answer the want thereof in damages, the court decreed specific performance of the lease, the second alternative only expressing what the law would im- l)ly.(e) Each case must therefore be considered on its own terms; but the decided cases furnish some guide. [oj (') Finch V. E. of Salisb., Finch, 212. compensation. Eaton v. Lyon, 3 Ves. 692. Bracebridge v. Buckley, 2 Price's R. 200. Hill V. Barclay, IG Ves. 403. Rolf v. Harris, 2 Price's R. 206. White V. Warner, 2 Meriv. 459. Eden, Injunc. ch. 2, p. 22. In New York, it has been held that relief will not be granted for a breach of a condition contained in a lease, unless the forfeiture was incurred through accident or mistake, for which compensation can be made to the other partj' ; or where the foi-feiture is in the nature of a mere securit)^ for the payment of money. Baxter v. Lan- sing, 7 Paige, 350. The rule, however, was formerly different. Popham v. Bampfield, 1 Ycrn. 33. Haywards v. Angell, 1 Vern. 222. Northcote v. Dake, Ambler's R. 513. Sanders v. Pope, 12 Ves. 289. Though the distinc- tion is, of itself, no ground to support a bill in chancery, yet equity will not refuse to compel performance of a contract in the form of a penal bond, on the ground that the remedy is at law. Telfair v. Telfair, 2 Dessau. 271. [3] Neither will courts of equity suffer "their jurisdiction to be evaded, merely by the fact that the parties have called a sum damages, which is, in fact and in intent, a penalty ; or because they have designedly used language and inserted provisions, which are in their nature penal, and yet have endeav- ored to cover up their objects under other disguises. The principal difficulty in cases of this sort, is to ascertain when the sum stated is, in fact, designed to be in nomine jxzna, and when it is properly designed as liquidated dam- ages." Story's Eq. Jur. § 1318. See AVatts v. Shepherd, 2 Ala. 425. It is said in Owens v. Hodges, 1 McMuUan, 106, that where a party to a contract stip- ulates to perform one or more things, and, in the event of the non-performance of any or all of them, agrees to pay a certain sum, the sum agreed to be paid will be regarded as a penalty, and not as liquidated damages. Where a large sum is agreed to be paid upon the non-paj'ment of a smaller, or the non-per- formance of a duty, the damages resulting from which may be ascertained with reasonable certainty, and which is much less than the sum expressed, that sum will be a penalty. Watts v. Shepherd, 2 Ala. 425. Jl. engaged by bond "in the full and just sum of §500, liquidated damages," to convey to B. 3000 feet of land, and afterwards, on JS's demand, executed a deed to him, conveying a CONTRACTS WITH A PENALTY. 75 § 70. Where the amount of the penalty is smtill, as compared with the value of the subject of the agreement, it has been con- sidered a reason for treating the sum reserved as a mere penalty, and not in the nature of an alternative agreement ;(/) and the court has no difficulty in decreeing specitic performance to an amount greater than that of the penalty. § 71. Thus, where a man, being very uncertain Avhat estate he should derive from his father, entered into a bond in ,£5000. on the marriage of his daughter, to settle one-third of such property, and the agreement so to settle Avas recited in the condition, it was specitically performed in full and not up to £5000 oD\y;{ff) (/) Cliilliner v. Chilliner, 2 Ves. seu. 528. (g) Hobson v. Trevor, 2 P. Wins. 191. lot of land described by metes and bounds. Ji. accepted the deed, and he and ji. agreed that, if it was not right, it should be made right. It was afterward, found, upon a survey of the land conveyed, that it contained only 2513 feets Held, in a suit by B. on the bond, that as he had accepted said deed in part performance of the bond, the sum of $500, was not to be regarded as liquidated damages, but that he was entitled to recover only the actual damages which he had sustained. Shute v. Taylor, 5 Mete. CI. yf. agreed to do a piece of work for S'758, and gave his bond with sureties, to secure the performance of the woi-k, in the sum of §1570, "not as a penalty but as liquidated damages." Held, that such sum was to be considered as a penalty, and not as liquidated damages. Moore v. Platte Countj^, 8 ]\Iis. 467. "Where it was agreed, by the terms of the contract, among other things, that one party should give to the other, on a specified day, a promissory note for §'200, and on a subsequent day, his bond and mortgage for #'2100, and that if either party should fail to per- form the contract according to the instrument, he should pay to the other ^500 as liquidated damages, it was held that the parties gave the wrong name to this sum, and that it must be regarded as a penalty and not as liquidated damages. Lampman v. Cochran, IG N. Y. (2 Smith,) 275. See Foley v. Mc- Keegan, 4 Iowa, 1. If, hy the agreement, it is doubtful whether the parties intended that the sum si^ecified should be a penalty or liquidated damages, courts incline to treat the contract as creating a penalty to cover the damages actually sustained by one breach, and not as liquidated damages. Foley v, McKeogan, 4 Iowa, 1, In Cowan v. Gerrish, 3 Shep. 273, and in Durst v. Swift, 11 Texas, 273, it is said that the lawful intention of the parties, in a case free from fraud, where it can be ascertained, must have a decisive influ- ence in determining whether the sum stated in the instrument is to be re- garded as a penalty. But, on the other hand, it is held, in Jaquith v. Hudsonj 5 Mich, 123, that the real question, in this class of cases, is not what the pait 76 FRY ON SPECIFIC PERFORMANCE OF CONTRACTS r*9Qi ^^^^ where two persons *cnterecl into articles for the sale '- -^ of an estate, with a proviso that, if either side should break the agreement, he should pay XlUO to the other, and the defendant, by his answer, insisted that it was the intention of both parties that, upon either paying £100, the agreement should be absolutely void. Lord Hardwicke nevertheless decreed specific performance of the agreement to sell.(/^) In another case,(z) the condition recited an agreement for a settlement com- prising a sum of money and also real estate : the penalty was double this sum of money, but had no relation to the real es- tate ; the court granted specific performance of the agreement (/i) Howard v. Hopkins, 2 Atky. 371. (0 Prebblo v. Bogliurst. 1 Sw. 309. ties intended, but whether the sum is in the nature of a penaltj' or of hquidated damages — that this is to be determined by the magnitude of the sum in con- nection with the subject-matter. But that, wliere from the nature of the contract, the subject-matter, &c., the actual damages from a breach are uncer- tain, or difficult to ascertain, under these circumstances, the parties are per- mitted to estimate for themselves, and provide in their contract for the amount to be paid on a breach. [Per Christiancy, J.] Perhaps, however, the true doctrine was laid down in Cotheal v. Talmadge, 5 Seld. [N. Y.] 557. Here it was said that where the damages resulting from the breach of an agreement would be very uncertain, and evidence of their amount very difficult to obtain, and the fair import of the agreement is that the amount named in it is speci- fied and agreed on to save expense, and avoid the difficulty of proving the actual damage, and is not out of proportion to the probable actual damage, it will be regarded as liquidated damages. Thus, in Nobles v. Bates, 7 Co wen, 307, a decision in accordance with the English case of Sainter v. Ferguson, 7 0. B. 715, where N. and B. dissolved their partnership in business, and their articles of dissolution declared one object of the dissolution to be, that JV. should relinquish the trade — that B. should pay him $3000, in various installments, the last being $750 — and that if N. should set up the business within twenty miles of their former place of business, he should forfeit that installment; held, that the installment of $750 must be considered as liquidated dam- ages ; and, as such, to be forfeited by a breach of the condition of N., Suther- land, J., in delivering the opinion of the court, said, " The parties have fixed the value of that item in the consideration at $750. In the nature of the case, the precise injury which the defendant would sustain from the establish- ment or continuance of the same kind of business could not be accurately ascertained. It must depend upon a variety of circumstances; upon the cap- ital which the party might invest ; the industry which he might exert ; and CONTRACTS WITH A PENALTY. 77 eml)odicd in the condition. And where a father, in considera- tion of his daughters giving up a part of their interest in the property agreed to make up their incomes arising out of it to X200 a year, and entered into a bond for the payment of such sum as might be needful for that purpose, and the I)ond recited the agreement, the court took this as evidence of the agreement, and accordingly granted relief on the foot of it beyond the bond ]{k) and in a case which went to the house of lords, an agreement to leave property, contained in the condition of a (A-) Jeudwiuo v. Agate, 3 Sim. 141. the patronage from these, and other causes, he might be able to attract." In Bagley v. Petldie, IG N. Y. [2 Smith,] 4G9, a bond declared the obUgors to be bound in the sum of S'3000 as liquidated damages, and not by way of penalty, for the performance of the covenants of a written agreement. One of the cove- nants was, not to reveal the secrets of a trade in which the principal obligor was to be employed. It was held, that the amount of damages to result from a breach of this stipulation of the agreement was so uncertain and conjectural, that the sum named in the bond should be considered as liquidated damages, and not a penalty, although the damages of the actual breach were certain. The following cases were also held to be those of liquidated damages : A party agreed to convey a tract of land for $1200, a part of which was to be paid down, and was to be received as part of the conside- ration money, if the purchase were completed, or of the damage, if the contract were not performed ; and he also covenanted, if he did not con- form to his agreement, to pay !^'500, as a forfeiture. Chamberlain v. Bagley, 11 N. H. 234. J/. covenanted with J3. to procure and deliver to him, within a limited time, the certificate of third persons to a certain effect, and stipu- lated that if he failed to do so, he would pay him §'500 liquidated damages. Hamilton v. Overton, Blackf. 200. Where a party, in consideration of having conveyed to him fourteen city lots for only §'21,000, covenanted that he would by a certain day, erect two brick houses, or in default thereof pay to the grantor, on demand, the sum of §4000. Where the plaintiffs gave §3000 for the patronage and good will of a newspaper, and §500 for the type, &c., and the vendors covenanted that they would not publish a rival paper, &c., and the measure of damages was fixed at §3000. Dakin v. Williams, 22 Wend. 201. Where the parties contract mutually to do certain acts at a fixed time, and " respectively bind themselves each to the other in the sum of §500, for the faithful performance of the several agreements herein entered into,'' the sum is not to be considered as a penalty. Gammon v. Howe, 2 Shep. 250. 78 FRY ON SPECIFIC PERFORMANCE OF CONTRACTS. bond, was hold not to be satisfied l)y tlic penalty, but was spe- cifically performed. (/) § 72. The fact that the benefit of the agreement Avould re- sult to one person or flow in one channel, and the benefit of the sum, if paid, in another, is a strong circumstance against consid- ering the agreement as alternative in its nature : thus, whore, on a marriage, the husband's father gave a bond for the pay- ment of X()(JO to the wife's father, his executors or administra- tors, in the penalty of i;l200 if he did not convey certain lands r*9Qi f^^^* tlie benefit of the husband *and wife and their issue, Lord Ilardwicke held that the obligor was not at liberty to pay the £600, or settle the lands, at his election, but com- pelled the specific performance of the agreement to settle, — grounding himself in part on this, that the £600 would not have gone to the benefit of the husband and wife and their issue, but of the wife's father and his representatives.(7») § 73. Where the sum reserved is single, and the act stipulated against is in its nature continuing or recurring, as, for instance, particular modes of cultivating a farm, the sum will be consid- ered as a penalty ;(n) and so where the plaintiff and defendant were partners, but it was agreed that the plaintif!' should alone conduct the business, and the defendant should have the use of a particular room in the house whenever he desired, and to se- cure this, the plaintiff gave the defendant a bond in £500, this was held to be a security, and accordingly the court restrained a suit for the penalty, and granted an issue qiianlum damniji' catus to try the real damage. (o) § 74. Where, in a lease, the sum to be paid for the infraction of any stipulation is an increased rent during the whole term, the court looks on it as an alternative rent in the nature of liquidated damages. This was decided by the house of lords in the case of Rolfe v. Peterson, (^) where it was held — reversing a decision of Lord Camden — that, in an action brought for re- (/) Logan V. Wicnholt, 1 CI. & Fin. Gil ; S. («) French v. Macale, 2 Dr. & W. 209. C. 7 Bli. N. S. 1. See also Butler v. Powis, 2 (o) Slonian v. AValter. 1 Bro. C. C. 41S. Coll. C C. 1-56. ip) 2 Bro. P. C. 436. {m) Cliilliner V. Cliillincr. 2 Ves. sen. 528; Roper V. Bartholomew, 12 Pii. 797. CONTRACTS WITH A PENALTY. 79 coverinij a sum thus reserved, a court of equity ought not to in- terpose, or give any relief. So where a lessee covenanted not to plough any land, and if he did, then to pay twenty shillings per acre per annum, the court refused to enjoin him from ploughing the land.(/^) Again, where a lease was entered into subject to a rent payable, *and to certain yearly payments to be made r^o^^ by the lessee in case he should not manage the farm as *- -■ specified in his lease, and also in (!ase, in the last three years of his term, he should sow more than seventy acres of clover in one year, to an additional rent of £10 per annum for every acre above the seventy' acres, the additional rents were held to be in the nature of liquidated damages. (r) And Avhere there was a covenant against erecting a weir under the penalty of double the yearly rent, thereinafter reserved, to be recovered by distress, this, notwithstanding that the sum was spoken of as a penalty, was held to be liquidated damages ; the power of distress is a strong circumstance in that direction. (.s) § 75. But where, in addition to the increased rent, there is a stipulation that the act provided against shall be a forfeiture of the covenantor's interest, the sum is held to be a penalty, and not liquidated damages. (^) § 76. Where the agreement would be unreasonable unless it gives an option to the person stipulating to pay the sum, this will be a strong circumstance for treating that as liquidated damages, and the agreement as alternative. So Avhere a lady, administratrix of her husband, covenanted, under a penalty of X70, to renew a sub-lease as often as she obtained a renewal of the head-lease, and it appeared that the tines on the head-lease were raised on renewal, according to the then value of the prop- erty, so as render her covenant unreasonable except upon the construction of its giving her an option, the house of lords treated the sum as liquidated damages.(«) {q) Woodward v. Gyles, 2 Vern. 119. P. C. 395, and Webb v Clarke, 1 Fonbl. Eq. (r) Jones V. Green. 3 Y. & J. 298. 154, appear at variance with the rule as (s) Gerrard v. OReiUy, 3 Dr. & W. 414 ; now established. French v. Macale, 2 Dr. & W 269. The {t) Freuch v. Macale, 2 Dr. & W. 2G9. old cases of City of London v. Pugh, 4 Bro. (u) Magram v. Archbold, 1 Dow. 107. 80 FRY ON SPECIFIC PERFORM ANCE OF CONTRACTS. § 77. If there arc sums matlc payable in case certain *acts P^o.iarc not done, and tlie perforniance is over and al)ove this secured l)y a penalty, this is a reason for holding the first sums to be liquidated damages ]{v) but Lord Ilard- "wicke appears not to have thought this a conclusive argument, and in one case, notwithstanding this circumstance, granted specific performance of the agreement. § 78. From the nature of the case, specific performance of stipulations protected by a penal sum will often be b^^ way of injunction ; and the court will not, on an interlocutory applica- tion to dissolve an injunction, decide the question whether the sum is a penalty or liquidated damages, but will only consider whether there is a jpz-ma facie case for an injunction, and whether more mischief will be done by granting than by with- holding it.{x) (v) Ranger v. Great Western Railway Com- (,w) Chilliner v. ChilUner, 2 Ves. sen. 528. pany, 5 Ho. Lords, 73. (.r) Cole v. Sims, 5 De G. M. & G. 1. THE GENERAL RULE. 81 PART II. OF PARTIES TO THE SUIT. [*32] *C II AFTER I. OF THE GENERAL RULE. § 79. The general rule is that the parties to the contract ought alone to be parties to the suit. The contract is what constitutes the rights and regulates the liabilities of the parties : in a stranger there is no liability; and against him, therefore, there is no more right to enforce specific performance in equity than to recover damages at law.(a) It makes no difference, that the stranger to the contract may be a necessary party to the con- veyance, as a judgment creditor, or mortgagee, or a person in- terested in the equity of redemption. (<^) And so where a steward was made a party as being receiver of the rent, and having the title deeds in his possession, the bill was dismissed as against him.(c) And in a suit to enforce a contract made by a mort- gagee, under a power of sale, the mortgagor is not a necessary party.(cZ) [1] (a) Mole V. Smith, Jac. 490; Tasker v. v. Dunconibe, 7 Ha. 24, (a purchaser's bill,) Small, 3 My. & Cr. 63, 69 ; Wood v. Wliite, and Lord Leigh v. Lord Ashburton, 11 4 My. & Cr. 4(50, 483 ; Humphreys v. Hoi- Beav. 470, (a vendor's bill.) from wliich it lis, Jac. 73 ; Patterson v. Long, 5 Beav. appears that judgment creditors, though 18H ; Peacock v. Penson, 11 Beav. 355. not necessary, may be proper parties. (6) Tasker v. Small, ubi sup., overruling (<) aiacnamara v. Williams, 6 Ves. 143. S. C. 6 Sim. 625, 636; cf. Sober v. Kemp, (rl) Corder v. Morgan, 18 Ves. 344: Ford 6 Ha. 155, {a mixed case of specific per- v. Heely, (Stuart V. C.) 3 Jur. N. S. 1116. formance and foreclosure.) See also Petre [1] All persons materially interested in the subject of the suit, ought to be made parties either as plaintiff or defendant, in order to prevent a multiplici- ty of suits, and that there may be a complete and final decree between the par- ties interested. And this rule is restricted to parties whose interests are involved in the issue, and to be affected by the decree. And the relief granted will always be so modified as not to affiect the interests of others. Mechan- 82 FRY ON SrECIFIC PERFORMANCE OF CONTRACTS. *§ 80. The principle now before us was strongly illiis- '- -' tratcd by the case of Ilobertson v. The Great Western Railway Coini)any.(e) The plaintiff had afi!;rced to sell to the defendants a piece of land, and to buy up the right then vested in his tenant ; the defendants having entered before payment of (e) 1 liiiil. C. 459; S. C. 10 Sim. ."514. ics' Bank v. Seyton, 1 Pet. 299. Hussey v. Dole, 24 Maine, 20. McConnell V. McConnell, 11 Verm. 290. Noycs v. Sawyer, 3 Verm. 160. Crocker v. llio-oings, 7 Conn. 342. New London Bank v. Lee, 11 Conn. 112. Hawley v. Cramer, 4 Cow. 717. Oliver v. Palmer, 11 Gill. & John. 47G. Clark v. Long, 4 Rand. 451. Vaum v. Ilaggett, 3 Dev. & Bat. 31. Frazer v. Legare, 1 Bailey's Ch. 389. Lucas v. Bank of Darien, 2 Stew. 280. Park v. Balentine, 6 Blackf. 223. Caldwell v. Taggart, 4 Pet. 190. A person for whose benefit an ao^reement is made, though not a party to such agreement, may maintain a suit in chancery for a specific performance. In a suit to set aside a judgment in the name of a sheriif upon a replevin bond, the sheriff should be made a party, though he has no personal interest in the suit. Campbell v. AVeston, 3 Pai<^e, 124. In Michigan, where an officer has an execution in his hands, still in force, he is a necessary party to a bill which seeks to restrain proceed- jno'S on it. Bumpee v. Smith, Walk. Ch. 327. In Alabama and Illinois, the rule is the reverse. Shrader v. Walker, 8 Ala. 244. Lackay v. Curtis, 6 Ired. Ch. 199. Where a person is interested in the matter of a bill as executor, and also as devisee, lie should be made a party in both capacities ; and it is not sufBcient to make him a party as executor, and to call upon him to answer as such. Mayo v. Tompkins, G IMumf. 520. A partner of a complainant and ioint obligor on notes given in the course of various mei'cantile transactions, which the bill is brought to settle, must be made a party to the bill. Dozier V. Edwards, 3 Litt. 67. Where it appeared from the bill that a party defend- ant had had an interest in the subject-matter, and it did not appear clearly that he had parted with all that interest, an exception to his being made a party taken under a general demurrer to the bill, was held not to be sustainable. Craire v. Deming, 7 Conn. 387. And where, in the progress of a suit, a third party is found to be interested, he should be made a party. Carman v. Wat- son, 1 How. Miss. 334. Where to grant the prayer of a bill in equity will affect the duties of receivers of a corporation, they should be made parties. Smith v. Trenton & Delaware Falls Co., Green's Ch. 505. And in a suit a"-ainst the trustees of an incorporated religious society, to prevent them from ejecting the clergyman from the temporalities and from the pulpit, it seems the church corporation should be made a party. Lawyer v. Cipperly, 7 Paige, 281. As to who must not be made parties, it may be .said, that a person with no interest in the cause, who might be examined as a witness, cannot be made THE GENERAL RULE. 83 the piirchase-monoy, thoy wore served with notices not to tres- pass on the hind, l>oth by the plaintiff and his tenant. Theplain- tiffthen brought his bill for a specific performance and to restrain the trespass, to which the defendants demurred, on the ground that the tenant was not a party; the vice-chancellor of England allowed the demurrer, considering that, two persons beinc af- fected by the injury, the court must have them both before it ; a party. Reeves v. Adams, 2 Dev. Ch. 192. And a person liaving merely a contingent interest in the suit, cannot be made a party litigant. Reed v. Van- dcrheyden, 5 Cow. 719. Baker v. Rowan, 2 Stew. & Port. 317. Barbour v. "VVhitlock, 4 Monr. 180. And where a party commenced a suit as one of the next of kin of a decedent, and afterwards became disinterested in conse- quence of the birth of a posthumous child, it was held that he could not appeal from the decree in the cause. lb. As to who need not be made par- ties, it has been held that Mhere a bill contains an allegation that a person is out of the state, such absent person need not be made a party. Spivey v. Jenkins, 1 Ired. Ch. 120. But see Russell v. Clark, 7 Cranch, 09. On account of the limited and peculiar jurisdiction of the United States courts, if an equity cause ma}^ be proceeded in to a tinal decree between the parties to it, with- out making others parties, who would generally be considered necessary parties, they need not be made parties where the process of the court cannot reach them, or where they are citizens of another state. Mallow v. Hinde, 12 Wheat. 193. Although if a final decree, between the litigating parties, -will necessaiily affect the right of those who are absent, the peculiarity of the jurisdiction of the court will not authorize the dispensing with them. lb. But, it seems that the court might, in the case of an injunction bill, retain jurisdiction of the parties regularly before it, until the plaintiffs could have an opportunity to contest the claims of the other parties, in a competent tribunal ; and if it is there made to appear by the judgment of such tribunal that the complainants are entitled to the interest claimed by such other parties, the court may proceed to a final decree. lb. Where a person cannot, by the laws of the United States, be made a party to a bill, on account of his resi- dence in another state, he need not be made a party to such bill, though, if Avithin the jurisdiction of the court, he would be a necessary party. Joy v. Wirtz, 1 W. C. R. 517. Where a decree, in relation to the subject-matter of litigation, can be made without a person having his interest in any wa}' con- cluded by the decree, he is not an essential party. Among this class of cases, are suits brought by part of h privateer's crew for prize money ; suits by cred- itors seeking an account of their deceased debtor's estate; legatees' suits against executors ; and actions brought by a few members of a society for the benefit of all. Story v. Livingston, 13 Pet. 359. 84 FRY ON SrECIFIC PERFORMANCE OF CONTRACTS. but the (lomuiTcr was overruled by the lord chaucellor, on the ground that the object of the suit was a specific porformaiice, and that the company might be restrained from entering with- out payment of the pui-chase-money, whether that entry did or did not affect the tenant. § 81. By the general principles of the court, parties having adverse or inconsistent rights in the subject-matter of the suit cannot be joined asplaintitfs ;(/) nor can a person who has no interest be joined as plaintiff with one who has.(^) [2] The im- portance of the doctrine of misjoinder is now, however, dimin- ished by the 49th section of the act to amend the practice of the (/■) Full.im V. McCarthy, 1 ITo. Lords, King of Spain v. Machado, 4 Russ. 240. 703; Padwick v. Piatt, 11 B.-av. 503. See also Pcarcc v. VVatkins, 9 Ha. 315. (^) S. C. and per Lord Lyudhurst, iu [2] Parties having conflicting interests in the subject of litigation should not he joined as plaintiffs in the suit ; and in a suit by the husband to set aside a conveyance in trust, for the use of his wife and her children, the wife should be made defendant. Grant v. Schoonhoven, 9 Paige, 225. But where all persons have the same interest, they should be placed on the same side of the suit. If any refuse to appear as plaintiffs, they may be made defendants, their rufusal be- ing stated in the bill. Contee v. Dawson, 2 Bland, 264. Payson v. Owen, 3 Des. 31. Cook V. Hadley, Cooke, 465. Morse v. Hovey, 9 Paige, 197. A refusal to be joined as co-complainants was inferred, where the assignees of a party who had become insolvent, were made defendants in a bill of revivor, putting in their an- swer as such and making no objections to that character. Osgood v. Franklin, 2 John. Ch. 1. A mis-joinder of complainants seems to be an error fatal to the validity of a bill. " Itis well settled," says Vice Chancellor McCoun, in Clayson V. Lawrence, 3 Edw. Ch. 53, " to be a sufficient ground for dismissing a'bill, that a person is joined as co-complainant, who has no interest in the matters of the suit, and no right to sue ; and the objection may be taken by demurrer or raised by plea, as the case may be." Clarkson v. De Peyster, 3 Paige, 337. Bowie V. Minter, 2 Ala. 406. But it is held, in Bugbee v. Sargent, 23 ^Nlaine, 269, that the mis-joinder of parties defendant is not a sufficient cause for the dismissal of a bill, as it respects other parties than those improperly joined. But a non-joinder of proper parties will not oust the court of its jurisdiction. Wormley v. Wormley, 8 Wheat. 421. Milligan v. Milledge, 3 Cranch, 220. Nash v. Smith, 6 Conn. 421. Singleton v. Gayle, 8 Porter, 270. Although, in some cases, a bill may be dismissed without prejudice, and without precluding the right of the complainants to bring a new bill in amended form. Mims v. Mims, 3 J. J. Marsh. 103. Rowland v. Garman, 1 J. J. Marsh. 76. Barry v. THE GENERAL RULE. 85 Court of Chance^y.(/^) In ^ome cases, persons cliiiming ad- versely may be made defendants. (2) § 82. A sub-purchaser, or person claiming an interest by purchase from the purchaser, is not generally a proper party to a bill. Therefore, in a casc(/c) before the *vice-chanccllor r^o ii of England, where a purchaser undersold, and the bill ^ was bronght by the vendor against both purchaser aud sub- purchaser, it was dismissed as against the latter, though specific performance was decreed against the original contractor; and this was affirmed by Lord Chancellor Lyndhurst, after two argu- {h) 15 & 16 Vict. c. 86. (fr) Ciitts v. Thodv. 1 Coll. C. C. 223 ; Anou. (i) See post, 5 96. V. WtUlbrd, 4 Russ. 372. Rogers, 2 Bibb. 314. The proper course, M'hcre there is a want of parties, is to order the case to stand over, to enable the plaintiff to join the proper par- ties. But, though the want of necessaiy parties to a bill is not ground for dismissal in the first instance, yet, if the complainant neglects or refuses to make the necessary parties, after objection made, the bill will be dismissed. Singleton v. Gayle, 8 Porter, 270. Greenleaf v. Green, 1 Pet. 138. Thus, in Thompson v. Clay, 1 J. J. Marsh, 413, where the circuit court dismissed a bill absolutely, where some of the necessary parties were not before the court ; on error to the court of appeals, it was held, that the cause should be remanded, the complainant to have leave to bring in the proper parties, and then, that such a decree as might be just be rendered; but if the complainant failed to make the necessary parties, );hat the bill should be dismissed without prejudice. "Where a defandant, who is a necessary party to a bill, refuses to appear, and the court has no power to compel him to appear, the bill will be dismissed on motion of the co-defendants. Picynet v. Swan, 5 Mason, 561. Where the parties in interest are so numerous as to render it inconvenient, if not imprac- ticable, to make them all defendants, without great delay and expense, and justice can be done between the parties before the court without affecting the interests of the others, the court will proceed to decree, notwithstanding the want of parties. Boisgerard v. Wall, 1 S. & M. Ch. 404. And the court will generally dispense with a proper party, provided the cause be stated in the bill. Breese, 124. The proper time for taking an objection for want of parties, is upon opening the pleadings, and before the merits are discussed. Jones v. Jones, 3 Atk. 111. Darwent v. Walton, 2 Atk. 510. Mechanic's Bank v. Seyton, 1 Pet. 399. Story v. Livingston, 13 Pet. 359. But it frequently happens after a case has been gone into and thoroughl}^ heard, the court has felt itself compelled to let it stand over for the purpose of amendment. Jones v. Jones, 3 Atk. 111. SG FRY ON SrECIFIC PERFORMANCE OF CONTRACTS. nients before him : iiiid the same doctrine has recently been stated by Lord Justice Tiiriicr.(/) § 83. A case(w?) before Lord Justice Knight Bruce, when a vice-chancellor, requires to be stated, as it ai)pears to present a distinction that is to be observed. There A. had contracted to purcliase an estate from B., having previously agreed with C. to sell the estate to him, and a contract to that eHect was after- wards entered into between A. and C. A. and C. subsequently brought a bill for performance against B., and it was held that they were l)oth proper parties. Here it will be observed that there was an agreement, under which C. claimed an interest, prior to the contract with B., and both might perhaps be. in some sense, treated as parties to the contract. The vice-chan- cellor considered that Tasker V. Small, (n) had little or noappli- (!) Chadwick v. Maden, 9 Ha. 188. (/») Kclthnrpe v. Holgate, 1 Coll. C. C. 203. (/!) 3 M)'. & Cr. 63, auto, § 79. Darwent v. Walton, 2 Atk. 510. Felch v. Hooper, 20 Maine, 159. Mechan- ics' Bank v. Seyton, 1 Pet. 29'J. Carmon v. Norton, 14 Yerm. 178. Woods T. Scott, 14 Verm. 578. The objection for want of parties ought to proceed from the defendant, for it has been decided that the coniphiinant, bringing his cause to a hearing with- out proper parties, cannot put it off without the consent of the defendant. Innes v. Jackson, 16 Ves. 35G. Cases of exception may occur; where, for instance, the complainant was not aware of the existence of persons whose claims could touch the interests of those who were on the record ; but that ought to be clearly established. And the comj^lainant ought to apply as soon as he has obtained that knowledge. lb. An objection to the hearing, for want of a particular part}', may be obviated by the complainant's waiving the relief to which he is entitled against such party. Pawlet v. Bishop of Lincoln, 2 Atk. 296. And where the evident consequence of the establishment of the rights asserted by the bill, might be the giving to the complainant a claim against other persons who are not par- ties to the suit, the complainant, by waiving that claim, may avoid the neces- sity of making those persons parties. This, however, cannot be done to the prejudice of others. Mit. PI. 146. Barb. Ch. Pr. vol. 1, Pt. 1 ch. 11, p. 329. Where there is an omission of projier parties in a bill, if neither party raises the objection, it is competent for the court to go on and settle the rights of the parties before it, without prejudice to those who are not parties. Lorillard v. Coster, 5 Paige, 172. THE GENERAL RULE. 87 cation to the case before him,(o) and appears to have rested his decision on the ground that both the plaintiffs had, at the in- stitution of the suit, an interest in the subject-matter of it.(jD) And it has l)een held that if A. contract to purchase from B., and A. then contract with C. that B. shall convey to C, and B. have notice thereof, A. cannot enforce the contract against B. without joining C. as a party.(g) § 84. The cases in which persons claiming derivative interest from the vendor are made parties, will be subsequently con- sidered, (?•) § 85. To the general rule as above laid down it will be *found that many exceptions arise : some of these will p^okt be noticed in the subsequent chapters. But there are *- -' other exceptions, or apparent exceptions to the strict rule, which may well be stated here. § 86. One case where the parties to the original contract are not those to the suit, is where there has been a novation or new contract substituted for the original one by the intervention of a new person, in which case the party in wdiose place the new person is introduced is no longer a party to the contract, and therefore ceases to be a proper party to the suit, which must be carried on between the parties to the new contract. Thus, where A. agrees to sell to B., and before completion, B. contracts to sell to C, and A. deals with C. as the purchaser, this may amount to a new contract ; and even where it does not strictly do so, B. may be an unnecessary party to the suit.(s) And so, again, where a railway company had entered into an arrange- ment with a landowner, and during the proceedings before par- liament an agreement was entered into between that company and a rival company for referring the two bills to certain persons, and that the successful company should take to all the engagements of the other, and, in accordance with the award, the company which had contracted with the landowner withdrew his bill, it (0) 1 Coll. C. C. 211. (5) Holden v. Hayn, 1 Mer. 47 ; Hall v. (P) P. 218. Laver, 3 V. & C. Ex. 191 ; Shaw v. Fisher, (y) Aiion. V. Walford, 4 Russ. 372. 5 De G. M. & G. 596. (r) See § 135etseq. 88 FRY ON SPECIFIC PERFORMANCE OF CONTRACTS. was liekl that the landowner could enforce the agreement against the other company, who had thus adopted it.{i) § 87. The 32nd Hen. VIII., c. 34, which gives the reversion- ers the benefit of covenants entered into with their prede- cessors in title, authorizes, it seems, a suit in equity for the specific performance of the covenant. As at law,(«) so in equity, , „ -, the statute jjives the benefit to the successive *revcrsion- [361 *- -' ers only as they come into possession of the estate ; but when thus entitled, they have a right to the performance of the covenant modo et forma, irrespectively of the damage which may accrue from its breach.(v) § 88. The reversioner entitled in remainder and not in pos- session may, however, have a right to enforce the covenant; but this right is not simply to the performance of it modo et forma, but depends on his showing that he would, as reversioner, sus- tain some material damage by reason of its breach.(w;) This follows the analogy of law, where the reversioner, to enable him to sue as such, must show some special damage ;(cc) the doctrine in both courts, seeming to depend on the nature of the plaintiff's interest in the estate diminishing his interest in the breach of the covenant, and the principle expressed by the maxim de minimis non curat lex. § 89. In cases of contracts under powers, the question some- times arises, whether a contract entered into by the donee of the power can be enforced by or against the remainderman, the cases in which he can sue or be sued being, of course, co-exten- sive. The rule by which this question is decided is that the contract is binding in those cases, and those cases only, in which it might have been enforced against the donee of the power him- self, independently of any conduct on his part.(?/) The grounds on which part-performance by a tenant for life will not bind the (0 Stanley V. Chester anrlBirkenliearlRiiil- Baxter v. Taylor, 4 B. & Ad. 72; Mumford way Company, 9 Sim. 264 ; 3 My. and Cr. 773. v. Oxford Railway Company, 25 L. J. Ex. See also post. § 6S4 et seq. 2C5; Simpson v. Savage, 1 C B. N. S. 349. (u) Isherwood v. Oldknow, 3 M & S. 382. (y) Morgan v. Millman. 10 Ha. 279; S C. (I') Johnst. V. Hall. 2 K. & J. 414. 3 Ue G. M. & G. 24 ; Lowe v. Swift, 2 BaU (w) S. C. & B. 529. (X) Jackson v. Pesked. 1 M. & S. 234; THE GENERAL EULE. 89 remainder, will be considered when we come to treat of the principles of that subject.(2!) § 90. The court has no jurisdiction to enforce the contracts of a tenant in tail against those in remainder,(«) *§ 91. In the case of a contract for the sale of a bank- r i^oni rupt's property by the creditors' assignees, the official *- -' assignee, being the proper hand to receive the money, appears to be a necessary and proper party to a suit for the specific performance of the contract.(^) § 92. Where the circumstances of the case may be fitting, some may, of course, sue for specific performance on behalf of all : thus the directors of a joint stock company were allowed to sue on an agreement to make a lease to them, without joining all the shareholders.(c) But in the converse case, there is great difficulty, in applying to specific performance, the principle that some ma}^ be sued on behalf of all: from the nature of such suits, however, this application of the principle is not often required for the lends of justice. In one case,(d) a joint stock company established by an act of parliament, which vested in them all property then belonging to them, and authorized them to bring actions in the name of their treasurer, purchased an estate with notice of a prior agreement by the owner to grant a lease of part : on a bill by this proposed lessee against the directors and treasurer, but not the other proprietors, asking for a specific performance of the agreement. Sir William Grant said, that though he could bind the interest of parties not before the court, he could not compel them to do an act, and that the execution of the lease by a few on behalf of all would hardly be sufli- cient, supposing it proper. He, however, gave the plaintiffs all the relief he could, by enjoining the treasurer from disturb- ing their possession, though he could not compel specific per- formance of the agreement. [3 j (2) See post, § 389. (c) Taylor v. Salmon. 4 My. & Cr 134. (n) 3 & 4 Wm. IV., c. 74, s. 45. (d) Meux v. Maltby, 2 Sw. 277. (b) 12 & 13 Vict., C. 106, s. 39. [3] It is clearly the rule that a part may file a bill in behalf of themselves and all others in the same situation. Robinson v. Smith, 2 Paige, 322. So, in Beatty FKY — 7 90 FRY ON SPECIFIC PERFORMANCE OF CONTRACTS. § 93. There are a few cases in which the strict rule that none but the parties to a contract are proper parties to a suit for its specific performance, appears to have been relaxed, to avoid multiplicity of suits, r *^S 1 * ^ ^'^' ^^^ ^^^^* principle Ave may probably refer the case of Lowther v. Viscountess of Andover,(e) Avhere a father entered into a covenant with the trustees of his daughter's marriage settlement to endeavor to purchase certain remainders in an estate of which he was tenant for life, and, when purchased, to convey them to the uses of the settlement. The covenantor died, having previonsly entered into an agreement for the pur- chase of the remainders : on a bill tiled by the trustees of the settlement against the vendors, and it would seem also the per- sonal representative of the deceased, specific performance was granted. In another case,(y) where the Duke of Chandos had granted to A. a lease of a lodge, and also the deputation of a (e) 1 Bro. C. C. 39G. As to creditors of a (/) Jalabert v. Duke of Chandos, 1 Ed. deceased vendor suing, see Jolinson v. Le- 372. giii-d, T. & R. -281. V. Kurtz, 2 Pet. 5C6, it was held that a part of the persons belonging to a volun- tar}-^ society, and having a common interest, may sue in behalf of themselves and others having the like interest, as part of the same society, for purposes common to all and beneficial to all. Thus, part of the members of a German Lutheran Society, not incorporated, may file a bill for an injunction to prevent their possession of land dedicated to the use of the society, from being disturbed. lb. And where real estate had been purchased by a joint fund raised by sub- scription, in shares, by more than two hundred and fifty subscribers, and the property conveyed to trustees for the stockholders, on a bill for the sale of the premises under a mortgage made by the trustees, it was held to be unnecessary to make the stockholders parties, the trustees sutflciently representing all the interests concerned. Van Vechten v. Terry, 2 John. Ch. 197. In a bill against an unincorporated banking company, the members of which are nu- merous, and in part unknown, it is not necessary to bring all the stockholders before the court, before a decree can be made. Mandeville v. Riggs, 2 Pet. 482. jI. filed a bill against ^. and the commissioners of the Bank of J. to subject the stock ot li. in said bank to the payment of a judgment; held, that the stockholders were not necessary parties to the bill. Dana v. Brown, 1 J. .J. Marsh. 304. Where some twenty-eight persons are associated together for tlie purpose of trade, the legal title to all their property, being in a part of them for the benefit of the whole, it is sufficient if those having the legal title THE GENERAL RULE. 9l keepership in Enfield Chase, and A. assigned but for part of the terms only to B., B. was allowed to maintain a bill against the duke and A. for the rectification of a mistake iu the original grant by the duke, and for a new and sufficient grant by him. § 95. The same principle is illustrated by another case, (17) in which a bill was filed by a purchaser against trustees for sale, to enforce the specific perforihance of an agreement for the sale of lot A : it was resisted on the ground that by an arrangement, to which the plaintiff was a party, part of that lot as originally described was taken from it and given to the adjoining lot, B. The hill was amended to put in issue this averment, which came out in the answer, but without adding as defendant the pur- chaser of lot B ; and the court held that he ought to have been made a defendant, for otherwise the vendors would be exposed to another suit from the purchaser of lot B. § 96. And where there are claims made by persons, strangers (S) Mason v. Franklin, 1 Y. & C. C. C 239. be made parties defendant or complainant in a bill in equity. Martin v. Dry- den, 1 Gilm. 187. But a bill will not lie by a freeholder or inhabitant of a town, respecting its common property, without the consent of the town, duly declared. Denton V. Jackson, 2 John. Ch. 320. The ofBcers of a bank are, individually, not proper parties to a bill brought to enforce a demand against the corporation ; and the bill should be dismissed on demurrer. Wood v. Bank of Kentucky, 5 Monr. 194, and Atterbury v. Knox, 8 Dana, 282, are authorities to the effect that where the allegations to a cross bill are, that the complainant was the agent for a foreign bank, doing banking business in Kentucky contrarj^ to the laws of Kentucky, exacting more than legal interest, the bank should have been made a party, and that it was erroneous to try the cause without it. In these cases it is no objection that the trustee and cestui que trust unite in the same bill. So, where trustees filed a bill without disclosing their benefi- ciary, and afterwards filed a supplemental bill, disclosing the fact that they were trustees of the United States Bank, and praying that it might be made a party complainant to the bill, and also an amended supplemental bill, dis- closing that the bank had gone into liquidation, and that certain persons were appointed assigness, and praying that they might be made parties complain- ant ; it was held, that all those persons constituted, in law, but one, represent- ing the interests of the bank. Hitchcock v. United States Bank, 7 Ala. 387. 92 FRY ON SPECIFIC PERFORMANCE OF CONTRACTS. to the contract, tulvcrscly to both the parties to it, they may r ^^^ T iiucler some circumstances, be made defendants* to u suit •- -J for the performance of it. Thus, where an assignee under an insolvcncj'sold a reversionary interest in stock of the insolv- ent, and the purchaser was served with notice not to pay the purchase-money to the assignee by a person claiming under a previous assignment by the insolvent subsequent to his insolv- ency, a bill was brought against the assignee and the adverse claimant, and pra3^ed an inquiry into the rights of the latter : he was, in the event decreed, to pay costs.(/i) § 97, And so, in the case of purchases from a, voluntary set- tlor, where the contract is enforced by a purchaser, it seems proper to make defendants, not only the vendor, but the trus- tees of the settlement and the persons beneficially interested under h.{i) § 98. Wherever a contract is entered into by a trustee on behalf of another person, and the person thus beneficially inter- ested seeks to enforce the contract, the trustee is a necessary party to the suit; for, otherwise, another suit might become necessary against him.(X') § 99. Cestuis que trust arc not generally necessary parties to suits by or against trustees :(/) but it would seem that they should still be made parties in any case, where the trustees by themselves are unable to enter into a valid contract, or where the parties beneficially interested are entitled to be heard to dispute the right of the trustees to exercise the power under which the contract has been made.(«i) [4] § 100. It may be added that each contract of a vendor with a purchaser being separate, is properly the subject of a several suit (k) Collett V. Hever, 1 Coll. C. C. 227, before (/) 15 & 16 Vict. a. 86, s. 42, rule 9. Lord Cottenhara. (m) Kvans v. Jackson, 8 Sim. 217; Saunders (I) Willets V. Busby. 5 Beav. 193. v. Richards, 1 Coll. C. C. ofJS. (t) Cope V. Parry, 2 J. & W. 538 ; Cooke v. Cooke, 2 Vern. SB. [4] Where an objection is taken, at the hearing, to the oinis.sion of a party as cestui que. trust, by the defendant, he must show clearly the existence of the interest at the commencement of the suit ; and the court is not bound to take notice of any interest in the subject of the suit, acquired by purchase since the suit was commenced. Cook v. Mancius, 5 John. Ch. 59. A STRANGER TO THE CONTRACT. 93 and wlioi'G several purchasers have been joined in one suit, a de- murrer for multifariousness has been allowed. (?i) *^ 101. But in a case in which there had been several rv..,.-i ... 40 sales of a like kind and several purchasers joined as plain-"- -• tiffs and the persons interested in the estate made no objection for multifariousness, the court decreed specific performance of the different contracts in one suit.(o) *CHAPTER II. [*41] OF A STRANGER TO THE CONTRACT. § 102. The principle obtains both at law and in equity, that a stranger to the contract cannot sue on it : and this is not varied by the mere fact that the stranger takes a benefit under it, except in certain cases which will be afterwards mentioned.(a) § 103. Thus in a recent case, (6) where protracted litigation had been undertaken by A. for the recovery of an estate, and in the course of these proceedings A. became greatly indebted to his solicitor, and, by an agreement between A. and his brother B., A. agreed to relinquish his interest in the estate to B., in con- sideration of B.'s undertaking to pay the costs already incurred, with interest, it was held that the solicitor being no party to the agreement, and having given no consideration for it, could derive no benefit under it capable of being enforced by him.[l] {n) Rayiier v. Julian, 3 Dick. 677 ; Gomme 5 My. & Cr. 250, 256. The dicta of Broolies v. Lord Whitworth, 1 Mad. 86. Eyre, C. J. in Fellmaker .s Company v. (o) Hargreaves v. Wright, 10 Ha. Appx. Davis, 1 B & P. 102, and of Mr. J. Biiller 56. in his X. P. p. 134, do not appear to be law. (a) Crow V. Ro.£?ers, 1 Str. 592; Ex parte The Scotch law diffei-s from ours in this par- Peele, 6 Ves. 602; Ex parte Williams, ticular, recognizing the us quasitum ttrtio. Buck, 13 ; Berkeley v. Hardy, 5 B. & C. Stair, Inst. B. i. t. 10, s. 5. 355; Lord Southampton v. Brown, 6 B. & (6) Moss v. Bainbrigge, 18 Bear. 478, C. 718. Per Lord Laugdale in Colyear v. 482; S. C. on appeal, 6 De G. M. & G. 292. Countess of Mulgrave; 2 Jie. 98 ; Hill v. [1] In the construction of an athenaeum in ^laryland, a subscription book was purchased, containing the name of the plaintiff as treasurer of the fund to be collected ; also, the names of six others as a building committee, with au- 94 FRY ON SrECIFIC PERFORMANCE OF CONTRACTS. § 104. The case of Hook v. Kinnear and Philips, (c) which may appear at first sight at variance with the principle r *.^ -I *above stated, seems to depend on a different doctrine, '- -" namely, that of agency. There the two defendants were tenants in common of certain lands, and the defendant Kinnear having been tenant of Philips' moiety, and in arrcar to him for the rent, agreed with Philips to execnte to the plaintiffs such lease of the entire premises as Philips and the plaintiff should agree upon, and that all the rent should be paid to Philips till the arrears due to him were satisfied ; the plaintift'was no party to the agreement : Philips entered into an agreement with the plaintiff for a lease of the premises at £30 per annum, and exe- cuted a lease of his moiety at <£15 per annum : the defendant declined to do the same in respect of his moiety : and it was objected that the plaintiff' as a stranger could not sue : but Lord Hardwicke overruled the objection, on the ground that Philips might be taken as the agent of the plaintiff in the contract, and compared it to the case of stewards entering into agreements, and their masters enforcing them. eO a Sw. 417, n. thority to call in the subscriptions in such installments as might be required in the course of construction. A resolution of the committee afterwards called in the unpaid subscriptions, ''payable to the plaintiff." Held, that the plaintiff could not maintain an action, against a delinquent subscriber, in his own name. Gittings v. Mayhew, 6 Md. 113. Upon an agreement by one person to become responsible for another for a part of the proceeds of an expected sale, an action by a third person will not lie, although the consideration moved from the third party. Tewksbury v. Hayes, 41 Maine, 123. But it is also held, in the same state, that where a party, for a valuable consideration, stipu- lates with another, by simple contract, to pay money, or do some act for the benefit of a third person, such third person, if there be no other objection than •want of privity between the parties, may maintain an action for the breach of the engagement ; or he may, if he choose, disregard it, and seek his remedy directly against the party with whom his contract primarily exists. Bohanan V. Pope, 42 Maine, 193. If Jl. contract to support B., and fraudulently refuse to fulfill his agreement, whereby B. becomes chargeable to the town, this does not entitle the town to proceed against Jl. in law or equity, althougli the orig- inal contract was intended to defraud some other party. Milton v. Story, 11 Verm. 101. A STRANGER TO THE CONTRACT. 95 § 105. The exceptions to which the rule before us is subject, seem to be : 1st. In the case of persons claiming as beneficial ly entitled under marriage-settlements to which they were not parties; 2ndly. In certain cases of close relationship between a contracting party and the stranger : and Brdly. Where a partial execution of the contract has changed the status of the stranger, and given him a right to its complete performance. § 106. (1) The exception to this general prhiciple in respect of marriage articles arises from the nature of the contract, in which, not the contracting parties only, but those for wdiose benefit they contract, and especially the issue of the marriage, are regarded as purchasers, and in that capacity entitled to the specific performance of the articles. § 107. With regard to the issue, this is well settled. "In marriage-contiacts," said Lord Cottenham,(cZ) '' the*chil- r ^,o i dren of the marriage are not only objects of, but quasi '- ^ parties to it."[2j § 108. With regard to collaterals also, the same principle is now established, at least as against the parties to the contract other than those through whom the collaterals claim. The old doctrine excluded collaterals : but the court now considers it impossible to ascertain what collateral branches may have been in the view of the contracting parties at the time of the con- tract, or which of the several stipulations in a contract the parties laid the greatest stress upon. Another principle upon which the court has in some cases proceeded, is that the trustees, (d) In Hill V. Gomme, 5 My. & Cr. 254. [2] Upon the same principle of privity an analagous case was decided in Pennsylvania. Where a widow executed an instrument, "To all whom these presents shall come," and purporting to be a general release of dower, it was held, that a son of the deceased, although not a party to the instrument, had, nevertheless, such an interest as would entitle him to the benefit of the release. Gray v. McCune, 11 Harris, 447. In Louisiana, under the civil law, the doctrine of privity is carried verj' far, and children, to the extent of the legitime, are not considered as heirs, but as creditors of their father's estate. Vide Succession of Trimmel, decided in 1854, Opinion Book 24, page 328 ; Maples v. Mitty, 12 La. An. 759. 96 FllY ON SPECIFIC PERFORMANCE OF CONTRACTS. being covenantees, might sue at law for the non-performance of the covenant to settle, and that, as the measure of the damages to which they would be entitled would be the interests of all their cestuis que trust, the collaterals would thus gain the benetit of the covenant ; and that the relief in equity must of course be, at least, commensurate with the damages at la\v.(e) The leading case upon this subject is Goring v. Nash,(/) where Lord llardvvicke.specifically executed articles made on the mar. ria<>-e of Sir Kobert Fagg's son, by which part of the estate was, after several previous limitations, limited in tail to the plaintiff, who was a younger daughter of Sir Kobert Fagg, with remainder to his sisters in tail. Lord Hardwicke held this to be a pro- vision made by the father for his younger children, that as such they were purchasers and clearly entitled to specific performance, and that this right was not affected by the fact that the limi- tations to the plahitiffs and her sisters^were subject to a general power of appointment in the father, which, by his death without execution, had ceased. In many other cases, also, the court has executed articles at the instance of collaterals, as being within the consideration of the marriage. (f/) [3] *^ 109. The principle that has thus been applied to ^ collaterals applies also to appointees of the wife, claiming under a power inserted in the articles ; for, although as between the wife and themselves they are volunteers, yet they take by virtue of a gift made by the wife, who is not a volunteer, but a purchaser, and therefore, as between themselves and the husband, they claim under and stand in the place of a purcbaser.(A) ' (t) Goring v. Nash, 3 Atky. 186; Daven- Vernon v Vernon, id, 594, affirmed 1 Bi'o P. port V Bishop, 1 Y. & C. C. C. 451; S. C. 1 C. 2(57; Stephens v. Tnieman, 1 Ves. Sen. 73; Phil 698. Pulvertoft v. Pulvertoft, 18 Ves. 84, 92. (/■) 3 Atky. 186. (/i) Campbell v. Iiigilby, 21 Beav. 567, af- (?) Edwards v. Countess of Warwick, 2 firmed, 2(5 L. J. Ch. 654, (L. J. J.) P. Wnis. 171 ; Osgood v. Strode, id. 245 ; [3] In the case of Lechmere v. Carlisle, 3 P. Wras. 228, it was decided that articles on marriage, whereby money is agreed to be laid out on land and settled, in default of issue male of the marriage, on the husband's brother, shall, if the husband dies without issue male, and leaving only daughters, be performed in favor of the brother, though they were volunteers. See Vernon V. Vernon, 1 Bro. P. C. 267. A STEANGEK TO TILE CONTRACT. 97 § 110. The case of Sutton v. Chetwjnd,(r) before Sir William Grant, offers something of an impediment to this current of authorities. In the will of Lady Bath's mother there was an ultimate remainder given to Sir Kichard Sutton, the plaintiff, who was a stranger. On the marriage of Lady Bath it was agreed by articles that the estate in question should, in the events which happened, follow the limitation of this will. The court refused specifically to execute these articles at the suit of the plaintiff. The case as reported appears not to have been ap- proved of by Lord Eldon ;(7t;) and in a subsequent case(/) it was explained by Lord Cottenham. "The covenant," said his lord- shijj, "was betAveen Lady Bath and the trustees only. There was no consideration moving from them or from Sir Richard Sutton. With respect to Sir James Pulteney (the husband) he merely consented to the settlement. Lady Bath did not covenant with him." § 111. It is to be observed that in none of the cases has a collateral enforced the articles against the covenantor solely on the grounds of relationship ; but in each case, the party who had exacted the stipulation was dead without having in any way released it, and the claimants have sought to stand in the place of the party who, for a valuable *consideration as regards the original settlement, had exacted the stipulation sought '- ^ to be enforced. (»z) It does not therefore follow that the ori> Per Patterson, J., in Wentworth v. miiQ, i U. & W. 423. Cock, 10 A. & E. 45. ASSIGNMENT OF AGREEMENT OK PROrEIlTY. 105 anco of it, making his assignor a party. (a) Thus for example, where a lease with a covenant to renew became vested by assignment in the plaintift', he was held entitled to sue the covenantor for a renewal :(^>) and where there was an agree- ment for a lease, which contained nothing to show that it was made specitically and personally with the assignee, and the assignee was solvent, the agreement was forced in favor of the assignee. (c) [1] Simihirly, where there is nothing personal in the contiact or the motives to it, a person who has appeared as agent may afterwards disclose himself as a principal and enforce the contract in his own name.(cZ) (a) As to a sub-purchaser, see ante. { 82. Y, &,C. C. C. 345, where V. C. K. Bruce re- (6) Duke V. Mayor of Exon, 2 Frcem. 18,3. fused to grant specific performance of an See also Vaiidenauker v. Desbrough. 2 Veru. agreement for a lease to an assignee, except 96 ; Moyses v. Little, id. 194. upon the terms of the assignor's entering into (c) Crosbie V Tooke, 1 My. &K. 431; Morgan the covenants of the lease. See post. § 12(). V. Rhodes, id. 435. But see Dowell v Dew, 1 (d) Fellowes v. Lord Gwydyr, 1 R. & My. 83. [1] j4., being the owner of a tract of land suppo.sed to contain minerals, on the 21st of January, 1839, by a written instrument granted liberty to B. to dig a mine on such land, and to carry away any mineral which he might dig thereon within one year; and B., on the 11th of May, 1839, by a writing signed I)}' him on the back of such instrument, assigned to C. all his interest, right and privilege in the land therein mentioned, with the appurtenances, and all the benefit and advantages derivable from such instrument; after which B. brought a bill in chancery against ^/. for specific performance of the agree- ment. Held, 1st, that the agreement was not of a fiduciary character, or in the nature of a personal confidence, so as to be incapable of assignment, nor, 2d, was the interest of B. of that uncertain and contingent kind, that it could not on that account be transferred ; and consequently that B. having parted with all his interest in the subject of the bill, it ought for that reason to be dis- missed. Gaston v. Plum, 14 Conn. 344. The captain of a steamboat, as such, entered into a contract for carrying the mails on board the boat, and after- wards, freely and fairly, assigned it to the owners of the boat, bj^ an instru- ment under his hand and seal. Held, that the assignment was valid, and that the captain was estopped from denying that the contract was assignable. Roorback v. North River Steamboat Co., 6 John, Ch. 469. The purchaser at a master's sale may assign his bid before the execution of the master's deed; and on application by the assignee, the court will direct a conveyance imme- diately to him. Proctor v. Farnan, 5 Paige, 614. In New York, any estate in personal property, and a mere possibility when coupled with an interest in real estate, has always been assignable. Law- rence v. Bayard, 7 Paige, 70. So may an assignee of an assignee of a co- . Fiiy — 8 106 FRY ON SrECIFIC rERFORMANCE OF CONTRACTS. And -whero A. contracted for an estate from B., A. havinir pre- viously agreed with C. to sell the estate to him, and B. resisted performance on this amongst other grounds ; the price being ad- [*n. life of the person who had to do them. (m) Crosbie V. Toolie ; Morgan v. Rhodes, (n) 1 Vern. 227. See also Harding v. Dowell V. Oovv, ante, § 123. See also Stock- Cox, 1 Veru. 227, n. [2] In Illinois, a note payable in mason work is not assignable, so as to enable the assignee to maintain an action thereon in his own name. Ransom V. Jones, 1 Scam. 291. So where a person received the use and occupancy of a farm, durin his parents' lives, from a town, with a promise to give a deed upon their decease, upon condition that he would support his father, mother and idiotic brother, the contract was held not to be assignable. Clinton v. Fly, 1 Fairf. 292. A ]»arol license to be exercised upon the land of another, is a mere personal trust and confidence, and as such, cannot be. assigned, although it may be binding as between the parties, it will not pass to the purchaser. Cowles v. Kidder, 4 Foster, (N. 11.) 394. ASSIGNMENT OF AGREEMENT OR PROrERTY. 109 lord chancellor, entered into articles; but on discoverinu.- who Avas the real purchaser, refused to complete : according to tlie report in Vernon, the plaintiff's bill was dismissed, and the case is considered an authority for the principle established by such dismissal ; for, thouo-h it appears that specitic performance was ultimately granted, it seems to have been only on payment by the plaintiff of the full value of the estate, being a sum greater than that originally agreed on.(o) Lord Thurlow showed an inclination to disregard these personal motives, considering it to be immaterial in a contract for an annuity, that a defendant was in fact a trustee for the son of the plaintiff', Avith whom he h:id refused to deal.( j?) But Lord Eldon expressed dissatisfac- tion with that decision ; and it seems to be clearly established, that motives of kindness towards the trustee, or feelings of dis- like to the concealed beneficiary, Avhen known to the other party, may bar a specific p -rformance at the suit of the persou on whose behalf the ostensible principal contracted. (^) 6 128. The same principle of course applies to *assi-o Joi-dan v. Sa\vkins, 1 A'es Jun. 402; Fellows V. Lord Gwydj r, 1 11. & My. 80. 110 FRY ON SPECIFIC PERFORMANCE OF CONTRACTS. from selling: or buying any pretended rights or titles to any lands, except the vendor has been in possession of the same, or of the reversion, or in receipt of the rents thereof for a year before the sale ; but it provides that it shall be lawful for the person in possession to buy in any pretended title. In Sharp V. Carter, (?<) the bill alleging that Carter pretended some con- tract Avith a certain Evans, who claimed under a disputed will against the plaintiff, the heir-atdaw, who was in possession, a plea of the statute was allowed to the discovery. In Ilitchcns V. Land()i',('') a plea of this statute was allowed, on the ground that the plaintiff himself was only entitled under a contract for the purchase of the estate. But the case certainly appears to fall neither within the mischief nor the language of the statute, the sale l)eing "not of a pretended right or title, but of the estate in fee simple in possession, subject certaiidy to the decision of a r*-pi court of equity upon the right to a specific *perform- •- -■ ance."(w) In a case(.x") befoi-e the Court of Common Pleas. A., the owner of a term, died in 1828, and B., his brother, who had previously been in possession of part of the premises, then took possession of the whole, and continued so until 1829, 'when he died, leaving all his interest in the property to C, who thereupon entered and remained in undisputed possession until 1841, when D., a brother of A., the original termor, took out administration to him, and sold his interest in the property, as such administrator, for £10 : the transaction was held to be void both by the common law and under the statute. § 131. But a transfer of an expectancy is not within the mischief of the statute, for the sale of an expectancy is not an allegation of any present right or title, but of the possibility of one thereafter to exist. (y) § 132. The principle on wdiich the statute of Henry VIII. is founded, and which gives rise to the doctrines of champerty and maintenance, namely, that persons ought not to be allowed to (u) 3 P. Wms. 375. [^) Doe d. Williiims v. Evans. 1 C. B. 717. (( ) (j. Coop. 31. See al30 Wall v. Stiibbs, See also, per Montague; C. J., in Partridge 1 Mad. 80; S. C. 2 V. & B. 3.)4. v. Strange. J'lowd. 88. {w)2 Suff. Vend. 4.5. 10th edit.; per Lord (y) Cook v. Field, 15 Q. B. 460. Eldou iu Wood v. Ciriftith, 2 Swan. 56. ASSIGNMENT OF AGREEMENT OR TROPERTY. Ill come ill for the mere purpose of litigating rights which others arc not disposed to enforce, applies to render void some cases of assignment which are not strictly within the above statute. Thus, Avhilst it is clearly lawful to assign a right at the time undisputed, and if, from circumstances afterwards discovered a necessity arises for litigation against third parties, the assignee may maintain his bill in equity :{z} yet it is as clearly against public policy to allow of the assignment of a mere naked right to file a bill.(«) On this ground the court has refused its as- sistance *to enforce the performance of an agreement l)y a r ^rrj i person out of possession, to grant a present lease to a party who is at the time apprised that he cannot obtain posses- sion except by a suit.(/>') [oj § 133. Upon principles of public polic}' it seems that contracts b}^ which railway or public companies seek to devolve business, or delegate powers, with which they are entrusted, on persons to whom the legislature has not entrusted them, and on whom it has not attached the same responsibilities that it has on the companies, are incapable of being enforced by a court of equity.(c) [4] § 134. It must be added that, even when a concluded con- (z) Wilson V. Short, 6 Ha. 366. (4) Bayly v. Tyrcll, 2 Ball & B. 35S. (a) Prosser v. Edmonds 1 Y. & C. Ex. ('■) Johnson v. Shrewsbury and Birniing- 481. AVith the distinction between this and ham Railway Companj-. 3 De G. M. & G. the preceding case, compare the distinction 914; Benian v. Rufl'ord, 1 Sni. X. S. 5.50; between rurnishing- evidence for the recovery S. C. 7 Rail C. 48 ; Great Northern Rail- of property without a view to litigation, way Company, v. Eastern Counties Railway and furnisliing evidence to maintain liiiga- Company, 9 Ha. 306. tion, Sprye v. Potter, 7 KU. & Bl. 58. [3] See Marshall v. Means, 12 Geo. 61. [4] Among those cases, in which assignments will not be upheld either in equity or at law, as being against the principles of public policy, is the assign- ment of the commission of an officer in the army by way of mortgage. CoU- yerv. Falcore, 1 Turn. & Russ. 459. Neither is the full pay or half pay of an army or navy officer assignable, either by the party or by operation of law. Daves v. Duke of Marlborough, 1 Swanst. R. 79. McCarty v. Goold, 1 Ball & Beat. 387. Stone v. Littledale, 2 Anst. R. 533. But the claims of officers of the revolution for compensation for services, as promised by Virginia un- paid at the death of the officer, are assets, and assignable as other choses in action. Merriwether v. Herran, 8 B. INIonr. 162. "The same doctrine has been applied to the compensation granted to a public officer for the reduction 112 FRY ON SPECIFIC PERFORMANCE OF CONTUACTR. tract would l^c assignable, the l)ciK'fit of an ofrer cannot, it seems, be transferred, by the person to whom it is made, to a third person. "In case of an offer by A. to sell to R., an acceptance of the offer l)y C. can estal>Iish no contract with A., there being no privity."((/) § 135. Where a contract has been entered into for the sale of (d) Meynell v. Suvtces, 3 Sm. & Gif. 101, 117. of his emoluments, or the abolition of his ofRce, who, by the terms of his grant, might be required to return to the public service. For in such a case the object of the government is to command a right to his future services, and to enable the party to perform the duties, with suitable means to support him." Wells V. Foster, 8 M. & W. 149. In like manner the profits of a public office would seem, upon a similar ground of public policy, not. to be assignable. Hill V. Paul, 8 Clarke & Fin. 295. Palmer v. Bate, 2 Bro. & Bing. 673. In reference to pensions which are held to "be assignable, see Story's Eq. Jur. § 1040. The salary of the assistant parliamentary counsel for the treas- ury has been held not to be assignable. Cooper v. Reillj'', 2 Sim. R. 560. But the grounds upon which the decision rested are the subjects of considerable doubt, and it is a much mooted question " whether a compensation or pension granted dui'ing pleasure, and not for any certain time, and revocable in its own nature, is properly the subject of an assignment, as being of too uncertain and fleeting a character to pass by assignment — for although mere expectancies may pass by assignment, yet they must be of a substantial character, and not ordinarily of such a nature as to rest in the pure discretion of the party grant- ing or withholding them from time to time, at his pleasure." Story's Eq. Jur. § 1040 f, and note. A distinction has also been taken between the case of an assignment of the arrearages of full pay, or half pay, or other compensa- tion connected with the right to future success, and the case of an assignment of the future accruing pay, or half pay, or other compensation, as the right to arrearages has become absolute, and the assignment thereof may not inter- fere with any public policy. Story's Eq Jur. § 1040 f. And militar}'^ prize money, although resting in the mere bounty of the crown, is held to be differ- ent in its nature and objects from military pay, and treated as a right of prop- erty rather than as a personal pension or reward. Alexander v. Duke of Wellington, 2 Russ. & Mylne, 35. Stevens v. Bagwell, 15 Ves. 139. It may be laid down as a general rule, that, where an equitable interest is assigned, in order to give the assignee a locus standi in judicio in a court of equity, the party assigning such a right must have either a substantial possession, or some capability of personal enjoyment in the thing assigned. Prosser v. Edwards, 1 Younge & Col. 481 ASSIGNMENT OF AGREEMENT OR PROrERTY. 113 property, and that property is afterwards aliened or assigned, or contracted to he aliened or assigned, and the alienee or assignee has notice of the original contract, he is liable to its perform- ance at the snil^ of the purchaser. " If," said Lord St. Leonards, {(') "the contract is a binding one, it can be enforced against any party in whom is vested the legal and iKUieticial interest in the property." "If," said Lord Rosslyn,(y) " he is purchaser with notice, he is liable to the same equity, stands in his place and is bound to do that Avhich the person he represents would *be bound to do by the decree." This principle, which p.rQ-i has been acted on in numerous cases, (7) may be suffi- cientl}^ illustrated by a case(//) before Lord Nottingham. The Earl of Salisl)ury being lessee of a college lease, made a sub- lease of certain coppice-land to the plaintiff for fourteen years, and covenanted to take a new lease from the college, and to renew the plaintiff's lease with an addition of three years more to it, or answer the want thereof in damages, for that the wood grsyited to the plaintiff by that lease was to be full fourteen 3^ears' growth before it could be cut ; the earl renewed and as- signed his lease to Ilawtrey, who had notice of the earl's cove- nant with the plaintiff; and he was accordingly decreed to execute to the plaintiff a new lease with the additional three years, in pursuance of the earl's covenant. And where a person having a prior title gets in the subsequent estate which is af- fected by the contract, and has notice, he cannot protect him- self from the performance of the contract by his elder title : thus, where an equitable mortgagor entered into an agreement for a lease, and then the mortgagee, whose mortgage was prior to the agreement, bought the estate with notice, he was held. (e) In Saunders v. Cramev, 3 Dr. & W. 99. 22.5; Dowell v. Dew, 1 Y. & C. 0. C. 345; (/) In Taylor v. Stibbert, 2 Ves. Juu. Crofton v. Oniisby, 2 Sch. & Lef. 583; I'ot- 437. " tor V. Saunders, 6 Ha. 1; Ilersey v. Gib- {g) Jackson's case, 5 Vin. Abr. 543, pi. 3; lett, 18 Beav. 174; Shaw v Tliacliciy, 1 Sm. Howard v. Hopkins, 2 Atky. 371; Ford v. &G. 5157; Goodwin v. Fielding, 4 Do G. M. Conipton, 2 Bro. C C. 32, & Belt's n. 2; &G. 90; and Dyas v. Cruise. 2 Jon. & Lat. Jalabert v. Duke of Chandos, 1 Ed. 372; 460. where an agreement for a lease was Brooke v. Hewitt, 3 Ves. 253; Knollys v. enforced against a provisional assignee in Alcock, 5 Ves. 64S; Meiix v. Maltby, 2 Sw. insolvency. 277; Spence v. Hogs', (before the V^. C. of (li) Finch v. Earl of Salisbury and Ilaw- England and Lord (Jottenhani,) 1 Coll. C. C. trey, Finch, 212. 114 FEY ON SPECIFIC PERFORMANCE OF CONTRACTS. bouii% but on the principle that the •- -" court will not allow a body to exercise powers acquired by means of a pre ious contract and arrangement, without carrying that contract and arrangement into full effect. To this extent, the court acts negatively ; but having once acquired jurisdiction, then its action is positive as well as negative, and therefore it will not merely restrain the doing of acts contrary to the agree- ment, ])ut will enforce every portion of it. Lord Campbell also, (/) Gooday v. Colchostor, oto., Railway (?) 17 Beav. 113, Co.. 17 Beav. 1:52; Williams v. St George'.s (/() 10 Hu- GGl, Haibor UoniiJauy, 3 Jur. >L S. lOU, (JI. U.) 120 FRY ON SPECIFIC rERFORMANCE OF CONTRACTS. ill his judiruuMit in the Eastern Counties Railway Company v. Hawkcn,(/) supported the same view of Lord Cottonham's doc- trine, liii), it niu.st-be added that Lord 8t. Leonards, IVoni the observations he made in the hist nu^ntioned case of Gooday V. The Colchester liailway Company,(/c) appeared inclined to uphold that doctrine in its utmost generality, and to hold that the conduct of the directors, after the act, in relation to the execution of their powers, cannot absolve them from liability in respect of the benefit which they secured by the withdrawal of the opposition to the bill. § 144. The second condition, viz; that the agreement must be for something warranted by the terms of the incorporation, and ■which the company is therefore competent to perform under the powers of its act, is established and illustrated by the case of The Caledonian and Dumbartonshire Junction Railway Com- pany V. The Magistrates of Helensburgh, (/) which came before the house of lords from the Court of Session in Scotland. The magifctrates of Helensburgh had agreed with the pi-omoters of the railway to afford the projected company certain facilities for the construction of the railway through the town, and to petition parliament in favor of the bill ; and the promoters on their part agreed that the company should ]3ay for the making of a quay and harbor, which the ma^'istrates *were to ai)i)ly to *- ^ parliament for powers to make. Lord Chancellor Cran- worth, after animadverting on the general principle introduced by Lord Cottenham, decided the case on the ground that, in the instances before that judge, the acts to be done were within the powers of the company when incorporated, whereas here the object of the arrangement was to apply the funds raised under legislative authority for the purpose of the railway to an object foreign from that of the railway, namely, the construction of a pier and harbor. Again, in Preston v. The Liverpool, Manches- ter and Newcastle-upon-Tyne Junction Railway Company,(wi) Lord Cranworth held that an agreement to pay £5000 to a person for not opposing a bill in parliament would be ultra vires of a (/) 5 Ho. Lords, 353. (»«) 5 Ho. Lords. 60.5, 62L See .also Leo (/.) III. 308. niiiister Canal Conipanj' v, Shrewsbury aud W a M'Q. 3ai, lievol'oi-a Kailway (jo., 3 K. & J. 651. INCORPORATED COMPANY. 121 railway company when incorporated, and therefore that it could not be enforced against the company by reason of its having been entered into by the promoters. § 145. Not only have these conditions been imposed on the doctrine as laid down by Lord Cottenham, but grave doubts have been thrown on the very principles of his decisions by the Lord Chancellor Cranworth and Lord Brougham in the two last cited cases. Thus, in the case already referred to of the Caledonian and Dumbartonshire Junction Kailway Company v. The Magis- trates of Helensburgh, (n) Lord Cranworth in a written judg- ment which had before its delivery received the concurrence of Lord Brougham, though deciding the case upon the point before mentioned, fully considered the general principle in question, and disapproved of it. His lordship observed that the doctrine in question could be supported only on the assumption that the company when incorporated is in substance, though not in form, a body succeeding to the rights and coming into the place of the Droiectors : and then Droceeded *to show that, in his stance. The body incorporated, he argued, is not confined to the projectors, and may even include none of them : the act of parliament when passed becomes the charter of the compau}'-, prescribing its duties and declaring its rights ; and all persons becoming shareholders have a right to consider that they are entitled to all the benefits held out b}- the act, and liable to no obligation beyond those which are there indicated : that to per- mit other terms to be imposed on the shareliolders behind the terms of incorporation, would lead to injury to the shareholders, and often to a fraud, or at least to a surprise on the legishiture ; and that, to render special terms as to particular cases or person binding on the company, they ought to be the subject of special clauses in the Act, whereby the whole truth could be disclosed, and neither the legislature nor any person taking shares could complain. And in the case of Preston v. The Liverpool, Man- chester and Newcastle-upon-Tyne Junction Railway Com- {n) 3 M'Q. 391. See also Willicains v. St. George's Harbour Company, 3 Jur. N S- lOU, (M. K.) 122 FRY ON SPECIFIC PERFORMANCE OF CONTRACTS. paii3',(o)Lorcls Cmn worth and Brougham expressed similar views of the doctrine, although the ground on which they dismissed the phiintiif's ai)peal was that the agreement was in itself con- ditional on the construction of the railway. In this state of the authorities, it is difficult to speak with certainty as to bow far the doctrine in question is to be considered as law : on the one hand, it has been repeatedly acted on by Lord Cottenham, and appears to be adopted by Lords Campbell and St. Leonards ; on the other hand, the principles upon which it rests have been criticised by Vice-Chancel lor Wood, and been distinctly dis- approved of by Lords Brougham and Cranworth, upon reason- ings, to say the least, of the greatest weight and cogency. [*67] - *CHAPTER VI. OF AGENCY. § 146. The cases which arise where the contract is made by agents require consideration, as sometimes afibrdingan apparent exception to the rule that parties to the contract only can be parties to the suit. § 147. Where the agents contract ostensibly as such, rtnd in the names of their principals, little difficulty can occur. The principals here are the proper parties to sue and be sued, and it is, in the absence of special circumstances, improper to make such an agent a party to the suit. (a) § 148. Where, on the other hand, the agents appear on the face of the agreement as principals, the case is different. The principle by which these cases are regulated is laid down with great clearness by Lord Wensleydale, in Higgins v. Senior.(6) " There is no doubt," said his lordship, " that where such an agreement is made, it is competent to show that one or both of the contracting parties were agents for other persons, and acted (o) 5 Ho. Lonls 605, .iflirming' the M. (n) King of Spain v. De Machado, 4 R."s rloeision; 17 IJeav. 115. See same case Russ. 225; Smith v. Clarlie, 12 Ves. 477, before Lonl Cranworth, as V. C, 1 Sim. X. 481. S. S'Jii, as to wliioh, see the case before the ('.-) 8 M. & W. 844. House of Lords. AGENCY. 123 as such ngonts in making the contract, so as to give the benefit of the contract on the one hand to, and charge with liability on the other, the nnnamed principals, and this, whether the agree- ment be or be not required to be in writing by the Statute of Frauds; and this evidence in no way contradicts *the ^ ^, -. wa-itten agreement. It does not deny that it is binding *- ^ on those whom, on the face of it, it purports to bind ; but shows that it also binds another, by reason that the act of the agent, in signing the agreement in pursuance of his authority, is in law the act of the principal. But, on the other hand, to allow evi- dence to be given that the party who appears on the face of the instrument to be personally a contracting party, is not such, would be to allow parol evidence to contradict the written agreement; which cannot be done." The Statute of Frauds, as w'e shall subsequently see, does not require that the author- ity of the agent should be in Avritiug where the agreement is required to be so.[l] [1] In reference to the case of Higgins v. Senior, and the rule which it goes to establish, it was said by Mason, J., in Fenly v. Stewart, 5 Sandf. Sup. Ct. 105, after quoting the decision of Mr. Baron Parke, as given in the text, "Now it requires very nice powers of discrimination, we think, to perceive how the introduction of a new party into the contract is not a contradiction of the written instrument, as w^ell as the striking out of a party already in. Ac- cording to this mode of interpreting the statute, Otis & Co. are liable on the contract before us, because they subscribed it as parties and as principals ; they cannot therefore be discharged by parol. To discharge them would be to contradict the written instrument and violate the statute; but it is no contra- diction of the written instrument, and no violation of the statute, to admit parol proof to sho\v^ that the defendants, although not named in the contract, are, nevertheless, parties to it, and are to be charged with its performance. They are to be charged as principals, not on their own signature, but on parol proof of the relation in which they stood to Otis & Co., who themselves sub- scribed the contract as principals . "It is to be observed, that the remarks of Baron Parke, which we have quoted, were not necessary to the decision of the question then before the court. The question was not whether the unknown principals should be charged, but whether the defendunts, who signed the contract in their own names, could be discharged by parol proof that they were agents merely. His remarks, therefore, although entitled to the highest respect, as coming from a 124 FRY ON SrECIFIC TEEFORMANCE OF CONTRACTS. ^ 149. The proposition iit -which wc liavc tliiis arrived, that a person ap])eaiing: as principal may yet have contracted as agent for another, ^vho may "when disclosed sue or be sued as principal, is to be qualitied by all those considei'ations as to the leliance of one pMrty on the personal qualities of the other, which have been referred to in considering how far the benefit of a contract isr.s- signable in equity. ('•) Thus it appears clear that if A. contract with B. for the performance of any thing in which B. may be (c) See ante, § 126. profound and learned jurist, yet have not the weight of an authoritj^, and Avould not be regarded as such in his own court. The doctrine which lie has thus advanced, however, is adopted by Mr. Justice Story, in his work on agency. lie says that ' a written contract, made by a factor in his own name, for the purchase or sale of goods for his principal, will bind the principal, and he may be sued (hereon exactly as if he were named in it, for it is treated as the contract of the principal as well as the agent.' (Story on Agency, § IGl.) " We were not on the argument referred to, and on investigations have not discovered any case, decided in England, supporting the position thus laid down by Baron Parke and Judge Story. The cases whicli come nearest to it are Wilson v. Hart, (7 Taunt. 205,) decided in 1817, and Truman v. Loder, (11 Ad. & Ellis, 589,) decided in 1840; but upon examination it will be found that they do not bear out the doctrine. In Wilson v. Hart, although the de- fendant was made liable for goods where the bought note was signed by one" Reed, in his own name, as principal, yet it was distinctly put to the jury to say whether it was a sale to Reed or to the defendant, who had obtained posses- sion of the goods ; and whether the mode of the purchase was not a fraudulent device between Reed and the defendant, to enable the latter, by means of it, to get possession of the plaintiif 's goods, in order to apply them to the pay- ment of a debt which was due from Reed to the defendant. Baron Parke, in Higgins v. Senior, admits that the case turned altogether on the fraud, and saj'S that if it had not, it would have been an authority for the admission of parol evidence to charge the defendant, and not to discharge Reed. In Tru- man V. Loder, the defendant was made liable on an executory contract, in which one Higginbotham appeared as principal, and the defendant's name was not mentioned ; but the decision was placed expressly on the ground that the defendant, who resided abroad, traded in England under the name of Higgin- botham ; and that all business done by Higginbotham was his, the defendant's, business, and done with his capital and credit. Besides these two cases we have found no express decisions in England apparently sustaining the doctrine of Baron Parke, in Higgins v. Senior, that upon a contract which the statute AGENCY. 125 reasonably taken to have relied on A.'s personal character or qualities, A. cannot declare himself the agent of C. so as to place him in the same position as regards B. that A. held ; and again, if A. were to contract with B. for the purchase from him of his estate, B. could not afterwards declare himself the agent for C; for C. not having the estate, could not perform the con- tract. And it may, it seems, he laid down that in no case can a contracting party declare himself the agent of an unnamed requires to be in writing, signed by the parties to be charged, a third party, whose name does not appear in tlie writing, may be charged by parol evidence, that the party signing in his own name acted as an agent for such third party. There are numerous cases in the English books, where a party has been charged on a contract signed by a broker or other person in his own name, without adding to his signature the word agent, or expressing in the mode of signing that he was acting for such party ; but in all such cases the name of the party charged is in the body of the memorandum, and it appears from its whole tenor that the party signing acts simpl}' as a broker or agent." The learned judge then continues to say that he considered the question had been settled in the cases of Stackpole v. Arnold, (U Mass. 27 ;) Pentry v. Stanton, (10 Wend. 271,) and Newcomb v. Clarke, (1 Denio, 22G.) And after a brief review of these cases he states the rule to be, that " where a contract is re- duced to writing, whether in compliance with the requisitions of the statute ■ of frauds or not, and it is necessary to sue upon the wi'iting itself, there you cannot go out of the writing, or contradict or alter it by parol proof, and con- sequently cannot recover against a party not named in the writing ; but where the contract of sale has been executed, so that an action may be maintained for the price of the goods, irrespective of the writing, there the party who has had the benefit of the sale may be held liable, unless the vendor knowing who the principal is, has elected to consider the agent his debtor." See also United States V. Parmelee, 1 Paine's C. C. 252. Minard v. Mead, 7 Wend. 68, is an authority in support of this rule. It was there held that authority by a hus- band to his wife to give notes, will not subject the husband to the payment of a note given by the wife, in her own name, without reference in the body of the note, or in the signature, to the name of the husband. A note to be bind- ing in such a case must purport on its face to have been given by the wife, as the agent, or on behalf of the husband. The case of Spencer v. Field, 10 W^end. 88, carried the principle much farther than Minard v. Mean, and probably to a greater length than would be warranted by the more recent cases. It was there held that a contract, to be obligatory upon a principal, when made by an agent, must be made in the name of the principal. If the agent contract in his own name, describing himself as agent or attorney, for his principal, the con- 126 FRY ON SPECIFIC TERFORMANCE OF CONTRACTS. principal, except where the contract, if really inatlc by the contracting party, might have been assigned by him to the party suing as principal. § 150. In these cases the agent is not a necessary party *to the suit,((/!) unless tlie agency be not proved, or L J there be special circumstances which may render it proper to make him a defendant ; as where the agent claimed to have entered into the contract for his own beneiit.(ft) (rf) Kingrlev v. Young, Dan. Pr, 188. >7utt.all. 1 U. &My. 53; Nelthorpc v. Holgate, (f) Taylor v. Salmon, 4 My. & Cr. 134. See 1 Coll. 203; ante,"j 83. also Maisliall v. Sladdeii, 7 ila. 428 ; Lees v. tract is the contract of the attorney, and not of the principal. Thus A. being principal, and B. his agent, if B. sign a contract, " B. for A.^'' this is the con- tract of the agent B. In Newcotnb v. Clarke, 1 Denio, 226, it was held that an action upon an express conti-act must, except in cases of negotiable paper, be brought in the name of the party to whom it was made ; and it is not compe- tent to show by parol that the promisee was the agent of another person, for the purpose of enabling such person to sue in his name on the agree- ment. And the decision, as we have seen, was upheld in Fenly v. Stewart, 5 Sandf. 101. Williams v. Crislee, 4 Duer, 20, is an additional and decisive authority on this point. Bosworth, J., in delivering the opinion of the court, said, "We consider the doctrine well settled, that every wriiUn con- tract made by an agent, in oider to be binding upon his principal, must purport on its face to be made by the principal, and must be executed in his name, and not in the name of the agent." " It cannot be shown by parol that the alleged agent, in signing his own name to the con- tract, in fact signed his name as agent, and thus subvert a contract, which, on its face, is his own, into a contract of his alleged principal, and make it enforceable as such. This would be altering the plain meaning and clear legal import of written contracts, by unwritten evidence, which is inadmissible." See Evans v. Wells, 22 Wend. 337 ; Stephens v. Cooper, 1 John. Ch. 429. In Massachusetts the rule has not been uniform. The case of Huntingdon v. Knox, 7 Cush. 371, rather inclines to the admission of parol evidence to charge the undisclosed principal, although the case seems to have been decided in favor of the plaintiff, upon the ground that the action was not br9ught upon the written contract itself, but for the price of the goods. A contract was made by one George B. Huntingdon for the sale and delivery of baik. Held, that the bark being the property of Mehitable Hunt, parol evidence was admissible to show that the contract was made for her benefit, and that she was entitled to recover upon it, although the fii-st payment had been made to George B. Huntingdon. See Long v. Colburn, 11 Mass. 97 ; Emerson v. AGENCY. 127 § 151. The question may sometimes arise, whether a party has, on the construction ot" the contract, entered into it as prin- cipal or as agent. The commissioners of woods and forests were by statute authorized to enter into contracts, but the estate remained in the crown : on a contract entered into by them under this authority, it was lield on demurrer that they could not be sued for specific performance, but that the contract must be enforced in the ordinary way in the case of estates vested in the crown. (y) (/) Nurse v. Lord Seymour, 13 Bear. 254. Providence Man. Co., 12 Mass. 237 ; Ballou v. Talbot, 16 Mass. 461, and Man V. Chandler, 9 Mass. 335 ; Contra, Tucker v. Bass, 5 Mass. 164. In Stackpole V. Arnold, 11 Mass. 27, Chief Justice Parker, in cases of this nature, accepts only the actual signers of the contract as parties to the suit. But in a later decision — the New England Mar. Ins. Co. v. De Wolfe, 8 Pick. 56 — he restricts the rule to instruments under seal. In the case of the Bank of British North America, 5 Gray, (Mass.) 567, it was held that a bill of exchange diawn by an agent in his own name, does not bind his principal, though made for his benefit, and containing a direction to the drawee to charge the amount thereof to his account. The law of Kentucky is illustrated in the case of Violett v. Powell, 10 B. Monr. 347. It was there held, that in parol contracts, the principal is bound by any of them made by the agent within the scope of his authority, given, or subsequently lecognized, although the contracts are made in the name of the agent, appearing, at the time, to act for himself, so that, in fact, the principal could not have been made responsible. It was further decided, that if an agent take a bond to himself instead of his principal, the parol contract is so far merged in the written agreement that the principal cannot maintain an action on the contract in his own name, but it must be in the name of his agent in the written agreement. But the contract made by the agent is the contract of the principal, in case he is defendant. And if the agency is dis- closed at the time of the contract, although it be by deed in writing, if the agent contracts as such, the principal may be sued in an action at law. And if the principal is not known at the time of the contract, and is subsequently discovered, the other party may sue either principal or agent, at his opinion. In Georgia, an instrument executed by an agent will be held binding upon the principal, only where it is evident that the credit was not given to the agent, and the name of the principal was disclosed at the time of the transac- tion. Merchants' Bank v. Central Bank, 1 Kellj^ 418. In Michigan it is said, that where it distinctly appears in the body of a })arol agreement, signed by an agent in his own name, without the addition of the 128 FRY ON SPECIFIC PERFORMANCE OF CONTRACTS. § 152. In the case of a contract by an agent as a principal, the agent may at law sue in his own name, Avithout in any way joining the real principal : in equity, however, it appears clear that a suit cannot be maintained by the agent, unless his real principal be in some shape a p8.rty to the suit.(,^) § 153. The principle already stated(/() that a person appear- ing on a contract as principal, though really an agent, is yet liable on the contract as principal, applies in cases of specific perform- ance in equity as well as of damages at law.(2) In a recent case(/) where the contract was in the name of the agent, who con- tended that, being merely such, the bill should ])e dismissed as against him, Lord J. Turner, then vice-chancellor, said that " the signature of the agreement was sufficient to subject him to the lial)ility of performing it." It would appear on principle, r *-A "I that if at the *time the contract was signed, both A. and B., understood that A. was acting merely as agent for C, and B. were afterwards to sue A. for specific perform- ance as principal, A. might allege the understanding between (g) Per Lord Lyndhurst in Small v. Att- (0 Jones v. Littledale, G A. & E. 486 j wood, You. 457. Ma^ee v. Atkinson, 2 M. & W. 440. (h) Ante, § 148. {Ic) Chadwick v. Madden, 9 Ha. 191. name of the principal, that the principal is the contracting party, the agree- ment will be construed to be that of the principal, and not of an agent. City of Detroit v. Jackson, 1 Doug. 106. In Alabama the same rule is followed as in [the state of New York. Clea- land V. Walker, 1 Ala. 1058. McTyer v. Steele, 26 Ala. 487. And see Daw- son V. Cotton, 26 Ala. 591, a case of a promissory note under seal. In Mississippi, it was decided in Edwards v. Simmons, 27 Miss. (5 Cush.) 302, that where J/. borrowed money of JB. and gave his note for it, and C. signed his name as security, trusting alone to Jjf., who did not disclose that he acted as agent for D. or any body, and B. sued D., alleging that j/. acted as his agent, J), could not be made liable to B. unless proved to be the party trusted. In California, it was held in Kuiz v. Norton, 4 Cal. 355, that the principal may sue on a written contract, made and signed by his agent, without dis- closing him as principal ; but in order to maintain the action, he mu.st show the agency and the power of the agent to bind him at the time : and the same defenses would be available against the newly discovered principal, as against the agent with whom he dealt as principal. AGENCr. 129 himself and B. at the tnne, and gave parol evidence of it, and tliat, if the allegation was proved, it might furnish a valid defense ; though the circumstances supposed would of course furnish no defense at law,(/) unless by way of equitable plea. And in many cases it is obvious that a suit for specific perfor- mance against an agent alone would fail from the incapacity of the agent to perform it.{m) {I) Higgins V. Senior, 8 M. & W. S34. (m) See post, § 658 et seq. 130 FRY ON SrECIFIC TERFORMANCE OF CONTRACTS. PART III. OF THE DEFENSES TO THE SUIT. [*71] *CHAPTER I. OF THE INCAPACITY TO CONTRACT. ^ 154. The incapacity to contract, of either of the parties to an agreement, furnishes ground on which that party may resist the specific performance of the contract ; and on the principle of mutuality, hereafter to be considered, it may also furnish a de- fense to the other party, though himself perfectly competent. The incapacity to contract, and the incapacity to execute a con- tract, are of course different questions : the one must be judged of at the time of the contract, the other when its performance is sought. § 155. The question as to the capacity of persons to contract, as raised in suits for specific performance, being for the most part identical with the question as discussed at common law or elsewhere, and having no peculiar relation to the jurisdiction of equity in specific performance, I propose only to refer to a i'ew points of practical importance which may arise in suits of this nature. § 156. The peculiar doctrines of equity with relation to married women make it necessary to allude to their capacity to contract. The principal on which the court proceeds is, that if a married lady have not separate property, she cannot contract at all ; and if she have she can contract, but only in respect of that, and the remedy is only against it, represented by the trustees, and not tn , personam *against her.(«) " A feme covert," said Lord ■- -' Cottenham,('') "is not competent to enter into contracts (a) Francis v. Wi}?zell, 1 Mad. 258 ; Ay- ters as to which she can be rcganled for the Iclt V. Ashton, 1 My. iV. Cr. IOj. See .also purposes of the contract as a feme sole : so Hiimphievs v Hollis, Jac. 7.'5. The case of that a wife snins? lier husband lor divorce Vansiltart v. Vansiltart, 4 K. & J. 6'2, de- on the ground of adultery and cruelty may cides that the power of a wife to contract contract with him to abandon her suit, with her hu.sbaud is not conlined to her sep- (6) 1 My. & Cr. HI, 1V2. arate property, but extends to other mat- INCArACITY TO CONTRACT. 131 SO as to give a personal remedy against her. Although she may become entitled to property for her separate use, she is no more capable of contracting than before ; a personal con- tract would be within the incapacity under which a feme covert labors."[l] [1] A feme covert will be treated as a feme sole, only as to the disposition of her separate property; and her power of disposing of property, settled to her separate use, will be governed by a strict interpretation of the powers given by the settlement. Methodist Church v. Jacques, 3 John. Ch. 77. And therefore, where a wife had power, under a marriage settlement, to "give and bequeath" the property, at her death, "to whomsoever she pleases," but had no separate estate, and she executed an instrument under the power, therein styled a " will," and appointed y/. her "executor ;" held, that such instru- ment was a mere execution of the power, and that yf. therefore was not an "executor," but that he was an appointee in trust, and that the property vested in him for the benefit of creditors and legatees. Leigh v. Smith, 3 Ired. Ch. 442. But where a feme covert has a separate estate, she may dis- pose of it as she pleases, even to her husband, if done freely and voluntarily, and the court will confirm her disposition. Dallam v. Wampole, Pet. C. C. 116. She may mortgage her separate estate for her husband's debts ; and a power of sale, in such mortgage, pursuant to the statute, is valid. Demarest V. Wynkoop, 3 John. Ch. 129, (Kent, Ch.) A married woman being, as to her separate estate, treated as a feme sole, may, in person, or by her agent, bind the estate for the payment of debts contracted upon the credit of such estate ; and the assent of her trustee is not necessary, if the instrument cre- ating the trust contains no restriction upon her power. North American Coal Co. v. Dyett, 7 Paige, 9. And she may bind her separate estate for debts con- tracted by her, on the credit of such estate, even though her husband should be the creditor. Gardner v. Gardner, 7 Paige, 112. A feyne covert is, in all cases, to be treated as a feme sole, in respect to her separate estate, so far as to dispose of it in any way, not inconsistent with the terms of the instrument under which she holds. Leaycraft v. Hedden, 3 Green's Ch. 512. And if, by the deed, the wife is permitted to dispose of her separate property by deed, will, or otherwise, at her pleasure, her right of disposition remains as before marriage, in respect to her estate. But if the terms of the deed require a particular mode of disposition, then, as clearly those terms must be observed, her power is limited by them, and she is a, feme sole sub modo, and only to the extent of the power expressed. lb. The same doctrine is repeated in Clark T. Makenna, 1 Chev. 103, 2d part ; Morgan v. Elam, 4 Yerg. 375 ; Vizon- neau v. Pegram, 2 Leigh, 183; and Williamson v. Beckham, 8 Leigh, 20. A feme covert, with the consent of her trustee, may reinvest her separate trust property as she may think proper. Frazier v. Center, 1 McCord's Ch. 270. 132 FRY ON SPECIFIC TERFORMANCE OF CONTRACTS. § 157. In one casc,(c) n married lacly possessed of separate estate, and livinii^ .separate iVom her Inisband, verbally eontracted to take a leasehold house for a term: the agreement was reduced into writing, and signed by the lessor's agent, and handed to the lady ; she retained it, but without executing it, or any counter- part of it, but in letters written by her referred to it as an agree. (c) Gastou V. Frankum, 2 Dc G. & Sm. 561. Where a married woman, by a contract under seal, charged the pa)'ment of a debt on her real estate, which was settled on her Ijy a deed of trust, with a power to sell and convey, and absolutely dispose of the same by deed, her coverture notwithstanding, it was held that a court of equity would enforce such a contract, and decree a sale of the land to pay such charge, and that the power given her to sell, necessarily, included the power to incumber it by mortgage, or charge it by contract. Price v. Bigham, 7 Har. & J. 296. The separate property of a feme covert was sold on execution against such property as had come to her by descent or devise from the debtor, and the husband received the surplus proceeds of the^ sale, and died. Held, that the wife was not bound by the act of her husband, and that, the money not having been applied to the benefit of her separate estate, she was not bound to refund it on the reversal of the judgment, and the recovery of the land by her. AVood V. Genet, 8 Paige, 137. Where a husband purchases real estate, in his own name, with the money of the wife, a purchaser, with notice of these facts, will be held to be a trustee for the wife. Methodist Church v. Jacques, 1 John. Ch. 450. The wife's equity in her separate personal or real estate, de- vised or descended to her during coverture, may, in a proper case, extend to the whole estate; and it cannot be defeated by any act of the husband. Ilavi- land V. Bloom, 6 John. Ch. 178. A feme covert may become the debtor of her husband, by borrowing money of him, for the benefit of her separate estate. Gardner v. Gardner, 22 Wend. 526. But though her estate may become liable, in equity, for debts contracted in reference to such estate ; yet, in order that it shall be bound, it must distinctly appear that the dealings were bona fide with her, and that the goods were delivered, or the money paid, to her own order, or into her" hands. Magwood v. Johnson, 1 Hill. Ch. 228. And the separate property of a wife, settled upon her at her marriage, is not primarily liable for her debts contracted before marriage. Knox v. Picket, 4 Dessau. 92. See McKay v. Allen, 6 Yerg. 44. The wife of a person perpetually banished, is, for the purpose of contracting or maintaining suits, to be treated as a feme sole. Troughton v. Hill, 2 Hayw. 406. See farther, as to the separate property of a feme covert, the cases of Brun- dige v. Poor, 2 Gill & J. 1. Tiernan v. Poor, 1 Gill & J. 21G. INCAPACITY TO CONTRACT. 133 ment, and she entered into possession : in a suit by the lessor against her and her trustees to enforce payment of rent, as a charge on her separate estate, the vice-chancellor held that she would have been bound, if she had been a feme sole, and that, being married, she was bound to the extent of her separate estate. § 158. If a married woman has a power to be exercised in a specific way, and she affects to contract by an exercise of the power, but without the, required formalities, there will, it seems, be no decree against her ; for, except under these formalities, she has no power to contract, and the paper signed b}' her is as void as an agreement signed by a married woman. (J) § 159. In suits for the enforcement of contracts against the separate estates of married ladies, the proper parties are the lady herself, her husband, and the trustees of the separate prop- erty, (e) *§ 160. It is to be added that, with regard to real es- r^^o-i tate, a married lady may, under the act for the Abolition '- ^ of Fines and Eecoveries,(/) not only dispose of the land, but contract respecting it, if not so as to render herself liable to damages, yet so as to bind her estate of inheritauce.(5') § 161. Lunatics are under an incapacity to contract, except during lucid intervals, during which time contracts entered into by them are as binding as if made by a person of perfectly sound mind.(//) [2J Where a person who has entered into a contract (d) Martin v. MitcheU, 2 J. & AV. 413, (h) Hall v. Warren, 9 Ves. 605. As to 434. the evidence required to jDrove a lucid inter- (e) See Hulnie v. Tenant, 1 Bro. C. C. 16 ; val, see Attorney General v. Parnther, 3 Murray v. Uarlee. 3 My. & K. 2Uy. Bro. C. C. 441 ; Kx parte llolylaiid, 11 Ves. (/) 3 1% 4 AV. IV. c. 74. 10. Sec also Kay's Medical Jurisprudence (g) Crolts V. Middleton, 25 L. J. Ch. 513, and Insanity, ch". 14, before L. J. J., overnUing S, C. 3 K. & J. 194. [2] Therefore, where a person subject to temporary insanity, in a lucid in- terval, sold property for a full price, for the payment of urgent debts, his friends advising and consenting to the sale, it was held that such sale should not be set aside. Jones v. Perkins, 5 B. Monr. 222, A deed by a lunatic is voidable, and not void. Breckenridge v. Ormsby, 1 J. J. Marsh. 236. And Avhere a person has contracted with a lunatic in good faith, and without notice of the lunacy, equity will not rescind the contract, restoring to such person the ben- 134 FRY ON SPECIFIC PERFORMANCE OF CONTRACTS. is subscqucnlly found luimtic from a date prior to the contract, it is conii)etent for the other party to tile his bill for specific per- formance, and obtain an issue to enquire whether the defendant was a lunatic at the time of the contract, and, if so, whether he had lucid intervals, and whether the contract was executed dur- ing a lucid interval :{i) or he may ask in the alternative, to have the contract either performed or discharged ; and in the latter case the court will allow him, if vendor, to retain out of the deposit his costs, charges and expenses.(^) In judging of the insanity of a party, courts of equity are governed by the same principles as courts of law.(/). § 162. The subsequent lunacy of a party to a contract in no- wise affects the rights of the other parties ;(m) and the difficul- (i) Hall V. Warren, tibi sup. (/) Per Lord Hardwicke in Bonnet v. (k) t'rost V. Beavan, 17 Jur. 369. As to Vade, 2 Atky. :-!27 ; Osmond v. Fitzroy, 3 setting asiile a contract lor the lunacy of a P. Wnis. r29. See ))Ost j 239. party, see Neill v. Morley, 9 Ves. 478. (>«) Owen v. Davies, 1 Ves. sen. 82. efit derived from the contract by the lunatic's estate. Carr v. Halliday, 1 Dev. & Bat. Ch. 344. It is said, in Breckenridge v. Ormsby, supra, that although a lunatic may not be permitted to disaffirm a deed made by him under mental disability, j^et the purchaser from the lunatic vendor, after his recovery of sanitj', will have as much right to avoid the first deed as the vendor or his heir had. In Gates v. Woodson, 2 Dana, 452, where a lunatic conveyed a lot of land to ^., and afterwards, when sane, conveyed the same to another person, it was held that although the first deed was not absolutely void, yet the second grantee might avoid it. Among those who are incapacitated to contract are habitual drunkards. They are, during their intoxication, considered as lunatics. But their drunk- enness must be so complete as to deprive them of the proper exercise of their minds, and thus withhold the unqualified and perfect assent which equity re- quires for the validity of a contract. See Harrison v. Lemon, 3 Blackf. 51. So in Belcher v. Belcher, 10 Yerg. 121, the fact that the party was intoxicated when he executed the conveyance, no undue advantage being taken of his Situation, and it appearing that he was capable of transacting business at the time, was thought to constitute insufficient grounds for setting aside the sale. And in Harrison v. Lemon, supra, it is added that unless it appears that there was unfairness in the transaction, or that the drunkenness was produced by the procurement of the grantee, the court will not, upon the opinion of one wit- ness that the grantor was incapacitated by drunkneness for negotiating, avoid bis deed. NON-CONCLUSION OF THE CONTRACT. 135 tics which formerly stood in the way of their remedies arc now removed by the Trustee Act, 1850, and the Lunacy licgulation Act, 1853, s. 122. *6 1G3. In addition to the le3. 65t. fSee also Aieynell V. Surtees, IJur. N. S. (x) Uoutledge v. Grant, 4 Biug. (J53; Cooke 737, (L. C.) V. Oxley, 3 T. U. G52. dues is paid over to the agent. £. expresses dissatisfaction, whereupon ^. writes to B.: " Re-peruse the accounts, make out a statement according to your wishes, and draw on me for the balance, which shall be punctually hon- ored." Two years afterwards, B. being pressed by a creditor, draws a bill on ji. in favor of the creditor. It was held that A. was not bound to accept or pay a bill so drawn. It seems, also, that where a merchant receiving goods on consignment, under an offer of sale, after he had ascertained the value of the goods by actual sale of a large part of them as factor, and, twelve days after the receipt of the goods, assented to the offer of the consignor, such assent will not be binding upon the consignor. In the case of Mactier v. Frith, 6 Wend. 103, it is said that a willingness to enter into the agreement by the party offering, is presumed to continue for the time limited ; and if that time be not limited by the offer, then until it is expressly revoked or countervailed by a contrary presumption. But these remarks, though applicable to the case then under consideration, it seems, are evidently not intended to be construed in their broadest interpretation. [7] If an offer is made, and instantlj' recalled, before acceptance, " although the other party was prepared to accept it the next, the ofi'or is effectually withdrawn." Pars. Contr. vol. 1, p. 405. Mactier v. Frith, 6 "Wend. 103. It is said, in The Palo Alto, Daveis, 344, that in all engagements formed inter absentes by letters or messengers, an offer by one party is made, at law, at the time when it is received by the other. Before it is received, it may be 144 FRY ON SPECIFIC PERFORMANCE OF CONTRACTS. § 170. In the second place, the refusjil of the person to whom the proposal is made puts an end to it ; and it will not be re- vived by a sul)sequent tender of acceptance. (?/) [8j *§ 180. As it is competent to the proposer to recall ' J his proposal at any time before acceptance, so also he (?/) Ilvde V. Wrench, 3 Beav. 334. The de- from acts after an explicit refusal, cannot cislon in Hodges v. Hutchenson, 5 Vin. Abr. probably be maintained on this point. 52'i, pi. 34, which inferred an acceptance revoked. So the revocation in law is made when it is received, and not be- fore. If the party to whom the oflFer is made accepts and acts on the offer, the engagement will be binding on both parties, though, before it is accepted, another letter or messenger may have been dispatched to revoke it. [S] In the case of Boston and Maine Railroad v. Bartlett, 3 Gushing, 224, there was a proposition to sell land, at a stated price, the answer to be given in thirty days. Fletcher, J., in delivering the opinion of the court, held, that though this offer was a continuing one, " during the whole of that time it was an offer every instant," yet, that it might be revoked at any time before ac- ceptance. But if unrevoked at the time of acceptance, it becomes a valid and binding contract. See also Pars. Contr. 404 and 405. Foster v. Boston, 22 Pick. 33, is an interesting case decided on the same point. The case was this : In March, an offer was made to the city of Boston, by several memorialists, to relinquish their interest in the land which would be required to lay out a certain street, provided it should be opened within the year. In i\pril, the city voted to appropriate a certain sum for that year, to be paid to the memorialists in full for all exi)cnses and damages when the street should be completed. In June, two of the memorialists sent a letter to their associates and the mayor, explaining their offer to be to relinquish all damages for the land, but not the expense of removing the buildings, &c. In October, the city passed an order to lay out the street, and it was done within the year. Soon after the passing of this order, the said two memorialists protested against the laying out such street, and said that they should claim damages, and accord- ingly made complaint. It was held that the offer was a continuing one for the year, if not revoked or rejected; that the vote of April was not a rejection, but a distinct proposition ; and that, by passing the order the city accepted the offer as explained by the complainants, and that it then became a binding con- tract, and that the offer was several in its operation, and not joint. It is, in all cases, the final assent, the positive and unqualified acceptance of the one party, that renders the offer obligatory upon the party making it. And, there- fore, when an engagement is made by a party to decide, on the happening of a particular event, whether to accept an offer of a contract of sale, the contract is not completed on the happening of the event, until the decision is made. Mactier v. Frith, 6 Wend, 103. NON CONCLUSION OF THE CONTllACT. 145 may vary it by the introduction of any new term into it. And as the person to whom the proposal is made may, of course, oiler to accept the terms proposed, Avith any variation or addition, it follows that each party may continue to add fresh stipulations to the proposed contract, until the terms proposed hy one side have l)een definitely accei)ted by the other.(^!) Therefore where the owner of an estate made a proposal requiring, amongst other things, the payment of <£150{) by way of deposit, the ])urchaser objected to it, and before he accepted the terms, the owner required it to be paid and the agreement to be signed before a given day, or the ti'eaty to be at an end, and this was not com- plied v/ith, but a subsequent ofier was made to sign the agree- ment and pay the deposit ; the court held that there was no contract. (« J [9] § 181. It being sufficient to satisfy the Statute of Frauds that the writing be signed by the party to be charged, (/>) it follows that a proposal in wa-iting, where simple assent is required and the acceptance is not to supply any term,(c) may be so accepted as to constitute a contract binding on the proposer by other means than a written acceptance. § 182. (1) Thus it seems that an acceptance by parol is suf- ficient, as was recently held by Vice Chancellor Kindersley,(tZ) (z) Iloneyman v. Mam-at, 21 Beav. 14, (f) Boys v. Ayerst, 6 Mad. 316. affirmed in b. P., 6 Ho. Lords, 112. (rf) Warner v. Willington, 3 Drew. 523. (a) S. C. See accordingly, Smith v. Xeale, 26 B., X. (b) See post, § 346. S. 67, 88. In reference to an alleged want of consideration, in contracts of this kind, Fletcher, J., in the case of the Boston and Maine Rail Road v. Bartlett, cited above, says : " The acceptance by the plaintiffs constituted a sufficient legal consideration for the engagement on the part of the defendants. It was pre- cisely as if the parties had met at the time of the acceptance, and the oiler had then been made and accepted at once." It seems to be clear that these cases are no more invalidated for want of consideration, than those where an instantaneous assent is given to the proposition offered. Pars. Contr. vol. 1, p. 406. Wright v. Bigg, 21 E. L. & E 591. Frith v. Lawrence, 1 Paige, 434. Notice of refusal to accept is not necessary : it is suffipient if there is no evidence of acceptance : and whether there has been an acceptance or not, is a question for the jury. Corning v. Colt, 5 Wend. 253. [9] See Foster v. Boston, 22 Pick. 33. 146 FRY ON SPECIFIC PERFORMANCE OF CONTRACTS. in a case in which he observed on the want of previous autlior- ity distinctly to establish the point. In Coleman v. Upcot,(e) where there was first an accei)tancc by the plaintiff by parol, and subsequently a subscription by (he plaintiff, the parol acceptance appears to be the ground of the decision that there was a binding contract. *§ 183. (2) So. generally speaking, where the pro- L J posal comes from the defendant, the acceptance need not be proved by the plaintiff, the tiling of the bill being prima facie evidence of its accept.ance, liable to be repelled by proof, on the part of the defendant^ of the proposal having been previously deterniined.(/) § 184. (3) On a like principle the acceptance of a proposal may be by acts, so as to bind the person making the proposal. Thus, for example, where an uncle of a young man sent pro- posals to the friends of the lady, to which no answer was re- turned, but the young man was admitted as a suitor, and the marriage ensued, it was held by Lord Nottingham to amount to a complete agreement, which ought to be performed on all sides.(_(7) The principle is also established by the cases here- after considered, of representations made by one person, and acts done by another on the faith of those representations.(//) § 185. In contracts constituted by proposal and acceptance, it is obvious that the question may arise, at what time the treaty was converted into a contract. The contract is perfected by the posting of a letter declaring the acceptance, because thereby the acceptor has done all that is requisite on his part, and is not answerable for the casualties of the post-office. (^) Hence it fol- lows that the contract dates from the posting and not from the receipt of the letter of acceptance.(/<') In case of there being an agent for the proposer, the communication of the acceptance (e) 5 Vin. Abr .IST, pi. 17; cf. Palmer v. ceptance after an explicit refusal; as to Scott. 1 R. & My. 3!)1. wliicli see ante, j 179. (f) Boys V. Ayerst, 6 Mad. 31G. (0 Duulop v. Higgins, 1 Ho. Lords, 381; \g) Parker V. Serjeant, Unch, 146. Duncan v. To]>ham, S C B."i-25; Adams v. (k) See post, § 1«7 et seq. Sec also Hodg- Lindsell, 1 IJ. & A. 081; Stockeu v. Collin, 7 son V. Hutchenson, 5 Vin. Abr. 5'i2, pi. ;i4, M.&W.515. ■where acts ■\vere held to amount to an ac- (/.) Potter v. SaunderS; 6 Ila. 1. NON- CONCLUSION OF THE CONTRACT. 147 to him completes the contract, thouirh the jiL'cnt m;iy fail to make known the acceptance of his principal. (/) [lOj § 186. One common form of agreement in the nature of *a proposal and acceptance is wheio there is on the one r #00 i part an jigreenient to do a certain act on demand, and on the other part that demand has been made.(?yi) (/) Wright V. Bigg, 15 Beav. 592. (w) Beatson v. Nicholson, 6 Jur. C20. [10] An example of the full extent of this doctrine is afforded in Vassar v. Camp, 1 Kernan, (N. Y.) 441 ; the principle of which is, with- out doubt, the law of the State of New York. ^. proposed, by mail, a contract with Ji., the parties being distant from each other. £., accepting the contract, dc{)Ositcd his acceptance in the post-office, ad- dressed, and to be forwarded to A. Jl. did not receive the acceptance. Held, that the contract was complete and binding. Mactier v. Frith, 6 Wend. 103, is a decision of much importance on this subject, and one which has, in a great measure, influenced the more recent decisions throughout the country. It was there held, that where a joint owner of a cargo of brandy ordered from France, and supposed to be at sea, wrote from St. Domingo to his co- owner, in New York, on the 24th of December, proposing that the latter should take the adventure solely on his own account, and he on the 17th, in answer to the proposition, said he would delaj^ coming to a determination until he again heard from the party making the offer, and the owner in St. Domingo, on the 7th of March, acknowledged the receipt of the answer, say- ing he had noted its contents, and on the 28th of March, by another letter, confirmed the offer made in December, and the owner in New York, on the 25th of March, after the arrival of the brandy in port, wrote to the owner in St. Domingo, that he had decided to take the adventure to his own account, and had credited him with the invoice, that the offer to sell remained open, and that its acceptance on the 25th of March closed the bargain, not- withstanding that the letters of the 25th and 28th of March, did not reach their destination until after the death of the party accepting, which hap- pened on the 10th of April. Busbon v. Boyd, 4 Paige 17, and Clark v. Dales, 20 Barb. 42, are authorities to the same effect. In Connecticut, New Hampshire, Pennsylvania, Georgia, Kentucky and Alabama, the courts have followed the decision of Mactier v. Frith, and the English case of Adams v. Lindscll. See Averill v. Hedge, 12 Conn. 424. Beckwith v. Cheever, 1 Foster, 41. Hamilton V. Lycoming Ins. Co., 5 Barr, 339. Levy v. Coke, 4 Geo. 1. Chiles v. Nel- son, 7 Dana, 281. Falls v. Gaither, 9 Porter, 605. In Tennessee the rule is the reverse, Gillespie v. Edmonston, 11 Humph. 553 ; as it is likewise in Mas- sachusetts.* McCuUough v. Eagle Ins. Co., 1 Pick. 278. The variance be- tween the law of the latter state, and that of the supreme court of the 148 FRY ON SrECIFIC rERrORlIAXCE OF CONTRACTS. § 187. Another species of contract by proposal and acceptance is constituted Iiy a promise or representation made by one per- son, and acts done by another person on the faith of such prom- ise or representation. "A representation," says Lord Cotten- ham,(a) "made by one party for the purpose of influencing the (») In Ilaiiimersly v. Du lUel, 12 CI. & tlonc in rclijvnce on the representation, no Fin. 62, n ; cf. Ayliffe v. Tracy, 2 P. Wms. contract arises. 64, which shows that where the" act was not United States, is best illustrated by a comparison of the case of Tayloe v. Mer- chants' Fire Ins. Co., decided in that court, and the case of Thayer v. Middle- sex Mutual Fire Ins. Co., found in 10 Pick. 326. In the former case, it was held, that in a correspondence to effect the insurance of a house, when the insurance companj"^ had made known their terms, and the other party had put a letter in the post-office accepting their terms, that the contract was complete : and the property having been destroyed by fire while the letter was still in transit, that the company were responsible. Thayer v. Middlesex Fire Ins Co. was this : On the I5th of Januar}^ an application was made on behalf of the plaintiff, who lived at Hopkinton, to the defendants, an insur- ance company at Concord, for insurance upon the plaintiff's buildings. The defendants stated the terms on which they would insure them, and prepared a written application and a premium note, both bearing date of the 16th, to be signed by the plaintiff: and upon their Vjeing returned to the defendants by mail, a policy bearing the same date was to be forwarded to the plaintiff. The plaintiff's agent, who ■wsl?^ postmaster at Hopkinton, presented the written application and the notes to the plaintiff on the 28th, and the plaintiff signed them forthwith, and left them in the hands of the postmaster, to be forwarded to the defendants. There was a mail every Saturday, and these papers were mailed and forwarded on Saturday, the 3rd of February : but the defendants refused to give the plaintiff a policy, the buildings having been destroyed by fire on the 31st of January. In an action for the loss, it was held that no contract of insurance had been completed between the parties, the papers si'^ned being in the hands of his agent, and were not receiveable until after the buildings had been destroyed. The cases may not, perhaps, be directly op- posed to each other, but the principle upon which they rest are certainly not analagous. From the moment when the minds of the contracting parties meet, signified by overt acts, the agreement is obligatory, although a knowl dge of such occurrence is not known at the time to both parties. Mactier v. Frith, 6 Wend. 103. But this assent must, under all circumstances, be signified by overt acts ; and therefore an intention to insert in a letter an acceptance of an offer by a person to whom it is directed, but which is accidentally omitted, is of no effect. Frith v. Lawrence, 1 Paige, 434. NON-CONCLUSION OF THE CONTRACT. 149 conduct of the other party, and acted on by him, will in general be sufficient to entitle him to the assistance of this court for the purpose of realizing such representation." § 188. Representations are of two kinds : the one, of things past or present, the other of things future : the one, of things done or existing, the other, of things to be done. With regard to the former class, whenever a representation as to something alleged as u then existing fact, Avhich representation is not true, has been made by a person who knows it to be untrue, or does not know it to be true,(o) to another person in order to induce him to an act, and that act has been thereupon done by the second person to his prejudice, the person making the repre- sentation will not be allowed either in equity or at law after- wards to turn round and deny the alleged fact : "It shall be," said Lord Mansfield, (^j) "as represented to be." Thus, for example, where one person represented to another, on a treaty for marriage with his daughter, that a certain demand was not existing, he was afterwards restrained l^y the court from proceed- ing to recover the demand :(q) and Avhere, in a. recent case, a father represented *to a future husband of his daughter, ,. ^ , that she was entitled, after the death of her parents, to •- ^ £10,000, and she was in ftict only entitled to about half that amount, the balance was recovered from the father's estate.(r) But in these cases, the court acts merely on the principle of preventing fraud, and not at all on contract ',(s) and they there- fore do not properly come in for discussion here. § 189. But with regard to representations of something future, and wdthin the power of the party making the statement, the case is different ; for such a representation, made for a particu- lar purpose by one person, and followed by conduct in pursuance of it by the other, constitutes a true and proper contract. (0) Per Sir Wm. Grant In Ainslle v. Mod- aM ; Howard v. Hudson, 8 Ell. * Bl. 1 ; Fos- lycott. 9 Ves. 21. ter v, Montor Life Assurance Company, 3 ( /-) In Monlefiori v, Monteflori, I Win. Ell. & Bl. 48, Black. 304 (r) Bold v. Hutchinson, 20 Beav. 250, (5) Neville r. Wilkinson. 1 Bro. C, C. affirmed 5 He G. M. & G. &5S, on diflorent 543. See also Gale v Lindo, 1 Vorn. 475 ; grounds. See also Jameson v. Stein, 21 Scott V. Scott, 1 Cox. 3156 and at law. ]Mon- Beav. 5. tofiori V, Montetiori. 1 AYm. Bl- 3()3; IMek- (s) Per Loi-d Cranworth iu Money v, Joi>» ard V. Sears, G A. 4(59; Gregg v. Wells, 10 den, 2 De G. M. & G, 332. A. & E. aO; Freeman v. Cook, 2 ExoU, 150 FRY ON SPECIFIC PERFORMANCE OF CONTRACTS. "There is no middle term." said Lord Cranworth,(0 " no ter- iium quid between ;i representation so mude to be efl'ective for such a purpose and a contract ; tliey are identical." § 190. lu order to enable the court to give relief on the gi'ound of contract, to a person having acted on the faith of another's statements, the representation or promise on which he relies must be clear and absolute. Therefore where a father, after de- clining to enter into a settlement, added that he should allow his daughter the interest of £2000, and that if she married ho might bind himself to do it, and pay the principal at his de- cease, it was held not to be an absolute agreement. (/<) § 191. Where the representation is merely of what the party intends to do, or the promise is one for the performance *of which the person making it refuses to contract, and r*85 1 . . •- J iusists that the recipients shall rely on his honor, the en- gagement is of a merely honorary nature, and therefore not en- forceable by th^court.(y) In one case the guardians of a 3'oung lady, who was a njinor, objected to her marriage until a suitable settlement shojild be made on behalf of her intended husband : his uncle, from whom he had expectations, having been pre. viously consulted on the matter, was informed of this resolution ; in reply to which he wrote to his nephew, " My sentiments re- specting you continue unalterable: however, I shall never settle any part of my property out of my power so long as I exist. My will has been made for some time, and I am confident that I shall never alter it to your disadvantage. I repeat that my Tipperary estate will come to you at my death, unless some un- foreseen occurrence should take place." The letter further al- leged that, as he had never settled any thiug on any of his nephews, his doing so in this case would cause jealousy in the family : this letter the writer desired might be communicated to the young lady's guardians. It was held that the intention of the uncle was not to settle his property, and that therefore the letter could not be treated as a contract. (?y) {t) In JUaimBell v. White, 4 Ho. Lords, {v) Cf Lord Walpolo v, Lord Orford, 3 1056. Vos. Am ; infra, § ;59.-i (ii) Randall v. Morgan, 12 Ves. 67. See {w) Maiinsell v. White. 1 Jou. & L. 539, ttie obsorvallons on tlij.s case, of Lord St. aflirmod 4 Ho, ot'LonU, lOji), Leonards in Muunsell v, White, 1 Jou, & L, m. NON-CONCLUSION OF THE CONTRACT. 151 § 192. Tlic same principle governed the decision of the case of Money v. Jorden :(.»;) the facts of the case were, shortly, that B. was under a bond for the payment of a sum of money to A.; that B. being about to marry, A. said she should never distress him about the bond, that she had given it up, and would never enforce it : but on being requested to give up the bond, she declined to do so, saying that she would be trusted, and that B. might rely on her word. B. married, and A. subsequently having put the bond in suit, *B, sought the interference r^Q..T of the court by injunction. The representations in ^ -■ question were held to be binding by the master of the rolls in the lirst instance, by Lord Justice Knight Bruce on appeal to the lords justices, and by Lord St. Leonards in the house of lords, whilst the contrary was ultimately decided by a majority in the house, consisting of Lords Cran worth and Brougham. The question was in a considerable part one of evidence. But Lords Cranworth and St. Leonards diftered as to the effect of a repre- sentation of intention, the latter holding such to be binding, and the former not.(?/) § 193. On the same principle it was that where a settlement was not ready at the time of the marriage, and the lady married on the husband's engagement in honor that she should have the same advantage of the airreement, as if it were in writino- and duly executed, the court refused to interfere, as the engagement was merely honorary.(s) And again, where letters were sent containing what only amounted to a general assurance that, if a tenant acted to the satisfaction of his landlord, he would deal honorably and handsomely with him in regard to renewing his lease, this assurance was discriminated from a matter of contract, and was not enforced l)y the court,(rt) § 194. The circumstances of the case of Morehouse v. Colvin(/>) were these. A testator, who had by his will bequeathed XI 2,500 to his daughter, wrote a letter to an old friend of his in India, (.t) 15 Beav, 372; 2 Do G. M, & G. 318; 178; Cross v, SprJgg, 6 Ha. 553, and infra. 5 Hi). Lnvds, ISo. §5 200, 'i02. {!/) WlLU rogarii to the force of an ex. {z) Visoountess Montacute v. Maxwell, I prcsslon of inteiitlo)!, see, besifles Mie cases P. Wms. (J18. ubovo stiitotl, >'ortou v. Wood, 1 It. & My. (a) I'rice v. Ashotou, 1 i'. & C. Ex. iih 16) 18 Benv. 341, 152 FRY ON SPECIFIC PERFORMANCE OF CONTRACTS. to whom the yoiino; lady was consignetl, and therein stated that, in case of her marrying with his approbation, her hus^hand should have £2000 on the marriage, and continued, "nor Avill that be all ; she is and shall be noticed in my will ; but to ^ what further *amount I cannot precisely say, owing to r *8 7 1 .7 J ' » L J the present reduced and reducing state of interest, which puts it out of my power to determine at present what I may have to dispose of." The substance of these terms was com- municated to the intended husband : the testator revoked his will, and made another, omitting the legacy, and giving his daughter a residuary and contingent interest : the master of rolls, and afterwards the lords justices, held that there was no contract which could be enforced. § 195. We will now proceed to consider the cases in which a representation, followed by conduct of the party to whom it is made, has been held to be binding;. § 196. These cases have, for the most part, turned upon representations made in the course of marriage treaties, fol- lowed by marriage made on the faith of such representations, — a class of cases in which the court is inclined to attach more than ordinary weight to the language of the one party, when it is calculated to convey a false impression to the other.fc") § 197. Where the proposal is in writing, the marriage and other acts are relied on only as evidence of acceptance ; but where the proposal has been verbal, the acts must be relied on also as constituting a case of part performance with regard to which marriage alone is from the words of the Statute of Frauds, not sufficient. The cases on part-performance in connection with such agreements, («) 12 <;i. & Fin. 4(5, s. n., Hammersly cox. 1 \es. sen. 276; Franks v. Martiu, 1 V. DtfBiel. Ed. 309. (a> In Buxton v Lister, 3 Atliy. .386. See infra, § 342. INCOMPLETENESS OF THE CONTRACT. 155 ments, in order to be executed in this court, must be certain and defined : secondly, they nuist be equal and fair ; for this court, unless they are fair, will not execute them : and thirdly, they must be proved in such manner as the law requires."[l] § 204. In regard to objections founded on the want of any of these qualities in the contract, or on the incapacity of the court to perform the contract, or its illegality, the court is, from obvious motives of justice, somewhat unwilling to entertain the ol)jection, when it is made after part-performance, from which the defendant has derived benetits, and the plaintift' cannot be fully recompensed except by the performance of the agreement in specie. (c) § 205. The qualities of completeness, certainty and fairness, which will now be considered, will, in great part, be best ex- *plained by showing cases in Avhich they have been ^ ^ , considered as beino; wantino;. The qualities of com- *- -' pleteness and certainty are not perhaps truly separable ; but under the former I shall rather consider those cases where there is the absolute want of some term in the contract ; under the latter head of certainty, those where it is not the entire want of the term, but the want of sufficient exactitude in it, which has furnished a defense to a specific performance. (tZ) § 206. The time at which the completeness of the contract is to be ascertained is the tilino; of the bill : so that it was not suf- ficient for the purpose of obtaining an innnediate decree, to prove that the consent of a tenant for life, which was essential («) See 5 54 and i 309. (rf) See also the cases stated infra, § 312. [1] Upon an application to a court of chancer}^ for a decree of specific per- formance, in order to merit the interposition of its powers, the agreement must be found to be fair and equitable, certain and consistent with public policy, free from fraud or surprise, not voluntary, and just in all its parts, or at least tend to produce a just end. Griffith v. Frederick County Bank, G Gill. & J. 424. Seymour v. Delancey, 3 Cow. 445. jModisett v. Johnson, 2 Blackf. 431- Millard v. Ramsdell, Earring. Ch. 373. Ohio v. Baum, 6 Ham. 383. Unless the evidence offered in support of a contract be fully sufficient and ample, a court of equity will not exercise its jurisdiction to enforce it. Colson v. Thompson, 2 Wheat. 336. [•92] " 15G FEY ON SPECIFIC PERFORMANCE OF CONTRACTS. to the contract, was given before the hearing.(e) It is an obvi- ous princij)le of justice, that the adoption of a contract l)y a third party shall not so relate back as to subject a party to legal proceedings in respect of ils non-performance, the non-perform- ance having at the time l>een justifiable, (/") § 207. To this principle there are some exceptions, or appar- ent exceptions, which it is well briefly to notice. (1) When the contract is incomplete through the default of the defendant, and the incompleteness is one which can be remedied, the court will not refuse its aid : thus, where an agreement had been entered into for granting ;in annuity for three lives, to be named, and the consideration had been paid, but, through the defendant's re- fusing to proceed, the lives had not been named, the plaintiff was allowed to perfect his contract by nominating three lives M'ho were in being at the time of the contract. (^) (2) A bill may be *maintained on a contract where, though some term )e not ascertained, the court has the means of ascertain- ing it, on the principle of the maxim id certum est quod certmn reddi potest. Thus, in a contract for the sale of lands under the Lands Clauses Consolidation Act, in which the sum was not ascertained, the court decreed the defendants to issue their warrant to the sherili" to summon a jury to settle the compen- sation :(A) and the same principle is illustrated by the cases on the requisite completeness as to subject-matter and price. (?) [2] § 208. The necessary completeness of the contract may be considered in respect of (1) the subject matter, (^2) the parties to the contract, (3) the price, and (4) the terms. § 209. Every valid contract must contain a description of the (e) Adams v. Brooke. 1 Y. & C. C. C. 627. (h) Walker v. Eastern Counties Railway (/) Uight V. Cutiiell, 5 Kust, 491; Doe Company, 6 Ha. 594; but see, as to this d. Mann v. Walters, 10 B. <& C 626 ; Doe case. § 21. See also Owen v. Thomas, 3 d. Lystcr v. Goldwin, 2 Q. B. 143. My. & K. 3.'J3 ; 31onro v. Taylor, 8 Ha. 51. (g) I'ritchard v. Ovey, 1 J. & W. 396; (i) I'ost, § 212, 214. Lord Kensington v. PhilliiJS, 3 Dow, 61. [2J In Prater v. Miller, 3 Ilavvks, 628, it was held that though specific per- formance would not be decreed of a contract uncertain in its terms, still, where the agreement may be made certain by means of references furnishe.d by the contract, it will be enforced. INCOMPLETENESS OF THE CONTRACT. 157 subject-matter : but it is not necessary that it should be so de- scribed as to admit of no doubt what it is; for the identity of the actual thing and the thing described may be shown by ex- trinsic evidence. This flows from the very necessity of the case ; for all actual things being outside of and beyond the agreement, the connection between the words expressing the agreement and things outside it must be established by something other than the agreement itself, that is, by extrinsic evidence : the same rule is admitted, and from the like necessity, with regard both to persons and things mentioned in wills ^[k) and in the cases of agreements within both the fourth and seventeenth sections of the Statute of Frauds, parol evidence as to identity is admis- sible.(/) Thus, for instance, the expression, "Mr. Ogilvie's house," was held sufficient, and extrinsic evidence was admitted to show what house it referred to.(m)[3] *So, where j- ^^.o i an agreement referred to another writing, parol evidence '- ^ of the identity of a certain Avriting with that referred to was ad- mitted ;(n) and in a recent case parol evidence was admitted to show the meaning of " X50 more of premium," and of "the profit rent of the present tenant."(o) § 210. Where it is necessary to call in extrinsic evidence, the connection of the subject-matter of the agreement, and the thing in respect of which specific performance is sought, must be alleged in the bill, and supported by sufficient proof.(j)) § 211. It is, however, essential that the description of the sub- ject-matter should be so definite, as that it may be known with certainty what the purchaser imagined himself to be contracting for,(5') and that the court may be able to ascertain what it is.(r) (i) See the observations of Lord Oran- (o) Skinner v. M'Douall, 2 De G. & S. 265. worth ill Clayton v. Lord Nugent. 13 M. & (p) Price v. Griftith, 1 De G. M. & G. 80. W. 207. (9) Stewart v. Alliston, 1 Mer. 26, 33. (I) Sari V. nourdillon. 1 C. B.. N. S. 188. (r) Kennedy v. Lee, 3 Mer. 441, 4,')1 ; per {m) Offilvie v. Foljambe, 3 Mer. 53. Lord Eldon in Daniels v. Davison, 16 Ves. («) Clinan v. Cooke, 1 Sch. & Let'. 21, 33. 256. See post, § 361. [3] Upon the same principle, specific performance of a contract will not be refused, because in the description of the land it omitted to state the town in which it lies, where the description is otherwise rendered definite. Robeson V. Horntaker, 2 Green's Ch. 60. 158 FRY ON SPECIFIC PERFORMANCE OF CONTRACTS. And so in a case, (.9) where there was an agreement for the letting of " coals, etc.," the statement of the suh ject-niatter was tiiought by K. Bruce, L. J., insufficient, and speciric performance refused on that amongst other grounds.[4J § 212. With regard to the description of the subject-matter, the maxim id certum est quod cerium reddi potest applies. Thus, Avhere the memorandum of the agreement contained no specific description of the property sold, but referred to the deeds as being in the possession of a person named, the court thought that the property might easily be ascertained before the master, and held the description of the sul)ject-matter sufficient.(^) And ao^ain, a contract to sell an estate within certain ascertained boundaries, ^described as partly freehold, and partly '- -^ leasehold, is not void for uncertainty, because it is a good agreement to sell the vendor's interest in the property ; but the purchaser is entitled to have it reduced to certainty by the boundary of the properties of different tenures being ascertained, or shown to be capable of being so.(w) ^ 213. The names of the contracting parties are another ele- ment which must appear in the agreement, or the memorandum of it, in order to constitute a binding contract. (i?) [5] § 214. In all cases of sale, it is evident that price is an (s) Price v. Griffith, 1 De G M. & G. 80. See also Haywood v. Cope, 4 Jur. N. S. 227, See also Inge v. Birming-ham, Wolveiiiamp- (M. R) ton and Stour Valley Kailway Company, 3 («) Monro v. Taylor, 8 Ha. 51. De G. M. & G. 658. (c) Cluvnipion v. Plumnier. 1 N. R 253; (0 Owen V. Thomas, 3 My. & K. 353. Warner v. Willington. 3 Drew, 523 ; Squire V. Whitton, 1 Ho. Lords, 333. [4] The description of land, which is the subject-matter of the contract, is clearly an essential particular, and, as such, if indefinite to such an extent as to be incapable of being ascertained by the admission of extrinsic eveidence, goes to its essence and avoids the obligations of the agreement. McMurtrie V. Bennet, Ha ring. Ch. 124. [5] It is not, however, necessary that in all cases the names of both parties to an instrument appear upon its face, in order to obtain relief in equity. Thus, where the owner of land transmitted to a proposed purchaser a memo- randum of an agreement to purchase, with a request that he would sign it in case he wished to purchase, which was signed accordingly, it was held that it was binding upon both parties, though it contained no promise to sell, and was not signed bj the vendor. Butler v. O'Hear, 1 Dessau. 38.2. INCOMPLETENESS OF THE CONTRACT. 159 essential ingredient of the contract, and that where this is neither ascertained nor rendered ascertainable, the contract is void i'or incompleteness, and incapable of enforcement. (it;) § 215. Accordingly, where A. agreed to sell an estate to B. for X1500 less than any other purchaser would give, the con- tract was held void ; for, if the estate was not to be sold to any other purchaser than B., it was impossible to know what such a purchaser would give for it,(a;) 80 again, where there was an agreement to sell at a price to be fixed by two surveyors, and they made their award, but that did not sufficiently and finally ascertain the price, specific performance was refused :(?/) and the like was the result of a similar case, where the award Avas such as the court could not act on, by reason of circumstances of great impropriety on the part of one of the arbitrators, and the award being based on an erroneous view of the facts.(5!) § 216. It is not, however, necessary that the contract should determine the price in the first place. It ma}' appoint a way by which it is to be thereafter determined, *in which case r *95 1 the contract is perfected only when the price has been •- J so determined. (a) In case of default in this respect, the contract remains imperfect and incapable of being enforced ; for the court will never direct a payment of such a sum as A. and B, shall fix.(/;) § 217. The cases in which a mode is provided by the contract itself for the subsequent ascertainment of the price, fall under two classes : the first comprises those where the contract is to sell at a price to be fixed by arbitrators, this mode of ascertain- ment being an essential ino-redicnt in the contract : the other embraces those cases where the contract is substantially for a sale at a fair price, the mode of ascertainment, though it may be indicated by the contract, being subsidiary and non-essential. In the former class of cases, if the mode of ascertainment fail, the contract remains incomplete, and consequently incapable of (to) Elmore v. Kingscote, 5 B. & C. 583; (a) Of. Inst. lib. iii. tit. 24. s. 1; Pothier du Goodman v. Griffiths, 26 L. J. Ex. 145. Central de Vente, part 1, sec." 2, art. 2, § 2. (3-) Bromley v. Jefferies, 2 Vern 415. («) Darbey v. Whitaker, 4 Drew. 134. (y) Hopcraltv. Hickman, 2 S. & S. 130. (2) Chicester v. Maciutyre,4 Bli."N. S. 79. 160 FRY ON SPECIFIC PERFORMANCE OF CONTRACTS. ])ein2; enforced : in the l.-ittcr, where the mode of ascertainment has failed, the court will have recourse to some other means of cominc; at the fair price, and of thus carrying out the contract in its essential parts. § 218. Of the first class, Milnes v. Gery,(c) before Sir William Grant, may l)c considered as the leading case : there was there a contract that land should be sold at a price to be fixed by one valuer appointed on each side, or their umpire : the valuers could not airree ; and the master of the rolls held the contract to be incomplete, and that the couit could not supply the defect bv appointing other persons as valuers, which would be to exe- cute a contract different from that of the parties ; although, •where it is merely an agreement to sell at a fair price, that is a matter which the court can ascertain. "A man," said Sir J. Leach, (fZ) "who agreed to sell at a price to be named by A., B. and C, could not be compelled by a court of equity to sell -, *at any other price." "This principle has governed the -' decisions of several other cases of specific performance, (e) and may further be illustrated by the cases at common law.(/) [6J The fact that the obstacle arises from the defendant's default (cl 14 Vos. 400. Afrar v. Mncklew, 2 S. & S. 418; Darbey v. (./) In Morse v. Merest, 6 Mad. 26. AVhitnker. 4 Orew, 134. (f) Tilundell • V. Brettargh, 17 Vos. 232; (/) Tlmrnell v. Balbuniie. 2 M. & W. Gouilay v. Duke of Somerset, 19 Ves. 429; 786: Morgan v. Birnie, 9 Biiig. 672; Mil- ner v. Field, 5 Ex. 829. [6] A. and B. built a mill together. /I. agreed to convc}' his moiety to B. on his paying to him the amount which it cost A., and they further agreed to refer it to several persons named to ascertain the cost. The referees could not agree, and A. refused to have an umpire chosen. B. filed a bill for a spe- cific performance of the contract by A., praying an account of the cost by A., that he receive that sum, and make a conveyance. Held, that to grant the prayer of the bill would be to make a contract for the parties, and then exe- cute it: and that the agreement of A. was not to convej' on payment to him of the cost of his part of the mill, but on the payment of the cost as ascer- tained by the arbitrators named. Norfleet v. Southall, 3 Mur. 189. In Graham v. Call, 5 Munf. 39G, where, by an agreement for the sale of land, the price was to be ascertained and fixed by the parties, and one of them died before that price had been fixed by them, it was held that the agreement was too incomplete and uncertain to be enforced specifically in equity. INCOMPLETENESS OF THE CONTRACT. 161 will not, it seems, get over the difficulty ; for where the agree- ment was to sell at a price to be iixecl by arbitrators, but in consequence of the defendant's having refused to execute the ar- bitration bond, it was uncertain whether any reward would be made, the court refused to proceed ;{(/) and the same result followed where the refusal of one of the valuers to proceed ap- peared to arise from the information given to him by the defend- ant, of his intention not to complete. (/i) In a recent case,(^■) where the price was to be ascertained by one of two alternative modes, and no election had been made as to the mode of ascer- tainment, the court held that no contract had been constituted. § 219. The second class comprises those cases in which the contract is substantially to sell at a fair price, the mode of as- certaining that being subsidiary. Lord Eldon(^-), indeed, seems to have doubted whether the court would ever take upon itself, in this respect, to separate the essential from the non-essential terms of the contract : he considered that, where a reference had been made to arbitration, and the judgment of the arbitrators was not given in at the time and manner according to the agree, ment, the court had no jurisdiction to substitute itself for the arbitrators, and make the award, even when the substantial thing to be done was agreed between the parties, and the time and manner in which it was to be done was that which *they had put upon others to execute. Sir William ^ .^ -. Grant, however, not only indicated the distinction of the *- ' -' two classes of cases, in his judgment, in Milnes v. Gery,(/) but he acted upon it in two other cases before him. In the earlier,(;«) in consequence of the lunacy of the vendor, the valuers could not be nominated ; but the master of the rolls did not consider this an insurmountable difficulty, saying, that if there was a valid and binding contract, the supervem'ng incapacity of one party cannot deprive the other of the benefit ; and he accordingly directed an issue as to the lunacy, as a preliminary step in the cause. In (s;) Wilks V. Davis. 3 Mer. 507. {k) In Cooth v. Jackson, 6 Ves. U. See (A) Dai-bcv V. Wliitaker, 4 Drew. 1.34. also Blundell v. Brettargh, 17 Ves. 232. (i) Morgan v. Milmaa, 3 Do G. M. & G. 24. (I) Ubi sup. (m) Hall V. Warren, 9 Ves. 605. 162 FRY ON SrECIFIC PERFORMANCE OF CONTRACTS. the other case,(n) there was an agreement to grant a lease, to contain such conditions as A. B. should think reasonable and proper ; and the master of the rolls rcf(!rred it to the master to settle the lease, and not to A. B., — consideri-ng the agcnc3- oC A. B. not to be of tho essence of the contract, and that the court Avill not grant relief through the medium of a reference compul- sory on the other party. And so in a case(o) before Sir John Stuart, where thei"e was an agreement to sell land and bleach works at a sum fixed, and the plant and machinery to be taken at a value, to be ascertained by valuers to be appointed by the parties, it was held that this was a subsidiary stipulation only, and that it did not form an obstacle to specific performance, which was accordingly decreed with costs. (p) § 220. In another case(5') before the same vice-chancellor, he remarked that, where possession is referable to an agreement to give a fair consideration, the amount of which has not been r *QR 1 settled, the court will, in favor of *possession and expendi- ture referable to this agreement, endeavor by every means within the legitimate bounds of its jurisdiction to ascertain the amount of the consideration. § 221. It is of course essential to the completeness of the con- tract that it should express not only the names of the parties, the subject matter, and the price, Init all the other material terms. What are, in each case, the material terms of the con- tract, and how far it must descend into details to prevent its being void as incomplete and uncertain, are questions by no means easy to answer, and must of course be determined by a consideration of each agreement separately. It may, however, be laid down that the court will carry out an agreement framed in general terms, where the law will su[)ply the details ; but if any details are to be supplied in modes which cannot be adopted by the court, there is then no concluded agreement capable of being enforced. (r) (n) Gourlay v. Duke of Somerset, 19 price ought to proceed, and on what jn'ounds Ves. 429. they may determine, see Eads v. Williams, (0) Jackson v. Jackson,! Sm. & G. 184; 4 De G. M. & G. 674. Paris Chocolate Company v. Crystal Palace (') [1] (a) See Arist. Eth. Nic. lib. i. c. 3. (4) Marsh v. MilUsan, 3 Jur. N. S. 979, (Wooa, V. C.) [1] Where the terms of a contract are indefinite or uncertain, specific per- formance will not be decreed. McMurtrie v. Bennett, Harring Ch. 124. Millard v. Ramsdill, Harring. Ch. 373. Colson v. Thompson, 2 Wheat. 336. Walton V. Coulson, 1 McLean, 120. Kendall v. Almy, 2 Sumn. 278. Carr V. Duval, 14 Pet. 79. Prater v. Miller, 3 Hawkes, 628. Waters v. Brown, 7 J. J. Marsh. 123. Fitzpatrick v. Beatty, 1 Gilm. 454. Goodwin v. Lyon, 4 Porter, 297. So where a tenant, holding by a lease under seal, in conse- quence of a diminution of value in the leasehold property, was about to leave, and the lessor told him that if he would stay he would reduce the rent, with- out specifying how much, it was held to be so uncertain that equity could not relieve the tenant. Smith v. Ankrim, 1 S, & R. 39. Neither will a contract, to convey a quantity of any land which the obligor may own, be specifically enforced. A specific performance will be decreed only where a specific thing is to be conveyed. Shelton v. Church, 10 Mis. 774. And specific performance of a verbal contract, which is executory and depends on a future event which may never happen, will not be decreed- Bradley v, jNIorgan, 2 A. K. ]\Iarsh. 369. It seen)s that the rule, that a specific performance will be refused where the contract is vitiated by uncertaintj', is applied with more than ordinary stringency against assignees and representatives of the contracting parties. Kendall v. Almy, 2 Sumn. 178. Montgomery v. Norris, 1 How. Miss. 499. Though specific perfoi-mance will not be decreed of a contract uncertain in its terms, yet if the agreement may be made certain, by means of references furnished by the contract, it will be enforced. Prater v. Miller, 3 Ilawkes, 628. And in Wiswall v. jNIcGowan, 1 Iloff. Ch. 126, it is said that where a contract refers to the subject-matter by vague and insufiicieut description, UNCERTAINTY OF THE CONTRACT. 167 Thus in one case,(c) where there was an agreement between two railway companies, that the one should have the right of running with their engines, carriages, and trucks, and carrying traffic upon the line of the other, Vice-Chancellor Parker held that this was not too uncertain to be enforced. •' It means," he said, "a reasonable use, — a use consistent with the proper *en- r*^r.Qi joyment of the subject-matter, and with the rights of ^ -• the granting party. "(cZ) And we have already seen that where the terms of the contract are general, but the details are such as the law Avill supply, the contract will not be considered as objectionable for vagueness and uncertainty.(f?) In one case a contract by a railway company with a landowner, to make such roads, ways, and slips for cattle as might be necessary, was not held incapable of being performed by the court ; but it is to be observed that in this case the company had entered and made the railvvay.(jr) § 230. On the ground of uncertainty, the court has refused (f) Great Northei'ii Railway Company v. (/) Saunderson v. Cockermouth & Work- Manchester, Sheffield & Lincolnshii-e Kail- injctou Kaihvay Company, 11 Beav. 497, way Company, 5 Oe G. & Sm. lo8. afflraied by Lord Cottenham ; Parker v. (U) p. 149. Taswell, 4 Jur. N. S. 183, (Stuart, V. C. ;) (e) Per Turner, L. J., in South Wales see ante, i 'i04. Railway Company v. Wythes, 5 De G. M. & G. 888 ; ante, § 221. the defect may be supplied by other documents, coming from, or adopted by, the party against whom the contract is to be enforced, pending and connected with the transaction. It will be no objection to decreeing specific performance of a part of a contract, that another part is uncertain. So, where v*/. purchased property of B. at a low price, and agreed to give the children of B. the benefit of it, on being repaid the purchase money and interest, no uncertainty existing in respect to that part of the agreement which provided for the conveyance to the children of B., the court had no difficulty in decreeing performance of that part of the contract, notwithstanding that another portion of the contract was indefinite. Sartor v. Gordon, 2 Hill. Ch. 121. In Andrews v. Andrews, 28 Ala. 432, the objection of uncertainty in the terms of the contract being raised, the court held, that while great certainty and precision in contracts were in- dispensable prerequisites to their specific performance, in view of the looseness and inaccuracy of the language, which showed that the parties and witnesses were uneducated, and construing the inartificial expressions of the parties by their subsequent declarations, showing the meaning which they attached to the words, the terms of the contract were sufficiently certain. 168 FRY ON SPECIFIC PERFORMANCE OF CONTRACTS. specifically to perform marriage articles prepared by a Jewish rabbi in an obscure tbrni, said to pievail amongst German Jews ;(r/) and also an agreement for the sale of land, where there was a doubt as to the identification of a plan to be incorporated into the agrcement.(/!) In another cai5e,(^■) the court refused to interfere in respect of an engagement by the defendant, Mr. Kean, to perform at a theatre. "Independently of the difficulty of compelling a man to act," said the vice chancellor, "there is no time stated, and it is not stated in Avhat character he shall act; and the thing is altogether so loose that it is perfectly im- possible for the court to determine upon what scheme of things Mr. Kean shall perforin his agreement."(A;) [2] (^) Franks v. Martin, 1 Ed. 309. (0 Kcmble v. Kean. 6 Sim. 333. {It) Hodges V. Horsliill, 1 Russ. & M. 116. (k) P 337. [2] See Sanquirico v. Benedetti, 1 Barb. Sup. Ct. Rep. 315. In Hamblin V. Dinncford, 2 Edw. Ch. 529, where a theatrical performer had contracted to perform at one theatre, and at no other, the court refused to restrain him from performing at another theatre in violation of his agreement. Cases of this nature come strictly under the head of contracts to do personal acts; and although no line of distinction between cont'-acts relating to property and agreements for personal services can be established to be of general utility, yet, where the contract has been strictly one to perform acts alone, there are but few cases in which they have been actively enforced. See Kemble v. Kean, 6 Sim. 333. In Sanquirico v. Benedetti, 1 Barb. Sup, Ct. Rep. 315, Edwards, J., said, " Although there may be cases in which a court of equity will decree specific performance of a conti'act for personal services, still this is not one of that character. The diflBculty, if not the utter impracticability, of compelling a specific performance of the contract set forth in the bill, is a com- clusive reason why this coui't should refuse its interference." Walworth, Ch. in De Rivafinoli v. Corsetti, 4 Paige, 270, in representing the difficulties at- tendant upon the enforcing of contracts of this nature, says, " I am not aware that any officer of this court has that perfect knowledge of the Italian lan- guage, or possesses that exquisite sensibility in the auricular nerve which is necessarjr to understand, and to enjoy with a proper zest, the peculiar beauties of the Italian opera, so fascinating to the fashionable world. There might be some, difficulty, therefore, even if the defendant was compelled to sing under the direction and in the presence of a master in chancer}^ in ascertaining whether he performed his engagement according to the spirit and intent. It would also be very difficult for the master to determine what effect coercion Blight produce upon the defendant's singing, especially in the livelier airsj UNCERTAINTY OF THE CONTRACT. 169 ^ 231. So again, where the agreement is discrepant with itself, or there are two different ao;reements rehitino; to the same sub- ject-matter, the court will generally refuse specific perform- ance.(^) In a recent case,(?«) where an offer was *made r#, .^ to take a house for a sijecitic term and at a certain rent, ^ -' if put into thorough repair, and stating also that the drawing rooms Avould be required to be handsomely decorated according to the present style, and making some further requirements as to painting, and the offer was accepted, the lords justices, reversing a decision of the master of rolls, dismissed the bill on the ground of the uncertainty imported into the agreement by the expres- sions in the offer as to repairs. AVhere a contract was for the purchase of "the laud required" for the construction of a railway, at so much per acre, and the contract contained provisions agreed on between the land agents of the compau}^ and the ven- dor as to roads, culverts, etc., etc., the master of the rolls (follow ing the decision of Vice-Chancellor Turner in Webb v. Direct London and Portsmouth Railway Company, («) then unreversed) held that a surve}^^or going upon the ground and having the con- (0 Callashan v. CaUaghan, 8 CI. & Fin. (m) Taylor v. Portington, 7 De G. M. & G. 374. 328. («) 9 Ha. 129. although the fear of imprisonment would unquestionably deepen his serious- ness in the graver parts of the drama." There are cases, however, where the court has interfered negatively, but they have been in the nature of a partner- ship. " Thus, in the case of a theatre considered as a partnership, a contiact with the proprietors not to write dramatic pieces for any other theatre is valid, and a violation of it will be restrained by injunction. As was intimated by Lord Eldon in that case, it is not unreasonable that an actor and a wiiter for the stage should engage for the talents of each other; and that neither should write or act but for the theatre in which they are jointly interested." Willard's Eq. Jur. p. 277. But this partnership must exist between the parties ; and if there be none, " and the defendant has violated his engagement to one theatre, and formed a conflicting engagement with another, a court of equity will not interfere either actively, to compel performance of one contract, or ncgativehj, to prevent the performance of the other." See the cases of Morris V. Coleman, 18 Yes. 437; Clark v. Price, 2 Wilson, 157; Waters v. Taylor, 15 Yes. 10; Ex parte Forde, 7 Yes. 017; Ex parte O'Reilly, 1 Yes. 112; Kemble v. Kean, Sim. 333. FUV — 12 170 FUY ON SPECIFIC rEIlFOKMANCE OF CONTRACTS. tract in his hand, could accuratol}' ascertain the land to be taken, and that the terms of the contract were therefore sufficiently ex- plicit ; but this decision was overruled on appeal, and Lord Justice Knight Bruce held the language "too vague, too un^- certain, too obscure to enable this court to act with safety or propriety."(o) § 232. In another case, where there w^as an agreement in general terms for the construction of a railway according to the terms of a &pecitication to be prepared by the engineer of the company for the time being, it was held too vague, oi)Scure, and uncertain to be enforced -.{j)) and the like was held in the case of an agreement to give the plaintiffs accommodation for the sale of their articles in the refreshment rooms of the defendants, and to furnish them with the necessary appliances. (5-) And r*1051 *'e^'"' ^vhere on the sale *of a piece of land there were stipulations that, in the event of there being any coals or ironstone under the land, royalty of so much per ton should be paid thereon by the purchaser to the vendor, and also that any mines required to be left by a certain railway company were to be paid for as if the same had been gotten, out of the money to be received from the railway company ; it was held, with regard to the latter stipulation, that it was incapable of being worked out, inasmuch as, if the company bought the mines, the contin- gency whether there were any coal or ironstone under the land ■would remain undecided ; and as to the former stipulation, that the partie^ seemed to have intended to w^ork it out by a reser- vation of mines to the vendor, and a lease of them by the vendor to the purchaser, but that there was nothing to guide the court as to the stipulations to be included in such a lease, except the rates of royalty ; and the court accordingly declined to enforce the agreement for sale.(r) (o) Lord James Stuart v. London and See also for uncertainty, Harnett v. Yield- North-western Uaihvay Company, 15 Beav. ing. 2 Sch. & Lef. 549 ; " Tatham v. Piatt, 9 513 ; SC. 1 De G. M. & G. 721. 11 a. 600 ; Taylor v. Gilbertson. 2 Drew, 391 ; (p) South Wales Railway Company v. Holmes v. Eastern Counties Railway Com- Wythes, 5 De G. JM. & G 880. pany. 3 K. & J. 675; Sturge v. Midland ((/) Paris Chocolate Company v. Crystal Ilailwav Company, Week. Kep. 1857-1858; Palace Company. 3 Sm. & Gil'. 119. 233, (Stuart, V. C. ;) ante, § 42. \r) Willianisou v. Wootton, 3 Drew, 210. WANT OF FAIRNESS IN THE CONTRACT. 171 ♦CHAPTER V. [*10G] OF THE WANT OF FAIRNESS IN THE CONTRACT. § 233. There are many instances in which, though there is nothing that actually amounts to fraud, there is nevertheless a want of that equality(«) and fairness in the contract which, as we have seen, are essential in order that the court may exercise its extraordinary jurisdiction in specific performance. [1] In cases of fraud the court will not only not perform a contract, but it will order it to be delivered up to be canceled ;[2J but there (a) The equality which natural justice re- is required between the parties, both as to quires to tind place in contracts is well ex- the knowledge of the thing and the exercise plained by Grotius, De Jure Belli ac Pacis, of the will; as to the principal act. the lib. ii. cap. 12, sec. 8 et seq. According to equality required is, that more be not de- him. it consists partly in acts, (and these, as maiided tlian is just; and lastly, as to the well the precedent acts, as the principal subject-matter, the equality is to be sought act.) and partly in the subject-matter of the in the absence of all hidden defects in it or contract. As to the precedent acts, equality mistakes as to it. [1] No rule in equity is more clearly e.stablished than that upon an applica- tion for a specific performance of a contract, the court must be satisfied that the claim is reasonable and just, and the contract equal in all its parts; if these points be not established by the complainant, he will be left to his remedy at law. Modisett v. Johnson, 2 Blackf. 431. Seymour v. Delancey, 3 Cow. 445. Cabeen v. Gordon, 1 Hill. Ch. 51. [2] Agreements will also be decreed to be delivered up for cancellation upon the ground of surprise. Thus in Willan v. Willan, 16 Ves. 72, which was a case concerning a lease with a covenant for perpetual renewal, at a fixed rent, of premises under a church, renewable upon fines continuall}^ increasing, neith- er party understanding the effect of their contract, the agreement was ordered to be canceled. Twining v. Morrice, 2 Bro. C. C. 326, a case to the same ef- fect, was quoted by Lord Eldon, with approbation. xVnd in America the prin- ciple there established has been received and acted upon. Gillespie v. jNIoon, 2 John. Ch. 598. Seymour v. Delancey, 3 Cow. 445. There appears to have been a difference of opinion concerning the meaning which courts of equity attach to the word surprhe, which we have just men- tioned, as affording a ground of relief. See Eden, Injunc. (2d Am. ed.) 21 and 27, notes. Mr. Jeremy (2 Eq. Jur. ch. 2, p. 366) seems to suppose that there is some- thing technical in its meaning. Surprise, he says, "it .seems is a term for the immediate lesult of a certain species of mistake, upon which this court will relieve." lie also says that surprise is often used as synonymous with fraud; 172 FRY ON SPECIFIC PERFORMANCE OF CONTRACTS. arc many cases in which the court will stand still, and interfere neither for the one purpose nor the other. (/.') [3] § 2o4. The unfairness in question may be either in the terms of the contract itself, or it may be in matters extrinsic and the ■ (i) Sec per Lord Eldon in Willan v. Wil- Savage v. Brocksopp. 18 Ves. 335; per C. Ian, 10 Ves. 83; Savage v. Taylor, Forr. 15. in Davis v. Symonds, 1 Cox, 40(;; Ked- 231 i Twining v. Morrice, 2 Bro." C. C. 32(5 ; sliaw v. Bedford Level, 1 Ed. 340. but that " they ma)% perhaps, be distinguished by the circumstance, that in instances to which the term fraud is applied, an unjust design is presupposed; but that in those to which surprise is assigned, no fraudulent intention is to be presumed. In the former case, one of the parties seeks to injure the other; in the latter, both of them act under an actual misconception of the law." Mr. Justice Story seems to be of the opinion, that this explanation does not render the definition of Mr. Jeremy any clearer than it was before; and he proceeds to say, that, " there does not seem anything technical or peculiar in the word surprise, as used in courts of equity. The common definition of Johnson sufficiently explains its sense. He defines it to be the act of taking unawares : the state of being taken unawares : sudden confusion or perplexi- ty. Vt'hen a court of equity relieves on the ground of surpiise, it does so upon the grovmd that the party has been taken unawares, that he has acted without due deliberation, and under confused and sudden impressions. The ca.se of Evans v. Llewellyn, 2 Bro. Ch. 150, is a direct authorit}'' to this very view of the matter. There may be cases where the word surprise is used in its more lax sense, and where it is deemed presumptive of, or approaching to, fraud. (1 Fonbl. Eq. B. 1, ch. 2, § 8, p. 125. Earl of Bath and Montague's case, 3 Ch. Cas. 56, 74, 103, 114.) But it will be always found that the true sense of it is, where something has been done : which was unexpected, and operated to mislead or confuse the parties on a sudden, and on that account has been deemed a fraud." Story's Eq. Jur. § 120, p. 135, note (1.) It has been said that a decree in equity is seldom based upon the ground of surprise alone ; and that there must be other circumstances of fiaud or mis- take connected with it in order to become a proper subject of equitable relief. This is probably erroneous. The basis of Lord Eldon 's decree in Willan v. Willan was, that the parties were ignorant of the effect of their agreement. There was no misunderstandiv g in the case; but a total /ac/c of understanding. Mutual misapprehension of^ rights, as well as the effects of the agreement, may properly furnish in some cases a ground of relief. For if both parties acted under a mutual misconception of their actual rights, they could not justly be said to have intended what they did. Story's Eq. Jur. § 123. Willan v. Willan, 10 Ves. 72. Anderson v. Smith, 1 A. K. Marsh. 51. [3] Specific performance is a matter of judicial discretion, and not of arbi- trary right; and a court of chancery may refuse to rescind a contract, whcro WANT OF FAIRNESS IN THE CONTRACT. 173 circumstances under which it was made : with regard to the latter, parol evidence is of course admissible. (c) *& 235. The fairness of the contract, like all its other r^, ^ , . . ... 107 1 qualities, must be judged of at the time it is entered ^ -i into, and not by subsequent events :{d) for the fact that events, uncertain at the time of the contract, may afterwards happen in a manner contrary to the expectation of one or both of the parties, is no reason for holding the contract to have been un- faii',[4] Therefore " where parties, whose rights are question- able, have equal knowledge of facts, and equal means of ascer- taining what their rights really are, and they fairly endeavor to settle their respective rights amongst themselves, every court must feel disposed to support the conclusions or agreements to .which they may fairly come at the time, and that notwithstand- ing the subsequent discovery of some common error "(e) or a subsequent judicial decision showing the rights of the parties to have been different to what they supposed, or that one party had nothing to give up.(/) [5J And the uncertainty which may render a compromise fair, and therefore binding, may be either in some future and uncertain event, or the future ascer- (f) Davis V. Symonds, 1 Cox, 402. Pickering, 2 Bcav. 50 ; Frank v. Frank, 1 (d) So, as to hardship, sec post, } 252. Cas. in Ch. 84. (e) Per Lord Langdale in Pickering v. (/') Lawtou v. Campion, 18 Beav. 87. it would refuse to enforce a specific performance of it at the suit of the other party. It is not more binding upon the court to set aside every contract that it will not specifically perform, than to perform every contract which it will not set aside. St. John v. Benedict, 6 John. Ch. 111. Minturn v. Seymour, 4 ib. 497. Seymour v. Delancey, 6 ib. 222. Jackson v. Ashton, 11 Peters, 229. McNeil v. Magee, 5 Mason, 244. Howard v. Moore, 4 Sneed, (Tenn.,) 317. Acker v. Phoenix, 4 Paige, 305. Revell v. Hussey, 2 Ball & Bea. 288. Clitherall v. Olgivie, 1 Dessau. 257. Barker v. May, 3 J. J. Marsh. 436. Os- good V. Franklin, 2 John. Ch. 23, [4] Therefore, fluctuations in the value of property, caused by events sub- sequent to the making of the contract, will not be regarded by the court, if the contract be fairly entered into at the time. Low v. Trcadwell, 3 Fairf. 441. [5] Courts of equity will sustain agreements or compromises, of this nature, upon grounds of public policy, provided that the conclusions of the parties have been fairly entered into, made with deliberation, and reasonable in themselves. Story's Eq. Jur. § 121. Pickering v. Pickering, 2 Beav. 31. 174 FRY ON SPECIFIC PERFORMANCE OF CONTRACTS. tainment of some event passed and therefore in itself certain, as, for instance, Avhethcr a son was legitimate or not,(/7) or •whether an uncle had made a particular will or not.(//) § 236. The principle just stated is perhaps most frequently illustrated by cases of family arrangement or of comi)romise ; but it is applicable to contracts of whatsoever nature. The case of Parker v. Palmer,(/) which came before the court in the fourteenth year of Charles II., illustrates this. Parker, as it appears, during the commonwealth, had sold a lease, which he had from a dean and chapter for three lives, to Palmer, the price agreed on being X4320. Subsequently the purchaser agreed with the vendor, thatif *he would abate him X420, he would recon- r*in«l ^^y ^^^^ lease whenever the king and dean and chapter ^ -■ were restored : the abatement was made, and the king and church restored, and thereupon the vendor sued for a recon- veyance, which was accordingly decreed by the master of the rolls, and affirmed by the lord chancellor and Sir Orlando Bridg- man. Again, where a man agreed to sell for <£20 an allotment thereafter to be made to him under an enclosure, and it turned out to be worth c£200, he was nevertheless compelled to perform his agreement -.{k) and so in a case(/) before Sir John Leach, Avhere he maintained a contract entered into without any fraud or con- cealment, hy Avhich one partner agreed with the retiring partner to give him £2000 for the concern, though they knew the part- nership to be insolvent, his honor said, " Suppose the case of a trade attended with great risk, one partner dispairing, the other confident and willing to buy the share of his partner, and give him X2000 for it; on wdiat possible ground could this contract be invalidated V\m) The case in which the thing sold is described in general terms, — as, for example, a manor, — and the extent and value of it is at the time uncertain, (?») and also the cases in which the vendor only sells such interest in the property as he has, where that which is sold turns out differently to the purchaser's expectations, are analogous to those before stated. (o) (?) Stapilton v. Stapilton, 1 Atky. 2. [1) Ex parte Peak. 1 Marl. .346. (/i) Heap V. Ton!;e,9 Ha. 90. ()") P. 355. See also Haywood v. Cope, (/) 1 Ca.s, in Ch.42. 4 Jur. N. S. 227, (M. R ) (t) Anon, before Sir Jo3. Jekyll, cited in (n) Baxendale v. Scale, 19 Beav. 601. Cooth V Jackson, 6 Ves. 24. (o) See post, § S30. WANT OF FAIRNESS IN THE CONTRACT. 17^ § 237. But in order to bring a contract within tiiis principle, the events which are afterwards reduced to a certainty must at the time of the contract have been really uncertain and unascer- tained to both parties, either from the nature of things or the state of knowledge of both parties. A contract entered into by one party who knows, with another who does not know, will not, it seems, be *executed by the court, thouirh its terms ^^^ ^^_ . r*109| may be such as to put the ignorant party on his guard, •- J and to throw the uncertainty on him. In one case, the pjirticu- lars described the subject of the sale as the interest, if any, of Francis Norton, in certain stock and also in a lease, and stated that there Avas a lien of £100 on the lease, and the conditions provided that, even if it should appear that Francis Norton had no interest in the premises, the purchaser should have no remedy against the vendor to compel him to refund ; in consequence of the state of certain partnership accounts which was known to the vendor, but which the purchaser had no means of ascertain- ing,- the interest sold was of no value whatsoever, and was in fact only exposed to sale for the purpose of enabling certain proceedings to be taken against the separate estate of Francis Norton : the vendor made no representations as to the value, but received from the purchaser £150 as the purchase money : the vice chancellor, AVood, set aside the sale at the suit of the purchaser, with costs against the vendor on the ground that the purchaser was buying what might be worth nothing, whilst the vendor was selling what M-as worth nothing.(^) § 238. Further, the principle in question will not apply where, though the terms of the contract may express an uncertainty, that uncertainty was not understood by the parties to comprise the event which actually happens. Thus, where A. contracted with B. for the sale of a manor, and stipulated that he should not be obliged to detine its boundary, and the manor turning out to comprise a valuable property not before known to either party to be part of it, the purchaser, v/ho had previously sought to repudiate the contract, tiled his bill for performance, the master of the rolls, on consideration of the evidence, came to (P) Smith V. Harrison, 26 L. J. Cli. 413, (Wood, V. C.) iufra, § 243. 176 FRY ON SPECIFIC TEUFOKMANCE OF COiNTEACTS. the conclusion tliat ni'itlier party intended to sell or buy a r*i in *'^^^''"^ doubtful matter, and that both parties at the time '- ^ of the contract believed that it included something dif- ferent from what woidd then be conveyed to the plaintitf, if the conveyance were to be executed as he claimed it, and ac- cordingly dismissed the bill, but Avithout cosis.[rj) § 289. In judging of the fairness of a contract, the court will look not merely at the terms of the agreement itself, but at all the surrounding circumstances, — such as the mental incapacity of the parties, though falling short of insanity, (r) their age or poverty, the manner in which the agreement was executed, the circumstances that the parties were acting without an attorney, that the property was reversionaiy, or that the price was not the full value.(s) [ii] § 240. Therefore, whenever there are evidences of distress in the party against whom performance is sought,(^) or he was an illiterate person, or whenever there are any circumstances of surprise, or want of advice, (w) or any thing which seems to im- port that there was not a full, entire, and intelligent consent to the contract, (y) the court is extremely cautious in carrying it into effect. Still it is not the doctrine of the court that a man cannot contract without his solicitor at his elbow, (?6') or that a (f/) Baxendale v. Scale. 19 Beav. 601. (c) Tlie nature of the proper consent to a (; ) Claikson v. Hanvvay, 2 P. Wms 203 ; contract seems not incorrectly exj^ressed iu Gartskle v. Isherwood. 1 Bro. C. C. 5.58; the Ibllovving extract :—•• Consensus dehet Bridjifinan V. Green, Wilm. Is'ot. 58, 61. See esse: 1, verus sea internus et nuitnus ; 2, ante, § 161. aliquo .signo externo expressus ; 3, liber et (s) Bell V. Howard, 9 Mod. 302; Martin plene deliheratus ; 4, serins, cum animo se V. Mitcliell, 2 J. & W. 413, 423 ; Stanley v. obligandi.'-— Mariani Exanien, § 278. Robinson. 1 K. & M. 527. (w) Lightfoot v. Heron, 3 V. & C. Ex. . (<) Kerneys v. Hansard, Coop. 125; John- 586; Haberdashers' Company v. Isaac, 3 *on V. Nott, 1 Vern. 271. Jur. N. S. 611, (Wood, V. C.) (K) Stanley v. Robinson, 1 R. & M. 527; Helsham v. Langley, 1 Y. & C. C. C. 175. ■■[G] Where a young man, just arrived at his majority, contracted for the purchase of land, after an examniation utterly insufficient to ascertain its value, with a person wlio was more than a match for him, from his want of sagacitj', experience and advice, and who described the advantages of the purchase in exaggerated terms, for a grossl}^ inadequate price, the court re- fused to decree specific performance against him, although there was no fraud, nor any legal incapacity to contract on his part. Gasque v. Small, 2 Strobh's Eq. 72. WANT OF FAIRNESS IN TIIE CONTRACT. 177 man in insolvent circnmstanccs, or in prison, is disabled from sollino- his estate : and if a contract made under such circum- stances *\vill hear the careful examination of the court r^-, -,-.-, . -, 1111 and the full light of day, it will be specincally per- ■- -■ formed. (x) § 241. It is enough, generally speaking, to induce the court to refuse performance, that there are any circumstances about the makino- of the contract which render it not fair and honest to call for its execution ; it is not needful that there was any in- tentional unfairness or dishonesty at the time.(_y) A leading case on this subject is Twining v. Morrice,(2;) where the bill was by a purchaser against a vendor : at the sale, which was by auction, the solicitor, who was known to be the agent of the vendor, had made some biddings for the plaintiff, which, from his known r^ilationship to the vendor, were thought to be the biddings of a puffer, and so damped the sale : the act was done in inadvertence by the solicitor ; but as it was done at the plaiu- tifi''s instance, specific performance was refused by Lord Kenyon. §i242. The like refusal to interfere will follow where there has been an improper suppression of a fact by one party from another: as where an estate required that a wall should be repaired, to protect it from the river Thames, and this was industriously suppressed ]{a) and where A. agreed to sell his land to B. at a halfpenny per square yard, which amounted to about <£500, when the real value of the estate w^as X2(J00, and B. industri- ously suppressed this circumstance from A., the concealment was considered such a fraud as to avoid the transaction ;(/>) and where a lessee obtained the I'enewal of a lease on the surrender* of an old one, knowing and suppressing the fact, which was un- known to the lessor, that the person on whose life the old lease depended was in extremis, the court declined to aid the lessee.(c) And in a recent case,((Z) before Lord Cranworth, where the same *solicitor acted for both parties, but did not disclose to r*,,^T . .1 112 1 both parties the >vhole nature of the dealing, or place his *- -* (a) ni-iiikley V. Hance, Dru. 175. (c) Ellard v. Lord LlandafT, 1 Ball & B. (7/) Moftlock V. BiiUer, 10 Ves. 292, 305. 241 See also post, § 461 et secj. (2) 2 Bro. C. C. .326. (d) Hesse v. Briaut, 6 De G. 31. & G. (a) Shirley v. Stratton, 1 Bro. C. C. 440. 623. (b) Dean v. Rastron, 1 Ans. 64. 178 FRY ON SrECIFIC I'ERFORMANCE OF CONTRACTS. principals at arms' length in the transaction, the court refused to enforce specific performance at the suit of the purchaser. The cases turnino- on the suirirestion of what is false, which con- stitutes a misrepresentation, will be considered elsewhero.(e) § 243. We have alread}^ seen that, Avhatever be the form of the contract, where, at the time of entering; into it, one party was cognizant of a fact of which the other could not be in- formed, — so that what was certain to the one was represented as, and was, in fact, uncertain to the other, — the court ^vi\\ not interfere specifically to perform it.(/') § 244. On the ground of want of fairness, the court will not assist one party to a contract, specifically to enforce it against the other, Avho, at the time of entering into it, was in a state of intoxication, and that even in the absence of any unfair advan- tage taken of his situation, which would induce the court to rescind the contract.(<7) But the mere fact that some glasses of liquor had been drunk before the signing of the contract will not avoid it, if there be nothing to show that the defendant acted without a full understanding of what he was doing.(//) In a recent case. Vice Chancellor Stuart refused to allow a third party, who, having got a subsequent transfer of the property, was the substantial defendant, to avail himself of this defense. (2) [7] (e) Post, § 425, et seq. hill, 1 B!i. 137, a contract obtained by fraud (/■) Smith V. Harrison, 26 L. J. Ch. 412, from an intoxicatcil partv was set aside. (Wood. V. C.) stated ante, § 237. (/;) Lightfoot v. lIeron,"3 Y. & C. Ex. 586. (?) Cooke V. Clayworth. 18 Ves. 12 ; Nagle (() Shaw v. Mackray, 1 Sm. & G. 537. V. Baylor, 3 D^ & W. 60. lu Butler v. Mulri- [7] Courts of equity, on grounds of public policy, do not incline to lend their assistance to a person, who has obtained an agreement or deed from an- other, in a state of intoxication ; and they ai-e equally unwilling to assist the intoxicated party to get rid of his agreement, or deed, merely on the ground of his intoxication at the time. They will leave the parties to their ordinary remedies at law, unless there is some fraudulent contrivance or imposition practiced. Story's Eq. Jur. § 231, 232. Campbell v. Ketcham, 1 Bibb, 406. White V. Cox, 3 Hayw. 82. Wigglesworth v. Steers, 1 Hen. & Munf. 70. Taylor v. Patrick, 1 Bibb, 168. It has been supposed, however, that if a per- son make himself drunk, with the intention of avoiding a contract entered into by him while in that state, that he would not be permitted to carry this fraud into effect. Pars. Contr. vol. 1, p. 311. It seems that the same doctrine WANT OF FAIRNESS IN THE CONTRACT. 179 § 245. One kind of that uii fairness wliieh slays the interference of the court arises where the enforcement of the contract would be injurious to third persons. Therefore, where an estate was settled in strict settlement, giving to *the settlor a life r*-,iQi estate and an ultimate remainder, and the tenant for life '- -• entered into a contract for the sale of the fee, the couit refused to allow the purchaser to take the interest of the tenant for life witii compensation, on the ground that a father and a stranger would l)e likel}' to use an estate Avithout impeachment of waste in a different way, and that therefore the sale might prejudice the interests of the persons in remainder.(/,) § 246. And a settlor in a voluntary settlement will not be allowed to sue for a sale of the estate so as to override that set- tlement, and thus to prejudice the interests of the parties claim- ing under it.(/) ^ 247. The court Avill never exercise its extraordinary power in compelling a specitic performance, where to do so would necessitate a breach of trust, or compel a person to do what he was not laAvfully competent to do, — partly, as it seems, on the ground of the unfairness and illegal taint of such a contract in itself, and partly of the hardship to Avhich it would expose the person forced to execute it. The plaintiff " must also," said Lord Rcdesdale,(9») " show that, in seeking the performance, he does not call upon the other party to do an act which he is not lawfully competent to do ; for, if he doe^, a consequence is pro- duced that quite passes by the object of the court in exercising the jurisdiction, which is to do more complete justice." There- fore, where trustees enter into a binding agreement for a sale under a power, but so disadvantageous as to be a breach of trust, (k) Thomas v. Dering, 1 Ke. 729. {m) In Harnett v. Yielding, 2 Sch. & Lef. [1] Johnson v. Legard, T. & R. 281 ; 553. Smith V. Garland, 2 Mer. 123. that applies to agreements is likewise applicable to wills. Swinburn (Ft. 2, § 6) tells us that in order to render a will void, the testator must be utterly de- prived of reason and understanding : " otherwise, albeit, his understanding is obscured, and his memory troubled, yet may he make his testament, being in that case." 180 FRY ON SrECIFIC rERFORMANCE OF CONTRACTS. the court will not specifically perform the agreement :[n) and so, again, where trustees for sale for the benefit of creditors made a sale by auction, under circumstances *of improvidence r*114l . . L -• and likely to prejudice the owner of the estate, for the sake of immediately realizing money to pa}'^ his creditors, the court pursued the same course. (o) And where, on the sale of trust property, it was agreed that the purchaser should out of the purchase money retain a private debt due to him from the trustee, a demurrer to a bill by the trustee was allowed. (^;) And again, where trustees entered into an agreement for a lease which was in excess of their power :{q) and again, where they entered into a covenant for renewal which was ultra vires, the court, on this ground, in both cases, refused specific performance. (r) And where trustees for sale misrepresented the value of the property, when they had the means in their power of stating it correctly, and the conditions of sale stipulated for compensation on either side, the lords reversed a decree for compensation on the ground that the court would not carry out a condition which would in- jure the cestuis que trust, by reason of the neglect of the trustees in making the misdescription wdiich was the ground for compen- sation.(s) And in a recent case, the court refused performance of a contract for the sale of leaseholds by one of two executors, on the ground that, under the circumstances of the case, it would bean injury to the cestuis que trust, and expose the executor to extraordinary risk from them, and that either of these grounds was sufficient to stay the interference of the court. (^) *& 248. Even where there is nothing amounting to a r*ll51 . . . F. L J distinct breachof trust, the court will be delicate of inter- fering against trustees ; so that where, in a contract for sale by (n^ Mortlock v. Buller, 10 Ves. IK. Ac- (s) White v. CiuMon, 8 CI. & Fin. 766. over- cordingly liriiigcr v. Kice, 1 J. & W. 74; ruling S. (J. s. u. Cuiidon v. Cartwriglit, 4 Y. Wood V. KicliMnlsou, 4 ]{eav. 174; Maw v. & O. li.v. 2"). Topliani, 19 Beav. 576. See also Hill v. Buck- (t) Sneesby v. Thorne, before Wood, V. C, ley, 17 Ves. 394; IScale v. Mackenzie, 1 Ke. 1 Jur. X. S. 536, atlirmed by L. J. J. u\. 1058; 474. S. C. 7 De G. M. & G. 399. See also Magram (ii) Ord V. Noel, 5 Mad. 438. v. Archbold. 1 Dow, 107. But in Barrett v. (p) Thompson v. Blackst(jne, 6 Beav. 470. Ring. 2 .bm. & Gif. 43, Stuart, V. C, coni|ielled (q) Harnett v. Yielding, 2 Sch. & L. .'j49. trustees ol a road to complete a contract for Accordingly Byrne v. Acton, 1 Bro. I'. C. 18(5. sale wliich had been made in forgeifulness of (r) Bellriuger v. Blagrave, 4 De G. M. & S. a statutory right of pre enipiion, and might 63. expose them to an action for damages. HAEDSHIP OF TIIE CONTRACT. 181 them, there is any want ofii l)usiness-like character, the court will not, it seems, interfere, unless the price be shown to be equal, or more than equal, to the value of the property.(^«) [8] § 249. The doctrine does not apply only to persons standing in the position of formal trustees, but, it seems, to all cases of trust and confidence. So that if a contract were the result of a gross breach of trust by an agent toAvards his principal, the court would not, it seems, enforce the consequences of that act.(t') And so, railway directors being trustees for the shareholders, and perhaps for the public also, the court will not enforce any agree- ment amounting to a breach of trust to the prejudice of all or any of the shareholders at the instance of a plaintiti' cognizant of the circumstances. (w) § 250. The court has on this ground not only refused specific performance, but in a case,(x') where the purchaser must have known that assignees in bankruptcy were dealing without suf- ficient knowledge, and that the creditors who were to ratify it were equally ignoiant, the court, on the ground of the breach of trust of the assignees (as well as other grounds), set aside the contract. ♦CHAPTER VI. [*11G] OF THE HARDSHIP OF THE CONTRACT. § 251. It is a well established doctrine, that the court will not enforce the specific performance of a contract, the result of ((/) Goodwill V. Fielding, i De G. M. & Railway Company, 4 De G. M. & IG. 115, G. 90. aflirmecl and this in-inciple approved, 6 IIo. (V) Mortlock V. Biilleiv 10 Ves. 292: 313. ' Lords, 113 ; cf. ante, J 2G0. (M) Shrewsbury and Binninghani Rail- (x) Turner v. Harvey, Jac. 169. way Company v. London and North-westeru [8] But where a trustee sells trust property, h.aving authority so to do, in order to invest the proceeds more advantageously, he must exercise his opinion fairly and honestly; and if it appears that he was swayed by private interests and seltish ends, and that the price was utterly disproportionate to the real value of the property, a court of equity will not sanction the act. Wovmley V. AVormley, 8 Wheat. 421. 182 FRY ON SrECIFIC PERFORMANCE OF CONTRACTS. Avhicli would be to impose great hardship on eitiier of the parties to it.(«) [Ij § 252. The question of the hardship of a contract is generally to be judged of at the time at which it is entered into : if it be then fair and just, it will be immaterial that it nia}', by the force of subsequent circumstances or change of events, have l)ecome less ])eneticial to one party, (6) except where these subsequent events have been in some way due to the party who seeks the performance of the contract. [2J For whatever contingencies may attach to a contract, or be involved in the performance of either part, have been taken upon themselves by the parties to it. And so at law, the reasonableness of a contract is to be judged of at the time it is entered into, and not by the light of Subsequent events ;(c) and we have already seen that the same principle applies in considering the fairness of a contract.(d) {a) Per Lord Brougham iu Gould v. Webb v. Direct London and Portsmouth Kemp. 2 Mv. & K. 308. Railway Company, 9 Ha. 129. (b) Lawder v. Blachford, Beat. 522 ; (c) Jones v. Lees, 26 L. J. Ex. 9. ('I) See ante, § 235. [I] Hard and unconscionable bargains are not of such a nature that a court of equity can decree their perfoi-mance. Kimberly v. Jennings, 6 Sim. 340. Ohio V. Baum, G Ham. 383. Toboy v. County of Bristol, 3 Story, 800. Can- naday v. Shephard, 2 Jones' Eq. (N. C.) 224. Cathcart v. Robinson, 5 Peters, 263. Seymour v. Delanccy, 3 Cow. 445. So, in Clarke v. Rochester, Lock- port and Niagara Falls Rail Road Co., 18 Barb. Sup, Ct. Rep. 350, the court would not adjudge a specific performance by a rail road company of the duty imposed upon them by the statute to construct farm crossings but that the plaintiff should be left to his remedy for damages, in a case where the compa- ny had constructed an embankment upon land convej^ed to them by the plain- tiff, by which access to a portion of his land, which was of small value, was cut off, it appearing that the cost of such a crossing would be greatly dispro- portioned to the value of the land to be benefited by it. See also Barnett v. Spratt, 4 Ired. Eq. 171. [2] It is said by Mr. Justice Story (Eq. Jur. § 750) that a court of equity will not decree a specific performance of a contract, where a change of cir- cumstances, or otherwise, would render the decree unconscientious. It does not appear, however, that the cases of the Bank of Alexandria v. Lynn, 1 Pet. R. 376 ; Cathcart v. Robinson, 5 Peters, 264, and Harnett v. Yielding, 2 Sch, & Lefr, 554, quoted in support of that view of the case, at all impair the rule as laid down in the text. See the comments on Harnett v. Yielding, made in Dyas v. Cruii>e, 2 J, & L, 460 ; S. C. 8 Iro'i. Eq. 407. HARDSHIP OF THE CONTRACT. 183 § 253. On this ground it has been decided by several cases in Ireland, that where a lessee of renewable leaseholds *cov- r#, -. 7-. euants with his sub-lessee for renewal without tine on ' ^ every renewal to himself, and subsequently a renewal is made to him, l)ut on terms far less beneficial than had been the cus- tom at the time he entered into the covenant, and on the ex- pectation of the continuance of which he has so covenanted, he will nevei'thek'ss be obliged to renew to his sub-lessee, and that without any contribution towards the increased fine which he has paid.(e) [3] So where railway companies contract for the purchase of land, and by their baches their powers expire before the completion of the purchase, that circumstance furaiishes them with no ground of defense.(y) § 254. This is further well illustrated by the cases on awards : for where the agreement contained in the submission is unfair, orconducing to hardship, the court will not interfere ;{ff) Avhereas hardship or unreasonableness in the award itself will not be a bar to the interference of the court ; for the submission and not the award is the agreement, and unreasonableness in the award is therefore a matter subsequent, and arising from the decision of a judge whom the parties themselves have chosen, and the risks attending whose judgment they have taken on them- selves. (/<) [4] (e) Evans v. Walshe, 2 Sell. & Lef. 419 ; Company, 1 De G. M. & G. 737, 755 ; S. C. Revell V. Hussev, 2 Ball & B. 280 ; Law- 5 Ho. Lords, 33L tier V. Blachf , Beat. 523. See also Hay- (?) Nickles v. PLancock, 7 De G. M. & G. ■wood V. Cope, 4 Jur. N. S. 227, (>I. U.) 300. See post, ii 977, 979. (/) Hawkes v. Lastern Counties Railway (h) Wood v. GriflitliS; 1 Sw. 43. [3] See also Thomas v. Burne, 1 Dr. & Wal. 657. [4] An agreement to submit a question to arbitration depends on the honor and good faith of the parties : it is revocable, before the award is given ; and it cannot be made irrevocable by any agreement of the parties. But though revocable both in equity and at law, before the award is duly made, yet if alread}^ made and published, it is too late for either party to revoke the sub- mission without the consent of the other. And a declaration by one party that he will not be bound by the award is then of no avail. Courts of equity, it is said, upon these grounds, refuse to enforce agreements of this nature; though an award made under such an agreement will be carried into exe<^u^ tion. Tobey v. County of Bristol, 3 Story, 800, Clement v. Iladlock, lii N* II, 185. 184 FRY ON SPECIFIC TERFORMANCE OF CONTRACTS. § 255. It cannot however be denied that there arc cases in which the court has refused its interfei'ence, by reason of events sul)sequcnt to the contract. Thus in the City of London V. Nash,(^■) where a party had covenanted to re-build sevei-al houses, and, iustcad of so doing, had built but two new houses and only repaired the others, Init in so doing had laid out at least <£2200, and put them in very good condition ; Lord Hard- r*-.^r,, wicke holdino; that the covenant was *one which in its I llo I . • J nature the court could enforce, yet considered that spe- cific performance would entail so great a loss and hardship on the defendant, and be so useless to the plaintiff, that the court would not enforce it, whether the defendant had nu'staken the sense of the covenant to re-build, or perhaps had even knowingly evaded it. And so again, where a mortgagor had entered into a contract to grant a lease, expecting to obtain the mortgagee's consent, but failed in this, and was in circumstances which rendered him practically unable to redeem : in a suit instituted by the intended lessee, the court refused specific performance, but granted the alternative pra3'er of the bill for rescission. (X;) § 25Q. Notwithstanding these cases the general rule seems to be, that events subsequent to the contract and not so involved in it as to render it unequal at the time it is entered into, cannot be bi-ought forward to show the hardship of enforcing it. But where the subsequent events alleged for this purpose are acts of the plaintiff himself, or events in some sense within his power, the court may have regard to them in exercising its dis- cretionary jurisdiction in specific performance. There are cases in which the court has considered that, by means of these events, such a change has taken place in the relative position of the plaintiff and defendant, as to render it inequitable specifically to enforce the contract against the latter.[5j The leading case (0 3 Alky, 513 ; S. C 1 Ves. Son. 13. (i) Cqsligan v. Hastlev, 2 Scli. & Let". 160. [5] There is no difference between a contract unreasonable when made, and one which becomes so afterward, if the applicant be in fault. Garnctt v. i\la- con, Call, 308. S. C. 2 Brock. 185. Thus, a very great change in the value of property is a seiious oljection to a decree for specific performance, where HARDSHIP OF THE CONTRACT. 18$ on this head is The Duke of Bedford v. The Trustees of the British Museum, (/) before Lord Eldon and Sir Thomas Plumer. The Duke of Bedford being in the occupation of Southampton House (afterwards called Bedford House) as his residence, in 1675 conveyed to Mr. Montagu adjoining land, for the purpose of his erecting on it a mansion, with suitable appendages of gardens and offices ; and Mr. Montagu entered into covenants with the duke not to use the land in a particular manner, with a *view^ to the more ample enjoyment by the duke of . the adjoining lands. The duke, or those claiming under ^ J him, subsequently covered these lands, or a considerable part of them, with houses, and Southampton House Avas pulled down to make way for streets and buildings. On a motion for an injunction to restrain the defendants, who claimed under Mr. Montagu, from using the land in a way at variance with the covenants of the deed of 1675, Lord Eldon and Sir Thomas Plumer held that the duke having altered the state of the prop- erty in the way he had, it would be inequitable, unreasonable, and unjust, thus to enforce the covenants specifically, and the plaintifi' Avas left to his remedy at law.(wi) And so, long acqui- escence in a variation from the mode of renewal pointed out by a covenant for that purpose has been held a reason for not spe- cifically enforcing the covenant in its original terms.(n) § 257. It would seem, that in considering the hardship Avhich may flow from the execution of an agreement, the court Avill consider whether it is a result obviously flowing from the terms of the contract, so that it must have been, present at the time [I) 2 My. & K. 552. Stoiir Valley Rail Road Company, 2 De G. {m) See per Knight Bruce, L J.,in Shrews- M. & G. 882. bury aucl Birininghaiu Railway Coiupauy v. («) Davis v. Hone, 2 Sch. & Lef. 341. the vendor is in fault, as it may affect the arrangements of the vendee for a compHance with the contract. Garnett v. Macon, 6 Call, 308. Again, in Forde v. Herron, 4 Munf. 316, it is said that a sale ought not to be set aside upon the grounds of smallness of price, where the complainant was himself in fault. And Clay v. Turner, 3 Bibb, 52, is a case to the effect that equitj'- will rescind a contract, although the parties cannot be reinstated, if the act of the party plaintiff" shall have prevented it. FKY— 13 186 FRY ON SPECIFIC PERFORMANCE OF CONTRACTS. of the contract to the minds of the contracting parties, or whether it arises from something: colhiteral, and so far concealed and Uitent, as that it might not have been thus present to their minds.(o) It is obvious that a far higlier degree of hardship must be present in the former, than in the latter class of cases, for it to operate on the discretion of the court. Thus, inacase(2j) where, under an agreement, the issue of a first marriage claimed the whole of the real estates of their father, to the exclusion of the issue of a second marriage. Lord Eldon said, (9-) speaking of the hardship which the defendants alleged would result from the r*i9ni ^***"^T'"o o^'t <^f *this agreement, that, "unless hardship -' arises to a degree of inconvenience and absurdity, so great that the court can judicially say such could not be the meaning of the parties, it cannot influence the decision." His lordship's remark, no doubt, applied to cases such as the one then before him, where the question being one of the construction of an instrument, hardship is used as an argument, to show that a par- ticular construction cannot be the right one ; and the observa- tions therefore cannot, it seems, be applied to hardship, when used to influence the discretion of the court in the exercise of its extraordinary jurisdiction in specific performance. § 258. The cases which have been already quoted as showing that the hardships must be judged of at the time of the con- tract, also ilhistrate another obvious principle, namely, that where the hardship has been brought upon the defendant by himself, it shall not be allowed to furnish any defense against the specific performance of the contract, (r) at least whenever the thing he has contracted to do is " reasonably possible."(«) § 259. Nor will it constitute a case of hardship that the ulti- mate object which a party had in view in entering into a con- tract may have become impossible : the mere failure of the purchaser's speculation will not discharge him from his obliga- tions to the vendor. Thus, where one person contracted with another for the purchase of a piece of land on which he intended (0) See f. s. casps stated, [ 261. («) Per Knight P.ruce, V. C , in Storer v. llA Preljlo V. Doghurst, 1 Sw. 309. Greut Western Railway Company, 2 Y. & (V) P, 329. • C. C. C. 52. (r) See per Lord Hardwicke in Pembroke T. Thorpe, 3 Sw. 413, n. HARDSHIP OF THE CONTRACT. 187 to erect a mill, for which the consent of a corporation was re- quisite, the refusal to give this consent furnished no defense to the purchaser, although he had, in consequence of the object he had in view, given a very high price for the ground. (^) *§ 260. In cases against companies, the court will not r^-ic^-,-! consider the hardships which may result to the individual ^ members from enforcing a contract made by the whole body ; " for it cannot recognize any party interested in the corporation, but must look to the rights and liabilities of the corporation itself ;"(«) and though, as we have seen,(i') the decision of the case in which this language was used by Lord Cottcnham has recently been disapproved of in the house of lords, this principle seems to be untouched, and to rest on solid reasoning. § 261. If the execution of the contract would render the de- fendant lial)le to a forfeiture, the court will regard this as a circumstance of hardship : so where a man was entitled to a small estate under his father's will on condition that, if he sold it within twenty-five years, half the purchase money should go to a brother : the owner agreed to sell it, but Lord Hardwicke held that the hardship was sufficient to determine the court not to interfere.(?o) So where a lessee sold certain lots of building ground, and agreed to make a road, which it was found he could not do without incurring the risk of forfeiting a piece of lease- hold laud through which it was to pass, or of being sued by the lessor, the court, granting the purchaser specific performance of the agreement for sale, refused to enforce this stipulation, but gave him compensation for the non-performance of it.(a3) § 262. To this head of hardship, we may perhaps best refer the cases which establish that, where the vendor is liable to certain covenants and has not expressl}' stipulated *that T^-,nc)i the purchaser shall indemnify him against them, yet so '- soon as the purchaser has notice of them, whether by the par- (0 Adams v. Weare, 1 Bro. C. C. 567; Or. 674; Hawkes v. Eastern Counties Rail- per Turner, V. C, in vVebb v. Direct Lon- way Company, 1 De G. M. & G. 737, 754; don and Portsmouth Railway Company, 9 of. ante, J 249. Ha. 140 ; per M. R. in Lord James Stuart {v) See ante, ^ 145. V. London and N'orth-western Railway Com- (fc) Faine v. Brown, cited 2 Ves. Sen. pany, 15 Beav. .523, and cases next cited. 307. (it) I'ev Lord Cottoiiham in Edwards v. (.t) Peacock v. Penson, 11 Beav. 355. Grand Junction Railway Company, 1 My. & 188 FRY ON SPECIFIC TEKFORMANCE OF CONTRACTS. ticulars of s!ilc,(?/) or subsequently to the contract, (;;) he is bound to elect either to rescind the contract or to excicute an indemnity to the vendor : for otherwise the vendor would lose his land but retain his lial)ility in respect of it. In the earlier of the cases cited, it was only decided that the purchaser, as plaintiff, could not enforce specific performance without enter- ing into such indemnity ; l)ut in the latter, that the vendor, as plaintiff, might put the purchaser to his election. § 2G3. In one case where trustees had joined their cestuis que trust in a contract for sale, and had personally agreed to exon- erate the estate from the incumbrances, and it did not appear Avhether the purchase money would be sufficient to discharge them, or what would be the extent of the deficiency, the court refused specific performance on the ground of hardship, although the plaintiff had had possession of the estate, and could not be deprived of the benefit of his contract without great inconven- ience. (o) In another case a mortgagee with power of sale had obtained a foreclosure decree, and, intending to sell as absolute owner, entered into a contract for sale to the plaintiff. In the contract there was copied, by inadvertence, from conditions of sale of other parts of the estate draAvn up some time before, a clause stating the vendor to be a mortgagee with power of sale : the vendor offered to convey as owner under the foreclosure decree, but the purchaser insisted on a title under the power of sale ; but the court held, that to impose on the vendor the risk of opening the foreclosure decree by such a sale, was a hardship which it would not put on him, and accordingly dis- , missed *the bill unless the plaintiff would accept the cou- L J veyance Avhich the defendant was ready to execute.(6) ^ 264. But where a tenant for life had agreed to grant a minins^ lease, and to a ))ill by the intended lessee he objected that he was only tenant for life, and that he could not grant the lease in question under his power, and that he should be accountable for waste, Lord Nottingham appears to have considered this to (v) Moxhay v. Inclerwick, 1 De G. «& Sm. (a) Wedgwood v. Adams, 6 Beav. 600. 708. {fj) Watson v. Marston, i Dc G. 31. & G. 230. (2) Lukcy V. Higgs, 24 L. J. Ch. 495, (Kin- dersley, V. C.) HARDSHIP OF THE CONTRACT. 189 be no defense, and he decreed the defendant to carrj ont the con- tract so far as he was capable of doing.(c) § 265. In one case Lord Hardwicke, on the gronnd of hard- ship, refused specific performance of a covenant to leave build- ings in repair contained in an ecclesiastical lease, the fact of the description of the buildings being continued from lease to lease, without variation, showing that the l)uildings in question might not have been in being at the time of the making of the lease.(tZ) § 266. And where a lessee of mines covenanted that if at any time before the expiration of the lease, the lessor should give notice of his desire to take the machinery anti stock about the mines, the lessee would at the expiration of the lease deliver the articles specified in the notice to the lessor, on his paying the value, to be ascertained by valuation, the court held the cove- nant thus framed to be so injurious and oppressive to the lessee, that it refused specific performance, and would not interfere to prevent a breach by inj unction. (e) § 267. Where A., in consideration of B.'s not joining in bar- ring an entail, agreed to convey to him, his heirs or assigns, the fee of such parts of the estates, which were situated in three counties, as he or they should choose, to the yearly value of X200 : the inconvenience and hardship to which such an option might expose the party who had *<::ranted it, was one ^ ground on which specific performance was refused by the ^ -• house of lords. (/) In another case the court refused to enforce an agreement for service by which a young man placed himself almost entirely in the power of certain great traders, by whom he was employed as traveler and clerk.(^) § 268. Where a contract, if enforced, would make a man buy what he could not enjoy, the court will refuse to interfere on the ground of hardship, as in the case of a contract to sell a piece of land to which no way could be shown, the contract itself being silent as to any right of way,(/^) (c) Cleaton v. Gower. Finch, 1G4 ; but see this case has been overmle'l. but on another the cases stated ante, § 245 et seq. point, by Liimle}' v. Wag-ner, 1 De G. M. (d) Dean of Ely v. Stuart, 2 Atky. 44. & G. 604. (e) Talbot V. Ford, la Sim. 173. (h) Denne v. Light, 26 L. J. Ch. 459; (/) Hamilton v. Grant, 3 Dow, 33, 47. S. C. 3 Jur. N. S. 627, (L. J. J.) (g) Kimbcrley v. Jennings, 6 Sim. 340; 190 FRY ON SPECIFIC rERFOIlMANCE OF CONTRACTS. § 200, The principle applies equally to contracls betAveen companies fis to those between private individuals ; and there- fore, where the result of such a contract was to divert from its legitimate channel a considerable portion of the profits of one part of the line of one company for the benefit of the other, without securing any corresponding portion of profits of the other line, the court refused to interfere by Avay of specific per- formance, irrespective of the consideration whether such con- tracts were legally binding or not.(/) § 270. One considerable class of cases in which the court has refused to grant specific performance on the score of unfairness and hardship, arises on contracts for the sale of reversionary in- terests. The court, considering that a man possessed only of a future interest sells at a disadvantage, has always refused specific performance of contracts by heirs for the sale of such estates at an under-value:(/:) and moreover has thrown the onus of proving that *the transaction was for a full consideration, and in •- ^ all respects fair, on the purchaser asking for the assist- ance of the court. (^) § 271. The principle on which the court acts in these cases being that a man possessed only of a future interest sells at a disadvantage, it will not apply where the tenant for life and the reversioner concur, as they together " form a vendor with a present interest ;"(/w) and so where a vendor had a rent charge of X500 in possession and an estate in reversion, and he sold a perpetual rent charge of £500, he was not considered as within the principle now under consideration, he having it in his power to secure a perpetual rent charge of that amount in possession. (n) ^ 272. The mere fact however that some interest in possession is sold together with the reversion, will not, at least where that is not considerable, take the case out of the rule;(o) as for in- stance, where an annuity in possession was sold together with (i) Shrewsbury and Birmingham Railway [l) Kendall v. Beckett, 2 R. & M. 88 ; Company v. London and Nortli-western Hail- Hincksnian v. Smith, 3 Kiiss. 433. Avay Company. 4 Ue G. M. & G. 115; S. C (»i) Wood v. Abrey, 3 JMad. 417. 6 llo. Lords, 113. (ny Waidle v. Carter, 7 Sim. 4'JO. (/.) I'layford v. Playfoi'd, 4 Ha. 546. (o) Per Lord Kldou in Uavis v. Duke of Marlborough, 2 S\v. 154. INADEQUACY OF THE CONSIDERATION. 191 the reversion, the estimated value of the auuuity being only about one-sixth of that of the reversion. (js) § 273. Again, the principle will not apply where the rever- sionary interest has been sold by auction ;(*^) and this for two reasons. For first, "there being no treaty between vendor and purchaser, there can be no opportunity for fraud or imposition on the part of the purchaser. The vendor is in no sense in the power of the purchaser."(r) Secondly, it being now clearly es- tablished that the market price of the reversionary interest, and not the estimate of actuaries, is the criterion by which the court will decide the question of undervalue ;(*) and a sale by auction being *a mode of ascertaining that market price, it fol- r^-,c)(>-i lows that the consideration of the transaction and the *- -' value in the eye of the court must in such cases be one and the same, and that, in the absence of fraud, no question of under- value can arise. § 274. The principles of the court in respect of sales of re- versionary interests have been very extensively discussed insults for the rescission of such sales : I shall not here enter at any further length upon them, but it remains only to remark, that whatever circumstances have been held to justify the rescission of such sales when executed, will a fortiori furnish a vendor placed in the position of defense with a ground for resisting the execution of a contract resting in fieri. *CH AFTER VII. , '*127] OF INADEQUACY OF THE CONSIDERATION. § 275. We now proceed to inquire how far the inadequacy of the consideration for a contract may furnish a defense against its specific performance. The inadequacy may, it is evident, in contracts for sale be either on the side of the vendor or of the (p) Earl of Portmore v. Taylor, 4 Sim. AVigram, V C, in Barell v. Danii. 2 Ila. 182. 452 ! Earl of Alclborough v. Trvo, 7 CI. & (q) Shelly V. Nash. 3 Mad. 232. Fia. 43G, particularly 4(jo : Edwaids v. Biu't, (r) Per Sir J. I-each, id. 236. 2 JDc U. M. & U. 55. (s) Wardle v. Carter, 7 Sim. 490; per 192 Flir ox SrECIFIC rEllFOIlMANCE OF CONTUACTS. purchaser ; either in the purchase money or in the thing sold ; or ai^ain in other cases, it may consist in the inequality ot" the contingencies to which the contract has reference.(a) § 276. It has been justly remarked that there is a great dif- ference l)etween the defense grounded on the inadequacy of pur- chase money set up by the vendor, and on the excess of it set up by the purciiaser ; for whilst the court can ascertain the former by a reference to the general market value of such property, it has no satisfactory means of determining what represents the money value to a specitied individual of a specified estate. (6) § 277. There is no doubt that inadequacy of consideration whcji combined WMth any case of fraud, misrepresentation, studied suppression of the true value of the property,(c) or with any circumstances of oppression, or even of ignorance, (tZ) is a most material ingredient in the case, as affecting the discretion P^.„o-]Of the court in granting specific *perf'ormance ; and further it may materially concur in constituting a case for setting aside a transaction. Thus in Cockell v. Taylor, (e) the present master of the rolls set aside an alleged sale of land to the plaintiff, where the consideration was about ten times the value of the land, — the purchase having been made the condi- tion of a loan which the plaintiff was very anxious to negotiate in order to prosecute his claim in chancery to some valuable property, and he being in humble circumstances and illiterate. "Coupled with such circumstances," said Sir John Romily, " the evidence of over-price is of great Aveight, and if the case had stood here I should have been of opinion that this trans- action was one which could not staud."( /*) It may also concur with other circumstances to show that the transaction was in the nature of a gift, and not of a contract for sale, in respect of which therfore the court would not interfere, as it does not de- cree the specific performance of incomplete gifts.(^) [1] {(j) Hamilton v. Orant, 3 Dow, 33. {e) 15 Beav. 103. (6) Dart, Vend. 578. ( /") I' 115. (r) Deane v. Rastron, 1 Ans. M. (?) Callaghan v. Callaghan, 8 01. & Fin. {(l) Young V. Clarke, Prec. Oh. ■'iSS ; Lewis 374. V. Lord Lcchmere, 10 Mod. 503. [1] Inadequacy of consideration when combined with unfairness of any kind, as oppression, imbecility of mind, surprise, or undue advantage taken INADEQUACY OF THE CONSIDERATION. 193 § 278. The question however which has been principally dis- cussed is the eflect on contracts of the inadequacy of consider- ation taken by itself and abstracted from all other circum- stances. § 279. With rei^ard to it as a ground for the setting aside of transactions, the doctrine of the court is that inadequacy of con- sideration, if only amounting to hardship or even great hard- ship, is no ground for relieving a man "from a contract which he has wittingly and willingly entered into ;"(^0 ^^^^ ^^^'^^ ^^ ma}^ be so enormousl}' great as to be a conclusive evidence of fraud, and that it is then a ground for setting aside the trans- action affected by it. (2) [2j {h) Griffith v. Spraltev, 1 Cox, 383, 38S, (0 S. C. Slilwell v. Wilkins, Jac. 280. 389 ; Fox. v. Mackreth, 2"Dick. 683. wjll warrant the consideration of a court of equit3^ Gasque v. Small, 2 Strobh's Eq. 72. Modisett v. Johnson, 2 Blackf. 431. Cathcart v. Robinson, 5 Pet. 263. Cabeen v. Gordon, 1 Hill. Ch. 51. Bunch v. Hurst, 3 Dessau. 273. McCormick v. Malin, 5 Blackf. 509. Brooke v. Berry, 2 Gill & J. 83. Howard v. Edgell, 17 Verm. 9. Harrison v. Town, 17 Miss., (2 Bennett,) 237. Powers V. Hale, 5 Foster, (N. H.,) 145. But it has been justly said, that in all these cases, it is the fraud, rather than the inadequacy of price, which affords the ground for relief. They are considered as cases of constructive fraud, in which the inadequacy of the consideration is received as evidence. See Osgood v. Franklin, 2 John. Ch. 24, and Wil'ard's Eq. Jur. § 1, ch. 4, p. 263. [2] It would seem to be equally the settled rule of this country, that inade- quacy of price is to be looked upon merely as evidence of fraud ; that, of itself, it affords no ground for the interference of courts of chancery, which have never yet, in England or America, attempted to fix the prices at which owners may dispose of their property. But the consideration of a contract may be so grossly disproportionate as to amount to conclusive evidence of fraud : and in these cases only will the agreement be set aside. AV right v. Wilson, 2 Yerg. 294. Green v. Thompson, 2 Ired. Ch. 365. Butler v. Has- kell, 4 Dessau. 651. Newman v. Meek, 1 Frecm. Ch. 441. "White v. Flora, 2 Overton, 426. Hardman v. Burge, 10 Yerg. 202. Knobb v. Lindsaj^, 5 Ham. 468. Osgood v. Franklin, 2 John. Ch. 1. Wintermute v. Snyder, 2 Green's Ch. 489. Stubblefield v. Paterson, 3 Iley. 128. McCormick v. Malin, 5 Blackf. 509. Juzan v. Toulmin, 9 ALi. 662. Delafield v. Anderson, 7 S. & M. 630. Holmes v. Fresh, 9 Mis. 201. There is a cla.ss of cases, however, where the defendant is an heir or expectant, in which inadequacy of piice is alone sulii- cient to obtain relief in equity. Story's Eq. Jur. § 336, and notes 1, 2, 3, 4. 194 FliY ON SrEClFIC PERFORMANCE OF CONTRACTS. , § 280. Kegardcd as a ground of defense to a specific perform- ance, the doctrine of tlie older cases was that it was *suf- r*129i t ' ficient, it being regarded, even where not amounting to evidence of fraud, as a circumstance of hardship which would stay the interposition of the court. Thus, in a case,(Z;) before Chief Baron Eyre, that judge laid it down that, independently of ull consideration of fraud, " the court upon the mere consider, ation of its beinj]: so hard u bargain will not enforce it." So, in a case(^) where there was an agreement between two men sui juris for the sale of an estate worth £10,000 for £6000 down and £14,000 more, payable at the death of a man aged sixty- four or sixty-five and there were no circumstances of pressure or circumvention, Lord Alvanley refused, on a cross-bill, to set aside the agreement ; Init he also refused specific performance of it on the ground of its beinij a hard bargain. And in an earlier case, where a purchaser had, during the South Sea mania, pur- chased a house from the court for £10,500, and paid a deposit of £1000, the purchaser was discharged by Lord Macclesfield, on forfeiting his deposit, on the ground of the general delusion which the nation was under at the time of the contract, and the imaginary values then put by people on estates, and this in spite of a most able argument by Lord Nottingham who argued in behalf of his granddaughters, the plaintifls.();i) § 281. But it seems now to be established by the decisions of Lord Eldon and Sir William Grant, that mere inadequacy of consideration is no defense to specific performance, unless it amount to an evidence of fraud, and so would furnish a ground even for cancelling the contract.(rt) "Unless the inadequacy of price," said Lord Eldon in one case,(o) " is such as shocks the conscience and amounts in itself to conclusive and decisive evi- dence of fraud in the *transaction, is not itself a suffi- L J cient ground for refusing a specific performance." And in an earlier case.(j5) where a sale by auction having taken (k) Tilly V. Peers, cited by Sir S. Komilly, (n) Per Lord Eldon in Stihvell v. Wilkins, arjr. 10 Ves. 301. Jac. 2S'2. (0 Day V. Newman. 2 Cox. 77: S. C. cited (o) In Coles v. Trecothick, 9 Ves. 246. ]jy Sir S. Roniilly, aig. 10 Ves. 300. ( p) White v. Damon, 7 Ves. 30. (m) Savile v. Savile, 1 P. Wnis. 745; S. C. 5 Viu. Abr. 516. pi. 25. INADEQUACY OF THE CONSIDERATION. 195 place for about half the value of the estate, Lord Rossljn had refused specific performance, but Lord Eldon, on a re-hearing, although he ultimately decided the case on a question of evi- dence, doubted the principle of the decree, and expressed an opinion that a sale by auction could not be set aside for mere inadequacy of price. His lordship also applied the same prin- ciple in the instance of an annuity transaction. ((^) The doc- trine was adopted by Sir William Grant and Lord Erskine, and is now the well established principle of the court.(r) A recent illustration of it may be found in the case of Abbott v. Sworder,(5) where an estate was bought for £5000, the value of which was considered by the Vice-Chancellor Knight Bruce, to be £3500 ; but this inadequacy of consideration was held, both by him and by Lord St. Leonards, to be no bar to specific performance, which was accordingly decreed at the suit of the vendor.[3j (?) UmlerhiU v. Horwood. 10 Ves. 209. 2 Ha. 450. See also Griffith v. Spraltey 2 tr) Burrowes v. Lock. 10 Ve.s. 470; per Bro. C. C. 179; S. C. 1 Cox, 383; Stephens Lord Erskine in Lowlher v. Lowther, 13 v. Hothani, 1 K. & J. 571. Ves. 103; Collier v. Brown, 1 Cox, 428; (s) 4 De G. & Sm. 448. Bower v. Cooper, 2 Ha. 408; Borell v. Danu, [3] In Westervelt v. !Matheson, 1 Hoff. Ch. 37, the court refused to set aside a purchase of land made for ^'2900, its highest value being estimated at ^'SSOO, upon the ground that the inadequacy was not so gross as to indicate a fraud. Seymour v. Delancey, 3 Cow. 445, was a case on appeal from the decision of Chancellor Kent. The learned senator who delivered the prevailing opinion admitted that, when the inadequacy of price was strong evidence of fraud the contract would not be carried into execution. "It is not to be denied " he observed, "that it is the settled doctrine of the court of chancery, that it will not carry into effect, specifically, a contract, when the inadequacy of the price amounts to conclusive evidence of fraud." But he could not admit that inadequacy of price, not amounting to fraud, was sufficient to stay the application of a court of equity to enforce the specitic performance of a private contract to sell. It should be remarked that, although the decision was reversed, it was upon a different point, a question of fact; and that the views of Chancellor Kent were concurrent with the opinion of the court of errors. " Excess of price over value, though considerable," it is said in Cathcart v. Robinson, 5 Pet. 203, "if the contract be free from imposition, is not in itself sufficient to prevent a decree for specific performance." And no doctrine of equity is better settled than this, whether in regard to vendor or vendee. Garnett v. Macon, 2 Brock. 185. Rodman v. Zilly, Saxton, 320. 196 FRY ON SrECIFIC PERFORMANCE OF CONTRACTS. § 282. It being established by other cases that, in a general way, the hardship of a bargain is, independently of fiaiid, a o-i-ound for refusing its specific execution ; and it being evident that the inadequacy of consideration, even where not amounting to evidence of fraud, may yet amount to evidence of such hard- ship, the reason of the rule above stated is not at first sight obvious. It is probably, however, to be sought for in the ex- treme difficulty of measuring such hardship, the relation of the two values being one capable of an inhuite gradation, — in the erreat variety of *feelings and motives by which men are r*1311 ^ "^ '^ t J actuated in their contracts, and in the corresponding variety of opinions which may be formed as to the inadequacy of the consideration of these contracts, except in those extreme cases where it is said to shock the conscience, and so to be in itself a badge and evidence of fraud. § 283. By the Roman law, these difficulties in the way of re- lieving airtiiust inadequacy of consideration in certain cases were White V. Thompson, 1 Dev. & Bat. Ch. 493. Tripp v. Tripp, Rice's Ch. 84. Bean v. Valde, 2 Mis. 126. In the recent case of Viele v. Troy & Boston R. R. Co., 21 Barb. Sup. Ct. Rep. 581, it was decided that, where a bill for the specific performance of a contract was brought before a court of equity, the coui-t would make no inquiry into the adequacy of the consideration, unless the inadequacy be so great as to raise a conclusive presumption of fraud. This is undoubtedly the law of the state of New York at the present time. There is, perhaps, a distinction to be taken between cases of private sales and sales at auction. In reference to the last, it has been several times de- cided that inadequacy of pries did not, in any case, amount to conclu.sive evi- dence of fraud. White v. Damon, 7 Ves. 30. In the case of Borell v. Dann, the vice chancellor said : Fraud, in the purchase, is of the essence of the ob- jection to the contract, on the ground of inadequacy. The onl}' exception to the rule for decreeing the specific performance of an unexecuted contiact, on the ground of inadequacy of consideration, is that it is so gross that, of itself, it proves fraud or imposition on the part of the purchaser. The case, however, must be strong indeed in which a court of justice shall say that a purchaser, at a public auction, between whom and the vendors there has been no previous communication, affecting the fairness of the sale, is chargeable with fraud or imposition, only because his bidding did not greatly exceed the amount of the vendors' bidding. See Willard's Eq. Jur. § 1, ch. 4, 425. INADEQUACY OF THE CONSIDERATION. 197 overcome, at least as to immovable property, by the fixing of the arbitrary standard of half the real price as that which would or'ive the sufferer a riui-ht to the interference of the law : when the price paid did not amount to half the real value of the thing sold, the vendor might put the purchaser to his election, either to take back the purchase money and restore the thing sold, or to keep the thing, and make up the deficiency in the purchase money.(i!) The French law adopted the same principle, except in the case of sales between co-heirs and co-proprietors, where a defect of one quarter of the price had the same effect as a like defect of one half in other ciises.{u) A wish has been expressed that the same principle had been adopted by the law of this countr3^(^•) § 284. The question of the inadequacy of the consideration must of course be decided at the time of the contract, and not by the light of subsequent events.[4j It is true that, in a case(w) already stated, the circumstance of the contract having been made during the excitement caused by the South Sea scheme, was alloAvcd as a reason why the court relieved a purchaser from the performance of his contract ; but the case is one which can- not now be considered as law, and the principle involved seems unjust. It is now *therefore well established that the r^^orti time of the contract is the time for judging of its con- *- sideration : thus, to give one example, — where an annuity for life forms part of the consideration, and the life drops before any payment is made, this does not render the consideration neces- sarily inadequate. (ic) § 285. The question of inadequacy of consideration in cases of sales of reversionary interests is governed by principles peculiar to those cases : the proof of adequacy being thrown on the pur- («) Cod. lib. Iv. tit. 44. 3, Klon v. Stukelqv, 1 Bvo. P. C, 191, where («) Pothier, Tr. Uos Oblig. p. 1, ob. i, 8. the same groiuul was urged ; but according 1. art. 3, j 4. to the report in Gilbei't, the case was decidea (f) Nott V. Hill, 3 Cas, in Ch. 120, on another point, (tf) Savjlo V. Savjle, ante, i 380. See l.^) Mortimer v, Capper, 1 Bro. C, C, 156 [4] Batty v. Lloyd, 1 Yern. 141. 198 FRY ON SrECIFIC PERFORMANCE OF CONTRACTS. chaser, and not that of inadequacy on the vendor. The subject is briefly referred to else where. (y) [*133] *CHAPTER VIII. OF WANT OF MUTUALITY IN THE CONTRACT. § 286. A CONTRACT, to be specifically enforced by the court, must be mutual, — that is to say, such that it might, at the time it was entered into, have been enforced by either of the parties against the other of them. Whenever, therefore, whether from personal incapacity, the nature of the contract, or any other cause, the contract is incapable of being enforced against one party, that party is equally incapable of enforcing it against the other, though its execution in the latter way might in itself be free from the difficulty, attending its execution in the former.[lJ (y) Ante, § 270. [1] No rule in equity is more thoroughly settled than this. Benedict v. Lynch, 1 .John. Ch. 370. Bromley v. Jeffcrs, 2 Vern. 415. German v. Machin, 6 Paige, 288. Woodward v. Harris, 2 Barb. S. C. R. 439. Phihps v. Berger, Id. 611, confirmed on appeal, 8 id. 527. See also Rogers v. Saunders, 4 Maine R. 92. Tyson v. Watts, 1 Maryl. Ch. Decis. 13. Beard v. Linthicum, Id. 345. M'Murtrie v. Bennet, Harring. Ch. 124. Hawley v. Sheldon, Id. 420. Cabeen V. Gordon, 1 Hill. Ch. 51. In Bronson v, Cahill, 4 ]McLean, 19, a bill was brought in equity, by the vendors of certain land, to enforce specific execution of the contract of sale. It appeared, however, that a part only of the vendors had agreed to make a good and sufficient title to the land. Held, that there was a want of mutuality in the contract, and that specific execution could not be enforced. The same question arose in Tyson v. Watts, 1 Maryl. Ch. Decis. 13. There, the manifest object of the party resisting a decree for the specific performance of a contract, and one which he supposed he had secured by the contract, was to have the minerals on his farm worked as well as explored • by the contract he gave ji. full power to make explorations and work the mines ; but the only engagement on the part of //, was limited to explorations, and he was not bound to work the mines. Upon this state of the case the court decided the contract to be deficient in reciprocity of obligation, and re- fused its specific performance. A party not bound by the agreement itself, has no right to call upon a court WANT OF MUTUALITY IN THE CONTRACT. 199 § 287. Thus, a tenant in tail cannot enforce an agreement entered into by a tenant for life, because the tenant in tail could not be sued on that agreement :(«) an infant cannot sue, because he could not be sued, for a specific performance :{b) a purchaser from a person who at the time of the sale had no estate in the property sold, may defend himself on the score of the vendor's original incapacity to perform his part:(c) and where A. agreed with B. not to *ioin in barring an entail, and B. agreed r^-,^,-, o o r*134| to convey to A. a certain parts of the estate on his enter- ^ ■• iug into possession, and it was held, on the authority of Collins V. Plummer,(cZ) that such an agreement could not be specifically enforced against A., a specific performance of B.'s part of the agreement was refused at the suit of A.'s representatives.(e) So where the relief sought was analogous to the specific perform- ance of a grant of an ofiice, the court held that, the duties and services incident to the office being personal and confidential in their character, specific performance could not have been decreed against the plaintiff at the suit of the defendant ; and conse- quently, that the plaintiflt' could not sue the defendant, though there was no personal duties to be performed by the defend- ant.{f) And so where the plaintiffs had agreed to perform cer- tain services in working a railway, which were of such a confiden- tial nature that the court could not have enforced them if the de- fendants had sued the plaintiffs, — and the defendants were to pay money, and do nothing else ; the court refused specific per- (a) Armiprer v. Clarke, Bunb. Ill ; Riok- the party of fall a.s:e. The inftint cannot ett3 V. Bell, 1 Do G. <& Sra. 3:io. recover a deposit paid on the contract, ex- {'A Fli^'ht V. Holland, i Rus3. 298. The cept on the ground of IVaud. Wilson v. case of Clayton v. Ashdown, 9 Vin. iVbr. .393, Kearse, Peake, Add. Cas. 196. may perhaps be explained on the ground of (r) Hogg'art v. Soott, 1 R. & My. 293. a ratification by the intlint after attaining {i) 1 P Wms. lOt. Ills majority, or as being an api)lication in (e) Hamilton v. Grant. 3 Dow, 33. equity of the legal principle that the con- (f) Pickex'ing v. Bishop of Ely, 2 Y. & C. tract, though voidable by the inftvnt, binds C, C. 249, of equity to enforce specific performance against the other oontraeting party, by expre.s.sing his willingness, in his bill, to perform his part of the engage- ment. His right to the aid of the court does not depend upon his subsequent offer to perform the contract on his part, but upon its original obligatory char- acter. Duvall V. Myers, 2 Md. Ch. Decis. 4Q1. See also tho oasQ of Bodinft V. Gladding, 21 Penn. (9 Harris,) 50. 200 FKY ON SPECIFIC TERFOEMANCE OF CONTRACTS. formanccs, on the ground, amongst others, of want of mutual- § 288. A doubt was at one time entertained whether there ex- isted the proper mutualit}^ between a person having entered into a contract to take a lease from a tenant for life, with a leasing , power and the remainderman :(//) Init that *doubt is '- -' now resolved, and it seems clear that such a contract may be enforced by either of the parties to it.(/) § 289. The mutuality of a contract is, as we have seen, to be judged of at the tir^e it is entered into ; so that it is no objection to the plaintiff's right, that the defendant may by delay, or other conduct on his part sul)sequent to the contract, have lost his right against the plaintiff. (/i;) [2] And accordingly it has been held to be no defense on the part of a railway company, for them to show that they had after the contract suffered the time during which, by their statutory powers, they could purchase the lands to expire :(/) if such a defense were sustained, it would be to allow defendants to take advantage of their own neglect. § 290. The exceptions and limitations to the doctrine of mu- tuality may now be considered. § 291. (1) The contract may be of such a nature as to give a (g) Johnson v. Shrewsbury and Birmlng- (h) Per De Grey, C. J., in Cauipbell v. ham Railway Coni])anv, 3 t>e G. M & G. Leach, Ambl. 749. 914; Stocker v. Wedderburn, 3 K. & J. (0 Shannon v. Bi'adstreet, 1 Sch. & Lef. 393; Ord v. Johnston, 1 Jiir. N. S. 10G3, 52. particularly 64. (Stuart, V C.) See also lUll v. Gomme, 1 (k) South-eastern Railway Company v. Beav. 510 ; Bromley v Jefferies, 2 Vern. Knott, 10 Ha. 122. 415, sed qu.; but see per Sir J. Romilly in {I) Hawkes v. Eastern Counties Railwiiy Hope V. Hope, 22 Beav. 364 ; also S. C. be- Company, 1 De G. M. & G. 737, 755 ; S. C. fore L. J. J. 26 L. J. Ch 417; Vansittart y. 5 Ho. Lords, 331, 365. The observations of Vansittart, 4 K. & J. 63. It has been de- Lord Crauworth in Stuart v. London and cided in Ireland that a contract by a pur- North-western Railway Company, 1 De G. chaser with a husband and wife is' not bad M. & G. 721, to the contrary, may probably for want of mutuality, and maybe enforced be taken to be overruled by his lordship's by them. Fenelly v. Anderson, 1 Ir. Ch. R. concurrence in Hawkes's case in the house 706. The grounds of this decision do not of lords, appear very conclusive. [2] And the rule which applies to cases in which there is not such mutuality of remedy at the time the contract is made, is not applicable to cases in which the mutuality of remedy is taken away by a subsequent contingent event. Moore v, Fitz Randolph, 6 Leigh, 175, See Walton v. Coulson, 1 McLean, 12<>, which is a case agreeing precisely with the South-eastern Railway Co. V. Knott, cited in the text. WANT OF MUTUALITY IN THE CONTRACT. 201 right to the performance to the one party which it does not give to the other, — as for instance, where a lessor covenants to renew upon the reqnest of his lessee :(ni) or where the agreement is in the nature of an undertaking.(?t) But the more accurate view of such cases as the first, perhaps of all that could be treated as wanting mutuality, seems to be that they are conditional con- tracts : and when the condition has been made absolute, as for instance, in the case above stated, by a request to renew, they would seem to be mutual and capable of enforcement by either party alike. § 292. In cases arising out of such contracts, the court *will exercise its discretion as to specific performance r^,Qpn with great care, and, it seems, view, even somewhat nar- *- -' rowl}^, the conduct of the party claiming the benefit of his unilateral right to enforce the contract.(o) § 293. (2) Mutuality may be waived by the subsequent con- duct of the person against whom the contract could not origin- ally have been enforced : thus, Avhere a purchaser contracts for an estate with a person having no title, or not such as he afl^ects to sell, and the contract therefore is not mutual, for want of interest in the vendor ; yet if the purchaser investigate the title, and make requisitions, or concur in proceedings for the purpose of remedying the defect, he is afterwards precluded from sefe- ting up the original want of mutuality in the contract.(p) § 294. And so where, from the relation of the parties to one another, the contract is originally binding on the one and not on the other, the latter may by suit waive that want of mutuality, and enforce the specific performance of the contract ; as in the case of a suit by a cestui que trust against his trustee for the per- formance of a contract for sale, such a contract being originally binding on the trustee, and not on the beneficiary. (<^) The case of a contract for sale by a voluntary settlor is similar, for though he is incapable of enforcing the contract on the pur- {m) Chosterman v. Mann. 9 Ha. 206. See (o) Chesterman v. Mann, ubi snp. Bell V. Howard, 9 Mod. 30'2, 304. See ante, {p) Salisbury v. Hatcher, 2 Y. &. C. C. C. i 186. 54 ; Hoggart v. Scott, 1 R. & My. 293. (n) Palmer v. Scott, 1 R. & My. 391. (q) Ex parte Laccy, 6 Ves. 625. FEY — 14 202 FRY ON SPECIFIC PERFORMANCE OF CONTRACTS. ch;i.ser,(r) the purchaser may waive the want of mutuality and enforce it on him. (5) § 295. (3) Another exception to the principle in question is afforded l)y the doctrine which was established very soon after the passing of the Statute of Frauds, that in case of agreements which by that statute are required to be in writing, a party who has not signed the agreement may enforce it against one who has.(0 [3] *^ 296, It has been allei>:ed in support of this doctrine, r*137l r^ I I ' <- -< in the first place, that the statute only requires the agreement to be signed by the party to be charged therewith, or his agent, and is silent as to the signature of the other party.(z/J But this reasoning seems inconclusive, because the doctrine of mutuality is over and above, and quite independent of, the Statute of Frauds : that statute may be satisfied, and the doc- trine in question remain unsatisfied. (v) § 297. A more satisfactory reason which has been alleged is that b}' filing the bill the plaintifi' has waived the original Avant of mutuality, and rendered the remed}^ mutual. (?/;) § 298. On the same grounds, an agreement contained in a deed-poll was enforced, notwithstanding an objection which was taken from the unilateral nature of the instrument. (.X") § 299. (4) Where the vendor has not substantially the whole (r) Smith V. Garland, 2 Mer. 123; Johnson 7 A'es. 205 ; Lord Omioncl v. Anderson, 2 Ball V. Legrard, T. & K. 2S1. & B. 363. (s) Huckle V. Alilchell, 18 Ves. ICO. (i) See per Sir J. Leach in Boys v. Ayerst, (0 irlattoii V. Giey, 5 Viu. Abr. 525, pi. 4, in 6 Mad. 323. 36 Car. ii.; S. 0. 2 Cas. in Ch. 164 ; Buclvhouse (") Child v. Comber, Seton v. Slade, ubi V. Crosljy, 2 Eq Cas. Abr. 32, pi. 44; and see, supra; Fowle v. Freeman, 9 Ves. 351 ; per as to tlie nature ol' llie inlorebt in the i)arty Sir W. Grant in Western v. Russell. 3 V. & B. wlio has not signed. Morgan v. Holiord. 1 192; Martin v. Mitchell, 2 J. & VV. 413; Flight Sni. & Gif. 101 ; and see post. § 346. ' v. Bolland, 4 Kuss. 2i»8. (!/) Coleman v. I'pcot, 5 Vin. Abr. 527, pi. (x) Otway v. Braitlnvaite, Finch, 405. So 17; Child v. Comber, 3 S\v. 423. n.; Back- also ol a bond, Butler v. J'owis, 2 Coll. C. C. house V. Mohun, id. 434, n.; Seton v. Slade, 156. [3] Tn support of this exception, see Seton v. Slade, 7 Yes. 275 ; Fowle v. Freeman, 9 ib. 357 ; Clas-on v. Bailey, 14 John. Rep. 184; McCrea v. Purdy, IG Wend. 400; Woodard v. Aspinvvall, 3 Sandf. S. C. R. 272; Sutherland V. Briggs, 1 Hare, 34. But see the comments of Lord Redesdale in Lawrence V. Butler, 1 Sch. & Lef. 13; and of Verplanck, senator, in Davids v. Shields, 26 Wend. 362. "WANT OF MUTUALITY IN THE CONTRACT. 203 interest he has contracted to sell, he cannot enforce the contract against the purchaser, and yet the purchaser can insist on having all that the vendor can convey, with a compensation for the dif- ference. " If," said Lord Eldon,(?/) " a man, having partial in- terests in an estate, chooses to enter into a contract, representing it, and agreeing to sell it as his own, it is not competent to him afterwards to say, though he has valuable interests, that he has not the entirety, and therefore the purchaser shall not have the benefit of his contract. For the pui-pose of this jurisdiction, the person contracting under those circumstances is *bound r^jj^^ooT by the assertion in his contract ; and if the vendee "- -• chooses to take as much as he can have, he has a right to that, and to an abatement ; and the court Avill not hear the objection by the vendor, that the purchaser cannot have the whole. "(5;) This principle was acted on by Lord Nottingham, in the case of Cleatnn v. Gower,(a) where the defendant, Gower, Avas tenant for life of certain estates in Shropshire, and he and his late father agreed Aviththe plaintiff that the plaintiff should open and Avork certain mines, and should enjoy the minerals raised for ten years, if the defendant or his issue male should so long live, at a yearly rent of £25. The plaintiff sought a specific performance of this agreement : the defendant objected that he Avas only tenant for life, and subject to account for AA-aste, and that he could not ex- ecute the agreement because it Avas inconsistent Avith his poAver: but the court decreed the defendant to execute the agreement so far as he Avas capable of doing it, an.d likewise to satisfy the plaintiff such damages as he had sustained in not enjoying the premises according to the agreement. The principle is also weX illustrated b}^ Lord Bolingbroke's case,(/>) before Lord Thurlow: the incumbent of a livini; had contracted Avith a tenant in re- mainder for the purchase of the advoAvson, and on the faith of the contract had built a much better house on the slebe than (y) In Mortlock V. Buller, 10 A'es. 315. ly 34; AVilson v. AVilliams, 3 Jiir. N. S. (2) See accordingly Attorney-General v. bio, lAA'ood. A'. (J.) Day, 1 A'es. Sen. 224 ; Milliga"n v. Cooke. (o) Finch, 164 16 Ves. 1; Dale v. Lister, Ifi A'es. 7; Hill (b) 1 Sch. & Lef. 19, n., quoted by Lord V. Buckley, 17 Acs. 394; AVeslern v. Ilus- Cottenbani in Great AVestern liuihvay t cm- sell, 3 V. & B. is"; Xeale v. Mackenzie,! panv v. Birniinghani and O^lord Junction Ke. 474; Bennett v. Fowler, 2 Beav 302; Uailway Coniijany, 2FLil. 60o. Sutherland v. Briggs, 1 Ha. 26, particular- 204 FRY ON SPECIFIC PERFORMANCE OF CONTRACTS. be would otherwise liave done: the tenant for life refusing to concur in the sale, Lord Thurlow compelled the tenant in re- mainder to convey a base fee by levying a fine with a covenant to suffer a recovery on the death of the tenant for life.[4] _ *§300. Considerable doubt was unquestionably thrown •- -' on this principle l)y Lord Redesdale, in two cases which came before him as lord chancellor of Ireland. In one of these cases,(c) a tenant for life entered into an agreement with the plain- tiff to grant a lease, which he could not do without the consent of trustees : the consent was refused, the agreement being in fact intended to give a fine to the tenant for life in fraud of the power : the intended lessee filed his bill against the tenant for life, and contended that he was at least entitled to such a lease as the tenant for life could grant out of his estate. But Lord Redesdale dismissed the bill for want of mutualit3% " No man," he said,(cZ) " signs an agreement but under a supposition that the other party is bound as well as himself: and therefore if the other party is not bound, he signs it under a mistake ;" and hi* lordship considered that the principle above stated only applies where, on the faith of an agreement, one party has put himself in a situation from Mdiich he cannot extricate himself, and is therefore willing to forego part of his agreement, — where an in- jury would be sustained by the plaintiff, unless he were to get such an execution of the contract as the defendant could give. In the other case,(e) which came before Lord Redesdale, he further observed upon the specific performance of contracts by a tenant for lite exceeding his power : "I think," said his lord- ship, (/) " courts of equity should never enforce such contracts, (e) Lawrensou v. BuUer, 1 Sch. & Lef. {e) Hiirnett v. Yieliling, 2 Sch. & Lef. 13. 549; contra Neale V. Jlaekonzie, 1 Ke. 474. • (d) P. 21. (/) P. 559. See also p. 553. [4] " Where the vendor has contracted to convey a tract of land, the title to a part of which fails, the vendee may claim a specific performance of the contract a.s to the residue of the land, with a compensation in damages in re- lation to which the vendor is unahle to give a good title." Morss v, Elmen- dorf, 11 Paige, 287. WANT OF MUTUALITY IN TIIE CONTRACT. 205 M'hcthcr with a view to the party himself or to the person en- titled in remainder. In the first phice, it is unconscionable in the tenant for life to execute such a lease, l)ecanse it brings an incumbrance on the estate of the remainderman, and puts him to litigation to get rid of it ; and as to the tenant for life him- self, it is compelling him to do what is to be the foundation of *a future action for damages, if he die before the twenty- r*, i-^i one years. The court will never do this, but will leave the party at once to bring his action for damages. And I also conceive that this sort of contract, o1)tained by a person who knew at the time the nature of the title, is unconscionable in him, as he makes himself a [)arty knowingly to that which is a fraud on the remainderman ; and, under such circumstances, he has no claim to the assistance of a court of equity." § 301. This view of the jurisdiction is certainl}^ narrower than that entertained by previous judges : it has been remarked to be such by Lord Langdale,(^) and has been disapproved of by Lord St. Leonards. "I doubt," said his lordship, (A) speak- ing of Lord Redesdale's dismissal of the bill in the first of the cases above alluded to, " whether that can be maintained as the law of the court where there is no fraud in the transaction. If there be a bona fide intention to execute the power and the contract cannot be carried into effect, I do not see why the in- terest of the tenant for life should not be bound to the extent he is able to bind it, unless there be some inconvenience." § 302. It is obvious that, in thus proceeding to give the pur- chaser an estate different from that which the vendor con- tracted to sell, the court is executing the contract C}' pres, or rather, perhaps, is carrying into effect a new contract, — a course in which difficulties will necessarily sometimes arise ; and these put resti'ictions on the jurisdiction under discussion. These seems to be the following. § 303. Where the difference in value of the interest con- tracted for, and the interest actually to be conveyed, is incapa- ble of computation. Thus, in a case where the vendor con- (g) In Thomas v. Dering, 1 Ke. 746. (/i) In Dj-as v. Ciuisc, 2 Jon. & Lat. 460, 487. 206 FRY ox srECIFIC PEKFOKMANCE OF CONTRACTS. tractcd to convey the fee, und the interest which he could con- vey was a life estate and an ultimate reversion in fee in default of issue male, specific performance was *refused on this r*1411 ' ^ L J ground :{t') and in another case, where compensation was asked for the difference between arbitrary and fixed tines, the former beiuir susceptible of variation as the estate increased in value. Lord Cottenham considered it impossible to compute it, and that a reference to the master to compute it was accord- ingly erroneous.(/^) In these cases, the purchaser might, of course, take the vendor's interest, if he chose, without compen- sal ion. § 304. (2) Nor will the rule apply where the alienation of the partial interest of the vendor might prejudice the rights of third persons interested in the estate ; so wdiere a tenant for life, without impeachment of waste, under a strict settlement, had contracted for the sale of the fee, the court refused to com. pel him to alienate his life interest, on the ground that a stranger would be likely to use his liberty to commit w^aste in a manner different from a father, and more prejudicial to the rights of those in remainder.(/) § 305. (3) In Wheatley v. SIade,(;n) the vice chancellor of England held that the principle did not apply where a large part of the property cannot be conveyed ; and consequently where there Avas a contract for the sale of a lace mtinufactory, and it turned out that the vendor was only entitled to nine-sixteenths of the whole, and that those parts wei"c subject to a debt which would exhaust nearly the whole of the purchase money, he re- fused specific performance. But in cases where there is a great difference between the property supposed to be sold and that which the vendors can convey, the court will, notwithstanding this circumstance, *enforce the agreement where it sees r*I42l 1 . . L ^ that the intention of the contract is the sale of whatever interest the vendor has. Thus, where vendors Avho had only [i) Tliomas V. Dorincr, 1 Ke. 729. See also ham v. Oliver, 3 Beav. 124; cf. Cleaton v. Graham v. Oliver, 3 Beav. 12t. Gower, Finch. 16i. stated ante, 5 299. (i) Wliite V. Cndilou, 8 CI. & Fin. 766; re- (m) 4 Sim. 12S. See the observations of vor.siiiar S. C. in Ex. 4 Y. & C. Ex. 25. See Lord St. Leonards on this case. Vend. & also infra, § 813 et seq. Pur. 263 ; also Maw v. Topham, 19 Beav. 576, {>.) Thomas v. Deringr, 1 Ke. 729, quoted in where the vendors were only entitled to Wythes v. Lee, 3 Drew, 396. See also Gra- three-fourths. WANT OF MUTUALITY IN THE CONTRACT. 207 two twenty-first parts contracteil to sell two-sixth parts with all other their rights and interests in the property, the contract was enforced. Such a case is very diirerent from a contract for the sale of an entiret}' where the vendor is only owner of part.(?i) § 306. (4) It is perhaps questionable whether in any case in which the purchaser is aware of the vendor's incapacity to convey the whole of what he contracts for, he can claim to have what the vendor can convey.(o) In a recent case,(p) where the ven- dors Avcre entitled only to three-fourths of the property, and the purchaser was at the time he tiled his bill aware, or had good reason to believe, that no good title could be made to the whole of the premises, the master of the rolls held that though he might probably have recovered damages, yet as he chose to sue for specific performance, he was not entitled to any abatement on the purchase money, but that he might take without abate- ment the three-quarters which the vendors could convey. And it seems clear that where the purchaser is privy to an intended fraud on a settlement by the vendor, he cannot claim to have that which the vendor can convey out of his interest: so that where a person has dealt with a tenant for life for a lease, being at the time aware that it would be in excess of the tenant for life's power, and so endeavored to put a fraud upon the settle- ment, he will not afterwards be allowed to call for a lease from the tenant for life to the extent of his interest : the agreement was not at the lime it was entered into a fair and proper one, and the court therefore will not interfere. (i^.) [5] (n) Jones V. Evans, 17 L. J. Ch. 469. St. Leonards appears to doubt this case, (0) Beestoii V. Stuteley, 27 L. J. Ch. 156. Vend. & Pur. 257. (Wood. V, C.) (q) OUourke v. Percival, 2 Ball & B. 58. (p) Maw V. Tophani, 19 Beav. 576. Lord See ante, i 3000. [5] "It is also perfectly evident," it is added by Walworth, Chancellor, in Morss V. Elraendorf, 11 Paige, 288, "in this case, that the complainant, at the time he filed his bill, was aware that the supposed gore had no existence, and that no specific performance of the agreement could be obtained in this court. And in a case of that kind, Chancellor Kent correctly decided that this court ought not to entertain the suit merely for the assessment of damages. (Hatch V. Cobb, 4 John. Ch. 559. Kempshall v. Stone, 5 ib. 193.) But where the defendant deprives himself of the power to perform the contract specifically, 208 FEY ON SPECIFIC TERFORMANCE OF CONTRACTS. [*143] *CHAPTER IX. OF THE ILLEGALITY OF THE CONTRACT. § 307. The illegality of an agreement is of course a bar to its specific performance, as well as to every other proceeding by which either of the parties may seek to enforce it. The inter- ference of the court is prevented, whether the contract were ille- gal at the time of its being entered into, or was then legal, but has been rendered illegal by subsequent statute law before its during the pendency of a suit to compel such performance, this court may very properly retain the suit, and award the complainant a compensation in damages; to prevent a multiplicity of suits. And I am not prepared to say that such a decree might not be proper, where the defendant had deprived himself of the power to perform the contract prior to the filing of the bill, but without the knowledge of the complainant ; or even where he had never had the power to perform, if the complainant had filed his bill in good faith, supposing at the time he instituted his suit here that a specific performance of the contract could be obtained under the decree of this court. But this court does not entertain jurisdiction where the sole object of the bill is to obtain a compensation in damages for the breach of a contract, except where the contract is of equitable cognizance merely. Nor can a complain- ant entitle himself to the interference of this court, to give him a compensa- tion in damages for the non-perfoi-mance of a contract, by neglecting to state in his bill, that the defendant is unable to perform the contract specifically; where that fact is known to him at the time of filing his bill in this court. For if the facts which were then known to him had been fully stated in his bill, the defendant might have demurred, upon the ground that the complain- ant's remedy, if any he had, was at law and not in equity. Or he might have raised that objection in his answer. In this case, therefore, the complainant's bill cannot be retained, for the purpose of obtaining a compensation in dam- ages merely, when he knew that he could expect nothing more than such a compensation in damages at the time of filing his bill. And the complainant having made a case, by his bill, apparently entitling him to a specific per- formance, he cannot now insist that the defendant has waived the objection, that the remedy of the complainant was at law; because he did not demur to the bill, or state that objection in his answer." ILLEGALITY OF THE CONTRACT. 209 execution. (a) But in the latter case the court is, it seems, more anxious to lind some means of executing the contract so far as it may be done Avithout violating the law.((^) [1] § 308. What constitutes illegality in all the various species of contracts which may exist between man and man is a subject of enormous dimensions, regulated in part by the statute law of the realm, in part by considerations of public policy, (c) and in part even by the rules which the courts have adopted for the general protection of all suitors. (c^) [2J It will be needful here (a) Atkinson v. Ritchie, 10 East, 530, 534; (c) As to this class, see Erlgerton v. Lord Barker v. Iloclsjson. 3 M. & S. 267; Esposite Brownlow. 4 Ho. Lords, 1, and the cases there V. Bowden. 4 Ell. & Bl. 91)3. See also Win- collected, nington V. Briscoe, 8 Mod, 51. and post, i ()07. ((/) Cooth v. Jackson, 6 Ves. 12. (6) Bettesworth v. Dean of St Paul's, Sel. C. in Ch (56 ; post, § 672. [1] See Wilson v. Spencer, 1 Rand. 76. Thompson v. Thompson, 7 Ves. 473. Pratt v. Adams, 7 Paige, 615. There is at least a seeming exception in Pennsylvania, in regard to usury. Though the effect of the usury law of that state, according to its settled construction, is that if the usurious premium is actually received, the usurer is liable to forfeit the whole amount of the loan, to be recovered in a qui tarn action for the use of the state and the common informer, yet there is no forfeiture in favor of the borrower, and the usurer may sue and recover the money lent and legal interest, notwithstanding the existence of the general principle in other cases, that courts of justice will not give redress to a party suing upon a contract which has been made contraiy to law. Wyckoif v. Longhead, 2 Dall. Rep. 92. Turner v. Calvert, 12 Seig. & Rawle, 46. Creed v. Stevens, 4 Whart. 225. [2] Cases of illegality of contract proceed in violation of public policy or of some fixed and artificial rule of the law, and are, therefore, considered as an- alogous with cases of constructive fraud; which, "although not originating in any actual evil design or contrivance to perpetuate a fraud or injury upon other persons, are yet, by their tendency to deceive or mislead other persons, or to violate private or public confidence, or to impair or injure the public interests, deemed equally reprehensible with positive fraud, and, therefore, are prohib- ited by law, as within the same reason and mischief, as acts and contracts done malo animo." Story's Eq. Jur. § 258. See Chesterfield v. Jansen, 2 Yes. 125; Newland on Contracts, ch. 33, p. 469; Osii.ond v. Fitzroy, 3 P. Will. 131, (note.) Cases of Illegality of Contract. — Foremost in contracts of this nature are agreements respecting marriage, known as marriage brokage contracts ; by which a party agrees, for a certain compensation, to negotiate a marriage for the other. Courts of equity relieve against them, on grounds of public policy. 210 FRY ON SPECIFIC PERFORMANCE OF CONTRACTS. only to enter into the subject so far us it peculiarly affects suits for specific performance. § 309. Tile nature of a defense founded on the illegality -, *of a contract differs in its nature from most other r*144l •- -"defenses; the ol)jection is rather that of the public speaking through the court than of the defendant as a party to Drury v. Hook, 1 Veni. 412. Key v. Bradshaw, 2 id. 102. Duke of Hamil- ton V. Mohun, 2 id. 052. Keaf v. Allen, Id. 588. Toche v. Atkin.s, 1 id. 451. Gale V. Lincoln, Id. 475. Kemp v. Coleman, 1 Salk. 150. Baker v. White, 2 Vern. 215. Boynton v. Hubbard, 7 Mass. 112. They are deemed incapable of confirmation, and money paid under them may be recovered. Cole v. Gib- son, 1 Ves. 503. Smith v. Bruning, 2 Yern. 392. See also the case of Wil- liamson v. Gihon, 2 Sch. & Lefr. 355, in which the doctrine of the court was carried to its utmost limits. Contracts in restraint of marriage are void. England v. Downs, 2 Beav. 542. Conrad v. Williams, G Hill, 445. Ilailley v. Rice, 10 East, 22. Lowe v. Peers, Burrows, 2225. Baker v. W'hite, 2 Vern. 215. See also Woodhouse v. Ship- ley, 2 Atk. 535. Key v. Bradshaw, 2 Vci-n. 102. But conditions, annexed to gifts, legacies, and devises in restraint of marriage, are not void, if they are reasonable in themselves and do not directly or virtually operate on an undue restraint upon the freedom of marriage. Story's Eq. Jur. § 280. Neither is it any objection to a contract, that, by its terms, it postpone the day of mar- riage, provided that the postponement be not unreasonable. Scott v. Tyler, 2 Dick. 719. Stackpole v. Beaumont, 3 Ves. 96. ^ condition that a widow shall not marry, it is said, is not unlawful. Story's Eq. Jur. § 285. Contracts in restraint of trade are also void. ^Mitchell [v. [Rej^nolds, 1 P. Will. 181. Pierce v. Fuller, 8 Mass. Rep. 223. But contracts in restraint of trade in a particular vicinity are valid. Webb v. Noah, Edw. Ch. 004. yff^reemenis whereby parties as;rce not to bid against each other at public auc- tion sales are void. Jones v. Caswell, 3 John. Cas. 29. Doolin v. Ward, G John. R. 194. Wilbur v. Howe, 8 John. 444. See Piatt v. Oliver, 2 Mc- Lean, 207. Where contracts are entered into beticeen parties pending a bill in pailiament for the charter of a corporation for private purposes, (as, for example, a rail- way,) and the agreement is to be concealed from parliament, in order to pro- cure the bill to be passed without the knowledge thereof, and thereby to produce a false impression, or to mislead or suppress inquiry, or to withdraw public opposition therefrom, on grounds of public or private general interest, such contracts will be held void, as a constructive fraud upon parliament, as well as upon the public at large. Story's Eq. Jur. § 293, and note 3 of cases. j/n agreement made for a remuneration to commissio7iers, appointed to take ILLEGALITY OF THE COxNTRACT. 211 the contract. The law disavows all proceediiifjs in respect of illcij^al contracts, not from any consideration of the moral posi- tion and rights of the parties, but upon grounds of public policy. For if A. and B. enter into a contract for^sonie illegal end to which both at'c alike privy, and A. do his part in the business, B. has, it seems, no moral right to refuse performance of his part testimony, and bound to secrecy by the nature of their appointment, upon their disclosure of the testimony so taken, is void. Cooth v. Jackson 6 Ves. 12. An assignment of ths fees and profits of the office of keeping a house of cor- rection, and of the profits of the tap-house coiuiected with it, is void. Weth- wold V. Halbank, 2 Ves. 238. All assignment of the half pay of a retired officer of the army is void. Stone V. Lidelledale, 2 Anst 533. McCarthy v. Goold, 1 Ball & Beat. 3S9. Agreements founded upon the siippression of criminal prosecutions, fiill under the same consideration. John.son v. Ogiliby, 3 P. Will. 27G, and note (1.) IVager contracts which are against the principles of public policy or duty, are void. De Costar v. Jones, Coop. 729. Atherford v. Beard, 2 Y. Rep. 610. Gilbert v. Sykes, 16 East, 150. So are contracts which tend to encourage champerty. Powler v. Knowler 2 Atk. 224. Contracts for the buying, selling, or procuring of public offices, are void. Chesterfield v. Janseen, 2 Ves. 124. Hartwell v. Hartwell, 4 Ves. 811. Bojmtonv. Hubbard, 7 Mass. R. 119. See Becker v. Ten Eyck, 6 Paige, 68. Agreements founded on corrupt considerations, or moral turpitude, are void. Hence, all agreements, bonds and securities, given as a price for future illicit intercourse, (prfcmium pudoris,) or the commission of a public crime, as for the violation of a public law, or for the omission of a public dut}', are deemed incapa- ble of confirmation or enforcement. Story's Eq. Jur. § 296, and note of cases. Contracts affecting public elections are held void : so are assignments of riii-hts of property, pendente lite, when they amoimt to or partake of the character of maintenance or champerty. Waller v. Duke of Portland, 3 Ves. 494. Stevens V. Bagwell, 15 Ves. 139. Strachan v. Bander, 1 Eden's R. 303. In cases of usury, where the lender coming into a court of equity, asks for re- lief, it will be denied him, and the contract held as void. Story's Eq. Jur. § 301. Fanning v. Dunham, 5 John. Ch. 122. Cases relating to gaming contracts are void: and equity will decree the giv- ing up and cancelling of gaming securities. Robinson v. Bland, 2 Burr. 1077. Rawdon v. Shadwell, Ambler's R. 269. Woodruff v. Farnham, 2 Vern. 291. Skipwith V. Strother, 3 Rand. 214. Woodson v. Barrett, 2 Hen. & M. 80. Dade v. Madison, 6 Leigh, 401. It would seem, however, that different views are held in the various states. In Roberts v. Taylor, 7 Porter, 251, it is de- 212 FRY ON SPECIFIC rEIJFOKMANCE OF CONTKACTS. provided there be notliing iimnorul in that jiart aljslractcd from the general end of the eontraet ; a.s, for iiistanee, if, under an agreement to ship goods contraiy lo hiw, A. ship the goods B. has no ground in natural equity for refusing to pay the stipu- lated price : A. and B. were equal in the culpabilit}' of tlie con- cided that where money has been lost by gaming, but not paid, equity will interfere to prevent its collection, as between the original parties to the con- tract. In Alabama, it is held that an action will not lie to recover money lost on a wager. Tindall v. Childress, 2 SteAV. & Port. 2C0. But it seems that the loser of notes may, in that state, maintain a bill to restrain their transfer by the winner, and prosecution of suit thereon, and this though they were passed by delivery. Parker v. Callihan, 5 Ala. 708. In Gill v. "VVebb, 2 Monr, 4, J. lost money at the gaming table to B., who, at the same sitting, lost the same amount to C. A. gave his note for the amount to C. A. paid part of the note to G^., to whom it had been trasfcrred. Held, that a judgment at laAV for the balance was properly enjoined, but that a decree for the repayment of the amount paid over was erroneous and should be reversed. The same doctrine is repeated in Lyon v. Respass, 1 Litt. 133; in Smith v. Davidson, 6 J. J. Marsh. 539, and in Downs v. Quarles, 6 Litt. 489. These cases precisely cor- respond with the ruling of liOrd Talbot, who, on one occasion, expressed him- self to the effect that a court of equity should not intermeddle for the recovery of money paid over, between two men who deliberately sat down for the pur- pose of ruining one another. Bosynanet v. Dashwood, Cas. Tem. Talb. 40. Rawdon v. Shadvvell, Amb. R. 269. In McKimvey v. Pope, 3 B. Mon. 93, it is decided, however, in unison with the more recent English rule, that money lost at gaming may be recovered, if the bill is brought within five years of the time of the loss. Money, knowingly lent for the purpose of gaming, it has been held in Eng land, is not recoverable. McKimmell v. Robinson, 3 Mees. & Welsh. 434. There are, also, many cases of this nature, which, though of themselves, are not illegal, yet become so by th<5 relative positions of the parties concerned. The}' may arise under all circumstances, and in many different phases ; and, therefore, whenever cases come before the court in which the parties are placed in situations of peculiar confidence toward each other, or where there exists fiduciary relations of an important nature, great care is taken to ascertain whether or not one party has become a victim of the deceit or imposition of the other; and if any mark of direct fraud be discovered, or if it appears that one party has, for his own advantage, sacrificed those interests which he is bound to protect, he will not be permitted to hold any such advantage. Story's Eq. Jur. § 307, § 323. Griffiths v. Robins, 3 Madd. 191. Thus, contracts be- tween parent and child, solicitor and client, guardian and ward, trustee and ILLEGALITY OF THE COXTIIACT. 213 tract, l)ut B. does a tVe.sli wrong by I'cfiisiiig payment ;(e) hut it is a wrong for which no remedy is aflbrded by the hiw. for ex clolo malo non oritur actio. " It is not for his (the defendant's) sake," said Lord Mansfieb],( /) •' tiiat the objection is ever al- lowed ; but it is founded in general principles of policy, which the defendant has the advantage of, contrary to the real justice (e) There is a rtifference of opinion iimonfrst not be enforced. See Grot, fie Jnr. Bell, ac the jurists as to the binding nature of the I'ae. lib. ii. c. xi. s. 9 ; Pothier, Tr. des Ob- promise in the case above stated, in f'oro lig. ])art i oh. i. sect. 1. art. 3, § G. conscientke; though ail agree that it can- (/) In llolman v. Johnson, Cowp. 343. cestui que trust, and principal and surety, are watched with the closest scrutiny, and that held to be fraudulent in contracts between them, which, under other circumstances, would be considered as unquestionable. Story's Eq. Jur. § 307 to § 327. There is another class of cases in which relief is granted, on the ground of constructive fraud, or illegality, even where no positive fraud infects the con- tract ; and this is where the parties stand, in some sort, under the protection of the law, either by youth, extreme age, character or relationship. Thus, the interests of sailors are always treated with indulgence. See Story's Eq. Jur. § 332; opinion of Lord Stowell, in the Juliana, 2 Hagg. Adm. Rep. 504. Neither will relief be denied where the contract is substantially a fraud upon the rights, interests, duties, or intentions of third persons. See Chesterfield V. Janssen, 2 Ves. 156. It is upon this ground that relief has been granted in what are called catching bargains with heirs, reversioners and expectants, dur- ing the life of their parents or other ancestors. 1 Fonbl. Eq. B. 1, ch. 2, § 12, and note (k.) Davis v. Duke of Marlborough. " There is always fraud pre- sumed," says Lord Hardwicko, in Chesterfield v. Janssen, "or inferred from the circumstances oi* conditions of the parties contracting, from weakness on the one side, and usury on the other, or extortion or advantage taken of that weakness. There has always been an appearance of fraud from the nature of the bargain, even if there be no proof of any circumvention, but merely from the intrinsic unconscionabloness of the bargain. In most of these cases have occurred deceit and illusion in other persons, not privy to the fraudulent agreement. The father, ancestor, or relation from whom was the expectation of the estate, has been kept in the dark. The heir or expectant has been kept from disclosing his circumstances, and resorting to them for advice, which might have tended to his relief, and also reformation. This misleads the an- cestor, who has been seduced to leave his estate, not to his heir or family, but to a set of artful persons who have divided the spoil beforehand." See also Tuistleton v. Griffith, 1 P. Will. 310. Cole v. Gibbons, 1 P. Will. 293. Baugh V. Price, 1 Hill's Rep. 320. Barnardiston v. Lingwood, 2 Atk. 235. Bowes V, Heaps, 3 Yes. & Bea. 117. Halmorly v. Booth, 2 Atk. 27. 1 Madd. Ch. 214 FRY ON SrECIFIC PERFORMANCE OF CONTRACTS. ])ft\vccn him :md tlio plaintilT, — by accident, if I ma}^ so say." Where the defendant has received the benelit of the contract this defense is evidently an unrighteous one, and -will accord- ingl}' be received by the court with sonic degree of disfavor.(^) § 310. The principle on which this defense reposes is shown by the cases on the specific perfornumce of awards ; for the ille- ri^-iAKi g^lity of the act directed to be doi.e by the award *vvill be a ground for refusing specific performance, although the unreasonal)leness of the act would be no ground, it being a decision by the judge chosen by the parties.(//) It is further illustrated by this, that where in a suit for specific performance, a fact not put in issue by either party comes out on the evidence aflecting the legality of the contract, it Avill be noticed by the court, which will not proceed Avithout directing an inquiry. (2) § 311. As to the clearness of the illegality which will be a bar (g) Shrewsbury and Birmingham Railway (A) Wood v. Griffith, 1 Sw. 43. Company v. London and Northwcbtern Kail- (i) Parken v. Whitby, T. & R. 366; Evans way Company, 16 Beav. 44. See also ante, v. Richardson, 3 Mer. 469. i 204. Pr. 97. " Hence it is that in all cases of this sort it is incumbent upon the party dealing with the heir, or expectant, or reversioner, to establish, not merely that there is no fraud, but (as the phrase is) to make good the bargain ; that is, to show that a fair and adequate consideration has been paid. For in cases of this sort, (contrary to the general rule,) mere inadequacy of price or compensation is sufficient to .set aside the contract. The relief is granted upon the general principle of mischief to the public, without lequiring any particular evidence of imposition, unless the contract is shown to be above all exception. But it is not necessary, in cases of this kind, to establish in evidence, that the full value of the reversionary interest or other expectancy has been given according to the ordinary tables for calculations of this sort. It will be suffi- cient to make the purchase unimpeachable, if a fair price be given iherefor, at the time of delivery." Story's Eq. Jur, § 330, and notes 1, 2, 3, 4. Con- tracts of this nature are, of course, not void, but merely voidable. Another class of constructive frauds upon the rights of third persons, em- braces all those agreements which operate directly, or virtually to delay, defraud or deceive creditors. The statute of 13 Elizabeth, ch. 5, as to credit- ors, which has been universally adopted in Anierjca, declares all fraudulent conve3'ances to be void. The validity of a conveyance depends, in these cases, upon the sufficiency of the consideration. If that be adequate, equity will not interfere, upon the ground of constructive fraud. Story's Eq. Jur. § 353, ILLEGALITY OF THE CONTRACT. 215 to specific performance, there is perhaps some slight diversity of expression. In Johnson v. Shrewsbury and Birmingham Rail- way Company, (/,•) Lord Justice Knight Bruce hiid it down that before the court would enforce the specific performance of an as:recment, it must be satisfied that there is not a reasonable ground for contending that, the agreement is illegal or against the policy of the law ; whilst in a case(/) on an agreement by a solicitor retiring from a firm, to allow his name to be used after his retirement, Vice Chancellor Wood(77z) observed, "The agree- ment must be legal or illegal, and it is not within the discretion of the court to refuse specific performance because an agree- ment savours of illegality. It must be shown to be illegal." § 312. Where a trust is constituted for the performance of a contract in itself incapable of being enforced, and the trust is in itself perfectly lawful and independent of the contract, except so far as that may be necessary to explain the constitution of the trust, there the trust may be enforced, and by means of it the contract specifically performed. This principle was acted on in the case of Powell v. Knowler,(n) before Sir J. Fortescue, M. R., where A. and B. entered into an agreement for the division of an estate *that was to be recovered, which was inca- r^-, .m 14u pable of being enforced on the ground of champerty, and ' -^ the party who, according to the agreement, was to convey part of the estate to the other, by a codicil directed the agreement to be carried out, and created a trust for that purpose ; the agree- ment was specifically enforced against the trustee. § 313. The principle of this case is in analogy with that of several other cases. Thus whore an act, though the result of an unlawful contract is itself lawful, it may form the consideration for a lawful agreement, as, for instance, the actual transfer of stock, the agreement to do which was illegal. (o) Similarly, a trustee into whose hands money is paid on account of a third person, cannot set up the illegality of the trust under which the money was so paid, though the cestui que trust could not have (k) 3 L>e G. ar. & G. 914. See also City (w) P. 70, of Lonaoii V, Xush, 3 Atky. 512; S. C. t. [n) '3 Atkv. 224. Ves. Sen. 12. (o) M'UwlUiu Y. Mortimer, M, & W. 10 Aubiu V, Holt. 3 K. & J. 6G. USB, 216 FRY ON SrECIFIC rERFORMANCE OF CONTRACTS. eiifoi-ced his right against the payer directly, as in that case he could have only got at the money through the illegal agree- ment. (^) [*147] *CH AFTER X. OF THE CONTRACT BEING ULTRA VIRES. § 314. Corporations created for special purposes have a power to contract, but within certain limits only, and all con- tracts in excess of their powers, or ultra vires, are void, and therefore necessarily incapable of being enforced either at law or in equity. This subject has recently undergone great dis- cussion in respect of contracts by railway corapanies.[lj (p) Thomson v. Thomson, 7 Ves. 470 ; Tenant v. Elliot, 1 B. & P. 3. [1] In Barry v. Merchants' Exchange Company, 1 Sandf. Ch. 280, it is de- cided, that every corporation has, as such, at common law, the capacity to take and grant property, and to contract obligations in the same manner as an individual : that, except when restrained by law, it has the absolute jus dispo- nendi of its property, whether of lands or chattels, and in its exercise is unlim- ited as to objects and quantity ; and when created for limited and specific purposes, by the nature of which its common law powers are restricted, it may make all contracts necessarj^ and usual in the course of its business, as means to effect its objects ; and within these limits, unless especially prohibited by law, or the provisions of its charter, may deal precisely as an individual might, who sought to accomplish the same ends. The powers of a corporation are to be ascertained by a reference to the acts of the legislature concerning it; and a corporation can have no powers not specially granted to it, or such as are incidental or necessary to give effect to those specially granted. State v. Mayor of Mobile, 5 Porter, 279. And there is no rule more plainly established than that these powers must not be exceeded. Binney's cnse, 2 Bland, 99. Therefore, a corperation constructing works beyond that which is necessary for the purposes of their incorporation, and beyond what is contemplated by their charter, M'ill be restrained, by injunction, from continuing their erections beyond the limits allowed. Newark Plank Road Co. v. Elmer, 1 Stock. (N. , J.) 754, Smith v. Morse, 2 Cal, 524, is an analogous case with Xewark Plank Road Co. v. Elmof, and Binney's case. A very forcible instance of the rigid- ity of the doctrine is presented in the case of Russell v. Topping, 5 McLean, 194. In this case, J. mortgaged several tracts of land to the plaintiff in eject- CONTRACT BEING ULTRA VIRES. 217 § 315. A contract entered into by such a corporation in the proper form is 'prima facie good, and the onus lies on the party alleging it to be void to show that it is in excess of the company's powers, and not on the party relying on it to show that the corporation was authorized to do it. Corporations have at law a power to enter into all contracts not expressly or impliedly pro- hibited ;(«) and therefore all corporate bodies are prima facie bound by contracts under their corporate seals ; " but this prima facie riffht," said Lord Cranworth,(/v) " does not exist in any ca.se v/here the contract is one which, from the nature and object of incorporation, the corporate body is expressly or im- pliedly prohibited from making." " Where a corporation," said Lord Wensleydale,(c) " is created by an act of parliament for (a) Per Erie, J., in Mf yor of Norwich v. way Company v. North-western Railway Norfolk Railway Company, 4 Ell. & Bl. 397, Company, 6 Ho. Lonls. i;i5. 1.%. *13. • (t) In South Yorkshire Hallway and River (fr) In Shrewsbury and Birmingham Rail- Dun Company v. Great Northern Railway, 9 Exch. 84. merit, and afterwards mortgaged one of the tracts to an incorporated bank. The plaintiff foreclo.sed his mortgage in chanceiy, making the bank a party defendant. The bank answered that j1. had mortgaged to them, subsequently to the plaintifl:''s mortgage, several parcels of land, but not the lot in di.spute ; that he was largely indebted to them, and was then insolvent, and prayed that tire lands not included in their mortgage should first be sold to pay plain- tiff's debt, and that the lands included in their mortgage should be sold only in the event of the other lands not being sufficient to pay the plaintiff's debt. Decree accordingly. At the sale the bank purchased the lot in question and took a conveyance. The defendant claimed through the bank. The plaintiff received the purchase money paid by the bank, and A. being otherwise in- debted to him, the plaintiff brought suit against him, recovered judgment} levied execution on the land in controversy, and became the puichaser. By its charter, the bank was prohibited from purchasing, holding and conveying real estate, except such as was required for the transaction of its business, or such as had been mortgaged as security for previous loans, or such as had been conveyed to it in satisfaction of debts previously contracted in the course of its dealings, or such as had been purchased at sales upon judgments, mortgages or decrees, obtained or made for such debts. Held, that the bank was not competent to acquire any title to the lot in question at the sale; and that the plaintiff was entitled to contest the validit}' of the sale to the bank, notwith- standing he had received the purchase money. In the case of the Mechanics' and Savings Bank v. !Meriden Agency, 24 Conn. 159, a joint stock company or- FRT — 15 218 FRY OX SPECIFIC PEUFORStANCE OF CONTRACTS. r*14J^l *P''^rt'ciil;ir purposes, with special powers, their deed, though under their corporate seal, and that icguhirly affixed does not bind them, if it appears, by the express pro- visions of the statute creating the corporation, or by necessary or reasonable inference from its enactments, that the deed is ultra vires, that is, that the legislature meant that such a deed should not be made." § 316. In the case of the Shrewsbury' and Birmingham Rail- way Company v. London and North-western Kail way Com- pany,((Z) the agreement between the companies was briefly to {d) Before Lord Cottenham, 2 M'X. & G. tices, 4 De G. M. & G. 115. and in D. P. 6 Ho. 324; before Lord Truro, 3 M'X. & G. 70; be- Lords, 11:5; and .see Lancaster and Carlisle fore Q. U 17 (J. B. Uep. 652 ; before Sir John Kailway Company v. North-western Railway KomiUy, 1(3 Beav. 441 ; before the Lord Jus- Company, 2 K. and J. 293. ganized, as expre.s.sed in their articles of association, " to do a general insur- ance agency, commission and brokerage business, and such other things as are incidental to, and necessary in, the management of that business," was held to have no power to subscribe to the stock of a savings bank and building associ- ation. Neither has an insurance company any authority to subscribe to the stock of a mutual insurance company, and agree to give its notes in advance for premiums on insurances subsequently to be effected. Berry v. Yates, 24 Barb. 199. Nor is a plank road company authorized to loan money, unless there is a special clause in the charter to that effect. IMadison &c. Plank Road Co. V. Watertown &c. Plank Road Co., 5 Wis. 173. It must not be un- derstood, however, that corporations have no other powers than those strictly conferred by charter. As has already been said, an act of incorporation car- ries with it all the powers necessary to accomplish the act, unless it impairs vested rights. Morris and Essex R. R. v. Newark, 2 Stockt. (N. J.) 352. Strau.ss v. Eagle Insurance Co. 5 Ohio, 59. The rule is, that if the means employed are reasonably adapted to the ends for which the corporation was created, they come within its implied or incidental powers, though they may not be specifically designated by the act of incorporation. IMadison &c. Plank Road Co. V. Watertown &c. Plank Road Co., 5 Wis. 173. So, a corporation has, as incidental, a right to make an agreement with an agent to compensate him for obtaining subscriptions to the stock. Cincinnati, Indianapolis and Chicago R. R. Co. v. Clarkson, 7 Ind. 595. Another incidental power is that of the coporation to create debts. Barry v. IMerchants' Exchange Co., 1 Sanf. Ch. 280. But where the charter makes peculiar specifications, as for example, of modes of investing the corporate funds, all other modes of invest- ment are precluded. Scott v. De Peyster, 1 Edw. Ch. 513. CONTRACT BEING ULTRA VIRES. 219 the effect that the North-western Company shojild give up to the Shrewsbury Company seven-thirteenths of the profits of the carriage of passengers and goods over a part of the North-western line, in consideration of receiving, in return, six-thirteenths of the profits made by the Shrewsbury Company on a certain portion of their line. In the course of the protracted litigation which arose out of this agreement, opposing opinions were given by the highest authorities as to whether it was \dtra vires or not, Lord Cottenham and the Queen's Bench inclining to the opinion of its validity, and Lord Justice Turner and Lord Cranworth, sit- ting in the house of lords, leaning strongl}' to the opinion that it was in excess of the powers of the companies. If such an agreement was valid as to part of the line, why is it not valid as to the whole ? and if so, there would be no impediment, it was urged, to two companies bringing their funds into a com- mon stock, and dividing them amongst their shareholders in any stipulated proportion. § 317. In the case of the South Yorkshire Railwa}' and *River Dun Company v. Great Northern Railway Com- pany,(e) the plaintiffs sued on a deed which carried out '- -• an arrangement come -to by the two companies, by which the line of the other company for the purpose of carrying coal from the field intersected by it, and thence onto their own line, on payment to the South Yorkshire Company of sums which should together with the profits of that company, enable them to pay their proprietors dividends varying according to the quantity of coal carried by the Great Northern Company over their line ; the argument turned mainly upon the effect of the 87th section of the Railway Clauses Consolidation Act, 1845, by which rail- way companies are enabled to ^ntract with one another for the passage over their lines of wagons, upon payment of such tolls and under such conditions as may be agreed on. The court was divided in opinion, Martin, B. holding the contract to be ultra vires; Piatt, B. and Lord Wensleydale holding it to be bind- ing. Lord Wensleydale held it to be good, because, on his view (£) 9 Ex. 55. 220 FRY ON SI'ECIFIC PERFORMANCE OF CONTRACTS. of the statutoiy powers of the company, they die] not appear to be restrained from entering into such a contract as that sued on; he thought that they ceitainly were not so restrained ; at any rate it was far from clear that they were, and the contract being prima facie good, and it not being made out that the act pro- hibited such a bargain, the contract must be enforced. (/) The decision of the majority of the court in favor of the validity of the contract was afBrmed in the exchequer chamber.(y) § 318. We will now consider rather more precisely what con- tracts are by implication prohibited ; for as to those expressly prohiI)ited, little question is likely to arise. § 319. In the first place, it seems perfectly clear that any in- P^ tentional use of the powers of the corporation to *defeat •- ' the objects of the corporation must be prohibited by im- plication. (//) § 320. Again, such a corporation cannot engage in objects foreign to the objects and purposes of their corporation, as for example carrying on a trade not contemplated by the act ; and it is immaterial whether such objects be profitable to the com- pany or not, and whether they be approved by the shareholders or not : a railway company incorporated by act of parliament is bound to apply all its funds for the purposes provided by its act, and for no other. This was established in the case of the East Anglian Eailway Company v. Eastern Counties Railway Com- pany,(2)where it was held that no action could be maintained on a covenant by the defendants to pay to the plaintiffs the costs in- curred in applications to parliament by the plaintiffs, at the in- stance of the defendants, for obtaining powers which the defend- ants considered it desirable for their interests that the plaintiffs should possess. This case has-been followed by Macgregor v. The Official Manager of the Dover and Deal Railway Com- pany,(^')and by Gage v. Newmarket Railway Company,(/) and (/) p. 88. (0 11 C. B. 773; S. C. 7 Rail. C. 150. [s) 9 Kx. (M.3. (k) 18 Q. B. 618 ; S. C. 7 Kail. C. 227 (h) Per Erie, J., in Mavor of Xoi-wich v. (0 18 Q. B. 457. Norfolk Railway Compauy, 4 Ell. & Bl. 397, 413. CONTRACT BEING ULTRA VIHES. 221 has been fully recognized hy Lord Cranworth in the house of lords.('/n) § 321. The general doctrine now before us was very much ven- tilated in the case of the Mayor of Norwich v. Norfolk Rtiilway Company.(;i) There the railwa}' company, being authorized by statute to make a railway between certain termini, crossing the river Yare at a specified place, found difficulties in effecting their crossing there, and had, -with the assent of the admiralty and of the proprietors, *nuide a pier in another part of the i^iri-i river, with the intention of carrying the railway acros'S at this place : the plaintiffs indicted the defendants for a nuis- ance ; and, for the compromise of these proceedings, it was agreed that the defendants should complete the w^orks in ques- tion within a year, in a manner agreed on, so as to protect the navigation, and that if the works should not be completed within twelve months, the company should pay XIOOO as liquidated damages ; the plaintiff sued on a deed containing a covenant to this effect. The court was greatly divided in opinion, as to the rights of the plaintiffs ; Erie, J., severely criticising the decision in the East Anglian case, held that the contract was not ex- pressly or impliedly prohibited at law, and was therefore good ; Coleridge, J., also held it good, upon a distinction to be here- after noticed between a purpose not authorized by the incorpo- ration, an unauthorized means of effectuating the authorized purpose ; whilst Lord Campbell held the covenant to be bad, as being, on the face of it, and therefore within the knowledge of the covenantee, for the application of the funds to a purpose other than those for which the company was established. § 322. The doctrine in question is not carried so far as to forbid the doing of the least thing not expressly mentioned in the act of incorporation : the directors of a company have power to do all such things as are necessary and proper for the carrying out the intention of the act of parliament, though they have no (m) In Eastern Counties Railway Com- Companv, 4 Ell. & Bl. 79S, particiilarlj- the pany V. Hawkes, 5 IIo. Lords, 347. See also judgments of Wightmau and Coleridge! J J Bostock V. North Staflbrdshire Kaihvay {n) i EU. & Bl. 397. 222 FRY ON SPECIFIC TERFORMANCE OF CONTRACTS. power of doing any thing beyond it.(r>) It seems, for instance, that a railway con)i)aiiy might, without any special authority by statute, lawfully contract for the purchase of u piece of land for the purpose of enlarging a terminus.(^;) § 323. Mr. Justice Coleridge, in a recent case drew a r*i '91 *^i=^tinction between " a difference of purposes and a dif- ' ^ fereiice of means and modes by and through which the same purpose is to be eifected,"(5') and considered that whilst all attempts to carry into effect a foreign purpose are void, the cor- poration has power to vary the mode by which the given pur- pose is to be attained ; so, that, though a company constituted for the purpose of making a railway from A. to B., could not instead thereof make one from C. to D., yet that it might law- fully enter into contracts to effect a deviation in part of its course from that originally specified, that part of the originally designed line having been found impracticable or difficult; and this distinc- tion appears to meet with the approval of Lord St. Leonards. (?') § 324. The mere fact that a contract by the directors is uUra vires, as between them and the shareholders, does not necessarily disentitle the other party to the contract from suing upon it at law. To do so, it is further necessary that the party suing should have known at the time of the contract that it was in- tended for a purpose unconnected with the incorporation of the company ; but where the nature of the contract shows that it must have been so unconnected, both the parties Avill be taken to have had this knowledge, and the court will judical ly perceive it to be void. Therefore, if a railway company were to contract for a thousand gross of green spectacles, the contract would be necessarily void ; but if it were to contract for iron rails not for the purposes of making the line, but for some other object, the contract would be ultra vires, as against shareholders, but might be perfectly good in favor of the other party to the contract.(«) (o) Per Lonl Langdale in Coleman v. (r) In Eastern Counties Railway Compa- Eastern Counties Railway Company, 10 ny v. Hawkes, 5 Ho. Lords, C. 372. Beav 17. " (s) Per Eord Campbell and Erie, J., iu {p) Per Lord Campbell in Mayor of Nor- Mayor of Norwich v Norfolk Railway Com- •wich V. Norfolk Railway Company, 4. Ell. & pany. 4 Ell. & Bl. 397, 415. 443 ; per' Lords Bl. 397, 442. Campbell and St. Leonard.s in Eastern (q) S. C. p. 432. Counties Railway Company v. Hawkes, 5 Ho. Lords, 338, 355, 372. CONTRACT BEING ULTRA VIRES. 223^ ^ 32r). From this principle it follows that uherc a public *coinpaiiy is iiuthorizod to take land for cxtraordinaiy ^^ purpos^es, a person who agrees to sell hi? land to this com- '- -' pany is not bound to see that it is strictly required for such pur- l)oses ; but if he acts hona fide and without knowledge that the land is not so required, or that the transaction is any misappli- cation of the funds of the comi)anv, the contract is bindinij in his favor, and may be enforced by him in equity :(i^) and the same seems to hold good where the comi)any, really requiring part of an estate, purchase more than is required.(i«) [2J § 326. The cases which have been decided between sharehold- ers and directors, as to transactions beyond the scope of the cor- poration, will not directly apply to cases between the coi-pora- tion and third parties, because, in the latter case, the additional element of the illegality being known to the third party, is to be imported. But with this addition the cases will, it seems, apply, and they will therefore be here briefly alluded to. § 327. In Coleman v. Eastern Counties Kailway Compauy,(y) Lord Langdale, at the instance of a shareholder, restrained the application of any part of the funds of a railway company in as- sisting a company for establishing steam communication between Harwich and the north of Europe, which the directors of the railway company thought would increase their trafiic, and thus promote their interests. In Solomon v. Laing,(2y) the same learned judge restrained one company from purchasing shares in another. In other cases, railway companies have been restrained from applying any of their resources in promoting a bill to improve the navigation of a river, (x) in promoting a branch it) Eastern Counties Railway Company (w) 12 Beav. 339. V. Hawkes, 5 Ho. Loiils, 331, 349." 355. (.i) Muiit v. Shrewsbury and Chester W S. C. Railway Company, 13 Beav. 1. (f) 10 Beav. 1 ; S. C. 4 Rail. C. 513. [2] In the case of the Southern Life Insurance and Trust Co. v. Lanier, 5 Florida, 110, a contract with a corporation was held to be binding on the par- ties, although it was an abuse of the corporate powers, for which the corjfoia- tion was answerable to the government which created it. 224 FRY ON SrECIFIC PERFORMANCE OF CONTRACTS. r*i54| line,(?/) or *iii m:ikin] § 328. On this principle, corporations will be restrained from expending money in applications to [)iirliiuncnt to extend their powers beyond the objects for which they wei'e constituted: thus, in one case, a corporation of a town was restrained from apply- ing to the legislature, at the expense of the borough fund, for a bill to improve a river.(/>*) But this will not hold where the proceedings are not for the purpose of extending the powers of the corporation, but for defending its existing rights. (c) [*155] *CHAPTER XI. OF THE STATUTE OF FRAUDS AND THEREIN OF PART PER- FORMANCE. § 329. By the fourth section of the Statute of Frauds(c?) it is, amono-st other things, enacted that no action shall be brought whereby to charge any person upon any contract or sale of lands, tenements,orhereditaments,or any interest in or concerning them, [y) Great Western Railway Company v. (6) Attorney General v. Cor]}oration of Rnshont, 5 De G. M. & Sm. 290. Norwich, 16 Sim. 32.5; Simpson v. DenLson, (2) Cohen v. Wilkinson, 5 Rail. C. 741. 10 Ha. 51 ; and see on this point. Eastern (a) Bagshawe v. Eastern Counties Rail- Counties Railway Company v. Hawkes, 5 wav Company, 6 Rail. C. 152; S. O. 2 M'N. Ho. Lords, 331. & G. 2S9; Beman v. Rufford. 7 Rail. C. 48, (c) Bright v. North, 2 Phil. 216. " particularly 75 ; S. C. 1 Sim. N. 8. 550. [d) 29 Car. H. c. 3. [3] The case of Kean v. John.son,! Stockt. (N. J.,) proceeds upon this same principle. There, an incorporated company were engaged in a prosperous undertaking;. The majority of stockholders and board of directors wished to sell out and invest the capital in other enterprises, and the minority came for relief to the court of chancery. It was held, that in cases of joint stock com- panies there was a contract between all the stockholders and the board of di- rectors, that the joint funds should be used for certain specified purposes, and that any material deviation was a breach of this contract wbich would not be permitted. STATUTE OF FRAUDS, ETC. 225 unless the agreement upon which such action shall be broiiglil, or some memorandum or note thereof, shall be in writing and signed by the party to be chai'ged therewith, or some other per- son thereunto by him lawfully authorized ; and by the compa- nies' Clauses Consolidation Act, 1845, (/v) sect. 97, any contract which, if made between private parties, would be b}' law required to l)e in writing, and signed l)y the parties to be charged there- with, must, in order to bind the company, be in writing, and signed by two of the directors.(c) § 330. It has been decided that this section of the Statute of Frauds refers not to the solemnities of the contract, but to the procedure, and consequently that an action will not lie in this country on an agreement made in a foreign country, and valid there, which, if made here, would have been incapaljle of being sued on by reason of this section. (^Z) § 331. It is obvious that in many cases a defense to a *suit for specitic performance may be grounded on this r#,K^-i section. We shall proceed therefore to consider (1) how *- ^ such defense may be taken advantage of, (2) what constitutes a sutficient agreement, or memordanum or note thereof, within the meaning of the statute, and (3) what takes an agree- ment out of the statute in the contemplation of a court of equity. § 332. The want of an agreement within the statute may, when clearly appearing on the bill, be taken advantage of by general demurrer,(e) or by a demurrer alleging the want of such an agreement, (y) because, though some states of facts might, as we shall hereafter see, take the case out of the statute, and so render the want of writing not fatal to the plaintiff, yet it lies on him to allege them, and not on the defendant to negative them.[l] In this respect, there is a wide difference between the (b) 8 & 9 Vic. c. 16. See also as to joint (e) Field v. Hutchinson. 1 Beav. 599. stock companies, 19 & 20 Vic c 67, s. 41. (/) Wood v. Midgley, 5 De G. M. & G. (c) Leominster Canal Company v. Shrews- 41; S. C. 2 Sm. & Gif. ll.i; Rarkworth v. bury and Hereford Railway Company, 3 K. Yonn,a:, 4 Drew, 1. See also Howard v. & J. 654. Okeovur, 3 Sw. 421, n. {(l) Lerou.K v. Brown, 12 C. B. 801. [1] In order that a bill may be taken advantage of, under these circum- stances, it must not only show the want of an agreement conformable to the 226 FRY ON SrECIFIC rEKFORMANCE OF CONTR.VCTS. Statute of Frauds aud the Statute of Limitations, which it seems must in all cases be pleaded. (7) § 333. The benefit of the statute may also be had by plea. Where the bill alleges an agreement, and is silent as to part performance, it seems to have been thought thnt a plea of the statute Avas not enough without an answer also denying an agree- ment,ou the ground that the answer might confess the agreement, aud that then it would be enforced. (/^) But this does not now appear to be the law of the court, for as we shall see, an answer confessing an agreement, and claiming the benefit of the statute, is a bar : and a plea without an answer must, it seems, be at least equivalent to such an answer, for taken most strongly airainst the defendant, it mus^t amount to a confession of the asfreement and a claim of the benefit of the statute. r*i f;-i *^ ^^'^* "^^ ^ ^^'^ alleging a parol agreement and part *- -* performance, a plea averring that there was no agreement in writing, and an answer insisting that the alleged acts did not amount to part performance, was allowed by Lord Thurlow, after great consideration and much argument. (e) For the statute and the doctrine of equity taken together amount to this, that there must be either a Avriting signed, or a parol agreement and part performance : the one alternative was met ])y the plea, the other by the answer ; together therefore they met the whole bill. [2] (?) Per Lord Cranworth in Ridgway v. S. C. 2 Dick. 064. See also Hosier v. Read, Wharton, 3 De G M. & G G91. 9 Mod. 86; Moore v. Kdwards, 4 Ves. 23; (/i) Child V. Godolphin, 1 Dick. 39, before Bowers v. C'ator, 4 Ves. 91; Evaus v. Har- Lord Macclesfield ris, 2 V. & B. 301. (i) Whitchurch v. Bevis, 2 Bro. CO. 559; statute of frauds, but it must also omit to make any allegations of part per- formance. Thus, in the case of Field v. Hutchinson, 1 Beav. 599; S. C, 3 Jur. 792, it is said that, " where the want of a signature to an agreement for the sale of lands clearly appears on the bill, the objection may be taken ad- vantage of by general demurrer ; but the statements of this bill not being inconsistent with a signature by the party to be charged, and containing alle- gations of part performance, a general demurrer thereto was overruled." [2] The case of French v. Shotwell, 5 John. Ch. 555, is a somewhat analo- gous case. There, to a bill for relief against a judgment, on the ground of fraud, a plea of the judgment, and an answer denying the fraud, were held good. A plea must contain a denial of all the facts charged in the bill which STATUTE OF FRAUDS, ETC. 227 § 335. Such a bill cannot, it seems, be met by a plea alone, for a plea in bar to such a bill would contain two distinct points, — namely, the denial of the written agreement and of the acts of part performance, and would therefore be multifarious and bad.(/(-) [3j § 336. An answer denying the agreement is of course a good answer to a bill: and where the answer denies, or docs not admit the agreement, the defendant need not plead the statute in order to avail himself of it as a defense, for then the burthen of proof is wholly on the plaintiff, Avho must prove a valid agreement capalde of being enforced. (/) § 337. But where the answer admits an agreement, though but a parol one, the defendant must plead the statute in order to avail himself of it ; for otherwise he is taken to have admitted an agreement, which either is good under the statute, or on some other ground is binding upon him.(m) [4] {k) Whitbread v. Brockhurst, 1 Bro. C. allep:inp revocation of agency, Mason v. C. 404; and see Belt's n. and Kedcs. Plead. Armilage, 13 Ves. '25. 268. See also, as to this plea. C'liiM v. Com- (I) Ridgway v. Wliaiton, 3 De G. M. & ber, 3 S\v. 423, n. ; for a plea to a parol G. 677 ; S. C. in D. P. 6 Ho. Lords, 238. agreement varying a written, Jordan v. (?«) S. C. Croyston v. Banes, Prec. Ch. Sawkius, 3 Bro. C. C. 388 j and for a plea 208; Symondson v. Tweed, id. 374. would, if true, defeat the plea ; and it must reduce the defense to a single point. Bogardus v. Trinity Church, 4 Paige, 178. Saltns v. Tobias, 7 John. Ch. 214. If a plea be double, the plaintiff may demur for duplicity; but if he reply, he must answer both parts of the plea. Barrett v. Ruill, 3 Ired. 371. [3] A defendant in a suit in chancery cannot put in several distinct defenses, by plea, to the whole of the complainant's bill, or to the same part of the bill, without the special leave of the court. Nor can he set up two distinct defenses in the same plea without rendering such plea bad for duplicity. To justify the court in departing from this general rule, the defendant must make out a very special case of hardship and inconvenience to him if he should be required to make his several defenses by answer. Where it would be necessary to set out very long accounts, and in cases where the discovery sought b}' the bill would be productive of injury to the defendant in his business, the court will grant its indulgence. Didier v. Davison, 10 Paige, 515. [4] This is clearly the rule. Osborn v. Endicott, 6 Cal. 149. Lingan v. Hen- derson, 1 Bland, 23G. Kinzie v. Penrose, 2 Scam. 520. Thornton v. Henry, 2 Scam. 218. Talbot v. Bower, 1 A. K. IMar.sh. 436. Bean v. Vallc, 2 Mis. 126. Tarleton v. Vietes, 1 Gilm. 470. Woods v. Dille, 11 Ohio, 405. Small V. Ownings, 1 Md. Ch. Decis. 363. Hollingshead v. McKenzie, 8 Geo. 457 228 FRY ON SPECIFIC PERFORMANCE OF CONTRACTS. *^ 338. For some time the court was disposed to allow L J the plaiutilFthc benetit of the admission, notwithstand- insr the defendant's insistino; on the statute : but in hiter times the court has inclined against it,(/i) and it is now well estab- lished that the defendant, notwithstanding his admission, is entitled to the full benefit of the statu te.(o) § 339. But if the defendant wishes to avail himself of the statute, he must do so at the same time that he admits the a/) Lord Glengal v. Barnard, 1 Ke. 769, af- there held, that an advertisement describing the situation and quality of land, signed by a vendor, and being the only printed or written memorandum of the contract on hi.s part, was held to contaui the particulars with which he was bound to comply ; and where he was unable to do so, the contract for a purchase of the land was decreed to be re.scinded- See Gray v. James, 4 Dessau. 185 ; Little v. Pearson, 7 Pick. 301, is a case of the same nature. There ^. paid B. S'lOO, receiving from B. a note payable to j/. or order, on demand, for ^100 and interest, with the following memorandum : "N. B. This note is to be given up when I give him a deed of the land, which I have en- gaged to give him." Signed by B. It was held that this was a sufficient memorandum whereby to compel a conveyance. But the following writing, to wit : "4th January, 1808. Received of J. E. % — , in part' pay of a lot bought of me, in the town of V., it being the cash part of the purchase of said lot. Nathan Deadman. Test., Will. Atwood" — was held not to be a sufficient memorandum to take the agreement out of the statute. Ellis v. Deadman, 4 Bibb. 466. A raemoi'andum must contain, within itself, or by reference to some other writing, the terms of the agreement with reasonable certainty. Parkhurst v. Van Cortland, 1 John. Oh. 274. Coles v. Bowne, 10 Paige, 526. Therefore where Jl. proposed, in writing, to sell to B., " all that piece of property known as the Union Hotel property," it was held not to be a sufficient description to take the case out of the statute of frauds, parol evidence being necessary to show what property was comprehended under the words " Union Hotel prop- erty." King V.Wood, 7 Miss. 389. But the memorandum need contain only the substance of the contract, and not a detail of all particulars : so that, if the memorandum recognize that an estate, chargeable with certain annuities, is sold subject to them, by mentioning when the payment of the annuities by the purchaser is to be^in, it is sufflcient. Ives v. Hazard; 4 R. I. 14. See Say V. Curd, G B, Monr. 100. STATUTE OF FIIAUDS, ETC. 231 ranged between his (the vendor's) solicitor and yourself," the court considered this as in the light of a contract to enter into a contract Avitli respect to which some terms were already agreed on, and the rest were to be settled by future arrangements, and that if they could be agreed on, this was to *become a r*, ,,^t r*luO| valid contract : but such an agreement never having been ■- -■ come to, the court dismissed the purchaser's bill asking for a spccilic performance. (r/) It seems to be on this principle that the approval of a draft does not of itself constitute an agree- ment. (6) {a) Honeyman v. Marryat, 21 Bcav. 4 ; (ft) Doe d. Lambourn v. Pedgriph, 4 Car. S. C. 6 Ho. Lord, 112. & P. 312. Handbills and newspaper notices, published at the time of the sale, are not admissible as explanatory evidence, the memorandum containing no reference to them. O'Donnell v. Leman, 43 Maine, 158. Whether or not the consideration must be expressed upon the face of the instrument, is subject to different rules in the different states. In England) the question has long since been well setted. There the leading decision on the subject is Wain v. Warlters, 5 East, 16, decided at law by Lord Ellen- borough, who then took occasion to explain the meaning of the word agree- ment, as used by the statute of frauds, defining it to be "a mutual contract between two or more parties," and excluding its more loose acceptation of a promise or an xindertaking. He said that the statute was never meant to en- force any promise which was before invalid, merely because it was put in writing : that a promise without a consideration was a mere nudum pactum: and that the object of the statute would be defeated if the consideration were not expressed, as, in that case, it might be illegal, or the promise made upon a condition precedent , which the party charged may not afterwards be able to prove, the omission of which might materially vary the promise, by turning that into an absolute promise which was only a conditional one. This decision has been sustained in Stadt v. Lill, 9 East, 348. Jenkins v. Reynolds, 3 Brod- & Bing. 14. Saunders v. Wakefield, 4 B. & Aid. 495. Morley v. Boothly, 3 Bing. 107. Cole v. Dyer, 1 Or. & Jer. 461. James v. Williams, 3 Nev. & Man, 196. Clancy v. Piggott, 4 id. 496. Raikes v. Todd, 8 Ad. & El. 846. Sweet V. Lee, 3 M. & Gr. 452. Bainbridge v. Wade, 16 Q. B. 89. The strict meaning of the word agraeimnt, as defined in Wain v. AVarlters, should be borne in mind, as in cases arising under the seventeenth section of the statute, which does not contain the word agreement, the consideration need not be ex^. pressed. E:;erton v. Mathews, 6 East, 307. Marshall v. Linn, 6 M. & W. 118. The ruling in Wain v. Waiitors has beon approvoU in Sears v. Briuk, ^ 232 FEY ox SPECIFIC PERFORMANCE OF CONTRACTS. § 343. The court will refuse to act even where it only " rests reasonahl}^ doubtful whether what passed was only treaty, let the progress towards the confines of agreement be more or less."(c) ^ 344. But the mere fact, though appearing on the paper, that a more formal agreement is intended to be drawn up, Avill not prevent a paper duly signed and containing all the terms from being an agreement, any more than will be a reference to deeds thereafter to be executed. (cZ) Therefore where A. wrote to B., (c) Per Lord Eldou in Hiuldleston v. Bris- ton. 6 IIo. Lords, 264; jht Lojd I-argdalc coe, 11 Ves. 592. in Thoiniis v. Deriiig, 1 Ko. 7-tl ; Cowley v. (rf) Fowlo V. Freeman, 9 Ves. 351. See Watts, 17 Jur. 172, (M. K.) See ante, § per Lord Cranworth in Ridgway v. Whar- 175. John. 210; Rogers v. Kneeland, 10 Wend. 218; Packard v. Wilson, 15 id. 343; Bennett v. Pratt, 4 Denio, 275; Staats v. Howlett, Id. 559, and has be- come the statute law of New York. 2 Rev. Stat. pt. 2, ch. 7, tit. 2, § 2. In Mar^'land and Georgia, decisions have been given to the same eflect. Wyman V. Gray, 7 Har. and John. 409. Elliot v. Giese, 7 id. 457. Edelen v. Gough, 5 Gill, 103. Henderson v. Johnson, 6 Geor. 390. But the contrary doctrine has been upheld in Packard v. Richardson, 17 Mass. 112. Sage v. Wilcox, 6 Conn. 81. Tufts v. Tufts, 3 M. & W. 456. Reed v. Evans, 17 Ohio, 128. Gitlighan v. Boardraan, 29 Maine, 79. In some of the states the language of the statute has been changed, and the English doctrine, resting upon the mean- ing of the word agreement, repudiated. Violett v. Patton, 5 Cranch, 142. Taylor v. Ross, 3 Yerg. 330. Gilman v. Kibler, 5 Humph. 19. AVren. v. Pearse, 4 Sm. & Maish. 91. Where an instrument of guaranty is under seal, this expresses sufficient con- sideration to be deemed a compliance with the statute requiiing it to be ex- pressed. Rosenbaum v. Gunter, 16 N. Y. (2 Smith,) 415. And where the consideration of a written guaranty is expressed to be for value received, it is sufficient under the statute of frauds. Cooper v. Dedrick, 22 Barb. 516. Day V. Elmore, 4 Wis. 190. If a contract be in its nature entire, and in one part it satisfies the statute, and in another it does not, then, it has been decided at law, it is altogether void. Cooke v. Tombs, 2 Anstr. 420. Lea v. Barber, Id. 425. Charter v. Beckett, 7 Term R. 201, Vaughan v. Hancock, 3 C. B. 766. Lexington v. Clarke, 2 Vent. 223. Mecheleu v. Wallace, 7 Ad. & El. 49. Thomas v. Wil- liams, 10 B. & Cr 664. Loomis v. Newhall, 15 Pick. 159. In Irvine v. Stone, 6 Cush. 508, it was held that a contract for the purchase of coals at Philadel- phia, and to pay for the freight of the same to Boston, if void by the statute of frauds as to the sale, is void also and cannot be enforced as to the freight j though the latter, if it stood alone, would not be within the statute. See Thayer v. Roch, 13 Wend. 53. But if the parts are severable, then it may be good in part and void in part. Mayfield v. Wadeley, 3 B. & C. 357 STATUTE OF FRAUDS, ETC. 233 "I offer you £3000 for the estate," and B. replied, *'I accept your offer, and if you approve of the enclosed, sign the same, and I will on receipt of the deposit sign you a copy," (the en- closure was not produced,) the court held that there was a bind- ing contract, and treated the enclosure as a mere means of carrying that contract into effect :(e) and in another case,(/) a correspondence about the taking of a house was lield to consti- tute a sufficient ah the a^ent of the lessor ac- cepted the otFer thus, " These terms I have submitted to Mrs. S., and I am authorized to say they are accepted, and that her solicitor will draw up a proper agreement for signature, which I will forward to you." § 345. But whenever the formal agreement contempla- r#i p 1 1 ted *is to be any thing more than merely ancillary to the real agreement, — wherever any new term might be introduced into the formal agreement not contained in the earlier one, the first document will not be binding. And wherever the conclu- sive nature of the arrangement does not evidently appear on the writings, the fact that a subsequent and nnn-e formal agree- ment Avas intended to be entered into will be strong evidence that the previous negotiations were not intended to amount to an agreement. (^) § 346. The statute requiring that the agreement, or the mem- orandum, or note thereof, shall be signed by the party to be charged therewith, or his agent, and not by both parties to the contract, it has been held both in the courts of eqmty(/i) and law,(«) that a signature by the party against whom the contract is sought to be enforced is sufficient.[6] («1 Gibbins v. Xoitli-eastern Metropolitan (A) See ante, § 295. District Asylum, 11 lieav. 1. (0 E^'crtou v. Matthews, 6 East. 307; (/) Skinner v. M'Doiiall, 2 De G & Sm. Allen v. Bennett, 3 Taunt. 169; Laytlioarp 265. V. Bryant, 2 Bing. N. C. 735. See the edi- (?) Ridgway v. Wharton, 6 IIo. Lords, tor's n. to Sweet v. Lee, 3 Man. & Gr. 462. 23S, particularly 268, oOo. [6] An agreement need only be signed by the party to be charged. Ilatton V. Gray, 2 Ch. Cas. 1G4. Seton v. Slade, 7 Ves. 2G5. Fowler v. Freeman, 9 Ves. 351. Martin v. Mitchell, 2 Sac. & M. 426. Schneider v. Norris, 2 M. & S. 286. Shirley v. Shirley, 7 Blackf. 452. Rogers v. Saunders, 16 Maine 92. Ives V. Hazard, 4 R. I. 14. Anderson v. Harold, 10 Ohio, 399. Wright v. King, Ilarring. Ch. 12. FllY — 16 234 FRY ON SPECIFIC PERFORMANCE OF CONTRACTS. § 347. All that is requisite to satisfy the statute as to the signature of the agreement is, that the name be inserted by the party in such a manner as to authenticate the instrument ; ac- cordingly, a letter beginning " Mr. Foljambe presents his com- pliments " was held duly signed. (/i;) The same was the case where A. wrote "A. has agreed," etc.;(/) and where B. wrote "A. agreed with B.," etc.{rji) An affidavit made by a person has been also held sufficient. (n) [7] § 348. It cannot be denied that there is some conflict of au- thority on the question how far the writing of his name by the party must be with the intent of signing. In some cases it has been held that such a writing with a diflerent intent, amounts to ^ a siijnature : as where a party *has'written his name at [1621 o ' L J •- "J the beginning, and left a place for his signature at the bottom, and thus shown " that the insertion of the name at the beginning was not intended to be a signature, and that the paper was meant to be incomplete until it was further signed ;"(o) and where a person who is a party or principal, or person to be bound, signs as a witness, which he cannot be, he has been held (i) Ogilvie V. Foljambe, 3 Mer. 53. (n) Barkworth v. Young, 1 Drew, 1. (/) Propert v. Parker, 1 R. & My. 625. See (o) Per Lord Eklon in Saunderson v. Jack- also Western v. Kussell, 3 V. & B. 187 ; Mori- sou, '2 B. & P. 239; Kniglit v. (Jrocklbrd, 1 son V Tumour, 18 Ves. 175. Fsp. 190. [»i) Bleakley v. Sniitli, 11 Sim. 150. [7] See Knight v. Crockford, 1 Esp. 190; Saunderson v. Jackson, 2 B. & P. 238; Penniman v. Hartshorn, 13 Mass. 87. It is said that the signature after the wiiting of the instrument is not necessary. A contract may be written on a piece of paper ah-eady bearing the signature. Wise v. Ray, 3 Iowa, 430. McConnell v. Brillhart, 17 111. 354. The case of Black v. Gompertz, 7 Excheq. 8G2, is not without application. It was there said, by Pollock, 0. B.: "We think that words introduced into a paper signed by a party, or an alteration in it, may be authenticated by a signature already on the paper, if it is plain that they were meant to be so authenticated. The act of signing after the introduction of the words is not absolutely necessary." The delivery of the memorandum shows the intention that the name should operate as a signature; and a memorandum not delivered to the other contracting party is not a com- pliance with the statute. Johnson v. Brook, 31 Miss. 7. In those states where the statute requires contracts to be subscribed, the signature must be at the foot of the instrument. Davis v. Shields, 24 Wend. 322. Alele v. Osgood, 8 Barb. 130. STATUTE OF FRAUDS, ETC. 235 to have signed as a principal. (^) In other cases the court has had regard to the intention of the signature ; the Court of Queen's Bench, on this ground, held that a person capable of being a witness, and signing as such, will not be bound by the instrument as a party, or as agent of a party :(y) and where the names A\'ere written at the beginning of an agreement which con- cluded with the words " as witness our hands," and no signa- tures followed, it was considered by the common pleas not to satisfy the statute, because the concluding words evidently showed an intention that the a2:reemeut should be sio;ned at the foot.(y') § 349. And it seems clear that where the name, though writ- ten by the party, has been introduced for some particular pur- pose in the middle of a writing, as in the memorandum for a lease in the words " the rent to be paid to A," that does not amount to a signature by A.(.s') [8] § 350. The signature must be the actual writing of the name, or the doing of some act intended by the person to be equiva- lent to the actual signature of the name, such as a mark by a marksman. Therefore a letter beginning " My dear Robert," and concluding with the words " Do me *the justice to r#ipQ-| believe me the most affectionate of mothers," was held not to be signed within the statute.(<) §351. A signature in pencil is not necessarily deliberative, and may be equally binding within the statute as one in ink.(«) And even a printed name may avail ; so that where a vendor inserted in a printed invoice with his name on it, the name of the purchaser, it was held that there was such a ratification and adoption of the printed name as made it a signature, and satisfied the statute.(y) [9] (P) Welford v. Beazely, 3 Atky. 503 ; Coles M Stokes v. IMoore, 1 Cox, 219; Hawkiiia V. Trecothiek, 9 Ves. 234. 251. v. Holiiie.5. 1 P. Wnis. 770 (7) Gosbell V. Archer. 3 A. & E. 500, where (0 Selby v. Selby, 3 Mer. 2. the court (ioubted the doctrine of Lord El- (u) Lucas v Jaiiics, 7 Ha. 410, 419. don in Coles v. Trecothiek; but see the ob- (c) Schneider v Norris, 2 M. & S. 2S6; per servations in Lord St. Leonards, Vend. 116. Lord Eldon in Saunderson v. Jack.-^on. 2 B. (r) Hubert v. Trehcrne, 3 Man. & Gr. 743 ; & P. 239. See also 1 Mad. Ch. 37i5. and the S. C. s. n. Hubert v. Turner, 4 Scott, N. S. illustration there given from the stamping of 486. Letters Patent by King William III. [8] See also Cabot v. Haskins, 3 Pick. 83 ; Cowrie v. Renifry, 10 Jur. 789 [9] Geary v. Physic, 1 B. & Cr. 234. Draper v. Pattina, 2 Spears, 292 Merritt v. Clayson, 12 John. 102. McDowel v. Chambers, 1 Strobh's Eq. 347- 236 FRY ON SPECIFIC PERFORMANCE OF CONTRACTS. § 352. It seems that the setthig down of the initials may be a sufficient signatiirc.(?(;) § 353. Where the agreement purports to be signed by an agent, it must be alleged and distincti^^ proved by the plaintiff that the party Avho signed as agent was authorized to act as agent, not merely for the purpose of negotiating, but of conclud- ing a binding contract, (.r) the court has, when needful, directed an issue to try the question of agency when in contest i)etween the parties.(?/) [10] The authority may be inferred by the court fi'om the relation and conduct of the parties :{z) or the al- leged principal, though he may have given no authority to the alleged agent, may, by representing that he has done so to the other party to the contract, estop himself from afterwards deny- ing it.(o) § 354. The statute is silent as to the means by which the agent is to be appointed : it does not therefore require r*i CAi *^^'i'J^i"g! but may, except in the case of corporations, be ^ -* by parol ;(6) and accordingly the authority of an agent to let lands, or otherwise deal with real estate, may be inferred from acts and letters, or other circumstances. (c) [11] (w) Selby V. Selby. Sng-. Vend. 116. (a) Ridgway v. Wharton, C Ho. Lords, 238. (X) Blore v. Sutton. 3 Mer. 237 ; Ridgway 297. V. Wharton, 3 De G. M. & G. 677 ; S. C. 6 Ho. (6) Waller v. Hendon, 5 Vin. Abr. 524, Lords. 233, where the evidence of agency pi. 45 ; Coles v, Trecothick, 9 Vcs, 234. 250; was fully discussed ; Firth v. Greenwood, C'linan v. Cooke, 1 Sell. & Lef 22. As the 1 Jur. N. S. 806, (Wood. V. C.) agent of joint stock companies, see 19 & 20 (y) Howard v. Braithwaite, 1 V. & B. Vict. c. 47. s. 41. 202. (c) Dyas v. Cruise, 2 Jon. & Lat. 461. (z) Sharp V. JMilligan, 22 Beav. 606. [10] An agreement may, of course, be signed by an agent : but, not only must such agent be authorized to complete the transaction, it must likewise be evident either that his general powers are amply sufficient, or that he was especially appointed to effect the contract in question ; and where the manner of execution has been prescribed, he is as much incapacitated from deviating from the terms of his authority, as he is of transcending the limits assigned him. Fraser v. McPherson, 3 Dessau. 393. Mackay v. Moore, Dudley, 94. [11] This principle has been followed in numerous cases in this countr}''. Ycrl^ V. Grigsby, 9 Leigh, 387. Irvine v. Thompson, 4 Bibb, 295. And it has long been the law of England. In Coles v. Trecothick, 9 Yes. 250, Lord STATUTE OF FRAUDS, ETC. 237 § 355. To this agency, as to any other authority, the maxim applies, omnis ratihabitio retrotrahilnr et mandalo fcquipar- atm\ and therefore the subsequent ratification of a contract en- tered into by a person then unauthorized as agent, takes it out of the statute. (t/) This ratification need not l)c by any express (d) Maoleau V. Dunn, 4 Biiig. 7'22; Ridgway v. Wharton, 6 IIo. Lord, 338, 296. Eldon distinctly said that an agent need not be authorized in -writing, in con- tracts relating to real estate. Words to the same effect are are used in Clinan v. Cooke, 1 Sch. & Lcfr. 31 : and it can admit of little doubt, either at law or in equity. It seems clear that where a statute, such as the statute of frauds, re- quires the instrument to be in writing in order to bind the party, he may, without writing, authorize an agent to sign it in his belialf, unless the statute positively requires that the authority should ha in writing. Story on Agency, ^ 50. 2 Kent, (5th edit.) G13, G14. Chitty on Contracts, (Oth Am. ed.) 210, 211, note and cases cited. Shaw v. Nudd, 8 Pick. 9. Yerley v. Grigsby, 9 Leigh, 387. Turnbull v. Trout, 1 Hall, 336. Ewing v. Tees, 1 Binn. 450. Talbot V. Bowen, 1 Marsh. (Ky.) 436. 1 Sug. Ven. and Purch. (6th Am. ed.) 132, [180.] Mortimer V. Corn well, 1 Iloft'. Ch. 351. Mortlock v. Buller, 10 Ves. 311. Johnson v. Dodge, 17 111. 433. In Wonall v. Dunn, 1 Seld. 229, it is decided by the court of appeals, that where an agent, authorized by parol to contract for his principal, executes an agreement,. in the name of the prin- cipal, under seal, such agreement is binding on the principal as a simple con- tract. That a contract for the sale of lands need not be undjr seal, but merely in writing; and that the authoiity of the agent, to bind his principal, in case of this kind, may well be conferred by parol. And in McAVhorter v. ]\lcMahan, 10 Paige, 386, a case decided by AValworth, Ch., it is said, " that it is only necessary that such agent be lawfully authorized to execute the contract : an authority in writing, for that purpose, is not required by the statute of frauds. An authority to convey lands is required by the statute to be in vvritin"-, but clearly not of an authority to contract to convey. Lawrence v. Taylor 5 Hill, 107. But whether a contract signed by one partner, in behalf of himself and co- partners, for the sale of real estate, can be enforced against the purchaser un- der the revised statutes of New York, was thought in More v. Smedbur"-h, 8 Paige, 600, to be questionable. A reference to the statute, however, will show that the agreement or memorandum must be subscribed by the i)arty by whom the sale is made ; that in McWhorter v. McMahan, the property sold belonging to two partners, the chancellor was of opinion that the contract, to be valid, must be signed by both of them, or by one as agent. The rule in New York is laid down in the case of Worral v. Munn, 5 N. Y. 239, by Paige, J. " It is a maxim of the common law " says the learned justice, " that an authority 238 FRY ON SPECIFIC PERFOEMANCE OF CONTRACTS. act ; it is enough if the party whose authority is required takes the l)cnefit of the contract, or even if, with a full knowledge of it, he passively acquiesced in it for u length of time longer than that reasonably to be allowed for the expression of disseut.(e) [t) Higs V. Strong, Week. Rep. 1857-1858, 173, (Stuart, V. C.) to execute a deed or instrument under seal, must be conferred by an instru- ment of equal dignity and solemnity ; that is, by one under seal. This rule is purely technical. A disposition has been manifested by most of the American courts to relax its strictness, especially in its application to partnership and commercial transactions. I think the doctrine, as it noAv exists, may be stated as follows, viz: If a conveyance or any act is required to be by deed, the au- thority of the attorney or agent to execute it must be conferred by deed : but if the instrument or act would be effectual without a seal, the addition of a seal will not render an authority under seal necessary ; and if executed under a parol authority, or subsequently ratified or adopted by parol, the instrument or act will be valid and binding on the principal. It is said that the rule as thus relaxed is confined in its application to transactions between partners. But it seems to me that a distinction between partners and other persons in the application of the rule as relaxed and qualified by recent decisions, stands upon no solid foundation of reason or principle. " The whole authority of a partner to act for his co-partners and to bind them and their interest in the co-partnership property, is founded upon the common law doctrine of agency. So far as he acts for his partners he is an agent." As to whether the signing of the name of the grantor to a deed, by a third person, in the presence, and by the express direction of such grantor, is a suf- ficient signature under the statute of frauds to convey land — a question which arose in Wallace v. McCullough, 1 Rich. Ch. 426 — there have existed different opinions, giving rise to not a Uttle perplexity. "This point," says Mr. Par- sons, in a learned note on the subject, " upon which there seems to be no ex- press decision, aro,se in the recent case of Wood v. Goodridge, 6 Cush. 117. This M'as the case of a mortgage deed and note made under a poM'cr of attor- ney under seal, by simply signing the name of the principal opposite to a seal, in the case of the deed, and in the case of the note, by simply writing the principal's name at the foot. It was not necessarj' to decide the point, the court being of the opinion that the power, though very general in its terras, did not confer authority to mortgage, nor to borrow money and bind the principal by a promissory note. But the question of the manner of execution "was much considered, and the court, per Fletcher, J., signified an inclination to hold, that where an attorney signs the name of his principal to an instru- ment which contains nothing to indicate that it is executed by attorney, and STATUTE OF FKAUDS, ETC. 239 But it will not l)c implied from vague expressions to a third per«on.(/)[12] § 356. The authority may be revoked at any time before (/) Ridgway v. Wharton, « IIo. Lords, 238. •n-ithout adding his own signature as such, it is not a valid execution. In another case, a deed was signed in the presence and by the direction of /*. G. (and in the presence of an attesting witness) thus : " P. G. by M. G. G." It was objected that M. G. G. signing in that manner for the principal, sliould have had a power under .seal : but the deed was held valid, (lardncr v. (Gard- ner, 5 Cush. 483. In delivering the judgment in this case, Shaw, C. J., said : " The name being written by another hand, in the presence of the grantor, and at her request, is her act. The disposing capacit}^ the act of mind, which are the essential and efficient ingredients of the deed, are hers ; and she merely uses the hand of another, through incapacity or Aveakness, instead of her own, to do the physical act of making a written sign. Whereas, in executing a deed by attorney, the disposing power, though delegated, is with the attorney, and the deed takes effect from his act, and therefore the power is to be strictly examined and construed." Perhaps it will still be regarded as an open ques- tion whether the simple signing of the principal's name, without evidence on the face of the instrument that the execution is by an agent, may not be suffi- cient. From a passage from Dixon on Title Deeds, vol. 2, p. 533, it may be inferred that the author's view is similar to that now taken by the supreme court of Massachusetts. On the other hand, the books contain numerous inti- mations that it has not generally been supposed heretofore that any other form is necessary to the valid execution of a deed by attorney than is requisite when the principal makes a deed in his proper person. See 1 Prest. Abstr. 2d ed. 293, 294; Smith's Merc. Law, B. l,ch. 5, § 4; Wilks v. Back, 2 East, 142, 145; Elliot v. Davis, 2 B. & P. 338; Bac. Abr. Leases, § 10; also Hansom V. Rowe, 6 Fost. 327. It seems to be the better opinion, that ever since the statute of frauds, a signing is not essential to a deed. Aveline v. "Whisson, 4 M. & Gr. 801. Chery v. Ilenning, 4 Excheq. 631. Shepp. Touch, b}- Pres- ton, 56, note. If this be so, it may be considered going very far, to hold that the addition of the name of the principal, by the hand of an authorized agent, invalidates an instrument which would have been perfectly good without any signature at .all. In some states, indeed, the statutes of conveyances modify the common law in this particular, and require signing as well as the affixing of a seal." [12] Clark v. Riemsdyck, 9 Cranch, 153. Barbour v. Craig, 6 Litt. 213. Foster v. Bates, 12 M. & W. 220. And see the cases at law, of Wilson v. Turnman, M. & G. 242, and Hull v. Pickersgill, 1 B. & Bing. 282; Wilson T. PouUer, 2 Stra. 859 ; also Benedict v. Smith, 10 Paige, 120. 240 FRY ON SPECIFIC PEKFOltMANCE OF CONTllACTS. execution, and such revocation may of course be proved ]>y parol. ((7) § 357. It is now clearly decided that at sales by auction, auc- tioneers are agents of the purchaser as well as of the vendor,(7i) This conclusion seems arrived at from the necessity of the case, and the peculiar nature of the mode of sale -,[1) and therefore when the necessity does not exist, as in a subsequent purchase in private from the auction, no such agency arises. (/i) [13] *^ ^^^* ^^^^^ clerks of agents are not generally agents '- ^ for the principal ; but evidence of assent on the part of the principal that they shall act as such will constitute them (g) Manser v. Back, 6 Ha. 443. C. 945 ; cf. Bartlet v- Purnell, 4 A & E. (h) Emmerson v. Heelis, 2 Taunt. 38 ; 792. White V. Proctor, 4 Tiuint. 209; Kemeys v. (i) Gosbell v. Archer, 2 A. & E. 500; per Proctor. 3 V. & B. 57; S. C. 1 J. & W. 350 ; Lord Langdale in Lord Oileiigal v. Barnard, Buckmasterv PEarrop, 7 Ves. 341; S. C. 13 1 Keen, 78S, atHrmed in D. P. as Eord (ileu- Yes. 456; Kenworthy v. Scholield, 2 B. & gal v. Thvnnc. Sudg. Law of Prop. 56. (k) Mews V. Carr, 26 L. J. Ex. 39. [13] And this note or entry on his account of sales, if the sale, the price, and the purchaser's name, are contained in it, is a sufficient note in writing of the agreement, signed by a person thereto authorized bj^ the purchaser, within the meaning of the statute of frauds. Smith v. Jones, 7 Leigh, 165. Episco- pal Church of Macon v. Wiley, 2 Hill. Ch. 584. M'Comb v. Wright, 4 John. Ch. 659 And signing by the purchaser, in person, at an auction sale, is not requisite. Bleecker v. Franklin, 2 E. D. Smith, 93. But to render an auction- eer's entry of sale at auction a compliance with the statute of frauds, he must be an authorized public auctioneer. The validity of an entry in an auctioneer's book applies equally to sales of real estate and perscjnal property. Anderson V. Chick, 1 Bailey's Ch. 118. Thus, in Bailey v. Leroy, 2 Edw. Ch 514, a person purchased by parol, of the successful bidder, at an auction sale of real estate, his right under the bid, the terms of which were evidenced by the auc- tioneer's certificate, and upon a bill by the assignee for a specific performance of the contract, a plea of the statute of frauds was overruled. In New York, the validity of auction sales is regulated by statute. And " whenever goods shall be sold at public auction, and the auctioneer shall, at the time of sale, enter, in a sale book, a memorandum specifying the nature and price of the property sold, the terms of the sale, the name of the purchaser, and the name of the person on whose account the sale is made, such memo- randum shall be deemed a note of the contract of sale, within the meaning of the last section." Rev. Stat. Pt. 2, ch. 9, tit. 2, § 4. The statute requiring that these contracts should be actually signed by the party to be charged there- with, or by his agent, a written memorandum of the terms of a sale made by TATUTE OF FKAUDS, ETC. 241 agents :(Z) and on the principle of necessity or convenience, it has been held that the clei'k of an anctioneer entering the nanie:^ of the purchasei's at the sale in a i)ook, uas an agent for the purchasers.(>;i) f 14J § 359. A solicitor employed in a marriage treaty, who drew up a minute of the arrangement come to at an interview, was held not to he an agent lawfully authorized to bind the parties, so as to make the insertion of their names in the minute a sio-- nature within the statute. (?i) § 3G0, It is very frequently the case that letters between the parties are relied on, to prove a written contract. Sometimes (1) there is an unsigned writing containing all the terms of the contract, and the letters are adduced as incor[)orating that writing, and furnishing the signature of one or both of the par- ties ; (2) sometimes they are adduced where the written contract is incomplete in one or more of its terms, and the letters arc referred to, to supplement the defect ; and (3) sometimes they are adduced as themselves constituting the contract.(o) [15] § 3G1. (1) In order to make a contract binding under the Statute of Frauds, it is not necessary that it should be all con- tained in one paper, signed by the party ; but the terms of the contract may l)e contained in one paper, and the signature may be (/) Coles V. Trecothick. 9 Ves. 234. aflinneil in D. P. See also Do Bid v. Thom- (m) Bird v. Boulter, 4 B. & \(\. 44:?. son, 3 Bcav. 469. (n> Lord Glengal v. Barnard, 1 Keen. 769, (u) See infra, § 374. a broker employed by both parties, although containing the names of both parties to the sale, in the body of the memorandum, was held to be in.sufficient under the statute. Dennison v. Carrahan, 1 E. D. Smith, (N. Y.) 1-14. A commissioner appointed by the court is likewi-se the agent of both parties; and a memorandum made by him of the sale is a sufficient memorandum in writing Jenkins v. Jlog , 2 Const. Rep. 821. The same remark applies also to masters in chancery. Gordon v. Sims, 2 McCord, 154. [14] An auctioneer's clerk may thus enter the names of the purchasers in a book, and it is immaterial whether he be appointed by the agent of the vendor or the auctioneer to make the sale. Smith v. Jones, 7 Leigh, 1G5. [15] Barry v. Coombe, 1 Peter.s, 640. Case v. Worthington, 1 Koot, 172. 242 FRY ON SPECIFIC PERFORMANCE OF CONTRACTS. found in some other paper, provided that such second paper re- fer to the paper ^vhich does not contain the terms. (29) [KJj r^, ^^-. It seems to be necessary that there should be *a refer. r 1061 . •- ence on the face of the paper containing the signature to the paper containing the terms ; but as to the ascertainment and identification of the actual paper thus refei'red to, parol evidence is admissible ',{q) for it is a thing collateral to the contract, and which cannot be contained in the contract itself : just as in the case of a bequest in a will, the thing given and the person to whom it is given must be mentioned in the instrument, l)ut the actual identification of the thing and the person must, from the nature of the case, be dehors the instrument, and therefore a matter of parol evidence. (r) [17J § 362. We have seen that there must be a reference : there- fore, where the agreement made no reference to an advertisement respecting the property which was sought to be introduced to supply a term, it was held that this could not be done :(.s) and so also, the mere admission in writing of an agreement, without ascertaining its terms, is inoperative.(<) [18] {p) Allen V. Bennet, 3 Taun, 169 ; Ridg- () ^ 367. (3) Letters may of course themselves constitute the agreement ; and the cases in which a contract is thus constituted by correspondence between the parties are very numerous ; many of them have been already discussed. (c) [19] § 368. The contract may even be sulficiently evidenced by a letter addressed to a third person, provided it ascertain the term of the agreement. (cZ) § 369. It is desirable to consider the effect of letters which repudiate or disown a contract referred to in them. The subject was discussed in the recent case of Warner v. WiIlington,(e) before Vice Chancellor Kindersley : in that case there was a memorandum for a lease, signed by the defendant, the proposed lessee, but deficient in the lessor's name, and then a letter by the defendant, withdrawing the memorandum, but referring to the lessor's name : and the vice chancellor held that the letter sup- plied the original defect in the agreement, and converted it into one binding under the statute. It may be submitted that this decision is not without difiiculties on principle ; for it would seem that the whole letter must he looked at, and then that affirms the memorandum to be what in fact without the letter {a) Wood V. Scavth, 2 K. & .1. 33. Boazely, 3 Atky. 503; ChiUl v. Comber. 3 Sw. (ft) Warner v. Williafjtoa, 3 Drew, 523. See 423, n.; Seagooil v. Meale, Viec. (jli. 560. See tliLs case intra. 5 369. also Barkworlh v. Young, i Drew, 1, partic- (c) See ante. §169 et seq. See also Western ularly 13. V. Russell, 3 V. & li. 187. • (e) 3 Drew, 523. (d) I'er Lord llardwickc in AV^elford v. [19] Neufville v. Stuart, 1 Hill. Ch. 159. STATUTE OF FRAUDS, ETC. 245 it was, namely, a mere offer ; and further, the case appears difli- ciilt to reeoncile with other cleeisious. Thus, where l)uyers have written letters distinctly referring to invoices of the goods, hut insisting that they were not bound to accept the goods, and thus repudiating the contract, the courts have held that there is no sufficient Avriting within the 17th section of the Statute of Frauds :( /') and in a recent case(^) in the exchequer, in which Warner *v. Willington was cited, the court considered i-^,pQ-| that it would be treating the Statute of Frauds as '- -• nothing, if a letter, merely declining to accept goods under a parol agreement oi- an insufficient written agreement, were held to take the case out of the statute. And again, in a recent case in chancery, (/i) Lord Justice Turner treated the argument, that a letter declinino; to enter into an ao;reement could constitute one, as too strained to require any observation. § 370. It is now distinctly settled, after some difference of opinion, that a written agreement after marriage, in pursuance of a parol one before, takes the case out of the statute.(2) [20] § 371. With regard to the mode in which an agreement within the statute should be pleaded, it is suiBcient to allege that the agreement was in writing, without alleging that it was signed ; for, if it was not signed, there Avas no agreement, (/j) And where the plaintitf relied on an affidavit alleged to have been filed by the defendant, containing the terms of the agreement, his signa- ture to the affidavit, though not alleged was presumed by the court, as an affidavit must be signed as well as swcrn.(/) ( f) Cooper V. Smith, 15 East, 103 ; Rich- Lorrt Cottenham In Hammersloy v. Do Biel, arris v. Tortor, 6 B. & C. 437; per Lord 12 CI. & Fin. 64, n.; per Turner, L. J., In Denman in Dobell v. Hutchinson, 3 A. & E. Surconie v. Tinniger, 2 Oe G. M. & G. 57o ; 371; Gosboll V. Archer, 2 A. & K. .500. Barkworth v. Young, 4 Drew. 1. See also (§•) GooUniau v. Gritliths, 26 L. J. Ex. Hoclffson v. Ilutchenson, 5 Vin. Abr. 523, pi. 145. 34. In Randall v. Blorgan, 12 Ves. 67, Sir (/i) Wood V. Midgley, 5 De G, M, & G. Win. Grant expressed doubts on this point. 41, 46. (k) Rist V Ilobson. 1 S. & S, 543, (() Taylor v. Beech, 1 Ves. Son, 297; per (/) Barkworth v. Young, 4 Drew, 1. [20] Wood V. Savage, Walk. Ch. 471. See Livingston v. Livingston, 2 John. Ch. 537, decided by Iveut, Ch. ; Arganbright v. Campbell, 3 Hen, & M. 144. 246 FRY ON SrECIFlC PERFORMANCE OF CONTRACTS. § 372. But it is not enough to allege an agreement without stating that it was in writing ; for a parol agreement is still an agreement, antl a bill merely alleging an agreement is therefore open to clemurrer.(m) [21] *^ 373. But the allegation that the agreement was in ' J Avriting is not of such materiality that it must he proved ; so that an agreement so alleged will be sufficiently established by an admission in the answer of a parol agreement. (;<) (»i) S. C., and see per Lord Thiirlow in Sir W. Grant in Spurrier v. Fitzgerald, 6 Whitchurch v. Bevis, 2 Bro. (J. C. 559 ; per Ves. 555. (n; SpuiTier v. Fitzgerald, 6 Ves. 548. [21] See Bean v. Yalle, 2 Mis. 126. But a different rule is laid down, at law, in Stern v. Drinker, 2 E. D. Smith, 401. In that case, which came before the court on appeal, the plaintiff's complaint alleged that he recovered a judg- ment against one Nusbaun for §"45 ; that he issued an execution thereon, and levied on sufficient property of the defendant to satisfy the judgment; that the defendant agreed with him, that if the plaintiff' would release and abandon the levy, and deliver the property to the debtor, he, the defendant, would pay the plaintiff" the amount of the said judgment; that the plaintiff' did abandon such levy, and therefore claimed to recover from the defendant the amount of the judgment. But the complainant did not state that this promise was in writing. Woodruff', J., in delivering his opinion, said, * * * "this is the first instance within my observation, in which judgment was ever ordered for a defendant, upon a demurrer to a declaration, because the promise declared upon was not averred to be in writing. It is not necessary, in declaring upon a promise, (although it be confessedly within the statute, and if not in writing, void,) to aver that it was written. It is sufficient for the plaintiff" if it appear in evidence on the trial in writing. And for the well settled reason that the statute introduces a new rule of evidence only, and not a new rule of pleading. And this rule is applicable to all contracts within the statute. Whether the evidence will support the claim, is a question which does not arise upon the pleading, but upon the trial of an issue thereon . For it is only necessary in pleading to state the legal effect, to wit, the promise. And if it appears on the trial that the defendant made no binding promise, then in judgment of law he made no promise." In support of this position, were cited Roberts on Frauds, 156, 202; BuUer's N. P. 279; 3 Burr. 1890; 1 Saund. R. 276, note 2, to Duffe V. Maj'o ; Case v. Barber, 3 Raym. 451; Birch v. Bellamy, 12 Mod. 540; Hutchinson v. Ilowson, 7 T, R. 350, n.; 3 id. 159; Read v. Brookman, by Ld. Kenyan, 2 Chit. PI. 121, n. s.; 123, n. x.; 2 Saund. PI. and Ev. 546. See also, on this point, the case of Miller v. Upton, 6 Ind. 53. STATUTE OF FRAUDS, ETC. 247 § 374. There is u distinction between pleading letters, as con- stituting the agreement^ and as evidence onl}' of the agreement : in the former case, no other evidence than the letters themselves can be admitted — so that, if they do not contain all the terms of the agreement, the bill will be dismissed ; whereas in the lat- ter case, other evidence may be admitted.(o) § 375. Courts of equity hold that, notwithstanding the ex- press language of the statute, a case may be taken out of its operation by any one of the following circumstances : — (1) by the sale being by the court, (2) by an admission in the answer ot a parol agreement where the answer does not insist on the statute, (3) by fraud, and (4) by a parol agreement and part performance, which is, as we shall see, but a particular case of fraud. § 376. (1) It has been held that a sale before a master con- firmed by the court, was, from the judicial character of the proceedings, exempted from the Statute of Frauds :{p) and con- sequently might be enforced against the representative of a pur- chaser who had not subscribed. (5^) The same rule will no doubt be applied to sales under the present practice. (/•) [22] § 377. (2) An admission of a parol agreement in the defend- ant's answer has lono; been held to take the case out of the statute, where the answer does not insist on the *statute, r^, „, , because it takes it out of the mischief which the statute *- -• was designed to remedy.(s) Another reason has been suggested, namely, that the contract, though originally in parol, is after (0) Birco V. Bletchley, G Mad. 17; ante, (7) Lord v. Lord. 8 Sim. 503. § 360. (;■) St. Leonards, Vend. & Tur. 86, (fj) Attorney-Gouonvl v. Day, 1 Ves. Sen. (s) Giinter v. Halsey, Ambl. 586 ; Li- 218; per Sir W. Grant in Blagden v. Brad, niondson v. Sweed, Gdb. 35, See the re- bear, 13 Ves. 47-2 ; per Lord Cottenbaui in marks on this doctrine of Lord Kosslyn in Ex parte Cntts, 3 Ueao. 367. Kondeau v. Wyatt, 2 H, Bl. 68, [22] See the cases of Gordon v. Sims, 2 McCord's Ch. 151, and of Jenkins V. Hogg, 2 Const. Rep. 821. Cases of this class are there rather considered to rest upon the same basis as oi-dinary auction sales — i. e. the fact that the mas- ter or commissioner is essentially the agent of both parties — than treated SkS exceptions because of their legal nature. 248 FRY ON SrEClFIC TERFOKMANCE OF CONTRACTS. admission evidenced by writing nnder the signature of the party, which is a complete compliance with the terms of the statute.((;) [23] The effect of such an admission, against the person making it is clear : and it seems that it would bind the heir of such per- son, in case of his death, and a bill of revivor bein«i; tiled against the heir.(n) It was formerly held that whore a vendor dies, and a bill is brought b}' his personal repiesentative against the pur- chaser and the heir of the vendor, the admission by the pur- chaser would take the agreement out of the statute, not only against the purchaser but the vendor's heir.(?;) But that is not now the law : to entitle the real or personal representative to enforce the execution of a contract to the prejudice of the other, there must have been at the death of the contractor a contract by which he was legally bound, and which the court would have compelled him specifically to execute :(7v) and so, notwitstand- ing that a personal representative may submit to carry out the contract, it is open to the parties interested to take every objec- tion which the deceased might himself have taken, if living.(a;) § 378. (3) The principle upon Avhich the court considers fraud, as forming an exception to the statute, has been stated by Lord Eldon. "Upon the Statute of Frauds," says his lordship, (y) "though declaring that interests sh:iU not be bound except by r*1 791 "^vriting, cases in this court are *perfectly familiar deciding that a fraudulent use shall not be made of that statute ; where this court has interfered against a party meaning to make r (0 story, Eq. Jur. 8. 755. (v) Buckmaster v. Ilarrop, 7 Ves. 341 ; S. (i() Attorney-Geueral v. Day, 1 Ves. Sen. C. 13 Ves. 45(j. 218. 221. (.r) S. 0. (v) Lacon v. Mertins, 3 Atky. 1, See also (y) lu Mestaer v. Gillespie, 11 Ves. 627, 628. Potter V. Potter, 1 Ves. Sen. 437. [23] Woods V. Delle, 11 Ohio, 455. But the doctrine is firmly established that, even where the answer confesses the parol agreement, if it insists, by- way of defense, upon the protection of the statute, the defense must prevail as a competent bar. Story's Eq. PI. § 763. Thompson v. Todd, 1 Pet. C. C. 388. Stearns v. Hubbard, 8 Greenl. 320. Harris v. Knickerbackcr, 5 Wend. 638. 1 Sug. Vend, and Purch. (6 Am. ed.) 137. Whitbread v. Brockhurst, 1 Bro. C. C. (Am. ed. 1844,) 407, (note 3.) Whitchurch v. Bevis, 2 id. 509. note (i.) Moore v. Edwards, 4 Ves. 23, note (a.) See note [4] to § 337. STATUTE OF FRAUDS, ETC. 249 it an in.strumcnt of fraud, and said he should not take advan- tage of his own fraud, even though the statute has declared that in case those circumstances do not exist, the instrument shall be absolutely void. One instance in the case of instructions ujion a treaty of marriage : the conveyance being absolute, but subject to an agreement for a defeasance, which though not appearing by the contents of the conveyance, can be proved aliunde ; and there are many other instances." § 370. Thus, in one case, (2) Lord Thurlow allowed a plaintiff to give parol evidence that, at the time the agreement was en- tered into, an undertaking had been given by the assignee of the lease to the assignor for indemnity against the rents and cove- nants, his lordship laying it down " that where the objection is taken before the party execute the agreement and the other side promise to rectify it, it is to be considered a fraud on the party if such promise is not kept."(«) And in a case(/;) which oc- curred before Lord Nottino-hani soon after the n)akiiieing entered into by corporations are invalid for want of their cor- porate seal.(^) Such being the principle on which the court acts, it follows that where the acts of part perfoirnance by the one are not such as to render refusal to perforin by the other party a fraud in him, however clearly they may evidence the existence of an agreement, the jurisdiction in question can have no application ;[28] and this may be the case either (1) from the nature of the acts themselves, which we shall afterwards con- sider, or (2) from the character of the person admitting them. § 389. On this latter ground it has been decided that where a plaintiff seeks to enforce against a remainderman a parol agreement entered into between the plaintifl'and the tenant for life, acts of part performance which would have bound the tenant for life will not bind the remainderman, unless it can be shown that he permitted the acts of the plaintiff with the knowledge of the agreement entered into by the tenant for life.(M) For to constitute fraud, there must coincide in one and the same person knowledge of some fact and conduct inequitable havinsr resrard to such knowledge. And again, on the same principle, where the acts are those of persons not parties to the contract, they will not be binding, so that for instance, acts done by arbitrators *towards the performance of their r#ir.oT duty are not part performance of a parol agreement for a compromise and division of estates by arbitrators.(yj [29] (f) London and IJirming-ham Railway Com- v. IJrockluirst, 1 Bro. C. C. 404; per Lord pany v. Winter, Or. & Ph. 57 ; Earl of" Lind- Redosdale in Shannon v. Bradstreel, 1 Sch. seyV. Great Northern Railway Company, 10 ) where two testators on the same day and in the presence of the same witnesses executed mutual wills ; one of the testators havino- died, — it was argued that there was part performance under cir- cumstances which could only be referred to an ajjreement be- tween the testators to make such wills : but Lord Koijslyn, though inferring an agreement of some sort, held it to have been merely an honorable engagement, and one which the court there- fore could not carry out. [30] ^ 394. And on the same principle there can be no part per- formance of an incomplete agreement. For acts to amount to part performance, the agreement " must l)e obligator}^ and what is done must be done under the terms of the agreement, and by force of the agreement.''(c) [31] ^ 395. Having thus stated the general character of the acts which is requisite to make them part performance for the pur- pose in question, I shall briefly state the result of these princi- ples in respect of particular acts. *§ 396. We have already seen that possession is in some cases equivocal in respect of the title to which it is ' ^ to be referred : at other times it is not ; therefore the possession of a tenant after the expiration of a lease, which was referable only to an agreement for a renewal, has been held part perform- ance"of such an agreement. ((Z) (z) East Indi.a Company v. Nuthumbadoo (r) PeV Lord Brougham in Thynne v Vecrasawmy Moodelly, 7 Moo. i*. C. C. 432. Lord Glcnjrall, 2 Ho. Lords 15S (a) Cf. ante, i 191. (d) Dowell v. Dew, 1 Y. & C. C. C. 345 (4) 3 Ves. 403. [30] See Tzard v. Middleton, 1 Dcs.sau. IIG. [31] But when a parol agreement, for the exchange of land.s, is completelj executed on the part of //., by his conveying the land contr.acted for to B., thi.s takes the case out of the statute of frauds of Virginia. Caldwell v. Car- rington, 9 Pet. 86. 258 FRY ON SrECIFIC rEIlFORMAXCE OF CONTRACTS. § 397. Still more clearly, " the acknowledged possession of a stranger in the land of another is not explicable except on the supposition of an agreement, and has therefore constantly been received as evidence of an antecedent contract. "(e) [32] Even where the possession has been taken without consent, yet if the owner afterwards allows the stranger to remain in possession, this will, it seems, operate as an act of part performance. (/) {(€) Per Sir T.PlunierinMorphett V.Jones, S.ivage v Carroll, 1 P.all & B. 265; Kine v. 1 S\v. ISl, and sec acconliugly IJiitcher v. Balle, '2 Ball & B. 343. Stapely 1 Yarn. 3()3 ; Pyke v. Williams, 2 (/) Gregory v. Jlighell, 18 Ves. 328; Pain Vern. '455 ; Earl of Ayleslbrd's case. 2 Str. v. Cooiubs, 1 Dc G. & J. 34, 46. 783; Stewart v. Denton, 1 Foubl. Eq. 187; [32] But in these cases, actual delivery of possession, or assent to taking pos- session, must be shown. Wrongful possession is not sufficient. Jervis v. Smith, 1 Iloff. Ch. 470. Lord v. Underdunk, 1 Sandf. Ch. 46. See Wagoner v. Speck, 3 Ham. 294 ; Weed v. Terry, Walk. Ch. 501. It was held, in Smith v. Under- dunk, 1 Sandf. Ch. 579, that where, upon a parol contract for the sale of two parcels of land, at a gross price, the vendor at the time of completion, conveyed one parcel only, and agreed to convey the other presently, and the purchaser paid the wliole price and entered into possession of both parcels, on receiving the deed for the one, the contract was not merged in the deed, and that the pur- chaser's assent to the delay, and the vendor's agreement to give a deed for the .second parcel, did not constitute a new agreement, or substitute for the first; but that the conveyance by one parcel was a part performance of the original contract. In Pugh v. Goods, 3 Watts & Serg. 5G, it was said that the delivery of the possession of the whole of the land sold, is sufficient, and entitles the parties to a specific performance. But in Allen's Estate, 1 Watts & Serg. 383, it is decided that the delivery of possession of a part of the land, to a vendee by parol, is not alone sufficient to take the case out of the statute of frauds. In Ellis V. Ellis, 1 Dev. Ch. 341, a purchaser of land was put in possession, and paid the purchase money, under a parol contract. Held, that the contract was not thereby taken out of the statute. In Hatcher v. Hatcher, 1 McMullan's Ch. 311, it is decided that remaining in possession by the purchaser, if he was in possession at the time of his purchase, does not constitute such a part per- formance as will take the case out of the statute. See Brock v. Cook, 3 Porter, 464 ; Johnson v. Glancy, 4 Blackf. 94. But if the vendee takes and continues possession of the premises, under the contract, and especially if he makes val- uable improvements on them, this will be sufficient to satisfy the statute. Johnston v. Glancy, 4 Blackf. 91. Tibbs v. Barker, 1 id. 58. Moreland v. Lemaster, 4 id. 383. Thornton v. Henry, 2 Scam. 218. See Keats v. Rector, 1 Pike, 391. STATUTE OF FRAUDS, ETC. 259 § 308. An so in a recent casc.(r/) where there ^vas a parol promise before marriage to give certain property to the married pair by the father of the lady : the marriage took place, and was followed by the delivery up of possession to the son-in-law, ex- penditure of money by him, and the absence of all di.-jturbance on the part of the father-in-law : these acts were held to be in part performance of the alleged ante-nuptial agreement. And in another recent ci\sg,{/i) where a parol agreement was come to for a lease, and the terms of it were agreed on i)etween the proposed lessor and lessee, and by the direction of the lessor, the lessee in- structed a solicitor who acted for both parties to reduce the terms to writiuir ; and the solicitor took a note of the terms thus stated to him, and from it prepared a draft agreement embody- ing *these and other terms, which he submitted to the (-#101-1 lessor, who afterwards, without objecting to it, let the lessee into possession, and directed the solicitor to prepare a lease in pursuance of the draft agreement. A draft lease was accordingly prepared, to which the lessor objected, and gave the tenant notice to quit. The court held that there was part per- formance of the agreement, and enforced the same accordingly, § 399. The same principle applies in cases of family arrange- ments involving the giving up, partition, or exchange of land ; so that though such agreements may be by parol, yet if they be followed by uninterrupted exclusive enjoyment of the several lands in pursuance of the arrangement, the court will specifically enforce them. (2) § 400. In considering this effect of possession where the ac- quiescence has been of very long duration, the court will regard this lapse of time as a circumstance against allowing the statute to be set up. (A;) [33 J (g) Surcome v. Pinniger. 3 De G. M. & (i) Stockley v. Stockley, 1 V. & B. 23; G. 571. See also Floyd v. BuckUnd, 1 Ncale v. Neale. 1 Ke. 672. Freem. 2C8. (A) Blalclilord v. Kiikpatrick, 6 Beav. (A) Pain v. Coombs, 1 De G. & J. 34. 232. [33] Thus, where a vendee having paid part of the purchase money of land under a parol agreement, had, together with his heirs, been in po-ssession for several years, this was thought sufficient to take the case out of the statute of 260 FRY ON SPECIFIC PERFORMANCE OF CONTRACTS. § 401. The laying out of money, provided it l)c siieh as would only be likely to take place in pursuanc of such a contract as that alleged, and it be with the privity of the other party, is an act of part performance. (/) Therefore where a proposed lessee entered and built, the acts were held to be such •,[m) and again, the alteration of a garden fence and the plantation of a meadow "with the privity of the other party, and partly at his expense, by a tenant in possession, were held acts of part performance ev- idencing a contract to demise the meadow for a term.(n) [34] r*l«91 ^ ^^^' "^^^^ expenditure of money ditlers, it will be *ob- '- -' served, from possession, in two respects : the one that whilst mere possession is referable to a tenancy' at will, as well as to a larger estate, the laying out of any considerable sums of money is rationally to be referred only to some agreement to confer a substantial interest in the property : the other, that whilst possession cannot be supposed to be continued by a stranger without the knowledge of the owner, a person in pos- session may well lay out money without the owner's cognizance : and what is therefore necessarily presumed in the one case must be proved in the other. § 403. It seems now to be decided that the payment by the purchaser to the vendor of the w^hole or a part, whether sub- {/) Willsv. Stradlins:, 3 Ves 378. also Stocklev v. Stockley, 1 V. & B. 23; {m) Savasre v. Foster, 5 Viii. Abr. 524, Toole v. Meillicott, 1 Ball & B. 393; Miindy pi. 43. " V. Jolliffe, 5 My. & Cr. 107; tturcome v. (71) Sutherland v. Briggs, 1 Ha. 26. See Piniiiger, 3 De G. M. & G. 571. frauds, and to entitle the heirs to a specific performance of the agreement. Cox V. Cox, Peck, 443. See Brock v. Cook, 3 Port. 464. [34] See Bomier v. Caldwell, Earring. Ch. 67 ; Johnston v. Glancy, 4 Blackf. 94; Tibbs v. Barker, 1 id. 58; Moreland v. Lemasters, 4 id. 383; Thornton v. Henry, 2 Scam. 218. But where a father promised his son that if he would remain with and carry on his farm, he would leave him the farm at his death, the son having already continued with him two years after he came of age, it was held, that the continuance of the son to cultivate and manage the farm, and his making extensive improvements thereon, at his own expense, it not appearing that he agreed to do so by the contract alleged to have been made with his father, were not considered a part performance of the contiact, such as would take the case out of the statute. Carlysle v. Fleming, Ilarring. Ch. 421. STATUTE OF FltAUDS, ETC. 261 stantial or unsubstantial, of tlie purchase money, is not an act of part performance which will take the parol contiact out of the statute. The grounds of this decision seem to he, first, that the mention of part payment, in the 13th section of the Statute of Frauds, and the silence in that respect of the 4th sec- tion, must be taken to show that the legislature did not intend that part payment should be binding in cases of the sale of lands :(o) and secondly, that the money may be repaid, and that both parties will then l)e in the situation in which they were before the contract, without either party having gained any inequitable advantage over the other.(j9) Tiiis is a case where for the act done there are alternative remedies, one by the execution of the contract, and the other by repayment, — and the election to put the other party to the latter remedy is no fraud. It has been ingeniously said that this reasoning over- looks the possibility of an insolvency intervening and prevent- ing the repayment of the purchase money,(5') but the courts have not allowed this objection to prevail. § 404. The law upon this subject has been somewhat r^ioo-i *vacilating. In a case(r) before Lord Hardwicko, he held part payment to be part performance ; but this as a general proposition was early overruled. The question then arose Avhether, although payment of a small installment was inopera- tive, pa3ment of the whole or of a substantial part of the price would not be an act of part performance; and Lord Rosy In main- tained the affirmative of this question :[s) but Lord Redesdale de- nied any such distinction, (if) and it seems now to be overruled, upon the ground that it is impossible satisfactorily to dis- criminate between substantial and unsubstantial part pay- ments. («/) [35] (o) Clinan v, Cooke, 1 Sch. & L. 23 ; Watt arguments In Wills v. Straclling, 3 Vcs, 378, V. Kvans, 4 Y. & V- Kx. 579 and sinmions v. Cornelius, I Uep. in Ch. 138, (;/) Clinan v. Cooke. 1 Sch. & L. 22. (a case before the statute.) ( Redding V. Wilkes, 3 Bro. C. C. 400. (o) East India Company v. Nnthnmbadoo a-) Clerk V. Wright, 1 Atkv. 12 ; Cooke v. Veerasawmy Moodelly, 7 Moo 1' C. C. 4S2, Tombs, 2 Anstr. 420. 497. (0 Hawkins v. Holmes, 1 P. Wms. 770. (/jj 1 Bro. P. C. 345 (m) Pembroke v. Thorpe, 3 Sw. 437, n. FRY — 18 266 FRY ON SPECIFIC PERFORMANCE OF CONTRACTS. all these circumstances, a plea of the Statute of Frauds was allowed. § 41(5. But where the agreement comprises acts between A. and B. and B. and C, and A. may he supposed to have an interest, or to have stipulated in i-espectof the acts between B. and C, part performance of this part of the contract renders it binding on A. This seems to be illustrated by the case of Parker v. Sniith.((2') There a lessor entered into a parol agreement with a colliery com- pany, holding a lease from him, and consisting of four partners, of whom two Avere his sons, that one of his sons and one of the other partners should retire and leave the benetit of the business to the remaining two, and that thereupon he would consider the subject of rent, which it was found was put too high in the orig- inal lease, and refer the subject to a competent person, and on the report of that person being made, would, if the report should seem right, adopt it, and grant a new lease. The dissolution of partnership so agreed on took place, and the two continuing partners released the others : these acts being referable only to the agreement, were held to take the case out of the Statute of Frauds, and specific performance of the agreement to n r.r.^ *srrant the lease was enforced against the lessor's as- [n88 ? . , . , ^ ^ signees in bankruptcy. § 417. (4) The effect of acts of part performance being as we have seen, to show that there is an agreement, and to let in parol evidence of the terms of that agreement it becomes necessary in the next place to inquire on what evidence the court Avill act. § 418. In the first place, it is to be observed, that if there be any such conflict of evidence, as leaves any uncertainity in the mind of the court as to what the terms of the parol contract were, its interference will be refused. (r) Therefore, where there were variations between the evidence of an only witness and a memorandum of the contract in a pocket book which was pro- duced, the witness mentioning 1000 guineas exclusive of timber as the price, whilst the pocket book made no mention of the timber, the court dismissed the bill.(.s) And where an agree- (?) 1 Coll. C. C. 608. (s) Reynolds v. Waring, You. 346. (r) Liudsay v. Lynch, 2 Sch. & L. 1. STATUTE OF FKAUDS, ETC. 267 meiit WHS alleged by the bill, another proved by the plaintifF's one witness, and a third admitted by the two defendants, — although speeific performance was decreed according to the agreement set up by the answers, Lord Rosslyn considered that, in strictness, the bill ought to have been dismissed. (^) The inclination of Lord Cottenham's mind seems to have been to struggle with apparently conflicting evidence, rather than to dismiss the bill, where there had been part peiforniance.(?4) And in a recent case,(y) it was observed by Sir George Turner that " there are cases in which the court will jjo to a jrreat extent in order to do justice between the parties where posses- sion has been taken, and there is an uncertainty about the terms of the contract. ' *k 419. Where the variation between the contract al- ^ . . . . , . . r*1891 leged and that proof consists in the plaintift^'s admission •- ^ of some term against himself, or omission of some term in his favor :(w) or where the term which constitutes the variation is immaterial, from its being merely the expression of what would be implied or from its having been actually performed, the court will not refuse the evidence of the agreement. So that where a tenant alleged that he was to pay taxes and do necessary repairs, and the contract proved did not contain this term :(»;) and again where a plaintifi' admitted an agreement to drain the lands gen- erally, and he only proved one to drain where necessary, and he also stated as part of the agreement that he was to lay certain arable land into pasture, which was not proved by the evi- dence :(?/) in each of these cases, the variation was considered as no reason for rejecting the evidence of the contract. (2;) § 420. The existence of a signed but incomplete agreement is no obstacle in the way of proving the additional terms by parol Avhere there is part performance :(«) for the whole might have been proved by parol, and therefore still more may part. The doctrine of parol variation has of course no application, where by reason of acts of part performance parol evidence is admissible. («) Mortimer v. Orchard, 2 Ves. Jun. 243. (v) Clifford v. Tiirrell, 1 Y. & C. C. C. 138. («) Mundy v. JoUiffe, 5 My. & C. 167. (t) Gregory v. Miirhell. IS Ves. 3i8. (f) East India Company v. Nutliumbadoo (y) Miindy'v. Jollfffe, 5 My. & Cr. 167. Veerasawmy Moodelly, 7 Moo. P. C C. 482, (*) See ante, § 174. 497. See ante, § 204. (a) Sutherland v. Briggs, 1 Ila. 26, 35. 268 FRY ON SPECIFIC PERFORMANCE OF CONTRACTS. § 421. An admission of the agreement in the answer of course precludes the necessity of further proof: and the fact that the answer prays the bcnetit of the Statute of P'rauds is immaterial, in case of part performance, for that excludes the operation of the statute. (/>) § 422. Where the agreement is positively denied by the answer, and is proved only by the unsupported evidence of one witness, r*iom ^^^^^ ^^^^^ '^^^ ^^^ allowed to prevail : but where *the one ■- ^ witness is corroborated in his statements by circum- stances, the proof may prevail over the denial. (c) § 423. Where one agreement is alleged by the bill and another set up by the answer, and the acts of part performance are con- sistent alike wnth the one agreement and the other, Lord Redes- dale seems to have considered that there was no case to admit proof of a further agreement, and that the acts of part per- formance must be such as to show them to have been done in pursuance of the very same agreement as that a\\cged.{d) It may however be submitted that this view of the case is incon- sistent with the general doctrine of the operation of the acts of part performance : that they open the whole question of the terms of the agreement to parol evidence : and that as a written agreement where there are acts of part performance may be added to by parol, (e) so an agreement set up by the answer may be moditied b}'^ parol. If this were not so, the plaintiff would be at the mercy of the defendant, for whereas if he simply denied the agreement, the plaintiff would have an oppor- tunity of proof by parol ; when he set up some other agree- ment, all that evidence would be excluded. (/) § 424. It is perhaps not entirely decided whether the court can in any case decree an inquiry into the terms of a contract, when it has not been sufficiently proved to enable the court to make a final decree upon the evidence before it. Lord Man- ners(^) strongly expressed an opinion that the court has no such (b) Cooth V. Jackson, 6 Ves. 12. (/) Cf. also the case of Tomkinson v. (r) Kast India Company v. Donald. 9 Ves. Steight, 17 C. B. 697, stated ante. § 386. 275 ; Moriihett v. Jones. 1 Sw. 172 ; Toole v. (g) Savage v. Carroll, 2 Ball & B. 451, Medlicott. 1 Ball & B. 393. and see Seton Decrees, 566, where it is laid (d) Lindsay v. Lynch, 1 Sch. & Lef. 1. See down that " an inquiry should not be direct- ante, i 385. ed as to facts which are the foundation of ('.) Sutherland v. Brlggs, 1 Ha. 26. the relief" MISRErilESEXTATION. 2G9 jurisdiction, a view whicii scem.s to have met with the approval of the highest authoritios.(A) ♦CHAPTER XII. [*191] OF MISRErilESENTATIOX. § 425. A MISREPRESENTATION, haviiig relation to tlio con- tract, made by one of the parties to the other of them, is a ground for refusing the interference of the court in specific per- formance at the instance of the former party ; and may in cer- tain cases, be a ground for its active interference in setting aside the contract at the instance of the latter.(«) Represent- ations are most usually by word, but they may be by act, as, for instance, by the performance of fraudulent experiments, on the faith of which a contract was entered into for a license un- der a patent.(^) [1] , (A) Sug. Vend. 12fi ; Story, Eq. Jur. ^ 764. 452. reversed in D. P. s. n. Wilde v. Gibson, (a) Edwards v. M'Leary, Coop. 308 ; S. C. 1 IIo. Lords, 605 ; Sug. Law of ProiJ. 614. 2 Sw. 387 i Gibson v. D'Este, 2 Y. & C. C. C. (b) Lovell v. Hicks, 2 Y. & C. Kx. 46. [1] If one person makes a representation to another who is about deahng with him upon the faith thereof, he shall make it good if he knew it to be false ; but to induce a court of equity to interfere in such a case, it must be shown that the misrepresentation was in a matter important to the interests of the other party, and that it actually did mislead him. And the same con- sequences follow a misrepresentation, if the party make the assertion recklessly, without knowing whether it was true or false, or even innocently, if it oper- ated as a surprise. But a misrepresentation in a matter of opinion and fact, open to the inquiries of both parties, and in respect to which neither can be presumed to have trusted the other, unless there be fraud, in cases of peculiar relationship or confidence, or whether the other party has justly reposed upon it, and been misled, furnishes no ground for relief. Juzan v. Toulmin, 9 Ala. 662. So where the vendor of a forty acre tract of land, well knowing the lo- cation of the corners and lines, represented one of the lines so to run as to embrace nine or ten acres of cleared land, when in truth it contained much less, and the difference of value between the land pointed out and that con- veyed amounted to almost one-third the purchase money, it was held that these facts were such misrepresentations as entitled the vendee to have the 270 FRY ox SPECIFIC PERFORMANCE OF CONTRACTS. ^ 42G. Such misrepresentations are resolvable into the follow- ing elements, namely — first, the statement actually untrue; isecondly, the fact that the part}' making the statement did not know it to be true ; thirdly, the intent in the party making the statement to induce the other party to enter into the contract ; fourthly, the reliance on the statement by the party to whom it is made ; fifthly, the statement having such a relation to the contract as that the statement being false makes the contract unconscionable. contract set aside. Elliot v. Boaz, 9 Ala. 272. Warner v. Daniels, 1 W. & M. 90, is also a case in point. There D. purchased a farm, paying him there- for in shares of the stock of the Cleft Ledge Granite Co., which he represented to be worth ^GOOO. Seveial representations were made to W. by Z>., and also by F., who was concerned in the same company, to induce W. to take the stock in payment, which representations proved to be false, and the stock worthless. On a bill in equity b}^ W. for relief, it wns decreed that the sale should be rescinded, the shares reconveyed by IV. to D., and the farm by D. to W., and a master appointed to report the amount of rents and waste, after deducting permanent improvements which should be allowed by iV. to D. Where a conveyance is set aside for misrepresentations, the ground of the decision must be considered to have been fraud ; and, in such a case, interest is to be paid and the money refunded without reference to any demand, and from the time it was received, and interest on the interest from the time of its payment on any notes originally given. Doggett v. Emerson, 1 W. & M. 195. It is of no consequence that the contract of which a rescission is sought, on these grounds, does not contain the misrepresentation upon which relief is asked. Hough v. Richardson, 3 Story, 659. And where the vendee of land made representations respecting the value of what was taken for the con- sideration, which weie false in material points, and which influenced the ven- dor to sell, it was held that whether the vendee knew them to be false or not, they would vitiate the sale. So, also, if they were made by another person, in the presence of the vendee, and he was benefited by them. Warner v. Daniels, 1 W. & M. 90. The same consequences would result, although there was no fraudulent intent on the part of the party making the representations. Taylor v. Fleet, 1 Barb. 471. It is, however, necessary that the party de- ceived should, in cases arising from ftilse representations, have entered into the contract upon the faith of these representations. lb. A misrepresentation made by the vendor in a matter of substance aifecting the value of the estate sold, is a good defense to a suit by him for a specific performance, although both vendor and vendee were ignorant of its untruth. Best v. Stow, 2 Sandf. Ch. 298. Relief will not be granted where the vendee has had opportunity MISRErRESEXTATION. 271 § 427. It will be desirable to discuss these points separately ; and in doing so, to consider whether the *misrepresent- r^^ ^ i ation in question is alleged by way of defense to a suit ' ' -' for specific performance, or defense to an action on the contract at law, or as the ground for an action of deceit at law, or for the rescission of a contract in equity ; for, whilst the same ingredi- ents are requisite for either of the two latter proceedings, (c) it will appear that somewhat less will suffice to prevent the active interference of the court in specific performance. The object of (c) Attwood V Small, 6 CI. & Fin. 232, 39.'), 444; Lovell v Hicks, 2 Y. & C. Ex. 4(>, 51. of making an examination of the property, concerning which the false repre- sentations have been made. Mason v. Crosby, 1 AV. & M. 342. Hough v. Richardson, 3 Story, G59. And so where Ji. gave a certificate, that certain lands which he had "partially explored" contained, "as far as my knowledge extends," a certain average of timber, and it appeared that the purchasers, to whom it was given, had as full means of knowledge as J/., it was held that they were not entitled to place implicit reliance thereon, and make it the basis of their contract, but that they should have investigated the grounds of the opinion therein expressed, and the extent of the exploiation by j/. lb. But an examination, however, will not prevent a recovery for fraud, if falsehood was practiced in respect to some of the examination; as, for example, the quality of timber in this case, and the size of streams on the lands sold upon which to float timber, or any matter within the vendor's knowledge: and if the purchaser, relying in part on the false representations, made only a slight examination, he will be entitled to relief. Mason v. Crosby, 1 W. &■ M. 342. Nevertheless, no purchaser is at liberty to remain intentionally ignorant of facts relating to his purchase within his reach, and then claim protection as an inno- cent purchaser. Eldredge v. Jenkins, 3 Story, 181. Although, when a party to a contract places a known trust and confidence in the other party, and acts upon his opinion, any misrepresentation by the party confided in, in a material matter constituting an inducement to the act of the other party, and by which an undue advantage is taken, will be treated with severity, and regarded as a fraud. Shaefier v. Sleade, 7 Blackf. 178. But no misrepresentation can have the effect of barring the rights of a party, unless another person is injured thereby, by being induced to part with his property, or unless it be so gross as to amount to proof of fraud. Stuart V. Luddington, 1 Rand. 463. See Morgan v. Bliss, 2 ^lass. 112; Fuller v. Hogdon, 25 Maine, 243; Ide v. Gray, 11 Verm. G16; Farrar v. Alston, 1 Dev. G9. Misrepresentations may arise where a party makes a statement which is 272 FRY ON SPECIFIC PERFORMANCE OF CONTRACTS. the .present chapter being to consider misrepresentations in re- lation to specilic performance, it is of course only incidentally and partially discussed in the other relations above alluded to. § 428. (1) The first point calls for little remark ; for it is ob- vious that unless the statement be actually untrue, there can be no misrepresentation. § 429 (2) With regard to actions on the case for deceit at law, and therefore to suits in equity for sotting aside the contract, if the statement be in fact fal.^e, but the party making it believes it to be true, there will be no fraud sufficient to induce the in- terference of the court.(fZ) [2] It is not, however, necessary to show that the party knew the representation to be false ; it is enousfh if it was false, and he did not at the time believe it to be true, and that he made it for a fraudulent purpose. (e) § 430. The same principle applies where misrepresentation is alleged as a defense to an action on a contract. In a case (/) on a covenant in a separation deed, to which fraud was pleaded, Maule, J., said, "I conceive that if a man, having no knowledge whatever on the subject, takes upon himself to represent a cer- tain state of facts to exist, he does so at his peril : and if it be {d) Early v. Gairett, 9 B. & C. 928; Free- (e) Taylor v. Ashton. 11 M. & W. 401. man v. Baker, 5 B. & Ad. 797; Moeus v. Hey- (f) Evans v. Edmonds. 13 C. B. 777, 786. ■worth, 10 M. & W. 147. literally true, but substantially false. Corbett v. Brown, 8 Bing. 33. 1 Moore & Scott, 85. In this ca.se the defendant's son having purchased goods from the plaintitt's on credit, they wrote to the defendant requesting to know whether his son had, as he stated, i;i300 capital, his own property, to commence busi- ness with ; to which the defendant replied that his son's statement as to the £300 was perfectly correct, as the defendant had advanced him the money. It was proved that, at the time of the advance, the defendant had taken a prom- issory note from the son for ii300, payable on demand, with interest, which interest was paid. Six months after this communication to the plaintiffs, the defendant's son became bankrupt. Held, that it was properly left to the jury to say whether the representation made by the defendant was false within his own knowledge, and the jury having found a verdict for him, the court granted a new trial. Denny v. Gilman, 26 Maine, 149, is a case of the same kind. See also Allen v. Addington, 7 Wend. 9; Ward v. Center, 3 John.R. 271 ; Upton V. Vail, 6 id. 181 ; Barney v. Dewey, 13 id. 224, 395. [2] See Story's Eq. Jur. § 193. '*' MISREPRESENTATION. 273 done either with a view *to secure sonic benefit to him- r#^f,r,i self, or to deceive a third person, he is in law guilty of a '- ' -' fraud, for he takes upon himself to warrant his own belief of the truth of that which he so asserts." § 431. But where there is no fraudulent intent and no actual knowledge that the statement is untrue, this is not a defense to an action on the contract at law ; so that where an agent, with- out designing to deceive, made a representation wln'ch was false, but which he did not know to be so, whilst the principal had the knowledge of the actual facts, but did not make the representa- tion, it was held that there was no fraud, and that the misrepre- sentation therefore furnished no defense. (fend- ers to purchase additional shares in the concern, and assured r*iQ'^"l ^^^^'^^ t^^^^ *t^^^ company would advance the necessary funds, and that the stock should l)c held until it could be sold at a profit, without the defenders being called on to pay any money : the shares became valueless, and the company sued for the money advanced, to which the defenders pleaded the fraud of the company : to this plea it was, amongst other things, objected that the loan was one independent transaction, and the purchase another, and that the alleged misrepresentation in the purchase did not vitiate the loan. But it was held I)y their lordships that the defense was good, Lord Cranworth putting it on the ground that the transaction did not constitute a loan in the ordinary sense of the word, but a special contract by the company to purchase for the defenders, to be repaid only in a particular manner ; and Lord St. Leonards holding that the purchase and the loan were one transaction, though consisting of two parts, — that if there had been no loan there would have been no purchase, and if there had been no purchase there would have been no loan. § 430. But it is not essential to make a misrepresentation operate as such that it should have been made from a corrupt motive of gain to the person making it, or a Avicked motive of injury to the person to whom it is made : therefore Avhere a per- son, not authorized to do so, accepted a bill as by the procura- tion of the drawee, doing so in the absence of the drawee, and in the belief that the drawee would have accepted it, and with- out any fraud in fact, he was held liable as for a fraud in law, inasmuch as he had made a misrepresentation, knowing it to be (o) The National Exchange Company v. Drew, 2 M'Q. 103 MISRErRESENTATION. 277 untriio, in a way calculated to make another act on the faith of it to his damage, and the damage liad actually occured.f^;) [7] § 437. (4) Another essential circumstance to misrepresentation *as a defense to specific performance, is that it was in r#iqp-| reliance upon the statements in question that the party to whom they were made entered into the contract. In Attwood V. Small, (§'') which was a case for the rescission of the contract, (and for this point the plaintiff's case for rescission and the de- fendant's case against specific performance seem alil\e,) Lord Brougham, after referring to the earlier cases said, " Now my lords what inference do I draw from these cases ? It is this, that general fraudulent conduct signifies nothing ; that general dishonesty of purpose signifies nothing ; that attempts to over- reach go for nothing, unless all this dishonesty of purpose, all this fraud, all this intention and design can he connected with the particular transaction, and not only connected with the par- ticular transaction, but must be made to be the very ground upon which this transaction took place, and must have given rise to this contract."[8J § 438. In considering whether the defendant relied on the misrepresentation of the plaintiff, the court will discriminate between such representations as are in conscience a part of the (?)) Polhill V. Walter, 3 B. & Ad. 114 ; (?) 6 CI. & LFin. 447. Consiacr Wheelton Gibson v. D'Este, 2 Y. & C. C. C. 542 ; but v. HartUstj', 26 L. J. Q. B. ^65 ; ante, § see S. C. ill D. P. s. n.; Wilde v. Gibson, 1 434, u. Ho. Lords, 605 ; Sugd. Law of Prop. 614. [7] Allen V. Addington, 7 Wend. 9. Young v. Hall, 4 Geor. 95. If a party- makes fiilse affirmation, although he has no interest of his own to serve, whereby another sustains damage, he is liable to an action. Beam v. Ilerrick, 3 Fairf. 262. See Stiles v. White, 11 Mete. 356. [8] " It is undoubtedly true that to avoid a contract on the ground of misrep- resentation, there must not only be a misrepresentation of a material fact con- stituting the basis of the sale, but the purchase must have been made upon the faith and credit of such representations. At least, the purchaser must so far have relied on them as that he would not have made the purchase if the rep- resentations had not not been made." Taylor v. Fleet, 1 Barb. Sup. Ct. Rep. 475. Although other inducements besides the representations may have operated in the giving credit, it is enough if the vendor is moved by such representa- tions, so that without it the goods would not have lieou parted with. Adding- ton V. Allen, 11 Wend. 375. 278 FRY ON SPECIFIC TERFORMANCE OF CONTRACTS. bargain, whether incorporated into the legal contract or not, and mere vague commendations, as the holding out of mere hopes or expectations which ought to put the other party upon further inquiry; and in judging of this, it is important to consider whether the thing undertaken or stated lies in the power or knowl- edge of the party making the representation, or whether it lies beyond his power or knowledge. Thus, for instance, Avith regard to mines, a distinction will be drawn between a specitic account of what was to be seen in the mine, and a general description of its prospects and capabilities, which, from the very nature of the property, must l)e problematical and doubtful. (r) [9] r*iQ7l *^ "^^^^ ^" ^^^"^ principle, where an advowson was sold •^ -'by auction, and the particulars stated that a voidance of the preferment was likely to occur soon, but made no mention of the present incumbent, and the auctioneer at the sale stated in explanation that the living would be void on the death of a person aged eighty-two ; and in fact the then incumbent was only thirty-two years of age; 8ir William Grant held the representation made by the particulars so vague and indefinite that its only effect ought to have been to put the defendant upon making inquiries, and accordingly granted specific per- formance. («) And so again, the representation that land was uncommonly rich water-meadow, whereas, in fact, it was very imperfectly watered, was held not to be a bar to perform- ance.(^) [10] (r) Jennings v. Broughton, 17 Beav. 234. ton v Browne, 14 Ves 144 ; Brealey v. Col- (s) Trower v. Newcome, 3 Mer. 704. lins, You. 317 ; Brooke v. Roiuidthwaite, 5 (() Scott V. Hanson, 1 Sim. 13; S C. 1 R. Ha. 298. & My. 128, See also on this principle, Fen- [9] There is also a distinction taken at law, between the mere expression of an opinion and the statement of a fact. Pars. Contr. vol. 2, pt. 2, eh. 3, p. 275, and note (j). But it is added by the same author, that this distinction must not be carried too far ; and that if the opinion was one on which the other partj'' was justified in relying, either by the relations existing between the parties, or by the nature of the case, and it can be made to appear that the opinion expressed was not in fact held, that this should bo deemed equivalent to a misrepresentation of a fact. [10] A very thorough and comprehensive exposition of the doctrines of equity upon this point are given by Lord EUenborough, in the case of Yeruon MISREPRESENTATION. 279 § 440. But generally speaking, in statements made by the vendor as to property, he is bound to make them free IVom all ambiguity, and the purchaser is not bound to take upon himself the peril of ascertaining the true meaning of the statement. (*<) § 441. Besides the vagueness of the representation, there are other grounds upon which the court will conclude that it was not relied upon by the party to whom it was made : these wcro discussed by LordLangdale in the case of Clapham v. Shilito.(r') His lordship there said :{w) "Cases have frequently occurred in which upon entering into contracts misrepresentations made by (m) Martin v. Cotter, 3 Jon. & X. 49G, 507; (r) 7 Beav. 146. WaU V. Stubbs, 1 31ad. 80. [w) Pp. 149, 150. ^ V. Kej's, 12 East, 637. "If an action be maintainable for such false represen- tations of the will and purpose of another," it is there said, *' with reference to the proposed sale, should not an action be also at least equally maintainable for a false representation of the party's own purpose .' But can it be contended that an action might be maintained against a man representing that he would not give, uijon a treaty of purchase, beyond a certain sum, when it cannot be proved that he had not said he would give much more than that sum ? And supposing, also, that he had, upon such treaty, added, as a reason for his re- solving not to give beyond a certain sum, that the property was, in his judg- ment, damaged in any particular respect ; and supposing further, that it could be proved he had, just before the giving such reason, said he was satisfied that it was not so damaged; would an action be maintainable for this untrue repre- sentation of his own purpose, backed and enforced by this false reason given for it .' And in the case before us, does not the false representation made by the defendant of the determination of his partners, amount to any thing more than a falsely alleged reason for the limited amount of his own offer .'' And if it amount to no more than this, it should be shown, before we can deem this to be the subject of an action, that, in respect to some consideration or other, existing between the parties to the treaty, or upon some general rule or prin- ciple of law, the party treating for a purchase is bound to allege truly, if he state at all, the motives which operate with him for treating, or for making the offer he in fact makes. A seller is unquestionably liable to an action of deceit, if he fraudulently represent the quality of the thing sold to be other than it is, in some particulars which the buyer has not equal means with him- self of knowing; or, if he did do so, in such a manner as to induce the buyer to forbear making the inquiries which, for his own security and advantage, he would otherwise have made. But is a buyer liable to an action of deceit for misrepresenting the seller's chance of sale, or the probability of his getting «^ 280 FEY ON SFECIFIC PERFORMANCE OF CONTRACTS. one party have not been, in any degree, relied on by the other party. If the party to whom the representations were made himself resorted to the proper means of verification, before he r*1Q«l entered into the contract, it may appear that he relied *Lipon the result of his own investigation and inquiry, and not upon the representations made to him by the other part}': or if the means of investigation and verification be at hand, and the attention of the party receiving the representations be drawn to them, the circumstances of the case may be such as to make it incumbent on a court of justice to impute to him a knowledge better price for his commodity than the price which such proposed buyer offers ? I am not aware of any case, or recognized principle of law, upon which such a duty can be considered as incumbent upon a party bargaining for a purchase. It appears to be a false representation in a matter merely gratis dictum, by the bidder, in respect to which the bidder was under no legal pledge or obligation to the seller for the precise accuracy and correctness of his statement, and upon which, therefore, it was the seller's own indiscretion to rely ; and for the consequences of which reliance, therefore, he can maintain no action." Davis V. ]\Ieeker, 5 John. Rep. 354, is an authority in support of the same rule. There Meeker brought an action against Davis, before a justice, for a deceit in the sale of a wagon, for which he had paid him ^50. That plaintiff alleged that the defendant fraudulently asserted that he had frequently been offered, by different persons, §'50 for the wagon ; by reason of which folse assertion the plaintiff was induced to believe the wagon was worth that sum, whereas, in fact, it was not worth more than ^25. The plaintiff had merely seen the wagon, and made the purchase without particularly examining it or trying it. No warranty was proved. Judgment was given for the plaintiff, but on appeal the decision was reversed ; and it was then said by the court, that there being no express warranty or fraud proved in the case, and the plaintiff having pur- chased on sight, the assertion of the defendant that it was worth more than its real value, furnished no ground of action. Swett v. Colgate, 20 John. Rep. 19G, is a case to the like effect. In that case it was held that, on the sale of goods, the vendor is not answerable for their quality or goodness, unless there is an express warranty or fraud. And this warranty must be more than a simple affirmation at the time of the sale; words must be used which do amount, and were intended to amount, to a warranty. Therefore, where the article sold was considered and described as barilla, and was examined by the vendee before the sale at auction, and a sample exhibited at the sale, and the article was supposed to be barilla, and purchased as such, but, afterwards, upon being used by the vendee in the manufticture of soap, it was discovered to be, not barilla, but kelp, which greatly resembles it, though of little or no value, MISREPRESENTATION. 281 of the result, which, upon due inquiry, he ought to have ob- tiiinetl, and thus the notion of reliance on the representations made to him may be excluded. Again, when we are endeavor- ing to ascertain what reliance was placed on representations, we must consider them Avith reference to the subject matter and the relative knowledge of the parties. If the subject is capal)le of being accurately known, and one party is, or is supposed to be possessed of accurate knoAvledge, and the other is entirely igno- it was held, that there being no express warranty or fraud on the part of the vendor, no action would lie against him at the suit of the vendee, who had offered to pay for what he had used, and to return the residue ; and the bad quality of the article, therefore, was no defense to a suit brought by the vendor to recover the price of what was sold. There is no point of law better deter- mined, than that if the qualities of the goods sold are such that both vendor and vendee can ascertain alike their value, an express warranty alone can in- duce the court to give judgment against the vendor. There is therefore no difference, on this subject, between the rules of law and the doctrines of equity. Snell V. Moses, 1 John. Rep. 96. Defreeze v. Trumper, Id. 274. Sands v. Taylor, 5 id. 395. Cunningham v. Speir, 13 id. 392. Thompson v. Ashton, 16 id. 316. Willing v. Consequa, 1 Peters' Rep. 317. Welsh v. Carter, 1 Wend. 185. Duffee v. Mason, 8 Cowen, 25. But although this rule is clearly established as to the quality or goodness of the article sold, the contrary is the case in regard to the title or ownersnip of all chattels sold. Defreeze v. Trum- per, 1 John. Repf 274, is an illustration in point. There, it appeared, that an action of trespass on the case had been brought by the present defendant, against the present plaintiff, before a justice, to recover damages for the sale of a horse, the title to which was afterwards proved to be in a third person, and not in the vendor. The horse had been sold by Defreeze, as executrix in her 0W71 wrong, to Trumper, and the administrators of the estable of the intes- tate afterwards recovered the value of the horse of the vendee. The principal objection, and the only one considered in the judgment of the court, was, that the declaration did not sufficient!}'' aver, nor the evidence establish, any war- ranty or fraud in the sale. But the court said : " We are of opinion that an express warranty was not requisite, for it is a general rule that the law will imply a warranty of title on the sale of a chattel." This rule is laid down by Sir William Blackstone, who says (vol. 2, 451) " that by the civil law an im- plied warranty was annexed to every sale, in respect to the title of the vendor ; and so too, in our law, a purchaser of goods and chattels may have satisfaction from the seller, if he sells them as his own, and the title prove delicient, with- out any express warranty for that purpose." See also Swett v. Colgate, 20 John. Rep. 196. FKY — 19 282 FRY ON SPECIFIC PERFOEMANCE OF CONTRACTS. rant, and a contract is entered into after representations made by the party who knows, or is supposed to know, without any means of verification bcine; resorted to by the other, it may well enough be presumed that the ignorant man relied on the statements made to him by him who was supposed to be better informed : but if the subject is in its nature uncertain, — if all that is known about it is matter of inference from something else, and if the parties making and receiving representations on the subject have equal knowledge and means of acquiring knowledge, and equal skill, it is not easy to presume that representations made by one would have much or any influence upon the other." § 442. The fact that resort has been had to other means of knowledge is, we have seen, one ground on which courts will hold that the misrepresentation was not relied on. "If," said Lord Holt, alluding to the circumstances of the case before him,(a;) " the vendor gives in his particular of the rents, and the r*iQQ"i vendee says he will trust him and *inquire no farther, but rely upon his particular ; then, if the particular be false, an action will lie ; but if the vendee will go and inquire further what the rents are, there it seems unreasonable he should have any action, though the particular be false, because he did not rely upon the particular." It was on this ground that the house of lords ultimately decided the celebrated case of Small v. Attwood.(?/) The British Iron Company had sent a deputation of their directors down to Mr. Attwood's works for the express purpose of verifying his representations, and they expressed their satisfaction with the proofs produced : by this line of conduct they precluded themselves from being able to rely on any pre- vious misrepresentations, for if a purchaser chooses to judge for himself, and does not avail himself of all the knowledge and means of knowledge open to him, he will not afterwards be allowed to say that he was deceived by the representations of the vendor. The case was a suit for rescission, and not a de- fence to a specific performance ; but for the present point these seem to be alike. (.T) Lysney v. Sclby, 2 Lord Kaym. 1118, (y) 6 CI. & Fin. 232. 1120. MISIIEPKESENTATION. 283 ^ 443. The principle is furtlier illustrated by the recent case of Jennings v. Broughton,(;s) where the pluintilF, having bought shares in a mine, afterwards sought to set aside the sale on the ground of misrepresentation as to the state of the mine ; but he havins: visited the mine himself, and the allesrcd misstatements being such as he was competent to detect, the court held that his purchase of shares had not been made in reliance on the rep- resentations, and the bill was dismissed both by the master of the rolls and the court of appeal. § 444. And where a purchaser complained of a representation that the woods sold had yielded £250 per annum on an average of fifteen years, on the ground that though they might in fact have done so, yet that they would not *have done so in r^^^^..^ a fair course of husbandry, his objection was held to be ^ ^ displaced by proof that he had been put in possession of a paper from which he might have ascertained that the woods had been unequally cut.(a) § 445. The allegation of misrepresentation may also be effect- ually met by proof that the part}' alleging it was from the be- ginning cognizant of all the matters complained of, or after full information concerning them continued to act on the footing of the contract, or to deal with the property comprised in it as if held under the contract: as, for instance, where a lessee of a mine, after knowledge of alleged misrepresentation, continued to work it.(^)[ll] § 44 G. On this principle it is that where a misrepresentation has been made by the vendor with regard to some patent defect in the thing sold, and it is proved that the purchaser had seen the thing sold, so that this defect must have been known to him, (2) 5De G. JM. & G. 126, affirming S. C. (b) Vigers v. Pike, 8 CI. & Fin. 5(;2; per 17 Beav. 234. Lord Cottenham, p. 650. (a) Lowndes v. Lane, 2 Cox, 363. [U] At law, subsequent performance on the part of the one defendant, with knowledge of the fraud acquired subsequently to the making of the agieement, and prior to its performance, precludes him from the disaffirmance of the con- tract, or suit for the consideration, but does not bar him of his remedy for damages. Whitney v. Allaire, 4 Denio, 554. 284 FRY ON SPECIFIC PEEFOEMANCE OF CONTEACTS. he will not be able to avail himself of the defect as a bar to specific performance. This was decided by Sir William Grant in the case of Dyer v. Hargrave,(c) where a farm was described as all lying within a ring fence, whereas it did not in fact so lie ; but it was clearly proved that the defendant had lived in the neighborhood all his life, had seen the farm before purchasing it, and must have known whether it did lie in a ring fence or not ; and on these facts the master of the rolls decided that the defendant was clearly excluded from iusisting upon the misrep- resentation as a defense. This principle will of course only apply where the thing in respect of which the representation is made is one perfectly visible to everybody. (fZ) § 447. This case was supported by Sir William Grant by the, r*onn 'iJi'i^ogT ^^ warranties at law, in which, however *general ^ ^ defects apparent at the time of the bargain are not in- cluded, because they can form no suliject of deceit or fraud : so that, for example, a person who buys a horse, knowing it to be blind in both eyes, cannot sue for this defect on a general war- ranty of soundness.(e) § 448. But for the vendor thus to countervail the effects of his own misrepresentation, the evidence of knowledge in the other party must be conclusive ; he " must show very clearly that the purchaser knew that to be untrue which was repre- sented to him as true ; for no man can be heard to say that he is to be assumed not to have spoken the truth. "(y) § 449. Such being the proof required, it is very certain that the mere circumstance of other means of knowledge being open to the purchaser will not have this effect, even though, inde- pendently of any statement, the jjarty relying on the represent- ation would in law have been taken to have had notice of the contrary. The doctrine of notice has no application where there has been a representation as to the fact of which notice would be implied :{g) the proof must go further, and clearly show the (r) 10 Ves. 505. Macanlev. 2 De G. M. & G. 346 ; Wilson v. {d) Grant v. Munt, Coop. 173 ; post, § 563 et Short, 6 Ila. 366, 378 ; Dyre v. Hargrave, 10 seii. Ves. 505. (e) Bayly V. Merrell,Cro.Jac. 386; Marget- (?) Drysdale v. Mace, 2 Sm. & Gif. 225 son V. Wright, 7 Bing. 603. 230. (/) Per Kuight Bruce, L. J., in Price v. MISREPRESENTATION. 285 purchaser to have had communicated to his mind information of the real state of facts. (A) [12] § 450. Therefore where a distinct representation has been made, it will not be countervailed by any general statement or (h) Price V. Macaulay, 2 De G. M. & G. 339. See also Gibson v. D'Este, 2 Y. & C. C. C. 542, 572. [12] Chitty's Contr. 6th Am. ed. 445, 446. Story's Contr. § 530, § 532. The rule, however, at law, is not every where uniform. "A general warranty," says Mr. Parsons, [Vol. 1, Bk. 3, ch. v, p. 4G0, n. (i)] "is said not to cover defects plain and obvious to the purchaser, or of which he had cognizance : thus, if a horse be warranted perfect, and want a tail or an ear. 13 H. 4, 1 b, pi. 4. 11 Edw. 4, G b, pi. 10. Southerne v. Ilowe, 2 Rol. Rep. 5. Long v Hicks, 2 Hump. 305. Schuyler v. Russ, 2 Caines, 202. Margetson v. Wright, 5 M. & P. 606. Dillard v. Moore, 2 Eng. (Ark.) 166. The same rule applies whether the warranty is express or whether the warranty is implied by law, from a sound price, as is the case in some states. Richardson v. Johnson, 1 Louis. Ann. Rep. 389. But care should be taken not to misunflerstand nor misapply this rule. A vendor may warrant against a defect which is patent and obvious, as well as against any other. And a general warranty that a horse was sound, for instance, would, perhaps, be broken, if one eye was so badly injured, or so malformed as to be entirely useless; and although this defect might have been noticed by the purchaser at the time of sale. He may choose to rely upon the warranty of the vendor, rather than upon his own judgment, and we see not why he should not be permitted to do so. A war- ranty that a horse is sound, is broken if he cannot see with one eye. House v. Fort, 4 Blackf. 293. Why may not the vendor be equally liable if one ej^e was entirely gone? In Margetson v. Wright, 8 Bing. 454, 7 Bing. 603, a horse warranted sound had a splint then; this was visible at the time of the sale; but the animal was not then lame from it. He afterwards became lame from the effects of it, and the warranty was held to be broken. In Liddard v. Kain, 2 Bing. 183, an action was brought to recover the value of horses sold and delivered. The defense was that, at the time of the purchase, the plaintiff agreed to deliver the horses at the end of a fortnight, sound and free from blemish, and that at the end of the fortnight one had a cough and the other a swelled leg; but it also appeared that the seller informed the buyer that one of the horses had a cold on him, and that this as well as the swelled leg was apparent to every observer. The jury having found a verdict for the defend- ant, a rule for a new trial was moved on, on the ground that where defects are patent, a warranty against them is inoperative. The court refused the rule, on the ground that the warranty did not apply to the time of the sale, but to a subsequent period. In Stucky v. Clyburn, Cheves, 186, a slave sold had a hernia; this was known to the buyer. Yet it was held to be within an ex- 286 FRY ON SrECIFIC rERFORMANCE OF CONTRACTS. any circumstances from which an inference inconsistent with the representation might be drawn, even though in the absence of such representation they might be sufficient to put the other party on inquiry. (2) r*9n9l *^ ^^^' ^^^ ^^'^^ '^ prevent the efl'ect of a misrepre- '- sentation that the party making it recommended the other to consult his friends and professional advisers, for " no man can comphiin that another has too implicitly relied on the truth of what he has himself stated. (^•) § 452. Thus where a misrepresentation is made by a vendor in respect to a lease, of the covenants in which the purchaser would by law be implied to have notice, the vendor will be equally bound by his statement as if no such implication arose.(/) § 453. On the same principle it was decided that where a vendor represented the house to be substantially and well built, and it proved to be the contrary, the vendor was not entitled to specific performance, though the defendant might of course have inquired into its actual state. (?w) \ 454. In Harris v. Kemble,(?i) there was a contract conse- quent upon certain misrepresentations as to the profits of a theater : Sir J. Leach was of opinion that these representations being manifestly founded on accounts which were equally open to both parties, (they being joint owners of the theater,) and being justified by the accounts, did not avoid the contract ; but his decision was overruled by Lord Chancellor Lyndhurst, and afterwards by the house of lords, on the ground that the repre- ((•) Wilson V. Short, 6 Hare. 366, 377. Barton, id. 282; Pope v. Garland, 4 Y. & C. (/.) Keyiiell v. Sprye, 1 De G. M. & G. 660, Ex. 394, 401. 710 ; Dubell v. Stevens, 3 B. & C. 623. (m) (Jox v. Middleton, 2 Drew, 209. (0 Van V. Corpe, 3 My. & K. 269 ; Flight v. («) 1 Sim. 111. particularly 120 ; S. C. 5 Bli. N. S. 730. press warranty of soundness. So of a swelling in the abdomen, plainly visible and known to the purchaser. Wilson v. Ferguson, Cheves, 109. So where a slave had the scrofula at the time of sale. Thompson v. Botts, 8 Mis. 710. And where a defect is obvious, yet if the purchaser be misled as to its char- acter or extent, a warranty is implied Wood v. Ashe, 3 Strobh's L. 64." Upon this view of the case, the analogy of Sir William Grant, in Bayly v. Merrel, referred to in the text, would be neither so cogent nor so apt m this country as in England. MISKEPRESENTATION. 287 sentation was made with a view to the agreement, and that the accounts were so kept as to render it difficult without employ- ing an accountant to draw any certain conclusion from them. §455. The circumstance that the vendor sold "with all faults," though it may serve to put the purchaser on his guard, will not enable the vendor to say that the purchaser did not rely on his representation, or prevent the purchaser *from r^..^^oi avoiding the sale, if that representation were false, (o) '- " -' § 456. The principle that, in order to render a misrepresenta- tion operative, there must be reliance on it by the party to whom it was made, applies to the case of the assignment of a contract originally affected by such a circumstance ; for it seems that if A. contract with B., and in so doing there are circumstances of fraud on the part of A. which would prevent his enforcing the contract against B., but B. assigns the contract to C, on whom no fraud is practised, and who is not affected by the original misrepresentation, in such circumstances the contract might be enforced against C.,{2^) ^or he placed no reliance on the mis- representation made to B. § 457. (5) It is, as already stated, necessary to constitute a misrepresentation which will prevent a specific performance, that the statement in question shall be so material to the contract built on it that, if the statement be false, the contract becomes one which it would be unconscionable for the party having made the statement to enforce. In other words, the misrepresentation must be shown to have operated to the prejudice of the defend- ant.(5') Therefore, where A. induced a purchaser to think that he was contracting with B. through his (A.'s) agency, whereas he was, in fact, contracting with A. himself, but there was nothing to induce the belief that he would not have contracted on the same terms with A., or that he had sustained any loss or inconvenience from acting under the mistake, the court enforced performance of the contract.(r) But it is sufficient if the mis- (o) Schneider v. Heath, 3 Cam. 506. See (r) Fellowes v. Lord Gwydjr, 1 Sim. 63 ; S. also post. ?571. C. 1 K. & My. 83; cf. Flint v. Woodiu, 9 Ha. ( p) Smith V. Clarke. 12 Ves. 477. 4S*. 618. (q) See Polhill v. Walter. 3 B. & Ad. lU. 288 FRY ON SPECIFIC PERFORMANCE OF CONTRACTS. representation operate to the prejudice of the defendant to a very small extent. (.s) *§ 458. Where fraud or misrepresentation, to whatever •- ^ extent it may go, has been established, it operates as a per- sonal bar to the relief,(^) and the party guilty of it cannot enforce the contract, even if he waive the portion of it affected by the mis- representation. In a case(w) where there was a misrepresentation which the master of the rolls considered not to have been willful, but to have arisen from misunderstanding as to the surrender of a lease on part of the property which was to be exchanged, and the plaintiff offered to take the land subject to the lease,, and thus, as he contended, to abide by the agreement, exonerated from what was affected by the misrepresentation ; so that the question dis- tinctly arose whether the misrepresentation avoided the contract in toto or only quoad hoc, Sir Thomas Plumer(?;) said, " there is no authority any where, no case where the the court has, when mis- representation was the ground of a contract, decreed the specitio performance of it ; and nothing would be more dangerous than to entertain such ajurisdiction. The principle upon which perform- ance of an agreement is compelled requires that it must be clear of the imputation of any deception. The conduct of the person seeking it must be free from all blame : misrepresentation, even as to a small part only, prevents him from applying here for re- lief. The reason of this is obvious ; if it be so obtained, the con- tract is void both at law and in equity. Where an agreement has been obtained by fraud, is the effect to alter it partially, to cut *it down, or modify it only ? No, it vitiates it in toto ; ^ -' and the party who has been drawn in is totally absolved from obligation. If so, what equity has the other party, who by his misconduct has lost one contract, to call on the court for his benefit to make a new one ? If the defendant were willinor to (5) Cadman v. Horner, 18| Vessey, 10 cidentalem contingerit, quajsimiil cum sub- The distinction of the casuists between error stantia rei non ingreditur objectuin substan- antere'lens and roncomitans was the same tiale contractus, hie validiis omnino persist- as that referred to in this section. Error et." Mariani Examen, } 279. " dividitur in antecedentem qui dat causam (0 Harris v. Kenible, 5 Bli. N. S. 730, contractu!, ita ut eo al)sente, contractus non 751 fieret, et in conconiitantem, sen incidentem, [u) Viscount Clermont v. Tasburgh. 1 J. quo etiam absente adhuc contractus iniretur. & W. 112. • • Si error circa solam qualitatem ac- (v) Pp. 119, 120. FRAUD. 289 consent to it and to enter into a new agreement, it would he a ditfercnt case ; but if lie refuses, if he insists that he is absolved from it, what equity can there be in favor of the other ?" ♦CHAPTER XITI. [•20G] OF FRAUD. § 459. Fraud is of course a larger word than misrepresenta- tion, and includes in it, not only mitirepresentation on the part of the vendor, which we have already considered, but also the uncon- scionable and deceptive dealing of either party to any contract. § 4G0. Fraud comes before the court in several relations. It comes before courts of law as a defense to an action on the con- tract, or as the ground for an action for deceit ; it comes before courts of equity as a ground for setting aside an executed con- tract, as a defense to a suit for specific performance, or lastly, as forming an exception to the 8tatute of Frauds, in which rela- tion it is considered in the chapter on that statute. § 461. Under the chapter on misrepresentation we have seen that the suggestion of what is false is a ground for refusing spe- cific performance, and also in certain cases for rescinding con- tracts : the same results flow from the suppression of a fact which is material, and which it is the duty of one party to the contract to communicate to the other.(rt) *§ 462. Therefore, where part of an estate sold was r^^,^--, an encroachment on a common, in respect of which the '- -' lord's rights were not conclusively barred by time, and this fact was known to the vendor, and by him concealed from the pur- chaser, the court set aside an executed conveyance.(/.') (t) The question as to what facts which by our law. " non ergo generaliter sequen- might iiillueuce the mind of one party it is dum illud ejusdein Cieeroiiis. c.elare esse, the duty of the other, if knowing of tliem, cum tu, quoit scias, id ignorare, emDhiinenti to communicate, is one of great dillioulty. tui causa, velis eos quorum intersit scire : It is discussed by Cicero in a well-known sed tnni (lemuni id locum habit, cum do iis passage, (De Ofliic. lib. iii. c. 12 et seq. :) agitur qu;e rem subjectam perse contin- culpable concealment being in his opinion gunt.'" De Jur. Belli ac Pacis, lib. ii. c. 12, " cum, quod tu scias, id ignorare emolumen- s. 9. See also Pothier, Tr. du contrat do ti tui causa velis eos, quorum intersit id Vente. part ii. ch. 2. scire," c. 1:5. The limitation put by Grotius (4) Eawards v. M'Leay, Coop. 303; 2 on this priuciplc would probably be adopted Sw. 287; Sug. Law of Prop. 6t9. 290 FRY ON SrECIFIC PERFORMANCE OF CONTRACTS. § 4G3. The authority of this case was followed and relied on by Knight Bruce, V. C, in the celebrated case of Gibson v. D'Este,(c) in which he decided that the knowledge in the vendor or her agent of a right of way over the property sold of which the purchaser was not aware, and which was not stated to him by the vendor or her agent, was a ground for the rescission of the contract. This decision was, however, overruled by the house of lords,((Z) on the principle that, in order to set aside a purchase perfected by conveyance and payment of the purchase money, there must be proof of the direct personal knowledge and con- cealment by the principal, and not merely by an agent, and that such proof was wanting in the case. This decision has by no means given universal satisfaction, (e) but whether correct or not, it leaves intact the doctrine established in Edwards v. M-Leay.[l] (c) 2 Y. & C. C. C. 542. (c) Sug. Law of Prop. 614. [d) S. N. Wilde V. Gibson, 1 Ho. Lords, 605. [1] It was decided in "White v. Flora, 2 Overton, 42G, that the concealment of a truth which, if correctly known, would probably be a reason for making the terms of the contract different, is a good ground for rescindhig the con- tract in equity. In Snelson v. Franklin, 6 Mumf. 210, the owner of a lease agreed for the sale of it, without showing the lease to the vendee, or informing him of a provision in it, to the effect that in the case of the destruction, by fire, of the house lea.sed, the term .should then cease and determine. In the agreement of sale, it was represented that the lease was to continue four years. The house being burned soon after the sale, it was held that equity would re- lieve the vendee, by enjoining the vendor from collecting the purchase money, and directing his notes therefor to be given up and canceled. See also Mc- Neil V. Baird, 6 Munf. 310; Pollard v. Rogers, 4 Call, 439. In Halls v. Thomp- son, 1 S. & M, 443, the concealment by the vendor of material facts, calculated to influence the vendee, or operate to his prejudice, were held to be fraud- ulent. In White v. Cox, 3 Ilayw. 79, it Avas again held that suppression of a truth is sufficient ground for setting aside a contract in equity. Rawdon v. Blatchford, 1 Sandf. 344, affords another illustration of the same rule. In that case, ^. borrowed money of i?., and .secured it by the transfer of stocks, ui. ■was then cashier of a bank, and so continued until its failure, when it appeared that he was a defaulter to the bank for a large sum, and was insolvent. While this was known to the bank commissioners only, he obtained the stock from £., without consideration, upon a representation that he wanted it for a par- ticular purpose, and would substitute other security for it. His purpose, which FRAUD. 291 § 404. Though the vendor is thus bound to make known to the purchaser any circumstance lessening the value of the estate, the purchaser is not under a corresponding obligation to com- municate any circumstance which may enhance its value. So that, for instance, a man knowing of the existence of a mine under an estate, may validly deal *with the owner who is ignorant of this fact, without any communication of L J it.(/) And so where a first mortgage, with power of sale, having (/) Fox V. Mackicth, 2 Bro. C. C. 100, 420. was to transfer the stock to the bank, to prevent a public disclosure, he with- held from B. On obtaining the stock, he immediately transferred it to the bank. Held, that A^s concealment of his situation and purpose was a fraud upon 5., and that the bank could not retain the stock for its demand against -^. But where a vendee, in conversation with a vendor, charged him with havmg concealed an incumbrance upon the land sold, and the vendor neither admitted nor denied it, it was held that this was not sufficient evidence of fraudulent concealment to justifj' a rescission of the contract. Halls v. Thompson, 1 S. & M. 443. jJt law it is well settled that a vendor may be silent, leaving the purchaser to require a warranty. He may be silent and be safe. To vitiate the sale there must be active fraud : that is, if by acts or words he leads the buyer astray, then he exposes himself to the consequences of an action at law. Pars. Contr. vol. 1, p. 461. But see the case of Hill v. Gray, 1 Stark. 434. There a picture was sold which the bu3'er believed had been the property of Sir Felix Agar, a circumstance which might have enhanced its value in his eyes. The seller knew that the purchaser was laboring under this dehision, and did not remove it ; but it did not appear that he either induced or strengthened it. In an action for the price, Lord Ellenborough nonsuited the plaintiff, saying that the picture was sold under a deception. The seller ought not to have let in a suspicion on the part of the purchaser, which he knew enhanced its value. He saw that the purchaser had fallen into a delusion, but did not remove it. From the report itself it might be seen that Lord Ellenborough here held that silence alone was a fraudulent concealment, sufficient to vitiate the sale. But this is explained in the late English case of Keates v. Cadogan, 2 Eng 318 — Jervis, C. J. saying that in Hill v. Gray there was "a positive aggressive" deceit. "Not removing the delusion might be equivalent to an express mis- representation." The case of Brown v. Montgomery, 20 N. Y. (6 Smith,) 287, seems to be in point. The court of appeals there decided that it is a fraudulent suppression avoiding the sale of commercial paper, for the vendor to withhold information that the makers' check upon the bank in which they kept their account, had been protested, though the vendor's informant accompanied his statement 292 FRY ON SPECIFIC PERFORMANCE OF CONTRACTS. entered into an arrangement not amounting to a binding contract for the advantageous sale of part of the mortgaged property, afterwards bought up at a reduced price the interest of the second mortgagee without informing him of the arrangements for sale, a bill to set aside the sale by the second mortgagee, on the o-round of the suppression of information b}-^ the purchaser, was dismissed by the master of the rolls, and subsequently by the lord chaucellor.(^) Nor is the purchaser liable to an action for deceit for misrepresenting the seller's chance of sale, or the probability of his getting a better price than that oiFered.(A) But in equity the purchaser must not make any false representa- tion as to the estate, or go any further than silence ; "A very little," said Lord Eldon, "is sufficient to affect the application of that principle. If a word, if a single word be dropped which tends to mislead the vendor, that principle will not be allowed to operate." Accordingly in the case(e) before his lordship, the purchaser having made such suggestions of what was not true, the contract was set aside : and in a recent case,(7u) where a so- licitor bought of a person in difficulties who was selling without (e) Dolman v. Nokes, 22 Beav. 402. {k) Davis v. Abraham, Week Rep. 1856, {h) Vernon v. Keys, 12 East, 6,32. 18,57, 465, (Wood, V. C.) (?) Turnei- v. Harvey. Jac. 169, 178; Davies V. Cooper. 5 My. & Cr. 270. with the expression of his opinion that the makers were perfectly solvent. A distinction is taken between the case under consideration and that of Nichols V. Pinner, (18 N. Y. 295.) "The cases are essentially different. There we decided that where a merchant, knowing himself to be insolvent, purchases goods without disclosing the fact, there being no inquiry made, he is not necessarily guilty of fraud, as he may honestly believe that he may go on and retrieve his affairs. Where so much of the trade of the country is conducted without invested capital, or on borrowed capital, it must often happen that a merchant who is ultimately successful, has known periods of commercial dis- aster when his property would not pay his debts. It would be too strict to hold, that, under such circumstances, he must in all cases go into liquidation, or expose himself to probable bankruptcy by disclosing his condition. But the case does not countenance the position, that a dealer who has been of known standing, but who has suddenly failed in business, can go to those who are acquainted with his former character, but who have not heard of his failure, and innocently purchase their property on credit." FRAUD. 293 professional advice, and untruly represented the nature and title of the property as such that no one but a professional man would purchase it, specific performance was refused. [2] § 465. We have already seen in other cases that suppression of a fact may be a circumstance influencing the discretion of the court, though not amounting to traud.(/) (I) See ante, § 242. [2] But in Bowman v. Bates, 2 Bibb, 47, u4. discovered a salt spring on B.'s land, and puichased the land at the ordinary price, concealing the fact of the discovery. Held that the contract should be rescinded. In Drake v. Collins, 5 How. Miss. 253, however, where property sold low, on execution, it being supposed to be the subject of a prior mortgage, when the fact that it was not might have been easily ascertained, it was held that the mere fact that the purchaser knew to the contrary was not ground to set aside the sale. Living- ston V. Peru Iron Co., 2 Paige, 390, is an authority in accordance with the English decisions, as given in the text. In this case, Walworth, Ch., in deliv- ering the opinion of the court, said, that although it had been held that the suppression of a material fact, by either party to the contract, was sufHcient far an avoidance of the contract, (Perkins v. M'Gavock, Cook's Rep. 417,) that the courts of New York had never gone that length; although "very slight circumstances in addition to the intentional concealment of a fact, have been considered sufficient to constitute a fraud upon the other party." In the case before him — which was this — the vendee applied to the vendor, to purchase a lot of wild land, and represented to him that it was worth nothing, except for the purpose of sheep pasture, when he knew that there was a valuable mine on the lot, of the existence of which the vendor was ignorant — he decided that there was such fraud as would avoid the purchase. See the cases of AVen- dell V. Fosdick, 13 John. Rep. 325 ; Weller v. Colden, Id. 395, and Turner v. Harvey, Jacob's Rep. 178, cited in the course of the chancellor's opinion. At law, although the principles which must govern the conduct of the ven- dor, are at exact variance with those of equity, (Pars. Contr. 1 Vol. p. 461,) those which relate to the acts of the vendee, or purchaser, seem to be in perfect unison with them. The leading case on the subject is said to bo Laidlow v. Organ, 2 Wheat. 178, (Pars. Contr. 1 Vol. p. 461.) The facts were these: One Shepherd, interested with Organ, and in treaty with Girault, a member of the firm of l.aidlow & Co., at New Orleans, for a quantity of tobacco, had secretly received intelligence over night of the peace of 1815, between Eng- land and the United States, which raised the value from thirty to fifty per cent. Organ called on Girault on Sunday morning, a little after sunrise, and was asked if there was any news by which the price of tobacco might be en- hanced; but there was no evidence that Organ had asserted, or suggested. 294 FRY ON SPECIFIC PERFORMANCE OF CONTRACTS. § 46G. The employment of a puffer at auctions is in r*9nQl *^*^'^^'^ circumstances regarded as fraud, which will pre- ■^ vent the enforcement of the contract made at the auc- tion. The cases seem to fall under three heads, which it will be desirable to discriminate. § 467. (1) Where the sale is" announced to be without reserve, this excludes any interference on the part of the vendor which can under any possible circumstance affect the right of the highest bidder to have the property knocked down to him, and that without reference to the amount to which the hio:hest biddinij shall go.(m) Therefore, the employment by the vendor in such a sale of one or moie persons to keep up the price on his behalf amounts to fraud in the contemplation of all courts, (») and is a bar to specific performance. (o) Where the vendors, who were assignees of an insolvent, put up his life interest in certain prop- erty for sale by auction without reserve, having previously en- tered into an arrangement with a person whose wife was inter- ested in remainder, that he should bid X35,000 and be the pur- chaser, unless a higher sum should be bid, and this fact was concealed, it was held to taint the sale to the defendant at the auction, though he purchased for £50,000.(j9) [3] § 468. (2) Where there is no declaration that the sale is with- out reserve, and the vendor employs one person to prevent the property going at an undervalue : this is not fraud in the con- (m) Per Lord Cottonham in Robinson v. (o) Meadows v. Tanner, 5 Mad. 34. Wall, 2 Phil. 375. ( p) Robinson v. Wall, 10 Beav. 61 ; S. C. 2 (n) Tiiornett v. Haines, 15 M. & W. 367, Phil. 373. •where the earlier cases are cited. any thing to induce a belief that such news did not exist ; and under the cir- cumstances the bargain was struclc. Marshall, C. J., delivered the opinion of the court, to the eflect that the buyer was not bound to communicate intelli- gence of extrinsic circumstances, which might influence the price, though it were exclusively in his possession ; and that it would be difficult to circum- scribe the contrary doctrine within proper limits, where the means of intelli- gence are equally accessible to both parties. [3J See Morebead v. Hunt, 1 Dev. Ch. 65; Hinde v. Pendleton, Wythe, 144. FRAUD. 295 templation of a court of equity, (5') but it is in that of a court of la\v.(r) [4] § 469. Inasmuch as a contract, if originally void at law, ought not to be enforced by equity, the defendant in a suit for specific (7) Smith V. Clarke, 12 Vcs. 477 ; Wood- (r) Per Lord Wensleydulc in Tliornett v. ward V. Miller, -2 Coll. C. C. 279 ; Flint v. Haines, U) M. &. W. 372 ; Crowder v. Aus- Woodin, 9 Ha., OlS ; Bramley v. Alt, 3 Ve3. tin, 3 liing. 3G8. G20. [4] But in Woods v. Hall, 1 Dev. Ch. 411, where a person interested inland sold at auction, employed another to bid for him, and represented the bid made by such person as made on his own account, the sale was held to be fraudulent and was set aside. According to the early English decisions, the employment of puffers, by an owner, to bid for him at auction, was a fraud upon the real bidders. He could not enhance the price by a person privately employed by him for that purpose ; but if he were unwilling that his goods should be sold at an under price, he might order them to be set up at his own price, and not lower, or he might previously declare, as a condition of the sale, that he reserved a bid for himself. Bexwell v. Christie, Cowp. 395. Howard V. Castle, 6 T. R. G42. And this doctrine seems to be approved in 2 Kent, 538, 539, (5th ed.) and 1 Story's Eq. Jur. § 293. It has been adopted also in later Enghsh cases. Crowder v. Austin, 2 Car. & P. 208. Wheeler v. Collier, 1 Mood. & Walk. 123. Fuller v. Abrahams, 3 Brod. & B. 116. S. C, 6 Moore, 316. There are other cases, however, which have admitted a qualification of this doctrine. Among these is that of the text and Steele v. Ellmaker, 11 S. & R. 86. It has been decided in several American cases, that contracts by which one party stipulated not to bid against another at an auction sale, or an agreement by one to bid for the benefit of himself and the other party, were contrary to publicj^ policy, and a fraud on the vendor. Jones v. Caswell, 3 John. Cas. 29. Doolin v. Ward, 6 John. 194. Wilbur v. Howe, 8 id. 444. Thompson v. Davies, 13 id. 112. Dudley v. Little, 2 Ham. 505. Picatt v. Oliver, 1 McLean, 295. Gulick v. Ward, 5 Halsted, 87. According to other de- cisions, the validity of such agreement is made to turn on the quo animo, and they will be valid if made bona fide for the sole purpose of jireventing a sacri- fice of the property. Wolfe v. Luyster, 1 Hall, 146. Jenkins v. Hogg, 2 Const. (S. C.) 821. Smith v. Greenlee, 2 Dev. 126. Small v. Jones, 1 Watts & Serg. 128. Phippes v. Stickney, 3 Mete. 384, where the subject is discussed with clearness and the authorities are carefully examined. But an association of bidders with a design to stifle competition, is a fraud upon the vendor. Smith V. Greenlee, 2 Dev. 126. See also Morehead v. Hunt, 1 Badg. & Dev. Eq. 35: Moncrief v. Goldsbor,)ugh, 4 Harr. & M'Hen. £81; Troughton v. Johnstone, 2 Ilayw. 328. Note in Bramley v. Alt, (Sumn. ed.) 3 Yos. 020. 296 FRY ON SPECIFIC PERFORMANCE OF CONTRACTS. r*9ini performance may avail himself of *the defense furnished by this fraud at law, formerly by means of a trial of the question at law.(«) § 470. (3) Even in the absence of any declaration that the sale is without reserve, the employment of two or more persons as puffers is in all courts considered as fraudulent, inasmuch as only one person can be necessary to protect the property, and the employment of more can only be to enhance the price.(<) § 471. Although companies and other corporations are from theii- nature incapaljle of fraud, their contracts are affected by the fraud or misrepresentation of their agents, the benefit of which is to be enjoyed by the company, in the same way as if the fraud or misrepresentation could be made by the abstraction called the corporation, and had, in fact, been so made by it.{u) § 472. The questions how far the fraud of the agent operates at law,(v) or in a suit for rescission, (tt;) are of considerable diffi- culty. But it seems to be clear on general principles, that it furnishes a sufficient defense to a suit for specific performance in equity. § 473. It is competent for the party imposed upon to waive the fraud, and acts of adoption may amount to a waiver : but to do so, they must be done with a full and entire knowledge of all the facts.(x) Thus where a defendant, having full in for- r^^l . -| mation of the fticts of the case, gave *a notice to rescind in case the plaintiff did not perform his part by a certain time, and by this notice the defendant offered to perform his part of the agreement, he was held to have waived any mis- representation which might have been made.(y) (s) Woodward V. Miller. 2 Coll. C. C 279. M'Q. 103; Fuller v. Wilson. 3 Q. B. 58,68; («) Perj Lord Wensleydale in Thornett v. Wilde v. Gibson, 1 Ho. Lords, 605, 615; Hail es, 15 M. & W. 372, See also Kex v Bern v. Nichols 1 Saik. 'JS9; per Lord War.-h, 3 Y. & J. 331; Braniley v. Alt, 3 Lyiulhurst in>AUwood v. Small, 6 CI. & Fin. Ves. 620. 413. (M) Ranger v. Great Western Railway (w) See i 463, Coniijany. 5 Ho. Lords, 72; National Kx- (r) Per Lord 'Lvndhurst in Attwood v. change Company v. Drew, 2 M"Q. 103, Small, 6 CI, & Fin, 432. As to rescinding (v) Cornfoot v. Fowke. 6 M, & W. 358 ; on the ground of fraud, see post. ^ 704. National Exchange Company v. Drew, 2 (y) Wachryde v Weekes, 22 Beav. 533. MISTAKE. 297 ♦CHAPTER XIV. [*212] OF MISTAKE. § 474. There being; two pailics to every contract, it follows that mistake may be, 1st, the mishikc of the defendant alone ; or 2ndly, the common mistake of both plaintiff and defendant ; or 3rdly, the mistake of the plaintifl' alone. The first and second species will require discussion, as grounds of defense to a suit for specific performance ; the second and third will both raise the question how far the plaintiif may enforce performance with a correction of the error. It will be necessary to consider mis- take not only as a defense to a specific performance, but alao to some extent at giving a plaintifl' a right to a rescission or recti- fication of the contract. § 475. The principle upon which equity proceeds in those cases where mistake is the gi'ound of defense, is this : — that there must be an airreement bindino- at law, but that this is not enough, — that to entitle the plaintiff" to more than his legal remedy, the contract must be more than merely legal. It mu.st not be hard or unconscionable ; it must be free from fraud, from surprise, and from mistake : for where there is mistake, there is not that consent which is essential to a contract iu equit}^ : non videnlur qui errant cons end re. {a) [IJ § 476. Again, the Statute of Frauds has not affected the situ- ation of a defendant against whom specific *performance r^j^-i qi is sought, (i6) and it therefore leaves it open to him to produce any evidence for his purpose, which is not to establish [a] Dijj. Lib. 50, tit. 17, 1. 116. («) Per Sir Wm. Grant in Clarke v. Grant, 14 Ves. 519. [1] It is a matter of course for courts of equitjr to grant relief on the ground of mistake. Chamberlain v. Thompson, 10 Conn. 243. Elmore v. Austni, 2 Root, 499. But in jNIassachusetts the court has no jurisdiction in equity, in cases founded only in mistake. Gould v. Gould, 5 jMetc. 274. And in Maine this head of jurisdiction has been expressly conferred on the court. Robinson V. Sampson, 23 Maine, 388. FKY— 20 298 FRY ON SPECIFIC PERFORMANCE OF CONTRACTS. an agreement, but to rebut an equity which the plaintiff insists has arisen out of an agreement. § 477. The cases of mistake have, it is true, seemed to pre- sent rather peculiar difficulties to the admission of parol evidence, ))ecauso it has been argued that to do so is to overrule the Statute of Frauds and to contradict the writing by parol. Its admission is however the settled doctrine of the court, and that not merely for purposes of defense to a specitic performance, but, as we shall hereafter see, for the purpose of correcting the mistake. [2] Tlie question of its admission by way of defense was much de- [2] It is a well established rule in this country that parol evidence is always admissible, to vary or explain written agreements founded in mistake : and this notwithstanding it is excluded by the general laws of evidence ; it is an exception to the prevailing rule. Peterson v. Grover, 20 Maine, 3G3. Blanchard V. Moore, 4 J. J. Marsh. 471. Huston v. Stable, Id. 130. Anderson v. Bacon, 1 A. Iv. Marsh. 48. Perry v. Pearson, 1 Humph. 431. Chamness v. Crutchlield, 2 Ired. Ch. 148. Harrison v. Howard, 1 id. 407. Van Ness v. City of Washington, 4 Pet. 232. Gibson v. Watts, 1 McC. Ch. 490. Goodell V. Field, 1-5 Verm. 448. Though there are cases of a different purport. Harris V. Dinkins, 4 Dessau. 60. Wesley v. Thomas, 6 Har. & J. 24. Watkins v. Stockett, G id. 435. Sutherland v. Crane, Walk. Ch. 523. But parol testi- mony of what took place immediately before the execution of a written in- strument, is inadmissible for the purpose of proving mistake in drawing the instrument, but not even in a clear case of departure from instructions in draw- ing the instrument, against a bond fide purcliaser for a valuable consideration, claiming under the instrument and without notice of the mistake. Scott v. Burton, 2 Ash. 312. Parol evidence is inadmissible to show a mistake in law as a gi'ound for reforming a written instrument founded on such mistake. Wheaton V. AVheaton, 9 Conn. 96. Therefore where it was stated in a bill in chancery, brought by Ji. against B., his father, that it was agreed between the parties that Jil. should purchase of B. a farm of the value of ^4000, for which A. should give B. two promissoiy notes, one for §'2000, payable on demand, with six per cent interest, the other for the same amount, with five per cent in- terest, payable at the decease of B., and then to be delivered up unpaid to j1. as his portion of B.^s estate : and the parties thereupon applied to a justice of tke peace to draw the writing necessary to carry such agreement into effect, but by accident and through their own want of knowledge, they failed to give him the information requisite for this purpose, and he drew the last mentioned note payable in three years, and omitted the stipulation that it should be de- livered up at the death of B. unpaid, which note was signed by j1., he being gnorant of the operation of law thereon : that B. had brought an action on MISTAKE. 209 bated in the case of the Marquis Tovvnshend v. Stangroom,(c) ■where Lord Eldon said, "It cannot he said, that because the legal import of a v/ritten agreement cannot ))e varied by parol evidence, intended to give it another sense, therefore in equity, when once the court is in possession of the legal sense, there is nothing more to inquire into. Fraud is a distinct case, and per- haps more examinable at law : but all the doctrine of the court as to cases of unconscionable agreements, hard agreements, agreements entered into by mistaive or surprise, which therefore the court will not execute, must be struck out, if it is true, that because parol evidence should not be admitted at law, therefore it shall not be admitted in equity upon the question, -whether, admitting the agreement to be such as at law it is said to be, the party shall have a specific execution, or be left to that court, in which, it is admitted, parol evidence cannot be introduced. "(tZ) "No person," said Lord Redesdale,(e) "shall be charged with the execution of an agreement, who has not, either by himself *or his a^ent, sio-ned a written agreement; but the statute r»^, .■^ . . I 2141 does not say that if a written agreement is signed, the •- -' same exception shall not hold to it that did before the statute." § 478. It follows from what has been stated, that where the defendant has been led into any mistake or error, the plaintiff can- not enforce the contract. Therefore, where in a sale by auction, the plaintiff had induced the defendant, Avho was the vendor, to think that he should not bid, and so put him oti' his guard, and the estate was, by a misapprehension on the part of the person employed to make the reserved bidding, allowed to be knocked down to the plaintiff, the court on the ground of mistake, though there was no fraud, declined to enforce the sale.(y) In another case((7) the estate was sold in lots : the particular stated that (r) 6 Ves 328. ( /") ^lason v. Armitage, 13 Ves. 25 ; Tym t. [d) P. 333. Accordingly Mauser v. Back, 6 Blackburn, 3 Ves. 34. Ha. 443. (?) Iligginson v. Clowes, 15 Ves. 516. (el lu Clinan v. Cook, 1 Sch. & Let". 39. such note, and was endeavoring to enforce the collection of it, praying for an injunction and other relief, it was held: 1. That the alleged mistake was not a mistake in any matter of fact, but a mere matter of law. 2ndl3'. That parol evidence was inadmissible to prove the agreement set forth, and consequently that the bill must be dismissed. lb. 300 FRY ON SrECIFIC PERFORMANCE OF CONTRACTS.* the timber on lots four and five was to be taken at a valuation : in addition to this, one of the conditions of sale specitied that the purchaser Avas to take the timl)cr (speaking generally with- out reference to any particular lot) at a valuation : Sir AVilliam Grant said that the express declaration as to lots four and five was likely to mislead a purchaser as to the meaning of the con- ditions, that supposing that the right construction of the condi- tion was that it applied to all the lots, it would be inequitable to enforce specific performance of the contract. [3] § 479. In the preceding cases it will be observed that the plaintiff contributed to the mistake of the defendant. But in cases of mistake purely due to the defendant himself or his agent, the court will likewise refuse specific performance : indeed, it will furnish active assistance on the ground of the mistake of the party himself as well as of another, as is strongly shown by a case in which a professional man was relieved at his suit from an error in a *deed of his own drawing.(A) The cases too L J on intoxication furnish an analogy to this doctrine : for (h) BaU V. Storie, 1 S. & S. 210. [3] The utmost good faith is required by equity in these cases; and there- fore in sales of property, for instance, the seller is bound to act strictly in fair- ness, and if he mislead the purchaser by a false or mistaken statement as to any one essential circumstance, the sale is voidable. Doggett v. Emerson, 3 Story, 100. Even a mistake of the legal effect of an instrument will be relieved against when it can be shown to have been brought about by the misrepresent- ations or false assurances of the plaintiff. Broadwell v. Broadwell, 1 Gilra. 599. See also Drew v. Clarke, Cooke, 374. Callender v. Colegrove, 17 Conn. 1, is a forcible authority on this point, where a plaintiff sought relief on these grounds. On a bill charging a combination between the defendant and others to defraud the plaintiff, in the sale of a mercantile concern, a committee was appointed, which, Avithout finding any fraudulent intent, stated in their report a train of circumstances brought about by the management of the defendant, by which the plaintiff was deceived and injured; and the court adjudged thereon that the contract of sale was fraudulent and void : but on a motion in error made by the defendant, it was held, as it appeared from the finding of the committee, the plaintiff entered into the contract fi'om a mistake as to the real nature of the concern, in consequence of which the substantial object of the contract was defeated, this was sufficient ground for setting it aside. MISTAKE. 301 that circumstance is a ground of defense, though it may have been in nowise brought about by the phiintiff.(2') [4J § 480. On this principle, where a person who Avas employed by the vendor of some property to bid for him, came into the auction room, and after hearing the description of a lot which was perfectly difllerent from that for which he was engaged to bid, kept bidding in a hasty and inconsiderate manner for, and ultimately purchased, this lot, which by his own gross mistake he thought to be the lot for which he was to bid, the court re- fused specifically to carry out the sale.(/c) § 481. So where a vendor had revoked the authority of the auctioneer as to part of the property, and the auctioneer inad- vertently sold the whole, the court refused specific performance, though the purchaser was justified in believing that he purchased all he claimed by his bill.(/) Again, where a description of parcels was prepared by the vendor's solicitor from a pre,vious description, which had been prepared by another solicitor on the report of a surveyor, and the description turned out to be erroue- (j) See ante, § 244. (I) Manser v. Back, 6 Ha. 443. (/.) Malius V. Freeman, 2 Ke. 25. [4] The West'n R. R. Corp. v. Babcock, 6 Mete. 346, is an analogous case. It was there held that a defendant may show, that without gross laches of his own, he was led into a mistake by some uncertainty or obscurity of the descriptive part of the agreement, so that it applied to a dilFerent subject from that which he understood at the time, although he was not misled by any misrepresent- ation of the other party : or he may show that the bargain will operate in a diffierent way from that which was contemplated by the parties when they executed it. But Mortimer v. Pritchard, 1 Bailey's Ch. 505, expresses, seem- ingly, a different view. It is said in that case that a mistake, such as would entitle a party to relief, must have been made under the influence of false ap- pearances, and not merely from the suggestions of the party's own mind. The grounds of the decision in Post v. Leet, 8 Paige, 337, made by Walworth, Ch. do not appear unapplicable to the point in question. There the terms of a sale, by a master, were that the lands were sold free from incumbrances, and that all taxes and assesments thereon should be paid out of the purchase money. Held, that the purchaser could not be compelled to take the land subject to an assessment, for a street, laid out and used by the public prior to the sale, though the assessment had not been fonnally confirmed until afterwards, it appearing that the purchaser supposed such assessment included in the terms of the sale; and a resale was ordered. 302 FRY ON SrECIFIC PERFOKMANCE OF CONTRACTS. Oils as to quantity, the court would not enforce the sale on the vendor, unless the case were one tor compensation, and the pur- chaser would submit to it.(w^) Where a vendor sold a man- or, being at the time ignorant of its exact extent, and both parties at the time of the contract believed that what it included was some- thing different from what it really did, and the manor proved to comprise valuable property that the vendor did not know to be within it, the purchaser's bill for specific performance was dismissed. (?i) r*9in *^ ^^^' ^^'^^^^6 ^ defendant was tenant for life of an estate under a settlement which contained a proviso, that if he purchased and settled an estate in fee simple in pos- session in some convenient place or places of a value equal to or greater than the estate comprised in the settlement, then this estate should become the property of the tenantfor life ; and he, imasiuinir that he had, with the concurrence of his wife, an ab- solute power of disposition over the settled estate, entered into a contract for sale : Sir Thomas Plumer refused to carry it into effect by an exercise of the proviso in the settlement, consider- ino; that such a performance of the contract would be attended with great difficulty, and that the defendant liad not contracted for that purpose or with that intention. (o) § 483. We may now proceed to consider the effect of a parol variation set up by the defendant as a ground for refusing the spe- cific performance of a written agreement alleged by the plaintiff. § 484. (1) Where the parol variation set upTjy the defendant shows that after the parties to the contract had mutually agreed with one another, an error occurred in the reduction of the agree- ment into writing, and it appears that the written agreement varied according to the defendant's contention represents the true contract between the parties, the court will, it seems, en- force specific performance of the contract so varied. [5J (»?i) Leslie V, Thompson, 9 Ha. 268. See ley. 1 Y. & C. C. C. 17.5 ; Neap v. Abbott, also per Lord Cotteuhani in Alvanley v. C. P. Coop Rep., (1837-1838,) 3:i3. Kinnaird, 2 M'N. & G. 7; Ilelshani v. Lang- («) Baxendale v. Scale, 19 Ueav. 601. (v) Howell V. George, 1 Mad. 1. [5] Bradford v. Union Bank of Tennes.sce, 13 How. U. S. 57, is an ample authority upon this branch of equity. It is laid down in that case, that where MISTAKE. 303 § 485. Thus, where a bill was hroiiglit for the specific per- formance of an agreement to grant a lease at a rent of XU per annum, and the defendant insisted that it ought to have been a term of the agreement that the i)laintitf should pay all taxes: Lord Hardwicke granted specific performance, and directed that the terms of the verbal agreement should be carried out l)y the covenants to be inserted in the lease. (j:*) Again, where a bill prayed the execution of an ^agreement for the sale of an ^^ ^, estate, and the defendant resisted and proved parol dec- ■- -' laration by the auctioneer as to a right of common, and that previously to the sale the particular had been altered as to a certain right of common : the plaintiff proposed that his bill should be dismissed, but the lord chancellor pursued the course which the defendant insisted on, which was specifically perform- ing the agreement as contended for by the defendant, thus saving the expense of a cross-bill by him. (5^) ^ 486. (2) But Avhere the mistake or parol variation set up by the defendant does not show a mere mistake in the reduc- tion of the contract into writing, but that one party understood one thins: and the other another, there is no such contract as the court will enforce, and the plaintifl"'s bill is consequently dis- missed. [6] (p) Joj-nes V. Stath.ira, 3 Atky. 388. (9) Fife v. Clayton. 13 Vcs. 546. See also Gwyun v. LelUbridjje, 1-t Ves. 585. one party to a contract in writing, brings a bill in equity for a specific per- formance thereof, and the defendant in his answer, submitting to a specific performance of the real agreement, alleges that the written contract was entered into bj^ mistake, and under a misapprehension of the facts, and estab- lishes this by evidence, he is entitled to a specific performance of the agree- ment as proved, even against the claim of the plaintiff to have his bill dismissed. See Bradbury v. White, 4 Green, 391. Upon this same principle, in Arnold v> Arnold, 2 Dev. Ch. 467, where a vendor of a chattel received payments by the vendee, with notice that he mistook the price of the sale, the court compelled a conveyance in favor of the vendee, at the price understood by him. See Ferussac v. Thorn, 1 Barb. Sup. Ct. R. 44; and Wells v. Kruger, 5 Paige, 1G4. [G] Where there is doubt whether the parties understood the contract alike, specific performance will be denied. Therefore where a block of land, which had been subdivided into several distinct lots, was put up and sold at auction, and was struck off to the purchaser at a specific sum, and the vendor, upon a bill filed for a specific performance, insisted and proved that the premises were 304 FRY ON SPECIFIC FERFOKMANCE OF CONTRACTS. § 487. Therefore, where the court thought that the plaintiff and defendant had both been mistaken in a contract which con- tained certain ambiguous conditions as to the payment for tim- ber, the bill was dismissed. (7-) § 488. The same result follows where, from any other circum- stance, the enforcement of the parol variation set up by the de- fendant would be unfair on either party. Accordingly, where the plaintiff set up a certain agreement which the defendant successfully resisted by parol evidence of a subsequent contract, and the phuntiff insisted on a performance of the agreement so set up ; Sir John Strange refused to grant it, on the ground that it would be a surprise on the defendant to insist, under the prayer for general relief, on the performance of an agreement which was not put in issue by the record. (.s) Again, where the r*oi«l *^^efendant proved a parol variation, and a great lapse of '- " -■ time had occurred, and compensation in respect of the term in dispute must have been allowed, if the contract had been enforced, for the period whilst the doubt about the terms of the contract had been subsisting, the plaintiff's bill was dis- missed, but without costs. (^) § 489. (3) Where, as is often the case, the court does not decide that the parol variation falls clearly under either of the previous cases, but merely that the defendant contracted under mistake, it (?) Clowes V. ITisrginson, 1 V. & B. 524. Sir Wtn. Grant's statement of this case in See the jiidi^nient in this case observed on Price v. Dyer, J7 Ves. 364. bv Lord St. Leonards, Vend. & Pnr. 13.3. {t) Garrard v. Grinling, 3 S\v. 244. "(s) Legal V. Miller, 2 Ves. Sen. 299. See put up and sold by the lot, and the purchaser, in his answer, insisted that the premises were put up as one entire parcel, and he bid for the premises at a price which was for the entire block ; and the evidence was such as to render it doubtful whether the defendant understood that the premises were put up and sold by the lot, the court decided that the complainant was not entitled to a specific performance of the contract. Coles v. Bowne, 10 Paige, 526. See James v. The State Bank, 17 Ala. 69; Story's Eq. Jur. § 134. Lyman v. United States Insurance Company. 17 John. 383, is an authority of the same nature. There, the appellants applied to the respondents for insurance on a brig, as a Portugese vessel ; but the policy was made out for an J^merican ves- sel. It was apparent that there was no fraud in the case, but that the parties had contracted in mutual misunderstanding and error. Piatt, J. was therefore of the opinion that, clearly, no relief could be granted. MISTAKE. 305 puts the pliiintiffto his election either to have his l)ill dismissed, or to have the agreement execnted with the parol variation. § 490, Thus, in Hijrgiiison v. Clo\ves,(2<) where the conditions of sale were likely to have misled the defendant, and the defend- ant contended for a dillerent construction from that of the plain- tiff, Sir William Grant offered the plaintiff" either to have his bill dismissed, or to have the contract executed on the defend- ant's construction. The counsel for the defendant contended that it "was not competent to the plaintiff" to have his l)ill dis- missed, but that the defendant, without filing a cross-bill, might have a speciffc performance of the agreement. Sir William Grant, however,held that that right existed where the defendant's construction was adopted by the court ; but that where, as in the case before him, the court did not decide that the defend- ant's construction Avas right, l)ut oidy that he had contracted under a mistake created by the plaintiff", the l)ill was merely dis- missed. In a subsequent suit(t') on the same agreement, where the parties were inverted. Sir Thomas Plumer, holding that there had been a mistake on both sides, refused specific per- formance on the construction of the defendant in the first suit. § 491. In Ramsbottom v. Gosden,(?y) where the written *agreement confined a referenceof expenses to those of con- r^gi ni veyance, but the defendant proved by the parol evidence of the attorney that it was the intention of both parties that the plaintiff", who was the purchaser, should also pay the expenses of making out the defendant's title, Sir William Grant put the plaintiff" to his election, either to have the agreement performed in the way contended for by the defendant, or to have his bill dismissed. And in a subsequent case,(x) where the defendant proved 'a parol variation. Sir William Grant again left the plaintiff" to have a specific performance with this variation, or to have his bill dismissed. § 492 In a case(//) before Sir Thomas Plumer, where parol evidence was admitted on behalf of the defendants to show that (m) 15 Ves. 516. liave been merely in the redaction of the (c) 1 V. & B. 524. ag-reemeiit into writini? ? (!(.') 1 V. it li. 165. Query, why was not (r) Clarke v. Grant, il Ves. 510. specific pertbnnance enforced on the de- (y) Lord Gordou v. Maniuid of Hertford, feadant'3 conteutioa, as tlie error appears to 2 Mail. 106. 306 FRY ON SrECIFIC rEllFORMANCE OF CONTRACTS. an agreement by several persons to enter into bonils in X1500 ought to have been, for one joint bond in that amount, l)y all : the vice chancellor left it to the plaintifl' to have his bill dis- missed, or to take a decree for the joint bond, or to take an issue on which the witnesses could be examined. . § 493. In Clarke v. Moore, (s) where a landlord sought a specific pertbrmance of an agreement for a lease, and the defendant set up a parol agreement to abate the rent, to which the plainlifTat the bar submitted, the lease was directed with the aljatemeut : and in another case,(«) where it appeared that, in addition to the written contract, there had been an understanding between the agent of the plaintiff and the defendant as to payment for timber and certain expenses, the plaintiff consenting to adopt the terms as part of his contract, specific performance was granted. , *§ 494. And where there is a stipulation which one of •- ^ the contracting parties may reasonaljly have understood to be implied in the contract, and did so understand, — as for in- stance, the insertion of a usual clause in a lease, — specific per- formance will not be enforced against such party except with such condition included. (6) And where a plaintiff sought re- lief on the ground of a covenant for renewal, which had for one hundred and fifty years been acted on in a manner different from its terms, — namely, by continually increasing the fine, and not the rent : the court held that the covenant could not be carried into execution according to its original terms, but might be ou the plaintifi"'s submitting to a conscientious modification of it, to meet the circumstances of the case.(c) In this instance acqui- escence, and not mistake, was the ground of the variation. [7j (z) 1 Jon. & L. 72.3. (b) Ricketts v. Bell, 1 De G. & Sm. 335. (a) London and Birmingham Railway (c) Davis v. Hone, 2 Sch. & Let'. 341. Company v. Winter, Cr. & Pli. 57. ' [7] And a court of equity is competent to correct or reform any material mistake, in agreements or deeds, occasioned by the omission or insertion of material stipulations, whether it be simply upon parol testimony or more cogcut proof. Tilton v. Tilton, 9 N. H. 385. Wemple v. Stuart, 22 Barb. 154, is an important case in illustration. The action was commenced to re- cover damages for the non-performance of a contract made by the defendants, MISTAKE. 307 § 405. The parol variation may be alleged I)y the plaintili" for the purpose of oftering the defciiclaiit his election •,{d) or it may be set up by the defendant by way of defense. If, in the al)- sence of its being thus alleged, it comes out on the evidence, the {(1) Robinson v. Page, 3 Kuss. 111. with Gardinier and Yandenburgh, of whom the plaintifF, AVcnijilc, was the as- signee, in which the defendant sold and agreed to deliver to (Jardinier and Yan- denburgh certain merchantable plank to the amount of 30,000. The defend- ants further agreed to deliver to G. and V., in addition to this quantity, all the merchantable plank of the description agreed between them, that they, the de- fendants, might saw at their mill the ensuing winter, at certain prices. The complaint alleged a neglect and refusal by the defendants to perform the con- tract. It also alleged an assignment by G. and F. to the plaintiffs. The de- fendants, in their answer, alleged that it was the intention of the parties to the contract to sell and purchase the plank which the defendants then had at their mill, to the number of 30,000, if they had so manj-, and if not, then it was the intention of the defendants to sell, and of G. and I', to purchase the plank they then had sawed at the mill and no more. And the defendants in- sisted that such contract should be so construed, and should be reformed in accordance with such intention. This allegation was not denied in the reply of the plaintiffs. Paige, J., in deciding the case, said : " The statements in the answer show no right to demand a reformation of the contract, by conforming to the alleged intention of the parties. A written contract, in the absence of fraud, can only be reformed where it is shown, bj'^ satisfactory proof, that there is a plain mistake in the contract, by the accidental omission or insertion of a material stipulation, contrary to the intention of both parties, by expressing something different in substance from the truth of that intent, and under a mutual mistake. (1 Story's Eq. Jur. §§ 152, 5, 6, 7. 2 John. Ch 595.) The answer, in setting up the mistake in the written contract, should have stated that the paities agreed to sell and purchase only the plank which the defend- ants then had at their mill; and then should have alleged that in reducing the contract to writing, this limitation of the quantity sold and purchased was ac- cidentally omitted, contrary to the intention of the parties : merely alleging that the parties intended to sell and purchase the plank then at the mill of the defendants, is not sufficient to entitle the defendants to a leformation of the contract in accordance with that intention. To show that a written contract does not conform to the actual agreement made and intended to have been reduced to writing, the actual agreement should be stated, and the mistake in reducing it to writing alleged." Perhaps this case, in requiring the omission or insertion of the stipulation to be contrary to the intention of both parties, may be somewhat more restricted than the rule adopted in the text. 308 FRY ON SrECIFIC PERFORMANCE OF CONTRACTS. court will direct an inquiry in regard to it l)efore disposing of the casc.(e) The court Avill also direct an inquiry where the variation is alleged by the defendant, and so far proved as to raise a suspicion of its existence, and yet not to satisfy the court.(/) § 496. From the great danger which Avould arise, the court will not allow a person to escape from a written agreement on slight parol evidence of mistake on his own part. So, in one ci\se,{f/) Vice Chancellor Wood said that the *oath of the •- ^ defendant that he had inserted in his letter a term which he in fact omitted, and the oath of his agent that he had re- ceived instructions to the like effect, in letting the house, would not have sufficed; but the defendant having in his letter referred to the offer as having been previously made to another party, and that party swearing that in the offer as made to him the term omitted in the subsequent offer was contained, the court held that sufficient evidence of mistake on the defendant's part had been given, and allowed the defense. § 497. Where both parties to a contract are at the time of the contract in mistake or error as to the matters in respect of which they are contracting, this Avill avoid the contract both at law and in equity, and the court will accordingly rescind the contract. § 498. Thus, in Calverley v. Williams, (/<) Calverley brought his bill against Williams for a conveyance of seven acres of copy- hold land, part of an estate sold by auction and purchased by the plaintiff as being comprehended in the advertisement of the sale, and described as in the possession of Groombridge. The defend- ant resisted this claim, on the ground that he did not intend to include those seven acres, or know that they were in the posses- sion of Groombridge. Lord Thurlow, in giving judgment, said, "No doubt, if one party thought he had purchased bona Jide, and the other party thought he had not sold, that is a ground to set aside the contract, that neither party may be damaged ; because it is impossible to say, one shall be forced to give that (e) Parken v. AVhitby, T. & R. 366 ; London {f) Van v. Corpe. 3 My. & K. '2(59. and Birmingham Railwaj' Company v. Win- (a) Wood v. Scat'tli, 2 K. & J. 33. ter Cr. & Ph. 57 ; cl". UeUham v. Langley, 1 (li) 1 Ves. Jun. 211); per Lord Erksine in Y. & C. C. C. 175. Stapylton v. Scott, 13 Ves. 427. jnsTAKE. 309 price for part only which lie intended to give for the whole, or that the other shall ))e oblioed to sell the whole for what he in- tended to be the price of part only. "[8] ^ 499. Where both vendor and purchaser, of an alleged estate in fee in remainder on an estate tail, were ij^norant *that . 1*222] at the time the tenant in tail had suffered a recovery, so ^ -' that in fact no estate in remainder existed, the court rescinded the contract. (/) ((') Hitchcock V. Giddings, 4 Pri. 135. [8] So, where the consideration of a covenant to pay an annuity, M'as the conveyance to the covenantor of a tract of land on tlie right bank of the Ohio river, stated to embrace a coal mine, and the sole inducement to the purchase "was the supposed existence of the coal mine, and it was finally ascertained that no coal mine was embraced within the bounds, equity enjoined perpetu- ally a prosecution at law, to recover the annuity. Dale v. Roosevelt, 5 John. Ch. 104. S. C, 2 Cowen, 129. In Marvin v. Bennett, 8 Paige, 312, although relief was denied in that particular case, because, neither party professing to know the exact quantity of land to be conveyed, the words more or less were inserted in the deed for the express purpose of covering any deficiency that there might be, it was distinctly said by the chancellor that courts of equity give relief in cases of mutual mistake, unaccompanied by fraud, when the property which one party intended to sell, and the other intended to buy, did not in fact exist ; or where the subject matter of the sale is so materially vari- ant from what the parties supposed it to be, that the substantial object of the sale and purchase entirely fails. The rule is otherwise where the parties can- not be put in statu quo. Thus, where land was sold b}' an agent of the owner, who, by mistake, included in the conveyance an adjoining lot, which he and the purchaser supposed to be the property of his principal, but which was not his, and the principal executed the deed without detecting the error, and af- terward, upon discovering the mistake, filed a bill for correction, it was held that, because the parties could not be placed in statu quo, the sale could not be rescinded; and consequently that the bill could not be supported. Kankin v. Atherton, 3 Paige, 143. In Key ton v. Brawford, 5 Leigh, 39, by the mistake of both parties, the description of boundaries of land, in a deed of conveyance, included land of a conterminous proprietor, and the grantee took possession and occupied such land as the grantor had before occupied. It was held that the mistake in the description in the deed should be corrected, but tliat tho vendee was not entitled to any relief on account of the land so by mistake in- cluded in the conveyance. See also Long v. Israel, 9 Leigh, 55G, and hick v. Fulton, 3 Gratt. 193. 310 FRY OX SPECIFIC PERFORMANCE OF CONTRACTS. § 500. But where neither party to the contract is in error as to the mutters in respect of which they arc contracting, hut there is an error in the reduction of the contract into writing comtnon to hoth the parties, there the court interferes for the purpose of reforming the contract, and not of rescinding it.(/i;) For by so doing neither party Avill be damaged : Avhereas I)y, enforcing it as it stood, one party would ])e necessarily injured ; and by re- scinding it, both would be deprived of the benefit of the con- tract. [9 J § 501. Accordingly in the case(^) already stated, where the question was whether a certain seven acres were or were not included in the contract, Lord Thurlow, after stating that if (A) Murray v. Parker, 19 Beav. 305. [1) Calverley v. Williams, 1 Ves. Jim. 210. [9] The interposition of a court of chancery to correct mi.stakes, by ordering a proper deed to be executed, according to the true intent of the parties, is a very ancient doctrine. If, on inquiry, it appears that tlie instrument does not contain what the parties intended it should, and understood that it did, it may be reformed by aliunde proof, so as to make it the evidence of what was the true bargain between the parties. It is wholly immaterial from what cause the defective execution of the intent of the parties arose. And mistakes of scriveners in drawing deeds or agreements, will be corrected, even against bona fide creditors of the grantor. Wyche v. Greene, IG Geo. 49. Alexander V. Newton, 2 Gratt. 266. Parham v. Parham, 6 Humph. 287. Perkins v. Dickinson, 3 Gratt. 335. Rogers v. Atkinson, 1 Kelly, 12. Collier v. Lanier, 1 id. 238. Wooden v. Ilaviland, 18 Conn. 101. Clopton v. Martin, 11 Ala. 187. Webster v. Harris, 16 Ohio, 490. Best v. Stow, 2 Sandf. Ch. 298. Mosby V. Wall, 23 Miss. 81. Pugh v. Chesseldine, 11 Ohio, 109. Willis v. Henderson, 4 Scam. 13. Hunt v. Rousmanier, 1 Pet. 1. Chamberlain v. Thompson, 10 Conn. 243. Cobb v. Preston, 2 Root, 78. Chapman v. Allen, Kirby, 399. In Ohio, this remedy is at law. Carrv. Williams, 10 Ohio, 223. Of course, as equity has no jurisdiction in cases of mistake in Massachusetts, error in the reduction of an agreement to writing is necessarily excluded : and the court will also refuse so to amend agreements as incidental to its jurisdic- tion in regard to disputes between parties. Leach v. Leach, 18 Pick. 68. Mistakes in instruments will be corrected against sureties as well as others. Butler v. Durham, 3 Ired. Ch. 589. Newcomer v. Kline, 11 Gill. & J. 457. But it seems that a mistake will not be corrected to the prejudice of innocent parties, who had no notice of the mistake. United States v. Munroe, 5 Ma- »on, 572. MISTAKE. 311 the parties to the contract had mistaken each other in thid re- spect, it must be rescinded, said : " Upon the other hand, if both understood the whole was to be conveyed, it must be conveyed. But a. {I) In Manser v. Back, 6 Ha. 447. (o) Davies v, Fittou. 2 Dr. & W. 225. (m) Squire v. Campbell, 1 My. & Cr. MISTAKE. 323 for a lease, and then a lease executed in consequence of it, and u bill was brought for the reform of the lease, not by the agree- ment, but by introducing a term into it l)y i)arol. His lordship stopped the argument for the plaintifl", considering that it was really against first principles to discuss the point, and said that the deed could *not be reformed by that which would r#9q/^i have been inadmissable if the agreement were resting m fieri^ and the l»ill had sought a specific performance of it. "It is said,' observed his lordship, (p) " that if a mistake was proved, and that there Avas no written agreement, the parol evidence would be admissible. Perhaps it might, because there is no settled rule of law in the Avay, and as there is no written contract, the court must endeavor to ascertain, by the best evidence it can get, what Avas the contract of the parties, and whether there was any mistake." § 525. It is perhaps not perfectly obvious why, if parol evi- dence would be admissible to correct a deed executed without any previous written agreement, it should yet be inadmissi!)le to correct a written agi-eement itself; for the only principle appli- cable seems to be that writing excludes parol, and it might be thought that this would apply Avith more force to a solemn deed than to a mere preliminary agreement. § 526. It may perhaps also be inquired Avhy, if the court pre- sumes a previous agreement resting in parol, in the case of a deed, no such presumption*is made in the case of a written agreement: why the wM'itten agreement may not equally Avith the deed, be corrected by reference to such a previous parol agreement ; and Avhy the court does not, as much in one case as in the other, ascertain Avhat that agreement Avas by the best evi- dence it can get. § 527. The current of authorities, hoAvever strong, can yet scarcely be considered uniform in favor of the position that the plaintiff can never avail himself of a parol A'ariation. § 528, There are dicta of Lord HardAvicke's Avhich notAvith- standing the remarks upon them of Lord Redesdalc(<^) and (p) p. 233. (g) In CUnan \. Cooke, 1 Sch. St. Le£ 38. 324 FRY ON SPECIFIC PERFORMANCE OF CONTRACTS. of Sir William Grant, (r) imply, it is submittetl, a somewhat *difFerL'nt view of the question from that already stated. '- -' In Walker v. Walker,(6) John Walker, a brother of both the plaintiff and defendant, agreed with the plaintiff, by parol, that if the plaintiff would surrender his copyhold estate for the benefit of the defendant, he, John Walker, Avould secure an an- nuity for the plaintiff's life, and another for that of his wife : upon this, John Walker surrendered his copyhold estate to the defendant, charged with these annuities ; but the plaintiff did not, in accordance with his agreement with John Walker, sur- render his copyhold estate to the defendant, whereupon the de- fendant refused to pay the annuities : the plaintiff brought his bill for their paj'ment, and the defendant relied on the plaintiff's breach of the parol agreement with John Walker. Lord Hard- •wicke held that the plaintiff's equity was rebutted by the de- fendant's equity, and added, (/") "I am not at all clear whether, if the defendant had brought his cross bill to have this agree- ment established, the court would not have done it, upon con- sidering this in the light of those cases, where one part of the agreement being performed by one side, it is but common justice it be carried into execution on the other, and the defendant would have had the benefit of it as an agreement." And in Joynes v. Statham,(i«) Lord Hardwicke expressed his opinion that evidence of the omission, in an agreement for a lease, of the expression "clear of taxes," might' have been given by the de- fendant, if he had been plaintiff seeking a specific performance, but his lordship considered it in the light of an explanation of an executory agreement, and not of a variation. ^ 529. There was a case before Lord Thurlow which, though ^^ -, it rests rather on the ground of fraud than mistake, *comes *- ^ very near to admitting parol evidence on the part of the plaintiff to supply a term in a written agreement. It was a bill brought by the original lessees of a term against the purchaser from them, for the specific performance of an agreement to in- demnify the plaintiffs against all rents and covenants in the (r)InWoolam V. Hearn,7 Ves. 219. (u) 3 Atky. 38S. Sec this and the pre- (s) 2 Atky. 98 ; S. C. 6 Vea. Jun. 335, n. ceding case observed on by Lord Redesdale (r) 2 Atky. 100. in Clinan v. Cooke, 1 Sch. & Lei". 38, 39. MISTAKE. 325 lease, and to execute a bond for securing such indemnity. The propcrt}' had been sold by auction, and the conditions of sale did not stipulate for such an indemnity ; but the agreement was proved by parol. Lord Thurlow held the evidence to be admis- sible, and laid it down that where an objection is taken before the party executes the agreement', and the other side promise to rectify- it, it is to be considered a fraud on the party, if such promise is not kept: and his lordship, after an issue, to satisfy himself of the facts, granted specific performance. (r) § 530. Lord Eldon seems to have been of opinion that parol evidence was admissible for the plaintiff. In the Marquis Townshend v. Stangroom,(w) the plaintiff in the original bill sought specific performance with a parol variation, and the de- fendant, by a cross bill, sought the performance of the written agreement as it stood. "I will not say," said his lordship, (.r) "that upon the evidence without the answer I should not have had so much doubt, whether I ought not to rectify the agree- ment upon which Stangroom relies, as to take more time to con- sider whether the bill should be dismissed," — language which seems to imply that, had the evidence been satisfactory, the agreement might have been rectified and performed. § 531. Li a case(?/) before Vice Chancellor Knight Bruce, there was an assignment by deed of a farming lease and *stock for a valuable consideration stated in the deed, and r^^oo-i it was proved by parol that, over and above this consid- ■- ^ eration, there wa;^ an agreement to pay the plaintiff X40 a year for his life, and to find him during the same period a house worth XIO a year; the assignment having been carried into effect, the court granted specific performance of the parol agreement at the suit of the annuitant : the case was put on the ground of an ad- ditional consideration, which may be proved by parol when not inconsistent with the instrument.(2:) It may be observed that, where such a consideration is executory and is alleged by the plaiutifl* and a specific performance of it obtained, the case seems (r) I'ember v. Mathers, 1 Bro. C. C. 52, (r) P. 309. per Sir William Grant in Clarke v. Grant, 14 (y) Clifford v. Turrell, 1 T. & C. C. C. Ves. 5-U. See also Harrisou v. Gardner, 3 138. Mad. 198. (z) Rex v. Scammouden, 3 T. R. 474. {10) 6 Vcs. 323. 326 FKY ON SPECIFIC PERFORMANCE OF CONTRACTS. to afford one instance in which a plaintiff may obtain specific performance of a contract with a parol variation. § 532. In the recent case of Martin v. Pjcroft,(fl5) the plain- tiff alleged a written agreement for a lease, and in addition a parol term, — namely, that he was to pay the defendant X200 for it, and prayed specific performance : Vice Chancellor Parker refused it, on the ground that the plaintiff himself showed that a material term in the agreement had been omitted, and that the specific performance of such an agreement was inconsistent with the Statute of Frauds. This decision was overruled by the lords justices, who held that a written agreement, in the ab- sence of fraud or mistake, binds at law and in equity, according to its terms, although verbally a term was agreed to which has not been inserted in the document, subject to this, that the de- fendant may call on the court to be neutral, unless the plaintiff r^^^ ,-. will consent to the *omitted term, and that the present r 2341 . •- J case came within that rule. The term was here, how- ever, set up not by the defendant, but by the plaintiff, and the case seems therefore to show that the plaintiff may allege a parol variation, which, if set up by the defendant and submitted to by the plaintiff, might have been introduced into the agree-- ment as specifically performed by the court. It thus seems to establish a very important limitation on the generality of the rule, that a plaintiff can never allege such a variation. § 533. In this state of the authorities, it may be interesting to state the opinion of American jurists. Though the doctrine that the plaintiff can never adduce parol evidence of a variation in suits for specific performance has been acted on by some of the courts of that country, (<^) it has been combatted by some of its most eminent jurists. "It is in effect," says Mr. Justice Story,(c) "a declaration that parol evidence shall be admissible to correct a writing as against a plaintiff, but not in favor of a plaintiff seeking specific performance. There is, therefore, no (a) 2 De G. M. & G. 785. In the case of rled into effect or not, by reason of the plain- Robinson v. Page, 3 Russ. 114, the parol vari- tiff's ofter, and not of any original right iu ations to which the plaintiff by his bill offered the defendant, to submit were considered by the court not (6) 1 Story, Eq. Jur. § 161. to affect the ])laintifl's rights: the defendant (c) Id. n. was allowed to elect that they should be car- MISTAKE. 327 mutuality or equality in the operation of the doctrine. And ground is very clear, that a court of equity ought not to enforce a contract where there is a mistake, against the defendant in- sisting upon and establishing the mistake ; for it would be in- equitable and unconscientious. And if the mistake is vital to the contract, there is a like clear ground why equity should in- terfere at the instance of the party as plaintiff, and cancel it ; and if the mistake is partial only, why, at his instance, it should reform it. In these cases the remedial justice is equal ; and the parol evidence to establish it is equally open to both parties to use as proof. Why should not the party aggrieved by a mistake in an agreement have relief in all cases, where he is plaintiff, as well as where he is defendant? Why should not parol *ev- r^^q ki idence be equally admissible to establish mistake as the '- -* foundation of relief in each case ? The rules of evidence ought certainly to work equally for the benefit of each party." § 534. In delivering judgment in the case of Keisselbrack V. Livingstone, (f?) Mr. Chancellor Kent held the following lan- guage : "Why should not the party aggrieved by a mistake in the agreement have reliefas well when he is plaintiff as when he is defendant? It cannot make any difference in the reasonable- ness and justice of the remedy, whether the mistake were to the prejudice of the one party or the other. If the court be a com- petent jurisdiction to correct such mistakes, (and that is a point understood and settled,) the agreement, when corrected and made to speak the real sense of the parties, ought to be enforced, as well as any other agreement perfect in the first instance. It ought to have the same eflScacy and be entitled to the same protection when made accurate under the decree of the court as ivhen made accurate by the act of tlie partiesJ\e) [16J (d) 4 Johu. Ch. Rep, 148. (e) See per Lord Elclon in Cook v. Rich- ards. 10 Ves. 4H. [16] It has become an established rule in this country, that the plaintiff is as fully entitled, in oases of this kind, to equitable relief, upon an agreement so varied by parol, as the defendant. Equity will therefore correct an agree- ment according to its true intent, when the variation is clearly established by evidence aliunde, and enforce it as corrected. Rogers v. Atkinson, 1 Kelly, 328 FKY ON SPECIFIC rEEFORMANCE OF CONTRACTS. § 535. It may further be observed, that there are cases though not strictly of specific performance, yet somewhat resembling them, where in the same suit the plaintiff has had an instru- ment rectified, and then obtained consequential relief: as, for example, where a bond and deposit of deeds were given to secure an advance, and the bond by mistake appeared to be usurious, the plaintiff proved the mistake, had the bond rectified, and was held entitled to the consequential relief to which an ordinary obligee and equitable mortgagee is entitled. (y) In another case,(^) a client entered into an agreement with his solicitor for the payment of a fixed sum of money in lieu of ^ costs, *and the agreement contained mistakes as to the r 2361 ' & L J name and rights of the client, which, if construed strictly, would have excluded the solicitor from all rights under the agreement. In consequence of these mistakes, the solicitor by his bill alleged that he had no remedy at law, and he accord- ingly prayed that the agreement might be rectiiied, and an order made for payment of the sum of money under the agree- ment, as if at the time of its execution it had expressed the intention of the parties : the court accordingly made a decree directing the payment of the money. (/) Hodgkinson v. Wyatt, 9 Beav. 566. (g) Stedman v. CoUett, 17 Beav. 608. 12. Coot V. Craig, 2 Hen. &. Munf. 618. Rhode Island v. Massachusetts, 15 Pet. 233. Gillespie v. Moon, 2 John. Ch. 585. Smith v. Allen, Saxton, 43. Dismukes V. Terry, Walker, 197. Hendrickson v Jones, Saxton, 5G2. Cham- berlain V. Thompson, 10 Conn. 243. Cobb v. Preston, 2 Root, 78. Sandford V. Washburn, Id. 449. Elmore v. Austin, Id. 415. Wilson v. Henderson, 4 Scam. 13. Shelly v. Smith, 2 A. K. Marsh. 504. Gooding v. McAllister, 9 How. Pr. Rep. 123. Therefore where two tenants in common agreed to make partition, according to the award of referees, executed deeds, and took posses- sion under them, and it subsequently appeared that, in the plaintiff's deed, a tract which had been assigned to him, had been omitted by mistake, it was held that the mistake should be rectified, and that a specific performance of the contract, as to the tract omitted, should be decreed. Tilton v. Tilton, 9 N. II. 385. And see Coles v. Brown, 10 Paige, 535, a case decided by Walworth, chancellor. See also Rosevelt v. FultoUj 2 Cowen, 129. PART CANNOT BE ENFORCED. 329 ♦CHAPTER XV. [*237] OF THE INCArACITY OF THE COURT TO PERFORil FART OF THE CONTRACT. § 53G. The court will not compel specific performance of a contract, unless it can execute the whole contract. It often therefore becomes important to inquire whether a contract is en- tire or divisible, or, in other words, what is the whole contract which must be executed : and it is proposed in the piesent chapter, first, to inquire what contracts are divisil)le ; and sec- ondly, to illustrate the general doctrine of the court above stated. § 537. It is obvious that the decision of the question whether a contract is entire or divisible, must depend on the particular nature of each contract, and the terms in which it is concluded : but some general rules may be gathered from the cases. § 538. A contract for the sale of property in one lot will gen- erally be considered indivisible. Thus, in a case where two un- divided seventh shares of land were sold in one lot, the court refused to enforce specific performance where a good title coud be made to one seventh only :(«) and the purchaser of the en- tirety will of course, notbe compelled to take six uu'divided seventh parts of the estate. (i^) And so in a recent case, where two per- sons were owners of an estate in undivided moieties, and an agreement was entered into by them with the plaintift' to lease the coals *under it, which agreement the plaintitf could r^.^oo-i not prove against one of the owners, the bill was dismissed *- ^ against the other, as he had never contracted for one share alone ; if he had held himself out, and contracted as the owner of the whole, then the case would have been different. (c) [Ij (a) Roffey V. Shatcross, 2 Bro. C. C. 118, (A) Dalbv v. Pullcn, 3 Sim. 29. n. ; S. C. s. n. Koffey v. Shollcross, 4 Mad. (c) Price v. Griffith, 1 De G. M. & G. SO. 227. [1] Thus a contract for the sale of land, "bounded as expressed in the survey made by C. K., and estimated by the said C. K. at 10221 acres," for which the FKY— 22 330 FRY ON SrECIFIC PERFORMANCE OF CONTRACTS. § 539. But where properties are of two descriptions — as, for example, a ship and the freight, — the fact that they are both in- vendee was to pay $25,568.75, which was just $25 per acre for that quantity was held to have been a sale in gross. But articles of agreement for the sale of a tract of land, both parties believing it to contain one hundred acres, for $2000, will be considered as importing a sale by the acre, where it appears that the ven- dee refused to take it without a survey. In this case, the vendor acquiesced in the surve)% and an excess of acres having been found, the vendee was held liable for such excess at the rate of $20 per acre. Clark v. Baker, 5 Mete. 452, a case decided at law by Hubbard J., furnishes an excellent illustration of the entirety of contracts generally. There, A. purchased of B., a cargo of white and yellow corn, on board of B.''s schooner, the quantity not being known, and agreed to pay one sum per bushel for the yellow, and another sum per bushel for the white, B. warranting it to be of certain quality. A. paid B. $1200, " on account of corn per schooner." The schooner was hauled to J].^s wharf, and he took therefrom and put into his warehouse a part of the corn, and then refused to receive any more, because the residue was not such as B. had warranted it to be, and immediately gave notice to B. that he would re- ceive no more of the cargo, and requested B. to take the schooner away. The corn thus taken by A. amounted, at the agreed price per bushel, to $10G7, and A. sued B. in an action for money had and received, to recover back the difference between that sum and the $1200. Held, that the contract was entire, and that the action could not be maintained : that A. might have rescinded the contract by returning all the corn, and then have maintained an action to re- cover back the moripy advanced, or might have retained an action on the war- ranty. " Was there one bargain for the Avhole cargo," says Hubbard, J., " or were there two distinct contracts for the j'ellow and white corn, or was there a separate and independent bargain for each bushel of corn contracted for, in consequence of which the receipt of one or more bushels of the warranted quality, imposed no duty upon the plaintiff to retain the residue ? And we are of opinion that the contract was an entire one. The bargain was not for 2000 or 3000 bushels of corn, but it was for the cargo of the schooner Shylock, be the quantity more or less — a cargo known to consist of two different kinds of corn : and the means taken to ascertain the amount to be paid were in the usual mode, b}^ agreeing on the rate per bushel. . , . There is no ground on the evidence as reported, to maintain that there were two contracts for the distinct kinds of corn : for it does not appear but that the 1400 bushels that were retained, consisted of a part of each. So that the plaintiff, to support his position, must contend, as he has contended, that the bargains in this case were separate bargains for each several bushel of a given quality, and for a distinct price. But this separation into parts so minute of a contract of this nature, can never be admitted ; for it might lead to the multiplication of suits PART CANNOT BE ENFORCED. 331 clued in one instrument, and dealt with for one entire sum, does not seem conclusively to render the contract indivisiljle.(cZ) [2] §540. Aftersome vacillation in the older cases,((?) it is decided at law, that where property is sold in distinct lots, there is a sepa- rate contract for each lot,( /") each buyer having a complete right of action after he is declared the purchaser of each lot.(y) And in equity, the same is prima facie the case, so that in the ab- sence of special circumstances, a vendor is entitled to compcd the purchaser of two lots to complete his purchase of the one, though he may fail in making out a title to the other.(^) [3] But where, from the nature of the contract, or the property that is the sub- ject of it, or upon matters known to both parties, one of them can prove that the one transaction was dependent on the other, the two form one contract, although there may be no express (d) Mestaer v. Gillespie, 11 Ves. 621, v. Lord Dormer, 4 B. & Ad. 77; per Cole- 629. ridege. J., ia Seaton v. Booth, 4 A. & E. («) See the cases reviewed by Lord Broug- 536. ham in Casamajor v. Strode, 2 My. & K. 724. (?) Emmerson v. Heelis, 2 Taunt. 38, 45. Chambers v. Griffiths, 1 Esp. 15(5, seems to (A) Lewin v. Guest, 1 Kuss. 325. See be overruled. also Buckmaster v. llarrop, 7 Ves. 341 ; S. (/) James v. Shore, 1 Stark. 426; Roots C. 13 Vea. 456. indefinitely, in giving a distinct right of action for every distinct portion. As well might a man who sold a chest of tea by the pound, or a piece of cloth by the yard, or a piece of land by the foot or acre, contend that each pound, yard, foot or acre, was the subject of a distinct contract, and each the subject of a separate action. [2] But as a general rule, if the consideration to be paid is single and entire, the contract must be held to be entire, although the subject of the contract may consist of several distinct and wholly independent items. Pars. Contr. vol. 1, pt. 2 ch. 1 p. 31. Therefore in Miner v. Bradley, 22 Pick. 457, where the defendant put up at auction a certain cow and 400 lbs. of hay, both of which the plaintiff bid olT for ^'17, which he paid at the time. He then re- ceived the cow, and aftewards demanded the hay, which was refused by the defendant, who had used it. This action was brought to recover back the value of the hay. The defendant objected that the contract was entire ; that the plaintiff could not recover back the price paid, or any portion of it, with- out rescinding the whole contract, and that this could not be done without returning the cow. And this objection was sustained by the court. [3] So in the case of Miner v. Bradley, cited above, Morton, J., said : There may be cases, where a legal contract of sale, covering several articles, may be severed, so that the purchaser may hold some of the articles purchased, 332 FRY ON SPECIFIC PERFORMANCE OF CONTRACTS. statement to that efrect.(e) And the parties by their subsequent dealing may convert two or more distinct contracts into an cn- r*90Qn ^^^^ °"^' '^^ ^^y entering into one *agrcement for the sale -•of the several subject matters at one aggregate price :{k) thus, where A. purchased by auction three lots, of 100 shares (t) Casaniajor y. Strode, 2 My. & K. 722; Cox. 273; and at law, Gibson v. Spurrier, 'Poole V. tjhergold, 2 Bro. C. C. 118; S. C. 1 Peake. Add. C. 49. (A) Dykes v. Blake, 4 Bing. N. C. 463. and, not receiving others, may recover back the price paid for them. Where a number of articles are bought at the same time, and a separate price agreed upon for each, although they are all included in one instrument of conversance, yet the contract, for a sufficient cause, may be rescinded as to part, and the price paid recovered back, and may be enforced as to the residue. But this cannot properly be said to be an exception to the rule, because, in effect, there is a separate contract for each separate article. This subject is well explained, and the law well stated, in Johnson v. Johnson, 3 B. & P. 102." Johnson v. Johnson is this : In that case, the plaintiff had purchased, from the same per- sons, two parcels of real estate, the one for i£700, the other for jESOO, and had taken one conveyance for both. After having paid the purchase money, and taken possession, he was evicted from the smaller parcel, in consequence of a defect in the title derived under the purchase, and thereupon brought an action for money had and received to recover back the iESOO, at the same time re- fusing to give up the parcel of land for which i£700 had been paid. And the court held that he was entitled to recover. Lord x\lvanley, in delivering the judgment of the court, said: "My difficulty has been, how far the agreement is to be considered as one contract for the purchase of both sets of premises, and how far the party can recover so much as he has paid by way of con- sideration for the part of which the title has failed, and retain the other part of the bargain. This, for a time, occasioned doubt in my mind; for if the latter question were involved in this case, it would be a question for a court of equity. If the question were how far the particular part of which the title has failed formed an essential ingredient of the bargain, the grossest injustice would ensue if a party were suffered, in a court of law, to say he would re- tain all of which the title was good, and recover a proportionable part of the purchase money for the rest. Possibly the part which he retained might not have been sold, unless the other part had been taken at the same time ; and ought not to be valued in proportion to its extent, but according to the various circumstances connected with it. But a court of equity may inquire into all the circumstances, and may ascertain how far one part of the bargain formed a material ground for the rest, and may award a compen.sation according to the real state of the transaction. In this case, however, no such question arises : for it appears to me that although both pieces of ground were bar- PART CANNOT BE ENFORCED. 333 each, and after the sale received the shares, paid the price, and received a bill of parcels describing the transaction as a sale of 300 shares : it was held, that as each lot was knocked down, there Avas a distinct contract for the sale of 100 shares, but that the subsequent dealings showed that the parties treated the transaction as one entire sale of 300 shares.(/) (I) Franklyu v. Lamond, 4 C. B. 637. gained for at the same time, we must consider the bargain "as consisting of two distinct contracts ; and that the one part was sold for i^oOO, and the other for i£700." Morton, J., then continued: " Had the plaintifi' bid otf the cow at one price, and the hay at another, although he had taken one bill of sale for both, it would have come within the principles of the above case." Another case in point is Robinson v. Green, 3 Mete. 159. That was an action of as- sumpsit to recover compensation for services rendered by the plaintilT to the defendant as an auctioneer, in selling seventy-six lots of wood. The plaintilT was a licensed auctioneer for the county of ^Middlesex. Two of the lots of wood sold were in the county of ^Middlesex, and the rest were in the county of Suffolk. The defendant contended that the claim of the plaintiff was entire: that part of it was a claim for services which were illegal, in selling property out of his county ; and that the contract being entire, and the consideration, as to part, at least, illegal, the action could not be maintained. But Chief Justice Shaw decided to the contrary, upon the grounds that the plaintiff's claim for compensation arose upon each several sale, and was complete upon the conclusion of every such sale. That there was express promise to pay him a fixed sum upon the termination of the entire sale of all the lots ; and, there- fore, part of the consideration being illegal, it did not avoid the whole contract. See Pars. Contr. vol. 2 p. 30. But where a contract for the sale and delivery of property consists of several agreements, independent of each other, and the vendor fulfills the agreement to be the first performed, but violates all the others, Qunere, can he, after he has violated all the other agreements, recover the price of the property delivered under the first agreement } McKnight v. Dunlop, 4 Barb. 36. Woods v. Russell, 5 B. & Aid. 942, is also in point. There a ship was built upon a special contract, to the effect that given portions of the price should be paid according to the progress of the work, to wit : part when the keel was laid, part when at the light plank, and the remainder when the ship was launched. It was held that there arose a separate contract for each in- stallment, and therefore that when the keel was laid; or any other part of the ship for which an installment was to be paid was completed, that an action could be immediately maintained to recover the installment. In Wright v. Petrie, 1 S. & M. Ch. 282, it was decided that where a contractor, constructing a railroad, is to be paid by installments as the work advances, the contract is 334 FKY ON SrECIFIC PERFORMANCE OF CONTRACTS. § 541. The mere fact of different prices being fixed for differ- ents pai'ts of the subject matter of tiie contract, will not necessa- rily make it divisible : so where u person went into a shop and bought various goods at distinct prices for each, the contract was still held to be single. (wi) And where one price was fixed for the land, and another (a valuation price) for the timber, and the vendor could not show a title to all the timber hy reason of the copyhold tenure of parts of the estate, which were not dis- tinguishable from the freehold ; the court held it, on the agree- ment, to constitute one contract, that consequently the vendor was only bound to make out the title according to the contract, and that the title to the land was the title to timber ; — and, as the conditions of sale provided for the copyhold tenure as to the lauds, the contract was enforced as a whole. (^i) § 542. In a case in Avhich, by the same ageement, A. contracted to sell an estate to B., alid B. contracted to sell another estate to A., the contracts in respect of the two estates were held to be independent of one another :(o) whilst in a case of cross con- tracts for the sale of goods, the Court of Exchequer held the contracts dependent. (^) r*94m *^ ^^^" ^^ ^^' '"^^ ^^^ have already seen, a principle of the court, that it will not compel specific performance, unless it can at the time execute the whole contract on both sides, or at least such part of it as the court can ever be called on to perform. Therefore, where there was an agreement be- tween two neighboring landholders to change the course of a [m) Baldey v Parker, 2 B, & C. 37. (o) Croome v. Lediard, 2 My. & K. 251. , (n) Crosse v. Lawrence, 9 Ha. 462; Crosse (p) Atkinson v. Smith, 14 M. & W. 695. V. Keene, 9 Ha. 469. not entire, and the contractor may recover a ratable portion of the contract price according to the amount of work done, whenever the contract may be abandoned. See Cunningham v. Morrell, 10 John. R. 202; Tompkins v. Eliot, 5 Wend. 4C'6 ; Goodwin v. Holbrook, 4 id. 377 ; Dox v. Day, 3 id, 356; Bald- win V. Mann, 2 id. 399; Sage v. Ranney, Id. 532; Gould v. Allen, 1 id. 182 Read v. Moore, 19 John. R. 237; Rob v. Montgomery, 20 id. 15 : Gazely v. :;, L id. 269; Haiden v. Kreitsinger, 17 id. 293. PART CANNOT BE ENFORCED. 335 stream, and one of the terms of the agreement was tliat if any damage should accurc to the lands of the defendant from a dam which was agreed to be erected, the plaintiff would give an equivalent in land to the defendant, the quantity of land to be ascertained by arI)itrators : this being a thing which the court could not do at once in pneseiiti, and the court, holding that the parties entering into a covenant, to do it would not be a specific performance of the contract, refused to interfere, as the whole agreement could not be carried into effect.(//) And where the owner of certain patents entered into an agreement with certain persons, who with himself were to form a company, to the promotion of which he was to give his services for two years, and to do his best to improve the invention for the benetit of the company, and on the refusal of these parties to go forward with the company, the patentee tiled a bill for the specific perform- ance of the agreement : the court held, on demurrer, that as it would have been impossible to enforce against the plaintiff the stipulations on his part, he could not sue for performance ; and further, that the court could not carry the contract into ef- fect by directing the parties to execute a deed, for the agree- ment was to do certain acts, and not to execute covenants to do them.(r) § 544. So whenever that which the plaintiff is to give as the consideration moving from him is something to be done at a future time, and which the court cannot enforce, specific per- formance of the agreement will be refused, («) *§ 545. The principle that the court will not partially ^^ enforce contracts is illustrated by many other cases: ■- ^ Thus, where there was a partnership contract for an absolute term of years, leaving undefined the amount of capital and the manner in which it was to be provided, being a contract which in its entirety the court could not enforce, the court refused to enforce it in part, by refusing the representatives of a deceased partner a decree for the dissolution of the partnership and the (?) Gervais v. Edwards, 2 Dr. & W. 80. (,t) Per Wigram, V. C, in Waring v (r) Stocker v. WeUderburn, 3 K. & J. ilanchester, hliellield and Liucolusljire Kail. 393. wiiy Conipauy, 7 llu. iii2. 33 G FRY ON SPECIFIC PERFORMANCE OF CONTRACTS. sale of the partnership property. (^) And in a recent case,(i<) the court refused to separate the parts of an award whicli were ca])al)le of specific performance from those Avhich were not. § 546. Where the contract stipnhites for fulnre acts, but is silent as to any deed to be executed to secure their performance, the court, as we have seen, will not consider the execution of such a deed any performance of the stipulation ; other cases have arisen, where the agreement contemplates some deed or ob- ligation. Where there was a contract to execute works of such a nature that the court could not superintend their performance, and in the contract was a stipulation that the contractors should give a bond to secure the performance of the contract : the court refusing to decree performance of the works, refused also to de- cree the execution of the bond, as that would have been a piece- meal performance of the contract, and the stipulations as to the ■works were the substance of the agreement, and that as to the bond only incident to them.(?;) § 547. But where the contract is to do a thing, and to execute a deed for that purpose, and this deed is not merely incidental, but, so to speak, covers the whole of the executory part of the contract, the court will, it seems, enforce *the contract '- -"by the execution of the deed, though the acts to be done be future, and to be done from time to tirae.(?^) § 548. The cases on marriage contracts strongly illustrate the principle that the entire contract must be carried into effect. With reajard to these, it has been uro-ed that as the court inter- feres in behalf of those who are purchasers, or considered as such by the court, but declines to aid volunteers, so when the court specifically executes a settlement, its interference should be con- fined to limitations in favor of purchasers, and not extend to volunteers. The court, however, has applied the principle that the whole or no part of the contract shall be executed, to mar- riage contracts as well as to other as^reemcnts. "There is no (t) Downs V. Collins. 6 Ha. 418. (c) South Wales Railway Company v. U() Nicliels V. Hancock, 7 De G. M. & G. Wythes, 1 K. & J. ISU ; S. C. 5 Da G. M. & 300. See also Vansittart v. Vausittait, 4 G. 880. K. & J. 62. (w) Granville v. Betts, 19 L. J. Ch. 33. PART CANNOT BE ENFORCED. 337 instanco," said Lord ITardwickc, (a;) "of decreeing a partial pcr- forinaiice of articles, — the court must deci'ee all or none ; and where some parts have appeared very unreasonable, the court have said we will not do that, and therefore, as we must decree all or none, the bill has been dismissed." And in a recent case,(?/) where a husband sued the heir of his wife, who was the settlor, on a covenant to settle lands, the specific performance was not restricted to his estate, but carried to a limitation to a niece of the wife, who was of course a collateral. § 549. The cases of exception, or rather of apparent exception, to the rule in question may now be considered. § 550. (1) From the cases of contracts which cannot be fully executed, must be discriminated those cases where, though under the agreement some future acts may remain to be done which the court could not enforce, yet at the time of the bill the plain- titf has acquired a right, perfect in itself in respect of past transactions. § 551. Thus, where in a contract for the execution of *railway works, previous to their completion, the con- r^g.Qi tractors filed a bill against the railway company, alleging ^ -• fraud in the engineer, in withholding certificates of work done, and asking amongst other things for an account of work done : it was held on demurrer, that though the works were not com- plete, and though the court might not be able specifically to per- form such an agreement, the plaintiffs had a right, perfect in itself, of which they had been deprived by the alleged acts of the defendants, and that they were therefore entitled to some relief in equity.(5;) And so it seems, that if by a partnership agreement it was stipulated that accounts should be made up half-yearl3% and that one partner should have a salary propor- tionate to the profits to be so ascertained, he might from time to time file bills to have the accounts so taken accordinof to agreement, though the other terms of the contract might be beyond the jurisdiction of the court. («) (.T) In Goring v Nash, 3 Arky, 190. {z) Waring v. ^lanchester, Sheflielrt and (I/) Davenport v. Rishopp, 2 Y. & V. C. Lincoliidliii-e Railway Conipanv, 7 Ha. 4."*2. C.451; S. C. 1 Phil. 098. (a) Per Wigram, V. C.,iu last case, 7 Ua. 496. 338 FRY ON SPECIFIC PERFORMANCE OF CONTRACTS. § 552. To this principle we may probably refer the case of Lytton V. The Great Northern Railway Company, (/>) where there being an agreement by the company to make and main- tain a siding so long as it shonid be of convenience, the clanse as to maintaining it was held no objection to a bill for the spc- citic performance of the agreement to make it, the question of repairs being a matter for inquiry when a breach of that part of the contract should occur. § 553. (2) In the next place, it must be o1)scrved, that where the contract can be completely performed at the time, though there may be future acts dependent on it, the court Avill be able to grant specific performance : as, e. g., a contract for the imme- diate sale of timber to be cut down at a future time, and the purchase money for it to be paid by install ments.(c) The cases already stated, where the court *will direct the execu- L J tion of a covenant to do future acts, illustrate the same principle. (cZ) § 554. (3) It seems generally very questionable, how far the principle that the court will not perform part of a contract be- cause it cannot perform all, applies to cases where the impossi- bility of carrying out a part is due to the default of the defend- ant who sets up this defense. To permit it to prevail, would be counter to the maxim, that no man shall take advantage of his own wrong. In the case of the defendant's only possessing a part of the interest which he has stipulated to sell, the defect as to the other part is, as we have seen, no bar to specific per- formance at the suit of the purchaser.(e) In one case, there was an agreement between three railway companies having ref- erence to a purchase and an amalgamation ; for the purchase no further parliamentary powers Avere needed, but for the amalga- mation they were, and as regards one of the companies, they could not be obtained, because a majority of its shareholders were adverse to the scheme : in a suit relating to the purchase, the last mentioned company set up as a defense the impossibility of carrying out the agreement as to the amalgamation ; but Lord (4) 3 K. & J. 394. (rf) Ante. ^ 546. (4) 3 K. & J. 394. (rf) Ante. ^ 546 (c) Uervais v. Edwards, 2 Dr. & W. 80. (e) Ante, i 299. PART CANNOT BE ENFORCED. 339 Coltenham overruled the demurrer, and doubted whether the defendant company could say to the plaintitls. that they should not have the benefit of such part of the contract as the defend- ants could perform, because they could not, without an act of parliament, perform the whole, and they declined applying to parliament to give them the necessary powers.(/) § 555. (4) It was formerly laid down that when the positive part of an agreement could not be performed by the court, it would not enforce the negative by injunction : so that for ex- ample, where an actor had agreed to act at *a certain r^^..-^ theater, that being an agreement which the court could *- ^ not enforce, it refused to restrain him by injunction from acting elsewhere :{(/) and where there was a contract for hiring an ex- clusive service during seven years, and an agreement for partner- ship at the end of that time on such terms as should be mutually agreed on : the afjreement beino- one wdiich the court could not perform as a whole, it refused to enforce by injunction the cove- nant for exclusive service.(Z!) Again where the defendants had agreed to furnish the plaintiffs with the drawings for maps which the plaintiffs were exclusively to sell ; the court being unable to compel the defendants to furnish these drawings, refused an in- junction to restrain the defendants from themselves selling the maps.(2') § 556. This principle, whilst held as law, was yet considered subject to several limitations or exceptions. Thus it was estab- lished, that where a partner agreed to exert himself for the ben- efit of the concern, and not to carry on the partnership trade except as a partner, the court would, if the partnership was sub- sisting, enjoin against a breach of the last stipulation though it certainly could not enforce the former ;(A-) and it was further de- cided that the principle would not be carried so far as to prevent an injunction, because it might afterwards appear that there was (/) Great Western Railway Company v. fill Knowledge, 9 Sim. 393; Clarke v. Price, BiiTningham and Oxford Junction Railway 2 J. AVils. 157. Company. 2 Rhil. 597, 605. (i) Morris v. Coleman, 18 Ves. 437 ; (^) Kemble V. Kean, 6Sini. 333. S. C. H Siiu. 335; Kemble v. Kean, 6 Sim. (h) Kiniberley v. Jennings, 6 Sim. 340. 333 (i) Raldwiu V. Society for Diflusing Use- 340 FUY ON SPECIFIC PERFOIIMANCE OF CONTRACTS. some p:irt of the agi-eeineiit which the court could not compel the detciuhiiit to perform. (/) & 557. But it is now cleurly established by the recent case of Lumley v. Wagner, (m) that where there is an agreement in part positive and in part negative, and the positive part is such as the court might be unable to enforce *spcciHcalIy, it may L 2'*"J yet intei-fere in respect of the negative part by means of injunction. In that case, the defendant entered into an agree- ment with the plaintitf to sing at his theater, and not to sing at any others ; and Lord St. Leonards granted an injunction rcstrainino- the defendant from singing at any other theater than the plaintiff's though the specific performance of the positive jDart would have been certainly beyond his power. The princi- ple was acted on in some earlier cases ;(?i) but in the case just cited all the authorities on the subject were quoted, and the princi- ple above stated laid down by the lord chancellor after much dis- cussion. [4] In a subsequent case, Vice Chancellor Wood coa- (1) 'SVhittaker V. Howe, 3 Beav. 383, 395. Sheffield and Lincolnshire Raihvaj' Com- (m) 1 I)e G M. & G. (304. pany, 5 De G. & Sm. 13S. See also Hills v. (») Dietriohseu v. Cabburn. 2 Ph. 52 : Great Croll, 1 De G. M. & G. 627, n.; S. C. 2 PhU. 60. Northern Railway Company v. Manchester, [4] It does not appear, however, that the doctrine of Lumley v. Wagner has been received in this country. Cases of this nature relate to personal acts, and although there may be cases in which damages are an inadequate relief, and a siiecific performance will alone answer the complete ends of justice, yet equity will only interfere where the question has reference to propert}"^ of some kind. There are "numerous cases arising between landlord and tenant, and in cases of partnership, where personal covenants will be decreed to be en- forced. They generally rest upon the reasons already stated, the inadequacy of the remedy at law, and the difficulty of ascertaining the damages. Thus, a covenant to give a lease, or to renew a lease, has been required to be executed, and to contain also a covenant for further renewal. So an agreement to form a partnership and execute articles accordingly, may be specifically enforced." Willard's Eq. Jur. 277. It was upon the ground of partnership that the doc- trine of Morris v. Coleman, 18 Ves. 437, was received into this country. But it is expressly decided, that "where there is no partnership between the par- ties, and the defendant has violated his engagement to one theater and formed a conflicting engagement with another, a court of equity will not interfere either actively or negatively to prevent the performance of the other." Willard's PART CANNOT BE ENFORCED. 341 sitlered that the principle established in the preceding case did not apply only where there were ex})ress negative provisions, and accordingly he enjoined an actor who had entered into an agree- ment to perform at Sadler's Wells Theater, (but without any stipulation that he would not perform elsewhere,) from acting at any other place than the plaintiffs theater on the nights on "which he had so' agreed to act.(o) § 558. In cases where the agreement on which an injunction is sought contains stipulations, some of which the court can, and others which it cannot enforce, and the latter are wholly on the plaintifl''s part, no difficulty arises ; because, though the court may be unable to enforce them directly, it does so indirectly, in- asmuch as the moment the plaintiff fails in performing his part of the agreement, the injunction would be dissolved. (j^) § 559. (5) Where an arrangement come to between two per- sons is intended to be of a complex character, partly *le- r^.^i^-i gal and partly honorary, the court will, if there be no '- -* other impediment, specifically perform the legal contract, leav- ing the honorary part of the arrangement to rest, as was in- tended on the honor of the parties. So that, where this latter part is malum prohibitum and not malum in se, it will not obstruct the court in its execution of the other part of the arrangement which amounted to contract.(^) § 560. (6) When the agreement is in any manner alternative, so that the parts of it are mutually exclusive one of the other and the plaintiff has a right to ask for the performance of one part, the court may treat this as independent of the other ; thus, in an agreement to grant a lease with an option to the lessee to per- chase, this option was held so far independent of the agreement for a lease, that a default in the part of the plaintiff in insuring, (0) Webster v. Dillon, 3 Jur. X. S. 432. (?) Carolan v. Brabazon, 3 Jon. & L. 200. (/)) Stoeker v. Wedilerbum, 3 K. & J. 213. 393, 405. Eq. Jur. p. 277. And it is continued by the same author, "that the court possessing no means to enforce the contract, the parties will he left to their remedy at law." See De Rivafinoli v. Kean, 4 Paige, 264 } and ante, note, [2] chap. iv. pt. 3. 342 FRY ON SPECIFIC PERFORMANCE OF CONTRACTS. -vvliit'h would have prevented his suing for a lease, did not pre- vent his suing on the option to purchase.(r) § 561. (7) In a recent case, (a) Sir J. Komilly appears to have expressed the opinion, that where a part of the contract which the court could not perform has been actually performed before suit, the incapacity of the court as to this part would furnish no defense as to the other part. In such a case there would seem, however, to have been no original mutuality. '*248] *CHAPTER XVI. OF DEFECT IN THE SUBJECT MATTER OF THE CONTRACT. § 562. Another ground on which the specific performance of a contract may be resisted is the existence of some essential defect in the subject matter of it, or some variation from the description contained in the contract. This is, of course, not a question of title ; the acceptance of the title will not prevent the defendant from setting up the defense that the title relates to a different subject matter to that which he contracted for.(a) The cases in which this variation arises between the thing and some representation made in respect of it are considered under the head of misrepresentation :{b) the cases in which no such representation has been made I now propose briefly to consider. § 563. The material distinction to be considered is between defects which are patent and visible to every one and those which are latent ; for just as at law a warranty, however general, will not be taken to include defects apparent at the time of the bargain, as no one could have been deceived by them ; so, whilst latent defects are a ground for refusing specific performances, patent defects are not.(c) r*9AQl ^ ^^^' Accordingly where a man bought *a meadow, ■- -' with a road round it and a way across it, which were not (r) Green v. Low, 23 Beav. 625. (6) Ante, § 425 et seq.. (s) Hope V. Hope, 22 Bcav. 321, but see (c) Dyer v. Hargrave, 10 Ves. 505 ; ante, S. C. befoi-e the L. J. J. 28 L. J. Ch. 417, 5 446; cf. Pothier, Tr. Uii Coutrat de Veute, 425. part ii. ch. i. soc 3. § J- (a) Beatley v. Craven, 17 Beav. 204. DEFECT IN SUBJECT MATTER. 343 noticed in the description, Lord Ro>^slyn nevertheless enforced specific performance with costs:(^) and the circumstance that an estate described as enclosed in a ring fence was not so, was held by Sir William Grant no defense to a suit for performance. (e) § 565. But where the objection taken by the purchaser, who was defendant, was the existence of certain water easements, and it was proved that the defendant had long lived in the neighljor- hood, Avas well acquainted with the property, had in passing the road constantly seen some of the wells on the lower land sup- plied from the upper land, which was the subject of the contract, and had on the morning of the sale been upon the land ; the Vice-Chancellor Knight Bruce expressed his opinion, but with- out jrivins: the reasons, that no such decree of knowledge or notice had been proved as to preclude the purchaser from taking the objection. (y ) In this case, it may he observed, the objection to the upper lands was the existence of certain rights granted with the lower lands to enter the upper lands, fetch water from a spring, and to cut and cleanse gutters for the conveyance of the water to the lower lands and similar easements. Now the wells, gutters, and all the other objects of sense might probably have existed without necessarily involving these easements ; and if so, it follows that the defect was in its nature latent and not really jiatent. § 566. With regard to the latency of defect, it is to be ob- served that the court will not demand a minute examination on the part of the purchaser, even wherethe vendor does not make any representation : to render a defect patent it must, it seems, be an obvious and unmistakable object of sense. *§ 567. The defect need not be in the actual physical r^oKn-i subject matter of the contract, it may consist in the ex- *- ^ istence of some liability of which the other party is ignorant ; so that where the vendor of leasehold property had befoie the sale received from his landlord a notice of re-entry in default of the premises being repaired, and did not communicate the ex- istence of this notice to the purchaser, who however knew of ( ariation from the description, is twofold, according to its magnitude. If, in the view of the r*or9i court, it be unessential, the contract may *yet be per- '- -" formed, but with compensation ; if it be essential, it confers on the party injured the right of rescinding the contract and defeating its performance. (6-) [3] The distinction betw^een these two classes of cases will be considered in the chapter on compensation. (P) S. C. (r) See post, S 8S0. {q] Early v. Garrett, 9 B. & C. 928; (i) Stautou v. Tattersall, 1 Sm. & G. 529. Springweil v. Allen, 2 East, 44S, u. [2] So, where the vendee of land agreed to risk the title as to a small part of the land which the vendor represented might be covered by an adverse claim, and said claim was afterwards successful])'' asserted, it was held, that the sale should not be rescinded on that account, nor the value of it discounted from a note for the purchase money held by an assignee of the vendor, but that the vendee's remedy was on the warranty. Gates v. Raleigh, 1 j\Ionr, 164. See also Winne v. Reynolds, G Paige, 407. [.3] A specific performance will be decreed where the vendor is able to per- form his contract in substance, although there is a trifling variation in the de- scription of the premises, or a trifling incumbrance on the title which cannot be removed, and which is a proper subject of compensation to the purchaser. Winne v. Reynolds, 6 Paige, 407. And on a bill by a vendee for the specific performance of an agreement for the sale of lands, a slight variation or default, on the part of the vendee, in the performance of work to be done by him be- fore the deed was to be delivered, will not prevent a decree for specific per- formance, if the difference is a proper subject for compensation in money. Humes v. Thorpe, 1 Halst. Ch. (N. J.) 415. King v. Bardeau, 6 John. Ch. 38, is a case belonging to the same class. It was a case of sale of property at auction ; and though the description was substantially true, there was a slight variation or defect in the property over the description. And it was held that where two adjoining lots are sold together, in one parcel, and for one price, and on one of the lots were buildings which projected two feet over on the other let, that this did not constitute so material a defect in the subject matter as to warrant the abandonment of the contract by the purchaser. But, as the WANT OF A GOOD TITLE. 347 ♦CHAPTER XVII. [*2o3] OF THE WANT OF A GOOD TITLE. § 573. Where the vendor of land sues the purchaser for a specific performance of the contract, the defendant is entitled to have the plaintiff''s bill dismissed, if it appears that the plaintiff cannot make out to the landa title free from reasonable doubt. [1] The defendant may have the bill thus dismissed at the hearing, provided the defect in title has been prominently put forward in the pleadings, and the court can then decide the question. (a) But the question more usually arises after the reference of title has been made. § 574. The old practice of the court in all cases of dispute as to the title of the estate sold, was to decide either for or airaiust (a) Lucas V. James, 7 Ha. 418, 425. projection was not so obviously visible as to conclude the purchaser, if he had exercised ordinary diligence, and, as the vendor, in the advertisement of sale, described the buildings as being on one of the lots, the court granted the pur- chaser compensation for the diminution of value occasioned by this projection, to be deducted from the price. [1] Watts V. Waddle, 1 McLean, 200. Bates v. Delavan, 5 Paige, 299. Gansv. Renshaw, 2 Barr. 34. Fitzpatrick v. featherstone, 3 Ala. 40. Beck- ■with V. Kouns, 6 B. Monr. 422. Owings v. Baldwin, 8 Gill. 337. And it is not necessary that the vendee should stipulate in the contract that a covenant of warranty shall be inserted in his deed. This will be presumed unless the vendee expressly takes the risk of title. Bates v. Delavan, 5 Paige, 279. An agreement to give good and sufficient deeds to lands, must be construed to mean deeds in fee simple. New Barbadoes Toll Bridge v. Vreeland, 3 Green's Ch. 157. It is sufficient, if the vendor is able to make a good title at anytime before the decree is pronounced, although he had not a good title when the contract was made. Hepburn v. Auld, 5 Cranch, 262, 275. Finley v. Lynch, S Bibb. 366. Sej'uiour v. Delancey, 3 Cowen, 445. Pierce v. Nichols, 1 Paige, 244. Cotun v. Ward, 3 Monr. 304. Baldwin v. Salter, 8 Paige, 473. Dutch Church V. Mott, 7 id. 78. Poole v. Shergold, 2 Bro. C. C. 119. An exception to this rule is were a contract is made in bad faith by one who knows that he has neither title nor the legal or equitable means of acquiring one. Moss T. Hanson, 17 Penn. (5 Harris,) 379. 348 FRY ON SPECIFIC PERFORMANCE OF CONTRACTS. the valitlity of the title, and either to compel the purchaser to take it as irood, or to dismiss the bill on the score of its heinor bad.(/>») But the case of Marlow v. Smith, (r) before Sir Joseph Jekyll, folloAved by Shapland v. Smith, (tZ) before Lord Thurlow, established the present practice of allowing a class of titles ■which without atHrming them to be bad, the court considers so doubtful as that it will not compel a purchaser to take them.(e) r*e)KAi *§ 575. Lord Eldon, though feeling himself bound to adhere to this as an established rule, on more than one occasion expressed his dissent from it on principle, and bew^ailed the great mischiefs which had resulted from it.(/) The rule has also been objected to as being logically al)surd, as well as practically injurious ; for every title, it is said, is good or bad, and if so, the court ought to know nothing of a doubtful title. § 576. Notwithstanding such doubts, it may be submitted that having regard to the nature of a suit for specific performance, the rule in question is necessary in point of practical justice and correct in reasoning. It must be remembered that the decree of the court in such a suit is a judgment in personam and not in rem ; that it binds only those who are parties to the suit, and those claiming through them, and in no way decides the question in issue as against the rest of the world : and that doubts on the title of an estate arc often questions liable to be discussed between the owner of the estate and some third person not be- fore the court, and therefore not bound by its decision. If there- fore there be any reasonable chance that some third person may raise a question against the owner of the estate after the com- pletion of the contract, the court considers this to be a circum- stance which renders the bargain a hard one for the purchaser, and one which in exercise of its discretion it will not compel him to execute. Though every title must in itself be either good (b) See 1 Bro. C. C. 76, n. (e) See also Cooper v. Denne, 4 Bro. C. (CI 2 P. Wms. 198. C. 80; S. C. 1 Ves. Jun. 505; Sheffield v. (rf) 1 Bro. C. C. 75. Lord Eldon was in Lord Mulgrave. 2 Ves. Jun. 526; Roake v. the habit of treating this as the first case in Kidd, 5 Ves. 617 ; Willcox v. Bellaers, T. which the present rule had prevailed : but & It. 491. in Sloper v Fish, 2 V. & B. 149, Sir Wni. (/) In Vancouver v. Bliss, 11 Ves. 465, Grant referred to the earlier case, and stated and in Jervoise v. Duke of Northumber- that the rule in question had been repeated- laud, IJ. & W. 568. ly acted on by Lord Hardwicke. WANT OF A GOOD TITLE. 349 ov bad, there must be many titles ^vIlich the court cannot pro- nounce with certainty to belong to cither of these categories in the absence of the parties interested in supporting both alterna- tives, and without having heard the evidence they might have to produce, and the arguments *they might be able to r^,jrri urge : and it is in the absence of these parties that the '- ^ question is generally agitated in suits for specific performance. The court, when fully informed, must know whether a title be good or bad ; when partially informed, it often may and ought to doubt. If there be any want of strict reasoning about the principles on which the court acts in this matter, it is perhaps in deciding any title to be good or bad, rather than in declaring some to be doubtful. But it is with practical certainty and prac- tical doubts that the court concerns itself.(p') [2] § 577. It is by no means easy to express what amount of doubt upon a point there must be to induce the court to refuse specific performance. One mode of measuring it has been by applying the question, whether it is such a title as that the judge himself would lend his own money upon it. The court " has almost gone the length," said Lord Eldon, " of saying that unless it is so confident that if it had £95,000 to lay out on such an occasion, it would not hesitate to trust its own money on the title, it would not compel a purchaser to take it."(/i) § 578. In another case,(e) Lord Eldon put the question for the court as being, " whether the doubt is so reasonable and fair, that the property is left in his (the purchaser's) hands not mark- etable ;" but a marketable title being "one which, so far as its {g) How far tlie practical ill effects of (A) In.Jervoise v. Duke ofNortlmmberland, this rule miglit be lessened by givinj? the 1 J. & W. oGO. See also Sheffleht v Lonl court a power of maliin<;; declaratory de- Mulgrrave, 2 Ves. Jun. 526 ; per Turner, V. C., crees, is a question worthy of the attention in Pvrke v. Waddinghani, 10 Ila. 9. of law reformers. (i)"ln Lord Braybroke v. Inskip, 8 Ves. 428 [2] It has repeatedly been decided that equity will not compel a vendee to take a doubtful title. Butler v. O'Hear, 1 Des. 382. Lewis v. Ilerndon, 3 Litt. 158. Kelly v. Bradford, 3 Bibb, 317. Seymour v. Delancey, 1 Hop. 436. Young V. Lillard, 1 ]Marsh. 482. Morgan v. Morgan, 2 Wheat. 290. Long- worth V. Taylor, 1 McLean, 200. 350 FRY ON SPECIFIC PERFORMANCE OF CONTRACTS. antecedents are concerned, may at all times and nnder all circum- stances be forced on an unwilling purchaser,"(/.-) the observation r. , ^ seems not *mueli to assist us in measurinu^ how jrreat the ■- -• doubt must be. § 579. Though the court may entertain an opinion in favor of the title, yet if it be satisfied that that opinion may fairly and reasonably be questioned by other competent persons, it will refuse specific performance. Thus, in a case(?) before Sir John Leach, he expressed the strong inclination of his opinion to be in favor of the title, and yet refused the relief sought by the plaintiff; and in the recent case of Pyrke v. \Vaddingham,(m) in which the Vice-Chancellor Turner discussed the sul)ject now before us, he expressed an opinion in favor of the title, but never- theless dismissed the vendor's bill with costs. Still less, of course, Avill the court force a title on a purchaser in opposition to the decision of another court, though it may think that de- cision to be wrong.(/i) ^ 580. Further, the court will never compel a purchaser to take a title where the point on which it depends is too doubt- ful to be settled without litigation, or where the purchase would expose him to the hazard of such proceedings. The court will not, to use the favorite expression, compel him to buy a law- suit. (o) [o] ^ 581. But though the court is thus jealous in protecting pur- chasers from risk, it is not the suo^gestion of a mere theoret- ical doulit that will discharge them from their contracts. The court, to use Lord Hardwickc's language in one case,(p) " must govern itself by a moral certainty, for it is impossil)le in the na- r^„«_T ture of things there should be a *mathematical cer- r*2o7 . . ° *■ tainty of a good title," or as it was expressed by Baron («) Per Turner, V. C, in Pyrke v. Wad- er any other court ■would come to an oppo- dingham, 10 Ha. 8. " site conclusion. But Lord St. Leonards has (I) Price V. Strange, 6 Mad. 159, 164. expressed his doubt upon this case, Vend. (w) 10 Ha. 1. In the case ol' Wrigley v. 322. Sykes, 21 lieav. 337. the master ol' the rolls («) Rose v. Calland, 5 Ves. 18fi. considered that if the court is of oi)inion (o) Price v. Strange, (5 Mad. 159, 165; that a title is clear, it will enforce specific Sharp v. Adcock. 4 Uuss. 374. performance, and will not speculate wheth- {w) Lyddal v. Weston, 2 Atky. 20. [3] See, to this effect, the case of Butler v. O'Hear, 1 Dessau. 382. WANT OF A GOOD TITLE. 351 Aldcrson, there must, to render the title had for this purpose, " be a reasonable, decent probability of litigation. "(j) -. • c \ / r*2581 To this head may perhaps be referred the fact, that the •- J court will compel specific performance of a title depending on the invalidity of a voluntary conveyance as against a purchaser for valuable consideration without notice, (?r) the court, as it seems, acting on the presumption of the conveyance not having been rendered valid by subsequent dealings. (?) In Cattell v. Corrall, 4 Y & C. Ex. 237. (it) Prossor v. Watts, 6 Mad. 59; Magcnnis (r) Sec as to this case jier Sir Win. Grant in v. Fallon, 2 Moll. 5G1. Seaman v. Vawdrey, Iti Ves. 39o ; Martin v. (t) Causton v. Macklew, 2 Sim. 212. Cotter. 3 Jon. & L. 49(5. (h) IJutterlield v. Heath. 15 Uoav. 408; [s) Spencer v. Topiiam. 22 Beav. 573. Buckle v. Mitchell, 18 Ves. 100. (0 Emery v. Grocock, 6 Mad. 54; Barnwell V. Harris, 1 Taunt. 430. 352 FRY ox SPECIFIC PERFOiniAXCE OF CONTRACTS. § ,583. Wo have already secMi that where the evidence would he left to a jury to draw their own conclusion from it, if the case were before such a tribunal, there the presumption is not held to be sufficient to justify the court in forcing the title on a purchaser. To this principle we may probably refer many of those cases where a doubt as to a fact has prevailed : as where the title depended upon proof that there was no creditor who could take advantage of an act of bankruptcy committed by the vendor ;(.c)or where the title depended on the absence of notice of an incumbrance, of which absence the vendor produed some evidence.(?/) or upon the presumption arising from mere pos- session. (s) ^ 584. The court will not allow a voluntary settler to force on a purchaser a title depending on the invalidity of the settle- ment. (a) " One difficulty in the way of assisting him," said Lord Eldon(/>) "is, that he has no equity to defeat the act wdiich he has done himself: but another consideration which has ■weighed in such cases is, that if you compel a purchaser to take an estate at the instance of such a man, you cannot be quite sure that there ma}'^ not have been some intermediate acts, which by matter ex post facto, may have made the settlement good which in its origin was not good." *§ 585. A question of no little nicety arises, where, •- ■' though there be no proof of fraud, the circumstances of the title may admit of a suspicion of it, and where the bona or wirfZ«/?cZe.sof the transaction, and its consequent validity, depend on extrinsic circumstances. In Hartley v. Smith, (c) the title depended on a deed of grant of chattels, containing a stipulation for the grantor's continuing conditionally in possession ; and Sir John Leach, without deciding whether such a deed was in itself fraudulent and an act of bankruptcy, declined to force the title on the purchaser, on the ground that its validity depended on its being made upon good consideiation and bona Jide, and that these were circumstances, the existence of which the purchaser (.r) Lowes V. Lush. 14 Yes. 547. (a) Smith v. Garland, 2 Mer. 123 ; Burke (j() Freer v. Hesse, 4 De G. M. & G. 495. v. Dawson, Sug. Vend. 592. (z) Eytou V. Dicken, 4 Pri. 303. (b) In Johnson v. Legard, T. & R. 294. (c) Buck V. Baakr, C. 368. WANT OF A GOOD TITLE. 853 had no adequate means of ascertaining. " My opinion therefore is," said the vice chancellor, " that a court of equity ought not to compel this purchaser to accept this title ; because assuming the deed not to be fraudulent ex facie, it still may be avoided by circumstances extrinsic, which it is neither in the power of the purchasers or of this court to reach."(t?) § 586. This dictum of Sir John Leach seems to allow no room to the presumption of bona fidefi, and to make the possibility of fraud in extrinsic facts a sufficient olijcction to the title : accord- ingly, it has not been accepted in all its generality. It " nuist not," said Baron Alderson, of this dictum, " be pushed to the farthest extent which the words will possibly bear :"(e) and ac- cordingly, that judge held as good a title under a deed which extrinsic evidence might have shown to be invalid, as comprising all the property of the grantor, or as made to give a fraudulent preference to some creditors over others, or as made in contem- plation of bankruptcy, because there was no ground apparent *for making any of these objections to it.(/) In another case,(^) the vendor claimed under an appointment made ^ J by a husband and wife to their eldest daughter, under a settle- ment which gave them successive life estates, with remainder to their children as they should appoint, and in default of appoint- ment, between such children; and the parents had incumbered their life interests, and shortly after the appointment they and their daughter executed a mortgage : these were circumstances which might create in every one's mind a suspicion that the ap- pointment was a fraud on the settlement, and that was strength- ened by a notice from a younger son to the purchaser not to complete, and that the appointment was such a fraud : but in- asmuch as the notice alleged no facts, and gave no informa- tion not apparent on the abstract, and was not followed up by any proceedings, the court considered that the title was not open to any sufficient doubt, and forced it on the purchaser. (ri) p. 380. See also Boswell v. Mcndham, ( f) Cattell v. Con-all. 4 Y. & C. Ex. 228. 6 Mad. 373. (^) Ureeu v. rulslbnl, 2 Bcav. 71. (e) 4 Y. & C. Ex. 2JC. 354 FRY ON SnXIFIC PERFOKMANCE OF CONTRACTS. And in an earlier case, where there were somewhat similar "•rounds for suspecting the bona Jides of an appointment, Lord Eldon pursued the same course, and enforced specific perform- ance. (//) § r^bl. Again, a purchaser is not entitled, in the absence of circumstances of suspicion, to refuse a title made under a will, because the will has not been proved against the heir or he does not join :{i) so that where during a litigation of thii-teen years, no question had been raised impeaching the validity of the will, and a person who had claimed under another will had with- drawn from all contention against that first mentioned. Vice Chancellor Wood compelled the purchaser to take a title under the will.(/.-) [4] *^ 588. But on the other hand, the court refused to J compel specific performance in respect of a title, which in absence of special circumstances was irregular, such circum- stances not appearing.(/) § 589. The doubt which may prevent the court compelling the purchaser to accept a title may be a doubt either of law or of fact : and, as to law, it may be connected with the general huv of the realm, (w) or with the construction of particular in- struments ;(») and, as to fact, it may be in reference to facts appearing on the title, or to facts extrinsic to it.(o) Again, it may be about a matter of fact which admits of proof, but has not been satisfactorily proved, (jj) or about such a matter as (;i) M'Queen v. Farquliar, 11 Ves. 467. See ("0 Sloper v. Fish, 2 V. & B. 145 ; Blosse v. also Grove v. Bastard, 2 Thil. 619 ; S. C. 1 De Lord Claumorris, 3 Bli. 62. G. jNI. & G. 69. (") Lsiiceln v. Arcedeckne, 1 Coll. C. C. (() Colton V. Wilson. 3 P. M'nis. 190; per 38; Biistow v. Wood, 1 Coll. C. C. 480; per Lord Kldoii in Morrison v. Arnold, 19 Ves. Turner, V. C, in Pyrke v. Waddingham, 10 670 ; Weddall v. Nixon, 17 Beav. 160. Ha. 9. (/) M'Culloch V Gregory, 3 K. & J. 12. (u) Id. (I) Blucklow V. Laws, 2 Ha. 40. (?-) Smith v. Death. 5 Mad. 371. [4] But a title may be doubtful, because it depends on a doubtful interpre- tation of a will, if all parties who may be interested in the estate are not bound by the decree, and therefore will not be forced upon a purchaser. Sohier v. Willi.ims, 1 Curtis' C. C. Rep. 479. FAILURE OF CONSIDERATION. 355 from its nature admits of no satisfactory proof, as the negative proposition that there -was no creditor of the vendor capable of taking advantage of an act of bankruptcy. ((7) § 590. The grounds of defense hitherto considered in these pao-es arc for the most part such as are connected with the con- tract itself, or the circumstances under which it was entered into : those now to be considered relate principally to matters ex post facto and subsequent to the contract. *C II AFTER XVIII. [*262] OF FAILURE OF THE CONSIDERATION. § 591. It will be necessary to inquire under what circum- stances, events which either determine the existence of the sub- ject matter of the contract or essentially affect it, will furnish a defense in specific performance. Events affecting the subject matter, but not essentially, may give rise to a claim for compen- sation, but will not discharge the contract. § 592. Events happening before the conclusion of a contract, and either determining the existence of the subject matter or materially affecting it, may avoid a contract which, but for such events, would have been complete and binding. The operation of such events is, properly speaking, not to determine the con- tract, but to prevent the contract ever arising. § 593. In one case,(rt) the agreement M'as for the sale of an estate in fee in remainder on an estate tail ; a conveyance had been executed and a bond given for payment of the purchase money, when it was discovered, for the first time, that at the time of the sale no such remainder existed, the tenant in tail having previously suffered a recovery : the court rescinded the (q) Lowes V. Lush, 14 Ves. 547. (a) Hitchcock v. Giddings, 4 Pii. 135. 356 FRY ON SPECIFIC PERFORMANCE OF CONTRACTS. contract, and ordered the bond to be delivered up and repayment to be made of all interest which had been paid on it.[l] § 594. A contract relating to a chattel implies, at law, L 2"' J *tiie existence of the chattel, and its existence in the form or of the description specified in the contract, and conse- quently an event destroying the chattel before the contract is concluded puts an end to it. Therefore, Avhere an agreement for the sale of a life annuity was concluded in England cm the 28th of February, and the annuitant died in New South Wales on the Gth of the same month, there was held to be no contract :{b) and where a floating cargo was sold, and it subsequently ap- peared that at the time of the sale the captain had sold the caro-o abroad, in consequence of the damage it had sustained at sea, the exchequer chamber and the house of lords held the cou- (6) Slricklancl v. Turner, 7 Exch. 208. [1] It is well settled that a contract may be avoided for failure of considera- tion ; but it must be a total one ; or at least total as to distinct parts of the contract ; the object of the agreement must be defeated or rendered unattain- able by the defiiult. Morrill v. Aden, 19 Vt. (4 Washb.) 505. Baker v. Thompson, IG Ohio, 504. Selby v. Hutchinson, 4 Gilm. 319. Jacox v. Clarke, Walk. Ch. 508, is a case analogous in principle with Hitchcock v. Giddings, cited in the text. The defendant, there, received the grant of the right to use certain water power, and dig a race on complainant's land, in consideration of erecting a mill at a certain place where their lands joined. But the defendant, having diverted the water from the complainant's land, built his mill at another place. It was held that the consideration had failed, and the complainant was entitled to a reconveyance; and further that the defendant should be enjoined from setting up his deed in defense in any action for a previous diversion of the water. At law, a failure of consideration, incases of contract, is constantly treated as a sufficient ground for considering the contract as rescinded and maintaining an action for money had and received. Cloherty v. Creek, 3 Har. & J. 328. Eames v. Savage, 14 Mass. 425. Lyon v. Annuble, 4 Conn. 350. Gillet v. Maynard, 5 John. 85. Raymond v. Bearnard, 12 id. 274. Wheeler v. Board, Id. 363. Davis v. Marston, 5 Mass. 199. Danforth v. Dewey, 3 N. H. 79. Spring v. Coffin, 10 Mass. 34. Lacoste v. Flotard, 1 Rep. Con. Ct. 467. Wharton v. O'Hara, 2 N. & M. 65. Duncan v. Bell, Id. 153. Pettibone v. Roberts, 2 Root, 258. Boyd v. Anderson, 1 Overt. 438. Putnam v. Westcott, 19 John. 73 FAILURE OF CONSIDERATIOX. 357 tract to be incapable of being enforced. (c) [2] But as no war- ranty is implied at law as to condition, the sale of a ship at sea, which at the time happened to have been stranded, was bind- ing, for the subject of the contract still continued a ship.(r?) § 595. The impossibility of performing a contract of which the subject matter is extinct would of course prevent the inter- ference of equity in these cases, if on other grounds it could give relief.(e) § 596. But a person may so contract as to preclude himself from raising any question as to the existence or determination of the subject matter at the time of the contract. (/) § 597. The question of the time at which the contract has become complete arises particularly in cases of sales by the court, because until the report had been confirmed absolute, or accord- ing to the new practice, until eight days after the certificate of the purchase has been signed by the judge in chambers, the bid- dings may be reopened. In these cases, the question is whether the contract is to be *treated as concluded by the sale |^.^^,-, before the master, subject only to being defeated by the l J opening of the biddings, in which case the confirmation will re- late back to the day of sale, and that day will divide events prior and events subsequent to the contract ; or, on the other hand, whether the contract is to be considered concluded only when it becomes absolute and indefeasible by the confirmation. In the case of Vesey V. Ehvood,(p') Lord St. Leonards decided on the former of these views, that the sale transfers the property, sub- [c) Couturier v. Hastie. 8 Ex. 40, reversed (c) See post. J 658. in Cam.Scac.9 Ex. 102: the reversal afliruied (/) Hanks v. Pulling, 25 L. J. Q. B. 375. 5 Ho. Lords, (i73. See post, § 830. (d) Barr v. Gibson, 3 M. & W. 390. (g) 3 Dr. & W. 74. [2] The same doctrine obtains at law. Dickson v. Cunningham, Mart. & Yerg. 203. In that case, the defendant was indebted to ^., who was indebted to B., who was indebted to the plaintiff; they all met together, and the de- fendant aided ^V. in successfully assigning to the plaintiff a debt which belonged to neither; and, by this means, j/. paid his debt to B., and B. paid his debt to the plaintiff, and u^. credited the defendant. Held, that the plaintiff might disaffirm the contract, and maintain an action of assumpsit against the de- fendant. 358 FRY ON SPECIFIC FEIIFORMANCE OF CONTRACTS. JGct only to the risk of its being opened. This was the view of Lord KIdon also, in Anson v. Towgood,(Z() though it seems at variance with the previous cases(2) before him. The other view is supported by the statement of Lord Langdale ; — "by the es- tablished rule of the court, the purchaser is to be considered as the owner of the estate from the date of the order confirming the report ; "(k) but as the circumstance which in this case gave rise to the question was not only after the sale but after the confir- mation also, the case is probably not of the same weight on the point now under discussion, as if the circumstances had been after sale but before confirmation. [3] § 598. With regard to events happening in the case of private contracts after their beino; signed, it has been laid down that the question on whom the advantage or loss resulting from them would fall, and whether, therefore, the court would enforce spe- cific performance without reference to them, — or whether, on the other hand, they might determine the contract, — is to be decided by whether or not the title had then been actually accepted. (?) P^ ^--j But the more *correct doctrine appears to be that the *- contract is binding from signature if there be a good title, though that may not be shown till afterwards. "It is," said Sir Thomas Plumer,(;;i) "the established doctrine of equity, that if a contract to purchase is to be completed at a given period, and the title is finally made out, the parties continuing in treaty, and the purchaser not by any acts released from his bargain, the estate is considered as belonging to the purchaser (/i) 1 J. & W. 637. 265 ; cf. Paramore v. Greenslade, 1 Sm. & (i) Ex parte Minor, 11 Ves. 559, (which G. 541. may perhaps be supported by the general (I) Wyvill v. Bishop of Exeter. 1 Pri. power of the court in dealing with such con- 292, 295, n.; and see Paine v. Meller, 6 tracts ;) Twigg v. Fifield, 13 Ves. 517. Ves. 319. (i) Robertson v. Skelton, 12 Beav. 260, (;«) In Harford v. Purrier, 1 Mad. 538. [3] In Kentucky, it is clearly the rule that the highest bidder at a sale, un- der a decree, is held only as a prefeired bidder, subject to confirmation by the chancellor. Busey v. Hardin, 2 B. Monr. 407. And it would seem that the same doctrine is adopted in Tennessee. Owen v. Owen, 5 Humph. 352. In Maryland, the practice of opening biddings does not prevail. Andrews v. Scotton, 2 Bland, 629. FAILURE OF CONSIDERATION. 359 from the date of the contrMct, and the money from that time as belonging to the vendor."[4] § 599. Where the contract is in its inception conditional, the transfer of property from the vendor to the purchaser takes place not on the conclusion of the contract, but on its becomiuij al>so- lute by the performance of the condition, and until that event the property sold remains at the risk of the vendor. This is well illustrated by a case(;i) which was decided by the judicial com- mittee of the privy counsel, on appeal from the Court of Chan- cery in Canada. An agreement was entered into for a lease for five years, from the 1st of April, 1840, the landlord undertaking to erect by that time a new warehouse on part of the ground to be demised, and to put the old warehouse in repair, the amount of rent to be determined with reference to the amount expended on the buildings. The new building was not completed, nor the old warehouse repaired, on the 1st pf April, but no objection was made by the intended lessees, who then continued to occupy part of the premises under a former agreement. Shortly after- wards, the whole premises were destroyed by fire. The landlord brought a bill for specific performance of the agreement, and for the defendants to rebuild the premises and accept a lease. It was held, in the first place, that if time were of the essence, it («) Counter v. Mackpherson, 5 Moo. P. C. C. 83. [4] If a defondant is able to make a perfect title at the time of the decree, the plaintiff's rights under his contract of purchase are as thoroughly protected, and his objects as successfully attained, in the views of a court of equity, as though title had been given on the day of the contract. The right of a pur- chaser, in these cases, is clearly a fixed and determinate one. So much so that where there is a contract for the purchase of land, and the person con- tracting to sell declines executing the contract, upon the ground that he is unable to give a good title, and the purchaser files his bill to compel the de- fendant to complete his contract, or rescind it, if the defendant is able to give a good title at the time of the decree, the complainant will be compelled to accept it. Pierce v. Nichols, 1 Paige, 244. Baldwin v. Salter, 8 id. 473 ; 7 id. 78. Seymour v. Delancey, 3 Cowen, 446. In the cases of chattels the rule is different. Seymour v. Delancey, 3 Cowen, 535. 360 FRY ON SPECIFIC PEKFOmiANCE OF CONTRACTS. had been waived by the defendants, *bnt that this did '- J not waive the obligation on the lessor as to building, and that the defendants were not bound to accept a lease till that was performed; and, in the second place, that, treating the contract to take a lease as a contract to purchase, the ware- house was never purchased by the lessees until it was completed by the lessor; and, consequently, that until that was done it was not the property of the lessees, nor at their risk. [5] § 600. When the contract has been completely made, the thing sold was at the risk of the purchaser, who must bear all subsequent losses, and is entitled to all subsequent gains :(o) such events, therefore, cannot determine the contract.( j9)[6j (o) Instit. 1 iii. tit 24. see. 3; Pothier, Tr. (?>) Per Lord Manners in Revell v. Husscy, du Contrat de Veute, part iv. 2 liall & B. 287. [5] Personal property is, equally with real estate, the subject of conditional sale ; and possession is to be construed only as prima facie evidence of owner- ship. Mount V. Harris, 1 S. & M. 185. Where a slave M'as delivered under an agreement that the person taking her should return her or pay a certain price for her in a given time, it was held to be a conditional sale, and that the slave was not subject to the vendee's debts, while the condition was not per- formed. Id. Where a slave is delivered under an agreement of sale, at a fixed price, to be paid at a day certain, but, until paid, the legal title to remain in the vendor, the title of the buj'er does not become absolute until the payment of the purchase money, nor does it become liable for his debts until then. Gambling v. Reed, Meigs, 281. But in such a case, the seller holds the legal title only as security for the purchase money, and if the buyer conveys the slave to a trustee to secure a debt, equity will not order the slave to be given up absolutely at the suit of the seller, but a short time will be given to the defendants to pay the purchase money and keep the slave. Id. In the con- ditional sale of a slave, the property is at the risk of the vendee. Prather v. Norfleet, 1 A. K. Marsh. 178. A condition may, however, be waived by sub- sequent acts. So, where goods are sold and delivered on condition that the purchaser gives his own notes on time therefor, indorsed by a third person, which he fails to perform, and the seller then takes the purchaser's own notes, for the price, on demand, with warrant of attorney to confess judgment thereon, this is a waiver of the condition, and an affirmance of the sale. Saunders v. Turbeville, 2 Humph. 272. [6] A vendee, being equitable owner of the estate from the time of the con- tract for sale, must paj'' the consideration for it, although the estate itself be destroyed between the agreement and the conveyance ; and on the other FAILURE OF CONSIDERATION. 361 § GOl. Formerly this principle docs not appear to have been as clearly recognized as it is at present : thus, in case of a great subsequent advantage, Lord Ilardwicke seems to have doui)ted how far the court would decree specific performance on the orig- inal terms. (7) And where A. agreed to sell his estate for an annuity during his life : the time appointed for conveyance was the 31st of Octo])er, l)ut the annuity was to connnence from the 5th of April previous, and to be paid half-yearly : the half- year's payment, due on the 5th of October, was not paid or tendered, and on the 12th of November, A. died from an acci- dent ; Lord Balhurst and the house of lords dismissed a bill for specific performance. (r) Lord St. Leonards(.'f) attrilnites this decision to the neglect to make or tender the payment ; but it does not seem clear that the case was not considered by the judges who decided it as one of inadequate consideration, and treated as a case of ha'rdship. (g) Davy V. Barber, 3 Atky. 489. See (r) Pope v. Roots, 1 Bro. P. C. 370. also Stent v. Bailis, 2 P. W^ms. -217. (s) Vend. 244. hand he will be entitled to an3^ benefit which may accrue to the estate in the interim. 1 Sugden, Vendors and Purchasers, 468, (Gth Am. ed ) The Scotch and Roman law are in accordance with it. Id. Institutes, 111, 24, § 3. Under a contract for the sale of land, where the whole consideration has been paid, the vendor is a mere trustee for the purchaser, and he cannot, while re- fusing to convey to the vendee, enter into any speculations, in relation to the land, for his own benefit. Kellogg v. Wood, 4 Paige, 578. Thompson v. Gould, 20 Pick. 134, is also a case in point, the distinction, and the ground of decision being however, that the agreement was by parol and within the statute of frauds. In that case, the plaintiff made a parol agreement for the purchase of a parcel of land, with a dwelling house thereon, of the defendant, and paid the purchase money, taking a written receipt that it was paid for the estate, the defendant undertaking to procure a discharge of a mortgage on the estate, and which he accordingly did, but, before the deed was given or ten- dered to the plaintiff, the house was destroyed by fire. It was held, that the payment did not take the contract out of the statute of frauds, and that the plaintiff was entited to recover back the money, on the ground of a fivilure of consideration. " In matters of positive contract and obligation," says Mr. Justice Story, (Eq. Jur. § 101,) "created by the party, (for it is different in obligations or duties created by the law,) it is no ground for the interference of equity, that the party has been prevented from fulfilling them bj^ accident ; or that he has been in no default; or that he has been prevented by accident FllT — 24 362 FRY ON SPECIFIC PERFORMANCE OF CONTRACTS. r*9r7l ^ ^^^' ^^^^ principle as now established is illustrated bv *nnmoroiis cases. Thus, where money was left to be laid out in land to be settled to the use of A. in tail, remainder to B, in fee, and A, and B. agreed to divide the money, and be- fore the airreement had been carried into execution A. died with- out issue, the agreement was nevertheless specitically perform- ed. (<;) So an agreement to sell for an annuity Avill not be avoided by the death of the annuitant, even before any pay- mcnt.(«) So where, sul)sequently to the contract, houses were bui-nt down, the loss fell on the purchaser.(^>) And, again, where a trader agreed to take two persons into partnership for a period of eighteen years, in consideration of a sum to be paid by installments, and before they were all paid he became a bankrupt, the assignees were held entitled to the remaining installments. (?6") (0 Carter v. Carter, Forrest, 271. taken place after the contract had lieen car- 00 Mortitner v. Capper, 1 Uro C. C. 156 ; ried into effect. See Uathlj''s n. on the case, Jackson v. Lever, 'i Uro. C. C. 605. and 1 Bro. C. C. 156. n. [o) Paine v. Meller, 6 Ves 319. In Cass (w) Akhurst v. Jackson, 1 Sw. 85. See V. liutldle, 2 Vern. 2S0. tlie earthcjuake also per Lord Eldou in Coles v. Trecothick, which destroyed the houses appears to have 9 Ves. 216. from deriving the full benefit of the contract on hi.s own side. Thus, if a lessee, on a demise, covenants to keep the demised estate in repair, he will be bound in equity, as well as in law, to do so, notwithstanding any inevitable accident or necessity, by which the premises are destroyed or injured; as if they are burnt by lightning, or destroyed by public enemies, or by any other accident, or by overwhelming force." Upon this same obvious principle, that the thing which a person has bound himself by contract to take, or the act which he has agreed to do, shall thenceforth be at his own risk, the rule is likewise applied in cases where there is an express covenant to pay rent during a term. "It must be paid notwithstanding the premises are accidentlly burnt down during the term. And this is equally true as to the rent, although the tenant has covenanted to repair, except in cases of casualties by fire, and the premises are burnt down by such casualty ; for Expressio unius est exclusio alterius. In all cases of this .sort, of accidental loss bj' fire, the rule prevails, Ees peril domino ; and, therefore, the tenant and landlord suffer according to their proportions of interest in the property burnt ; the tenant during the terra, and the landlord for the residue." Story's Eq. Jur. § 102. See Balfour v. Weston, 1 T. R. 310 ; Fowler v. Bott, 6 Mass. 63; Ilallet v. Wylie, 3 .John. 44 ; Pollard v.Shaeffer. 1 Dallas,"210; Wagner v. White, 4 Harr. & John. 504; Ripley v. Wightman, 4 McCord, 447; Gates v. Green, 4 Paige, 355; Linn v. Ross, 10 Ohio, 412; 3 Kent's Com. 4G5, 408. FAILURE OF COXSIDERATIOX. 363 § 603. Where an agreement, capable of l)eing specifically ex- ecuted at the time of the filing of the bill, has by lapse of time between that and the hearing become incapable of execution in the ordinary way, so as to confer future benefits, the question arises, what course ought to be pursued. This question came before Sir Thomas Plumer in Nesbit v. Mcyer,(a;) where a bill was filed before the term expired for a specific performance of an agree- ment to accept a lease, but, without fault on either side, the term expired before the hearing. The case was decided upon another point, but the master of the rolls evidently inclined to the opinion, that the court would not decree the execution of a formal lease after the expiration of the term. In accordance with this view, Lord Cran worth, approving the judgment of Vice Chancellor Wood, has expressed *the opinion that r^^no-i it would require very special circumstances indeed to in- duce the court to decree specific performance of a lease after the expiration of the term.(?/) " What the court," said his lord- ship, (s) " really would be decreeing in such case would not be the specific performance for an agreement for a lease, but merely that the lessee should make himself a specialty debtor in respect of past benefits received." It is, however, to be remarked, that the circumstances of the case before Sir Thomas Plumer and before his lordship w^ere different, inasmuch as in the former the delay seems entirely due to the court ; whereas in the latter no steps were taken until just before the expiration of the term, so that it was impossible for the plaintiff to obtain a decree until the term was at an end. § 604. On the other hand, the opinion of Baron Alderson was somewhat at variance with the doctrine above stated. " The moment the bill is filed," said his lordship, (a) " the rights of the parties remain fixed, or ought so to do. I cannot accede to the doctrine in Nesbitt v. Meyer. How can the constitution of the court alter the rights of the parties ? " The decision in the case in the exchequer seems, however, reconcilai)lo with those (.T) I S^v. 2-23. {z) P. 639. See also Hovle v. Livesey, 1 {y) Walters v. Northern Coal Mining Com- Mer. 381. pany, 5 De G. M. & G. 6J9. (o) Wilkinson v. Torkiugton, 2 Y. & C. Ex. 726, 728. 364 FRY ON SrECIFIC TEKFORMANCE OF CONTRACTS. before stated ; for the prayer of the bill was for the specific per- formance of an ngreenicnt for a lease, and for an account of ar- rears of rent on the footing of the agreement, and it was held that although by the expiration of the term before the hearing the specific peiforniMncc could not be granted, yet that the plaintiff was entitled to a decree for an account. § G05. And similarly, in a previous case((^) before Sir John Leach, he held that a bill might be maintained l)y a purchaser for the specific performance of an agreement for a life annuity, r*9pn"i although the annuitant had died not only *before the hearing, but before the bill was filed, where there were arrears of the annuit}' between the time of the purchase and the death of the annuitant, to which the i^urchaser had an equitable title under the contract : but his honor said that it might be a question whether such a bill could be maintained if the death of the annuitant were to happen so that the purchaser took no benefit under his contract, as might happen where his title was to commence at a future time. § 606. These cases, it must be confessed, leave the exact state of the law on this point somewhat difficult to state. 'It is, how- ever, submitted that the rule to be collected from them is to the effect, that where a bill for specific performance is filed after the expiration of the interest, or so shortly before its expiration, as that according to the ordinary course of the court a decree cannot be made till after it shall have determined, the bill will be dismissed ; but that where the plaintiff is at the filing of the bill entitled to specific performance, and the delay which causes the expiration of the interest before the hearing is due entirely to the constitution of the court, the plaintiff will be entitled to an account, or other equitable relief to which he may show a right, and perhaps to the execution of a legal instrument, where that would confer on him important legal rights to Avhich he was entitled at the filing of the bill. § 607. In case of an agreement, legal at the time it was en- tered into, but subsequently and before decree rendered illegal by statute, it would seem to be clear on principle that no spe- (b) Kenney v. Wexham, C Mak. 355. See Strickland v. Turner, 7 Ex.208. DEFAULT OF TLAINTIFF. 365 cific performance could be granted except in cases where the court cun still execute the contract cy pres :{c) a contract thus rendered illegal would in the contemplation of the court have become impossible.(6Z) ♦CHAPTER XIX. [*270] OF DEFAULT ON THE PART OF THE PLAINTIFF. § 608. With regard to the matters to be done by the plain- tifl' according to the terms of the contract, it is, from obvious principles of justice, incumbent upon him, when he seeks the performance of the contract, to show, first that he has performed, or been ready and willing to perform, all essential(rt) terms of the contract on his part to be then performed ; and secondly, that he is ready and willing to do all matters and things on his part thereafter to be done ; and a default on his part in either of these respects furnishes a ground upon which the suit may be resisted. (6) [1] § 609. We will first consider cases of default in respect of acts which ought to have been already done. § 610. The performance to be shown by the plaintiff extends (c) See post, 5 667 et seq. also Winniugton v TJrisco, 8 Mod. 51, aad [il) Atkinson v. Ritchie. 10 East, 530, ante, § 307. 534; Barker v. Hodgson. 3 M. & 8. 267; (a) 2 Eq. Cas. Abr VH Esposito V. Bowdcu, 4 Ell. & Bl. 963. See (6) See post. § 616. [1] McNeil V. Magee, 5 Mason, 244. Longworth v. Taylor, 1 McLean, 395. Colson V. Thompson, 2 Wheat. 33G. Watts v. Waddle, 6 Pet. 389. Vail v. Nelson, 4 Rand. 478. Bates v. Wheeler, 1 Scam. 54. Stewart v. Raymond Rail Road Co., 7 S. & M. 568. Wood v. Perry, 1 Barb. Sup. Ct. R. 114. Secrest v. McKenna, 1 Strobh's Eq. 356. Richardson v. Linney, 7 B. Monr. 571. Tyler v McCardle, 9 S. & M. 230. A party seeking a specific perform- ance cannot be excused from proper diligence, by showing negligence on the part of the defendant. Longworth v. Taylor, 1 ^IcLean, 395. Doyle v. Teas, 4 Scam. 202. And a subsequent offer to fulfill his part of the agreement, by a party who has failed to perform at the time stipulated, will not justify the granting of a decree of specific performance. Unless performance can be shown, or the benefit of performance secured to the defendant, .specific per- 366 FRY ON SPECIFIC PERFORMANCE OF CONTRACTS. not only to tlic terms of tlic contract itself, hut to representa- tions made at the time of the contract of future acts, on the faith of which the contract was made.(c) Thus where a vendor at a sale represented that he would make improvements in the access to the property sold, and failed to do so, the court refused specifically to perform his contract ;(J) and again, the same was the decision of the court in a case where the vendor by his agent, represented that a *church should be erected in the im- r*2711 . L J mediate neighborhood of the buildino; ground which Avas the subject of the contract, and that he Avould complete certain streets, and the purchase was made on the faith of these repre- sentations, which the plaintiffhowever never carried into effect. (e) § Gil. We may here briefly inquire into how far maps or plans of the property, exhibited by the vendor at the time of entering into the agreement, form representations of the kind we are now considering. § 612. Where the parties have matured their agreement into a contract, and that contract is silent on the subject of such map or plan, the court will not from such exhibition infer a contract. (/) This applies alike to private contracts and to special acts of parliament, so that notices given, and plans and sections deposited, are not to be used in construing an act afterwards, except so far as they are referred to, and thus incorporated in the act of parliament itself.(^) § 613. Where the map thus exhibited delineates the intended division of the property by new roads, the vendor may not af- (c) As to Avhat representations will in equity son, 2 Dow, 301; Squire v. Campbell, 1 My be considered as part of the contract, see the & Cr. 459. chapter on Misrepresentation, ante, § 425 et (g) North British Railway Company v. Tod, seq. 12 CI. & Fin. 722; Beardmer v. London and (d) Beaumont v. Dukes, Jac 422 North-western Uailway Company, 1 M"N. & (e) Myers v. Watson, 1 Sim. N. S. 523. G. 112. if) Feoffees of Heriot's Hospital v. Gib- formance will not be decreed in favor of a vendee, even if possession has been given and improvements made by him. Simmons v. Hill, 4 liar. & M'Hen. 252. This principle, that a plaintiff must perform the essential parts of his contract, is fully carried out, at law, in cases concerning deeds Fuller v. Hubbard, 6 Cowen, 13. Fuller v. Williams, 7 id. 63. Newcomb v. Brackett, 16 Mass. 161. Fames v. Savage, 14 id. 425. Eveleth v. Scribner, 3 Fairf. 24. DEFAULT OF PLAINTIFF. 367 terwarcls divide the land in a manner so different as to attract a population entire!}' different from that which would have been produced by the carrying out of the plan proposed by the map.(/<) § 614. But though the exhibition of a map may bind to this extent, it will not oblige to an exact performance of tlu; scheme it embodies. Thus Avhere a plan was referred to in the contract, and used as a description of the part of the property in question, and on this plan the measurement and w^dth of the street were marked, but there was *nothing in the agreement which j.^ „ distinctly pointed out that part of the plan as binding *- ' the parties .to the agreement, the master of the rolls held that it did not form part of the agreement, so as to entitle one party to relief against an encroachment on the width of the street.(/) In another case the particulars referred genei'ally to an accompany- ing plan, and on the plan several roads were marked out so as to provide frontages for all the lots, and the lines of roads were market out on the land itself in accordance with the plan : Sir J. L. K. Bruce, then vice chancellor, held that in the absence of any clause in the particulars or conditions of sale providing for any rights of wa}^ beyond a road leading into the nearest high- W'ay, such road was all that the purchaser was entitled to.(^') § 615. Where the sale plan, instead of, as in the previous cases, representing an intended and future state of the property, accurately represents it in its actual and present state, it has been held that it will not carry the case higher than a view of the property. Therefore where a plan represented a well on lot 4 communicating with a reservoir on lot 2, and that communi- cating with the inn which was the lot 1 which the plaintiff purchased, and the vendor conveyed lots 2 and 4 without any reservation to the plaintiff of a right to a flow of water from the well, the plaintiff's demand for compensation for the loss of the water was refused. (/) Lord St. Leonards, how^ever, considers this case as open to observation. (?«) § 616. In the avermentof performance by the plaintiff, equity, as already stated, discriminates between the essential and the (/i) Peacock v. Penson, 11 Beav. 355, 361. {I) Fewster v. Turner, 11 L.J. Ch. 161. (() Nurse v. Lord Sevmour. 13 Beav. 25i. (m) Veud. 20. (k) Randall v. txall, iDa (J. & Sm. 343. 3G8 FRY ON SrECIFIC PERFORMANCE OF CONTRACTS. iion-osscntiiil terms of a contract ; and to furnish the tlefenilant "vvith a o-roiiiul for resisting the bill, the non-performance of the „T plaintiff must be of a term important *and considera- '- ^-' ble.r2] Thecourt frequently interferes at the instance of [2] " If the party bound by agreement, to do certain acts, has done acts ■which are equivalent to a performance, or are intended by him to be taken in satisfaction of the obligation, this state of things amounts to an answer to a bill for a specific performance. " In the case of Chapman v. Dalton, (Vin. Ab. 5, 510,) at law, it was said, agreements may be said to be performed when the intent is performed, though it be not according to the words. " The distinction between performance and satisfaction is, that the former is the performance in specie of the agreement ; the latter is where the contract- in"' party has done something in lieu of the thing contracted for. Performance is a question of fact ; satisfaction is not only a question of fact, but also a ques- tion of intention. The distinction has been generally admitted as one of im- portance ; the question in cases of performance is, whether the agreement entered into has been performed : the question in cases of satisfaction is, whether the obligation was intended to be, and ought to be, deemed satisfied by the acts. Lord Thurlow, in one of his reported judgments, seems to have considered, that the question of intention was to be entertained in both cases. In Rickman v. Morgan, (2 B. C. C. 395.) he said : 'This proviso seems to get rid of the cases upon the head of satisfaction, which have been decided upon the head of intention ; as when a man has contracted to pay ji., on his death, a certain sum, and he does an act in discharge of that obligation, many ques- tions have arisen, how far it was his intention to exercise his benevolence, or to apply himself in discharge of the contract. In support of the argument from the circumstances of intention, the burthen of proof must lie upon those who would discharge themselves of the obligation, because such a gift is a bounty prima facie, and cannot be turned round but by strong circumstances of a contrary intention, as in the case of a bond debt. I also lay out of the question cases of performance ; they ultimately turn upon the head of inten- tion ; for if a man has done that which is apparently tantamount to what he covenanted to do, yet if he did not intend it as equivalent, or in performance, it would be idle for the court to say, he meant it as such : therefore I have been at a great loss to make a broad and useful distinction between satisfaction and performance, because of the intention of the testator; it is consequentlj'^ a performance, and if that is the very thing contracted to be done, it is a proof that the party under the obligation has done it in conformity with such obli- gation, and [it] is then to be deemed a performance, because there is no doubt of it.' This doctrine is undoubtedly correct, but the distinction between per- formance and satisfaction is of great importance ; because the onus probandi DEFAULT OF PLAINTIFF. 369 a party who may be debarred from relief at law, because unable to allege performance in the very terms of the contract, which is essential at law.(/i) Thus, for example, where A. contracted to sell property to B., and by the same agreement it was also stip- (n) See per Lord Redesdale in Davia v. Hone, 2 Sch. & Lef. 347 ; ante, i 4. as to the intention lies on different parties in tlie two cases. In the case of satisfaction, that is, something which neither at law nor in equity is an actual performance of the contract ; unless it is presumed from circumstances, or proved that the intention was that the henefit should be taken in satisfaction of the obligation, it will not be assumed. In the case of actual performance at law or in equity, unless it be proved and properly deduced from circum- stances, that it was not intended to be in performance, it will be assumed that it was so done. Lord Thurlow seems only to argue that proof of intention is admissible in both cases; and indeed in another case, Ilaynes v. Mico, 1 B. C, C. 131, he acted upon this distinction, and excluded the question of intention in a case of performance ; he says, " [the husband] having contracted to leave [the wife] a sum of money, and having actually left it, the question is, whether he has not performed his covenant, although he might possibly mean to do a different thing." Batten, Specific Performance, p. 279, et seq. Blandy v. Wedmore, 1 P. W. 324; Lee v. Cox and D'Aranda, 3 Atk. 419, are authorities upon this point. In both these cases the husband covenanted to leave a certain sum to the wife, and died without a will ; but the widow's share, under the statute of distributions, amounted to a larger sum. The court in both cases held, that this was a performance of the covenant. And Sir Thomas Plumer, in Goldsmith v. Goldsmith, 1 Lev. 211, said: "I state the question is at rest, because I consider that the rule is conclusively established by the case of Blandy v. Widmore, in which the judgment of Sir John Trevor was affirmed, and on a rehearing reaffirmed by Lord Cowper. More than a century has since elapsed, and the subject has been frequently under the review of the most distinguished judges, of Lord Hardwicke, Lord Thurlow, Lord Alvanley, and the present Lord Chancellor [Eldon ;] and though the subse- quent authorities of Haynes and Mico, 1 Bro. C. C. 129, and Devese and Pontet, Prec. in Chanc, Finch's ed. 240; 1 Cox, 188, have decided that, in the case of testacy, what was given should not operate as performance or satis- faction of what Avas due, those decisions grounded on particular circumstances, are so far from impeaching the rule that they expressly recognize it." In the case then before him, his honor said, " the principle of the decision was that of performance, that the widow obtained that for which she contracted. If she has received the sum stipulated, and at the time stipulated, namely, at the death of her husband, from his assets, the contract is performed." The case 'was decided according! J^ Lord Hardwicke, in Weyland v. Weyland, 2 Atk. 632, states that where a 370 FRY ON srECinc performance of contracts. iilatccl that A. should continue tenant from year to year of the hmd, and it happened that from embarrassed circumstances he ■Nvas unable to till the tenancy, this was, from the determinable nature of the holding, held to be a matter of no consideration, party to a deed is obliged to do a particular thing for the benefit of another, and he does a thing equally satisfactory, the intent of the original obligation being answered, the court will presume a satisfaction by implication ; but this is in fact performance in equity of the obligation. So a legacy will not satisfy a debt, unless, from its perfect equalitj'-, it is equivalent to a payment of the debt. Hinchcliffe v. Hinchcliffe, 3 Ves. 529. And when the legacy is greater than the debt, the same rule prevails, and the debt wmII not be satisfied. Chauncey's case, 1 P. W. 408. Barclay v. Wainright, 3 Ves. 465. Carr v. Eastbrook, Id. 561. See the note of Mr. Rand to Strong v. Williams, 12 Mass. 406, where the cases on this point are classified. " If a party, under an obligation to do a certain act, do something as a nec- essary step toward the act, the court will presume that he did it with the in- tention of performing his obligation. "If a man agree to purchase and settle lands, and he purchases lands, but does not settle them, and allows them to descend to his heir, they will be considered to have been purchased in pursuance of his agreement." Bat. Contr. 290. So, in Lechmere v. Lechmere, 3 P. W. 211, Lord Talbot, chancellor, held that it was to be presumed that certain estates had been purchased in part satisfaction of a covenant, although they were of less value than the money agreed to be laid out. In Sowden v. Sowden, (1 Bro. C. C. 582,) the same doctrine was followed. Lord Kenyon, master of the rolls, thought that Lech- mere V. Lechmere decided the case. He conceived the principle established to be, that " where a man is bound to do an act, and he does what may enable him to do the act, it shall be taken to have been done by him, with the view of doing that which he was bound to do." Tubbs v. Broadwood, 2 R. & M. 487, was but a confirmation of the same doctrine ; there the obligation was not created by covenant, but mider a private act of parliament, which gave power to a tenant for life to sell the settled est .tes. Lord Brougham, Ch., said: "It may be true, that this is the first time in which the doctrine of Lechmere v. Lechmere has been carried beyond the case of covenant ; but the principle of that case is directly applicable to the present. The whole doctrine proceeds upon the ground, that a party is to be presumed to do that which he is bound to do ; and that if he has done anj^ thing, he has done it in pursu- ance of his obligation." So again, a trustee, under an obligation to buy lands with the trust money, and buying lands, would be held to do it in peiforniance of his obligation. But this is only where there is a distinct obligation and no contrary intention : DEFAULT OF PLAINTIFF. 371 and so not a bar to specific performance of the contract for sale. (o) Ant] all the cases in which the court grants a vendor asking for specific i)erformance indulgence in the making out of his title, (^)) or allows him to enforce the contract with compensation, (5-) are, of course, illustrative of the principle now before us. (0) Lord V. Stephens, 1 Y. & C. Ex. 222. ((/) Sec post, § 791 et seq. (p) Sec post, § 871 et 86(1. it can have no effect against third parties ; and if the trustee commits a breach of trust, there is no lien for the debt; the appHcation of trust money in a manner which is a breach of trust, removes the presumption. The general rule is that if the trustee for the purchase of land, to be settled to particular uses, makes a purchase, the intention shall be presumed; but if the trustee appears not to have intended to execute his trust, making the purchase alto- gether with a different view, the claim of the cestui que trust cannot be sup- ported. Perry v. Philips, 4 Ves. 108 ; 17 id. 173. Lench v. Lench, 10 id. 571. Paxton V. Cox, 17 id. 329. Attoi-ney General v. Whorwood, 1 Yes. sen. 537, is an authority in support of the rule that where a man agrees to purchase and settle land, if he leaves lands in their nature proper, (for a reversion will not do,) which were in form- er estate and descend after his death, or if he purchases and does not settle, it will be considered (unless evidence to the contrary) pro tanio, or in the whole, a performance of the convenant, and purchased with that view ; not on the head of satisfaction, but performance. So again, in Deacon v. Smith, 3 Atk. 323, Lord Hardwicke held the same doctrine, and referred to Roundell v. Breary, (2 Vern. 482,) with approbation. But this last case is not of equal force, because a certain time was named for the performance of the covenant. It is not to be denied, however, that there are cases of an opposite tendency. In Fremoult v. Dedirc, a party covenanted to settle lands of £G0 a year on his wife. Lord Macclesfield held, that none of the lands he had at the time of making the covenant were bound, and that this was but an ordinary debt. 1 P. W. 429. Williams v. Lucas, 2 Cox, 160, is a case of the same nature, but of still less force, for it was obviously decided upon the special terms of the contract which required security of a different nature than the one in point. In Gai"dner v. The jNIarquis of Townshcnd, Cooper, 301, a person covenant- ing to settle lands, and acquiring afterwards lands not by purchase, the lands were not bound : the court said that a purchaser could alone be presumed to have purchased lands to perform a covenant which he had entered into, to settle lands. Lord Ilardwicke thought that selling the lands would be indica- tion of a different intention. Deacon v. Smith, 3 Atk. 327 ; but the question is as to the intention at the time of the purchase, and whether subsequent events could alter the consequences of that intention. Lechmere v. Lech- 372 FRY ON SrECIFIC PERFORMANCE OF CONTRACTS. § G17. Wlicrc that, on the non-pcrformcancc of which by the plaintiirthc defendant relies, is in its nature a collateral and separate contract, or is part of or referable to such a contract, thono-li between the same parties and entered into at the same time, and having relation to the same subject matter as the con- tract which the plaintiff seeks to enforce, the court will not con- sider the default by the plaintiff in respect of the one contract as any bar to the spccifiic performance of the other, though such default may give him a cross right of action or suit.(?-) Thus where A. agreed with B., the owner of a plot of land, to erect a villa on it, and to keep it insured in the joint names of A. and (r) Philips V. Child, 3 Drew, 709. mere. So in Pitt v. Jackson, 2 Bro. C. C. 51, and Ravenshaw v. Hollier, 7 Sim. 3, it was said, that upon a general covenant, the man had his whole life to perform it, and therefore there was no lien upon land acquired during his life. There is, however, a dictum in Tooke v. Hastings, 2 Vern. 97, that a devise of the lands purchased will not be considered proof of the purchase having been made with a different intention than that of performing the cove- nant. But the decision in Tooke v. Hastings was only that the covenant being to charge an annuity on lands, and there being a mere devise of the lands when bought, the annuity was charged : unless there had been words in the devise to show that the testator wished the lands to be held free, the dictum is by no means fully supported by the decision. " If the dictum in Tooke v. Hastings is to be maintained, it must be upheld on the ground, that if the lands were originally purchased with the intention of performing the covenant, the cove- nantor has no right to alter the destination of the lands, and Lord Hardwicke's exception as to persons buying the lands, can only be an expression of the fact, that a purchaser or mortgagee would be protected by reason of his valua- ble consideration, if he had no notice." Eat. Spec. Per. 296. " There seems also to be a leaning of the judges before whom the case of Wellesley v. Wellesley, 10 Sim. 256, was argued, to the doctrine that if a mun covenants to settle lands on a particular day, and if on that day he is in pos- session of lands, however acquired, proper for that purpose, a bill to 'aifect those lands will lie, even although he had an option as to the means of satisfy- ing the covenant. But this can hardly be put higher than a power in the court to compel him to perform his covenant, and restrain him from parting with the lands which he has acquired, until he does perform the covenant ; and it may be a question whether, assuming this equity to be established, notice of such a covenar.t would bind a purchaser or mortgagee in the lands." Martin v. Martin, 2 R. & M. 507. Bat. Spec. Per. 297. DEFAULT OF I'LAIXTIFF. 373 B., in the county fire office, and B. agreed as soon as the house should l)e completed, to grant a lease of the plot to A., and that if A. should not perform his part, the agreement for the lease should be void ; and the agreement also stipulated that A. *should have the option of purchasing the fee within two r^c^jAi years : A. erected the villa,diut insured in a wrong office '- and in his own name alone ; and then brought his l)ill for a sale under the option to purchase, and it was held by the master of the rolls that this option was independent of the right to a lease, and that notwithstanding the plaintiff's default in respect of the latter right, the former subsisted, and he accordingly decreed a specific performance. (.s) [oj (s) Green v. Low, 22 Beav. 625. [3] The cases at law, concerning dependent and indcijendent covenants proceed upon the same principle and are in close analogy with those of equity. Manning v. Brown, 1 Fairf. 49, is an authority of this kind. j4., there, cove- nanted to convey to Ji. a certain lot of land, if certain notes of hand, given at the same time, payable at a future day, should be paid at maturity by li.; and it was further agreed that, in failure of payment of said notes by /?., the agree- ment was to be void, B. to be liable to pay all damages that should have oc- curred to ji., and to forfeit all that should previously have been paid. In a suit on one of the notes, it was held that the promise on the notes, and the covenant to convey were independent, and that a suit on the former might well be maintained, without showing a conveyance or an offer to convey. Leftwitch v. Coleman, 3 How. Miss. 107, and Rector v. Price, 6 Ala. 321, are decisions to the effect, that an action will lie upon a note, given for the pur- chase money of land, payable on a day certain, where there is an agreement to convey by deed upon the payment of the note, the agreement being inde- pendent. And where, on an agreement for the sale of land, the vendee gave his note for the purchase money, payable at the end of twelve months, and took the vendor's penal bond to make him a " lawful title, or cause it to be made," within the same period, it was held, that the note and the bond being wholly separate and disconnected with each other, the performance on the one side was not a condition precedent to the performance on the other, and unless there had been some stipulation to the effect, the agreements were entirely independent. jNIartin v. Bobo, 1 Speers, 26. Nor yet are mutual contracts mutual conditions, when each goes only to a part of the consideration of the other, and a breach of either may be compensated in damages. And, there- fore, where the defendants hired of the plaintiff two slaves at certain monthly 374 FRY ox SPECIFIC PERFORMANCE OF CONTRACTS. § G18. And so, where iii a tlecd for the dissolution of part- nership, one partner assigned to another certain foreign shares, and covenanted for further assurance ; and the other partner covenanted with the former for indemnity against certain liabil- ities : a further assurance of the shares became necessary, and on a bill filed to enforce specific performance of the covenant to that effect, it was held by the lords justices, overruling the master of the rolls, that a breach of the covenant to indemnify, which the plaintifi' had entered into with the defendant, was no defense to the suit. The two covenants were independent, 5o tliat the per- formance of the one was not to be resisted by reason of the non- performance of the other.(^) § 619. Actual performance may in some cases be excused, and readiness and willingness to perform be enough. Where the facts stated in the bill, or appearing on evidence, show that a tender of performance by the plaintiff would have been refused, that renders such tender unnecessary.(?<) And still more clearly, if possible, is non-performance by the plaintiff excused Avhen that has resulted from neglect or default of the defendant. (y) [4j r*97F:i § ^20. With regard to infancy, an infant heir cannot -• *avail himself of his disability to excuse the non-assertion of his right under an executory contract made with his ancestor? when the immediate performance of his part of "the contract is essential to the interest of the other party ; as, for example, of an agreement to lay out money in building within three years.(i(7) «) Gibson v. Goldsraid, 5 De G. M. & G. also Lovelock v. Franklyn, 8 Q. B. 371 ; 757 ; S. C. 18 Beav. 584. Doogoofl v. Rose, 9 C. B. i:jl. (h) Hunter v. Daniel. 4 Ha. 420; per (r) Hotham v. East India Company, 1 Lord EUenborough, in Seaward v. VVillock, T. R. H;{8. 5 East, 20-2; Poole v. Hill, 6 M. & W. 8,35; (w) Griffin v. Griffin, 1 Sch. & Lef. 352. Wilmot V. Wilkinson, 6 B. & C. 506. See wages, and the plaintiff agreed to permit the defendants to transport his cotton to market, at a certain stipulated rate per bale, in payment of the wages of the slaves, it was held that the stipulations of each party were independent, and that the plaintiff might recover the wages of the slaves, without averring that he had tendered his cotton to be transported to market by the defendants. Rice V. Sims, 2 Bailey, 82. [4] St:e Stewart v. Raymond Rail Road Co., 7 S. & M. 568; Tyler v. Mc- Cardle, 9 id. 230; Kirby v. Harrison, 2 Ohio, (N. S.) 326. DEFAULT OF PLAINTIFF. 375 ^ 021. We shall now consider how far the impossibility of performing the plaintiff's part furnishes an excuse for non-per- formance. (1) In those cases in which all that was to have l)ecn performed by the plaintilfhas become entirely incapable of being executed, the plaiutitf cannot demand the performance by the other part}^, because his non-performance is a total failure of the consideration which was to have moved from him. § 022. (2) But where the impossibility refers not to the sub- stantial, but only to the exact and literal performance of the contract, the court will struggle with matters of form in order to do complete justice between the parties ; but it will carefully avoid going so far as to make a new contract between them. (a;) Hence arises the cases on compensation. (?/) § G23. (3) In those cases in which the plaintiff has performed a substantial part of his contract, and then the remaining part has become impossible by reason of circumstances not dependent upon him and without his fiiult, a distinction has been drawn between those cases in which the plaintiti' is in statu quo as to that part of the contract which he has performed, and those cases in which he is not in statu quo ; equity refusing to enforce per- formance of the contracts by the other part}^ in the former case, and enforcing it in the latter. This distinction rests almost en- tirely on the authority of Lord Chief Baron Gilbert, in a passage in his " Lex Pr£etoria,"(s) but has been approved by subsequent *writers(a) and seems ao^reeable to the principles of ins- r*^-^i TT „ 1 • ^ 1 1 • ■ 1 . r*2<6| tice. " Here, says his lordship in the passage in qucs- tion, " it is to be noted that the plaintiff that exhibited his bill upon the foot of performing the bargain on his part, ought to show that he has performed all that is to be done on his part, or is ready to do it ; for where any part (which he should have performed) is become impossible to be performed at the time of exhibiting his bill, then he can have no specific execution, be- cause he cannot specifically execute on his own part : as in the case of my Lord Feversham, which was on a marriage agreement, whereby he contracted to settle the manor of Holmly on his wife (.•)■) Counter v. Macpherson, 5 Moo. P. C. C. [z] Pp. 240-242. 83, J08. („) 1 Foiibl. Eq. Book i. c. 6, s. 3 ; Story Eq. {y] bee post, § 791 et seq Jur. s. 772. 376 FRY ON SPECIFIC TERFOIIMAXCE OF CONTRACTS. jiiul the heirs of thoir bodies, and clejir it of incumbrances, and settle a separate maintenance on his wife, and likewise sell some pensions in order to make a further provision for his wife and the issue of that marriage ; and Sir George Sandys, the father- in-law, agreed to settle ,£3000 per annum on the Lord Feversham for life, remainder to the wife for life, and so to the issue of the marriage. Lord Feversham cleared the Manor of Ilolmly, set- tled it accordingly, and settled the separate maint<>nance, but did not sell the pensions, nor settle the further provisions: the wife died without issue, and the Lord Feversham preferred his bill to have the £3000 per annum settled on him during his life : but decreed because Lord Feversham was in statu quo as to all that part of the agreement which he had performed, and having not performed the whole, and the other parts being now impos- sible, and no compensation being possible to be adjusted for it, he had no title in equity to have performance of Sir George's pai't of the agreement, since such performance could not be mu- tual. But the issue of Lord Feversham might have been re- lieved, because in no default. Lord Feversham v. Watson, Rep. t. Finch, 445, 2 Freera. 35, Skin. 287. r*977l *^ ^^'^' "^^^^ ^^ '* '^^^ ^^^ performed so much of his *- -• part of the agreement as he is not in statu quo^ and is in no default for not performing the residue, then he shall have a specific execution from the other party of the agreement : as if a man has contracted for a portion with his wife, and has agreed to settle upon the wife and her issue, lands of such a value free from incumbrances, and he sells part of his land to disencumber and is going on to disencumber and settle the rest : then if the wife dies without issue before the settlement be actually made, yet he shall have a portion, because he cannot be in statu quo, having sold part of his lands, and there is no default in him, since he was going on to disencumber and settle the rest ; there- fore the accident of the death of his wife doth not alter his right to his Avife's portion. Meredith v. Wynn, Eq. Abr. 70, p. 15 ; Gilb. Eq. Rep. 70; Free. Ch. 312; 2 Vern. 448." [5J [5] The doctrine seems to be well stated in Breckenridge v. Clinkinbeard, 2 Litt. 127. It is there said that where a party claims specific performance of DEFAULT OF PLAINTIFF. 377 § G25. Ill respect of marriage contracts, an exception to tlie general princi[)le before us exists, for the obvious reason that the parties to the contract are not only parties having an interest in the subject, but the contract is made by them on i)ehalf of the issue of the marriage ]{h) and it is evident that though A.'s de- fault may bar his suing P)., A.'s default cannot bar C. s rights against B. " There is," said Lord Iiard\vicke,(c) " a ditl'crence between ujjreements on mai'riaije being carried into execution and other agreements ; for ail agreements besides are considered as entire, and if either of the [)arties fail in performance of the agreement in part, it cannot be decreed in specie, l)ut must be left to an action at law ; in marriage agreements it is otherwise, for though either the relations of thehusl)and cr wife should fail in the performance of their part, yet the children may compel a peiformance : if the mother's father, for instance, hath agreed to give a portion, *and the husband's father hath agreed to r4(:.^-oi make a settlement, though the mother's father do not *- give the portion, yet the children may compel a settlement, for non-performance on one part shall be no impediment to the children's receiving the full benefit of the settlement ; so if there be a failure on the part of the father's relations, it is the same." The same principle was acted on by the same judge in another case, (y<) *§ 648. It seems that under the Irish tenantry acts, r^gor-, and perhaps even independently of them, the breach by L 'J the tenant of covenants in the lease will not be a bar to specitic performance of a covenant for renewal. (?>) § 649. Having thus stated and illustrated the general princi- ple, we may now consider the limitations to which it is subject. It seems, therefore, in the first place, that whei'e a plaintiff has been guilty of small breaches of good faith, but for such breaches the defendant had a remedy in his own hands, and if the interference of the court were refused, the plaintiff would be without any adequate remedy, those breaches of good faith will not be an absolute bar to relief, though the court will dis- allow the plaintiff all costs.(o) § G50. It seems further that where the default on the part of the plaintiff is not willful, such non-performance will not be a bar : so where a lessor of mines covenanted to grant a further term, and the lessee covenanted to work the mines, on a suit by the lessee for a specific performance of the covenant to grant a further term, it appeared that the lessee had not worked the mines in consequence of their being drowned out : the court, though it did not decide the point, inclined to think that this would be no bar to relief.(/)) § 651. So, too, breaches of covenants that are merely nominal will not bar specific performance. (7) But the breach must be so trivial as that a court of equity would relieve against a for- (m) Knatchlnill v. Grueher. 1 Mail. 153 ; S. (0) Uolmca v. Eastern Counties Railway C. H Mt. 124 ; S. C. 3 Sni. & Gif. 449. Conipanv. ;i Jur. N. .S. 7;57, (Wood, V . C) (w) Trant v. Dn-vcr, i Bli. N. S. 11. Sec (/') Walker v. JellVeys, 1 lla. 341. . Thompson v. Guyon, 5 Sim. 65. (q) Walker v. Jeffreys, 1 Ua. 341 ; 1 am v. Coombs. 3 Sm. & Gil". 449. 386 FRY ON SPECIFIC PERFORMANCE OF CONTRACTS. fciUiic at law ; for the court will not relieve more readily whilst the whole thing rests in contract, than it will after the legal relation has been actually created. (r) § 652. A mere waiver in law of such breaches of a L ^^"J *contract will not in all cases prevent the defendant from urging them as an ol)jection to the execution of the contract in equity, because they may still form a personal disqualification to the plaintiir, and induce the court to consider whether the defendant ought to be put in the power of such a tenant.(.s) But where the acts are not such, but are relied on as operating a forfeiture, there the court must be well satisfied that there is a forfeiture on which an ejectment could be maintained, before it will, by refusing performance, prevent the question of for- feiture being tried at law -.{t) and if a landlord has never com- plained of the conduct of his tenant, but permitted him to act on the faith of the contract, it would require a strong case to enable the landlord to raise such objections for the first time, when the tenant claimed the benefit of the agreement. (?<) § 653. We have elsewhere seen that the plaintiff may disen- title himself from enforcing the performance of a contract by acts Avhich, though not in direct contravention of his part of it, have yet efiected such a change in the relative position of the parties as to render it inequitable in the plaintifl' to insist on the execution of the contract.(i;) [*287] *CHAPTER XXI. OF THE NON-PERFORMANCE ON CONDITIONS. § 654. A CONTRACT may be originally conditional, and con- tingent upon the performance of some act or the happening of some event. Where that has occurred, the contract becomes absolute, and rests on the same footing for all purposes as if it had been originally made positively and without reference to any (r) Gregory v. Wilson, 9 Ha. 683. {u\ Miinrly v. Jollifife, 5 My. & Cr. 167, 177, (s) Boardman v. Mostyu, 6 Ves. 467. revensiiig fe". C. 9 Siui. 413. (t) Per V C. Turner in Gregory v. Wilson, (r) See ante, § 256. 9 Ha. 691. NON-PERFORMANCE OF CONDITIONS. 387 contingency.(a) But until it has thus become absolute, no per- son can be entitled to call for its performance. "Where, therefore, the contract is in its origin conditional, it may afford a ground of defense that the condition has not been performed. [1 1 § 655. A contract may be conditional either by express words of condition, or because the court, upon a consideration of its terms, gathers that to have ])een the intention of the contracting jDarties. This is of course a question to be decided on the terms of each contract. It Avill, therefore, be sufficient brie% to allude to two or three recent cases of practical moment. § 656. In the case of contracts by railway companies, the question has sometimes arisen how far they are conditional on (a) Per M. R. in Regent's Canal Company v. Ware, 23 Beav. 58G. [1] Where A. signs an agreement to do certain acts, on the perfornaance of certain conditions precedent by B., and B. performs those conditions, equity will compel a specific performance of the agreement by Jl . Lanning v. Cole, 3 Green's Ch. 229. But a party so seeking to obtain the benefit of a conditional agreement, must show not only that he accepted the offer made, but also that he faithfully performed the condition. Dilly v. Barnard, 8 Gill. & J. 170. And, therefore, at law, where one party covenants to give a deed on a certain day, and the other covenants to pay money on the same day, neither can maintain an action against the other, until he has performed or tendered per- formance on his part. Green v. Reynolds, 2 John. 207. Jones v. Gardiner, 10 id. 2GG. Hardin v. Kreitsinger, 17 id. 293. Robb v. Montgomery, 20 id. 15. Gazely v Price, IG id. 2G7. Robertson v. Robertson, 3 Rand. 68. Northrup v. Northrup, G Cow. 29G. Meriwether v. Carr, 1 Blackf. 413. Bailey V. Clay, 4 Rand. 346. See Gibbs v Champion, 3 Ham. 335. And in equity, Avhere one contracts for a lease, upon certain stipulations to be performed by him, and enters upon the lands, but fails to perform such stipulations, he can- not compel the other party to the contract, or his assignee, to make a lease to him. Jones v. Roberts, 6 Call, 187. Harvie v. Banks, 1 Rand. 408. Chancery never relieves against the breach of conditions precedent, although it may against conditions subsequent. The reason of this is obvious. In cases of conditions precedent no estate can vest until the condition be per- formed; and therefore any claim for relief must be without foundation. But in cases of conditions subsequent, the estate, or interest, vests in the first in- stance, subject to be divested on non-performance or breach of the condition. Wells v. Smith, 2 Edw. Ch. 78. Chipman v. Thompson, Walk. Ch. 405. Preston's Leg. 103, ch. 5. Therefore, a corporation will not be permitted to enforce payment of stock, for which its agents obtained subscriptions, on con- 388 FRY ON SrECIFIC PERFORMANCE OF CONTRACTS. the formation of the railway. In one case,(/>) where a company before incorporation contracted with a hmdowner, the contract provided for a bridge over the *railway, a certain devi- r*288 1 . . L -I ation of the line and other works entirely de^jcndent ou its formation, and for the payment of <£4500 as purchase money for certain lands to be taken by the company, and for conse- quential damage to the landowner's estate. The contract was expressly conditional on the act passing. It passed, but the railway was abandoned, and the time for taking the lands had expired. Nine-tenths of the agreement, as Lord Justice Knight Bruce remarked, had become impracticable by reason of the abandonment of the railway : and the lords justices, though not deciding the point, evidently inclined to the opinion that the contract was conditional, not only on the passing of the bill, but (6) Webb V. Direct London and Portsmouth Railway Company, 1 De G. M. & G. 521. ditions with which it refuses to comply. Turnpike Co. v. Churchill, 6 Mour. 427. But where there has been a breach of a condition subsequent, and com- pensation can be made, a court of equity will grant relief. Walker v. Wheeler, 2 Conn. 299. De Forrest v. Bates, 1 Edw. Ch. 394. Chipman v. Thompson, Walk. Ch. 405. And, in accordance with this principle, it has been held that, where by the terms of a lease, it is to cease and determine upon a breach of any of the covenants therein, and, by a clause in the lease, it is provided that the lessor may re-enter for a breach of the same covenants, the lease is voidable only upon such a breach, and not void. [Walworth, Ch.] Stuyvesant v. Davis, 9 Paige, 427. To create a condition precedent or subsequent no precise technical words are required. The construction must always be founded upon the intention of the parties. If the act or condition required does not necessarily precede the vesting of the estate, but may accompany or follow it, and if the act may be as well done after as before the vesting of the estate, or, if from the natui'e of the act to be performed, and the time required for its performance, it is evi- dently the intention of the parties that the estate shall vest, and the grantee perform the act, after taking possession, then the condition is subsequent. Underbill v. Saratoga and Washington Rail Road Co., 20 Barb. 455. There- fore a conveyance to a rail road corporation upon the express condition that the company should construct its rail road within the time presci-ibed by the act of incorporation, is a grant upon a condition subsequent, and not precedent. NicoU V. New York and Erie Rail Road Co., 2 Kernan, (N. Y.) 121. INCArACITY OF DEFENDAxNT. 389 on the niakini^ of the railway. And in the suhsef|nent case of Lord James Stuart v. London and Northwestern l\ailway Com- pany, (c) Lord Cranworth expi'esscd a simihir opinion. These cases have been doubted, (c?) but rather on the point of jurisdic- tion than of the construction of the contracts : and they have certainly received great support from the case of Gage v. New- market Railway Company. (e) There the company had cove- nanted with the plaintiff that, in the event of a bill for extend- ing their powers being passed in the then present session, the company should, before they should enter on any part of the plaintiff's lands, paj-^ him ,£4900 purchase money for au}^ por- tion of his land, not exceeding fort3^-three acres, which the company might require and take, and £7100 as landlord's compensation for damages arising by the severance thereof. It was held that the covenant was not for the payment of an abso- lute sum as a consideration for the plaintiff's withdrawing his opposition, but a payment as purchase money and compensa- tion for severance, which *could not be due when no ^^ „„-, land was required or taken, and no severance effected ^ ^ for which compensation could arise. § 657. The performance of conditions precedent may of course be waived by the persons entitled to their performance.(jr) [*290] *C II AFTER XXII. OF TIIE INCAPACITY OF TIIE DEFENDANT TO PERFORM HIS PART OF THE CONTRACT. § 658. The incapacit}^ of the defendant to carry the contract into execution affords a ground of defense in a suit for specific performance. («) This contention does not, like that grounded on the incapacit}' of the plaintiff to perform his part, rest upon any principle of justice that operates in favor of the defendant, (c) 1 De G. M. & G. 721. See also 5 Ho. and Dundee Railway C'om])aTiy t. I'liilip, 2 Lords. 851. M'Q. 514. (d) llawkes v. Eastern Counties Railway (/) Beatson v. Nicholson. 6 Jiir. 6-20. Company. 1 De G. M. & G. 737; S. G. 5 Ho. (a) Per Lord Uardwicke iu Grecu v. Smith, Lords. 3:51. 1 Atky. 573. i,t} IS Q. B. 457. See also Edinburgh, Perth, 390 FRY ON SrECIFIC PERFORMANCE OF CONTRACTS. l)iit upon the necessity of the case arising out of the nature of the reh'cf sought. [1] § (J51). Where a bill was liled against the provisional com- mittee of a projected railwa}^ company for the specific perform- ance of an agreement to deliver to the plaintifl'a certain number of script certificates ; there being no allegation that the defend- ants had any script which they could deliver, but a statement from which the contrary might rather be inferred, a demurrer was allowed on the ground that the bill did not show any ca- pacity in the defendants to perform the contract.(/>') So where a defendant showed that he had sold the property in question for a valuable consideration to a third party, no performance could be enforced :(c) and so, again, assuming that a covenant to produce deeds can be obtained by way of specific perform- ance of a covenant for further assurance, it seems that the court r*9f)n *^^'^^^ ^^^^ attempt so to carry it into effect where the deeds are not in the proposed covenantor's power.(tZ) ^ 660. It is not necessary to the specific performance of a con- tract, that it should be one which the parties at the time of en- tering into it had the power of carrying into effect, nor one with regard to which it depends on themselves alone whether they would ever be able to proform it. For where a party enters into a contract without at the time having the power of performing it, -and afterwards acquires that power, he is bound to perform the agreement he had entered into.(e) Therefore a defendant cannot object at an early stage of a suit for specific performance that he has not the interest he has contracted to sell, as he can- (b) Columbine v. Chichester, 2 Phil. 27. (rf) Hallet v. Middleton, 1 Russ, 24.'5. See also Ellis v. Colman, 4 Jiir. N. S. 350. (e) Came v. Mitchell, 15 L. J. Ch. 287. (c) Deutoii V. Stewart, 1 Cox, 258. [1] Courts of equity never enforce the specific performance of an agreement where the decree would be a vain or imperfect one. Tobey v. The County of Bristol, 3 Story, 800. But although the incapacity of the defendant will de- feat a decree for specific performance, yet, where a party has put it out of his power to perform specifically, a bill filed for that purpose will be retained, and an equivalent in damages awarded, to be assessed on reference to a master, or to a jury uponau issue of (/tii/riurtt damnijicatus : according to circumstances. Woodcock V. Bennett, 1 Cowen, 711. iNCAPAcrrr of the defendant. 391 not be permitted to say that he did not mean to acquire that intcrcst.( /') [2] And so where a defendant had aprrced to ijive a certain indemnity to be secured on real estate, and alleged that he had not real estate of sutficient value, and contended that tho plaintiff ought to accept a personal indemnity, it was held that he was bound to purchase real estate of sufficient value.(y) § 661, The same principle is exemplified in a case(/!) which was decided in the 34th year of Charles II. During the civil wars the then duke of Newcastle had gone abroad, and whilst he w^as thus absent, the defendant, who was his heir apparent, without authority from the then duke, sold and conveyed to the plaintiff certain estates of the duke, and received the pur- chase money, and applied it for the benefit of the family. The defendant having subsequently succeeded to the dukedom and the estates in question as heir, he was, by the lord chancellor, held bound to make good his sale, and was decreed to do so ac- cordingly. At the time of the contract, specific performance would have been impossible *on the part of the defend- r^.^Qj)-i ant, but it had subsequently become possil)le by the de- '- volution of the estate contracted to be sold. § 662. On the same principle the court will not consider as void, contracts, whether by private persons or companies, which require the interposition of the legislature before they can be carried into eflect, and accordingly will in the meanwhile pro- tect the property in issue. (?) § 663. With regard to real estate, the statute of the 32 Hen. VIII. c. 9, prevents the sale of a pretended right to land by a person out of possession ; but if a person, instead of selling a (/) Per Lord Eldon in Browne v. AVar- arris in Hawkes v. Eastern Counties Railway ner, 14 Ves. 41-2. Company, 1 De G. M. & G. 756; Devenisli (ff) Walker V. Barnes, 3 Mad. 247. v. Brown, 26 L. J. Cli. 2.i, (Wood V. C); (h) Clayton v. Duke of Newcastle, 2 Cas. Frederick v. Coxwell, 3 Y. & J. 514. As in Ch. 112. to contracts requiring proposed legislation (i) Great Western Railway Company v. to render them legal, see Mayor of Xor- Birniingliam and Oxford Junction Uailway wich v. Norfolk Railway Company, 4 Ell. Company, 2 Phil. 597; per Lord St. Leou- & Bl. 397. [2] Seee the ca.ses of Collins v. Carr, Freem 5; Greenaway v. Adams, 12 Ves. 401 ; Coffin v. Cooper, 14 id. 205; and Hull v. Yaughan, Price, 103, in support of the rule. 392 FRY ox SPECIFIC PERFORMANCE OF CONTRACTS. pretenclcd right, contracts on a certain future day to convoy an estate, and he is on that day possessed of it, the contract a[)- pears not to be within the operation of the statute, and to be binding on l)oth parties.(/,) § 604. And so also with regard to goods, the legality of con- tracts for the sale of such property not at the time in the pos- session of the vendor is now well established ;(?) so that notwith- standing an opposite decision of Lord Macclesfield, (??2) such a conti'act would nowprol)abIy be enforced if it were to fall under the jurisdiction of the court. § 665. As the consent of a third party is, or may be, a thing impossible to procure, a defendant who has entered into a con- tract to the performance of which such consent is necessary, will not, in case such consent cannot be procured, be decree to obtain it, and thus perform an impossibility.(w) r*2QSl * ^ ^^^' Where the husband, or husband and wife, have entered into a contract to sell the estate of the wife, the court used formerly to decree the husband to procure his wife's consent, and in default commit him to gaol until she yielded. (o) But the absurdity of such a course is obvious ; because the court of chancery would be putting all the compulson it could upon the wife to induce her to do an act, of which the essence is that it is done without compulsion ; the court of chancery would be distressing her to give her consent, whilst the court of common pleas is examining her to see that she is acting from free will alone ; and it is now accordingly established that the court will not interfere specifically to perform contracts where a wife's consent is requisite, and she refuses to give it.{p) § 667. It must not, however, be understood that the incapacity of the defendant to perform a contract literally and exactly in (/-) De Meclin.a v. Norman. 9 M. & W. (o) Bamngton v. Horn, 5 Vin. Abr. 547, 820; and see further as to this statute. § pi. 35 ; S. C. 2 Eq. Gas. Abr. 17. pi. 7 ; Hall 130. V. Hard)-, 3 P. Wnis 187 ; Daniel v. Adams, (I) Hibblethwaite v. M'Morine, 5 M. & Ambl. 495 ; Moms v. Stephenson, 7 Ves. W.'162, 474. {1/1} Cuddec V. Rutter. 5 Vin. Abr. 638, {/■) Bryan v. Woolcy, 1 Bro. P. C. 184 ; Pl- 2i- Emery v. Wasc, 8 Ves. 505 ; Frederick v. (n) Howell V. George, 1 Mad. 1 ; Grey v. Cox-vvell, 3 Y & J. 514; Howell v. George, Hesketh, Ambl. 268 ; S. C. 3 Burn. tccl. 1 Mjid. 1 ; Buck v. Whellcv, in D. P. I Law, 336, 5th edit. See also Marsh v. Mil- Mad. 7, n. ; Martin v. Mitchell, 2 J. & W. ligan. 3 Juj'. N. S. 979, (Wood. V. C); Bees- 413.425; per Mansflcld, C. J. iu Davis v. ton V. Stuteley, Week, Uep. 1857-1858, 206. Jones, 1 K. li. 269. INCAPACITY OF DEFENDANT. 393 all its parts will be a bar to its perfonnance. From the distinc- tion acknowledged in courts of equity between the essential and the non-essential terms of a contract, it follows that where a contract cannot be performed literally, it may yet be performed cy 2)ret! ; and all the cases in which (♦onii)ensation is made by the defendant are illustrations of this deduction. Some further in- stances remain to be considered. § ()()8. Thus in Carey v. Stafford, (z^) in the exchequer, in 1725, ■where a man executed a deed affecting to convey lands, therein described of the yearlj' value of X22, to his servant, and no such lands existed, the court compelled him to convey lands of equal value. § 069. And so if a copyholder were to agree to grant r^.^Q .-i a *lease for a longer term than the custom allowed, he '- -' would, it seems, be compelled to effectuate his contract in sub- stance, by from time to time executing leases for such terras as he could, till he had made up the term contracted for.(r) § 670. Errington's casc,(5) though not on a specific perform- ance, is another illustration of this principle. He had contracted for £9000 to build a bridge over the Tyne, and to maintain it for seven years, and had entered into a bond in that sum condi- tioned for performance of the contract: the bridge was built, but thrown down by a flood : and it was found that no bridge on that site could stand. Thereupon he filed his bill for relief from the bond ; and upon his building a bridge upon a neigh- boring site where it could stand, and submitting to an issue of quantum damnificatus by the change of site, he was relieved from the penalty of the bond. § 671. Where a contract in its original form is obnoxious to difficulties on the score of illegality, but it can nevertheless be lawfully performed in substance, the court will so model it as to effectuate this purpose. Thus it having been made by statute illegal to contract for the tenant to pay the tithe rent charge, a contract for a lease stipulating that the tenant should pay a cer- tain sum for rent and also the rent charge, may be carried into (?) 3 Sw. 427, n. 2 Sch. & Let". 351; Erringtou v. Ayuesly, 1 (r) Paxton V. Newton, 2 Sm. & Gif. 437. Bro. C. C. 341. (s) Per Lord Redesdale iu Davis v. Hone, FRY— 26 394 FRY ON SrECIFIC PERFOKMANCE OF CONTRACTS. effect by the court l)y means of a lease reserving as rent the two sums in the agreement treated respectively as rent and rent charge.(^) § 672. And the court will probably be still more anxious to execute a contract cyj^re.s-, where b}' subsequent legislation a con- tract originally valid may have become invalid in part. Thus where a dean and chapter, prior to the disabling statute of 13 Eliz., covenanted for the renewal of a lease for ninety-nine years, rifcjq-T and the plaintitf bought *his bill asking for a renewal " "* for such term as the corporation could grant under the statute, it was ultimately decided by the house of lords, in ac- cordance with the opinion of Sir Joseph Jekyll,but overruling the judgment of the Lord Chancellor King, Lord Chief Justice Raymond, and Mr. Justice Price, that the plaintiff was entitled to this cy pres relief («) § 673. It seems that in some cases in which the contract would be incapable of being specifically enforced in its very terms for other reasons than illegality, it may be executed by the court cy pres if such a plan be feasible. In one case(v) there Avas an agreement entered into b}^ the defendants, within two years to procure the heir-at-law of A. B. to convey certain estates in the plaintiffs, or within the same period to petition the house of lords for, and to use their utmost endeavors to procure, an act of par- liament for sul)stituting a trustee in the place of the heir, in case such heir could not be found, or there was no heir : on a bill filed for the performance of this agreement, the court decreed the de- fendants to allow their names to be used in an application to parliament for the act : an agreement by a person to use his ut- most endeavors seems to be one which the court could not spe- cifically execute. § 674. In some railwa}^ cases, the court has shown a great in- clination to regard what it considers as the substance of the agreement. Thus, where company A. contracted with the plain- tilf for the sale of the lands required for their proposed line, and for the withdrawal of his opposition in consideration of £20,000 (0 Carolfin v. Brabazon, 3 Jon. & L. 200. (v) Frederick v. Coxwell, 3 Y. & J. 5U. ()') Betteswoith v. Dean and Chapter of St. Paul's, Sel. C. in Ch. 66, ante, § 9. INCAPACITY OF DEFENDANT. 395 to be paid to him, in case their bill sliould pass into law : there was a rival company B., which would require different lands of the plaintiff: by an agreement made between the two companies during the proceedings before the committee of the commons, it *was agreed that a reference should be made as to which r#.^Q/.-| of the two lines should be carried into effect, and that '- -' the successful company should take to all the engagements of the other. The line of company B. was approved, and company A.'s bill was accordingly withdrawn ; company B. refused to pay the plaintiff the £20,000, alleging, amongst other things, that it was conditional on the bill of company A. passing, and that the lands required were not those contracted for; but on a bill filed b}- the plaintiff against them, their demurrer was overruled by the vice chancellor of England and Lord Cottenham.(?r) In a subsequent case,(x) however, the same vice chancellor consid- ered the passing of a bill of an amalgamated company sufficiently distinct from the passing of the bill of one of the companies to relieve the amalgamated company from an agreement binding in case of the bill of the one company passing. The decree was affirmed by the lord chancellor, but on a different ground. (y) § 675. Where an agreement is in the alternative, so as to give an election to the party to perform it, and one of the alternatives is at the time of the contract, or subsequently becomes, impossi- ble, the question arises how far the contracting party is hound to the performance of the alternative that remains possible. The cases seem to divide themselves into (1) those where one alter- native is impossible at the time of the contract, (2) where it subsequently becomes so by the act of God, or (3) by the act of the other party to the contract, or (4) by the act of a stranger. These different cases must be briefly considered. § 676. (1) Where at the time of the contract one alternative is impossible or void, the party to execute the contract *is r*nQr.-i bound to the performance of the other alternative.(»:) So '- -' (to) Stanley v. Cheshire and Birkenhead tlie results of amalgamation, Earl of Lind- Railwav Company, 9 Sim. 2(>1; S. C. 3 My. sey v. Great Nortlieru Kailway Company, & Cr. 773. 10 Ha. 6Gi. (t) Greenhalgh v. Manchester and Bir- (z) Com. Dig. Condit. K. 2; Wigley v. mingliani Kailway Company, 9 Sim. 416. Blackwal, Gro. Kliz. 780. (y) o My. & ci'. 784. See further as to 396 FKY ON SrECIFIC PERFORMANCE OF CONTRACTS. %vliorc the condition of a bond was to pay a certain sum, or ren- der in execution a person wlio had been previously discharged, and the court held the latter alternative illegal and void, it was decided that the obligor was bound to perform the other, and that not having done so, the bond was forfeited. {«) And where an award directed that a sura of money should be paid, or be secured to be paid, and did not detine the security to be given, and the (piestion was whether the award was not void for un- certainty : it was held not to be so, on the ground that if an award direct one of two things to be done in the alternative, and one is void for uncertainty, or is impossible, it is yet in- cumbent on the party to perform the other of them. (6) § 677. (2) The leading authority on the second class of cases is Laughter's case,(c) where it is laid down, "that where a condition of a bond consists of two parts in the disjunctive, and both are possible at the time of the bond made, and afterwards one of them becomes impossible by the act of God, the obligoi* is not bound to perform the other part." On this case it may be remarked in the first place, that the case itself did not require the enunciation of the principle, (cZ) as both alternatives in the bond there put in suit were rendered impossible ;(e) and in the second place, it is to be observed, that subsequent decisions show that the principle w\as stated too broadly, and that even at law the intention of the parties will be gathered from the particular language of each instrument. In the case of Studholmes v. r*9QSl Mandell,(/) the court said that the rule and reason *of ^ -I Laughter's case ought not to be taken so largely as Coke has reported it, but according to the nature of the case ; and Treby, C. J., quoted a case in which on a bond conditioned either to make a lease for the life of the obligee before such a day or to pay £100, and the obligee died before the day, it was held in the common pleas that the obligor should pay the £100. And in Drummond v. Duke of Bolton,(^) in an action on a bond (a) Da Costa v. Davis, 1 B. & P 242. {d) Barkworth v. Young, 4 Drew, 1, 24. (6) Simmonds v. Swaiue, 1 Taunt. 549. [e) See the case in Cro. Eliz. 'MS. (c) 5 Rep. 21, b. ; S. C. s. n. Katou's case, (/) 1 Lord Rayni. 279; Anon. 1 Salk. 170. Moore, 357 ; s. n. Eaton v. Laughter, Cro. (g) Say, 243. See also per Walmesley, J., Ehz. 398; accordingly Warner v. White, T. in More v. Moreconib, Cro. Eliz. 864. Jon. 95. iNCAPAcrrr of defendant. 397 contlitionctl to pay or secure to the plaintift' or her children, by William Ashe, her then intended husband, X3000 within six months after the defendant should become Duke of Bolton, the defendant pleaded that William Ashe died without having any children before the defendant became duke : but the plea was overruled, on the ground that the intention of the parties must be regarded, and that it could never have been their intention that the money should not be paid to the plaintiff in case she should not have a child by William Ashe at the time of the plaintift^'s becoming duke, though if she then had a child, the defendant might have had his election to whom to pay the money. § 678. And this view of the law was fully supported in a re- cent case(/^) before Vice Chancellor Kindersley, on a promise by A. on the marriage of his daughter with B., that he would at his death leave to his daughter an equal portion Avith his other children. The daughter died in the lifetime of her father, leav- ing: children, and this circumstance was argued to be a discharsre from the agreement by an act of God. But the vice chancellor held that the agreement might have been performed in either of two ways, — namely, by A.'s making a provision for his daugh- ter by will or by his dying intestate : and that though the death of the daughter precluded him from performing it in the first way, he was not thereby exonarated from performinir *it I o 1*2991 in the second, and that the bill by which the husband L J prayed for an equal share in the testator's residuary estate, was not on that ground demurrable. His honor, after referring to some of the previous cases, expressed his opinion that it is im- possible to lay down any universal proposition either way, and that each case must depend upon the intention of the parties : but that whei-e this intention is clear that one of the parties shall do a certain thing, but he is allowed his option to do it in one or other of two modes, and one of these modes becomes impos- sible by the act of God, he is bound to perform it in the other mode : and that in the case before the court, it Avas manifestly the intention of the parties that, in one way or other, the (/t) Barkworth v. Young, 4 Drew, 1. 398 FRY ox SrECIFIC PERFORMANCE OF CONTRACTS. daughter should have unequal share of the testator's property ;^ and that if the father was prevented by the act of God from performing his obligation in one way, he was bound to perform it in tlic other Avay, which was possible. (e) § ()79. In Jones v. Ilo\v,(^-) a father on the marriage of his daughter covenanted, by some act inter vivos or by will, to leave his daughter a certain provision : no act iiitei' vivos was done by the covenantor, nor did his will contain any provision for her : the dauffher died in the life time of her father : the Court of Common Pleas, on a case stated for its opinion by direction of Sir James Wigham, V. C, held that the covenantee had no cause of action, on the ground, it appears, of the jDrovision by will having failed by the death of his daughter, and a consequent ex- emption from liability to perform the other alternative. The vice-chancellor, though expressed an opinion that by this view the intention of the parties was disappointed, as the provision r*'^nni ^^ '^'^ intended to be absolute, and the mode of making *it only intended to be left to the direction of the coven- antor, yet confirmed the certificate, and dismissed the bill with costs. § 680. (3) Where one of the alternatives becomes impossible by the act or default of the party for whose benefit the contract is to be executed, the other alternative is discharged and need not be performed. (^) Therefore in debt on an obligation con- ditioned for the delivery up by the defendant to the plaintiff of three obligations in which the plantiff was bound to the defend- ant, or for the execution to the plaintiff of such release of them as should be devised by the plaintiff's counsel before Michaelmas, a plea that neither the plaintiff nor his counsel devised any re- lease before Michaelmas, was held good by the majority of the judges in the Queen's Bench, on the ground that where the obligee disables the obligor to perform the one part, the law dis- charges him from the other.(«i) This authority has since been (j) p. 25. The rule of the civil law seems dabetur."— Warnkonig. Iiistit. Jur. Rom. to agree with this. " Si quis illud vol illud Priv. lib. iii. c. 2, t 1. § 793. stipulatus sit, tot obligationes sunt quot cor- (k) 7 Ha. 267 ; S. 0. 9 C. B. 1. pora ; quare si altera res ex quacunque (/) Com. Dig. Condit. K. 2. causa darj non potest, altera mhilomimia (m) Grenningham v. Ewer, Cro. Eliz. 396, 539. RESCISSION OF THE CONTRACT. 399 followed by another case(??) in the same court, in which in debt on a bond by the defendant conditioned to grant an annuity within six months after the death of A., and if he refused, ou request then to pay £'dOO', a plea that no grant had been ten- dered within six months was held good. § 681. (4) "Where one alternative is prevented by the act of a stranger rendering its performance impossil)le, the other alter- native must be performed. This was held in a case in the 4th of Henry VII., (o) which decided that if one be obliged to enfeoff me of certain lands, or to marry A. S. before such a day, and a stranger marr}^ A. S. before the day, the obligor must make a feofi'ment of the lands : but otherwise, if the obligee married A. S. before the day, for then the other alternative is discharged. ♦CHAPTER XXIII. [*301] OF THE RESCISSION OF THE CONTRACT. § 682. The rescission of a contract necessarily constitutes a bar to the performance of it by either of the parties to it. A rescission may be affected either by a novation, — that is, the en- tering into a contract, which takes the place of and puts an end to the original one,(j;) — or by a mere agreement to rescind. [1] {n) Basket v. Basket, 1 Mod. 265 ; 2 Moil, obligationem axit civilem aut naturalem 200. - transtiisio et translatio ; hoc est, cum ex (o) Quoted ia Grenniugham v. Ewer, Cro. prrecedenti causa ita nova constituator, lit Eliz. 397. prior perimatur."— Dig. lib. xlvi. t. 2, I. 1. (p) " Novatio est pvioris debiti in aliam See also Instit. lib. iii. tit. 30, s. 3. [1] When an agreement is thus rescinded by novation, the contract, or con- tracts, in existence prior to the novation, lose their individuality and become merged in the new contract. Pierce v. Dorr, 8 Pick. 239, is a case, at law, of this nature. The bill, in that case, charged that, on March 21st, 1811, j^. lent B. $3000, receiving as security ^.'s deed of certain lands, but giving no instrument of defeasance ; that jS. repaid the sum lent, taking notes, whereby ji. promised to pay the sums repaid, with interest, when the lands conveyed to him should be sold, if they produced the sums expressed as their consider- ation, with interest, and if not, the deficit was to be regarded as part payment of ^.'s notes ; that ji. connected this with a former and separate transaction, 400 FRY ON SPECIFIC FEKFOKMANCE OF CONTRACTS. § ()38. Goncrjilly speaking, the parties to .a contract supposing them botli to continue fad juris and capable of contracting, have a right to detei-mine it by either of these modes, and they may do so even when the contract l)etwecn them aHecls the interest of some third person ; except, it seems, where there has been a bj which Ji. had on March 7th, 1811, received an absolute convej^ance of cer- tain other land as security for another debt ; that the value of the land ex- ceeded the amount oi B.'s debt, and that it was understood that Ji. should sell the land, and after deducting the amount of said debt, pay the surplus to B. It was also charged that in Ma}^ 1813, Jl. and B. signed an agreement stating that /I. had bought the above named lands of B., and that B. desired to re- purchase them, and binding Jl. on the paj'ment of $"3290.46 in two years with interest, to quit-claim said land to B., and also binding Jl. to convey said lands, whenever before two years a fair price could be obtained, and to apply the proceeds to the payment of the aforesaid sum, and the surplus, if any, to be paid to B. ji.'s notes were then given up to him. Held that this agreement was a merger of all the previous ones, and that a bill to enforce a trust arising therefrom could not be maintained. See also Reed v. McGrew, 5 Ham. 380. Agreements may, of course, at all times, be entered into by parties for the rescission of prior executory contracts, provided that they continue interested in the original agreement until the agreement to rescind is made. Johnson V. Reed, 9 Mass. 78. Blood v. Enos, 12 Verm. 025. England v. Jackson, 3 Humph. 584. But an offer to rescind an agreement will not be binding before it is accepted by the other party, by doing what is proper to be done by him toward the rescission, although the agreement has been delivered up for can- cellation. Fripp V. Fripp, Rice's Ch. 84. When the administrators of parties to an unexecuted contract for the sale of lands make an arrangement to rescind it, advantageous to the purchaser, a court of equity will not permit an heir to set it up again. Howard v. Babcock, 7 Ham. 2d pt. 73. There are agreements, however, which subsequent contracts will not, in all cases, annul. Thus, for example, where there is an agreement, upon an ade- quate consideration, to pay a certain sum, it cannot be avoided by an agreement to receive a less sum. Geisner v. Kershner, 4 Gill & John. 305. Seymour V. Minturn, 17 id. 109. Also Inman v. Griswold, 1 Cowen, 199. Makepeace V. Harvard College, 10 Pick. 298. Yet, if a creditor agree with an insolvent and embarrassed debtor, that he will procure security for a part of the debt, he will release the residue, and the debtor performs the agreement, it consti- tutes a valid contract ; and if the creditor afterwards enforce payment of the whole, the debtor may recover damages for a violation of the contract. Col- born V. Gould, 1 N. H. 270. EESCISSIOX OF THE CONTRACT. 401 part performance of it. So that where A. by deed ai;;recd with B. that his (A.'s) son should reside with and be brought up by B., who covenanted to leave him certain property, and there was no appreciable part performed as regards the child, so that his condition in life had not been altered, and not expect- ation on his part was defeated, it was held that A. and B. mi^j-ht by agreement rescind the deed, though it would, it seems, have been dilferent if there had been any part performance alfectino- the child. (5-) *§ 684. A novation by the intervention of a new person puts an entire end to the contract between the original •- -• parties, by establishing a contract between one of the orio-inal contractors and the new person. Thus where A. sold shares to B., and B. sold them to C, and A. executed a deed of transfer to C, which C. refused to register; A. brought a bill for specitic performance against B., but it was held that A. having assio^ned the shares to C, he had determined the privity of contract with B., and that he could not make a title to the shares. The main question in the case was whether C. was merely the nominee of B., or there was a substantive contract between A. and C. : the latter was the view taken under the circumstanccs.(7-) § 685. With regard to the rescission of an existing contract by a novation effected by the introduction of a new term, it is not every change in a term of the original agreement which will amount to such a substitution. Thus where there w\as an aj^ree- ment for a lease, and a parol agreement was subsequently made for the reduction of the rent, which it was contended worked a rescission of the original contract. Lord St. Leonards said, "I should be sorry to hold that because a landlord al)ates the rent for a time or permanently, he therefore abandons the whole contract ... I should do a most mischievous thing were I to hold that a mere abatement of rent, which occurs every day, would altogether put an end to the existing contract, and create a new tenancy from year to year. The abatement of the rent iq) Hill V. Gomnie, 1 Beav. 540; S. C. 5 My. Y. & C. Ex. 191 ; Stanley v. Chester and Birk- & Cr. ->50, ante. § 113. enhead Kailway Company, 9 .•jiiu. -JGl ; S C. 3 (n Shaw V. Fisher. 5 De G. M. & G. 596; My. & Cr. 773; ante, S 86.' Holdea v. Hayn, 1 Mar. 47 ; Hall v. Laver, 3 402 FRY ON SPECIFIC FERFOllMANCE OF CONTRACTS. ■was rather a confirmation of the existing tenancy, with a relax- ation of one of the terms of it."(.s') ^ 686. So also, suggestions made by cither party after contract, for the purpose of obviating any difficulties in the *com- r*3031 r-> J *- ^ plction of it, will not be taken to amount to a novation : so to hold would be to preclude parties from endeavoring to remove objections by concessions of any kind.(/;) § 687. As it is the ejxistence of the new contract that works the extinction of the old, this new one must, of course, be a valid and binding agreement ; so that, for instance, where a second a""reement is alleged, but without consideration, the original ao-reement will remain intact, and may be executed without re- gard to the second. (z() [2] § 688. This makes it requisite to consider the evidence of the novation alleged. (1) Where the original contract is by parol, the new one may, of course, be by parol also. ^ 689. (2) Where the original agreement was in writing, though not by law requiied so to be, the new agreement may be evidenced in any way which establishes it according to the princi- ples of the court. Thus an agreement, though under seal, may in a court of equity be waived by a course of conduct from whence the presumption of a new contract in substitution arises.[3] " In (s) Clarke v. Moore, 1 Jon. & Lat. 723, [i] Monro v. Taylor, 8 Ha. 51, particii- particularly 728, 729. larly 61. (u) Kobson V. Collins, 7 Ves. 130. [2] In Thurston v. Percival, 1 Pick. 415, services Avere performed by one person for another, and afterwards the parties entered into a contract as to the compensation, which was illegal. It was held that this agreement did not operate as a merger of the original demand. [3] By a contract under seal, the plaintiff agreed that his son, a minor, should work for the defendant nine months, and the defendant agreed to give him therefor certain chattels, which were delivered forthwith, but were to re- main the property of the defendant until the service should be performed : the plaintiff sold the chattels to a stranger, and the boy was afterwards wrong- fully turned away by the defendant, before the expiiation of the term ; the defendant reclaimed the chattels, and the vendee, knowing all the facts, settled the demand by paying him a sum of money. Held that the contract was rescinded, and that the plaintifi" was entitled to recover on a quantum meruit EESCISSION OF THE CONTRACT. 403 ordinary pardicrships," said Lord Kldon, "nothing is nioro clear than this, that althongh partners enter into a written agreement, stating the terms n[)on whicii the joint concern is to be carried on, yet if there be a long course of dealing, or a course of dealing not long, but still so long as to demonstrate that they have all agreed to change the terms of the original written agreement, they may be held to have changed these terms by conduct. "(?•) And accordingly, in another case, (/(.') ■where an agreement for a partnership was decreed to be spe- citically executed, the court directed an inquiry, whether any and Avhat variations had been made in the original agreement by the consent of the partners, *and directed the deed to be settled by the master having regard to such variations. L J § 690. (3) Where the original contract is by law required to be in writing, the new one must be in writing also ; so that, for instance, where the relation of landlord and tenant is constitu- iv) Const V. Harris, T. & R. 40G, 523; Ged- Sedgwick, 1 Sw. 460; per Lord Langdale in des V. Wallace, 2 Bli. 270, 297 ; Jackson v. Smith v. Jeyes, 4 Beav. 505. (w) England v. Curling, 8 Beav. 129. for the services performed. Hill v. Green, 4 Pick. 114. A defendant gave notice to the plaintiff that he should abandon certain premises, held by him of the plaintiff under a special contract; the defendant left the premises, and the plaintiff put another person into possession : the special contract is thus given up, and the plaintiff may recover of the defendant a reasonable rent for the time he held the premises, in the same manner in which he could if there had been no special contract. Fitch v. Sargeant, 1 Ham. 352. Freay v. Decamp, 15 S. & R. 227, is an authority of the same nature and in support of the same rule. In that case there was an agreement respecting the sale of lands, and possession delivered and money paid, but not to the amount and at the time agreed upon, and the owner resumed the possession, and declared that he did so because the contract was at an end, and he was determined it should be so, this was held to be a disaffirmance of the contract, and the other party permit- ted to recover back what he had paid. The subsequent conduct of the parties to the original transaction, in Danforth v. Dewey, 3 N. H. 79, was again held to be sufficient for rescission. There yf. purchased of B. two plows, and in an adjustment of accounts between them, the value of the plows was allowed to J3., who afterwards refused to deliver them, and converted them to his own use ; it was held that j4. might consider the contract as rescinded, and recover the price of the plows in an action for money had and received. See also Goodrich v. LafHin, 1 Pick. 57. 404 FRY ON SrECIFIC PERFORMANCE OF CONTRACTS. ted l)y writiiifr:, Jvn agreement for an abatement of rent must be in writing als().(.^) [4] From the principles of the court, how- ever, in reo-iird to part performance, an exception naturally arises, as the new contract may in this, as in any other case, be by parol, if supported by acts of part performance. Thus, for example, where W. leased to N. a house for eleven years, and was to allow X20 for repairs, and this agreement was signed and sealed by the parties, and N. finding that the repairs of the house would cost more than X20, laid out a further sura, in consequence of W.'s having promised to enlarge the term, but without mentioning for what term : Sir Joseph Jekyll carried the parol agreement into effect, on the ground that it was a new agreement, and that the laying out the money was a part per- formance on the one part, which made it needful to execute the parol agreement on the other.(?/) § 691. The contract may, as we have already seen, be deter- mined by a simple agreement to rescind it. § 692. Independently of the Statute of Frauds, the rule of law does not allow the variation of an agreement that has been reduced to writing to be evidenced by parol; but it allows parol evidence of matters collateral to the contract. Thus, for instance, it may be shown by parol evidence that a document purporting to be an agreement was signed conditionall}', and so only in the nature of an escrow, — the question thus decided being dehors (a-) O'Connor v. Spaight, 1 Sch. & Lef. 305. (y) 5 Vin. Abr. 5'22, pi. 38. [4] So •where the subject matter of an agreement was the sale of land, a parol promise made by the vendee, that he would take no advantage of a delay of performance beyond the time fixed, was not deemed a waiver of the party's right to recover a stipulated sum as liquidated damages for not per- forming on the day, such promise being void by the statute of frauds, and therefore incapable of affecting the previous contract. Hasbrouck v. Tappen, 15 John. 200. RESCISSION OF TIIE CONtRACT. 405 the writing :{z) and so, *too, rescission or waiver being in [-^:9^r-| its nature surisequcnt and collateral to the agreement, '- may be proved by parol testimony, (o) § G93. How far this principle ought to have been afTected by the Statute of Frauds is a question which has elicited opposing views ; on the one hand, it has been said that the statute pro- vides that no action shall be brought on any contract of the descriptions there specilied except it be in Avriting, but does not provide that every such written contract shall support an action: on the other side, it has been argued that an agreement to waive a purchase of land is as much an agreement concerning lands as the original contract.(6) However, it is perfectly well ascertained that a contract in writing, and by law required to be in writing, may in equity be rescinded by parol ;(c) and waiver by parol therefore furnishes a sufficient answer to a bill for specific per- formance. (cZ) [5j § 694. Even where the original agreement is under seal, it may be rescinded in equity by a parol agreement evidenced only by conduct. (e) ^ 695. How far such a parol waiver is a good defense at law appears still undetermiued.(y) [6j (z) Pym V. Campbell, 6 Ell. & Bl. 370. also Backhouse v. Mohiin, 3 Sw. 434, n.; (a) Davis V. Syinonds, 1 Cox, 402, 406. Buckhoiise v. Crosby, 2 Eq. Gas. Abr. 32, This seems denied as to waiver at law by pi. 44. Lord Ilardwicke, in Bell v. Howard, 9 Mod. () When the bill is by the vendor, and the purchaser has been in possession, this alterna- tive prayer may embrace an account of the rents and profits.(c) (3) Painter v. Newbv, U Ha. 26 ; Nel- pvlton v. Scott, 13 Ves. 425 ; Clarke v. thorpe V Holgate, 1 Coll. 20:5. I'aux, 3 Russ. 320; King v. King, 1 My. & (a) Hoy V. Smythies, 22 Beav. 510. K. 442 ; Douglass v. London ami North- (b) Moseley v. Virgin, 3 Ves. 1S4 ; Costigan western Haihvav Company. 3 K. & J. 173. V. Hastier, 2 Sch. & Lef. 160, 166 ; Sta- (c) Williams v. Shaw, 3 Kuss. 178, u. 412 FRY ON SPECIFIC PERFORMANCE OF CONTRACTS. [*312] *CIIAPTER XXIV. OF THE LAPSE OF TIME. § 708. The expiration of time after the contract has been entered into, and before the application to the court for its in- terference, or the fact that the plaintiff has not performed his part of the contract at the time specified, may furnish grounds of defense to suits for specific performance. § 709. At law the plaintiff must show that all those things ■which are on his part to be performed, have been performed within a reasonable time, or Avhere time is specified by the con- tract, within the time so specified ; and at law time is thus always of the essence of the contract.(ff) But in equity the question of time is difierently regarded : for a court of equity discriminates between those terms of the contract which are formal and a breach of which it would be inequitable in either party to insist on as a bar to the other's rights, and those which are of the substance and essence of the agreement :{b) and, applying to contracts those principles which have governed its interference in relation to mortgages, (c) it has held time to be prima facte non-essential, *and has accordingly granted specific per- L J formance of agreements after the time for their perform- ance has been suffered to pass by the party asking for the intervention of the court, if the other party has not shown a determination not to proceed. (cZ) [1] There are, however, many (a) Berry v. Young, 2 Esp. 640, n.; Wikle 377; Lucas v. Godwin, 3 Bing N. C. 737; V. Fort, 4 Taunt. 334 ; Stowell v. Robinson, 3 Lani]irell v. Eellerica Union. 3 Ex. 283. Bing N. C. 928; Alexander v. Godwin, 1 (4) Parliin v. Tliorold, 16 Beav. 59. Bing. N. C. 671. Where a condition as to (c) See per Lord Eldon in Seton v. Slade, 7 time is a mutual stipulation and not a condi- Yes. 273. tion precedent, the lapse of time is of course (d) Piucke v. Curteis. 4Bro. C. C. 329; Rad- no bar to an action on the contract, nail clifle v Warrington, 12 Yes. 326. See the V Cazenove, 4 East, 477 ; Havelock v. Geddcs, discussion of this doctrine by Lord CranAVorth 10 East, 5o5; Borueman v. Tooke, 1 Camp, and Sir J. Romilly. in Parkin v. Thorold, 2 Sim. N. S. 1 ; S. C. 16 Beav. 59. [1] At law, where goods are to be delivered at a certain time, they must all be delivered at that time. Davenport v. Wheeler, 7 Cowen, 231. And it must be impossibility, not difiBculty, that will excuse a party from the perform- LAPSE OF TIME. 413 cases in which it proves a l)ai' to relief, and these we may now proceed to consider under three heads, viz.: (1) those cases where time was originally of the essence of the contract, (2) where though not so, it was engrafted into it by sul)sequent notice, and (3) those cases where the delay has been so great as to con- stitute lache.s disentitling the party to the aid of the court, and evidencing an abandonment of the contract irrespectively of any peculiar stipulations as to time. ^ 710. (1) Time is originally of the essence of the contract ance of his agreement. Iluling v. Craig, 2 Addis. 342. But although rigid enforcement is the feature of law, yet, in equity, the time of performance may be enlarged. Runnels v. Jackson, 1 How. Miss. 358. See Getchel v. Jewett, 4 Greenl. 350 ; Rogers v. Saunders, 16 Maine, 92. The court will so modify the agreement as to do justice as far as the circumstances will permit, and will refuse specific execution unless the party seeking it will comply with such modification as justice requires. Mechanics' Bank v. Lynn, 1 Pet. 376. Mitchell V. Nicholson, 6 Call, 308. See also Garnett v. Macon, 2 Brock. 185. And the time, mentioned in a contract of sale, for payment of the purchase money, is not generally of the essence of the contract ; and the purchaser does not forfeit his purchase by neglect to pay at the day. Wells v. Wells, 3 Ired. Ch. 596. Runnels v. Jackson, 1 How. Miss. 358. Attorney General V. Purmont, 5 Paige, 620. See Hepburn v. Auld, 5 Cranch, 262 ; Fletcher v. Wilson, 1 S. & M. Ch. 376 ; Brashier v. Gratz, 6 Wheat. 528. But time, it is said, is essential in a parol contract for the sale of land, in respect to the spe- cific performance of it by a court of equity. Goodwin v. Lyon, 4 Porter, 297. In Kentucky, the case of Smith v. Carnej^ 1 Litt. 295, expresses an essentially different doctrine from that which, judging from the weight of authority, is generally received as law. It is a case to be classed with the older English decisions. It was there held, that, it being a settled rule that equity will not decree specific execution of a contract where the law will not give damages, relief was denied on a verbal contract for the sale of land, made before the statute of frauds went into operation, as assumpsit alone could be maintained at la.w for a breach of the contract, and was barred by five years' delay, and more than that time had elapsed between the accruing of the cause of action and the commencement of the suit. In cases where the jurisdiction of law and equity is concurrent, lapse of time is an absolute bar to a suit in equity, if it would be so at law. Humbert v. Rector of Trinity Church, 7 Paige, 195. In a valuable note to Seaton v. Slade, 7 Ves. 273, contained in White and Tudor's Leading Cases in Equity, the principles of equity in respect of time are very learnedly exhibited. "At law," it is there said, "an agreement for 414 FRY ON SPECIFIC FERFORMANCE OF CONTRACTS. in the view of a court of equity, wlieuevcr it appears to have been part of the real intention of the parties that it should be so, and not to have been inserted as a merely formal part of the contract.(e) [2J As this intention may either be separately ex- pressed, or may be implied from the nature or structure of the agreement, it follows that time may be originally of the essence of a contract as to any one or more of its terms, either by virtue of an express condition in the agreement itself making it so, or by reason of its being implied. It will be convenient to con- sider the cases separately ; premising, however, that the point that time is of the essence of the contract is one which should be made by the party insisting on it without delay.(/) § 711. The court seems at one time to have gone so far in (r.) Ilipwell V. Knight, 1 Y. & C. Ex. 401. (/) Monro v. Taylor, 8 Ha. 51, 62. the sale of real estate confers a mere right of action on the vendee. In equity it does more, it vests an equitable estate, attended by most, if not all, the in- cidents of actual ownership. It necessarily follows that while a default in the literal fulfillment of the stipulations of such a contract, will deprive the party by whom it is committed, of all right of recovery at law against the other, it will not have that efiect in equity, unless of such a nature as to render it in- equitable to enforce the contract. Although, therefore, a party who has com- mitted a default of a nature to be injurious, and which does not admit of compensation, will not be allowed to enforce the contract, even in equity ; yet when the default is not injurious, or the injury which it produces can be com- pensated, equity will not consider it a sufficient reason for refusing to carry the contract into execution. 1 Dev. & Bat. Eq. 237. A default in point of time generally admits of compensation. Time is held, therefore, not to be material in itself in equity, although it may undoubtedly be so in its consequences. A failure to comply with the terms of a contract, on the day fixed for their ful- fillment, will not therefore necessarily preclude the right to fulfill them after- wards, and apply to equity a corresponding fulfillment by the other party." [2] Therefore the time of payment, in a contract for the sale of lands, may be made of the essence of the contract, and on a default, withbut execuse, or any acquiesence or waiver on the part of the vendor, equity will not aid the vendee. Reed v. Chambers, 6 Gill. & J. 490. See Wells v. Smith, 2 Edw. Ch. 78 ; S. C. 7 Paige, 22; Smith v. Brown, 5 Gilm. 309. So where a certain act has been clearly stipulated to be done within a given time, as, for example, giv- ing security, a party will not be relieved against his failure to perform the act at the time specified. Doar v. Gibbes, 1 Bailey's Ch. 371. LAPSE OF TIME. 415 its disregard of time as to consider that it was of no con- sequence in equity : (g) and accordingly, Lord Tliurlow {h) *8eems to have maintained that no expression in the r#9ij^i agreement could make time of the original essence of the contract. Lord Kcnyon, however, maintained the conti'aiy :(/) Lord Thurlow's doctrine was doubted by Lord Eldon :(/c) and accordingly, express stipulations rendering time of the essence have been maintained as valid and binding as much in equity as at law,(/) and in respect of covenants for the renewal of leases as well as of contracts for sale.(m) [3J § 712. In order to render time thus essential it must be clearly and expressly stipulated that it shall be so : it is not enouo^h that a time is mentioned during wdiich or before which some- (?) Gibson v. Patterson, 1 Atkj. 12, (A) In Seton v. Slade, 7 Ves. 270. which has been thought an erroneous re- (/) Hudson v. Bartrani, 3 Mad. 440 ; port. See Lloyd v. Collet. 4 Bro. C. C. 469, Lloyd v. Kippingale, cited 1 Y & C. Ex. n. (3). 410." See also Honeyman v. Marryatt, 21 {h) Gregson v. Riddle, cited by Koniilly, Beav. 14. 24. arg. 7 Ves. 268. (m) Baynham v. Guy's Hospital, 3 Ves. (0 Mackreth v. Marlar, 1 Cox, 259. 295. [3] It is clearly the rule that equity will not disregard the manifest inten- tion of the parties. It is only required that they shall make time essential to induce the court to so consider it. Scott v. Fields, 7 Ham. 90, 2d pt. Bene- dict V. Lynch, 1 John. Ch. 370. Doar v. Gibbes, 1 Bailey's Ch. 371. Wells V. Smith, 7 Paige, 22. A most powerful argument in favor of the law as it now stands, was made by Lord Loughborough in Lloyd v. Collett, 4 Bro. C. C. 469. "There is a difficulty," said his honor, " to comprehend how the essen- tials of a contract should be different in equity and at law. It is one thing to say the time is so essential, that, in no case in which the day has been by any means suffered to elapse, the court would relieve against it and decree performance. The conduct of the parties, inevitable accident, &c., might induce the court to relieve. But it is a different thing to say the appointment of a day is to have no effect at all ; and that it is not in the power of the par- ties to contract, that if the agreement is not executed at a particular time, they shall be at liberty to rescind it." " I want a case to prove that where nothing has been done by the parties, this court will hold, in a contract of buying and selling, the rule that the time is not an essential part of the con- tract. Here no step had been taken from the day of the sale for six months after the expiration of the time at which the contract was to be completed. If a given default will not do, what length of time will do ? An equity arising out of one's own neglect ! It is a singular head of equity I" 41G FKY ON SPECIFIC PERFORMANCE OF CONTRACTS. tliiiiir shall be done. Therefore, Avhere a day for payment had been inserted, it was held not to he thereby rendered essen- tial :{fi) where a day was specified for the delivery of the abstract it was equally non-essential, although the purchaser upon its expiration immediately refused to proceed :(o) and in a case where a day had been specified for the completion of the contract, the master of the rolls(_^}) held it to be non-essential, though in so doing he differed from the previous observations of Lord Cranworth, then a vice chancellor, made in the same case at an earlier stage.(5') [4] § 713. Time may be implied as essential in a contract, from the nature of the subject matter with which the parties are dealing. "If, therefore," said Mr. Baron Alderson,(r) "the thino- sold be of greater or less value according *to the L ^^"^J effluxion of time, it is manifest that time is of the essence of the contract : and a stipulation as to time must then be literally complied with in equity as well as in law." In respect of reversionary interests, therefore, it is held to be of the essence of justice, that contracts for sale should be executed immediately and without any delay. («) [5] (»!) Heavne v. Tenant, 13 Ves. 287. (r) In Ilipwell v. Knight, 1 Y. &. C. Ex. (0) Roberts v. Berry, 16 Beav. 31, affirmed 41(5. 3 De G. IM. & G. 284. (») Xewman v. Rogers. 4 Bro. C. C. 391 ; [p) Parkin v. Thorold, 16 Beav. 59. Carter v. Dean of Ely, 7 Sim. 211. (q) S. C. 2 Sim. N. S. 1. [4] Wells V. Wells, 3 Ired. Ch. 596. Runnels v. Jackson, 1 How. Miss. 368. Attorney General v. Purmont, 5 Paige, 620. But in Benedict v. Lynch, 1 John. Ch. 370, a clause to the effect that if the plaintiff failed in either of his payments the agreement was to he void, was thought to be abundantly dis- tinct, and to render time of the essence of the contract. See Mitchell v. Wil- son, 4 Edw. Ch. 697. [5] Time is of the essence of the contract wherever it appears material to the parties, and therefore where the value of the property has greatly dimin- ished and injustice might be done, equity will not decree a specific perform- ance. McKay v. Carrington, 1 McLean, 50. Therefore in Pillow v. Pillow, 3 Humph. 644, where it was agreed between a judgment creditor and debtor, that the latter should pay the judgment in land, at a value to be fixed by per- sons desigaated, and the debtor defeated the performance of the agreement until his land had risen in value, it was held that he could not maintain a bill LAPSE OF TIME. 417 § 714. So a^ain, where the subject matter is from its nature exposed to daily variation, the court inclines to hold time to be material, as in the sale of the stock in a public house, (<) in contracts for annuities on lives, (?<) and in purchases of govern- ment stock. (v) [(jj § 715. And so again, where the object of the contract is a commercial enterprise, the court is strongly inclined to hold time to be essential, whether the contract be for the purchase of land for such purposes, or more directly for the prosecution of trade : (?.t?) the court has acted on this principle in a contract respecting land which had been purchased for the erection of mills, (a;) and in another contract for the sale of a public house in Camden Town.(y) ^ 716. This principle applies with especial force to contracts relating to mines. The nature of all mining transactions is (t) Coslake v. Till, 1 Russ. 376. {x) Wright v. Howard, 1 S. & S. 190. (K) Withy V. Cottle, T. & R. 78. [ij) Seaton v. ]\Ja])p, 2 Coll. C. C. 556, (v) Doloret v. Rothschild, 1 S. & S. 590. where the essentiality of time was an-ived See also Lewis v. Lord Lechmere. 10 Mod. at from the conditions as w«ll as from the 503. subject matter. (u-) Walker v. Jeffreys, 1 Ha. 341. to compel a specific performance of the agreement. See also Holt v. Rogers, 8 Pet. 420. And where land has been purchased to sell, and such a purpose a lawful one, which may be considered by a court of chancery, time will be deemed of the essence of the contract. McKay y. Carrington, 1 McLean, 50. See Jones v. Robbins, 29 Maine, 351. [6] "It seems the doctrine of the court that in almost every case, except the purchase of lands in fee simple, (but in that case only by express agreement, Sug. V. & P. 292,) time M'ill be considered as of the essence of a contract. The cases establish that it will be considered essential in the purchase of a house for residence, Levy v. Linds, 3 Mer. 81, or of lands or houses for the purposes of trade, Coslake v. Till, 1 Russ. 376; "Walker v. Jeffreys, 1 Ha. 341, in dealing for reversionary interests, Newman v. Rogers, 4 B. C. C. 391, or concurrent leases, Carter v. Dean of Ely, 7 Sim. 211, where the contract is for the grant of an annuity for the life of an individual, Withy v. Cottle, T. & R. 81, and in covenants to renew leases for lives or years, Eaton v. Lyon, 3 Yes. 090, where the contract relates to stock in the public funds, Forrest v. Ehves, 4 Ves. 492, or where there is a reference to arbitrators as to the price, Morse V. Merest, 6 Mad. 27, or where the vendors are an ecclesiastical corporation or other fluctuating body. Carter v. Dean of Ely, ubi sup.' ' Batten Spec. Per. 126, 127. See Southern Life Ins. Co. v. Cole, 4 Flor. 359. 418 FRY ON SPECIFIC PERFORMANCE OF CONTRACTS. such as to render time essential ; for no science, foresight, or examination can afiord a sure guarantee against sudden losses, disap[)oiutments and reverses, and a person claiming an interest in such undertakings ought therefore to show himself in good time willing to partake in the possible loss as well as protit.(;z) So in several cases it has been held of the essence in contracts for the *sale of mines and works -.(a) and in a recent case r*3161 L J a delay of three years and a half before taking any step to enforce specific performance of an agreement to take certain coal mines, was held a bar to relief.(i^) § 717. Again, where the contract had relation to the supply of coal, and eleven months were allowed to elapse before tiling the bill, the article being one fluctuating from day to day in its market price, the court held the delay a ground for declining its interference :(c) and where the contract contemplated the payment of mone3^s to be applied towards obtaining patents, time Avas from the nature of the object in view held to be of the essence. (cZ) § 718. So, again, where a contract specified a time by which calls were to be paid up, or in default the shares were to be for- feited ;(e) and where a contract gave an option to be exercised before a certain time, to convert loan notes into shares :(/") in both these cases time was from the nature of the subject matter of the contract held to be essential. The case of Macbryde v. AVeekes(^) is a strong illustration of this principle ; for there the plaintilf by the contract undertook to purchase a field ad- joining his own, to procure an assignment of a term, and to do other things which usually require time : but the nature of the subject matter of the contract, which was a colliery, was held to make time of the essence of the contract, to the extent of ren- dering it incumbent on the vendor to use his utmost diligence (s) Per K. Bruce, L. J.. In Prendersast v. Lord liodesdale in Crofton v. Ornisby, 2 Sch. Tiirton, 1 Y. & C. C. C. 110, and in Ctegg v. & Let'. 60t. Eilmondson. 26 L. J. Ch 681. ( /) Payne v. Banner, 15 L. J. Ch. 227. (a) Parker v. Fritli, 1 S. & S. 199, n.; per (e) Sparks v. Liverpool AVater Worlis Com- Lord Eldon in City of Loudon v. Mitford, U pany, 13 Ves. 428. Yes. 58. (/") Camiibell V. London and Brighton Rail- (6) Eads V. Williams, 4 De G. M. & G. 674; way Company, 5 Ha. 519. Clegg V. Kdmonds^on. 2(i L. J. Cli. 673. (L.JJ.) (^) 22 Beav. 533. (c) Pollard V. Clayton, 1 K. & J. 462; per LAPSE OF TIME. 419 in coniploting the contract, and give the piirchtiser a riglit to decline completing, if the vendor failed to do so, *§ 719. Where hardship Avonld result from co)isidering . ^r,. „-, time immaterial, as where delay in comi)letion would in- ^ volve one of the parties in a serious liability or loss, the court will incline to consider time as being of the essence. Thus where a tenant, without any definite interest, agreed for the sale of his good will and business to a purchaser to be completed on the 25th of March, that day Avas considered essential, inasmuch as if the contract were not then completed, the vendor juio-ht render himself liable as tenant for the ensuing ycar.(A) And so, again, where the body to participate in the purchase money being a chapter, was liable to variation, non-payment of the consideration money at the specified time was held fatal to the subsistence of the contract.(^) [7j § 720. Where the vendor stipulates that time shall be of the essence in respect of some of the conditions in his favor, the court inclines to hold it essential in respect of others also against him. Vendors so stipulating for the essentiality of time in their favor, " cannot fairl}^," said Vice Chancellor Knight Bruce, " complain of being held strictly to the conditions themselves. . . . The plaintiff's propositi(m is that the purchaser shall be held by a cable, and the vendors by a skein of silk."(/(-) § 721. And where the contract contains stipulations in favor of one party and not of the other, — as, for instance, an option, — or is anywise unilateral, the court, if it does not consider time as originally of the essence, will, as we shall hereafter see, look at it with more than usual strictness. (?) ^ 722. {-) Where time is not originally of the essence of the ih) Coslake v. Till, 1 Russ. 376. (i) Seaton v. Mapp, 2 CoU, C. C. 556 (0 Carter v. Dean of Ely, 7 Sim. 211. 56-t. (l) See post, § 733. [7] Doar v. Gibbes, 1 Bailey's Ch. 371 ; Colcock v. Butler, 1 Dessau. 307, where the court refused to decree specific performance of a contract for the sale of a house, where there had been a delay of eight months in completing the house, which had greatly depreciated in the meantime. See Jackson v. Edwards, 22 Wend. 498. 420 FRY ON SPECIFIC rERFORlVIANCE OF CONTRACTS. contract, ami any unnecessary delay is caused l)y one party, the otlicr party has a right to limit a reas()nal)lc *time within •- -' which the contract shall l)e perfected by the other, in default of oI)edience to which the court will not enforce specific performance, but will leave the parties to their legal rights.(m) [8] § 723. This principle is of somewhat recent introduction : in a case(w) before Sir John Leach in 1821, he did not consider it to be then decided that time could thus be made essential by subsequent notice ; and Avhere clear notice had been given that a purchaser w^ould insist on completion by the time specified, Lord Erskine had previously refused to consider time as of mo- ment in the contract. (o) But this beneficial principle is now well established. § 724. It is not, of course, possible for either party arbitrarily and suddenly to put an end to negotiations as to title, (j)) or other matters pending between the parties. The time specified by the notice must be long enough for the proper doing of the things required to be done,(5) and if it be not so, the notice will fail in engrafting time into the essence of the contract. Thus, in one case,(r) six weeks being a less time than the vendor took to furnish the abstract, was held to be an unreasonably short time for the vendor to insist on the purchaser's completing, and the notice was therefore inoperative ; and in another case, four- teen days was held not to be a reasonable time within which to require the plaintiflfs to produce a deed and complete the title.(5) [9] (771) Taylor v. Brown, 2 Beav. 180; Ben- (p) Ta.ylor v. Brown, iibi sup. son V. Lamb, 9 Beav. 502; Nokes v. Lord (7) King v. Wilson, j) But it is now clearly established, that the delay of either party in not performing its terms on his part, or in not prosecuting his right to the interference of the court by the filing of a bill, or, lastly, in not diligently prosecuting his suit when instituted, (2) may constitute such laches as will disentitle him to the aid of the court, and so amount, for the purpose of specific perform- ance, to an abandonment on his part of the contract.[10] (x) Xokes V. Lord Kilmorey, 1 De. G. & (y) See ante, § 711. Sm. m, particularly 458. (z) Moore v. Blake, 1 BaU & B. 62. [10] Courts of equity will not aid in enforcing stale demands, where the party has been guilty of negligence, and has slept upon his rights. Piatt v. Vattier, 9 Pet. 405. Hawley v. Cramer, 4 Cowen, 717. Coleman v. Lyne, 4 Rand. 4o4. Johnson v. Johnson, 5 Ala. 90. Atwater v. Fowler, 1 Edw. Ch. 417. Richardson v. Baker, 5 Call, 514. Craig v. Leiper, 2 Yerg. 193. But it is said that lapse of time is permitted in equity to defeat an acknowl- edged right, only on the ground of raising a presumption that the right has been abandoned ; and this presumption will never prevail against opposing facts and circumstances outweighing it. Nelson v. Carrington, 4 Munf, 332. Reardon v. Seary, 1 Litt. 53. And in Ohio, lapse of time is no bar to a claim where an action of debt would not be barred by the statute of limitations. Fahs V. Taylor, 10 Ohio, 104. See Larrone v. Beam, Id. 498. It seems clear that where nothing is to be done by one to entitle him to a specific perform- ance of a contract, lapse of time does not constitute a defense by him to a bill for that purpose, as in case of a bond conditioned to make title as soon as the obligor shall get one. Koen v. White, Meigs, 358. And delay, amounting even to apparent negligence, may, it would appear, be explained : and under special circumstances, as where there is a diflBculty about the title, it presents no bar to relief in equity. King v. Morford, Saxton, 274. Aylett v. King, 11 Leigh, 48G. Nelson v. Carrington, 4 Munf. 332. See also Coulson v. Walton, 9 Pet. 62. Thus the coverture of a female complainant, during a great portion of the time of delay, is a circumstance accounting for and ex- cusing the delay. Baker v. Morris, 10 Leigh, 284. In Tate v. Greenlee, 2 LAPSE OF TIME. 423 § 731. One of the carlicstcases tending to cstaljlLsli this piiii- ciple was Mackreth v. Marlai',(a) before Lord Kenyon : Lord Loughborough followed it, and held in one case where a vendor delivered no abstract on or before the day for completion, nor till after an action for the deposit, and the purchaser had de- manded back his deposit at the date for completion, that there was evidence of an al)andonmcnt of the contract by the vendor.(''v) These cases were approved by Lord Alvanley :(6') and hnally, the doctrine in question was adopted and acted on by Lord Eldon : thus, for example, in one instance he on this ground dis- charged a purchaser under a decree, error having been shown in the decree, though the parties were proceeding to I'cctify it.[d) § 732. The doctrine of the court thus established, therefore, is that laches on the part of the plaintiff, either in executing his part of the contract or in applying to the court, will debar him from relief. " A party cannot call upon a court of equity for specific performance," said Lord Alvanley, (e) " unless he has shown himself ready, desirous, *prompt, and eager ;" or, r*Qoi-| to use the language of Lord Cranworth,(y ) "specific (a) 1 Cox, 259. Coster v. Turner, 1 Rus3. & My. 311. See (/') Lloyd V. Collett, 4 Bro. C. C 469; also Cubitt v. Blake. 19 Boav. 454. Harrington v. Wheeler, 4 Ves. 086. {e) lu Mihvarcl v. Karl Tliauet, 5 Ves. (r) Fonlyce v. Ford, 4 Bro. C. C. 494 720, n. (d) Lechmere v. Brazier, 2 J. & W. 287; (A) In Eads v. Williams, 4 De G. M. & G. 691. Hawks, 486," where the complainant was married in her infancy, but, immedi- ately on the death of her husband, asserted her rights, although thirty-five j'-ears after the cause of her complaint had accrued, the same doctrine was repeated, and her bill sustained. See also Falls v. Torrance, 2 Hawks, 490. Again, where a turnpike company contracted for the purchase of land, and took possession and occupied the land, for the purposes of the company, twenty-three years, the contract was specifically enforced at the instance of the company. New Barbadoes Toll Bridge v. Vreeland, 3 Green's Ch. 157. Upon these same grounds was based the decision in Craig v. Leiper, 2 Yerg. 193. In that case the importance of promptitude was acknowledged, but it was considered suflBcient explanation that a part of the delay had been oc- casioned by the mutual agreement of the parties, and the residue, with the exception of throe years, by the insanity of the complainant's ancestor who made the contract. The bill was sustained, notwithstanding a delay of thirty yearo. Poverty, however, is no excuse. Perry v. Craig, 3 Miss. 31(3. 424 FllY ON SPECIFIC TERFORMANCE OF CONTRACTS. pciformance is relief which this court will not give, unless in cases where the parties seeking it come as promptly as the nature of the case will permit. "(y) § 733. Where the contract is in anywise unilateral, as for instance, in the case of an option to purchase a right of renewal, or of any other condition in favor of one party and not of the other, then any delay in the party in whose favor the contract is binding, is looked at with especial strictness.(/<) On this principle, the delay of a purchaser in deciding whether he will or Avill not accept the title is an injustice, because the purchaser can enforce the contract against the vendor whether the title be good or bad, whereas the vendor can only do so in case of a good title.(«') [11] § 734. Acquiescence in the breach of a covenant will form a bar to its specific performance in equity.(7i-) § 735. In many of the cases there has been a general dilato- riness in all the proceedings, so that it is almost impossible to state briefly the actual amount of delay which has been consid- ered to bar the plaintifi^'s right to relief: but some notion of the present doctrine of the court on this point will be gained from the following cases. § 736. In the old case of the Marquis of Hertford v. Boore,(/) a delay of fourteen months w^as not considered a bar to the plaintiff's bill. But in the recent case of Eads v. Williams, (m) a dela}'^ of three and a half years was considered fatal : in South- comb V. The Bishop of Exeter,(n) a delay from the 17th of January, 1842, to the 30th of August, *1843, was held L J to have the same effect: and in Lord James Stuart v. [g) See also Alley v. Descharnps, 13 Ves. (i) Spun-ier v. Hancock, 4 Ves. 667. 225j Williams v. Williams. 17 Beav. 213; (A) ISarret v. Blagrave, 6 Ves. 104 Fii-th V. Gireenwood, ] Jur. N. S. 866, (Wood, (0 5 Ves. 719. V. C.) (m) 4 De G. M. & G. 674. {It) Allen V. Hilton, 1 Fonbl. Eq. 433 ; (n) 6 Ha. 213. Brooke v. Ganod, 27 L. J. Ch. 226, (Wood, V. C.) [11] See also Lloyd v. Collet, 4 Bro. C. C. 469; Harrington v. Wheeler, 4 Ves. 686; Guest v. Homfray, 5 id. 818; Walker v. Jeffreys, 1 Ha. 352; Southcomb v. Bishop of Exeter, 6 id. 213; Dorin v. Hawey, 15 Sim. 49. LAPSE OF TIME. 425 The London and Northwestern Railway Company, (o) Lord Justice Knight Bruce seemed to think that a dehiy from Octo- ber, 1848, to July, 1850, must be fatal to such a bill.[12j § 737. And where one party to the contract has given notice to the other that he will not perform it, acquiescence in this by (n) 1 De G. M. & G. 721; anil see also frav, 5 Ves. 818; Thomas v. Bluckman, 1 Spurrier v. ifaneock, 4 Ves. 667; Harring- Coll. C. C. 301, 313. ton V. Wheeler, 4 Ves. 686 ; Guest v. lloiu- [12] In Strickland v. Fowler, 1 Dev. & Bat. Ch. 629, a delay of nine years, unexplained, was held a bar to a suit for specific performance of a contract for the delivery of slaves. In Randolph v. Ware, 3 Cranch, 503, a delay of thirty years was held to be fatal. In Atkinson v. Robinson, 9 Leigh, 393, twenty- seven years was thought, when spent in sleeping on their rights, sufficient to preclude relief. In Barett v. Emerson, 6 Monr. GOT, twenty years' delay was held to constitute laches. In Caruthers v. Trustees of Lexington, 12 Leigh, 610, a lottery was authorized in 1802, and the funds realized were expended by 1809, most of them passing through the hands of the treasurer, who died in 1817. In 1830 a bill was tiled by parties interested, against the represent- atives of the treasurer, for an account, and the court refused to entertain the bill, on the ground that it was a stale claim. And in ^IcJMillin y. Millin, 7 Monr. 560, a lapse of five years was held to bar a bill in equity for the spe- cific performance of a parol contract for the sale of land, of which the plaintiff had not held possession. But in Osborne v. Bremar, 1 Dessau. 480, a delay of three years in making title, by a vendor of land, was held to be no answer by him for specific performance of the contract of sale. In Burrows v. McWhann, 1 Dessau. 409, a surety, six years after the death of his co-surety, paid the debt, and, nearly two years afterwards, demanded contribution of the admin- istrator of his co-surety. Held that the claim was not barred by lapse of time, the administrator having made no payments in the mean time except to him- self.. In Kinna v. Smith, 2 Green's Ch. 14, the lapse of twelve years, without payment of interest, was not thought to make a stale demand. In Glenn v. Hebb, 12 Gill. & J. 271, where, in 1821, one partner was intrusted with the winding up of the partnership concerns, at an annual salary, and in 1825 the other partner died, but administration was not taken out until 1832, and the administrator filed a bill for an account against the surviving partner in 1837, it was held that the right to an account was not barred by lapse of time. In ^Maryland, the lapse of twenty-seven years is no bar to a bill for the specific performance of a contract. Haffner v. Dickson, 2 Har. & J. 46. And in South Carohna, it would seem that the court of chancery had established the rule that it will not interfere, unless under very special circumstances, to inter- pose lapse of time as a bar to a claim, unless excluded by the statute of lim- tations. Gist v. Cattell, 2 Dessau. 53. FRY— 28 420 FRY ON SPECIFIC PERFORMANCE OF CONTRACTS. the other party, by a comparatively brief delay in enforcing his right Avill be a bar : so that in one case(/;) two years' delay in filing a bill after such notice, and in another case((y) one year's like delay, have been held to exclude the intervention of the court. § 738. Where the contract is substantially executed, and the plaintiff is in possession of the property, and has got the equita- ble estate, so that the ol)ject of his suit is only to clothe him- self with the legal estate, time either will not run at all as laches to debar the plaintiff from his right, or it will be looked at less narrowly by the court ;(r)forthe plaintiff has not been sleeping on his rights, but relying on his equitable title, without think- ing it necessary to have his legal right perfected. Therefore, where a tenant holds under an agreement for a lease, pays his rent, has possession of the property, and the enjoyment of all the benefits given him by the contract, the effluxion of time will not be aground for resisting its enforcement :(^s') and so, again, where there was an agreement for the lease of a shop and the sale of the stock, and the stock had been paid for, the plaintiff had been put into possession as lessee, and the rent had been r*Q9qi *pJiid, — in fact every thing had been done but the execu- tion of the lease, which the defendant had refused to ex- ecute on a ground which was untenable, — specific performance of the lease was granted, notwithstanding considerable laches on the part of the plaintiff subsequent to the defendant's refusal, but therefore without costs.(^) [13] (P) Heaphy v. Hill, 3 S. & S. 29. (?) Clarke v. Mooro, 1 Jon. & L. 723 ; (7) Waison V. Keifl. 1 R. & My. 2.38. Sharp v. Milligan, 22 Beav. 606, affirmed See also per M. R. in Parkin v. Thorold, 16 by Lords Justices. Beav. 73. (t) Burke v. Smyth, 3 Jon. & L. 193. (r) Per Lord Redesdale in Crol'ton v. See also per Lord St. Leonards in Ridgway Ormsby, 2 Sch. & Lef. 601. v. Wharton, 6 Ho. Lords, 292. [13] It seems to be well established, in this country, that lapse of time is no objection to a specific performance of a contract to convey land, where the person originally entitled to the conveyance, and those claiming under him, have been in uninterrupted possession of the land. Miller v. Bear, 3 Paige, 466. Longworth v. Taylor, 1 McLean, 395, is a case of this nature. There ^. purchased a lot of land from /?., paying one-third of the price and taking possession. Ji. agreed to give a deed in three months, and ^. to give a moit- gage to secure the balance of the price, which was payable in six and twelve LAPSE OF TIME. 427 § 739. Nor will time run as laches pciuliiig a negotiation be- tween the parties to the contract, even though it may be carried on without prejudice to a notice given by one party that be holds the contract; rescindcd.(w) But where the negotiation is about a point which is not the real cause of the delay, its pen- dency will not prevent the effluxion of time operating as laches : so where there were two purchases, and disputes arose about the title and a valuation incident to the purchase, but from the evidence it appeared that want of means in the purchaser who had instituted the suit, and not these disputes, was the real cause of delay, the Vice Chancellor Knight Bruce, though after some hesitation, refused specific performance, as the plaintiff in such suits must have more than a doubtful titie.(i') § 740. When the delay arises from an untenable objection taken by one party, that party cannot avail himself of the delay (») Southcomb v. Bishop of Exeter, 6 Ila. (v) Gee v. Pearse, 2 De G. & S. 3-25. 213. months. B. did not make a deed, nor did Jl. pay the second installment, but payment was suspended on an agreement that interest should be paid instead. ji. erected buildings on the lot, but on learning that the title was contested, he withheld any further payments in 1819. Ji. recovered possession in 1822, in an action of ejectment. In 1825, j1. tiled a bill for a specific performance. Held, that the parties might be considered as mortgagor and mortgagee, as the defendant's default had prevented them from occupying that position in law ; that the plaintiff's equity was not extinguished by lapse of time, and that he had not been guilty of such negligence as to cut off his right to a decree for per- formance. So, in Waters v. Travis, 9 John. 450, where, by a contract for the sale of land, the vendor was to convey at a time specified, and the vendee was, "at the same time," to secure the purchase money, and the vendee took pos- session under the contract, but no conveyance was executed, and the purchase money was not paid for fifteen years, it was held that the lapse of time was no objection to a decree for specific performance at the suit of the vendee. And again, where j1., the owner of a survey, in 1774, agreed to convey a por- tion thereof to B , who took, and held, possession of such portion until 1822, when jj. never having assigned his right to such land to B., nor himself ob- tained a grant, and having died, his devisee obtained a grant of the whole survey, it was held that the lapse of time was not a bar to a bill by B. against the devisee for a specific performance of y/.'s contract. Williams v. Lewis, 5 Leigh, G86. 428 FRY ON SPECIFIC TERFORMANCE OF CONTRACTS. caused by it, as a c^round for the non-performance of the con- U'iict.{iv) And generally, whenever the delay is attributable to the defendant, he will not be allowed to avail himself of it as a defense. (x') § 741. The fact that the purchaser has allowed the deposit to r^ooiT remain in the hands of the vendor from the time *he held the contract to be rescinded until the filing of the bill, has been decided not to affect the question of laches.{7/) § 742. And so also continuing in possession, if under an ar- rangement to that effect, will not affect the question. (s) § 743. In a recent case,(«) Sir John Romilly was of opinion that time does not run as laches in the case of land taken under a railway act, until the time during which the company had the power to make the railway ceased, as the tact whether the com- pany would require the land or not could not be ascertained until that time ; but this view was not adopted by the lords justices, who seem to have thought that time would run from the date of the contract. § 744. It is to be observed that a mere claim by words though continual, unaccompanied by any act to give effect to them, will not prevent time operating as laches against the party making the claim, nor keep alive a right which would otherwise be pre- cluded. ((6) § 745. 01)jections grounded on the laj^se of time are waived by a course of conduct inconsistent with the intention of insist- ing on such an objection : and in this respect it is inmiaterial whether time were originally of the essence or subsequently engrafted on the contract.(c) [14] [w) Monro v. Taylor. 3 M'N. & G. 713, (y) Watson v. Reid, 1 R. & My. 236 ; 723. Soulhcomb V. Bishop of Exeter, 6 Ua. 213. (x) Morse V. Merest, 6 Mad. 26 ; Shrews- {z) Sonthcomb v. Bishop of Exeter, ubi bnry and Birminj^hain Railway Com)iany v. sup. London and Northwestern Railway (Jonipa- (a) Lord James Stuart v. London and ny, 2 M'N. & G. 324, 355; per Lord St. Northwestern Railway Company, 15 Beav. Leonards in Ridgway v. Wharton, 6 Ho. 513 ; S. C. 1 Ue G. M. & G. 721 Lords, 292. (4) ciegg v. Edmondson, 26 L. J. Ch. 673. (c) King V. Wilson, 6 Beav. 124. [14] Specific performance will be decreed against a party, who, by his acts, has waived the materiality of time. Rector v. Price, 1 Mis. 373. LAPSE OF TIME. 429 § 746. Therefore, where a title is in a state which may cause delay, and the purchaser goes on dealing about the title after the day for completion, this will waive his right to insist on the time.(f7) So the examination of the abstract after tiie time will prevent a defendant insisting on time as essential, for he had no rio-ht to look into the abstract *if he meant to ^^.-,^-1 abandon his purchase, (e) And such conduct will amount ^ -" to a waiver, even though a formal notice to abandon the con- tract may have been given, (/) So again, insisting on the con- tract after the time limited for completion, (y) and writing a letter extending the time for completion of the contract, (A) are acts respectively w^aiving the right to insist on that time as es- sential. But where a purchaser protests against delay, and then under protest deals about the title, this will not, it seems, amount to a waiver,(2) § 747. So as to time for payment : where an assignor of a lease insisted on a forfeiture of the assignment by reason of non- payment of part of the purchase money at the time stipulated, he was held to have waived it by getting the assignee to pay the rent to the superior landlord^ that not being consistent with the notion that the agreement was at an end :{k) in another case,(Z) there was an agreement that, if the residue of the purchase money was not paid at a certain day, the agreement should be void : it was not paid, but the vendor, allowing the purchaser to retain possession and taking from him a warrant of attorney to confess judgment in ejectment, was held to have Avaived the condition. § 748. As to the time for the delivery of objections, a sub- sequent correspondence as to title was in one case held to work a waiver :(??^) and a similar result was in another case held to follow from the subsequent renewal of negotiation as to price.(7i) § 749. It is, perhaps, scarcely needful to remark, that a waiver (c/V Plncke V. Cnrteis. 4 Bro. C. C. 329. (/) Mag:ennis v. Fallon, 2 Moll. 561, 576. (e) Seton V. Slade, 7 Ves. 265. But see Sug. Vend. 291. ( / ) Hipwell V. Knight, 1 Y. & C. Ex. (i) Hudson v. Bartrani, 3 Mad. 440. 401'. {!) Kx parte Gardner, 4 Y. & C. Ex. 503. (•;) Pegs? V. Wisden, 16 Beav. 239. (;/i) Cutts v. Tliodev, 13 Sim. 206. (h) Parkin v. Thomld. 16 Beav. 59, 69. (») Eads v. Williams. 4 De ti. M. & G. Sec also Wood v. Benial, 19 Ves. 220. 674. 430 FRY ON SrECIFIC PERFORMANCE OF CONTRACTS. as to the time in which an act is to be done, is *not L ' necessarily in any degree a waiver of the act itself. 80 that where it was agreed that A. should repair some warehouses by the 1st April, and that B. should then take a lease of them, and the repairs were not done by the day appointed, but B. continued to deal in a way which was held to amount to a waiver of the time as essential, (if by the contract it had ever been so,) and afterwards and before a lease was executed the warehouses were burnt down : it was held that B., though he had waived the essentiality of time, had not Avaived the condi- tion that the repairs should be effected prior to his taking a lease, and consequently, that the proposed lessor A., and not the proposed lessee B., must bear the loss.(o) § 750. The question whether time was originally of the essence, and whether it base since been waived, is one of evi- dence, and can therefore be disposed of only on the hearing.(|?) (0) Counter v. Macpherson, 5 Moo. P. C. C. (^>) Lew v. Lindo, 3 Mer. 81. 83. INSTITUTION OF TIIE SUIT. 431 PART IV. OF THE MODE OF EXERCISING TIIE JURISDICTION. ♦CHAPTER I. [*327] OF THE INSTITUTION OF THE SUIT. § 751. The most usual proceeding to obtain the specific per- formance of a contract, is to institute a suit by bill. § 752. But it is competent to a person seeking the interfer- ence of equity in specific performance, to proceed in certain cases by claim instead of by bill. § 753. By the first of the general orders of the 22d April, 1850, a claim may be filed, without special leave of the court, by " a person entitled to the specific performance of an agree- ment for the sale or purchase of any property, seeking such specific performance." In the schedules to these orders, (A 8 and C 10,) are contained forms of claim and of order of refer- ence of title adopted to cases of specific performance under the order quoted. From the terms of this order, it follows that special leave is required to file a claim for the specific perform- ance of an agreement to grant a lease.(a) In one case,(/>) leave ■was given to file a claim for the specific performance of a parol agreement for the sale of lands, with a statement of acts of part performance, but the court thought it a perilous case for a *claim. Leave was held not to be necessary to file a ["#0901 claim where, from the title having been accepted, no l "J reference was required, but the dispute arose as to a right of road.(c) § 754. In a recent case((Z) before Sir John Stuart, a plaintiff {a) Keeble v. Dennish. 14 Jur. 847 ; Scargill (c) Hemming v. Mayo. 14 Jur. 847. V. Hurry, id.; Anon. 9 Ha. .\ppx. 11. {d) Rawlings v. Dalglcish, 1 Sm. & Gif. 76. (6) Barnlev v. Eastern Counties Railway Company, 5 De G. & S. 314. 432 FRY ox sPECirrc performance of contracts. filed a claim for the specific performance of an agreement, in- volving complicated arrangements and considerations which the court considered it impossible to determine, as the case was pi-esentcd by the claim, and without the assistance of an answer by the defendants : the learned judge, therefore, dismissed the claim without costs, and without prejudice to the plaintiff's right to file a bill, and at the same time expressed his dissatisfaction with the way of proceeding by claim. [*329] *CHAPTER II. OF INJUNCTIONS. § 755. The jurisdiction of courts of equity in injunction is connected with the specific performanc of contracts in two ways : (1) sometimes the injunction is the manner in which the court specifically performs the contract itself. (2) and sometimes the injunction is merely incident and ancillary to the performance. § 756. (1) It is evident that where there is a contract not to do a thing, which contract is capable of being enforced in equity, it may be, and naturally is enforced by the court, by means of an injunction restraining the doing of the act.(a) § 757. Therefore where articles were executed between the plaintiffs, who resided very near the church of Hammersmith, and the parson, churchwardens, overseers, and some of the other in- habitants of the parish, by which the plaintiffs covenanted to erect a new cupola, clock, and bell to the church, and the other parties covenanted that a boll which had been daily rung at five o'clock in the morning, to the great annoyance of the plaintiffs, should not be rung during the lives of the plaintiffs or the sur- vivor of them ; the plaintiffs performed their part of the agree- ment, but the bell after about two years was rung again : the agreement was specifically enforced against the parish authori- ties by means of an injunction.(^) And again, where the pro- (rt) Per Lord St. Leonards in Lumley v. (i) Martin v. Nutkin, 2 P. Wms. 266 Wagner, 1 De G. M. & G. 616. INJUNCTIONS. 433 prictors *of Vauxhall Gardens had granted a lease of r#oon-i tin adjoining house, with an express covenant not to carry on the trade of a retailer of wine, and certain other trades, upon penalty of forfeiture of the lease, and payment of X50 a month to the proprietors of the Gardens, and the lessess made an un- derlease to the defendant : the court granted an injunction to restrain the defendant from carrying on the business, the lord chancellor remarking, " it is in the nature of a specific perform- ance. I think you will find many cases. The breach of the agreement may consist in repeated acts.(c) § 758. Again, where the commissioners of woods and forests granted a piece of land to the plaintiffs for the purpose of erect- ing a club-house, and agreed that a piece of land adjoining to that leased should be laid out as a garden, and not be built on, and the commissioners sulisequently permitted certain per- sons to erect stables on this piece of ground : the court specifi- cally performed the stipulation in question, by enjoining the de- fendants from the prosecution of such buildings, or the erection of any others, and from permitting such parts of the buildings as were already erected from remaining thereon. (c?) And so where a partner abstracted a partnership book from the counting house, contrary to a covenant in the deed of partnership, specific per- formance of this was enforced by means of an injunction. (e) §759. And so where, in consideration of a sum of mone}', A. covenanted with B. not to act on the stage within a certain dis- trict, the court enforced the covenant by injunction. (y) § 760. In cases of covenants not to carry on trade within *particular districts, the covenant when enforced by the r*ooi-i court is so by means of inj unction. (^) § 701. AVhere the acts complained of are frequent, and the court cannot ascertain whether there has in each case been a breach without an action at law, the court will not interfere by ('•) Barret v. Bla=rrave. 5 Ves. 55') ; S. C Lumlev v. Wagaor, 1 De G. 51. & G. 601 ; 6 Ve3. lOl ; cf. Newberry v. James. 2 Mer. ante, § 5)7. 44(i ; Williams v. Williams, 3 Mer. 157. (ij) Williams v. Williams, 2 Sw. 253. (d) Rankin v. Hiiskisson. I Sim. 13. See also Shackle v. Baker, U Ves. 4'5S ; \e) Taylor v. Davis, 3 Beav. 38S, n. Crutwell v. Lye, 17 Ves. 3.{5 j Harrison v. (/) Anon, mentioned by V. C. of England Gardner, 2 Mad. 198. in Kimberley v. Jenalngs, 6 Sim. 351 ; 434 FRY ON SPECIFIC PERFORMANCE OF CONTRACTS. injunction, — as, for example, in the case of a covenant not to sell water from a certain well to the phiintifF's injmy, for the court would have to try in each instance whether the act of sell- ing Avater was to the prejudice of the plaintiffs. (/<) ^ 7G2. One mode in which specific performance by means of injunction has sometimes been sought, is in respect of agree- ments not to api)ly to parliament. For it is perfectly clear that courts of equity have power, upon a proper case being made out, to enjoin a person from petitioning parliament; for the court merely acts in 'personam^ and does not therefore in any ■way interfere with the proceedings of parliament.(2) «^ 763. What is a proper case for this interference of the court is a question of some difficulty. The fact that the intended ap- 13lication to parliament will abrogate existing rights and create new ones can give no right to such an injunction, for that would be to restrain parliamentary interference in all such cases. (^■) Nor will the court interfere, even w^here for the protection of private interests an agreement not to apply to parliament has been entered into, provided the party making the application to the legislature may urge it upon grounds of public policy, of which *parliament can judge, but a court of equity can- r*QQoi not.(/) This seems to apply to all cases in w'hich the appli- cation is in soliciting a bill, for in all such cases grounds of a public nature may be urged. The only case therefore in which the court would interfere, appears to be w^here the applicant would oppose a bill alone on grounds of his private in- terest, (w/) § 764. In a case, therefore, where the defendant company agreed with the plaintiff company not to make any line connect- ing their respective railwa3^s, except one which had been already applied for by the defendants, and in consideration of this the plaintiffs agreed to support, instead of opposing (as they had CO Collins V. Plumb, 16 Ves. 454. (k) Heathcote v. North Staffordshire Rail- (/■) Ware v. Grand Juiif tion Water Works way Company, 2 M'N. & (i. 100. Company. 2 Russ. »t My. 470. 483; Heathcote (/) Lancaster and Carlisle Railway Coni- V. North Staffordshire Railway Company. 2 panv v. Northwestern Railway Company, 2 M'N. &G. 100; Lancaster and Carlisle Rail- K. & J. 293. way Company v. Northwestern Railway (m) S. C. and Stockton and nartle])ool Company, 2 K. & J. 293. See also Attorney- Railway Comijany v. Leeds and Thirsk Rail- General V. Manchester and l.,eed8 Railway way Company, 2 Ph. 666. Company, 1 Rail. C. 436 iNJUNCTioxs. 435 previously done) the application of the defendants for the last mentioned line, and the plaintitfs performed their part of the agreement, and the defendants' application Avas successful : the court nevertheless refused to restrain the defendants from applying to parliament in contravention of their agreement, considering that such an application, if successful, would be so on pu])lic grounds, of which the court could not judge, and that if rejected, the breach of the agreement, if a legal one, might be compensated for in damages,(7i) § 765. In the cases already considered the agreements were negative : but where the contract is in form affirmative, the court has sometimes given effect to it by an injunction against the opposite. § 766. Thus, where the defendant had leased mills to the plaintiff, and had covenanted for the supply of water to them from certain canals and reservoirs, and the lessee brought his suit to enforce the doing of repairs by the defendant to enable him to enjoy the water : Lord Eldon doubting about affirma- tively decreeing repairs, arrived at the end sought *by the bill, by granting an injunction against hindering the L J plaintiff's enjoyment of his rights, by keeping the canal and works out of repair.(o) And in another case,(jo) his lordship carrid into effect an agreement to grant a right of way by granting an injunction to restrain the removal of the materials and the destruction of the way. § 767. In the case of Rankin v. Huskisson,(5') already re- ferred to, where certain buildings had been begun in contraven- tion of an agreement to leave certain land as a garden, the in- junction was not merely against building for the future, but also against permitting such buildings as had been alreadj'- erected from continuing on the ground. And where the defendant had covenanted to leave sufficient barriers against adjoining collieries, and had not done so, an injunction was granted by Lord Lang. (n) Ljincaster and Carlisle Railway Com- (p) Newmarch v. Braiidlinfr, 3 Sw. 99. Sanv V. Xorthwesteni Railway Company, 2 (?) 4 Sim. 13. See also Whittakerv. Howe, ;. & J. 293. 3 Beav. 383. (o) Lane v. Newdigate 10 Ves. 192. 436 FRY ON SPECIFIC PERFORMANCE OF CONTRACTS. dale, restraining the defendant, amongst other things, from per- mitting the communication to continue opcn.(r) § 768. The practice of granting these mandatory injunctions, which are not confined to cases of contract, (.5?) has been disap- proved of by Lord Brougham, as being a roundabout mode of attaining the ol)ject, which seems to cast a doubt upon the juris- diction itself.(^) It is to be observed that this species of relief by injunction will be extended only so far as the plaintiff, at the time and on the evidence, establishes a case for protection; so that though the plaintiff may establish that necessity as to certain breaches, the court will not extend the injunction so as to re- strain all acts in breach of the covenants of the lease. (if) lu this respect the ^jurisdiction in question is evidently dis- •- ^ tinct in character from specific performance. § 769. (2) The jurisdiction of the court in injunction is often ancillaiy to that in specific performance, for the purpose of preventing the defendant making a use of the legal interest vested in him in a way inconsistent with the equity claimed by the plaintiff, and from embarrassing the plaintiff by dealing with the property during the pendency of the suit. " The court will in many cases interfere and preserve property in statu quo during the pendency of a suit, in which the rights to it are to be de- cided, and that without expressing, and often without having the means of forming any opinion as to such rigbts."(?;) In the class of cases now to be considered, the injunction is therefore granted on the plaintiff's showing a pj'ima facie case for specific performance. (?^;) And so it is not necessary, in order to continue the injunction, that it should be clear that the plaintiff will suc- ceed at the hearing; it is sufficient if there is ground for supposing that relief may be given. (.-«) For on this motion the court will (r) Earl of Mexborough v. Bower, 7 («) Earl of Mexborough v. Bower, 7 Beav. Ii7. Beav. 127. (s) For this class of injunctions generally, (u) Per Lord Cottenham in Great West- see Drewry on Injunctions, part ii. cli. 6, s. ern Railway Company v. Birmingham and 8, ctseq. Oxford Juuclion Railway Company, 2 Phil. (t) See Blakemore v. Glamorganshire Ca- 00'2. nal Xavigation, 1 My. & K. 134, ISlj Mil- (i«) Powell v. TJoyd, 1 Y. & J, 427. ligan V. MitcheU, 1 My. & K. 446. (r) Uudson v. Bartram, :! Mad. 440; Att- wood V. Barham, 2 Kuss. 186. INJUNCTIONS. 437 not ciccitle delicate points, (y) nor allow it to be resisted on i)oints, such as delay, which can only be decided at the h(arinrr.(2) ^ 770. Accordingly, where a lessor was sued by a lessee for the specific performance of an agreement to grant a lease, he was restrained from bringing an ejectment during the suit.(r/) In another case, the plaintitF obtained an injunction to restrain the vendor from conveying away the legal estate, which might com- pel the plaintifFto make some other person a party to the suit.('^>) In another case, an injunction *to restrain a sale of the r#99-i estate as to which specific performance was sought, was granted on certificate of the bill having been filed and afiidavit.(c) And in another case, an injunction was granted to restrain a purchaser, who had got into possession, from cutting timber on the estate. (cZ) § 771. Injunctions are also granted to restrain actions for the deposit upon its being paid into court,(e) or to restrain actions for damages for delay in completion, on the principle that where the court entertains jurisdiction, it will not permit an action at law to proceed in respect of the same subject matter.(/') § 772. The cjuestion whether in a suit for the specific perform- ance of an agreement for a separation deed between husband and wife, a court of equity will interfere by injunction to restrain a suit for the restitution of conjugal rights, as incident to the main object of the suit in equity, can hardly be said to be de- termined, though it has been twice discussed by the house of lords in the case of Wilson v. Wilson, (^) opposite opinions having been expressed on the point by the learned lords by whom the case was decided. § 773. The court will, in some cases, restrain third persons, whose rights are independent of the contract, acting in a manner which would prejudice the plaintiff in respect of the property (!/) Price V. Assheton, 1 Y. & C. Ex. 82. (rf) Crockford v. Alexander, 15 Ves. 138. (2) Levy V. Liudo, :J Mer. 81. («) Fordjce v. Ford, i Bro. C. C. 4tW. (a) Boardman v. Mostyn, 6 Ves. 467 ; (/) Diike of Beauford v. Glynu, 3 Sm. & Buckland v. Hall. 8 Ves. 92 ; Attwood v. Gif. 213, 226. Barham, 2 Kuss. 186. (g) 1 Ho. Lords, 538 ; S. C. 5 IIo. Lords, (>)) Echliff V. Baldwin, 16 Ves. 267. 40. (c) Curtis V. Marquis of Buckingham. 3 V. & B. 168 i Spiller v. Spiller, 3 S\v. 556. 438 FRY ON SrECIFIC PERFORMANCE OF CONTRACTS. So where after an agreement for the sale of an advowson the incnnihent died, and a bill was filed against the vendor and the bishop, the court restrained the vendor from presenting, and the bishop from instituting, or in case of a lapse taking place pending the suit, from collating to the living any clerk not nominated by the plaintift'.(/!) § 774. In this as in all other cases of ex parte injunctions, r^oopi *the court will grant them with great caution. In one case,(/) Lord Eldon said, "I wish it to be understood as my opinion, that, in general, on a bill for the specific perform- ance of an agreement to sell, the plaintiff is not entitled to re- strain the owner from dealing with his property : a different doctrine would operate to control the rights of ownership, although the agreement was such as could not be performed :" but he granted an injunction under the circumstances of that case, restraining the vendors of certain copyhold property, from surrendering it to any other persons than the plaintiffs, who were in possession and had paid part of the purchase money. In Turner v. Wright, (^) Lord Langdale refused a motion for an injunction to restrain a vendor from letting the estate, and from selling and conveying the same except to the plaintiff, on the ground that a purchaser pendente lite would take subject to the rights of the plaintiff. [*337] *CnAPTER III, ON THE WRIT OF NE EXEAT. § 775. In some cases a writ of ne exeat is issued in suits for specific performance ; but only in cases where it appears that there is no reasonable doubt that the ao;reeraent under which the {h) Nicholson v. Knapp, 9 Sim. 326. (k) 4 Beav. 40. (i) SpiUer v. Spiller, 3 S. VV. 556. AVKIT OF NE EXEAT. 439 money is payable, is one of Avhich the plaintiff is entitlcil to spccilic pcrtbrmancc.(«) [IJ § 776. It may issue where there has been a decree for i)ay- ment of the purchase money, even though by the decree that was made subject to a deduction for compensation which had not been ascertained. (/^) § 777. It has been held that this writ cannot be granted unless prayed in the l)ill ; and that where this has not been the case, and the writ becomes necessaiy in the course of the proceedings, a supplemental bill should be tiled stating the facts, and praj'ing the writ.(c) (a) Kaynes v. Wyse, 2 Mer. 472 ; Blaydes v. (6) Boclini v. Wood, T. & R. 332. Calvurt. 2 J. & W. 211 ; Jenkins V. Parkinson, (f) Sharp v. Taylor, 11 Sim. 50. But see 2 My. & K. 5 i Morris v. M'Neil, 2 Kiiss. 604. Burned v. Laing, 13 Sim. 255. [1] A complainant is not entitled to a writ of ne exeat on a bill for the spe- cific performance of a contract, previous to the time at which the contract is to be performed, and before any right of action has accrued thereon, either at law or in equity, against the defendant. The debt must be shown to be actually due. De Rivafinoli v. Corsetti, 4 Paige, 264; Brown v. Half, 6 Paige, 535. It has been laid down that a writ of 7ie exeat cannot be granted, unless, 1. There is a precise amount of debt positively due. 2. It must be an equitable demand on which the plaintiff" cannot sue at law, except in cases of account, and a few others of concurrent jurisdiction. 3. The defendant must be about to quit the country, proved by affidavits as positive as those required to hold to bail at law. Rhodes v. Cousins, 6 Randolph, 188. But in Alabama the rule is not precisely the same. Writs of ne exeat may, there, be properly granted in the following cases: 1. Where the demand is exclusively equitable, whether a sum certain be due or not, and the defendant is about to remove beyond the jurisdiction of the court. 2. Where the courts of law and equity have concurrent jurisdiction, the defendant being about to remove, and where bail has not been obtained, it will be granted in aid of the action at law. 3. Where the two courts have concurrent jurisdiction, and no action at law has been commenced, but a suit in equity instituted, the removal of the defend- ant will be restricted. 4. In cases of extreme necessity, and where it becomes necessary to prevent a failure of justice. The fourth clause is, however, not established as a fixed rule of law. Lucas v, Hinckman, 2 Stew. 11. 440 FKY ON SrECIFIC PERFORMANCE OF CONTRACTS. [*338] *CHAPTER IV. OF RELIEF SUBSEQUENT TO THE DECREE. § 778. The Court of Chancery having once had jurisdiction in a suit over the subject matter of it, will not, except by its permission, allow resort to any other forum in respect to that subject matter, either when the proceedings are pending in the court or after decree, except in cases where the right to sue at law arises on instruments executed under the decree. (cZ) But where the decree has been entirely executed and the cause thus out of court, any relief sought in equity can only be granted on a new bill.(e) [1] § 779. On the general principle above stated, the court, after (d) Prothero v. Phelps, 25 L. J. Ch. 105, 430; Humphreys v. Home, 3 Ha. 276. See (L. JJ.); Bell V. O'Reilly, 2 Sch. & Lef. also Small v. Attwood, 3 Y. •& C. Ex. 105. (e) Ford V. Comptou, 1 Cox, 29(3. [1] It is well settled that, while proceedings are pending in the court of chancery, all applications to other courts are looked upon with jealousy. It is a rule thoroughly established, that chancery will administer complete redress to the parties, and this, though in its progress it may decree on a matter which was cognizable at law. Where equity can do complete justice between the parties, it will never turn them out of court to pursue their remedy at law. Cathcart v. Robinson, 5 Pet. 263. Beardsley v. Halls, 1 Root, 3GG. Milter V. McCann, 7 Paige, 457. Chinn v. Ileale, 1 Munf. 63. McRaven v. Forbes, 6 How. Miss. 569. Hume v. Long, 6 Monr. 116. Miami Exporting Co. v. United States Bank, Wright, 249. Oliver v. Pray, 4 Ham. 175. Brown v. Gardner, Harring. Ch. 291. Hawley v. Sheldon, Id. 420. So where a bill was filed against a mortgagee, who was also lessee of the mortgaged premises, to obtain a set-off of the rent against the amount due on the mortgage, the bill was retained to compel payment of the rent, though the plaintiff failed to support his claim of set-off. Walcott v. Sullivan, 1 Edw. Ch. 339. Again, where, on a bill by a vendor to enforce the specific performance of a contract for the sale of land, it appeared that by the contract the vendee had the right to relieve himself from the purchase by paying a stipulated sum, it was held that the right of the vendor to come into equity for a specific performance being clear, the court, in refusing to decree such specific performance, might RELIEF SUBSEQUENT TO DECREE. 411 a decree for specific performance, restrained the defendant in equity from bringing an action against the plaintiff in equity for damages in respect of tlie non-completion of the contract within the specified time.(y*) And so where the defendant had agreed to convey to the plaintiff certain lands adjoining a stream, and the plaintiff had agreed to erect abridge across the stream : the plaintiff had obtained a decree for specific performance, and a reference was directed to the master to settle a conveyance, and after the decree, and pending the proceedings before the master, the defendant brought an action against the plaintiff for dam- ages *for the non-erection of the bridge by him : the plain- r*MO(n tiff filed a supplemental bill, praying an injunction to re- strain the defendant from proceeding in the action, to the pray- er of which the court acceded, (nnijicatiis. (L. JJ.) See also post, 5 938. to compel a specific performance of the contract of sale, although he may have a remedy at law by an action for the purchase money. Phyfe v. AVardell, 5 Paige, 268. See Brown v. Haif, Id. 235. All that is required, to obtain a specific performance, on the part of a vendor, is that he shall perform his agreement in substance. A mere trifling variation will not defeat a decree. Willard's Eq. Jur. 290. Winne v. Re}'nold.s, 6 Paige, 407. King v. Bardeau, 6 John. Ch. 38, is a ca.se in point. Two lots were sold at auction at the same time and to the same person, and the buildings upon the one projected upon the other, and it was held that the vendor might enforce the purchase in equity, because the vendee obtained substantially what he bargained for, and the de- ficiency was capable of compensation. Henry v. Grady, 5 B. Monr. 450, is very much of the same nature. There was a contract for the conveyance of land, which, although not carried into execution at the time appointed, was not considered by either vendor or vendee as abandoned. The vendor refused to deliver full possession at the time fixed for surrender to the vendee, and the vendee in consequence refused to pay the purchase money. It was held that the vendor might enforce a specific performance, because the injury to the vendee in not getting possession was slight, and might be compensated out of the purchase money still to be paid. 450 FllY ON SPECIFIC PERFORMANCE OF CONTRACTS. , A. havinir obtiiinetl a decree *against B. for the spe- '■ ^ citic pcrtbrniance of an ajrrecment, l)rought an action at law for the consequent damages which he alleged himself to have sustained by the destruction of his business : B. then filed a bill against A. asking that he might be restrained from proceeding at law, to which the court acceded, notwithstanding the argu- ment that the court could not give damages. "That it is com- petent for this court to ascertain damages, I feel no doubt," said the Lord Justice Turner.(A) " It is the constant course of the court in the case of vendor and purchaser, where a sufficient case is made for the purpose, to make an inquiry as to the deteriora- tion of the estate, and in so doing, the court is, in truth, giving damaires to the purchaser for the loss sustained by the contract not having been literally performed." It is impossible not to see the threat propriety of courts of equity being clothed with such a jurisdiction, so that in cases coming before them by way of spe- cific performance, complete justice may be done to the suitors ■without their resorting to any other forum. One object of the recent legislative changes in the administration of the law has been to enable courts of law and equity to do complete justice in matters arising within their respective jurisdictions : and it is in entire accordance with this that courts of equity should proceed by way of damages in the cases where complete justice requires their payment.[2j (A) P. 108. [2] The law, as it now exists in this country, is stated by Mr. Justice Story. After considering the numerous conflicting cases on the subject, he says : " There is, however, a distinction upon this subject, which is entitled to con- sideration, and may, perhaps, reconcile the apparent diversity of judgment in some of the authorities. It is, that courts of equity ought not to entertain bills for compensation or damages, except as incidental to other relief, where the contract is of such a nature that an adequate remedy lies at law for such com- pensation or damages. But, where no such remedy lies at law, there a pecu- liar ground for the interference of courts of equity seems to exist, in order to prevent irreparable mischief, or to avoid a fraudulent advantage being taken of the injured party. Thus, where there has been a part performance of a parol contract for the purchase of lands, and the vendor has since sold the COMPENSATION. 451 § 700. riic court, -vvhcre it sees lit, may direct an issue to as- certain tlic amount of compensation in the nature of damages.(/,) § 797. The contract will not be enforced with compensation Avhere a material part of the subject matter is wanting. For- merly the court went far beyond what it noAv does *in enforcing contracts substantially different from those en- ^ -I tered into, as where a wharfinger who contracted for a house and wharf was compelled to take the house without the wharf: but of this mode of proceeding Lord Eldon frequently expressed his (/v) Ferguson v. Tadman, 1 Sim. 530; Nelson v. Bridges, 2 Beav. 239. same to a bova fide purchaser for a valuable consideration without notice ; in such a case, inasmuch as a decree for a specific performance would be ineffect- ual, and the breach of the contract being by parol, would give no remedy at law for compensation or damages, there seems to be a just foundation for the exercise of equity jurisdiction." Eq. Jur. § 798. See the case of Robertson V. Hogsheads, 3 Leigh, 6G7. It has also been said, upon the highest authority, that where the vendor never had any title to the land contracted to be sold or where he has conveyed the same subsequent to the making of the contract so that he has not the power specifically to perform his contract, and that the fact is knoion to the vendee, the latter cannot file a bill in equity for the mere pur- pose of obtaining compensation in damages, for the non-performance of the contract by the vendor; but he must resort to his remedy at law for that purpose. But where the defendant deprives himself of the power to perform his contract specifically, during the pendency of a suit against him, to compel such performance, the court will retain the suit; and will award to the com- plainant a compensation in damages, for the non-performance of the contract by the defendant. The principle on which this is based is to prevent a multi- plicity of suits. Besides, the plaintiff, who had a good cause of action when his bill was filed, ought not to be turned out of court, by the mere act of the defendant, without either the relief for which he originally filed his bill, or a compensation in lieu of it. But while a court of equity does not entertain jurisdiction where the sole object of the bill is to obtain a compensation for the breach of a contract, except when the contract is of equitable cognizance merely, it would seem that if the complainant filed his bill in good faith, supposinir at the time he instituted his suit that a specific performance could be granted, and not knowing that the defendant had previously parted with the title, the bill maybe retained for compensation. Walworth, Ch., Moss v. Elmcndorf, 11 Paige, 277. Hatch v. Cobb, 4 John. Ch. 550. [Kent, Ch.] Kimpshall v. Stone, 5 id. 193. Woodward v. Harris, 2 Barb. Sup. Ct. R. 439. Willard's Eq. Jur. 291. See Wiswall v. McGowan, 1 Hoff. Ch. 125. 452 FRY ON SPECIFIC PERFORMANCE OF CONTRACTS. disapproval, and it is now abandoned by the court.(/) " The court/' said Lord Eldon on one occasion, (m) " is from time to time approaching nearer to the doctrine that a purchaser shall have that which he contracted for, or not be compelled to take that which he did not mean to have."[3] ^ 798. Accordingly, where a wharf and jetty were contracted to be sold, and it turned out that the jetty was liable to be re- moved bv the Corporation of London, specific performance was refused. (?i) In the case of the sale of a residence and four acres of land, a slip of ground of about a quarter of an acre between the house and the high road to which no title was made, was held not to be a subject of compensation. (o) In another case, a yard which was essential to the enjoyment of the premises, was held from year to year instead of for the term of twenty-three years, for which the rest of the premises was held, and at a sepa- rate rent : this was considered to be a defect not within a condi- tion for compensation for misdescription of the property or any other error whatsoever in the particulars.( p) And in one case,(§') Lord Eldon thought that a defect in title in respect of eleven out of seventy acres which do not appear to have been peculiar in their position or character, " would probably be material to the suit." j.^ -. *§ 799. In some cases a part of the estate contracted '- for may be material, because if any one else were to possess it, it would probably be turned to some purpose prejudi- cial to the enjoyment of the estate, as where land near a man- sion was such that it would be most profitably used for building ground or for a brick kiln.(7') But the nuisance thus appre- (/) Drewe v. Hanson, 6 Ves. 675 ; Halsey v. ship stated. Shirley v. Strattou, 1 Bro. C. C. Grant, 13 Ves. ":} ; Stapvlton v. Scott. 13 Ves. 440, n. (2i. 4-3.") ; KnatclibuU v. Gniebar, 3 Mer. 124. .See (m) 3 Mer. 14(5. also Howland v. Xorris. 1 Cox, 59. The de- (n) Piers v. Lambert, 7 Beav. 546. cision in Shirley v. Davis, to which Lord El- (o) Perkins v. Kile, 16 Beav. 193. don frequently alludes appears to have been (p) Dobell v. Hut".liiiisou, 3 A. & E. S.'iS. ia facst the opposite of that which his lord- (9) Osbaldiston v. Askew, '2 J. & W. 539. (r) KnatchbuU v. Gruebar, 1 Mad. 153. [3] Where j^. purchased of B. 686 acres of land for cultivation, and the vendor's title to 209 acres thereof was found defective, it was held that the vendee should not be compelled to take the residue, although it lay distinct and separated from the other portiDn by a public road. Jackson v. Ligon, 3 Leigh, IGl. See Bryan v. Read, 1 Dev. & Bat. Ch. 78; Pwjad v. Noe, 9 Yerg. 283. COMPENSATION. 453 hendcd must be probable, and not merely distant, fanciful, and conjectural. (5) (} 800. The same principle of course applies wbere, though the whole land is capable of being conveyed, it, or a part of it, is subject to rights which materially affect its enjoyment : thus a right of way which would render useless for building a close advertised as building ground, does not come within a condition for compensation ;(^) so giants of rights to the owners of lower lands, to fetch water from a spring on the upper lands, to cut and cleanse drains leading the water to the lower lands and other similar rights having reference to four and a half acres out of about thirty sold, were held to constitute a material defect in tho title to the upper lands, and consequently were not the subject of compensation, notwithstanding a condition that a mistake in the description or an error in the particulars should be the sub- ject of compensation, and not annul the contract.(i/) § 801. In the following cases, on the other hand, the defect has been considered not essential, but a proper subject of com- j)ensation : where there was an objection to the title of six acres out of a large estate, and those acres do not appear to have been material to the enjoyment of the rest ;{v) where fourteen acres were sold as water meadow, and twelve only answered that de- scription ;(i«) and where on a purchase by the tenant in possession property described *as forty-six feet in depth proved to r*q , 9 Vea. 368 ; S. C. 1 S & S. 201, u. COMPENSATION. ' 455 the tenure, though not as stated, is nearly the same, as Avhero lands sold as freehold were copyholds of which the tenure under a composition with the lord was scarcely dillercnt from freehold. (cZ) But in a previous case(e) before the master of the rolls, where there was a condition for compensation in the case of error in the description of the premises, or of any other error whatsoever in the particulars, and the property which was described as copyhold turned out to be partly freehold, Sir John Eomilly refused to compel specific performance against the purchaser : he had contracted to purchase one thing, and he might refuse to accept another. § 805. It is not easy to lay down any definite rule with regard to what incumrbrauces are, and Avhat are not, the proper subjects of compensation. § 806. Compensation has been allowed for small annual payments out of tithes, (/) and for quit-rents and rent charges where small. (^) § 807. But it has been refused in respect of draining and embanking taxes charged on fen-lands by a local but public act,(/^) and of a lease for life at a low rent.(e) [5] . (rf) Price V. Macaulay, 2 De G. M. & G. 339. (/) Horniblow v. Shirley, 13 Ves. 81; Halsey In Hicli V. Phillips, Prec. in Ch. 575, a bill by v. Grant, 13 Ves. 73. a vendor ol' an estate which in the articles (?) Esdaile v. Stei)henson, 1 S. & S. 122. was treated as freehold, was refused because (h) IJarrand v. Archer, 2 Sim. 433; aflirmed about one-sixth in value was copyhold, but on appeal. 2 R. & My. 751. nothing is stated as to the peculiar nature of [i] Collier v. Jenkins, You. 295. In Xelthorpe the tenure. v. Ilolj^ate, 1 Coll. C. C. 203. compensation (e) Ayles V. Cox, 16 Beav. 23. for an outstanding life estate was eulorced against the vendors. [5] Small and trifling incumbrances on land are generally disregarded. "Winne V. Reynolds, 6 Paige, 407. Ten Broeck v. Livingston, 1 John. Ch. 357. But, al- though both quit-rents, and entire rent charges, are subjects of compensation, [Esdaile v. Stephenson, 1 S. & St. 124; Horniblow v. Shirley, 13 Yes. 83; Halsey v. Grant, Id. 80,] yet, where the charge is only a portion of a rent charge issuing out of an entire estate, the vendee will not be compelled to accept compensation, or to complete the contract, unless the vendor can pro- cure a certain apportionment of the charge; [Barnewell v. Harris, 1 Taunt. 431,] provided the purchaser did not become such under a clear understanding that he was to be exonerated in a specified and different mode ; if that were the case, he cannot insist upon a better indemnity than that agreed upon, al- though it may not be an absolutely perfect exoneration. Casmajor v. Strode, 2 Swanst. 356. 456 FKY ON SPECIFIC PERFORMANCE OF CONTRACTS. *§ 808. And so with regard to tithes, which, though '- -I they were formerly held a subject for compensation, (^) are now considered not to be so.(/) Where, however, the cir- cumstances showed that the question whether the land was to be tithe free or not, was an immaterial one in the view of the purchaser, and the tithes were not likely to arise, the court enforced the contract with compensation •,{rn) and the same was done where only part of the estate was sold as tithe free, and it turned out that only a smaller part was.(?i) § 809. Indemnity is a species of compensation, inasmuch as something else is given in place of the very thing contracted for : it is applicable to those cases where the loss is not cer- tain, but contingent ; and it seems that wherever a party is entitled to compensation in respect of such a loss, he may, at his election, have an indemnity.(o) § 810. But the court will not compel a purchaser to take an indemnity, unless such indemnity were part of the contract be- tween the parties, even in respect of a defect which might be the subject of compensation ;[p) nor against a material incum- brance, ((7) nor in respect of a misdescription ;(r) still less where the contingency against which the indemnity is proposed would imperil the whole subject matter of the contract.(6-) But the purchaser may in many cases take an estate with an indemnity (as, for instance, against a widow's dower,) where the vendor could not compel the purchaser to accept it.(^) r*orr.T *^ ^11- The cases where the defect is, from its mag- 1*352 ... , . ,. *- ' nituue or importance, not a proper subject tor co^npen- sation, have been already stated. We may now consider some other cases, where the doctrine will not be applied. § 812. The principle of compensation, whether arising under the general doctrine of the court, or under a condition for com- pensation in case of any error or misstatement, Avill not be ap- (K) Lord Stanhope's case, cited 6 Vee. 678. per Lord Eldon in Paton v. Brcbner, 1 Bli, (I) Ker V. C'lobery, Siig. Vend. 1(35 ; Biuks 66 ; Avlett v. Ashtoii. 1 Wy. & Cr. 105. T. Lord Kokebv. 2 t^w. 222. (?) Wood v. Benial, 19 Vcs. 220. (m) i^nlith v. Tolcher. 4 Russ. 302. (r) Kidgway v. Gray, 1 M"N. & G. 109. («) Biiiks V. Lord Kokeby, 2 S\v. 222. {s) FilUes v. Hooker, 3 Wad. li*3. (0) Milligan v. Cooke, 16 Yes. 1. («) Wilson v. Williams, 3 Jur. N. S. 810, (P) Balnianuo v. Luraley, 1 V. & B 224; (Wood, V. C.) COMPENSATION. 457 plied ^vliere there has been inisi-cprcsentalion,(/<) — even, it «eems, though the diflercnee be of such a character that, if it had arisen from error, it Avould have been subject to compen- sation, as, fur instance, in respect of the difference b(!tween copyliolds nearly ecpial in value to freehobls, and freeholds.(') And so where there was a misrepresentation as to the tenancy of the house, the court refused to hold the purchaser to liis contract and give him compensation for the delay, which would have been needed for an ejectment, although the purchaser bought for investment, and not for residence. (?/;) [(!] § 813, It is a necessary principle that, where there arc no data from which the amount of compensation can be ascertained, the court cannot enforce the contract with compensation. But the ol)jection that the compensation is unascertainable is one "which the court is unwilling to entertain ; and it grants relief "with compensation in many cases in which the ascertainment of the amount to l)e paid cannot be said to be certain or exact, but only the reasonable estimate from the evidence of compe- tent persons ; as, for instance, in compensation, for a right to dig coals in the land sold.(.x') *§ 814. But where this reasonable estimate is not at- p^^-^i tainable, the court refuses compensation : thus where a ^ J («) PerSirThos Phimer in Viscount Clear- [v] Price v. Macaulay, 2 De G. M. "& G. mont V. Tasburgli, 1 J. & W. I'iO; Duke of 339,344. Norfolk V. Worthy, 1 Camp. 337, 340; Powell (w) Lachlam v. Reynolds, Kay, 52. Sec V. Doubble, Suy. V'end. 23 ; Stewart v. AUis- ante, § 788. ton, 1 Mer. 26; cf Morley v. Cook, 2 Ha. 111. (a;) ilanisden v. Hirst, 4 Jur. X. S. 200, (Kiudersley, V. C.) [G] Miller v. Chetwood, 1 Green's Ch. 199, affords an example of the strin- gency of the rule. In that case it was held that on a bill by the vendor for a speciiic performance of a contract for the sale of a certain tract of land, although the quantitj'^ of the tract is not stated in the contract, the defendant may sliow by parol evidence, that the complainant, before the sale, represented to the defendant that the tract contained nine acres, when, in fact, it contained only about six. And, it was further said, it makes no difference in such a case, that the sale was made by the tract and not by the acre, and that the vendee lived in the neighborhood of the ground, subject daily to his observation, for this constitutes no excuse for the misrepresentations of the vendor. Upon these grounds specific performance was refused FRY — 30 458 FRY ON SPECiriC PERFORMANCE OF CONTRACTS. house and grountls wore sold by the court, and, pending the niakino' out of the title, some ornumental tinilier was cut down, the purchaser was discharged and not compensated, because the act affected the value of the property to the purchaser as a residence, in a way which the court was unable to measure.(?/) And where the particulars represented the average size of the timber in the wood, which Avas the property sold, as approach- ing fifty feet, but in no way specified the number of the trees ; and the plaintift''s witnesses treated no trees containing less than 10 feet as timber trees ; and on this basis showed an average of 34 feet 6 inches ; whilst the defendant's witnesses, reckoning all trees containing not less than 5 feet as timber trees, showed an average of 22 feet only ; the court held that the subject matter sold fell short of the description, but, in the absence of any'representation as to the number of trees, the court had no data for calculation, and therefore could not give compensation, but dismissed the bill. (2;) [7] § 815. The same principle seems to have governed another case, in which the premises were described as in the joint occu- pation of A. and B. as lessees, whereas they were in fact in their joint occupation, but not as lessees, but A. was the assignee from C, the original lessee : it was held that this was not a case where a purchaser could claim compensation, nor where he could be forced to take an indemnity. («) § 81G. On the same principle that a warranty or a represent- P^^ ^ ation is not binding, w^hen made in respect of some *de- -■ feet that is perfectly patent, (/j') the court will not enforce compensation for defects of this nature : so that no compeusa- (y) iSrasrennis v. Fallon, 2 Moll. 561, 584 See also AVhite v. Cudden, 8 CI. & Fin. 766 ; (c) I>onl Brooke v. Kounthwaite, 5 Ha. Wilson v. Williams. 3 Jur. N. S 810, (Wood, 298. V. C); andante, j 30;5. (a\ Eidgway v. Gray, 1 M'N. & G. 109. (6) See ante. 5J 446, 563. [7] In case M^here it would be difficult to ascertain the injury resulting from a bleach of contract, or the sum in damages by which the injury might be compensated, the supreme court of the United States have decided that they will not themselves ascertain the injury, nor direct an issue of quantum damni- ficatus. Pratt v. Law, 9 Cranch, 45G. Pratt v. Campbell, 2 Pet. 354. COMPENSATION. 459 tion was given in respect cf a farm clescril)ed as lying witliin a ring fence, which did not so lie, as the purchaser had himself seen and knew.(c) § 817. But in order that this principle shall apply, the de- fect must be perfectly visible to everybody : therefore, wliere a representation was made as to the dry rot in a house, wiiich was not a matter so perfectly visible, the court gave compensa- tion :(fZ) and where a tenant in possession purchased the prop- erty, which Avas represented as forty-six feet in depth, whereas it was in fact only thirty-three feet, he was held entitled to compensation, inasmuch as occupiers are not in the habit of measuring their premises. (e) § 818. The ordinary right of a purchaser to insist on per- formance of the agreement and compensation may of course be excluded by contract. Therefore, where A. agreed to sell to B. certain freehold property, and it was stipulated that if B.'s counsel should be of opinion that a marketable title could not be made at the time appointed for the completion of the pur- chase, the agreement should be void and be delivered up to be canceled ; and B.'s counsel was of opinion that a good title could be made only to two-thirds, and that one-third Avas held for a life only ; the purchaser insisted on specific performance with compensation, but it w^as refused, because the contract was by its terms void under the circumstances.(y) § 819. Inasmuch as the court will not allow any proceedino-s to be taken at law without its leave, in respect of the subject- matter of the suit, the court will enforce compensation at any time before the completion of the transaction by the execution of the conveyance and the *payment of all the purchase r#orK-i money, in respect of any matter, the fit subject of com- pensation, which has arisen before that time, and whether be- fore or after contract.( g) § 820. On this principle, where an estate was sold as tithe (f) Dyer v. Hararrave, 10 Ves. 505. {g) Frank v. Basnctt. 2 Mv. & K. 618 ; Cann id) Grant v. Munt, Coop. 173 v. Cann, 3 Sim. 447 ; Prothero v. Phelps. 25 (e) KiuR V. Wilson. 6 IJeav. 124. L. J. Ch. 105. (L. JJ ;) cf. Cator v. Karl of (/) Williams v. Edwards, 2 Sim. 78. Pembroke, 1 Bro. C 0. 301 ; 2 Bro. C C. 282. 460 FKY ox SPECIFIC TERFORMANCE OF CONTRACTS. free, and after a claim had been .started l>y the incumbent of one parish, the conveyance was executed, but a part of the purchase money was set aside as an indemnity against this claim : the claim came to nothing, but before the indemnity fund Avas trans- feri'cd, it a})pcared that the land was in another parish, and was subject to tithe to its incuml)ent ; it was held on a bill filed by the purchaser that he was entitled to compensation in respect of these tithes out of the fund.(/,?) ^ 821. But after the complete execution of the contract, the court has no jurisdiction to enforce compensation. («) § 822. Following the principle above stated, the court will allow compensation for deterioration in the estate, between the time Avhen the contract ought to have Ijcen completed by the vendor, and the tune when he does in fact make out the title, (/t) whether it have arisen by the willful default or merely by the negligence of the vendor or his tenants. (^) Thus, where stone had been subtracted from a quarry pending a suit for the spe- cific performance of an agreement to grant a license to work it, compensation was obtained by means of a supplemental bill.(72i) The cases in which the vendor and purchaser are respectively liable for deterioration of the estate are considered else- where. (n) r^QKr.-! § ^23. A condition, stipulating that if through any •- ^ *mistake the estate should be improperly described, or any error or misstatement be inserted in the particular, such error or misstatement should not vitiate the sale, but the ven- dor or purchaser, as the case might happen, should pay or allow compensation, has been held to cover those cases of inno- cent mistake where, in the absence of such a condition, the purchaser would be unable to insist on specific performance with compensation, ])ut would be obliged to take the whole as it stood, or to allow the contract to be vacated. (o) (A) Crompton v. Lord Melbourne, 5 Sim. 353. {m) Nelson v. Bridges, 2 Beav. 239. [i) Newhani v. May, 13 Pri 7^9. {n) See post, § 913. {k) Binks v. Lord Uokeby. 2 Sw. 222. (r;) Painter v. Newby, 11 Ha. 26. See also (I) Foster V. Deacon, 3 Mad. 391. ante, § 700. KEFERENCE OF TITLE. 461 *C II AFTER III. [*357] OF KEFERENCE OF TITLE. § 824. Where the vendor of land sues the puichaser for a specific performance of the contract, the defendant may, in some cases, succeed in having the bill di-missed at the hearing, on the ground of a defect in the plaintiff's title, provided the defect in title has been prominently put forward in the plead- ings :(«) but whore this is not the case, the defendant is entitled to have an inquiry directed as to the title «f the vendor to the hinds in question. This right is derived from the extraordinary nature of the jurisdiction which the vendor seeks to put in action, in consideration of which the purchaser has a right not only to have such a title as the vendor offers upon the abstract unauthenticated, l)ut the highest assurance upon the nature of his title wdiicli can be acquired for him by the production of deeds, the directing of inquiries, and the sifting of the vendor's conscience. (/^) [1] § 825. Hence it follows that, though the purchaser may admit (a) Lucas v. James, 7 Ha. 418, 425. (6) Jenkins v. Ililes. 6 Ves. 646. [1] Where a bill is filed by the vendor of land for the specific performance of a contract of sale, and the vendee objects to the title of the vendor, and it appears doubtful whether the plaintiff can make such a title as would author- ize a decree for a specific performance, the title ought to be referred, of coui-se, to a commissioner to be examined and I'cported upon. Beverly v. Lawson, 3 Munf. 317. In the state of New York, "these inquiries are in nearly all cases preliminary to judgment, and must be directed by interlocutory order. They may be necessary not only in actions of specific performance, but also inci- dentally in actions having other objects ; as for example, in a partition suit, as regulated by the former rules and practice, and by the provisions of the 78th and 79th of the present rules of the supreme court. The inquiry under the 79th rule, (corresponding to the 178th chancery rule,) is an inquiry both as to pet sons and facts ; that is, the referee is not only to take proof of the title and to inqurc into the situation of the property for the purpose of ascertain- 462 FRY ON srECIFIC TERFOKMANCE OF CONTRACTS. that he has only one particuhir o>)joction,(c) or no ol)jeclion at a\\{d) to the title, he is equally entitled to a general reference as to it. § 826. The right is so fjir that of the purchaser that the ven- dor cannot except to the title, so as to assert his own title to be bad.(t') r*^fim *^ ^^^' ^^^^^^^**^ ^^^^ purchaser is the plaintiff in a suit for specific performance, he is also entitled to a refer- ence of title ; but, inasmuch as it is he, and not the vendor, who is calling on the court to act, he does so at his own risk; and, therefore, if he knows of objections and asks for a refer- ence, and then waives the objections, he will have to bear the costs of investigating the title. (/) And it would seem that the same result must follow where the effect of a reference is to show that the vendor had at the due time disclosed to the purchaser a perfect title. § 828. The right to this reference is not confined to sales of real estate, but extends to any species of property with regard to which the court may entertain suits for performance, and the nature of which renders such an inquiry proper. Accordingly, inquiries have been directed into the title of vendors to shares in railway companies, (//) and in mining concerns.(/<) The na- ture of the inquiry, of course, varies according to the nature of the property, and the essentials of a good title to it. § 829. But there are necessarily many contracts in respect of which no such inquiry is made : where the contract is not for the sale of any property, such a reference is of course out of the (<-) Lesturgreon v. Martin, 3 My. & K. 255. (f) Bennett v. Fowler, 2 Beav. 302. id) Jenkins v. Hiles, 6 Ves. C46; cf Fleet- {g) Shaw v. Fi.slier, 2 De G. & Sm. H. ■wood V. Green, 15 Ves. 591. (h) Curling v. Flight, 2 Phil. 613. (c) Bradley v. Munton, 15 Beav. 460. ing whether it can be actually partitioned, but he is also to ascertain and re- port as to the claims of creditors not parlies to the suit, in the shape of specific or general liens upon the premises. This being absolutely required by statute, can in no case be dispensed with. The proceedings upon these partition refer- ences are special, and are governed by the customary chancery practice, based upon the provisions of the statute, which are still in force, and the rules of the court." Van Santv. Eq. Pr. REFERENCE OF TITLE. 4o3 question. And so, too, where a contract is rather in the nature of a compromise of disputed rights than of a contract for sale, the court Avill not make the inquiry. (2) In a recent case, where a small piece of land was described as held of certain commis- sioners of waste lands at a rent of six shillings, it was doubted whether a purchaser could call on a vendor for the title of the commissioners.(7i-) § 830. The court will not direct an enquiry where, though the contract be one of sale, the vendor only sells *snch inter- r*qr qi est as he has :(/) such an agreement is of course, perfect- ^ ly valid, but being in restraint of the purchaser's implied right to a "food title, it must be made clear and unambiiruous to the purchaser. (?;i) Of such stipulations there are many cases : thus, where a purchaser agreed to accept the vendor's title without dispute, he was held to be debarred from taking an objection on account of an incumbrance which left the legal state outstand- ing.(?i) So, again, where conditions of sale of a fee farm rent stated that no evidence should be required of the receipt or pay- ment, or existence of the ground rent, other than that disclosed by a convej^ance mentioned, and that no objection should be taken to the title in consequence of the non-payment or non- receipt of the said rent, and the purchaser objected that the rent had not been paid for twent}^ years, and so was extinguished, and that there was therefore no subject matter of the contract, and therefore no contract : the court held that the purchaser had by the contract taken on himself the chance of being able to substantiate his claim to the rent.(o) A vendor may, of course, stipulate that a purchaser shall take such title as he himself bought with.(2j) § 831. Where the vendor was entitled to one undivided third in a leasehold interest in certain collieries, and the purchaser to another undivided third under the same title, and the contract (i Godson v. Turner. 15 Beav. 46. (") Duke v. Barnctt. 2 C. C. C. 327 ; (A) Ashton V. Wood, 3 Jur. X. S. 1164, Wilmot v. Wilkinson. 6 B. & C. 506. (Suart, V. C.) (") Hanks v. Palling. 6 Ell. & Bl. 059 ; (/) See ante, § 571. cf. Smith v. Harrison, 26 L. J. Ch. 412, sla- (m) Southby V. Hutt, 2 My. & Cr. 207, ted, ante. § 237. 212. See also Anderson v. Higgins, 1 Jon. ((j) Monro v. Taylor, 6 lla. 51, 71. & L. 718. 464 FRY ox SPECIFIC PERFORMANCE OF CONTRACTS. was for iiu assignment of the vendor's share and interest in the collieries : tlie contract was held to be for the sale of the ven- dor's share and not of the land, and the vendor was held not liable to show the lessor's title. ((7) § 832. The vendor may by express stipulation, as we *have seen, entirely exclude any inquiry into his title : L "^ ' Mie make take a middle course, and without excluding, may limit that inquiry. He may exclude all objections in respect of a particular instrument, (/■) or all ol)jections to title earlier than a certain deed, (.9) or he may sell merely an equit- able and not a legal cstate.(^) In all cases where an estate is sold subject to conditions of sale as to title, the inquiry is whether a good title is made in accordance with such condi- tions. And where A. contracted with B. for a lease, B. know- ing the purposes for which A. wanted the house, and A. know- ing that B.'s title was merely leasehold, a reference was directed, having regard to the covenants in the lease, and the purposes for which the premises were taken. (?<) ^ 833. A very common case, in respect of which the question arises whether the inquiry has been limited or not, is in respect of a lessor's title in contracts to assign a lease, or to grant an underlease. (y) The cases on this subject fall into two catego- ries : the first, where it is stipulated only that the lessor's title shall not be produced, which relieves the vendor from the necessity of production, but does not prevent the purchaser from showing, by any means in his own power, that the ven- dor's title is defective : the second class of cases are those where, in addition to such a stipulation, it is also provided that the lessor's title shall not be inquired into, which altogether precludes inquiry for every purpose into that portion of the title, and compels the purchaser to take it as it is. § 834. Of the first of these classes an illustration may be found (7) Phipp? V. Child. 3 Drew, 709. (») Will)raliam v. Livesey, 18 Beav. 206. (r) Con-all V. Cattell, 4 M. & W. 734; S. C. 3 For the form ol' reference where the vendor Y. & C. Ex. 413. has a i)0\ver of sale with the consent of iriis- (<) Taylor v. Martindale, 1 Y. & C. C. C. tees, see Graham v. Oliver. 3 Beav. 124. 65S. ((') As to waiver of this right, infra, § (') Ashworth V. Mouu.sey, 9 Ex. 175. 855. REFERENCE OF TITLE. 4G5 in tho case of Darlington v. Hamilton, (?t') wlierc there r*.,,.,-. *\vas a stipulation that the lessor's title should not be '- -' produced, and the purchaser discovered that the lessor's title was objectionable by reason of its being involved with the title to other property, so that the purchaser would run the risk of being ousted by reason of a l)reach of covenant in respect of other prop- erty, and the court accordingly refused si)ecific performance. § 835. On the other hand, where the condition provided that the lessor's title should neither be produced or inquired into, and the purchaser oli'ered acts of parliament in evidence that the lessor, which Avas a public company, had no power to gi-ant leases, the objection was held to be precluded. (aj) § 836. The case of Spratt v. Jeffery,(?/) which is at variance with the distinction above stated, must now be considered as overruled ; for, in that case, words which merely excluded the purchaser from calling for the lessor's title, were held to pre- clude any objection being taken to that title. § 837. We have seen that, generally, either vendor or pur- chaser has a right to the inquiry in question, — the one being entitled to an opportunity of perfecting, and the other of in- vestigating the title. But with regard to either, this right may be Avaived. § 838. Thus, if the vendor states his title, and conclusively avers that he can make no other or better title, and the title disclosed is objected to l)y the purchaser, the court may decide without a reference ](z) but if the decision be in favor of the vendor, it would then appear that the purchaser would be en- titled to call for a reference. § 839. But it is with regard to a waiver by the purchaser *that this question more often arises ; for a purchaser r^n,^ ■,-, originally entitled to examine the vendor's title may *- "-' subsequently waive that right either expressly or by implica- tioi»; and this Avaiver may be either as to the Avhole title or limited to parts : and in c:;se of an express waiver, it may be either absolute or conditional. (n) (»•) Kiiy, oJO ; Shepherd v. Keatley, 1 Cr. M. (-) Rose v. Calland, 5 A'cs. ISfi ; Oinorod v. & R. 117. nardman, 5 Ves. ~22. explained in Jenkins {X) Hume V. Bentlej', 5 DeG. & Sm. 520. v. Uiles, 6 Ves. 654. 655. (!/) 10 li. & C. 219. (a) Townley v. Bond, 2 Dr. & AV. 210, 2G1. 466 FRY ox SPECIFIC FERFORMANCE OF CONTRACTS. § 840. An admission of title by a defendant in his answer is an express waiver, which excludes the right to a reference of title : for this purpose it is enough that the defendant admits as to his belief that at the time of the contract the plaintiff had a title ; for by the rule of pleading, what a defendant admits as to his belief is treated as an admission of the fact.(6) § 841. This waiver, where not express, must be clearly im- plied from the acts of the purchaser. " The court," said Lord Eldon,(c) " will at least take care that, where it is contended that the defendant has waived his right to a reference, it shall be clear that there was no surprise upon him, and that there has been a full and fair representation as to the title on the part of the plaintiff:" and so where the purchaser relies on any dealings in respect of the abstract as a waiver of objections to title, the contents of the abstract must raise the objection in question clearl}^ and explicitly, and not merely by inference or notice.((Z) § 842. It is often the case that there is only a particular objec- tion to the title that is of moment, and it is then frequently a ques- tion whether the purchaser has not waived all right to object to it. § 843. The cases thus fall into three classes : (1) those of acts done by the purchaser after the objection is known to him, the objection being in its nature curable ; (2) those of similar acts r*opoT where the defect is incurable ; (3) and *those of acts before the objection is known to the purchaser. It is evident that under the last we may treat of the question of a general waiver of title. § 844. (1) Where the defect, though known, is yet one which it is or may be in the power of the vendor to remedy, acts which indicate an intention to complete may not yet amount to a waiver, because they may be made in the faith and expecta- tion that the remedy will be applied. § 845. And a negotiation about the objection between the parties after the acts, is on this principle an evidence that it was not waived. (e) § 846. (2) But where the defect is known to the purchaser, (fc) Phipps V. Cliilcl, 3 Drew, 709. (rf) Blacklow v. Laws, 2 Ha. 40. (f) In .Jenkins v. Hilcs, 6 Vcs. 655; Haydon (e) Calcraft v. Roebuck, 1 Ves. Jun. 221 V. Bell.lBeav. 337. REFERENCE OF TITLE. 4G7 and is in its nature incurable, there no such expectation can arise, and much slighter acts will oi)erate as iiulications of an intention to waive the objection, So where an estate, sold as freehold and leaseholds attached, turned out to be nearly all leasehold, and this clearly appeared as a defect which could not be cured, and the purchaser continued to treat, up to and long after the day for concluding the purchase, on points of title irrespective of this objection : he was held to have waived it.(/) 80 where an estate was subject as to part to a reservation of rights of sporting which appeared on theal)stract, and which the vendor could not cure, and after the delivery of the abstract the purchaser took possession : he Avas held to have w^aived his right to object to the reservation in question. (r/) And where the invalidity of a fiat on which the title depended was known to the purchaser, his granting a lease of the property was held a waiver.(A) Again, where the defect alleged was an erroneous and misleading de- scription of the situation of a house, proceeding to investigate the title after *this was known, waived all objection on r*Qpj^i the score of misdescription.(?) § 847. So with regard to the contract itself, — if the defendant contends thai it is a nullity, and after having become aware of the facts on which he relies for this contention, has gone on acting as though there were a subsisting contract, he will be estopped from subsequently taking the objection. (/,•) § 848. Where either by the terms of the original contract, or by a subsequent arrangement, it is agreed that the purchaser shall take possession and shall be entitled to a good title, no waiver is worked b}' the possession or by any acts which do not go beyond the acts of a person entrusted with the possession and bound to take care of the estate. So where a person purchased a share in some iron works to which a g^ood title was to be made m about a year, and it appeared to be the intention of both parties that the purchaser should previously take possession and (/) Fordvee v. Ford, 4 Bro. C. C. 491 ; 655 ; Ex parte Barrington, 2 Mont. & Ayr. S. C. 6 Ves, 679. 245. {g) Bnrnell v. Brown, 1 J. & W. 16S. (t) Stanton v. Tattersall, 1 S;n. & G. 529. (/i) Ex parte Sidebothaui, 1 Mont. & Ayr. (<) Flint v. VVoodin, 9 Ha. CIS ; Camp- bell V. Fleming, 1 A. & E. 40 468 FRY ON SrECIFIC PERFORMANCE OF CONTRACTS. act as partner, liis doing so was no waiver of his right to a good title. (/) § 849. In Bnrroughs v. Oakley,(m) the original contract was sih>nt us to possession, but possession having been taken by the purchaser, and both parties having for more than a year subsequently continued negotiating as to title, Sir Thomas Plumber concluded that possession was prematurely taken with the consent of both parties, but without an intention of waiving the investigation of title. § 850. (3) Acts of ownership on the part of a purchaser may amount, in the contemplation of the court, to a declaration that he considers himself as the owner of the property, and then they work an acceptance of title and a waiver of all objec- ^-.tions: or secondly, such acts, thouo:h falling short of r*3651 "^ • ■- -" *this, may yet, by changing the property which is sub- ject to the vendor's lien, atfect that security, and therefore furnish a motive to the court to order the payment into court of the purchase money.(7?) § 851. It is obvious that for acts to amount to the waiver of an objection before it is known, they must be very strong and distinct, (o) — such acts, in short, as are equivalent to a decla- ration liy the purchaser that he has taken the estate at all possible risks, and considers himself as the absolute an uncon- ditional owner of it, and so preclude any investigation of title at all. Therefore in a case where the objections were not known, the stubbing up of an osier-bed and tilling up a pond, though held to justify an order for payment of the purchase money into court, and for a receiver, were not held to amount to a waiver of title.(^)) § 852. Leaving the abstract unobjected to for two j'ears, alter- ing the property, letting it, and apologizing for not paying the purchase money, which was of course only payable if the title was accepted, were considered strong acts of waiver.(5) And where the purchaser was in possession twenty years, and after [1.) Stevens v. Giippy, 3 Rnss. 171 ; Mar- (o) Dixon v. Astley. 1 Mer. 133. gravine of Auspach v. Noel, 1 Mad. 310, (p) Osborne v. Ilarvev, 1 Y. & C. C. 0. 116 ; 315. Small v. AUwoofl, You."506. {m) 3 Sw. 1.59. r (7) Margravine of Anspacli v. Noel, 1 Mad. (ii) Cutler V. Sjinions, 2 Mer. 103. 310. EEFERE>XE OF TITLE. 40^ ninkiiip: tVivoloiis o1)j('ction.s and rcfii.siiig any furtlier explana- tion of them, still continued in possession, the right to investi- gate title was held to have been waived. (r) Again, the like was held in u case where a purchaser continued twenty -six years in possession after his recpiisitions of title wei'e sent in, and had paid a c()nsideral)le part of his purchase money and made alterations. (.s) In another case, the master of the rolls expres.sed an opinion that the purchaser's having retained the abstract for five months and made no objections to the title, but simply got *the vendor to verify the abstract with the title deeds, , was a waiver as to title. (<) '^ -^ § 853. The right of investigation nuiy sometimes be waived by the silence of a subsequent agi'cement concerning it. Thus where by an agreememt for the sale of an estate, the purchaser w^is entitled to evidence that the buildings were not on the copyhold part of the property, which except to that extent, the vendor was not to be called on to distinguish from the freehold ; the purchaser asked for evidence of the identity of the parcels in the abstract with the estate sold ; subsequently, by a supple- mental agreement, the purchaser accepted the title, subject to the production of a declaration of the identity of the parcels in the deeds and the lands sold, — which was produced and approved on the purchaser's behalf: and he subsequently objected that the buildings were on the copyhold part of the estate : it was held that this term of the original agreement had been waived l)y the silence on that head of the supplemen- tal one.(n) § 854. On the other hand, the mere acquiescence of both parties in not enforcing the completion of the contract, (?') the continuing a treaty and at the same time insisting on the ol)jec- tion,(?f') and the a})proval of the title by the purchaser's coun- sel, (.o:;) have all been held insufficient to waive the purchaser's riffht to investio^ate the title of the vendor. § 855. Conduct may waive the right of the purchaser of a (r) Hall V. Lavor, 3 Y. & C. Ex. 191. («) Dawson v. rsrincknian, 3 De G. & Sm. {s) Wallis V. Wooilyear, 2 Jur. N. S. 179, 376; S. C 3 M'N. & O. 53. (Wood, v. C.) ((') lUacliloril v. Kiikpatrick, (i Beav -Z.VZ. (t) I'egg V. Wisden, 16 Beav. 239. (»•) Knatclibull v. (;iuflicr. 1 Mad. 153. (.r) Deverell v. Lord Doltou, IS \'us. oOo. 470 FRY ON SPECIFIC PERFORMANCE OF CONTRACTS. lease to inquire into the title of the lessor, which does not waive the riffht as to the title of the lessee. § 856. So where B. contracted with A. to take an assignment of a lease when executed, and inspected the lease and the as- signment of it to A., and subsequently directed A. to cause an r*opr--] assignment to himself to be indorsed totidem *verbis, he was held to be precluded from calling for the lessor's title. (y) A nd again, where a purchaser after transmission to him of the original lease prepared a draft assignment, and made va- rious objections as to repairs and other matters, but did not require the production of the lessor's title, it seems that he wonld have been held to have waived the rights, but the point was not decided.(2) § 857. In a recent case, Lord Cran worth, affirming a decision of Vice Chancellor 8tuart, held that joining in a valuation, ad- vertising the property to be disposed of, and other like acts on the part of the lessee, which implied that nothing remained to be done but the execution of the lease, amounted to a waiver his right to call for the lessor's title.(«) § 858. In analogy with the distinction established by these cases on conditions of sale as to the lessor's title, it is established that acts may amount to a waiver of the right to investigate the title, and yet not compel the purchaser to take it if it come out collaterally that the vendor has no title. Thus in Warren v. Richardson, ((^) the purchaser of a leasehold interest had done acts which the court, at the hearing, held to be a waiver of the right to investigate the title ; but it appearing on the report of the master, to whom it was referred to settle the lease and to state an}'- special circumstances, that the vendor held this together with other leasehold property under one lease, and subject to one proviso for re-entry, so that the vendor, who Avas plaintiff, could not make a good title : the court refused to enforce the completion of the contract on the defendant. § 859. With regard to the proper mode of pleading that the (y) Smith v. Capron, 7 Ha. 185, 189. the right to call for the lessor's title has been (z) Clive V. Beaumont, 1 De G. & Sm. 397. M'aivod. See also Ogilvie v. Foljambe, 3 [a] Simpson v. Sartfl, 4 De (1. M. & G. oai, Mer. f)(5. which see for the form of a declaration that (6) You. 1. REFERENCE OF TITLE. 471 riffht to invcstijr.itc the title has been waived, it has been de- cided that it is not enoiiojh for the party relyinfij on sueh ^^o .m *\vaiver to allege facts from which it is a legal inference ; but he must allege the facts and that there has thereby been such waiver. This was decided by Sir J. L. Knight Bruce, then vice chancellor, in Clive v. Beaumont, (c) on the ground that though, as a general principle, it is not the ofHce of pleading to state inferences of law, yet that where facts arc relied on to rebut a right given by law as a necessary result of the contract, the person whose rights are thus sought to be excluded is entitled to have his attention called to it by a distinct allegation. § 860. The inquiry as to title may be directed by the court, (1) at the hearing, or (2) on motion before the hearing, but after answer, or (3) before the answear. The practice of allowing this inquiry on motion was introduced by Lord Thurlow.((Z) § 861. Where an inquiry as to title alone is directed at the hearing, it will be taken as excluding all other questions than that of title, so that the court will not on further directions enter into any other question set up as a defense by the answer.(f?) § 862. This inquiry may be directed before the hearing, where the defendant having answered, there is no other ques- tion on the record but simply that of title ; or there being such other question, the objection on that score is removed by consent. (/) Where other questions are raised, but the court on looking into the answer sees that they are merely frivolous, and entirely unworthy of argument, it will treat them as no questions at all, and order the inquiry as if they had not been raised. (/7) But unless they are thus *merely frivolous, r^(,opQ-i even though the contention may be such as the court ^ ^ judges unlikely to succeed, the indulgence of an inquiry before the hearing will not be granted.(A) (f) 1 De G. & Sm. 397 ; Gaston v. Franknm, v. Rogers, 1 V. & B. 351 ; Moss v. IMatthewa, 2 De G. & Sm. 561. 3 Ves. 279 ; WrigUt v. llond, U Ves. 39. ((i) 1 Sw. 551, n. ; v. Skelton, 1 Ves. & (a) Withy v. Cottle, T. & It. 7S ; Roehm v. B. 517; Eklridge v. Porter, U Ves. 139. See Wood, 1 J. & W. 419; Boyos v. Liddell. 1 Y. also Briscoe v. Brett, 2 V. & B. 377. & C. C. O. 133; Wood v. Machu, 5 Ha. 158. (t) Le Grand v. Whitehead, 1 lliiss. 309. (Ii) Withy v. Cottle, 1 S. & S. 174; Gordon (/) Blyth V. Elnihirst, 1 V. & B. 1; Taton v. Ball, 1 S. & S. 17S; Portuian v. MiU, 2 Kuss, 570. 472 ^ FRY ox SPECIFIC PERFORMANCE OF CONTRACTS. § 863. Accordingly such rcrcrcnces have l)ecn refused where there was a chiiin for compensation, («) even though the defend- ant suhniitted to complete his agreement, (/t-) where laches were insisted on as a defense, (^) where there was a question as to the production of a lessor's title, (;«) and where there was a question Avhcthcr there was any subsisting contract. (?i) § 8t)4. By questions of title are meant those which can only properly become the subject of adjudication upon the investiga- tion of the title, although they may not arise on the abstract taken by itself; so that where the validity of the conditions of sale being admitted, the question was to the application of them, the question was held to be one of title. (o) § ^'oD. Where the circumstances are such as before stated, to justify this enquiry on motion, the court will make it on such an application, even though the question in dispute may be one which could be conveniently disposed of at the hearing without a reference. (jj) § 866. An enquiry as to title may also be made on motion before answer, wdiere the vendor, being plaintiff, undertakes to do all such acts for the purpose of executing what the court shall think right, as if the answer had been put in,(^/) and it being admitted at the bar that there is no other question than that of title. (r) Where such an admission is not made, the motion will be refuse d.(.s) Nevertheless in one case,(^) the vice chancellor of r-^or-rvi England held that after such *a reference the defendant might by his answer, which was called for by the plain- tiff, make anj' defense he pleased, and was not confined to the question of title. " It does not appear," said the vice chancellor, "on the face of the order of reference, that the defendant did not object to the order being made, or that he said that there was no objection to a specific performance except the objection as to title." It seems therefore that the order should be pre- faced with such a declaration. (0 Paton V. Rogers, 1 V. & B, 351. (p) Curling v. Flight, 5 Ha. 24t, 248. (^^1 Lowe V. Manuel's, 1 Mer. ly. (91 Balmauno v. Luniley, 1 V. i*fc B. C24. (/| Blyth V. Khnhirst, 1 V. & B. 1. (r) I'er Loril Khlou. in I iMer. 372. (>n) Gouipcsru V. , 12 Vos. 17. (5) JlutUiews v. Dana, 3 Mad. 470. (/() Moi-giui V. Shaw, 2 Mer. 13S. [t) Eiucry v. PicKeriug, 13 Siui. uS3. (0) Wood V. Muchu. 5 Ila I08. REFERENCE OF TITLE. 473 § 8G7. No alteration is cH'cctcd in tiiis practice l)y the otli of the general orders the 9th of Ma}', lb;iy.(?<) § 8()8. The order for reference is not now strictly confnied to an inquiry whether a good title had heen made, hut may extend to all that regards the title, hut not to other matters. ('•) Theri'- fore it should include an inquiry as to the time at wliich a good title Avas shown, (w) at least in cases where the question of title is the only one in dispute, for in other cases this inquiry is omit- ted. (a;) The old practice on this point was somewhat varia])le,(//) but the present course is as above stated. As this inquiry, if to be made at all, should be directed at the original reference, the court will not make it subsequently on a second motion. (;i) § 8G9. On the same principle the inquiry may extend to whether it appeared by the abstract that a good title could be made.(a) § 870. And on the like ground, an inquiry was added whcthei* the defendant objected at any time to the want of evidence as to the identity of the premises ; but an inquiry whether the abstract was perfect, and if deficient, in what respects, and whether it was ever perfected, was considered *not so connected ^_ with the title as to be added to the reference.(6) t ' § 871. The inquiry is whether the vendor can make a good title, not whether he could do so at the date of the contract ; and therefore he may make out his title at any time before the report, and if he can do so he will be entitled to a decree, (c) at least where there has been no unreasonable delay, and time is not material. (cZ) § 872. Accordingly, the court often allows time for the com- pletion of the title : so in an old case, the court more than once allowed the vendor time to get an act of parliament ;(e) and in a recent case, where upon the face of the contract it appeared {It) Boyes v. Liddcll, 1 Y. & C. C. C. 133. (4) Bennett v. Uecs, 1 Ke. 405. (r) Jennings v. Ilopton, 1 MaU. 211. U) Keniiet College v. Ciirev, 3 Bro. C. C. (,10) Seton on Decrees, 244. 3!I0 ; Wynn v. Morgan, 7 Ves. 202; Mortlock (.r) Gibbins V. Northeastern Metropolitan v. BiiUer, 10 Ves. 292, 315; A'ancouver v. liliss, District Asvluni. 11 Beav. 1. 11 Ves. 4,')>^. (y) Moss V. Matthews. 3 Ves. 279; Gibson (n) Wynne v. Griffith, 1 Kuss. 283. See (Ic) Jump.son V. I'itclicr. 1 Coll. C. C. 13. nrther as to what is ji perfect abstract, i)er (l) Avanie v. Crown, 14 Sim. 303. Wigram, V. C, iii Morley v. Cook, 2 Ha. 111. 478 FRY ON SrECIFIC rERFORMAXCE OF CONTRACTS. abstract may he either the one or the other ; thus, the verifica- tion of the deeds stated in the abstract is matter of evidence : ■whilst on the other hand, the proof of a fact essential to the title which can only be proved by evidence documentary or oral, — as, for example, the identity of a person or of parcels apparently different on the deeds, — is a matter of title.(?i [*377] *CIIAPTER IV. OF INTEREST, RENTS, LiETERIORATION, AND PAYMENT INTO COURT. § 889. The result in equity of a contract of sale, is that the thing sold thereupon becomes the property of the purchaser, and the purchase money the property of the vendor ; whence it fol- lows that the purchaser is entitled to the rents of the estate from the time fixed for completion, and the vendor is entitled to in- terest on the purchase money from the same time,(rt) In a word, the estate and the purchase money are things mutually exclusive, and neither party can at the same time be entitled to the enjoy- ment of both.j 1] § 890. The most convenient plan of considering the rather complicated questions which arise in respect of the rights of the vendor and purchaser to the interest on the purchase money and the rents of the estate respectively, and also in respect of any deterioration happening to the estate, will be to consider them under the following circumstances : — (1) Where the vendor is in receipt of the rents and profits, and the purchase money re- in) Sherwiii v. Shakspearc, 17 Beav. 267, (a) See Inst. iii. 24, 3. 275. [1] In equity, a vendee under a contract for the sale of lands is considered as a trustee of the purchase money for the vendor, who is regarded as a trustee of the land for the former. The land is, in equity, the property of the vendee, who may dispose of it, or incumber it in like manner with land to which he has the legal title, subject to the rights of the vendor under the con- tract. Wing V. McDowell, Walk. Ch. 175. INTEREST, RENTS, DETERIORATION, ETC. 479 mains unpaid in whole or in part. (2) Where tlie vendor is in the actual enjoyment of the estate, whether the })ureiiai5e ruoney be or be not paid, (o) Where the purchaser is in possession, and the purchase money remains unpaid in whole or in part. § 891. (1) Prima facie., and in tlie absence of stipuhition, *the time fixed for the comijletion of tlie contract is the , time from which the purchaser is entitled to the rents '- ' -' and is liable to the payment of interest. But this is liable to exceptions. § 892. Where the interest is much more in amount than the rents and jDrotits, and the delay in completion is clearly made out to have been occasioned by the vendor, the court, to prevent the vendor from gaining an advantage by his own wrong, gives him no interest, but leaves him in jjossession of the interim rents.(/>) In such cases, the day at which the interchanfre of properties is treated as taking place, is removed from the time fixed for completion to the time at which a good title is first shown. (c) § 893. In a case((Z) where a vendor had retained possession the whole of the estate and of one-third of the purchase money for fifteen years, and the delay was wholly due to his wrono^ful conduct, Sir Thomas Plumer, not feeling himself justified in re- moving the time for the interchange of properties from the time fixed for completion, endeavored to meet the equity of the case by giving the purchaser the whole of the rents and interest on one-third of the rents in each year from the time of their ac- cruing. [2] ^ 894, Again, where the title is made out in the master's of- fice, or now in chambers, the day when the title is made out is the day on Avhich the purchaser is bound to complete. Hence, (i) Esflaile V. Stephenson, 1 S. & S. 122. from the date of completion. See Wilson v. (r) Jones V. Mudil, 4 Kuss. 118; I'aton v. C'hiphani, 1 J. & W. 36; per Sir T. I'lumcr, Rogers. C Mad. 'J.'i6. It seems previously to in IJurlon v. Todd, 1 S\v. ao. have been held that interest necessarily ran (ti) Burton v. Todd, 1 Sw. 255. [2] See Sohier v. Williams, 2 Curtis C. C. 195; Springle v. Shields, 17 Ala. 295. It is to be said that •whenever interest is recoverable at law, the courts of chancery allow it. Crocker v. Clements, 23 Ala. 29G. 480 FRY ON SPECIFIC PERFORMANCE OF CONTRACTS. up to that day the vendor is entitled to the rents, and the pur- chaser to interest on the deposit paid to the vendor ; and from that day the purchaser takes the rents and pays the vendor interest on the unpaid bahuice of the purchase m()ney.(e) *^ 895. And so where a suit was instituted for the r*379] ^ •- -' specific performance of a contract to buy a mill, and the decree was made in February, 1854, but a good title Avas not shown till December of that year, and a question arose as to who was to bear the expenses and outgoings belonging to the mill, and to the repairs and sustentation of the premises and the machinery, Sir John Romilly decided that these must be borne by the vendor up to the time at which a pui-chaser could prudently take possession, which is the time at which a good title is shown, and after that by the purchaser.(/) ^ Sd6. Where, however, the title has not been made out till after suit, but the delay has arisen from the purchaser raising other points which made the suit necessary, then the delay not being the ftiult of the vendor, interest will run from the day fixed for completion. (y) § 897. Further, the general principle may be excluded by express stipulation, as where the conditions of sale reserved the rents to the vendor, which was held to exonerate the purchaser from the payment of interest on the unpaid purchase moucy.{/i) § 898. Though, as we have seen, the purchaser is jjmwayac/e obliged to pay interest on the unpaid purchase money, he is dis- chai'ged from this liability where the purchase money has been appropriated by him and has been unproductive, and notice to this effect has been given by the purchaser to the vendor.(/) "Where nothing appears to occasion the delay,' said Lord Cot- tenham,(/i;) "the rule no doubt is, that if the purchaser, who on , the face of the *contract is under the necessity of paying L -' on a certain day, sets apart his money, and gives notice {t) Pincke v. Curteis, 4 Bro. C. C. 333 ; (i) Powell v. Martyr. 8 Ves. 146 ; Roberts v. Enraght v. Fitzgerald, 2 Dr. & \V. 43. Ma.ssey, 13 Ve3. 561 ; Dyson v. Horiil)y, 4 De ( /') Carrodus v. Sliarpe, 20 IJcav 56. G. & Sm. 481 ; Howland v. Norris. 1 Co.v, 59 ; (?) Monro v. Taylor, 3 M'N. & G. 713. Regent's Canal Company v.Ware,23 Beav. 575. CO Brooke v. Ctiampernowne, 4 01. & Fin. (A) In De Visnie v. De Visme, 1 M'N. & Or. 589, 611. 352. INTEREST, RENTS, DETERIORATION, ETC. 481 that it is ready, interest stops from tiuit time, provided it bo shown that he made no interest of it," And even in contracts by railway companies taking land under their compulsory powers, where the owner makes default in completing the sale, interest "will cease upon an appropriation of the purchase money, with notice that it is unemployed. (^) § 899. Where the purchaser makes any profit on any part of the appropriated purchase money, he is discharged from the pay- ment of interest only in respect of the purchase money on which he has made no interest,. Thus, where a purchaser, on entering into possession, paid the money into his banker's, and gave the vendor notice that he was ready to invest in such manner as the vendor should require ; and during the investigation of the title he kept a balance at his banker's equal to the purchase money, except on four days, when it was a little less : the vice chancellor said it was clear that the purchaser had made some profit with the money, " first, because his balance was in a small degree and for a few days reduced below the amount of the purchase money, but principally because the purchase money supplied the place of that balance which he must otherwise have maintained at his banker's :" he therefore directed an inquiry as to the average balance which the purchaser had maintained at his banker's for the three years preceding the purchase, and the average balance during the period of the investigation of the title, and declared that in respect of the difference between those balances he was not chargeable with interest on his purchase money. (;;i) § 900. Where conditions of sale stipulate for the payment of interest by the purchaser from the day appointed for completion, from whatever cause the dela}^ may arise, *it was formerly r#oQi i held that the fact that the delay arose on the part of the vendor did not excuse the purchaser from the terms of the con- ditions, and that accordingly he was bound to pay interest :(/i) and in a case(o) where conditions of sale, under the court, stipulated for payment of the purchase money on a certain day, (0 Rea:ent"» Canal Company v. Ware, 23 and see Lord St. I/eonards' observations oa Beav. 575. this point, Vend. .529 ct seii. (m) Winter v. Blades, 2 S. & S. 393. (o) Greenwood v ChurcliiU, 8 Beav. 413. («) Ksdailu v. Stephenson, 1 S. & 8. 122, 482 FRY ON SPECIFIC rERFORMANCE OF CONTRACTS. and if from any cause whatever it should not then be paid, that interest should be paid at £5 per cent ; and there was great difficulty and delay on the vendor's part, and the purchaser had entered into possession, Lord Langdale ordered the pay- ment of interest according to the contract, but without preju- dice to any application for compensation. § 901. On the other hand, in a case(^) where there was a stipulation that if, by reason of any unforeseen or unavoidable obstacles, the purchase should not be completed by the day fixed, the purchaser should from that day pay interest at X5 per cent on his purchase money and to be entitled to the rents, and the vendor did not show a good title till long after the specified day, Sir J. Leach held that the general rule applied, and that the stipulation would not make interest run before the comple- tion of the title, but only affect its rate. And in the case of De Visme v. De Visme,(^) Avhere the effect of such conditions was very elaborately considered by Lord Cottenham, his lord- ship held that a clause for payment of interest from the day appointed for completion in case of delay, from whatever cause the delay might have arisen, did not apply to a case of the vendor's own default, but that in that case interest ran only from the time when a good title was shown. "There are two ways," said his lordship, (?') "in which this case may be met in argument and upon principle. It may either *be considered that that L J which has happened is not within the contract, — that is, that the party never did mean to contract that he would pay interest, although he might be prevented from having the benefit of his purchase by the default of the vendor, and in this view it is the ordinary case of doing justice between the parties, an event having arisen which is not expressly provided for by the con- tract : or it may be considered that interest must be paid upon the purchase money, according to the terms of the contract, although the vendor has not performed his part of the contract, and the purchaser has been thereby exposed to damage (the damage being the difference between the interest and the annual (p) Monk V. Huskisson, 4 Russ. 121, n. (r) P. 348. (q) 1 M'N. & G. 336. INTEREST, RENTS, DETERIORATION, ETC. 483 value of the property) : and llieii, allhoiigh this is a departure from the terms of the previous contract, which the court would regard as a bar to decreeing a specific performance, yet that the court will in this case regard it, by giving to the purchaser com- IKMis'.ition for the loss he has sustained by the non-performance of the whole contract l)y the vendor." " My opinion," said his lord.«ihip in conclusion, (.y) " is that the vendors l)eing in default, the delay having been occasioned by their not performing their part of the contract, are not to exact from the purchaser the payment of interest until the time they showed a good title on their abstract : the effect of that is to postpone the day agreed on for the completion of the contract until the time when the vendors put themselves right, and showed their title to be good on the absti'act. The result therefore is, that until that time there would be no demand to be made by the vendors for the payment, and therefore the interest which was to stand in the place of that payment had not commenced to run : it did run when they showed a good title, and not before." § 902. The cases at law Avhich have decided that the excep- r*^«^I ^'"" ^" ^ charter party as to pirates will not be held *to '- -* exempt the owners from liability, where the ship has fall- en into the hands of pirates by the master's negligence, (/) and that a stipulation in a bill of lading exempting the carrier from liability in respect of leakage and breakage, will yet not com- prise leakage and breakage caused by his negligence or that of hiy servants, (?<) seem to furnish close analogies with the decision of De Visme v. De Visme. It is in fact an instance of the general principle, that no man shall take advantage of his own wrong. § 903. To bring a case within the principle thus established, it is not necessary that the default on the part of the vendor should be willful : if it arise from nes^lio^ence, it will amount to the same thing.(i') § 904. The rule, however, is one which must be acted upon "with some caution. It cannot be laid down that in all cases {s) p. 353. (») Phillips v. Clark. 26 L. J. C. P. 168. (0 Abbott on Shipping:. 9th edit. 317 ; De (i) Robertson v. Skelton, 1'.' Beav. SK',; Sher- Rotlischild V. Uoyal Mail Steam Packet Com- win v. shakspearc, 17 Beav. 267; S. C. 5 l>e pauy, 7 Kxch. 736. G. M. &(j.517. 484 FRY ON SPECIFIC PERFORMANCE OF CONTRACTS. where a sufficient abstract is not delivered in time, the vendor is to lose the interest which he has stipulated for :{io) and it is clear that delay arising from mere accident, or from something which the vendor could not have guarded against, or occasioned by the state of the title, falls within the terms of the condition, and does not deprive the vendor of his right to interest :(a3) and so in a case where this condition was inserted, and delay arose from circumstances under which the approbation of the court (which was necessary to the sale) Avas to be obtained, and neither party was to blame, the vendors were held to be entitled to interest by force of this condition, though it L -' *greatly exceeded the amount of the rents and profits of the laud.(?/) § 905. The condition of course applies Avhere the delay arises from an untenable objection taken on the part of the purchaser :(0) it operates also where the delay arises from the act of God, as the death of the vendor.(«) § 906. The court will construe a stipulation fixing the time from which interest is to run in connection with another fixing the time for the delivery of the abstract : so that where there is a stipulation that the abstract shall be delivered by a certain day, and interest begin to run from another and subsequent day, and a perfect abstract is in fact not delivered till after the time fixed for that purpose, interest will not run from the day specified in that behalf, but from a day so long after the actual delivery of a perfect abstract, as the day stipulated for the running of interest was after the day stipulated for the delivery of the abstract. (6) § 907. The amount on which the purchaser pays interest is the purchase money less the deposit: and this applies even where the suit may have been made necessary by the pur- chaser's conduct.(c) {w) Rowley V. Aflams, 12 Beav. 476. See (y) Ex parte the Dean of Durham, 2 Jur. also Cowpe v. BakewcU, 13 Beav. ill; Dysoa N. S. ai.i, (Stuart, V. C.) V. Hornby, 4 De G. & Sm. 431. {z) Stony v. Walsh, 18 Beav. 559 (x) Sherwiu v. Sliakspeare, 17 Beav. 267; S. (a) Bannennan v. Clarke. :J Drew, 632. C. 5 De G. M. & G. 517; Blruh v. Podmore, (6) .Sherwiii v. Shakspeare, 5 De G. M. & G. Su?. Vend. 521; Oxeuden v. Lord Falmouth, 517, particularly 5;!i). id. 523. (c) Bridges v. Robiuson, 3 Mer. 094. INTEREST, RENTS, DETERIORATION, ETC. 485 § 908. The vendor is not, it seems, liii1)le to pay interest ou the deposit, if the contract proceed. (rZ) § 909. The rate of interest usually allowed is £4 per cent.(e) But this, of course, may be varied by contract. § 910. In one casc(/) £5 per cent was given where the cir- cumstances did not justify the delay in paying the money, the Lord Chief Baron observing, that he had always been *of r^oori opinion that a party withholding monc}' from a person •- -■ entitled to it ought to pay to the person thus injured the interest which he might have made of it, if it had been paid before. "(y) But this does not appear to be the rule of the court, (//) § 911. The fact that a purchaser has been making profit by his money whilst it is at his risk, and he is liable to interest, is no ground for increasing the rate of interest payable to the vendor,(e') § 912. The vendor in receipt of the rents is generally charged only with the rents he has received, but he may, under certain circumstances, be charcred wnth those which without his willful fault he might have received. (/r) In a case(/) before Sir Thomas Plumer the vendor was so charged, w^here the circumstances which justified this charge appear to have been the facts that the rents had been allowed to run in arrear, and that it was through the vendor's fault that the purchaser was not able safely to take possession. In a recent case,(«i) where the vendor was similarly charged by the master of the rolls, his judgment was reversed, on appeal, by the lords justices, who decided that, in the absence of special circumstances, the vendor will not bo charged with the rents which he might have received without willful default, and that he will not be subjected to any inquiry unless there be evidence that he has in some way acted other- wise than a prudent owner w^ould have done. The vendor in possession is not therefore, as has sometimes been said, in the (rf) Sug'. Vond. 524. (i) Acland v. G.-iisford, 2 Mad. 28. (e) Calcralt v. Roebuck, 1 Ves. Jun. 221; (/) AVilson v. Clapliani, 2 J. & W. 36. Seton. Deer. 249. (j«) Shenvin v. ishakspearc, 17 IJcav. 2(>7 ; (/) Biinioll V. Brown. 1 J. & AV. 168. S. C. 5 l)e G. M. & G. 517. Sec also Ilowell is) 1'. 175. V. Howell, 2 My. & Cr. 47S, aud eoiiii)are Sug. (/I) Slier. Vend. 528. • Vend. 519. (() Acliind V. Gaislord, 2 Mad. 28. 486 FRY ox SrECIFIC PERFORJIANCE OF CONTRACTS. position of a bailift'at common law to the purchaser; for such a bailiifis answerable not only for his actual receipts, but for what he might have made of the lands without his willful default.(??) I*^«ri *^ ^^^' ^^' ii^tcr the contract, and whilst the land is in the possession of the vendor, any deterioration takes place by his conduct or that of his tenants, he will be accounta- ble for it to the purchaser :(o) and where a purchaser had paid his money into court under an order, and he was considcied entitled to compensation for deterioration, he was allowed the amount out of his purchase money, together with interest atX4 per cent from the time when he paid it in, and the costs of the trial of the issue directed to ascertain the amount of damage. (p) § 914. On the other hand, the purchaser will have to bear the loss from deterioration, First, where it occurs after the time at "which he ought to have taken possession. (12-) § 915. Secondly, where it occurs during the period in which the vendor is in possession, but is the result of accident, without the fault of the vendor: so that where during this period the vendor was, in consequence of such an accident, compelled to ex- •pend money on or in respect of the property, as in shoring it up or removing rubbish which had fallen on a neighour's property the vendor was held entitled to have this repaid by the purchaser: but the court refused to make the purchaser pay the expenses of a reference to the master in relation to the repairs, though that had been proper for the protection of the trustees of the estate.(r) § 916. Thirdly, still more clearly where the deterioration dur- ing this period is due to the purchaser, though out of possession, must the loss fall on him. Thus, where a purchaser agreed with a tenant of the estate that he should give up possession if the purchaser had a conveyance by a certain time, and the tenant misconstruing the agreement gave up possession though the pur- r*387] ^^^^^'^ had not the conveyance ; *the purchaser was held to be the innocent cause of the mischief, and so responsi- ble for the deterioration which resulted. (s) (n) Co. Litt. 172, a. ; Wheeler v. Home, {7) Binks v. Lord Rokoby, 2 Sw. 222 : WiUes. 208. Miiicliin v. Nana, 4 Beav. 3:J2. («) Foster v. Deacon, 3 Mad. 394. (r) Robertson v. Skoltou, 12 Beav. 360. (P) Ferguson v. Tadnian, 1 Sim. 530. (s) Hartford v. Furrier, 1 Mad. 532. INTEREST, RENTS, DETERIORATION, ETC. 487 § 917. (2) The cases which arise where the vendor is him- self ill actual possession correspond with those where he is in receipt of the rents and profits, except that, instead of having to pay over the rents received from others, he will have to pay to Ihe purchaser an occupation rent to be set upon the estate, himself receiving interest in return. (^) [o] § 918. No such occupation rent, however, will he allowed where the purchaser ought under the agreement to have taken jjossessioii, and the vendor has continued in possession only by reason of the purchaser's wrong doing.(i<) ^ 919. (3) The rule that the purchaser in possession shall pay interest on the unpaid part of the purchase money will be ap- plied even in cases where the delay arises from the neglect of the vendor.(?.') "The act of taking possession," said Sir William Grant, (v6*) "is an implied agreement to pay interest : for so ab- surd an agreement as that a purchaser is to receive the rents and profits to which he has no legal title, and the vendor is not to have interest, as he has no legal title to the money, can never be implied." And so where a purchase was to be completed by a given day, when the purchaser was to have possession, and it was provided that if from any cause whatever the purchase money should not be then paid, the purchaser should pay interest, and a delay of six months was occasioned, but innocently, by the vendor in not delivering proper abstracts, he was put to his election to pay interest or give up the rents, though notice (0 Drer v. Hargrave, 10 Vos. 505. («) Fludyer v. Cocker, 12 Ves. 25. («) Dakiii V. Cope, 2 lUisa. 170, 181. {w) S. (J. pp. 27, 28. [3] Thomas v. Thomas, 1 Bibb, 219, is not an inapplicable case. B., thercj agreed to surrender fifty acres of land to J/., upon the conveyance from ^7. to H. of two hundred and fifty acres, j^. conveyed the two hundred and fifty acres, but B. refused to give up the fifty acres, jf. brought ejectment — li. his bill for an injunction. Held, that B. had no longer any claim to the fifty acres ; and that an account of the rents and profits from the time of the com- mencement of the ejectment should bo taken, and set off against the value of the improvements made by B ; it appearing that by agreement, all improve- ments were to bo paid for. See Dike v. Greene, 4 R. I. 285. 488 FI:Y on specific rERFORMANCE OF CONTRACTS. had been given by the purchaser that the money ^vus lying idlc.(.i-) r^oooi *^ 920. And ^vhcrcn purchaser under a decree accepted |*3oo ^ , , ^ f 1 • i- 4- 1 ^ ■" possession, and on a report ot an ol)jection returned pos- session, he was ordered to pay interest from the time at which he took possession, or at which a title was shown under which he might safely have done so, and even for the time during which he returned the possession.(?/) (3-) Cowpe V. Bakewell. 13Beav. 421. See also Attorney General v. Cliristcluirch, (y) Biuks .V. Lord Uokeby, 2 Sw. 2'22. 13 Sim. 2U. [4] Purchasers in possession will be holden to pay interest, but will not be held liable for mesne profits. Portland v. Miller, 3 Hawks, 628. McKay v. Melvin, 1 Ired. Ch. 73. Kutledge v. Smith, 1 McCord's Ch. 3&9. Liddell v. Rucker, 13 La. An. 569. Bryant v. Booth, 30 Alabama, 311. Stevenson V. Maxwell, 2 Sandford's Ch. 273. 2 Conistock, 408. Selden v. James, 6 Band. 465. Sebree v. Harper, 4 Dana, 66. Oliver v. Hallam, 1 Gratt, Ya. 298. See Irick v. Fulton, 3 Gratt, 193 ; AValker v. Ugden, 1 Dana, 247. The fact that delay is caused by the neglect of the vendor is likewise held here not to alter the case. Brockenburgh v. Blyth, 3 Leigh, 619. And interest will be charged upon a purchaser, although the vendor has bound himself to make a good title before calling for the purchase money. Oliver v. Hallam, 1 Gratt, Va. 298. But a tender of the money will exonerate the vendee from the payment of interest; and on a bill for a specific performance, he will be obliged to accept without interest. January v. Maitin, 1 Bibb, 586. And, again, where the purchaser of land was prevented from improving it by reason of a suit against the vendor to recover the land, the court refused to charge the purchaser with interest upon the purchase money pending the suit at law, though it was agreed between the vendor and purchaser that the improve- ments should be at the risk of the purchaser, in case the title should be ques- tioned. Wightman v. Reside, 2 Dessau. 578. But, in cases of this kind, where there has been no injury done to the vendee in the hindrance of im- provements, and the adverse title is ultimately defeated, the vendee must pay interest. Nor is it sufficient, to excuse the payment of interest in such a case, that the vendee has been willing and ready to pay the principal during the time of litigation, unless it appear that the money lay uselessly by him, and unproductive, and that he gave notice to the vendor that it was so unproduc- tive. Selden v. James, 6 Rand. 465. Breckenridge v. Hoke, 4 Bibb, 272. See Rutledge v. Smith, 1 McCord's Ch. 399. In regard to delay occasioned by the vendor, a distinction has been taken between sales of productive and unproductive property. Where the land is vacant, and consequently yields no rents or profits, it has been said that a purchaser, although in possession shall not pay interest. Stevenson v. Maxwell, 2 Sandf. Ch. 273. INTEREST, RENTS, DETERIORATION, ETC. 489 ^ 921. So strongly do courts of equity hold to this princi[)lo, that a purchaser in possession shall pay interest on the un[)aid purchase money, that it will look at any agreement which ap- pears to prevent the application of this rule by the light of this general principle of justice, and, it seems, refuse execution of it where it grossly violates this principle, for "a court of equity interposes only according to conscience."(2) So that where a contract stipulated that the interest on the remainder of the purchase money should not commence till Lady-day next, in case the title should be perfected and the assurances executed at that time ; and if not, then to commence on the execution of such assurances, and the purchaser was let into possession under a stipulation in the contract to that effect, but the assurances were not executed for forty years, the house of lords held that the purchaser's exemption from interest, though permissible if the contract had been speedily executed, would not, under such circumstances and Avith such length of time, be enforced by a court of equity. (a) § 922. In sales of reversionary estates the purchaser cannot, of course, be let into actual possession or receipt of the profits of the estate purchased. It becomes, therefore, necessary to inquire from what period he is to be treated as if he were in possession, so as to render him liable to the payment of interest on his unpaid purchase money : for the wearing away of the lives, or of the time *after which the reversion will vest p^oooi in possession, is justly considered equivalent to posses- L J sion, and as creating in the purchaser a liability to pay interest.((^) § 923. The purchaser of such an estate pays interest from the time at which he became by law entitled to receive the rents, (c) which is prima facie the time fixed for completion of the con- tract, and not the time at which a good title was shown, (c/) ex- cept, it seems, where the contract specifies no time for comple- tion, in which case it runs from the time at which a good title was (:) Per Lord St. Leonards in Birch v. J03', (r) Chanipemowne v. Brooke, 3 01. & Fin. 3 Ho. Lords. 59S. 4, (overruling Blount v. Blount. :5 Atky. 6o« ) (a) Birch V. Joy, 3 Ho. Lords. 565. (e"G. & Sni. 4-J9 ; Davy v. Barber. 2 Davy V. Barber, 2 Atky. 489. Atky. 489. See Oweu v. Davies, 3 Atky. 0^7. FRY— 32 490 FRY ox SrECIFIC rERFORMANCE OF CONTRACTS. first shown. (f) This may of course be modified by contract : so where the contract stipulated that the rents should belong to the purchaser only from the time the contract was com- pleted, the vendor was held not entitled to claim interest on the unpaid part of the purchase money.(/) § 924. In cases of sales of reversions under the court, interest will, it seems, run from the time the report was con- firmed absolute. (y) But where a time is specified at which the money ought to be paid into court, that, and not the con- firmation of the sale will, it appears, be the time from which interest will run ; as in the case of an estate in possession, that would be the time at which a purchaser would be entitled to enter into the receipt of the rents. So where the 25th of December, 1849, was appointed for the payment of the money into court, but the abstract was delivered in September, *- " ^ 1851, and a good *title was not made out till March, 1852, interest at =£4 per cent -svas directed to be paid from the 25th December, 1849. (A) § 925. Possession of the estate and of the purchase money being, as we have seen, mutually exclusive, the vendor is entitled to call on a purchaser in possession to pay the pur- chase money into court. § 926. Where the purchaser is in possession, and the vendor has disclosed such a title as the purchaser ought to accept, his right thus to proceed is clear. And the court will pursue this course Avhere the purchaser in possession admits a good title, though he may claim the right to object, it not having been approved by counsel. (2) § 927. On the other hand it is a general rule that where it is through the laches of the vendor that the title remains incomplete, the court will refuse an application for the pay- ment of the purchase money into court. (^•) § 928. But where the want of a good title being shown is not (e) Enraffht v. Fitzgerald, 2 Dr. & W. 43, (?) Ex parte Manning, 2 P. Wms. 410. See revei-sina: Lord Phinketfs decision, S C. 2 also Child v. Lord Abingdon, 1 Ves. Jua. 94; Ir. Eq. R. 87, that interest should run from Trefusis v. Lord Clinton, 2 Sim. 359. the date of the report of good title. [h) Wallis v. Sarel, 5 De G. & Sm. 429. (/) Brooke v. Champeruovrne, 4 CI. & Fin. (i) Crutchley v. Jerningham, 2 Mer. 502. 589, and see Weddall v. Nixon, 17 Beav. ICO. (i) Fox v. Birch, 1 Mer. 105. INTEREST, RENTS, DETERIORATION, ETC. 491 from the default of the vendor, the court will, it seems, put the purchaser to his election, cither to pay in his purchase rroney or to give up possession. Thus, in a case(/) l)efore Lord Eldon, where the purchaser Avas to let into possession, both parties act- iuij in the confidence that the title would soon he made out, and that confidence was "not," to use his lordship's words, "made good, and that was a surprise upon both," his lordship expressed the opinion that the pui'chaser should be put to his election, either to give up possession or to pay the money into court ; but on a subsequent day the lord chancellor said only that the purchaser ought, at least, to pay interest on his purchase money; and the point was ultimately settled by agreement between the parties. And nutwithstanding *some doubts cast upon r#oQ,, the wisdom of this judgment in a subsequent case(/?i) l)y Sir Thomas Plumer, who considered it to be " the imprudence of the vendor in letting the vendee into possession l)efore the questions upon the title were disposed of :"(?i) the court will generally put a purchaser in possession where the title has not been made out to his election, either to pay in the purchase money or to give up possession, (o) and the court did so in one case where it was part of the contract that £5000, part of the purchase money, X6300. should be secured by a mortgage of the estate.(/;) In some cases, (5') two months, and in another(>-) one month, have been allowed the purchaser to elect Avhether of the alternatives to accept. § 929. Where the agreement allows possession to be taken before the completion of the title, the court will not generally order the payment of the purchase money into court on the score of possession. (.s) § 930. And if the purchaser should happen to be in possession under some other title than the agreement, this is a circum- stance against calling for the payment of the purchase money {I) Gibson v. Clarke, 1 V & B. 500. {p) Younge v. Duncombe, You. 275. (w) Clarke v. Elliott, 1 Mad. (iOG. (7) Younge v. Duncombe, Tiiulal v. Cob- («) P. 607. ham, nbi sup. (o) Clarke v. Wilson, 15 Ves. 317 : Smith (r) Wickham v. Everert, nbi sup. V. Llovcl, 1 Mad S3 ; Wickham v. Evered, (s) Morgan v. Shaw, i Mer. 138 ; Gibson 4 Mad". 53 ; Tindal v. Cobhain. 2 My. & K. v. Clarke. 1 V. & B. 500; GeU v. Watson, 385. See also King v. King, 1 My. & K. 3 Mad. 225. 442. 492 FllY ON SrECIFIC TERFORMANCE OF CONTRACTS. into court ; as where the purchaser was in possession not under the ao-recment for sale, but as tenant to the vendor at the time of the purchase, (/;) or where the purchaser was a tenant in common with tlie vendor, and had with his consent been in receipt of the rents of the whole.(w) § 931, Where the mere taking possession of the property *does not furnish any ground for ordering the payment L " "J of the money into court, this will yet be done where the purchaser in possession commits acts of ownership, and this, even if the title may not have been made out,(y) or the purchaser may be in possession according to the terms of his agreement. (?f') For the ground of this proceeding is that by such acts the purchaser is altering the property which consti- tutes the security of the vendor for his purchase money, and diminishing the value of the vendor's lien on the estate :(x) hence, acts of ownership which are clearly an improvement to the estate, will not support such an application to the court :(y) and hence, also, acts Avhich may not show that the occupier considers himself the owner, and so will not justify a decree of specific performance against him without further investiga- tion of the title, may yet be a ground for an order to pay the money into court, and the appointment of receiver ; so that in one case, stubbing up an osier-bed, leveling the land and filling up a pond, were held to justify an order for payment and the appointment of a receiver, but a refei'ence of title was at the same time made.(2;) In another case,(«) Lord Eldon took into consideration also the unreasonable delay which had been caused by the purchaser in possession as well as his acts of ownership. § 932. In one case where the purchaser had been let into pos- session under the agreement, and objected to the title, he was allowed to remain in possession on payment of an occupation (() Bonner v. Johnston, 1 Mer. 366. (ic) Dixon v. Astley, 19 Ves. 564; S. C. 1 Mcr. (u) Fieebofly v. Pany, Coop. 91 ; cf. Walters 133, 378, n. V. Upton, Coop. 92. n., which appears to de- {x) Cutler v. .'pinions, 2 Mer. 106, where a pond on the circumstances stated by Sir list of acts upon which such orders had been Samuel Romilly arguendo, in the case to made is given, which it is a note. (y) Bramley v. Teal. 3 Mad. 219. (V) Bonner v. Johnston, 1 Mer. 366. [z) Osborne v. Harvey, 1 Y. & C. C. C. 116. (o) Burroughs v. Oakley, 1 Mer. 52, 376, n. DEPOSIT. 493 rent : but the case seems to be one of arrangement, not of strict right.(i^) § 933. The order for payment into court may be made *on motion, (c) and if circumstances justify it, before an- swer,((i) even though the defendant may have filed no L J affidavit so as to bi-ing the merits before the court, (e) and though the acts of ownership relied on are not stated in the bill.(/) The facts necessary to support such an application may be supplied by affidavit, whether stated in the bill, and not admitted by the answer,(<7) or not stated in the bill.(/!) § 934. Where an order for payment into court has been op- posed, and the money is in the hands of a stakeholder who afterwards absconds, the loss falls on the party who opposed the order.(z) *C H AFTER V. [*394] OF THE DEPOSIT. § 935. It is usual in sales of real estate for the purchaser to pay to the vendor, at the time of the contract, a portion of the purchase money by way of deposit. Where a suit for specific performance fails, the question has often arisen as to the power of the court to deal with this deposit. The subject must be considered, first, where the vendor is the plaintiff, and secondly, where the purchaser is the plaintifl'.[l] ib) Smith V. Jackson, 1 Mad. 83, 618. (e) Blackburn v. Stace, 6 Mad. 69. (f) Tindal v. Cobham. 2 My. & K 385; (/■) Cutler v. Simons, 2 Mer. 103. Wickham v. Evered, 4 Mad. 53. See also {g) Boothby v. Walker, 1 Mad. 197. Buck V. Lodge, 18 Ves. 450. (/i) Crutchley v. Jerningham, 2 Meriv. 503. (rf) Bonner V. Johnston, 1 Mer. 366 ; Dixon (/) Fenton v. Browne, 14 Ves. 144; Biir- V. Aslley, 1 Mer. 133. roughs v. Oakley, 1 Mer. 52. [1] It is obvious that a covenant to convey, in many instances, carries with it an obligation to refund. Pratt v. Law, 9 Cranch, 450. Pratt v. Campbell, 9 Cranch, 456. See Fox v. Longly, 1 A. K. Marsh. 388. Campbell v. Bealor, 3 Bibb, 300. 494 FRY ON SPECIFIC FERFOIIMANCE OF CONTRACTS. § 93G. (1) Where the vendor is the plaintiff, and fails in his suit for specilic performance, the court may dismiss the bill, and order the plaintiff to return the deposit, («) Avith interest at X4 per C('nt.(''y) And Avhere a bill souirht the renewal of certain leaseholds which the court refused to grant, Lord St. Leonards, acting in analogy witli this principle, acceded to the request of the principal defendants, that they might be allowed to put in suit the recognizance which had been entered into by the plain- tiffs and a defendant in the same interest for the security of the mesne rates on the leaseholds in question. (c) § 037. But the proceeding of the court in this respect is discretionary, and depends on circumstances, for the court, P^oqri *hy dismissing the bill, sometimes means to leave the parties to their legal remedies, in which case it will not order the return of the deposit.((;Z) [2] § 938. (2) With regard to the power of the court to give the purchaser relief in respect of his deposit where he is the plain- tiff, and specific performance is not enforced, considerable vari- ation has taken place. In Denton v. Stewart, (e) Lord Kenyon decreed the defendants to return the deposit and reimburse the plaintiff his costs, and this was countenanced, though with ex- pressions of doubt on the principle, by Sir William Grant in Greenaway v. Adams.(/) In both these cases the plaintiff had originally a binding contract, which was only defeated by a sub- sequent act of the defendant, namely, his alienation for a valu- able consideration of the property iu question. The doubts (a) Bryant v. Busk. 4 Russ. 5 ; Hicks v. {d) Sotithcomb v. Bishop of Exeter, 6 Ha. Pliillips, I'rec. in Ch. 57S. 225. (6) Lord Ausou v. Hodges. 5 Sim. 227 ; (e) 1 Cox, 258; S. C. 17 Ves. 276, n. Webb V. Kirby, 7 De G. M. & G. 376. (/ ) 13 Ves. 3'J5. (c) Butler v. Lord Portarlington, 1 Dr. & W. 20, 65. [2] A vendee of land, in possession, paid part of the purchase money under the contract, but on being sued for the residue by the vendor, set up in an- swer the statute of frauds, and defeated the action. Held that this was an abandonment of the contract, which precluded him from a decree of specific performance and entitled him to a restitution of his purchase money. Payne V. Graves, 5 Leigh, 5G1. DEPOSIT. 495 which Sir William Grant expressed in the case already cited probably increased in his mind, and these, with the general feel- ing and practice of the profession, induced that judge in a sub- sequent case to refuse to follow out the principle. (//) These preceding cases were fully considered by Lord Eldon in Todd V. Gee, (A) where he held that, except in very special cases, a bill cannot be filed asking the performance of a contract, or in the alternative, if it cannot be performed, an issue or an inquiry with a view to damages. The incapacity of the court to give relief in the way of damages was the principle upon which Lord Eldon rested his decision. This decision has been followed in many subsequent cases. (e) § 939. A recent decision, (7i;) however, of Vice Chancellor Kin- dersley, *appears to lead to a conclusion practically p^„f.„-, difl'erent from this current of authorities. There the L J vice chancellor, grounding himself mainly upon a dictum of Sir Thomas Clarke, (z') which has received the sanction of Lords Eldon(«?) and St. Leonards,(;?) decided that, in cases w^here the vendor is the beneficial owner, and the sale goes off from w\ant of title or any other circumstance not connected with the actual misconduct of either party, an intended purchaser is entitled to a lien for his deposit on the interest of the vendor in the prop- erty sold, and, as a consequence, that a bill may be filed for the enforcement of this lien, or that it may form an alternative prayer in a bill for specific performance. The principle upon which this case proceeds is the enforcement of a lien which is equitable, and not merely of the claim to the repayment of money, which is a legal right. (?) Gwillim V. Stone, 14 Ves. 128. See also (k) Wythes v. Lee, 3 Drew, 396, compro- Blore V. Sutton, 3 Mer. 237, 248. miser! on appeal, 25 L. J. Ch. 389; cf. Blore (h) 17 Ves. 273. v. Sutton, 3 Mer. 237. {() Kendall v. Beckett, 2 Russ. & M. 88; (/) In Burgess v. Wheate, 1 Ed. 211. Jenkins V. Parkinson, 2 Mj-. As K. 5; Van v. [m) In Mackreth v. Symmonds, 15 Ves. Corpe. 3 My. & K. 269 ; Sainsbury v. Jones, 2 353. Beav. 462; S. C. 5 My. & Cr. 1 ; Williams v. (n) Vend. 552, Edwards. 2 Sim. 78. 496 FRY ON SPECIFIC PERFORMANCE OF CONTRACTS. PART VI. OF SOME CONTRACTS IN PARTICULAR. [*397] *CHAPTER I. OF CONTRACTS RELATING TO CONTINGENT INTERESTS AND EXPECTANCIES. § 940. At law it has been laid down that the possibility of succession is not an object of disposition, and that if the heir were to dispose of the succession during the life of the ancestor, such disposition would be void, though the inheritance should afterwards have devolved on him :(cr) however, in a recent case before the queen's bench, the court supported as valid an agree- ment to sell an estate if it should be devised to the vendor by a person then living.(6) In equity, contracts relating to ex- pectancies have been long upheld, (c) and that although they may in some sort seem to have defeated the intentions of testa- tors, or been in fraud of parental authority. § 941. One of the earliest cases on this subject is Wiseman V. Roper, (rf) where a covenant to settle an estate to which the covenantor had only an expectancy as heir, was after the descent of the lands specifically enforced on him. *§ 942. In Beckley v. Newland,(e) the plaintiff and L J defendant had married two sisters, who were the pre- sumptive heiresses of Mr. Turgis, a very rich man, who had made and revoked several wills, and ultimately made one leav- ing a great estate to the defendant, and only a small one to the plaintiff. Previously to the execution of the will, the plaintiff (a) Per Lord Kenyon in Jones v. Roe. 3 (c) Cf. Alexander v. Duke of Wellington, 2 T. K. 93. The Roman law likewise proliib- R. & My. 35. ited such contracts. Pothier, Tr. des Oblig. (d) 1 Rep. in Ch. 154. part i. ch. 1, sect. 4, § 2. le) 2 P. W'nis. 182. (6) Cook V. Field, 15 Q. B. 460. CONTRACTS AS TO EXPECTANCIES. 497 aiul defendant had entered into an agreement for the equal division between them of what should be left to each of them ; and this agreement was upheld and specifically enforced by Lord Macclesfield, who said that the agreement was "not disappointing the intent of the testator, for he did not design to put it out of either of the devisees' power to dispose of the estate after it should come to him ; but, on the contrary, when the testator gave it to either of them, he by implication gave that person a power to dispose of the said estate Avhen it should come to him." The same principle was pursued by his lordship in another like case,(/) and was followed by Lord Hardwicke in upholding the validity of the conveyance of a contingency or possibility on the death of a sister unmarried. (y) § 943. In Harwood v. Tooke,{h) the plaintifl'and the defend- ant, the celebrated John Home Tooke, had made a parol agree- ment to divide what should come to them from a testator : in satisfaction of this the plaiutifi" had given to the defendant, Tooke, a note for X4000, which he had indorsed over to the other defendant. Sir Francis Burdett, for valuable consideration. All that Lord Eldon ultimately decided in the case may have been that the plaintiff had no equit}' to follow the note into the hands of this purchaser for value ; and it appears from one of the reports that he expressed doubts whether the transaction between the plaintiff' and the defendant, Tooke, was not a fraud on the testator, and *vvhether the court would at any r^qqq-i rate assist in specifically performing such an agreement. *- -' But the case has usually been treated as an authority for the validity of contracts relating to expectancies.(z) § 944. In another case,(^) the agreement seemed, at first sight, in fraud of the parental authority, but was upheld on a like ground to that taken by Lord Macclesfield. An agreement had been entered into by two sons to divide equally between them whatever they might receive from their father in his lifetime or ( f) Hobson V. Trevor, 2 P. Wins. 191. AVethered, 2 Sim. 191 ; Hyde v. White, 5 Sim. (s) Wright V. Wright. 1 Ves. Sen. 409. 524. and per Lord Chancellor Brougham in (/i) 2 Sim. 192, from Mr. Maddock's M. S. n. ; Lvde v. Mvnn, 1 Mv. & K. 693. 1 My. & K. GSo. V) Wethei-ed v. Wethered, 2 Sim. 1S3 (i) See per V. C. of England in Wethered v. 498 FRY ON SPECIFIC PERFORMANCE OF CONTRACTS. after his tlccoasc by will or otherwise. In was very strongly ar*riie(l that this was a scheme on the part of the sons to protect tiicniselvcs from the consequences of misconduct, and to bid de- fiance to parental authority. But the vice chancellor held, that as the testator had the power of giving an estate to his sons, so that they should have only the personal enjoyment without power of alienation, and not choosing so to give it, but giving it absolutely, he had allowed it to become liable to all their ante- cedent contracts, and therefore to the agreement in question, of which specific performance was accordingly granted. (?) § 945. Similar in principle is the case of Lyde v. Mynn,(wz) where a husband granted an annuity for his life, and by way of further security covenanted to charge it on all the property he should, in the event of his wife's decease, become entitled to by her will or otherwise ; and it was held that no objection could be taken on the ground of its relating to a mere expectancy; and the court accordingly specifically performed the covenant. And so again, agreements respecting the costs of proceedings in lu- r*4-00l ^'"^^y- *^^ ^^^ ultimate division of a lunatic's property^ are not void.(n) [1] [l) See accorrlingly Hyde v. White, 5 (»«) 1 My. & K. 683. Sim. 524 ; Houghton v. Lees. 1 Jur. N. S. (n) Persse v. Persse, 7 01. & Fin. 279. 862, (Stuart, V. C.) ' • [1] The doctrines of English chancery have, in this respect, been carried out in this country. So in Lewis v. Madisons, 1 Munf. 303, a contract under seal between two brothers, by which one of them agreed to convey to the other a certain tract of land expected to be devised to him by their father, when he should have obtained possession of it, was held not to contra honot mores. And it was further said that an action of covenant could be supported thereon, or that it could be specifically enforced in equity. Price v. Winston, 4 Munf. 63, is a repetition of the same principle. There a testator having devised certain slaves to his sister, during her life, and after decease to be equally divided among them, "to them and their heirs forever," a written agreement not under seal, entered into in her lifetime, by all her children then living, to stand to a fair and equal division of said estate among the children who should be living at her death, and the issue of such as should have then died, or might die before her, was decided not to be a nudum pactum, but found- ed on sufficient consideration, and, therefore, binding on the contracting parties. CONTRACTS AS TO EXPECTANCIES. 409 § 946. The circumstances attending such contracts as those now under discussion are more, rather than less, likely to be such as would prevent the court from enforcing them. Such were the circumstances in Morse v. raulkner,(o) in the exchequer, and in the more recent case of Eyan v. Daniel. (^) In the lat- ter case each of two young officers in the ami}' signed and gave to the other a document, by which each charged his estate with £1000 in favor of the other, in case the other should survive him, the consideration of each of these documents beinjr the other of them: many years subsequently a correspondence passed between these officers with a vieAV to a rescission of the transac- tion, but that intention was never carried into effect. The court held that, looking at the circumstance of the transaction, the age and condition of the parties and their subsequent correspond- ence, there was no equitable claim which the court would en- force, but it retained the bill for twelve months, with liberty to bring an action to establish it, if the plaintifl' could, a legal debt. § 947. Contracts made by a person before the devolution of the estate or other realization of his expectancy are, it seems, purely personal, and only capable of being enforced against the con- tractor personally during his lifetime. In Morse v. Faulkner, in 1792, the Lord Chief Baron, speaking of such a case, said, (5') " The surrenderor not having any title whatever to the premises, at the time of the surrender, his agreement would not raise a lien upon the land ; and although the present plaintiffs might have been relieved if they had filed their bill against him in his lifetime, that is, after his title had accrued, yet it does not follow that therefore they can be relieved against his heirs. Neither the land itself *nor the conscience of the present defend- r^,/^,-l ants is bound by this act of William the surrenderor." *- -* Similar to this appears to be the doctrine of Lord Eldon in Careleton v. Leighton,(r) for though his lordship is represented as saying that the expectancy of an heir could not be made the (0) 3 Sw. 429, 11. castle, 2 Cas. in Cli. 112, a contract for the (p) 1 Y. & C. C. C. 60. present sale of lands made by the heir ap- (q) 3 Sw. 433. n. parent without authority, was enforced (r) 3 Mer. 667. In Clayton v. Dxike of New- against him when in possession. 500 FRY ON SPECIFIC PERFORMANCE OF CONTRACTS. subject of assignment or contract,(.s) yet the subsequent sen- tences seem rather to show his meaning to have been, that thouo-h a contract might create a personal lialjility, there was no such interest as could be assigned or as would pass by a bargain and sale to assignees in bankruptcy. [*402] *CHAPTER II. OF COVENANTS TO RENEW. § 948*. It is now clearly established that the jurisdiction in specific performance is applicable to covenants to grant per- petual or other renewals, though the practice of the court in past times has somewhat varied in this respect. Lord Hard- wicke(a) was of opinion that such covenants were proper sub- jects for the court's jurisdiction ; but Lord Thurlow(S) seems strongly to have entertained an opposite opinion, though upon what principle it is not very easy to state ; and Lord Northing. ton(c) seems previously to have inclined in the same direction. But the jurisdiction of the court was reasserted and upheld by Lord Eldon,(cZ) and is now clearly established(e) both in this country and in Ireland, where from the frequency of renewable lifehold estates, it is of greater importance even than in Eng- land.[l] (s) Qu. for co'Urw.t read comet/an'^. (c) Redshaw V. Governor of Bedford Level, {a] Funiival v Crew, 3 Atky. 83. 1 Ed. 345. (6) Soinerville v. Chapman, 1 Bro. C. C. 61; ('/) Igjjiilden v. Mav. 9 Ves. 325; Willan v. Trittoii V. Foote, 2 Bro. C. C. 636 ; lioese v. Willan, 16 Ves. 81. Dacre, cited 9 Ves. 332. (e) Brown v. Tighe, 2 CI. & Fin. 396; S. C. 8 Bli. N. S. 272. See 1 Ed. 348, n. [1] A lease contained an agreement that the lessor should, upon the term- ination of the lease, either pay the appraised value of the buildings, or renew the lease upon such terms as he might think proper ; and that if the lessee should not approve of the terms, he should be at liberty to remove the build- ings. The lessor offered to renew, but at an exorbitant price. Upon a bill by the lessee, a renewal of the lease at a reasonable rent was decreed. Whit- lock V. Duffleld, 2 Edw. Ch. 366. Indeed, equity Vecogaizes in the tenant of COVENANTS TO RENEW. 501 § 949. In order for the plaintiff to succeed in obtaining tlie specific execution of ii renewal, he must show in the first place a distinct and clear covenant or agreement to renew on the part of the defendant ; and in the second, that he has diligently pur- sued his right under it. ^950. The leaning of the court is said to be against *con- r#4Ao-| struing covenants to amount to agreements for perpetual renewal, (/) and it is certain that they will not so hold them uu" less the intention be clear and free from all ambiguity. () This mode of execution is directed by the court even where the covenant stipulates that in every future lease there should be inserted the like covenant for renewal. (p) § 956. In order to entitle the lessee to claim the benefit of his renewal by specific performance, his conduct in pursuance of his right must have been diligent. [k) Furnival v. Crew, 3 Atky. 83. (n) Watson v. Hemsworth Hospital, U Ves. (/) Hare v. Biirges, 4 K & J. 45. 324. {m) Brown V. Tighe, ubi sup.; Smyth v. (o) Copper Mining Company v. Beacli ; Nangle, 2 CI. & Fin. 405 ; Copper Mining Hare v. iJurges, ubi sup. Company v. Beach, 13 Beav. 478 ; Chambers [p^ Hodges v. Blagrove, IS Beav. 404. V. Caussen, 2 Jon. & L. 99. COVENANTS TO KENEW. 503 § 957. Therefore, where the lease Avas for renewal on the drop- ping of one life, and the application for a renewal was not made until two had exj)ired, the negligence of the lessee was held to debar him from specific performance. (^) § 958. And where there are conditions precedent to the re- newal according to the terms of the covenant, the lessor must show the performance of these as he would have to do in rela- tion to any other covenant.(r) *§ 959. The court, however, does not insist upon a r^inci literal and exact performance of his part by the lessee, but has granted performance where there has been some ladies on his part, if excused by fraud or surprise, or by unavoidable accident or ignorance that is not willful, provided that in those cases where the delay has not arisen from the conduct of the les- sor, his interest is not prejudiced by the delay :(.s') and Lord Eedesdale,(<) reviewing the cases in Ireland prior to the legisla- tion upon this subject came to the conclusion that, as Lord Thurlow had stated, " Equity will relieve where there is mere lapse of time unaccounted for without misconduct in the lessee, or where the lessee has lost his right by fraud in the lessor." But this relief is excluded by willful neglect or refusal to renew : and it has been decided that non-payment of the proportion of the fine after demand made by the lessor, who himself holds of a superior, is such neglect and refusal, and therefore disen- titles the lessee to relief.(M) § 960. The law on this subject has in Ireland been regulated by act of parliament. By the statute 19 & 20 Geo. III. c. 30, mere neglect, where no fraud appears to have been intended, is prevented from defeating the interest of the lessee and the right of renewal, unless where, after a demand of the tines by the land- lords, lessors, or persons entitled to receive such fines, the same have been refused or neglected to be paid within a reasonable (q) Bayley v. Corporation of Leominster, 683. See per Lord Thurlow, in Bateman v. 3 Bro. C. C. 5-26 ; Baynham v. Uiiy's Hos- Murray, cited 4 Bro. O. C. 417 pjtal, 3 Ves. 295. («) Chesterman v. Mann, 9 Ha. 206. See (r) Job V. Banister, 26 L, J. Ch. 125, (L also city ol' London v. Mitford, 14 Ves. 41. C.) As to whether breach of covenants in the (.«) Eaton V. Lyou, 3 Ves. 690; particidarly lease is a bar to a renewal, see Trant v. 693. 695. Dwyer, 2 Bli. N. S. 11, ante, ^ 64s. (.') la Leuuou 7, .Napper, 2 ScU. &, Lef. 504 FRY ON SrECIFIC TEKFORMANCE OF CONTRACTS. time after such deniand. The law in England being unaffected bj legislative enactment, remains as it was in Ireland previous to the above mentioned statute, and is entirely unatfected by the peculiar and " local equity," administered on his head *I)y r*4061 1 ^ ' •' L J the court of chancery in Ireland. (lA As to the Irish tenantry acts and the equity, it will, for the purposes of this work, be sufficient to refer the reader to the case of Jackson v. Saunders(?t') in the house of lords, and the cases of Butler v. Lord rortarlington(.^) and Alder v. Ward(y) before Lord St. Leonards, when chancellor of Ireland. [*407] *CnAPTER III. OF CONTRACTS OF PARTNERSHIP. § 96L In order that the court shall in any way interfere for the specific enforcement of contracts to enter into partnership, it is necessary, as we have already seen, (a) that the partnership should be for some definite term, for otherwise it might be dis- solved as soon as entered upon, and the interference of the court thus become simply nugatory. But where the agreement is thus for a definite term, the court will specifically execute it by decreeing the parties to execute a proper partnership deed, and, if necessary, by restraining any partner from carrying on business under the partnership style with other persons, and from publishing notices of dissolution.(i) [1] {v) Job V. Banister, 26 L. J. Oh. 125, (L. C.) (a) Ante. § 45. Iw) 2 Dow, 437. (b) England v. Curlinja;, 8 Beav. 129, where (.r) 1 Dr. & 'NV^ar. 20. the forms of decree and injunction are given. (y) 2 Jon. &L. 571. [1] This appears to be clearly the rule. Story's Eq. Jur. § 6G6. Collyer, Partnership, (2 Am. ed.,) 107, 110. Byrd v. Fox, 8 Mis. 574. It has been supposed, however, that the court would go to the length of compelling con- tracts of partnership ; but it is probable that the court will only enforce the execution of partnership deeds. "The reason is clear; a contract of partner- ship is of an essentially personal character ; on the lunacy of one partner, the CONTRACTS FOR THE SALE OF SHIPS. 505 § 962. Contracts for partnership may in some cases be illegal, as amounting to sales of office, as contravening the laws regu- lating trade, or otherwise. (c) It is hardly necessary to observe that the court will not in any way interfere for the benefit of jDarties claiming under sucli agreements. ^ 963. Again, where the agreement had reference to the manufacture and sale of a patent medicine. Lord Eldon con- sidered that the court could not decree specific performance, because if the recipe were a secret the court had no means of enforcing its own orders. (cZ) *C II AFTER IV. [*408] OF CONTRACTS FOR THE SALE OF SHIPS. ^ 964. An agreerrient for the sale of a ship, or of shares in one, which does not recite the certificate of registry, cannot be enforced in equity.(«) The statute by which this subject is now regulated enacts, "that when and so often as the property in any ship or vessel, or any part thereof, belonging to any of her majesty's subjects, shall, after registry thereof, be sold to any other or others of her majesty's subjects, the same shall be trans- ferred by bill of sale or other instrument in writing, containing a recital of the certificate of registry of such ship or vessel, or the principal contents thereof, otherwise such transfer shall not be valid or effectual for any purpose whatever, either in law or (f) See Hug;hes v. Statham, 4 B. & C. 187; 3 Mer. 157; Green v. Folfrham, 1 S. & S. 398; Kiiowles V. Haugliton, 11 Yes. 168. Yovatt v\ Winyaid. 1 J. & W. 394. See also (d) Newbery v. James, 2 Mer. 446. See also, Liugen v. Simpson, 1 S. & S. 600. as to secret medicines, Williams v. Williams, (a) Brewster v. Clarke, 2 Mer. 75. other may apply to the court for a dissolution, and he himself cannot be kept to his part of the contract. So, in general, a partnership is dissolved by the death of either party. It would be of ill consequence in general to say, that in articles of partnership in trade, where no provision for the death of either is made, they might subsist for benefit of an executor who may not have skill therein." Bat. Specif. Perform, p. 160. FRY — 3o ' 506 FRY ON SrECIFIC TERFORMANCE OF CONTRACTS. ill eqiilt3%"(/>') to which is added a proviso limiting the efTect of an eiTor in such recital. Tliis clause, which is a re-enactment of 6 Geo. IV. c. 110, s. 31, departs somewhat from the language of the older statutes ; but it has been decided that this change of language gives no room to the distinction which has been attempted between actual transfers and executory agreements to transfer, and that both are alike avoided by the acts, unless complying with its requirements.(c) [1] § 965. How far actual fraud under these acts would be *relievable in equity appears never to have been decided, r*409 1 1 .; i 1 •- 'J "but of thi*," said Lord 8t. Leonards, (c?) "I am per- fectly clear that, so far as the authorities have gone, there have been cases xery much like fraud, and yet no relief has been ffiven." [*410] *C II AFTER V. OF AGREEMENTS FOR SEPARATION DEEDS. § 966. The jurisdiction of courts of equity to enforce the spe- cific performance of agreements for separation, by the execution of proper deeds of separation, was established in the house of lords, after a learned arcument aij^ainst it, in the case of Wilson V. Wilson, (a) where Lord Cottenham showed that the law does (b) 8 & 9 Vict. c. 89, s. 34. See also 17 & 18 (;/) In M'Calmont v. Rankin. 2 De G. M. & Vict. c. 104, s. 43, ami 18 & 19 Vict. c. 91 s. 11. G. 4'il, wliere his lordship discussed the pre- (c) Hughes V. Morris. 2 De G. M. & G. 349 ; vious cases. S. C. 9 Ha. 631; ; M-Calmont v. Rankin, 2 De (a) 1 Ho. Lords. 538, affirming S. C. 14 Sim G. M. & G 403,418; Combs v Mansfleld, 24 405: Fletcher v. Fletcher, 2 Cox, 99. L. J. €h. 513. (Kinderslev, V. C.) [1] The requirements of the registry acts, in this respect, are the same by the laws of the United States, as those of England. And it is, likewise, en- acted here, that in every case of sale or transfer there must be some instrument of writing, in the nature of a bill of sale, which shall recite, at length, the cer- tificate of registry; and without it the vessel is incapable of being registered anew. Laws of the United States, 31st December, 1792, section 14. See Kent's Com. vol. 3, p. 143. AGREEMENTS FOR SEPARATION DEEDS. 507 not now consider an agreement for separation so contrary to pul)- lic policy as to make void all arrangements of property arising out of it. The court will also carry out, by injunction, the cove- enant by the husband to forl)ear from personal molestation of his wife.(/>) But it seems very doubtful whether it would spc- cificall}'' perform the covenant to live separately, and restrain by injunction a suit for restitution of conjugal riglits.(c) [1] § 967. In order to enable the court thus to interfere, there must of course be a valid agreement. It is essential to this that the contract be between persons capable of contracting, and there- fore as a husband cannot contract with his wife without the in- tervention of some third person, a simple agreement between them to live separate Avill not be enforced by the court. (cZ) [2] (b) Sanders v. Rodway, 22 L. J. Ch. 230, (fi) Hope v. Hope. 26 L. J Ch. 417, (I.. (M. R.) JJ.;) Wilkes v. Wilkes, 2 Dick. 791; cl". (c) Wilsou V. Wilson, 5 Ho. Lords. 40. Vansittart v. Vansittart, i K. & J.62. [1] There is, to say the least, considerable confusion in the cases on this point. It may, however, be laid down that courts of equity will, on no oc- casion whatever, enforce articles of separation by decreeing a continuance of the separation. Wilkes v. Wilkes, 2 Dick. R. 791. Worrall v. Jacob, 3 Meriv. 267. Westmeath v. Westmeath, Jac. R. 126. St. John v. St. John, 11 Ves. 529. Frampton v. Frampton, 4 Beav. 287. The People v. Mercein, 8 Paige, 45. But it seems that a contract for separation between husband and wife will be enforced by the chancellor upon proof that there was such a cause for separation as would have authorized the court to grant a divorce. McCrocklin v. McCrocklin, 2 B. Monr. 370. And equity will not, upon slight proof of conciliation, set aside articles of separation, however much, dis- posed chancery may be to the adjustment of difficulties of this kind. There- fore, in Ileyer v. Burger, 1 Hoft". Ch. 1, where, after articles of separation, a casual intercourse, between the husband and the wife, had taken place, but upon a mere friendly footing, without cohabitation, for three or four da3'S, and loose expressions by the wife of an intention to destroy the articles, and an expression of a wish that they had not been made, were held not to be proof of such a permanent reconciliation and agreement to live together as would warrant the court in setting aside the articles. [2] A feme covert may make a valid agreement with her husband to discon- tinue a suit against him for separation ; but she cannot make a binding con- tract with him for separation, except under the sanction of the court. Rogers V. Rogers, 4 Paige, 516. 508 FRY ON SPECIFIC PEKFOKMANCE OF CONTRACTS. r*. ,T *^ 9G8. For the same end, also, there must be a good I 4:1 11 • -1 ■» '- J consideration, and as in deeds and agreements for sepa- ration this is sometimes peculiar, it will be well very briefly to allude to a few of the cases. § 969. It has been decided that the staying a suit in the ecclesiastical court for nullity of marriage, on the ground of impotency of the husband, is a sufficient consideration as against him -.{e) and Avhcre the husl)and had so behaved as that the wife mij^ht have obtained a divorce a mensd et thoro, and she agreed, instead of prosecuting her right, to accept main- tenance from the husband, this was held a good considera- tion. (/) A good consideration is also afforded by an engage- ment by the trustees to indemnify the husband against the wife's debts,(r^) or even by a covenant to that effect conditional on an anuuity, which was agreed to be paid, being secured, (A) or, as it seems, by a covenant of a third party to pay the husband's debts.(?*) § 970. In many of the cases which have arisen on the con- sideration of these instruments, the contention has been on the part of the creditors of the husband that the arrangement is fraudulent as against them. But of course a consideration which has been held good as against the creditors, must be good as against the husband. [*412] *CHAPTER VI. OF AGREEMENTS TO COMPROMISE. § 971. The court will specifically enforce private compromises of rights in the way in 'which it will any other agreements: and, inasmuch as the compromise of a claim bona fide to which a person believes himself to be liable, and of the nature of which he is aware, is a good consideration for an agreement, the court, (fi) Wilso.i V. Wilson, 1 Ho. Lords, 538; S. C. Westraeath v. Countess of Westmcath. Jac. 14 Sun 405. lif), 141 ; Klsworthv v. P.ird, 2 .S. & S. .•{72. (/) Hobbs V. Hull. 1 Cox. 445. (A) Wellesley v. Wellesley, 10 Sim 25«. Ks\ Stephens v. Olive, 2 Bro. C. C. 90; Lord (i) Wilson v. Wilson, 1 lio Lords, 538. AGREEMENTS TO COMPROMISE. 509 in enforcing the compromise, will not inquire into the validity of the claim on Avhich it is founded. («) § 972. The question arises, with regard to compromises of suits, how far they can be enforced by motion or petition in the original suit to stay proceedings, and how far by a fresh suit for the specific performance of them. It seems that where the immediate interference of the court is necessary to carry the agreement into effect, — as, for instance, Avhere a party to the agreement was liable to an immediate attach- ment, — the court will to that extent interfere to execute the agreement by a proceeding in the original suit : but that if not in all other cases, at least in all cases where the agreement of compromises goes beyond the ordinary range of the court in the existing suit, or the equity sought to be enforced is different from that on the record, or the agreement is disputed, or the right to have it enforced in the suit is disputed, there the proper course of proceeding *is by bill for the spe- ^^^.,51 cific performance of the agreement of compromise. (6) [1] '- ^ § 973. In the recent case of Swinfen v. Swinfen,(c) a bill for the specific performance of a compromise was dismissed, but without costs, on the ground that the compromise arose from the mistake of counsel. [a] Attwood V. , 1 Russ. 353. 79, which seem to overrule the dictum of Lord (6) Foisytli V. Miinton. 5 Mad. 78; Wood v. Eldon in Kowe v. Wood, 1 J. & W.^J37, aud Bowe, 2 Bli. 595, 61" ; Aslcew v. Millington, 9 the case of Tibbutt v. Totter, i Ha. 1(>4. Ha. 65 ; Richardson v. Ey ton, 2 De G. M. & G. (c) 27 L. J. Ch. 35, (M. R.) [1] The compromise of doubtful and conflicting rights and claims is a good and sufficient consideration to uphold an agreement, and highly favored at law. Zane v.'Zane, 6 Munf, 40G. Taylor v. Patrick, 1 Bibb, 168. Fisher v. May, 2 Bibb, 448. Mills v. Lee, 6 Monr. 97. Iloge v. Hoge, 1 Watts. Covode v. M'Kelvey, Addis. 56. O'Keyson v, Barclay, 2 Penn. 531. Mclntire v. John- son, 4 Bibb, 48. Chamberlain v. M'Clurg, 8 Watts & Serg. 31. Moore v. Fitzwater, 2 Rand. 442. Bailey v. Wilson, 1 Dev. & Bat. Ch. 182. And therefore an agreement between a creditor and a third person, founded on a valuable consideration, to compromise the claim of the former against his debtor, will be specifically enforced by a court of equity. 510 FRY ON SPECIFIC PERFORMANCE OF CONTRACTS. [*414] *C II AFTER VII. OF AWARDS. § 974. The court has in many cases, and in some of them early ones, decreed the specific performance of awards, though not made rules or orders of the court, for the performance of some specific thing, as to convey an estate, assign securities, or the like,(rt) but not it would seem, awards simply to pay money.(^) The court thus decree their performance, " because,' to use Lord El don's language, (c) " the award supposes an agreement between the parties, and contains no more than the terms of that agree- ment ascertained by a third person." {a) Norton v. Mascall, 2 Vern. 24 ; Hall v. (f) In Wood v. Griffith, 1 Sw. 54 ; per Hardv. 3 P. Wms 1S7. Turner. L. J., in Nickels v. Hancock, 7 De (6) Note of Reporter. 3 P. Wms. 190. G. JI, & G. 300. [1] Courts of equity will generally decree the specific performance of awards. McNeil v. Magee, 5 Mason, 244. Jones v. Boston Mill Corporation, 4 Pick. 507. Cool v. Vick, 2 How. Miss. 882. Kirksey v. Fike, 27 Ala. 383. And the ground on which the court interferes to decree specific performance of an award, is, that the award is an agreement between the parties to the submission, and that most if not all of the principles regulating specific per- formance are applicable. If, therefore, the arbitrator exceeds his authority, or does not decide all the matters submitted to him, or decides something which cannot be carried out consistently with the intention of the parties as shown by the terms of the submission, specific performance of the award cannot be decreed, as the award, to that extent, does not embody an agreement between the parties. It seems, also, that the court cannot, in such a case, separate that part of the award which cannot be enforced, and decree specific performance of the rest. Nickels v. Hancock, 35 Eng. Law and Eq. 363. McNeil v. Ma- gee, 5 Mason, 244. Kirksey v. Fike, 27 Ala. 383. In reference to the specific performance of awards to simply pay money, the general rule of this country seems to coincide with that of England. Turpin v. Banton, Hardin, 312. Story V. Norwich and Worcester Rail Road Co., 2 Conn. 94. Babier v. Babier, 24 Maine, 42. But in Wood, 2 P. & H. (Va.) 442, it is said that a court of equity has jurisdiction to enforce specific execution of an award concerning real estate, or of an agreement for the purchase and sale of real estate, notwithstand- AWARDS. 511 § 975. There is an old case in which the court specifically en- forced an aAvard not binding by form of law.(fZ) But in Bluii- dell V. Brettargh,(e) Lord Eldon said he had met with no authority for the specific performance of an award by arbitrators appointed for the valuation of interests, where their acts, for the pui-pose of carrying into effect the agreement for an award, were not valid at law, as to the time, manner, or other circum- stances, unless in the cases of acquiescence or part performance : and accordingly in the case before him he refused specific per- formance of an agreement to sell at a valuation, which on the construction of *the agreement, the court held was to be r*4151 made during the lives of the parties, one of them having L J died before the award was made. [2] § 976. The interference of the court in these cases being in exercise not of any jurisdiction peculiar to awards, but of its ordinary jurisdiction as applied to the specific performance of agreements, it follows that many, if not all, the principles applicable to ordinary suits of that nature must apply.(/) § 977. Where, therefore, the agreement contained in the submission is such in its character as, whether from its unrea- sonableness, unfairness, or imprudence, the court would not specifically enforce, this will prevent its interference in respect of the award founded on it.(5i') {d) Norton v. Mascall, ubi supra. (/") Nickels v. Hancock, 7 De G. M. & G. (e) 17 Ves. 233, 241. 300. (?) S. C. See ante, § 25-t. ing that it involve,s the enforcement of an award to pay money. It is clearly not the rule to suffer the ends of justice to be defeated, and the jurisdiction of equity to be ousted, in cases of hardship, because of an obligation in an award to pay money. And probably the rule is the same, whether the hardship arise because of loss of remedy at law, or the inate unconscionableness of the award itself. Story v. Norwich and Worcester Rail Road Co., 24 Conn. 94. Viele V. Troy and Boston Rail Road Co., 21 Barb. 381. [2] Although an award, to be specifically enforced, must be binding by form of law, jet, if legally void by an apparent non-compliance with the terms of submission, caused by a mere clerical error, it will be enforced in equity, unless its performance would work injustice. Buys v. Eberhardt, 3 Mich. (Gibbs,) 524. 512 FRY ON SPECIFIC PERFORMANCE OF CONTRACTS. § 978. Nor can the court interfere where the award is excess- ive or defective ; not if it be excessive, for so far the arbitrator has gone beyond his authority, and there is no binding agree- ment between the parties : not if it })e defective, because the parties had agreed to be bound by his decision on the whole, not on part of the matters submitted to him.(/') ^ 979. The objection arising from unreasonableness, not of the submission but of the award itself, the court is less willing to entertain ; for the arbitrators being judges of the parties' own choosing, it has been held that the award cannot be objected to by either of the parties, on the ground of its being unreason- ah\e.{i) This principle was stated and acted on by Lord Eldon in Wood V. Griffith, (A-) where his lordship enforced the specific performance of an award which ordered the sale of an estate un- der circumstances Avhich greatly depreciated its value. Never- r*j.iri theless, it cannot, *it seems, be laid down on an universal "- rule that the court will not consider the unreasonable- ness of an award; for, in a previous case before the same judge, (^) he refused the specific performance of an agreement to sell au estate at such price as a valuer should award, the award having been made, partly in consideration of circumstances which threw a doubt on the valuations having been made with due attention to accuracy. And in a case(m) before Sir Thomas Plumer, M. R., it was held that the fact that the sale was agreed to be at a valuation, to be fixed by arbitrators, will not prevent the court from inquiring into the adequacy of the consideration. And, again, in a recent case,(«) in which the award was objected to as unreasonable, but it was contended on the other side that the court could not entertain the objection, Lord Justice Turner,(o) after expressing his dissent from the observations of Lord Eldon in Wood V. Griffiths, said, "If it be a fair subject for discussion and consideration, whether one course or another course be the right one to be taken by parties who have submitted their dif- (h) Nickles v. Hancock, 7 De G. M. & G. {I) Emery v. Wase, 8 Ves. 505. 300. {m) Parken v. Whitby. T. & K. 3fi6. (I) Per Lord Hardwicke in Ives v. Met- («) Nickles v. Hancock, 7 De G. M. & G. calle. 1 Atky. 64. 300. (h) 1 Sw. 43. See ante, i 254, (o) P. 325. AGREEMENTS TO REFEK TO ARBITRATION. 513 fercnccs to arbitration, and have said that they will abide by the decision of the arbitrator, I might agree that the judgment of the arbitrator upon the question nuist decide the point. But here the judgment of the arbitrator goes to the length of destroying the rights of one of the ])arties to the agreement, though the parties never authorized Mr. Carpmael to decide that any one of them had no right, and should acquire no interest in the subject in dispute, but only agreed that he should determine the mode in Avhich their rights and interests should be regulated. It seems to me, therefore, that if it was neces- sary to decide this question upon the point of unreasonableness, that point alone would be sufficient to decide it." ♦CHAPTER VIII. [*417] OF AGREEMENTS TO REFER TO ARBITRATION. § 980. WiTii regard to agreements to refer to arbitration, it is clear that the court will not entertain suits for their specific performance, — a principle, in the first place, it seems, acted upon by Lord Thurlow in a case of Price v. Williams, (a) and which has been since Avell established. (i^) In a recent case, the lords justices upon this, amongst other grounds, refused to compel the specific execution of a bond to refer to arbitration. (c) There is a case(tZ) before Sir John Leach, somewhat briefly reported as to its circumstances, which appears in some degree at variance with the cases already stated ; for there the vendor refusing to permit the referees to come upon the land, the court compelled him to permit the valuation. [1] (a) Referred to 6 Ves. 818. {c) South Wales R.^i]^ray Company v. (6) Street v. Kigby, 6 Ves. 815; per Sir W. AVythes. 5 De G. M. & G. >*00. Grant in Gourlav v. Duke of Somerset. 19 Ves. (d) Morse v. Merest, 6 Mad. 26. 429 ; Agar v. Macklew. 2 S. & S. US ; Gervaise V. lidwards, 2 Br. & W. 80. [1] It is well established that these agreements will not be enforced. And t has been said that courts of equity never decree the specific performance of 514 FEY ON SPECIFIC PERFORMANCE OF CONTRACTS. § 981. Though the court will thus refuse specifically to en- force references to arbitration, an inequitable refusal of a pi ain- tift'to make such a reference may disentitle him to the aid of the court, on the principle that he who seeks equity must do equity. Thus, where a deed was executed which created a lien for the amount of a solicitor's bills and advances, the amount of which was to be settled by arbitration, and the arbitrator died r*nxi ^^^^'^'^'^ ^^^^ award was *made : in a suit seeking the recon- ^ veyance of the property, Alderson, B., held that the agreement between the parties was composed of two distinct parts, — the first admitting that some balance was due to the solicitor, and the second, an agreement for a specific mode of as- certaining that balance ; that the latter part alone had failed ; that the former part remained entire, and that the court would not decree a reconveyance without the plaintiif 's consenting to do equity by having the accounts taken by the master.(e) («) Cheslyn v. Dalby, 2 Y. & C. Ex. 170. any agreement, when the decree would be a vain and imperfect one ; liable at any moment to be defeated by the act of the parties themselves. Tobey v. The County of Bristol, 3 Story, 800. See also Connor v. Drake, 1 Ohio State R. 166. TABLE OF OASES. Abbott, Neap r. 302 " V. Sworder, 195 Abingdon, Childs v. 490 Abrey, ^yood v. 190 Abraham, Davis v. 292 Abrahams, Fuller v. 295 Acer, Crosier v. 315 Acker v. Phenix, 173 Acland v. Gaisford, 485 Acton V. Acton, 45 " Byrne v. 180 " Gage V. 45 Adair v. Winchester, 48 Adams v. Blackwell R. R. Co., 51 Adams v. Brooke, 155 Adams, Daniel v. 392 " Greenway v. 391, 494 " V. Lambert, 444, 445 " V. Lindsell, 146 " Page V. 408 " Pratt V. 209, 318 " Reeves v. 83 " Rowley V. 484 " V. Weare, 187 " Wedge wood v. 188 Adamson, Stevens v. 344 Adcock, Sharp v. 350 Adderiy v. Dixon, 61 Addington, Allen v. 272, 277 Aden, Morrill v. 356 Agar V. Maeklew, 160, 513 Agate, Jeudwine v. 77 Ainslie v. Medlycott, 149, 274 Akhurst V. .Jackson, 362 Albrecht, Dimcuft v. 53 Alcock. .Jendwine v. 474 " Knollys v. 113 Alcott, Hackett v. 72 Aldborough, (Earl of) v. Tyre, 191 Alder v. Ward, 504 Alexander, Crockford v. 437 Alexander v. Duke of Wellington, 112, 496 " V. Godwin, 412 Alexander, Harvey v. 99 " V. Newton, 310, 316 " Parkhurst v. 114 " V. Perry, 101 Allair, Whitney v. 283 Allen V. Addington, 272 " V. Beal, 47 " V. Bennet, 233, 242 " Chapman V. 310 " Goold V. 334 " V. Hilton, 424 " Keafv. 210 " McKay v. 132 " Smith V. 328 " Springwell v. 346 Alley r. Deschamps, 424 Almy, Kendall v. 168 Allison V. Monkwearmouth, 63 Alliston, Stewart v. 42, 157, 445,446, 457 Alston, Farrar v. 271 Alt, Bramley v. 295, 296 Alvenley v. Kinnaird, 302 Ambrose v. Nott, 71 Anderson v. Bacon, 298 " Boyd v. 356 " V. Chick, 240, 254, 262 " Delafield v. 193 " V. De Soer, 106 " Fenelly v. 200 " Lord drmond v. 163, 206 " V. Harold, 2.33 " v. Higgins, 463 " Scott V. 453 " V. Smith, 172 Andrew v. Andrew, 475 Andrews v. Andrews, 47, 64, 167 " Duke v. 141 " V. Scotton 358 Angell, Haywards v. 74 Ankrim, Smith v. 166 Annable, Lyon v. 356 Annan v. Merritt, 251 Anniger v. Clarke, 199 Annitage, Mason v. 227, 299 Ansell, North v. 37T 51() FKY ON SPECIFIC PERFORMANCE OF CONTRACTS. Anson, Ilodges v. 494 Anson V. Towgood, 358 AnstVj Luilerx v. 15.'i Anon V. Walfnra, 85, 87 Applcboe, Edwards v. 116 ArL'fdecknc, liinuolu v. 364 Archer, Barnind v. 455 " (;usl.cll V. 235, 240, 245 Arehibold, Magram v. 79, 180 Arglassc v. Muschamp, 70 Argfnbiight v. Campbell, 245 Arkinsou v. Kmith, 334 Armstrong v. McUee, 135 Arnold v. Arnold, 303 " Morrison v. 101, 354 " Stackpole v. 125, 127 Arthur V. Arthur, 318 Arundell, (Lady) v. Phipps, 65 Ashburton, Lee v. 81 Ashdown, Claydon v. 199 Ashe, Wood v. 286 Ashley, Harvey v. 377 Ashton, Aylctt v. , 130, 456 " Jackson v. " 173 *' V. Taylor, " Thompson v. " V. AVood, Ash worth V. Mounsey, Askew V. Millington, " V. Osbaldiston, Aspinwall, AVoodward v. Assheton, Price v Astley, Dixon v. Atherford v. Beard, Athcrton, Rankin v. Atkins, Toche v. Atkinson v. Ritchie, " V. Robinson " Rogers v. " Magce V. Atterbury v. Knox, Attorney General v. Corp. of Norwich, 224 " " V. Day, 203, 247, 248 " " v. Lancaster & Leeds 448, 272 281 463 404 509 452 202 151, 164, 381, 407, 437 468, 492, 493 211 309 209 209 425 310, 327 128 91 Ayliffe v. Tracy, Ayncsley, Errington v. Ayres, Church v. " V. Mitchell, 148 65, 393 408 409 R, R. Co., V. Pamther, V. Parmont, V. Sitwell, V. Whorwood, I « Attwatcr v. Fowler, Attwood V. Attwood, " V. Barham, <« Small V. Aubin V. Holt, Audland, Harvey v. Auld, Hepburn v. Austin, Crowder v. " Elmore v. " Gillispie v. Avarne v. Brown, Aveline v. Whisson, Averill v. Hedge, Ayerst, Boys v. Aylcs V. Cox, Aylesford's (Earl of) case, Aylett V. Ashton, " V. King, 434 133 413, 416 322 371 422 608 436, 437 271, 282, 290, 468 64, 215 71 347, 413, 448, 453 295 297, 328 54 476, 477 239 147 145, 146, 262 345, 466 258 130, 460 422 Babcock, Howard v. " Western R. R. Co. v. Babiar v. Babiar, Back, Manser v. 240, 299, 301, " Wilks V. Backhouse v. Mohun, 202, Bacon, Anderson v. " V. Bronson, " V. Warner, Baden v. Countess of Pembroke, Badgley, Haight v. Baglehole v. Walters, Bagley, Chamberlain v. " V. Peddle, Bagnal, Whaley v. Bagshawe v. Eastern Counties R. E. Co. Bagwell, Stevens v. Bailey v. Clay, Bailey, Clayson v. " V. Collett, " V. Leroy, " V. Strong, " V. Wilson, Bailis, Stent v. Bainbridge v. Wade, Bainbrigge, Mors v. Baird, McNeal v. Baker v. Clark, " Freeman v. " V. Glass, " V. Morris, " V. Paine, " Richardson v. " V. Rowan, " Shackle v. " V. Thompson, " V. White, Bakewell, Cowpe v. Balburnie, Thurnell v. Baldey v. Parker, Baldwin, Echliff v. " V. Mann, " Owings V. " V. Saltar, " V. Society, Balentine, Park v. Balfe, Kin v. Balfour v. AVeston, Ball V. Coggs, " Gordon v. " V. Stonie, Ballard v. May, Ballet, Halfpenny v. Ballou, Murray v. " V. Talbot, Balmanno v. Lumley, Baltimore, (Lord) Penn. v. Bampfield, Popham v. Bander, Strachan v. 112, 400 300 510 322 239 405 298 274 114 100 62 345 77 77 265 224 211 387 202 489 240 48 609 361 231 93 290 330 272 163 422 311 422 83 433 356 210 484, 488 160 334 437 334 347 359 339 82 258 362 67 471 300 344 162 114 127 456 70 74 211 63, 347, TABLE OF CASES. 17 Banes, Croyton v. Banister, Job v. 383, Bank of Alexandria v. Lynn, Bank of Darien, Lucas v. " Kentucky, Woods v. " United States v. Daniel, " Whitehall, Pettes v. Banks, Ilarvie v. Banington v. Horn, Banner, Payne v. Bannerman v. Clark, Banton, Turpin v. " Case V. Barber, Davy v. " Lea V. Barbour v. Craig, " V. Whitlock, Barclay, Hill v. 66, 73 " 0' Key son v. " V. Wainright, Bardeau, King v. Barett v. Emerson, Barham, Attwood v. Barker v, Hodgson, " V. May, " Tibbs V. Barkworth v. Young, 116, 225, 229, 245, Barnard, Dilly v. " Glengal v. 230, Barnadiston v. Lingrode, Barnes, Walker v. Barnett, Duke v. " V. Spratt, Barewell v. Harris, Barney, Coale v. " V. Dewey, Barnley v. Eastern Counties K. K Barr v. Gibson, Barraud v. Archer, Barrett v. Blagrave, " V. Ring, " V. Ruill, " Woodson V. Barrington, ex parte, " Sidebotham v. Barry v. Coombe, " V. Merchants Exchange, " V. Rogers, .Bartholemew, Roper v. Bartlet v. Purnell, Bartlett, Walker v. Barton v. Bird, "' Flighty. Bartram, Hudson v. Barwell, AVyatt v. Basevi v. Serra, Basket V. Basket, Baskett v. Cafe, Basnett, Frank v. Bass V. (Jilliland, '' Tucker v. Bastard, Grove v. Batcher v. Stapely, Bateman v. Murray, Bate, Palmer v. Bates, Bowman v. 227 Bates v. Dolavan, 164, 503, 504 j " Foster v. 182 " Nobles V. 82 " V.Wheeler, 91 I Battison, Gailniero v. 316; Baugh v. Price, 318 Bauin, Ohio v. ,387 Baundillon, Sari v. 392 Baxendale v. Scale, 174, 177, 418 Baxter v. Burfield, 485 " V. Connolly, 510 " v. Lansing, 216 " V. Taylor, 361, 489 Bayard, Lawrence v. 232 Baybroke (Ld) v. Inskip, 239 Bayley v. Corporation of Leominster, 83 " V. Tyrrel, ;, 74, 383 Bayly v. Merrill, 284, 609 Baylor, Nagle v. 370 Baynham v. Guys Hospital, 415, 346, 449 Beach, Copper x\lining Co. v. 380, 425 Beal, Allen v. 436, 437 Beales v. Lord Rokeley, 209, 365 Bealor, Campbell v. 173 Beam v. Herrick, ■ 60, 258 " Larroue v. 234, 244, Bean, Summers v. 396, 397 " V. Valley, 19G, 227, 246, 387 Boame, Ithell v. 240, 241 Bear, Miller v. 71, 213 Beard, Atherford v. 391 " V. Linthicum, 463 Beardmer v. London and North West- 182 tern R. R. Co. 351, 455 Beardsley v. Hall, 43 " v.Knight, 272 Bearnard, Raymond v. 356, . Co. 431 Beatty, Blessing v. 357 " Fitzpatrick v. 455 " V. Kurtz, 424, 433 Beatson v. Nicholson, 147, 228, 180 Beaubien, Lawrence v. 314, 315, 227 Beaufort v. Glynn, 447, 211 Beaumont, Clive v. 141, 470, 41, 467 " V. Dukes, 474 " Stackpole v. 229, 241 Beavan, Frost v. 216, 218 Beazley, Welford v. 235, 84 Becker v. Ten Eyek, 72, 78 Beckett, Chailer v. 240 " Kendall v. 190, 54 Beckham, Williamson v. 448 Beckley v. Newland, 44, 165, 286 Bcckweth v. Cheever, 142, 415, 429 Bcckwith v. Kouns, 115 Bedford (Duke of) v. Trustees of British 378 Museum, 399 Bedford, Redshaw v. 228 Bcebo v. Swartwout, 441, 459 Beech v. Ford, 448 " Taylor v. 245, 127 Beeston v. Stutley, 207, 354 Belcher v. Belcher, 258 Bell V. Beaman, 603 " Duncan v. 112 " Havdon v. 293 " V. iloward, 176, 201, 347 239 76 .365 116 213 155 157 302 104 6Z 74 88 105 349 50.3 111 286 178 501 502 47 101 493 275 422 60 262 98 426 204 198 366 440 316 407 448 166 90 389 317 474 471 366 210 1.34 244 211 233 495 131 496 147 347 185 172 315 50 263 209 1.34 48 356 466 405 518 FIIY OX SPECIFIC PERFORMANCE OF CONTRACTS. Bell V. O'Reilly, 440 " Ricketts v. 1G5, 306 " Smiley v. 48 " Wright V. 45 Bellair.s, Wilcox v. 348, 473 Bellamy, Birch v. 24(5 Bellerica, Lamprell v. 412 Bellriiiger v. Blagrave, 180 Beiiian v. Rufford, 224, 41) Bcman v. Bell, 88 Beming, Stevens v. 107 Benedotti, Sanquirieo v. 63, 1^8 Benedict v. Lynch, 198, 415, 410 " V. Smith, 239 " St. John V. 173 Bennett, Allen v. 233, 242 Bennett, College v. Carey, 473 " V. Fowler, 164, 203, 402 " Marvin v. 309 " MeMurtrie v. 157, 166, 198, 262 " V. Pratt, 232 " V. Rees, 473 " V. Sadler, 109 " V. Vade, 134 " Woodcock V. 390 Benson v. Lamb, 420 Bentley v. Craven, 342 " Hume V. 465 Benton, Hart v. 106 " V. Pratt, 273 Berger, Phelps v. 47, 198 Berkeley v. Uaugh, 477 " V. Hardy, 93 Bernal, Wood v. 429, 456 Berry v. Berry, 101 " Brooke v, 193 " King V. 106 " Roberts v. 416 " Savage v. 441 " V. Yates, 218 " V. Young, 412 Best v. Stow, 270, 310 Bettesworth v. Dean &c. of St. Pauls, 209, 394 Betts, Granville v. 336 Betty, Hall v. 164 Beverly v. Lawson, 461 Bevill, Thornbury v. 64, 137, 143 Bevis, Whitchurch v. 226, 246, 248, 251 Bexwell v. Christie, 294 Bickner v. Milner, 475 Bigg V. Strong, 238 " Wright V. 145, 147 Bigham, Price v. 132 Bilbie V. Lumlcy, 313, 318 Binks V. Lord Rokeby, 456, 460, 486, 488 Binney's case, 216 Binnie, Morgan v. 160 Birce v. Bletchley, 247 Birch v. Bellamy, 246 " Fox V. 490 " Hercy v. 64 " V. Joy, 489 " V. Podmore, 484 Birchett v. Dowling, 66 Bird V. Boulticr, 241 Bird, Elsworthy v. 608 Birmingham and Oxford Ac. R. R. Co., Great Western R, R. Co. v. 203, 339, 392, 436 Birmingham and Oxford &c. R. 11. Co. Reg. V. 51 Birmingham, Wolverhampton Co. R. R. Co. Inge. V. 52, 158 Bishop, Davenport v. 96, 97, 337 " of Exeter, Southeomb v. 424, 427, 428, 494 Bishop of Lincoln, Pawlet v. 86 Bissel V. Farmers and Mechanics Bank of Michigan, 54 Black, Gompertz v. 234, 472 " Gordon v. 1 14 Blackburn, Pym v. 299 Blackburn, Stace v. 493 Bliicklow V. Laws, 354, 466 Blackman, Thomas v. 139, 425 Blackstone, Thompson v. 180 Blackwal, Wigley v. 395 Blackwall R. R. Co., Adams v. 61' Blades, Winter v. 481 Blagden v. Bradbear, 163, 228, 247 Blagrave, Barret v. 424, 433 " Hodges V, 380, 502 " Bellringer v. 180 Blair v. Snodgrass, 242 Blake, Cubitt v. 423 " Dykes V. 63, 382, 443, 445 " Moore v. 422 Blakemore v. Glamorganshire Canal Navigation, 436 Blanchard v. More, 298 Bland, Robinson v. 211 Blandy v. Wedmore, 369 Blatchford, Kirkpatriek v. 259, 469 " Lawder v. 182 " Rawdon v. 290 Blaydes v. Calvert, 439 Bleecker v. Franklin, 240 Blenkin, Lyons v. 100 Blessing v. Beaty, 448 " Bower v. 136 Bletchley, Birce v. 247 Bliss, Morgan v. 271 Bliss, Vancouver v. 473 Blood V. Enos, 400 Bloom, Haviland v. 132 Blore V. Sutton, 163, 236, 496 Blosse, Bud v. 163 " V. Clanmorris, 354 Blount V. Blount, 489 Blue, Chamberlain v. 55 Blundell V. Brettargh, 160, 161, 511 Blyth V. Elmhirst, 471, 472 Board, AVheeler v. 356 Boardman, Gitligan v. 232 Boardman v. Mostyn, 382, 386, 439 Boaz, Elliot v. 270 Bobo V. Grimbe, 56 " Martin v. 373 Bodine V. Gladding 199 Bochm V. Wood, 439, 471 Bogardus v. Trinity Church, 227 Boghurst, Prebble v. 76 Bohannon, Edwards v. 104 TABLE OF CASES. 19 BdhiiniKin v. Pope, Bdis^iiaiil V. Wall, iJokcr, lliitchenston v. Buhl V. lliitchfiison, Bolland, Fli^lit V. Boiling, BiiL-hctt v. Bolton, Brennaii v. " V. Dcverell, " V. l)uke of Drummond, Bomier v. Caldwull, Bond, Lewis v. " Townley v. " Wright V. Bonebright v. Pease, Bonner v. Johnston, Boore v. Marquis of Hertford, Booth, Bryant v. " Flight V. " Halneily v. " Macauley v, " V. Pollard, " Seaton v. Boothley, Morley v. " V. Walker, Bordieu, Lowrie v. 94 85 i;)y 140 199, 202 60 254 4(59 396 260 382 465 471 48 492, 493 424 488 454 213 454 66 331 231 493 318 Borell V. Dann, 191, 195, 196 Borneman v. Tooke, 412 Bostock V. North Staffordshire R. R. Co. 221 Boston, Foster v. 144, 145 Boston and Maine R. R. Co. v. Bart- lett, 144, 145 Boston Mill Corporation, Jones v. 510 Boswell V. Mendhaiu, 353 Bosworth, Stratford v. 136, 166, 230 Bosynanet v. Dashwood, 212 Bott, Towler v. 362 Botts, Thompson v. 286 Boultier, Bird v. 241 Boush, Mosely v. 48 Bowe, AV'ood v. 509 Bowen, Talbot v. 237 Bower v. Blessing, 136 " V. Cooper, 164 " Mexborough v. 436 " Talbot V. 227 Bowes V. Heaps, 213 Bowie V. Minter, 84 Bowman v. Bates, 293 " Hood V. 262 Bowne, Coles v. • 230, 304, 328 Bowyer v. Bright, 448 Boyce v. Prickett, 100 Boyd V. Anderson, 356 " Brisbon v. 147 Boyes V. Liddell, 471, 473 Boyles, Couse v. 448 Bownton v. Hubbard, 210, 211 Boys v:. Ayerst, 145, 146, 202 Bozon V. Fairlow, 63, 64 Brabroke v. Inskip, 473 Brace v. Wehwert, 66 Bracebridge v. Buckley, 73, 74 Brackett v. Newcomb, 366 Bradbear, Blagden v. 163, 228, 247 " Carolan v. 340, 394, 407 Bradbury v. White, 303 Bradford, Kelly v. 349 " V. liiion Bank of Tennessee, 302 Bradley v. Mimr, 331 " V. Morgan, 166 " Munton v. 462 Bradshaw, Key v. 210 Bradstrect, Shannon v. 200, 255 Braithwait, Otway v. 202 Bramley v. Alt, 295, 296 " V. Teal, 492 " Union, Kirk v. 68, 256 Brandling, Newmarch v. 435 Brandon, F'lint v. 65 Brashier v. (iratz, 413, 420 Brawford, Keyton v. 309 Bray broke v. Howard, 236, 476 Brazier, Lechemere v. 423 Brealey v. Collins, 51, 53, 278 Breary, Rowndell v. 371 Brebuer, Paton v. 456 Breckenridge v. Churchill, 44, 106 " V. Clinkinbeard, 376 " V. Ormsby, 133, 134 " V. Porter, 114 Brecdlove v. Stump, 114 Brcman v. Bolton, 254 " Osborne v. 425 Brett, Briscoe v. 471 Brettargh, Blundell v. 160, 161, 611 Brettell v. Williams, 242 Brewster v. Clark, 505 Briant, Hesse v. 177 Brickley v. Hancc, 177 Bridger v. Rice, 180 Bridges, Hitchcock v. 501, 503 " Nelson v. 451, 460 " V. Robinson, 484 Bridgman, Green v. 176 Briggs, Sutherland v. 202, 203, 260, 267, 268 Bright, Bowyer v. 448 " V. North, 224 Brillhart, McConnell v. 234 Brilliant v. McConnell, 242 Brink, Sears v. 231 Brinkman, Dawson v. 469 Brisbon v. Boyd, 147 Briscoe v. Brett, 471 " Huddlestone v. 136, 232 " Winnington v. 209, 265 Briston v. Wood, 254 British Museum, Bedford v. 185 Broadhurst, Marshall v. 104 Broadwell v. Broadwell, 300, 315 " Tubbs V. 370 Brock V. Cook, 258, 260 Brockenburgh v. Blyth, 488 Brockhurst, Whitbread v. 227, 248, 255 Brocksopp, Savage v. 172 Brodio v. St. Paul, 139 Broklebank, Stoker v. 69 " V. Whitehaven &c. R. R. Co. 51 Bromley v. Jeffers, 159, 198, 200 Bronson v. Ba^n, 274 Brook V. Brook, 475 Brook, Johnson v. 234 520 FRY ON SPECIFIC PERFORMANCE OF CONTRACTS. Brook e, Adams v. 156 George, Howell v. 302, 392 Goihnere v. Battison, ll6 (iernian v. Macon, 198 Goldhorough, Moncrief v. 295 Gerrard v. OVReilly, 79 Goldsmid, (iibson v. 374 Gerrish, Cowen v. 75 Goldsmith v. Goldsmith, 369 156 Gery, Milnes v. 44, 160, 161 Goldwin, Doe d. Lyster v. Gervais v. Edwards, 335, 338, 51. S Goman v. Salisbury, 4O5 Gervard v. Saunders, 115 Gomme, Hill v. 93,^95, 97, 100 ,200 ,401 45? Getchell V. Jewett, 47, 113 Gompertz v. Black, 234, 472 Gibbes, Dear v. 114, 115, 119 Good V. Herr, 31 5 '• V. Champion, 387 Goodey v. Colchester Ac. R. R .Co. ,119 12o Gibbans, Cole v. 213 (loodell V. Field, 298 " V. (launt, 313 Gooding v. McAllister, 328 '•' V. Northeastern Metropo itan Goodman v. Griffiths, 159 District Asylum, 142, 233, 473 Goods V. Pugle, 258, 262 Giblet, Hersey v. 113, 163 Goodrich v. Lafflin, 4O3 Gibson v. Barr, 357 Goodwin v. Holbrook, 334 " Carruthers v. 107 " V. Fielding, 113, isl <' V. Clarke, 473, 491 " V. Lyon, 166, 41.3 " V. D'Este, 269, 277, 285, 290, 443 Goold, MeCarty v. 111, 211 " V. Goldsmid, 374 Gordon v. Ball, 47i " Ileriot's Hospital ,(Feoffeesof) V .366 " V. Cabeen, 171, 193, 19« " V. Patterson, 415 " (Lord)v.Hertford,(Marquisof)305 " V. Spurrier, 332 " V. Norton, 139 " V. Watts, 298 " V. Sarter, 156, 157, I67 «' Wilde V. 269, 277, 290, 296 " V. Smart, 384 Giddings, Hitchcock v. 309, 355, 356 " T. Sims, 241, 247 Gihon, Williamson v. 210 " V. Trevolyan, I63 Gilbert v. Gilbert, 318 Goring v. Nash, 96, .337 " V. Sykes, 211 Gosbell V. Archer, 235, 240, 245 Gilbertson, Taylor v. 170 Goss V. Nugent, (Lord) 405, 406 Giles, Woodward v. 79 Gough, Edelen v. 232 GilfiUan v. Henderson, 64 Gould V. Allen, 3.34 Gillespie, Austin v. 64 *' ■ V. Colburn, 40o " V. Edmonston 147 " V. Kemp, I81 " Mastaer v. 248, 331 " V. Gould, 297 " V. Moon, 171, 378 " V. Thompson, 36i " Nevitt V. 47 " V. Warnack, 45 Gilliland, Brown v. 54 Gourley v. Somerset, (Duke Df) 160, I62, " V. Bass, 448 383, »13 Gillct V. Maynard, 356 Governor of Belford, Redshaw (Lord) v .000 Gill V. Webb, 212 Gower, Clcaton v. 189, 203, 206, 449 " V. Triplett,; 312 Goyhner v. Paddiston, II6 Gilman, Denny v. 272 Grabham, Harvey v. 405 " V. Kebler, 232 Graddy, Henry v. 449 Gist V. Cattell, 425 Graham v. Call, 160 Gittigan v. Boardman, 232 " V. Oliver, 206, 448, 464 Gittings V. Mayhew, 94 Gram v. Stebbins, 54 " Pennington v. , 97 Grand Junction < Powers V. 193 Halfpenny v. Ballet, . 152 Hall Barnwell v. 351 (( V. Betty, 164 << Buckland v. 381, 437 a V. Casenova, 412 a Foster v. 252 <( v. Hall, 140 (( V. Hardy, 392j 510 (< V. Hays, 377 i( Johnston v. 88 SI .Toy V. 406 (C V. Laver, 87, 401, 469 (< Moseby v. 310 ec Raindall v. 367 (( V. Read, 316 (( v. Warren, 133, 134, 161 ee Young v. 277 Hall \m, Oliver v. 48S Hall ett V. Middloton, 390 TABLE OF CASES. 531 Hallctt V. Wylic, 362 Halliday, Carr v. 134 Halls, Bcardslcy v. 440 " V. Thompson, 275 Halmcrly v. Booth, 213 Halsey v. Grant, 452, 465 " (lunter v. 247, 253 Hambersie, Pendleton v. 106 Hamblin v. Dinneford, 62, 168 Hamilton, Dale v. 252 " Darlington v. 454, 4f)5 " V. Grant, 189, 192, lil'J " V. Lycoming Insurance Co., 147 " V. Mohun, 210 " V. Overton, 77 Hanimcrsley v. Du Bicl, 148, 154, 245, 204 Hammond, Messenger v. 45 Hance, Briekley v. 177 Hancock, Nickels v. 183, 336, 510, 570 511, 572 " Spurrier v. 424, 425 " Yaughan v. 232 Hanks V. Hailing, 357, 463 Hansard, Kerneys v. 176 Hanson, Moss v. 347 " V. Rowe, 239 " Scott V. 278 Hanway, Clarkson v. 176 Hardin, Busey v. 358 Harding v. Cox, 108 Hardisty, Wheelton T. 275, 277 Hardman v. Burge, 193 " Omerat v. 465 Hardy, Berkeley v. 93 " Hall V. 392 510 Hare v. Burgess, 380 501 " V. Shearwood, 319 Harford v. Furrier, 358 486 Hargrave, Dyer v. 284 , 372 , 373 , 459 487 " V. Wright, 93 Harnett v. Yielding, 170, 179, 180, 204 182, 501 Harper, Sebrec v. 488 Harrington v. Harrington, 312 " V. Wheeler, 423, 424 Harris, Barnwell v. 455 •' Cappun V. 53 " Const V. 403 " V. Dinkins, 298 " Evans v. 226 " V. Ingledcw, 5 " V. Kemble, 275, 288 '•' V. Kniokerback er. 228 248, 254 " v. Lloyd, 315 " Mount V. 360 " Eolf V. 74 " Webster v. 310 " V. Woodward, 198, 451 Harrison, Drewe v. 452 " V. Gardner, 325, 433 '•' V. Howard, 298 " Kirby v. 374 " V. Lemon, 134 " V. Smith, 175 178, 463 " V. Town, 193 Harrold, Anderson v. 233 Harrop, Buckmaster v. 103, 240, 248, 254, 256 263, 331 Hart V. Benton, " Deggett V. " Moore V. 152, " Wilson V. Hartley v. Smith, Hartshorn, I'cnniman v. Hartvvell v. Hartwell, Harvard College, Makepeace v. Harvey v. Ashley, " V. (Jrabham, " Osborne v. 446, 468, " Turner v. 181, 272, Harvie v. Banks, Ilarwood, Wilkins v. Hasbrouck v. Tappen, Haskall, Butler v. Haskins, Cabot v. Ilastie, Coulturier v. Hastings, Tooke v. Hastier, Costigan v. 184, Hatch V. Cobb, 420, Hatcher v. Hatcher, 229, 254, 258, " Salisbury v. 201, Hatton V. Gray, Haughton, Knowles v. Haven v. Foster, H.aviland v. Bloom, " W"ooden v. Harvey v. Alexander, " Dorin v. Hawkes v. Eastern &c. R. R. Co., 49, 185, 187, 200, 221, 222, 223, 224, 389, Hawkins v. Holmes, Hawley v. Cramer, " V. Sheldon, Haydon v. Bell, Hayes v. Kershaw, " Tewksbury v. Hayne v. Holden, Haynes v. Mico, Hays V. Hall, Haywards v. Angell, Haywood v. Cope, 158, 174, Hazard, Ives v. " V. New England Ins. Co., Heale, Chinn v. Hean, Woolam v. Heap V. Tonge, Heaps, Bowe v. lleapy v. Hill, Hearne v. Tenant, Heath, Butterfield r. " Schneider v. 287, Heathcote v. North StaflfordshireR. R. Co., Heatley v. Finster, Heaton, Gwynne v. Hebb, Glen v. Hedden, Leaycraft v. , Hedge, Averill v. Hedges, O'Herlihy v. 108, Hcelis, Emmerson v. 240, Heely, Ford v. Helsham v. Langley, 176, 302, Hensworth Hospital, Watkinson v. Henderson, GilfiUan v. " v. Johnson, " Lingan v. 422, 198, 87, 106 48 153 124 352 234 211 400 517 405 492 293 387 228 404 193 235 357 372 411 451 262 475 233 505 314 182 340 99 424 52, 391 265 482 440 464 98 94 401 369 377 74 183 33 138 440 324 174 213 426 416 351 345 434 114 71 423 131 147 263 331 81 308 502 64 232 227 532 FRY ON SrECIFIC rERFORMANCE OF CONTRACTS. Henderson, Willis v. 310 " Wilson V. 328 Hendon, Waller v. 2:i() Ilcndriekson v. Jones, 328 Henklc v. Royal Exch. Assur. Co. 311, 312 llennah, Fortescue v. 116 Henning, Chery v. 23!) " V. Mayo, 431 Henry v. (iraddy, 449 " v.Leles. 448 " Thornton v. 227, 258, 360 Henshaw, Eliason v. 138 Hepburn v. Auld, 347, 414, 448, 453 Hercy v. Bush, 04 Heru V. Nichols, 290 Herndon, Lewis v. 349 Heron, Lightfoot v. 114, 176, 178 Herr, Good v. 315 Hervan, Merriwether v. Ill Herric'k, Beam v. 279 Herriot's Hospital v. Gibson, 366 Herron, Forde v. 185 Hersey v. Giblett, 113, 163 Hertford, (Marquis of) v. Boore, 424 " " Gordon (Ld.)v. 305 Hervey v. Audland, 71 Hesketh, (Jrey v. 392 Hesse v. Bryant, 177 " Freer v. 252 Hever, Collert v. 92 Hewitt, Brooke v. 113, 380 Hewson, Hutchinson v. 246 Heycr v. Berger, 507 Heyworth, Moens v. 272 Hibbert v. Hibbert, 64 Hibblethwaite v. McMonie, 392 Hickman, Ilopcraft v. 159 Hicks, Butler v. 58 " Long V. 285 " Lovell V. 269, 271 " V. Philiips, 455, 494 " V. Seamau, ' 344 Higby V. Whitaker, 421 Higgins, Anderson v. 463 " Crocker V. 82,254 " Dunlop V. 146 " V. Senior, 122, 123, 129 Higginson v. Clowes, 299, 304, 305, 322 Higgs, Lukey v. 188 Hile, Merriwether v. 101 Hiles, Jenkins v. 461, 462, 465, 466 Hill V. Barclay 66, 73, 74, 383 " Buckley v. ISO, 203, 454 " V. Gomme, 93, 97, 100, 200, 401, 405, 407 " V. Gray, 291 " V. Green, 403 " Heapy v. 426 " Mott V. 197 " Paul V. 112 <' Poole V. 374 *' V. Ressegien, 45 " Simmons v. 366 " Triplett v. 101 " Troughton v. 132 Hills V. Croll, 340 Hilton, Alien v. 424 Hinchcliffe v. Hinchcliffc, Hinckman, Lucas v. " V. Smith, Hinde, Mallow v. " V. Martyr, " V. Pendleton, Ilinton V. llinton Hirst, Ranisden v. Hitchcock, Bridges v. " V. Giddings, " Underwood v. " V. United States Bank, Hobbs V. Hull, Hobson, Rist v. " V. Trevor Hodgdon, Fuller v. Hodges, Anson v. " Blagrave v. " V. Horscfall, " Owens V. Hodgkinson v. Wyatts, Hodgson, Barker v. " V. Hutchinson, Hoge V. Hoge, Hogg, Jenkins v. " Spence v. Hoggart V. Scott, Hogsheads, Robinson v. Hoke, Breckenridge v. Holbrook, Godwin v. Holden V. Hayne, Holford, Morgan v. Holgatc, Nelthorpe v 370 439 190 83 98 294 100, 102 457 501 309, 355, 356 154 91 508 245 475, 497 27 494 380, 502 168 374 328 209, 366 144, 146 509 241, 247, 295 113 199, 201, 475 451 488 334 87, 401 202 ,106,126,411,445, 447, 348 Holland v. Eyre, Hollier, Ravenshaw v. Hollingshead v. McKenzie, Hollins, Humphreys v. HoUis V. Whiting, Holman v. Johnson, Holmes v. Eastern Counties R. R. Co " Hawkins v. Holt Aubin v. " V. Holt, " Rogers v. Holyland, Ex parte, Homfray, Guest v. Hone, Itavis v. Honeyman v. Marryatt, Hood V. Bowman, Hook, Drury v. " V. Kinnear, Hooker, Fields v. Hooper, Ex parte, *' Feltcher v. Hoover, McKee v. Hopcraft v. Hickman, Hope V. Evans, " V. Hope, Hopkins, Howard v. " V. Maryck, Hopkiss V. Eckridge, Hopton, Jennings v. Horn, iJarrington v. Hornby, Dyson v. Home, Humphrey v. 139 372 227 81 251 213 174, 385 265 115, 164 60, 103 417 133 424, 425 306, 342, 309, 393 145, 231, 415 262 210 94 164, 456, 475 253, 201 86 106 159 407 70, 342, 507 72, 76, 113 315, 818 44 473 392 480, 484 440 TABLE OF CASES. 533 Ilorne, Whcclcr v. Horniblow v. Shirley, Ilorntaker, Robeson v. llorry v. (Jlovcr, Horsfali v. Garnott, " Hodges V. Hosier v. Read, Hotehkiss, Downey v. Hot ham, East India Co. v. " Stevens v. Hough V. Richardson, Houghton V. Lees, House V. Fort, Houston, Townsend v. Hovey, Morse v. Howard v. Babeock, " Bell V. " V. Braithwaite, " Harrison v, " Hoppins V. " V. Hudson, " In re, " V. Knightley, " V. Moore, " V. Okeover, " Williams V. Howe, Gammon v. " Southerne v. " Wilbur V. Howell V. George, " V. Howell, Howland v. Castle, " V. Norris, " Waters v. Howlett, Staats v. Hoy, Noel V. " V. Smithies, Hoyle V. Livesey, Hubbard, Boynton v. " Fuller V, " Steamy V. '•' V. Treherne, " V. Turner, Huddlestone v. Briscoe, Hudson V. Bertram, Hughes V. Morris, " V. Parker, Heeling v. Craig, Hull, llobbs V. " V. Pickersgill, " V. Vaughan, Hulme V. Tenant, 486 455 157, 228 56 136, i;;7 108 226 202 :S74 104, 195, riSO 270 71, 4'.)8 285 262 84 200 176, 201, 405 236 2!»8 72, 76, 113 149 102 444 173 225 60 77 285 210, 295 302, 392 485 295 452, 480 55 232 474 411 363 210, 211 366 228, 248 235 235 136, 232 I 415, 429, 436 506 164 413 508 239 391 133 Huntingdon v. Knox, Hurd, (Salisbury v. Hurry, Seargil v. Hurst, Burch v. Iluskinson, Monk v. " Rankin v. Ilusscy V. Dole, " Revell V. Huston V. Stable, Hudson, Howard v. " Jaquith v. Hutehinson v. Bokcr, " Bold V. " Costwaight r. " Dobcll V. " Fiild T. ' ' V. Ilewson, " Hodgson T. " Selby V. Hutt, Southby v. Hyde v. Skinner, " V. White, " V. Wreneh, Hylton, Ramsden v. 128 102 431 193 482 433, 435 82 173, 183, 360 298 149 75 139 149 45 243, 245, 452 225, 226 248 144, 146 356 444, 446, 463 501 497, 498 144 37T Ibbetson, Rhode v. Ide V. Gray, " V. Stanborn, Iggulden V. May, llbery, Smout v. Ilehester. (Lord) Ex parte r. Illingworth, Clayton v. Inchiquin, (Lord) Shelbourne (Lady) t. 312 Indenvick, Moxhay v. ISS Inge V. Birmingham &c. R. R. Co., 52, 58 " V. Lippingwell, 445 Ingilby, Campbell t. 76, 377, 579, 380 444 271 242 500, 501 274 405 49 Humbert v. Rector of Trinity Chureh, 413 Hume V. Bentley, " V. Long, Humes v. Thorpe, Humphrey, Fleming v. " V. Hollins, Humphreys v. Home, Hungerford xMarkct Co., Rex v " Mildmay V. Hunt V. .Johnson, " Morohead v. " V. Rousmanier, " Sampson v. Hunter v. Daniel, " Rutger V. Ingleden, Harris v. ' ]01 Inman v. Griswold, 400 Innes v. .Jaekson, 86 Inskip, Braybroke (Lord) v. 349, 476 Irick V. Fulton, 309, 488 Irnham (Lord) v. Child, 109, 319 Irvine v. Thompson, 236 " V. Stone, 232 Isaac, Habberdashers' Company t. 176 Isherwood, Gartside v, 176 " V. Oldknow, 80 Israel, Bannington v. 420 " Long V. 309 Ithell V. Beans, 98 Ives V. Hazard, 230, 233 " V. Metcalfe, 512 Izard, Deane v. 251 " Y. Middlcton, 257 Jackson, Akhiirst v. 362 " v. Ashton, ]-;} " V. Cartright, 262 Jackson's case, H3 5U FRY ON SPECIFIC PERFORMANCE OF CONTRACTS. Jaekso a, City of Detroit V. 128 Johnson v. Brook, 234 i< V. Cocker, 53 a V. Dodge, 237 C( Cooth V. 161, 174 ei V. Glancey, 258, 260, 262 iC Denton v. 91 a Henderson v. 232 t( Earth v. 209, 228, 255, 2()8 i( Holiuau V. 213 iC V. Edwards, 419 11 V. Johnson, 332, 422 240 202 507 354, 40!) 164 147 95 157,228, 233 235 478 135 166, 420, 451 400, 406 500 132 408, 409, 416, 417 488 98 106 75 509 227 445, 453 212 212 333 47 55 269, 289, 290 237 441 425 392 1 Mclbourn, Main v. Mclborno, Crompton v, Mellcr, Paine v. Mcllish V. Motteux, Melvin, McKay v. 261 460 358, 362 345 488 McMurtrie v. Bennett, 158, 162, 166, 198 254 McNaiighton v. Partridge, 317 McNeil V. Baird, 290 " V. Magee, 173, 365, 510 " Morris, v. 439 McPherson, Counder v. 430 " Eraser v. 236 McQueen v. Farquhar, 354, 453 McRaven v. Forbes, 440 McTyer v. Steel, 128 McWhann v. Burrows, 425 McWhorter v. McMahan 237, 448 Meach v. Perry, 255 Mead, Minard v. 125 Meale, Seagood v. 244 Means, Marshall v. Ill Merchants' Bank v. Central Bank, 127 Mechanics' Bank v. Debott, 48 " V. Lyman, 413 " V. Seyton, 81, 85, 86 " and Savings Bank v. Menden Agency, 217 Mechelin v. Wallace, 232 Mcdlicott, Toole v. 260, 268 Medlycott, Ainslee v. 149, 274 Meadows v. Tanner, 294 Meek, Newman v. 193 Meeker, Davis v. 280 Meers, Stanton v. 473 Menden Agency, Mechanics' Savings Bank v. 217 Mcndham, Boswell v. 353 Menro, Eyre v. 116 Mentor Life Assurance Co., Foster v. 1J9 Mcrcein, The People v. 507 Merchants' Exchange, Barry v. 216, 218 Merchants' Fire Ins'nceCo., Taylor v. 1-18 Merest, Morse v. 160, 417, 428, 513 Merrell, Bayly v. 284, 2.s6 Merritt, Amran v. 251 " v. Clayson, 235 Meriwether v. Carr, 3ts7 " v. Hitc, 101 Merriwether V. llerran, 111 Merlins, Lacon v. 100, 248, 201 Merton, Brumfit v. 444 Messenger, Hammond v. 48 Metcalf, Ives v. 512 Methodist Church V. Jacques, 131, 132 Meux y. Maltby, 80, 113 Mews V. Carr, 240 Mexborough v. Bower, 436 Meyer, Nesbit v. 363 Meynell v. Slurtees, 50, 112, 136, 139, 142, 143, 162 Miami Exporting Company v. United Slates Bank, 440 Mico, Haynes v. 369 Middleton, Cox v. 163, 286 " Crofts v. 133 " Hallett V. 390 " Izard V. 257 Middlesex Fire Isur'ce Co., Thayer v. 148 Midgley, Wood v. 225, 230, 245, 251 Midland R. R. Co., Sturge v. 50, 64, 170 Mighell, Gregory v. 258, 267 Mildmay v. Hungerford, 313 Mill, Portman v. 471, 475 Millard v. Ramsdell, 155, 166 Milledge, Milligan v. 84 Milligan v. Cooke, 203, 456 " Marsh v. 55, 166, 392 " V. Milledge, 84 " Sharp v. 236, 426 Millington, Askew v. 509 Miller v. Bear, 426 '• Buel v. 405 " V. Chetwood, 459 " V. Field, 160 " Gaul V. 318 " Legal V. 304 " Portland v. 488 " Prater v. 156, 16G " Woodward v. 295, 296 Millin, McMillin V. 425 Mills v. Lee, 509 Milnes v. Gery, 44, 160, 161 Milner v. Bickucr, 475 Milman, Morgan v. 50, 51, 88, 161, 255, 256 Milton v. McCann, 440 '• V. Story, 94 Milter v. Upton, 246 540 FRY ON srECIFIC PERFORMANCE OF CONTRACTS. Mihvard v. Thanet, (Earl of) 423 Morgan v. Holford, 202 Minis V. Minns, 84 " V. Milnian, 5 1,88, 161 J 255 256 Minard v. Mead, 125 " V. Morgan, 349 Minchin v. Nann, 486 " V. Shaw, 472 491 Minor v. liradlcy, 331 " Randall v. 150, 153 245 Minns, Minis v. 84 " V. Rhodes, 105 108 Minor, ex parte. 358 " Rickman v. 368 Minter, Bowie v. 84 " Wynn v. 473 Minturn v. Seymour, 173 400 Morison v. Tumour, 234 Mitchell, Ayres v. 409 Morlcy v. Boothley, 231 " Huckle V. 202 351 " V. Cook, 409, 446 457 " V. Cannon, 445 " Neil V. 134 " Carne v. 390 Morell, Cunningham v. 334 " Martin v. 133, 170 , 202 233 392 Morphet v. Jones, 253 258 268 •' V. Nicholson, 413 Morrice, Leake v. 251 " V. Reynolds, 210 " Twining v. 171, 172 177 " V. Wilson, 416 Morrill v. Aden, 366 Mitford, City of London v. 418 503 Morris v. Coleman, 169, 339 340 " V. Mitford, 378 " Baker v. 422 Mitty, Maples v. 95 " Hughes V. 506 Modisett v. Johnson, 153, 171, 193 " Leake v. 251 Moens v. Hayworth, 272 " V. McNeil, 439 Mohun, Backhouse v. 202 405 " Potmore, (Lord) V. 319 " Hamilton, (Duke of) V. 210 " V. Stephenson, 392 Mole V. Smith, 81 115 " and Essex R. R. Co.v Newark 218 Mouek, Broome v. 103 Morrison v. Arnold, 354 Monck, Brown v. 103 Morse v. Faulkner, 499 Monk V. Huskins, 482 " V. Hovey, 84 Monkwearmouth, Allison v. 63 " V. Merest, 160, 417, 428 513 Monerief v. Goldsborough, 275 " Smith V. 216 Money v. Jorden, 149, 151 Mortimer v. Capper, 197, 362 Monro t. Taylor, 156, 158, 345, 402, 414, " V. Cornwell, 237 428, 463 480 " McCallan v. 215 Montacute (Viscountess) v. Vlaxwell, 151, " V. Pritchard, 300 317 249 " V. Orchard, 267 Montefion v. Montefion, 149 " V. Shorhall, 312 Montgomery, Brown v. 291 Mortlock V. BuUer, 44, 115, 177, 180, 181, " V. Norris. 166 203, 237, 473 " V. ReiUy, 153 Mott, Dutch Church v. 347 " Robb V. 334 387 Motteux, Mellish v. 345 Moon V. Gillespie, 171, 328 Mosely v. Boush, 48 Moore V. Blake, 422 " V. Virgin, 65 ,66, 411 " Blanchard v. 298 Mosby V. Halls, 310 " Clarke V. 306, 402, 426 Moses, Snell v. 281 " V. Crofton, 407 Moss V. Bainbrigge, 93 " Dillardv. 285 " V. Elmendorf, 204, 207, 448, 451 " V. Edwards, 226, 228, 248 " V. Hanson, 347 " V. Fitzrandolph, 200 " V. Matthews, 471, 473 " V. Fitzwater, 509 Mostyn, Boardman v. 437 " V. Foley, 501 Moulton, Frost v. 230 " V. Hart, 152, 153 Mounsey, Ashworth v. 464 " Howard v. 173 Mount V. Harris, 360 " Maekay v. 236 Moxhay, Inderwick v. 188 " V. Piatt Co. 75 " Tulk V, 116 " Read v. 337 Moyses v. Little, 105 " V. Smedburgh, 237 Mudd, Jones v. 479 " Stokes V. 235 Mulgrave, (Countess of) Coly car \ , 93 More V. Morecomb, 396 " (Lord,) Sheffield \ . 348, 349 Morecomb, More v. 396 Mullikin v. Mullikin, 114 Morehead v. Hunt, 294, 295 Mulrihill, Butler v. 178 Moreland v. Lancaster, 258, 260 Mumfordv. Oxford R. R. Co 'f 88 Morford, King v. 422 Mummery v. Paul, 63 Morgan v. Birnie, 160 Mundy v. Jolliffe, 254 260 267, 386 " V. Bliss, 271 Munn, Worrall v. 237 " Bradley v. 166 i Munt, Grant v. 284, 459 " Corderv. 81 " V. Shrewsbury & e. R. R. C 0., 223 " V. Elam, 1311 Munton, Bradley v. 462 TABLE OF CASES. 541 Munroc, United States v. 310, 312 Murray, Batcinan v. 603 " V. Uallou, lU " V. Parker, 310, 312 " ShotwcU V. 314, 315 Murphy v. Clark, 68 Morrison v. Arnold, 101 Musehanip, Arglasse v. 70 Musgrove, Robinson v. 445 Musscll, Cooke V. 228 Mj'ers, Caldwell v. 60 " Ducal V. 198 " V. Watson, 366 Mynn, Lyde v. 497, 498 N Nagle V. Baylor, 178 Nann, Minchin v. 486 Napper, Lennon v. 46, 603 Nash, City of London v. 63, 65, 184, 215, 449 " Goring v. 96, 337 ■ <' Shelly V. 191 " V. Smith, 84 National Exchange Co. v. Drew, 273, 276, 296 Naylor v. Winch, 216, 317 Neal V. Loga.n, 448 Neale, Chandler v. 99 " V. Mackengie, 180, 203, 204, 38] " V. Neale, 259 " Smith V. 145 Neap V. Abbott, 302 Ncedham v. Kirkenan, 116 «' V. Smith, 116 Neil V. Morley, 134 Nelson v. Bridges, 451, 460 " V. Carrington, 422, 448 " Chiles V. 147 " Dana v. 441 " Reynolds v. 420, 421, 441 " Vail V. 365 Nclthrope v. Holgate, 55, 86, 106, 126, 411, 447, 448 Netterville, Colt v. 64 Nesbit V. Meyer, 363 Neufeille v. Stuart, 140, 244 Neville, Taylor v. 62 " V. Wilkenson, 149 Nevitt V. Gillespie, 47 New Barbadoes Toll Bridge v. Vree- land, 347, 423 New England Ins. Co., Hazard v. 138 New Haven, Whitney v. 68 New London Bk. v. Lee, 82 New York and Erie R. R. Co., NicoU v. 388 Newark Plank Road Co. v. Elma, 216 " Morris and Essex R. R. Co. v. 218 Newberry v. James, 62, 433, 505 Newborn v. Bronson, 71 Newby, Painter v. 411, 460 Newcastle, (Duke of) Clayton v. 391 Ncweomb v. Brackett, 366 " V. Clark, 125, 126 Newcomb v. Kline, 316 " Grower v. 278 Newdigatc, Lane v. 67, 425 Newhall, Looniiu v. 232 Newham v. May, 400 Newland, Beckley v. 44, 496 Newman, Day v. • I'ji " v. Meek, 193 " v. Rogers, 416, 417 Newmarch v. Brandling, 435 Newmarket R. R. Co., Gage v. 389 Newton, Alexander v. 310, 316 " Davis V. 114 " Paxton V. 65, 393 " V. Kwazey, 44, 100, 228 Nichols, Hern v. 295 " Pierce v. 347, 369 " V. Pinner, 292 Nicholson, Beatson v. 147, 228, 389 " V. Knapp, 438 " V. Mitchell, 413 Nickles v. Hancock, 183, 336, 510, 511, 512 NicoU V. New York and Erie R. R. Co. .388 Niinens v. Davis, 105 Nixon, Weddall v. 368, 490 Noah, Webb v. 210 Nobles V. Bales, 75 Noe, Reed v. 451 Noel V. Hoy, 474 " Ord V. 180 " Margravine v. 468 Nokes, Dolman v. 292 " V. Kilmorey, (Lord) 420, 422 Norfleet, Prathers V. 36O " V. Southall, 160 Norfolk (Duke of) v. Wortley, 445, 457 Norman, De Medina v. 3y2 Norris v. Howland, 462, 480 " Montgomery v. 166 " Schneider v. 235 North V. Ansell, 377 " Bright V. 224 Northcote v. Dake, 74 North American Coal Co. v. Dyett, 131 North British R. R. Co., Tod v. 366 Northern Coal Mining Co., Walters v. 363 North Eastern Metropolitan District Asylum, Gibbins v. 142, 233, 473 North River Steamboat Company, Roor- bach v. 105 North StafiFordshire R.R. Co.,Bostock v. 221 " " Heath- cote V. 434 North Western R. R. Co., Lancaster f\^Q ^^-^ Reients Canal Co. v. Ware, 52, 387, 48U, 4»i Reid, Watson v. j^2 Reilly, Cooper v. j53 " Montgomery v. 235 Remfry, Cowrie v. 3'^ Renshaw, Gans v. ^gg Reside, Wightman v. ^^ Ressegicu, Hall v. ^g^ g^g Revell V. Hussey, , . r„ ' 51 Rex V. Hungerford Market Co., << V. March, <« V. Scammonden, Rcynell v. Sprye, Reynolds, Green v. (( Jenkins v. (( Lachlam v. << Mitchell v. (c V. Nelson, (c V. Pitt, (c V. Smith, << V. Waving, c< Winne v. Rhode Island v. Mass., Rhodes v. Cousins, <« V. Ibbetson, Riccard, Nott v. Rice, Bridger v. «' Hawley v. Rierasdyck, Clark v Rigby, Street V. Riggs V. MandeviUe, Right V. Cuthell, Ring, Barrett v. Ripley v. Whitman, Rippingalc, Floyd v. Rist v. Hobson, Ritchie, Atkinson v. Roake v. Kidd, Robb V. Montgomery, Robbins v. Jones, Roberts v. Berry, " Bryant v. «< Crane v. Jones V. Massey v. V. Marchant. Pettibone v. V. Taylor, »« V. Wyatt, T, T, p„ 89 Robertson v. Great Western R. R. Co., 82 v. Hogsheads, ^^1 V. Robertson, ^°' V. Skelton, 483. 486 Robeson v. Hornbaker, i^'' ft? 239 513 90 156 180 362 415 245 209, 365 348 334, 387 417 416 66 139 387 480 100, 101 356 216 407 Robins, Griffiths v. Robinson, Atkinson v. <« v. Bland, '< Bridges v. 212 425 211 484 CatEt ;. 182,193,195,440,441 V. Green, ^^^ Musgrove V. McRimmellv. ;J'- V. Page, 307, 32o, 40o, 406 Perry, V. Sampson, V. Smith, Stanley v. V. Stonewell, v. Wall, I Robson V. Collins, Roch, Thayer v. „, ,. ^ Rochester R. R. Co., Clark V. Rodman v. Zilly, 1 Rodway, Sanders v. 1 Roe, Jones v. 501 297 89 176 412 294 402 432 182 195 507 44, 49e 54G FRY ON SPECIFIC PERFORMANCE OF CONTRACTS. Roebuck, Calcraft v. 466, 485 Roffey V. Shotcross, 329 Rogers Atkinson v. 310, 327 Barry v. 84 Crow V. 93 Holt V. 417 Kneeland v. 232 Newman v. 416, 417 Patton V. 471, 472, 476, 479 Pollard V. 290 V. Rogers, 507 V. Saunders, 198, 233, 413, 420 Rokeby, (Ld.) Bealcs v. 101 " Binks, 456, 460, 486, 488 Rolf V. Harris, 74 Rolfe V. Peterson, 78 Romaine, Bryne v. 254 Ronald, Johnson v. 243 Rondeau v. Wyatt, 247 Rook V. Warth, 60 Roorback v. North River St'mb't Co., 105 Roosevelt, Dana v. 309 " V. Fulton, 328 Boots V. Dormer, (Ld.) 331 " Pope V. 361 Roper V. Bartholomew, 72, 78 " Wiseman v. 496 Rose V. Calland, 350, 465 " V. Clarke, 48 *' V. Cunyngham, 242 " Doogood V. 374 " Priddy v. 378 Rosenbaum V. Gunter, 232 Ross, Linn v. 362 " Pengall v. 255 " Taylor v. 232 Rosse, Earl of Sterling v. 407 Rothschild, Doloret v. 50, 53, 55, 417 Round, Oldfield v. 343 Roundell v. Breary, 371 Roundtree v. McLean, 55 Rousmanier, Hunt v. 310, 314, 316 Rounthwaite, Brook v. 278, 294, 458 Routledge v. Grant, 139, 143 Rowan, Baker v. 83 Rowcliffe, Wood v. 61 Bowe v. Hanson, 239 •' V. Teed, 228 " V. Wood, 609 Rowland v. (jarman, 84 Rowley v. Adams, 484 " Lamat v. 318 Royal Exchange Assurance Co., Han- kie V. 311, 312 Royal Mail Steam Packet Co., Do Rothschild v. 483 Rucker v. Liddell, 488 Ruddle, Cass v. 362 Rufford, Beman v. Ill, 224 Buggies, Coolridge v. 44 Ruill, Barrett v. 227 Bunker v. Sharp, 407 Runnels v. Jackson, 413, 416 Rushout, Great Western R. R. Co. v. 224 Russ, Schuy'er v. 286 Russell V. Clarke, 83, 255, 274 Russell V. Darwin, 501 Russell V. Tapping, 216 Rutgers V. Hunter, 501 Rutland, (Countess of) Wakeman v. 101 Rutlcdge V. Small, 488 Rutter, Cuddee v, 392 Ryan v. Daniel, 499 s Sadd, Simpson v. 470 " V. Skelton, 471 Sadler, Bennet v. 109 Sage V. Ranney, 334 " V. Wilcox, 232 Sainter v. Ferguson, 71, 76 Sainsbury v. Jones, 495 Salisbury, (Earl of) Finch v. 74, 113 " Gorman v. 405 " (Marquis of) v. Great Northern R. R. Co. 51 Salisbury v. Hatcher, 201, 474 " V. Hurd, 102 Salmon Taylor v. 89, 126 Salter, Baldwin v. 347, 359 Saltus V. Tobias, 227 Samons, Cutler v. 468 Sampson v. Hunt, 48 Sandford v. Washburn, 328 Sanders v. Pope, 74 '' V. Rod way, 507 Sands v. Taylor, 281 Sanquirico v. Benedetti, 63,168 Saratoga, &c., R. R. Co., Underbill v. 385 Sargeant, Fitch v. 403 " Mancius v. 408 Sargent, Buckbee v. 84 Sari V. Bourdillon, 157 Sarll, Wallis v. 489, 490 Sarter v. Gordon, 56, 57, 167 Satcliffe, Shackleton v. 343 Saunders v. Cramer, 113, 153 " Gerrard v. 115 " Jackson v. 405 " Potter V. 113, 146 " V. Richards 92 " Rogers v, 198, 233, 413, 420 " V. Simpson, 44 " V. Turbeville, 360 " V. Wakefield, 231 Sanderson v. Cockermouth, &c. R. R. Co. 67, 167 Saunderson v. Jackson, 234, 235, 242, 243, 254 Savage v. Berry, 441 " v. Brocksopp, 172 " V. Carroll, 103, 258, 268 " V. Eams v. 356, 366 " V. Fbster, 255, 260 " Simpson v. 88 " V. Taylor, 172 " Wood V. 245 Savcry v. Spence, 58 Savile v. Savile, 194, 197 Savill V. Tancrede, 55 Sawin, (Haymaker v. 133 Sawkins, Jordan v. 109, 220, 227, 406 TABLE OF CASES. 547 Sawyer, Noycs v. 82 Scale, Baxendale v. 174, 176 Scainmondon, Rex v. 325 Scargill V. Hurry, 430 Schciiierhorn, (nirdiner v. 318 Schneider v. Heath, 2S7, 345 " V. Norris, 233, 235, 23f> Schoonhoven, Grant v. 84 Schofield, Kenworthy v. 240 Scribner, "Eveleth v. 366 Scott V. Anderson, 453 " V. Burton, 298 " V. De Peyster, 218 " V. Fields, 415 «' Haggart v. 199, 201, 475 " V. llanson, 278 '< V. LangstaflFe, 109 " Palmer v. 201 " V. Scott, 149 " Stapletonr. 308,411,452 " V. Tyler, 201 " Woods V. 86 Scotton, Andrews T. 358 Schuyler v. Russ, 285 Seagood v. Meale, 244 Seale, Baxendale v. 302 Seaman v. lliclis, 314 " V. Vawdrey, 351 Sears v. Brink, 231 " Packard v. 149 Searth, Wood v. 244, 308 Scary, Reardon v. 422 Seaton v. Booth, 331 " V. Mapp, 417, 419, 443, 444 Seaward v. Willock, 374 Sebree v. Harper, 488 Sedgwick, Jackson v. 403 Selby V. Hutchinson, 356 " Lysney v. 282 " V. Selby, 235 Selden v. James, - 488 Senior, Higgins v. 122, 123, 129 Secrest v. Makenna, 365 Serjeant, Parker v. 146 Serle, Norton v. 55 Serra, Basevi v. 378 Seton V. Slade, 202, 233, 413, 415, 429 Seymour v. Delancy, 153, 171, 173, 182, 195, 347, 349, 359 " V. Minturn, 173, 400 " (Lord) Nurse v. 127, 367 *' Seyton, Mechanics' Bank v. 81, 85, 86 Shackle v. Baker, 63, 133 Shackleford, Jones v. 448 Shackleton v. SutlifiFe 343, 453 Shadwell, Rawdon V. 211,212 ShaefFer, Pollard v. 362 " V. Slade, 271 Shakespeare, Sherwinv. 478, 483, 484, 485 Shannon, Bradstreet v. 200 255 Shapland v. Smith, 348 Sharp V. Alcock, 350 " V. Carter, 110 " V. Milligan, ' 236, 426 " Rinkcr v. 407 " V. Taylor, 439 Sharpc, Carrodus v. Shaw V. Fisher, " V. Livermorc, " V. Mack ray, " Morgan V. " V. Nudd, *' V. Thackray, " Williams v. Shearwood, Hare v, Sheffield v. Mulgravc, (Lord) " &v. Co. V. Harrison, Sheldon, Hawlcy v. Shelbourne (Lady) v. Inchiquin (Lord) 312 Shelly V. Nash, lyj " V. Smith, 328 Shclton V. Church, )yg Shepherd, Cannaday v. ]y2 " V. Keally, 4^5 " V. Shepherd, 7^ " Watts V. 74 Shergold, Poole v. 332, 347 Sherwin v. Shakespeare, 478, 483 484, 485 480 54, 87, 401, 462 44 178 472, 4'Jl 237 113 411 319 348, 349 04 198, 440 Shilito, Clapham v Shipley, Woodhouse v. Shields, Davis v. Shirley v. Davis, " Horniblow v. " V. Shirley, " V. Stratton, ShorhoU, Mortimer v. Shore, James v. Short Wilson v. Shotcross, Roffey r, Shotwell, French v. " v. Murray, Shrader v. Walker, Shrove, Scott v. Shrewsbury (5 158 St. Georges' Harbor Co., Williams v. ll'J, 121 St. John V. Benedict, 173 St. Paul, lirodic v. 139 St. Paul's (Dean Ac. of),Bcttersw'th v. 394 Staats V. Howlctt, 232 Stace, Blackburn v. 493 Stackpole v. Arnold, 125, 127 " V. Beaumont, 210 Stadt V. Lill, 231 Stafford, Carey v. 393 Staight, Tomkinson v. 252, 268 Stulele, Huston v. 298 Stambridge, Jolland v. 115 Stanbom, Ide v. 242 Stangroom, Tovvnshend, (Marquis of) V. 299, 312, 319, 325 Stanion, Doe d' Grey v. 164 Stanhope's (Lord) Case, 45(5 Stanley v. Chester &c. R. R. Co. 88, 117, 395, 401 " V. Robinson, 176 Stanton v. Tattersall, 345, 346, 467 " Pentry v. 125 Stapely, Batcher v. 258 Stapilton v. Stapilton, 174 Stapylton v. Scott, Z08, 411, 452 Statham, Hughes v. 505 " Joynesv. 303, 324 State V. Mayor of Mobile, 216 States, Vauillon v. 312 Stearns v. Hubbard, 228, 248 Stebbins, Gram v. 54 Steele v. Ellmaker, 295 " McTyre v. 128 " V. Steele, 101 Steers, AViggleworth v. 178 Stein, Jameson v. 149 Stent V. Bailis, 361 Stephens v. Cooper, 126 " V. Hotam, 104, 195, 380 " Lord V. 371 " V. Olive, 508 " V. Trueman, 96 Stephenson, Esdaile v. 455, 476, 479, 481 " V. Maxwell, 488 " Morris v. 392 Stern v. Drinker, 246 Stevens v. Adarason, 344 " V. Bagwell, 112, 211 " V. Benning, 107 " Creed v. 209 •« Dobell V. 286 " V. Guppy, 468 '' V. Lynch, 318 Stevens, Maxwell v. 488 Stevenson v.Tandle, 10.3 Stewart v. Alliston, 42, 157, 445, 446, 457 " Denton v. 255, 39(1, 494 " IVnIy V. 123, 126 " V. llaytnond 11. R. Co., 365, 374 " V. Smith, 421 " Williams v. 4ft Stihbert, Taylor v. 11."$ Stickncy, Pliii>pcs v. 295 Stiles v. White, 277 Stilwell v. Wilkins, 193, 194 Stocken v. Collin, 146 Stocker v. Dean, 108 " v. Broklebank, 69 " v.Wcddcrburn, 64, 200, .333, 341 Stockett, Walkins v. 298 Stockley v. Stoeklcy, 259, 260, 313 Stockton V. Cook, 114 Stockton and Hartlepool R. R. Co. t. Leeds and Thirsk R. R. Co., 434 Stokes V. Moore, 235 Stone V. Commercial R. R. Co., 51 " Gwillin V. 495 " Irvine v. 232 " Kimpshall v. 451 " Raymer v. 62, 66 " V. Littledale, 111 Storie, Ball v. 300 Storer v. Great Western R. R. Co., 67, l.HtJ Story V. Walsh, 484 Story V. Livingston, 8.3, 85 " Milton V. 94 " V. Norwich and Worcester R. R.Co., 510,511 Stourton v. Meers, 47.? Stow, Best V. 270, 310 Stowellv. Robinson, 412 Strachan v. Bander, 211 Stradling, Wills v. 253, 260, 261, 263 Strange, Partridge v. . 110 " Price V. 350 Strasbourg R. R. Co., Elchternact v. 54 Stratford v. Bosworth, 136, 163, 230 Stratton, Shirley v. 177, 452 Strauss v. Eagle Insurance Co., 218 Street v. Rigby, 513 Strickland v. Fowler, 425 " v. Turner, 356, 364 Strode, Casamajor v. 331, 332, 455 " Evans v. 316 " Osgood V. 96 Strong, Bailey v. 48 " Biggv. 238 " v. Williams, 370 Strother, Skipwith v. 211 Stuart, Ely (Dean of) r. 189 " (Lord James) v. London and Northwestern R. R. Co., 49, 170, 187, 200, 425, 428 Stuart V. Luddington, 272 " v.Neufvillo, 140,244 " v. Wemplo V. 306 Stubbleficld v. Paterson, 193 Stubbs, Wall v. 110, 274, 279 Stucky V. Clyburn, 285 Studholmos v. Maudcll, 396 550 FRY ON SrECIFIC PERFORMANCE OF CONTRACTS. Stukeley v. Kien, 197 Stiiiiip, Breedlove v. 114 Sturge V. Midland R. R. Co., 50, G4, 170 Stutelcy, Beeston v. 207, 392 Stuyvcsant v. Davis, 388 " Mayor Ac. of New York, 47, C3 6ucee.ssion of Triinmel, 95 Sullivan v. Fink, 55 " Waleott V. 440 Summers v. Bean, 60 Sutherland v. Briggs, 202,203,260,207,268 " v. Crane, 298 Surcome y. Pinniger, 245, 259, 260, 264 Surtees, Mynell v. 112, 136, 139, 142, 143, 150. 162 Sutliffe, Shakleton v. 453 Sutton, Blore v. 163, 236, 495 " V. Chetwynd, 97 " Ex parte, 380 Swaine, .Simmonds v. 396 Swan, Picynet v. 85 Swannock v. Lifford, 115 Swartwout, Beebee v. 315 Swazey, Newton v. 44, 100, 228 Sweed, Limondson v. 247 Sweet v. Lee, 231, 233 Swett v. Colgate, 280, 281 Swinfen v. Swinfen, 509 Swift, Durst V. 75 " Lowe V. 88 Sworder, Abbott v. 195 Symmons, Mackreth v. 495 Symonds, Davis v. 172, 173 " V. James, 444, 446 Symondson v. Tweed, 227 Sykes, Gilbert v. 211 Tadman v. Ferguson, Taggart, Caldwell v. Talbot, Ballou v. " v. Bowen, " V. Ford, Talk V. Moxhay, Tallman v. Franklin, Talmadge, Cotheal v. " v. Wallis, Tandle, Stevenson v. Tancrede, Savill v. Tanner, Meadows v. " V. Smith, Tappen, Uasbrouck v. Tasburgh, Clearmont v. Taswell, Parker v. Tate v. Greenlee, Tattcrsall, Stanton v. Tatham v. Piatt, Tayloe v. Merchants' Fire Taylor v. Ashton, " Baxter v. " v. Beech, " v. Brown, " CocKell V. " V. Davis, " Fat'- V. " V. Fleet, " V. Gilbertson, Taylor, Jones v. 274 " Longworth v. 349, 365, 426 « Monro v. 156, 158, 345, 402, 414, 428, 463, 480 178 62 509 169 191 211 232 86, 126 281 " V. Ncvill, <' V. Patrick, " V. Portington, " Potmore, (Earl of) v " Roberts v. " v. Ross, " V. Salraen, '•' Sands v. " Savage v. 172 <' Sharp V. 439 " Shute V. 75 " V. Stibbert, 113 " Waters V. 169 Teal V. Bramley, 492 Teas, Doyle v. 365 Tees, Erving v. 237 Teed, Rowe v. 228 Telfair v. Ral, 102 " V. Telfair, 74 Tenant v. Elliot, 216 " Hearne v. 416 " Hulme V. 132 Ten Broeck v. Livington, 455 Tending v. London, 474 Ten Eyck, Baker v. 211 Terry, Dismukes v. 328 " Weed V. 258 Terwilliger, Mathews v. 318 Tewksberry v. Hayes, 94 Thackeray, Shaw v. 113 Thayer v. Middlesex Fire Ins. Co., 148 '< V. Roch, 232 The Bank of British North America, 127 The County of Bristol, Tobey v. 390 The Hartford and New Haven R. R. 451, 486 Co. V . Jackson, 140 82 The New England Ins. Co, v. Dc Wolfe 127 129 The Pa Alto V.Davis, 143 227, 237 The People v. Mercien, 509 189 The State Bank, James v. 304 116 Thody, Cutts v. 85, 429 242 Thomas V. Bl.ackstone, 138, 425 76 Thomas v. Burnie, 183 71 i( V. Dering, 179, 205 ,206, 232, 448 193 a Glassel v. 406 55 a Owen v. 156, 158 294 li V. Thomas, 487 409 li V. Todd, 229 404 <( V. Wesley v. 298 288, 457 is V. Williams, 232 167 Thompson v. Ashton, 281 422 ii Baker v. 356 345, 346, 467 ii v. Blackstone, 180 170 a v. Botts, 285 Ins. C D., 148 ^ '' Whitney v. Allaire, 28;'> " V. New Haven, 08 Whittakcr, Darbey v. 63, 159, 100, 101 " ■ Iligby V. 421 " V. llowo, 64, 340, 433 " O'Killv. 318 Whitton, Squire v. 158 Whitworth, Brookes v. 93 Whorwood, Attorney General v. 371 Wiehani v. Evered, 491, 49:5 AV'ienholt, Logan v. 77, 1 10 Wightinan v. Reside, 48S Wigglesworth v. Steers, 178 Wigiey V. Blackwal, 395 Wigsfell, Francis v. 130 Wilbrahani v. Livesey, 404 AVilbur V. Howe, 210, 295 Wilcox V. Bellairs, 348, 475 " Sage V. 2;!2 Wilde V. Frost, 412 " V.Gibson, 209,277,290,290 AVilcy V. Episcopal Church of Macon, 240 Wilkes, Redding V. . 205 " V.Wilkes, 507 Wilkins, Stillwell v. 193, 194 Wilkinson, Cohen v. 224 " Newville v. 149 " V. Torkington, 303 " V. Wilkinson, 44, 100 " AVilmot V. 374, 403 AVilks V. Buck, 239 " V. Davis, 101 Willan V. Willan, 171, 172, 500 Williams v. Beckham, 131 '• Brettelv. 242 '■ Caldwell v. 99 " Calvcrley v. 308, 310 " Carr v. 310 " V. Chrislee, 120 " Dakin v. 77 " Eadsv. 162,423,424,429 " V. Edwards, 459, 495 " Ex parte, 93 " V. Gihon. 210 " V. Howard, 60 " James V. 2:51 " V. Lambo, 115 " V Lewis, 427 " V. Lucas, 371 " ]\iacnamara V. 81 " Price V. 513 " Pyrkc V. 258 " V. Shaw, 411 " Sohier v. 354, 479 " v. Stewart, 40 " v. St. George's Harbor Co., 119, 121 " Strong v. 370 " Thomas v. 232 " v. Williams. 02,142, 424, 433,505 " Wilson v. 203, 447, 448, 456, 458 " Wynn v. 115 Williamson v. Wooton, 170 Willcts V. Busby, 92 Willing V. Consequa, 281 Williugham v. Joyce, 380, 381 Willington, Warner v. 136, 137, 143, 145, 158, 244 Willis V. Henderson, 310 Willock, Seaward v. 374 Wills V. Stradling, 253, 260, 261, 263 Wihnotv. Wilkinson, 374, 403 Wilson, Bailey v. 559 *' V. Cfapham, 479, 485 " Clarke v. 491 " V. Clements, 142 " Colton V. 354 " Cotton V. 101 " V. Ferguson, 286 " Fletcherv. 413 " Fuller V. 273, 296 " Graves v. 443 " Gregory v. 382, 383, 388 " V. Hart, . 124 " V. Henderson, 328 " V. Kearse, 199 " V.King, 420,428,45.3,459 •' Mitchell V. 418 " Packard V. 2;'.2 " V. Pouller, 2:^9 " V. Short, 111, 284, 286 " V.Spencer, 209 " V. Tliurman, 239 " V. Williams, 203, 447, 448, 450,458 " V. Wilson, 70, 437, 507, 508 " Wright V. 193 Wilton V Harwood, 228 Winch, Nay lor v. 316, 317 " V. Winchester, 322 Winchester, Adair v. 48 Wing V. McDowell, 478 Wingate, Dail v. 228 Winnie v. Reynolds, 346, 449, 455 Winningcon v. Briscoe, 209 Winston, Price v. 498 Winter v. Blades, 481 Winter, London, &c. R. R. Co. v. 255, 306, 308, 322 Wintermute v. Snyder, 193, 315 \V'irtz, Joy v. 83 Wisden, Pcgg v. 420, 429, 409 Wise v. Ray, 2:54 AV^isenian v. Roper, 496 Wiswall V. McGow, 166, 420, 451 Withy V. Cottle, 51, 53, 417, 471 Wolfe V. Luyster, 295 Womack, Gould v. 45 Wood V. Abrey, 190 " V. Ashe, 286 " Ashton V. 448, 403 " V. Bank of Kentucky, 91 «' Boehm v. 439, 471 " V. Bowe, 509 " Bristow V. 354 «' V. Burnal, 429, 456 " Fraser v. 474 " V. Genet, 132 " v. Goodridge, 233 " v. Griffith, 110, 183, 214, 511, 512 " Kellogg v. 361 TABLE OF CASES. 555 Wood, King vi " V. Machu, " V. Midgley, 22a " Norton v. " V. Perry, " V. llichardson, " V. lloweclili'c, " V. Savage, " V. Searth, " Tucker v. " V. White, Woodcock V. Bennett, Wooden v. Haviland, Woodeson, Gates v. Woodhouse v. Shipley, Woodin, Flint v. Woods V. DiUe, " Gray v. " V. Hall, " V. Russell, " V. Scott, Woodruff V. Farnham, Woodson V. Barrett, Woodward v. Aspinwall, " V. Giles, " V. Harris, " V. Miller, Woodyatt v. Gresley, Woodyear, Wallis v. Woolam v. Hearn, Wooley, Bryan v. Worley v. Frampton, Wormley v. Wormlcy, Worrall v. Jacob, " V. Munn, Worthington, Case v. " V. Warrington, Worthy, Norfolk v. Wotton, Williamson v. Wren v. Pearse, Wrench, Hyde v. Wright V. Bell, " V. Bigg, " V. Bond, " Clerk V. " Eastman v. " Frerae v. " Hargreaves v. " V. Howard, *' 'v. Kiu2, 230 Wright, Margetson v. 284, 285 471, 492 " McComb V. 240 230, 245, 250 151 365 180 61 245 " V. Petric, " Turner v. " V. Wilson, " V. Wriglit, AVroughtman, Hyde v. Wyatt V. Barwell, 333 438 193 497 473 115 244, 308 136 81 " V. Hodgkinson, " Roberts v. " Rone Pleading.) ARBITRATORS, price to be ascertained by, 159, 100. agreements to refer to, not enforced, 513. A'SSIGNEES. (-See Bankkuptcy.) ASSIGNMENT of contract, 104. by way of mortgage, 106. exceptions to assignability of contracts, 106. where contract personal, 106, 123. where a proviso against assignment, 109. where illegal, 109. of contract affected by fraud, 287. offer not assignable. 111. of the property, HI. ATTORNEY, agreements for the sale of business of, 62. contracts, in absence of, 176. acting for both parties, 177. how far agent to sign an agreement, 240. AUCTIONEER, an agent for both parties at the auction, 236. secus in private contract, 236. clerk of, an agent, 240. selling without authority, 300. AUTHOR AND PUBLISHER, contract of, is personal, 103, 107. INDEX. 5o9 AWARDS, unreasonableness in submission, a defense, 183, 511. award often no defense, 183, 511. illegality in, a defense, 210. void as to one alternative, binds as to the other, 395. jurisdiction in enforcing, 510. where not binding at law, 510 grounds of defense, 511. where award excessive, 511. B BANKRUPTCY court no jurisdiction in specific performance, 41, n. assignees in, when parties, 89. Avhat contracts do not pass under, 107, 109. what contracts by assignees not enforced, 180. assignees enforcing contracts must covenant personally, 379. secus, when enforced against them, 380. of plaintiff a bar to suit, 380. BARON AND FEME. (5'ec Feme Covert, Marriage, Skparatiox Deed.) contracts between, enforced, 43. contract by, to sell. 199, n. not enforced, where wife refuses, 392. BILL. (See Pleading.) BOND. (See Penalty.) condition of, an agreement, 76. BREACH OF TRUST, no contract necessitating, enforced, 179. by quasi trustees, 180. by railwa}^ directors, 180, BUILDING CONTRACTS, formerly enforced, 58. when not enforced, 64. when enforced, 65. CESTUIS QUE TRUST. (See Parties.) CESTUI QUE VIE. (^-ee Death.) CHAMPERTY, assignments void for, 110. CHARTER PARTY, specifically performed, 54. CHATTELS, contract for. not generally enforced, 54. enforced where part onl}' of contract, 54. 5 GO FIIY ON SPECIFIC PERFORMANCE OF CONTRACTS. CUATTELS— Continued. where chattels unique, 54. ■where defendant alone can supply plaintiff's requirements, 55. where savoring of realty, 55. where trust constituted, 58. enforced, where delivered by installments, 61. warranty in contracts for sale of, 355, 35G. CHOSE IN ACTION, agreements to assign, 43. CIVIL LAW did not specifically perform contracts, 41. ' rule of, as to inadef.) PARTIAL EXECUTION OF CONTRACT. (See Incapacitt.) PARTIES. (See Agent, Assigxmkxt, Incompletexess of Contract, Mortgagee, Mortgacjor.) parties to contract parties to suit, 81, [note 1.] conveyance, 81. judgment creditors, 81, and n. having adverse rights, 82, 90. having no interest, 82. sub-purchaser, 82. parties to a new contract, 87. reversioner, 87. remainderman, 88. assignees in bankruptcy, 89. some suing or being sued on behalf of all, 89. purchaser of adjoining lot, 90. trustees, 92. cestuis que trust, 92. issue in cases of marriage contracts, 94. collaterals in like cases, 95. appointees, 9G. death of party, 137. vendor, 100. purchaser, 101. proposed lessee, 103. contractor where personal qualities are required, 103. heir of vendor, 100. when an infant, 101. of purchaser, 101. devisee of vendor, 100. purchaser, 101. widow of vendor, 101. executor of vendor, 100. purchaser, 101. proposed lessee, 103. assignee of agreement, 104. (See Assignment.) assignor of agreement, 104. assignee of the property. 111. agents, 122. (See Agents.) PARTITION, agreements for, possession may be part performance of, 259. PARTNERSHIP, agreements for, when enforced, 504. 576 FRY ON SPECIFIC PERFOEMANCE OF CONTRACTS. PARTNERSHIP— CVn/i/iuetZ. when not enforced, G3, 504. when silent as to capital, 1G3. « when illegal, 504. articles varied by course of dealing, 402. enforced by injunction, 433. PART PERFORMANX'E, a ground of jurisdiction, G6. .^ what acts are not, 67. renders court unwilling to entertain objections to the contract, 154, 210. met by plea and answer, 226. marriage is not, 249. takes agreement out of Statute of Frauds, 249. essentials of, 251. acts must refer to an agreement, 251. cannot show the terms, 251. acts must not be referable to any other title, 253. must render non-performance a fraud, 253. when not so from character of person, 254. by tenant for life as against remainderman, 254. by persons not parties to contract, 254. where not so from nature of the act, 255. payment of purchase money not binding on purchaser, 255. where there are alternative remedies, 255. agreement must be such as can be enforced, 255. not of an honorary character, 25G. nor incomplete, 256. possession, not always part performance, 353. where part performance, 257. adverse, not part performance, 256. laying out money, when part performance, 259, 2G1. payment of purchase money not part performance, 260. other money, 261. auction duty, 261. additional rent, 263. marriage alone, not, 249, 2G3. acts connected with it may be, 263. execution of marriage settlement, 264. cohabitation, 264. acts previous to contract, 264. preparatory acts, 264. giving instructions for deeds, 264. obtaining a release from third party, 264. preparatory appropriation of money, 264. performance by another party to the agreement, 265. evidence parol, let in by part performance, 266. INDEX. 577 PART PERFORxMA NCR— Co/i tmued. must be clear, 2GG. some indulgence when possession has been taken, 2GG. what variations immaterial, 2G7. parol not excluded by part being reduced to writing, 2G7. admission in answer, sufficient evidence, 2G7. though the statute be pleaded, 267. where contract denied by answer, 207. where different agreement is set up by answer, 268. inquiry as to terms of contract, 268. renders contract not under seal binding on corporation, 254. of a novation, 413. PATENTS, time where of essence in contracts as to, 418. PAYMENT. (See Pakt Performance.) PAYMENT INTO COURT, where vendor has made out title, 490. not, 490. where agreement allows possession, 491. when purchaser is in possession under another title, 491. where purchaser acts as owner, 491. procedure on order for, 492. PENALTY, effect on .'specific performance, 72. distinction between penalty and liquidated damages, 72, 80. [Note 2, p. 73; and n. 3, p. 74.] cognizable at law, 72. performance not limited to amount of, 73. PERFORMANCE. (See Conditioxs, Part Performaxce.) PERFORMANCE OF HIS PART BY PLAINTIFF, how must be proved at law, 41. must be shown in suit, 365. extends to representations, 365. but not to non-essential terms of the contract, 367, 503. nor to collateral contracts, 368. excused where a tender would have been refused, 373. where non-performance is due to default of defendant, 373. but not by infancy, 373. by impossibility, Avhere, 374. (See Impossibility.) exception in marriage articles, 376. limitations of the exception, 377. in respect of acts to be done, 379. PERSONAL ACTS, contracts to do, n. 14. p. 62. PLAN, contract void from doubt as to, 103. 578 FUY ON SPECIFIC PERFORMANCE OF CONTRACTS. PLAN— Continued. how far a binrling representation, 3GG. PLP]A. (See Plkading.) PLEADING. (See Claim, Parties, Variatioi^, Parol.) bill on contract by agent must allege agency, 23.5. how it must allege contract within the statute, 245. how it may allege letters as constituting the contract, 246. or as evidence of it, 240. alleging parol variation and offering defendant his election, 306, 325. for specific performance with parol variation, 320. must show performance of things on plaintiff's part already to be done, 305. and readiness and willingness of plaintiff to perform things on his part therefore to be done, 379. performance of conditions, 386. capacity of defendant to perform contract, 389. praying rescission in alternative, 411. should pray ne exeat where required, 438. by vendor seeking compensation must raise that question, 447. by purchaser seeking compensation, 448. bill relying on a waiver must allege both facts and legal conclusion, 471. alleging acts of ownership, 493. in alternative for specific performance or damages, bad, 494. by purchaser in alternative for specific performance or enforcing his lien, good, 495. demurrer relying on Stature of Frauds, 225. answer setting up Statute of Frauds, 228. admitting the contract alleged, 246, 267. denying contract alleged, 267. alleging a different contract, 268. setting out defect in plaintiff's title, 461. admitting purchaser has only one objection or none, 461. good title, 465. plea of Statute of Frauds, 225. and answer relying on Statute of Frauds, 226. POSSESSION. (See Interest, Part Performance, Payment into Court, Rents.) PRESUMPTION, . terms implied in contract by, 163. title depending on, 350. on presumption omnia rite esse acta, 352. PRICE. (See Consideration, Inadequacy of; Contract, Completeness OF.) inadequacy of, evidence of unfairness, 176. INDEX. 579 PRINCIPAL. (SeeAGF.NT.) PRINTED NAME. (See Signature.) PROPOSAL AND ACCEPTANCE, proposal not assignable, 111, 135. eontract constituted by, 135. difference between proposal and memorandum of agreement, 135. essentials of acceptance, 13G. acceptance must be unequivocal, 13G. and without variance from offer, 137. and not introduce a new term, 139. and without unreasonable delay, 141. proposal determined by withdrawal, 142. by refusal, 142. variation of, 144. acceptance may be by parol, 144. by the bill, 146. by acts, 146. time from which acceptance operates, 146. by agreement to do an act on demand, and a demand, 146. by representation and conduct, 147. (See Represemtatiox.) PUFFER, where one is employed and the sale is without reserve, 294. in other sales, where one person is employed, 294. where two or more persons are employed, 296. PURCHASER FOR VALUE WITHOUT NOTICE, sale to, a defense, 389. Q QUARRY, agreement to work, not enforced, 65. E RAILWAY. (See Company, Contract, Corporation, Amalgamation.) contract to make, 49, 65, 109. relief on, previous to completion, 337. contract as to traffic, 165. to make roads for landowner, 167. for "land required" for, 169. to work, 199. to make and maintain siding, 337. ' when conditional on making of, 386. enforced cy pres, 394. time running under contracts by, 428. when interest on purchase money will not run, 480. 580 FUY ON SPECIFIC rERFORMANCE OF CONTRACTS. RAILWAY— Co?)- ^lOSANCEl/;;^ o ^AOJIWDiO^ ^tfOJIlVDJO"^ ^.OFCAIIFO/?^ ^OFCAllFOff^ 6: ^-fjuoNvsm^ "^/swAiNinuv^ ^AavHflin^^ >f?A«vjian# ^lOSANCElfX^ v^lOSANCEl% CO "^/WAINn-^UV ^>^IUBRARY6K ^l•UBRARYa(^ § 1 ir^ ^ "^/saaAiNajuv^ '^tfOJiivDjo'^ %ojiivdjo'^ ,^,OFCAUFO% ^OFCAUFOfti^ .^WEUNIVERS•/A ^TiUONVSO]^ AWEUNIVERy/A vvlOSANCElfj^ %ii3AINnjW^ ^lOSANCElf/^ 4^^-UBRARYa^^ ^5i«UNIVER% ^lOSANCEl£r^ 4;j}5-UBRARYQ<^ ^vNlUBRARYQ^^ *C u2 ^^ojiivD-jo'^ ^•OFCAllFOfti^ ^OFCAllFOi?^ ' S fie ^lOSANCEl£r^ g § ^IDSANCEltf^ -s^lUBRARYOc. ^l-UBRARYQr ^\WEUNIVERSy^ ^UKMElij-^ %a3AINn3WV^ ^«^0JIW3J0^ ^(^OJIIVDJO^ <<3fU3NVS01^ %a3AlNll-3WV ^5S\EUKIVER% ^lOSANCEUr^ aofcaufo%, ^OFCA1IFO%, » mi <(Ji33Nvsoi^ "^aaAiNn-avi^ ^^•UBRARY ^tUBRARYQ^^ ^^illBRARYQ^^ iUlTtiJUITi 1^ "^/saaAiNd-awv y/A r^ v^lOSANCfU-jv T o C? — f ft U oo 1^ ■^/iiUAINd^vW^ I s ^^OJIIVOJO^ .^,OF•CAllFOR^ '■'' \mmvS^^'^.\^^^^^>&Aiivnan# ;^ ^IMCEUr^ ^^•UBRARYQ^ ^fVMmO/-^ \ im^ juiTiWfF ,5yElINIVER5"/^ v^^lOSANCElf ^=^S s