iplli|!.lil>Siln!nfc::lh|^W;i'aw^^ 
 
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 THE 1> EDITION 
 
 THE .\rTHOU AM. WM Im)NALI»S()N HAWLINS. 
 
 THIHI» AMERICAN EDITION. 
 
 WITH KEFEHKN' » T<» TIIF. LATD«T AMERICAN C AM>. 
 
 ■T 
 
 WILLIAM M SCOTT, 
 
 .. I -I ll.. I..' 
 
 U>-Tnimt<w " Vol II IV-.k I. ni»|. 7 
 
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 n; r, iw i 
 
 it lillKli AMhKRA.N hi»lll".\ 
 
 • H»*rfornmiicf of C'nii- 
 tni IS that <»f Willlnm 8. Schuyler, E«q.» Coun84»l<)r 
 
 ai l*aw ; jt Ij.ih '-•••n out of print for »<»ineilnit», having Ixn-n 
 |.i. Ih* wnnl <»f II new edition han l>«t»n felt 
 
 by th*- HI Kn^land, an in this country, nnd ns a 
 
 mall • an Kn^'lii^h e»Ulion t the cases down 
 
 Hit. t^li hw third American editl<in is r»*siy>nHiMe 
 
 fur lh«» no- ir 1871, to the i»r»'?*^nl !ini»» ; if the 
 
 whiru lit- iia- :i<iie<i have not ejMwntially ini]>n»ve<l 
 iiK- value of the nrij^inal wiirk, they will n«»t pn^vi-nt that 
 from be<'omlnK u* the Anu'ri<*an lawyer what the U'st re- 
 risors in Kn^hind have pn^nouncecl to be a work in which 
 •*the law ni^in ih»* subject it trvatetl of, wa.** acruraiely 
 dijfesle*!, and carvfullv Mated ; and for conipleteneHN and 
 «w»nndnei%^ likely to liecome the text b<H»k ujKin the law of 
 '»j— iiio Performance of Contract*."
 
 •^. I'lVJ^ \« F 
 
 The contents, ana ina-x. n:n. ..^. i. ■ aiefullv r^y\^l ana 
 caused to cc.iTesponcl with tlie i«ge< -^ '1- thini American 
 eilition. ^y y^ ^
 
 I'l; I.I A ( K 
 
 H) Til >X1> EIiITION, 
 
 w^.t•• nnd i»uMinh«nl the following trvntim*: and in that 
 •»; I f Mill.- ji'-At . Iirni '.•> li IV.. !k.M.n efftH'teti in tin* law - 
 an . . :irn/ mh rJif siil.l...f .if 
 
 r!.> ••-%'iay hn» \m-r-ii y. 
 
 I must exiM*ct « «• ; iticlsm for thij* second e<lition 
 
 than that with whirh the fip*i tnlition was nt-eived : Imr 
 I itii niiiv that the kindness which I have always received 
 fn»ni ihf ni«*nilien of my profe^nion will nut fail me now. 
 
 There la one notion often expn'^^vil with r»'^Tird to works 
 written or revi«*e<l by authors on the Iknirh, which seems 
 t.. Ill- in i«ari at l»twt em>ne<»u.H, the notion I Mi»*an that 
 tlu'V IJOVWH.S aquosijmlicial authority. It is hardly enon^^h 
 rememljereil lu»w diffen-nt are the circumstances under 
 which a >»<K>k is written and a ju<l^mient ]»rononnced, or 
 how much the wei^dit and value of the latter are <lue to the 
 di9<*ustions at the har which precede the judj^ment. 
 
 77«ii33H
 
 VI PREFACE. 
 
 I have revised or re\viitten or written the following parts 
 of the present volume, viz. : 
 
 Part I.— The whole. 
 ^* II. — The whole, except part of Chapter II. 
 " III.— The whole, except Chapter XXV. 
 " v.— Chapter V. 
 " VI. — The whole, except Chapter IX. 
 
 The Xlth Chapter of Part III. (that on the Statute of 
 Frauds) was originally revised for me by another hand and 
 may retain some traces of a difference of style : and in other 
 parts I received some assistance from my former pupil and 
 friend, the late Mr. H. W. May. By far the greater part 
 of this work of revision and rewriting was done by me be- 
 fore leaving the bar. These parts of the work have been 
 subsequently revised and brought down to date by the 
 labors of Mr. Rawlins. 
 
 The revision of the other parts of the volume, namely : — 
 
 Part II.— Part of Chapter II. 
 III.— Chapter XXV. 
 IV.— The whole. 
 " V. — The whole, except Chapter V. 
 VL —Chapter IX. 
 
 has been undertaken by Mr. Rawlins alone. He has con- 
 sulted me on various points which have arisen, especially 
 on the general arrangement of some of the chapters ; but 
 the whole merit of this work is his.
 
 rriKKA( K. vii 
 
 To him also is dun rlie entirely ii.-w Ind.'x. \vhi<h will. I 
 hope and believe, be found a valuable part of the book. 
 
 My thanks are due to Professor Holland, of Oxford, f(»r 
 
 kind assistance, the nature of which will be learned from 
 
 the additional note at the end of the volume. 
 
 E. F. 
 Lincoln's Inn, May, lasi.
 
 PREFACE 
 
 TO THE FIRST EDITION. 
 
 The following papers contain an attempt to enquire into 
 the principles which govern Courts of Equity in the Spe- 
 cific Performance of Contracts. I offer this little book to 
 the members of my profession, with somewhat of hope, be- 
 cause I know the indulgence with which they are w^ont to 
 accept the results of honest labor spent on professional 
 subjects : but with much more of diffidence, because I am 
 not ignorant of the difficulties 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 admir- 
 able works of Lord St. Leonards and Mr. Dart on the Law 
 of Vendors and Purchasers. Those treatises discuss 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 en- 
 forced : whilst the present work is designed to elucidate 
 the principles of specific performance in general, and the
 
 PEEFACE. ix 
 
 contract of sale only so far as it requires attention as one of 
 the contracts wliicli the court enforces. If the object of 
 those learned treatises had not been thus distinct from that 
 of the following pages, I should never have thought of com- 
 mitting 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 ques- 
 tions ought to ffud place in a treatise on the x:)rinciples 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 j^oint 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. 
 
 Several important decisions on the subject of specific per- 
 formance have appeared during the progress of these pages 
 through the press, which I have found it impracticable to 
 embody in the text : some of these cases have been referred 
 to in the notes, and others only in the table of addenda, to 
 which the reader is referred. 
 
 My friend Mr. J. P. Green, of the Middle Temi)le, has 
 
 obligingly read the proof-sheets of this book : I gratefully' 
 
 acknov/ledge his kindness in so doing. 
 
 E. F ' 
 
 5, New Square, Lincolt^'s Inn, 24th May^ 1-858,
 
 TABLE OF CONTENTS. 
 
 PART I. 
 
 OF THE .JURISDICTION. 
 
 CHAPTER I. 
 
 OF THE ORIGIN AND GENER'AL CHARACTER OF THE JURISDICTION. 
 
 PAGE. 
 
 What a coutract is ^ 
 
 What specific performance is 2 
 
 The obligation arising from a contract 2 
 
 Few systems of jurisprudence enforce specific performance ; 3 
 
 Roman Law gave damages only 3 
 
 So too Common Law 3 
 
 Suggested reason of this ° 
 
 The principle of Charondas 3 
 
 ■ Cases in which Common Law approached specific performance 4 
 
 i. The prerogative writ of mandamus 4 
 
 The statutory writ of mandamus 4 
 
 ii. Delivery of chattels 5 
 
 Return of chattels not specific performance 5 
 
 iii. Contract for payment of a sum of money 5 
 
 iv. Writ of covenant " 
 
 Former jurisdiction of Ecclesiastical Courts 6 
 
 Origin of the equitable jurisdiction in specific performance 6 
 
 Early history of the jurisdiction 6 
 
 Jealousy on the part of Common Law Courts 8 
 
 The jurisdiction in specific performance distinguished 9 
 
 from performance of trusts ^ 
 
 from delivery of chattel in specie 9 
 
 from cases of constructive trust 10 
 
 from specific relief 1" 
 
 The jurisdiction discretionary ^^
 
 Xll CONTENTS. 
 
 CHAPTER II. 
 
 OF THE EXTENT OF THE JURISDICTION. 
 
 PAGE. 
 
 Not all kinds of contracts enforced 12 
 
 Extent and limit of the jurisdiction 12 
 
 1. Where there is no Common Law remedy. 
 
 Ground of interference of Equity lo 
 
 Contracts differently regarded at Common Law and in Equity 15 
 
 Common Law remedy lost by default of plaintiff 15 
 
 Common Law remedy unavailable from something in the contract 16 
 
 or from the nature of the contract 16 
 
 Contracts to execute mortgage or lend money 17 
 
 Advance on security of leaseholds 18 
 
 Deposit of title-deeds 18 
 
 Remedy by damages prevented by death 18 
 
 by marriage 10 
 
 unavailable from form of contract 13 
 
 Former practice of Court of Chancery 20 
 
 2. Wliere there is no adequate Common Laxc remedy. 
 
 3. Where there is an adequate Common Law remedy. 
 
 The propositions stated 21 
 
 Common Law remedy inadequate ' 22 
 
 Common Law remedy less beneficial 22 
 
 Doctrine of Leach, V. C 23 
 
 Cases where Common Law remedy is adequate 23 
 
 Contract for yearly tenancy 24 
 
 Contract to make railway 25 
 
 Contract to pay money 25 
 
 Alternative remedy 25 
 
 Contract enforced by vendor 25 
 
 Government stock . . 26 
 
 Shares in companies 27 
 
 Actions on contracts to take shares 28 
 
 Chattels '. 28 
 
 Unique articles . . ' 28 
 
 Tort, trust, and contract 30 
 
 Dictum of Lord Westbury 82 
 
 Vendor plaintiff 33 
 
 Price agreed on 33 
 
 Chattels not unique but of peculiar importance 33 • 
 
 Where a particular article is essential or only convenient 33 
 
 Chattels connected with enjoyment of estate 33 
 
 Contracts to build 34 
 
 Trust constituted 34 
 
 Contracts to be performed by instalments 35
 
 CUXTEXTS. Xill 
 
 PAGE 
 
 4. Where the contract is such a>i the court cannot perform. 
 
 iQcapacily of court to execute contract . . 35 
 
 Breaches frequent 36 
 
 Goodwill of a business 36 
 
 5. Where tJie performance of the contract would be useless. 
 
 Revocable contracts 37 
 
 Contract to enter into partnership at will 38 
 
 Contract to become member of company 38 
 
 Contract to execute revocable instrument 38 
 
 6. Where the court would be unable to enforce its judgment. 
 
 Contracts to build and execute works 39 
 
 Cases where performance has been refused 40 
 
 Lord Cairns' Act 41 
 
 Exceptions — 
 
 a. "Where the work is defined and essential to the plaintiff 41 
 
 b. Where the defendants have also obtained possession under the 
 
 contract 41 
 
 Contract to make siding 42 
 
 to erect market-house 42 
 
 Amount of damages unascertainable b\- plaintiff 42 
 
 Act of part-performance answerable in damages 43 
 
 Covenant to keep canal in repair 43 
 
 7. WJtere the enforcement of the contract would he worse than non 
 
 performance. 
 
 Hiring and service 43 
 
 Such contracts formerly enforced 43 
 
 Secus now 44 
 
 Contracts of agency 45 
 
 8. Where the contract is voluntary. 
 
 Where no consideration 46 
 
 Where no right to property affected 47 
 
 9. T]7(f r^ the plaintiff has elected to proceed in some other manner than 
 
 for specific performance. 
 
 Where plaintiff proceeded at Law 47 
 
 Opinion of Knight Bruce L. J 47 
 
 of Lord Cranworlh 47 
 
 Proceedings under Lands Clauses Act 47 
 
 Present practice 48 
 
 10. TT7(^r<: the jurisdiction has been taken away by statute. 
 
 Fines and Recoveries Act ^8
 
 XIV CONTENTS. 
 
 PAGE. 
 
 11. The jurisdiction is agai?ist tM defendant personally. 
 
 Equity acts against the person "*° 
 
 Where defendant is not subject to the jurisdiction 'IS 
 
 Where the court had originally no jurisdiction - 48 
 
 Foreign contracts 49 
 
 Contracts relating to immovable property • 49 
 
 There must be privity of contract 50 
 
 Mr. Justice Story on the English doctrine 50 
 
 12. Quasi-contracts in respect to irJiicTi the court has jurisdiction. 
 
 Quasi-contracts under Lands Clauses Act 51 
 
 Effect of notice to treat 52 
 
 Procedure after the notice 52 
 
 Refusal to proceed after the notice 52 
 
 The company forced to proceed 52 
 
 Parliamentary contract '■ 53 
 
 Where notice followed by a contract 53 
 
 CHAPTER III. 
 
 OF CONTRACTS "WITH A PENAL OR OTHER LIKE SUM. 
 
 Effect on the jurisdiction 55 
 
 The question stated 55 
 
 i. Contract with a penalty strictly so-called 56 
 
 Contract not to carry on business 57 
 
 ii. Distinction between penalty and liquidated damages 57 
 
 Condition for recovery of deficiency on re-sale 58 
 
 Where contract and obligation to pay are distinct 59 
 
 Where election not imported 60 
 
 iii. Alternative contracts 60 
 
 Intention primarily governs construction 60 
 
 Alternative form not conclusive 61 
 
 The amount of the penalty 62 
 
 The benefit of the penalty and the contract resulting to different persons. . 64 
 
 Single sum and continuing act 64 
 
 Sum variable 64 
 
 Wherere there is a forfeiture in addition 65 
 
 Where the contract is reasonable only as an alternative one 65
 
 CO]^TENTS. XV 
 
 PART 11. 
 
 PARTIES TO THE ACTION. 
 
 PAGB- 
 
 . 66 
 
 CHAPTER I. 
 
 OF THE GENERAL RULE. 
 
 Division of the subject 
 
 1. As to the former practice oftfie Court of Chancery. 
 
 The general rule stated "^ 
 
 Stranger necessary party to conveyance "' 
 
 Same property sold twice over "^ 
 
 Purchasers of diflfereut lots held under same lease 69 
 
 Effect of a direction that A. should convey ^ 
 
 Where the suit had several objects ' ^ 
 
 Tenant of vendor *" 
 
 Persons having adverse rights '^ 
 
 Exceptions to the general rule '-' 
 
 Novation ' "^ 
 
 Sales on the Stock Exchange "^^ 
 
 Stranger "^ 
 
 Interest under prior contract ' ** 
 
 Remainderman 'J* 
 
 Reversioner ' 
 
 Objection precluded by pleading '* 
 
 Some suing or sued on behalf of all '* 
 
 Avoiding multiplicity of suits ' -* 
 
 "Where one lot sold involved with adjoining lot "''^ 
 
 77 
 Adverse claimants 
 
 Voluntary settlement ^ 
 
 Multifariousness 
 
 Several contracts in one suit '^ 
 
 2. As regards the practice of the High Court. 
 
 79^ 
 The general rule 
 
 Provisions of the Rules of Court as to parties '^^ 
 
 Result of third-party rules "-^ 
 
 Bare trustee •• 
 
 80 
 Unpaid legatees 
 
 Counterclaim "_ 
 
 Registered land
 
 XVI CONTENTS. 
 
 CHAPTER II. 
 
 OF A STRANGER TO THE CONTRACT. 
 
 PAGE, 
 
 Division of the subject 82 
 
 1. As to a Dt ranger. 
 
 Generally a stranger cannot sue 82 
 
 Apparent exceptions to the rule 83 
 
 (i.) Cestui gue.trust of contract 83 
 
 (11.) Agency 83 
 
 (Hi. ) Executed contracts 84 
 
 (iv. ) Near relationship 84 
 
 (v.) Change in condition of life 85 
 
 2. As to a stranger being sued. 
 
 : Generally a stranger cannot be sued 86 
 
 Exception if he gets possession of the subject-matter with notice b6 
 
 ■ Stranger claiming benefit resulting from the contract 87 
 
 Where part of relief might effect person In possession 87 
 
 jExceptions under.statutory provisions 87 
 
 CHAPTER III. 
 
 OF THE DEATH OF A PARTY TO THE CONTRACT. 
 
 'Death of a party 88 
 
 fDeath of vendor gg 
 
 ' Trustee Act, 1850 , 90 
 
 Widow 90 
 
 Contract enforced by creditors 90 
 
 Executors suing before probate 91 
 
 Death of purchaser 91 
 
 Heir or devisee 91 
 
 Vendor ordered to revive 92 
 
 .Death of proposed lessee 92 
 
 Discharge of the contract by death— where personal qualities required 92 
 
 CHAPTER IV. 
 
 OF AN ASSIGNMENT OF THE CONTRACT OR OF THE PROPERTY. 
 
 Assignment of the contract 93 
 
 Assignment by way of mortgage 95 
 
 Exceptions og 
 
 (i.) Where the contract is personal gg 
 
 ; Contracts for leases ^ 
 
 Where there is a set-off ng 
 
 Where some previous personal relation gg
 
 CONTENTS. Xvii 
 
 PAGE. 
 
 Pothier on error in regard to the person contracted with 98 
 
 The principle illustrated 99 
 
 (ii.) Where there is proviso against assignment 99 
 
 (iii. ) Illegality of assignment 99 
 
 Transfer of expectancy 100 
 
 Maintenance 100 
 
 Public trust 101 
 
 Offer not assignable Iqo 
 
 The rights of the assign of the contract 102 
 
 Extent of the assign's right IO3 
 
 Assignment of the property Iqo 
 
 Assign a defendant 102 
 
 Unregistered contracts in register counties ... 103 
 
 Owner of prior title affected by notice 103 
 
 Effect of notice in cases of executed contracts lO.j 
 
 •Contracts to devise lands j O.5 
 
 Amalgamation of companies jOo 
 
 Bankruptcy of contractor 106 
 
 CHAPTER V. 
 
 ■OF THE LIABILITY OF COMPANIES FOR THE CONTRACTS OF THEIR PRO- 
 MOTERS. 
 
 The doctrine introduced by Lord Cottenham 107 
 
 Conditions under which the doctrine is applicable lOS 
 
 .(i.) The company must have taken the benefit of the contract 108 
 
 Contract intra vires and beneticial 110 
 
 (ii.) The contract must have been warranted by the terms of incorporation 110 
 
 Contract rdtra vires 110 
 
 Doubts thrown on the doctrine Ill 
 
 State of the authorities 112 
 
 CHAPTER VI. 
 
 OF AGENCY. 
 
 Contracts by agents 113 
 
 Agent appearing on the contracts as such 113 
 
 Agents appearing on the contracts as principals 113 
 
 Principals suing and being sued 115 
 
 Agents not generally parties 117 
 
 Question whether party is principal or agent 117 
 
 Both principal and agent sued 117 
 
 Directors Hy 
 
 Agent suing 118 
 
 Agent sued Hg 
 
 •Cases where agent a proper party 119 
 
 (i. ) Agent claiming intererst 119 
 
 (ii.) By reason of the form of the contract 119 
 
 B .
 
 Xviii CONTENTS. 
 
 yAGB. 
 
 . 119 
 
 (iii.) Stakeholder 
 
 Cases where stakeholders made parties 
 
 The proper practice in such cases ^"^ 
 
 Auctioneers, etc. , who are and are not stakeholders 120 
 
 PART III. 
 
 OF THE DEFENSES TO THE ACTION. 
 
 CHAPTER I 
 
 OF THE IXCAPACITY TO CONTKACT 
 
 Nature of the defense 1-^* 
 
 When incapacity to be judged of 124 
 
 Married women 12^ 
 
 Their general engagements 126 
 
 Contract by married women to take lease 127 
 
 "Where no power of anticipation 1 27 
 
 Contract under power informally exercised l''^7 
 
 Parties to action in respect of separate estate 127 
 
 Real estate of married women 128 
 
 Contracts between husband and wife 128 
 
 Contract of married woman trustee 129 
 
 Lunatics 129 
 
 Subsequent lunacy of a party to a contract 130 
 
 Persons standing in confidential relations 130 
 
 CHAPTER II. 
 
 OF THE NON-CONCLUSION OF THE CONTRACT 
 
 There must be a concluded contract 131 
 
 Onus of proof is on plaintiff 131 
 
 When the question of construction 131 
 
 Where there is a formal document 131 
 
 Is the instrument a contract 131 
 
 Judge's order 131 
 
 Instructions for a settlement 131 
 
 Articles of Association 131 
 
 Recital 131 
 
 Negctiation is not contract 132 
 
 Proposal and acceptance 132 
 
 Essentials of acceptance 133 
 
 Acceptance must be unequivocal 133
 
 CONTENTS. XIX 
 
 PASB. 
 
 Acceptance must be uncomlitioual 135 
 
 Acceptance must be without variance from the offer 136 
 
 Acceptance must not introduce anj^ new term 130 
 
 Acceptance subject to title being approved by solicitors 137 
 
 ■\Vbat is not a new term 137 
 
 Nugatory variations 138 
 
 Reference to mode of execution 138 
 
 Indulgence granted by acceptor 138 
 
 Acceptance must be communicated 139 
 
 And that witbout unreasonable delaj"- 139 
 
 "Wbat determines the proposal 140 
 
 (i.) Withdrawal 140 
 
 Notwithstanding time for acceptance prescribed 141 
 
 Express notice of withdrawal not needful 141 
 
 Notice imder right of pre-emption 141 
 
 (ii.) Refusal 141 
 
 Variations of the proposal 1 42 
 
 Writing signed by one party sufficient 143 
 
 Plaintiff's acceptance need not be in writing 143 
 
 Acceptance by acts 1 44 
 
 Defendant's acceptance must be in writing 144 
 
 Time at which the contract is constituted 144 
 
 Posting letter 144 
 
 Where there is an agent for the proposer 145 
 
 Representation and conduct 146 
 
 Representation of things past 14f> 
 
 Representation of things future 147 
 
 Representation must be clear and absolute 147 
 
 Where the engagement is merely honorary 14S 
 
 Subsequent settlement silent as to promise 15U 
 
 Where the promise did not induce the marriage 150 
 
 Cases where representation has been held binding 150 
 
 Marriage contracts loO 
 
 Distinction between written and verbal proposal 151 
 
 The principle long established 151 
 
 Representations by stranger loS 
 
 CHAPTER III. 
 
 OF THE INCOMPLETENESS OF THE CONTRACT. 
 
 Contracts must be certain, fair, and just 155 
 
 Where objection made after part performance 155 
 
 Completeness, fairness, and certainty, how to be explained 156 
 
 Incompleteness may be in contract or evidence 156 
 
 Completeness to be ascertained at commencement of proceedings 156 
 
 Exceptions ^ 56 
 
 (i.) When incompleteness arises from fault of defendant 156 
 
 (ii.) Or may be made good from the contract itself 167
 
 XX CONTENTS. 
 
 P(GE. 
 
 Complcteuess to be considered ^ ■ '~ 
 
 (i.) As to subject-matter 1 '^"^ 
 
 Pleading 1"'9 
 
 What definiteness required ■ ^^'^ 
 
 Where subject-matter ascertainable though not ascertained l'"9 
 
 Subject-matter ascertained by election 160 
 
 (ii.) As to the parties • 160 
 
 Description instead of name 161 
 
 Lord Cairns' statement of the law 161 
 
 Descriptions held sufficient 161 
 
 Description held insufficient 162 
 
 (iii.) As to price 162 
 
 Cases where price not ascertained 163 
 
 Contract need not precisely determine the price 163 
 
 Where a mode of determining the price prescribed 163 
 
 Where mode of ascertainment essential 163 
 
 Ascertainment by valuers to be named 163 
 
 Lord Bacon's maxim 163 
 
 Doctrine of the Roman Law 164 
 
 Valuers are not arbitrators 164 
 
 First class of cases 164 
 
 Difficulty occasioned by defendant's default , 165 
 
 Second class of cases 166 
 
 Contracts to sell at a fair price 166 
 
 The distinction between the two classes of cases illustrated 166 
 
 (iv.) As to other terms of the contract 168 
 
 Instances of contracts held incomplete 158 
 
 Some matter left for future agreement 169 
 
 Contract referring to third person's decision 169 
 
 Implied terms 169 
 
 Condition for good title implied 170 
 
 Conditions may be waived 170 
 
 Contract for underlease 170 
 
 Implication as to usual stipulations' 171 
 
 Implied terms rebutted by a condition or by notice 171 
 
 Where material term cannot be supplied, no performance 171 
 
 CHAPTER IV. 
 
 OP THE UNCERTAINTY OP THE CONTRACT. 
 
 What amount of certainty required 173 
 
 Original uncertainty removed 176 
 
 Indefinite words 176 
 
 Instances of uncertain contracts 177 
 
 Less certainty required where there is fraud 180
 
 CONTENTS. XXI 
 
 CHAPTER V. 
 
 OF THE WANT OF FAUtNES-S IN THE CONTRACT. 
 
 Nature of the fairness required l"^! 
 
 Unfairness in the terms or in extrinsic matters l^i 
 
 When ascertained l'?^ 
 
 Where there is a condition to be performed 1^3 
 
 Compromises and family settlements 183 
 
 Contracts involving contingencies : l'*4 
 
 The contingency must be really such to both parties 1!?'* 
 
 The contingency must have been understood to be within the contract. ... l^'t 
 
 Contracts to sell at a price to be fixed 1 ^0 
 
 Amount of rent to be fixed \^fi 
 
 Fairness of surrounding circumstances 1H7 
 
 Court slow to act where circumstances saspicious 1S7 
 
 Intentional unfairness not necessary to be proved 18S 
 
 Misstatements 188 
 
 Silence or suppresio veri 188 
 
 Intoxication 1^ 
 
 Contract injurious to third persons 18t» 
 
 Secret guarantee 1 J^J* 
 
 Sale bj- a voluntary settlor l^*) 
 
 Contracts necessitating a breach of trust 15'0 
 
 Where condition for compensation IWl 
 
 The objection precluded by the conditions of sale 15'1 
 
 Unbusinesslike contract 192 
 
 Cases of ])reach of duty 1&2 
 
 Rescinding contract on this ground 192 
 
 Injury to the public 192 
 
 CHAPTER VI. 
 
 OF THE II.\KDSHIP OF THE CONTRACT. 
 
 Hardship a bar tu the court's interference 1 ".'J 
 
 When to be judged of 193 
 
 Instances of subsequent circumstances disregarded 194 
 
 Submission and awards 19.'> 
 
 lustances of subsequent events regarded Ut5 
 
 subsequent events dependent on plaintiff I'.'G 
 
 Plaintiff's subsequent conduct a trap 1 i'T 
 
 Distinction between patent and latent hardship 197 
 
 Hardship brought upon the defendant by himself 198 
 
 Failure of party's scheme 198 
 
 Hardship on members of a corporation 19b 
 
 Forfeiture a circumstance of hardship 199 
 
 Exceptions 199 
 
 Where vendor would be left subject to a liability 2(K) 
 
 Other instances of hardship '-ioO
 
 XXU CONTENTS, 
 
 PAGE. 
 
 Liability disregarded 200 
 
 Miscellaneous instauces of hardship 201 
 
 Impossibility of enjoying the thing purchased 201 
 
 The principle applied in contracts between companies 202 
 
 Inadequacy of consideration 202 
 
 CHAPTER VII. 
 
 OF INADEQUACY OF THE CONSIDERATION 
 
 How it may appear in the contract 203 
 
 Difference of cases between vendor and jDurchaser 203 
 
 Inadequacy with other circumstances 203 
 
 Inadequacy by itself 204 
 
 As a ground for setting aside contracts 204 
 
 As a defense to specific performance 205 
 
 Mere inadequacy not a defense 206 
 
 Reason of the rule 208 
 
 The laws of Rome and France 209 
 
 When the inadequacy is to be ascertained 210 
 
 Sale at a price to be fixed 210 
 
 Effect of under-valuation , 210 
 
 Sales of reversions 211 
 
 Before the Sales of Reversions Act 211 
 
 "Where the prmciple did not apply 211 
 
 Present interest relatively small 211 
 
 Sale by auction 212 
 
 The Act 31 Vict. c. 4 212 
 
 Effect of the Acts as to actions for rescission 212 
 
 As to specific performance 218 
 
 Origin of rule as to burthen of proof 213 
 
 CHAPTER VIII. 
 
 OR WAJTT OF MUTUALITY IN THE CONTRACT. 
 
 Mutuality required 214 
 
 Contracts under powers 216 
 
 Time at which mutuality is to be judged of 216 
 
 Exceptions 217 
 
 (i. ) Unilateral contracts 217 
 
 (ii.) Waiver 217 
 
 (iii.) Contract signed by one party only 218 
 
 Reason of this last exception 218 
 
 Contract in deep poll 219 
 
 (iv. ) Where vendor has only partial interest 219 
 
 Doubts of Lord Redesdale 219 
 
 The principle is well established 220
 
 COXTKNTS. XXm 
 
 CHAPTER IX. 
 
 OF THE ILLEGALITY OF THE CONTUACT. 
 
 FA«B. 
 
 Illegality a bar to performance of a contract 
 
 Foreign contracts 223 
 
 What constitutes illegality 223 
 
 Peculiar nature of the defense 22-1 
 
 Awards 228 
 
 How far the ilk-gulity must be made out 22S 
 
 Where a trust is constituted 2^9 
 
 The principle illustrated 229 
 
 Trade unions •• 230 
 
 CHAPTER X. 
 
 OF THE COXTKACT BEING ULTRA VIRES. 
 
 Contracts by corporations must be -within their powers 232 
 
 But are presumed to be good 232 
 
 Where the presumption is rebutted 232 
 
 Limitation of the discussion 235 
 
 Difference between ultra vires a corporation and ultra vires its agents 285 
 
 Difference of the question between corporations and between corporation 
 
 and strangers 236 
 
 Where ultra vires is and is not a defense 237 
 
 Vendor of land to company not bound to see that it is strictly required 238 
 
 Irregularity --^^ 
 
 CHAPTER XI. 
 
 Fourth section of the statute ~'^" 
 
 Decision that the section refers to the procedure _. 240 
 
 The statute often a defense '-^^^ 
 
 Division of the subject ^^^ 
 
 1. IIoic the defense may be raised. 
 
 Reference t© the former practice -^^ 
 
 Before the Judicature Acts the statute taken advantage of by demurrer. . . 242 
 
 T> 1 '>42 
 
 By plea -^~ 
 
 By plea and answer '-"^^ 
 
 By answer "'*- 
 
 Otherwise not at the hearing 2"^3 
 
 The present practice ■'■*" 
 
 How the statute may now be taken advantage of 243 
 
 Not by plea J^"^"^ 
 
 Where statement of claim does not allege written contract 243 
 
 By demurrer "^
 
 XXIV CONTENTS. 
 
 PAaB. 
 
 By pleading the statute specially 243 
 
 The benefit of the statute must be claimed distinctly 243 
 
 "Where defendant makes default in pleading 243 
 
 Where no pleading at all 243 
 
 2. What satisfies the statute. 
 
 Written statement 244 
 
 Nature of the document immaterial 245 
 
 The writing must express a concluded contract existing at the time when 
 
 the memorandum was signed 248 
 
 Treaty only 249 
 
 Formal contract intended 249 
 
 Where first document is not binding 249 
 
 The law stated by Jessel M. R , 251 
 
 Solicitors ' ' to prepare contract " 252 
 
 Agreement signed by one party only 252 
 
 signature 253 
 
 Must be a writing of the name 254 
 
 In pencil 254 
 
 In priut 254 
 
 Initials 254 
 
 How far intent to sign necessary •. 254 
 
 Incidental introduction of name for different purpose 255 
 
 The statute a weapon of defense, not offense 255 
 
 Actual signature with intent to authenticate the document 256 
 
 Suggestion as to the true principle 257 
 
 Agent 257 
 
 How appointed 259 
 
 Where court will conclude in favor of agency 259 
 
 Direct evidence 259 
 
 Inference 259 
 
 Representation 259 
 
 Ratification 259 
 
 Essentials' of a valid ratification 262 
 
 Auctioneer 262 
 
 Authority of auctioneer 264 
 
 Agent of agent 264 
 
 Auctioneer's clerk 264 
 
 Solicitor 264 
 
 Telegraph clerk 265 
 
 Revocation of agent's authority 265 
 
 Death of principal 265 
 
 Agency a question of fact 265 
 
 Letters 265 
 
 (1. ) Letters referred to for signature 266 
 
 Parol evidence admitted 266 
 
 There must be a reference 267 
 
 To terms in writing 268 
 
 How far reference must be express 268
 
 CONTENTS. XXV 
 
 rA8B. 
 
 Entry in auctioneer's book 2(J>? 
 
 Other illustrations 269 
 
 (3. ) Letters to suppl}' a term o^jrj 
 
 (3.) Letters constituting the contract 270 
 
 The correspondence must be considered as a whole 270 
 
 Letter to a third person 270 
 
 Letters repudiating a contract 870 
 
 Parol contract before marriage, written after 271 
 
 Pleading a contract within the statute 272 
 
 Before the Judicature Acts 272 
 
 The present practice 272 
 
 Contract implied from letters, conversations, or circumstances 273 
 
 3. What takes a contract out of the statute. 
 
 Sale by the court, admission, fraud, or part-performance '.'73 
 
 (1.) Sale by the court 273 
 
 Ordinary sale by auction 274 
 
 (2. ■) Admissions in pleadings 274 
 
 Effect of admissions under present practice 275 
 
 Death of person making admission 275 
 
 (3.) Fraud 275 
 
 Collateral contract 277 
 
 Fraudulent refusal to recognize collateral parol promise 277 
 
 Provision for defeasance or redemption fraudulent!)- omitted 278 
 
 Trustee for real purchaser 278 
 
 Principle of foregoing cases 279 
 
 Fraud in relation to marriage articles 279 
 
 Mere non-performance of contract to sign a document 279 
 
 Marriage contract 280 
 
 Wills r 281 
 
 (4.) Part performance 281 
 
 Principle of the exception 282 
 
 Essentials 283 
 
 (1. ) The acts must refer to a contract 284 
 
 They need only be referred to some contract and consistent with that 
 
 alleged 284 
 
 Mr. Aust in quoted 285 
 
 The acts must not be referable to any other title 285 
 
 (2.) The acts must render non-performance a fraud 286 
 
 Principle stated by Lord Cottenhum 2!^6 
 
 No relief where refusal to perform is no fraud 287 
 
 The acts must be done with the knowledge of the person to be charged . . . 287 
 
 Acts not fraudulent from character of person 287 
 
 from the nature of the act 288 
 
 from their being alternative remedies 288 
 
 (3.) The contract must be such as can be enforced 288 
 
 Want of a seal 289 
 
 Engagement of an honorary character 289 
 
 Incomplete contract 290 
 
 Where possession adverse 290
 
 XXVi CONTEXTS. 
 
 PAGE. 
 
 Particular acts as part-performance ~'^" 
 
 Possession ^^ 
 
 Possession of stranger acknowledged ^'^^ 
 
 Possession acquiesced in ^"-^ 
 
 Possession tells for and against both parties alike 292 
 
 Possession as against a company 293 
 
 Possesion in contracts other than of sale or lease 293 
 
 Marriage contracts 293 
 
 Family arrangements 294 
 
 Effect of lapse of time 294 
 
 Laying out of money— how different from possession 294 
 
 Expenditure and other acts admitting of compensation 295 
 
 Payment of purchase-money 295 
 
 Why not an act of part-performance 296 
 
 Vacillation of the law ou this subject 296 
 
 Payment of auction dutj- 297 
 
 Payment of additional rent 297 
 
 Review of the cases on payments as part-performance 297 
 
 Marriage 298 
 
 Acts connected with marriage 800 
 
 3Iarriage in fraud of previous parol contract ... 300 
 
 Cohabitation 300 
 
 Previous acts 300 
 
 Preparatory acts 30 1 
 
 Surrender of lease 303 
 
 (iv.) The evidence of the contract 303 
 
 Classification of the cases 303 
 
 (1 .) Contract admitted in pleadings 303 
 
 (2. ) Contract denied by defendant's pleading 304 
 
 (3.) Variation between the contracts alleged and proved 304 
 
 "What variations are immaterial 305 
 
 Inquiry 306 
 
 The present practice 307 
 
 (4.) Alleged contract denied but another admitted 307 
 
 Part reduced to writing 398 
 
 CHAPTER XII. 
 
 OF THE FORMALITIES REQUIRED IN CONTRACTS BY CORPORATIONS. 
 
 Practical importance of the subject 309 
 
 Contract by corporation must generally be under common seal 309 
 
 Exceptions — 
 
 (i.) Some contracts of trading corporations 309 
 
 (ii. ) Under statutory provisions 309 
 
 Companies Clauses Act, 1845, s. 97 309 
 
 Companies Act, 1867, s. 37 310 
 
 Former statutory provisions 3H 
 
 (iii. ) From the doctrine of part -performance 311 
 
 The subject more fully discussed in other works 312
 
 CONTENTS. XXVll 
 
 CHAPTER XIII. 
 
 OF MISREPRESENTATION. 
 
 PA9E. 
 
 Effect of a misrepresentation 313 
 
 Elements of a misrepresentation 313 
 
 Division and limitation of the subject 316 
 
 Misrepresentation, how related to fraud 316 
 
 (1.) A statement made and untrue 317 
 
 Mere silence 317 
 
 When a statement is to be held untrue 317 
 
 (ii.) The making of it by a party or his agent 318 
 
 What agency must be proved 318 
 
 (iii.) The state of mind of the party making the statement 319 
 
 Knowledge of the error or falsity 319 
 
 Misrepresentation by agent in common law actions 320 
 
 Always fatal to specific performance 320 
 
 In equity a man is bound by inadvertent misrepresentation 321 
 
 (iv.) The intent of the misrepresentation 322 
 
 Purchaser on faith of prospectus not received from its authors 323 
 
 Earlier cases affected by Peck v. Gurney 323 
 
 (v. ) The reliance on the statement 324 
 
 The statement not the sole inducement 325 
 
 Vagueness of the representations 325 
 
 Vendor's statements must be unambiguous 327 
 
 Commendation by vendor 327 
 
 Other grounds for considering that there was not reliance 327 
 
 Mere presence of means of knowledge 32S 
 
 Resort to other means of knowledge 329 
 
 Other knowledge itself 330 
 
 Misrepresentation of law 331 
 
 as to title 331 
 
 Doctrine of Edwards v. McLeay not of universal application 331 
 
 Where defect is patent 332 
 
 Analogy with warranties 333 
 
 Evidence of knowledge must be clear 333 
 
 Other means of knowledge open to purchaser not enough 333 
 
 Doctrine of notice does not apply 383 
 
 General statement inconsistent with the misrepresentation not enough 334 
 
 Rescission for misrepresentation 384 
 
 Recommendation to other party to consult his adviser 334 
 
 Misrepresentation as to lease 335 
 
 as to character of building 335 
 
 as to profits of theatre 335 
 
 Sale with all faults 335 
 
 Assignment of a contract affected bj' misi-epresentation 335 
 
 Statement to agent known by principal to be false 33(» 
 
 (vi. ) The misrepresentation must be essential 336 
 
 Cases considered under head of fraud 336
 
 XXViii CONTENTS. 
 
 CHAPTER XIV. 
 
 OF FRAUD. 
 
 PAGE. 
 
 Fraud is a larger word than misrepresentation 337 
 
 comes before the court in several relations 337 
 
 Fraud in obtaining contract 3-37 
 
 oori 
 
 in pert" orniing contract '^^' 
 
 Suppression of a fact 338 
 
 Silence ^^^ 
 
 Obligation to disclose 339 
 
 (i ) Where fiduciary relationship 339 
 
 (ii.) Where antecedent wrong done 340 
 
 (iii.) From character of contract 341 
 
 Latent defect 341 
 
 (iv.) From course of negotiation 341 
 
 Lord Blackburn quoted 341 
 
 Imperfect statement 342 
 
 (V.) From obligation subsequent to the contract 342 
 
 (vi.) From statute— Companies Act, 1867, s. 38 342 
 
 Mere silence generally permissible in either party 343 
 
 Silence of purchaser 344 
 
 Aggressive concealment 344 
 
 Purchaser may not make any false representation or suggestion 845 
 
 Silence not fraudulent but unfair 846 
 
 Puffing at auctions 346 
 
 (i.) Where sale without reserve 347 
 
 All parties having liberty to bid 347 
 
 (ii.) One puffer employed 347 
 
 A defense in chancery 348 
 
 (iii.) Several puffers 348 
 
 The sale of land by Auction Act, 1864, s. 4 348 
 
 Sections 5,6 849 
 
 Fraud by agents 349 
 
 Agency of directors 350 
 
 Fraud by a mere stranger 350 
 
 Fraud affects the entire contract 350 
 
 So does misrepresentation 350 
 
 The two-fold effect of fraud 351 
 
 Contract voidable not void 351 
 
 Consequences of contract being voidable only 3.")2 
 
 How right to rescind may be precluded 352 
 
 (I) Rescission impossible 352 
 
 (ii. ) Rescission inequitable 352 
 
 (iii. ) Election to abide by the contract 352 
 
 Contract to take shares 353. 
 
 How election may be made 353 
 
 Election final 353, 
 
 (iv.) Inability to make restitution 353 
 
 Does the receipt of any benefit prevent rescission ? 354
 
 CONTKNr>. WiX 
 
 rA«B. 
 
 Restitution reudereil imi>o&sJble by act of third person ... JtW 
 
 The French liiw 
 
 Innocent misrepresentation does not generally give right to re«ciud. . , 
 
 Other remedies open though rescission impossible 
 
 Fraud is a personal bur to relief 
 
 Innocent misrepre.senlation •'•''^ 
 
 Fraud on the public *'* 
 
 CHAPTER XV, 
 
 OK MISTAKE. 
 
 Kinds of mistake that occur in contracts y'»<^ 
 
 Principle of the defense ^'i^ 
 
 Mistake sometimes but not always a bar to performance 3<51 
 
 As to the Statute of Frauds 301 
 
 Parol evidence admitted for defense !561 
 
 Mistake of the defendant :WW 
 
 Where contributetl to by plaintiff 804 
 
 Mistake i)urely of defendant J''>-* 
 
 on the part of ti vendor «^W 
 
 of defendant's agent 3M 
 
 Cases where mistake of defendant is no defense 366 
 
 Mistake of one party as a ground for rescission 309 
 
 Parol variation set up b}* defendant 869 
 
 (i.) Where enforced 3C9 
 
 <ii.; Where action dismissed 8"^' 
 
 £uforcement of variation unfair 870 
 
 (iii ) Plaintiff i>ut to bis election 870 
 
 Instances of variation 872 
 
 Variation, how set up 878 
 
 Evidence 873 
 
 Common ei ror 874 
 
 Mistake a ground for rescission 874 
 
 Instances of rescission 875 
 
 Mistake a ground for ix-ctification 876 
 
 Rectilicaliou recjuires a prior contract 877 
 
 Mistake of one party not a ground for compulsory rectitkatiun 878 
 
 Election between annulment and rectification 878 
 
 Parol evidence admitted for rectification 878 
 
 The proof must W clear 879 
 
 Jiatent amliiguity 879 
 
 Division of mistake ^^ 
 
 Mistakes of law ' 
 
 Misrepresentation of law " ' 
 
 The court will now relieve against mistakes of law S**! 
 
 Lord Weslbury on I'/norantiajurii ftoutl exeutit 85<8 
 
 Result of tlie authorities 384 
 
 SjH'culation as lo facts *** 
 
 Mistake not about essence of coatract 885
 
 PAGE. 
 
 . 885 
 . 385 
 
 ^-^-X CONTENTS. 
 
 'I he Roman law 
 
 Where the writing purposely differs from the contract ^^^^ 
 
 Subsequent parol contract 
 
 Specitic performance with rectification of mistake J»' 
 
 Mistake of plaintiff alone 
 
 of both parties ' " ' 
 
 in reference to Statute of Frauds ^^° 
 
 Cases of entire exclusion of parol evidence for i)laiutilf ^m 
 
 Lord St. Leonards on the doctrine ^ 
 
 These cases observed on 
 
 Previous parol contract ' 
 
 Admission of parol evidence for plaintiff ^^^ 
 
 Opinions of American jurists °^^ 
 
 Effect of the Judicature Act, 1873. s. 24 (7) 394 
 
 Cases of rectification and relief in same suit 395 
 
 Misdescription in contract 
 
 CHAPTER XVI. 
 
 OK THE INC.U'ACITY OF THE COURT TO PERFORM PART OF THE 
 CONTRACT. 
 
 Subject of the chapter 399 
 
 Contract divisible or not 399 
 
 Sale of property in one lot 399 
 
 Ship and freight 400 
 
 Distinct lots "^^^ 
 
 Different prices for different parts 403 
 
 Cross coutracls of sale 403 
 
 Stipulation for piece-meal execution 408 
 
 Contemporaneous contracts 404 
 
 The court will not perform part 404 
 
 Consideration a future act 405 
 
 Illustrations of the principle. ■. 405 
 
 Where execution of deed not ordered 406 
 
 Where execution of deed ordered 406 
 
 The principal applied to marriage contracts 407 
 
 Exceptions — 
 
 (i.) Separate execution contemplated 407 
 
 (ii.) Where the contract is executed 407 
 
 Difference between executory and executed contracts illustrated from part- 
 nership articles 408 
 
 And from leases 409 
 
 (iii). Relief on contracts not by way of specific performance 409 
 
 (iv.) Where contract may be completely performed though there arc 
 
 future acts 410 
 
 (v.) Where part cannot be performed through defendant's default 410 
 
 Lord Cairns' Act 411 
 
 (vi.) Where the contract has negative and positive stipulations 412 
 
 Negative stipulation implied 413
 
 CONTENTS. XXXI 
 
 PAOE. 
 
 Negative implied in clmrter- party ■^1'^ 
 
 Limits of the doctrine .' "^^^ 
 
 Lord Hatlierley's view ^^^ 
 
 Jessel, M. R., iu Fotliergill v. Rowland -^^6 
 
 Doctrine of Lumley v. Wagner not to be extended -IKJ 
 
 Conclusions from the authorities '^^'^ 
 
 Unenforceable terms all on plaintiff's side 418 
 
 (vii.) Where the arrangement is partly honorary 418 
 
 (viii.) Where the contract is alternative 418 
 
 (ix.) Where the part which the court could not enforce has been 
 
 performed 418 
 
 CHAPTER XVir. 
 
 OF DEFECT IN THE SUBJECT MATTER OF THE CONTRACT. 
 
 Nature of the defense 4'-- 1 
 
 Defects patent or latent 4v"^ 
 
 Patent defects 422 
 
 Latent defects . 422 
 
 Defect consisting in undisclosed liability 423 
 
 Defect unknown to both parties 4-4 
 
 Variation which is not a defense 4-4 
 
 Uncertainty in subject-matter and in description of it 424 
 
 Sale with all faults 424 
 
 Effect of a defect 425 
 
 CHAPTER XVIII. 
 
 OF THE WANT OF A GOOD TITLE. 
 
 Title must be free from doubt 427 
 
 Former practice • 4-8 
 
 Present rule ^"^ 
 
 Observations on the rule 429 
 
 Arguments against and for the rule 4^9 
 
 Amount of doubt 430 
 
 Marketable title • 430 
 
 Formerly performance refused through court in favor of the title 430 
 
 Present tendency of the court 431 
 
 Decision of inferior court 431 
 
 Lord St. Leonards' court 431 
 
 Nature of the doubt 432 
 
 Cases in which court would consider title doubtful 432 
 
 (i.) Probability of litigation great 432 
 
 (ii.) Past adverse decision doubted 432 
 
 (iii.) Past favorable decision doubted 432 
 
 (iv.) Construction of inartificial instrument 432 
 
 (v.) Title resting on presumption of doubtful fact 432
 
 XXXii CONTENTS. 
 
 PAGE. 
 
 Voluntary settlor plaintiff ^'^^ 
 
 (vi.) Presumption of fact fatal to title 432 
 
 Cases where court would not consider title doubtful -135 
 
 (i.) Probability of litigation small 435 
 
 (ii.) Past adverse decision wrong 435 
 
 (iii.) Question dependant on general law 435 
 
 (iv.) Where general rule of construction 4To 
 
 (v.) "Where presumption in favor of the fact 435 
 
 (vi.) Suspicion of 7nala fides 435 
 
 Dictum of Leach, V. C, observed upon 438 
 
 Title under will 439 
 
 Costs 439 
 
 Bringing in adverse claimant 439 
 
 Land Transfer Act, 1875, s. 93 439 
 
 Judicature Act, 1875, Ord. XVI, r. 17 440 
 
 Special case 440 
 
 CHAPTER XIX. 
 
 OF FAILURE OF THE CONSIDERATION. 
 
 Events affecting the subject-matter 442 
 
 1. Events prior to the contract. 
 
 Operation of prior events 443 
 
 Destruction of subject-matter of contract 444 
 
 The question excluded by contract 445 
 
 When is the contract complete 445 
 
 Sale of Land by Auction Act, 1867, s. 7 44(j 
 
 3. Events subsequent to the contract. 
 
 Sometimes a defense 446 
 
 Where contract subject to an implied condition. 446 
 
 Contracts for sale of land 446 
 
 A condition not performed 447 
 
 Subsequent illegality 448 
 
 Events subsequent to the contract being entered into and becoming abso- 
 lute 448 
 
 The principal formerly not clearly recognized 449 
 
 Illustrations of the principal as now established 449 
 
 Failure or winding up of company 450 
 
 Extinction of subject-matter by lapse of time after issue of writ and before 
 
 trial 450 
 
 Opinion of Alderson, B 451 
 
 The point now unimportant 451
 
 CONTENTS. XXXlll 
 
 CHAPTER XX. 
 
 OF DEFAULT ON THE PART OF THE PLAINTIFF. 
 
 PAGE. 
 
 Plaintiff must show performauce and willingness to perform 453 
 
 1. The performance of pad acts. 
 
 Of what terms plaintiff must show performance 454 
 
 •Of what he need not 454 
 
 (i.) Express terms 455 
 
 (ii. ) Implied term 455 
 
 (iii.) Representations of future acts 455 
 
 Plans 456 
 
 Contract silent as to plan 456 
 
 Intended division bj' roads shown on plan 456 
 
 Exact performance of scheme not obligatory 456 
 
 Plan accurately representing present state of property 457 
 
 (iv.) Default must be of an important term 457 
 
 (v.) Default in respect of collateral contract . . 458 
 
 (vi.) Performance waived by defendant 460 
 
 Non-performance the fault of defendant 460 
 
 Infancy 460 
 
 (vii.) Impossibility of performance 460 
 
 Substantial part performed 461 
 
 ■Gilbert's Lex Prtetoria quoted 461 
 
 Where plaintiff shall have relief 462 
 
 The rule does not apply to marriage contracts 463 
 
 2. The performance of future nets. 
 
 Default in respect of acts to be done 463 
 
 Trustees in bankruptcy 463 
 
 Bankruptcy of plaintiff 464 
 
 Disclaimer by trustee 464 
 
 Insolvency 464 
 
 Subsequent affluence 465 
 
 Insolvency after assignment of interest : 465 
 
 Felony 465 
 
 Loss of deeds 465 
 
 CHA.PTER XXI. 
 
 OF ACTS IN CONTKAVENTION OF THE CONTRACT. 
 
 Nature of the defense 467 
 
 Acts which would have worked forfeiture 467 
 
 Cases of contracts for leases 467 
 
 Waste 468 
 
 The acts must be gross and willful 468 
 
 Lease ordered to bear date of contract 4(i8 
 
 Cases under contracts for leases classified ... 469 
 
 C
 
 XXXiv CONTENTS. 
 
 PAGE. 
 
 1. W/ure the ads complained of have M to refusal of specific per- 
 formance. 
 
 469 
 Instances 
 
 3. Cases where relief has not been refused. 
 
 Breach trivial or waived 
 
 Breach not working absolute forfeiture 470 
 
 Where landlord defendant has not complained before action 471 
 
 Irish Tenantry Acts 4'^ 
 
 3. Wiere specific performance loas granted and the question of breach of 
 covenants left for decision at law. 
 
 Practice of the Court of Chancery 472 
 
 Establishment of tliat practice 47S 
 
 Anticipated practice under the Judicature Acts 473 
 
 Otlier illustrations of the principle 473 
 
 Railway company 473 
 
 Small breaches of good faith 473 
 
 CHAPTER XXII. 
 
 OF THE NON-PERFORMAXCE OF CONDITIONS. 
 
 Contracts not to be performed until absolute 4T5 
 
 Condition express or implied 476 
 
 Railway contracts 476 
 
 Waiver 477 
 
 CHAPTER XXIII. 
 
 OF THE INCAPACITY OF THE DEFENDANT TO PERFORM HIS PAKT OF 
 THE CONTRACT. 
 
 Contract conditional on capacity 478 
 
 Such contracts cannot be sued on 478* 
 
 Where incapacity of defendant a defense 478 
 
 Defendant author of his own incapacity 480 
 
 Capacity when to be judged of 480 
 
 Illustrations of the principle 481 
 
 Application to Parliament required 481 
 
 Estate not the vendor's 481 
 
 Goods not in possession of vendor 481 
 
 Consent of third parties 481 
 
 Sale of wife's estate 483 
 
 Execution cy pres 483 
 
 Death of co-contractor, tenant in tail 483 
 
 Lease by copyholder 484 
 
 Contract modeled so as to be legal 484
 
 CONTENTS. XXXV 
 
 PAGE. 
 
 Modeling confined to formal matters 4g4 
 
 Contract partly invalidated by legislation 4g5 
 
 Contract modeled .so as to be possible 4^*5 
 
 Rail wa}' cases 4,s5 
 
 Impossibility of one alternative 4ii<(5 
 
 (i.) One alternative originally impossible 4S0 
 
 (ii.) One alternative rendered impossible by the act of God 487 
 
 (iii.) One alternative prevented by the other party 4h9 
 
 The j)rinciple of these cases 49O 
 
 (iv.) One alternative prevented by a stranger 400 
 
 (V.) Elected alternative becoming impossible 490 
 
 CHAPTER XXIV. 
 
 OF THE RKCISSION OF THE CONTRACT. 
 
 Grounds of rescission 4<io 
 
 1. A simple agreement to rc!>ciud. 
 
 Agreement to rescind 4{<.> 
 
 Parol agreement to rescind writing or deed 493 
 
 Objection from rule of law 494 
 
 Objection from Statute of Frauds 494 
 
 Agreement to rescind evidenced by conduct 404 
 
 Evidence must be clear . . 495 
 
 Absolute refusal of one party 495 
 
 There must be total abandonment 495 
 
 Cases at common law 4913 
 
 Conduct may prevent party's rights, yet not be a rescission 490 
 
 2. A)k agrctint'iit upon mw terms. 
 
 Second agreement inconsistent 49(j 
 
 Alteration not amounting to novation 49(3 
 
 Concession 497 
 
 Novation must be a valid contract 497 
 
 Evidence of the new contract 497 
 
 1. Original contract by parol 497 
 
 2. Original contract in writing 49,vj 
 
 3. Original contract by law required to be in writing 499 
 
 Where only extinguishment of original contract sought 499 
 
 '6. An iigreement with a third person. 
 
 Third person substituted 5OO 
 
 Resale of shares ^OO 
 
 Novation in sales of shares 500 
 
 Other cases of novation 500
 
 XXXvi CONTENTS. 
 
 PA SB. 
 
 4. Exercise of n poicer to rescind reserved by tlie contract. 
 
 Expre64i power to rescind ^^^ 
 
 Contnict to be void in specified event 501 
 
 Right, how to be exercised 501 
 
 Vendor without any title '• • • 503 
 
 Witliin what time riglit must be exercised 503 
 
 Waiver or loss of riirht to rescind 503 
 
 Separate breaches 504 
 
 Condition for rescission limited by another for compensation 504 
 
 Action claiming rescission 505 
 
 5. Becission the ground of fraud or mistake.' 
 
 Either party may rescind 505 
 
 6. Where one party has refused to perform or unreasonably delayed 
 
 performance. 
 
 Refusal to perform 505 
 
 Insolvency 506 
 
 Delay 506 
 
 7. WJiere one party has made performance impossible. 
 
 Election by the other party 506 
 
 Impossibility must be in a substantial part 507 
 
 Impossibility produced by fraud 507 
 
 CHAPTER XXV. 
 
 OF THE LAPSE OF TIME. 
 
 Nature of the defense 510 
 
 Time formerly differently regarded at law and in Equity 510 
 
 Provision of the judicature acts as to time 511 
 
 Division of the subject , 512 
 
 1. Time originally of the essence of the contract. 
 
 Wlien time is of the essence 512 
 
 By express condition 514 
 
 Condition must be clear 5I(; 
 
 Implication from nature of subject-matter 517 
 
 Subject-matter daily varying 51^7 
 
 Commercial enterprise g^^g 
 
 ^Ii°e« • ......'.'.'.'.'.'. 51S 
 
 Coal 518 
 
 Patents gig 
 
 Shares e^q 
 
 Surrounding circumstances r^jo 
 
 Condition showing time not of the essence 520 
 
 Option of retirement from company goQ 
 
 Where delay would involve hardship ^21
 
 CONTENTS. XXXVll 
 
 PAOK. 
 
 Time in some respects of the essence 521 
 
 "Where the contract is imilateral 522- 
 
 2. Time engrafted hy notice. 
 
 When notice may be engrafted 522 
 
 Introduction of the principle 522 
 
 The time limited by notice must be reasonable 522 
 
 Previous refusal to remove objection 523 
 
 Conditional waver of notice 523 
 
 Nature of the subject-mtitter 523 
 
 What notice requisite 524 
 
 Where parol notice sufficient 524 
 
 3. Lapse of time constituting laches or evidencing abandonment of contract. 
 
 Delay as laches 524 
 
 Laches a bar to relief 527 
 
 Contract not mutual 527 
 
 Option to have lease 528 
 
 Acquiescence 528 
 
 What delay sufficient 528 
 
 Delay after notice by the other party 529 
 
 4. Where time does not run. 
 
 Contract substantially executed 530 
 
 Possession must be under the contract 531 
 
 Pending negotiation 531 
 
 Delay arising from party objecting 532 
 
 Leaving deposit 533 
 
 Continuing in possession 533 
 
 Land taken under railway act 533 
 
 Mere claim 533 
 
 5. Waiver of delay. 
 
 Waiver bj' conduct 533 
 
 Intention and knowledge requisite 534 
 
 As to time for payment 534 
 
 As to time for delivery of objections 534 
 
 Possession 535 
 
 Extension of time 535 
 
 Waiver of time for doing an act, no waiver of the act 535 
 
 Waiver decided at the trial 536
 
 XXXviii CONTENTS. 
 
 PART ly. 
 
 OF THE MODE OF EXERCISING THE JURISDICTION". 
 
 CHAPTER I. 
 
 OF THE INSTITUTION OF TELE PROCEEDINGS. 
 
 PAGE. 
 
 The former practice ^°^ 
 
 Judicature Act, 1873, s. 34 538 
 
 Limited operation of the thirty-fourth section 538 
 
 Form of writ 538 
 
 Transfer of action 538 
 
 Action properly commenced in Queen's Bench Division 539 
 
 Special case 539 
 
 Vendor and Purchaser Act, 1874, s. 9 539 
 
 The County Courts Acts, 1865 and 1867 540 
 
 Procedure under County Courts Acts 540 
 
 High Court retains current jurisdiction 541 
 
 Land Transfer Act, 1875, s. 93 541 
 
 Companies Act, 1862, s. 35 542 
 
 Application of this section to cases of specific performance 542 
 
 CHAPTER II. 
 
 OF INJUNCTIONS. 
 
 Subject of the chapter 544 
 
 How injunction is connected with specific performance 544 
 
 1. Injunction the instrument of perfor7nance. 
 
 Effect of restraining breach of a term of a contract 544 
 
 Contract containing express negative terms 545 
 
 Part of contract incapable of performance 545 
 
 Refusal of court to interfere 545 
 
 Breach of express or implied term restrained 546 
 
 2. Injunction ancillary to p&)'formance. 
 
 Object and effect of injunction in these cases 546 
 
 Granted on prima facie case 547 
 
 Instances of grant of injunctions 547 
 
 Vendor obstructing valuer 548 
 
 Lis pendens 548 
 
 Balance of convenience 548 
 
 Second purchase 549 
 
 Injunction against third persons 549
 
 CONTENTS. XXXIX 
 
 FAOE. 
 
 Acts inconsistent with the contract 549 
 
 Former chancery practice of restraining action in other courts 5-49 
 
 The present practice (Judicature Acts, 1873 and 1875) 550 
 
 Effect of Jud. Act, 1873, s. 24, sub-section 5 550 
 
 3. Enforcement of right resulting from non-performance. 
 
 When the court will interfere 550 
 
 Extent of the High Court's jurisdiction in injunction 551 
 
 CHAPTER III. 
 
 OF THE WRIT OP NK EXEAT. 
 
 The writ issued by tlie Court of Chancery 553 
 
 Use of the writ under the present practice 553 
 
 Debtors Act, 1869, s. 6 553 
 
 CHAPTER IV. 
 
 OF RELIEF AFTER JUDGMENT. 
 
 Such relief often necessary 555 
 
 Modes of relief open to either party 556 
 
 (i.) Sequestration or attachment 556 
 
 (ii.) ^lotion to rescind 556 
 
 Damages 557 
 
 Vendor's lien 5o7 
 
 When the lien will and will not prevail 557 
 
 Modes of enforcing the lien 558 
 
 (i.) Sale 558 
 
 Railway company 558 
 
 (ii.) Receiver 559 
 
 (iii.) Injunction restoring possession 559 
 
 "Writ of assistance 559 
 
 Vesting order 559 
 
 PART Y. 
 
 OF INCIDENTAL MATTERS. 
 
 CHAPTER I. 
 OF CONDITIONS OF SALE AND PARTICULARS. 
 
 Conditions part of contract 
 How regarded 
 
 560 
 560
 
 Xl CONTENTS. 
 
 PA«B. 
 
 Reasonable clearness requisite 5"" 
 
 Instances of ambiguity 563 
 
 Conditions construed strictly 568 
 
 Vendor unable to give a good title 564 
 
 Outgoings 564 
 
 Rents and profits 564 
 
 Sense of condition not extended by implication 565 
 
 Time for delivery of objections 565 
 
 Fraud 565 
 
 Inconvenient requisition 566 
 
 Misleading condition 566 
 
 Facts stated in conditions 567 
 
 Conditions in sales by the court 567 
 
 Stipulation as to form of conveyance 568 
 
 CHAPTER II. 
 
 OF COMPENSATION. 
 
 Vendor nnable to perform the whole of the contract 570 
 
 Origin of the right to compensation 570 
 
 Pleading 570 
 
 Division of the subject 571 
 
 1. (a.) Vendor insisting on the contract there being no condition for 
 compensation. 
 
 Vendor must be able to perform his part substantially 571 
 
 Tlie principle stated by Lord Thurlow 572 
 
 Limitation of the principle 572 
 
 Essential and non-essential defects to be distinguished 572 
 
 (i.) Material part wanting 572 
 
 Nuisance apprehended 573 
 
 Tenure different .574 
 
 Freehold estate with a leasehold adjoining 574 
 
 Estate sold as tithe-free 574 
 
 Incumbrances 574 
 
 Indemnity 575 
 
 Purchaser not compelled to take indemnity 575 
 
 Misrepresentation 576 
 
 Conduct inconsistent with contract 576 
 
 (ii.) Defect not essential 576 
 
 Profits over-stated 576 
 
 Trifling incumbrances 596 
 
 Taxes under local act 577 
 
 Tithe 577 
 
 Patent defect 577 
 
 Such defect must be visible 578 
 
 "Waiver of defect 579 
 
 Defect immaterial 578
 
 CONTENTS. xli 
 
 1. (b.) Vendor insisting upon the contract, there being a condition for 
 
 compensation. 
 
 The vendor's position in such cases -^ ' 9 
 
 Material misdescription 5 1 9 • 
 
 Prohibited trades imperfect!)^ enumerated 579 
 
 Copj'hold described as freehold ^^9 
 
 Tenancy yearly only 580 
 
 Rights materially affecting enjoyment 580 
 
 Compensation reasonably estimable 581 
 
 Reasonable estimate unattainable 581 
 
 Copyhold nearly equivalent to freehold 581 
 
 Underlease called lease 58^ 
 
 Other cases where compensation is not given 582 
 
 Misrepresentation 58- 
 
 Flourishing description 58o 
 
 2. (a.) Purchaser insisting on the contract, there being no condition for 
 
 compensation. 
 
 Purchaser may take all that vendor has 583 
 
 The principle stated by Lord Eldon 584 
 
 Illusli ations of the principle 584 
 
 Modern application of the principle 585 
 
 Wife's interest 586 
 
 Title to a moiety only 5b6 
 
 Moiety subject to a mortgage 586 
 
 Purchaser aware of the defect 586 
 
 Limitations of the principle 588 
 
 Prejudice to third persons 588 
 
 Purchaser aware of vendor's incapacity 588 
 
 Benefice subject to mortgage to Queen Anne's bounty 589 
 
 Abatement, how calculated 589 
 
 Computation impossible ^^" 
 
 Compensation approximately ascertainable 5;t0 
 
 Enforcement of contract inequitable 591 
 
 Indemnity 591 
 
 When compensation must be claimed 592 
 
 Claim before completion 592 
 
 Deterioration 592 
 
 Claim after completion 593 
 
 2. b. Purchaser insisting on the contract, there being a condition for com- 
 pensation. 
 
 Effect of the language of the condition 593 
 
 Condition enforced notwithstanding execution of conveyance 594 
 
 Cases contra 594 
 
 Suggested mode of precluding controversy 594 
 
 Construction of conditions for compensation 595 
 
 Considerable deficiency of area 595 
 
 No allowance for deficiency 595'-
 
 Xlii CONTENTS. 
 
 FAOE. 
 
 . 596 
 
 Vendor entitled to rescind 
 
 Right to compensation abrogated by terms of contract 596 
 
 Damacres ^ ■ 
 
 CHAPTER III. 
 
 OF DAMAGES. 
 
 Distinction between compensation and damages 599 
 
 Lord Cairns' Act 5^9 
 
 Condition precedent to jurisdiction under that Act 600 
 
 Order for damages subsequently to decree 601 
 
 Effect of Judicature Acts as to damages 601 
 
 Present powers of the court 603 
 
 Present exercise of jurisdiction under Lord Cairns' Act 602 
 
 Utility of the jurisdiction in damages 602 
 
 Loss of profits 602 
 
 Suit brought to hearing for damages 602 
 
 Partial performance plus damages 603 
 
 Damages in substitution for performance 603 
 
 Where vendor has no title 603 
 
 Mistake of defendant 603 
 
 Ascertainment of quantum of damages 604 
 
 CHAPTER IV. 
 
 OF REFERENCE OF TITLE. 
 
 Purchaser defendant 609 
 
 Reference in general terms 009 
 
 Purchaser's costs disallowed 610 
 
 Vendor cannot except to the title .... 610 
 
 Purchaser plaintiff 610 
 
 In respect of what contracts the right exists 610 
 
 Where reference not directed 610 
 
 Vendor selling such interest as he has 611 
 
 Contract for assignment of Vendor's share 612 
 
 Misleading condition 612 
 
 Inquiry limited 613 
 
 The cases fall into two categories 613 
 
 First category illustrated 613 
 
 Second category 614 
 
 Defect discovered by purchaser without inquiring of vendor 614 
 
 Defect disclosed by vendor himself 614 
 
 Title in accordance with conditions 614 
 
 Waiver of the right 615 
 
 by vendor 615 
 
 by purchaser 615 
 
 Express waiver 615
 
 CONTENTS. xliii 
 
 Implied waiver 616 
 
 Particular objections 618 
 
 •Classification of the cases 616 
 
 i. Where the objection is known and curable 616 
 
 ii. Where known and incurable 616 
 
 Contract treated as subsisting 617 
 
 Where there is an agreement for possession 617 
 
 Possession taken with vendor's consent 618 
 
 iii. Acts of ownership 618 
 
 Such acts must be strong and distinct 618 
 
 .Acts amounting to waiver 618 
 
 Waiver by silence of subsequent contract 619 
 
 Acts not a waiver 619 
 
 Waiver of lessor's title 62< » 
 
 •Contract not enforced notwithstanding waiver 620 
 
 .Defect cured by purchaser's own act 621 
 
 Pleading waiver 6'~1 
 
 Reference — at what stage directed 62 1 
 
 Practice of the court of chancery 621 
 
 i. At the hearing 6',~ 
 
 ii On motion after answer 622 
 
 Question of title only 622 
 
 Other questions frivolous 6','- 
 
 Inquiry before the hearing an indulgence 622 
 
 Reference before the hearing refused 622 
 
 What are questions of title 623 
 
 Questions suitable for the hearing 623 
 
 Motion by purchaser defendant 623 
 
 (iii.) Reference before answer 623 
 
 Where vendor ought to apply for the reference 624 
 
 The present practice 6'-4 
 
 Inquiry rls to matters connected with title 624 
 
 when good title shown 6'>4 
 
 other matters. 
 
 62.") 
 
 Inquiry limited ^'-^ 
 
 When the title may be made out 623 
 
 Time allowed for completion of title 626 
 
 Where vendor plaintiff 6'..b 
 
 Time not allowed "-b 
 
 Old title cured, or new title 626 
 
 Acquiescence of purchaser 6~^ 
 
 Inquiry, how made "- < 
 
 Evidence "'^ 
 
 Vendor and Purchaser Act, 1874, s. 9 627 
 
 Form of certificate 6".8 
 
 Certificate, how objected to 628 
 
 Certificate in favor of the title 628 
 
 Certificate referred back 628 
 
 Reference-back under the old practice 629 
 
 >Certificate against the title 629
 
 xliv CONTENTS. 
 Costs 
 
 PAGE. 
 
 . 630 
 . 630 
 
 What is a good title 
 
 Distinctions between questions of title and of conveyance bdO 
 
 Rule laid down in Esdaile v. Stephenson ^"^^ 
 
 lilustrationsof the rule 
 
 Distinction between showing and making title "^V 
 
 Distinction between mailers of evidence and of litlc 632 
 
 CHAPTER V. 
 
 OF IMERETS, KENTS, DETORIATION AND PAYMENT INTO COURT. 
 
 The passing of the property in subject-matter of contract 633 
 
 Difference between the legal and equitable estates • 633 
 
 Mutual obligations of the contractors 634 
 
 Vendor's obligations "^'^ 
 
 Vendor a constructive trustee ''^^ 
 
 Purchaser's obligations 634 
 
 Purchaser a constructive trustee 634 
 
 Liens 
 
 635 
 
 Transfer of possession 63o 
 
 Estate and price, rents and interest, mutually exclusive 635 
 
 Application of the general principles 636 
 
 Division of the subject 636 
 
 1. WMre the vendor is in possession. 
 
 No time fixed for completion . . 636 
 
 Time fixed for completion 637 
 
 Interest more than rents, delay vendor's 637 
 
 Title made out in chambers 637 
 
 Action occasioned by purchaser . •■ • • • 639 
 
 Purchase-money to be ascertained after contract 639 
 
 Purchase-money appropriated and notice given to vendor 639 
 
 Rents expressly reserved to vendor 640 
 
 Delay from any cause whatever 640 
 
 Lord Cottenham's decision in De Visme v. De Visme. 640 
 
 Analogies with Lord Cottenham's decisions 642 
 
 Such stipulations construed literally 642 
 
 What delay will not exempt purchaser 642 
 
 Delay from untenable objection or act of God 643 
 
 Exemption by appropriation of purchase money 613 
 
 ("oudilion as to interest dependent on condition as to abstract 643 
 
 Interest, on what amount payable 644 
 
 Interest on deposit 644 
 
 Rate 644 
 
 Profit made by purchaser 644 
 
 Income tax 644 
 
 What rents the vendor is charged with 644 
 
 Willful default 644
 
 CONTEXTS. Xlv 
 
 PAGE 
 
 Vendor not bailiff to purchaser 64.'» 
 
 Out-goings 045 
 
 Deterioration C45 
 
 Where borne by vendor 04") 
 
 Set-off against interest • • C40 
 
 Deterioration by vendor's tenants 640 
 
 Duty of vendor to re-let farm 646 
 
 Vendor working mine 646 
 
 Deterioration borne by purchaser • • . ■ 647 
 
 Possession of vendor accidental 647 
 
 Purchaser the cause of the mischief 647 
 
 Vendor in personal occupation ^ 047 
 
 Purchaser in default 64*3 
 
 Income tax a just allowance 648 
 
 2. Wfiere the purchase}' is in possession. 
 
 Purchaser in possession must pay interest 648 
 
 Though delay of completion owmg to vendor 649 
 
 Election between interest and rents 64'J 
 
 Stipulation for increasing interest 6o0 
 
 Possession returned 650 
 
 Purchase-money appropriated and notice given 650 
 
 Profit made on appropriated purchase-money 651 
 
 Contract exempting purchase from interest 651 
 
 Exemption not enforced 651 
 
 Purchaser dispossessed 6"'2 
 
 Possession under statutory power 652 
 
 Price ascertained by verdict of jury 652 
 
 Occupation rent 653 
 
 Sales of reversionary estates 652 
 
 From what time interest runs 653 
 
 Sale of reversion by the court 653 
 
 Payment of purchase-money into court 653 
 
 Title made out 653 
 
 Title not made out 654 
 
 Purchaser put to election 654 
 
 Possession according to contract 655 
 
 Possession under some other title 055 
 
 Acts of ownership 050 
 
 Income-lax, where purchase-money paid into court 657 
 
 Procedure 6.)7 
 
 Purchase-money in hands of stakeholder 658 
 
 When interest became due within statute of limitations 058 
 
 CHAPTER VI. 
 
 OF THE DKrOSIT. 
 
 Deposit — when paid 659 
 
 Other part-payments 659
 
 xlvi CONTENTS. 
 
 FAOE. 
 
 ^ , , ,. 659 
 
 Purcbaser s lieu „ „„ 
 
 , f, 660 
 
 In cases of lease . 
 
 of sub-purchase • 
 
 Extent of the lien 
 
 o(jO 
 
 '"///"/.''... 660 
 
 '[[[[,. 660 
 
 '"'[ 6G0 
 
 *''"'' 661 
 
 "'/'.. 661 
 
 [[[][[ 661 
 
 [,[..[.. 663 
 
 '/ 663 
 
 ,".''' 663 
 
 *."'.. 663 
 
 [[][, 662 
 
 663 
 
 Under lands clauses act 
 
 Mode of enforcing the lien 
 
 (i.) Vendor plaintiff 
 
 (ii.) Purcbaser plaintiff 
 
 Deposit in bands of auctioneer 
 
 Forfeiture of deposit 
 
 Vendor unable to make title 
 
 The practice of the court of chancery. 
 
 Where vendor was plaintiff 
 
 The practice discretionary 
 
 Where purchaser was plaintiff 
 
 Where lien claimed 
 
 Where contract rescinded 
 
 PART YI. 
 
 OF SOME CONTKACTS IN" PAETICULAPw 
 
 CHAPTER I. 
 
 OF COXTRACTS FOR THE SALE OF SHARES. 
 
 Subject of the chapter 664 
 
 Nature of the relief 664 
 
 Relief at common law 664 
 
 Contracts off the stock exchange 665 
 
 Contracts on the stock exchange 665 
 
 The practice of the stock exchange stated 665 
 
 Positions of jobber and purchaser the same 667 
 
 Contract with first purchaser 668 
 
 Peculiarity of the contract 668 
 
 When the original purchaser is discharged 669 
 
 Nominee need not be a sub-vendee 669 
 
 The new contract 670 
 
 When it arises 670 
 
 No contract with intermediate purchasers 671 
 
 Contract with registration guaranteed 671 
 
 Third person adopting the contract ' 672 
 
 Plaintiff only equitably entitled 673 
 
 Making a call before the contract 673 
 
 Power of directors to refuse transfer 673
 
 CONTENTS. xlvii 
 
 PA8E. 
 
 (i.) Where the vendor bound to effectuate transfer <i7a 
 
 (ii.) Where contract made on stock exchange 674 
 
 (iii.) Where contract fulls under neither (i.) nor (ii.) <i74 
 
 Opposing views of Lord Romillj-, M. R., and Lord Chelmsford 074 
 
 The duty of procuring registration 075 
 
 Transfer not presented owing to default of defendant 675 
 
 The winding up of the company 675 
 
 (i ) Petition presented before contract 675 
 
 (ii.) Petition presented after contract 675 
 
 The defence in the latter case untenable- 676 
 
 CHAPTER n. 
 
 OF CONTRACTS RELATING TO CONTINGENT INTERESTS AND EX- 
 PECTANCIES. 
 
 Such contracts void at common law 6 • 7 
 
 Secus in equity 677 
 
 Instances 677 
 
 Contract by sons to divide what they might receive from their father 678 
 
 Covenant to charge annuity on expectancy 679 
 
 Circumstances under which such contracts are not enforceable 679 
 
 Whether such contracts are purely personal 6»0 
 
 CHAPTER IIL 
 
 OF CONTRACTS FOR PARTNERSHIP. 
 
 Such contracts generally not enforced 681 
 
 Partnership at will 681 
 
 Where term defined and part-performance 681 
 
 Contract to execute partnership deed 681 
 
 Where contract illegal G'"'"' 
 
 Performance unenforceable 682 
 
 Relief on partnership articles 682 
 
 CHAPTER IV. 
 
 OF CONTR.ACTS FOR THE SALE t)l' .silIlS. 
 
 Present state of legislation on the subject 6S3 
 
 Merchant Shipping Act, 1854 683 
 
 Merchant Shipping Act Amendment Act, 1862 6f3 
 
 Persons qualified to be owners of British ships 684 
 
 Result of the legislation 684 
 
 History of the legislation 685 
 
 The Act 26 Geo. Ill, c. 60 685 
 
 The Act 4 Geo. IV, c. 41, s. 29 685 
 
 Enactment as to mode of transfer 685
 
 y:\Y\u CONTENTS. 
 
 Re-enacted b}' subsequent statutes 
 
 Contracts avoided by non-compliance 
 
 The Merchant Shipping Act. l«54 
 
 The Amendment Act of 1862 • 
 
 Contracts as to monej' accruing from sale of ship 
 
 Foreign ships 
 
 CHAPTER V. 
 
 OF CONTRACTS FOR SEPARATION DEEDS. 
 
 • Contracts for future separation not enforced 
 
 Extent of the jurisdiction 
 
 • There must be a binding contract . 
 
 PAGE. 
 
 . 685 
 
 . 68(5 
 
 . 680 
 
 . 686 
 
 . 686 
 
 . 687 
 
 688 
 688 
 
 Competency of wife to contract with husband 688 
 
 Good consideration 
 
 Care of children ^^^ 
 
 Contract held incapable of performance 690 
 
 Act to amend the law as to custody of infants 690 
 
 Effect of this Act ^^l 
 
 . Specific relief ^^^ 
 
 CHAPTER VI. 
 
 OF CONTRACTS TO COMPROMISE. 
 
 Private compromises "9^ 
 
 Jurisdiction of the court of chancery 692 
 
 Where immediate interference necessary 692 
 
 "Where all parties before the court and the matter simple 692 
 
 In other cases a fresh suit requisite 693 
 
 Since the Judicature Acts 694 
 
 CHAPTER VII. 
 
 OF AWARDS. 
 
 Extent of the jurisdiction 695 
 
 Lord Ilardwicke's doctrine 695 
 
 "Where submission made rule of common law court 696 
 
 Where award not binding at law 696 
 
 Abandonment of a term of the submission 696 
 
 Award unreasonable 696 
 
 Award in excess of authority 697 
 
 Grounds of defense 697 
 
 Submission unreasonable 697 
 
 Award excessive or defective 698 
 
 Defect owing to defendant 698 
 
 Award uncertain 698 
 
 .Misconduct of valuer 698
 
 CONTENTS. xliX 
 
 CHAPTER VIII. 
 
 OF CONTRACTS TO REFER TO ARBITRATION. 
 
 PACK. 
 
 Court will not enforce them affirmatively 699 
 
 Contract to buy at price to be fixed 699 
 
 Inequitable refusal of plaintiff to refer 700 
 
 Common Law Procedure Act, 1854, s. 11 700 
 
 CHAPTER IX. 
 
 OF CONTRACTS NOT TO APPLY TO PARLIAMENT. 
 
 Mode of enforcement 702 
 
 Court has jurisdiction in a proper case 702 
 
 Where court will not interfere 702 
 
 "Where applicant acting on private grounds only 703 
 
 CHAPTER X. 
 
 OF CONTRACTS TO INDEMNIFY. 
 
 The jurisdiction 704 
 
 Where exercised by the court of chancery 704 
 
 Instances 704 
 
 ADDITIONAL NOTE. 
 
 On the law of France in relation to specific performance 707 
 
 D
 
 NOTE. 
 
 The following editions are referred to : 
 
 Austin's Lectures on Jurisprudence, 3d edition. 
 
 Daniell's Chancery Practice, 5th edition. 
 
 Dart's Vendors and Purchasers, 5th edition. 
 
 Fonblanque's Treatise of Equity, 5th edition. 
 
 Haddock's Chancery Practice, 2d edition. 
 
 Seton's Decrees (cited as " Seton "), 4th edition. 
 
 Stephen's Pleading, 4th edition. 
 
 Story's Conflict of Laws, 2d edition. 
 
 Sugden's Vendors and Purchasers (cited as "St. Leon. Vend."), 13th 
 edition. 
 Mitford's Treatise of Pleadings is cited thus : "Redesdale, Plead." 
 The volumes of the Law Journal Reports cited are those of the New Series. 
 The Rules of the Supreme Court are cited thus: Ord. I, r. 1.
 
 THE SPECIFIC PERFORMANCE OF 
 CONTRACTS. 
 
 PART I. 
 
 OF THE JURISDICTION. 
 
 CHAPTER I. 
 
 OF THE OKIGIN AND GENERAL CHAEACTEE OF THE 
 JURISDICTION. 
 
 § 1. "A CONTRACT,'' says the author of The Mirror^ "is 
 a sj)eech bet\\T.xt parties that a thing which is not done be 
 done. " (a) ' 'A contract, ' ' says Sir William Blackstone with 
 greater exactitude, is "an agreement upon sufficient consid- 
 eration to do or not to do a particular thing, "(i) " In order 
 to constitute an agreement or contract,'- said Kindersley, 
 Y. C, " two things are requisite— ^r^^Z?/, the will; and sec- 
 ondly^ some act, whether in word or deed, whereby that will 
 is communicated to the other party.' No man has entered 
 into an agreement or contract to do, or not to do, some par- 
 ticular thing unless he has willed that the thing should be 
 done or forborne,- and also has communicated that will to 
 the other party by some act engaging to carry it into effect ; 
 when both ijarties will the same thing, and each commu- 
 nicates his mil to the other, with a mutual engagement 
 to carry it into effect, then (and not till then) an agreement 
 or contract between the two is constituted, "(c) 
 
 (a) Ch. 2, § 27. Contracts, ch. 1; and per Stephen, J., iu Al- 
 
 (6) 2 Bla. Com., 442. For other definitions derson v. Maddison, 5 Ex. D., -ITt. 
 seeHolland's Jurisprudence, 173; Pollock ou (c) Haynus v. Ilaj-nes, 1 Dr. & bni., 4:*;. 
 
 ' Definition, us applied to contract.'] "The actual accomplisliineut of a con- 
 tract by the party bound to fulfill it." Bouv. L. Die. "rerformauce of con- 
 tract iu the precise terms agreed upon ; strict performance." Bouv. L. Die, 
 under "Specific performance."
 
 2 FRY ON SPECIFIC PERFOEMANCE OF CONTRACTS. 
 
 § 2. This treatise being devoted to a discussion not of con- 
 tracts in general bnt of one particular method of giving relief 
 in respect of them, it is not proposed here to enter into the 
 numerous points which arise upon the above definitions. 
 Many of the points which would require attention in such a 
 discussion will be found treated of under the head of the 
 defenses which may be raised to an action for specific per- 
 formance. That mode of treatment, if less logical, is, it is 
 conceived, more practically useful for the purposes of this 
 treatise than entering upon a general discussion of the 
 nature of contracts. 
 
 § 3. The specific performance of a contract is its actual 
 execution according to its stipulations and terms ; and is 
 contrasted with damages or compensation for the non-execu- 
 tion of the contract. Such actual execution is enforced 
 under the equitable jurisdiction vested in the courts of this 
 country by directing the party in default to do the very 
 thing which he contracted to do, and, in the event of his 
 disobedience, by treating such disobedience as a contemj)t 
 of court and visiting it with all the consequences of such 
 contempt, including committal to prison ; {d) and in some 
 cases by doing in one way the thing which the defaulter 
 was directed to do in another way, as, e. g., by vesting by 
 an order of the court an estate which ought to have been 
 vested by conveyance of the party, (e) 
 
 § 4. From every contract there immediately and directly 
 results an obligation on each of the contracting parties 
 towards the other of them to perform such of the terms of 
 the contract as he has undertaken to perform. And if the 
 person on whom this obligation rests fail to discharge it, 
 there results in morality to the other party a right at his 
 election either to insist on the actual performance of the 
 contract or to obtain satisfaction for the non-performance 
 ofit.(/) 
 
 § 5. When we consider how large a part in the affairs of 
 modern society is played by contracts and the resulting 
 rights and obligations, and how plainly the right to insist 
 on the actual execution of contracts flows from their very 
 nature, it is at first sight a remarkable circumstance that no 
 
 (d) Seton, 1328, 1563, et seq. (/) Austin's Jurisprudence (3d ed.) , 65, 
 
 (e) See infra, § 1151.
 
 GENERAL CHARACTER OF THE JURI^iDICTION. 3 
 
 system of Jurispnulence, except tliat administered by the 
 courts of equity in England and its past or present colonies, 
 has ever attempted directly to enforce the actual perform- 
 ance of contracts in their very terms. And yet such is, it 
 is believed, the cn.se. (g) 
 
 § 6. It is certain that the Roman law gave a title to dam- 
 ages as the sole right resulting from default in perfonnance, 
 and did not enforce specific performance directly or in any 
 other manner than by giving such right to damages. It held 
 to the maxim, ''^ Nemo potest prcEcise cogi ad factum ^ {7l) 
 
 § 7. In like manner the common law of England made no 
 attempt actually to enforce the performance of contracts, 
 but gave to the injured party only the right to satisfaction 
 for non-performance. 
 
 § 8. Perhaps it is to the recent growth in most societies 
 of contract as compared with status, custom, and imperative 
 law that the want in question is to be referred. Sir Henry S. 
 Maine has shown, in his work on Ancient Law,(/) how slow 
 was the introduction into jurisprudence of any provision for 
 the enforcement of contracts, and how that introduction was 
 due to the increase of commercial activity. The same spirit 
 of commerce which led to the enforcement of contracts, also 
 brought in the notion that money is an equivalent of eveiy- 
 thing — is an universal common measure ; and this, coupled 
 with the simplicity of early contracts and tlie difficulty at- 
 tendant on the specific performance of complicated ones, 
 probably led to the arrested growth of the remedies for their 
 breach and the confining of such remedies for the most part 
 to the payment of money or the delivery of a chattel. 
 * § 9. There were, it appears, ancient systems of law which 
 refused all assistance to the enforcement of contracts on the 
 ground that they ought only to be entered into with those 
 whose honor could be trusted; such was, it is said, the prin- 
 ciple adopted by Charondas and the ancient Indians. (,/) 
 
 § 10. Though the courts of common law never enforced 
 the specific performance of contracts, there were certain 
 
 (a) See further Infra. 6C9. for the latter The Assyrian Private Contract 
 
 (h) See Pothicr, Tr. des Oblig., pt. I, ch. 2, Tablets, translatcil by the Rev. A. H. Sayce, 
 
 ^^x 7 I "• '° 1 Uecorils of the Past, 137 »'t seq.) In the 
 
 (t) Ch. 9. In ancient Egypt and Assyria view of comparative history, Egypt and Aa- 
 
 contracts seem to have played a very import- syria both reached the stJige of modern hls- 
 
 ant part. (See for the former 1 Wilkinson's tory at a very early period of the world's life. 
 
 Ancient Egyptians, 31i et seq. [ed. 1876]; and (;) HoUand, Jurlsp., 174.
 
 4 FRY ON SPECIFIC PERFORMANCE OF CONTRACTS. 
 
 cases in which they made near approaches to it, and these 
 it will be well brielly to consider. They were cases : 
 
 (1) Where a piiblic duty arose from a private contract. 
 
 (2) Where the contract was for the delivery of a chattel. 
 
 (3) Where the contract was for the payment of a sum of 
 
 money. 
 
 (4) Arising on covenants real. 
 
 ij 1 1. (1) The object of the prerogative writ of mandamus 
 is "the enforcing of public duties. Before the judicature 
 acts,(^) if A. had by the deed of settlement of a company, 
 entered into a contract with that company, or with trustees 
 for it, or with his fellow shareholders, that a company 
 should be formed and conducted in a specified manner, in- 
 cluding, for instance, provisions for the registration of 
 transfers of shares, and if this deed of settlement had been 
 confirmed by royal charter and the company had made de- 
 fault in registering a transfer, whereby A. was injured, in 
 such a case the prerogative writ of mandamus would have 
 lain in the Court of Queen's Bench, and the public duty of 
 the company which resulted from the contract contained in 
 the deed of settlement would have been enforced at the suit 
 of A.(Z) Here the contract would not have been specifically 
 enforced ; but a public duty flowing in part from the con- 
 tract would have been performed. 
 
 § 12. In addition to the old prerogative writ of mandamus, 
 there is a statutory writ under the 68th section of the com- 
 mon law procedure act, 1854, which ijrovides for the issue 
 of " a writ of mandamus comx^elling the defendant to fulfill 
 any duty in the fulfillment of which the plaintiff is person- 
 ally interested. ' ' It was naturally suggested that this power 
 authorized the courts of common law to grant specific per- 
 formance of contracts by means of the statutory writ; but in 
 the case of Benson v. Paull,(7?2) the Court of Queen's Bench 
 declined specifically to enforce a contract for a lease, and 
 determined that the i^rovision of the act did not apply to 
 the duty arising from a personal contract. To this opinion 
 the same court adhered in the subsequent case of Norris v. 
 The Irish Land Co.,(?z) and it was regarded as settled that 
 
 (A) See now Jud. Act, 1873, § 25 (8); Ee (m) 6 El. & Bl., 273. 
 Paris Skating Rink Co., 6 Ch. D., 731. (n) 8 El. & Bl , 512. 
 
 (I) Norrls v. Irish Land Co., S El. & Bl., 
 512.
 
 GENERAL CHARACTER OF THE JURISDICTION. 5 
 
 the courts of common law could not by means of the writ of 
 mandamus enforce the actual execution of contracts which 
 resulted in imvate rights only and not in duties in which 
 the public were interested. 
 
 § 13. (2) Before the passing of the common law proced- 
 ure act, 1854, it was a matter of question whether in detinue 
 the delivery of the specific chattel could be obtained if the 
 defendant chose to pay the damages assessed instead of de- 
 livering up the chattel ; but all such doubts are removed by 
 the 78th section of that act, which provides that "the court 
 or a judge shall have power, if they or he see fit so to do, 
 upon the application of the plaintiff in any action for the 
 detention of any chattel, to order that execution shall issue 
 for the return of the chattel detained, without giving the 
 defendant the oj^tion of retaining such chattel upon paying 
 the value assessed." (c*) 
 
 § 14. If a contract were entered into between A. and B. 
 for the delivery by B. of a certain chattel on payment of a 
 certain sum by A., and A, made the payment but B. refused 
 to deliver the chattel, an action for its detention would lie 
 in a court of common law at the suit of A., and at his elec- 
 tion execution might issue for the return of the chattel. 
 This looks very like a specific performance of the contract, 
 but was not such in fact. The complaint of A., in the case 
 supposed, was not that the contract had been broken, but 
 that the chattel had been detained. He did not aver that 
 the contract otight to be performed and that the chattel 
 ought to be made his ; but he alleged that the contract had 
 been performed, and that therefore the chattel was his, and 
 the defendant's detention wrongful. In short, the contract 
 came into controversy, if at all, only as the title of the 
 plaintiff. 
 
 § 15. (3) Lord Mansfield, C. J., has remarked that 
 " pecuniary damages tipon a contract for payment of money 
 are, from the nature of the thing, a specific performance, "(j?) 
 But the remark seems hardly strictly accurate. No doubt 
 the sum agreed to be paid will be the measure of damages, 
 and the amount paid will be the same whether the contract 
 be performed or broken. But in the former case the money 
 
 (o) Of. Ord. LII, r. 6. (p) In Johnson v. Bland, 2 Burr., 1066.
 
 6 FRY ON SPECIFIC PERFORMANCE OF CONTRACTS. 
 
 is paid in performance of the contract; in the latter case it is 
 paid as satisfaction for its non-performance. It is evident 
 that the consequences of the two payments would, therefore, 
 be different. 
 
 § 16. (4) According to the old common law, a covenant by 
 A. to convey lands to B. (which was called a covenant real) 
 could be enforced by a special writ of covenant, which was 
 in the nature of a specific performance of that covenant. 
 The writ was to the sheriff to command A. that he keep his 
 covenant with B. ; and the relief for non-performance was 
 not in damages but by means of a prcecipe quod reddat of 
 the land in question. This writ of covenant was the com- 
 mencement of proceedings in fines before their abolition. (§') 
 
 § 17. In one case the ecclesiastical courts exercised a 
 jurisdiction in the nature of specific performance. When 
 man and woman had entered into a marriage contract per 
 nerha de prcesenti, one refusing might be sentenced by the 
 ecclesiastical court to celebrate the marriage in facie ecclesice 
 accordingly, and for refusal to obey might be excommuni- 
 cated and imprisoned on a writ de excommunicato capiendo 
 until he or she submitted to obey the ordinary ; and a like 
 jurisdiction was exercised in the case of contracts per lierha 
 defuturo, though the process for contumacy was in certain 
 cases different. (r) But by the statute 26 Geo. II, ch. 33, s. 13, 
 and afterwards by statute 4 Geo. lY, ch. 76, s. 27, this juris- 
 diction of the ecclesiastical courts was abolished. 
 
 § 18. From what has been already said, it appears that 
 the origin of this branch of equitable jurisdiction is not to 
 be sought in the Roman law.' Perhaps it is rather to be 
 found in the ecclesiastical or canon law, which seems to 
 have recognized the obligation of actual performance of the 
 terms of the contract. The decretals of Gregory, under the 
 title De Faxtis, contain a chajDter, headed ^^ Judex debet 
 studiose agere nt promts s a adlmpleantur^''^ in which it is 
 laid down, '-'■ Btndiose agendum est ut ea qnce promittuntur 
 
 (q) Fitzh. Natura Brevinm, " Covenant to makes his heroine sue to the king for the 
 
 Levy a Fine; " 3 Bla. Com., 156. specific performance of a written contract to 
 
 (r) 2 Burn's Eccl. Law (1st ed.), Marriage, marry her. 
 ch. 2, p. .0. In the Maid of Honor Massinger 
 
 1 7^//*' irJiere contract is executed.'\ The specific perforinauce of contract may- 
 be refiLsed by a court of equity, which it would not set aside if executed. 
 Jackson v. Asliton, 11 Peters, 229; Clitlierall v. Ogilvie, 1 Dessans Eq., 250; 
 Barksdale v. Payne, Riley S. C. Ch., 174; Seymour v. Delancey, 3 Com., 445. 
 
 jl,
 
 GENERAL OHAKACTER OF THE JURISDICTION. 7 
 
 opere compleanticr.''\s) Chaucer, too, in the commencement 
 of the Friars Tale, describing the jurisdiction exercised by 
 an archdeacon, enumerates contracts as one of the matters 
 which were subject to his cognizance. 
 
 "Whilom there was dwellyng in my countre 
 An erchedeken, a man of gret degre, 
 That boldely did cxecucioun, 
 In punyschyng of fornicacioun, 
 Of wicchecraft, and eek of bauderye, 
 Of diffamacioun, and avoutrie, 
 Of chirclie-reves, and of testamentes, 
 Of contractes, and of lak of sacraments, 
 And eek of many another maner cryme, 
 "Which needith not to reherse at this tyme." 
 
 On such a point as this the authority of Chaucer appears 
 entitled to much weight. He is said to have been bred to 
 the law ; and it is certain that parts of his tales exhibit an 
 acquaintance even with the fonns of law ; as, for instance, 
 the Doctors Tale, where the "pitous bill'' presented to 
 Appius by Claudius (v. 178 et seq.) forcibly recalls the form 
 of a bill of complaint in the court of chancery. But perhaps 
 this inquiry into the origin of the jurisdiction is needless. 
 It may have had its source, not in some pre-existing system 
 of jurisprudence, but in the plain principles of morality and 
 the common sense of the judges who founded and enlarged 
 the equitable jurisdiction of the court of chancery. 
 
 § 19. The earliest trace of this jurisdiction in specific per- 
 formance which the industry of legal antiquaries has dis- 
 covered appears to be a case in the reign of Richard II, and 
 to have related to the sale of land.(z5) In a case in the Year 
 Book of 8 Edw. IY,(w) the jurisdiction is fully recognized. 
 The case arose on a promise to indemnify the plaintift', and 
 the Lord Chancellor laid down that there was remedy in 
 chancery where the plaintiff was damaged by the non-per- 
 formance of a promise ; and Genny, J., said that if I prom- 
 ise you to build you a house and do not do it, you may 
 have remedy by sul)po}na. In the reign of Henry Y I, cases 
 are recorded in which the jurisdiction was involved. In the 
 
 (s) Decret. Greg. 9, lib. 1, tit. 35, cap. 3. is "faire a vous unmeMon." Query, should 
 
 (0 1 Spence, Eq. Jur., 645. See, also, 2 not this be rendered " to make over to you a 
 
 Powell, Contr., 4 et seq. house? '" The text-books all seem to render 
 
 (w) p'age4, b! The language of Genney, J., it "to build."
 
 8 FKY ON SPECIFIC PERFOEMANCE OF CONTRACTS. 
 
 21 Henry VII, («) a case occurs where Finenx, C. J., in dis- 
 cussing the extent of tlie action on the case observed, that 
 if one bargains with me that I shall have his land to me and 
 my heirs for £20, and that he will make the estate over to 
 me and I pay the £20, but he will not make over the estate 
 to me according to the covenant, I may have an action on the 
 case and am not bound to sue out a subpoena, (w) Brooke, 
 in his Abridgement, (x) after saying that in the case stated an 
 action on the case would lie, adds significantly : "But note 
 that by this he will get nothing but damages, but by sub- 
 poena the Chancellor can compel him to convey the estate 
 or imprison him ut dicitur.'''' 
 
 § 20. The reign of Elizabeth, and the early part of the 
 reign of the first James, afford other instances of the exer- 
 cise of the jurisdiction. (?/) But it did not establish itself 
 without great jealousy on the part of the common law 
 courts, of which a curious illustration is to be found in the 
 case of Bromage v. Gennings,(^) in the 14 James I. Brom- 
 age sued Gennings in the Court of the Marches of Wales for 
 not executing a lease according to his bargain, and from the 
 statement of the plaintiff' s counsel it appears to have been 
 a suit for specific performance and not to recover damages, 
 and this, he added, is usually done in chancery. There- 
 upon the defendant moved for a prohibition and obtained 
 it, Coke, Doddridge, and Haughton saying that chancery 
 OQght not to do so, for then to what purpose are the actions 
 on the case and covenant ; and Coke added that this would 
 subvert the interest of the covenantor who understands 
 that it is at his election either to lose the damages, or to 
 make the lease. Doddridge observed that if a decree was 
 made for the execution of the lease, and he did not choose 
 to execute it, there would be no other remedy than impris- 
 onment. So complete was the unanimity of feeling in the 
 court that Serjeant Harris, the respondent's counsel, said 
 that the part he took in the matter was against his con- 
 science. 
 
 Nevertheless, from this time forward, the jurisdiction ap- 
 pears to have been well established and in frequent exercise. 
 
 (v) 1 Spence, Eq. Jur., 645; C. P. Cooper, {x) Action sur le case, pi. 72. 
 Appx^ 381. (y) 1 Spence, Eq. Jur., 645. 
 
 (w) Page 41 , a. {z) Kolle Bep., 354, 368. See, too, infra, 670.
 
 GENERAL CHARACTER OF THE JITRISDICTIOX. 9 
 
 § 21. Before proceeding further, it will be well to distin- 
 guish the jurisdiction usually described as that in specific 
 performance from some kindred ones formerly exercised by 
 the court of chancery.- By that expression is usually un- 
 derstood that peculiar, and, as it is called, extraordinary 
 jurisdiction, which that court exercised in respect of e5cecu- 
 tory contracts as contrasted with executed contracts. An 
 executory contract is one which is not intended between the 
 parties to be the final instrument regulating their relations ; 
 an executed contract is one which is intended to be thus 
 final, (a) The difference may be illustrated by the contrast 
 between an agreement (say on the dissolution of a partner- 
 ship), to execute a deed containing certain covenants, and 
 the deed itself containing these covenants. The agreement 
 is an executory contract ; the deed is an executed contract. 
 An action founded on the agreement would be strictly an 
 action for specific performance ; an action founded on the 
 deed would not be so described, and it could have been 
 entertained by the court of chancery only on the ground 
 that an injunction or an account was prayed for, or that 
 some independent jurisdiction of the court was invoked. It 
 could not have been supported on the ground of specific 
 performance as ordinarily used. 
 
 § 22. Actions for specific performance of executory con- 
 tracts differ from actions for the performance of trusts. 
 For contracts are for the most part contained in legal instru- 
 ments which give rise to legal rights ; and specific perfonn- 
 ance is therefore only an alternative remedy in lieu of 
 damages. On the contrary, trusts are constituted by instru- 
 ments which are of equitable force only so fjir as the trust 
 is concerned, in respect of which therefore before the judi- 
 cature acts a suit in equity was the only mode of relief. 
 
 § 23. From actions for specific performance we must 
 further distinguish actions for the delivery of a chattel in 
 specie. This may be a mode of specific performance when 
 the right to the chattel flows from a contract.' But the 
 
 (a) Per Lord Sclbome In Wolverhampton See, also, 1 Powell, Contr., 2;55; and infra* 
 and Walsall Railway Co. v. London and § 822. 
 Korthwestern Railway Co., L. R. 16 Eq., 439. 
 
 ' Several articles purchased.'] Specific performance will be decreed as to all, 
 "where the plaintiff can only be compensated in damages for some, of several 
 articles purchased by him. McGowin v. Remington, 12 Pa. St., 56.
 
 10 FRY ON SPECIFIC PERFORMANCE OF CONTRACTS. 
 
 court of chancery had (as we shall see [6]) an independent 
 jurisdiction to decree the delivery up of unique articles, 
 whether tlie right to them resulted from contract or not. 
 
 ij tJ4. Again, from actions for specific performance we 
 must distinguish those cases in which, by reason of fraud or 
 the breach of some fiduciary relationship, a constructive 
 trust arises. Cases sometimes of a mixed nature have 
 arisen ; as, for instance, when by a contract to give up part 
 of an estate if purchased, A. persuaded B. not to compete 
 with liim as a purchaser. On A.'s refusal to abide by his 
 contract, B. might have sued him, alleging at once the con- 
 tract and the breach of A.'s duty as agent. (c) 
 
 We shall hereafter see {d) that the peculiar doctrines of the 
 court as to the specific performance of executory contracts 
 do not necessarily apply to the other forms in which the 
 court gi'ants specific relief. 
 
 § 25. There is an observation often made with regard to 
 the jurisdiction in specific performance which remains to be 
 noticed. It is said to be in the discretion of the court.' 
 The meaning of this proposition is not that the court may 
 arbitrarily or capriciously perform one contract and refuse 
 to perform another ; but that the court has regard to the 
 conduct of the plaintiff and to circumstances outside the 
 contract itself, and that the mere fact of the existence of a 
 valid contract is not conclusive in the plaintiff' s favor, (e) ' ' If 
 the defendant," said Plumer, Y. C, "can show any circum- 
 stances dehors, independent of the Meriting, making it in- 
 
 (b) Infra, § 57. (.d) Infra, § S-J-2 et seq. 
 
 (c) SeeChattockv.AIuller,SCh.D.,177,181. (e) Lamare v. DLson, L. E. 6 H. L., 414. 
 
 ' Neither party to a contract is entitled to a decree for specific performance 
 as a matter of right, the granting or withholding such relief is always in the 
 sound discretion of the court : this is the rule as laid down by all the authori- 
 ties, and sustained in a long chain of decisions. Pyrke v. Waddington, 10 
 Hare, 1; Cox v. Maddleton, 2 Drew, 209; Bennett v. Smith, 16 Jur., 422; Wat- 
 son V. Marstou, 4 De G. M. & G., 230; Waters v. Howard, 1 Md. Ch., 112; 
 Blackmilder v. Loveless, 21 Ala., 371; Hudson v. Layton, 5 Harring., 74; 
 Young V. Daniels, 2 Iowa, 126; Rudolph v. Covell, 5 id., 126; Anter v. Miller, 
 18 id.. 405; Waters v. Howard, 8 Gill., 262; Smoot v. Rea, 19 Md., 398; Hes- 
 ter V. Hooker, 7 Sm. & Marsh, 768; Tobey v. County of Bristol, 3 Story, 800; 
 Pickering v. Pickering, 38 N. H., 400; Humbard v. Humbard, 3 Head (Tenn.), 
 100: Scott V. Whiltour, 20 HI., 316; Doyle v. Harris, 11 R. I., 539. Where 
 the vendor refused to fulfill, as required hy the terms of the contract : Held, 
 by the Court of Appeals in Xew York, that the right to maintain a suit for 
 specific performance was perfect. Peters v. Delaplaine, 49 N. Y., 362; see 
 McComas v. Easley, 21 Gratt., 23; Hale v. Wilkinson, 31 id., 75; Beach v. 
 Dyer, 93 111., 295.
 
 CtENERAL OIIAEACTER of the JURISDICTION". 11 
 
 equitable to interpose for the purpose of a specific perform- 
 ance, a court of equity, having satisfactory information 
 upon that subject, will not interpose." (./) But of these 
 circumstances the court judges by settled and fixed rules ; 
 hence the discretion is said to be not arbitrary or cajDricious, 
 "but judicial ; {g) hence, also, if the contract has been entered 
 into by a competent party, and is unobjectionable in its 
 nature and circumstances, specific performance is as much 
 a matter of course and therefore of right as are damages. (/^) 
 The mere hardship of the results will not affect the discre 
 tion of the court. '(0 
 
 (/) In Clowes v. Higginson, 1 V. & B., 527. {h) Hall v. Warren, 9 Ves., 605, 608. 
 
 Ig) Goring v. Xash, 3 Atk., ISO; White v. (z) Haywood v. Gope, 25 Beav., 140, where 
 
 Damon, 7 Ves., 30, 35; Buckle V. Mitchell, 18 Lord Roniilly, M. R., fully discusses the 
 
 id., 100, 111; Revell v. Hussey, 2 Ball & B., nature of the discretion in specific pertbrm- 
 
 ^88. ance. 
 
 ' Rule as to specific j)erformance.'\ It is as much a matter of course for a court 
 of equity, sitting as such, to decree the specilic performance of a contract, as 
 for a court of law to give damages for the breach of it, where the matter con- 
 cerns real estate, is valid, unobjectionable in its nature, and in the circum- 
 stances connected with it : it must, however, be capable of being enforced. 
 Hall V. Warren, 9 Ves., 608; Haywood v. Cope, 25 Bow , 140; Rogers v. Saun- 
 ders, 16 Me., 92; Griffith v. Frederick Co. B'k, 6 Gill & John., 424; Pigg v. 
 Corder, 12 Leigh., 09; Meeker v. Meeker, 16 Conn., 403; Seymour v. Delancey, 
 Cow., 445; 6 Johns. Ch., 222; King v. Merford, 1 N. J. Eq., 274; Plummer v. 
 Kepler, 26 id., 481; Anthony v. Leftwich, 3 Rand. (Va.), 238; Prater v. Miller, 
 
 3 Hawks., 629; Turner v. Clay, 3 Bibb., 52; Frisly v. Ballance, 4 Scam., 287; 
 Broadwell v, Broadwell, 6 111., 599: McMurtrie v. Bennett, Harr. Chan. (Mich.), 
 124; Dougherty v. Hamston, 2 Black., 273; St. John v. Benedict, 6 Johns. Ch., 
 Ill; McWharter v. ]\IcMahn, 1 Clark. (N. Y.), 400; Henderson v. Hayes, 3 
 Watts., 148; Perkinsou v. Wright, 3 Han. & Michen, 324; Leigh v. Crump, 1 
 Ired. Eq., 299; Gould v. Womack, 2 Ala., 83; Pulman v. Owen, 25 id., 493; 
 Ash y. Daggj^ 6 lud., 259; Howard v. Moore, 4 Sueed., 317; Minturn v. Sey- 
 mour, 4 Johns. Ch., 497; Jackson v. Ashton, 11 Peters, 22a ; Bowen v. Irish, 6 
 Bosw., 245; Lowery v. Buffington, 6 W. Va., 249: Abbott v. L'Hommedien, 
 10 id., 677; Stearns>. Beckham, 31 Gratt., 379. 
 
 When j^idicial dmretion cemes.'\ The relief demanded in an action for the 
 specific performance of a contract lies in the discretion of the court, only so 
 far as it must necessarily judge whether, under the circumstances, the agree- 
 ment is, or is not, an inequitable one. When that fact is determined, judicial 
 discretion ceases. Goodwin v. Collins, 4 Houst. (Del.), 28; King v. Hamilton, 
 
 4 Pet., 310; Lee v. Kirby, 104 Mass., 420; Wedgwood v. Adams, 6 Beav., 600. 
 
 I
 
 12 FRY ON SPECIFIC PKKFORMANCE OF CONTRACTS. 
 
 CHAPTER II. 
 
 OF THE EXTENT OF THE JURISDICTION. 
 
 § 26. It lias already been in substance observed that if a 
 contract be made and one party to it make default in per- 
 formance, there appears to result to the other party a right 
 at his election either to insist on the actual performance of 
 the contract, or to obtain satisfaction for the non-perform- 
 ance of it.(rt) It may be suggested that from this it follows 
 that a perfect system of jurisprudence ought to enforce the 
 actual performance of contracts of every kind and class, 
 except only when there are circumstances which render 
 such enforcement unnecessary or inexpedient, and that it 
 ought to be assumed that every contract is specifically en- 
 forceable until the contrary be shown. But so broad a 
 proposition has never, it is believed, been asserted by any 
 of the judges of the court of chancery, or their successors 
 in the high court of justice, though, if prophecy were the 
 function of a law writer, it might be suggested that they 
 will more and more approximate to such a rule.* 
 
 Judges have sometimes dwelt upon those negative cir- 
 cumstances which render specific performance unnecessary 
 or inexpedient ; sometimes on those affirmative circum- 
 stances which render such performance necessary and ex- 
 pedient. 
 
 (a) See supra, § 4. 
 
 ' Rule ill respect to xchat contracts will be enforced.'] Every contract should be 
 enforced, the subject of which is susceptible of substantial enjoyment ; pro- 
 vided the circumstances surrounding and connected with the contract, bring it 
 within the rules entitling the party to equitable relief. Bruck v. Tucker, 42 
 Cal., 347; Johnson v. Ricket, 5 id., 218. Where the agreement is in writing, 
 is fair and certain, is upon an adequate consideration, and is capable of being- 
 enforced, a court of equity will decree specific performance as a matter of 
 course. Chance v. Beall, 'iO Ga., 143; Rogers v. Saunders, 16 Me., 62: HoflFer 
 V. Hoffer, 16 N. J. Eq., 147. Wherever such interference becomes necessary 
 to prevent the improper diversion of a specific fund devoted to a particular usse, 
 or to prevent a great and irreparable injury, or to avoid a multiplicity of ac- 
 tions ; a court of equity has jurisdiction, and will interfere. Skinner v. Mor- 
 ris Canal k, Banking Co., 27 N. J. Eq., 364; Farmer v. Vallentine, 3 Nebr., 498.
 
 EXTENT OF THE JURISDICTION. 13 
 
 § 27. The following propositions may help to explain the 
 extent to ^Yhicll the jurisdiction has hitherto gone, assuming 
 in each proposition (unless otherwise stated or implied) the 
 existence of a contract binding in equity. The court will 
 interfere in specific performance :' 
 
 (1) Where there is no common law remedy. 
 
 (2) Where the common law remedy exists, but is not 
 adequate. 
 
 On the contrary, the court will not interfere in specific 
 performance : 
 
 (3) Where the common law remedy exists and is adequate. 
 
 ^ Equity creates no right of action. '\ Notwitlistauding a court of equity will 
 supply a remedy where none exists at law, yet it wilfuot create a rioht of ac- 
 tion where the law gives none. The rule which requires a plaintifl' to show a 
 present subsisting right of action, is equally regarded in equity as at law. Hoy 
 V. Hansbrough, 1 Freem. (Miss.) Ch., 533; see Foote v. Garland, 1 Sm. & 
 Marsh. Ch., 95; Slanson v. Watkius, 44 N. Y. Supr. Ct., 73. 
 
 When remedy nwst often e.vermed.] Specific performance is most frequently 
 exercised in the case of contracts concerning real estate, the remedy being ap- 
 plied not only as between the original parties, but also to all who claim under 
 them. Glaze v. Drayton, 1 Desau, 109; McMorris v. Crawford, 15 Ala., 271; 
 Ewins V. Gordon, 49 N. H., 444; Nesbit v. Moore, 9 B. Mon., 508; Tieruan v. 
 Roland, 27 Pa. St., 429; Ambrouse v. Keller, 22 Gratt.. 769; Laverty v. Moore, 
 33 N. Y., 658; Murphy v. McVicker, 4 McLean, 253; St. Paul Div. v. Brown, 
 9 Minn., 157; Yarick v. Edwards, 1 Hoffm. Cli., 382; Sterling v. Klepsattle, 
 24 Ind., 94; Maddox v. Rowe, 23 Ga., 431; Vaughn v. Barkley, 6 Whart.,392; 
 Harding v. Metropol. R. R., L. R., 7 Ch. 154; Eastern Counties R. R. Co. v. 
 Hawkes, 5 House of Lords, 331 ; Lewis v. Lord Lechmore, 10 Med., 503; Hood 
 V. Northwestern R. R. Co., 8 Eq., 666; aff'd, 5 Ch. App., 525. 
 
 Clioice of Bemedies.] Notwithstanding a vendor of real estate usually has an 
 adequate remedy at law, yet he has a choice of remedies. Forsyth v. McCau- 
 ley, 48 Ga., 402; Pinkie v. Curtiss, 4 Brown's Ch., 329; Carey v. Smith. 2 N. Y., 
 60: Schropell v. Hopper, 40 Barb., 425; Bryson v. Peak, 8 Ired. Eq., 310; 
 Phyfe V. Warden, 5 Paige Ch., 268; Springs v. Sanders, Phill. (N. C) Eq., 67; 
 Finley v. Aiken, 1 Grant. Pa. Cas., 83; Lanison v. Barb, 4 Watts., 27; Old 
 Colony R. R. Co. v. Evens, 6 Gray, 25. In Deck's Appeal (57 Pa. St., 467) and 
 Kauff man's Appeal (55 Pa. St., 383), the bill was dismissed, where the whole 
 object of it was to obtain payment of the purchase money. 
 
 liule in regard to personal property.] Whatever may be the nature of the 
 property, if the plaintiff has not an adequate remedy at law, a court of equity 
 will entertain jurisdiction. It is no ground of demurrer to a bill, that it seeks 
 specific performances of a contract relating to personality. Carpenter v. Mut. 
 Safety Ins. Co., 4 Sandf. Ch., 408; Clark v. Flint, 22 Pick., 231; Roundtree v. 
 McLean, 1 Hemp., 245; Sullivan v. Fink, 1 Md. Ch., 59; Waters v. Howland, 
 
 I Md. Ch., 112; City Council v. Page, Spear. (S. C.) Ch., 159; Hoy v. Hans- 
 borough, 1 Freem. (Miss.) Ch., 533; Lloyd v. Wheatly, 2 Jones' Eq., 267; 
 Johnson v. Rickert, 5 Cal., 218; Dull" v. Fisher, 15 id., 375; Furman v. Clark, 
 
 II N. J Eq., 3 Stock., 306; Mechanics' Bk. v. Seaton, 1 Peters, 299; Cutting 
 V. Danna, 25 N. J. Eq., 265; Corbin v. Tracy, 34 Conn., 325. 
 
 Where the jiroperty has exceptional value.] Specific performance will be de- 
 creed for the delivery of chattels which none but the defendant can supply, 
 and Avhich are necessary to enable the plaintiff to fulfill a contract with third 
 parties. Buxton v. Lister, 3 Atk., 385. 
 
 Contracts for the scde of stock.] If a breach of contract can be fully compen- 
 sated in damages, equity will not interfere. Specific performance will be de-
 
 14 FKY ON SPECIFIC PERFORMANCE OF CONTRACTS. 
 
 (4) Where tlie contract is such as the court cannot per- 
 form. 
 
 (5) Where the performance of the contract would prove 
 
 useless. 
 
 (6) Wliere the court would be unable to enforce its own 
 judgment. 
 
 (7) Where the enforced performance of the contract 
 would be worse than its non-performance. 
 
 (8) Where tlie contract is voluntary. 
 
 (9) Where the plaintiff has elected to proceed in some 
 other manner than for specific performance. 
 
 (10) AVhere the jurisdiction has been taken away by 
 statute. 
 
 creed, however, when the contract to convey stock is clear and definite, and 
 the uncertain value of the property renders it difficult to do justice by an award 
 of damages. White v. Schuyler, 1 Abb. Pr. (N. S.), 300; S. C, 31 How. Pr., 
 38; Treasurer v. Commercial Co., 23 Col., 390. 
 
 Speciiic performance as to debts.'] Specific performance of a contract to bor- 
 row or'lend money, will not be enforced by a court of equity. Rogers v. Chal- 
 lis, 27 Beav., 175; Siebel v. Mosenthal, 31 L. J. C, 326; Lariss v. Gurety, L. 
 R. 5 P. C, 346. An agreement to give security for a debt will be enforced. 
 Ashton V. Corrigau, L. R., 13 Eq., 76; Robinson v. Cathcart, 2 Cranch, 590; 
 Ogdeu V. Ogdea; 4 Ohio St., 183; Stockley v. Davis, 17 Ga., 177. Aparol 
 contract for a mortgage of personal property was made, a valuable considera- 
 tion being given therefor, and the Statute of Frauds not requiring the same to 
 be in writing — Held, that a court of equity would enforce the contract. Trie- 
 bert V. Burgess, 11 Md., 452. The creditors of an insolvent firm agreed to sell 
 their claim to one of their number at twenty-five per cent — Held, that the con- 
 tract, although for the sale of a debt, would be specifically enforced, for the 
 reason that the complainant has not a clear and adequate remedy at law. Cut- 
 ting V. Dana, 25 N. J. Eq., 265. The following written agreement was made 
 by the owner of a mortgage debt : "that on receiving money from another 
 person, he will pay him a specific portion of the debt when received, and in 
 manner as received." Held, that such an agreement would be specifically en- 
 forced. Buck V. Swazey, 35 Me., 41. The vendor of land agreed to release 
 the same from the lien of a mortgage. Held, that specific performance would 
 not be decreed. Bennett v. Abrams, 41 Barb., 619; Barkley v. Barkley, 14 
 Rich, Eq., 12. In Barry v. "Walker (6 B. Mon., 464) land was sold, the pur- 
 chase price to be paid immediately in order that the same might be released 
 from the lien of certain mortgages; part of the price was paid, and a bill was 
 filed enjoining the vendor, who was insolvent, from selling and from commit- 
 ting waste. A decree was obtained. Afterward the purchaser tendered good 
 notes for the full amount of the purchase money, offered to perform, and filed 
 an amended bill to compel a specific performance of the contract. The land 
 was sold under foreclosure, and bought in by the party to whom it was origi- 
 nally sold, who paid cash for the amount of the lien. Held, that he had a 
 right to extinguish the lien in that manner. Gillis v. Hall, 2 Brems. (Pa.), 342; 
 Broadwell v. Broadwell, 6 111., 599; Dailey v. Lichfield, 10 Mich., 29. The 
 grantee of land executed a bond, the consideration being the support of the 
 grantor for life, and, in case of neglect, to recouvey the land. Held, upon 
 failure to perform, that a court of equity would decree a re-conveyance. Rob- 
 inson v. Robinson, 9 Gray, 447. A contract to indemnify against a pecuniary 
 liability will be specifically enforced, notwithstanding its performance is re- 
 versed by a penalty. Chamberlain v. Blue, 6 Blackf., 491 ; Champion v. Brown. 
 6 Johns. Ch.. 398.
 
 EXTENT OT THE JUEISDICTION. . 15 
 
 After the foregoing propositions have been discussed, it 
 will be shown : 
 
 (11) That the jurisdiction is" against the defendant per- 
 sonally. 
 
 Lastly will be considered : 
 
 (12) Certain cases of quasi-contract in which the court 
 has jurisdiction. 
 
 1. Where there is no common laio remedy. 
 
 § 28. In many cases though a contract was in conscience 
 obligatory upon both the parties to it, yet the common law, 
 from the strictness of its forms, afforded no remedy to the 
 j)arty injured by the other's non-performance. The defect 
 of justice which hence arose was avoided by the jurisdiction 
 of equity, which in such cases has comi)elled the specific 
 execution of the contract, if in other respects fit for the 
 intervention of the court. 
 
 § 29. By the principles of the common law, exact i)er- 
 formance by the plaintiff of his i)art of the contract accord- 
 ing to its very terms must be averred and proved; whereas, 
 in equity, a distinction has been made between those terms 
 w^hich are of the essence of the contract and those terms 
 which are not thus essential, and a breach of which it is 
 inequitable for either party to set up against the other as a 
 reason for refusing to execute the contract between them. 
 In these cases the doctrine of common law was forfeiture, 
 the doctrine of equity is compensation. " Lord Thurlow,'^ 
 to quote the language of his successor Lord Eldon, "used 
 to refer this doctrine of specific performance to this : that it 
 is scarcely possible that there may not be some small mis- 
 take or inaccuracy ; as, that a leasehold interest represented 
 to be for twenty-one years, may be for twenty years and 
 nine months ; some of those little circumstances that would 
 defeat an action at law, and yet lie so clearly in compensa- 
 tion that they ought not to prevent the execution of the 
 contract. "(&) On this ground the jurisdiction rests in all 
 cases where specific performance is decreed with compensa- 
 tion by the plaintiff. 
 
 § 30. The fact that the common law remedy has been lost 
 
 (6) In Mortlock v. Buller, 10 Ves., 305-6. See, also, Stewart v. Alliston, 1 Mer., 26, 32.
 
 16 FRY ON SPECIFIC PERFORMANCE OF CONTRACTS. 
 
 by the default of the very party seeking the specific per- 
 formance of a contract will not exclude the jurisdiction, if 
 it be" notwithstanding conscientious that the contract should 
 be performed, as in cases where the plaintiff has performed 
 his part substantially, but not with such exactitude as to be 
 able to plead such performance as the common law courts 
 required, (c)' 
 
 § 31. But besides these cases, there are many others in 
 which the court interferes, because there is no common law 
 remedy by reason of something in the subject-matter of the 
 contract, (r?) or the parties to it, or the form in which it is 
 concluded, 
 
 § 32. Thus the court will give relief in respect of a con- 
 
 (c) Davis V. Hone, 2 Sch. & Lef., 341, 347. (rf) See per James, L. J., In Bewley v. At- 
 kinson, 13 Ch. D., 305 (windows J. 
 
 ' This rule is well established, and forms one of the leading features of equity 
 jurisdiction. Performance to the letter is not required; and it is sufficient if 
 the complainant can show that he has not been in fault, and that he has taken 
 all proper steps toward performance. McCorckle v. Brown, 9 Smedes and 
 Marsh., 167; Coale v. Barnej', 1 Gill & John., 324, and Voorhees v. De Meyer, 
 2 Barb. Sup. Ct., 37, are leading cases on this point. In the former case an 
 agreement Avas entered into on the 27th of November, 1813, between the cestm's 
 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 unim- 
 proved trust property, to secure to all the cestuis que trust an immediate partici- 
 pation 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 cestui^ que tn/st, their executors and administrators, in certain pro- 
 portions. 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 agreement, 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 agreement only so far as could 
 be done consistently with the great design ; that the agreement containing pro- 
 visions Avhich, 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, collected from the whole in- 
 strument, would justify; that the failure to comply with an engagement to do a 
 merely nugatory act should not impair the right of the complainants to the 
 specific performance of the agreement ; the facts in the case otherwise sustain- 
 ing 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 Voorhees v. De Meyer, G. 
 agreed with D. to pay for certain lands in five equal, annual installments. 
 Twenty-eight years after the date of the agreement, havino; made payments 
 from time to time, G. proposed to D. that he should give liim, G., a deed for 
 the lands, and seciu-e the remaining payments by mortgage on the property. 
 D. tendered a deed which was not satisfactory and was refused, and G. tiled a 
 bill for a specific performance. Held, that G. had not so far departed from the 
 terms of his contract as to be refused relief; and that where non-compliance 
 with the terms of an agreement does not go to its essence, relief will be granted, 
 notwithstandiug the laches of the party seeking to enforce performance. See, 
 also, Shaw v. Livermore,- 2 Green's (Iowa) Rep., 338.
 
 EXTENT OF THE JURISDICTION. 17 
 
 tract to assign a chose in action, (e) or of a contract concern- 
 ing the hope of succession of an heir, (/) although no dam- 
 ages could have been recovered at common law for contracts 
 dealing with these subject-matters, and it will in a proper 
 case specifically enforce a right of pre-emption, and restrain 
 by injuncion the viokition of such a right, and will specifi- 
 cally enforce a compromise. (17)' In one case Plunier, M. R., 
 intimated the opinion that where a promissory note had 
 been handed over for valuable consideration unindorsed, a 
 court of equity would, at the suit of the holder, compel the 
 transferor, or his jjersonal representative, to indorse it in 
 order to substantiate the right of the transferee. (7^) A con- 
 tract between joint tenants of a copyhold estate to divide it 
 between them has been specifically enforced. (/)' 
 
 § 33. Again, the court will specificallj^ enforce a contract 
 to execute a mortgage, and that even with an immediate 
 power of sale where the money has been actually advanced 
 
 (e) 1 Mad. Ch.,362. " combe Railway Co , L. R. 3 Ch., 377; Lord 
 
 (/) Jones V. Roe, 3 T.R., 88, compared with Beauciiamp v. Great Western Railway Co., 
 
 Beckley v. Newland, 2 P. Wms., 182. and id., 745. 
 
 cases infra, § 1502 et seq. See, also, 1 Fonbl. (ft) Watkins v. Maule,2 J. & W., 243; Byles 
 
 Eq., 216. on Bills (11th ed.). 154. Distinguish Edge v. 
 
 {g) Homfray v. Fothergill, L. R. 1 Eq., 567, Bumlord, 31 Beav., 247. 
 
 573; Birmingham Canal Co. v Cartwright, (i) Bolton v. Ward, 4 Ha., 530. See, too, 
 
 11 (Jh D., 421. Cf. Lord Carington v. Wy- Seton, 530 (contract for exchange). 
 
 1 Every contract cauuot be enforced in a court of equity ; it is only where it 
 is strictly equitable to do so, that the legal intention and effect will be carried 
 out. Canterbury Aqueduct Co. v. Ensworth, 22 Conn., 608. 
 
 ^ Where a legal remedy is obstructed, a court of equity may enforce or set 
 aside a contract to purchase lands, compel deeds of confirmation to be made, 
 and in a case where deeds are lost, or not recorded, a court of equity will inter- 
 vene. Blight V. Banks, 6 T. B. Mon., 152; Davis v. Hall, 4 id., 23; Cummings 
 V. Coe, 10 Cal., 529. Where without fault of the grantee, a deed was lost before 
 being recorded, the grantor was compelled to give a duplicate deed. A demand 
 must be first made. Conlin v. Ryan, 47 Cal., 71 ; see Lindeman v. Rinker. 42 
 Ind., 223. A court of equity will frequently decline to interfere to establish 
 possession of property, when, nevertheless, it will refuse to disturb the posses- 
 sion where it has been obtained without its agency. Crane v. Gough, 4 Md., 
 316 Where a jurisdiction has been properly acquired, a court of equity will 
 settle the controversy, even in a case which did not afford original grounds of 
 jurisdiction. Brooks v. Stoley, 3 McLean, 523; Pearson v. Darrington, 21 Ala., 
 169; Martin v. Tidwell, 36 Geo., 332; Franklin Ins. Co. v McCrea, 4 Greene 
 (Iowa), 229; Handley v. Fitzburgh, 1 A. K. Marsh., 24; State v. McKay, 43 
 Mo., 594; Armstrong v. Gilchrist, 2 John. Ch., 424, 431; Londer's Appeal, 57 
 Pa. St. , 498. It was held that a judgment for specific performance could not 
 be granted, even in a case where the "evidence was suflicieut to warrant such a 
 suit. This was in an action by the vendors of real property against the pur- 
 chaser foi- damages for the non-fulfillment of contract. The trial was without 
 a jury. Towle v. Jones, 19 Alb. Pr., 449 ; see Cowenhoren v. City of Brooklyn, 
 88 Barb., 9. Damages for breach of a covenant to improve land sold for a 
 public square recovered in an action; held no bar to a subsequent suit for 
 specific performance of a covenant to keep the premises forever open as such 
 public square. Stuyvesant v. Mayor of New York, 11 Paige Ch., 414. 
 
 2
 
 18 FKY ON SrECIFIC PEKFOKMANCE OF CONTRACTS. 
 
 either before or at the time of the contract;^') though it will 
 not so enforce a mere agreement to lend, advance, or pay 
 money(70 (though the loan be one to be secured by mortgage), 
 while'it rests entirely unperformed either by the intended 
 lender (/) or by the intended borrower. (m) "The Statute of 
 Frauds does not apply to such a case. Therefore if the 
 court has jurisdiction in such a case, any conversation may 
 be made the subject of a suit for specific performance : thus 
 if two friends are walking together and one says, ' Will you 
 lend me £100 at £5 per cent, for a year on good security 'I ' 
 and the other says ' I will,' that conversation might be made 
 the subject of a suit for specific performance in this court 
 if, on the next day, one friend should say ' I do not want 
 the money,' or the other should say 'I will not lend it.' 
 Nothing would be more difficult and more dangerous than 
 the task which this court would have to perform if it were 
 to investigate cases of that description, "(ti) 
 
 § 34. In one case there was a contract by B. to advance 
 C. £3,000 on the security of some leasehold houses for five 
 years. B. advanced £600 on deposit of the lease of one of 
 the houses. The contract was (in the opinion of the court) 
 that B. should not be entitled to call for the lessor's title. 
 Nevertheless he did call for it, and on its being refused, 
 filed a bill for specific performance of the contract, or for 
 the sale of the property to repay him the £600 and interest. 
 The court considered that the plaintiff was in the wrong, 
 but the defendant submitting to jjerform the contract with- 
 out showing the lessor' s title, and the plaintiff" electing to 
 have a decree, made him pay the costs of the suit, as the 
 price of its interference, (o) 
 
 § 35. In another case S., who had become liable for a 
 debt of W., and with whom W. had deposited title deeds 
 as an indemnity, was held entitled to have a written mem- 
 orandum of the terms of the deposit signed by W. (p) 
 
 § 36. Again, though no action would lie at common law 
 in respect of a contract to convey by a particular day, which 
 was rendered impossible by the death of the contractor be- 
 
 O) Aehton v. Corrlgan, L. E 13 Eq., 76; (m) Sichel v. Mosenthal, 30 Beav., 371. 
 ttermann v. Hodges, L. R. 16 Eq., 18. Cf. (n) Per Lord Komilly, M. R., In Rogers v. 
 
 Taylor v. Eckereley, 2 Ch. D., 302. Challis, 27 Beav., 178. 
 
 (*) Larios v. Bonany y Gurety, L. R. 5 P. (o) Bass v. Clivley, Taml., 80. 
 C, 346. Cf. Brough v. Oddy, 1 R. & M., 55. (p) Sporle v. Whayman, 20 Beav., 607. 
 
 (0 Rogers v. Cballis, 27 Beav., 175.
 
 EXTENT OF THE JUEISDICTION. 19 
 
 fore that day, yet specific performance would be decreed by 
 the court of chancery against the heir, {qy 
 
 § 37. The court of chancery has also interfered specifi- 
 cally to execute a contract evidenced by a bond given to a 
 v^ife by her husband, or to a husband by his wife,(r) before 
 marriage, though the bond was suspended at common law 
 by the intermarriage. "* 
 
 § 38. The same principle equally applies to give the 
 court jurisdiction where, though the contract is in its nature 
 such that a breach of it can be satisfied by damages, yet 
 from some particular 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 
 
 (5) See arguments of counsel in Milnes v. v. Acton, Prec. Ch., 237. See, too, Gage v. 
 Gery, U Ves., 403, and 1 Mad. Ch., 362. Acton, 1 Salk., 325. 
 
 (r) Cannel v. Buckle, 2 P. Wms., 242 ; Acton 
 
 ' At common law, choses in action are not assignable. Greenby v. Wilcox, 
 2 John., 1; Coolidge v. Ruggles, 15 Mass., 338. But they may be assigned 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., 34; 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 equity, 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, 
 
 ' In Glaze v. Drayton, 1 Dessau., 109, the contract of the ancestor was de- 
 creed 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 part performance thereof, the same decree was given against one Wilkinson, 
 a minor, in the case of Wilkinson v. Wilkinson, 1 Dessau., 201. In Saunders 
 V. Simpson, 2 Har. & 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 
 ancester. Therefore, where the vendor agreed to convey land by a good and 
 sufficient 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 of 
 the agreement to convey, that the infant defendant must convey, but without 
 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 con- 
 tract, deducting out of each payment due, and to become due, a proportionate 
 share of the amount that should be found to be the value of the widow's right 
 of dower. Hill v. Ressegieu, 17 Barb., 162.
 
 20 FRY ON SPECIFIC PERFORMANCE OF CONTRACTS. 
 
 made complete by subsequent articles, so that it was doubt- 
 ful whetlier tlie contract, as it then stood, would not have 
 been considered at law as incomplete, and so the plaintiff 
 have been debarred of any remedy there. Lord Hardwicke 
 held that tlie contract was one which the court of chancery 
 could specifically perform. (5) In another case a contract to 
 purchase a debt was enforced against the purchaser, on the 
 ground that the debt had not been so assigned to him as to 
 enable him successfully to sue at law -,{1) 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 upon the contract, was one 
 ground on which the court of chancery was held to have 
 jurisdiction. (?/)' 
 
 § 39. It is said that before the time of Lord Somers the 
 practice of the court of chancery was to send the parties to 
 law, and to entertain the suit only in case of the plaintiff 
 there recovering damages, (^^ a practice which, of course, in- 
 volved the proposition that specific performance could not 
 be granted except in cases where damages could be recovered 
 at law.' The case in which this principle was the most 
 distinctly maintained was that of Dr. Bettesworth v. The 
 Dean and Chapter of St. Paurs,(?o) decided by Lord King in 
 1726, with the assistance of Raymond, C. J., and Price, J. 
 A lease had been granted by the defendants previously to 
 the disabling statute of 13 Eliz., with a 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 main- 
 tained on the covenant after the passing of the statute. "I 
 take this to be a certain clear rule of equity," said Ray- 
 
 (s) Buxton V. Lister, 3 Atk., 383; but see (m) Doloret v. Rothschild, 1 S. & S., 590. 
 
 infra, §§ 317, 488. (v) Per Clarke, M. R., in Dodsley v. Kin- 
 
 (0 Wright V Bell, 5Pri. 325. Of. Adderley ner^ley, Ambl., 406. 
 
 T. Dixon, 1 S. & S . 607. (w) Sel. Cas. in Ch., 66. 
 
 ' See Costwaight v. Hutchinson, 2 Bibb., 407; Gould v.Womack, 2 Ala., 83. 
 In New York all contracts between persons in contemplation of marriage remain 
 in full force after such marriage takes place. Laws of New York, 1849, p. 529, 
 ch. 375, § 3. 
 
 * Where it is not clear that a court of law can give the relief asked for, chan- 
 cery will entertain jurisdiction. West v. Wayne, 3 Miss., 16 ; Wheeler v. Clinton 
 Canal Bank. Harring Ch., 449; Philips v. Thompson, 1 John. Ch., 133.
 
 EXTENT OF THE JUKISDICTION. 21 
 
 mond, C. J.,{x) "that a specific performance sliall never be 
 comx3elled for the not doing of which the law would not give 
 damages. The covenant to oblige them to make a lease for 
 ninety -nine years is gone, and damages cannot be recovered 
 for part of a covenant, and I, therefore, am of opinion equity 
 cannot interfere." This decision, which was opposed by 
 the opinion of Jekyll, M. R.., 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 re- 
 strained within these limits, and that there are many cases 
 in which specific performance is granted where no action for 
 damages could be maintained, (i/)' 
 
 2. WJiere flier e is no adequate common law remedy. 
 
 3. Where tliere is an adequate common law remedy. 
 
 § 40. The propositions that the court will interfere in 
 specific performance where the common law remedy exists, 
 but is not adequate, and that the court will not interfere 
 where the common law remedy exists and is adequate, being 
 in the nature of converse propositions will be conveniently 
 considered together.^ 
 
 (x) Page 69. Steward, 3 Mer., 491, to which Mr. Justice 
 
 («/) Per Lord Redesdale in Lennon v. Nap- Story (Eq. Jur., § 741) has referred as a dic- 
 
 per, 2 Sch. & Lef., 6S2; Cannel v. Buckle, 2 turn of Grant, M. R., is the language of 
 
 P. Wms.,242. The passage in Williams v. counsel fl/ffwewfto. 
 
 ' "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- 
 ance, or where the terms of the contract have not been strictly complied with, 
 and yet equity relieves the party, are proofs that the right to maintain a suit in 
 equity does not, and cannot, properly, be said to depend upon the party's 
 liaving a right to maintain a suit at law for damages. In cases of specific per- 
 formance, courts of equity sometimes follow the law, and sometimes go far 
 beyond the law ; and their doctrines, if not whollj^ independent of the point, 
 whether damages would be given at law, are 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, w^ould find himself involved 
 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 ex- 
 plained by Mr. Justice Story, and as laid down in the text. There ^are, how- 
 ever, contrary decisions in this country. See Allen v. Beal, 3 A. K. Marsh., 
 554, and Smith v. Carney, 1 Litt., 298. 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 not relieve where the law would not award 
 damages, and msumpsit, the only action which could be maintained at law, the 
 contract having been made before the introduction of the Statute of Frauds, 
 was barred by the delay. 
 
 ^ A specific performance will be decreed, when the party wants the thing in 
 specie, and cannot be otherwise compensated; where an award of damages
 
 z' 
 
 22 FRY OX SPECIFIC PERFORMAKCE OP CONTRACTS. 
 
 § 41. The only remedy at common law for the non-per- 
 formance of a (contract was in damages, that is to say, in the 
 payment of a sum of money by the party who had broken 
 the contract to the party injured by that breach.' If 
 money were in all cases a perfect 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 an exact equivalent only 
 when by money the loss sustained by the breach of the con- 
 tract 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 precisely the same 
 market value as another, may be vastly different in every 
 other circumstance that makes it an object of desire ; so 
 that it evidently follows that there would be a failure of 
 justice, unless some other jurisdiction supplemented that 
 of common law, by compelling the defaulting party to do 
 that which in conscience he is bound to do, namely, actually 
 and specifically to perform his contract. The common law 
 treats as universal a proposition which is for the most part, 
 but not universally, true, namely, that money is a measure 
 of every loss.(^) The defect of justice which arose from this 
 universality of the common law principle was met and 
 remedied in certain cases by the jurisdiction of courts of 
 equity to compel specific performance. 
 
 § 43. Even when money is alone in question, the com- 
 mon law remedy is in some instances less beneficial than 
 that afforded by courts of equity, and where this is so, a 
 ground is laid for specific performance if otherwise a proper 
 remedy. So where A. gave a note to B., and C. agi^eed with 
 B. for the relinquishment of his (B.'s) claim against A. on 
 the payment of certain sums, for which the notes were, in 
 the contemplation of equity, to stand only as a security, it 
 was held that the court of chancery would specifically per- 
 
 (3) See Aris. Eth Nic. lib. 9, ck. 1. 
 
 would not put him iu a situation as beneficial as if the agreement were specifi- 
 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., 608; Phyfe 
 V. Warden, 3 Edw. Ch., 47. Stuyvesant v. Mayor, etc., of New York, 11 
 Paige's Ch., 414; Nevitt v. Gillespie, 1 How. (Miss.), 108. 
 
 ' See McLane v. Elmer, 4 Ind.. 239.
 
 EXTENT OF THE JURISDICTION. 23 
 
 form the contract, thougli the relations between the parties 
 might have been worked out by actions at law. (a) 
 
 § 43. Leach, Y. C, seems to have considered that the 
 fact that the remedy in damages given at common law de- 
 pended for its beneficial effect upon the personal responsi- 
 bility of the defendant, gave the other party to the contract 
 a right to sue in equity for its actual x)erformance.(5) It is 
 evident that this principle applies to all damages, and, if it 
 were admitted, would give the court jurisdiction by way 
 of specific performance 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. 
 
 In another case the same learned judge appears to have 
 held that the circumstance that damages at law would not 
 accurately represent the value of the contract to either 
 party was a ground for granting specific performance. The 
 contract in that case was for the sale of debts proved under 
 two commissions of bankruptcy ; and Leach, Y. C, granted 
 specific performance, considering that to compel the plaintiff 
 to accept damages would be to compel him to sell those divi- 
 dends which were of unascertained value at a conjectural 
 price. (e) The learned judge just named seems to have shown 
 a tendency to extend the jurisdiction in specific performance 
 somewhat more liberally than most other judges ;(^) and the 
 mere want of exactitude in the measure of damages at com- 
 mon law has not always been held a sufficient ground for 
 the equitable jurisdiction.' 
 
 § 44. The ground of this jurisdiction having been the in- 
 adequacy of the remedy at common law, it followed that 
 where that remedy was adequate, chancery did not interfere 
 
 (a) Beech v. Ford, 7 Ha ,208 (affirmed bv per Lord Hatherley (then Wood.V. C},in 
 
 Lord Cottenham). Cf. Cogent v. Gibson, 33 Pollard v. Clayton, 1 K. & J., 462. 
 
 Beav., 557 (purchase-money of patent). (rf) See Withy v. Cottle, 1 S. & S.,594; Ken- 
 
 (6) Doloret v. Rothschild, 1 S. & S., 590. ney v. Wexham, 6 Mad., 355; Cf. Brealey v. 
 
 (c) Adderleyv. Dixon, 1 S. & S., 607. See Collins, You., 317, 330. 
 
 1 When the court will refuse to act.} In all cases where it is clearly inequita- 
 ble to grant it, the court will refuse to do so. In exercising its discretionary 
 powers, it will act with more freedom than when exercising its ordinary powers. 
 Munch V. Shobel, 37 Mich., 1C6; St. Paul. Div. v. Brown, 9 Min., 157; SneU 
 V. Mitchell 65 Me., 48; Tyson v. Watts, 1 Md. Ch., 13; Fish v. Lightmer, 44 
 Mo., 2«8; Hudson v. King, 2 Heisk. (Tenn.), 560; Quinn v. Roath, 37 Conn., 
 16; Higginbottom v. Short, 25 Miss., 160; Inglehart v. Veil, 75 111., 63; 
 Sweeney V. O'Hara, id., 34; Willard v. Taylor, 8 Wall., 557; Marble Co. v. 
 Ripley,'lO id., 339; Borgan v. Daughdrill, 51 Ala., 312; Daniel v. Frasier, 40 
 Miss., 507; O'Brien v. Fenty, 48 Md., 562.
 
 24 FRY ON SPECIFIC PERFORMANCE OF CONTRACTS. 
 
 to compel specitic performance.' It is on tliis ground that 
 the conrt has generally refused specific performance in re- 
 spect of government stock or chattels, as will be hereafter 
 seen, and refuses it in all cases where the contract is sat- 
 isfied by a mere payment of money, (e) 
 
 § 45. The principle has been recognized in several other 
 cases. It was one of the grounds on which Knight Bruce 
 and Lord Cran worth, L. JJ., acted in dismissing the bill in 
 Lord James Stuart v. London and Northwestern Railway 
 Co.,(/) so far as regarded specific performance and only put- 
 ting the defendants on terms to make certain admissions in 
 any action at law to be brought by the plaintiff against 
 them— their lordships considering that, the railway having 
 been abandoned and complete relief being in their opinion 
 obtainable at law, the case was not one for specific perform- 
 ance. It was also one of the reasons alleged by Lord Cran- 
 worth, L. J., for dismissing the bill in Webb v. Direct 
 London and Portsmouth Railway Co.,(^) he considering 
 that under the circumstances the vendor could obtain com- 
 plete relief at law. The authority of these decisions was 
 subsequently questioned by Lord St. Leonards, (A) but only 
 as to the applicability of the principle to the circumstances, 
 and not as to the validity of the iDrinciptle itself. 
 
 § 46. In one case specific x^erformauce was sought of a 
 contract for a tenancy from year to year, the contract speci- 
 fying that the tenant was in all respects to abide by the 
 terms entered into by a ptrevious tenant, and that the tenant 
 should pay for a contract to be drawn up; it was contended 
 that the court would therefore interfere for the purpose of 
 settling the proper terms of the contract. But the court 
 thought the remedy at law was adequate, and that the full 
 
 Ce) See Brough v. Oddy, 1 R. & M., 55; (/) 1 De G M. &G.,721. 
 
 J.arios V. Bonany y Gurety, L. R. 5 P. C, ((/) I De G. M. & G , 521. 
 
 346; and cf. the cases on contracts with a ih) Hawkes v. Eastern Counties Railway 
 
 penalty, infra, § 114 et seq. Co.,lDeG.M. &G.,737; S. C.,5 H. L.C.,331. 
 
 ^ There is probably no principle of equity more thoroughly established than 
 thib. Dhetegoft v. "Loudon Assur. Co., Mosely's E., 83^ S. C, 1 Atkin's R, 
 547; Rose v. Clarke, 1 Y. & Col., 534; Hammond v. 3Iessenger, 9 Sim., 827; 
 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, et 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; Degsett v. Hart, 5 Florida, 215.
 
 EXTENT OF THE JUEISDICTION. 25 
 
 terms of the contract might be shown there, and therefore 
 refused to decree performance. (/) 
 
 § 47. On this ground also, as well as that of the inca- 
 pacity of the court to execute the works, the court of chancery 
 refused specifically to perform a contract to make a branch 
 railway, although the contract for the execution of it had 
 been entered into during the pendency of the bill before 
 Parliament, arid when several of the directors had thoughts 
 of withdrawing the bill, and would have in fact done so 
 (as the bill of comi^laint alleged), but for the contract in 
 question. (,/) 
 
 § 48. And where a bill sought the specific performance of 
 a contract which would have been effected by a mere account 
 of profits and a payment of the amount found due, and there 
 was no obstacle to the recovery of the amount at law, the 
 court dismissed the suit, (A*) 
 
 § 4d. In analogy with this principle, in a case in which 
 the plaintiffs sought the specific performance of a contract 
 to grant a way-leave for a railway for a term of sixty years, 
 and between the filing of the bill and the hearing the plaint- 
 iffs had obtained statutory powers to take the land in fee^ 
 Stuart, V. C, considered this to be a circumstance strongly 
 influencing the \iiscretion of the court against specific per- 
 formance. (Z) 
 
 § 50. It may 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 in an action for 
 damages, and therefore cannot sustain an action for the. 
 specific performance of the contract. But on further con- 
 sideration 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 burdens and liabilities attaching to it, and would 
 have the purchase-money in his pocket ; whereas, after an 
 action for damages, he still has the land, and, in addition, 
 damages — representing, in the opinion of a jury, the differ- 
 
 (i) Clayton v. Illingworth, 10 Ha., 451. v. Midland Railway Co., 6 W. R., 2.33; 4 Jur. 
 
 (J) South Wales Railway Co. v. Wythes, 1 N. S.. 273. Cf. Bagnell v. Edwards, I. R. la 
 
 K. & J., 186; S. C, 5 De G. M. & G., 880. See, Eq.. 215. 
 
 too.GreenhlUv. Isle of Wight (Newport June- (0 Meynell v Surtees, 3 Sm. & Gif, 101. 
 
 tion) Railway Co., 19 W. R , 345. See, also, per Lord Craiiwonh in Morgan v. 
 
 (i) Ord \. Johnston, 1 Jur. N. S., 1063; 4 Miiman, 3 De G. M. & G.,35. 
 W. R., 37 (Stuart, v. C). See, also, Sturge
 
 ■26 FRY ON SPECIFIC PERFORMANCE OF CONTRACTS. 
 
 ■ence between tlie stipulated price and the price which it 
 would probalily fetch, if re-sold, together with incidental 
 ■expenses and any special damage which he may have suf- 
 fered. (?/i) The doctrine of equity, with respect to the con- 
 version of the land into money, and of the money into land 
 upon the execution of the contract, (?i) and the lien which 
 the vendor has on the estate for the purchase-money, and 
 his right to enforce this by the aid of the court, are addi- 
 tional reasons for extending the remedy to both parties. 
 Accordingly, it is well established that the remedy is 
 mutual, and that the vendor may bring his action in all 
 •cases where the purchaser could sue for specific perform- 
 ance of the contract, and this independently of any ques- 
 tion on the Statute of Frauds, (o) 
 
 § 51. On the principle that damages are a sufficient satis- 
 faction, it is now perfectly settled that specific j^erformance 
 will not be enforced of a contract for the transfer of stock 
 in the public funds. 
 
 § 52. It api^ears, that in one instance, Lord Hardwicke 
 did grant sj^ecific performance of such a contract \{p) but 
 in the earlier case of Cuddee (or Cud) v. Ilutter,(5') Lord 
 Macclesfield, overruling a decision at the rolls, refused to 
 perform a contract to transfer South Sea stbck, though by 
 the decree he undertook to arrange the settlement between 
 the parties. His Lordship assigned three reasons for this 
 •decision : first, the nature of the subject-matter of the con- 
 tract ; secondly, the circumstance that the defendant was 
 not possessed of the stock at the time of the contract ; 
 and, thirdly, that the liability to sudden rise and fall in 
 stock made the day a most material part of the contract, 
 and therefore rendered it an improper one for the court to 
 carry into execution. This principle was adopted by Gil- 
 bert, C. B.,(r) and stated to be the settled doctrine of the 
 •court by Lord Eldon.(5) 
 
 § 53. In a case before Leach, Y. C, a bill for the specific 
 performance of a contract to sell Neapolitan stock was sup- 
 ported ; but this was j^artly on the ground of its x-raying 
 
 (m) Eastern Counties R'y Co. v. Hawkes 6 Ha., 594; Kenney v. Wexham, 6 Mad., 355 
 
 5 H. L. C, 331, 359, 376; Lewis v. Lord Lech (p) See Nutbrown v. Thornton, 10 Ves ,16l. 
 
 mere. 10 Mod, 5U3. (q) 5 Vin. Abr., 538,pi.21 ; S. C, 1 P.Wms., 
 
 '"} }^.i^ . 570; 1 W. & T., L. C, 756 (4th ed.). 
 
 ,.1''\.9",?**'^'^ "■ Turrell, 1 Y. & C. C. C, 133, (r) Cappur v. Harris, Bunb., 135. 
 
 150; Walkerv. Eastern Counties Railway Co., (a) In Nutbrown v. Thornton, 10 Ves , 161,
 
 EXTENT OF THE JUKISDICTION. 27 
 
 the delivery of the certificates which would constitute the 
 plain tift' the proprietor of a certain quantity of the stock, 
 and i)artly because the plaintiff, not being the original scrip- 
 holder, but merely the bearer, it was doubtful whether he 
 would be able to maintain his action at law.(^) In another 
 case the same judge overruled a demurrer to a bill by the 
 vendor of a life-annuity payable out of dividends of stock, 
 on the ground that the purchaser could clearly maintain 
 such a bill, and that the remedy must be mutual. (2^^) But 
 it seems that the court would not enforce specific perform- 
 ance of a contract to sell a life-interest in the public 
 funds, (-y) 
 
 § 54. With regard to shares in companies the same prin- 
 ciple does not apply. "In my opinion," said Shadwell, 
 V. C.,(^) "there is not any sort of analogy between a quan- 
 tity of £3, per cents or any other stock of that description 
 (which is always to be had by any person who chooses to 
 apply for it in the market), and a certain number of rail- 
 M^ay shares of a particular descrij^tion, which railway shares 
 are limited in number, and which, as has been observed, are 
 not always to be had in the market;" and, accordingly, 
 specific performance was enforced of a contract to sell a cer- 
 tain number of railway shares, the shares not being particu- 
 larized. In a subsequent case, Lord Chelmsford stated that 
 there was no doubt that a contract for the sale of railway 
 shares is capable of being enforced \{x) and in a subsequent 
 chapter(2/) many recent cases will be referred to, which have 
 arisen in resi)ect of contracts for the sale of shares. It may 
 have been on this j^rincii^le that Lord King disallowed a de- 
 murrer to a bill for the transfer of York building stock ;(z) 
 but a different view seems to have been previously enter- 
 tained by Lord Macclesfield, inasmuch as he dismissed a 
 Mil for the transfer of £1,000 of the same stock. («)' 
 
 (0 Doloret V. Rothschild, 1 S. & S., 590. (x) Cheale v. Kenward, 3 De G. & J., 27. 
 
 (M) Withy V Cottle, 1 S. & S . 174. (y) Part VI, ch. 1. 
 
 (V) Brealey v. Collins, You , 317, 330. (z) Colt v. Nettervill, 2 Smi., .S04. 
 
 (w) Duncuft V. Albrecht, 12 Sim , 189, 19i). (a) Dorison v. Westbrook, 5 Vm. Abr.,o40, 
 
 See Jackson v. Cocker, 4 Beav., 59. pi. 22. 
 
 ' See Story's Eq. Jur., § 744: Ferijuson v. Paschall, 11 Miss , 267; Brown v. 
 Gilliland. 3 Dessau., 539 ;" Strasbourg R. R. Co. v. Elchternact, 21 Penn., 220, 
 uiuthorities 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
 
 28 FRY ON SPECIFIC PERFUKMANCE OF CONTRACTS. 
 
 § 55. A vendor of shares may maintain an action against 
 the purchaser to comiiel him to complete the purchase by 
 the execution and registration of a proper transfer, (&) and 
 to indemnify the vendor against future calls, (c) 
 . In like manner the company may sue a person who has 
 contracted with the company to take shares from it.{d) 
 Many difficult questions have arisen as to the nature and 
 elfects of contracts to take shares, which will be considered 
 separately in a later chapter, (.e) 
 
 § 56. The court for the most inivt refuses to interfere in 
 respect of chattels, both because damages are a sufficient 
 remedy, and because the price of such articles, especially 
 of mercliandise, varies so as often to render the specific exe- 
 cut ion of contract for their sale and delivery an act of in- 
 justice, entailing perhaps ruin on one side, when upon an 
 action that party might not have paid perhaps above a sliil- 
 ling damages. (/')' As these principles, however, do not 
 apply to all cases of chattels, exceptions arise which we 
 shall now consider. 
 
 § 57. When the chattel in question is unique, when there 
 is, over and above the market value, that which has been 
 called the pretmm affectionis, the court, whether the plain- 
 tiff's right has arisen from contract or not, has interfered 
 and not left him to his common law remedy. The leading 
 case in this branch of the law is Pusey v. Pusey,(^) in 
 
 (6) Shaw V. Fi6her, 2 De G. & Sm., 11 ; 5 (e) Part VI, ch. 1. 
 
 De G. M. & G., 596. Cf. Ward and Henry's (/) Per Lord Hardwicke in Buxton v. Lis^ 
 
 Case (where the purchaser had filed his bill ter, 3 Atli , 384. In Norton v. Serle, Finch, 
 
 for s)>ecifle performance), L. R. 2 Eq , 226; 2 149, Lord Nottingham specifically perfornaed 
 
 Ch., 431. a charter-party by directing the payments to 
 
 (c) vt'ynne v. Price. 3 De G. & Sm., 310; be made in pursuance of it See, also, Clar- 
 Walker v. Bartlett, IS C. B., 845. ingbould v. Curtis, 21 L. J. Ch., 541, and Lord 
 
 (d) New Brunswick, etc , Co. v. Mugger- Westbury in Holroyd v. Marshall, 10 H. L. 
 Idge, 4 Drew.,6S6. See, also, Sheffield Gas C, 209. Where the delivery of chattels is 
 <.onsumers Co. v. garrison, 17 Beav., 294; only part of a contract otherwise enforcea- 
 Oriental Inland Steam Co. v. Briggp, 2 J. & ble, thp contract may be performed. Marsh 
 H.,625; 4 De G. F. & J., 191; Odessa Tram- v. Milligan, 3 Jurs. (N. S.), 979 », Wood, V.C). 
 ways Co. v. Mendel, 8 Ch. D., 2.35. {g) l Vern., 273. 
 
 before he has paid it over. Gram v. Stebbius, 6 Paige, 124. Stock is consid- 
 ered as a chattel, and, therefore, as will be seen hereafter, is perfectly compen- 
 sated in damages. Buxton v. Lister, 3 Atk., 883. And, indeed, it is viewed 
 with even less favor than chattels generally. Brown v. Gilliland, 3 Des., 529. 
 See further, Austin v. Gillespie, 1 Jones' Eq. (N. C), 261, and Bissell v. 
 Farmers and Mechanics' Bank of Michigan, 5 McLean, 4t>5. 
 
 ' 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. SuUivan v. Fink, 1 Maryl. Ch. Decis., ,59; Roundtree v. McLean, 1 
 Hemp., 245; Waters v. Howland, 1 Md. Ch. Decis., 112; Llovd v. Wheatley^ 
 2 Jones' Eq. (N. C), 267.
 
 EXTENT OF THE JURISDICTION. 29 
 
 which the heir of the family of Pusey recovered possession 
 by a bill in equity of the celebrated Pusey horn; the 
 grounds of the decision are insufficiently reported, but the 
 case "turned," to quote Lord Eldon's language in respect 
 of it, (7^-) '' iii^on the pretmm affect ionis, independent of the 
 circumstance as to tenure, which could not be estimated in 
 damages." This has been followed by other similar cases, 
 one having relation to an ancient silver altarpiece, remarka- 
 ble for a Greek inscrii^tion and dedication to Hercules, (/) 
 another to a tobacco-box of a remarkable and peculiar 
 kind,(y) another to masonic dresses and ornaments, (A-) and 
 another to a very finely engraved cherry-stone. (Z)' 
 
 (fc) In Nutbrown v. Thornton, 10 Ves., 163. bould v. Curtis, 21 L. J. Ch , 541 ; De Mattos 
 
 {i) Duke of Somerset v. CookBon, 3 P. v. Gibson, 4 De G & J., 276. Bills have been 
 
 Wms., 390. filed for speciflo performance of contracts for 
 
 U) f'ells V. Read, 3 Ves., 70. the sale of ships. See part VI, ch. 5, infra. 
 
 (k) Lloydv. Loaring.6Ve8.,773. See,also, W Per Lord Hardwicke in Pearne v. Lisle, 
 
 Savllle V. Tancred, 1 Ves. Sen., 101 ; S. C, 3 Ambl., 77, in which case a specific delivery 
 
 Sw., 141, n.; Lady Arundell v. Phlpps, 10 of negroes v^as prayed, "but that is not 
 
 Ves., 139; Lowther v. Lor<l Lowther,13 Ves., necessary," said his lordship, " others are as 
 
 55. A ship is probably within this principle, good." 
 See Lynn v. Chaters, 2 Ke., 521, and Claring- 
 
 ' Wherever there is anything peculiar in the value of the article, real estate 
 or chattel, that cannot be compensated in damages, because of the especial value 
 which may be placed upon it, on account either of its individual or associate 
 qualities, courts of equity take jurisdiction. Clark v. Flint, 2i Pick., 281; 
 Chamberlain v. Blue, 6 Blackf., 41)1. In the southern states numerous cases 
 have arisen in regard to slaves, which are well adapted to display the true 
 grounds upon which equity enforces, or refuses to enforce, a personal contract. 
 In South Carolina, in the earlier cases, it was held to be 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 con- 
 tract, did not create an exception. Farley v. Farley, 1 McCord's Ch., 506. 
 Subsequently, in the case of Starter v. Gordon, 2 Hill. Ch., 121, the considera- 
 tions 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 delivery of shives, as for 
 the specific performance of a contract for the sale of lauds, but that there might 
 be exceptions to the rule. If it appeared that the purchaser contracted for the 
 slaves as merchandise to sell again, this, according to the expression in Buxton 
 V. Lister, would be merely a matter in the waj^ of trade, and, in such a case, 
 complete justice might be done by a compensation 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 possession of another, who refuses to deliver 
 him, or if he has contracted for specific slaves, he has a right to a specific de- 
 livery ; but if the contrary appears, that he contracted for slaves generally, with 
 no view to any particular individuals, or if they were contracted for as mer- 
 chandise, to sell again, the remedy is at law." In Young v. Burton, 1 Mullan's 
 Eq., 256, 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 
 delivery of slaves, generally, 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 propert}' of the complainant, and 
 that their possession is withheld ])y the defendant." See, also, Bobo v. Grimbe 
 &McMartin. 1 McMull. Eq., 304; Fraser v. McClenachan, 2 Rich. Eq., 79; 
 Ellis V. Commander, 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
 
 30 FRY ON SPECIFIC PERFORMANCE OF CONTRACTS. 
 
 § 58. These particular cases were suits grounded on tort 
 or trust ; but the same principle applies to cases of contract 
 relating to chattels. 
 
 were more specially and precisely defined, and the generality of the previous 
 rule, perhaps, somewhat qualified. In that case a slave had been sold, and a 
 mortg-age taken upon him for the purchase money, and he had again passed 
 through the hands of several vendees ; the sureties of the original mortgagor 
 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 
 supposing this a case in which a bill will lie for the specific delivery of a slave. 
 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. Burton, rests 
 on these grounds : that where an owner has had possession of a slave, and he 
 has been deprived of it bj^ 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 than 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 vievr 
 to some particular quaUties 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 them- 
 selves, instead of any damages for their estimated value. A general expression 
 is used in one of the cases, that where a party states a defendant to be in pos- 
 session of his slave, he states a case entitling him, prima facie, to the interfer- 
 ence of this court. And so it is; but it must be taken with the qualifications 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 qualities, there is % 
 contract for slaves, to be sold again as merchandise The same reason applies, 
 and more strongly, in the case of a mortgagee of slaves. He is not supposed 
 to know anything of the peculiar qualities of the slaves, except 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. In Alabama, 
 principles quite the same with those defined bv Mr. Chanceller Harper, are laid 
 aown in Savery v. Spence, 18 Ala., 561, which related to a contract about 
 slaves, that clearly involved pecuniary considerations only. "A court of 
 equity," said Dargan, 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 redress by compen- 
 sation 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 con- 
 tract, neither of which is shown in the present case, and therefore the com- 
 plainant 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 Murphv v. Clark, 1 S. & 
 iVl., 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 neces- 
 sary to authorize the interposition of equitv, or, in the technical phrase of the 
 books, the pretium affectionis was not set forth." Mr. Justice Clayton, after an 
 examination of the authorities, said that the cases, to his apprehension, estab-
 
 ^ 
 
 EXTENT OF THE JUKISDICTION. 31 
 
 § 59. Accordingly in Falcke v. Gray, {m) Kindersley, 
 y. C, sustained a bill by a x^urchaser for the specific per- 
 formance of a contract to sell to him for £40 two china jars ; 
 and in Thorn v. The Commissioners of Works, (rt) Lord 
 
 (?w) 4 Drew., 651. Lords, Harrington v. Harrington, L. R. .5 Oh.* 
 (n) 32Beav.,490. Note thatwhen the court 564; cf. Wilson v. West Hartlepool, etc.. Rail- 
 has adjudged the delivery up of chattels, way Co. (Xo. 2), 34 Beav., 414; Ord. LVHI- 
 execution of the judgment will generally not r. 16. 
 he stayed pending an appeal to the House of 
 
 lished the principle, "that wherever the bill states circumstances, from whicl# 
 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 unreasona- 
 ble to indulge, and exists in reference to property for which damages at law 
 might not be a full compensation, equity will entertain jurisdiction " The 
 point was not considered 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 Murphy v. Clark. But Sharkey, C. J., dissented, holding that 
 X)iQ pretium affectionU ahoxAd. not be inferred, but established. The same sub- 
 ject was discussed in an interesting manner in Dudley v. Mallery, 4 Geor., 53. 
 '•His honor, the presiding judge," said Lumpkin, J., in delivering 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 rightful owner, and 
 that it is sufiicient 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 with- 
 held 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 liumanity, than 
 with reference to the peculiar doctrines of a court of chancery 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 master 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 sympathies of our nature. 
 
 * * * Instead of weakening, our desire is to maintain and promote this 
 mutual attachment and good will. But we cannot, for the very reasons assigned 
 in those cases, go to the extent of holding that it is sufficient merely to allegein 
 the bill, that the slaves ought to be recovered, are the property of the complain- 
 ant, and withheld by the defendant. In many, I am prepared to say from my 
 own experience, in a majority of the suits instituted 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 property, which has multiplied to a numerous 
 family; 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, chancery should not entertain a bill for the specific 
 delivery, and that, to give jurisdiction, it is necessary to charge and prove peculiar 
 circumstance — as, that they are family servants, a carpenter, blacksmith, wagoner,, 
 hostler, etc. This will give the defendant an opportunity of stating, in his answer, 
 
 •the peculiar circumstances connected with his possession; and the special jury, 
 under the direction of the chancellor, will constitute a fit and proper tribunal to 
 pass upon the peculiar features of each case, and to decide either a specific de- 
 livery of the property, or its equivalent in money." In North Carolina, in the 
 case of Williams v. Howard, 3 3Iurph., 34, though the point was not considered 
 as necessarily arismg, 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 execution of contracts relating to 
 chattels does not apply to slaves, that they form an exception for reasons
 
 J 
 
 32 FRY ON SPECIFIC PERFORMANCE OF CONTRACTS. 
 
 Romilly, M. R., made a decree for the specific performance 
 of a contract for tlie sale to tlie plaintiff of the arch stone, 
 the spandrill stone, and the Braniley Fall stone contained 
 in old Westminster Bridge, which had been pulled down. 
 In this case, though elaborately argued, no objection seems 
 to have been taken to the jurisdiction. 
 
 § 00. There is a dictum of Lord Westbury in the House 
 ^of Lords which puts the jurisdiction as regards chattels, as 
 if extending to every case where the contract relates to 
 specific property. "A contract for the sale of goods," said 
 his lordship, (o) "as, for examj^le, of 500 chests of tea is 
 not a contract which would be specifically performed, be- 
 cause it does not relate to any chests of tea in particular ; 
 but a contract to sell 500 chests of the particular kind of 
 tea which is now in my warehouse in Gloucester is a con- 
 tract relating to specific property, and which would be 
 specifically performed. The buyer may maintain a suit in 
 equity for the delivery of a specific chattel when it is the 
 subject of a contract, and for an injunction (if necessary) to 
 restrain the seller from delivering it to any other person." 
 It n)ay be doubted whether this dictum does not express a 
 more complete system of jurisprudence than that which we 
 possess, and whether the records of the court of chancery 
 contained many bills for the specific performance of con- 
 tracts relating to specific chattels of a mercantile value like 
 tea.(^) 
 
 (o) In Holroydv. Marshall, 10 H. L.C.,209, Cranworth in Hoare v. Dresser, 7 H. L C, 
 
 ;'x r. ■, „ 317-3; Fothergill v. Rowland, L. R. 17 Eq., 
 
 (p) Consider Heathcote v. North Stafford- 132. 
 shire Railway Co., 3 Mae. & G., 112 ; per Lord 
 
 equally cogent, or more so than those applicable to land. With respect to 
 other chattel propert}-, justice may be done at law by damages for non-perform- 
 ance, and therefore eqmty will not interpose; but for a faithful or family slave, 
 endeared by a long course of service or early association, no damages can com- 
 pensate; for there is no standard by which the price of affection can be ad- 
 ]usted, and no scale to graduate the feelings of the heart " "All the principles," 
 said Henderson, J., m the same case, "which induce a court of equity to com- 
 pel 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 y ir^inia and Tennessee, the rule is much, if not quite, the same as in Mis- 
 sissippi In Summers v. Bean, 13 Gratt., 404, it is said that the specific de- 
 livery 01 Slaves will be decreed regardless of their possessing or not possessing 
 peculiar qualities. In the latter state it was held, in Loftin v. Espy, 4 Yerg.! 
 ^MifT ^. "^'^"g.^- as a general rule, where there is an adequate remedy at law, 
 Tn trLT 1 ^ •1°^^'^®7?' y^* ^^^'■^ ^« a° exception in regard to slave property. 
 D.ran7li r^ -} 7^^^^ ^^^^' ^^^^ ^ Specific performance of slaves will be 
 rrPtirfn i^ .r "f "^ upon the same grounds as other chattels; though the dis- 
 cretion in the chancellor is very broad. Caldwell v. Myers, Hardin, 551.
 
 EXTENT OF THE JURISDICTION. 33 
 
 §61. It does not appear to follow, from the authorities 
 referred to or from principle, that the vendor of a chattel 
 can maintain an action for specific performance in all cases 
 where a i)urchaser of the same chattel could do so. 
 
 It also appears that if the chattel be of a peculiar value, 
 but by contract between the parties a price has been put 
 upon the chattel, that circumstance has been treated as pre- 
 cluding the jurisdiction, for it is an admission that by a 
 money i)ayment full relief can be had.(«2) 
 
 § 02. Hitherto unique chattels have been spoken of ; but 
 it appears that such jurisdiction as the court exercises in 
 the case of unique chattels it may also exercise in the case 
 of chattels which, though not unique, possess a special and 
 peculiar value to the plaintiff. Thus in North v. The Great 
 Northern Railway Co.(r) the court upheld its jurisdiction 
 to interfere to prevent the sale of certain wagons belonging 
 to the plaintiff, which had been used by the plaintiff in his 
 business of a colliery owner, and which the defendants 
 asserted that they had a right to detain and sell. "Where 
 specific things," said Stuart, Y. C.,{s) ''necessary for con- 
 ducting a particular business are in the possession of per- 
 sons who claim a lien upon them, and threaten an imme- 
 diate sale, this court has undoubted jurisdiction to interfere 
 by injunction and i^revent irreparable injury to the debtor 
 by giving him an opportunity of redeeming assets.'' 
 
 § 63. So, too, there is the high authority of Lord Hard- 
 wicke for suggesting that si^ecific i^erformance might be 
 maintained by a shipbuilder if he were to contract with a 
 landowner for the supply of timber from an adjoining estate, 
 the shipbuilder being under contract to complete a ship by 
 a given time, for w^liich the su^DiDly of such timber by the 
 defendant was essential. But this will not be extended to 
 mere questions of convenience, as the supply of coal from 
 an adjoining colliery, when plenty of other coal can be pro- 
 . cured in the neighborhood ;(/) at any rate it is believed that 
 there is no reported case in which such a proceeding has 
 actually been maintained. 
 
 § 64. Cases might probably arise in which the court would 
 
 (q) Do-svling V. Betjemanu, 2 J. & H., 544. ter, 3 Atk., 383, compared with Pollftrd v. 
 
 (?•) 2 Giff., G4. Clayton, 1 K. & J., 462, and cf. Fothergill v. 
 
 («) Page 69. Kowland, L. R. 17 Eq., 132. 
 (<) Per Lord Hardwicke in Buxton v. Lis- 
 
 3
 
 / 
 
 34 FRY ON SPECIFIC PEKFORMANCE OF CONTRACTS. 
 
 interfere in respect of chattels connected with the enjoyment 
 of an estate, where but for such connection it would not 
 exercise jurisdiction. In one case Lord Eldon made 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 circum- 
 stances of that case, there was an entire contract by which 
 the landlord agreed to let the tenant have both the estate 
 and the chattels, the enjoyment of the chattels being requi- 
 site for the enjoyment of the estate. (m) 
 
 § 65. This appears to have been one ground on which the 
 court of chancery anciently enforced contracts to build in 
 certain cases ; as where the father entered into articles with 
 a builder, and died before the execution of the contract, the 
 heir was allowed to sue the personal representative of his 
 father and the builder, the contract savoring of the realty. («) 
 So, in another case, a contract to build was specifically en- 
 forced against a tenant who, having undertaken to rebuild 
 the farm-house, had done so on his own soil instead of his 
 landlord' s.(w) And we shall hereafter (a?) see that contracts 
 by railway companies for the execution of works on the 
 land of the plaintifl: stand on a different footing from ordi- 
 nary building contracts. 
 
 § 66. From specific i3erformance in resj)ect of chattels 
 must be discriminated the cases where a trust has been con- 
 stituted in respect of such property ; for the nature of the 
 subject-matter is no obstacle to the interference of the court 
 to compel execution of the trust, wdiether it be one consti- 
 tuted by direct declaration, or a constructive trust arising 
 from the act of the parties. (^)' The court will accordingly 
 
 (M) Xutbrown v. Thornton, 10 Ves., 159. (x) Infra, § 61 et seq. 
 
 (r) Holt V. Holt, 2 Vern., 322; per Lord (y) Wood v. Rowcliflfe, 3 Ha., 304; S. C.,2 
 
 Hardwlck in Rook v. Warth, 1 Ves. Sen., 461. Ph., 382; Pooley v. Budd, 14 Beav., 34. 
 (w) Pembroke v. Thorpe, 3 Sw., 437, n. 
 
 ' The exercise of equity jurisdiction does not proceed upon any distinction 
 between real estate and personal estate, but upon the ground that damages at 
 law may not afford a complete remedy. Thus courts of equity well clecree 
 performance 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 gen- 
 eral value of the land, may not be a complete remedy to the purchaser, to whom 
 the land purchased may have a peculiar and 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 complete a 
 remedy for the purchase, as the delivery of the stock or goods contracted for;
 
 EXTENT OF THE JURISDICTION. 35 
 
 restrain improper dealings by an agent with chattels, though 
 they may be of no peculiar or intrinsic value, (z) 
 
 § 67. Lord Hardwicke seems to have entertained the view- 
 that where the contract was for the delivery of chattels by 
 installment and for payment in a like method, the court 
 would entertain jurisdiction. 
 
 In a case cited by his lordship, articles for the sale of 
 eight hundred tons of iron, to be paid for by installments, at 
 periods running through some years, were specifically en- 
 forced, (a) The case appears to have been, as already stated, 
 approved by his lordship, but was doubted by Lord Hath- 
 erley (when V. C), 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. (Z>) 
 Mr. Austin, too, has expressed his inability to understand 
 on what principle the case proceeded, (c) and a like inability 
 is here confessed. 
 
 4. Where tlie contract is such as the court cannot loerform. 
 
 § 68. Where the contract is, from its nature, such that 
 the court cannot enforce its performance, {d) it is necessarily 
 no subject of its jurisdiction in that respect. (e) 
 
 § 69. On this principle the court will not prohibit the 
 making of a secret medicine ; for, if it be secret, then the 
 court cannot tell whether it has been infringed or no ;(/) 
 nor, for the same reason, will it direct the si^ecific perform- 
 ance of covenants in a farming lease, for "how," said Lord 
 Northington, "can a master judge of repairs in hus- 
 
 (a) Wood V. Rowcliffe, %Cbi mpra. («) Consider Hope v. Gibbs, 26 W. R., 72; 
 
 («) Taylor v. Neville, cited 3 Atk.. 384. De Mattes v. Gibson, 4 De G. & J., 276, 299. 
 
 Distinguish Nives v. Xives, 15 Gh. D., 649. (/) Newberry v. James, 2 Mer., 446; WIl- 
 
 (6) Pollard V. Clayton, 1 K. & J., 462. liamsv. Williams, 3 Id., 157; and see the other 
 
 (c) Jurisprudence, 808. cases cited in the note to § 1516, infra. 
 
 {d) A.8 to uncertainty in contracts see Part 
 III, ch. 4, Infra. 
 
 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 distinc- 
 tion 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 subject to his order 
 and disposition, and then sold her to another person, with notice of the con- 
 tract, specific performance might be enforced, in case of the insolvency of the 
 original contractor, since a judgment at law against an insolvent 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. Paschall, 11 Miss., 267.
 
 / 
 
 J 
 
 36 FRY OX SPECIFIC PERFORMANCE OF CONTRACTS. 
 
 bandry?"((7)' Nor will it enforce against a life assurance 
 society a contract to reduce a premium if satisfied with the 
 removal of the cause for charging an extra premium, for it 
 is the society and not the court which is to be satisfied ;(7i) 
 nor will it order the performance of continuous acts.(?:) 
 And the fact that the parties cannot be put in the condition 
 for which they stipulated when the contract was entered 
 into, obviously disables the court from adjudging specific 
 performance, {j) 
 
 § 70. And so, too, the court will not interfere to enforce 
 a contract by means of injunction, where the acts com- 
 plained of as breaches are frequent, and the court could 
 not ascertain whether there has, in each case, been a breach 
 without an action ; as in the case of a covenant not to sell 
 water from a certain well to the plaintiff's injury. (A') 
 
 § 71. The incapacity of the court to execute the contract 
 limits its jurisdiction in cases relating to the sale of the 
 goodwill of a business.' For where the contract has respect 
 to a goodwill alone, unconnected with business premises, 
 the court refuses specific performance by reason of the 
 uncertainty of the subject matter, and the consequent in- 
 capacity of the court to give specific directions as to what 
 is to be done to transfer it.(Z) But where the goodwill is 
 
 ((7) Rayner v. Stone, 2 Eden, 128. Cf. Bern- (j) Re Mercantile and Exchange Bank, L. 
 
 ard V Meara, 12 Ir Ch. R., 389, 396. B. 12 Eq., 26S, 276. 
 
 (h) Manby v. Gresham Life Assurance So- Qc) Collins v. Plumb, 16 Ves.,454. See, also, 
 
 ciety, 29 Beav , 439 City of London v. Xash, 3 Atb , 512. 515. 
 
 (i) Blackett v. Bates. L. R. 1 Ch., 117; (Z) Baxter v. Conolly.lJ. & W.,. 576; Bozon 
 
 Powell Uuffryn Steam Coal Co. v. Taff Vale v Farlow, 1 Mer., 459; Coslake v. Till, 1 
 
 Railway Co., L. R. 9 Ch., 331. Russ., 376. 
 
 ^ Under tbi.s head may be ranked contracts to do purelj' 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 jjosiiive part of the agreement; which, in Lumley 
 V. Wagner, 1 De G. M. & G., 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., 532; De Rivafinoli v. Corsetti, 4 Paige, 261; Sanquirico v. Bene- 
 detti, 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 English 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. 
 
 ' Equity will interpose to prevent a party from setting up a business or pro- 
 fession in opposition to his agreement, notwithstanding he has agreed not to do 
 so under a penalty, and has paid the penaltv. Roper v. Upton, 125 Mass., 258; 
 Dooley V. Watson, 1 Gray, 414; Hardy v. Martin, 1 Cox, 26.
 
 \ 
 
 EXTENT OF THE JUElSDICTIOlSr. 37 
 
 entirely or mainly annexed to the premises, and the con- 
 tract is for the sale of the premises and goodwill, the con- 
 tract may be enforced. (7?z) For in that case the goodwill is 
 merely the advantage attached to the possession of the 
 honse or other x)lace of business, (7^) — "the probability," to 
 use the words of Lord Eldon, (o) ' ' that the old customers 
 will resort to the old place" — together with the right which 
 arises to the x)urchaser to restrain the vendor from setting 
 up anew, or continuing, the identical business he has con- 
 tracted to sell, but w^ithout any right, independently of 
 stipulation, to prevent the vendor's setting up a similar 
 business. (^) In the case of contracts for the sale of the 
 business of an attorney, the legality of stipulations com- 
 prised in them, for the purpose of giving to the party to 
 carry on business the advantage of the name or of the 
 recommendation of the party not engaged in it, has been 
 questioned by the highest authorities, including Lord El- 
 don ; Grant, M. R., and Knight Bruce, L. J.(^) But it 
 seems to be now established, not only that such transac- 
 tions are legally valid, (r) but that they may be specifically 
 executed, by injunction or otherwise, by the court. (5) 
 
 5. Where the performance of the contract would he useless. 
 
 § 7S. The court will not enforce a contract which is in its 
 nature revocable by the defendant ; for its interference in 
 such a case would be idle, inasmuch as what it had done 
 might be instantly undone by one of the parties.' 
 
 Thus w^here the registrar of a consistory cqurt agreed to 
 grant a deputation of his office, it was held that such a 
 
 (OT) Darbey v. Whittaker, 4 Drew., 134,139, v. Baker, 14 id., 468. Cf. Leggott v. Barrett, 
 
 140. 15Ch. D.,306. 
 
 (n) Chissum v. Dewes, 5 Rus8.,29; Mum- (q) Per Lord Eldon In Candler v. Garden, 
 
 mery V. Paul, 1 C. B., 316,326; and see fur- Jac, 231; Bozon v. Farlow, 1 Mer., 459; 
 
 ther, as to the nature of a goodwill, Potter V. Thornbury v. Bevill, 1 Y. & C. C. C, 584. 
 
 Commissioners of Revenue, 10 Ex., 147; Alii- See GilflUan v. Henderson, 2 CI. & Fin., 1. 
 eon V. Monkwearmouth, 4 El. & Bl., 13. and (r) Bunn v. Guy, 4 East. 190. 
 Lindley, Partn., 884 (3d ed ). (s) Whittaker v. Howe,3 Beav.,383; Aubln 
 
 (o) In Cruttwell v. Lye. 17 Ves.. 346. v. Holt, 2 K. & J., 66. 
 
 (p) Cruttwell V. Lye, 17 Ves., 335; Shackle 
 
 ^ 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.
 
 38 FEY ON SPECIFIC PERFORMANCE OF CONTRACTS. 
 
 deputation was in its nature revocable, and, tlierefore, could 
 not be enforced by the court. (^)' 
 
 § 73. It is on the same principle that the court generally 
 refuses to interfere in cases of contracts to enter into part- 
 nership which do not specify the duration of the partnership 
 — that relation, unless otherwise provided, being dissoluble 
 at the will of either party, {u) There is indeed some authority 
 to the contrary of this proposition, consisting of a dictum of 
 Lord Hardwicke's(«) in general terms, and two or three 
 cases {to) in which specific performance of such contracts 
 seems to have been enforced, but with regard to which it 
 does not appear whether the partnershii3s thus constituted 
 were for a term or not ; and it is indeed said that Lord 
 Eldon was not quite satisfied with his decision in the case 
 quoted as establishing the princii)le. (a?)' 
 
 § 74. The doctrine, however, appears to be generally ac- 
 cepted as that of the court. Thus in a case before Lord 
 Romilly, M. R., the principle was acted on: the defendant 
 entered into a contract with the plaintiff company to take a 
 certain number of shares and to execute the deed of settle- 
 ment when required ; and of this contract the court refused 
 specific i)erformance, because the defendant might, by the 
 rules of the company, have ceased again to be a j)artner 
 within fourteen days after becoming such.(?/) 
 
 § 75. It is on the same reasoning that the court declines 
 to perform a contract to execute an instrument if such cove- 
 nants must be introduced into the instrument that the party 
 resisting the performance may immediately take advantage 
 
 (<) Wheeler v. Trotter, 3 Sw., 174, n. See, {x) 1 Mad. Ch., 411, n. 
 
 also, Sturge v. Midland Railway Co., 6 W.R , (y) Sheffield Gas Consumers' Co. v. Harri- 
 
 233 (Stuart, V. C). son, 17 Beav., 294; cf. Bluck v. Mallalue, 27 
 
 (M) Hercy v. Birch, 9 Ves., 357. See fui-- Id., 398, 405. Distinguish Odessa Tramways 
 
 ther. Infra, §§ S24, 1512 et seq., and cf. Firth Co. v. Mendel, 8 Ch. D., 235, and cf. Xew 
 
 V. Ridley, .33 Beav., 516, 521. Brunswick and Canada Railway Co., Limlt- 
 
 (V) In Buxton V. Lister, 3 Atk., 385. ed, v. :MuggerIdge, 30 L. J. Ch., 247. See, 
 
 (w) Anon., 2 Ves. Sen., 629; Anon., 1 Mad. also, as to contracts to form a company, 
 
 Ch., 411, n.; Hibbert v. Hibbert, Coll., Partn., Stocker v. Weddcrburn, 3 K. & J , 393. 
 133. 
 
 ' Where tlie contract is revocable at tlie pleasure of the party making it, 
 specific performance will not be decreed ; it would be an idle exercise of the 
 power of the court. Express Co. v. R. R. Co., 9 Otto, 191. 
 
 « Mea.son v. Kaine, 63 Pa. St., 335; Birch v. Smith, 29 Mich., 166. Where, 
 by the partnership agreement a party has an interest in property, such interest 
 will be secured to him. Somerly v. Buntin, 118 Mass , 279. The terms of the 
 partnership must, however, have been distinctly settled for a definite time. 
 Wilson V. Campbell, 10 111., 383; Whittorth v. Harris, 40 Miss., 4S3; England 
 V. Curling, 8 Beav., 129.
 
 EXTEN^T OF THE JURISDICTION. 39 
 
 of them to deprive the other of all benefit under the instru- 
 ment ; as, for instance, a contract for a lease which is to 
 contain a jDroviso for re-entry on breach of a covenant, which 
 the plaintiff has already broken. (2:) 
 
 6. WJiere the court would he unable to enforce its judgment. 
 § 76. In some old cases the court of chancery entertained 
 suits in respect of building contracts; and what lias ))Hen 
 considered one of the earliest traces of the jurisdiction in 
 specific performance is a dictum of Genney, J., in tlie 8 
 Edward IV, that a promise to l)uild a house would be spe- 
 cifically enforced, (rt) Lord Hardwicke also maintained this 
 view of the jurisdiction of the court. (^) But it is now clearly 
 settled that, subject to certain excei)tions, the court will not 
 specifically enforce contracts to build or repair, (c) both be- 
 cause specific performance is "decreed only Avhere the party 
 wants the thing in specie and cannot have it any other 
 way,'"((^Z) and because such contracts are for the most part 
 so uncertain that the court would be unable to enforce its 
 own judgment. (e)' 
 
 (2) Per Grant, M. R , in Jones v. Jones, 12 (d) Ver Lonl Kenyon, M. R., in Errington 
 
 Ves., 188. T. Aynesly, -2 IJro. C. C, :>13; S. C, 2 Dick. 
 
 (a) See supra, § in. W^2. Acconllngly Lucas v. Commerford, 3 
 
 (6) Buxton V. Lister, 3 Atk., 38.i; City of liro. C C, 1G6 
 
 London v. Nash, id , .512; S. C , 1 Ves. Sen., (c) Moselv v Virjrln, 3 Vps., LS4: cf. Green- 
 
 12. See, also, Allen v. Harding, 2 Eij. C. hill v. Isle of Wight (X. J.) Railway Co., 19 
 
 Abr., 17. W. R., S45; Bernard r. Meara, 12 Ir. Ch. R., 
 
 (c) Paxton V. Newton, 2 Sm. & Gif., 437; 389,397. 
 Kay V. Johnson, 2 H. & M , 118; Wbertley v. 
 Westminister Brymbo Coal Co., L. R 9 Eij., 
 538. 
 
 ' Buildiiirj contract H.'] The rule is uow well settled, that coutracts for build- 
 ing will not be specifically enforced. Lord Kenyon said in Erringtouv. Ayucs- 
 ley, 2 Bro. C. C, ;J4:i: "There is no case of a specific performance decreed of 
 an agreement to build a house, because if A. will not do it, B. may. A specific 
 performance is only decreed where the party wants the thing in sju-cie and 
 cannot have it in anv other way." See, also, "Wilkinson v. Clement.-^, L K., 
 8 Ch., !)G: City of London v. Southsate, 38 L. .J. C, 141: Martin v. Hallv. Gl 
 Mo., 196: Ross v. Union Pacific R. R. Co , 1 Woohv.. 06. In Scotland, the 
 court will sometimes apjroint a suitable person to superintend the work, when 
 it orders specific performance of a building contract. Clark v. Glasu'ow Asso. 
 Co., 1 McQueen. 668. 
 
 Example of building contracts tcJiich were enforced, and rult.] A. agreed to 
 sell land to B., and to constiiict a road, allowing A. to use the same. B. was 
 to erect a house on the laud at a definite price lleld, that such contract would 
 be specifically enforced. Wells v. Maxwell, 32 Beav., 40S: alT'd, 9 Jur. (X. S.) 
 1021. A tenant agreed to rebuild a farm-house, but did so upon his own land 
 instead of upon his landlord's. Held, that sjiecific in-rformance would be de- 
 creed. Pembroke v. Thorpe, 3 Swanst., 437, note. In Shorer v. Gt. Western 
 R. R. Co., 2 Y. ic C. C C, 48, it was held, that a railroad company having 
 agreed to do so, would be compelled to construct and maintain an archway 
 under their line, connecting lands of plaintilT severed by the road. In San- 
 derson V. Cockermouth and Workinirton R. R. Co., 11 Beav., 41)7, that the
 
 40 FRY ON SPECIFIC PERFORMAlSrCE OF CONTRACTS. 
 
 § 77. For the first of the reasons stated, Grant, M. R., 
 refused specific performance of a covenant to make good a 
 gravel-jDit ;(/) on the ground of both of these reasons, spe- 
 cific performance was refused in a case of a contract for the 
 construction of a branch railway, which was entered into 
 during the pendency of the bill before Parliament, and when 
 several of the directors had thoughts of withdrawing the 
 bill, and, as the plaintiffs alleged, would have done so, but 
 for the contract in question \{g) and in other cases, specific 
 performance has been refused of contracts for the working 
 of quarries, (7^-) and coal mines, (/) or involving the perform- 
 ance of continuous acts or duties. (,y) 
 
 § 78, In the case of Brace v. Wehnert {k) decided by Lord 
 Romilly, M. R., in March, 1858, the contract was that A. 
 should grant a lease to B. as soon as B. should have built a 
 house of the value of £1400, according to a plan to be sub- 
 mitted to and approved by A., and B. agreed to build and 
 take the lease ; no plan had been approved ; a bill filed by 
 A. against B. was dismissed, with costs. In like manner a 
 contract by a landlord to execute repairs upon a farm was 
 not enforced. (Z)' 
 
 (/) Flint V. Brandon, 8 Ves., 159. ell Duflfryn Steam Coal Co. t. Taff Vale Rail. 
 
 (g) South Wales Railway Co. v. Wythes, 1 wav Co., id , 9 Ch , 331. 
 
 K. & J., 180; S. C., 5 De G. M. & G., 880; (k) 25 Beav , 348 Note that this case was 
 
 GreenhiU v. Isle of \\ right (X. J.) Railway decided before the passing of Lord Cairns' 
 
 Co , 19 \V R.,345. Act. Consider Asylum for Female Orphans 
 
 ih) Booth V Pollard, 4 Y. & C Ex., 61. v. Waterlow, 16 W. R., 1102. 
 
 (t) Pollard V. Clayton. 1 K. & J , 462. (I) Norris v. Jackson, IJ. & H., 319. 
 
 ij) Blackett v. Bates, L. R. 1 Ch., 117; Pow- 
 
 railroad company must construct such roads through the land divided, as would 
 be necessary to connect the several portions. A. agreed, in writing, to partiailly 
 erect sixteen houses, and, upon completion, was to receive a deed of three of 
 the same. Having performed his part of the contract, the court deemed spe- 
 cific performance, that a deed in fee simple should be given, with a covenant 
 against incumbrances. Ellis v. Burden, 1 Ala. , 458. A railroad company pur- 
 chased land, upon the terms that they would construct a road and wharf. 
 Held, that they must do so. Wilson v. Furners R. R. Co , L. R., 9 Eq., 28. 
 In Lytton v. Gt. Northern R. R. Co., 2 K. & J., 394, the road agreed with the 
 owner of land to construct and maintain a siding — Held, that specific perform- 
 ance would be enforced. The same rule was applied with regard to building 
 and maintaining a station "in all respects first-class." Hood v. Northeastern 
 R. R. Co., L. R., 8 Eq., 666. "Where the plaintifi has a material interest in 
 its execution, and the work to be done is clearly defined, and where he cannot 
 be adequately compensated in damages, specific performance will be decreed. 
 Story's Eq. Juris., § 728; Mosely v. Virgin, 3 Ves., 184; Stuyvesant v. Mayor 
 of N. Y., 11 Paige Ch., 414. 
 
 \ Specific performance as to repairs.'\ With rare exceptions, covenants tore- 
 pair will not be specifically decreed, there being an ample remedy at law. This 
 was held in a case where the lessor agreed, in his lease, to repair damages caused 
 by fire. Beck v. Allison, 56 N. Y., 367; City of London v. Marsh, 3 Atk , 512; 
 Lord Abinger v. Ashton, L. R., 17 Eq., 37C; Hill v. Barcley, 18 Ves., 59. In
 
 EXTENT OF THE JUKISDICTION. 41 
 
 § 79. But, since Lord Cairns' Act (21 and 22 Vict., cli. 27), 
 it has been held that where the contract is for the building 
 of a house, and, also, for the grant and acceptance of a lease, 
 the court can grant specific performahce of the contract to 
 accept the lease and give damages for the non-building of 
 the house. (??i) 
 
 § 80. There are, as already hinted, exceptional cases of 
 building contracts in respect of which the court will inter- 
 fere. Lord Rosslyn, in a judgment which appears never to 
 have been overruled, maintained that where a contract for 
 building is in its nature defined, the court might, without 
 much difficulty, entertain a suit for its performance. (;i) 
 Mr. Justice Story argues in suxjport of this view,(c) and in 
 Cubitt V. Smith, (^) Stuart, Y, C, acted upon it.' It may 
 also be added that in Scotland many contracts to build are 
 sj^ecifically iierformed, in respect of Avhich the court would 
 decline jurisdiction in England, the Scotch courts appoint- 
 ing some properly qualified person, under whose superin- 
 tendence the work is directed to be executed. (^) 
 
 § 81. But whether the court will, or will not, interfere to 
 enforce all such contracts when definite, it appears to be 
 settled that it will assume jurisdiction where we have the 
 following three circumstances : first, that the work to be 
 
 (m) Soames v. Edge, Johns., 669; Mayor, (o) Eq. Juris., § 728. 
 
 etc., of London v. Southgate, 17 W. R , 197; (p) 10 Jur. (N. S.), 1123. 
 
 38L. J. Ch, 141. ' (9) Clark v. Glasgow Assurance Co., 1 
 
 (n) Mosely v. Virgin, 3 Ves., 184. M. Qu., GG8. 
 
 Hughes V. Metropolitan R. R. Co., ^16 L. J. C, 583, the lessee coveuantcd to 
 repair after notice; the lessor gave notice, and afterwards waived the default 
 of the lessee by continuing to negotiate. Held, that the court would relieve 
 against the forfeiture. An agreement was made that a lease should be executed 
 containing a covenant to repair. Held, that specific performance of such agree- 
 ment would be decreed, so as to give a remedy for not repairing. Yolloton v. 
 Seigrett, 2 Abb. Pr.. 121. See as to improvements made by lessor. Berry v. 
 Van Winkle, 2 N. J. Eq., 1 Greene, 269. 
 
 ' 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 Kayner 
 v. Stone, 2 Eden, 128; Hill v. Barclay, 16 Ves., 405. lu Lucas v. Commer- 
 ford, 10 Ves., 235, the court was of opinion that the contract, whi:-h was one 
 to build, should not be enforced. But it appears that the agreement was, in 
 in every respect, too uncertain and undefined to be made the subject of a mas- 
 ter's report. See note [2] to Lucas v. Commerford, 1 Ves. (Sumner's ed.) 
 Birchett v. Boiling, 5 Muu., 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 unadvisable.
 
 42 FRY ON SPECIFIC PEKFOEMAKCE OF CONTRACTS. 
 
 done is defined ; secondly, that the plaintiff has a material 
 interest in its execution, which cannot adequately be com- 
 2)ensated for by damages, and thirdly, that the defendants 
 have by the contract obtained from the plaintiff possession 
 of the land on which the work is to be done. Thus the court 
 has in numerous cases (r) enforced on railway companies 
 contracts to make and maintain works for the convenience 
 of the lands of the plaintiff. It has done this in cases in 
 which the terms of the contract have been general and diffi- 
 cult to execute. 
 
 § 82. In one of these cases a contract by the company to 
 construct and maintain, upon land belonging to and to be 
 provided by a landowner, a siding of specified length along- 
 side the line, was held capable of specific performance ; and 
 the company were not allowed to resist performance on the 
 ground that the plaintiff had, before filing his bill, entered 
 into a negotiation (which failed) for a money compensa- 
 tion. (5) 
 
 § 83. In another case the plaintiff had sold lands to the 
 defendants, a municipal corporation, who by the deed of 
 sale covenanted forthwith to make a road and erect a 
 market-house on the land. They entered and made the 
 road, but neglected to build the market-house. Wigram, 
 V. C, observed that the defendants having had the benefit 
 of the contract in sxiecie, the court would go any length 
 that it could to compel them to perform their contract in 
 specie. (^) 
 
 § 84. In this case, as in the railway cases previously 
 quoted, the plaintiff having parted with the land, had no 
 opjDortunity of doing the work which the defendants had 
 contracted to do, and so ascertaining the amount of damages 
 sustained by their non-j^erformance ; (w) but though loart- 
 performance has to this extent been held important, it must 
 be borne in mind that it will in no case enable the court to 
 
 (r) Storer v. Great Western Railway Co., 2 and Banbury Junction Railway Co., L. R. 9 
 
 Y. & C. C. C, 48; >aunder80n v. Cocker- Ch ,279. 
 
 mouth and Workington Railway Co., 11 (si Greene v. West Cheshire Railway Co., 
 
 Beav., 497; Lord Darnley v. Loudon. Chat- L. K. 13 Eq , 44. 
 
 ham and Dover Railway Co., 1 De G. J. & (0 Price v. Corporation of Penzance, 4 Ha., 
 
 S., 2'i4; 3 id., 24; L. R. 2 H. L. 43; Sir E. P.. 506. See, also, Pembroke v. Thorpe, 3 Sw., 
 
 Lytton V. Great Northern Railway Co., 2 K. 437, n.; Oxford v Provand, L. R. 2 P. C.,135. 
 
 ■«& J., 394; Wilson v. Furness Railway Co.,L. {u) Per Lord Hatherley (then Wood, V.C.) 
 
 H. 9 Eq.,28; Ilood v. Nortti Eastern Railway in South Wales Railway Co. v. Wythes, 1 K. 
 
 Co.,id.,5Ch.,52.i; cf. Wilson v. Northampton &J.,200.
 
 EXTENT OF THE JURISDICTION. 43 
 
 intervene where it has no jurisdiction in the original subject- 
 matter of the contract. (?;)' 
 
 § 8»5. Where the act alleged as part-performance is one 
 proper to be brought before a jury, and can be answered in 
 damages, non-performance of the rest of the contract does 
 not constitute that fraud which is the origin of the court's 
 jurisdiction in cases of part-performance in this respect, as 
 well as when treated as an exception to the Statute of 
 Frauds. (70) 
 
 § 86. In one case Lord Eldon, though expressing a diffi- 
 culty in decreeing repairs" to be done affirmatively, yet 1)\' 
 means of an injunction in fact granted perfonnance of a cove- 
 nant to keep a canal and its stopgates in repair for the 
 benefit of the lessee of a mill interested in them.(a^) 
 
 7. W?ie7'e the enforced performance of the contract icould 
 he worse than its non-performance. 
 
 § 87. The relation established by the contract of hiring 
 and service (?/) is of so personal and confidential a character 
 that it is evident that such contracts cannot be specifically' 
 enforced by the court against an unwilling party with any 
 hope of ultimate and real success ; and accordingly the court 
 now refuses to entertain jurisdiction in regard to them.(i') 
 
 § 88. In former times this seems to have been otherwise. 
 In a case decided by Lord Cowper and the House of Lords, 
 there was a contract by which a skilled person had bound 
 Iiimself to serve 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*. Qd. 
 
 {V) Kirk V. Bromley Union, -1 Ph.,G4n, 618; 57; M'hite v. Boby, -If, W. R.. 133. In Riijby 
 
 Crampton v. Vaina Railway Co., L. R 7 Ch., v. Connol, 14 Ch. L)., 4S7. the opinion ai'pears 
 
 562. to have been intimated by Jessel, M. K., that 
 
 (w') South Wales Railway Co. v. Wythes, I the fdCt of there being no property, tlie ri^ht 
 
 K & J., 186; and see Inlra, § n6-2 et seq. to which is taken away from the persi>ii eom- 
 
 (.r) Lane v. Newdijrate, 10 Ves., 192 plaining, lies at the root of the court's non- 
 
 (j/) See per Jessel, M. R., in Rigby v. Con- Interference in respect of contracts strictly 
 
 nol, 14 Ch. D., 487. personal in their nature. 
 
 (s) See Ghillis v. McGhec, 13 Ir. Ch. R., 48, 
 
 ' In a very similar case — where the city of New Haven had agreed to Iniy of 
 the phiintilT certain lands, and as much of the water of Mill river as shoulti l)e 
 necessary to supply thai city with pure water, for the consideration of AoO.OOO, 
 and of tlie covenant to construct a costly dam, and a canal to convey, for the 
 plaintiff's use. the surplus water of said river — specific jierforinance was re- 
 fused, upon the ground that he had never parted with the possession of the 
 property, and, conse(iuently, that he had the means of complete redress at law. 
 Whitney v. New Haven, 255 Couu. R., G24.
 
 44 FRY OX SPECIFIC PERFORMANCE OF CONTRACTS. 
 
 for every liundred- weight of brass wire made by him or any 
 other person for them during his life ; on a bill by the man- 
 ager, Lord Cowper decreed the payments according to the 
 articles for past services, and specific performance of them 
 for the future, by the plaintiff again repairing to the works 
 and acting according to the articles, if the defendants should 
 require the same. The appeal from this decree to the House 
 of Lords was by the plaintiff on a x^oint of the construction 
 of the contract as to the 3s. 6d. per cwt., which resulted in 
 a modification of the decree according to his contention, (a) 
 And in another case Lord Hardwicke specifically enforced a 
 contract by the East India Com^Dany to employ a man as a 
 packer. (^) 
 
 § 89. But the difficulty of enforcing such contracts in 
 si^ecie is now admitted by the court. Thus, in a case where 
 the plaintiffs had contracted for a specified sum to work the 
 line of a railway company and to keep the engines and rol- 
 ling stock in repair, the court, considering this to be a con- 
 tract for services, refused to enforce it.(c) " We are asked," 
 said Knight Bruce, L. J.,{d) "to compel one person to em- 
 ploy 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 peoi^le do not always agree, enor- 
 mous mischief may be done." 
 
 § 90. So in an earlier case a grant having relation to an 
 office of a personal and confidential character, was held to 
 be incapable of being specifically enforced ;(e) in another 
 instance, where an indenture was li^ld to constitute the rela- 
 tion of master and servant, and not of j^artner. Lord Truro 
 dissolved an injunction which had been previously granted, 
 restraining the defendant from excluding the plaintiff from 
 the management of the business ; (/) and in another case, 
 where a contract by the plaintiff to employ the defendant 
 as manager of a business formed part of a contract by which 
 
 (a) Ball V. Coggs, 1 Bro. P. C , 140. This too, Home v. London and North Western 
 
 case involves the validity of contracts of ser- Railway Co., 10 W. R., 170. 
 
 vice lor life; as to which see, also, Wallis v. (d) Page 926. 
 
 Day, 2 M. & \V., 273. («) Pickering v. Bishop of Ely, 2 Y. & C. C. 
 
 (6) East India Co v. Vincent, 2 Atk., 83. C., 249. 
 
 (c) Jonnson V. ^hrew8bu^y and Birming- (/; Stocker v. Brocklebank, 3 Mac. & G., 
 
 ham Railway Co., 3 DeG. M. &G. 914. See, 250; cf Webb v. England, 7 Jur. (N. S.), 153; 
 
 9 W.R., 183; SOL. J. Ch., 222.
 
 EXTENT OF THE JURISDICTION. 45 
 
 the defendant agreed to grant to the plaintiff a lease of a 
 wharf, specific performance was refused on the ground of 
 want of mutuality. (<7) 
 
 § 91. In like manner the court cannot enforce contracts 
 of agency ; as has been illustrated in the cases of contracts 
 to employ a shipping-broker (Z*^) and auctioneer. (/)' 
 
 8. W/iere the contract is voluntary. 
 § 92. The court will never lend its assistance to enforce 
 the specific execution of ccyi tracts which are voluntary, or 
 where no consideration emanates from the party seeking 
 performance, (ji') even though they may have the legal con- 
 sideration of a seal ; and this principle applies, whether 
 
 ig) Ogilen v. Fossick, 4 De G. F. & J., 42.1 ; ton v. Lees, 1 Juv. (X S.l. S>y2 (Stuart, V. C); 
 
 cf Stocker v. WeiMerburn, 3 K. & J., 393; Ord v. Johnston, ia.lOG.J; 4 \V. H., 37, 1«1.; 
 
 Firth V. Ridley, 33 Beav., 516. Walrond v. Walroml, Johns., IS; Kennedy 
 
 (/t) Brett V. East India and London Ship- v. May, 11 W. R , 353. bee, too, per Lord 
 
 ping Co., Limited, 2 H. & M , 404 Eldon in Penn v. Lord B..ltimore, 1 Ves. Sen., 
 
 (i) Chinnock V. Sainsbiirv,30 L. J. Ch., 400. 4.'i0, and distinguisli Cheale v. Kenward, 27 
 
 0) Groves v. Groves, 3 Y . & J., 163; Hough- L. J. Ch., 784. 
 
 ' Si^ecific performance of contracts for pergonal service.'} Contracts of liiring 
 and service, uotwithstandini; their difficulty of being carried out, were form- 
 erly specificalh' enforced by courts of equity. Ea'st lud. Co. v. Vincent, 2 
 Atk., 8;J: Ball V. Coggs, 1 Bro. P. C, 140. The rule, however, appears now 
 to be well settled, that specific performance of a contract involving persqnal 
 service, special ability or confidence, will not be decreed: and that a party will 
 not be enjoined from terminating such a contract, the following are examples: 
 Tlie court refused to decree specific performance; to report law cases. Clark 
 V. Price, 2 J. Wills., 157. To furnish drawings for maps. Baldwin v. Useful 
 Knowledge Soc.,.9 Lim., 393. To perform at a theatre. Lumlev v. Wagner, 
 1 De G. M & G., G04: Fredericks v. IVIyer, 13 How. Pr., 566; Butler v. Galetti, 
 21 id., 465; Montague v. Flocktou, L. R , 16 Eq., 189. In Pennsylvania, it 
 has been very lately held, that a court of equity would not enforce the pensoual 
 services of aii actor, and would not enjoin hfm from lu'rforming at another 
 theatre. Ford v. Germon, 6 Phila., 6. To do work as an ai^prentice. or to in- 
 struct as a master. Webb v. Endand, 29 Beav., 44. To work quarries or 
 coal mines. Booth v. Pollard, 4 Y. 6c C. Ex., 61. Pollard v. Clayton, I. K. & 
 J., 462. To work a line of railroad, and keep the rolling stock iu repair. 
 Johnson v. Shrewsbury, etc., R. R. Co., 3 De G. M. <k G., 914. 
 
 Where the af/reemeni is incapable of being enforced.] Specific performance will 
 not be decreed, where the nature of the contract is such that it is out of the 
 power of the court to enforce it; e.g., it will not direct the conduct of the 
 member of a firm in matters requirinc; his personal skill and judgment in 
 the business of the firm. Buck v. Sniith, 29 Mich., 160; Roberts v. Kclsey. 
 38 id., 602. Land was to be sold, provided the purchase money should be paid 
 as misrht be agreed upon between the parties. Held, that eiiuity could not 
 compel the parties to agree. Hoff v. Shepherd. 58 -Mo., 242; see. also. Atlanta 
 R.R Co. V. Spear, 32 Ga., 550; Blanchard v. Detroit R.R.Co., 31 Mich., 43; Cin- 
 cinnati R. R. Co. V. Washburn. 25 Ind., 25!). A court of cpiity may, as a 
 temi)orary measure during the j^eudencv of a litiiiation, operate a railroad by a 
 receiver. Coe v. Columbus R. R. Co., 10 Ohio St.. 372: see Port Clinton R. R. 
 Co. V. Cleveland R. R. Co., 13 Ohio St., 554; Richmond v. Dulm.iue K. U. Co., 
 33 Iowa, 422. A defendant will not be obliired to furnish marble from a quarry. 
 Marble Co. v. Ripley, 10 Wall., 339; see Columbia Water Power Co. v. Co- 
 lumbia, 5 S. C, 225. 
 
 L
 
 46 FEY ON SPECIFIC PEKFOKMANCE OF CONTRACTS. 
 
 the contract insisted on be in the form of an executory" 
 agreement, a covenant, or a settlement. (/t)' The peculiar 
 
 (k) Jeffreys v. Jeffreys, Cr. & Ph., 138; cf. Re King, 14 Ch. D., 186. Consider, too^ 
 Harvey v. Andland. 14 Sim., 531 See the Andrews v. Salt, L. R. 8 Ch., 6-22, 636, and 
 older eases discussed In 1 Mad. Ch., 413, and Joyce v. Hutton, 12 Ir. Ch. R., 71. 
 
 1 Grover v. Grover, 3 Y. & J., 163; Houghton v. Lees. 1 Jur. N. T., 862; 
 Ord V. Johnson, id., 1063; Jeffreys v. Jeffreys, Cr. & Ph., 138; Moore v. Crof- 
 ton, 1 Jones & Lat., 442; Kennedy v. Ware, 1 Pa. St., 445; Merser v. Stark, 
 Walk. (Miss.), 451; Forward v. Armistead, 12 Ala.. 124; Morris v. Lewis, 33 
 id., 53: Black v. Cord, 2 Har. & Gill., 100; Ormsby v. Hunton, 3 Bibb., 298; 
 Darlington v. McCoole, 1 Leigh (Va.), 36; Bulford v. McKee, 1 Danna, 107; 
 Holland v. Hindsley, 4 Iowa, 222; Shepherd v. Shepherd, 1 Md. Ch , 244; 
 Yasser V. Yasser, 23 Miss., 378; Short v. Price, 17 Texas, 397; Tomlinson v. 
 York, 20 id., 694; see, however, in this connection, Taylor v. James, 4 Dessau's 
 Eq., 5; Caukhvell v. Williams. 1 Bailey's Eq., 175; Mclntire v. Hughes, 4 
 Bibb., 186; Cabeen v. Gordon, 1 Hill (8 C. Ch.), 51; Webb. v. Alton Ins. Co., 
 10 111., 225; Lear v. Chontean, 23 id., 39; Andrews v. Andrews, 28 Ala., 432; 
 Hayes v. Kessow, 1 Sandf. Ch., 261 ; Burling v. King, 66 Barb., 633; Saunders 
 V. Simpson, 2 Har. & Johns., 81; Wyche v. Green, 16 Ga., 49. 
 
 So long as it remains executor}/, equity will not assist in perfecting a voluntary 
 agreement to create a trust. Holmes v. Holmes, 44 111., 168; Estate of Webb, 
 49 Cal , 542; Baylor v. Common, 40 Pa. St., 27. 
 
 Judicial sale.} The same reciprocal rights exist between the parties, whether 
 the sale is judicial or private ; in each case, the title being retained, specific 
 performance will not be decreed unless a valuable consideration is paid, or 
 offered, at or before the time of the decree. Burgin v. Burgin, 82 N. C, 196. 
 
 Illegal or void consideration ] An executory contract will not be enforced, 
 where it is founded upon an illegal or void consideration. Piatt v. Maples, 19 
 La. An., 409; Paton v. Stewart, 78 III., 481; Butman v. Porter, 100 Mass., 337. 
 
 Voluntary deed lost ] In Hodges v. Spicer, 79 N. C. 223, it was held that a 
 court of equity would compel the grantor in a voluntary deed, to whom it was 
 delivered for safe keeping after execution, and who had lost it, to execute 
 another deed of like import. 
 
 The 2)laintiff must seek his redress at law, if he has an adequate remedy there. 
 Coombe v. Meade, 2 Cranch, C. C , 547; Drew v Hains, 8 Ala., 438; Field v. 
 Jones, 10 Ga., 229; Ross v. Buchanan, 13 III., 55; Kyle v. Frost, 29 Ind., 382;. 
 Smith v. Short, 11 Iowa, 523; Clayton v. Carey, 4 Md., 26; Bonebright v. 
 Pease, 3 Mich., 318; Redmond v. Dickinson, 9 N. J., 507; Phyfe v. Wardell, 
 2 Ed. Ch , 47; Murdock v. Anderson, 4 Jones' Eq., 77; Keeler v. Levy, 26 N. 
 J. Eq , 330; Marble Co. v. Ripley, 10 Wall., 339; Richmond v. Dubuque R. R. 
 Co., 33 Iowa, 422; Deck's Appeal, 57 Pa. Stat., 467; Barnes v. Barnes, 65 N. 
 C, 261; Noyes v. March, 123 Mass, 286. In Orr v. Brown, 5 Ga., 400, the 
 purchaser at a sheriff's sale refused to take the property ; it was resold for less. 
 Held, that there was a sufficient remedy under the statute ; the court would not 
 compel specific performance by the first purchaser. Genl. Stat. Mass., ch. 113, 
 § 2. Under this statute it was held that specific performance would not be 
 granted, where, at the time of the filing the bill, the only obligation on the de- 
 fendant's part to be enforced, was his express promise to pay a definite sum of 
 money as an installment. Jones v. Newhall, 115 Mass., 244. The contract 
 had been abandoned, and was unexecuted. Held, that there was a remedy at 
 law in damages. Qimre; Might it not also have been objected to the mainte- 
 nance of a suit in equity, that the relief asked required of the court a superin- 
 tendence of the construction of works of a special character, and to see that 
 mey were adequate to meet all requirements ol the contract? Whitney v. New 
 Haven, 23 Conn., 624. In Richardson v. Brooks, 52 Miss., 118, the plaintiff had 
 a possible remedy at law, which had been rendered doubtful by the fraud of 
 the defendant. Held, that this will not defeat the jurisdiction of a court of 
 equity. A court of equity has no jurisdiction, where the action is to recover 
 the value of a supposed interest in certain property, upon an alleged contract 
 Til ^'^^^^^^^'^ai^t to pay the same to the plaintifi". Stewart v. Mumford, 80
 
 EXTENT OF THE JURISDICTION. 47 
 
 doctrines of the court as to the consideration whicli i.^rnie- 
 ates {I) contracts in relation to marriage settlements must be 
 borne in mind in relation to the foregoing statement. 
 
 sj 93. In the case of contracts for the X)urposes of pleasure, 
 scientific pursuits, charity, or philanthropy, it has been 
 said(w) that "no court of justice can interfere, so long as 
 there is no property the right to which is taken away from 
 the ijerson complaining." 
 
 9. Where the plaintiff lias elected to proceed in some other 
 manner than for specific performance. 
 
 § 94. Where a plaintiff proceeded at common law and 
 recovered damages for breach of the contract, he could not 
 afterwards sue in equity for its specific performance. (?i) 
 But, of course, it was not every proceeding at common law 
 under a contract which barred its specific performance in 
 equity. (o) This result was effected only where the legal 
 and equitable relief were in respect of the same thing. 
 
 §95. In Swinfen v. Swinfen,(pj Knight Bruce, L. J., 
 seemed to think that the fact of applying to the court of 
 common pleas for an attachment to enforce a contract to 
 compromise would stand in the way of the applicant after- 
 wards suing in chancery for i^erformance of the same con- 
 tract. And in Blackett v. Bates ('7) Lord Cranworth inti- 
 mated the opinion that a party to an award could not, after 
 unsuccessfully taking proceedings to set it aside, insist on 
 having it specifically j)erformed. But in a case already re- 
 ferred to, a negotiation for the payment of a money com- 
 pensation whicli went off was held not to be an election 
 which precluded the relief in specific performance, (r) 
 
 § -96. In a case where a railway company was entitled 
 to enforce a contract as to the sale of lands entered into by 
 the defendant with the promoters of the company, the com- 
 pany first took proceedings under the lands clauses consoli- 
 dation act for a compulsory purchase, then took compul- 
 sory possession of the land by virtue of a bond, and lastly 
 
 (0 Cf. Infra, § ISO, and Re D'Angibau, 15 (o) North v. Great Northern Hallway Co., 
 
 Ch. D., 228, 242. Consider Lee v. Lee, 4 Ch. 2 Giff., (!4. 
 
 D , 175. (p) 2 De G. ic J., 3.*1, 3itl. 
 
 {Ill) Per JeBsel, M. R., in Rigby v. Connol, (</) L. R. 1 Ch , 126. 
 
 14 Ch. D., 487. (r) Greene v. West Cheshire Railway Co., 
 
 (n) Salnter v. Ferguson, 1 Mac. & G., 2S6; L. R. 13 Kq., 44. 
 cf. Fox V. Scard, 33 Beav , 327.
 
 48 FRY O^ SPECIFIC PERFORMANCE OF COI^TRACTS. 
 
 filed tlieir bill for specific performance of the contract. It 
 was held that they had taken the benefit of sections of the 
 lands clauses consolidation act to which they were not enti- 
 tled if a binding contract subsisted, and their bill was dis- 
 missed. (5) 
 
 § 97. It is conceived that the principle embodied in the 
 case last cited will continue to be observed by the supreme 
 court. (^) But so far as the form of the proceedings is con- 
 cerned, the right of claiming alternative(2z-) relief, and the 
 wide powers of amendment(w) exercisable under the new 
 X^ractice, will in all proper cases enable a plaintiff to obtain 
 relief by way of specific performance, provided that the 
 facts proved and the rest of his claim as presented or in- 
 sisted on at the trial are not inconsistent with such relief. (2^) 
 
 10. Where t/ie Jurisdiction lias been taken away by statute. 
 § 98. By section 47 of the fines and recoveries abolition 
 
 act (3 and 4 W. IV., c. 74), the jurisdiction of courts of 
 equity in regard to the specific performance of contracts is 
 altogether excluded in cases of disposition of lands under 
 that act by tenants in tail.(^) 
 
 11. The jurisdiction is against the defendant jpersonally. 
 § 99. The jurisdiction in specific performance is against 
 
 the person of the defendant on the equity arising from the 
 contract. This jDrinciple is fertile in results. 
 
 § 100. One result is, that where the defendant is a per- 
 son over whom the tribunals of this country have no juris- 
 disdiction, there can be no relief. Hence no specific per- 
 formance can be awarded against a foreign government of 
 a contract entered by such government with a jorivate 
 person. (2/) 
 
 § 101. Another result of this principle is, that it consti- 
 tutes no objection to specific performance, that the sub- 
 ject-matter with which the contract deals was not originally 
 within the jurisdiction of the court, as the contract itself 
 may give the court jurisdiction in s^Decific iDerformance, as 
 
 {») Bedford and Cambridge Railway Co. v. (w) Cf. Cargill v. Bower, 10 Ch. D., 502, 508; 
 
 Stanley, 2 J. & H., 746. Newby v. Sharpe, S Ch. D., 39. 
 
 (0 See Thompson v. Ringer, W. N. 1881,48, (x) As to the specific performance of con- 
 Infra, § 1106. tracts to disentail, cf. Petre v. Buncombe, 7 
 
 (m) Ord. XIX, r. 8. Ha., 24; Bering v. Kynaston.L R. 6 Eq.,210. 
 
 (r) Ord. XXVII, Ord. LVIII, r. 5. (j/) Smith v. Weguelin, L. R. 8 Eq., 198.
 
 EXTEXT OF THE JURISDICTION. 40 
 
 well as in damages. Tlie original jurisdiction in respect of 
 tlie boundaries of our plantations in North America resided 
 in the king in council ; but a contract resi)ecting them 
 having been entered into between adjoining proprietors 
 was held by Lord Hard wick to give the court jurisdic- 
 tion;(2:) and on the same princii:)le, although the court has 
 no jurisdiction in matrimonial causes, yet, where there has 
 been a contract or covenant, it may interfere to enforce 
 the execution of a proj^er sei')aration deed, or to restrain the 
 breach of a covenant contained in it.(«) 
 
 § 102. This introduces to our consideration the subject 
 of foreign contracts.' 
 
 The general principle which regulates the place for the 
 enforcement of contracts is, it is conceived, expressed in 
 the maxim " actio sequitur forum reiy{l>) It follows from 
 this that a contract made abroad may be enforced against a 
 defendant within the jurisdiction of this country, and as 
 the remedies for breach of a contract are clearly governed 
 by the lex fori, or law of the place where the action is 
 brought, (c) it follows that it is no objection to the specific 
 performance in England of a foreign contract that the for- 
 eign law might have given no such remedy. 
 
 Accordingly a marriage contract made in France was spe- 
 cifically executed here, the parties to it having come to this 
 country as refugees. (rZ) 
 
 § 103. This jurisdiction is not confined to cases of con- 
 tracts relative to personal property, but extends to those 
 
 (z) Penn v. Lord Baltimore, 1 Ves. Sen., (6) Davis v. Park, L. R S Ch.. 862. 
 444 Consider Norrls v. Chambres, 3 De G. (c) Story's Conflict of Laws, § 556. 
 r. & J., 583 (aflirminff S. C, 29 Beav., 24«). ((/) Foubert v. Twist, 1 Bro. P. C, 120. 
 
 (a) Wilson v. Wilson, 1 H. L. C, 538; S. C, 
 14 Sim., 405; 5H. L. C, 40. 
 
 ^ Foreign contrads.l^ Equity will decree specific iK-rforniuuce of a coutract, 
 notwithstandinrr the subject was not origiually witliiii the jurisdiction of the 
 court; the relief is not restricted to personal contracts, but extends to reiil es- 
 tate when the parties reside within the jurisdiction, or are temjiorarily within 
 such jurisdiction, and are served with process. ]Massie v. "Watts, 6 Crauch, 
 158; "Watkins v. Holnian, 16 Pet., 25; Sutjihen v. Fowler, 9 Paiire's Cb.. 280; 
 Stainsburg v. Fringer, 11 Gill. & Johns., 149; Wood v. AVarner, !5 N. J. Eq., 
 81; Olmey v. Eaton, GO Mo., 563: Orr v. Quinn, 2 Law Hepls. (N. C), 465; 
 Cleveland V. Burrell, 25 Barb., 5;52: Doolev v. Watson. 1 Gray, 414; McGreg- 
 gorv. ■McGrcirsror, 9 Iowa. 65; Kenn v. HaVward. 14 Ohio St., 302; see. how- 
 ever, Peter v.^Worthinuton, 14 Ala., 584; Carter v. Jordon, 15 Ga,, 76; Smith 
 v. Iversou, 22 id.. 190; ""Akin v. Llovd, 28 111., 331 ; Birchard v. C'hcever, 40 Vt , 
 94. In Wiscon.sin, in an action to "enforce specific performance of a contract 
 to convey land— Held, that the bill might be filed in any court in the State. 
 Burrill v. Fames, 5 "Wis., 260. 
 
 4
 
 50 FEY ON SPECIFIC PERFOKMANCE OF CONTRACTS, 
 
 relative to real or immovable proi)erty, where the defend- 
 ant is within the jurisdiction of the court. The maxim is 
 '''■^quitas agit in i^ersonam^^^ and any operation of the 
 judgment on the immovable estate abroad is not direct but 
 indirect, and only through the medium of the person affected 
 by the judgment. Thus, where Sir Philip Cartaret, the 
 ow^ner of the island of Sark, had mortgaged it, and a bill 
 was brought against him by the mortgagee for foreclosure, 
 a plea put in by the defendant that the island was not 
 within the jurisdiction of the court of chancery was over- 
 ruled, (d)' 
 
 § 104. But the court has been careful to confine its juris- 
 diction to relief arising strictly from privity of contract : 
 it has nothing to do with rights arising from privity of es- 
 tate in any other country. (/") So in Norris v. Chambres(^) 
 the court declined to enforce a lien on foreign real estate, 
 though the parties were residing here, and the defendant 
 had taken the estate with notice of the contract from which 
 the lien was sought to be raised, 
 
 § 105. It has been said by Mr. Justice Story, (7^) that 
 "the doctrine of the English courts of chancery on this 
 head of jurisdiction seems carried to an extent which may 
 X)erhaps in some cases, not find a i)erfect warrant in the 
 general principles of international public law," And Lord 
 Romilly, M. E,,, in the case last cited, ado^^ting this remark, 
 expressed his disposition not to go a step further than the 
 cases warranted and demanded. (/) 
 
 § 106. It remains to notice a case in which the court of 
 chancery granted relief with a view to si^ecific performance 
 against a defendant not within the jurisdiction, (j*') In that 
 
 («) Toller V. Carteret, 2 Vern., 494. See, (K) Conflict of Laws, § 544 (2d ed.). 
 
 too. Comes Arglasse v. Muschamp, 1 Vorn., \i) See further, as to land in the Colonies, 
 
 75; Jackson v. Petrie, 10 Ves., 164; Lord Re Holmes, 2 J. & H.,527; Sichel v. Raphael, 
 
 Portarllngton v. Soulby, 3 My. & K., 104, 108; 3 N. R.. 662 ; Reiner v. Marquis of Salisbury, 
 
 Story Eq. Jur., § 743. 2 Ch. D., 378; and cf. per Jessel, M. R., in 
 
 (/) Vincent v. Godson, 4 De G, M. & G. , Norton v. Florence Land and Public Works 
 
 646. See, too, the argument in Innes v. Mit- Co., 7 Ch. D., 335. 
 
 chell, 4 Drew., 57, and the cases collected in O) Hart v. Herwig, L. R. 8 Ch., 860. Dls- 
 
 the note, p. 99. tinguish Rowney v. Alder, before Pollock, 
 
 (J?) 29 Beav., -246; 3 De G. F. & J., 583. B., as Vacation Judge, 24 Sol. Jo , 807. 
 
 ' 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 was 
 both made and to be performed, and the land lies within a foreign jurisdiction, 
 provided that the defendant has been duly served with process and subjected 
 to the jurisdiction of the court. Cleveland v, Burnell, 25 Barb., 532; New- 
 bom V. Bronson, 3 Kern. (N. Y.), 587,
 
 EXTENT OF THE JURISDICTION. 51 
 
 case Hart, a domiciled Englisliman, agreed at Hamburg 
 ^vitli Herwig, domiciled at Hamburg, for the purchase of a 
 ship to arrive from San Francisco, for a certain sum liable 
 in the event of certain damage to an abatement. The ship 
 arrived in this country. The plaintiff claimed the abate- 
 ment, the amount of which he alleged could be ascertained 
 by a survey, which Herwig and the master refused, and de- 
 clined to complete except on payment of the full price. 
 The bill was against Herwig and the master, and prayed 
 specific performance and an injunction against removmg 
 the ship. This injunction was granted by Malins, V. C, 
 and upheld by James and Mellish, L. J J. Their Lordships 
 drew a distinction between an action for damages and the 
 suit. H it had been the former, it was said that the action 
 must have been in the forum of the defendant. "But 
 where," said James, L. J., "the contract as in this case, 
 though made abroad, is to deliver a thing in specie to a 
 person in this country, and the thing itself is lu-ought here, 
 then the court here, in the exercise of its discretion, will 
 see that the thing to be delivered in this country does not 
 leave this country, so as to defeat the right of the plaintiff 
 to have it so delivered. "(^•) The law thus laid down seems 
 to create an exception to the general principle of interna- 
 tional law, which requires the plaintiff to seek the defend- 
 ant and to sue in his forum. The decision is remarkable, 
 but it has the authority of three unanimous judges. 
 
 12. Quasi-contracts in respect of loliicJi the court has 
 jurisdiction. 
 
 § 107. There is a class of quasi-contracts in res2)ect of 
 which the court entertains jurisdiction, viz.: where the re- 
 lationship of vendor and purchaser is constituted by the 
 exercise of those compulsory powers of railway and other 
 companies which are conferred by the lands clauses consoli- 
 dation act, 1845, and similar statutes. They are here called 
 quasi-contracts, because when the proceedings are strictly 
 under the statute there is an absence on the part of the man 
 whose land is taken of that volition, which seems an essen- 
 tial element in all true contracts. 
 
 {k) PageS64. 
 
 ^
 
 62 FKY OX SPECIFIC PERFORMANCE OF CONTRACTS. 
 
 § 108. It was at one time supposed tliat the mere notice 
 to treat constituted the relation of vendor and purchaser to 
 such an extent that a suit in equity could thereupon be 
 maintained. But it is now well ascertained that such is not 
 the case, and that though the notice constitutes the relation 
 for certain purposes, such as that the particular lands to be 
 taken are fixed, and that the company cannot get rid of the 
 obligation to take nor the landowner of the obligation to 
 give up these lands, yet that there is no contract between 
 the 23arties and no ground for equitable intervention. (Z) 
 
 § 109. After this notice is given, the act points out the 
 method in which the purchase-money is to be ascertained. 
 If the amount claimed do not exceed £50, it is to be settled 
 by two justices ; if it exceed £50 it is to be settled by arbi- 
 tration if the landowner so require, but otherwise by a jury, 
 to be summoned at the instance of the company, (m) 
 
 § 110. If after notice given the landowner refuse to con- 
 vey, the company can proceed against him under their statu- 
 tory powers, but have no ground for equitable relief ; and 
 conversely if after notice the company refuse to proceed, 
 the landowner cannot, it is conceived, generally sue in 
 equity ; but he may apply for a mandamus to compel the 
 company to proceed under the statute to ascertain the com- 
 pensation money payable. (7z) 
 
 § 111. There is one case,(o) however, in which jurisdic- 
 tion was entertained by the court of chancery to enforce on 
 the railway company proceedings under the lands clauses 
 consolidation act. The question was how far a piece of land 
 came within the definition of curtilage, so that if the com- 
 pany took any j)art they could be compelled to take the 
 whole under section 92 of the lands clauses consolidation 
 act. The company gave a notice to take the part ; the plain- 
 tiff gave a counter- notice to take the whole ; the comjDany 
 took possession of part, and the plaintiff thereupon filed his 
 bill and obtained at the hearing a declaration that the com- 
 pany were liable to take the whole and a reference for title ; 
 
 (I) Haynes v. Haynes, 1 Dr. & Sm., 426, way Co., 2 Mac. & G., 118; Lind v. Isle of 
 
 where all the earlier cases are considered Wight Ferry Co., 7 L.T. (N. S.), 416; 1 N. R., 
 
 and classified. See, however, Marson v. 13 ; cf. Leominster Canal Navigation Co. v. 
 
 London, Chatham and Dover Railway Co., Shrewsbury and Hereford Railway Co., 3 K. 
 
 L. R. 6 Eq., 101 ; 7 Eq., 546. & J., 654 ; and consider Baker v. Metropolitan 
 
 (m) Lands Clauses Consolidation Act, 1845, Railway (Jo., 31 Beav., 504, 511. 
 
 §§ 2-i, 23. (o) Marson v. London, Chatham and Dover 
 
 (n) Adams v. London and Blackwall Rail- Railway Co., L. R. 6 Eq., 101.
 
 EXTENT OF THE JURISDICTION. 53 
 
 when the case came on for further consideration (^;) the 
 plaintiff's counsel admitted that there was no precedent 
 pointing out what course was to be pursued ; but they 
 asked and obtained a direction that the defendant company 
 should proceed under the lands clauses consolidation act to 
 ascertain the amount payable for the value of the land, and 
 directions for the payment of this amount and execution of 
 the conveyance. The question of jurisdiction to make such 
 a decree as was made does not seem to have been raised at 
 the hearing. 
 
 § 112. After the ascertainment of the amount of pur- 
 chase-money, the equitable jurisdiction of the court of chan- 
 cery was clear. There then exists what has been called a 
 parliamentary contract, and the performance of that so- 
 called contract could not be enforced at common law, for 
 the courts of common law having no machinery for investi- 
 gating the title or settling the conveyance could not do com- 
 plete justice between the parties; but a suit might have 
 been maintained in equity by either party to carry into exe- 
 cution this quasi-contract. (^) For this purpose it seems to 
 have been considered immaterial whether the compensation 
 money had been ascertained in strict pursuance of the act 
 or otherwise. In Mason v. Stokes Bay Pier and Railway 
 Co.(r) and Harding v. The Metropolitan Railway Co. (.9) the 
 compensation money was ascertained by statutory arbitra- 
 tions ; in Nash v. The Worcester Improvement Commis- 
 sioners (t) by the verdict of a jury, in Inge v. Birmingham, 
 Wolverhampton and Stour Valley Railway Co.{u) the com- 
 pensation was settled by correspondence, in The Regent's 
 Canal Co. v. Ware {v) by arbitrators appointed under a writ- 
 ten agreement, and in Watts v. Watts (■?/?) by two surveyors 
 named by jmrol ; and in all these cases, as well where the 
 act was as where it was not strictly pursued, the court of 
 chancery entertained jurisdiction. In the latter class of 
 cases the relation constituted ai)proached to, if it did not 
 assume, the character of true contract. 
 
 J; 113. It is probahly hardly needful to observe tliaf. if, 
 
 (p) L. R. 7 Eq., 546. {s) L. R. 7 Ch., 154. 
 
 {</) Regent's Canal Co. v. Ware, 23 Beav., (<) 1 Jur. (N. S.i, U73. 
 
 575; Mason v. Stokes Bay Pier and Railway (u) 1 Sm. & Gill"., ;i47; S. C, 3 De G. M. & 
 
 Co., SZ L. J. Ch., 110; 11 W. R., so; Harding G., 65S. See, too, Bee v. Stafford and Uttox- 
 
 V. Metropolitan Railway Co., L. R. 7 Ch., eter Railway Co., 23 vv. R., s<53. 
 
 154; Watts v. Watts, I>. R. 17 Eq., 217. (v) 23 Beav., 575. 
 
 (r) 11 W. R., 80; 32 L. J. Ch., UO. (if) L. R. 17 Eq., 217.
 
 
 54 FRY OX SPECIFIC PERFORMANCE OF CONTRACTS. 
 
 after statutory notice, a contract should be entered into be- 
 tween the company and the landoAvner, such a contract may 
 be the subject-matter of an action for specific performance, 
 just in the same way as any other contract, (rr) It is none 
 the less a contract, because the relations between the parties 
 began under the statutory powers of the company.' 
 
 (X) Per Kindersley, V. C, in Havnes v. but unsuccessfully, tried to give the go-by to 
 
 Haynes 1 Dr & Sm., 457. See Wells v. the contract by proceedings under §§ 76, 77 
 
 Chelmsford Local Board of Health (15 Ch. of the lands clauses act. 
 D., Iii8), where the defendants ingeniously, 
 
 ' Not decreed wJien it looidd be inequitable so to do.] Where the contract is for 
 the sale of laud, the court will not decree the specific performance of a con- 
 tract to convey, where it would be unjust and inequitable so to do. Fitzpatrick 
 V. Dorland, 27 Hun, 291. 
 
 Reqidsiti'S.] Particularity, a consideration (which must be a valuable one), 
 certainty, mutuality and a necessity for performance, are requisites upon which 
 the equity of a case arises. Ashton v. Robinson, 49 Miss., 348; see, also, 
 Willard v. Taylor, 8 "Wall., 557. 
 
 Powers of United States courts.] The powers and rules of decision are the 
 same in all the States; the equity jurisdiction is derived from the constitution 
 and the laws of the United States. Noonan v. Lee, 2 Black. , 499. 
 
 Specific ])e7'fo?-mance as to contracts of insurance.] Where there is a contract 
 to insure, and a loss has occurred, the court will not compel the plaintiflF to 
 have recourse to an action at law ; it will decree specific performance of the 
 contract and paj'ment. Mead v. Davison, 3 Adol. & El., 303; Carpenter v. 
 Mutual Safety Ins. Co., 4 Sandf. Ch., 408; Perkins v. Wash. Ins. Co., 4 Com. 
 645; S. C, 23 Wend., 18, 425; Taylor v. Merchants' Fire Ins. Co., 9 How. (N. 
 S.), 405.
 
 CONTEACTS WITH A PENAL SUM. 55 
 
 CHAPTER III. 
 
 OF CONTEACTS WITH A PENAL OE OTHEE LIKE SUM. 
 
 § 114. From the principles stated in the last chapter, it 
 appears that where a contract is substantially x)erformed by 
 the payment of a sum of money, the common law remedy 
 being adequate, equity mil not interfere. Hence, in cases 
 where there is added to the contract a clause for the pay- 
 ment of a sum of money in the event of non-performance, 
 the question arises whether 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. 
 
 § 115. The question always is. What is the contract? Is 
 it that one certain act shall be done, with a sum annexed 
 whether by way of penalty or damages to secure the i^er- 
 f ormance of this very act ? or is it that one of two things 
 shall be done at the election of the party who has to per- 
 form the contract, namely, the performance of the act or the 
 payment of the sum of money X If the former, the fact of 
 the penal or other like sum being annexed will not prevent 
 the court enforcing performance of the very act, and thus 
 carrying into execution the intention of the parties ; («) if 
 the latter, the contract is satisfied by the payment of a sum 
 of money, and there is no ground for proceeding against the 
 party having the election to compel the performance of the 
 other alternative.' 
 
 § 116. From what has been said it will be gathered that 
 
 (a) Howard V. Hopkins, 2 Atk., 371; Frencli tholomew, 12 Pri., 797. 
 V. Macale, 2 Dr. & War , 269; Roper v. Bar- 
 
 1 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, 3 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 sitatn quo. Skinner v. Dayton, 3 John. Ch., 431; S. P., Skinner v. 
 White, 17 id. 357.
 
 66 FEY o:n^ specific performance of contracts. 
 
 contracts of the kind now under discussion are divisible into 
 three classes : 
 
 (1) Where the sum mentioned is strictly a penalty — a sum 
 named by way of securing the iDerformance of the contract, 
 as the penalty in a bond. 
 
 (2) Where the sum named is to be paid as liquidated 
 damages for a breach of the contract. 
 
 (3) Where the sum named is an amount the payment of 
 which may be substituted for the performance of the act at 
 the election of the person by whom the money is to be paid 
 or the act done. 
 
 Where the stipulated payment comes under either of the 
 two first mentioned heads the court will enforce the con- 
 tract, if in other respects it can and ought to be enforced, 
 just in the same way as a contract not to do a particular act 
 with a penalty added to secure its performance or a sum 
 named as liquidated damages may be specifically enforced 
 by means of an injunction against breaking it. On the 
 other hand, where the contract comes under the third head, 
 it is satisfied by the payment of the money, and there is no 
 ground for the court to compel the specific performance of 
 the other alternative of the contract. (&) It will be conven- 
 ient to consider the three classes of cases separately. 
 
 § 117, (1) A penalty (strictly so called) attached to the 
 breach of the contract will not prevent it from being specifi- 
 cally enforced. 
 
 "The general rule of equity," said Lord St. Leonards,(c) 
 "is that if a thing be agreed upon to be done, though there 
 is a penalty annexed to secure its performance yet the very 
 thing itself must be done. If a man, for instance, agree to 
 settle an estate and execute his bond for £600 as a security 
 for the performance of his contract, he will not be allowed 
 to pay the forfeit of his bond and avoid his agreement, but 
 he will be compelled to settle the estate in sj)ecific perform- 
 ance of his agreement. (^) So, if a man covenant to abstain 
 from doing a certain act and agree that if he do it he will 
 
 (b) "There are," said Brarawell.B., In Legh statute; and thirdly, covenants that acts shall 
 
 V. Llllie, 6 H. & N., 165, 171 ; 30 L. J. Ex. 25, not be done unless subject to a certain pay- 
 
 28, "three classes of covenani 8 : first, coven- ment." 
 
 ants not to do particular acts, with a penalty (c) In French v. Macale, 2 Dr. & War., 
 
 for doing them, which are within the S and 9 274-5 
 
 Win. Ill, ch 11; secondly, covenants not to (d) The case referred to seems to be Chil- 
 
 do an act, with liquidated damages to be paid liner v. Chilliner, 2 Ves. Sen , 5;8. 
 if the act is done, which are not within the
 
 CONTRACTS WITH A PENAL SUM. 57 
 
 pay a sum of money ; it would seem that lie will be com- 
 pelled to abstain from doing tliat act, and, just as in the 
 converse case, he cannot elect to break his engagement by 
 paying for his violation of the contract." 
 
 § 118. Thus where two persons entered into articles for 
 the sale of an estate, with a proviso that, if either side 
 should break the contract, he should pay £100 to the other, 
 and the defendant, by his answer, insisted that it was the 
 intention of both parties that, upon either paying £100, the 
 contract should be absolutely void, Lord Hardwicke never- 
 theless decreed specific j)erformance of the contract to 
 sell.(e) In another case, the condition recited a contract for 
 a settlement comprising a sum of money and also real estate; 
 the penalty was double this sum of money, but had no rela- 
 tion to the real estate ; the court granted specific i^erform- 
 ance of the contract embodied in the condition. (/) And 
 where a father, in consideration of his daughters giving up 
 a part of their interest in the property, agreed to make up 
 their incomes arising out of it to £200 a year, and entered 
 into a bond for the payment of such sum as might be need- 
 ful for that purpose, and the bond recited the contract, the 
 court took this as evidence of the contract, and accordingly 
 granted relief on the foot of it beyond the bond ; {g) and in 
 a case which went to the House of Lords, a contract (con- 
 tained in the condition of a bond) to give certain property 
 by will or otherwise, was held not to be satisfied by the 
 penalty, but was specifically performed. (7^) 
 
 § 119. So, again, a contract not to carry on a particular 
 kind of business within certain limits expressed in the con- 
 dition to a bond can be enforced by injunction. (/) 
 
 § 120. (2) The difference between penalty and liquidated 
 damages is, as regards the common law remedy, most ma- 
 terial. For according to common law, if the sum named is 
 not a penalty, but the agreed amount of liquidated dam- 
 ages, the contract is satisfied either by its performance or 
 the payment of the money, [j) But as regards the equitable 
 
 (f) Howard v. Hopkins, 2 Atk., 371. (i) Clartson v. Edge, 33 Beav., 227; Grave- 
 
 (/) Prebble v. Boghurst, : Sw., 309. ly v. Barnard, L,. R. IS Eq , 518 
 
 (g) Jeudwine V. Agate, 3 Sim., Ul. (j) Anon., Hard., 320 ; Lowe v. Peers, i 
 
 (h Logan V. Wienholt, 7 Bli. (N. S.), 1; 1 Burr ,22.'5; Hurst v. Hurst, 4 Ex ,571; Legh 
 
 V. L 
 
 El. 
 
 776. 
 
 Qi) Logan v. Wienholt, 7 Bli. (N. S.), 1; 1 , , - 
 
 CI. & Fin , 611. See, also, Butler v. Fowls, 2 v. Lillie. 6 H. & N , 165; Mercer v. Irving, 
 Coll , 156. El. B. & E., 563; Atkyns v. Kinneir, 4 Ex.,
 
 58 FRY OX SPECIFIC PERF0E3IANCE OF CONTRACTS. 
 
 remedy the distinction is unimportant ; for the fact that the 
 sum named is the agreed amount to be paid as liquidated 
 damages is, equally with a penalty strictly so called, inef- 
 fectual to prevent the court from enforcing the contract in 
 specie, (ly 
 
 § 1:31. The simplest illustration of this is the ordinary 
 case of a stipulation on the sale of real estate that if the 
 purchaser fail to comply with the condition he shall forfeit 
 the deposit, and the vendor shall be at liberty to resell and 
 recover as and for liquidated damages the deficiency on such 
 resale and the expenses. (Z) Such a condition has never been 
 held to give the i^urchaser the oi3tion of refusing to perform 
 his contract if he choose to pay the penalty, nor to stand in 
 the Avay of specific ^performance of the contract. 
 
 § 122. In French v. Macale(m) Lord St. Leonards fully 
 discussed the law as to compelling the performance of con- 
 tracts of the kind under discussion. In that case there was 
 a covenant in a farming lease "not to burn or bate the de- 
 mised premises, or any part thereof, under the penalty of 
 £10 per acre, to be recovered as the reserved yearly rent for 
 every acre so burned." His lordship appears to have con- 
 sidered this increased rent as in the nature of liquidated 
 damages and not a penalty ; but, nevertheless, he granted 
 an injunction against the burning, saying after a careful 
 review of the authorities that in every case of this nature 
 the question is one of construction, and that the court will 
 always interfere unless there is evidence of an intention that 
 the act is to be permitted to be done on iDayment of the 
 increased rent, 
 
 § 123. In one case a deed was executed dissolving a part- 
 nership between H. and L., and containing a recital that it 
 had been agreed that the deed should contain a covenant by 
 L. not to carry on the trade within one mile from the old 
 
 (k) City of London v. Pugh, 4 Bro. P. C, {[) "X purchaser," said Lord Eldon in 
 
 395; Webb v. Clark, 1 Fonbl. Eq , 154; French Crutchley v. Jernlngham (2 Mer., 506), " has 
 
 V. Macale, 2 Dr. & War., 296; Coles v. Sims, no right to say that he will put an end to the 
 
 5 De G. M. & G., 1 ; Garden v. Butler, Hayes agreement, forfeiting his deposit." Cf. Long 
 
 6 J., 112; Bird v Lake, 1 H. & M., HI; cf. v. Bowring, 33 Beav., 585. 
 Bray v. Fogarty, I. R. 4 Eq., 544. (?«) 2 Dr. & War., 369. 
 
 _ ^ Liquidated damages. '\ Where the contract stipulates for the payment of 
 liquidated damages in case of failure of performance, the court may decree 
 specific performance, unless the agreement itself gives an option of payment 
 instead of performance. Hull v. Sturdivant, 46 Me., 44; Dooley v. Watson, 1 
 Oray, 414; Hooker v. Pynchon, 8 id., 550. 
 
 1
 
 CONTRACTS AVITII A PEXAL SUM. • 69 
 
 place of business "without paying to H., as or by way of 
 stated or liquidated damages," a sum named. In a subse- 
 quent part of the deed there was an al)solute covenant not 
 to carry on the trade Avithin that limit, followed by a proviso 
 that if L. should act contrary to or in infringement of that 
 agreement he would immediately thereupon pay to H. the 
 sum of £1,500 by way of liquidated damages. Notwith- 
 standing the recital and the form used, it was held that L. 
 was not entitled to break the covenant on paying the £1,500, 
 and an injunction was granted. (??,)' 
 
 § 1'24. The same view was put forward, though perhaps 
 in slightly different language, by the lords justices in Coles 
 V. Sims.(c») That Avas a case in which there were mutual 
 covenants between a vendor of part of his land and the pur- 
 chaser of that part as to building on the sold and unsold 
 parts, with a stipulation for payment of liquidated damages 
 in case of breach or covenant. On an application for an 
 interim injunction (which was granted). Knight Bruce, L. J., 
 said -.{p) " If I were now deciding the cause, I should proba- 
 bly come to the conclusion that in a case where a covenant 
 is protected (if I may use the expression) hj a i^rovision for 
 liquidated damages, it must be in the judicial discretion of 
 the court, according to the contents of the whole instrument 
 and the nature and circumstances of the particular instance, 
 whether to hold itself bound or not bound upon the ground 
 of it to refuse an injunction if otherwise proper to be granted; 
 and that in the present case, the circumstances are such as 
 to render it right for the conrt to grant an injunction."' 
 Turner, L. J., added : "The question in such cases, as I con- 
 ceive, is whether the clause is inserted by way of penalty, 
 or whether it amounts to a stipulation for liberty to do a 
 certain act on payment of a certain sum." 
 
 § 125. Where the contract to do or not to do the act is 
 
 (?!) Bird V. Lake, 1 11. & M., 111. (p) 5 De G. M. & G., 'J. 
 
 (o) 5 De G. M. & G., 1. 
 
 ' Inpaiction.] A bond was given ])y a clerk to his oniployer, in ihe penalty 
 of £1,000, stipulating that the obligor should not carry on the .same business 
 ■within a specified distance. Ileld.lhat the bond was not merely to secure the 
 price of doing the business on the clerk's part, but to prevent him from iloiug 
 it. An injunction was granted. Howard v. Woodward, 84 L. J. C, 47; Jones 
 V. Heaueus, L. R., 4 D. C, 636; see, however, IS^obles v. Bates, 7 Cow.. 307; 
 Dakiu V. Williams, 23 Wend., 201.
 
 60 FRY ON SPECIFIC PERFORMANCE OF CONTRACTS. 
 
 distinct from the obligation to pay a sum of money, it seems 
 that either the contract or the obligation may be sued on. 
 
 •^ Where a person," said Lord Romilly, M. E,., in Fox v. 
 Scard,!^) "enters into an agreement not to do a particular 
 act and gives his bond to another to secure it, the latter has 
 a right at law and in equity, and can obtain relief in either, 
 but not in both, courts." 
 
 § 126. It is clear that the fact that the contract may be 
 comprised in a bond does not of itself import any election 
 to pay the money and refuse to do the act.(r) 
 
 § 127. (3) In the third class of contracts, which may be 
 distinguished as alternative contracts, the intention is that 
 a thing shall be done or a sum of money paid at the election 
 of the person bound to do or pay. 
 
 In these cases the contract is as fully performed by the 
 payment of the money as by the doing of the act, and, there- 
 fore, where the money is paid or tendeited there is no ground 
 for interference by w^ay of specific performance or injunction. 
 
 § 128. The question to which of the three foregoing 
 classes of contracts any particular one belongs is, of course, 
 a question of construction.' In considering it "the courts 
 must, in all cases, look for their guide to the primary inten- 
 tion of the parties, as it may be gathered from the instru- 
 ment upon the effect of which they are to decide, and for 
 that purjDose to ascertain the precise nature and object of 
 the obligation." (5) Consequently each case depends on its 
 own circumstances, but it may be noticed that "a court of 
 equity is in general anxious to treat the penalty as being 
 merely a mode of securing the due performance of the act 
 contracted to be done, and not as a sum of money really in- 
 tended to be paid;"(^) and that, "on the other hand, it is 
 
 (g) 33 Beav., 328. (s) Roper v. Bartholomew, 12 Pri., 821. 
 
 (r) Hobson V. Trevor,2 P. Wms.lGl; Chil- (t) Per I>ord Cranworth in Hanger v. Great 
 
 liner v. Chilliner, 2 Ves. Sen., 528; Clarkson vvestern Railway Co., 5 H. L. C, W; Astley 
 
 V. Edgp, 33 Beav., 227. " The form of mar- v. Weldon, 2 Bos. & P., 346. 
 riage articles by bond does not import elec- 
 tion." Roper V. Bartholomew, 12 Pri., 797. 
 
 ' Ilacklett V. Alcott, 1 Call., 583; City Bank of Baltimore v. Smith, 3 Gill & 
 John., 265; Moore v. Piatt Co., 8 ^NIo. , 467. The intention of the parties, if it 
 can be ascertained, must govern as to whether the sum specified is to be regarded 
 as a penalty, or as liqi;idated damages. The case, however, must be free from 
 fraud. Durst v Swift, 11 Lexax, 273; Cothreal v. Talmadge. 9 N. Y., 557; 
 Bagley v. Peddie, 16 id.. 409. A diflfereut rule is held in Michigan. See 
 Jaquith v. Hudson, 5 Mich., 123. In Iowa, the inclination of the court is to 
 regard the amount named as a penalty, where it is doubtful what the parties 
 really intended. Foley v. Keegan, 4 Iowa, 1.
 
 CONTRACTS WITH A PENAL SUM. 61 
 
 certainlj^ open to parties who are entering into contracts to 
 stipulate that on faihire to perform wliat lias been aureed 
 to be clone, a fixed sum shall be paid by way of compensa- 
 tipn."(?^)' 
 
 § 1"39. On this question it is by no means conclusive that 
 the contract may be alternative in its form, for, nevertheless, 
 the court may clearly see that it is essentially a contract to 
 do one of the alternatives ; so that where there was a con- 
 tract to renew a certain lease, with an addition of three years 
 to the original term, or to answer the want thereof in dam- 
 ages, the court decreed specific performance of the lease, 
 
 (u) Ranger v. Great Westera Railway Co., 5 H. L. C, 04. 
 
 ' The legal operation of a penalty, properly so called, is not to create a for- 
 feiture of the entire sum named, but only to cover the actual damaires occa- 
 sioned b}^ the breach of contract ; and, therefore, on paj'ment of such damages, 
 or in the case of a bond, of the principal and interest actually due, the party 
 who has incurred the penalty will 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 equitv, 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 tliis ground 
 that relief is granted. IFonbl. Eq. B. 1, ch. 6, g 4, note (A). 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 o"f a security — that a court of equity will 
 ever enforce & forfeiture. "It is admitted, indeed," says Mr. .lustice Story, 
 " that where the condition or forfeiture is merely a security for the non-pay- 
 ment 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, ami is ac- 
 cordingly relievable." Hill v. Barclay, 18 Ves , 58; Wadham v. Calcraft, 10 
 id., 68; Reynolds v. Smith, 19 id., 140. But if the forfeiture arises from the 
 breach of any other covenant of a collateral nature, as, for example, of a cov- 
 enant to repair, there, although compensation might be ascertained, and made 
 upon an issue quantum damnijicatus, yet it has been held that courts of equity 
 ought not to reUeve, but should leave the parties to their remedy at law. Wad- 
 ham V. Calcraft, 10 Ves., 68; Hill v. Barclay, 16 id., 40:3; S. C. 18 id., 59; 
 Reynolds v. Pitt, 19 id., 140; Bracebridire v. Buckley, 2 Price's R., 200. la 
 England it is held, that in all cases of forfeiture for the breach of any covenant, 
 other than a covenant to pay rent, no relief ought to be granted, in ecpiity, im- 
 less upon the ground of accident, mistake, fraud or surprise, although the 
 breach is capable of a just compensation. Eaton v. Lvon, 3 Ves., 692: Brace- 
 bride V. Buckley, 2 Price's R.. 200: Hill v. Barclay, 16 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 acci- 
 dent or mistake, for which compensation can be made to the other party; or 
 where the forfeiture is in the nature of a mere security for the payment of 
 money. Baxter v. Lansing, 7 Pai^e, 350. The rule, however, was formerly 
 different. Popham v. Bampfield, 1 Vern., 33: Havwards v. Angell. 1 i<l.. 222: 
 Northcote v. Dake, Ambler's R., 513; Sanders v. fope. 12 Ves., 289. Though 
 the distinction 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.
 
 62 FRY ON .SPECIFIC PEIIFOKMAXCE OF CONTRACTS. 
 
 the second alternative only expressing what the law would 
 imply. («y 
 
 § 1 JIO. The largeness or smallness of the sum named is no 
 reason for considering it a mere penalty, unless that be the 
 
 (v) Finch v. Earl of Salisbury, Finch, 212. 
 
 ' 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 iu 
 iuteut, a penalty; or because they have designedly used language and inserted 
 provisions which are in their nature penal, and j-et have endeavored 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 iu nomine 
 ^At'/itf, and when it is properly designed as liquidated damages." Stor3-'s Eq. 
 Jur., lol8. See Watts v. Shepherd, 2 Ala., 425. It is said iu Owens v. Hodges, 
 1 McMullan, 106, that where a party to a contract stipulates to perform one or 
 more things, and, iu 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-payment of a smaller, or the non-performance of a duty, the 
 damages resultiug 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. A. engaged by bond "in the full and just 
 sum of .$500, liquidated damages," to convey to B. 3,000 feet of land, and after- 
 wards, on B's demand, executed a deed to him, conveying a lot of land described 
 by metes and bounds. B. accepted the deed, and he and A. agreed that, if it 
 was not right, it should be made right. It was afterwards found, upon a sur- 
 vey of the land conveyed, that it contained only 2513 feet. 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 y. Taylor, 5 Mete, 61. A. agreed to do a piece of work for $758, and 
 gave his bond with sureties, to secure the performance of the work, in the sum 
 of $1,570, "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 County, 8 Mis., 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 $2,100, and that if either party should fail to perform the contract accord- 
 ing 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. Lampmau v. Cochran, 
 16 N. Y. (2 Smith), 275; see Foley v McKeegan, 4 Iowa, 1. If, by the agree- 
 ment, it is doubtful whether the parties intended that the sum specified should 
 be a penalty or liquidated damages, courts incline to treat the contract as cre- 
 ating a penalty to cover the damages actually sustained by one breach, and not 
 as liquidated damages. Foley v. ]McKeegan, 4 Iowa, 1. In Cowan v. Gerrish, 
 3 Shep , 273, and in Durst v. Swift, 11 Texas, 273, it is said that the lawful in- 
 tention of the parties, in a case free from fraud, where it can be ascertained, 
 must have a decisive influence in determining whether the sum stated in the 
 instrument is to be regarded as a penalty But, on the other hand, it is held, 
 in Jaquith v. Hudson, 5 Mich., 123, that the real question, in this class of cases, 
 is not what the parties intended, but whether the sum is in the nature of a pen- 
 alty or of liquidated damages — that this is to be determined by the magnitude 
 of the sum in connection with the subject-matter. But that where, from the 
 nature of the contract, the subject-matter, etc., the actual damages from a 
 breach are uncertain or diflicult" to ascertain, under these circumstances, the 
 parties are permitted to estimate for themselves, and provide in their contract 
 for the amount to be paid on a breach. [Per Christiancy, J.] Perhaps, how- 
 ever, the true doctrine was laid down in Cotheal v. Talmadge, 5 Seld. (N. Y.), 
 557. Here it was said that where the damages resiilting from the breach of aa 
 agreement would be very uncertain, and evidence of ^heir amount very diffl-
 
 CONTRACTS AVITTT A rKXAI, SUM. 63 
 
 apparent intention ;(?o) but wliere the amount of tlie penalty 
 is small, as compared with the value of the subject of the 
 contract, it has been considered a reason for treating the 
 sum reserved as a mere*penalty. and not in tlie nature of an 
 alternative contract. (.t) 
 
 § ISl. In a case where a man, l)ein,t;- veiy uncertain wliat 
 estate he should derive from his father, entered into a bond 
 
 (w) Roy V. Duke of Beaufort, 2 Atk., 190; v. Macale, 2 Dr. & War , 2(;9. But sec Burne 
 Astley V. Weldon, 2 Bos. & P., 34C; French v. Madden, LI. A: U . t. I'iunk . 493. 
 
 (X) Chillliier v. Cldllincr, J Ves. Sen., 528. 
 
 cult to obt.ain, and the fair import of the agreeiiient is tliat the amount named 
 in it i.s specified and agreed ou to save expen.se, and avoid the difliculty of 
 proving tlie actual damage, and is not out of proportiim t(j the jirobable actual 
 damage, it will be regarded as li<|uitlated damages. Thus, in Nobles v. Bates, 
 7 Cow., 307, a decision in accordance with the English case of Sainter v. Fer- 
 guson, 7 C. B., 715, where N. i.t B. dissolved their partnership in business, and 
 their articles of dissolution declared one object of the (lis.solution to be, tliat N. 
 should relinquish the trade — that B. should jiay him .s::{,()00, in various install- 
 ments, the last being .s7r)0 — and that if N. should set ui) the business within 
 twenty miles of their furmcr place of business, he should forfeit that install- 
 ment; held, that the installment of !p750 must be considered as li(|uidated 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 iiave fixed 
 the value of that item in the consideration at .$700. In the nature of the case, 
 the precise injury which the defendant would sustain from the establishmcut 
 or continuance of the same kind of business could not be accurately ascertained. 
 It must depend upon a variety of circumstances; upon the capital which the 
 party might invest; the industry which he might exert; and the patronage from 
 these, and other causes, he might be able to attract." In Baglcy v. Pctldie, 16 
 N. Y. [2 Smith], 469, a bond declared the obligors to Ite bound in the sum of 
 $3,000 as liquidated damages, and not by way of i)enalty, for the i>erformauce 
 of the covenants of a written agreement. One of the covenants was, not to re- 
 veal the secrets of a trade in which the i)rincipal obligor was to be employed. 
 It was held, that the amount of damages to result from a breach of this stipu- 
 lation of the agreement was so uncertain and conjectural, that the sum named 
 in the bond should be considered as li(juidated damages, and not a penalty, 
 although the damages of the actual breach were certaiiu The following cases 
 were also held to be those of liquidated damages: A partv agreed to convey u 
 tract of land for $1,200, a part of which was to be paid down, and was to be 
 received as part of the consideration money, if the i)urchase were completed, 
 or of the damage, if the contract were not performed ; and he also covenanted, 
 if he did not conform to his agreement, to pay .^oOO as forfeiture. Chamber- 
 lain V. Bagley, 11 N. H., 2M. A. covenanted with B. to procure and deliver 
 to him, within a limited time, the certificate of third persons to a certain etTect, 
 and stipulated that if he failed to do so, he would pay him .^-lOO liiiuidated 
 damages. Hamilton v. Overton, G Blackf., 20G. Where a jKirty. in considera- 
 tion of having conveyed to him fourteen city lots for only sj 1,000, covmauted 
 that he would, by a certain day, erect two brick houses," or in default thereof 
 pay to the grantor, on demand, the sum of $4,000. AVhere the plaintiffs gave 
 |;3,000 for the patronage and good will of a newspaper, and $500 for the type, 
 etc., and the vendors covenanted that they would not ])ublisli a rival paper, etc., 
 and the measure of damages was fixed at ^3,000. Dakin v. Williams, "2'i Wend., 
 201. Where the parties contract mutually to do certain ai-ts 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. (Jamnion v. Howe, 2 Shep.. 250. 
 Where publishers agree to sell law reports to all applying or pay $100 for each 
 refusal. Little v. Banks, 85 N. Y., 258.
 
 64 FRY OX SPECIFIC PERFORMATs^CE OF CONTRACTS. 
 
 in £5,000, on the marriage of liis daughter, to settle one- 
 tliird of such i^roperty, and the contract so to settle was 
 recited in the condition of the bond, it was specifically per- 
 formed in full, and not up to £5,000 only.(^) "Such agree- 
 ment," said Lord Macclesfield, (^) "was not to be the weaker 
 but the stronger for the penalty." 
 
 § 13*3. The fact that the benefit of the contract would 
 result to one person, or flow in one channel, and the benefit 
 of the sum, if paid, in another, is a strong circumstance 
 against considering the contract alternative in its nature ; 
 thus where, on a marriage, the husband's father gave a bond 
 for the payment of £600 to the wife's father, his executors 
 or administrators, in the p)enalty of £1,200 if he did not 
 convey certain lands for the benefit of the husband and 
 wife and their issue. Lord Hardwicke held that the obligor 
 was not at liberty to pay the £600, or settle the lands, at his 
 election, but comjDelled the specific performance of the con- 
 tract to settle — partly on the ground 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 rei3resentativesj 
 and partly that the lands to be settled were worth much 
 more than £600. (a) 
 
 § 133. Where the sum reserved is single, and the act 
 stipulated for or against is in its nature continuing or recur- 
 ring, as, for instance, particular modes of cultivating a farm, 
 the sum will be considered as a security and not an alterna- 
 tive. (Z^) 
 
 § 134. On the other hand where the sum or sums made 
 payable vary in frequency of payment or amount according 
 to the thing to be done or abstained from, the courts have, 
 in many cases, found that the payment is an alternative. 
 
 § 135. In Woodward v. Gyles (c) a covenant by the de- 
 fendant not to plough meadow land, and if he did, to pay 
 so much. an acre, was held not to be a fit case for an injunc- 
 tion restraining the ploughing ; but the exact form of the* 
 covenant does not appear. " If , " said Lord St. Leonards, {d) 
 "as in Woodward v. Gryles,(e) and Rolfe v. Peterson, (/) 
 
 (j/) Hobson V. Trevor, 2 P. Wms., 191. And see Eoper v. Bartbolomew, 12 Pri., 797. 
 (Z) 3 P. Wms., 102^6th ed.). (c) 2 VernT, 119. 
 
 (a) ChilUner v. ChiUlner, 2 Ves. Sen., 528; (d) 2 Dr. & War , 284. 
 Roner V. Bartholomew, 12 Prl., 797. (e) 2 Vern., 119 
 
 (6) French v. Macale, 2 Dr. & War., 269. C/) 2 Bro. P. C , 436
 
 CONTRACTS WITH A PEXAL SUM. 65 
 
 there is evidence of intention that the party is to l)e at 
 liberty to do tlie act if he choose to pay the increased rent 
 of course the court cannot interfere, because this court never 
 interferes against th^ exi^ress contract of the parties." 
 
 § 136. In Rolfe v. Peterson (r/) the question was whether 
 the payment was a penalty and so came within the doctrine 
 of equitable relief against penalties ; but of it Lord Lough- 
 borough said, in Hardy v. Martin (7^) : " That was a case of 
 demise of land to a lessee to do with the land as he thouglit 
 proper; but if he used it one way he was to pay one rent 
 and if another way another rent." Similarly, a covenant 
 in a farm lease not to do certain things " under an increased 
 rent of," etc., was held to give the tenant the right to do 
 the act on paying the increased rent,(/) and a contract to 
 renew perpetually "under a penalty of £70," was held 
 alternative, (y) 
 
 § 137. But where, in addition to the increased rent, there 
 is a stipulation that the act provided against shall be a for- 
 feiture of the covenantors interest, the sum is held to be a 
 security only and not an alternative ; and consequently the 
 court would restrain the doing of the act \{k) and, of course, 
 the usual form of lease giving the lessor the right to re-enter 
 and avoid the lease on breach of covenant offers no impedi- 
 ment to the enforcement of the covenants specilicallj'-.(7) 
 
 § 138. Where the contract would be unreasonable unless 
 It gives an option to the person stipidating to pay the sum, 
 this will be a strong circumstance for treating the contract 
 as alternative. So where a lady, administratrix of her hus- 
 band, covenanted, under a penalty of £70, to renew a sub- 
 lease as often as she obtained a renewal of the head-lease, 
 and it appeared that the lines on the head-lease were raised 
 on renewal, according to the then vahie of the property, so 
 as to render her covenant unreasonable except upon the 
 construction of its giving her an option, the House of Lords 
 treated the contract as alternative. (7/^^) 
 
 ig) 2 Bro. P. C., 43G. 0) Magrane v. Archbold, 1 Dow, 107. 
 
 (h) 1 Cox, 26. (k) Barret v. Blagravc, 5 Ves., 555, as ex- 
 
 (i) 2 Legh V. Linie,(> H. & N.,165: OW. R., plained hv Lord St. I.eonards in French v. 
 
 55; 30 L. J. Ex., 25. And see Hurst v. Hurst, Macale, 2 Dr. & War., 2T8-y 
 
 4 Ex., 571 ; Gerrard v. O'Reilly, 3 Dr. & War., (/) Dyke v. Taylor, 3 Do (i. t. jc j .. 
 
 4l4. (7/t) Magrane v. Archbyld, 1 Dow, 10
 
 66 FRY ON SPECIFIC PERFORMANCE OF CONTRACTS. 
 
 PART 11. 
 
 PARTIES TO THE ACTION. 
 
 CHAPTER I. 
 
 OF THE GENERAL RULE. 
 
 § 139. Ill considering the subject of this chapter it will 
 be convenient to treat separately (1) of the rules formerly 
 aiDplicable to suits for specific performance in the court of 
 chancery, and (2) of the rules now applicable to like actions 
 in the high court constituted by the judicature act, 1873. 
 It is not yet possible to neglect the old i^ractice, as it will 
 no doubt be appealed to, from time to time, as assisting to 
 guide the court under the new jDractice. 
 
 1. As to tlie former iDractice of the court of cliancery. 
 § 140. The general rule with regard to suits to enforce 
 contracts was that the parties to the contract, or their rej^re- 
 sentatives, were the necessary and sufficient parties to the 
 suit — that all the parties to the contract should be parties 
 to the suit and no one else.(<x)' The contract is what con- 
 stitutes the rights and regulates the liabilities of the X3arties ; 
 in a stranger there is no liability ; and against him, there- 
 fore, there was no more right to enforce specific performance 
 in equity than to recover damages at law. (5) 
 
 (a) Mole V. Smith, Jac, 490; Tasker v. Lumley v. Timms, 21 W. R., 319; S. C, Id., 
 
 Small, 3 My. &Cr., 63, 69; Wood v. White, 4 494; HaUfax Joint Stock Banking Co. v. 
 
 id., 460, 483; Humphreys v. Hollis, Jac , 73; Sowerby Bridge Town Hall Co., 25 Sol. Jo., 
 
 Patterson v. Long, 5 Beav., 186; Peacock v. 450; W. N., 1881, 65. 
 
 Penson, 11 id., 355; Bishop of Winchester v. (b) Hare v. London and North Western 
 
 Mid-Hants Railway Co., L. R. 5 Eq., 17, 21"; Railway, 1 J. & H., 252. 
 
 ' McKee v. Beal, 3 Lilt. (Ky.). 190; McWherter v. McMahon, 1 Clark (N. Y.), 
 400. A party sold land which had been decreed to him. Held, that the pur- 
 chaser might compel a conveyance to himself by an original bill. Respass v. 
 McClanahan, 2 A. K. Marsh, 577.
 
 GENERAL RULE. 67 
 
 § 141. It made no difference, that tlie stranger to the 
 contract might be a necessary party to the conveyance, as a 
 judgment creditor, or a legal or equitable mortgagee, or a 
 person interested in the equity of redemption. (c) In Tasker 
 V. Small (rZ)' the bill was tiled by the purchaser of an equity 
 of redemption against the vendors, and PhiUips, the first 
 mortgagee, was made a defendant on the ground that the 
 legal estate being vested in him he refused to convey with- 
 out having competent authority for so doing. Lord Cotten- 
 ham, however, said,((?) "Phillips is merely a mortgagee 
 against whom no bill can properly be filed except for the 
 purpose of redeeming his mortgage, and that by a party 
 entitled to redeem. This bill does not pray any redenqjtion 
 of Phillips' mortgage, and if it had, the plaintiff would not 
 be entitled to file such a bill. He is only connected with 
 the property by having contracted to purchase the equity 
 of redemption, and until that purchase is completed, he 
 cannot redeem the mortgage. Phillips has no interest in 
 the siDecific performance of the contract ; he is no part}' to 
 it, and the performance • of it cannot affect his security 
 or interfere with his remedies." '' 
 
 § 142. Where the o^^iier of land contracted to grant a 
 lease to A. and then mortgaged the land to B. with notice 
 of the contract, and B. did not dispute A.'s right to the 
 
 (c) Tasker v. Small, tebi sup., overruling Hosp. v. Westminster Imp. Comms., 1 De G. 
 
 S. (J., G Sim,, 625. C36; cf. Sober v. Kemp, 6 & J., 531; Hall v. Laver, 3 Y. & C. Ex., 191. 
 
 Ha., 155 (a mixed case of specific ))erform- As to whether there was any difference in 
 
 ance and foreclosure). See, also, Petre v. that respect between suits to rescind and 
 
 Buncombe, 7 Ha, 24 (a purchaser's bill), and suits to enforce contracts, see Aberaman 
 
 Lord Leigh v Lord Ashburton, 11 Beav.,4"0 Ironworks v Wlckens, L. K. 4 Ch., 101, 111, 
 
 (a vendor's bill), from which it appears that and Fenwick v. Bulroan, L. H. Eq., 165. 
 
 judgment creditors, though not necessary, (d) 6 Sim , 6-25; 3 My. &Cr.,63. 
 
 might be proper parties. See, also, Greycoat («) 3 My. & Cr., 69. 
 
 ' The rule as laid down in Tasker v. Small, 3 My. &, Cr., appears to be, that 
 parties for whose benefit a contract was not made, and who were not parties or 
 privies to it, could not a.sk for a specific performance of the same. This was 
 lield in Beardsley Scythe Co. v. Foster, 36 N. Y., 561 ; and Bagott v. "Wetmore, 
 17 N. J. Eq., 250. Where a general creditor has not obtained judgment, and 
 one who has no special claim upon the property of his debtor — Held, that he 
 had no right to call for the specific execution or rescission of the debtor's con- 
 tracts for his own benefit. Griflith v. Frederick Co. Bank, 6 Gill & John., 424. 
 
 ' Rule as (o parties.] The rule appears to be that the remedy in "equity shall 
 either be between the parties who stipulated what should be done, or those 
 standing in their place. Burgess v. Wheate, 1 W. Bl., 12!). Where, before the 
 commencement of the action, a partial assignment of the complainant's inter- 
 est to a person who did not join in the bill— Held, no defense. AVillard v. Tay- 
 lor, 8 Wall., 557; Levy v. Brush, 8 Abb. Pr. (N. S.), 418.
 
 68 FEY ON SPECIFIC PERFORMAKCE OF CONTRACTS. 
 
 lease, it was held that B. was not a proper party to a suit 
 by A. for specific performance. (/) 
 
 § 143. xVnd so where a steward was made a party as 
 being receiver of the rents, and having the title-deeds in his 
 possession, the bill was dismissed as against him.((7) And 
 in a suit to enforce a contract made by a mortgagee under a 
 power of sale, the mortgagor was not a necessary party;(^)' 
 
 / /-x T ««,r -r Tinwrine- ■?■? Beav 585 589. (.h) Corder v. Morgan, 18 Ves., 344; Ford v. 
 ^/ MaKinra% fN^mS'Ji VesT Heely (Stuart. V C.). 3 Jur. (N. S.). 1116; 
 A^d 6^e ?Sn vTBradshaw.' 15 Sim.. 192; Clay v. Sharpe. 18 Ves.. 346. n. 
 10 Jur.. 402. 
 
 1 All persons materially interested in the subject of the suit, ought to be 
 made parties either as plaintifE or defendant, in order to prevent a multiplicity 
 of suits and that there may be a complete and final decree between the parties 
 interested And this rule is restricted to parties whose interests are involved 
 in the issue and to be affected by the decree. And the rehef granted will 
 always be so modified as not to afi-ect the interests of others. Mecaanics B k 
 
 V Sevton 1 Pet. 299;Hussey v. Dole, 24 Me., 20; McConnell v. McConnell, 
 li Verm.' 290- Noyes v. Sawyer, 3 id., 160; Crocker v. Higgins, 7 Conn 342; 
 New London B'k v. Lee, 11 id., 112; Hawley v. Cramer, 4 Cow 717; Oliver 
 
 V Palmer 11 GiU. & John., 476: Clark v. Long, 4 Rand., 451; Vaum v. Hag- 
 gett. 3 DeV. & Bat. 31; Frazer v. Legare, 1 Bailey's Cli. 389; Lucas v Bk 
 of Darien 2 Stew., 280; Park v. Balentine, 6 Blackf., 223; Caldwell v. Tag- 
 gart 4 Pet 190. A person for whose benefit an agreement 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 sheriff upon a 
 replevin bond, the sheriff should be made a party, though he has no personal 
 interest in the suit. Campbell v. Weston, 8 Paige, 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 proceedings 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, he should be made a 
 party in both capacities; and it is not sufficient to make him a party as execu- 
 tor and to call upon him to answer as such. Mayo v. Tompkins, 6 Mumf., 
 520. A partner of a complainant and joint obligor on notes given in the course 
 of various mercantile 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 defendant had had an interest in the subject-matter, 
 and it did not appear clearly that he had parted with all that interest, an ex- 
 ception to his being made a party taken under a general demurrer to the bill, 
 was held not to be sustainable. Craire v. Demiug, 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. Watson, 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 and Delaware Falls Co., 
 Greens's Ch., 505. And in a suit against the trustees of an incorporated re- 
 ligious society, to prevent them from ejecting the clergyman from the tempor- 
 alities 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 par- 
 ties, it may be said, that a person with uo interest in the cause, who might be 
 examined as a witness, cannot be made a party. Reeves v. Adams, 2 Dev. Ch., 
 192. And a person having merely a contingent interest in the suit, cannot be 
 made a party htigant. Reed v. Vanderheyden, 5 Cow., 719; Baker v. Rowan, 
 2 Stew, cfc Port., 317; Barbour v. Whitlock, 4 Monr., 180. And where a 
 party commenced a suit as one of the next of kin of a decedent, and after- 
 wards became disinterested in consequence of the birth of a posthumous child, 
 it was held that he could not appeal from the decree in the cause. Id. As to
 
 gejSteral rule. 69 
 
 unless the purchaser had notice that the mortgagor disputed 
 the validity of the sale.(/) 
 
 § 144. In a case before Shad well, V. C, where the vendor 
 sold the same property twice over and the bill was brought 
 by the first purchaser against the vendor and the second 
 purchaser, it was dismissed (without costs) as against the 
 latter, though specific performance was decreed as against 
 the original contractor ; {j) this was affirmed by Lord Lynd- 
 hurst after two arguments; and Turner, L. J., laid down 
 the same doctrine, (/t) 
 
 § 145. Again, where two houses held under one lease 
 w^ere sold in separate lots at the same auction, and it was 
 stipulated that each purchaser should be a party to the 
 other's assignment, it was held that the purchaser of lot 
 two was not a necessary party to a suit to enforce the con- 
 tract with the purchaser of lot one.(Z) And a bill by a jour- 
 chaser for specific performance could not be sustained 
 against i^arties to a previous contract to sell the same land 
 which the bill impeached, (w) 
 
 (i) Anon., 6 Mad. See Jenkins v. Jones, 2 (k) Chadwlck v. Maden, 9 Ha., 188. 
 Giff., 99; Dance v Goldingham, L. R. 8 Ch., (I) Paterson v. Long, 5 Beav., 186. 
 902. But see Clay v. Sharpe, 18 Ves , 846, n. (m) De Hoghton v. Money, L. R. 1 Eq., 164; 
 
 0') Cutis V. Thodey, 1 Coll., 212, 223. See affirmed, id., 2 Ch., 164. 
 too Anon v. Walford, 4 Buss., 372. 
 
 who need not be made parties, it has been held that where 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., 126. But see Russell v. Clark, 7 
 Cranch, 69. On account of the limited and peculiar jurisdiction of the United 
 States courts, if an equity cause may be proceeded in to a final decree between 
 the parties to it, without making others parties, who would generall}' be con- 
 sidered 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. 3Ial- 
 low V. Hinde, 12 Wheat., 193. Although if a final decree between the litigat- 
 ing parties, will necessarily affect the right of those who are absent, the 
 peculiarity of the jurisdiction of the court will not authorize the dispensing 
 with them. Id. But it seems that the court might, in the case of an injunc- 
 tion bill, retain jurisdiction of the parties regularly before it, until the plain- 
 tiffs could have an ojiportunity 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. Id Where a person cannot, 
 by the laws of the United States, be made a party to a bill, on account of his 
 residence in another State, he need not be made aparty to such bill, though, if 
 within the jurisdiction of the court, he would be a necessjiry 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 way con- 
 cluded by the decree, he is not an essential party. Among this class of cases, 
 are suits brought by part of a 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 b}* a few members of a society for the benefit 
 of all. Story v. Livingston, 13 Pet., 359.
 
 /' 
 
 70 FRY ON SPECIFIC PERFORMANCE OF CONTRACTS. 
 
 § 146. In connection with the question under considera- 
 tion it may be noticed that a direction in an order that A. 
 should c<^iivey included in effect mortgagees and all other 
 necessary conveying parties, and the omission of the words 
 commonly inserted that A. "and all other necessary parties 
 if any '' should convey was immaterial. («) 
 
 § 147. Where the suit sought other relief than, that in 
 specitic performance, though all arising from a contract, the 
 court might requii'e the presence of other parties. To this 
 proposition the following case may be referred. A railway 
 company had been let into possession of some land agreed 
 to be purchased, and had agreed to demise the railway to 
 another company, and had let such other company into pos- 
 session, but had not paid the purchase-money of the land ; 
 the vendors of the land filed a bill for specific performance 
 of the contract, payment of the purchase-money, and an in- 
 junction to restrain the companies from continuing in j)os- 
 session of the land, for enforcing the vendors' lien for unpaid 
 purchase money, for a receiver, and damages. The lessees, 
 whose possession the plaintifl: sought to disturb, were held 
 proper parties, (o) 
 
 § 148. On the other hand, the general principle under 
 discussion was strongly illustrated by the case of Robertson 
 V. The Great Western Railway Company. (_??) The plaintiff 
 had agreed 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 the purchase-mone3^ they 
 were served with notices not to trespass on the land both by 
 the plaintiff and his tenant. The plaintiff then 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. Shadwell, V. C, allowed the demur- 
 rer, considering that two i^ersons being affected by the injury 
 the court must have them both before it ; but the demurrer 
 was overruled by Lord Cottenham on the grounds that the 
 object of the suit was a specific performance, and that the 
 company might be restrained from entering without pay- 
 ment of the purchase-money, whether that entry did or did 
 
 (n) Minton V. Kirwood, L. R. 3 Ch., 614. v. Watford, etc., Railway Co., 36 Id., Oh.. 379; 
 (o) Bishop of Winchester v. Mid-Hants Cogens v. BoKiior Railway Co.. Id, 1 Ch., 594. 
 Railway Co., L. R. 5 Eq., 17. See Sedgwick (p) 1 Rail. C. 459; 8. C , 10 Sim., 314.
 
 GENEKAL RULE, 71 
 
 not affect the tenant ; and that to say tliat tlie plaintiff could 
 not so restrain the company without bringing- the tenant 
 before the court would be to exclude the jurisdiction of the 
 court. 
 
 § 149. In the court of chancery persons having adverse 
 or inconsistent rights in the subject-matter of the suit could 
 not be joined as plaintiffs \{q) nor could a person who had 
 no interest be joined as plaintiff with one who had.(r)' The 
 
 (?) Fulham v. M'Carthy, 1 H. L. C, 703; (r) S. C. and per Lord Lyndhurst in King 
 Padwick V. Piatt, 11 Beav., 503. of Spain v. Machado. 4 Russ., -240. See, also, 
 
 Pearce v. Watkins, 16 Jur.,83'2. 
 
 ' Parties having conflicting interests in the subject of litigation should not 
 be 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. Schoonhoveu, 9 Paige, 225. But where all per- 
 sons 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 refusal 
 being stated in the bill. Contee v. Dawson, 2 Bland, 2G4: Payson v. Owen, 3 
 Des., 31; Cook v. Hadley, Cooke, 465; Morse v. Hovey, 9 Paige, 197. A re- 
 fusal 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 answer as such and making no objections to that character. 
 Osgood V. Franklin, 2 John. Ch., 1. A mis-joinder of complaints .seems to be 
 an error fatal to the validity of a bill. "It is well settled," says Vice Chancel- 
 lor 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-complaluant, 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 bv plea, as the case may l)e." Clarkson v. 
 De'Pey.ster, 3 Paige, 337; Bowie v. Mlnter, 2 Ala., 40G. But it is held, in Bug- 
 bee V. Sargent, 23"Me., 269, that the mi.s-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. Wormlev v. Wormlev. 8 Wheat., 421; Milligan v. Milledge, 
 3 Cranch, 220; Na.sh v. Sm"ith, 6 Conn. ,'421 ; Singleton v. Gayle. 8 Porter, 270. 
 Although, in some cases, a bill may be dismissed without prejudice, and with- 
 out precluding the right of the complainants to l)ring a new l)ill in amended 
 form. Mims v. Minis. 3 J. J. Marsh., 103; liowland v. Garman, 1 id., 7C; 
 Marry v. Rogers, 2 Bibb., 314. The proper course, where there is a want of 
 parties, is to order the case to stand over, to enable the plaintiff to join the 
 proper parties. But, though the want of necessary 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. Gale' 8 Porter, 270; Greenleaf v. Green, 1 Pet.. 138. 
 Thus, in Thompson v Clay, 1 J. J. Marsh, 413, where the circuit court dis- 
 missed 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 neces-sary parties, that the bill should be dismissed witliout 
 prejudice. Where a defendant, who is a necessary party to a l)ill. refu.*ies to 
 appear, and the court has no power to compel him to apjiear, 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 impracticable, to make them all defendants, without great delay and ex- 
 pense, and justice can be done between the parties before the court without 
 affecting the interests of the others, the court will proceed to decree, notwith- 
 standing the want of parties. Boisgerard v. Wall. 1 S. ct M. Ch.. 404. And
 
 72 FRY ON SPECIFIC PERFORMANCE OF CONTRACTS. 
 
 importance of the doctrine of misjoinder was, however, 
 diminished by the forty-ninth section of the chancery pro- 
 cedure act, 1852.(5) In some cases, persons claiming ad- 
 versely might be made defendants. (^) 
 
 § 150. To the general rule above stated(^) it will be found 
 that many exceptions arose ; some of these will be noticed 
 in the subsequent chapters in this part. But there are other 
 exceptions, or apparent exceptions, to the strict rule, which 
 may well be stated here. 
 
 § 151. One case where the parties to the original contract 
 were not those to the suit was, where there had been a nova- 
 tion or new contract substituted for the original one by the 
 intervention of a new person ; in which case the party in 
 whose place the new person was introduced, being no longer 
 a party to the contract, ceased to be a proper party to the 
 suit, and it had to be carried on between the parties to the 
 new contract. Thus, where A. agrees to sell to B., and, be- 
 fore completion, B. contracts to sell to C, and A. accepts C. 
 as the purchaser, this may amount to a new contract ; and 
 even where it did not strictly do so, B. might be an unneces- 
 sary party to the suit.(?)) 
 
 § 152. One of the most remarkable instances of novation 
 occurs in sales on and is the result of the custom of the 
 stock exchange. The vendor's broker sells shares to a job- 
 ber, the jobber sells to another broker, or to several brokers 
 of several purchasers, and at last the name of the ultimate 
 purchaser of the shares is handed in by his broker on the 
 ''name day" and comes finally to the vendor's broker ; the 
 transfer is made by the original vendor to the ultimate pur- 
 chaser, and all intermediate sales, although they may be 
 numerous, are eliminated, and by novation the only con- 
 es) 15 and 16 Vict, ch. 86; and see now Laver, 3 Y & C. Ex., 191; Shaw v. Fisher, 5 
 infra, § 168. De G. M. & G., 596. And see Stanley v. 
 
 (0 See infra, § 168 et seq. Chester and Birkenhead Railway Co., 9 Sim., 
 
 (w) Supra, § 140. 264; 3 My. & Or., 773. See, also, infra, § 1018 
 
 (») Holden v. Hayn, 1 Mer., 47; Hall v. et seq., as to Novation. 
 
 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 dis- 
 cussed. Jones V. Jones, 3 Atk., Ill; Darwent v. AValtou, 2 Atk., 510; Me- 
 chanics' Bank v. Sej'ton, 1 Pet., 399; Story v. Livingston, 13 id., 359. But it 
 frequently happens after a case has been gone into and thoroughly heard, the 
 court has felt itself compelled to let it stand over for the purpose of amend- 
 ment. Jones V. Jones, 3 Atk., 111.
 
 GENERAL RULE. 73 
 
 tract left standing is between the first vendor and the last 
 purchaser, (to) 
 
 § 153. Tliere are certain cases in which A. contracts witli 
 B. for the benefit of C, and C. can sue on the contract. 
 These will be considered in the next chapter. 
 
 § 154. Another exception arose from the existence of an 
 interest in the estate bought or the money paid derived from 
 a contract anterior to the contract for sale. In these cases 
 the iDerson thus interested in the fruit of the contract appears 
 to have been a proi)er party to the suit. 
 
 § 155. Therefore where A. had contracted to purchase an 
 estate from B., having previously agreed with C. to sell the 
 estate to him, and a contract to that effect was afterwards 
 entered into between A. and C, A. antl C. subsequently 
 brought a bill for ^performance against B., and it was held 
 by Knight Bruce (then), V. C, that they were both proper 
 Xmrties.(r2?) The Vice Chancellor considered that Tasker v. 
 Small (?/) had little or no application to the case before 
 him,(^) and appears to have rested his decision on the 
 ground that both the plaintiffs had, at the institution of 
 the suit, an interest in the subject-matter of it.{z) And 
 from another case it may be gathered that if A. contracted 
 to purchase from B., and A. then contracted withC. that B. 
 should convey to C, and B. had notice thereof, A. could 
 not enforce the contract against B. without joining C. as a 
 party, (a) In like manner a person who by virtue of an 
 antecedent contract with the vendor claimed an interest in 
 the purchase-money was a proper party to a suit for specific 
 performance. (&) 
 
 § 156. In cases of contracts under powers, the question 
 sometimes arose, whether a contract entered into by the 
 donee of the power could be enforced by or against the re- 
 mainderman, the cases in which he could sue or be sued 
 being, of course, coextensive. The rule by which this ques- 
 tion was decided was that the contract was binding in those 
 cases, and those cases only, in which it might have been 
 enforced against the donee of the power himself, independ- 
 
 (w) Coles V. Bristowe, L. R. 4 Oh., 3; Haw- (z) 1 Coll., '211. 
 
 kins V. Maltbv. iti , -201). And see infra. Part (a) Anon. v. Wnlfonl. 4 Huss., 3.2. 
 
 VI, ch 1, § 1475 ct se<i. (^) West MuUanil hallway Co. v. Nbcon, 1 
 
 (X) Xelthorpe v. Holgate. 1 Coll., 203. H. & M., 17«. 
 
 (y) 3 My. & Cr., 63, supra, § 141.
 
 74 FRY ON SPECIFIC PKnFOR:\rAXCE OF CONTRACTS. 
 
 ently of any condnct on his part.(c) The grounds on which 
 part-performance by a tenant for life will not bind the re- 
 mainderman, will be considered when we come to treat of 
 the principles of that subject, (r?) It has already been 
 noticed (<?) that the jurisdiction of courts of equity has, by 
 statute, been excluded in regard to the enforcement of the 
 contracts of a tenant in tail against those in remainder. (/) 
 
 § 157. The question of how far a reversioner can call for 
 the execution of covenants entered into with his predecessor 
 in title is not strictly within the scope of a work on the per- 
 formance of executory contracts ; but it may be worth while 
 to observe that the 32d Hen.A^III, ch. 34, which gives to 
 reversioners the benefit of covenants entered into with their 
 predecessors in tiMe, appears to have authorized a suit in 
 equity for the specific i^erformance of the covenant. As at 
 law,Cr/) so in equity, the statute gives the benefit to the suc- 
 cessive reversioners only as they come into possession of the 
 estate ; but when thus entitled, they have been held to have 
 a right to the iDcrformance of the covenant modo d form/i, 
 irrespectively of the damage which may accrue from its 
 breach. (A) Nevertheless the reversioner entitled in re- 
 mainder and not in possession might have a right to enforce 
 the covenant ; but this right was not substantiated by the 
 mere existence of the covenant, but depended on the plain- 
 tiff showing that he would, as reversioner, sustain some 
 material daiuage by reason of its breach. (/) This followed 
 the analogy of the common law, where the reversioner, to 
 enable him to sue as such, had to show some special 
 damage. (,/) 
 
 § 158. In one case vendors, plaintiffs to a bill for specific 
 X)erformance against a purchaser from them, made a sub- 
 purchaser a defendant ; and the sub-purchaser then filed his 
 bill against his vendor and the original vendors for specific 
 performance ; to this the original vendors objected that they 
 were not proper parties ; but it was held that they had pre- 
 
 (c> Morgan v. Milraan, 10 Ha., 270; S. C, 3 (h) Johnstone v. Hall, 2 K. & J., 414. 
 
 De G. M. & G., 24 ; Lowe v. Swift, 2 Ball & B., (i) S. C. 
 
 529; and see Affleck v. Affleck, 3 Sm. & G., (i) Jackson v. Pesked.l M. & S ,233; Bax- 
 
 3''4. ter V. Taylor, 4 B. & Ad., 72; Mumford v. 
 
 (d) See IntYa, § 566. Oxford, etc., Railway Co., 1 H. & N.. 34; 
 
 (e) Supra, Part I, ch. 2, § 93. Simpson v. Savage, 1 C. B. (N. S.), 347; Mott 
 (/) 3 and 4 Wm. IV, ch. 74, § 47. v. Shoolbred, L. R. 20 Eq , 22. 
 
 (?) Isherwood v. Oldknow, 3 M. & S., 832.
 
 GENERAL RULE. 75 
 
 eluded themselves from the objection bj- the course they 
 had pursued. (A*) 
 
 § 159. Where the circumstances of the case were fitting, 
 some might sue for specific performance on behalf of all ;(Z) 
 thus the directors of an unincorporated joint-stock company- 
 were allowed to sue on a contract toinake a lease to them 
 in trust for the company, without joining all the sharehold- 
 ers. (??<) But in the converse case, there was great difficulty 
 in applying to specific perfonnancfe the principle that some 
 might be sued on behalf of all; from the nature of such 
 suits, however, this application of the principle was not 
 often required for the ends of justice. In one case, 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 treas- 
 urer, purchased an estate, with notice of a prior contract by 
 the owner to grant a lease of i)art ; on a bill by this x:)ro- 
 posed lessee against the directors and treasurer, but not the 
 other proprietors, asking for a specific performance of the 
 contract, Grant, M. R., said, that though he could bind 
 the interests 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 sufficient, sup- 
 posing it proper. He, however, gave the plaintiffs all the 
 relief he could, by enjoining the treasurer from disturbing 
 their possession, though he could not compel specific per- 
 formance of the contract. (??,)' 
 
 (k) Fenwick v. Bulman, L. R. 9 Eq., 165. Att. Gen. v. Mavor and Corporation of Poole, 
 
 (0 Fenn v. Craig, 3 Y. & C. Ex., 216. 4 My. & Cr., 17; Pare v. Clegg, 21) Beav , 580; 
 
 (m) Taylor v. Salmon, i My. & Cr., 134. Cullen v. Duke of Queensbury, 1 Bro. C. C, 
 
 (m) Meux v Maltby, 2 8w., 27". And 101; 1 Bro. P. C, 396. 
 see Adair v. New River Co., 11 Ves., 429; 
 
 1 It is clearly the nile that a part may file a bill iii behalf of themselves and all 
 others in the same situation. IJobiuson v. Smith,' 2 Paige, 322. So, in Beatty 
 V. Kurtz, 2 Pet., 566, it was held that a part of the persons belonging to a vol- 
 untary 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 
 <;ommon 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 tiie use of the society, from being dis- 
 turbed. Id. And where real estate had been purchasetl by a joint fund raised 
 by subscription, in shares, by more than 250 subscribers, and the property con- 
 veyed to trustees for the stockholders, on a bill for the sale of the premises 
 -under a mortgage made by the trustees, it wa.s held to be unnecessary to make 
 the stockholders parties, the trustees sufficiently representing all the interests 
 concerned. Van Vechten v. Terry, 2 John. Ch., 197. In a l)ill against an un- 
 incorporated banking company, the members of which are numerous, and m
 
 76 FRY ON SPECIFIC PERFORMANCE OF CONTRACTS. 
 
 § 160. There are a few cases in which the strict rule that 
 none but the parties to a suit for its specific performance, 
 appears to liave been relaxed in order to avoid multiplicity 
 of suits.' 
 
 § 161. To this principle we may probably refer the case 
 of Lowther v. Viscountess of Andover,(o) where a father 
 entered into a covenant with the trustees of his daughter's 
 marriage settlement to endeavor to purchase certain re- 
 mainders in estates of which he was tenant for life, and, 
 when purchased, to convey them to the uses of the settle- 
 ment. The covenantor died, having previously entered into 
 a contract for the purchase of the remainders ; on a bill 
 filed by the trustees of the settlement against the vendors, 
 and it would seem also the personal representative of the 
 deceased covenantor, specific performance was granted. In 
 another case, where the Duke of Chandos had granted to A. 
 a lease of a lodge, and also the deputation of a keepership 
 in Enfield Chase, and A. assigned, but for part of the term 
 
 (0) 1 Bro. C. C, 396. As to creditors of a deceased vendor suing, see Johnson v. Leg- 
 
 ard, T. &R.,281. 
 
 part unknown, it is not necessary to bring all the stockholders before the court, 
 before a decree can be made. Mandeville v, Riggs, 3 Pet., 482. A. filed a bil} 
 against B. and the commissioners of the bank of J., to subject the stock of B. 
 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., 804. Where 
 some twenty-eight persons are associated together for the 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 be made parties defendant 
 or complainant in a bill in equity. Martin v. Dryden, 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 officers 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 of a Jor 
 eign bank, doing banking business in Kentucky contrary to the laws of Ken- 
 tucky, 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 ce-sfni que trust unite in the same bill. So, 
 where trustees filed a bill without disclosing their beneficiary, 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, disclosing that the bank had 
 gone into li(iuidation, and that certain persons were appointed assignees, ^nd 
 praying that they might be made parties complainant; it was held, that all 
 those persons constituted, in law, but one, representing the interests of the bank. 
 Hitchcock V. United States Bank, 7 Ala , 387. 
 
 ' Where, in order to avoid a midtiplicity of actions, the plaintiff must, as a gen- 
 eral rule, first establish his right at law, before the court will interfere to en- 
 force a contract. Pen. Co. v. Delaware Co., 31 N. Y., 91.
 
 GENERAL RULE. 77 
 
 only, to B., B. was allowed to maintain a bill against the 
 dnke and A. for tlie rectification of a mistake in the oiiuinal 
 grant by the dnke, and for a new and sufficient gi'ant by 
 him.(^y) 
 
 § 162. The same i^rinciple is illustrated by another case, 
 In which a bill was filed by a purchaser against trustees for 
 sale, to enforce the specific performance of a contract for 
 the sale of lot A. ; it was resisted on the ground that by an 
 aiTangement, to which the plaintiJff was a party, part of that 
 lot as originally described was taken from it and given to 
 the adjoining lot B. The bill Avas amended to put in issue 
 this averment, which came out in the answer, but without 
 adding as defendant the purchaser 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.($')' 
 
 § 163. And where there were claims made by persons, 
 strangers to the contract, adversely to both the parties to it, 
 they might under some circumstances be made defendants 
 to a suit for the performance of it. Thus, where an assignee 
 under an insolvency sold a reversionar}- interest in stock of 
 the insolvent, 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 sub- 
 sequent to his insolvency, a bill was brought against the 
 assignee and the adverse claimant, and prayed an inquiry 
 
 (p) Jaiabert v. Duke of Chandos, 1 Eden, (?) Mason v. Tranklin, 1 Y. & C. C. C, 239, 
 37-2. 
 
 1 White V. Watkins, 23 Mo., 423. ' A cesfui que trust is not a proper party to 
 an action brouglit by a trustee to enforce specitic performance of an agreement 
 to convey land^ even where the money paid on the contract was a trust fund. 
 Oibbsv. Blacliwell, 37 111., 191; see, as to making trustees parties, Evans v. 
 Jackson. 8 Sim., 217; Saunders v. Richards, 1 Coll. C. C, 568; Fleming v. 
 Holt, 13 W. Va.. 143; Morrow v. Laurreuce, 7 Wis.. 574. A wife requested 
 Iter husband to enter into a written contract for the sale of laud held by him 
 in trust for her. Held, no error to decree that he could convey the land free 
 from her right of dower, notwithstanding she opposed the decree, she was not 
 necessarily a part v. Rostetter v. Grant, 18 Ohio., 126; Chapman v. Wilbur. 4 
 Oregon, 362. When real estate is conveyed in mere execution of a trust, it is 
 unnecessary to make the vendor's representatives parties fo the action. Down- 
 ing v. Risley, 15 N. J. Eq., 93. The legal title was vested in the trustee merely 
 to secure the payment of a given sum t"o a third person. Held, in an action by 
 the equitable owner to redeem, that such third person was not a necessary party. 
 Smith v, Sheldott, 65 111., 219.
 
 78 FKY ON SPECIFIC PERFORMANCE OF CONTRACTS. 
 
 into the rights of the hitter ; he was, in the event, decreed 
 to pay costs. (r) 
 
 ij 1*64. And so, in the case of purchases from a vohmtary 
 settler, wliere the contract was enforced by a purchaser, it 
 seems to have been proper to make defendants, not only the 
 vendor, but the trustees of the settlement and the persons 
 benelicially interested under it(5)— the question whether the 
 purchaser was entitled to have the contract performed de- 
 pending on whether the i3revious settlement was or not void 
 against him, and that being a question which could not be 
 tried in the absence of those who were interested under the 
 settlement alleged to be voluntary. " I see no reason," said 
 Turner, L. J.,(^^) "why it shall not be tried in a suit for 
 specific performance, rather than be made the subject of a 
 distinct and separate suit, the more so as it is a question 
 which affects the validity no less than the performance of 
 the contract." 
 
 § 165. AVhere the several purchasers of several lots had 
 been joined as defendants in one suit, a demurrer for multi- 
 fariousness was repeatedly allowed. (^) "Suppose," said 
 Lord Kenyon, M. R.,(^) "an estate is sold in lots to different 
 persons, a plaintiff could not include them all in one bill for 
 a specific performance, for each party's case would be dis- 
 tinct and would depend upon its own peculiar circum- 
 stances ; and there must have been a distinct bill upon each 
 contract." And a bill by several purchasers against one 
 vendor would have been equally multifarious, (•z/j) 
 
 § 166. But in one case in which there had been several 
 sales of a like kind, and several x^nrchasers joined as j)lain- 
 tiffs, and the difficulty in completing the sale arose from the 
 same cause in each case, and the persons interested in the 
 estate made no objection for multifariousness, the court 
 decreed specific performance of the different contracts in 
 one suit, (re) And where the jDurchaser had entered into two 
 
 (r) Collett V. Hover, 1 Coll, 227, before Turner v. Robinson, 1 S. & S., 313; Inman y. 
 
 Lord Cottenham. and ct' Delabere v. Nor- Wearing, 3 De U. & Sm., 729. 
 
 wood, 3 Sw , 144 (annuitants); Wilson v. (v) In Rayner v. Julian, 2 Dick., 677. 
 
 Thomson, 23 W. R., 7-14. (w) See Hudson v. Maddison, 12 Sim., 416. 
 
 («) Holford V. Holford, 1 Ch. Ca., 217; (») HarRreaves v. Wright, 10 Ha. Appx., 
 
 Buckle V. Mitchell, IS Ves., lO.i; WiUats v. 56 In this case the bill was originally filed 
 
 Busby, 5 Beav., 193; Lister v. Turner, 5 Ha., by two of the purchasers on behalf of them- 
 
 281; Daklng V. W^hlmper, 2G Beav., 568. selves and the other purchasers, and the 
 
 (0 In Townend v. Toker, L. R. 1 Ch , 457. court (Turner, V. C), refused to entertain 
 
 (M) Rayner v. Julian, 2 Dick., 677; Att.- the suit in that form, but gave liberty to 
 
 Gen. V. Mayor, etc , of Poole, 4 My. & Cr., amend by adding other purchasers as co- 
 
 17; Brookes v. Lord Whitworth, 1 Mad., 8G; plaintiffs. Consider Turner v. May, 32 L.T., 
 
 50.
 
 gejSteral rule. 79 
 
 separate but simultaneous contracts (for the purchase of 
 freeholds and leaseholds) with the same vendor, and the in- 
 vestigations of the two titles had gone on concurrently, 
 Kindersley, V. C, considered that the vendor was right in 
 making both contracts the subjects of one suit for specific 
 performance, (y) 
 
 2. As regards the lyractlce of the high court. 
 
 § 167. No doubt the general rule will still continue to be 
 that the parties to the contract are the necessary and suffi- 
 cient parties to the action, for that is a rule of convenience 
 and good sense. 
 
 § 168. But the fact that persons may be Joined as plain- 
 tiffs whose claims are alternative, or some of whom are 
 found to have no interest in the litigation, or that a defend- 
 ant is not interested in all the relief claimed now furnishes 
 no defense ; {z) and the plaintiff may unite in the same ac- 
 tion, and in the same statement of claim, several causes of 
 action, subject to a i^ower in the ^court or judge to direct 
 separate trials of the separate causes, (a) Further, the court 
 or a judge may at any stage .of the x^i'oceedings order the 
 name of any party, j)laintiff or defendant, who ought to 
 have been joined, or whose presence before the court may 
 be necessary, in order to enable the court effectually and 
 comi^letely to adjudicate upon and settle all the questions 
 involved in the action, to be added ; (6) and as regards the 
 defendant, where he claims to be entitled to any remedy or 
 relief over against any other i^erson, or where from any 
 other cause it appears to the court or judge that a question 
 in the action should be determined not only as between the 
 plaintiff and defendant, but as between the j)laintift\ de- 
 fendant and any other ]3erson, or between any or either 
 of them, the court or a judge may, on notice being given to 
 such last-mentioned i^erson, make such order as may be 
 proper for having the question so determined ; (c) and where 
 a defendant claims to be entitled to some remedy or relief 
 over against a j)erson not a party to the action, he may, by 
 
 (y) Royou v. Paul, 28 L. J. Ch. , SoG. (6) Ord. XVI, r. 13. See Long v. Croesley , 
 
 («) Ord XVI, rr. 1, 4 and 13. Cf. Cox v. 13 Ch. D., 3SS. 
 Barker, 3 Ch D., 359. (c) Ord. XVI, r. 17. 
 
 (a) Ord XVII, r. 1. See Flower v. Buller, 
 15 Ch. D.,G65.
 
 80 FRY ON SPECIFIC PERFORMANCE OF CONTRACTS. 
 
 leave of tlie court or a judge, issue and serve on such person 
 a notice, stating the nature and grounds of the claim ; (cZ) 
 and the Rules of the Supreme Court provide in detail (e) 
 for the conduct and effect of the proceedings in the action 
 with respect to third parties served with either of these 
 notices. 
 
 § 109. Where, therefore, the adverse claim of a third 
 person is strictly a question in the action, as, for instance, 
 where the question is one of title dependent on the validity 
 of the claim of a third party, the court has the jDOwer to 
 invoke the attendance of that third party, and finally to 
 settle the controversy ; and no doubt this power will be ex- 
 tensively exercised. Where, on the other hand, the ques- 
 tion between a plaintiff or defendant and the third x)arty is 
 not strictlj^ a question involved in the action, the third 
 party cannot be called in. 
 
 § 170, In a case where the defendants (vendors) alleged 
 that a bare trustee for them had occasioned the suit by re- 
 fusing to concur in the conveyance, the Court of Appeal 
 (the plaintiffs concurring in the application) gave the de- 
 fendants leave to serve the trustee with notice (under Ord. 
 XYI., r. 18) of the suit.(/) 
 
 § 171. But where the defendants (purchasers from the 
 mortgagee of property mortgaged by the trustee and ex- 
 ecutor of a will) having, after accepting the title, received 
 notice from unpaid residuary legatees under the will of a 
 claim by them to the property, moved to have these lega- 
 tees made i^arties to the action, the motion was refused with 
 costs, on the grounds that there was nothing in the notice 
 given by the legatees to prevent a decree being made which 
 would bind both vendor and purchasers, and that the lega- 
 tees were not parties whose presence was necessary in order 
 to enable the court effectually and completely to decide all 
 questions involved in the action, (p') 
 
 § 17S. The new procedure, by way of counterclaim, 
 affords another mode in which, in a proper case, a person 
 who was not a party to the original action may be brought 
 into the proceedings. 
 
 (d) Ord. XVI, r. 18. (/) Treleven v. Bray, 1 Ch. D., 176, and 2 
 
 (e) Ord. XVI, rr. 19-21. id., 724. 
 
 (fir) Harry v. Davey, 2 Ch. D., 721.
 
 GENERAL RrLE. 81 
 
 Thus, where second mortgagees brought an action against 
 first mortgagee, wlio had contracted to sell the mortgaged 
 property under his power of sale, claiming to have the sale 
 completed and the sale moneys applied in satisfaction of 
 the mortgagees, and the defendant delivered a counter- 
 claim, to which he made the purchaser a co-defendant with 
 the original plaintiffs, alleging that the concurrence of the 
 latter in the sale was a term of the contract, and claiming 
 specific performance; Hall, Y. C, held that the purchaser 
 was properly made a party to the counterclaim. (7^) 
 
 § 173. In actions for the specilic performance of contracts 
 relating to land or a charge registered under the land trans- 
 fer act, 1875, the court has a special statutory power of 
 bringing into the action any persons who have registered 
 estates or rights in such land or charge, {i) ' 
 
 (74) Dear v. Sworder, 4 Ch. D., 476. (i) 38 and 39 Vict., ch. 87, § 93, infra, §§ 878, 
 
 1110. 
 
 ' Rule as to parties having an interest in the subject of the agreement.] Where an 
 estate lias been made the subject of a contract of sale, all paries interested in 
 such estate are proper parties in an action for specific performance. Williams 
 V. Leach, 28 Pa. St., 89; Seager v. Burns, 4 Minn., 141. All must join in the 
 action. Slaughter v. Nash, 1 Litt. (Ky.). 322; Rochester v. Anderson. 6 id,, 
 143; Speri v. Robinson, 9 How. Pr., 325; McCotter v. Laurrence, G Thomp. 
 & Cook, 392; 4 Hun, 107; Lavender v. Thomas, 18 Ga., 6G8; Craig v. Smith, 
 96 111., 469; Flemming v. Holt, 12 W. Va., 143. The appellate court will re- 
 verse, if indispensable parties are omitted, even when the objection was not 
 raised in the court below. Watson v. Gates, 58 Ala., 647. In Guard v. Brad- 
 ley, 17 Ind., 60, it was held, that an infant could maintain a bill for specific per- 
 formance, where the party who contracted in the infant's behalf was competent, 
 and a full consideration had been paid. Specific performance of an agreement 
 for the sale of land was sought by persons who were not parties to it, but had 
 become vested with certain rights subsequent to the making of the contract. 
 Held, that they were proper parties to an action to determine the rights of the 
 parties thereto. Curran v. Holyoke Waiter Power Co.. 116 Mass., 90. While 
 an action was pending to enforce specific performance, the respondent conveyed 
 the premises to a third party, and a decree of performance was entered without 
 bringing in such third party. The decree was reversed on appeal. Casady v. 
 Scallen, 15 Iowa, 93. 
 
 Riile us to adverse claimants.'] Where a party has adverse or inconsistent 
 rights in the subject matter of the suit, he cannot be made a party plaintiff. 
 Grant v. Schoonhoven, 9 Paige's Ch., 225. In Ilanchett v. McQueen, 33 Mich., 
 22, it was held that where the interests of the vendee, his wife and his assignee 
 for creditors are conflicting, the vendor, in his bill for specific performance, 
 might ask to have the respective rights of the claimants determined. U here 
 the decree cast a cloud upon title— Held, that one who clainied title uiuler the 
 vendor, might come in and be made a party. Carter v. Mills, 30 >Iiss , 43— 
 A. purchased real estate at sherilf "s sale, and brought an action to compel a 
 conveyance from the sheriff; the former owner claimed a right of redwinption. 
 Held, that he had a right to be joined as party defendant. Crosby v. Davis, 9 
 Iowa, 98. An actionVas brought for the specific performance of a contract 
 to convey an undivided interest in land. Held, that those who arc subject to 
 the complainant's equity, and hold adversely to him, are necessary parties. 
 Agard v. Valencia, 39 Ala., 292. 
 
 6
 
 82 FRY ON SPECIFIC PEKFORMANOE OF CONTRACTS. 
 
 CHAPTER II. 
 
 OF A STRANGER TO THE CONTRACT. 
 
 § 174. Can a stranger to the contract sue, or be sued, for 
 its performance? 
 
 It will be convenient to consider the two branches of this 
 question separately. 
 
 1. As to a stranger suing. 
 
 § 175. It is a general principle both at common 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.(«)* 
 
 § 176. Thus in a case, where protracted litigation had 
 been undertaken by A. for the recovery of an estate, and in 
 
 (a) Crow V. Rogers, 1 Str., 592; Ex parte Uery Co. v. Hawkins, 3 H. & C , 677. The 
 
 Peele, 6 Ves., 602, 604; Ex parte Williams, dicta of Eyre, C J., In Fellmakers' Co. v. 
 
 Buck, 13; Berkeley v. Hardy. 5 B. & C, 355; Davis, 1 B. & P., 102, and of Buller, J., in his 
 
 Lord Southampton v. Brown, 6 id., 718; per N. P., 134, do not appear to be law. The 
 
 Lord Langdale, M. R. , in Colyear v. Countess Scotch law diflTers from ours in this partlcu- 
 
 of Mulgrave, 2 Ke , 98; per Cotton, L. J., In lar, recognizing the ju* qucuitum tertto. Stair 
 
 Be D' Angibau, 16 Ch. D., 242 ; Hill v. Gomme, Inst, B. », 1. 10, § 5. 
 5My. &Cr.,250, 256; Chesterfield, etc., Col- 
 
 1 One who claims an adverse interest, which was vested in him previous to 
 the agreement, is not a necessary party. Smith v. Sheldon, 65 111., 212; aff'g 
 S. C, 44 id., 68. During the pendency of an action for the specific perform- 
 ance of a contract to convey property, creditors of the vendor obtained judg- 
 ment against him and sold such property. Held, that neither the creditors nor 
 purchasers were necessary parties. Lecombe v. Sheldon. 20 How., 94. A 
 stranger to the agreement claimed an interest in the purchase money. Held, 
 that he might be made a party to the suit. Moon v. Wilkerson, 47 Miss., 633; 
 Kimbrough v. Curtis, 50 id., 117; Boyce v. Francis, 56 id., 573. A third 
 party, to whom the vendor had conveyed, and who had promised to pay the 
 original vendor, was held to be a proper party defendant. Campbell v. Patter- 
 son, 58 Ind., 66. In a proper case, a part may file a bill for specific perform- 
 ance for all; e. g., the directors of a stock company may act for the stockhold- 
 ers and need not join them all. Dana v. Brown, 1 J. J. Marsh, 304; Robinson 
 v. Smith, 3 Paige's Ch., 322; Reese v. Police of Lee Co., 49 Miss., 639. 
 
 Upon the same principle of privity an analagous case was decided in Penn- 
 sylvania. Where a widow executed an instrument ''To all whom these pres- 
 ents 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, never- 
 theless, 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 
 privitv is carried very far, and children, to the extent of the legitime, are not 
 considered as heirs, but as creditors of their father's estate. Vide Succession 
 Trimmel, decided in 1854. Opinion Book 24, page 328; Maples v. Mitty, 12 
 La. An., 759.
 
 A STKAXGER TO THE CONTRACT. 83 
 
 the course of these proceedings A. became greatly indebted 
 to his solicitor, and, by a contract between A. and his brotlier 
 B., A. agreed to relinquish his interest in the estate to B., 
 in consideration of B.'s undertaking to pay the costs already 
 incurred with interest, it was held,(&) that the solicitor, be- 
 ing no party to the contract, and having given no consid- 
 eration for it, could derive no benefit under it capable of 
 being enforced by him.' 
 
 § 177. There are, however, several apparent exceptions 
 to this principle. 
 
 § 178. Thus (1) there may be cases in which, where A. 
 has, as a trustee for B., contracted with C, B. may be en- 
 titled to sue both C. and A. for performance of the contract. 
 The case of Touche v. Metropolitan Railway Warehousing 
 Co., is a case of this sort. 
 
 § 179. (2) There are cases of agency w^hich may wear the 
 aspect of exceptions to the rule. In Hook v. Kinnear(6^ 
 the two defendants were tenants in common of certain lands, 
 and the defendant Kinnear, having been tenant of the de- 
 fendant Philips' moiety, and in arrear to him for the rent, 
 agreed with Philips to execute to the plaintiff 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 plaintiff was 
 
 (6) Moss V. Balnbrlgrge, 18 Beav., 478, 482; (c) L. R. 6 Ch., 671. Distinguish Be Em- 
 S. C, on appeal, 6 De G. M. & G., 292. press Engineering Co., 29 W. R., 342. 
 
 (d) 3 Sw., 417, n. 
 
 ' In the construction of an athena'um in ilarj-land, 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 authority 
 to call in the subscription 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. Git- 
 tings V. ^layhew, 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 tlie consideration moved from the third 
 party. Tewksbury v. Hayes, 41 Me., 123. But it is also held, in the same 
 State, that where a party, for a valuable consideration, stipulates with another 
 by simple contract, to pay money, or do some act for the benefit of a third per- 
 son, such third person, if there be no other objection than want of privity be- 
 tween the parties, may maintain an action for the breach of the engagement; 
 or he may, if he choose, disregard it, and seek his remedy tlirectly against the 
 party with whom his contract primarily exists. Bohanau v. Pope, 42 Maine, 
 193. If A. contract to support B., and fraudulently refuse to fulfill his agree- 
 ment, whereby B. becomes chargeable to the town, this does not entitle the 
 town to proceed against A. in law or equity, although the original contract was 
 intended to defraud some other party. Milton v. Story, 11 \ erm., 101.
 
 84 FRY ON SPECIFIC PERFORMANCE OF CONTRACTS. 
 
 no party to the contract ; Philips entered into another con- 
 tract with the plaintiff for a lease of the premises to the plain- 
 tiff at £30 per annum, and executed 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 conld not sue ; bnt Lord Hardwicke overruled 
 the objection, on the ground that Philips might be taken 
 as the agent of the plaintiff in the contract with Kinnear, 
 and compared it to the case of stewards entering into con- 
 tracts, and their masters enforcing them. 
 
 § 180. (3) There are cases of persons claiming benefits 
 nnder deeds who are not imrties to the deeds ; (e) of persons 
 suing for the execution of the trusts of marriage settlements 
 who are not parties to such settlements, (/) and of proceed- 
 ings by children nnder contracts antecedent to the mar- 
 riages of which they are the issne. But these either refer 
 to executed and not to executory contracts, or attract the 
 jurisdiction of the court on grounds other than that of the 
 specific performance of contracts resting in fieri. 
 
 § 1 8 1 . (4) There is a class of cases where the nearness of 
 relationship of one party to the contract with the party to 
 be benefited by it was supposed to give to the latter the 
 benefit of the consideration and a right to sue on the con- 
 tract. The Physician's case(^) was the leading authority 
 on this point. There A. made a promise to his physician, 
 that, if he would effect a certain cure, he would pay a sum 
 of money to the physicians' s daughter ; and it was held 
 that she might sue. In another case in assumpsit the 
 jplaintiffs, who were husband and wife, declared that the 
 wife' s father, being seized of lands which had subsequently 
 descended to the defendant, was about to fell £1,000 worth 
 of timber to raise a portion for his said daughter ; and the 
 defendant promised the father that, if he would forbear to 
 fell the timber, he would pay the daughter £1,000. A ver- 
 dict was found for the plaintiffs ; but it was moved, in 
 arrest of judgment, that the father alone could have brought 
 the action, but not the husband and wife ; but, after two 
 arguments, the objection was overruled on the ground of 
 
 (e) 8 and 9 Vict., ch. 106, § 5. (p) Cited 1 Ventr., 6. 
 
 (/)Cf. Re D'Angibau, 15 Ch. D., 228, 242, 
 and supra, § 92.
 
 A STRANGER TO THE CONTRACT. 85 
 
 the nearness of relationship. (Z^) But these cases were in 
 the year 1861 considered and deliberately disapproved by 
 the court of Queen' s Bench, and can no longer be consid- 
 ered law.(i)* 
 
 § 1 82. (5) It seems that an exception may arise to the 
 general principle that a stranger even though taking a benefit 
 nnder a contract cannot sue on it, in cases where the con- 
 tract is of such a nature and has been so far acted upon as 
 to change the condition in life of the stranger, and to raise 
 in him reasonable expectations grounded on the contract.* 
 Such a case might be presented by a contract between A., 
 a rich man, and B., a poor one, that A. should take B.'s 
 child, bring him uj) as a gentleman, and leave him certain 
 property, and a part performance of this on A.'s part. But 
 here, any right which the child of B. might have to insist 
 on the contract is derived, not from the contract alone, but 
 from the conduct of A. in pursuance of it, and the wrong 
 which the child would sustain, if the contract were carried 
 out in part and not in whole. For no such equity would 
 exist where the contract remained entirely in abeyance. (y)* 
 
 (A) Dutton V Pool, 1 Ventr.,318, 33-2; 2 Lev., («) Tweodle v. Atkinson, 1 Best & Sni., 393. 
 
 210, affirmed In Cam. Scac. T. Raym., 302; (j) Hill v. Gomme, 1 Beav., 540; 5 My. & 
 
 per Lord Mansfield, C. J., in Martyn v. Hind, Cr , 250; Lyons v. Blenkin, Jac, 245. 
 Cowp., 443. 
 
 ' Rule as to relationship. '\ The rule appears to be that a relationship which is 
 more remote than that of parent, child or wife, carries with it no moral ol)liga- 
 tion upon which a court of ecjuity will found a decree for the specific perform- 
 ance of a mere executory contract. Bufford v. McKee, 1 Dana, 107; Hays v. 
 Kersliom, 1 Sandf. Ch., 258; Reed v. Mauarsdale, 2 Leigh., 509; Caldwell v. 
 Williams, Bailey Ch., 175; Chandlery. Neale, 3 Hen. it :Mumf., 124; Parker 
 V. Carter, 4 id., 273; Hawrey v. Alexander, 1 Rand., 219. 
 
 * In New Jersey it was held, that where an infant child was taken by an 
 uncle, under an agreement between the father and such uncle that such child 
 should be adopted as his own, and the child lived with the uncle twenty five 
 years, and had no share in his father's estate. Held, that the child might 
 maintain an action to enforce the aiireement. Van Dyne v. Vrcelaud, 11 N. J. 
 Eq. (3 Stock.), 270. 
 
 3 Limitations in marriage settlements to collateral relations have been repeat- 
 edly held, in England, tobe voluntary. Reeves v. Reeves, 9 Mod . 132; John- 
 son V. Legard, 3 Yes., 352; Cormick v. Trapaud, Dnw., 3(5. So. for exam- 
 ple, limitations to collaterals, in a marriage settlement, made by a tenant in 
 tail, are voluntarily against a subsequent purchaser fur a valuable consideration, 
 in the same manner as if the settler had had the fee. Cormick v. Trapaud, 6 
 Dow., 3(). Limitations in favor df issue of a second marriage seem to stand 
 upon a different footing and to be held good. Clayton v. El Hilton, cited 3 
 Madd., 3(52; Ithell v. Beane, 1 Yes., 216. 
 
 That the doctrine of ]>rivity in respect to collaterals has Ijccn carried to the 
 same extent in this country as in England, is evidently not the case. The sub- 
 ject has come but seldom before the courts, and was for a time a much mooted 
 point ; but it now seems clearly to be established that collateral consanguinity
 
 86 FRY ON SPECIFIC PERFORMANCE OF CONTRACTS. 
 
 2. ^.s' to a stranger being sued. 
 
 § 183. Generally a stranger to the contract is not a proper 
 defendant to an action for enforcing it. (A*) But this gen- 
 eral rule is subject to exceptions. 
 
 § 184. If a stranger to the contract gets possession of the 
 subject-matter of the contract with notice of it, he is or may 
 be liable to be made a party to an action for specific per- 
 formance of the contract upon the equitable ground of his 
 conscience being affected by the notice. 
 
 § 1 'f^5. Thus, where S. contracted with P. for the sale to 
 
 (;fc) See supra 8 140, and per Stuart. V. C. different where the action Is for rescission, 
 
 in Bishop of Winchester v. Mid Hants Rail- See Aberaman Ironworks v. Wickens, L. K. 
 
 way Co , 21, and West Midland Railway Co. 4 Ch., 111. 
 V. Ni.\on, 1 H. & M., 176. The case may be 
 
 is not a meritorious consideration, upon which a court of equity will specifi- 
 cally enforce an executory covenant or agreement. The case of Buford's Heirs 
 V. McKee. 1 Dana, 107, in the Court of Appeals in Kentucky, is directly in 
 point. The defendants took the land by devise from one who in his life-time 
 had executed a covenant to Buford (who was his nephew), to convey the same 
 land to B. at the covenanter's death. On a bill by B.'s heirs for the specific 
 performance of the agreement, it was refused by the court, on the ground that 
 the covenant was voluntary, and that the relationship between the parties did 
 not constitute a meritorious consideration. And in Hayes v. Kershaw, 1 
 Sandf. Ch., 258, the assistant vice-chancellor, after quoting "Buford's Heirs v. 
 McKee " with approbation, decided that relationship, such as that of a brother, 
 nephew, neice, etc., did not constitute a good consideration; that it carried 
 with it no moral obligation as that of providing for a wife or children, or 
 pareut, upon which a court of equity would found a decree for specific per- 
 formance of a covenant. In Maryland it has been decided, that the considera- 
 tion of mutual love and affection is sufficient in a deed; but a mere executory 
 contract which requires a consideration as a promissory note, cannot be sup- 
 ported on the consideration of blood or mutual love and affection; something 
 more is necessary — some valuable consideration — or it cannot be enforced at 
 law or in equity. Pennington v. Gittings, 2 Gill. & John., 208. In Virginia, 
 a son and son-in-law promised in writing to pay a debt held against the estate 
 of their deceased father and father-in-law. Neither of them was executor, and 
 it did not appear that there was any deficiency of assets for the payment of 
 debts, or that either of them had any larger portion of the estate than the other 
 children. Held, that the promise was nudum pachim. Chandler v. Neale, 2 
 Hen. & M., 124; Parker v. Carter, 4 Mun., 273. A. being wealthy and child- 
 less, verbally promised his brother B , who was poor and had many children, 
 that if he would not remove to the west country, but would move to and set- 
 tle on a lot of land of A. he would convey it to him. B. accepted the offer, 
 and took possession of the land; held, that the promise was not supported by 
 either a valuable or meritorious consideration, and would not be specifically 
 enforced against the heirs of A. Reed v. Yannorsdale, 2 Leigh, 5G9. In Cald- 
 well V. Williams, Bailey's Ch., 175, it is said, that "no agreement can be en- 
 forced, cither in law or in equity, which is not founded on a consideration." 
 Some agreements which are termed voluntary, are executed in equity, when 
 made in favor of a wife or children ; but this is done only where the instrument 
 is uuder seal, which imports a consideration, and renders the agreement valid 
 at law; and there is no instance of an agreement being enforced, which is not 
 only voluntary in the equity sense of the word, but also midum pactum at law. 
 The rule, in this country, seems to have never been extended to relations more 
 remote than children or wife. See, also, Hawey v. Alexander, 1 Rand., 319.
 
 A STKANGEFw TO THE CONTIIACT.^ 87 
 
 him of an estate, and afterwards conveyed it to C, who, at 
 the time of the conveyance, had notice of P.'s contract, 
 on a bill filed by P. against S. and C. for the enforcement of 
 the contract between S. and P., Wigram, Y. C, decreed 
 si)ecific performance of that contract, ordered all necessary 
 parties to convey the estate to P., and gave the plaintiff costs 
 against both S. and C.(Z). 
 
 § 186. Again, a stranger to the contract may so mix him- 
 self np with it by setting up a claim to some benefit result- 
 ing from it, as to render himself lia):)le to be made a party 
 to proceedings for the enforcement of the contract ; as, for 
 instance, by claiming to be interested in the purchase-money 
 tinder an arrangement antecedent to the contract. (77^) 
 
 § 1 87. In some cases where a portion of the relief claimed 
 might affect the person in actual possession of the property, 
 that person may properly be made a party to an action for 
 the specific performance of the contract ; as, for instance, 
 where the i:)urcliasers, a railway company, being in posses- 
 sion of the land contracted to be purchased leased it to 
 another railway company, who opened and worked a rail- 
 way over it, and the unpaid vendors filed their bill against 
 both companies for performance of the contract, declaration 
 of the vendors' lien, and the appointment of a receiver. (7?) 
 "Ordinarily,'' said Stuart, Y. C.,(o) "a i^erson not being a 
 party to the contract ought not to be brought before the 
 court. But it is otherwise where possession is sought ])y 
 the bill, and the person in possession will be affected In* the 
 decree. Therefore the South Western Company (the lessees) 
 have been j^roperly brought here." 
 
 § 188. Lastly, there are provisions in the rules by which 
 the present i^ractice of the court is regulated, (^>») and in the 
 land transfer act, 1875,(<7) by virtue of which strangers to 
 the contract may, in certain cases, be brought into the posi- 
 tion of defendants to an action for enforcing its specific 
 performance. 
 
 (/) Potter V. Sanders, 6 Ha , 1 ; cf. Daniels Aberanian Ironworks v. Wickens. L. R. 4 
 
 V. Davison, 17 Vcs . 433; Holmes v. Powell, Ch., 101 ; Wilson v. Thomson, li W. K , 744. 
 
 8D.'<. M & G., 57-2; and (llstinguisli Lenty (?i) Ulsliop of Wiiichoeter v Mid-Hants 
 
 V. Hillas. i De (i. & J., 110; Fenwlck v. Bui- Hallway Co., L. U 5 Eq., 17. Cl". Churchill 
 
 man, L. U 9 Eq., lG.i. v. .Sallsl)ury and Dorset Railway Co., iS W. 
 
 (m; West Midland Railway Co. v. Nixon, 1 K., .t.)4, ^iW. 
 
 H. &M., 17G Consider Muston V. Bradshaw, (o) L. U. ."5 Kq., -21. 
 
 15 Sim., lii-2, where the interest claimed was (p) See § 168 et 8e»i. 
 
 created subsequently to the contract, and cf. (?) See §§ i73, 1110.
 
 88 FKT ON SPECIFIC PERFOKMANCE OF CONTRACTS. 
 
 CHAPTER III. 
 
 OF THE DEATH OF A PARTY TO THE CONTRACT. 
 
 § 1 89. The general rule, that parties to the contract must 
 alone be parties to the action, is further modified by certain 
 circumstances, one of which, namely, the death of a party 
 to the contract, will now be' considered. By this circum- 
 stance, with the exception to be mentioned hereafter, (a) the 
 obligation to perform, and the right to call for the perform- 
 ance of, the contract devolve on the representatives of the 
 party dying. 
 
 § 190. If the vendor of real estate die before completion, 
 the contract may be enforced either by the purchaser, (5)' or 
 by the personal representative of the vendor ;(c)' but in both 
 cases the heir(cZ) or devisee(e) must be a party,' as having an 
 
 (fl) See Infra, § 199. («) Gallon v. Emuss, 1 Coll., 243; Half v. 
 
 6) Hinton v. Hinton, 2 Ves. Sen., 631; Bushill, 35 Beav.,343; Purser v. Darby, 4 K, 
 
 Barker v. Ulll. 2 Rep. In Ch., 218. & J., 41 (costs). See, too, London and South- 
 
 (c) Baden V. Countess of Pembroke, 2 Vern., Western Railway Co. v. Bridger, 12 W. K., 
 
 2].2 948. AB to l\\e cfi</ms que trvst of Tttil estate 
 
 Td) Roberta v. Marchant, 1 Ha., 547; S. C, deTited in trust, eee 15 and 16 Vic:., ch. 86, 
 
 1 Ph., 370; Laconv. Mertins, 3 Atk ,l; Hod- § 42, r. 9 ; Ord. XVI, rr. 7, 11.* 
 del V. Pugh, 33 Beav., 489 (costs); cf. Longi- 
 notto V. Morss, 26 L. T., 828 (lease). 
 
 * Where an objection is taken at the hearing, to the omission 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. 
 
 ' Newton v. Swazev, 8 N. H., 9; Glaze v. Drayton, 1 Dessau., 109; S. P., 
 Wilkinson v. Wilkinson, 1 id., 201. 
 
 2 A. sold a tract of land to B., a conveyance to be made on the payment of 
 the second installment. A. became insane before the time arrived on which he 
 was to convey, and died, leaving a widow and infant heirs, and a deed was 
 made under order of the court. On a bill filed by the administrator and heirs 
 of A. for specific execution, it was held, that the complainants not having con- 
 veyed was no objection to the bill; and that B. having had the use of the land, 
 must pay interest on the purchase money, which could not be avoided by a 
 tender to the wife, on condition of making title, in the absence and derange- 
 ment of A. Boj^ce V. Prickett, 6 Dana, 2^1. 
 
 » Where a vendor of lands holds notes for the purchase money, and assigns 
 the notes, he transfers thereby his lien on the land to the assignee. The heirs 
 of the assignor are necessary parties to a bill by the assignee to subject the 
 equity of the vendee to satisfaction of the judgment on the notes ; and where 
 they were not made parties, time will be allowed to bring them before the 
 court. Edwards v. Bohanan, 2 Dana, 97; Steele v. Steele, 4 J. J. Marsh., 231. 
 In Lansdale v. Cox, 7 J. J. Marsh., 391, A. and B. being sureties in a bond, A. 
 was obliged to pay the whole amount, and (the principle being insolvent)
 
 DEATH OF A PAKTY TO TIIK CONTIIATT. 89 
 
 interest in disimtinfi; the contract ;' and it niak«'.s n<> differ- 
 ence that the legal estate is outstanding in a trustee.!/) As 
 
 (/) Roberts v. Marchant, 1 Ha , M7; 1 Ph., 370. DislioguUh Fowler v. Llghiburne, 11 
 Ir. Ch.R., «.5. 600. 
 
 brouijht this suit against the administrator and heirs of B. Held, that the heirs 
 and devisees of two deceased children of B. should have l)een made j)arties. 
 See Triplet v. Hill, 7 J. J. Marsh., 4;i2. In Kenny v. Collins, 4 Litt., 2m0, A. 
 brought his hill against B., alleging a purchase of land by C. from I)., and a 
 receipt of a bond from D. for the title; that C. sold the land to E., taking F^.'s 
 bond for the price, which bond was assigned to the complainant — that E. had 
 died without having disposed of the land; and that B. intermeddling with E.'s 
 estate, had become e.\ecutor in his own wrong and had fraudulently obtained 
 a deed of the land in his own name. The bill asserted a lien on the land, and 
 prayed for a sale. Held, that A. was entitled to the benefit of C.'s lien on the 
 land, but that the heirs of E. were necessary parties to the suit, and that the 
 bill should be dismissed without prejudice. Carr v. Callaghan, '3 Litt., SG."); 
 Berry v. Berry, 3 .Monr., 368. The widow and heirs of a decesised person sold 
 lands of the estate, gave a bond for title, and took notes for the purchase 
 money, in the name of the widow only. Held, that the heirs were necessary 
 parties to a bill by the widow to compel payment of the purchase money, and 
 that a sale of the land, under a decree in a suit by the widow alone, would not 
 pass the title, Alexander v. Perry. 4 Humph.' 391. In Lee v. Marshall. 2 
 Monr., 30, it is decided that all the devisees must be made parties to a bill to 
 enjoin executors from selling land belonging to the testator's estate. But the 
 heirs of a devisor, who has devised lands to other persons, are not necessary 
 parties to a suit for the land, under adverse claims. Meriwether v. Hite. 2 
 A. K. Marsh., 181. And in Georgia, the lands of a deceased debtor are liable 
 in equity for the payment of his debts, without making the heirs a party to the 
 suit. Telfair v. Kaf, 2 Cranch, 407. In New York, where a debt is specifically 
 charged by the will of the testator upon certain real estate, such real estate is 
 the primary fund for the payment of such debts, and the heirs at law are not 
 necessary parties to the suit. Smith v. Wyckoff, 11 Paige, 49. 
 
 ' Lacon v. Mcetins, 3 Atk., 1; Galson v. Emuss, 1 Coll. C. C, 243; Ruther- 
 ford v. Green, 2 Ired. Ch., 121; Jacobs v. Locke, id., 28(>; Craig v. .Ttihnson, 3 
 J. .J. Marsh., .")92; Glaze v. Drayton, I Dessau. "s Dj., 10U;-Mori:an v. Morgan, 
 3 Wheat., 290; Buck v. Buck, 11 Paige Ch.. 170; Kobinson v. McDonald, 11 
 Te.x., 385; Burger v. Potter, 32 111., 66; Moore v. Murrali, 40 Ala., .'>73; New- 
 ton v. Swazey, 8 N. H., 9; S. C, 9 id., 385; to the contrary, see Shannon v. 
 Taylor, 16 Te.\ , 412. The object of making the heirs or devisees parties, being 
 to divest them of the legal title which immediately vests in them upon the 
 death of their ancestor, and which thev were bound "to convey to the vendee in 
 a proper case. Mitchell v. Shell, 49 >iiss., lis. New York State provides, by 
 statute, that the "supreme court or county court shall have power to decree 
 and compel a specific performance by any infant heir, or other person, of any 
 contract or agreement made by any party who may die before the performance 
 thereof; on the petition of the executors or administrators of the estate of the 
 deceased, or of a person or persons interested in such contract, bargain or agree- 
 ment, see N. Y. Rev. Stat. (Gtli ed.), p. 200, S; 113. Where the executors have 
 power to .sell, or there are devisees, the heir need not be made a party unless 
 there is reasonable ground to denv the validitv of the will. Spier v. Robinson, 
 9 How. Pr., 325; West Hickory >Kniug A.^s. v. Heed. 80 Pa. Stat., 38. In 
 Iowa the statute makes the executor or administrator a proper party to an 
 action to enforce specific performance of the contract of a deceasid vendor, 
 still it does not make him a necessary party. Rev. Stat, of Iowa. Jlii 2400, 2461 ; 
 Judd V. ;Morely, 30 Iowa, 423. A \n\\ was brough to c(mipel .-"pecitic perform- 
 ance of an agreement to a.ssign, by one of the distributees of an estate, of all 
 his interest in the undivided a.ssets in the administrator's hands. HeM. that 
 all the distribiitces are necessary parties. Bogan v. Camp. 30 Ala., 276. All 
 the CO heirs of a deceased vendor should join in a bill for specific performance 
 of a contract for the mutual sale of land. Where one of the parties has died, 
 his death should be proved, excusing the omLssion of not raakmg him a party 
 to the bill. Morgan v. ^Morgan, 2 Wheat., 290.
 
 90 FRY ON SPECIFIC PERFORMANCE OF CONTRACTS, 
 
 a i)nrcliaser lias no right to insist on having the will proved 
 against the heir, he is not a necessary party where there are 
 devisees of the estate in question. (</) 
 
 § 191. Formerly, where the heir was an infant, a diffi- 
 culty arose \{h) but this lias been overcome by the seventh 
 section of the trustee act, 1850, by virtue of which, where 
 an infant is seized or possessed of any lands upon any trust, 
 it is lawful for the court to make an order, vesting such 
 lands in such person or persons in such manner and for such 
 estate as the court shall direct ;(/) and under the thirtieth 
 section of the same act, the court is enabled, where it de- 
 crees speciiic performance of a contract concerning any 
 lands, to declare that any of the parties to the action are 
 trustees of the lands or any part of them.(,;) It has been 
 held under these sections that where the contract is merely 
 executory, the court cannot, on petition only, declare the 
 heir of the vendor a trustee for the purchaser, (^O but that it 
 can do so where, during the vendor' s life, the contract has 
 been executed by j^ayment of the purchase-money and the 
 execution of a formal covenant to surrender. (Z) 
 
 § 193. Where the vendor leaves a Avidow, who, but for 
 the contract, would be entitled to freebench, the contract 
 may be enforced against her, and she must be a party ;(??2') 
 and the same j^ractice must be pursued in cases of dower of 
 widows married since the 1st of January, 1834. (?i/ 
 
 § 193. AYhere a binding contract has been made by a 
 vendor who subsequently dies, it would seem that, if the 
 executors decline to enforce the performance, or to compel 
 
 (g) Harris v Incrledew, 3 P Wni8.,91; Cot- (j) As to the costs of the Infant heir, see 
 
 ton V. Wilson, id., 190; VVabeman v. Countess Barker v.Venables, 13 \V R , 803. 
 of Kutlaml, S Ves., 233; Morrison v Arnold, (A.) Re Carpenter, Kay. 418. 
 19id.,G70; Beales v. Lord Rokcby, 2 Mad., (/) Re Cuming. L. R. 5Ch.,72. 
 227. (m, Hinton v Hinton, 2 Ves. Sen , 631, 633; 
 
 (h) Bullock V. Bullock, 1 J. & W., 603. Brown v. Rainille, 3 Ves., 256. 
 
 (t) Re Howard, 5 De G. & Sm., 4:55. (?i) 3 and 4 Wm IV, ch. 105. 
 
 ' The case of Johnson v. Legard, here cited, does not seem thoroughly to 
 establish this exception. The case came before the lord chancellor, on appeal, 
 and judgment affirmed. The creditors of a vendor had filed a bill against the 
 executors and heir of the vendor and the purchaser for specific performance. 
 Limitations in a marriao:e settlement of the property in question to the brothers 
 of the settler and their issue were held to be merely voluntary; but, under the 
 circumstances of the case, it was decided that a purchaser could not be com- 
 pelled to take the estate depending on the validity of those limitations. On 
 the ground, therefore, that a good title could not be" furnished, the bill was dis- 
 missed; but not, however, as has been inferred, solely for that reason; but also 
 because the agreement for purchase was suspicious, "and it being doubtful 
 whetfier tfie creditors could file such a bill."
 
 DEATH OF A PARTY TO THE CONTRACT. 91 
 
 the piircliaser to do so, an action may be brought for the 
 purpose of executing the contract hy the creditors of the 
 deceased vendor against the executors and heir of the vendor 
 and the purchaser, (o)' 
 
 § 194. In a case{p) where executors of a vendor of lease- 
 holds to a railway company filed their bill for specific per- 
 formance, alleging (truly) that they had not proved the will, 
 but before the hearing of an interlocutory motion to restrain 
 the company from continuing in possession, the probate had 
 been obtained, it was held that the defendants could not re- 
 sist the motion on the ground of the bill being demurrable. 
 
 § 193. If the purchaser die before completion, the contract 
 may be enforced either by or against the vendor or the heir 
 or devisee of the x^wi'chaser ; the personal representative 
 being a party as having an interest in disputing the con- 
 tract, and as being the hand to pay the purchase-money ;(g) 
 and the heir or devisee of the purchaser being a party as 
 being the person entitled to have the estate conveyed to 
 him, and to insist on a proper inquiry into the title, (r)' 
 
 § 196. The heir or devisee has no right to insist on the 
 completion of a purchase, except where the contract is such 
 as might have been enforced against his ancestor or testator; 
 for otlierwise he would be able to take the purchase-money 
 from the personal estate, in order to purchase for himself 
 
 (o) See Johnson v. Legard, T. & R., 281; 1 were made parties; ami see Holt v. Holt, 2 
 
 Mad. Ch., 369. Vern., 322; Brafleld v. Scriven, 22 W. R., 202 
 
 (p) Newton v. Metropolitan Railway Co., (decree against executor with costs). 
 
 1 Dr. & Sra,, 583. (r) Townsend v. (jhampernowne, 9 Pri , 
 
 (q) Buckmaster v. Harrop, 7 Ves., 341; S. 130. 
 C, 13 ill., 456, where the residuary legatees 
 
 1 This is undoubtedly the rule (Champion v. Brown, 6 John. Ch.. 398), ex- 
 cept where the agreement is for a purchase out of the personal estate. In this 
 case the agreement must have been binding upon the parties contracting, so 
 that the property was converted, in equity, before death. 2 Story's Eq. Jur., 
 §790. Buckmaster v. Harrop, 7 Yes., 341; Broome v. Monck, 10 id., 597. 
 This proceeds on the principle that, in equity, money agreed to be laid out in 
 land, is considered as land, and land agreed to be ttirned into money, as money. 
 Stevenson v. Tandle, 3 Hayw., 109; 2 Story's Eq. Jur., g^ "90, 791, 1212. 
 
 * Townsend v. Champernowne, 9 Price, 130; Lord v. Uuderdunk, 1 Sandf. 
 Ch., 46; Miller v. Henderson. 10 N. J. Eq., 320. As to making heirs of de- 
 ceased partner parties, see Knott v. Stephens, 3 Oregon, 2()!>. That the heirs, 
 and not the administrator, should file a bill, see House v. Dexter, 9 Mich., 246; 
 Webster v. Tibbitts, li) Wis., 438. As to making the executors or administra- 
 tors of a deceased vendee parties. Coke v. Evans, 9 Yerg. , 289 ; Peters v. Jones, 
 35 Iowa, 512; 1 Danl's Ch. Pr. (4th amend, ed.), 285; Harding v. Handy, 11 
 Wheat., 104; Downing v. Risley, 15 N. J. Eq., 93; Ashertz's App., 34 Pa St., 
 375; Jackson v, iMcCoy, 56 Miss., 78.
 
 92 FRY ON SPECIFIC PERFORMANCE OF CONTRACTS. 
 
 that which his ancestor was not bound to purchase, and 
 perhaps never would have iDurchased.(5) 
 
 § 107. In a case where, after a suit had been instituted 
 by a vendor against a purchaser, and a reference of title and 
 report in favor of it had been made, the i^urchaser died, the 
 court, on the application of his real and personal represen- 
 tatives, ordered the plaintiff to revive, or, in default thereof, 
 that his bill should stand dismissed, {t) 
 
 § 198. Where a person who has agreed to take a lease 
 dies, the executors admitting assets may be compelled to 
 take a lease, the covenants being so qualified as that the 
 executors shall be no further liable thereon than they would 
 have been on the covenants which ought to have been en- 
 tered into by their testator. (?/^) 
 
 § 199. The maxim actio personalis moritur cum persona, 
 has no reference to legal proceedings arising from contract. 
 But an exception to the devolution of the liability to per- 
 form contracts by the death of one of the parties, arises in 
 all cases in which the personal skill or taste of one of the 
 contracting parties is required ; for in such cases the death 
 of that party discharges the contract, and exempts his per- 
 sonal representatives from liability for the breach of con- 
 tract occasioned by non-performance after his decease («) — 
 an exception obviously grounded on the same principle as 
 the non-assignability of such contracts, hereafter consid- 
 ered, (w?) On this principle it has been decided that, if an 
 author contract to complete a work, and die before doing 
 so, his executors will be dischargnd from the contract ; {x) 
 or, if a master contract to teach an apprentice, and die be- 
 fore the expiration of the term, his representatives will be 
 equally excused, (2/) And in one case a contract to build 
 a lighthouse was, from the skill and science involved in its 
 performance, held to be a personal contract. (2') This prin- 
 ciple would, of course, apply as much in actions for specific 
 performance as in actions for damages. 
 
 (s) Uroome v. Monck, 10 Vcs., 507; Buck, where the lease had been executed by the 
 
 master v. Uarrop, 13 id , 471, 472; Savage v, It-ssor, but sot by the lessee, before the lat- 
 
 Carroll, 1 Ball & B , 265, 281 ; Garnett v. ter's death. 
 
 Acton,28 lleav., 333; Collier v.Jenkins.You , (f) Per Lord Wensleydale in Siboni v. 
 
 295. Consl.ler Ingle v. Klchards (No. 1), 28 Klikman, 1 M. & W., 423. 
 
 Beav., 361, 364. (lo) see infra, § 203. 
 
 (0 Norton v M'hlte, 2 De G. M. & G., 678. (.c) Marshall v. Broadhurst, 1 Tyrw., 349; 
 
 (M) Phillips V. Everard, 5 Sim., 102; Ste- S. <J., 1 Crompt. & Jer ,405 
 
 phens V. Ilotham, I K. & J.,571. See, also. (j/) Baxter v. Burfleld, 2 Sir, 1266. 
 
 Page V. Broom. 3 Beav., 36. Distinguish (z) Per Patteson, J., in Wentworth v. Cock, 
 
 Blosee v. Prendergast (13 Ir. Ch. R., 373), 10 A. & E., 45.
 
 ASSIC.NMENT OT THE ( ONTltACT. 93 
 
 CHAPTEl; IV. 
 
 OK AX ASSIGNMENT OF THE < oN ri:.\( T oU OF THE IMtnl'Ei:'! Y, 
 
 § !!jOO. As a general iiile, rlif bmelit of a coiiti-act may 
 be assigned in equity, and tlie assign can enforce six^citic 
 performance of it, making liis assignor a party. (//)' Thus, 
 
 («) Of courflc, If a new contract has been the assUnor 1« not a necc»»arv party to an 
 come to between the Bsaiunee and the person action brought on the new conlntct. 
 TTho originally contracted with the assignor, 
 
 ' WLltc a coutruct has been ussi!,nieil. thi' a.s.sij,'iH'e cannot Ik.- coiuiH.-lle«l to 
 perform; there is no contract between the venih^r and tlie assignee. It nuikes 
 no dilTerente that payments have been made by tlie assi;,'nee Tht- vendor 
 must enforce tlie agreement against the original vendee. Corbu>i v. Tweiil. 09 
 111., '20."). In Hanna v. Wilson, 3 Dratt., '2*Xi. it was held that the »iA.sigiiec 
 mi'dit maintain an action for specific performance against the vendor, provided 
 thcf assignor was made a party. Where the a.'isigiimeiit is ab.solute, and the 
 assignor has no equitable interest, he need not be made a party. Urace v. llar- 
 rin-'ton, 2 Atk., 'JoS; Tneothick v. Austin, 4 .Mason, 41; \\hitney v. McKin- 
 nev 7 John. Cli.. 1-14; .Miller v. Hear. :J Paige's Ch.. 4(57; Colenick v. Hou|k.t. 
 3 liid . 310; Miller v. Wliittier, 32 Me., 2U3; Currier v. Howard, 14 Gray. 511 
 Tlie assignee of one of several obligees, in a bond for the conveyance of real 
 property, commenced an actiim and subsctpiently acquired the interest of all 
 the obligees iu the bond. Such action was no bar to a subst-ipient action for 
 specific perfomnance, where the 8umc parties were interest, d concerning the 
 same prop<rtv. Knott v. Stevens, 3 Oregon, 23"). When- the original parties 
 to a contrael would he entitled to a decree of .specitic performance, all parties 
 who claim under them have their rights, always provided that no eqiilies in- 
 tervene. Ilavs V. Hall, 4 Porter, 374; Mc .Morris v. Cniwfonl, l.'i .Via.. 271; 
 Ewins v. Gordon, 4'J N. II.. 444. .V. sold land to ».. and reserved a right of 
 way. B. executed a bond to A , agreeing to make the i>a!isage-way on den 
 after a given time. The land was" afterwards sold to C, subject to th<- 
 vation. H. and C. were reipiested to make the passjige-way. and n ' 
 <lo so. Held, that the bond was a ])er.son:il obligation, and that H., I 
 
 the land, could not be c(mi|Klled to .spccitically perform. Smith v. i. . '■. 
 
 ;Me., (U. A lease was a.ssigned, which had in it a covenant for renewal. Meld, 
 that' the assignee could maintain an action for renewal, lus against the covenantor 
 Robinson v. Perry, 21 Ga.. 1S3. The as.signee of a chattel recei veil the legal 
 title subseciuent to the making of a contract respecting the same proiH-riy 
 which did not pa-ss the legal nl>r tin- e<iuitable title. Held, that a court of 
 equity will not decree specitic i)erforniance against the assignee, notwithstand- 
 ing he acquired with notice. MauUleii v. Armistead. IS .Via., 500. As to the 
 power of an a.^.siiriic- of a chose in action to .sue at law in Massachuscll*. sec 
 Walker v. Brooks, 125 .Mas.s.. 241. 
 
 Who HhouUl join in action f} Where a contract has l>een luisigned. all the 
 a.ssignees, through whose hands it has passed, should Iw joinwl in an action for 
 specirtc performance. Estill v. Clay. 2 A. K. Marsh.. 4y7; Allison v. Shilling. 
 27Te.\., 450. 
 
 A!<Kigntr in haukniptn/, when a }>arty.] The ventlor of land execute»l a 1h)IuI 
 for title, but did not receive the whole of the purchase money, and afterwartls 
 became bankrupt. Held, that his assignee in bankruptcy was a pn>tH'r parly
 
 94 FliY ON SPECIFIC PERFORMANCE OF CONTRACTS. 
 
 for example, where tliore was a contract for a lease, which 
 contained nothing to show that it was made with the 
 assignor (who had become insolvent) from any personal 
 motive, and the assign was solvent, the contract was en- 
 forced in favor of the assign. (^*)' Similarly, where there is 
 
 <}A PrnBi>iP V Tookp 1 Mv & K., 431; except upon the temis Of the assignor entcr- 
 
 il'or^nnv HY^odJ,TtiiE But see Dowell Ing rnto the covenants of the lease This 
 
 " Dew. 1 Y. & c: C. C. 345. where Knight ^ec.«on was a&rmedbv Lord Lynd 
 
 Bruce, V. C. refused to grant specific perfor- 12 L. J . Ch , 153. bee mrra, fe JJD. 
 mance of a contract for a lease to an assignee, 
 
 defendant, and must be so made in an action for specific performance of the 
 contract to convey. Lampson v. Rouse, 65 N. C, 34. 
 
 Where property is sold under a decree.^ Wliere property is sold under a valid 
 decree the purchaser of a vendor's title stands in his shoes, and may maintain 
 an action for specific performance against the vendor. He may tile a bill to 
 sell the premises in default of payment, and may discharge himself from the 
 vendee's equities. The vendee, however, has no right to a decree of sale agamst 
 the vendor for the purpose of paying the unpaid purchase money. Fitzhugh 
 V Smith, 62 111., 486 After execution against the vendee, see Tomlinson v. 
 Blackburn, 2 Ire'd. Eq., 50«J. 
 
 Assigjiee's liubilily with notice; rule.'] A party having entered into an agree- 
 ment for the sale of property, and afterwards assigns the same, or contracts to 
 do so to a person having notice of the original contract. Held, that the assignee 
 would be liable to perform it at the suit of the purchaser. All parties claiming 
 any interest in the land, obtained after the date of the contract sought to be 
 specifically enforced with notice, are necessary parties to the action to compel 
 conveyance. Hersey v. Gillett, 18 Beav., 174; Foss v. Haynes, 31 Me., 81; 
 Lanerty v. Moore, 33 N. Y., 658; New Barbadoes Bridge Co. v. Vreeland, 4 
 N. J. Eq. (3 Green), 157; Morris v. Hoyt, 11 Mich., 9; Seager v Burns, 4 Minn., 
 141; Stone v. Buckner, 12 Smed. & Marsh. 73; Scarborough v. Arrant, 25 
 Texas, 129; Fullerton v. McCurdy, 4 Lans. (N. Y.), 132. Notice to an agent 
 is notice to the principal. Bryant v. Booze, 55 Ga., 438. As to liability with 
 notice, see Bird v. Hall, 30 Mich., 374. 
 
 Deed hell as escrow.'] A. held a deed as an escrow, and refused to deliver it. 
 Held, that he was a proper party in an act for specific performance of the in- 
 strument. Davis v. Henry, 4 W. Va., 571. 
 
 Equitable title; action by holder.'] The holder of an equitable interest in land 
 contracted to convey an interest in the same subject to the approval of the 
 owner, but with his knowledge. The purchaser, at great expense, improved 
 the value of the property. Held, that the contract would be enforced, subject 
 to the rights of the holder of the legal title for a sum due him. Booders v. 
 Murphy, 78 111., 81. 
 
 > A., being the owner of a tract of land supposed 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 by him 
 on the back of such instrument, assigned to C. all his interest, right and privi- 
 lege 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 A. for specific performance of the agreement. Held, 1st, 
 that the agreement was not of a fiduciary character, or in the nature of a per- 
 sonal 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 dismissed. Gaston v. 
 Plum, 14 Conn., 344. The captain of a steamboat, as such, entered into a con- 
 tract for carrying the mails on board the boat, and afterwards, freely and 
 fairly, assigned it to the owners of the boat, by an instrument under his hand
 
 ASSIGNMENT OF THE CONTRACT. 95 
 
 nothing personal in the contract or the motives to it, a per- 
 son who has appeared as agent may afterwards disclose him- 
 self as a principal, and enforce the contract in his own name (c) 
 And where A. contracted for an estate from B., A. having 
 previonsly agreed with C. to sell the estate to him, and B. 
 resisted performance on this amongst other grounds ; the 
 price being adequate, and B. not suggesting that he had 
 ever refused, or was unwilling, or would have objected to 
 treat with C, or might have obtained better terms from 
 him, had he knoAvn the real circumstances of the case, 
 specific performance was granted at the suit of A. and C.{d) 
 § 201, An assign of a contract by waj^ of mortgage may 
 enforce his security by means of specific performance. 
 Thus, in a case decided by Lord Hatherley (then Wood, 
 V. C), where A. had agreed to sell certain projierty to B,, 
 and then had mortgaged his interest under this contract to 
 
 (c) Fellowes v. Lord Gwydyr, 1 R. & My., (d) Nelthorpe v. Holgate, 1 Coll , 203. 
 S3. 
 
 • 
 
 and seal. Held, that the assignment was valid, and that the captain was estop- 
 ped from denying that the contract was assignable. Roorback v. North River 
 Steamboat Co., tt 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 immediately to liim. 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. Lawrence v. Bayard, 7 Paige, 70. So may an assignee of an 
 assignee of a copartner in a joint purchase and sale of lands, sustain a bill in 
 equity against the other copartners ; and the agent of the partnership to compel 
 a discovery of the quantity purchased and sold, and for an account and distri- 
 bution of the proceeds. Pendleton v. Hambersie, 4 Cranch, 73. In McKee v. 
 Hoover, 1 Monroe, 32, it is held that a contract by one person to serve another 
 for a certain length of time, imposes on him an obligation of servitude, and 
 such contract may be assigned so as to transfer the term. But perhaps the case 
 is somewhat at variance with other opinions. See Davenport v. Gentry', y B. 
 Monr., 427. The right to reclaim usury is assignable in equity. Brtckeuridge 
 V. Churchill, 3 J. J. Marsh., 11. The claim to a legacj" is strictly an equitable 
 claim, and the whole interest therein may be passed by the legatee by an assign- 
 ment. King V. Berry, 2 Green's Ch. , 44. Entries of land are assignable in 
 Kentucky; but not in Virginia, though warrants and surveys may be so passed. 
 Hart V. Benton, 4 Bibb, 420, and 3 id. , 534. In Alabama, a widow may assign 
 her interest in her husband's estate, and such assignment is sufficient, in equity, 
 to pass such interest to the assignees. Powell v. Powell, 10 Ala , 900. An 
 order drawn by a legatee for value, on the executor for the amount of his 
 legacy, payable out of the fund provided by the testator for that purpose, is an 
 equitable assignment of the legacy. Anderson v. De Soer, Gratt., 363. And 
 in Nimmo v. Davis, 7 Texas, 26, it is said that all contingent and executory 
 interests may be assigned in equity, and will be enforced if made for a valuable 
 consideration; and all contingent estates of inheritance as well as springing and 
 executory uses and possibilities, coupled with an interest, if the person to take 
 is certain, are transmissible by descent, devisable and assignable. But it has 
 been said that a contract is only assignable when the entire interest therein can 
 pass by the assignment, both legal and equitable. White v. Buck, 7 B. Monr., 
 546.
 
 96 FRY ON SPECIFIC PERFORMANCE OF CONTRACTS. 
 
 C, and C. had assigned his mortgage to D., it was held 
 tliat D. (submortgagee) might maintain a bill against the 
 purchaser B. for the performance of the original contract 
 between him A.(d) 
 
 JJ •20'J. The assignability of contracts in equity is, how- 
 ever, subject to some exceptions and limitations, which, for 
 the most part, fall under one or other of the following 
 classes, viz. : (1) where the contract is personal ; (2) where 
 the contract contains a provision against assignment ; and 
 (3) wliere the assignment is illegal or contrary to public 
 policy. 
 
 § 2{0:i. (1) It is an obvious principle, that where the learn- 
 ing, skill, solvency, or any personal quality of one of the 
 parties to the contract is a material ingredient in it, then 
 tlie contract can be performed by him alone. It may be a 
 matter of indifference to A. whether B. or C. be the pur- 
 chaser of the stock or paid-np shares he is selling; but it is 
 a matter of great moment whether a distinguished artist, or 
 his nominee, paint a picture for which A. may have agreed 
 to pay a certain sum. Accordingly, in the case of contracts 
 of the latter kind, it is not competent to a person, who has 
 appeared as agent for a principal on whose personal quali- 
 ties reliance has been placed, to show himself to be the prin- 
 cipal and to sue in his own name;(/) in respect of such 
 contracts bankruptcy confers no claim on the trustee ;(5') 
 and the benefit of such contracts is incapable of being 
 assigned. (^) 
 
 § 204. Thus, where a contract established a personal rela- 
 tion between an author and his publisher, it was held that 
 it was incapable of assignment, (i) So where a coachbuilder 
 contracted with A. to supply him with a chariot for live 
 years, and within that period the coachbuilder assigned the 
 contract to a third person, it was held that A. had a right 
 to have the benefit of the judgment and taste of the coach- 
 builder to the end of the term, and conseqnently that an 
 action brought by the coachbuilder and his assign against 
 
 (e) Browne v. London Necropolis Co., 6 W. Mayor of Exeter, 1 Eq. Cas. Abr., 53 (and the 
 
 R., 188. In this case, however, specific per- notes to Hovenden's edition of Freeman, vol. 
 
 formance was, on another ground, refused. 2, p. 153); also Vandenanker v. Desbrough.a 
 
 (/) Per Alderson, B., in Rayner v. Grote, Vern., 96; Moyses v. Little, id., 194. 
 
 15 M. & \V., 365. See supra, § 199. (h) Distinguish Jalabert v. Duke of Chan- 
 
 (g) Per Lord Abinger, C. B., in Gibson v. clos, 1 Eden, 372 (keepershlp of walks). 
 
 Carnithers, 8 M. & W., 343. Cf. Drake v. (i) Stevens v. Benning, l K. & J., 168.
 
 ASSIGNMENT OF THE CONTRACT. 97 
 
 A. could not be maintained. (/) So, also, where a lessee in 
 insolvent circnmstances suffered another person to become 
 the apparent owner of the farm, but with a secret trust for 
 himself, and the landlord, supposing the trustee to be the 
 rightful owner, and trusting to his solvency, entered into a 
 contract with him to grant him a new lease— in a suit by 
 the original lessee against the landlord, specific performance 
 of this contract was refused, the court considering that the 
 landlord had entered into it expecting to have the covenants 
 of a man of substance, Avhich he could not do, as there 
 would be no equity to compel the trustee to enter into the 
 covenants. (>l-) And so again, if a landlord trusts to the skill 
 of a person who is in fact a secret trustee, he will not be 
 obliged to execute the contract for the cestui que trust. (I) 
 
 § 205. How far, in the case of an ordinary contract for a 
 lease, the intended lessor relies on the solvency of the in- 
 tended lessee as a personal qualification, is a point on which 
 somewhat different views have been taken.{my But it ap- 
 pears to be now clear from the judgments of Lord Lyndhurst 
 and Lord Chelmsford that such contracts are assignable and 
 may be enforced by the assign, (ti) 
 
 § 206. Again, it is presumably clear that if A. owed B. 
 £1,000 and B. then agreed to buy from A. an estate for 
 £2,000, no assign of A. could sue B. for performance except 
 upon the terms of giving B. the benefit of the set-off of 
 £1,000. (o) 
 
 § 207. Again, where, though the relation established by 
 the contract may have in it nothing j)ersonal, some previous 
 personal relation of favor, or otherwise, between the con- 
 
 (j) Robson V. Drummond, 2 B. & Ad., 303. also, Stocker v. Dean, 16 Beav., 161, where, 
 
 (k) O'Herlihy v. Hedges, 1 Sch. & Lef., 125. Irom the personal nature of acts to be done, 
 
 (l) S. C; per Grant, M. R., in Featherston- a right of pre-emption was held to be limited 
 
 angh V. Fenwick, 17 Ves., 313. to the life of the person who had to do them. 
 
 (771) Crosbie v. Tooke, Morgan v. Rhodes, (w) 12 L. J. Ch.. 104; Id, 2 Ch., 71. 
 
 Dowell V. Dew, supra, § 200; Buckland v. (o) Boulton v. Jones, 2 H. & N., 564. 
 
 Papillon, L. R. 1 Eq., 477, 2 Ch., 67. See, 
 
 ' 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, 
 during 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., 
 293. A parol license to be exercised upon the land of another, is a mere per- 
 sonal 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. H.), 394. 
 
 7
 
 98 FKY ON SPECIFIC PERFORMANCE OF CONTRACTS. 
 
 tracting parties has been a material motive to the contract, 
 it can be enforced by that person only, and not by a con- 
 cealed cestui que trust or principal or assign. This is illus- 
 trated by the case of Phillips v. Duke of Buckingham \{'p) 
 a negotiation had been entered into between the plaintiff 
 and the duke for the purchase of an estate by the plaintiff, 
 which had gone off ; the plaintiff then got the secretary of 
 Lord Chancellor Nottingham to enter into a ut^gotiation on 
 his behalf, but pretending it to be for the lord chancellor, 
 or his son the solicitor-general ; the duke had several cases 
 depending in chancery, and, wishing to oblige the lord chan- 
 cellor, entered into articles ; but on discovering who was the 
 real purchaser, refused to complete ; according to the report 
 In Vernon, the plaintiff' s bill was dismissed, and the case is 
 considered an authority for the princix^le established by 
 such dismissal ; for, though it appears that specific perform- 
 ance was ultimately granted, it seems to have been only on 
 payment by the j^laintiff of the full value of the estate, 
 being a sum greater than that originally agreed on. ((7) Lord 
 Thurlow showed an inclination to disregard these personal 
 motives, considering it to be immaterial in a contract for an 
 annuity, that the defendant was in fact a trustee for the son 
 of the j)laintiff, with whom he had refused to deal.(r) But 
 Lord Eldon exi)ressed dissatisfaction with that decision \{s)^ 
 and the law seems now to be that where one person is de- 
 ceived as to the real party with whom he is contracting, and 
 that decei^tion either induces the contract or renders its 
 terms more beneficial to the deceiving party, or more oner- 
 ous to the deceived, or w^here it occasions any other loss or 
 inconvenience to the deceived party, there the contract can- 
 not be enforced against him ; but that where none of these 
 circumstances can be show^n to follow from the deception, 
 the contract may be enforced. (^) 
 
 § 208. "Does error in regard to the person with whom I 
 contract," asks Pothier,('?(^) "destroy the consent and annul 
 the contract \ I think that this question ought to be decided 
 
 (p) 1 Vern., 227. See, also, Harding v. (r) Lord Irnham v. Child, 1 Bro. C. C, 92. 
 
 Cox, id., n. See, also, Jordan v. Sawkins, 1 Ves. Jun., 402. 
 
 (q) See Ralthby's note (quoting the Reg. (s) Bonnet v. Sadler, U Ves., 528. 
 
 Lib.) at p. 229 of vol. 1 of his edition of Ver- {t) Fellowes v. Gwydyr, 1 Sim., 63; 1 R. & 
 
 non. And see the casein Vernon, 1 St Leon. My., 83. 
 
 Vend., 349, n (10th ed.). See, also, Scott v. (u) Traite des Obligations, § 19. See Smith, 
 
 Langttaffe, cited Lofft., 797. v. Wheatcroft, L. R. 9 Ch. D., 223.
 
 ASSIGNMENT OT THE CONTRACT. 99 
 
 by a distinction. "Whenever the consideration of the iDerson 
 with whom I am willing to contract enters as an element 
 into the contract which I am willing to make, error with 
 regard to the person destroys my consent, and consequently 
 annuls the contract. ^ * * On the contrary where the 
 consideration of the person with whom I thought I was con- 
 tracting does not enter at all into the contract, and I should 
 have been equally ^^"illing to make the contract with any 
 person whomsoever as with him with whom I thought I was 
 contracting, the contract ought to stand." 
 
 § 209. The same principle, of course, ax)plies to assign- 
 ments. So where a contract for a lease was entered into by 
 a lady with her son-in-law for his personal accommodation 
 in the mansion house and demesne lands, in the nature of a 
 family transaction, the court refused specific performance 
 at the suit of his assignees in bankruptcy. (^') 
 
 § 210. (2) Where the contract stiiDulates that the instru- 
 ment to be executed in performance of it shall contain a 
 proviso against assignment, this oj)erates to prevent, not 
 only an assignment of the interest when perfected, but also 
 of the contract to grant it. (ic) But the benefit of the proviso 
 may, of course, be waived for the purposes of specific per- 
 formance ; as where the assign of the intended lessee was 
 recognized by the intended lessor as tenant, (.r) 
 
 § 211. (3) The statute, 32 Henry VIII, ch. 9, which is 
 entitled the bill of bracery and buying of titles, prohibits 
 any person 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, (2/) and Hitchens v. 
 Landor,(^) pleas founded on this statute were allowed. In 
 a case (a) before the court of common pleas, A. the owner 
 of a term died in 1828, and B. his brother, who had previ- 
 ously been in possession of part of the premises, then took 
 possession of the whole, and continued so until 1829, when 
 
 (v) Flood T. Finlay, 2 Ball & B., 9. (2) G. Coop., 34. See, also, WaU v. Stubbs, 
 
 (w) Weatherall v. Gearing, 12 Ves., .504; cf. 1 Mad., SO; S. C, 2 V. & B., 354. 
 
 Jalabert v. Duke of Chandos, 1 Eden, .372. (a) Doe d. Williams v. Evans, 1 C. B., 717. 
 
 {X) Dowell V. Dew, 1 Y. & C. C. C, 345; 12 See, also, per Montague, C. J., in Partridge 
 
 L. J. Ch., 158. V. Strange, Plowd., 88. 
 
 (2/) 3 P. Wms., 375.
 
 100 FRY ON SPECIFIC PERFORMANCE OF CONTRACTS. 
 
 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. AVherever a contract gives rise to a pretended right 
 or title to any lands and to nothing more, the assignment of 
 such a contract would be within the statute. 
 
 § ^12. 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 possi- 
 bility of one thereafter to exist. (&) 
 
 § 213. The principle on which the statute of Henry YIII. 
 is founded, and which gives rise to the doctrines of cham- 
 perty and maintenance, namely, that persons ought not to 
 be allowed to come in for the mere purpose of litigating 
 rights which others are not disposed to enforce, applies to 
 render void some cases of assignment which are not strictly 
 within the above statute. Thus, whilst it is clearly laAvful 
 to assign a right at the time undisputed, and if, from cir- 
 cumstances afterwards discovered, a necessity arises for liti- 
 gation against third parties, the assign may maintain his 
 action ; (c) yet it is as clearly against public policy to allow 
 of the assignment of a mere naked right to bring an action 
 for a matter in dispute. (rZ) On this ground the Irish court 
 of chancery refused its assistance to enforce the perform- 
 ance of a contract by a person out of possession, to grant a 
 present lease to a person who was at the time apprised that 
 he could not obtain possession, except by a suit.(e)' " I do 
 not hesitate to say," said Turner, L. J.,(/) "that, in my 
 opinion, the right to complain of a fraud is not a marketa- 
 ble commodity, and that if it appears that an agreement for 
 purchase has been entered into for the purpose of acquiring 
 
 (b) Cook V Field, 15 Q B., 460 that the Btatemeiat In the text does not apply 
 
 (c) Wilson V. Short, G Ha. , 366. to a trustee in bankruptcy. Seear v. Lawson, 
 
 (d) Prosser v. Edmonds, 1 Y. & C. Ex., 15 Ch. D., 426. -,, „ „. t> o-o t 
 481. With the distinction between this and (e) Bayly v. Tyrrell, -2 Ball & B., oo8. In 
 the preceding case, compare the distinction this case the lease to the plaintiff had been 
 between furnishing evidence for the recovery actually executed. ^ t. o /^u 
 of property without a view to litigation, and (/) In De Hoghton v. Money, L,. K. 2 Ch., 
 furni'hing evidence to maintain litigation 169; affirming S. C , L. R 1 Eq., 154. 
 (Sprye v Porter, 7 El. & Bl., 58), and note 
 
 1 See Marshall v. Means, 13 Geo., 61.
 
 ASSIGNMENT OF THE CONTKACT. 101 
 
 such a right, the purchaser cannot call upon this court to 
 enforce specific performance of the agreement. Such a 
 transaction, if not in strictness amounting to maintenance, 
 savors of it too much for this court to give its aid to enforce 
 the agreement." 
 
 § 214. Upon principles of public policy contracts by 
 which railway or public comj^anies seek to devolve busi- 
 ness, 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 incai)able of being enforced by 
 a court of equity. (f/)' 
 
 (ff) Johnson v. Shrewsbury and Birming- Winch v. Birkenhead, Lancashire and Che- 
 ham Railway Co., 3 De G. M. & G., 914; Be- shire Junction Railway Co., 5 De G. & Sm , 
 manv Rufford, 1 Sim. (X. .S.), 550; S. C, 7 562; London, Brighton and South Coast Rail- 
 Rail. C, 4S; Great Northern Railway Co. v. way Co. v. London and South Western Rail- 
 Eastern counties Railway Co., 9 Ha., 3u6; way Co., 4 De G. & J., 363. 
 
 1 Among those cases in wiiicli assignments will not be upheld either in equity 
 or at law, as being against the principles of public polic3^ is the assignment of 
 the commission of an officer in the army by way of mortgage. CoUyer v. Fal- 
 core, 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 Bali & Beat., 
 387; Stone v. Littledale, 2 Aust. R., 538. But the claims of officers of the 
 revolution for compensation for services, as promised by Virginia unpaid at the 
 death of the officer, are as.sets, and assignable as other clioses in action. Mer- 
 riwether v. Herran, 8 B. Monr., 162. "The same doctrine has been applied 
 to the compensation granted to a public officer for the reduction of his emolu- 
 ments, or the abolition of his office, 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, witii 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 Clark & Fin., 2'jr); 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 treasury has been held not 
 to be assignable. Cooper v. Reilly, 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 during 
 pleasure, and not for any certain time, and revocable in its own nature, is prop- 
 erly 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 thej^ must be of a substantial character, and not ordinarily of 
 such a nature as to rest in the pure discretion of the party granting or with- 
 holding 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 pny, or other compensation 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 interfere with any public 
 policy. Story's Eq. Jur., § 1040 f. And military prize money, although rest- 
 ing in the mere bounty of the crown, is held to be different in its nature and 
 objects from military pay, and treated as a right of property rather than as 
 a personal ]3ension or reward. Alexander v. Duke of Wellington, 2 Russ. &
 
 102 FRY OX SPECIFIC PERFORMANCE OF CONTRACTS. 
 
 § 91 o. It must be added that, eA-en wliere a concluded 
 contract would be assignal^le. tlie benefit of an offer cannot, 
 it seems, be transferred by tlie person to whom it is made 
 to a third person. "In case of an offer by A. to sell to B., 
 an acceptance of the offer by C. can establish no contract 
 with A., there being no privity." (7/) 
 
 § 916. The assign of a contract may, as has been shown, 
 sue on it ;(/) but he cannot, by notice to the other party to 
 the contract, deprive him of tlie right to complete it with the 
 original contractor, or make him responsible for any loss 
 which may result to the assign from the completion of the 
 contract with his assignor. (,/) 
 
 § 917. Questions may of course arise as to the extent of 
 the contract to the benefit of which the assign is entitled. 
 Thus, where a lease was agreed to be granted to A. of an 
 hotel near a station, and it was further agreed that A. should 
 have the occupation of the refreshment rooms, the question 
 arose whether the assign of the lease granted to A. was en- 
 titled to sue for the occupation of the refreshment rooms. 
 It was held in the affirmative. (^) 
 
 §918. Where a contract has been entered into for the 
 sale of property, and that x)roi5erty is afterwards aliened or 
 assigned, or contracted to be aliened or assigned, and the 
 alienee or assign has notice of the original contract, he is 
 liable to its performance at the suit of the purchaser.' 
 "If," said Lord St. Leonards, (Z) "the contract is a binding 
 one, it can be enforced against any party in whom is vested 
 
 (h) Meynell v. Surtees. 3 Sm. & Gif., 101, affirmed s. n. Shaw v. Foster, L. R. 5 H. L., 
 
 117; Boulton v. Jones. 2 II. & N., 564. 321 ; Crablree v. Poole, id. 12 Eq., 13. 
 
 (i) Cf. Birmingham Canal Co. v.Cartwright, (k) Flanagan v. Great Western Railway 
 
 11 Ch. D., 421 (covenant to give right of pre- Co., L. R. 7 Eq., IIG. 
 
 emption). {I) In Saunders v. Cramer, 3 Dr. & War., 
 
 U) McCreight v. Foster, L. E. 5 Ch., 604; 99. 
 
 Mylue, 35; Stephens v. Bagwell, 15 Ves., 139. It may be laid clown as a gen- 
 eral rule, that, where an equitable interest is assigned, in order to give the 
 assignee a locus standi injudkio in a court of equity, the party assigning such a 
 right must have eitlier a substantial possession, or some capability of personal 
 enjoj-ment in the thing assigned. Prosser v. Ildwards, 1 Younge & Col., 481. 
 
 ' Langdon v. Woolfolk, 2 B. Mon., 105; Castle v. Wilkinson, L. li., 5 Ch., 
 530; Caldwell v. Carriuoton, 9 Pet., 86; Hoaglaud v Latourett, 1 Green Ch., 
 254; Glover v. Fisher, ll 111., 6G6; Wrio'ht v. Dame, 23 Pick., 55; Clark v. 
 Flint, 23 id., 331; Baldwin v. Lowe, 33 Iowa, 867; Snowman v. Hareford, 57 
 Me., 397; W^alker v. Cox, 35 Ind., 357; Patten v. Moore, 33 X. H.. 383, Ful- 
 lerton v. McCurdy, 4 Lans., 132; Stone v. Buckner, 13 Lon. & Marsh., 73; 
 Morris v. Hovt, 11 Mich., 9; see Davis v. Henry, 4 W. Va., 571; Powell v. 
 Young, 45 i\rd., 414.
 
 ASSIGNMENT OF THE CONTRACT. 103 
 
 the legal and beneficial interest in the property/' "If," 
 said Lord Rosslyn,(m) "he is purchaser with notice, he is 
 liable to the same equity, stands in his place, and is l)ound 
 to do that which the person he represents Avould be bound 
 to do by the decree." This principle has been acted on in 
 numerous cases, (t*) 
 
 § 919. In particular the principle applies to unregistered 
 contracts relating to land in register counties. Such con- 
 tracts may be enforced against subsequent purchasers who 
 may have obtained conveyances which they liave registered, 
 if they have notice of such prior contracts, (o) 
 
 § 220. Where a person having a prior title gets in the 
 subsequent estate which is affected by the contract, and has 
 notice, he cannot protect himself from the performance of 
 tbe contract by his elder title ; thus, where an equitable 
 mortgagor entered into a contract for a lease, and then the 
 mortgagee, whose mortgage was prior to the contract, bought 
 the estate with notice, he was held bound to specifically jDer- 
 form the contract \{p) and again where A., having only the 
 equity of redemption, agreed to sell to B., and subsequently 
 both A. and his mortgagee conveyed to C, who had notice 
 of A.'s contract with B., it was held that B. might enforce 
 specific performance against C.(g)' 
 
 (»«) In Taylor v. Stibbert, 2 Ve8. Jun., 437. Sm. & G., 537; Goodwin v. Fielding, 4 De G. 
 
 (n) Jackson's Ci.se, 5 Vin. Abr., 543, pi. 3; M. & G., 90; Waldron v. Jacob. I. R. 5 Eq. 
 
 Howard v. Hopkins, 2 Atk , 371; Ford v. ISl; Reilly v. Garnett, id. 7 Eq., 1, and supra, 
 
 Conipton, 2 Bro. C. C, 32, and Belt's n.. 2; § 184. See, too, Dyas v. Cruise, 2 Jon. & L., 
 
 Jalabert v. Duke of Chandos, 1 Eden, 372; 4G0 (where a contract for a leaso was enforced 
 
 Brooke v. Hewitt, 3 Vcs., 253; Knollys v. against a iirovisional assignee in insolvency); 
 
 Alcock, 5 id., 648; Meux v. Maltby, 2 Sw., and as to the last mentioned case, cf. inlVa, 
 
 277; Spence V Hogg (before Shadwell.V. C., §225, 
 
 and Lord Cottenhara), 1 Coll., 225; Dowell v. (o) Ter James, L. J, in Greaves v. Tofleid, 
 
 Dew, 1 Y. & C. C. C, 345; affirmed 12 L. J. 14 Ch. D., 572. 
 
 Ch., 158; Crofton v. Onnsby, 2 Sch. & Lef , (;)) .-^mith v. Phillips, 1 Ke.,694; Muniford 
 
 583; Potter v. Sanders, G Ha., 1; Ilersev v. v. stohwiusser, L. K. 18 Eq., 55(5. 
 
 Giblett, IS Beav., 174; Shaw v. Thackra"y, 1 (</.) Lightf'oot v. Heron, 3 Y. & C. Ex., 580. 
 
 ' " It is well settled," says Chancellor Kent, in Champion v. Brown, 6 John., 
 402, "that if A. enters into a contract to sell land to B., and afterwards refu.'ses 
 to perform his contract, and sells the laud to C. for a valuable consideration, 
 B. may, by bill, compel the purchaser to convey to him, jirovided he be charge- 
 able in the notice, at the time of his purchase of B.'s equitable title under the 
 agreement." And it was there further said, (liat the "rule that aiTects the i)ur- 
 chaser is just as plain as that which would entitle the vendee to a specific per- 
 formance against the vendor. If he be a purchaser, with notice, he is liable to 
 the same equity, stands in his place, and is bound to do that which the j-yersou 
 he represents would be bound to do by the decree. Tlie purchaser from the 
 vendor takes the estate subject to the charge, and so, I api^rehend, docs a pur- 
 chaser from the vendee, and he is equally responsible in respect to the estate. 
 The vendor cannot make him personally liable for the ]mrchase money, but the 
 estate is liable; and if he l)e a purchaser with notice, it is the same thing 
 whether the estate had or had not been actually conveyed by the vendor." See
 
 104 FRY ON SPECIFIC PEKFOKMANCE OF COXTRACTS. 
 
 s5 221. This principle of notice, nnder somewhat j)ecnliar 
 circumstances, was applied by Lord Eldon in the case of 
 Mortlock V. Buller ;(r) there the plaintiff alleged that a con- 
 tract had been entered into by trustees of a marriage-settle- 
 
 (»•) 10 Ves., 292, 315. 
 
 ^Murray & Winter v. Ballon & Hunt. 1 John. C'h., 56G; Hcatley v. Finster, 2 
 id., 158. Assi,!rnecs take subject to all prior equities between the original par- 
 ties. Seott V. Slireeve, 12 Wlicat., G05; Bacon v. Warner, 1 Root, 84!); John- 
 son V. Pryor, 5 Heyw., 243; Stockton v. Cook, 3 Munf., 68; Eslep v. Walkins, 
 1 Bland. ,'486; MuHikin v. Mullikin, id., 538; Gay v. Gay, 10 Paige, 369; Liv- 
 ingston V. Dean, 2 John. Ch., 479; King v. Lindsay, 3 Ired. Ch., 79; Porter v. 
 Breckenridge, Hardin, 21. Thus, the assignee of trust property, with notice of 
 the trust, takes it subject to the trust. Breedlove v. Stump, 3 Yerg.. 257. 
 And the assignee of a judgment takes it subject to all the equities existing 
 against it in the hands of the plaintiff therein. Jordan v. Black, 2 Mur., 30. 
 But equities, in order to be available against an assignee, must arise previously 
 to the assignment, or, at least, before notice thereof. Ridgway v. Collins, 3 
 A. K. Mar.sli., 410. Therefore, equities arising between the maker and assignee 
 of a note, after the assignment, cannot be enforced against the assignee. 
 Daviess v. Newton, 5 J. J. Marsh., 89. It seems, however, that there is an. 
 exception to the doctrine of notice. "There is a peculiarity in the case of a 
 dowress, which operates against her, and, upon this point of notice, is proper 
 to be mentioned. Though notice of the title will protect every other intei'est in 
 the inheritance, it will not protect her's " Storj-'s Eq. Jur., § 410 (1). Thei"e- 
 fore, a purchaser or mortgagor (who is a mortgagor pro tanto), though he has 
 notice of a right of dower attaching upon the estate he is about to purchase, 
 may advance his money, and, taking in a term, may avail himself of it, and 
 thereby utterly defeat the right of dower. Wynn v. Williams, 5 Ves., 134; 
 Mole V. Smith, Jacob's Rep., 497; Maundrell v. Maundrell, 10 Ves., 271 ; Swan- 
 nock V. Lifford, Ambl. R., 6; Radner v. Vanderbendy, Show. Pari. Cas., 69. 
 A purchaser without notice is not chargeable; and, therefore, though a pur- 
 chaser at a public sale be chargeable with notice, yet a bona fide purchaser, 
 under him, is not affected by his notice. Demarest v. Wynkoop, 3 John., 147; 
 Wallwyn v. Lee, 9 Ves., 24 The rule is not, "however, absolutely universal; 
 for it has been broken in upon in two classes of cases. In the first place, it is 
 not allowed in favor of a jiidgment creditor who has no notice of the plaintiff's 
 equity. This appears to proceed upon the principle that such judgment creditor 
 shall be deemed entitled merely to the same rights that tho debtor had, as he 
 comes in under him, and not through him ; and upon no new consideration, 
 like a purchaser. Burgh v. Burgh, Rep. Tem. Finch, 28." Story's Eq. Jur., 
 § 410 (1). It has been likewise said that a second exception has been formed 
 in reference to dower, which is, that the rule does not apply in favor of a bona 
 fide purchaser without notice against the claims of a doweress, as such. Wil- 
 liams V. Lambe, 3 Brown's Ch., 264. But this has been considered as an inno- 
 vation without adequate foundation; and the propriety of the distinction has 
 been much questioned. See Gerrard v. Saunders, 2 Ves. , 454. Where A. pur- 
 chased an estate, with notice of an incumbrance, and then sold it to B , who 
 had no notice, and B. afterwards sold it to C, who had notice, it was held that 
 the estate in the hands of C. was discharged of the incumbrance, notwithstand- 
 ing the notice of A. and C. And this doctrine has ever since been adhered to, 
 as an indispensable muniment of title. But if the estate becomes revested in 
 the original party, the original equity will reattach to it in his hands. Story's 
 Eq. Jur., i^ 410. In England, it is well settled that registration of conveyances 
 does not iimount to constructive notice to subsequent purchasers. Wyatt v. 
 Barwell, 19 Ves., 435; Jolland v. Stambridge, 3 id., 477. But in America it is 
 uniformly held, that such registration operates as constructive notice to all 
 buyers of any estate, legal or equitable, in the same property. Parkhurst v. 
 Alexander, 1 John. Ch., 394.
 
 ASSIGNMENT OF THE CONTRACT. 1()5 
 
 ment, who had a power to sell with the consent of the 
 husband and vrife ; after the bill was filed, the wife died, 
 and the husband's estate for life and remainder in fee were 
 brought together, and the legal power of sale in the trustees 
 was extinguished. But Lord Eldon caid that if the pur- 
 chaser had entered into the contract with the approbation 
 of the husband and wife, as was required l)y the settlement, 
 the contract bound the estate, and should be made good 
 by those who took interests, if it could not out of the 
 power. 
 
 § 2'32. This principle is not coniined to executory con- 
 tracts, but apj)lies also to the specific relief given in respect 
 of covenants and other executed contracts, for these may in 
 all cases be enforced against any person into whose hands 
 the property in question may come with notice. 
 
 § 2^3. Contracts to devise lands have been enforced 
 against persons claiming them under the party contracting 
 to make the will. (.9)' 
 
 § 924. One particular species of assignment of a contract 
 arises in the cases in which a railway or other public com- 
 pany has entered into a contract, and subsequent!}' becomes 
 amalgamated with some other company ; for by this process 
 the liability under the contracts of the existing companies 
 
 (s) Goylmer v. PacUliston, 2 Ventr., 353; 531; Xeedhani v. Smith, 4 Russ.,318; Logan 
 
 S. C. as Goilmere v. Battison, 1 Vern., 48. v. Wienholt, 1 CI. & Fin ,611; Jonesv. IIow, 
 
 AndseefurthcT, as to contracts to make wills 7 Ha., 267; S. C, 9 C. B., 1; Barkworth v. 
 
 containing particular dispositions, Lord Wal- Youngr, 4 Drew , 1; Eyre v Monro, 26 L. J. 
 
 pole V. Lord Orford, 3 Ves., 4()-2; Jones v. Ch.,7o7; 5W. R.,S70; Aldersan v. Maddison, 
 
 Martin, 5 id., 2G6, n. ; Fortescue v. Hennah, 5 Ex. D., 293. 
 19 Id., 67; Needham v. Kirkman, 3 B. & Al., 
 
 ' Agreement to devise properii/ hy icill.'\ A court of equity -will enforce an 
 agreemeut binding a person to dispose of his property by will; anil the heir at 
 law will be compelled to convey the property according to the terms of the 
 agreement. Such contract is regarded with suspicion, and will not be sustained 
 except upon the strongest evidence that it was founded upon a valuable consid- 
 eration, and was the" deliberate act of the decedent. Logau v. Weirholt, 7 
 Bligh (N. S.), 1; Rives v. Rives, 3 Dessau. 's £([., I<.t5; Izard v. Izard. 8 id., 
 116, note; 3IcClure v. McClure, 1 Pa. Stat., 378: Brinker v. Drinker. 1 id., 53; 
 Logau v. jNIcGinnis, 12 id., 82; Mundseph v. Kilbourn, 4 Md., 4.5U; Wright v. 
 Tinsley. 30 3Io., 389; Gupton v. Gupton. 47 id., 37; Sutton v. Havdon. 02 id., 
 101; Johnson v. Hubbell, 10 N. J. Eq. (2 Stock,), 332: Fin.sly v. Parkhurst, 29 
 Md., 58; Harder v. Harder. 2 Sandf. Ch.. 17; Carsligle v. Flemmings, 1 Har- 
 ring., 421. In Stafford v. Bartholomew, 2 Carter, 153, a contrary rule is held. 
 See as to the power to devise, Shakespeare v. Markham, 10 Hun. 311; Ugilvie 
 V. Ogilvie, 1 Bradf., 356; Bowen v. Boweu, 2 Bradf , 336: Williams v. Hutch- 
 inson, 3 N. Y., 312; Robinson v. Raynor, 28 id., 494; Par.'^ell v. Stryker, 41 
 id., 480; Lisk v. Shannon, 25 Barb., 433; Cox v. Cox, 26 Gratt., 305; Sprinkle 
 V. Hay worth, 26 id., 384.
 
 106 FRY OX SPECIFIC PEKFOKMAXCE OF CONTRACTS. 
 
 is transferred to the new body which arises out of their 
 fusion. (^) 
 
 § tJ-lS. It may here be noticed that if a contracting party 
 become a bankrupt or a liquidating debtor, specific perform- 
 ance cannot be enforced against the trustee without his 
 consent, (w) 
 
 (f) Stanlevv. Chester and Birkenhead Rail- N.. 5S8 Cf. Ernest v. Nlcholls. C H L C., 
 
 way CO "fl Sim ,264; S. C. :? My. & Cr.. 773; 401. and as to mi way companies see 26 and 
 
 Earl of Liudsey V. Great Northern Railway 2- Met., ch. 92, § 4o ,,^ ^ «« apssel 
 
 Co . 10 Ila. . (-.64 (where the cases of amalsa- (v) Holloway y. 1 ork, 25 W. R. , 62<(JeB8ei, 
 
 matlon establishing this principle are dis- M R.). Cf. Whitworth v. Davis, 1 V. & B , 
 
 bussed) ^ Chiv rRufford. 1 Sim. (X S.), 550; 545; Orlebar v. Fletcher. 1 P. Wms. (6 h ed.), 
 
 BalfourS-^K-s? 5 a B.' (N. s!), 601; Sol- 738; Kell v- Nokes, 14 XV R., 908; and Dyas 
 
 vency Mutual Guarantee Co. v. York, 3 H. & v. Cruise, 2 Jon. & L., 460.
 
 LIABILITIES OF COMPANIES FOIl CONTRACTS. 107 
 
 CHAPTER V. 
 
 OF THE LIABILITY OF COMPANIES FOR THE CONTRACTS OF 
 THEIR PROMOTERS. 
 
 § 226. Another very important exception to the general 
 rule, as to parties to the contract alone being parties to the 
 action, is furnished by the doctrine introduced and acted 
 on by Lord Cottenham, that a public company after incor- 
 j)oration may be sued for the specilic performance of con- 
 tracts entered into before the passing of its act by the 
 promoters— on the ground that the company stands in the 
 place of the promoters, or, to use the language of Lord 
 Jeffrey in the court of session, that the fact of "a party 
 having passed from the chrysalis to the butteiHy state," (a) 
 creates no difficulty in the enforcement of such a contract. 
 
 § 227. The principle was first introduced in the case of 
 Edwards v. The Grand Junction Railway Co. ; (b) there Moss, 
 who was the agent of the promoters of a railway, entered 
 into a contract with the trustees of a public highway, whilst 
 the railway bill was before Parliament by which Moss 
 agreed that he would enter into a contract to the effect of 
 certain clauses which the trustees had been desirous to have 
 inserted into the bill, and would get the same conlirmed 
 under the seal of the company intended to be incorporated, 
 the contract being expressed to be made on the understand- 
 ing that the trustees should otter no opposition to the bill, 
 and tiiat the contract should be void on Moss delivering to 
 the trustees the engagement of the intended company to the 
 same effect. The bill passed: the company i)roi)osed to 
 make a road across the railway of a narrower width than 
 that stipulated for by the clauses beforementioned : on a 
 bill tiled by the trustees against the company for a pei-form- 
 ance of the contract and an injunction, the company was 
 
 (a) CiUedonian ami Dumbartonehhe June- (b) 1 IMy. & Cr., G5(.i; >. C , 1 llall. C., 173; 
 tion Railway Co. v. The Magistrates o! Hel- before Shadwell, v. C, . Sim., 33(. 
 cnsburgh, iM'Q., 394.
 
 108 FKY ON SPECIFIC PERFORMANCE OF CONTRACTS. 
 
 held to be bound by the contract entered into by the pro- 
 moters before incorporation. "The question/' said Lord 
 Cottenliain, in delivering jiidgment,(c) "is not whether there 
 be any binding contract at law, but whether this court will 
 permit the company to use their powers under the act in 
 direct opposition to the arrangement made with the trus- 
 tees prior to the act, upon the faith of which they were per- 
 mitted to obtain such powers. If the company and the 
 projectors cannot be identified, still it is clear that the com- 
 pany have succeeded to, and are now in possession of, all 
 that the projectors had before, they are entitled to all their 
 rights, and subject to all their liabilities. If any one had 
 individually projected such a scheme, and, in prosecution 
 of it, had entered into arrangements, and then had sold and 
 assigned all his interest in it to another, there would be no 
 legal obligation between those who had dealt with the origi- 
 nal projector and such purchaser ; but in this court it would 
 l)e otherwise. So here, as the company stand in the place 
 of the projectors, they cannot repudiate arrangements into 
 which such projectors had entered ; they cannot exercise 
 the powers given by Parliament to such projectors in their 
 corporate capacity, and at the same time refuse to comply 
 with those terms upon the faith of which all opposition to 
 their obtaining such powers was withheld." The same 
 principle was subsequently acted on by his lordship in the 
 cases of Stanley v. The Chester and Birkenhead Railway 
 Co.(<fZ) and Lord Petre v. The Eastern Counties Railway 
 Co.(e) 
 
 § ^•28. The conditions under which the doctrine in ques- 
 tion is applicable, if they have not been narrowed by sub- 
 sequent cases, have at least been more clearly defined than 
 they w-ere in the cases already referred to. These condi- 
 tions seem to be (1) that the company must have taken the 
 benefit of the contract, and (2) that the contract must be 
 for something warranted by the terms of the incorx)oration. 
 
 § 229. (1) The comi^any itself, after incorporation, must 
 either have taken the benefit of the contract, or have other- 
 
 (c) 1 My. & Cr., 672. Birmingham Railway Co., 3 My. & Cr., 791, 
 (rf» .3 My. & Or., 773; S. C, 1 Rail. C, 58; and In Doo v. The London and Croydon Rail- 
 before Shadwell.V. C., 9 .Sim., 264. way Co., 1 Rail. C, 257; and see Vauxhall 
 
 (e) 1 Rail. C , 462. See, also, per Lord Cot- Bridge Co. v. Earl Spencer, Jac, 64. 
 tenham In Greenbalgh v. Manchester and
 
 LIABILITIES OF COMPANIES FOR CONTRACTS. 109 
 
 wise recognized it as a contract l)inding on tliem. It is not 
 enough that the opi^osition to the intended bill was with- 
 drawn, as that is a consideration moving, not to the com- 
 pany, but to the promoters. Therefore, where a company 
 was incorporated in consequence of the withdrawal of the 
 plaintiff's oiDposition, but after that event they had not en- 
 tered upon any of the land, or in anywise adopted the con- 
 tract, except by fruitless negotiations, Lord Romilly, M. R., 
 refused siDecilic performance of the contract, and declined 
 to order the defendants to admit the validity of the contract 
 in an action at laAv ;(/') and his lordship acted on the same 
 principle in the case, which shortly afterwards came before 
 him, of Preston v. The Liverpool, Manchester and Newcas- 
 tle Railway Co.(^) In The Earl of Lindsey v. The Great 
 Northern Railway Co., (7^) Lord Hatlierley (then V. C.) ex 
 plained the principle of these cases in a way strongly sup- 
 porting the first condition above stated. He considered 
 that the cases did not proceed on the i^rinciple of contract 
 through the agencj^ of the promoters, but on the x^i'inciple 
 that the court will not allow a body to exercise powers ac- 
 quired by means of a previous 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 contract, but will enforce 
 every portion of it. Lord Campbell also, in his judgment 
 in The Eastern Counties Railway Co. v. Hawkes,(/) sup- 
 ported the same view of Cottenham's doctrine. But it must- 
 be added that Lord St. Leonards, from the observations he 
 made in the last-mentioned case on Gooday v. The Colches- 
 ter Railway Co., (J) appeared inclined to uphold that doc- 
 trine 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 re- 
 spect of the benefit which they secured by the withdrawal 
 of the opposition to the bill. 
 
 (/) Gooday v. Colchester, etc., Railway ((/) 17 Beav., 115. 
 
 Co , 17 Beav., 132; Williams v. St. George's (h) lOUa.,664. 
 
 Harbor Co., 3 Jur. (N. S.). lOU (Lord Rom- (i) 5 H. L C, 356. 
 
 illy, M. R.); 2 De G. & J., 547. U) Id., SOS.
 
 110 FRY OX SPECIFIC PERFORMANCE OF CONTRACTS. 
 
 g '-J:I0. In Williams v. The St. George's Harbor Co.,(A-) 
 the company after incorporation had, by an agreement, 
 been made parties to an action by the plaintiff against the 
 promoters on a contract entered into by the promoters be- 
 fore incorporation, and had consented to a judgment in that 
 action. That judgment, by consent, was held to be a suffi- 
 cient recognition of the contract of tlie promoters as a con- 
 tract binding on the company to give the court of chancery 
 jurisdiction. 
 
 §231. Where the contract is within the powers of the 
 future company, and is beneficial for the company, and the 
 company sues upon it, the other contracting party cannot, 
 on the ground of want of mutuality, raise any objection to 
 the company's enforcing the contract. (Z) 
 
 § 232. (2) The second condition, viz. : that the contract 
 must be for something warranted by the terms of the incor- 
 poration, 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 Dumbarton- 
 shire Junction Railway Co. v. The Magistrates of Helens- 
 burgh, (?m) which came before the House of Lords from the 
 court of session in Scotland. The magistrate of Helensburgh 
 had agreed with the promoters 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 pay for the making of a quay and 
 harbor, which the magistrates were to apply to Parliament 
 for powers to make. Lord Cranworth, 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 legis- 
 lative authority for the purpose of the railway to an object 
 foreign from that of the railway, namely, the construction 
 of a pier and harbor. 
 
 § 233. Again, in Preston v. The Liverpool, Manchester 
 
 (Jc) 2 De G & J., 547. (m) 3 M'Q., 391. 
 
 (?i Bedford and Cambridge Railway Co. v. 
 Stanley, 2 J. & H., 746.
 
 LIABILITIES OF COMPANIES FOR CONTRACTS. Ill 
 
 and Newcastle-npon-Tyne Junction Railway Co.,('0 Lord 
 Cran worth lield that a contract to imy £5,000 to a person 
 for not oiDposing a bill in Parliament would be uUra vires 
 of a 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. A very 
 similar decision was pronounced by Kindersley, Y. C, in 
 The Earl of Shrewsbury v. The North Staffordshire Railway 
 Co.(o) There the i^romoters had agreed to pay to the plain- 
 tiff £2,000 for his supi^ort in obtaing their act, and the 
 directors of the company after incorporation had ratified 
 the bargain. It was held to be ultra vires of the company 
 and not binding, though entered into by the promoters be- 
 fore the passing of the act. 
 
 § 334. Not only have these conditions been imposed on 
 the doctrine as laid dow^n b}^ Lord Cottenham, but grave 
 doubts have been thrown on the very principles of his de- 
 cisions by Lords Cranworth and Brougham, and by Kinder- 
 sley, y. C. Thus, in the case already referred to of The 
 Caledonian and Dumbartonshire Junction Railway Co. v. 
 The Magistrates of Helensburgh, (^j)) Lord Cranworth, in a 
 written judgment 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 disapx)roved 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 
 projectors ; and then proceeded to show that, in his judg- 
 ment, it is such a body neither in form nor in substance. 
 The body incorj)orated, 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 com- 
 pany, 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 by the act, 
 and liable to no obligation beyond those which are there 
 
 (w) 5 H. L. C, 605, 621. See, aleo, Leomln- (p)2M'Q, 391. See, also, Williams v. St. 
 
 ster Canal Co. v. Shrewsbury and Hereford George's Uarbor Co., 3 Jur. (N. S.), lUl4(Lord 
 
 Railway Co , 3 K. & J., 651. Romilly, M. R.;; 2 De G. & J., 547. 
 
 (0) L. R. 1 Eq., 593.
 
 112 FRY OX SPECIFIC PERFORMANCE OF CONTRACTS. 
 
 indicated ; that to permit other terms to be imposed on the 
 sliareholders behind the terms of incorporation, would lead 
 to injury to the shareholders, and often to a fraud, or at 
 least a surprise on the legislature; and that, to render 
 special terms as to particular cases or persons 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. Again, in the case of Preston v. The Liverpool, 
 Manchester and Newcastle-upon-Tyne Junction Railway 
 Co., ((7) Lords Cran worth and Brougham expressed similar 
 views of the doctrine, although the ground on which they 
 dismissed the plaintiff's appeal was that the contract was in 
 itself conditional on the construction of the railway. And 
 Kindersley, Y. C, in a case already referred to(r) expressed 
 himself adversely to Lord Cottenham's view. 
 
 § ^li5. In this state of the authorities, it is difficult to 
 speak with certainty as to how 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 
 have been adopted by Lords Camj)bell and St. Leonards ; 
 on the other hand, the i:»rinciples upon which it rests have 
 been criticised by Lord Hatherley (when V. C), and ha^^e 
 been distinctly disapproved of by Lords Brougham and 
 Cranworth and Kindersley, V. C, upon reasonings, to say 
 the least, of the greatest weight and cogency. In the judg- 
 ment of Kindersley, V. C, in the case last referred to(r) will 
 be found a very careful statement of the reasoning for and 
 against this doctrine of Lord Cottenham. It is difficult to 
 refuse assent to the learned judge's conclusion that "it 
 would be most consonant with legal i^rinciple, most just, 
 and most for the public benefit, to hold that contracts of 
 the iDromoters with landowners are not binding on the com- 
 pany, unless sanctioned by the act constituting the com- 
 pany. "(5) 
 
 (q) 5 H. L., 605, affirming the decision of (r) Earl of Slirewsbury v. Korth Staflford- 
 Lord Romilly, M. R., 17 Beav., 115. See the shire Railway Co., L. R. 1 Eq., 593. 
 same case before Lord Cranworth as V. C., 1 («) L. R. 1 Eq., 615-6. 
 Sim. (N. s.), 586, as to which see the case be- 
 fore the House of Lords.
 
 AGENCY. 113 
 
 CHAPTER VI. 
 
 OF AGENCY. 
 
 § 336. The cases wMcli arise wliere the contract is made 
 by an agent require consideration, as sometimes affording 
 an apparent exception to the rule that parties to the contract 
 only can be parties to the action. 
 
 § 337. Where agents contract ostensibly as such, and in 
 the names of their principals, little difficulty can occur. 
 The principals here are the pro]3er parties to sue and be 
 sued, and it is, in the absence of special circumstances, im- 
 proper to make such an agent a party to the action, (a) In 
 one case, where an agent having no interest whatever was 
 made a co-plaintiff, the bill was held to be demurrable. (5) 
 
 § 938. Where, on the other hand, agents appear on the 
 face of the contract 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. (c) "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 as such agents in making the con- 
 tract, so as to give the benefit of the contract on the one 
 hand to,{d) and charge with liability on the other, (e) the 
 unnamed principals— and this, whether the agreement be or 
 be not required to be in writing by the Statute of Frauds ; 
 and this evidence in no way contradicts the written agree- 
 ment. 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 sign- 
 ing the agreement in pursuance of his authority, is, in law, 
 
 (a) John8onv.Ogilby,3P.Wms.,277; Smith R., 51 (agent sole plaintiff); and see, as to 
 
 V. Clarke. 12 Ves., 477, 484; Lisset v. Reave, misjoinder, 15 and IG Vic, ch. S6, § 49, and 
 
 2 Atk., 394; Ex parte Hartop, 12 Ves., 349, Ord. XVI, r. 13. ^ . ^ -^ 
 
 352; Clark v. Lord Rivers, L. R. 5 Eq., 91. (c) 8 M. & W., S44. Cf. per Knight Bruce, 
 
 As to the second ground of demurrer in the V. C, in Xelthorpe v. Holgate, 1 Coll., 220. 
 last mentioned case, see now Ord. XVI, r. 3. (d) See Garrett v. llandley, 4 B. & C, 684; 
 
 (6) King of Spain v. De Machado, 4 Russ., Bateman v. Phillips, la East, 2,2. 
 225, 241; cf. Glashrook v. Richardson, 23 W. (e) See Paterson v. Gandasequi,15East,62. 
 
 8
 
 114 FUY ON SPECIFIC PERFORMANCE OF CONTRACTS. 
 
 the act of the principal. But, on the other hand, to allow 
 evidence to be given tliat 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 we shall subsequently see,(/) does not require 
 that the authority of the agent should be in writing where 
 the contract is required to be so. ' 
 
 (/) Part III, ch.U, §508, 
 
 • 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 in- 
 troduction of a new party into the contract is not a contradiction of the written 
 instrument, as well as the striking out of a party already in. According 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, there- 
 fore, be discharged by parol. To discharge them Avould be to contradict the 
 written instrument and violate the statute; but it is no contradiction of the 
 written instrument, and no violation of the statute, to admit parol proof to 
 show that the defendants, although not named in the contract, are, neverthe- 
 less, 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 subscribed the con- 
 tract 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 defendents, who signed the contract in 
 their own names, could lie discharged bj- parol proof that they were agents 
 merely. His remarks, therefore, although entitled to the highest respect, as 
 coming from a profound and learned jurist, yet have not the weight of an 
 authority, and would not be regarded as such in his own court. The doctrine 
 which he has thus advanced, however, is adopted by Mr. Justice Story, in "his 
 work on agency. He says that 'written contract, made by a factor in his own. 
 name, for the purchase or sale of goods for his principal, will bind the princi- 
 pal, and he may be sued thereon 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, 
 § 161.) ' 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 Park and Judge Story. The cases which come nearest to it 
 are Wilson v. Hart (7 Taunt., 295), 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 defendant 
 was made liable for goods where the bought note was signed by one Keed, in 
 his own name, as principal, yet it w^as distinctly put to the jury to say whether 
 it was a sale to Reed or to the defendant, who had obtained possession 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 plaintiff's goods, in order to apply them to the payment 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 says 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 Truman v. Loder, 
 the defendant was made liable on an executory contract, in which one Higgin- 
 botham 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 Higginbotham; and that
 
 AGENCY. 115 
 
 § 239. The proposition at which we have thus arrived, 
 that a person appearing as principal may yet have con- 
 tracted as agent for another, who may, when disclosed, sue 
 or be sued as principal, is to be qualified by all those con- 
 
 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 Hig- 
 gins V. Senior, that upon a contract which the statute requires to be in writing, 
 signed by the parties to be charged, a third party, whose name does not appear 
 in the 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 simply 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 (11 Mass., 27), Pentry v. Stanton (10 Wend., 271)andXewcomb v. Clarke 
 (1 Denio, 226). And after a brief 'review of these cases he states the rule to be, 
 that "where a contract is reduced to writing, whether in compliance with the 
 requisitions of the statute of frauds or not, and it is necessary to sue upon the 
 writing itself, there you cannot go out of the writing, or contradict or alter it by 
 parol proof, and consequently 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, iiTespective of the writing, there 
 the party who has had the benefit of the sale may be held liable, unless the ven- 
 dor, knowing who the principal is, has elected to consider the agent his debtor." 
 See, also. United States v. Parmelee, 1 Paines's C. C, 252; Minard v. Mead, 7 
 Wend., 68, is an authority in support of this nile It was there held that au- 
 thority by a husband to his wife to give notes, will not subject the husband to 
 the payment of a note given by the wife, in Iter own name, without reference in 
 the bod}" of the note, or in the signature, to the name of the husband. A note 
 to be binding 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 
 Wend. , 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 obligator}- 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 Jiimself as agent or attorney, for his principal, the contract 
 is the conti'act of the attorney, and not of the principal. Thus A. being prin- 
 cipal, and B. his agent, if B. sign a contract, "B. for A.," this is the contract 
 of the agent B. In ]S"ewcomb v. Clarke, 1 Denio, 226, it was held that an 
 action upon an express contract must, except in cases of negotiable paper, be 
 brought in the name of the party to whom it was made; and it is not competent 
 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 agreement. And 
 the decision, as we have seen, was upheld in Fenly v. Stewart, 5 Sandf., 101. 
 Williams v. Crislee, 4 Duer, 29, 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 written contract made by an agent, in order 
 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 contract, 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.
 
 116 FRY ON SPECIFIC PEKFOKMANCE OF CONTRACTS. 
 
 siderations as to the reliance of one party on the personal 
 qualities of the other, which have been referred to in con- 
 sidering how far the benefit of a contract is assignable in 
 equity. (^) Thus, it appears clear that, if A. contract with 
 
 (g) See supra, § 203 et seq. 
 
 Knox 7 Cusli., 371, mther inclines to the admission of parol evidence to charge 
 the undisclosed principal, althonsjh the case seems to have been decided in favor 
 of the plaintiff, upon the ground that the action was not brought upon the 
 written contract itself, but for the price of the goods. A contract was made 
 by one Georo-e B. Huntingdon for the sale and delivery of barli. Held, that 
 the bark being tlie 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 first payment had been made to George B. 
 Huntingdon. Sec Long V. Colburn, 11 Mass., 97 ; Emerson v. Providence 
 Man Co., 12 id., 237; Ballou v. Talbot, 16 id., 461, and Man v. Chandler. 9 
 id 335; Contra.Tucker v. Bass, 5 id , 164. In Stackpole v. Arnold, 11 Mass., 
 27 ' Chief -Justice Parker, in cases of this nature, accepts o\\\j the actual signers 
 of 'the contract as parties to the suit. But in a later decision— the New Eng- 
 land Mar. Ins. Co. v. De Wolfe, 8 Pick., .56-i-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 drawn 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 withm the scope of his authority, given, or subsequently 
 recognized, although the contracts are made in the name of the agent, appear- 
 ing, 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 writ- 
 ten 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 agree- 
 ment. But the contract made by the agent is the contract of the principal, in 
 case he is defendant. And if the agency is disclosed at the time of the con- 
 tract, 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 prin- 
 cipal was disclosed at the time of the transaction. Merch.ints' Bank v. Central 
 Banli, 1 Kelly, 418. In Michigan it is said, that where it distinctly appears in 
 the body of a parol agreement, signed by an agent in his own name, without 
 the addition of the name of the principal, that the principal is the contracting 
 party, the agreement 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. Clealand v. Walker, 1 Ala., 
 1058; McTyer v. Steele, 26 id., 487. And see Dawson v. Cotton, 26 Ala., 
 591, a case of a promissory note under seal. In Mississippi, it was decided in 
 Edwards v. Simmons, 27 ISIiss. (5 Cush.), 302, that where A. borrowed money 
 of B. and gave his note for it, and C. signed his name as security, trusting 
 alone to A., who did not disclose that he acted as agent for D. or any body, 
 and B. sued D., alleging that A. acted as his agent, D. could not be made liable 
 to B. unless proved to be the party trusted. In California, it was held in Ruiz 
 V. Norton, 4 Cal., 355, that the principal may sue on a written contract, made 
 and signed by his agent, without disclosing him as principal ; but in order to 
 maintain the action, he must 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.
 
 AGENCY. 117 
 
 B. for the performance of anything in which B. may be 
 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 an estate whicli was the property of B., B. 
 could not afterwards declare himself the agent of C. ; for 
 
 C, not having the estate, could not perform the contract. 
 And it may, it is conceived, be laid down that in no case 
 can a contracting party declare himself the agent of an un- 
 named principal, except where the contract, if really made 
 by the contracting party, might have been assigned by him 
 to the party suing as principal. 
 
 § 240. In tliese cases the agent is not a necessary party 
 to the action, (7^) unless the agency be not proved, or there be 
 special circumstances which may render it proper to make 
 him a defendant ; as where the agent claimed to have en- 
 tered into the contract for his own benefit. (/) 
 
 §241. The question may sometimes arise whether a 
 party has, on the construction of the contract, entered into 
 it as principal or as agent. The Commissioners of Woods 
 and Forests were by statute authorized to enter into con- 
 tracts, but the estate remained in the crowm : on a contract 
 entered into by them under this authority, it was held on 
 demurrer that they could not be sued for specific perform- 
 ance, but that the contract must be enforced in the ordinary 
 way in the case of estates vested in the crown. (./) 
 
 § 243. In some cases both agent and principal may be 
 sued. Thus in Waller v. Ilendon (k) there was a contract 
 with the plaintiff for the purchase and renewal of a lease in 
 the name of Ilendon or such person as he should nominate 
 or appoint. He nominated Cox, declaring he bought for 
 him as his agent. It was ordered by Lord Macclesfield, 
 affirming a decision at the rolls, in a suit (in which both 
 Hendon and Cox were defendants), for payment of the resi- 
 due of the purchase-money, that they should both pay it, 
 and that if Ilendon paid it he might prosecute the decree 
 against Cox. 
 
 (ft) Klnjrsley v. Younp. Dan. Ch. Pr., 177. and cf. Marshall v. Simlilen, 7 Ha , -Ji^^, and 
 
 (i) Taylor V. Salmon, 4 My &Cr ,134. ^ee, Weiee v. Wanlle, I.. R. Ill Eq., 171. 
 
 also, Lees v. Nuttall, 1 11. & My., 53; Nel- Q) Nurse v. Lord Seymour, 13 Bear., -254. 
 
 thorpe V. Ilolgate, 1 Coll., 203; supra, § 155; (*.) 5 Vin. Ab., 52-1, pi. 45.
 
 118 FRY ON SPECIFIC PEUFORMANCE OF CONTRACTS. 
 
 § •243. Directors of a public company are agents of the 
 company, and their personal liability upon contracts entered 
 into by them is governed by the ordinary law of principal 
 and agent. "Wherever an agent is liable," said Lord 
 Cairns°(then L. J.), in Ferguson v. Wilson, (7) "those di- 
 rectors would be liable ; where the liability would attach 
 to the principal and the principal only, the liability is the 
 liability of the company." Accordingly it was held, in the 
 last-mentioned case, that the directors of a railway company 
 were not liable to indemnify or pay damages to the plaintiff 
 in respect of a resolution of the board under which the 
 plaintiff alleged that he was entitled to liave shares in the 
 company allotted to him ; the resolution being, if anything, 
 a contract between the plaintiff and the company. On the 
 other Imnd, where directors of a company signed a con- 
 tract (for a lease), on the face of which the court considered 
 the presumption to arise that they were, as between them 
 and the plaintiff (the lessor) principals, they were held per- 
 sonally liable to perform the contract, notwithstanding that 
 the plaintiff had, in correspondence, treated the company 
 as liable to execute the contract, (m) 
 
 § 944. In the case of a contract by an agent as a princi- 
 pal, the agent might, at common law, sue in his own name, 
 without in any way joining the real principal. In chan- 
 cery, however, a suit could not be maintained by the agent 
 unless his real principal were in some shape a party to the 
 suit, {n) 
 
 § 245. The principle already stated (o) that a person ap- 
 pearing on a contract as i^rincipal, though really an agent, 
 is yet liable on thn contract as principal, applies in cases of 
 specific performance in equity (j:») as Avell as in actions for 
 damages, (^) and accordingly such an agent may be sued 
 without the principal. In Chadwick v. Maden,(r) where 
 the contract was in the name of the agent, who contended 
 that, being merely such, the bill should be dismissed as 
 against him, Turner, Y. C, said that "the signature of the 
 agi'eement was sufficient to subject him to the liability of 
 
 (0 T.. R. 2 Gil., 77. Cf. Wilson v. Lord (p) Corless v Sparlincr, I. R S Eq.,33.i; 21 
 
 Bury, 29 ^V . R., 272-3. W. R.. 876, Saxon v. Blake, 29 Beav., 43S 
 
 (m) Kay V. Johnson, 2 H. & M., 118. (/?) .Tones v. LUflerlale, 6 A & E., 486; 
 
 (n) Per Lord Lyndhurst in Small v. Alt- Mag-ec v. Atkinson, 2 M. & \V., 44 s Cf l-onjj 
 
 wood, You., 457. See S. C , 6 CI & Fin , 232. v. MilUir, 4 C. P. D , 4.iO. 
 
 (0) Supra, § 238. (,0 9 Ha., 191.
 
 AGENCY. 119 
 
 performing it." In that case, after a lot had been knocked 
 down to him, A. dechired himself an agent for C, who was 
 present, and asked to have the contract drawn np in C.'s 
 name, which was refused, and then signed it himself ; it was 
 there held that A. was personally liable on the contract. 
 It would, however, appear on principle, 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 performance as principal, A. might 
 allege the understanding between himself and B. at the 
 time, and give parol evidence of it, and that, if the allega- 
 tion were proved, it might furnish a valid defence. And 
 in many cases it is obvious that an action for specific per- 
 formance against an agent alone would fail, from the inca- 
 pacity of the agent to perform it.(s) 
 
 § S46. There are, however, special circumstances which 
 sometimes occur and make it proper that an agent should 
 be a party to an action for specific performance. In almost 
 all these cases the agent is an agent and something more. 
 
 (1) The claim by the agent to an interest in the property 
 in question is one of these cases ; and there the agent may 
 be a party. (^) 
 
 (2) The contract, as we have already seen, may be so 
 framed as to give a right of action against both principal 
 and agent. (?/) 
 
 (3) The agent of the vendor often becomes by the contract 
 a stakeholder of the deposit paid by the purchaser, and in 
 that character he may be a proper party to an action. 
 
 § 247. Thus where a stakeholder threatens to pay over 
 the deposit to the vendor he may properly be made a party to 
 an action by the purchaser. (r) Where the stakeholder had 
 paid over the deposit to the vendor, and difficulties had arisen 
 in completing the contract because the deposit was not forth- 
 coming, the purchaser made the stakeholder a party to a 
 bill fiied for specific performance, and was held entitled to 
 a declaration that the stakeholder was (jointly with the 
 vendor) liable to make good the deposit, which was required 
 to discharge a mortgage on the property. (?«) So, again, the 
 
 (<t^ Spp infra S ^69 et sea. (") Waller v. Ilendon, supra, § ^ii. 
 
 Ilyl^r v.^Salmon. ^4 M.. & Cr.. 134; (v> Cutis v. Tho.ley 13 Sin, -.HHJ:,! Coll.. 
 
 Heard V Pillev, L. R. 4 Ch . 54S. Distinguish 2-23, n.; Feiiton v. llughis , ^ es.. 2S,. 
 
 Gla/brJok V Richardson. -23 W. R.. 51. (w) Wig;:ms v. Lord. 4 Beav., 30.
 
 120 FRY ON SPECIFIC PERFORMANCE OF CONTRACTS. 
 
 auctioneer has repeatedly been made a defendant to bills 
 by the vendor or those claiming under him, and has been 
 ordered to pay the deposit (less his charge [re]) into court. (2/) 
 And on account of the auctioneer's right to bring an action 
 for the deposit, and of his liability in respect of it, it has 
 been said that he can be made a co-plaintiff with the ven- 
 dor ;{z) or he may interplead. (a) 
 
 § 248. Still, although it is the law that a stakeholder or 
 auctioneer holding a deposit may be made a defendant, the 
 proi^er practice is not to make him a defendant when the 
 deposit which he holds is small ; unless, being applied to 
 pay it into court, he refuses to do so. Where the deposit 
 is large, the depositee may properly be made a defendant if 
 he has not paid it into court before action. (&) 
 
 § 249. The auctioneer being agent for both vendor and 
 purchaser, and receiving the deposit as a stakeholder, is 
 liable to an action for it if the sale goes off,(c) although he 
 be also solicitor for the vendor ;(<:Z) and where the contract 
 provided "that a deposit of £350 should be paid in part of 
 the purchase-money to" the vendor's solicitors, it was held 
 that they were stakeholders ;(e) but the vendor's agents, (/) 
 including solicitors to whom the deposit is paid, " as agents 
 for the vendor," are not stakeholders. (^)' 
 
 (x) As to this, see St. Leon. Vend., 51-3, (c) Grey v. Gutterulge, 1 Man. & Ry.,614. 
 
 and Blenkhorn v. Penrose, 29 W. R.. -239. Harington v. Hoggart, 1 B. & Ad, 577- 
 
 (y) Anneeley v. Muggridge, I Mad., 593; id) Edwards v. Holding, 5 Taun., 815. 
 
 Yates V. Farebrother, 4 id., 239. Cf. Blenk- (e) Wiggins v. Lord, 4 Beav , 30. 
 
 horn V. Penroee, 29 W. R., 239. ( f) Duke of Xorlolk v. Worthy, 1 Camp., 
 
 (z) Dan. (Jb. Pr., 17S. 337; Hurley v. Baker, 16 M. & W., 26. 
 
 (a) Hoggart v. Cutts, Cr. & P., 197. (g) Edgell v. Day, L. R. 1 C. P , 80. 
 
 (6) Earl of Egmont v. Smith, 6 Ch. D., 469, 
 474-5. 
 
 ' Pleadinffs, what they must show.'] The pleadings must render clear the 
 rights of the parties seeking specific performance; if they do not do so 
 it will be refused. "Waters v. Brown, 7 .1. .J. Marsh., 123. Fraud must be 
 alleged. Lawyer v. Mills, 20 L. J. Ch , 80; Maguioc v. Thompson, 2 Wall. .Jr., 
 209; Ellerbee v. Ellerbee, 42 Ala., 643. The plaintiff must show that he can- 
 not be indemnified in damages if the contract is broken. Powel v. Central 
 Plaukroad Co., 24 Ala., 441; McCloud v. White, 5 Minn., 178. A demurrer 
 will lie if he does not do so. Bottsford v. Beers, 11 Conn., 369; Prewitt v. 
 Jenkins, 1 Blackf., 294; Noyes v. Marsh, 123 Mass., 286; Kauffman's App. , 
 55 Pa. St., 383. In an action for the specific performance of an agreement to 
 sell land, it was held that the bill might be so shaped as either to obtain specific 
 performance, or that the contract be canceled. Mills v. 3Ietcalf, 1 A. K. 
 Marsh., 477. In Pitts v. Cable, 44 111., 103, it was held that a bill which seeks 
 specific performance must be framed with that view. Land was sold under an 
 order of the court, and the purchaser failed to complete his purchase; the 
 officer making the sale, who is the only necessary party complainant, could file 
 his bill for specific performance, without direction of the court; a demurrer 
 will not lie. Boune v. Bitter, 26 N. J. Eq., 456. The plaintiff must show
 
 AGENCY. 121 
 
 aflBimatively that he is entitled to relief. He need not, however, allege that 
 the defendant has the ability to perfomi. ^lorev v. Farmers' Loan, etc.. 14 
 N. Y., 302; Clough v. Hart, 8 Kan., 487; Greenfield v. Carlton, 30 Ark., 547. 
 The rules of pleacling are le.ss stringent than they are at law; but tiny are 
 equally regulated by principle. Adams' Eq., 301. As to what was a sufliciont 
 complaint in an action to compel a convej'ance, see Morrow v. Lawrence, 7 
 "Wis., .~)74. In the case of a grant, a deed must be alleged. King v Tice, 3 
 Ired. Eq., 5G8. Matters which the court takes judicial notice of, need not be 
 set out in the pleadings. United States v. La Vengeance, 3 Dallas, 2'J7 ; Owings 
 V. Hall, 9 Pet., 607. ' Where the Statute of Frauds applies to the contract, the 
 bills is demurrable. Chambers v. Lecompte, 9 Mo., 575. As to where the 
 statute of limitations applies, see Dunlap v. Gibbs, 4 Yerg., 94; "Wisner v. Bar- 
 nett, 4 Wash. C. C, 631; Field v. Wilson, 6 B. Mon., 479; Maxwell v. Ken- 
 ned}', 8 How., 210. "Where a contract was to have been approved by a corpo- 
 ration, and was signed by its president, the fact that he was such officer must 
 be set forth. Buffalo Catholic Inst. v. Betta et al., 87 N. Y., 250. 
 
 Bule (I.S to loliut the bill imid shoic.'] Great accuracy of averment, and strict 
 corresponding proof, are required in an action for specific performance. Daniel 
 V. Collins, 57 Ala., 625; Hunter v. Daniel, 4 Hare, 4'iO; Forsythe v. Clarke, 3 
 "Wend., 657. The contract should be particularly stated. Light St. Bridge 
 Co. v. Bannon, 47 Ind., 129. A waiver of objection to title was the ground 
 relied upon for specific performance. Held, that that question must be put in 
 issue by the pleadings, in order that evidence might be given to prove such 
 waiver. Page v. Greeley, 75 111., 400. After a decree had been made; held, 
 that it should not be set aside, because of defects in the petition. Despaiu v. 
 Carter. 21 Mo., 231. The legal title must be .shown to be subordinate to the 
 equitable title under which the plaintiff claims. Cameron v. Abbott, 3 Ala., 
 415. "Where an action is brought against heirs, and to specifically enforce their 
 ancestor's contract, it must be averred and proved that the estate is not in 
 process of administration, and that the defendant has assets of such ancestor 
 in his hands. Taylor v. Roland, 26 Texas, 293. A. assigned to B. all his in- 
 terest in an undivided estate. Held, that B.'s bill must show that A., at the 
 time of the assignment, had an interest, and furnish the data from which such 
 interest might be ascertained. Bogan v. Camp., 30 Ala., 276. The pleadings 
 need not allege that the vendor died seized, or that title is in defendant. Moore 
 V. Burvams, 34 Barb., 173. Where an agent executed a contract, the plcad- 
 ing-s must .show that he was duly authorized. Roby v. Cossitt, 78 111., 638; 
 Columbine v. Chichester, 2 Phil., 27; coittra, Harding.s v. Parshall, 56 111., 219; 
 Fisher v. Bowser, 41 Texas, 222. They need not show the mode of execution, 
 nor the manner in which the agreement was satisfied by the principal. Ilan- 
 chett V. McQueen, 32 Mich., 22; Harding v. Parshall, 56 111 , 219; Gilpin v. 
 Watts, 1 Col., 479. As to tru.st funds in agent's hands, see Gerrish v. Toune, 
 3 Gray, 82. All the essential terms of a contract must be clearly and definitely 
 alleged as well as proved. .lones v. Jones. 49 Texas, 683; Anthony v. Left- 
 witch, 3 Rand. (Va.), 238; Gaskins v. Reebles, 44 Texas, 390; Wiley v. Mul- 
 lins, 22 Ark., 294. Where the object of the action is to charge particular 
 defendants, the pleadings must show a ca.se against them by proper legal 
 averments. Seager v Burns, 4 3Iinu., 141. It is" no objection that the exact 
 agreement relied upon, is set out in the pleadings. New Barbadoes Toll Bridge 
 Co. v. "Vreeland, 4 N. J. Eq., 157. Where the contract relied upon is required 
 to be in writing, the pleadings will be had on demurrer, if thev do not show 
 that it was so. Barkworth v. Young. 4 Deem, 1 ; Logan v. Bond, 13 Yes., 192; 
 Piercy V. Adams, 22 Ga., 109; Carlisle v. Brennan, 67 Ind., 12. Walworth, 
 Chancellor, said in Cosme v. Graham, 2 Paige Ch., 177: "If it is stated gener- 
 ally that an agreement or contract was made, the court will presume it a legal 
 contract until the contrary appears ; and the defendant niu.^t either plead the 
 fact that it was not^in writing, or insist upon his (lefen.se in the answer." See, 
 also, Wildbachu v. Bibidoux"; 11 Mo., 659; Richards v. Richards, 9 Gray, 314; 
 Cran.shou v. Smith, 6 R. I.. 231; Farnham v. Clements. 51 Me.. 426; Dudley 
 V. Batchelder, 53 id., 403; Ilubbel v. Courtney, 5 S. C, 87. Specific perform- 
 ance will not be decreed of an agreement which differs materially from the 
 one set out in the pleadings. Han-is v. Knickerbocker, 5 Wend.. 638. As to 
 how land should be descrilied in pleadings, see Gray v. Davis, 3 J. J. Marsh.,
 
 122 FRY OX SPECIFIC PEUFOKMANCE OF CONTRACTS. 
 
 381; Allen v. Chambers, 4 Ired. Eq., 135; Mullory v Malloiy, 1 Bush. (N. C), 
 Eq., 80; Sanderson v. Stockdale, 11 :\W., 5(33; Bast v. Alford, 20 Texas, 226; 
 Goodenow v. Curtis, 18 Mich., 298; Baker v. Hathaway, 5 Allen, 103. In 
 Abbott V. Dunivau, 34 INIo., 148, it was held that either party might aver and 
 prove a mistake in the description of the land, in a contract sought to be spe- 
 •cifically enforced. "Where a vendor seeks to enforce specific performance by a 
 sale of" the land and application of the proceeds to the satisfaction of the con- 
 sideration, he should allege in the pleadings, and prove, that the defendant 
 agreed to pay the consideration. Copehart v. Hall, 6 W. Va., 547; Park v. 
 Johnson, 4 Alien. 259 As to allegations of performance, all the facts consti- 
 tuting performance should be alleged in the pleadings; it is not enough to aver 
 " that he has done all that he is Ixjund by the contract to do," or " that he has 
 offered, and has always been ready and willing, to comply with his contract." 
 The pleadings must show that the complainant has fully performed everything 
 iiecessarv to entitle him to performance of the contract bj^ the defendant. 
 Bates v.'Wheeler, 2 111., 54; Underbill v. Allen, 18 Ark., 460; Brown v. Hayes, 
 33 Ga. Supp., 13(i: I\[cLerov v. Tulane, 34 Ala., 78; Bell v. Thompson, id., 
 633; Columbine v. Chichester, 2 Phil., 27; Davis v. Harrison, 4 Litt., 261; 
 Hart V. ]\IcClellan, 41 Ala., 251; Duff v. Fisher, 15 Cal., 375; Low v. Heck, 3 
 W. Va , 680; Koy v. Willink, 4 Sandf. Ch.. 525; Bass v. Gilliland, 5 Ala., 761; 
 Moore v. Higbee,"45 Ind., 487. As to insufficient allegations relative to a trust, 
 see Pearson v. East, 36 Ind.. 27; Hanser v. Roth, 37 id., 89. "Where the plead- 
 ings alleged that the purchase money had all been paid, and offered to pay 
 whatever sum might be found to be due — held, sufKcieut, although a part of 
 the money was found to be still due. Mix v. Beach, 46 III, 811. Partial per- 
 formance was alleged in the pleadings. Held, that the plaintiff need not form- 
 ally allege a readiness to complete the performance. Hatcher v. Hatcher, 1 
 McMullan Ch., 311. 
 
 As to ■mutual and concurrent acts.'\ The pleadings in an action to enforce the 
 specific performance of an agreement, in which the acts to be done by the par- 
 ties are mutual and concurrent, was held good, where they alleged an offer 
 to perform hj the plaintiff: and a refusal by the defendant. St. Paul Div. v. 
 Brown, 9 Minn., 157. 
 
 As to amendments, see Chess' App., 4 Pa. St., 52. 
 
 As to consent ] "Where consent is necessary in order to enable the plaintiff 
 to perform the contract — held, that the pleadings need not allege that such 
 consent was obtained. Smith v. Capron, 7 Hare, 185. 
 
 ^4.'* to refused and demand.'] "Where an action is brought to enforce an obli- 
 gation to convey, absolute on its face, and the consideration is acknowledged, 
 the pleadings need only aver a request and a refusal. Founger v. "Welch, 22 
 Texas, 417; Holman v.'Aiswell, 15 id., 394. The pleadings should state that 
 the vendor had been requested to make title; his insolvency will not excuse the 
 necessity of such request Carter v. Thompson. 41 Ala., 375. In Dodge v. 
 ("lark, 17 Cal., 586, the omission of an allegation of demand was held to be 
 fatal. 
 
 As to dn)7iarjes.] The particular injury must be alleged and proved, where 
 damages are claimed; it will not answer to aver that the plaintiff has sustained 
 damages. Clinock v. March, of Ely, 2 H. ct M., 220. "UHiere a note has been 
 lost, the pleadings must allege that the same has not been paid. Mason v. 
 Fo.ster, 3 J. J. Mar.sh., 283. 
 
 Belief; general jyrayer for.] The complaint should be dismissed, notwith- 
 standing the complainant may be entitled to some relief : where the pleadings 
 contain no prayer for general relief, and where they do not justify the relief 
 prayed for. Boyl v. Laird, 2 Wis., 431; State of Conn. v. Sheridan, 1 Clark 
 (N. Y.), 533. It is error to grant it, where neither party asks for specific per- 
 formance. Cantrell v. Rice, 6 J. J. Marsh., 338. 
 
 Afftrmntive relief^eross-bill.] The defendant must file a cross-bill, if he 
 wishes affirmative relief, in an action for specific performance. Hanna v. Rat- 
 1ikin^ 4:! 111., 103; Bussey v. Gart, 10 Humph., 238; Wright v. Delafield, 25 
 N. Y. , 266. Where the answer admitted the contract, no cross-bill need be 
 fid. D orsey v. Campbell, 1 Bland. Ch., 356. Where the purchaser files a
 
 AGENCY. 123 
 
 bill for specific pei-formanco, after the time fixed in the agreement, tlie vendor 
 may, by answer, subniit to perform, and file a cross-bill, and compel the pur- 
 chaser also to perform. Held, that he cannot, in such case, resist fulfillment, 
 and, after depreciation of the property, enforce specific performance against 
 the purchaser. Tobey v. Freeman, 79 111., 489. 
 
 Bill dismissed.^ The cross-bill, with the original bill, makes but one action; 
 -and. when the origiuall bill is dismissed, such dismissal carries with it the dis- 
 missal of the crossbill. Elderkin v. Fitch, 2 Carter, 90. The cross-bill is a 
 matter of defense, and it should not set up anything not contained in the origi- 
 nal action. May v. Armstrong, 3 J. J. Marsh., 262; Daniel v. Morrison, 6 
 Dana, 18(3; Fletcher v. Wilson';' 1 Lon. & Marsh. Ch., 376; Gallatin v Erwin, 
 Hopk. Ch., 48; S. C 8 Cow., 301; Josev v. Rogers, 13 Ga., 478; Slason v. 
 Wright, 14 Vt., 208; Rutland v. Page, 24*id., 181; Draper v. Gordon. 4 Sandf. 
 •Ch., 210. In Nelson v. Dunn, \o Ala., 501, it was held that a cross bill is not 
 restricted to the issues of the original action. The written obligation on which 
 the claim was based, was set out in the plaintiff's bill; the cross-bill did not set 
 it out. Held, that it need not do so. Coe v. Lindley, 32 Iowa, 437. 
 
 Equitable counterclaim under the Codes of the several States.'] The equitable 
 counterclaim may take the place of a cross-bill, under the system of pleadings 
 adopted I)v the codes in the several States where they are used. McAbee v. 
 Randall, 41 Cal., 136. 
 
 Change of parties.'] When a cross-bill is filed by the defendant, in which he 
 seeks affirmative relief, he becomes the plaintiff, and the plaintiff in the original 
 action becomes the defendant in the cross-bill. Ewing v. Patterson, 35 Ind., 
 326. 
 
 Statute of frauds— demurrer.'] The statute of frauds must, in all ca.ses, be 
 pleaded ; it differs, in that respect, from the statute of limitations. Where it 
 is not done, a general demurrer is proper. Ridgwa)-- v. Wharton. 3 De G M. 
 &G., 691; Wright v. Le Clair, 4 Green (Iowa), 420; Field v. Hutchinson, 1 
 Beav., 599; Wood v. Midgley, 5 De G. M. &■ G., 41; Adams v. Patrick. 30 Vt., 
 576; Hallv. Peer, 27111.. 312; Meach v. Perry, 1 D. Chip (Vt.), 182; Dryer v. 
 Martin, 4 Scam., 146; Hollingshead v. ]\IcKenzie, 8 Ga., 457; Grant v. fcraig- 
 miles, 1 Bibb., 203. A general denial does not raise the issue of the statute of 
 frauds. Livesey v. Livesey, 30 Ind., 3!)8 Where the answer admitted a parol 
 contract, the defendant must plead the statute of frauds, in order to avail him- 
 self of it. Irildbahra v. Robidoux, 11 Mo., 659; Walker v. Hill. 21 N. J. Bq.. 
 191; Albert v. AVinn, 5 Md., 66; Talbot v. Bowen, 1 A. K. Marsh., 436; Small 
 V. Awings, 1 Md. t h., 363; Artz v. Grove, 1 Md., 456; Newton v. Swazev, 8 
 N. H., 5?; Tilton v. Tilton, 9 id., 385; Dean v. Dean, 9 K J. Eq., 425; Smith 
 Braisford, 1 Des. Eq , 350; Hutchinson v. Hutchinson, 4 Des., 77; Savir v. 
 Dulin, 6 Jones' Eq., 195; Morrell v. Cooper, 65 Barb., 51. 
 
 Defense that land is homestead.] Where the defendiint wishes to avail himself 
 of this defense, he must set it up in his pleadings. Brown v. Eaton, 21 Minn., 
 409. The wife refused to release her dower. Held, that the defense would not 
 avail, where the vendee offered to v.^aive the release. Carson v. ^lulranv, 49 
 Pa. St., 88. 
 
 Neic matter.] It is no ground for denying the relief asked for, that new 
 matter has been set up not responsive to the allegations of the bill, and not 
 supported by the proof. Smoot v. Rea, 19 Md.. 398; see Laverty v. Moore, 33 
 N. Y., 658.
 
 124 FRY OX SPECIFIC PERFORMANCE OF CONTRACTS. 
 
 PAET III. 
 
 OP THE DEFENSES TO THE ACTION. 
 
 CHAPTER I. 
 
 OF THE INCAPACITY TO CONTRACT. 
 
 § 250. The incapacity to contract of either of the parties 
 to a contract furnislies ground on which that party may 
 resist si^ecific performance ; and on the principle of mutu- 
 ality hereafter to be considered it may also furnish a defense 
 to the other party, though himself perfectly competent. 
 The incapacity to contract, and the incapacicy to execute a 
 contract, are, of course, different questions ; the one must 
 be judged of at the time of the contract, the other when its 
 performance is sought.' 
 
 • Personal incapacity.^ It is a perfect defense to au action for specific per- 
 formance, that the plaintiff, at the time of filing the bill, was personally in- 
 capable of performing. Flight v. BoUand, 4 Russ., 298; Richards v. Green, 
 23 N. J. Eq., 538. Specific performance will, of course, not be decreed, when 
 the defendant cannot perform the agreement. This is true even where he has, 
 by his wrongful act,»made it impossible. Green v. Smith, 1 Atk., .573; Dan- 
 forth V. Phila. R. R. Co., 30 K J. Eq., 12; Columbine v. Chichester, 2 Phila., 
 27; Hallett v. Middleton, 1 Russ., 243; Ellis v. Coleman, 4 (Jur. S.), 350; Phil- 
 lips v. Stanch, 20 Mich., 369; Dan ton v. Stewart, 1 Cox, 258; Greenaway v.. 
 Adams. 12 Ves., 395; Smith y. Kelley, 50 Me., 64; Gumpton v. Gumpton, 47 
 Mo., 37; Renkin v. Hill, 49 Iowa, 270; Stearns v. Beckham, 31 Gratt., 379. 
 
 Homestead law m loica.] In this State a husband agreed to convey land in 
 which there was a homestead right in his wife. She refused to consent. Held, 
 that specific performance would not be decreed. Yost v. Devault, 9 Iowa, 60; 
 Barrett V. Mendenhall, 42 id., 296; Long v. Brown, 66 id., 160; see as to bad 
 faith in the parties in such a case. Peeler v. Levy, 26 N. J. Eq., 330. 
 
 PartUd performance only, possible.'] It is the substance, rather than the form 
 of contracts, which equity regards; and the impossibility of a hteral fulfill- 
 ment will not operate as a defense, when it can be substantially carried out. 
 Shaw V. Livermore, 2 Green (Iowa), 338; Phila. R. R. Co. v. Lehigh, etc., Co., 
 36 Pa. St., 204; Hart. v. Brand, 1 A. K. Marsh., 159; Oliver v. Crosswell, 43 
 111., 41. 
 
 Partial ability.] A defendant must perform, so far as he is able, and equity 
 will compel him to do so. A ratable abatement of the contract may be de- 
 creed. Rankin v. Maxwell, 2 A. K. Marsh., 488; Weatherford v. James, 2 
 Ala., 170; Jacobs v. Sale, 2 Ired. Eq., 286; Henry v. Lisles. 2 id., 407; Wright 
 V. Young 6 Wis., 127: Ketchum v. Stout. 1 Head (Tenn.), 251 ; Bell v. Thomp- 
 «SS' 'it''^'?-',,^'^'^' Ketchum v. Stout, 20 Ohio, 453; Covell v. Cole, 16 Mich., 
 223; Marshall v. Caldwell, 41 Cal, 611; Meek v. Walthall, 20 Ark., 648.
 
 INCAPACITY TO CONTRACT. 125 
 
 § Sol, The question as to the capacity of ])ersons to con- 
 tract, as raised in actions for specific performance, being for 
 the most part identical with the question as discussed at* 
 common law, and having no peculiar relation to the juris- 
 diction in specific performance, it is X)roposed only to refer 
 to a few points of practical importance which may arise in 
 actions of this nature. 
 
 § SoS. The peculiar doctrines of equity with relation to 
 married women make it necessary to allude to their capacity 
 to contract. The principle on which the court proceeds is, 
 that if a married woman have not separate property, she 
 cannot, at any rate as a general rule, (a) contract at all; and 
 if she have, she can contract, but only in respect of that, 
 and the remedy is only against it, and not in ijersonam 
 against her. (5) ^'■h. feme covert,'''' said Lord Cottenham,(c) 
 "is not comi)etent to enter into contracts 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 contract 
 would be within the incapacity under which a feme covert 
 labors.'" 
 
 (a) See the case of Vansittart v. Vansittart v. Ashton, 1 My. & Or., 105. See, also, Hum- 
 
 (4 K. & J., 62, affirmed 2 De G. & J. 249), phreys v. HoUls, Jac, 73. 
 infra, § 259. (c) 1 My. & Cr., Ill, 112. 
 
 (6) Francis V. Wigzell, 1 Mad, 258; Aylett 
 
 ' Kfeine covert will be treated as a feme soU, only as to the dispositiou of her 
 separate property; and her power of disposing of property, settled to her sepa- 
 rate 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 Itequcath " 
 the property, at her death, "to whomsoever she pleases." but had no separate 
 estate, and she executed au instrument under the power, therein styled a "will," 
 and appointed A. her "executor;" held, that such instrument was a mere exe- 
 cution of the power, and that A. therefore was uot au 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 dispose of it as she pleases, eveu to 
 her husband, if done freely and vohmtarily, and the court will coutirm her dis- 
 position. Dallam v. Wampole, Pet. C. C', 116. She may mortgage her sepa- 
 rate estate for her luisband'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 creating the trust contains no restriction 
 upon her power. North American Coal Co.^ v. Dyett. 7 Paige. 9. And !<liemay 
 bind her separate estate for debts contracted by her, on the credit of such 
 estate, even though her husband should be the creditor. Gardner v. Gardner, 
 7 Paige, 113. A.yeine covert is, in all cases, to be treated i\saftmc»ole, in re- 
 spcctlo her separate estate, so far as to dispose of it in any way, not inconsist- 
 ent with the terms of the instrument under which she holds. Leaycraft v.
 
 126 FRY ON SPECIFIC PERFORMANCE OF CONTRACTS. 
 
 ^ •35:J. If the contract in question relate to the woman's 
 separate property not fettered by a restraint on anticipation, 
 her contract with regard to it will clearly bind. But if that 
 be not the case, as, for example, if a married woman agree 
 to purchase or lease a house, then the mere fact of her pos- 
 sessing separate estate is not sufficient to enable the other 
 party to enforce performance as against the separate estate. 
 The engagement here will be of that description which has 
 been called the general engagements of a married woman, 
 and in order to bind the separate estate by such an engage- 
 ment "it should appear that the engagement was made with 
 
 Hedden, 3 Green's Cli., 512. And if, by the deed, the wife is permitted to dis- 
 pose of her separate property by deed, will, or otherwise, at her pleasure, her 
 riffhtof 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 
 sv/j fiiodo and only to the extent of the power expressed. Id. The same doc- 
 trine is repeated in Clark v. Makenna, 1 Chev., 163 (2d part); Morgan v. Elam, 
 4 Yerir., 375; Yizonneau v. Pegram, 2 Leigh, 183; and Williamson v. Beck- 
 ham, 8 id., 20. K 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. Where a married woman, by a contract under seal, charged 
 the payment of a debt on her real estate, which was settled on her by 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 prop- 
 erty 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 havmg been 
 applied to the benefit of her separate estate— she was not l)ound to refund it on 
 the reversal of the judgment, and the recovery of the land by her. Wood v. 
 Genet, 8 Paige, 137. Where a husband purchases real estate, in his own name, 
 with hie 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, devised or de- 
 scended to her during coverture, may, in a proper case, extend to the whole 
 estate; and it cannot lie defeated by any act of the husband. Havilaud v. 
 Bloom, 6 John. Ch., 178. Kfeme (^rernnay become the debtor of her hus- 
 band, by borrowing money of him, for the benefit of her separate estate. Gard- 
 ner v. Gardner, 22"Wend., 52r.. But though her estate may become liable, ia 
 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 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 Des., 92; See McKay 
 V. Allen, 6 Y^erg., 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 Hay w. , 406. See. further, as to the separate property of 
 & ferae covert, the cases of Brundige v. Poor, 2 Gill. & J., 1; Tiernan v. Poor, 1 
 id. , 216. The rights of married woman under the laws of New York are well 
 digested in The Saratoga Co. Bk. v. Pruyn, 90 N. Y., 250.
 
 IFCAPACITY TO CONTRACT. 127 
 
 reference to and upon the faith or credit of that estate,"' 
 and "whether it was so or not is a question to be judged 
 of * "^ * upon all the circumstances of the case." (<rZ) 
 
 § 254. In one case, a married woman possessed of sepa- 
 rate estate, and living separate from her husband, verbally 
 contracted to tal^e a leasehold house for a term.(e) The 
 contract was reduced into writing, signed by the lessor s 
 agent, and handed to the married woman ; she retained it, 
 without executing it, or any counterpart of it, but in let- 
 ters written by her referred to it as a contract, and she en- 
 tered into possession. In a suit by the lessor against her 
 and her trustees to enf^rce payment of rent, as a charge 
 on her separate estate. Knight Bruce, A^. C , 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. 
 
 § ^99. As regards separate property settled to the use of 
 a married Avoman without power of anticipation, she has 
 no power to contract so as to bind such property. (/) 
 
 § 256. If a married woman have a power to be exercised 
 in a specific way, and she affect to contract by an exercise 
 of the power, but without the essential formalities required, 
 there will be no judgment against her ; for, except under 
 these formalities, she has no power to contract, and the 
 paper signed by her is as void as any other contract signed 
 by a married woman, {g) But where the formalities omitted 
 are immaterial for the protection of the married woman, her 
 estate may be bound by the exercise of the power, and the 
 contract constituted by such exercise may be specifically 
 enforced. (7z.) 
 
 § 257. In actions for the enforcement of contracts against 
 the separate estates of married women, the usual and proper 
 parties are the woman herself, her husband (i) and the trus- 
 tees (if any) of the separate property, (i) The trustees are 
 not always necessary parties ; {k) but in their absence the 
 
 id) Johnson V. Gallagher. 3 De G. F & J., r, Dew. i Y & C C C.. ff! Thackwei^v 
 
 494.515; London Chartered Bank of Aus- Gardiner. 5 De G.& bm., 5h, Phillips v. iid- 
 
 tra ia V. Lempriere. L. R. 4 P. C, 572 See, wards. 33 beav..44(- 
 
 too, Picard V Hine.ld. 5Ch.,274, and per W Hancocks v Lablache, 3 C. P. D.. 19-. 
 
 Jes8el,M.R..inWainfordv.Heyl,id.20Eq.. Cf-^O^^.^X^Jj -/^^ Tenant. 1 Bro. C C, 16; 
 
 (h Gaston v Frankum, 2 De G. & Sm., 561. Murray v. Barlee. 3 My. & 1^-. 209._ _^^. ^ 
 
 &) Walrond V. Walrond, John., 18. (k) Picard vHine, L R. 5 Ch., 2.4 , Davles 
 
 Yq) Martin v. Mitchell, 2 J. & W , 413, 434. T. Jenkins, 6 Ch. D., <28. 
 (A) Hopkins V. Myall, 2 R. & M., 86; Dowell
 
 128 FRY OX SPECIFIC PERFORMANCE OF CONTRACTS. 
 
 plaintiff may find it impracticable to obtain complete re- 
 lief. (/) 
 
 § 5858. As regards the real estate of a married woman 
 not settled to her separate use or subject to her power, she 
 may, under the act for the abolition of fines and recov- 
 eries, (m) not only dispose of the land, but contract respect- 
 ing it, if not so as to render herself liable to damages, yet 
 so as to bind her estate of inheritance. (7z) The only other 
 modes by which a married woman can bind such real estate 
 (including, it would seem, her share in the proceeds of land 
 vested in a trustee and directed to be sold(o), are by fraud 
 or by election, or, perhaps, sometimes by agreement with 
 her husband when dealing with him at arm's length. (^)' 
 
 § S59. As regards dealing between a husband ji.nd wife, 
 Lord Hatherley, when a vice-chancellor, in more than one 
 case intimated his opinion that the power of a wife to 
 contract with her husband is not confined to her separate 
 property, but that "under any circumstances, when the 
 wife is put in such a position that she can be regarded for 
 the purposes of the contract as a /erne 5oZe," she may so 
 contract. ('7) The learned Judge considered that the case of 
 Bateman v. Countess of Ross,(r) supports this proposition. 
 The last-mentioned case is not very fully reported ; and it 
 
 (/) Collett V. Dickenson, 11 Ch. D., 687; 192, particularly 212, 219, overruling S. C.,2 
 
 Flower V. Buller, 15 id., 674 As to actions K. & J., 194. 
 
 by married women respecting separate (o) Franks v. TJollans, L. R. 3 Ch., 717. An 
 
 estate, see the Married Women's Property appeal to the House of Lords appears to have 
 
 Act, 1870, § 11 ; per Jessel, M. B , in Howard been compromised, L. R. 13 Eq., 301. 
 
 V. Bank of England, L. R 19 Eq.,30): Roberts (p) Nicholl v. .Jones, I.. R. 3 Eg., 696 
 
 V. Evans, 7 Oh D.,830; and Ord. XVI, r. 8. (?) Vansittart v. Vansittart, 4 K. & .1., 62, 
 
 (m) 3 and 4 Will. IV, ch. 74. Of. Toler v. 70(8. C, on appeal, 2 DeG & J.,249); Nicholl 
 
 Slater, L. R. 3 Q. B., 42. v. Jones, L R. 3 Eq., 096; Gibbs v. Harding, 
 
 (n) Crofts V. Miadleton, 8 De G. M. & G., Id. 5 Ch., 336. 
 
 (r) 1 Dow, 235. 
 
 • W/ie?'« the wife refuses to unite in the conveyance.] In a case wliere the wife 
 does not join the deed, and does not, in any other manner, release her dower 
 right — held, that the measure of damages is the difference, if there be any, be- 
 tween the contract price and the proved value of the property at the time of 
 the breach. Bush v. Cole, 28 N. Y., 261; Pumpelly v. Phelps, 40 id., 59; 
 Heimburgh v. Ismay, 35 N. Y. Supr. Ct,, 35. 
 
 Rule for computing the present value of wife's dower right.'] "The proper rule 
 for computing the present value of the wife's contingent right of dower during 
 the life of the husband, is to ascertain the present value of an annuity for her 
 life, equal to the interest in the third of the proceeds of the estate to which 
 her contingent right of dower attaches, and then to deduct from the present 
 value of tiie annuity for her life, the value of a similar annuit}' depending upon 
 the joint lives of herself and her husband; and the difference between these 
 two sums will be the present value of her contingent right of dower." Wal- 
 worth, Ch., in Jackson v. Edwards, 7 Paige, Ch., 408; see, also, Troutman v. 
 Gouring, 16 Iowa, 415; Hazebig v. Hutson, 18 Ind., 481.
 
 INCAPACITY TO CONTRACT. 129 
 
 is believed that with that single exception there is no re- 
 ported case in which the exception stated by Lord Hather- 
 ley has ever been acted upon ; the extent to which it is to 
 be carried seems to require ample consideration. 
 
 § 360. Where a married woman is a trustee (or one of 
 several trustees) for sale, she cannot by contract bind herself 
 to convey the estate. (5) 
 
 §361. Lunatics are under an incapacity to contract, 
 except during lucid intervals, during which times contracts 
 entered into by them are as binding as if made by a person 
 of perfectly sound mind.(/^)' Where a person, who has 
 entered into a contract is subsequently found lunatic from 
 a date prior to the contract, it is competent for the other 
 party to bring his action for specific performance, and obtain 
 a decision of the questions w^hether the defefidant was a 
 lunatic at the time of the contract, and, if so, whether he 
 had lucid intervals, and whether the contract was executed 
 during a lucid interval \{u) or he may ask, in the alterna- 
 
 (,<f) ^ve^y V. Griffin, L. R. 6 Eq., 606. cb. 14; Riicknlll and Tuke's Psychological 
 
 (t) Hall V. Warren, 9 Vep., 605 As to the Medicine (3d ed.), 27, where many authoritU s 
 
 evidence required to prove a lucid interval, are cited. 
 
 see Alt. -Gen. v. Parnth^r, 3 Bro. C. C, 441; (m) Hall v. Wr.rren. 9 Ves.. 6^5; Jud. Act, 
 
 ex parte Holyland, 11 Ves., 10 See, also, 1873, §29; Orders XXVI, XXXVI. 
 
 Ray's Medical Jurispiudence and Insanity, 
 
 ' Therefore, whore a person subject to temporary insanity, in a hicid interval 
 sold property for a full price, for the payment of urgent debts, his friends ad- 
 vising and consenting to the sale, it was held tliat 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.. 23fi. And where 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 benefit 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, 
 yet the purchaser from the lunatic vendor, after his recovery of sanity, 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 A., 
 and afterwards, when sane, conveyed the same to anotlier person, it was held 
 that although the fiist 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 drunkenness must be so complete as to deprive them of the proper exer- 
 cise of their minds, and thus withhold the unqualified and perfect assent which 
 equity requires for the validity of a contract. See Harrison v. Lemon, 2 Blackf., 
 51. So in Belcher v. Belcher, 10 Yerg., 121, the fact that the party was intoxi- 
 cated when he executed the convej^ance, 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 un-less 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 
 witness that the grantor was incapacitated by drunkenness for negotiating, 
 avoid his deed. 
 9
 
 130 FRY ON SPECIFIC PEKFORMANCE OF CONTRACTS. 
 
 tive, to have the contract either performed or discharged ; 
 and in the hitter case the court Avill allow hira, if vendor, to 
 retain out of the deposit his costs, charges and expenses. (?)) 
 In judging of insanity, courts of equity are governed by the 
 same principles as i)urely common law courts. (w)) 
 
 § a^a. The subsequent lunacy of a party to a contract in 
 nowise affects the rights of the other parties ^{x) and the 
 difficulties which formerly stood in the way of their remedies 
 were removed by the trustee acts of 1850 and 1852, and the 
 lunacy regulation act, 1853, § 122. (y) 
 
 § 363. In addition to the legal incapacities to contract, 
 courts of equity consider trustees, guardians, agents, and 
 other persons standing in a confidential relation to others to 
 be incapable (either absolutely or except under certain re- 
 strictions) of contracting for the purchase of the projDcrty 
 entrusted to them in behaK of the persons to whom they 
 stand thus confidentially related, and, under many circum- 
 stances, of contracting with such persons ;{z) and this inca- 
 pacity may, of course, be urged in an action for specific 
 performance. But inasmuch as it depends on the general 
 doctrines of the court with regard to each of these particular 
 relations — and questions of this sort are more often agitated 
 in actions to set aside the impugned transaction, than in pro- 
 ceedings for specific performance — it does not appear neces- 
 sary to do more here than allude to the subject generally, (a) 
 
 (v) Frost V. Beavan, 17 Jur., 369. As to (x) Owen v Davies, 1 Ves. Sen., 82. 
 setting aside a contract for the lunacy of a (y) See Seton, 517 ct seq. 
 party, see Neill v. Morley, 9 Ves., 478. (s) See Flanagan v. Great Western Railway 
 
 (iv) Per Lord Hardwicke in Bennet v. Co., L. B. 7 Eq., 116. 
 Vade, 2 Atk., 3-27; Osmond v. Fitzroy, 3 P. (a) As to infancy, see infra, § 441. 
 Wms., 129. See infra, § 380.
 
 ISTON-COlSrCLUSIOlS" OF THE CONTRACT. 131 
 
 CHAPTER II. 
 
 OF THE NOISr- CONCLUSION OF THE CONTRACT. 
 
 § 964. No proceedings in specific performance can, of 
 course, be had unless a contract lias actually been con- 
 cluded, i. e., unless two persons have agreed on the same 
 terms, and mutually signified their assent to them. If what 
 passed between them was but treaty or negotiation, or an 
 expectation of contract, or an arrangement between them of 
 an honorary nature, no specific performance can be had.* 
 
 § 965. The burden of proving this concluded contract is, 
 •of course, on the plaintifi: ; and it must be considered quite 
 indei)endently of the evidence of the contract (whether as 
 affected by statute law or otherwise, (a) It must be admit- 
 ted that the question of the existence of the contract and of 
 its evidence are often mingled in discussion ; but they 
 should be kei^t sei)arate in thought. 
 
 § 966. Wliere there is nothing to throw light upon the 
 existence or non-existence of a contract but some instrument 
 or instruments, the question is really one of construction of 
 the documents in question. 
 
 § 967. Where the contract is embodied in a formal docu- 
 ment simultaneously entered into by both parties, and pur- 
 porting to be a contract, little difficulty can occur as to 
 whether the contract was concluded. But where this is not 
 the case questions have arisen. 
 
 § 968. One question has been whether the instrument in 
 .question was the embodiment of a contract or of some other 
 transaction. 
 
 (1) Is a judge's order made by consent, and directing cer- 
 tain things to be done by the parties to it, a contract to do 
 the things ? It has been said not to be by Lord Hatherley 
 
 ' (a) Rossiter v. MiUer, 3 App. C, 1124, 1151; Chinnock v. Marchioness of Ely, 4 De G. J. 
 AS., 638. 
 
 > Or if a contract be formal and complete, yet, i*" understood by the parties 
 :as a jest, it is nat binding. Armstrong v. McGhee, Addis, 261.
 
 132 FRY ON SPECIFIC PERFORMANCE OF CONTRACTS. 
 
 (wlien a vice chancellor), who, both on that ground and on 
 the nature of the judge's order, refused specific perform- 
 ance. (^/) Tlie opposite view has been taken in some cases 
 at common law, and it has been said that a contract is not 
 tlie less a contract, and subject to the incidents of a contract, 
 because there is superadded the command of a judge. (f)' 
 
 (2) Are instructions for a settlement a contract for a set- 
 tlement, or only instructions for a contract? This was a 
 question on which the House of Lords was in one case much 
 divided, (t?) 
 
 (3) Are articles of association a contract between the com- 
 pany and a third person named in them ? This is a question 
 which, under special circumstances, has been answered in 
 the affirmative. (f) 
 
 (4) Is the recital in a deed evidence of a contract ? — is a 
 question which also has been answered in the affirmative. (/) 
 
 § 269. A much more common question is whether negoti- 
 ations have passed from that state and resulted in actual 
 contract.' If it were only doubtful whether the contract 
 was concluded or negotiations still remained open, the court 
 of chancery used to refuse specific performance, and leave 
 the parties to their common law rights if any. {r/Y 
 
 § 270. A binding contract, enforceable in equity, may be 
 constituted by the proposal of one party and the acceptance 
 of the other. (A) But as the prox)osal has no validity with- 
 
 (6) Thames Ironworks Co. v. Patent Der- (/) Wilson v. Keating, 27 Beav., 121; afTd 
 
 rick Co. ,1. J &H, 93. 4DeG. &J.,5S8 
 
 (C) Wentworth v. Biillen. 9 B. & C, 840; ig) Huddleston v. Bus-cop. ll Vee , 583.591; 
 
 Llevesley V. Gilniore, L. R. IC. P.,570. See, Stratford v. Bosworth, 2 V. & B, 341 ; Skelton 
 
 also, Tatham v. Piatt, 9 Ha., 660. v. Cole, 1 De G. & .J., S87. 
 
 (d) Caton V. Caton, L. R 2 H. T-., 127. {h) The acceptance must be by the other 
 
 (() Touche V. Metropolitan Railway Ware- party. An offer by A. to B. and acceptance 
 
 housing Co., L. R. 6Ch.,671. by (5. constitutes no contract. Meynell v. 
 
 buriees, 3 Sm. & Gil'., 101, 117. 
 
 ' A party wrote to the owner of land inquiring the price. Held, that the 
 reply of the latter stating the price, does not constitute a proposition to sell. 
 Knight V. Cooley, 34 Iowa, 218; Erwin v. Erwin, 25 Ala., 23(5. Construction 
 of the word immediately. Bruuer v. Wheaton, 40 Mo., 863. 
 
 Itnle as to ncaiptance of terms.'\ In order that an acceptance may be binding, 
 it must l)e distindt, unconditional ; it must not vary the terms of the offer, and 
 it mu.st be communicated without unreasonable delay. Thomburry v. Bevill. 
 1 Y. ct C. C. C, 554; Eads v Caroudolet, 42 ]\Io., 113; Bruner v. Wheaton, 46 
 id., 863; Bethel v. Hawkins, 21 La. An., 620; Wilson v. Clements, 3 Mass., 1; 
 Peru V. Tvu'ner, 10 Me., 185; Johnson v. Fisher, 7 Watts, 48; Hazard v. New 
 England :\Iar. Ins. Co., 1 Sumn., 218; Carr v. Duval, 14 Pet., 77; Hartford and 
 New Haven K. R. Co. v. .Tackson, 24 Conn., 514; Solomon v. Webster, 4 Col- 
 orado, 353; Carter v. Shorter, 37 Ala., 253. 
 
 ' Carr v. Duval, 14 Pet., 77.
 
 NON-CONCLUSION OF THE CONTRACT. 133 
 
 out the acceptance, a memorandum of offer differs essenti- 
 ally from a memorandum of agreement. " In the case of an 
 offer, no doubt, the party signing it may at any time before 
 acceptance retract ; but if it be an agreement, thougli signed 
 by one party alone, he cannot retract at his pleasure, but 
 all he can do is to call upon the other party to sign or re- 
 scind the agreement. A memorandum of agreement sup- 
 poses that the two parties have verbally made an actual 
 contract with each other ; and when the terms of such con- 
 tract are reduced into writing and signed, that is sufficient 
 to bind the party signing ; but if the memorandum is of an 
 offer only, that assumes that there has been no actual con- 
 tract between the parties." ' 
 
 § 271. In order that an acceptance may be operative, it 
 must be plain, unequivocal, unconditional and without vari- 
 ance of any sort between it and the proposal, and it must 
 be communicated to the other party, and that without un- 
 reasonable delay, (y) 
 
 § 373. The proposition that the acceptance must be plain, 
 unequivocal, unconditional and without variance, is sup- 
 ported and illustrated by a great variety of decisions. In 
 tlie case of Kennedy v. Lee,(/t) the subject was much dis- 
 cussed ; it was there unsuccessfully argued that the accept- 
 ance introduced a term respecting the good-will of a busi- 
 ness not included in the proposal. 
 
 § 273. The unequivocal character of the acceptance that 
 is requisite is well illustrated by a case in which A. made an 
 
 (i) PerKindersley, V. C.in Warner v. 'Vil- thier, Tiaite fles Oblig., parti, cli. 1, s. l.art 
 
 lington, 3 Drew , 531. See, also, M^vnell v. ],§2. 
 
 Surtt^es (on appeal), 1 .hir. (X s), 737; 3 W (j< Oiieiital rnliiTl Steam Navijrfitinn Co. 
 
 R., 535; Horstall v. G;iriiett, 6 1<1., 387. The (liM.it.eji') v KriiC^^s, 4 De G. F. & I., 191 
 
 distinction is the same b tween a. p'AlicHiiUn {!;) 3 Mer , 441 Si^e, too, 'I'tiornhury v. 
 
 and a contract in the Koinan law. See Po- P>evill, 1 V. & C U. C , 554; Cayley v. Wal- 
 
 pole, 18 VV. H,78-2. 
 
 ' In the case of the Canal Co. v. Railroad Co., 4 Gill ct .J., 1, a contract, 
 valid and binding at law, is defined to be a mutual consent of the parties con- 
 cerned, respecting some property or right that is the object of the stipulation, 
 or something that is to Ije done or forborne; a transaction between two or more 
 persons, in which each party comes under an obligation to thfe other, and each 
 reciprocally acquires a right to whatever is promised or disputed by tlie other; 
 and any words manifesting a eongregatio mentiani, are sutlicient to constitute a 
 contract. But this mutual consent — the congregatio mentium — cannot, of course, 
 be attained without the assent of both parties. Therefore, if A. sign a writing 
 that he will sell B. a house on certain terms, it is a mere proposition, and not 
 an agreement, unless accepted by B. Tucker v. Wood, 12 John., 170. Nor is 
 a paper. Hied in a cause by one party, offering to be bound b}* certain terms, if 
 the verdict should be in his favor, but not accepted by the other party, binding 
 on the party who filed it. Bower v. Blessing, 1 S. & R., 243.
 
 134 FHY ON SPECIFIC PERFORMANCE OF CONTRACTS. 
 
 oifer to B., by letter, to sell a lot of land; B. filed a bill 
 against A., alle.rrinn; a contract in writing for the sale of this 
 estate, and the answer offered to sell the estate ; the decree 
 was in the alternative for a conveyance on the payment of 
 the purchase money into the bank, or in default for the dis- 
 Miissal of the bill ; the money was paid. The question arose 
 between the heirs and devisees of B. as to the time when 
 the contract became binding ; it was held that the bill did 
 not amount to an acceptance so as to bind B. ; for he as 
 l)laintill" might have dismissed his bill ; the decree did not, 
 for it left an election to the plaintiff ; but the payment of 
 the money into the bank did, for that was unequivocal. (Z) 
 In another case, where the plaintiff had made an offer to 
 take a farm, and had referred to certain persons as to his 
 capabilities and capital, and in consequence of this offer the 
 agents of the proposed lessor had, by his direction, prepared 
 and sent to the proposed lessee a lease which they consid- 
 ered to be in pursuance of the proposal ; Kindersley, V. C, 
 held this not to be an acceptance, (m) on the ground that 
 the act Avas ambiguous and conditional — ambiguous, be- 
 cause the lease might have been sent in order to save time, 
 and without any intention of departing from the right of 
 accepting or refusing the offer of the plaintiff, according to 
 the result of his communication with the referees ; and con- 
 ditional, because the sending the draft lease, if an accept- 
 ance at all, was an acceptance upon condition that the 
 defendant accepted the draft lease. The case of Thomas v. 
 Blackman,(7^) before Knight Bruce, Y. C, may also be re- 
 ferred to as illustrating this doctrine. Here there had been 
 a long correspondence, and the vice chancellor held that 
 there never had been, in any part of it, a clear accession on 
 both sides to one and the same set of terms ; and accord- 
 ingly he decreed the dismissal of the bill, unless the plain- 
 tiff accepted the terms of the defendant's original offer, 
 which the jjlaintiff acceded to.' 
 
 {D Gaskarth v. Lord I.owther, 12 Ves., 107. Cf. Horsfall v. Garnett, 6 W. R., 387. 
 (tn Warner v. Willington, 3 Drew., 523. (n) 1 < oil., 301. 
 
 ' The assent must be to the same subject matter, aud in the same sense that 
 is offercfl. Hazard v. New England Mar. Ins. Co., 1 Sumner, 218. And the 
 proposition must be accepted according to its terms; any qualification of, or 
 departure from, them iuvalidates the offer, unless afterwards agreed to by the 
 person making it. Carr v. Duval, 14 Pet., 77. Thus in Peltier v. Collins, 3
 
 NON-CONCLUSION OF THE CONTKACT. 135 
 
 § 274. In illustration of the unconditional nature of the 
 acceptance required, the case of Crossley v. May cock (o) 
 may be referred to. There vendors wrote, in answer to an 
 offer, " which offer we accept, and now hand you two copies 
 of conditions of sale," and inclosed a form of contract con- 
 
 (o) L. R. 18 Eq., 180. See, too, Lewis v. Brass, 2G W. R., 152. 
 
 Wend., 459, it is said that there is no contract, if there be a material difl'erence 
 between the note of the bargain delivered by a broker to a vendee and that de- 
 livered to the vendor. In Corning v. Colt, 5 Wend., 253, where manufacturers 
 in the country sent an order to merchants in the city for a quantity of plough 
 castings, to he forwarded by canal, only a part of which were forwarded, and 
 those by land carriage, by means whereof the expense of transportation was 
 increased; it was held, in an action for the price of the property forwarded, 
 that the jjlaintifls were not entitled to recover without showing an acceptance 
 of the goods by the defendants It is said in Firth v. Lawrence, 1 Paige, 434, 
 that a conditional acceptance of an offer by letter, never assented to by the 
 party making the offer, is not binding upon either party ; and the party having 
 once declined the offer as proposed, cannot, by any subsequent assent, ratify 
 sifch original offer. The rigidity of the rule was displayed in the case of Elia- 
 son V. Henshaw, 4 Wheat., 235. In this case A. offered to purchase of B. two 
 or three hundred barrels of flour, to be delivered at Georgetown by the first 
 water, and to pay for the same a stated price; and, to the letter containing the 
 offer, required an answer by the return of the wagon by which the letter was 
 sent. This wagon was at the time in the service of B., and employed by him 
 in conveying flour from his mill to Harper's Ferry, near which place A. then 
 was. His offer was accepted by B in a letter sent by the first regular mail to 
 Georgetown, and reeeimd by A. at that place ; but no answer was sent to Har- 
 per's Ferry. Held, that this acceptance, communicated at a place dilferent 
 from that indicated by A., imposed no obligation binding upon him. See Glay- 
 maker v. Sawin, 4 Whart., 36t). The principle upon which these cases proceed 
 is, that no person shall be held upon the terms of a contract which he has never 
 made, nor even intended to impose upon himself. And therefore if one party 
 does not accede to a promise as made, the other party is not bound by it. Tut- 
 tle V. Love, 7 John., 470; Bruce v. Pearson, 3 id., 534. And where R. agreed 
 to pay for a quantity of hay, provided L. should pronounce it merchantable, 
 and L. pronounced it "a fair lot, say merchantable, not (piite so good as I ex- 
 pected; the outside of bundles somewhat damaged by the weather." Held, 
 that R. was not bound. Crane v. Roberts, 5 Greenl ,419. Where a contract 
 is made by a broker, and no sale-note is delivered, and the entry by him made 
 in his sale-book varies from the contract as actually concluded, neither party is 
 bound, inasmuch as no note or memorandum of the contract has been reduced 
 to writing. Thus, when a contract is made for a quantity of iron expected 
 from abroad, and the puichaser stipulates for siv vion.tJi.s credit, and ior tiie ar- 
 rival of the iron in a reasonable time, and the broker omits to make an entry of 
 those conditions, the vendors are not bound, although the conditions primarily 
 were for tlie benefit of the purchaser, and he elects to waive them. l^:^y.'« v. 
 Shields 26 Wend., 841; see Hutchinson v. Boker, 5 M. >k W . 535; Brodie v. 
 St. Paul, 1 Ves. , 82« ; Gordon v. Norton, 4 M. & W., 155. But where the parties 
 agree upon the terms of a contract it is binding upon them, though their under- 
 standing of the terms be not precisely the same; as where one party under- 
 stood a particular installment to bear interest, while the other party did not so 
 understand it Neufeille v. Stuart, 1 Hill Ch., 109. But this rule is to be ap- 
 plied in a limited sense; and if there has occurred any error or mistake in reler- 
 ence to the obligations which the contract entails, the case will be otherwise. 
 Thus in the case of the Hartford and New Haven Railroad Company v. Jack- 
 son, 24 Conn , 514, it was said that where an application made by the deteud- 
 ant'to the agent of a railroad company, to know at what juice he would carry 
 50 000 laths to a specified place, the agent inquired how many bundles that
 
 136 I'KY ON SPECIFIC PKRFOKMANCE OF CONTRACTS. 
 
 tainin,^r sundry special sripalations ; and it was held that 
 the acceptance was conditional only. "If/' said Jessel, 
 M. R.,( />) " there is a simple acceptance of an offer to pur- 
 chase/accompanied by a statement that the acceptor desires 
 that the arrangement should be put into some more formal 
 terms, tlie mere reference to such a proposal will not pre- 
 vent the court from enforcing the final agreement so arrived 
 at. Bur if the agreement is made subject to certain condi- 
 tions tiien specified or to be specified by the party making 
 it, or by his solicitor, then, until those conditions are ac- 
 cepted, "there is no final agreement such as the court will 
 enforce.'" 
 
 § 275 AVhere there is any variance between the terms 
 of the proposal and those of the acceptance, no contract 
 arises ; as where A. offered to purchase a house on certain 
 terms, possession to l)e given on 'or before the 25th of 
 July, and B. agreed to the terms, and said he would give 
 possession on the 1st of August. (g) And where A. made 
 the promoters of a railway an offer of a way-leave for the 
 purpose of their railway, which was one for mineral traffic 
 only, and it was subsequently accepted, but for the purpose 
 of constructing a public railway for general traffic, this was 
 held to be such a variation in the subject-matter as pre- 
 vented anj^ contract from arising, (r) 
 
 § 376. The introduction of a term in the acceptance 
 which is not in the proposal is a variance which prevents 
 their constituting a contract. Therefore, where the delend- 
 ant offered certain terms for a lease, and the plaintiff ac- 
 cepted the terms and offered an under-lease, there was held 
 
 (p) L R 18 En , 181. affirmed bv Lorii Cranworth, 1 Jur. (N. S.), 
 
 (9) Koiilli!d(,'« V. Grant. 4 Bing., 6.53 737, 3 \V R , 535, sanctioniug this argument, 
 
 (r) Mcyiiell V Siirieea, 3 Sm. <fc Gif., 101; 
 
 ■would make, anrl a coinpauion of the defendant, to whom the inquiry was re- 
 ferred, replied ')()() : but the a a:eut understood him to say 100, and thereupon 
 jxave the defc^ndanl the price ior carrying 100 bundles, in.stead of 500 bundles, 
 which he agreed to pay; and the railroad company having carried 500 bundles, 
 sued the ilefendant for carrying them at the usual rates, the court held that the 
 jilaint ills were not bnund by 'die transaction. Where letters passing between 
 tenaut.s in comtnon of real estate are mere i)roposals from one to another of 
 Bale, and a sale .-'.ccordingly is made, which is ratilied by the parties by signing 
 deed.s, it is too late to object that tiie terms of the first agreement have not been 
 eomplicd with as agreed. Hunt v. Johnston, 24 Miss. (3 Jones), 50t). As to 
 Ihc distinction between propo.sitions, the acceptance of which amounts tea 
 valid contract, and pro])osals to render a gratuitous kindness, which are not 
 designed to create legal obligations on the pardes. See Erwin v. Erwin, 25 
 Ala., 236.
 
 NON-CONCLUSIOISr OF THE CONTRACT. 1^7 
 
 to be no contract. (5) So where a condition was introduced 
 into the acceptance, it prevented its operating as a con- 
 tract. (^) In another case, where the pUiintiff proposed a 
 contract to the defendant, stipulating, among other things, 
 that a lease should contain all the covenants in the superior 
 lease, and the defendant signed the contract tendered, but 
 with the qualification that there was nothing unusual in 
 such superior lease : a draft of the proposed lease w^as then 
 submitted to the defendant, who made some alterations, 
 and requested the plaintiff's solicitors to adopt them at 
 once, or to refuse the lease : the solicitors sent back the 
 draft, acceding to all the alterations except one as to assign- 
 ing without license ; it was held that at this stage there was 
 no contract, and that the proposed lessee could determine 
 the treaty, {u) And where a proposal was made to take an 
 allotment of railway shares, and a letter was returned ac- 
 cepting the offer, but headed "not transferable," the new 
 term introduced by these words prevented the proposal and 
 acceptance from constituting a contract. (^5) 
 
 § 277. In a case which went to the House of Lords, (^) 
 the court of appeal held that the purchaser's acceptance of 
 a proposal for sale, "subject to the title being approved by 
 our solicitors," did not constitute a contract by reason 
 of the new term ; for all that the simple acceptance could 
 have given here would have been the right to a good title, 
 and what he stipulated for was a title to be approved by 
 particular persons of his own selection. But in the House 
 of Lords, though the decision of the court of appeal was 
 afhrmed (on the ground that no concluded contract had 
 been established), Lord Cairns dissented from that court's 
 view of the effect of the words in question, and said,(^) "I 
 am disposed to look upon the words as meaning nothing 
 more than a guard against its being supposed that the title 
 was to be accepted without investigation, as meaning, in 
 fact, the title must be investigated and approved of in the 
 usual way, which would be by the solicitor of the pur- 
 chaser." 
 
 § "278. But where the proposal leaves a term to be de- 
 
 (.) Hollana V. Evre, 2 ^. & S . 194. (»•') Ouke v. A n.lrew*. 2 Ex.. 2tJ0 
 
 «) Lucalv J.ime; .3 Ha'. 4, 0. (Jf. Wright 4 App. C. 3.1 ; Hudson v. Buc . 7 ch. D.. 683. 
 V &t. George, 12 Ir. Ch. K.. 226. (a;) 4 App. C, 322.
 
 188 fi:y on si'K( iiic j'ehfokmance of contracts. 
 
 <-ided by the acceptance, the decision of this will not, of 
 course, amount to the introduction of a new term ; as, e. g., 
 where the proposal has reference to such a day as shall 
 be named by tlie party to whom it is made, and he in ac- 
 cepting names the day.Cy) And a contract by proposal and 
 acceptance may, like any other, leave the price or any other 
 term to be ascertained in a way agreed on.(^) 
 
 § 279. So, again, it seems clear that a variation which is 
 purely nugatory will not affect the contract ; {a) nor will the 
 introduction into the acceptance of what is not matter of 
 contract : as, e. g.. the words, "we hope to give you posses- 
 sion at half-quarter day," which were held to be a mere ex- 
 pression of hope, and so not to introduce a new term into 
 the acceptance. (J) ' 
 
 § 280. Xor will the court consider a new term to be in- 
 troduced by the circumstance that the acceptance proceeds 
 to treat of the way in which the contract is to be carried 
 into execution ; as, for instance, by referring to a formal 
 contract that was to be drawn, (c) • 
 
 § 281. Nor will a new term be held to be introduced by 
 tlie mere grant of some indulgence by the acceptor to the 
 proposer ; as where the proposal involved the payment on 
 a particular day, and the acceptance added that, if the pay- 
 ment was not so made, interest at ten per cent must also be 
 paid.(<^) It would seem that this could only apply where 
 the time of payment would be of the essence of the con- 
 tract, as in any other case it would seem that such a stipu- 
 lation was not an indulgence. 
 
 (y) Boys v. Ayerst, 6 Ma'l., 316. (6) Cllve v. Beaumont, 1 De G. & Sm., 397. 
 
 (z) Walker v. Eastern Counties Railway See, also, Johnson v. King, 2 Blng., 270. 
 
 Co., 6 Ha., 594. (c) Gibbins v. North Eastern Metropolitan 
 
 (a) Lucas v. .James, 3 Ha , 410, 421 Cf Aevlum District, 11 Beav , 1; Skinner v. 
 
 infra, §610, and per Lord Colonsay in Pro- M'Douall, 2 L)e G & Sm., 26.t; Bonnewell v. 
 
 prletors. etc , of English and Foreign Credit Jenkins, 8 Ch. D , 70; Ross-iter v. Miller, 3 
 
 Co. Y. Arduin, L. R. 5 H. L., 64, 81-2. App. C, 1124; and see infra, § 490. 
 
 (d) Harris' Case, L,. R. 7 Ch., 587. 
 
 ' Thus, A. wishing to purchase certain lands, wrote to the owner, B., inquir- 
 ing his terms l)y the acre, and stating the payments which it would be con- 
 venient for him to make, among which was one of $1,000 immediately. B. 
 answered, stating his price, but that he wished A. to take the responsibility of 
 establishing the boundaries, and acceded to the terms of payment offered, and 
 requiring A.'s answer as soon as possible A. replied that he would take the 
 land on the terms proposed, and would have the lines ascertained; though his 
 letter also expressed a wish that the agent of B. would attend to the fixing of 
 the line on one side, on account of feelings of delicacy on A.'s part, in respect 
 to the conterminous tenants on that side, but not waiving or abandoning his 
 acceptance of the offer. Held, that the contract of sale was complete. Fitz- 
 hugh V. Jones, Munf., 83.
 
 NO^'-CONCLUSION OF THE CONTRACT. 139 
 
 § 282. The acceptance must be communicated in some 
 - way by the accepting party to the other ; a mere mental ac- 
 ceptance Avill not do. "The plea is not good,'' said Brian, 
 C. J., "without showing that he certified the other of his 
 pleasure, for it is common learning that the intent of a man 
 is not triable — for even the devil does not know the intent 
 of a man. (e) 
 
 § 283. The acceptance, moreover, must be without un- 
 reasonable delay. "When I offer anything to a person," 
 said Lord Cran worth, (/') "what I mean is, I will do that 
 if you choose to assent to it ; meaning, although, it is not 
 so expressed, if you choose to assent to it within a reasona- 
 ble time." This principle is illustrated by the case of Wil- 
 liams V. William s,(^) of which the circumstances were, that 
 in 1817 A. wrote to B. that he had credited B.'s* account 
 with £220 in consideration of a contract by B. to convey 
 certain houses. The abstract was delivered ; but there was 
 no acceptance in writing by B., who, however, five years 
 afterwards filed his bill against A. for specific performance. 
 It appeareil' that in 1827 A. had abandoned the treaty, and 
 that in 1829 botli parties considered it as broken off, but 
 nevertheless that B. had, in the meantime, had the benefit 
 of the credit of £220. The court dismissed the bill on the 
 ground that an offer to convert it into a contract must be 
 accepted and acted on within a reasonable space of time.' 
 
 (e) Year Book, 17 Edw. IV, T. Pasch., 2, (/) In Meynell v. Surtees, 1 Jur. (N. S.), 
 referred to by Lc^d Blackburn in Brogfien v. 737; 3 W. R., .')35 
 Metropolitan Railway Co., 2 A pp. C, 692. (g) 17 Beav., 213. 
 
 ' Acceptance within a reasonable time is as definite a rule as can well be laid 
 down. Beckweth v. Cheever, 1 Foster, 41: Peru v. Turner, 1 Fairf.. 185. As 
 to what constitutes reasonable time must be determined by the circumstances 
 of each case; and it has been said that "if the party addressed goes away and 
 returns the next week, or the next month, and says that he will accept the 
 proposition, he is too late, unless the proposer assents in his turn. So it would 
 be, probably, if he came the next day or the next hour; or, perhaps, if he went 
 away at all and returned." 1 Pars, on Contr. . 404. In the case of Peru v. 
 Turner, 1 Fairf., IHo, the town of P., by vote, agreed to accept of a pauper, as 
 an inhabitant, on condition that the town of T. would relinquish all demands 
 against the former town. Nearly six years afterward the town of T. accepted 
 the proposition, and tendered to the town of P. a note, that being the only de- 
 mand it held against that town. This was held to be an unreasonable delay, 
 and that the tender was wholly inoperative to revive the proposal and to render 
 it binding on tlie town of P. And, again, in Wilson v. Clements, 8 Mass., 1, 
 A. and B. having an open account, an adjustment takes place between A. and 
 an agent of B duly authorized, and the balance found due is paid over to the 
 agent B. expresses dissatisfaction, whereupon A. 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 honored." Two years afterwards,
 
 140 FRY OX SPECIFIC PKHFOIIMANCE OF CONTRACTS. 
 
 In another case A. applied to a company for shares on the 
 8tli of .hine, and an allotment was made on the following 
 23d of November, and it was held that the acceptance of 
 the proposal to take shares came too late to bind the pro- 
 poser. (Zt) 
 
 § 284. The proposal, before conversion into a contract 
 by acceptance, may be determined in two ways— by the 
 withdrawal of the person making the offer, or by the refusal 
 of tiie person to whom it is made. 
 
 jj Tj^rt. First, it may be determined by the proposer by 
 witlidrawal before acceptance, (/) because the proposal by 
 itself creates no mutuality and no obligation ; so that where 
 a person made an offer for a farm, which the owner intended 
 to accept, but did not do so bindingly, and the proposer 
 subsequently withdrew his offer, it was held that he could 
 do so, and that there was no contract. (,/) And so. also, 
 wiiere A., by writing, applied to a company for shares, 
 "which he thereby accej^ted" and paid the deposit, but 
 before allotment withdrew his application and unsuccess- 
 fully required the return of his deposit, and rni allotment 
 was made to him, he was held not to be a contributory. (>^:) 
 And where a railway company gave notice to treat for part 
 of a manufactory, which w^as met by a counter-notice re- 
 quiring tliem to take the whole, and the company then 
 gave notice of their intention to apply to the board of trade 
 for the appointment of a surveyor to deteiniine the value of 
 the premises required by the notice to treat and of the 
 further lands which the owner could lawfuUj^ require and 
 
 (h) Ramsgale Victoria Hotr-l Co (limittd) auction to -withdraw fne property at any 
 
 V. Moiiufl>re, I>. R 1 Ex., 100. lime bel'ore trie limnmer f.ills) Warlow v. 
 
 (i) Tiiornhury v Revill, 1 Y. & C C. C ,554. Harrison, 28 L J Q. B . 18. 
 
 See, also, Mi-viiell v. Snrtees, I Jur. (N. S.), ( /) W aruer v. Wiiiinaton. 3 Drew., 523; cf. 
 
 737; 3 VV. K , 535; Horsfall v. Gamett, 6 id., Ru'mmeua v. Robins, 4 De G. J. & S., 88 
 
 387; and cf. (a> to the right of a vendor at an (k) Ex parte Grahaiu, 3i) L J. Bank., 42. 
 
 B. Ix'iiii,'' pressed by a creditor, draws a bill on A. iu 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 bj' actual sale of a large 
 part of tiiem 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 con- 
 signor. In the case of Mactier v. Frith, 6 Wend., 103, it is said that a willing- 
 ness 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 author, then until 
 it is expressly revoked or countervailed by a contrar}- presumption. But these 
 remarks, though applicable to the case then under ccmsideration, it seems, are 
 evidently not intended to be construed in their broadest interpretation.
 
 I 
 
 NON-CONCLUSION OF THE CONTRACT. 141 
 
 had required the company to take ; it was held that the 
 company might still withdraw their notice to treat. (Z) 
 
 § 286. This right to retract is not affected by the fact 
 that the offer itself specifies a time within which the accept- 
 ance is to be made ; so that where A. offered to sell a house 
 to B., and gave B. six weeks for a definite answer, A. was 
 held entitled to withdraw his offer before the expiration of 
 that period, (m)' 
 
 § 287. Further, it is not necessary to the effectual deter- 
 mination of a proposal by withdrawal before acceptance 
 that any formal or express notice of withdrawal or retracta- 
 tion should be given to the person to whom the proposal was 
 niade.(yi) "It may well be that the one man is bound in 
 some way or other to let the other man know that his mind 
 with regard to the offer has been changed ;"(o) but as soon 
 as the person to whom the offer was made in fact has this 
 knowledge, as, for instance, by knowing that the proposer 
 has sold the property to a third person, he will be taken to 
 have sufficient notice of withdraAval, and he cannot after- 
 wards, by accepting the offer, make a binding con- 
 tract, (o) 
 
 § 288. Where however the communication is not a mere 
 offer to contract but a notice given in pursuance of a right 
 of pre-emption, the notice may, according to the terms of 
 the instrument giving this pre-emption, be incapable of 
 being withdrawn. (/?) 
 
 § 28». In the second place, the refusal of the person 
 
 (0 Grierson V. Cheshire Lines' Conimitice, (o) Prr James, L J.. 2 Ch D , 472. Cf. 
 
 L 11. i9 Eq , 83. Stevenson v. McLean, ^ Q B. D.,d4b; ouu- 
 
 \?n) Uouiledgev. Grant,4Bing.,653; Cooke lamore v. Peacocke, 12 Ir. Ch. R., 300. 
 
 V Oxley, 3 T. R.. 653. Cf. Dickenson v. (;>) See Uomlray v. FothergiU, L. K. 1 i!-q-, 
 
 Dodds, 2Ch D.,463. 567. 
 
 (n) Dickenson v. Dodds, 2 Ch. D., 463, 474. 
 
 1 If an offer is made, and instantly recalled, before acceptance, "although 
 the other party was prepared to accept it the next, the offer is effectually with- 
 drawn.' Pars. Coutr., 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 ab- 
 sentes 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 revoked. 
 So the revocation in law is made when it is received, and not before. If the 
 party to whom the offer is made accepts and acts on the offer, the engagement 
 willbe binding on both parties, though, before it is accepted, another letter or 
 messenger may have been dispatched to revoke it.
 
 142 FllV ON SPKiaKU: TKUFOUMANCE OP^ COXTRACTS. 
 
 to wlioni the proposal is made puts an end to it ; and it will 
 not be revived by a subsequent tender of acceptance. (^)' 
 
 i; 290. As it is competent to the i)roposer to recall his 
 proposal at any time before acceptance, so also he 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, offer 
 to accept the terms proposed with any variation or addition, 
 it follows that each party may continue to add fresh stipu- 
 lations to the proposed contract, until the terms proposed 
 by one side have been definitely accepted by the other, (r) 
 Therefore, where the owner of an estate made a proposal 
 
 («7> Hyde V. Wrench, 3 Beav , 334. The probably cannot be maintained on this point 
 
 decifiion in Hodgson v. Hutchenson, 5 Vin., (?) Honeyman v. Marryat, 21 Keav., 14, 
 
 Abr., 522, pi. 34, which inferred an accept- affirmed in L>. P. 6 H L. C , 112. Distinguish 
 
 ance from acts after an explicit refusal, Jolliffe v. Blumberg, IS W. R , 784. 
 
 ' In the case of Boston, and Maine Railroad v. Bartleit, 3 Cush , 224, there 
 was a proposition to sell land at a stated price, the answer to be given in thirty 
 da3's 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 acceptance. 
 But if unrevoked at the time of acceptance, it become a valid and binding con- 
 tract. 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 April the city voted to ap- 
 propriate a certain sum for that year, to be paid to the memorialists in full for 
 all expenses and damages when the street should be completed In June, two 
 of tlie 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, etc. In October, the city passed an order to lay otit 
 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 accordingly made complaint. It 
 was held that the offer was a continuing one for the year, if not revoked or re- 
 jected; that the vote of April was not a rejection, but a distinct proposition; 
 and that, by passing the order the cit}' accepted the offer as explained by the 
 complainants, and tiiat it then became a binding contract, 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, tlierefore, 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 hap- 
 pening of the event, imtil the decision is made. Mactier v. Frith, 6 Wend., 
 103. In reference to an alleged want of consideration, in contracts of this kind, 
 Fletcher, J., in the case of the Boston and Maine Railroad v. B-artlett, 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 offer 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 instan- 
 taneous assent is given to the proposition offered. Pars. Contr., vol. 1, p. 406. 
 Wright V. Bigg, 21 E. L. &; E., 5!)1; Frith v. Lawrence, 1 Paige, 434. Notice 
 of refusal to accept is not necessary : it is sufficient 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.
 
 NON-CONCLUSION OF THE CONTRACT. 143 
 
 requiring amongst other things the payment of £1,500 by 
 way of deposit, and the jDiirchaser objected to it, and before 
 he accepted the terms, the owner required it to be paid and 
 the contract to be signed before a given day, or the treaty 
 to be at an end, and this was not complied with, but a sub- 
 sequent offer was made to sign the contract and pay the 
 deposit ; the court held that there was no contract. (.v)' 
 
 § 291. The Statute of Frauds requiring that the memo- 
 randum of agreement shall be signed by the party to be 
 charged therewith and not requiring the signature of both 
 parties, it follows that where there is a writing under the 
 hand of the defendant expressing the contract, there is no 
 need to prove an acceptance in writing by the plaintiff of 
 the terms of that contract, and the institution of the action 
 is a sufficient acceptance. (^) If that writing leaves any term 
 open to the election of the other party, the acceptance must, 
 of course, be in writing to satisfy the statute. (?^)' 
 
 § 293. But the cases have gone further, and it is now 
 w^ell settled that where the writing is a memorandum expres- 
 sing not a contract but a mere proposal, yet there the 
 acceptance of this proposal (though it seems essential to 
 convert the proposal into a contract), need not be in writing. 
 This was so decided by Kindersley, V. C, in a case where 
 he observed on the want of previous authority distinctly to 
 establish the point, («) and his decision was subsequently 
 followed by the courts of exchequer and exchequer cham- 
 
 (s) S C (") I'J- 
 
 (t) Boys T. Ayerst, 6 Mad., 316. l») Warner v. Willington, 3 Drew , 52a. 
 
 1 See Foster v. Boston, 22 Pick., 33. 
 
 5 A writiug signed by tlie party to he charged is sufficient within the statute 
 of frauds. Hence, where the oHer embraces the whole of the iiroposcil agree- 
 ment, so that a single assent only is required, a parol acceptance may be all 
 that is needed to bind the party who makes the oiler, ^^arner v. \\ illinglou. 
 3 Drew, 523: Coleman v. Upcot. 5 Viu. Abr., 527: PI., 17; Palmer v beott. 1 
 K 6c M., 391; contra, Lane v. McLaughlin, 14 Minn., 72. A party made an 
 offer by letter, which was verbally rejected. Held, that the writer was released 
 from his oiler, unless he consent to renew the negotiation. Miel held C anal «. o. 
 V Sheffield li. R. Co., 3 K. R. Cas., 121. Where a party mentally concludes to 
 accept an olTer, but does nothing to indicate such acceptance— held, there \yas 
 no binding contract. Firth v. Lawrence, 1 Paige's Ch., 434; White v. CorUss, 
 40 N. Y., 467. 
 
 Teleqram 1 An offer maybe made and;accepted by telegraph that will be bind- 
 ing on both parties. Duble v. Batts, 38 Texas, 312; Weils v. 3Iilwaukee K. R. 
 Co., 30 Wis., 605. 
 
 ►
 
 144 FRY ON srECIFIC PEUFORMANCK OF CONTRACTS. 
 
 her.{w) In tlie old case of Coleman v. Upcot,(^) where 
 there was lirst an acceptance by the plaintiff by parol, and 
 subsequently a subscription by the plaintiff, the parol ac- 
 ceptance ai)pears to have been the ground of the decision 
 tliat there wns a binding contract. 
 
 § 293. When it has been once established that the ac- 
 ceptance need not be in writing, it, of course, follows that 
 it may be by acts as well as wovds.iy) Thus, for example, 
 where an uncle of a young man sent proposals to the friends 
 of a lady, to which no answer was returned, but the young 
 man was admitted as a suitor, and the marriage ensued, it 
 was held by Lord Nottingham to amount to a complete con- 
 tract, which ought to be performed on all sides. (^) It is a 
 matter of every day occurrence to infer assent from acts as 
 well as from words.' 
 
 § 294. Of course no action can be brought against any 
 one on a parol acceptance of a proposal. 
 
 § 295. In contracts constituted by proposal and accept- 
 ance, it is obvious that the question may arise, at what time 
 the treaty was converted into a contract. («?) The contract 
 is X)erfected by the posting of a letter declaring the accept- 
 ance, because thereby the acceptor has done all that is 
 requisite on his part, and is not answerable for the casual- 
 ties of the ]30st-ofRce.(6) Hence it follows that the contract 
 dates from the posting, and not from the receipt of the letter 
 of acceptance, (c) The current of authorities which estab- 
 lish these propositions was somewhat interrupted by two 
 cases. One was that of The British and American Telegraph 
 Co. (limited) v. Colson,(fZ) where the acceptance having 
 never been received by the proposer it was held that there 
 was no contract, and it was laid down that the contract is 
 not completed till the acceptance is delivered to or brought 
 to the Ivnowledge of the proposer, unless this happen from 
 
 (w) Smith V. Neale,2 C. B. (X. S.),67; Reuss (a) Cf. on this point, Dickenson v. Dodds, 
 V. Picksley, L. R. 1 Ex., 342. See, also, 2 (;h. D, 4G3; supra, § 287. 
 Mozley v. l inkier, 1 C. M. & R , 692; Liver- (b) Dunlop v. Higgins, 1 H. L C.,381; Dun- 
 pool Horough Biink v. Eccles, 4 H. & N., 139. can v. Topham, 8 B., 2i5: Adams v. Lind- 
 
 (X) 5 Vin. .\br., 527, pi. 17; cf. Palmer v. sell, 1 H & Al., 681; Stocken v. Collin, 7 M. 
 
 Scott, 1 R & My., 391. & W., 51.5; Hams' Ca6e, L R. 7 Ch., 587. 
 
 (y) Williams v. Williams, L. R. 2 Ch., 294. (c) Potter v Sanders,6 Ha., 1; Byrne v. Van 
 
 (2) Parker v. Serjeant, Fluch, 146. Tiendoven, 5 C. P. D , 344. 
 
 (d) L. R. 6 Ex., 108. 
 
 ' Parol contract fuUj/ performed.] A parol contract for the exchange of lands, 
 was clearly proved, and fully performed by the plaintiflf. Held, that specific 
 performance would be decreed. Armes v. Bigelow, 8 Mc Arthur (D. C), 442.
 
 NOisr-cois^CLUsioisr or the contract. 145 
 
 liis own act or default. In the other case,(6) Malins, V. C, 
 adopted the same view. But the authority of these cases 
 is much shaken by the observations subsequently made on 
 the former of them by James and Mellish, L. JJ.,(/) and 
 by the expression of change of oiDinion by the learned vice 
 chancellor, {g) 
 
 § 296. In case of there being an agent for the proposer, 
 the communication of the acceptance to him comiDletes the 
 contract, though the agent may fail to make known the ac- 
 ceptance to his principal, {hy 
 
 (e) Townsend's Case, L. R. 13 Eq., 148. {g) Wall's Case, L. R. 15 Eq , 18. 
 
 (/) Harris' Case, L. R. 7 Ch., 687. (/») Wright v. Bigg, 15 Beav., 592. 
 
 ' An example of the full extent of this doctrine is afforded in Vassar v. 
 Camp, 1 Kern. (N Y.), 441; the principal of which is, without doubt, the law 
 of the State of New York. A. proposed, by mail, a contract with B., the 
 parties being distant from each other. B , accepting the contract, deposited 
 his acceptance in the post-office, addressed, and to be forwarded to A. A. 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 sub- 
 ject, and one which has, in a great measure, influenced the more recent de- 
 cisions 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 delay 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, saying 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, notwith- 
 standing that the letters of the 25th and 28th of March did not reach their des- 
 tination until after the death of the party accepting, which happened 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, Pennsyl- 
 vania, Georgia, Kentucky and Alabama, the courts have followed the decision 
 of Mactier v. Frith, and the English case of Adams v. Lindsell ; see Avenll v. 
 Hedge, 12 Conn., 424; Beckwith v. Cheever, 1 Foster, 41; Hamilton v, Lycom- 
 ing Ins. Co., 5 Barr, 339; Levy v. Coke, 4 Geo., 1; Chiles v. Nelson, 7 Dana, 
 281- Falls V. Gaither, 9 Porter, 605. In Tennessee the rule is the reverse. 
 Gillespie V. Edmunston, 11 Humph., 553; as it is likewise in Massachusetts. 
 McCullough v. Eagle Ins. Co., 1 Pick., 278. The variance between the law of 
 the latter State and that of the Supreme Court of the United States is best 
 illustrated by a comparison of the case of Tayloe v. Merchants' Fire Ins. Co., 
 decided in that court, and the case of Thayer v. Middlesex Mutual Fire Ins. 
 Co., found in 10 Pick., 326. In the former case, it was held, that m a corres- 
 pondence to effect the insurance of a house, when the insurance company 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 havmg 
 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 15th of 
 January, an application was made on behalf of the plaintiflf, who lived at Hop- 
 kinton, to the defendants, an insurance company at Concord, for insurance 
 upon the plaintiff's buildings. The defendants stated the terms on which they 
 10
 
 146 FRY ON SPECIFIC PERFORMANCE OF CONTRACTS. 
 
 § «97. One species of contract by proposal and accept- 
 ance is constituted by a promise or representation made by 
 one person, and acts done by another person on the faith of 
 such promise or representation. "A representation," said 
 Lord Cottenliam,(/) "made by one party for the purpose of 
 inthiencing the conduct of the other party, and acted on by 
 him, will in general be sufficient to entitle him to the assist- 
 ance of this court for the purpose of realizing such repre- 
 sentation." 
 
 § 298. 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 a then existing fact, which repre- 
 sentation is not true, has been made by a person who knows 
 it to be untrue, or does not know it to be true,(y) 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 representation will not be allowed by 
 the court afterwards to turn round and deny the alleged 
 fact. "It shall be," said Lord Mansfield, C. J.,(^) " ^s rep- 
 resented to be." Thus, for example, where one person 
 represented to another, on a treaty for marriage with his 
 
 (i) In Hammersley V. De Biel, 12 01. & Fin , (j) Per Grant, M. R., in Ainslie v. Medly- 
 
 62, n.; cl". Ayliffe v. Tracey, 2 P. Wms., 64, cott, 9 Ves , 21. 
 
 which shows that where the act was not done (^•) In Monteflori v. Montefiori, 1 Wm. 
 
 in reliance on the representation, no contract Black., 364. 
 arises. 
 
 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 
 being returned to the defendants by mail, a policy bearing the same date was 
 to be forwarded to the plaintiff. The plaintiff's agent, who was 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 3d 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 signed being in the hands of his agent, and were not 
 receivable until after the buildings had been destroyed. The cases may not, 
 perhaps, be directly opposed 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 knowledge of such occurrence is not known at the time to both 
 parties. Mactier v. Frith, G Wend. , 103. But this assent must, under all cir- 
 cumstances, 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, i.< of no effect. Frith v. Lawrence, 1 Paige, 434.
 
 NON-CONCLUSION OF THE CONTRACT. 147 
 
 daughter, that a certain demand was not existing, he was 
 afterwards restrained by the court from iDroceeding to re- 
 cover the demand ;(Z) and where 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 fact only 
 entitled to about half that amount, the balance was recov- 
 ered from the father's estate. (???-) But in these cases, the 
 court acts merely on the principle of preventing fraud, and 
 not at all on contract •,{n) and they, therefore, do not prop- 
 erly come in for discussion here. 
 
 § 299. But with regard to representations of something 
 future, and within the power of the party making the state- 
 ment, the case is different ; for such a representation, made 
 for a particular purpose by one person, and followed by 
 conduct in pursuance of it by the other, constitutes a true 
 and proper contract. "There is no middle term," said 
 Lord Cranworth,(t)) " no th'tium quid between a representa- 
 tion so made to be effective for such a puri^ose and a con- 
 tract ; they are identical." In one case an uncle represented 
 that he would buy a warehouse for his nephew, and at the 
 uncle's instance the nephew entered into a binding contract 
 to purchase the warehouse ; it was there held that the 
 imcle's estate was bound to find the purchase money. (^) 
 
 § 300. In order to enable the court to give relief on the 
 ground of contract to a person who has 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 declining to enter into a settlement, ad- 
 ded that he should allow his daughter the interest of £2,000, 
 and that if she married he migJit bind himself to do it, and 
 pay the principal at his decease, it was held not to be an 
 absolute contract ;($-) and so where the father of an intended 
 husband made only a promise to recognize his son in com- 
 mon with the rest of his family, but the promise was loose 
 
 IJ) Neville v. Wilkinson, 1 Bro. 0. C, 543. (n) Per Lord Cranworth, L. J., in Money- 
 See, also, Gale v Lindo, 1 Vern., 475; Scott v. Jorden, 2 De G. M. & G., 332. See, too, 
 V. Scott, 1 Cox, 366; and at law, Monteflori v. Alderson v. Mad(Jison, 5 Ex. D., where Ste- 
 Montefiori, 1 VVm. Black., 363; Pickard v. plien, J., lucidly classified the different kinds 
 Sears, 6 A. & E., 469; Gregg v. Wells, 10 A. of false representations. 
 & E., 90; Freeman v. Cooke, 2 Ex., 654; How- (o) In Maunsell v. White, 4 H. L. C, 1056. 
 ard V. Hudson, 2 El. & Bl., 1 ; Foster v. Men- (;;) Skidmore v. Bradford, L. K. 8 Eq., 134; 
 tor Life Assurance Co., 3 id., 48. cf. Ridley v. Ridley, 34 Beav., 478. 
 
 (m) Bold V. Hutchinson, 20 Beav., 250; (q) Randall v. Morgan, 12 Ves., 67. See 
 
 affirmed 5 De G. M. & G., 558, on different the observations on this case of Lord St. 
 
 grounds. See, also, Jameson v. Stein, 21 Leonards in Mounsell v. White, IJon. & L., 
 
 Beav., 5. 567.
 
 148 FRY ON- SPECIFIC PERFORMANCE OF CONTRACTS. 
 
 and vague, and defined no sum, Stuart, V. C, dismissed a 
 bill filed by the son, but under the circumstances directed 
 the costs to be paid out of the father s estate, (r) But, on the 
 other hand, where on the treaty for a marriage the father of 
 the intended Avife wrote to the intended husband, "At my 
 (\ecease she (the intended wife) shall be entitled to her share 
 in whatever property I may die possessed of," Lord Rom- 
 illy, M. R., held that this amounted to a contract binding 
 on the father and his estate, and was not too vague to be 
 enforced. {s) ' ' When, ' ' said his lordship, {t)''a man makes 
 a solemn engagement upon an important occasion, such as 
 the marriage of his daughter, he is bound by the promise he 
 then makes. If he induce a person to act upon a particular 
 promise with a particular view which affects the interests in 
 life of his own children and of the persons who become 
 united to them, this court will not permit him afterwards to 
 forego his own words, and say that he was not bound by 
 what he then promised. It is upon these principles that the 
 court has acted in aU such cases ; it exercises its jurisdiction 
 for the enforcement of the truth, and makes a man' s acts 
 square with his words, by compelling him to perform what 
 he has undertaken." 
 
 § 301. Where the representation is merely of what the 
 person intends to do, or the promise is one for the perform- 
 ance of which the person making it refuses to contract, and 
 insists that the recipient shall rely on his honor, the engage- 
 ment is of a merely honorary nature, and, therefore, not 
 enforceable by the court. (2^) In one case the guardians of 
 a young lady, who was a minor, objected to her marriage 
 until a suitable settlement should be made on behalf of her 
 intended husband ; his uncle, from whom he had expecta- 
 tions, having been previously consulted on the matter, was 
 informed of this resolution ; in reply to which he wrote to 
 his nephew, " My sentiments respecting you continue un- 
 alterable ; however, I shall never settle any part of my prop- 
 erty 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 Tipj)erary 
 
 (r) Kay v. Crook, 3 Sm. & G., 407. (m) Cf. Lord Walpole v. Lord Or ford, 3 
 
 (») Laver v. Fielder, 32 Beav., 1. See, too, Ves., 402; Infra, § 571. See, too, per Stephen, 
 
 Coverdale v. Eastwood, L. K. 15 Eq., 121. J., In Alderson v. Maddison, 5 Ex. D., 296, 
 
 (0 32 Beav, 12. 301.
 
 NON-CONCLUSION OF THE CONTRACT. 149 
 
 estate will come to you at my death, unless some unforeseen 
 occurrence should take place." The letter further alleged 
 that, as he had never settled anything 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 i^roperty, and that, therefore, 
 the letter could not be treated as a contract. (■») 
 
 § 303. The same principle governed the decision of the 
 case of Money v. Jorden.(w;) 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 l)eing re- 
 quested 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 of the court by 
 injunction. The representations in question Avere held 
 to be binding by Lord Romilly, M. E., in the first instance,' 
 by Knight Bruce, L. J., on appeal, and by Lord St. Leon- 
 ards in the House of Lords, whilst the contrary was ulti- 
 mately 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 differed as to the effect of a representation 
 of intention, the latter holding such to be binding, and the 
 former not.(a;) 
 
 § 303. On the same principle, 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 agreement as if it were in writing 
 and duly executed, the court refused to interfere, as the en- 
 gagement was merely honorary. (y) And, again, where let- 
 ters 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 
 
 (V) Maunsell v. White, 1 Jon. & L., 530; Cross v. Sprlgg.t! Ha , 6:>3 ; I.aver v. KJehler. 
 
 affirmed 4 H. L. C. 1039. 32 Beav.. 1 ; Covenlalo v. Eiistwooil, L R. 15 
 
 (to) 15 Beav., 372; 2 De G. M. & G., 318; 5 Eq.. 121 ; Loffus v. Maw, 3 Giff., 5'.f2, and 
 
 HLC,185 Infra. §§311. 312 
 
 (a;) With regard to the force of an expres- (j/> Viscountess Montacute v. Maxwell, 1 
 
 elon of intention, see, besides tlie cases above P. Wms., 618. 
 stated, Norton v. Wood, 1 K. & My., 178;
 
 150 FKY ON SPECIFIC PERFORMANCE OF CONTRACTS. 
 
 him in regard to renewing his lease, this assurance was dis- 
 criminated irom a matter of contract, and was not enforced 
 by the court. (2) ^ 
 
 § 30-1. The circumstances of the case of Morehouse v. 
 Colvin {a) \vBve these : A testator who liad, by his will, be- 
 queathed £12,500 to his daughter, wrote a letter to an old 
 friend of his in India, to whom the young lady was con- 
 signed, and therein stated that, in case of her marrying 
 with his approbation, her husband should have £2,000 on 
 the marriage, and continued, ' ' nor will that be all : she is 
 and shall be noticed in my will ; but to what further amount 
 I cannot precisely say, owing to 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 communicated to the in- 
 tended husband ; the testator revoked his will, and made 
 another, omitting the legacy, and giving his daughter a 
 residuary and contingent interest; Lord Romilly, M. R., 
 and afterwards the court of appeal in chancery, held that 
 there was no contract which could be enforced. 
 
 § 305. Where, subsequently to representations of the 
 sort which we have been considering, a settlement has been 
 executed making a ^jrovision but taking no notice of the 
 subject of the representations, a presumption arises that 
 the settlement contains the whole contract, and this, if not 
 rebutted, is, of course, a bar to any relief on the repre- 
 sentations. (Z^) 
 
 § 306. The same result more clearly follows where not 
 only is there a settlement which is silent as to the promise, 
 but where it appears that the marriage was determined on 
 long before the promise. There it is evident that the prom- 
 ise did not induce the marriage, (c) 
 
 § 307. 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. 
 
 § 308. 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 representa- 
 tions — a class of cases in which the court is inclined to 
 
 (s) Price v. Assheton, 1 Y. & C. Ex., 441. Sands v. Soden, 31 L. J. Ch., 870; Re Bad- 
 
 («) 15 Beav., 341. cock, 29 W. R., 278. 
 
 (b) Loxley v. Heath, 1 De G. F. & J., 489; (cj Goldicutt v. Townsend, 28 Beav., 445.
 
 NON-COXCLUSION OF THE CONTRACT. 151 
 
 attacli more than ordinary weight to the language of the 
 one party, when it is calculated to convey a false impres- 
 sion to the other. (fZ) 
 
 § 309. 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, 
 for which purpose marriage alone is, from the words of the 
 Statute of Frauds, not sufficient. The cases on part per- 
 formance in connection with such contracts, (e) and also of 
 marriage in fraud of a parol contract, (/) are represectively 
 considered elsewhere. 
 
 § 310. The x)rinciple of the cases now under discussion 
 is established by several old decisions, to which it will be 
 sufficient to refer (r/) before considering the more recent 
 cases. 
 
 § 311. In Luders v. Anstey,(^) a husband, before mar- 
 riage, wrote a letter proposing a settlement of the lady's 
 fortune, securing certain benefits to the children of the 
 lady's first marriage. Shortly afterwards the marriage 
 took place, and Lord Loughborough held that the husband 
 jwas bound by the letter, though bonds to execute a settle- 
 ment had subsequently been entered into, also securing 
 benefits, but different ones, to the same children. "There 
 is no locus poenitentice,'' said his Lordship, "in this case ; 
 and I should require a positive distinct dissent ; and that 
 could not be evidenced by anything but an actual settle- 
 ment before marriage, varying from that. In Saunders v. 
 Cramer, (/) a paper signed by a lady, expressing her inten- 
 tion of leaving her granddaughter a certain sum/ to be se- 
 cured by a bond, which offer was to be, and was, in fact, 
 communicated to the intended husband of the young lady, 
 and was followed by a marriage, was held a binding pro- 
 posal. The mention of the bond went to show that it was 
 intended to be binding on the party making it. 
 
 § 312. In De Beil v. Thompson, (,;) in written proposals 
 made on the marriage treaty the father expressed that he 
 "intended to leave his daughter a further sum of £'10,000 
 
 (d) Per Lord St. Leonards in Maunsell v. ford v. Fotherley. 2 Id., 32-2; Ilalfpeniiy v. 
 White, 1 Jon. & L., 563. Ballet Id.. 373; Cookcs v MascdU. Id.. 200. 
 
 (e) See infra. §593 etseq. (h) 4 N es., .im, b. e... a m., .w. 
 {/) See intra, § 553. _ , (•) 3 Dr. & War., 87. 
 
 (g) Moorev. Hart.l Vcrn.,110,-201 ; Wank- O) 3Beav.,4G'J.
 
 152 FRY ON SPECIFIC PERFORMANCE OF CONTRACTS. 
 
 in his will, to be settled on lier and her children, the dispo- 
 sition of which, supposing she had no children, to be pre- 
 scribed by the will of her father." This was held to create 
 an obligation. These proposals were made subject to re- 
 vision ; but it was held that that power was determined by 
 their acceptance by the intended husband, and the marriage 
 with the father's consent. This decision of Lord Langdale, 
 M. R., was affirmed by Lord Cottenham,(A-) and afterwards 
 by the House of Lords. (Z) 
 
 § 313. In Montgomery v. Ileilly,(/?^) the eldest son came 
 into estates, subject to a jointure to his mother and portions 
 to his brothers and sisters, and carried on a correspondence 
 with a friend of the family with a view to the increase of 
 these charges, and ordered the payment ©f the increased 
 jointure and interest on the increased portions. On the 
 faith of a representation made on the strength of these acts 
 by the family friend, a daughter married ; the interest on 
 the increased portion was continued to be paid to the 
 daughter, and the agent's accounts in which these payments 
 were stated passed ; and the eldest son took possession of 
 some property under the arrangement with his brothers and 
 sisters, to which he would not otherwise have been entitled. 
 The House of Lords decided that there was a contract bind- 
 ing on the eldest brother, and specifically enforced it. 
 
 § 314. In Prole v. Soady,(7i) the court, notwithstanding a 
 considerable conflict of evidence, came to the ccnclusion 
 that previously to and in contemplation of the marriage of 
 the plaintiff s father and mother, the natural father of the 
 lady had represented to the intended husband and to other 
 persons that a certain estate of his in Scotland and a sum 
 of 105,000 sicca rupees were settled by him as a provision 
 for his daughter and her children, and that the marriage 
 was contracted in a confidence in that representation. It 
 was part of the defendant's case that at the date of the 
 marriage there w^as an existing testamentary settlement of 
 the property in question in favor of the lady ; but the court 
 held that such an instrument, if it existed, was made irre- 
 vocable by the representations of the father, and it gave the 
 plaintiff relief on the ground of the representation made. 
 
 (*) 12 01. & Fin, 61, n. (m) 1 Bll. (N. S ), 364; S. C, 1 Dow (N. 8.), 
 
 (0 12Cl.&Fin.; 46»«6n<m». Hammersleyv. 62. 
 DeBlel. (n) 2Giff,,l.
 
 NON-CONCLUSION OF THE CONTRACT. 153 
 
 And in a later case the same judge (Stuart, V. C.) held that 
 a gift made by a codicil in pursuance of a promise by an 
 uncle to his niece, on the faith of which she altered her 
 position in life and continued to act as his caretaker, be- 
 came irrevocable by force of the promise and conduct. (o) 
 In Coverdale v. Eastwood (p) the contract was contained in 
 letters, and the only serious question was one of construc- 
 tion. 
 
 § ttl5. The representations need not be made by the x^er- 
 sons most immediately interested in the marriage treaty. 
 In one case a legatee on his marriage assigned part of his 
 legacy to the trustees of his settlement, and covenanted to 
 pay the amount by installments. It was proved that the 
 marriage was contracted, and the settlement made on the 
 faith of representations by the executor that the legacy 
 was substantial and safe and would be paid though at a 
 future time. The estate of the testator proving insufficient 
 to pay the legacies, it was held that, by force of the repre- 
 sentations, the estate of the executor was liable for the 
 amount of the legacy. ($). 
 
 § 316. The doctrine in question seems to have been car- 
 ried to its fullest limits in the case of Piggott v. Stratton.(r) 
 The defendant Stratton was lessee for a long term of plots 
 A, B, and C. The lease contained a covenant that any new 
 houses should be detached and separated from one another 
 by an open space of not less than thirty feet. Plot C lay 
 between B and the sea. The defendant Harbour, under 
 whom the plaintiff claimed as assign, negotiated with Strat- 
 ton for an under-lease of part of B, and Stratton in answer 
 to a question stated that he could not build closer than 
 thirty feet because the lease forbad him, and Harbour swore 
 that thereupon he was induced to take the land, and further 
 that in order to satisfy himself he asked for and was shown 
 a draft of the lease. An under-lease was executed contain- 
 ing covenants referring to the original lease. The original 
 lease was surrendered, and a new lease granted with differ- 
 ent covenants, and Stratton the lessee proposed to build so 
 as not to leave the thirty feet space. Lord Hatherley (then 
 Wood, V. C.) held that the covenants in the under-lease did 
 
 (o) Loffu8V.Maw,3Giff..59-2;8eeAlderBon (p) L. R. 15 Eq., lil. . 
 V. MaddisoD, 5 Ex. D.. 293. 3u0; i-eversed in (?) Hutton v. Kossiter. < De G »r. A G 9. 
 C. A. W. N., 1881, p. 68. (r) Johns., 314; 6. C, 1 De t.. F. & J., 33.
 
 154 FRY ON SPECIFIC PERFORMANCE OF CONTRACTS. 
 
 not restrain this conduct, but that the representation did. 
 He held it equivalent to a representation that the lease was 
 an instrument by which the property was secured to the 
 purchaser in a course of enjoyment, and that to permit him 
 to alter that course would be to permit him to derogate 
 from liis own grant. Lord Campbell and Turner, L. J., held 
 that the defendant was bound both by his covenants in his 
 under-lease and by his representation. Knight Bruce, L. J., 
 held that he was bound by his covenants, but declined to 
 give any opinion on the other point. It will not escape 
 notice that in this case the only representation made was 
 one of an existing fact, viz. : the existence of the lease, that 
 there was no statement that the state of things should con- 
 tinue, or that the lease should not be surrendered or allowed 
 to drop, and that to infer from the existence of a lease that 
 it should never be surrendered, seems, in the absence of 
 express contract, a somewhat strong inference. The case 
 is, however, one of the highest authority.
 
 INCOMPLETENESS OF THE CONTRACT. 155 
 
 CHAPTER III. 
 
 OF THE INCOMPLETENESvS OF THE CONTRACT. 
 
 § 317. "Nothing is more established in this court," said 
 Lord Hardwicke,(«) speaking of contracts which the court 
 will enforce, "than that every agreement of this kind ought 
 to be certain, fair and just in all its parts. If any of those 
 ingredients are wanting in the case, this court will not decree 
 a specific performance. " " I lay it down as a general propo- 
 sition," said Lord Rosslyn,(/;) "to which I know no limita- 
 tion, that all agreements, in order to be executed in this 
 court, must be certain and defined ; secondly, they must 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."' 
 
 §318. 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 unwil- 
 ling to entertain the objection, when it is made after part 
 IDerformance, from which the defendant has deiived bene- 
 fits, and the plaintiff cannot be fully recompensed except 
 by the performance of the contract in S2?ec)e.{c) When a 
 contract has been partly executed by possession having been 
 taken under it, the court, it has been said, "will strain its 
 power to enforce a complete performance. "(rZ)' 
 
 (a) In Buxton v. Lister, 3 Atk., 3;G. See Ves Sen., 279; Franks v Martin, 1 K.tcn.309. 
 Infra « 4t<S (c) ^ee §§ S3, 459. 
 
 (b) 'in Lur<l Walpo'-c v. Lord Orlmvl, 3 Ves., (d) Parker v. Taswcll, 2 De G. A J., .V>;i, ... I. 
 42U; accordingly, Underwood v. Hitlicox, 1 
 
 1 Upon an application to a court of chancery for a decree of specific perform- 
 ance, in order to merit tlie interposition of its i)Owers. tlie agreement must be 
 found to be fair and equitable, certain and consistent wilh pul-lie ivWiey. free 
 from fraud or surprise, not voluntary, and just in all lis parts, or at lea.sl tend 
 to produce a just end. Griimii v. Frederick County Hank. r. Odl vV .1.. 4U; 
 Seymour V. IJelaneey, ;] Cow., 44o; Modisett v. Johnson. 2 Blaekf. 4.11 ; Mil- 
 lard V. Ramsdell, Harrins. Ch., 37;i; Ohio v. Hauni. (J Ham.. :?s:{. I ule.ss the 
 evidence offered in .suppcirt of a contract be fully sutlicienl and ample, a court 
 of equity will not exercise it.s jurisdiction to enforce it. Colson v. Thompson, 
 2 Wheat., 33(5. 
 
 * Negotiation.^ When any part of an agreement remains to be settled by
 
 lo6 FKV UN SPECIFIC PERFORMANCE OF CONTRACTS. 
 
 § 319. The qualities of completeness, certainty and fair- 
 ness, which will be now considered, will in great part be best 
 explained by showing cases in which they have been con- 
 sidered as being wanting. The qualities of completeness 
 and certainty are not perhaps truly separable ; but under 
 the former those cases will be rather considered 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, 
 whicli has furnished a defense to a specific performance, (e)' 
 
 g :j!JO. It is evident that incompleteness may be in the 
 contract itself —in which case there is properly speaking no 
 contract, or in the evidence — in which case there is no suffi- 
 cient memorandum. But nevertheless it seems not incon- 
 venient to consider these defects together. 
 
 § 3S1. The time at whicli the completeness of the contract 
 is to be ascertained was the filing of the bill, and is now the 
 commencement of the action ; so that it was not sufficient 
 for the purpose of obtaining an immediate decree, to prove 
 that the consent of a tenant for life, which was essential to 
 the contract, was given before the hearing. (/) It is an 
 obvious principle of justice, that the adoption of a contract 
 by a third party shall not so relate back as to subject a party 
 •to legal proceedings in respect of its non-i^erformance, the 
 non-performance having at the time been justifiable. (^) 
 
 § 322. To this principle there are some exceptions, or 
 
 (e) See, also, the cases stated Infra, § 488. Mann v. Waiters, 10 B. & C, 626; Doe d' 
 (/) Adams v. Brooks, 1 Y. & C. C. C, 627. Lyster v. Goldwin, 2 Q. B., 143. 
 (g) Right V. Cuthell, 5 East, 491; Doe d. 
 
 negotiation, it is incomplete. Potts v. Whitehead, 20 N. J. Eq., 55; Myers v. 
 Forbes, 24 Md., 598. 
 
 Incomplete co7i(raci.] Where a contract is incomplete, specific performance 
 of it will not be decreed if that objection is raised. Hopkins v. Oilman, 22 
 "Wis., 476; Madox v. McQueen, 8 A. K. Marsh., 400; Ohio v. Baum. 6 Ohio, 
 383; Southern Ins. Co. v. Cole, 4 Fla., 359; Hammer v. Eldowny, 46 Pa. St., 
 334; McKibbin v. Brown, 14 N. J. Eq., 13; Neville v. Merchants' Ins. Co., 19 
 Ohio, 452; Johnson v. Johnson, 16 Minn., 512. 
 
 Contract incompUte as to ti7ne.'\ Where the contract does not specify the time 
 when it is to be performed, or fix the same, it is too incomplete to be enforced 
 at equity. Time being included in the terms, may become of the essence of 
 the contract. Potts v. Whitehead, 20 N. J. Eq., 55; Williams v. Stewart, 25 
 Minn , 516; Baker v. Glass, 6 Munf., 212; Hoff v. Shepherd, 58 Mo., 242; 
 Wiley V. Roberts, 31 id., 212; see, however, Friebert v. Burgess, 11 Md., 452. 
 
 ' Contract must he completely determined.'\ In order that a party shall be enti- 
 tled to a decree for the specific performance of a contract, such contract must 
 have been completely determined, and its terms definitely ascertained. Brown 
 V. Brown, 33 N. J. Eq., 650.
 
 INCOMPLETENESS OF THE CONTRACT. 157 
 
 apparent exceptions, which it is well briefly to notice. 
 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 a 
 contract had been entered into for granting an annuity for 
 three lives to be named, and the consideration had been 
 paid, but through the defendant's refusing to proceed the 
 lives had not been named, the plaintiff was allowed to per- 
 fect his contract by nominating three lives who were in being 
 at the time of the contract. (70' So where the defendant 
 agreed to build a house on the plaintiff's land and the plain- 
 tiff agreed thereupon to grant a lease which the defendant 
 agreed to accept ; and the defendant pulled down the old 
 house but neglected to build the new one ; the court held 
 that the contract to accept a lease gave it jurisdiction ; that 
 damages could be awarded under Lord Cairns' act for the 
 non-performance of the contract to build, and that this con- 
 dition being thus satisfied the plaintiff could have perform- 
 ance of the defendant's contract to accept a lease. (^) 
 
 § 323. An action may be maintained on a contract where, 
 though some term be not ascertained, the court has the 
 means of ascertaining it, on the principle of the maxim id 
 cerium est quod cerium reddi potesi. 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 sheriff to sum- 
 mon a jury to settle the compensation ; {j) and the same 
 principle is illustrated by the cases on the requisite com- 
 pleteness as to subject matter and price. (/t) 
 
 § 324. 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 other terms. 
 § 3S5. (1) Every valid contract must contain a descrip- 
 tion of the subject-matter ; ' but it is not necessary that it 
 
 (h) Pritchard v. Ovey, IJ. & W., 396; Lord (j) Walker v. Eastern Counties Railway 
 
 Kensington v. Phillips, 3 Dow, 61. Co , 6 Ha.. 5'Jl See, also, Owen v. Thomas, 
 
 (i) Soamesv.Edge, Johns. ,669; Middleton 3 My.&K ,3.53; Monro v. laylor, 8 lla.,51. 
 
 V. Greenwood, 2 De G. J. & S., 14-2. Distin- (fc) Infra, §§ 328, 335. 
 guish Norrls v. Jackson, 1 J. & H., 319. 
 
 • In Prater v. Miller, 3 Hawks, 628, it was held that though specific perform- 
 ance would not be decreed of a contract uncertain in its terms, still, where the 
 agreement may be made certain by means of references furnished by the con- 
 tract, it will be enforced. 
 
 ■■^ Befiniteness.'] The subject-matter of a contract must be defined with clear-
 
 158 FKY ON SPECIFIC PERFORM AXCE OF CONTRACTS. 
 
 should be so described as to admit of no doubt what it is ; 
 for the itlentity of the actual thing and the thing described 
 may be shown by extrinsic evidence. This flows from the 
 very necessity of the case ; for all actual things, except the 
 contract itself, being outside of and beyond the contract, 
 the connection between the words expressing the contract 
 and tilings outside it must be established by something 
 other than the contract 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 ; {I) 
 and in the cases of contracts within both the fourth and the 
 seventeenth sections of the Statute of Frauds, parol evi- 
 dence as to identity is admissible, (m) Thus, for instance, 
 the expression "Mr. Ogilvie's house," was held sufficienl, 
 and extrinsic evidence was admitted to show what house it 
 referred to.{n)' In another case a subject-matter described 
 as " the mill property, including cottages in Esher village," 
 was held capable of identification by parol evidence. (o) 
 The expressions "this ]3lace" (p) and "the lease" (q) have 
 been held sufficient descriptions of the thing sold ; and 
 "your word" has been explained by jDarol evidence of a 
 IDrevious conversation, (r) So where a contract referred to 
 another writing, parol evidence of the identity of a certain 
 writing with that referred to was admitted ; (s) and in an- 
 other case parol evidence was admitted to show the mean- 
 er) See per Lord Cranworth (then Rolfe, B ) (q) Horsey v. Graham, L. R. 5 C. P., 9. 
 in Clayton v. Lord Nugent, 13 M. & VV., 207. (r) Macdonald v Longbottom, 1 El. & El., 
 (m) t^arl v. liourdillon, 1 C. B (N. S.), 188. 977. 
 
 («) Ogilvie V. Foljambe, 3 Mer., 53 (s) CUnan v. Cooke, 1 Sch. & Lef., 21, 33. 
 
 (o) McMurray v. Spicer,L. R. 5 Eq., 521. See infra, § 521. 
 ip) Waldron v. Jacob, I. R. 5 Eq., 131. 
 
 ncss; SO that the party and the court may know what is contracted for. King 
 V. Ruckman, 20 N. J. Eq., 316; Carr v. Passaic Land Co., 22 id., 35; Ross v. 
 Baker, 72 Pa. St., 18G; Miller v. Campbell, 52 Ind., 125; Holmes v. Evans, 48 
 Miss., 217; Bell v. Warren, 39 Texas, 10(j; Lynes v. Hayden, 119 Mass., 482. 
 
 Extrinsic evidence may be used to explain ambiguous terms, or the relations 
 sustained towards each other by parties. Warring v. Ayres, 4.0 N. Y., 357; 
 Robeson v. Horntaker, 2 Green's Ch., 60; Fowler v. Redican, 53 111., 405; 
 Mead v. Parker, 115 Mass., 413. 
 
 Example.] A bond for the sale of real estate was in every respect unobjectiona- 
 ble, except the description, which was incomplete, but consistent so far as it 
 went. Held, that extrinsic parol evidence miglit be emploj^ed to complete it, 
 if no new description was introduced into the contract, and the pleadings con- 
 tained the necessary averments. Torr v. Torr, 20 Ind., 118; Price v. Griffith, 
 1 De G. M. & G., 80; King v. Wood., 7 Miss., 389; 1 Greenlf. Ev., § 287. 
 
 ' Upon the same principle, specific performance of a contract will not be re- 
 fused, 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.
 
 INCOMPLETENESS OF THE CONTRACT. 159 
 
 ing of " £50 more of premium," and of " the profit rent of 
 the present tenant." {t) A general description of the sub- 
 ject matter is sufficient; as, e. ^., "the Bank End estate," 
 although the contract itself may provide for the parcels 
 being subsequently defined. (?^) 
 
 § 3^0. Where it is necessary to call in extrinsic evidence, 
 the connection of the subject-matter of the contract, and 
 the thing in respect of which specific performance is sought, 
 must be pleaded and supported by sufficient evidence. (c) 
 
 § 327. It is, however, essential that the descrij)tion of 
 the subject matter should be so definite, as that it may be 
 known with certainty what the purchaser imagined himself 
 to be contracting for, {w) and that the court may be able to 
 ascertain what it \s.{x) And so in a case where there was a 
 contract for the letting of "coals, etc," the statement of the 
 subject-matter was thought by Knight Bruce, L. J., insuffi- 
 cient, and specific performance was refused on that amongst 
 other grounds, (y ) ' 
 
 § 328. With regard to the description of the subject- 
 matter, the maxim id cerium est quod cerium redd I potest 
 applies. Thus, where the memorandum of the contract 
 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 subject-matter suflacient.^^") And, again, a contract 
 to sell an estate within certain ascertained boundaries, de- 
 scribed as partly freehold, and partly leasehold, is not void 
 for uncertainty, because it is a good contract to sell the 
 vendor's interest in the property ; but the purchaser is enti- 
 tled 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. («) 
 
 «) Skinner v. M'Douall, 2 De G. & Sm.,265. (y) Price v. Griffith, 1 De G^ M. AG., 80. 
 
 («) Haywood V. Cope, is Beav , UO. See, also, Inge v. BirmlnKhani, W olver- 
 
 (w) Price V. Griffith, 1 De G. M. & G., 80. hampton and Stour \ alley liailway Co., 3 
 
 (?«) Stewart V. Allisiou, 1 Mer., 26, 33. De G. M. & G., (>6S. 
 
 (a:) Kennedy v. Lee, 3 Mer., 441, 451; per (5) Owen v. Ihomas.S My & K , 353, cf. 
 
 Lora Eldon in Daniels v. Davison, 16 Vea., Kay lor v. Goodall, ^0 " • K-. 18-.. 
 
 256 (a) Monro v. Taylor, 8 Ha., 51. 
 
 ' The description of land, which is the subject-matter of the contract, is 
 clearly an essential particular, and, as such, if indetiuite to such an extent as 
 to be incaoable of being ascertained by the admission of extrinsic evidence, 
 goes to its' essence and avoids the obligations of the agreement. McMurtrie v. 
 Bennett, Barring. Ch., 13-1.
 
 160 FRY ON SPECIFIC PERFORMAKCE OF CONTRACTS. 
 
 ij 3*^1>. So tlie uncertainty of description of the subject- 
 matter may ])e got over by the election of one party to the 
 contract, wliere the effect of the contract is to give such a 
 riglit of election. Thus, where a contract was made by the 
 defendant to sell to the plaintiff for the purpose of a church- 
 yard so much land as was necessary on the north side of the 
 church, and the plaintiff obtained the sanction of the proper 
 authorities to the consecration of three quarters of an acre 
 of land adjoining the north side of the existing enclosure of 
 the church and applied to the defendant to convey, it was 
 held that the plaintiff being the person to do the first act 
 under the contract had a right of election, and that if other- 
 wise there was uncertainty of description he had sufficiently 
 ascertained the land to be conveyed, {b) A similar decision 
 was pronounced in a case where the difficulty arose on a 
 contract to let a glebe "except thirty-seven acres," and it 
 was held that the right of election was with the lessee as 
 the person who had the first act to do.(c) With these cases 
 may be compared the cases on executory contracts for the 
 sale of goods not specified, where the appropriation by the 
 party entitled to elect converts the executory contract into 
 an actual sale and passes the property to the vendee. (^) 
 
 § 330. (2) The contracting parties must appear in the 
 contract, or the memorandum of it, in order to constitute a 
 binding contract ;(e)' but they may so appear either by name 
 or by description, or by reference sufficient to ascertain 
 their identity. (/) Where the defendant made a written 
 offer to take a lease, beginning " Sir," but without address, 
 and the plaintiff's agent wrote an acceptance, but there was 
 no document signed by the defendant showing the intended 
 lessee's name, it was held that there was no w^ritten con- 
 tract, (p') 
 
 (6) Rumble V. Heygate, 18 W. R , 749. v. Whitton.lH. L.C.,333; Williams v. Lake, 
 
 (c) Jenkins v. Green, 27 Beav., 437. 3 El. & El.. 349. Ct. Skelton v. Cole, 1 De G. 
 
 (d) See the cases colKcted in Benjamin on & J., 5S7, 596. 
 
 Sales, Book II, oh. 5. (/) Potter v. Duffield, L. R. 18 Eq , 4. 
 
 (e) Champion v. Plummer, 1 N. R., 253; (g) Williams v. Jordan, 6 Ch. D., 517. 
 Warner v. WiUington, 3 Brew., 523; Squire 
 
 * 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 laud transmitted to a proposed purchaser a memorandum 
 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 by the vendor. Butler v. O'Hear, 1 Dessau., 383.
 
 INCOMPLETENESS OF THE CONTRACT. 161 
 
 § 331. The contracting parties may be indicated by de- 
 scription instead of by name, provided the description is 
 sufficient to jireclnde any fair dispute as to the identity ;(/) 
 or, in other words, is certain within the legal maxim, id 
 certum est quod certum reddi potest ;{h) and provided this 
 description is not by reference, but to the contract itself. 
 "It is scarcely possible," said Lord Romilly, M. R.,(/) "to 
 look at an auction list without seeing property sold by a 
 mortgagee, or by executors, or by trustees, without the 
 name being disclosed, and bought by somebody whose name 
 is not given until the conveyance is prepared. It is the 
 ordinary practice." 
 
 §33^. "Your lordships," said Earl Cairns, addressing 
 the House of Lords, "have frequently seen conditions of 
 sale not merely by auction but by private contract, in which 
 it is stated that the sale is made, sometimes by the owners, 
 and sometimes by the mortgagees^ and a form of contract is 
 annexed in which an agent signs for the vendors, and no 
 other specification ui)on the vendors' part is inserted, and I 
 never heard up to this time that a contract under those cir- 
 cumstances was invalid. In point of fact, my lords, the 
 question is, is there that certainty which is described in the 
 legal maxim id certum est quod certum reddi potest. If I 
 enter into a contract on behalf of my client., on behalf of 
 Tnj principal, on behalf of mj friend, on behalf of those 
 whom it may concern, in all those cases there is no such 
 statement, and I apprehend that in none of those cases 
 would the note satisfy the requirements of the Statute of 
 Frauds. But if I, being really an agent, enter into a con- 
 tract to sell Blackacre, of which I am not proprietor, or to 
 sell the house No. 1, Portland Place, on behalf of the owner 
 of that house, there, I apprehend, is a statement of matter 
 of fact, as to which there can be perfect certainty, and 
 none of the dangers struck at by the Statute of Frauds can 
 arise. "(,/) 
 
 §333. In one case already referred to,(^') the sale was 
 stated to be by direction of the executors of Admiral F., 
 
 (/) Potter V. DiiffieUl, L. R. 18 Eq., 4. U) Rossiter y. Miller, 3 App. C, 1140. The 
 
 (h) Rossiter V. Miller, 5 Ch. D.,643; 3 App. Italics are not in the report. ^ t> p ir 
 
 C 1124 1140 (*) Hoo«i "^^ J^'^""^^ BarruiKton, L. R. 6 Eg., 
 
 Ti) Hood v'. Lord Harrington, L. R. 6 Eq., 218. See. too, Towle v. Topham. 37 L. T., 
 
 218. See, too, Bourdlllon v. Collins, 19 W. 308; Webb v. Kirby, 3 Sm. &(:r.,337. 
 
 B., 556. 
 
 11
 
 162 FRY ON SPECIFIC PEKFORMANCE OF CONTRACTS. 
 
 and, in another, (Z) the vendor was stated to be a trustee 
 selling under a trust for sale ; and in each case the descrip- 
 tion was held sufficient. Again, where the contract stated 
 the sale to be by direction of the proprietor, that was held 
 to be a sufficient description. (77i) In another case, where 
 property was sold by ten persons incorporated, who worked 
 the property in the name of a company, it was held that the 
 description " the vendors" was enough, because it appeared 
 from the conditions of. sale and memorandum of the con- 
 tract, that the vendors were in possession; that the abstract 
 would be an abstract of the company' s title, and that it was 
 thfi interest of the company which was being sold.(72,) 
 
 § JI34. But where the contract did not disclose the ven- 
 dor s name, but stated the auctioneer's name, and the auc- 
 tioneer signed the contract as confirming it "on behalf of 
 the vendor," the memorandum was held insufficient, because 
 the question who sold the estate (?'. e., the question of the 
 contract) was left to be decided by parol evidence, (o) 
 
 § 335. (3) In all cases of sale it is evident that price is an 
 essential ingredient of the contract, and that where this is 
 neither ascertained nor rendered ascertainable, the contract is 
 void for incompleteness, and incapable of enforcement. (^)' 
 Accordingly where A. agreed to sell an estate to B. for 
 £1,500 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. {q) So, again, where 
 there was a contract to sell at a price to be fixed by two 
 surveyors, and they made their valuation, but that did not 
 sufficiently and finally ascertain the price, specific perform- 
 ance was refused ;(r) and the like was the result of a similar 
 
 (l) Catling V. King-, 5 Ch. D., 660. (o) Potter v. Diiffield, L. R. 18 Eq., 4. 
 
 (7M).Sale V. Lambert, L. It. 18 Kq., 1. See, (p) Elmore v. Kingscote, 5 B. & C, 583; 
 
 too, Robsiter V. Miller, 5Ch. I>.,648; 3 App., Goodman v. Griffiths, 1 H. & N., 574. Con- 
 
 C, 1124; Beerv. London and Paris Hotel Co., sider Langstaff v. Nicholson, 25 Beav., 160. 
 L. K. 20 Eq , 412; and Thomas v. Brown, 1 (q) Bromley v. Jeflferies, 2 Vern., 415. 
 Q. B. D , 714. (r) Hopcraft v. Hickman, 2 S. & S., 130. 
 
 (n) Commins v. Scott, L. R. 20 Eq., 11. 
 
 ' Price must be fixed.] A contract will not be specifically enforced unless the 
 price is fixed. Darby v. Whitaker, 4 Drew, 134; Graham v. Call, 5 Munf., 396. 
 
 Contract cannot be changed.] A contract cannot be changed, and then en- 
 forced, even by a court of equity. Valetti v. White Water Canal Co., 4 
 McLean, 192; Cassady v. Woodbury, 13 Iowa, 113; Haskell v. Allen, 23 Me., 
 44b'; Gray v. Tubbs, 43 Cal., 359; Philadelphia R. R. Co. v. Lehigh Co., 36 Pa. 
 St , 2u4
 
 INCOMPLETENESS OF THE CONTKACT. 103 
 
 case, where the valuation was such as the court could not 
 act on, by reason of circumstances of great imi)ropriety on 
 the part of one of the valuers, and the valuation being based 
 on an erroneous view of the facts. (5) 
 
 § 336. It is not, however, necessary that the contract 
 should in the first instance determine the price. (^) It may 
 either appoint a way in which it is to be determined, or it 
 may stipulate for a fair price. 
 
 § 337. Where the contract appoints a way of detennin- 
 ing the price, the courts have in some cases deemed that 
 way essential ; in other cases they have deemed it non- 
 essential,, and have treated the contract as essentially one to 
 sell at a fair price. In all cases where the princi23al subject 
 of the contract is to be valued in a specified manner, the 
 manner has, it is believed, been held essential •,{u) the man- 
 ner has often been held non-essential where it is aj^plied 
 only to an incident to the main subject, as timber to land, 
 fixtures to a house, or plant to a business. 
 
 § 338. Where the contract specifies a way of ascertaining 
 the price which is essential, the contract is conditional till 
 the ascertainment, and is absolute only when the price has 
 been determined. In case of default in this respect the con- 
 tract remains imperfect, and incapable of being enforced ; 
 for the court will never direct the payment of such a sum 
 as A. may fix.(«) 
 
 § 339. If the contract be between A. and B. to sell and 
 buy at such a price as valuers to be named by them shall 
 fix, it seems that either A. or B. may refuse to name a 
 valuer, and the contract will remain incapable of completion 
 without any liability on the part of the refusing party, (•zo) 
 But if the contract between A. and B. be to sell and buy at 
 such a price as C. shall fix, neither A. nor B. can rightfuMy 
 prevent C.'s determination and the comx)letion of the con- 
 tract ; and it is presumed that an action might be main- 
 tained for such prevention. (^) ^^ Act us inceplus,'' says one 
 of Lord Bacon's maxims, (2/) ^^cujus perfedio pendet ex 
 xoluntate parti um^ revocar I potest ; si autem pendet ex riol- 
 
 (s) Chichester v. Mclntyrc, 4 Bli. (N. S.)i 419- Consider Baker v. Metropolitiin Kall- 
 
 78. way Co., 31 Beav., 504. 
 
 (t) See Loii-lon Guaraatic Co. v. Fearnley, (w) See as to the French law on this point, 
 
 5 A pp. C , 9-20. TroplonK. De la Vento, § 157. 
 
 (u) Millies V. Gerv, 14 Ves., 400. 408 (x) Smith v. Petera, L. K. 20 £q.,5n, Infin, 
 
 («) Uarby v. Whitak. r, 4 Drew., 134; Til- §343. 
 
 lett V. Charing Cross Bridge Co. , 26 Beav., (y) No. 20.
 
 164 FKY OX SPECIFIC PEEFORMANCE OF CONTRACTS. 
 
 vn tate terticc personcB ml ex contingently non potest y One 
 of his illustrations is this : " If I contract with you for cloth 
 at such a price as J. S. shall name, then if J. S. refuse to 
 name, the contract is void, but the parties cannot discharge 
 it, because they have put it in the power of the third person 
 to perfect. (^) 
 
 5< :i 10. The conclusion that a valid sale could be effected 
 at 'such a price as a third person should lix was not arrived 
 at in the Roman law without great doubt, or finally settled 
 until the time of Justinian. Ofilius and Proculus main- 
 tained the validity of such a sale ; Labeo and Cassius denied 
 it. {a) ' ' Sed nostra decisio, ' ' says Justinian, after adverting 
 to the doubts of the ancients, ''ita hoc constituit, ut quo- 
 tiens sic composita sit mnditio qnanti ille cBstimaverit, sub 
 hac condicione staret contractus ut, si quidem ipse qui no- 
 minatus est pretium definierit, omnimodo secundum ejus 
 cBstimationem et pretium persoUatur et res tradatur, ut , 
 mnditio ad effectum perducatur, emptore quidem ex empto 
 actione, mnditore autem ex mndito agente. Sin autem ille 
 qui nomiiudus est ml noluerit ml non potuerit pretium de- 
 finire, tunc pro nihile esse mnditionem, quasi mdlo pretio 
 statutoy{h) The principle thus established by Justinian is 
 embodied in the French law,(c) and has found its way into 
 our jurisprudence. 
 
 § 341. The persons nominated to value are sometimes, 
 though inaccurately, spoken of as arbitrators. Arbitrators 
 are appointed to settle a pre-existing dispute; valuers to 
 ascertain the value of the subject-matter of the sale. It fol- 
 lows that the provisions of the common law procedure act, 
 1854 (17 and 18 Vict., ch. 124, s. 12), are not applicable to 
 valuers named in a contract. (cZ) 
 
 § 343. Of the first class of cases, viz. : those in which the 
 contract provides the mode of ascertaining the price, and 
 this provision is an essential term, Milnes v. Gery,(6) may be 
 considered as the leading case. There was there a contract 
 that land should be sold at a price to be fixed by one valuer 
 api)ointed on each side, or their umj)ire ; the valuers could 
 not agree ; and Grant, M. R., held the contract to be incom- 
 plete, and that the court could not supply the defect by 
 
 (z) Maxims, ed. 1G36. pp. 71, 73. ^ (c) Code Civil, art. 1592. 
 
 (a) Troplong, De la Vente, § 156. (d) Collins v. ColUns, 26 Beav., 306. 
 
 (6) Inst. Lib., 3 tit. 23, § 1. («) 14 Ves., 400.
 
 INCOMPLETENESS OF THE CONTRACT. 165 
 
 appointing other persons as valuers, wliicli would be to 
 execute a contract different from that of the parties ; 
 although, where it is merely a contract to sell at a fair price, 
 that is a matter which the court can ascertain. "A man," 
 said Leach, V. C.,(/') "who agreed to sell at a price to be 
 named by A., B., and C, could not be compelled by a couit 
 of equity to sell at any other price." This principle lias 
 governed the decision of several other cases of specific per- 
 formance, {g) and may further be illustrated by the cases at 
 common law.(^)' 
 
 § 343. The difficulty has in several cases prevailed, not- 
 withstanding the fact that the obstacle has arisen from the 
 defendant's default. Thus where the contract was to sell 
 at a price to be lixed by arbitrators, but, in consequence of 
 the defendant having refused to execute the arbitration 
 bond, it was uncertain whether any award would be made, 
 the court refused to proceed ;(/) and the same result fol- 
 lowed where the refusal of one of the valuers to proceed 
 appeared to arise from the information given to him by the 
 defendant, of his intention not to complete. (,/) But where 
 a vendor had agreed to sell a public house for £10,700, and 
 the furniture and fixtures in it at a fair valuation to be made 
 by L., and after L. had commenced taking the inventory, 
 the vendor refused to allow him to complete it, Jessel, M. R., 
 on an interlocutory application, made an order that L. be 
 permitted to enter the premises for the purpose of complet- 
 ing the valuation. (A-) In a case where the price was to be 
 
 (/) In Morse v. Merest, G Mad., 26. (i) Wllks v. Davis, 3 Mer., 507; Vickers v. 
 
 (f/) Blundell v. Brettargh, 17 Ves., 233; Vickers, L. R. 4 Eq., 529. Cf. Morse v. Mer- 
 
 Gourlay V Duke of Somerset, 19 Ves., 429; est, 6 Mad., 26. „. ^. ^ 
 
 Agar V. Macklew, 2 S & S.,418; Darbey v. O; Darbey v. Whltaker, 4 Drew.,134; Vlck- 
 
 Whitaker, 4 Drew., 134 ers v. Vickers, L. R. 4 Eq , 529. 
 
 (h) E. g , Thurnell v. Balburnie. 2 M. & W., (k) Smith v. Peters, I.. R. 20 Eq., 511. 
 786; Morgan v. Birnie, 9 Bing.,672; Milner 
 
 V. Field, 5 Ex., 829. 
 
 ' A. and B. built a mill together. A. agreed to convey bis 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 referee's could not agree, 
 and A. refused to have an umpire chosen. B. filed a bill for a specific perform- 
 ance of the contract by A., praying an account of the cost by A . that Jie re- 
 ceive that sum, and make a conveyance. Held, that to grant the prayer 6f the 
 bill would be to make a contract for the parties, and tlien e.\ecute it ; and that 
 the agreement of A. was not to convey on payment to him of the cost of his 
 part of the mill, but on the payment of the cost as ascertained by the arbitra- 
 tors named. Nortleet v. Southall, 8 Mur., 189. In Graham v. Call. 5 Munf., 
 396, where, by an agreement for the sale of land, the price was to be ascer- 
 tained 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 un- 
 certain to be enforced specifically in equity.
 
 166 FRY ON SPECIFIC PERFORMANCE OF CONTRACTS. 
 
 ascertained by one of two alternative modes, and no election 
 had been made as to the mode of ascertainment, the court 
 held that no contract had been constituted. (Z) 
 
 § 344. In a case between a landowner and a railway com- 
 pany, a contract had been entered into under which the 
 company was to do certain works. By a subsequent con- 
 tract an estimate of the cost of completing the works was to 
 be made by the company's engineer and submitted to A., 
 the landowner's agent, "for approval;" in case of differ- 
 ence the amount was to be determined by B. ; the amount 
 "when agreed or determined" was to be paid to the land- 
 owner by the company in discharge of their obligations as 
 to the works. A. died before approving any estimate. , B. 
 was living; it was held that by A.'s death the contract 
 became incapable of enforcement, {m) 
 
 § 345. Again, where a railway company contracted for 
 the purchase of land with a charitable corporation who had 
 no power to sell except under the lands clauses consolida- 
 tion act, and the price had not been ascertained by sur- 
 veyor's certificate pursuant to the provisions of that act, the 
 court held that no final contract had been arrived at.(?i) 
 It may here be noticed that, when once the price has been 
 fixed pursuant to the act, the purchasing corporation is 
 compellable to complete the purchase, (o) 
 
 § 340. The second class of cases embraces those contracts 
 which are substantially for the sale of the property in ques- 
 tion at a fair price, the mode of ascertainment, though indi- 
 cated by the contract, being subsidiar}' and non-essential ; 
 and where consequently, if that mode of ascertainment has 
 failed, the court will have recourse to some other means of 
 coming at tlie fair x^rice and of thus carrying into effect the 
 contract in its essential parts.' As- already remarked these 
 cases are principally of the valuaticm of incidental matters 
 and not of the principal subject-matter of the contract. 
 
 § 347. Grant, M. R,., not only indicated, in his judgment 
 in Milnes v. Gery,(p) the distinction of the two classes of 
 
 il) Morgan v Milman,3 De G M. & G.,24. (o) Harfllng v. Metropolitan Railway Co , 
 (m) Firth v. MMland Railway Co., L. R. L R. 7 < h., 154; supra, § 113. 
 
 20 Eq , 100. (p) 14 Ves., 400. 
 
 (Ti) Wycombe Railway Co. v. Donnington 
 
 Hospital, L. R. 1 Oh., 268. 
 
 ' Smith V. Peters, L. R, 20 Eq., 511; Whillock v. Duffeld, 1 Hoffm. Ch., 
 110; Vandoren v, Robinson, 16 N. J. Eq., 110.
 
 INCOMPLETENESS OF THE CONTRACT. 1G7 
 
 cases, but in two other cases before him acted upon it. 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 super- 
 vening 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 the 
 other case, there was a contract to grant a lease, to contain 
 such conditions as A. B. should think reasonable and 
 proper ; and his honor referred it to the master to settle the 
 lease, and not to A. B. — considering the agency of A. B. 
 not to be of the essence of the contract, and that the court 
 would not grant relief through the medium of a reference 
 compulsory on the other party, (r) And so in a case before 
 Stuart, V. C, where there was a contract to sell land and 
 bleachworks at a sum fixed, and the plant and machinery 
 to be taken at a value to be ascertained by valuers to be aj^- 
 pointed by the parties, it was held that this was a subsidiary 
 stipulation only, and that it did not form an obstacle to 
 sx)ecific performance, which was accordingly decreed, with 
 costs, (.s) The same view was taken both by Stuart, Y. C, 
 and on appeal by Lord Hatherley in a case where the main 
 subject of the contract was the sale of an estate for £24,000, 
 and a provision was inserted for the valuation of certain 
 furniture and articles \{f) and in another case where a i)art- 
 nership contract contained a provision for a valuation at its 
 expiration, which fell through from there being no provision 
 as to an umpire, the court ascertained the value. (?/) The 
 main object of the contract there was the partnership ; the 
 defendant had had the benetit of that contract, and could 
 not be allowed to escape from the subsidiary contract as to 
 sale on the ground of the difficulty as to the valuation. 
 
 § 348. In another case before Stuart, V. C, he remarked 
 that, where possession is referable to a contract to give a fair 
 consideration, the amount of which has not been settled, the 
 court will, in favor of possession and expenditure referable 
 
 (q) Hall V. Warren, 9 Ves., 605. referees as to price ought to procoed. ami on 
 
 (r) Gourlav v. Duke of Somerset, 19 Ves., what urounds they may ileterminc, see Eads 
 
 429 V. Williams. 4 De G. M. \^ Ci , 674. 
 
 (s) Jackson v. Jackson, 1 Sm. & G., 184; (0 Richardson v. Smith, I>. U. ^ Ch., 648. 
 
 Paris Chocolate Co. v. Crystal Palace Co., 3 («) Diuham v. Bratll»rd, L. U. 5 Ch., 619. 
 
 Sm. & G., 119, 123. As to the way in which
 
 168 FKY ON SPECIFIC PEKFOKMANCE OF CONTEACTS. 
 
 to this contract, endeavor by every means within the legiti- 
 mate bounds of its jurisdiction to ascertain the amount of 
 the consideration. ('«) 
 
 § 349. (4) It is, of course, essential to the completeness 
 of the contract, that it should express not only the names of 
 the parties, the subject-matter, and the price, but all the 
 other material terms. What are, in each case, the material 
 terms of a contract, and how far it must descend into details 
 to prevent its being void as incomplete and uncertain, are 
 questions which must, of course, be determined by a con- 
 sideration of each contract separately. It may, however, 
 be laid down that the court will carry into effect a contract 
 framed in general terms, where the law will supply the de- 
 tails ;(zo) but if any details are to be supplied in modes 
 which cannot be adopted by the court, there is then no con- 
 cluded contract capable of being enforced. (^) 
 
 § 350. i'jiough it may be impossible to define what is the 
 necessary completeness in the terms of a contract, it is easy 
 to give instances in which contracts have been held insuffi- 
 cient in this respect. Such was the case where it was not 
 stated from what time an increased rent was to com- 
 mence \{y) where the contract did not state,' either directly 
 or by reference, the length of the term to be granted ;(2) 
 where a contract for a lease for lives neither named the lives 
 nor decided by whom they were to be named ;(«) where an 
 auctioneers' s receipt was set up as a contract, but it did not 
 refer to the conditions of sale, or show the proportion which 
 the deposit was to bear to the price \{b) where there was a 
 term as to the expenses which was not settled by the con- 
 tract ;(c) where there was a contract for a partnership, which 
 defined the term of years, but was silent as to the amount 
 of capital and the manner in which it was to be pro- 
 
 iv) Meynell v. Surtees, 3 Sm. & Gif., 101, 5 De G. M. & G., 888; Ridgway v. Wharton, 
 
 113; affirmed, 1 Jur. N. S., 737; 3 W. R., 535. 6 H. L. C. 285; Rummens v. Robins, 3 Deft. 
 
 See, alio, Cheslyn v. Dalby, 2 Y. & C. Ex , J. & S., 88; infra, § 361. 
 170. (y) Lord Ormond v. Anderson, 2 Ball. & 
 
 (M))In Hampshire v. Wickens (7 Ch. D., B , 363. 
 555), the power of the court to enforce a con (2) Clinan v. Cooke, 1 Sch. & Lef., 22; Gor- 
 
 tract to accept a lease " to contain all usual don v. Trevelyan, 1 Pri., 64; Bayly v. Fitz- 
 
 coyenants and provisions" appears to have maurice, 8 El. & Bl., 664. 
 been admitted. Of. Haines v. Burnett, 27 (a) Wheeler v. D'Esterre, 2 Dow, 359. But 
 
 Eeav., 500; Kendall v. Hill, 6 Jur. N S., 968; query whether the lessee cannot name the 
 
 Poyntz V . Fortune, 27 Beav., 393; Blakeney lives when the contract Is silent. See, also, 
 
 V. llardie, I. R.8 Eq.,381 ; and consider Gull- Lord Kensington v. Phillips, 3 Dow, 61. 
 lamore v. Peacocke. 12 Ir. Ch. R , 354, 3Gi). (6) Blagden v. Bradbear, 12 Ves , 466. 
 
 {X) See South Wales Railway Co. v.Wythes, (c) Stratford v. Bosworth, 2 V. & B., 341.
 
 INCOMPLETENESS OF THE CONTRACT. 169 
 
 vided : {ciy and where a document showed the amount of 
 rent to be paid by a party to a mining enterjirise, but was 
 silent as to other terms, (e) 
 
 § 351. Contracts are often incomplete from their reserv- 
 ing some matter for future agreement ; unless, perhaps, in 
 cases where, in the absence of such agreement, the law de- 
 termines the matter, (/') such contracts are necessarily 
 incomplete until the further agreement has been come to. 
 A contract to contract is nothing. 
 
 § 3dtJ. Where the contract provides for the determina- 
 tion of any material thing by some third person, and this 
 has not been done, the contract is in the same j)redicament 
 as when the price has been neither expressed in tlie con- 
 tract nor ascertained. Cases have occurred where Ituiklings 
 or works have been stipulated to be done in such manner as 
 a third person may direct, and where such direction has 
 either been refused or not given ; and in these cases specific 
 performance has been refused. (<;) 
 
 § 353. Besides the express terms of the contract, there 
 are others which, in the absence of any expression to the 
 contrary, are implied by law. (7^) With regard to such 
 terms, therefore, whether they be necessary terms or not, 
 the silence of the contract does not render it incomplete, 
 thus a contract to sell property described merely as cottages 
 and land purchased by the vender of persons named was 
 construed as referring to, and importing the sale of, the 
 whole of the vendor's interest. (i) A contract to sell a house 
 simply implies that the interest sold is the fee simple ;0') and 
 a contract to renew is presumed to be for the same term as 
 the preceding lease, {k) 
 
 (d\ Downs V. Collins, 6 Ha., 418 of the contract, being Implied In It unless 
 
 («) Caddick v. Skldmore, 2 De G. & J., o2 expressly excluded, but capable of being 
 
 (/) Hall V. Conder, 2 C. B. N S„ 22. thus excluded without subverting the con. 
 
 (g) TUlett V. Charing Cross Bridge Co., 26 tract; and, 3d, the things that are iiccidental. 
 
 Beav., 419; Earl of Darnley t. London, Chat- The terms in qmstlon correspond, of course, 
 
 ham and Dover Railway Co., 3 De G. J. & with the second of these clashes. Pi.thicr, 
 
 S., 24 (cf. 8. C, 1 Id , 204; L. R. 2 H. I, , 43). Tr. dos Obllg., Part I, chap. 1, sect. 1, art. 1, 
 
 (A) The elements of all contracts have, by § 3. 
 
 some jurists, been placed in three classes: (t) Bower v. Cooper, 2 Ila., 408. 
 
 Ist, those things which are essential, without (j) Hu>;hes v. I'arkcr, ? M. & W., 243. 
 
 •which the contract cannot exist; 2d, those (k) Price v. Asshcton, 1 Y. & C. Ex , 82. 
 
 which are of the nature but not of the essence 
 
 ' Baker v. Glass, 6 Arunf., 212, is a case in point. There, a contract for the 
 sale of land, by which the vendor agreed to take, in part payment, a liouse and 
 lot of the vendee at its ca.sh value, to be fixed by two persons, and the parties 
 agreed to appoint such persons, but not within any specified time, and never 
 did so, was held to be too incomplete to be enforced in equity.
 
 170 FRY ON SPECIFIC PERFOKMANCE OF CONTRACTS. 
 
 § 354. Tn every contract for the sale of land, a con- 
 dition is implied for a good title, (Z) and for the delivery 
 11 p of the deeds ; so that where this was prevented by the 
 accidental destruction of the deeds subsequent to the con- 
 tract, it was held that the vendor could not enforce the 
 sa]e.{m.) The title to be shown, of course, varies according 
 to the nature of the property to be sold ;{n) in the case of 
 the sale of a lease, it formerly included the title of the 
 lessor, (o) except in the case of a bishop's lease. (^) But by 
 the vendor and purchaser act, 1874,(2') it has been jorovided 
 that under a contract to grant or assign a term of years 
 whether derived or to be derived out of a freehold or lease- 
 hold estate the intended lessee or assign shall not be entitled 
 to call for the title to the freehold ; and by the same act 
 certain other provisions of a kind very common in contracts 
 of sale are, in the absence of stipulation to the contrary, 
 made imi:)lied terms in contracts for the sale of land. 
 
 § 3o«>. The terms entitling a purchaser to title are con- 
 ditions for the benefit of the purchaser, and may accordingly 
 be waived by him, though the vendor may desire to insist 
 on them as a ground for discharging himself from the con- 
 tract, (r)' 
 
 § 356. On principle there seems much in favor of the 
 view, that a contract for an under lease implies that the sub- 
 lessee is to be subject to all the covenants in the superior 
 lease, and it is not unsupjDorted by authority. (5) But it has 
 been determined that this implication can only arise where 
 
 (i) Doe (1. Gray v. Stanion, 1 M. & W., Preston, 25 L. J. Ex., 287: and see Infra, § 
 
 695, 701; Worthlngton v. Warrington, 5 C. B., 1318. 
 
 635 ( p) Fane v. Spencer, 2 Mer., 430, n. 
 
 {m) Bryant v. Busk, 4 Russ.. 1. (q) 37 and 38 Viot., c. 78. 
 
 (n) Curlingv. Flight,6Ha.,41; S.C.,2Ph, (r) Bennett v. Fowler, 2 Beav, 302. 
 
 613. (s) Cosser v. Collinge, 3 My & K , 283; 
 
 (o) Fildcs V. Hooker, 2 Mer , 424; Souter Smith v Capron, 7 Ha., 185; Grosvenor v. 
 
 V. Drake, 5 B. & Ad, 992; Hall v. Betty, 4 Green. 7 W. R., 140; cf. Collins v. Stutely, 
 
 Man & Gr., 410 As to ilie contract for the id , 710. 
 sale of a contract for a lease, see Kintrea v. 
 
 _ '_ Unless the vendee expressly assumes the risk as to title, although no pro- 
 vision is made in the contract for a covenant of warranty to be inserted in the 
 deed, if tlie vendor cannot give a good title, equity will not, as a general rule, 
 decree its specific performance. Bates v. Delavan, 5 Paige, 299 ; Watts v. Wad- 
 dle, 1 McLean, 20U. And not only mu.st the title not be a defective one, but it 
 must be such an one as the vendor covenanted to convey. Tomlin v. McCord, 
 5 J. J. Marsh., 135; Jarman v. Davis, 4 Monr., 115. But where a person agree- 
 ing to sell lands has a good title, and was able to convey at the time of the bar- 
 gain entered into, and no delay can be imputed to him in performing his part 
 of the contract, the contract is considered in equity as then executed; the subse- 
 quent conveyance being only matter of form, the substance being the bargain. 
 Kay v. McCulloch, Conf. Cam. & Nor., 492.
 
 INCOMPLETENESS OF THE CONTRACT, 171 
 
 the purchaser had a fair opportunity of ascertaining for 
 himself the i)ro visions of the original lease ',{t) and if the 
 contract were silent, and unusual provisions were found in 
 the head lease, the court would probably not enforce specific 
 performance on the ground of the imjplication referred to.{u) 
 Possession taken by the intended lessee is a strong circum- 
 stance to fix him with an acceptance of the terms of the 
 head lease. («) But it is not conclusive, and the circum- 
 stances under which the possession was taken may dejDrive 
 it of this effect. ('M)) 
 
 § 357, The question whether or no there is an implica- 
 tion in executory contracts in favor of the insertion in the 
 executed contract of all such stipulations as are usually in- 
 serted in such contracts, appears one still open in our»law, (re) 
 
 § 358, An implied term may, of course, be rebutted by 
 the contract or conditions of sale ; as where they limit the 
 title to be deduced, or provide that the purchaser shall 
 simply take the vendor' s interest, (y) And further, although 
 an express term of a contract is in nowise affected by 
 notice, (£•) yet notice is sufficient to rebut the presumption of 
 an implied term ; fpr that is something not growing out of 
 the contract itself, but given by law, and a matter therefore 
 not of contract but of notice. («) So that, for instance, where 
 a purchaser has notice that the vendor is only a lessee, he 
 cannot insist on the implication which might otherwise arise, 
 that the contract is for the fee. (5) 
 
 § 359. Again, a material term may well be supplied by 
 construction or inference where the circumstances Justify it; 
 but if neither supplied by expression, construction, nor in- 
 ference, the contract is incapable of performance. Tlius, a 
 contract for the grant of a term of years may be construed 
 to be for a term of years commencing from the date which 
 the memorandum of the contract bears ;(e) but where the 
 contract is either undated, or there are stipulations for 
 things to be done before the commencement of the term, 
 which show that the date of the contract could not be in- 
 
 (<) Hvde V. War.len. 3 Ex. D , 73. (y) Frerae v. W-right, 4 ^Jaj^ . 364^ 
 
 (V) FllRht V. Baslin, 3 Aly. & K., 282. (z) Barnet v. Wheeler. .SI. & W 36 
 
 (V) Cesser v. ColUnge; Smith v. Capron. (n) Ogilvie v. Foljambe, 3 Mer , 53, 61. 
 
 ubi BUBra (*) Oowley v. ^^ atts, 1* Jur.. 17-2. 
 
 (w) Hyde V. Warden, ubi supra. (c) Doe d. Phillip v. Benjamin 9 A. & E , 
 
 \x) Ricketts v. Bell, 1 De w. & Sm., 335, 644; Hersey v. Gibli-tt, 18 Beav., 1/4; Jaqiies 
 
 where the question was much discussed by v. Millar, 6 CIk D., 153. See, too, Wesley v. 
 
 Knight Bruce, V C. Of. Blakeney v. Har- Walker, 26 W. R., 368. 
 
 die, I. R. SEq., 381.
 
 172 FKY UN SPECIFIC PERFORMANCE OF CONTRACTS. 
 
 tended to be the coiiimencement of the term, there the con- 
 tract is incomplete, because a material item in it is entirely 
 
 wanting. (<^) 
 
 j< :i«0. Where A., being lessee of a house and shop for 
 the unexpired residue (fifty-nine years) of a term of eighty 
 years, agreed to sub-let the premises to B. (who did not 
 know the nature of A.'s interest) at a fixed yearly rent, 
 but the duration of the under-lease was not specified in 
 the contract, and B. went into and remained in possession, 
 and laid out money in improving the premises, and ulti- 
 mately, when the head lease had still twenty years to run, 
 brought his action for specific performance of the contract ; 
 it was held, by Bacon, Y. C, that B. was entitled to an 
 under-lease for the whole of the residue of the term, less 
 one day; and the court of appeal affirmed the plaintiff's 
 right to an under-lease of defined duration, though they 
 varied the vice-chancellor's decision by directing A. to 
 grant an under-lease for the residue of the term, less one 
 day, if the plaintiff should so long live.(e) 
 
 (d) Blore V. Sutton, 3 Mer , 237 (where it W. U., 4S7; reversing S. C, 12 W. R., 704; 
 does not appear that the memorandum bore Dolling v Evans, 15 VV". R , 394 
 any date); Xesham v. Selby, L, R 13 Eq., re) Kusel v. Watson, II Ch. D., 129. Cf. 
 191; 7 Ch.,406; Cartwright v. Miller, 36 L. Browne v. Warner, 14 Ves , 156; Re Kings 
 T.. 398 See, too, Southern v. Harriman,14 Leasehold Estates, L. R 16 Eq.,521; Wood 
 
 v. Beard, 2 Ex. D., 30,
 
 UNCERTAINTY OF THE CONTRACT. 173 
 
 CHAPTER IV. 
 
 OF THE TJNCERTAIXTY OF THE CONTRACT. 
 
 §361. It is obvious that an amouiit of certainty must 
 be required in proceedings for tlie specific performance of a 
 contract greater than that demanded in an action for dam- 
 ages. For to sustain the latter proceeding, the proposition 
 required is the negative one, that the defendant has not 
 performed the contract— a conchision which may be often 
 arrived at without any exact consideration of the terms of 
 the contract ; whilst in proceedings for specific performance 
 it must appear not only that the contract has not been per- 
 formed, but what is the contract which is to be performed. 
 It is, perhaps, impossible to lay down any general rule as 
 to what is sufficient certainty in a contract ; but it may be 
 safely stated that the certainty required must be a reasona- 
 ble one, having regard to the subject-matter of the con- 
 tract, (a)' and the circumstances under which and with 
 
 (a) See Arist. Eth. Mc. lib. i., c. 3. 
 
 1 Notwithstanding the terms of a contract are general, yet equity will en- 
 force it if the law supplies the details; but it will not do so if details are omit- 
 ted which the law cannot adopt. Ridgway v. Whorton, 6 House of Lords, 
 285; Nichols v. Wilhams, 22 N. J. Eq., 63; Tiernan v. Gibney, 24 Wis., 190; 
 Clark V. Clark, 49 Cal., 586; Riley v. Farusworth, 116 Mass., 223; Picket v 
 Merchants' Nat. Bank, 32 Ark , 346. An agreement did not call for a deed 
 with full covenants. Held, that the vendee was only entitled to a good de_ed 
 to convey the title in fee simple. Lounsberry v. Locander, 2;j N. J. Eq., oo4; 
 Thayer v. Tony, 37 N. J. Law, 339. 
 
 . Agreement to convey good title.] A covenant to convey a "good title," does 
 not necessarily entitle the party to a warrantee deed, a "good title being 
 effectually vested in him by a quit claim deed. Gazeley v. Price, lb John., 
 267; Potter v. Tuttle, 22 Conn., 512; Kyle v. Kavanaugh, 103 Mass , dob; 
 contra, Hoback v. Kilgores, 26 Gratt., 442. 
 
 Tax assess7nents.] The vendee is liable for tax assessments iCTied subsequent 
 to the sale, where real property is sold, and a title bond given. Hall v. Denckla, 
 28 Ark., 506. 
 
 Tiine of cmnpletion may be implied.'\ This maybe done from the nature or 
 condition of the subject-matter of the contract. McKay v. Carnngton, 1 Mc- 
 Lean, 59; Hoyt v. Tuxbury, 70 111., 891. 
 
 Contract to convey land; rule as to certainty.] The certainty required for the 
 specific performance of an agreement to sell land, refer's as well to the descrip- 
 tion of the property as to the estate to be conveyed. O'Brien v. Pentz, 48 Md.,
 
 174 FRY ON SPECIFIC PERFORMANCE OF CONTRACTS. 
 
 562; Shrivcr V. Seiss, 49 id., 384; Sliakspcarc v. Markham, 10 Hun, 311; Cox 
 V. Cox, 59 Ala., 591. 
 
 PncNon in contracts.] The following cases should be consulted under this 
 head- Colson v. Thomson, 2 Wheat., 336; Carr v. Duval, 14 Pet., 77; Kendall 
 V \lmv 2 Sumn 278; Boweu v. Waters, 2 Paine, 1; Morrison v. Rossignol. 
 s'Cal 64- 'Minturu v. Baylis, 33 Cal., 129; Miller v. Cotton, 5 Ga., 341; Fitz- 
 patriciv v' Beatty 6 111. (Gilm.), 454; Burk v. Creditors, 9 La. An., 57; Mc- 
 Murlrie v. Bennette, llarr. Ch. (Mich.), 124; Montgomery v. Norris. 2 Miss. 
 (How ) 499' Rockwell v. Lawrence, 6 N. J. Eq. (2 Halst ), 190; Lockerson v. 
 Slilhveli 13 N. J. Eq. (2 Beas.), 257; Waters v. Brown, 7 J. J. Marsh., 123; 
 Goodwill V. Lyon, 4 Port. (Ala.), 297; Madeira v. Hopkins, 12 B. Mon., 593; 
 Graham v Call 5 Munf., 396; Aday v. Echols, 18 Ala., 353; Sheid v. Stamps, 
 2 Sneed. (Tenn.), 172; Agard v. Valencia, 39 Cal, 292; Talman v. Franklin, 3 
 Duer 395; Lobdell v. Lobdell, 36 N. Y., 327; Wiswell v. Teft, 5 Kans., 263; 
 Lon<>- V. Duncan, 10 id., 294; Johnson v. Johnson, 16 Minn , 512: Hardesty v. 
 Rich°irdson 44 Md., C17, Hyde v. Cooper, 13 Rich. Eq., 250; McKibbin v. 
 Brown 14 X. J. Eq., 13; Welsh v. Bayard, 21 id., 186; Huff v. Shepherd, 58 
 Mo., 242; Roundtree v. McLean, Hempst., 245; Lloyd v. Wheatley, 2 Jones, 
 267- Duvall v. Myers, 2 Md. Ch., 401; Wadsworth v. Manning, 4 id., 59; 
 Clark V. Rochester R. R. Co., 18 Barb., 350; Wright v. Wright, 31 Mich., 380; 
 Odell V. ]\Ionn, 5 Oregon. 96; Mehl v. Van der Walleke, 2 Lans., 267; Fott v. 
 Webb, 59 Barb., 38; Munsel v. Loree, 21 Mich.. 491; McClintock v. Laing, 22 
 id.. 212; Allen v. Webb, 64 Rl., 342; Buckmaster v. Thompson, 36 N. Y., 558; 
 Bowman v. Cunningham, 78 Rl., 48; Schmeling v. Hiesel, 45 Wis., 325; Blan- 
 chard v. Detroit R. R. Co., 31 Mich., 44; Carson v. Percy, 57 Miss., 97; Mat- 
 terson v. Scofield, 27 Wis., 671; Reynolds v. O'Neil, 26 K J., 223; Ring v. 
 Ashworth, 3 Iowa, 452; Cornell v. Mulligan (21 Miss.), 13 Smeed. & Marsh., 388. 
 
 Examples of sufficient descrijjtion of land.] "Land, whereon the vendor re- 
 sides." "The D. G. Roe farm." This is sufficient, provided it can otherwise 
 be sufficicntlv identified. Simmons v. Spenill, 3 Jones' Eq., 9. "Land lying 
 on the southwest side of Black river, adjoining land of Wm. Hoffland and 
 Martial." Kitchen v. Herring, 7 Ired. Eq., 190. "Land lately bought by A. 
 from B., to wit: a part bounded by the section line running from the northeast 
 corner of said tract to the stake put by C. on the southeast ; thence in a due 
 northea-st course until it strikes the main road; thence along the said road, then 
 it strikes the northern line of said tract; thence to the beginning." Hooper v. 
 Laney, 39 Ala., 338. Land was located on the south side of a river in a deed, 
 referring to a patent which placed the land on the west side of such river. 
 The identity sufficiently appearing— Held, that the discrepancy was immaterial, 
 Munson v. Davis, 20 Tex., 419. The town in which the land Hes need not, of 
 necessity, be stated. Robeson v. Hoonbacker, 3 N. J. Eq., 2 Green, 60. A 
 contract of conveyance described a right of way, in which the length of the 
 way was not stated ; the terminal points were given, and the line of way so 
 fixed as to be readily determinable by the government surveys. Held, sufii- 
 cient. Puttman v. Haltey, 24 Iowa, 425. The grantor agreed to convey a 
 right of way eighty feet wide over a tract of land, and the grantee subsequently 
 entered and laid out his road with the acquiescence of the grantor. Held, that 
 the contract was sufficiently definite, and that specific performance would be 
 enforced in equity. Purinton v. Northern 111. R. R. Co., 46 111., 297. 
 
 Examples of insufficient descnption of land.] " That a house should be put 
 in repair, and handsomely decorated." Taylor v. Partington, 7 De G. M. & G., 
 328. " The necessary land for making a railway through the estate." Pearce 
 v. W^atts, L. R., 20 Eq., 492. The contract recited that a definite sum was to 
 be paid, on a given day, for 120 acres of land in Shannon county. Mo., pro- 
 vided it shall not have been sold before that time. Miller v. Campbell, 52 Ind., 
 125; see, also, Lynes v. Hayden, 119 Mass., 482. For the sale of the hou.ses in 
 Smithfield street, without other description, or disclosing to whom they be- 
 longed. Hammer V. McEldomney, 46 Pa. St., 334. A. subscribed $50, and a 
 lot to build upon, for the purpose of building a church, without stating the 
 extent or boundaries of the lot. Church of the Advent v. Farrow, 7 Rich. 
 Eq., 378. These were all held to be too indefinite to be enforced. The follow- 
 ing cases should be consulted under this head : Camden and Amboy R. R. Co. v.
 
 UNCERTAINTY OF THE CONTRACT, 175 
 
 regard to which it was entered into, {by Thus, in one case, 
 where there was a contract between two railway companies, 
 
 (6) Marsh v. Milligan, 3 Jur. N. S., 979; (Wood, V. C) 
 
 Stewart, 18 N. J. Eq., 489; McGuire v. Stevens, 43 Miss., 724; Whelau v. Sul- 
 livan, 103 Mass , 204; Ellis v. Deadman, 4 Bibb., 467; Johnson v. Craig. 21 
 Ark., 533; Jordan v. Fay, 40 Me., 13i); Graham v. Hcudren, 5 Munf., iSo; 
 Parish v. Koons, 1 Pars. Eq. (Pa.) Sel. Cas., 79; Jordou v. Deaton, 23 Ark., 
 704; Ferris v Irving, 28 Cal., G45; Millard v. Ramsdell, Harr. (Mich.), 373; 
 Shelton v. Church, 10 Mo., 774; Prater v. Miller, 3 Hawkes. 628; Copps v. 
 Holt, 5 Jones' Eq., 153; Patrick v. Horton, 3 W. Va., 23; Taylor v. A.shley, 
 15 Texas, 50; Brakin v. Hambrick, 25 id., 408; Dobson v. Litton, 5 Coldw. 
 (Tenn.), 616; Reynolds v. Warring, You., 34ij; Dav v. Griffith, 15 Iowa., 104; 
 Gelston v. Sigmund, 27 Md., 334; Nichols v. Williams, 22 N. J. Eq., 63; 
 Grace v. Demison, 114 Mass., 16; Martin v. Halley, 61 Mo., 196; Carr v. Pas- 
 saic Land Co., 22 N. J. Eq., 85; Soles v. Hickman, 20 Pa. St., 180; Kemble v. 
 Kean, 6 Sim., 333; Franks v. Martin, 1 Ed., 309. In Launderson v. Cocker- 
 mouth R. R. Co., 11 Beav., 497; White v. Hernian, 51 111., 243, the courts held 
 that they would endeavor to put a reasonable interpretation upon vague ex- 
 pressions in an agreement. 
 
 1 Where the terms of a contract are indefinite or uncertain, specific perform- 
 ance will not be decreed. McMurtie v. Bennett, Harring. Ch., 124; Millard v- 
 Ramsdill, id., 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; Fitz- 
 patrick v. Beatty, 1 Gilm., 454; Goodwin v. Lyon, 4 Porter, 297. So where a 
 tenant, holding by a lease under seal, in consequence 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, without specifying how much, it was 
 held to be so uncertain that equity could not relieve the tenant. Smith v. An- 
 krim, 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 execu- 
 tory and depends on a future event which may never happen, will not be de- 
 creed. Bradley v. Morgan, 2 A. K. Marsh., 369. It seems that the rule, that 
 a specific performance will be refused where the contract is vitiated by uncer- 
 tainty, is applied with more than ordinary stringency against assignees and rep- 
 resentatives of the contracting parties. Kendall v. Almy, 2 Sumn., 178; Mont- 
 gomery v. Norris, 1 How. (Miss.), 499. Though specific performance 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 Hawkes, 628. And in Wiswall v. McGowan, 1 Hoff. Ch. 
 126, it is said that where a contract refers to the subject-matter by vague and 
 insufficient description, the defect may be supplied by other documents, commg 
 from, or adopted by, the party against whom the contract is to be euforeed, 
 pending and connected with the transaction. It will be no objection to decree- 
 ing specific performance of a part of a contract, that another part is uncertam. So, 
 where A. purchased property of B. at a low price, and agreed to give the chil- 
 dren 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 decree- 
 ing performance of that part of the contract, notwithstanding that another 
 pol-tion of the contract was indefinite. Sartcr v. Gordon, 2 Hill. Ch., 121 In 
 Andrews t. Andrews, 28 Ala., 432, the objection of imcertainty in the terms 
 of the contract being raised, the court held, that while great certumty and pre- 
 cision in contracts were indispensable prerequisities to their specific peri orm- 
 ance, 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 mean- 
 ing which they attached to the words, the terms of the contract were suffi- 
 ciently certain.
 
 176 FRY ON SPECIFIC PERFORMANCE OF CONTRACTS. 
 
 that the one should have the right of running with their 
 engines, carriages and trucks, and carrying traffic upon the 
 line of the other, Parker, V. C, held that this was not 
 too uncertain to be enforced. (c) "It means," he said, "a 
 reasonable use— a use consistent with the proper enjoyment 
 of the subject-matter, and with the rights of the granting 
 party." (rZ) And we have already seen that where the terms 
 of tiie contract are general, but the details are such as the 
 law will supply, the contract will not be considered as ob- 
 jectionable for vagueness and uncertainty, (e) 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 held not incapable of being performed by the court ; 
 but it is to be observed that in this case the company had 
 entered and made the railway. (/) In another case, where 
 a rector had agreed to grant a lea.se of his glebe, "except 
 thirty-seven acres thereof" (which were not specified), Lord 
 Romilly, M. R., held that the contract was not void for un- 
 certainty, inasmuch as the lessor had a right to select the 
 thirty-seven acres at any time before the execution of 
 the lease. His lordship held, however, that this right must 
 be so exercised as not to interfere with the lessee' s bene- 
 ficial enjoyment of the lands included in the lease. (^) 
 
 § 36^. Where the terms of the contract are originally 
 uncertain, but the contract has been acted on, and a user 
 and course of dealing have existed between the .parties 
 which gives certainty to what was originally uncertain, the 
 court has, in some cases, had regard to this as removing 
 the original difficulty. (^) 
 
 § «tO«t. The mere fact of indefinite words, such as "e^ 
 ccBtera^'^ being used in a contract does not necessarily make 
 it too uncertain for performance. Such words may be un- 
 derstood with sufficient certainty by reference to the words 
 to which they are added and the surrounding facts of the 
 case»(i) Again, where, by the contract for a lease, the ten- 
 
 (c) Great Northern Railway Co. v. Man- 4 Jur. N. S., 183 (Stuart. V. C); S. C, 2 De 
 Chester, Sheffield and Lincolnshire Railway G. «& J., 559, and supra, § 318. 
 
 Co.,5 DeG. & Sm.,138. (g) Jenkins v. Green (\o. 1), 27 Beav., 437; 
 
 (d) 5 De G. & Sm., U9. and see supra, § 329. 
 
 (e) Per Turnf^r, L. J., in South Wales Rail- (h) Oxford v. Provand, L. R. 2 P. C, 135. 
 way Co. V. Wythes, 5 De G. M. & G., 888; See, also, Laird v. Birkenhead Railway Co., 
 Bupra, §349. Johns., 500. 
 
 (/) S<iundersoHV.Cockermoath and Work- (i) Cooper v. Hood, 26 Beav.,293; Powell 
 Ington Railway Co., 11 Beav,, 497; affirmed v. Lovegrove, 8 De G. M. & G., 357; Parker 
 by Lord Cottenham. See Parker v. Taswell, v. Taswell, 2 De G. «fc J., 559.
 
 UNCEKTAINTY OF TJIE CONTRACT. 177 
 
 ant was to do certain specified works, and "other works 
 upon the property, at a total estimated cost of about £150, 
 and the specified work were such as woukl evidently cost 
 nearly that sum, the court considered the "other works" 
 to be of such a trifling description that their being left un- 
 defined was not a ground for refusing specific perform- 
 ance, (y) 
 
 § 364. On the ground of uncertainty, the court has re- 
 fused specifically to perform marriage articles prepared by 
 a Jewish rabbi in an obscure form, said to prevail amongst 
 German Jews ;(^') also, a contract for the sale of land, where 
 there was a doubt as to the identification of a plan to be in- 
 corporated into the contract. (^) In another case the court 
 refused to interfere in respect of an engagement by the de- 
 fendant, Mr. Kean, to perform at a theatre. (m) "Independ- 
 ently of the difl[iculty of compelling a man to act," said 
 Shad well, V. C, "there is no time stated, and it is not 
 stated in what character he shall act ; and the thing is alto- 
 gether so loose that it is perfectly impossible for the court 
 to determine upon what scheme of things Mr. Kean shall 
 perform his agreement." (ti)' And where a vendor had 
 agreed to sell an estate with a reservation of "the necessary 
 land for making a railway through the estate to Prince 
 Town," Jessel, M. R., held that the contract could not be 
 enforced by the purchaser, (o) 
 
 § 365. So, again, where the contract is discrepant with 
 itself, or there are two difi'erent contracts relating to the 
 same subject-matter, the court will generally refuse siDecific 
 performance. (_29) In a case,($') where an offer was made to 
 
 (j) Baumann v. James, L,. R. 3 Ch., 508. (p) Callaghan v. Callaghan, 8 CI. & Fin., 
 
 (k) Franks v. Martin, 1 Eden, 309. 374. 
 
 (I) Hodges V. H )rstall, 1 Russ. & M., 116. (g) Taylor v. Portington, 7 De G. M. & G., 
 
 Distinguish Naylor V. Goodall, 26 W.R., 16-2. 328; cf. Norris v. Jackson. 1 J. & H.,319; 
 
 (tn) Kemble v. Kean, 6 sim., 333. Cf. Ghil- Samuda v. Lawford, 4 Giff,, 42; Gardner v. 
 
 lis V. McGhee, 13 Ir. Ch. R., 48. Fooks. 15 ^V. R., 388; Dear v. Verity, 17 W. 
 
 («) 6 Sim., 337. R., 567. 
 
 (o) Pearce v. Watts, L. R. 20 Eq„ 492. 
 
 ' See Sanquirico v. Benedetti, 1 Barb. Sup. Ct. Rep., 315. In Hambiin v. 
 Dinneford, 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 contracts relating to property and agree- 
 ments for personal services can be established to be of general utiUty, 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., 
 
 12
 
 178 FKY ON SPECIFIC PERFORMANCE OF CONTRACTS. 
 
 take a house for a specific term and at a certain rent, if put 
 into tliorougli repair, and stating also that the drawing 
 rooms would be required to be handsomely decorated ac- 
 cording to the present style, and making some further 
 requirements as to painting, and the offer was accepted, 
 the court of appeal in chancery, reversing the decision of 
 Lord Rom illy, M. R., dismissed the bill on the ground of 
 the uncertainty imported into the contract by the expres- 
 sions in the offer as to repairs. Where a contract was for 
 the purchase of "the land 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 coni- 
 pany and the vendor as to roads, culverts, etc., etc.. Lord 
 Romilly, M. R. (following the decision of Turner, V. C, in 
 Webb V. Direct London and Portsmouth Railway Co.,[r] 
 then unreversed), held that a surveyor going upon the 
 ground, and having the contract in his hand, could accu- 
 rately ascertain the land to be taken, and that the terms of 
 
 (r) 9 Ha., 129; 1 De G. M. & G., 521. 
 
 said, "Although there may be cases in which a court of equity will decree 
 specific performance of a contract for personal services, still this is not one of 
 that character. The difficulty, if not the utter impracticability, of compelling 
 a specific performance of the contract set forth in the bill, is a conclusive reason 
 why this court should refuse its interference." Walworth, Ch., in De Riva- 
 finoli V. Corsetti, 4 Paige, 270, in representing the difficulties attendant upon 
 the enforcing of contracts of this nature, says, "I am not aware that any offi- 
 cer of this court has that perfect knowledge of the Italian language, or pos- 
 sesses that exquisite sensibility in the auricidar nerve which is necessary to 
 understand, and to enjoy with a proper zest, the peculiar beauties of the Italian 
 opera, so fa.scinating 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 chancery, in ascertaining whether he performed 
 his engagement according to the spirit and intent. It would also be very diffi- 
 cult for the master to determine what effect coercion might produce upon the 
 defendant's singing, especially in the livelier airs; although the fear of impris- 
 onment would unquestionably deepen his seriousnessncss in the graver parts of 
 the drama." There are cases, however, where the court has interfered we^^a- 
 tively, but they have been in the nature of a partnership. "Thus, in the case 
 of a theatre considered as a partnership, a contract 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 writer for' the stage should engage for 
 the talents of each other; and that neither should write or act but for the thea- 
 tre in which they are jointly interested." Willard's Eq. Jur., 277. But this 
 partiienliip 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 negatively, to prevent the perform- 
 ance of the other." See the cases of Morris v. Coleman, 18 Ves., 4^7; Clark 
 V. Price, 2 Wilson, 157; Waters v. Taylor, 15 Ves., 10; Ex parte Forde, 7 id., 
 617; Ex parte O'Reilly, 1 id., 112; Kemble v. Kean, 6 Sim., 333.
 
 UNCERTAINTY OF THE C'ONTKACT. 179 
 
 the contract were, tlierefore, sufficiently ex])licit ; but this 
 decision was overruled on appeal, and Kniglit Bruce, L. J., 
 held the language "too vague, too uncertain, too obscure 
 to enable this court to act with safet}" or propriety. '" f 6-) 
 A contract to take the mines under lands of A. at B., B. 
 being neither a township nor a parish, has also been held 
 uncertain. (^) 
 
 § 30(>. In another case, wdiere there was a contract in 
 general terms for the construction of a railway according to 
 the terms of a specification to be prei)ared by the engineer 
 of the company for the time being, it was held too vague, 
 obscure and uncertain to be enforced \{;u) the like was held 
 in the case of a contract to give the plaintiffs accommoda- 
 tion for the sale of their articles in the refreshment-rooms 
 of the defendants, and to furnish them with the necessary 
 appliances. (y) The like was again held where one partner 
 proposed to sell to the other his share in the business, and 
 that a large portion of his capital should remain in the 
 business, but the writing did not state how much, for how 
 long, or at what interest, and this proposal was accepted. (w) 
 And again, where on the sale of a piece of land there wnre 
 stipulations that, in the event of there being any coals or 
 ironstone under the land, a royalty of so much per ton 
 should be iDaid thereon by the i)urchaser to the vendoi-, and 
 also that any mines required to be left by a certain inilway 
 company were to be paid for, as if the same had bnen got- 
 ten, out of the money to be received from the railway com- 
 pany ; 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 contingency whether 
 there was any coal or ironstone under the land would re- 
 main undecided ; and as to the former stipulation, that the 
 parties seemed to have intended to work it out by a reserva- 
 tion 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 
 
 (s) Lord .Tames Stuart v. London and North («) South Wales Railway Co. v. Wythes, 5 
 
 Western Uailway Co., 15 Beav., 513; S. C.,1 De G. M. & J., t«0. . , ., , 
 
 DeG. M & G.,721. Cf. Bellaney V Knight, (f) Pans Chocolate Co. v. Crystal l"Hlac« 
 
 10 W R '2S9 Co., 3 Sm. & Gif., 119. 
 
 (0 Lancaster v. De Trafford, 31 L. J. Ch , (w) Cooper v. Uood, '26 Beav., 293. 
 55t.
 
 180 FRY OX SPECIFIC PERFORMANCE OF CONTRACTS. 
 
 a lease, except the rates of royalty : and the court accord- 
 indy declined to enforce the contract for sale.(^) 
 
 Jj ilttT. The same certainty will not be required in cases 
 where there is any element of friiud as in simple cases of 
 specific performance of a contract. Thus where A. agreed 
 with B. in elfect that if B. would not try to buy a certain 
 estate, A. would try to buy, and in case of success would 
 cede a portion of the estate to B. at a certain price ; and 
 B. acted on his bargain and allowed A. to purchase ; and A. 
 having purchased refused to perform his part and set up the 
 uncertainty of the part to be ceded ; the court held that the 
 defense could not avail and directed an inquiry to ascertain 
 the portion to be given up and the price. It seems that if 
 this could not have been ascertained, B. might have claimed 
 the whole estate. (?/) 
 
 (X) Williamson v. Wootton, 3 Drew., 210. Co., 3 K. & J., 675; ftturge v. Midland Rail- 
 See further as to uncertainty, Harnett v. way Co.. 6 W.R., 2SS; Jeflfery v. Stephens. 
 Yielding, 2 Sch.&Lef., 549; Tatham v.Platt, 8 id., 427; Firth v. Ridley, 33 Beav., 516, 
 9 Ha, 6C0; Taylor v. Gilbertson, 2 Drew., supra, §71. „ .,. x^ ,,, 
 391; Holmes v. Eastern Counties Railway (y) Chattock v. Muller, 8 Ch. D , 177.
 
 WANT OF FAIRNESS IN THE CONTRACT. 181 
 
 CHAPTER V. 
 
 OF THE WANT OF FAIRNESS IN THE CONTRACT. 
 
 § 368. There are iiuuiy instances in which, though there 
 is notliinu- that actually amounts to fraud, there is neverthe- 
 less a want of tliat equality(a) and fairness in the contract 
 which, as we have seen, are essential in order that the court 
 may exercise its extraordinai-y jurisdiction in specific per- 
 formance.' In cases of fraud(&) the court will not only not 
 perform a contract, but will rescind it ;' but there are many 
 
 (a) As to the equality which natural justice (b) Thp jnris'liction to rescind is. of course, 
 
 requires lo fiu'l place in contract see Gro. not co fined to cases of actual Iraua. See 
 
 tious, De Jure Belli ac Pads, iib. il, cap. 12, per James, L.J.,in Ti)rrance v. Bolton, L R. 
 
 §8, et seq. !^ Ch.. 1-24 
 
 1 No rule in equity is more clearly estnblished than that upoi] an application 
 for a specific performance of a coiJtract, 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 liis remedy at 
 law. Modisett v. Johnson. 2 Black., 481 ; Seymour v Delancey, 3 Cow., 445; 
 Cabeen v. Gordon, 1 Hill. Ch., 51. 
 
 ' Agreements will also be decreed to be delivered up for cancellation upon 
 the ground of surprise. Thus, in Willan v. Willan. 16 Ves.. 72, wiiich was a 
 case^concerning a lease with a covenant for perpetual renewal, at a fi.xed rent, 
 of premises under a church, renewable upon fines continually increasing, neither 
 party understanding the effect of their contract, the agreement was ordered to 
 be canceled. Twining v. Morrice, 2 Bro. C C, S2(], a case to the same elTect, 
 was quoted by Lord Elden. with approbation. And in America the prmciple 
 there established has been received and acted upon Gillespie v. .Moon. 2 .John. 
 Ch., 598; Seymour v. Delancey, 3 Cow., 445. There appears to have l)een a 
 difference of opinion concerning the meaning which courts of equity atta(-h to 
 the word surprixe, which we have just mentioned, as atlbrding a ground of re- 
 lief. See Eden, Injunc. (2d Am. 'ed ), 21 and 27. notes. .Mr Jeremy (2 Lq. 
 Jur., ch. 2, p. 36()) seems to suppo.se that there is somethmg technical in its 
 meaning Surprise, he says, " it seems is a term for the immediate result of a 
 certain species of mistake, upon which this court will relieve." He also says 
 that surprise is often used as svnonymous with fraud; but that " they may, 
 perhaps, be distinsuished by the circumstance, that in instances to which the 
 term fraud is applied, an vinjust design is presupposed; but that in those to 
 which surprise is as.siiined. no fraudulent intention is lo be presumed i" ^"e 
 former case, one of the parties seeks to iiiiure the other; in the latter, both of 
 them act under an actual inisconeeptlon of the law." Mr. Justice Story seems 
 to be of the opinion, that this explanation does not render the dehnition ot .Mr. 
 Jeremy any clearer than it was before; and he proceeds to say, tliat. "there 
 does not .seem anything technical or peculiar in the word surprise, as used m 
 courts of equity." The common definiticui of Johnson sunu'ieiitly explains its 
 sen.se. lie defines it to be the act of taking unawares; the state of being taken 
 unawares; sudden confusion or perplexity. When a court of e( pi ity relieves 
 on the ground of surprise, it does so upon the ground that the parly has been 
 taken unawares, that he has acted without due deliberation, and uiuKt con-
 
 182 FRY OX SPECIFIC PEKFOliM ANCE OF CONTRACTS. 
 
 cases ill which the court will stand still, and interfere neither 
 for tlie one ijurpose nor the other. (c)' 
 
 ij :Ui9. Tlie unfairness in question may be either in the 
 terms of the contract itself, or it may be in matters ex- 
 trinsic and the circumstances under which, it was made ; 
 with regard to the latter, parol evidence is of coarse ad- 
 missible. (<^)* 
 
 (c) Per Lord Eldon in Willan v Willan, 16 monds, 1 Cox, 406; Redshaw v. Governor & 
 
 Ves , 83 See Savage v Taylor, Forr.,234; Co of the Bedford Level, 1 Eden, 346. 
 
 Twli'iing V. Morrice. 2 Bro. C. C , 326; Sav- (.d) Davis v. Sy monds, 1 Cox, 402 
 age V. Brocksopp, 18 Ves , 335; Davis v. Sy- 
 
 fuscd and sudden impressions. The case of Evans v. Llewellyn, 3 Bro. Ch., 
 150, is a direct authority 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. 13i, 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 fraud or mistake connected with it in order to become a proper subject of 
 equitable relief. This is probably erroneous. The basis of Lord Eldon's de- 
 cree in Willan v. Willan was, that the parties were ignorant of the effect of 
 their agreement. There was no misunderstanding in the case ; but a total Idck 
 of under. tiandin;/. 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 \mder 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, I A. K. Marsh., 51. 
 
 ' Specific performance is a matter of judicial discretion, and not of arbitrary 
 right; and a court of chancery may refuse to rescind a contract, where it would 
 refuse to enforce a specitic performance of it at the suit of the other party. It 
 is not more binding upon tlie 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, John. Ch., Ill; Minturn v. Seymour, 4 id., 497; Sey- 
 mour v. Delancey, 6 id., 222; Jackson v. Ashton, 11 Peters, 229; McNeil v. 
 Magee, 5 Mason, 244; Howard v. Moore, 4 Sneed (Tenn.), 317; Acker v. 
 Phetnix, 4 Paige, S05; Revell v. Hussey, 2 Ball & Bea., 288; Clitherall v. 01- 
 givie, 1 Dessau., 257; Barker v. May, 3 J. J. Marsh , 436; Osgood v. Franklin, 
 2 John. Ch , 23. 
 
 ^ Neio cmitvacA. inconsisteht with former one.'\ Anew contract was inconsist- 
 ent with and rendered impossible of performance by a former one between the 
 same parties. Held, that the first was rescinded, upon the principle that a sub- 
 sequent act of the Lesrislature repeals a former act, the two being inconsistent. 
 Paul v. Meservey, 58 Me., 419. 
 
 Written contract changed hy presumption of a new contrari.'] Lord Eldon said, 
 in Const V. Harris, T. & R., 496, 523: "In ordinary partnership, nothing is 
 more common than this, that though partners enter into a written agreement 
 stating the terms upon which 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." 
 See, also. Geddes v. Wallace, 2 Bligh, 270, 297; Jackson v. Sedgwick, 1 Swanst., 
 460; Smith v. Jeyes, 4 Beav., 505. 
 
 Hew contract by parol; waiver of written.] Nolwithstandiug the original con- 
 tract was in writing, a new contract may be made by parol, where there has 
 been acts of part performance. Wallis v. Long, 16 Ala., 738; see, also. Hunt
 
 WANT OF FAIRNESS IN THE CONTRACT. 183 
 
 § 370. The fairness of the contract, like all its other 
 qualities, must be judged of at the time it is entered into, 
 or at least when the contract becomes absolute, and not by 
 subsequent events ;(e) for the fact that events, uncertain at 
 the time of the contract, may afterwards hapjjen in a man- 
 ner contrary to the ej«pectation of one or both of the par- 
 ties, is no reason for holding the contract to have been 
 unfair.' "The period," said the Irish Lord Chancellor 
 Manners, "at which the court is to examine the agreement 
 between the parties is the time when they contracted." (/) 
 
 § 371. In the case, however, of contracts to sell at a 
 price to be fixed or any other condition to be performed be- 
 fore they become absolute, it may be urged that the time 
 when the contract becomes absolute, and not the date of its 
 signature, is the time to judge of its fairness. Unfairness 
 in the valuation is certainly an objection. 
 
 § 372. The principle of judging of the fairness of a con- 
 tract at its date applies to compromises and settlements of 
 family and other questions. "Where parties whose rights 
 are questionable, have oqual knowledge of facts, and equal 
 means of ascertaining 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, (.7) and that notwithstanding the subsequent dis- 
 covery of some common error "(7^) or a subsequent judicial 
 decision showing the rights of the parties to have been 
 different from what they supposed, or that one party had 
 nothing to give up.(/)' And the uncertainty which may 
 
 (e) So as to hardship, see infra, § 398. (A) Per Lord Langdale, U. H., in Pickering 
 
 (/) In Revell v. Hussey, 2 Ball & B., 2S8. v. Pickering, 2 Beav , 56; Frank v. Frank, I 
 
 See infra, § 398. Cas. in (Jh.. 84 
 
 (g) Cf. per Turner, L. J., in WHliams v. (i) Lawton v. Campion, 18 Beav., 87. 
 
 Williams, L. R 2 Ch., 304; Bucknell v. Buck- 
 
 nell, 7 Ir. ch. R., 130. ^^ 
 
 V. Barfield, 19 id., 117; Adams v. Nichols, 19 Pick., 275. What are parol con- 
 tracts ? A verbal contract, and a writing not under seal, is a parol contract;- 
 they are both on the same footing. A verbal contract is of as high a grade as 
 a writing not under seal, and it may be released, abrogated, or modified by aa 
 agreement either written or verbal. Bishop v. Busse, 69 111., 40;{; Rhodes v. 
 Thomas, 2 Carter (Ind. ), 638; Liuard v. Patterson, 'S Blackf., 358; SmiUi v. 
 Addleman, 7 id., 119; Woodruff v. Dobbins, 7 id., 582. 
 
 ' Therefore, fluctuations in the value of property, caused by events subse 
 quent to the making of the contract, will be regarded by the court, if the con- 
 tract be fairly entered into at the time. Low v. Treadwell, 3 Fau-f., 441. 
 
 2 Courts of equity will sustain agreements or compromises of this nature, 
 upon grounds of public policy, provided that the couchisions of the parties 
 have been fairly entered into, made with deliberation, and reasonable in thera- 
 eelves. Story's Eq. Jur., § 121 ; Pickering v. Pickering, 2 Beav., 31.
 
 184 fi:y ox specific ivKUFouMANcno of contracts 
 
 render ;i coini)roniise fair, and therefore binding, may be 
 either in some future and uncertain event, or the future 
 ascertainment of some event past and therefore in itself 
 certain, as, for instance, whether a son was legitimate or 
 not,(,/) or wliether an nncle had made a yjarticular will or 
 not.(^) 
 
 sj ;i7;i. The principle just stated is, ])erhaps, most fre- 
 quently illustrated by cases of family arrangement or of 
 compromise; but it is applicable to contracts of whatsoever 
 nature. The case of Parker v. Palmer, (Z) which came be- 
 fore the court in the fourteenth year of Charles IT, illus- 
 trates this. Parker, as it appears, had, during the com- 
 monwealth, sold a lease which he had from a dean and 
 chapter for three lives, to Palmer, the price agreed on being 
 £4,;32(). Subsequently the purchaser agreed with the ven- 
 dor that, if he would abate him £420, he would reconvey 
 the lease whene^'er the king and dean and chapter were re- 
 stored. The abatement was made, the king and church 
 were restored, and thereupon the vendor sued for a recon- 
 veyance, whi(^h was accordingly decreed by the then master 
 of the rolls, and aflirmed by Lord Clarendon and Sir Or- 
 lando Bridgeman. Again, where a man agreed to sell for 
 £20 an allotment thereafter to be made to him under an 
 inclosure, and it turned out to be worth £200, he was never- 
 theless compelled to perform his contract \{7n) and so in a 
 case before Leach, V. C, where he maintained a contract 
 entered into without any fraud or concealment, by which 
 one partner agreed with the retiring partner to give him 
 £2,000 for the concern, though they knew the partnership 
 to be insolvent, his honor said: " Supi)ose the case of -a 
 trade attended with great risk, one X)ai'tner desj)airing, the 
 other confident and willing to buy the share of his partner, 
 and give him £2,000 for it; on what possible ground could 
 this contract be invalidated ?"(7i) The cases in which the 
 thing sold is described in general terms — as, for examj^le, a 
 manor — and the extent and value of it are at the time un- 
 certain, (o) and also the cases in which the vendor only sells 
 such interest in the property as he has, where that which 
 
 0') Siapilton V. Slapilton. 1 Atk., 2. im) hnnn. Itefore .Tokyll, M. R, cited in 
 
 0.) Heap V. rons. 9 Ha., 9j. Cooth v. Jackeon, 6 Ves., 24. 
 
 V) 1 Cas in (Jh., 42. („) Ex parte Peake, 1 Ma<l., 355. 
 
 (o) Baxeiuiale v. Scale, 19 Beav., 601.
 
 WANT OF FAIRNESS IN THE CONTIIACT. 185 
 
 is sold turns out differently from the purchaser's expecta- 
 tions are analogous to those before stated. (j??) 
 
 § 374. But in order to bring a contract within the prin- 
 ciple, the uncertainty as to the s-ubject-niatter of the con- 
 tract must at the time of the contract have been a real one 
 to both parties, either from the nature of things or from the 
 state of knowledge of both parties. A contract entered into 
 by one party who knows that the subject-matter of the con- 
 tract does not exist with another who does not know, will 
 not, it seems, be executed by the court, though its terms 
 may be such as to put the ignoiant party on his guard, and 
 to throw the uncertainty on him. In one case, the particu- 
 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 was a lien of £100 on the lease, and the 
 conditions x^rovided that even if it should Jippear that 
 Francis Norton had no interest in the premises, the pur- 
 chaser should have no i-emedy against the vendor to compel 
 him to refund ; in consequence of the state of certain part- 
 nership accounts which was known to the vendor, but which 
 the purchaser had no means of ascertaining, the interest 
 sold was of no value whatsoever, and was in fact only ex- 
 posed 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 re- 
 ceived from the i:)urchaser £150 as the purchase money ; 
 Lord Hatherley (then Wood, V. C), 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, while the vendor was selling what was worth 
 nothing, {q) 
 
 § 375. Further, the principle in question will not apply 
 w^here, though the terms of the contract may express an un- 
 certainty, that uncertainty was not understood by the par- 
 ties to comprise the event which actually happens. 'J lius 
 wdiere A. contracted with B. for the sale of a manor, and 
 stipulated that he should not be obliged to define its bound- 
 ary, and, the manor turning out to comprise a valuable 
 property not before known to either party to be part of it, 
 
 (») See infra, § 1287. (q"^ Smith v. Harrison, 26 L. J Ch.,412; 5 
 
 W. R . 408
 
 180 FKV (».N SI'KCIFIC PKIIFORMANCE OF CONTRACTS. 
 
 the purchaser, who had previously souglit to repudiate the 
 contract, liled his bill for performance, Lord Romilly, M. R., 
 on consideration of the evidence, ca,me to the conclusion 
 that neither party intended to sell or buy a mere doubtful 
 matter, and that both jiarties at the time of the contract 
 believed that it included something different from what 
 would then be convej^ed to the plaintiff, if the conveyance 
 were to be executed as he claimed it, and accordingly dis- 
 missed the bill, but without costs. (r) 
 
 Jj JJ7i>. In another case there was a farm which appears 
 to have contained 181 acres, and had coal under it, which 
 was known or believed to be traversed by a fault ; the own- 
 ers agreed to demise to A. the minerals under a portion 
 of the farm whicli lay to the eastward of an upthrow fault 
 to tlie east ; the quantity was described as supposed to be 98 
 acres or thereabouts. There were to be a rent certain and 
 royalties on the coal raised. It turned out that the fault 
 left 178 instead of 98 acres to the east of it. The court of 
 appeal in cliancery thought it clear that of such a contract 
 specific performance could not have been _gran ted at the suit 
 of the lessee. (6-) 
 
 § 377. In contracts to sell at a price to be fixed by a third 
 person, the court would no doubt consider the unfairness of 
 the valuer's conduct as a bar to the right to specific j)er- 
 formance. So in one case, where the court came to the con- 
 clusion that it was doubtful whether the valuation had been 
 made with a due attention to accuracy, Lord Eldon refused 
 specific performance of the contract to sell.(^) 
 
 § 378. In another case, where the amount of rent to be 
 paid was referred to arbitrators and an umpire, one of the 
 arbitrators so far misconducted himself as to rest his de- 
 cision, not on his own judgment, but on the will of one of 
 the parties interested, and the umpire proceeded on the foot- 
 ing of an outlay of money by the tenant for which the con- 
 tract contained no stipulation, the House of Lords reversed 
 •a decree for specific performance pronounced by the Irish 
 court of chancery, (i/,) 
 
 § 379. In another case, where the referees consulted the 
 umpire and made their award as to the value of coal upon 
 
 (r) Baxendale V Scale, 19 Beav., 601. (t) Emery v. Wase, 8 Ves., 505. Distin- 
 
 («) Davis V. Shepherd, L. R. 1 Ch., 410. guish Collier v. Mason, 25 Beav , 200 
 
 (u) Chichester v. Macintire, 4 Bli. (N. S ), 78.
 
 WANT OF FAIRNESS IN THE CONTRACT. 187 
 
 his estimate, though one at least of the referees thought it 
 wrong, this circumstance was held fatal to the vahiation 
 and the suit. (6^) Other objections were discussed, and it 
 was held that the objection (1) that the valuers did not ex- 
 amine witnesses, and (2) that one of the valuers did not go 
 down the mine but acted on the report of his grandson, 
 were not sustainable ; but another objection, that the valu- 
 ers did not sign their award together, was held entitled to 
 much weight though not determined to be valid. This case 
 is a very instructive one as to the duty of referees or 
 valuers. 
 
 § 380. In judging of the fairness of a contract, the court 
 will look not merely at the terms of the contract itself, but 
 at all the surrounding circumstances — such as the mental 
 incapacity of the parties, though falling short of insan- 
 ity, {w) their age or povertj^ the manner in which the con- 
 tract was executed, the circumstances that the parties were 
 acting without a solicitor, that the property was reversion- 
 ary, or that the price was not the full value, (re)' 
 
 § 381. Therefore whenever there are evidences of distress 
 in the party against whom performance is sought, (2/) or he 
 is an illiterate person, or whenever there are any circum- 
 stances of surprise, or want of advice, (^) or anything which 
 seems to import that there was not a full, entire and intel- 
 ligent consent to the contract, (a) the court is extremely 
 cautious in carrying it into effect. Still, it is not the doc- 
 trine of the court that a man cannot contract without his 
 solicitor at liis elbow,(5) or that aman in insolvent circum 
 stances, or in prison, is disabled from selling his estate ; 
 
 (V) Eads V. Williams, 4 De G. M. & G., 674. (a^ The nature of the proper consent to a 
 
 (««) Clarlsson v. Hanway, 2 P. Wms., 203; contract seems not incorrectly expressea m 
 
 Gartsitle v. Isherwood. 1 Bro. C. C, 5.58; the follONTins extract: " Consens.is debet 
 
 Bridjrman v. Green, VVilni. Not.. 58, 61 See esse (1) verus seu iiiternus et nuituus; (2) 
 
 supra 261 aliquo siffno exturno expressus; (3) liber et 
 
 (x) Bell V. Howarfl. 9 Alod , 302; Martin v. plene deliberatus; (4) serius, cum ammo se 
 
 Mitchell, 2 J. & W.. 413, 423; Stanley v. Rob- oblieandi." Mariani Examen, § 278_ 
 
 in80D,lR. &M.,527. (6) Llghtfoot y. Heron, 3 Y. & C. Ex . 586, 
 
 iy) Kerneys v. Hansard, Coop , 125; John- Habi-rd.ishers' Co. v. Isaac, 6 Jur. (.\. b.)^ 
 
 son V. Nott. 1 Vern., 271. 611 (Wood, V. C). 
 
 (z) Stanley v. Robinson, 1 B. & M.. 527; 
 Helsham v. Langley, 1 Y. & C. C. C, 175. 
 
 ' Where a youug man, just arrived at his majority, contracted for the pur- 
 chase of land, after an examination utterly insufficient to ascertain its value, 
 with a person who was more than a match for him, from his want of sagacity, 
 experience and advice, and who described the advantages of the purchase in 
 exaggerated terms, for a grossly inadequate price, the court refused 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.
 
 188 FliV oX SPECIFIC PEUIOUMAXCK OF CONTRACTS. 
 
 and if a coiitrart made under such circumstances will bear 
 the careful examination of the court and the full light of 
 day, it will be specifically performed, (c) 
 
 i; :i>»-J. It is enough, generally speaking, to induce the 
 court to refuse i)erfornian{'e, that there are any circum- 
 stances about the making of the contract which render it 
 not fair and honest to call for its execution ; it is not need- 
 ful that there was any intentional unfairness or dishonesty 
 at the time.{d) A leading case on this subject is Twining 
 V. Morrice,(e) 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 re- 
 lationship to the vendor, were thought to be the biddings of 
 a puffer, and so damped the sale ; the act was done in inad- 
 vei-tence by the solicitor ; but as it was done at the plain- 
 tiff's Instance, specific performance was refused by Lord 
 Kenyon, M. E,. 
 
 S; ;is:j. Unfairness arising from misstatements is consid- 
 ered under the head of misrepresentation ;(/) and cases re- 
 lating to the silence or suppression of a fact by one party 
 are considered in the chapter on fraud. (</) But it seems 
 possible that there may be cases where silence is not fraudu- 
 lent, but yet creates such a case of hardshi}) as prevents the 
 interference of the court in specific performance. On this 
 ground was put a case where a lessee ol)tained the r.^newal 
 of a lease on the surrender of an old one, knowing and sup- 
 pressing the fact, which was unknowm to the lessor, that the 
 person on whose life the old lease depended was in extremis, 
 and the court declined to aid the lessee. (7i) And in a case 
 before Lord Cranworth, where the same solicitor acted for 
 both parties, but did not disclose to both parties the whole 
 nature of the dealing, or place his principals at arms' length 
 in the transaction, the court refused to enforce specific per- 
 formance at the suit of the j)urchaser.(/) 
 
 § 384. On the ground of want of fairness, the court will 
 not assist one party to a contract specifically to enforce it 
 against the other, who at the time of entering into it was in 
 
 (cl Brlnklev v. Hann, Dru., 175. (g) Part 3. ch. 13, § 676, et seq. 
 
 (d) Mortlwk V. Mailer, 10 Ves., 292, 305. (/i.) EUar-l v. Lord Llandaff, 1 Ball & B,, 
 
 (e) i 15 ro. (' (;., 3-2G. 241. 
 
 (/■) lnrra,§U-24, eiM-q. (i) Hes^e v Biiaiit. 6 De G. M. & G., 623.
 
 \ 
 
 AVANT OF FAIRNESS IN THE CONTRACT. 189 
 
 a State of intoxication, and tliat even in the absence of any- 
 unfair advantage taken of his situation which would induce 
 the court to rescind the contract. (./) But tlie 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. (A')' In one case Stuart, V. C, r<-fused 
 to allow a third party, who, having got a subsequent trans- 
 fer of tlie property, was the substantial defendant, to avail 
 himself of this defense. (Z/ 
 
 § 385. One kind of that unfairness which stays the inter- 
 ference of the court arises where tlie enforcement of the con- 
 tract would be injurious to third persons. Thervfore where 
 an estate was settled in strict settlement, giving to the set- 
 tler a life estate and an ultima re remainder, and the tenant 
 for life entered into a contract for the sale of the fee, the 
 court refused to allow the ]3urcliaser to take the interest of 
 the tenant for life with compensation, on the ground that a 
 father and a stranger would be likely to use an estate with- 
 out imx^eachment of waste in a different way, and that, 
 therefore, the sale might XDrejudice the interests of the per- 
 sons in remainder, (w) 
 
 § 386. Again, where bankers, after a customer had com- 
 menced liquidation proceedings, secretly took a guarantee 
 
 (J) Cooke V. Clayworth, 18 Ves , 12; Nagle void, but voidable. Matthews v. Baxter, L. 
 
 V.Baylor, 3 Dr. & War., 60. In liuti.r v. K. 8 Ex., 132. 
 
 Mulrihill, 1 Bli., 137, a contract obtained by (,k) Lighttoot v. Heron, 3 Y. & C. Ex., 596. 
 fraud from an intoxicated party was set (l) Shaw v. Mackray, 1 Sm. & G , 537. 
 aside. The contract of a drunken man is not (m) Thomas v. Deriiog, 1 Ke., 729. 
 
 1 Pitt V. Smith, 3 Camp, 33; Fenton v. Holloway, 1 Stark., 12G; Preutice v. 
 Achorn, 2 Paige's Ch., 30; Duncan v. McCulloiigh, 4 Serg. & Rawle, 484; 
 Ford V Hitchcock, 8 Ohio, 214; Broadwater v. Darne, 10 Mo., 277; Harrison v. 
 Lemon, 3 Black., 51; Hotchkiss v. Farston, 7 Yerg., 67; Callaway v. Weather- 
 spoor, 5 Ired. Eq., 128; Donelson v Posey, 13 Ala., 752; Lavette v. Sage, 27 
 Conn., 577; see, however, Pittinger v. Pittinger, 2 Green Ch. 15G. 
 
 ^ Courts of equity, on grounds of public policy, do not incline to lend their 
 assistance to a person, wlio has obtained an agreement or deed from another, 
 in a state of intoxication ; and thej' are equally unwilling to assist the intoxicated 
 party to get rid of his agreement, or deed, merely on the ground of his intoxi- 
 cation at tlie 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. Kctchum, 1 Bibb., 40G. White v. 
 Cox, 3 Hayw., 82; Wigglesworth v. Steers, 1 Hen. & 3Iunf., 70; Taylor v. 
 Patrick, 1 Bibb., 168. It has been supposed, however, that if a person 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 
 eifect. Pars. Contr., vol. 1, p. 311. It seems that the same doctrine that ap- 
 plies to agreements is likewise applicable to wills. Swinburn (pt. 3, § 6) tells 
 us that, in order to render a will void, the testator must be utterly deprived of 
 reason and understanding; "otherwise, albeit, liis understanding is obscured, 
 and his memory troubled, yet may he make his testament, being in that case. "
 
 190 FRY OX SPECIFIC PERFOR]\rANCE OF CONTRACTS. 
 
 from his brother that the bank's loss should not exceed 
 £2, (KM), and thereupon forebore to take proceedings against 
 the customer or to i)rove against his estate, the court, on 
 the ground that this arrangement tended to give the bankers 
 an unduH advantage over the other creditors, dismissed a 
 bill iiled by the bankers to eiiforce specific performance of 
 the guarantee. (/?) 
 
 g 387. If a voluntary settler enters into a contract to sell 
 the estate and brings ah action to carry the contract into 
 execution, tlie court will not generally assist him thus to 
 override the settlement and prejudice the interests of the 
 persons claiming under it ;(o) but it seems that if the pur- 
 chaser is willing to complete on having a good title shown, 
 and his only objection, the existence of the voluntary set- 
 tlement, is one that he can remove by completing the pur- 
 chase, the general rule will not apply. (^) 
 
 § 388. The court will not generally exercise its extraordi- 
 nary power in compelling a sj^ecilic performance, where to 
 do so would necessitate a breach of trust, or of a prior con- 
 tract with a third person, (5') or would compel a person to do 
 what he is not lawfully 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 which it 
 would expose the person forced to execute it. The plaintiff 
 *'must also," said Lord Redesdale, "show that, in seeking 
 th.e performance, he does not call upon the other party to 
 do an act Avhich he is not lawfully competent to do ; for, if 
 he does, a consequence is produced that quite passes by the 
 object of the court in exercising the jurisdiction, which is 
 to do more complete justice. "(r) 
 
 § 380. Therefore, Avhere trustees enter into a binding 
 contract for a sale under a i)ower, but one so disadvantage- 
 ous as to be a breach of trust, the court will not specilically 
 perform the contract ;(.s) and so, again, where trustees for 
 sale for the benefit of creditors made a sale by auction, 
 
 (n) MiKewan v. Sanderson, L. R. 20 Eq., Cf. MulhoUand v. Mayor of i'.elfast, 9 Ir.Ch. 
 
 65. CI. Ue Cordova v. De Cordova, 4 App. K., 204, 215. 
 
 C.,(m. (r) liaruett V. Yielding, 2 .Sch & Lef., 553. 
 
 (o) Johnson v. I.egard, T. & R.,2S1 ; Smith See B-rne v. Actoii, 1 Bio. P. C, 186; Toison 
 
 V.Garland, 2 Mer., 123; Clarke' v, Willott, v. Sheard, 5 Cli. D., 19; Oceanic Steam Navi- 
 
 L. R. 7 Ex., :51S. gation Co. v. Sutherbury, 16 id., 230; Mans- 
 
 (p) Peter v. M. oils. L. R. 11 Eq , 391. The tieUl v. Childerhouf e, 4 id., 82. 
 difficulty of being quite sure that the settle- (») Mortlook v. Buller, 10 Ves., 292 Ac- 
 meut has not bi en m;ide good by some ex oordingly, Bridger v. Rice, 1 J. & W., 74; 
 post facto matter, will, it is conceived, usual- Wood v. Richardson, 4 Beav., 174; Maw v. 
 ly deter purchasers from being willing to Topham, 19 id., 57t>. See, also. Hill v. Buck- 
 complete .•>ee infra, § 871. ley, 17 Ves., 394; Neale v. Mackenzie, 1 Ke., 
 
 (q) VVillmott V. Barber, 1.^) Ch. D., 96, 107. 474; Rede v. Oakes, 4 De G. J. *; S., 505.
 
 WANT OF FAIRNi:ss IX THE CONTRACT. 191 
 
 under circumstances of improvidence and likely to prejudice 
 the owner of the estate, for the sake of immediately realiz- 
 ing money to pay his creditors, the court i)ursued the same 
 course. {I) And where, on the sale of trust i)roperty, 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. (7O Again, 
 where trustees entered into a contract for a lease which was 
 in excess of their power ;(/) and, again, where they entered 
 into a covenant for renewal which was ultra circs, the 
 court on this ground, in both cases, refused specific per- 
 formance, (-z^) 
 
 § 390. 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 ; one of the grounds on which 
 the House of Lords reversed a decree for compensation was, 
 that the court would not give effect to a condition which 
 would injure the cestuis que trust, by reason of the neglect 
 of the trustees in making the misdescription which was the 
 ground for compensation, {x) 
 
 § 391. In another 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 be an 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. (2/) 
 
 § 392. But where trustees, who had without authority 
 granted leases, put up the property for sale under conditions 
 which expressly provided that no objection sliould be made 
 in respect of such leases, and that the purchaser should take 
 subject to such interests as the tenants might be entitled to 
 thereunder, the court held the purchaser precluded from 
 objecting on the ground of breach of trust, (r) It is con- 
 
 (0 Orel V. Nopl, 5 Ma.l , 4:58. firmed. 7 De G. M & G.. 399. See, also. 
 
 (u) Thonipsou v. ]i(ack»toiie, 6 Beav , 470. Magrane v. AnliU.l<1. I Oow. U17. Trappes 
 
 (V) Harnett v. Yielding, -1 >ch & Lcr., 549. v. Lol.b, IC W. li., U, ; N.iy or v. «.,oodall. -Jt, 
 
 AccorUlnKly B} rne v. AClou. 1 Uro. 1'. C, id.,l(>J. hut in IJarrt-tt v. Kli.g. •-' Mn. A GU., 
 
 J86 6 J J 4;j^ Stuart, V. C. compelled trustees of a 
 
 (to) Bellringer v. Blagrave, 1 Dc G. & ss, 63. Koad to complete a contract lor >»le which 
 
 IX ) White V Cudiiou. 8 C. & Fin.. 700; re- hail been ma<fe in lorgellulness oi a statutory 
 
 versinK S C. s « , Cudden v. Cartwright, 4 right of preemption, and might expose tliem 
 
 Y & C Ex . 25 See lufta, § 1'2«1. to an action lor damages. 
 
 \y) sineeVby v. Thorn. 1 Jur. (xN. S ), 536. be- (s) Micholls v. Corbclt, 34 Bcav., 3,6; 3 De 
 
 fore Lord Hatherley (then U ood. V. C), af- G. J. & S.. lt>. 
 
 I
 
 192 FUV ox SI'KCIFIC PEllFOUMANCE OF COXTKACTS. 
 
 reived, however, tliat trustees generally cannot by contract 
 prevent the operation of the court's usual unwillingness to 
 enforce any transaction resulting in injury to third persons. 
 
 ij ti9:t. Even where there is nothing amounting to a dis- 
 tinct breach of trust the court will be delicate of interfering 
 against trustees ; so that where, in a contract for sale by 
 them, there is any want of a business-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 prop- 
 erty. («)' 
 
 § 301. 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 con- 
 tract were the result of a gross breach of duty by an agent 
 towards his principal, the court would not, it seems, enforce 
 the consequences of that act.(&) And so, railway directors 
 having duties towards the shareholders, the court will not 
 enforce any contract amounting to a breach of duty to the 
 prejudice of all or any of the shareholders at the instance of 
 a plaintiff cognizant of the circumstances, (c) 
 
 § :i95. The court has on this ground not only refused 
 specific performance, but in a case where the purchaser 
 must have known that assignees in bankruptcy were deal- 
 ing without sufficient knowledge, and that the creditors 
 who were to ratify it were equally ignorant, tjie court, on 
 the ground of the breach of trust of the assignees (as well 
 as other grounds), set aside the contract. (fZ) 
 
 § 396. In one case Lord Romilly, M. R., took into con- 
 sideration the injury likely to arise to the public from the 
 specific performance of a contract relating to the level of a 
 railway, and on the ground of that injury refused to compel 
 the company to lower the level of their line. But the case 
 was reversed on appeal, (e) 
 
 (a) Goodwin v. Fielding, 4 De G. M. & G., Co., 4 De Q. M. & G., 115; affirmed, and this 
 
 90. principle approved, 6 H. L. C , 113. 
 
 (6) Mortlock v. Buller, 10 Ves , 292, 313. (d} Turner v. Harvey, Jac , 169. 
 
 (c) Shrewsbury and Birmingham Railway (e) Raphael v. Thames Valley Railway Co., 
 
 Co. V. London and North Western Railway L. R. 2 Eq., 37; 2 Ch., 147. 
 
 ' But where a trustee sells property, having 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 
 selfisl^ ends, and that the price was utterly disproportionate to the real value of 
 the property, a court of equity will not sanction the act. Wormley v. Worm- 
 ley, 8 Wheat., 421.
 
 IIAKDSIIII' OF TlIK (•(»NTI:A('T. V.i'S 
 
 I 
 
 CHAFPER VI. 
 
 OF THE JIAKDSIIII' OF TlIK ( ONTILVCT. 
 
 § 397. It is a well-established doctrine that the court will 
 not enforce the specific performance of a contract, the result 
 of which would be to impose u,Teat hardship on either of the 
 parties to it ;(«)' and this althougli the party seeking specific 
 performance may be free from the least impropriety of con- 
 duct. (/>y 
 
 § 398. The question of the hardship of a contract is gen- 
 erally to be judged of at the time at which it is entered into; 
 if it be then fair and just and not productive of hardship, it 
 will be immaterial that it may, by the force of subsequent 
 circumstances or change of events, have become less bene- 
 ficial to one party, (c) except where these subsequent events 
 
 («) Per Lord Brougham in Gould v. Kemp, (c) Lawder v. Blarlifurd. Heat , .VJi; Webb 
 
 2 My. &K., 308. v. Direc.t Loniton and Portt^niouth Uailway 
 
 (b) Per Kindersley.V. C.inFalckev. Gray, Co ,9 Ha., 12!) (S. C. on appual, I D. .\l A G., 
 
 4 Drew., WO. 521). 
 
 ' Hard and unconscionable bargains are not of .sucli a nature that a court of 
 equity can decree their performance. Kimberly v Jennings, (5 Sim., 340; 
 Ohio V. Baum, 6 Ham., 883; Tobey v. County of Bristol, 3 Storv, 800; Canuu- 
 day V. Shephard, 2 Jones' Eq. (N. C), 224; Cathcart v. Robinson, 5 Pet., 263; 
 Seymour v. Delancey, 3 Cow., 445. So, in Clarke v. Rochester, Loekport and 
 Niagara Falls Railroad Co., 18 Barb. Sup. Ct. Rep., 350, the court would not 
 adjudge a specific performance by a railroad company of the duty imi)o,><ed 
 upon them by the statute to construct farm crossings, but that the plaintitT 
 should be left to his remedy for damages, in a case where the' company liiul 
 constructed an embankment upon land conveyed to them by the {-.laimitl', hy 
 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 disproportioued 
 to the value of the land to be benefited by it. See, also, Barnett v. Spratt, 4 
 Ired Eq., 171. 
 
 ^ Hardship of cunt met, \ohen c% defense ?~\ An action for specific performance 
 will, in general, be dismissed, where tlic defendant is able to show lluit the 
 granting of the plaintitf's prayer for relief would, under all the eircumstjinces 
 of the case, operate with unreasonable hardness upon him. Gould v. Kemp, 
 My. & K., 308; Ilylton v. Briscoe, 2 Ves. Sen., 304; Wood v. Griffith, 1 Swanst., 
 54; Kimberly v. Jennings, 6 Sim., 340; Talbot v. Ford, 13 id.. 173; Seymour 
 V. Delancy, 3 Cow., 485; C'anaday v. Shepherd, 2 Jones' Eq., 224; Barrett v. 
 Spratt, 4 Irdel. Eii-, 171; Huntington v. Rogers, 9 Ohio St., 511; Reed v. Rud- 
 man, 5 Ind., 409; King v. Hamilton, 4 Peters, 311; Eastman v. Plumer. 40 
 N. H., 4G4; Chambers v. Livermore, 15 Mich.. 381; Society, etc., v. Butler, 
 12 N. J. Eq., 498; Margraf v. 3Iuir, 57 N. Y., 155; Tobcy v. County of Bris- 
 tol, 3 Storey, 800; Anderson v. Andrews, 28 Ala.. 432; Thompson v. Tod, 
 Pet., C. C, 380; Gould v. Womark, 2 Ala, 83; Ellis v. Burden, 1 Ala. Sol. 
 
 13
 
 104 FRY ON SPECIFIC PEKFORMANCE OF CONTRACTS. 
 
 havp Wi^n in some way due to the party who seeks the per- 
 formance of the contract.* For whatever contingencies may 
 attach to a contract, or be involved in the performance of 
 either part, liave been taken upon tliemselves by the parties 
 to it. It has been determined that 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, (<'^) and we have 
 already seen that the same principle applies in considering 
 the fairness of a contract. (e) 
 
 sj 399. On this ground it has been decided in several 
 cases in Ireland, that where a lessee of renewable leaseholds 
 covenants with his sub-lessee for renewal without fine on 
 every renewal to himseK, and subsequently a renewal is 
 made to him, but on terms far less beneficial than had been 
 the custom at the time he entered into the covenant, and 
 on the expectation of the continuance of which he had so 
 covenanted, he will nevertheless be obliged to renew to his 
 sub-lessee, and that without any contribution towards the in- 
 creased fine which he has paid.(/)' So where railway com- 
 panies contract unconditionally for the purchase of land, 
 and by their laches their i^owers expire before the comple- 
 
 (0) Jones V. Lees. 26 L. J. Ex., 9. (/) Evans v. Walshe. 2 Sch. & Lef.,419; 
 
 (e; See supra, § 370. Revell v Hussey, 2 Ball. & B.. 280; Lawiler 
 
 V. Blachford, Beat., 522. 
 
 Cas., 458; Lucas v. Burnett, 1 Greene (Iowa), 510; Griffith v. Frederick Co. 
 Bank, 6 Gill. & John., 424; Waters v. Howard, I Md. Ch., 112; Smith v. Cran- 
 dall, 20 Md., 48'2: Daniel v. Eraser, 40 Miss., 507; Rodman v. Zilley, 1 N. J. 
 Eq., 320; Stoutenburgh v. Tompkins, 9 id., 332; Mc Wharton v. McMahon, 1 
 Oaks (N. Y.), 400; Leigh v. Crump, 1 Ired. Eq., 299; Farr v. Claddings, 1 
 Phila., 372; Hall v. Ross, 3 Uafw., 200; Rice v. Rawlings, Meigs, 496; East- 
 land V. Vanarsdale, 3 Bibb., 274; Wingate v. Fry, Wright, 105; McCarty v. 
 Kyle, 4 Coldw. (Tenn.;, 348; Smith v. Wood. 12 Wis., 382; Stone v. Pratt, 25 
 
 ni., 25. 
 
 Executed contract. ] Where an agreement has been executed by the parties, a 
 court of equity will declare it void solely on the ground that it is unconsciona- 
 ble. This is true except in the case of an heir expectant. Davidson v. Little, 
 22 Pa. St., 245. 
 
 Payment in. confederate money. '\ A party contracted to convey real estate, 
 and received notes for the purchase money, payable in confederate money, 
 which, before the maturity of the notes, became worthless. Held, that specific 
 performance would not be decreed. Daughdrill v. Edwards, 59 Ala., 424. 
 
 ' It is said by Mr. .lustice Story (Eq. Jur., § 750) that a court of equity will 
 not decree a specific performance of a contract, where a change of circum- 
 stances, 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; Catlicart v. Robinson, 5 Pet., 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. 
 Cruise, 2 J. & L., 460; S. C, 8 Ired. Eq., 407. 
 
 * See, also, Thomas v. Burne, 1 Dr. & Wal., 657.
 
 HAKDSHIP OF THE CONTRACT. 195 
 
 tion of the iDurcliase, that circumstance furnishes them with 
 no ground of defense, {g) 
 
 § 400. This is furtlier well illustrated by the cases on 
 awards ; for wdiere the contract contained in tlie submission 
 is unfair, or conducing to hardship, the court will not inter- 
 fere \{7i) whereas 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 contract, and un- 
 reasonableness in the award is, therefore, a matter of subse- 
 quent, and arising from the decision of a judge whom the 
 parties themselves have chosen, and the risks attending 
 whose judgment they have taken on themselves. (/)' 
 
 § 401. It cannot, however, be denied that there are cases 
 in which the court has refused its interference by reasf»n of 
 events subsequent to the contract. Thus, in The City of Lon- 
 don V. Nash,(y) where a party had covenanted to re-build 
 several houses, and, instead, had built but two new houses 
 and only repaired the others, but, in so doing, had laid out 
 at least £2,200, and put them in very good condition ; Lord 
 Hardwicke, holding that the covenant w^as one which, in 
 its nature, the court could enforce, yet considered that 
 specific performance would entail so great a loss and hard- 
 ship on the defendant, and be so useless to the plaintiff, 
 that the court w^ould not enforce it, whether the defendant 
 had mistaken the sense of the covenant to re-build, or per- 
 haps 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 
 
 (g) Hawkes v. Eastern Counties Railway tract, it was conditional on the making of 
 
 Co., IDeG.M. & G., ■^37, 755; S. C. 5 H. L. the line. , - t^ r. ,, .. ^ . 
 
 •C.,331, 353. In Scottish North Eastern Rail- (h.) Mckels v. Hancock, / De G. M. & G.' 
 
 way Co. V. Stewart (3 M acq ,382, particular- 301). See infra, § 1553 et. seq 
 
 ly 401), may be found expressions which ap- (i) Wood v. Griftith, 1 Sw., 43; W eekes v. 
 
 pear to the contrary of the statement in the Gallard. IS W. R., 331 
 
 text. But the real point decided in the case ' '> s A»k . ^\-i: S. C 
 was that, on the true construction of the con 
 
 1 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 
 already made and published, it is too late for either party to revoke the submis- 
 sion 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 agi-eement will be carried into execution. Tobey 
 V County of Bristol, 3 Story, 800; Clement v. Hadlock, 13 N. H., 185.
 
 19G FRY ON SPECIFIC PERFORMANCE OF CONTRACTS. 
 
 this, and was in circumstances wliicli rendered him practi- 
 cally unable to redeem, in a suit instituted by the intended 
 lessee, the court refused specific performance, but granted 
 the alternative prayer of the bill for recis.sion.(^-) 
 
 5j •I0»2. Notwithstanding these cases the general rule seems 
 to be, that evtMits subsequent to the contract, and not so in- 
 volved in it as to render it unequal at the time it is entered 
 into, cannot be brought 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 discretionary jurisdiction in specific 
 performance. There are cases in which the court has con- 
 sidered that, by means of these events, such a change has 
 taken place in the relative position of the plaintiff and de- 
 fendant, as to render it inequitable specifically to enforce 
 the contract against the latter. ' 
 
 ij 40:{. The leading case on this head is the Duke of Bed- 
 ford V. The Trustees of the British Museum, (Z) before Plu- 
 mer, M. R., and Lord Eldon. Lord William Russell and 
 Lady Rachel his wife, being in the occupation of South- 
 ampton House (afterwards called Bedford House) as their 
 residence, in 1675 conveyed to Mr. Montagu adjoining land, 
 for the purpose of his erecting on it a mansion, with suita- 
 ble appendages of gardens and offices ; and Mr. Montagu 
 entered into covenants with Lady Rachel Russell not to use 
 the land in a particular manner, with a view to the more 
 ample enjoyment of the adjoining lands. Lady Rachel 
 Russell, or those claiming under her, subsequently covered 
 these lands, or a considerable part of them, with houses, 
 and Southampton House was j)i^^illed down to make way 
 for streets and buildings. On a motion by the Duke of 
 
 (A) Costlgan V. Hastier, 2 Sch. & Lef., 160. {I) 2 My. & K., 552. 
 
 ' There is no difference l)etween a contract unreasonable when made, and 
 one whicli becomes so afterward, if the applicant be in fault. Garnett v. Ma- 
 con, 6 Call, 308; S. C, 2 Brock., 185. Thus, a very great change in the value 
 of property is a serious objection to a decree for specific performance, where 
 the vendor is in fault, as it may affect the arrangements of the vendee for a 
 compliance 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 (Jlay v. Turner, 3 Bibb., 53, is a case to the effect that equity will 
 rescind a contract, although the parties cannot be reinstated, if the act of the 
 party plaintiff shall have prevented it.
 
 HARDSHIP OF THE CONTRACT. 197 
 
 Bedfoi'd, who claimed under Lady Rachel Russell, 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 IGTo, Plumer, M. R., and 
 Lord Eldon held that the duke or his predecessors having 
 altered the state of the property in the way mentioned, it 
 would be inequitable, unreasonable and unjust, thus to en- 
 force the covenants specifically, and the plaintiff was left 
 to his remedy at law.(/7?,)' And so, long acquiescence in a 
 variation from the mode of renewal, pointed out by a cove- 
 nant for that purpose, has been held a reason for not spe- 
 ■cifically enforcing the covenant in its original terms. (7i) 
 
 § 404. Where the conduct of the plaintiff" subsequent to 
 the contract has led the defendant into a trap, though the 
 plaintiff's conduct may have been unintentionally injurious, 
 the court will refuse specific performance. Thus, in one case, 
 the contract for sale of leaseholds liable to a covenant to 
 insure stipulated that the contract should be completed on 
 the 20tli July; the insurance expired on the 24th June; 
 one of the vendors renewed for a month only, to the 24th 
 July ; the contract in fact was not completed before the 
 26th August, when the j)arties met for that purpose, and 
 it was discovered that the insurance had expired and the 
 leaseholds had become liable to forfeiture ; and the pur- 
 chaser refused to comj)lete. Kindersley, Y. C, held that 
 the property was at the risk of the purchaser ; but as the 
 vendors' conduct had operated as a trap to the purchaser, 
 he refused specific performance. (c>) 
 
 § 405. It would seem that, in considering the hardship 
 which may flow from the execution of a contract, the court 
 will consider whether it is a result obviously flowing from 
 the terms of the contract, so that it must have been present 
 at the time of the contract to the minds of the contracting 
 parties, or whether it arises from something collateral, and 
 so far concealed and latent, as that it might not have been 
 
 (m) See per Knight Bruce, L J, in Shrews- (n) Davis v. Hone, 2 Sch. & Lef., 3U. 
 bury anfl Birmingham Kailway Co. v Mour (,o) Dowbou v. Solomon, 1 Dr. & Sm., 1. 
 Valley Railway Co., 2 De G. M. & G , b-82. 
 
 » Low V. Treadwell, 12 Me., 441; Brasbier v. Gratz, 6 Wheat., 528; Me- 
 chanics' Rank v Lynn, 1 Pet., 38;J; Taylor v. Lonf,nvortli. 14 id., 17;!; Willard 
 V. Taylor, 8 Wall., 537; Marble Co. v. Ripley. 10 id.. o30. Where the subse- 
 quent changed circumstances were caused by the plaintitl's wrongful acts, this 
 will be a ground for refusing specific performance. Stone v. Pratt, 2") 111., 35.
 
 19S KKV ON SPKCTFIC PEKFOKMANCE OF CONTKACTS, 
 
 tlins ])resent to their minds. (/v) It is obvious that a far 
 lii^^lier d(\nTee of hardship) must be present in the former, 
 than in the latter class of cases, for it to operate on the dis- 
 civtioTi (»r tlie court.' 
 
 i; 1015. 'i'he cases whicli liave been already quoted as 
 showin^j; that the hardship must be judged of at the time 
 • of the contract also illustrate another obvious i)rinciple, 
 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 i^erformance of the con- 
 tract, (^) at least whenever the thing he has contracted to 
 do is "reasonably i30ssible."(r) 
 
 § 407. It will not constitute a case of hardshij) that the 
 ultimate object Avhich a party had in view in entering into a 
 contract may have become impossible ; the mere failure of 
 the purchaser's speculation will not discharge him from his 
 obligations to the vendor. Thus, where one i:»erson con- 
 tracted with another for the puichase of a piece of land on 
 whicli he intended to erect a mill, for which the consent of 
 a corporation was requisite, 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, (s) And so also the fact that a mine 
 which the defendant had contracted to take for £1,400 
 turned out literally worth nothing was held to be no de- 
 fense to a suit for specific performance of the contract. (^) 
 
 § 408. In cases against companies, the court will not 
 consider the hardship which may result to the individual 
 members from enforcing a contract made by the whole 
 body ; for " the court cannot recognize any party interested 
 in the corporation, but must look to the rights and liabili- 
 
 ip) See e. jr cases stated, § 409. V. C , in Webb v. Direct London and Ports- 
 
 (7) See per Lord Hardwicke in Pembroke moutli Itailway Co., 9 Ha., 140 ; per Lord 
 
 T. Thorpe. 3 Siv., 44.3 n Uomilly, M. R , in Lord James Stuart v. 
 
 (r) Per Knight Uruce, V. C . in Storer v. London and North-VVestern Railway (Jo., 15 
 
 Great Western Railway Co., 2 Y. & O. G. C, Reav., 52?. (as to ttiese last two cases see 
 
 ^2; infra, § 96ri). Distinguish Bray v. Briggs, 20 
 
 («) Adams v. Wetre, 1 Bro. C C, 567; Mor- W R., 962. 
 
 ley V. Claverlnp, 2'J Beav , 84; per Turner, {t) Haywood v. Cope, 25 Bcav., 140. 
 
 ' T/ie mere naked hardship of a contract is not in itself a valid objection to its 
 enforcement in equity, in a case where the contract is otherwise equitably enti- 
 tled to be specitically enforced. Morrison v. Pray, 21 Ark., 110; Coke v. 
 Bishop, :^> Swanst., 401 ; Chubb v. Peekham. 13 N. J. Eq , 207; Corson v. Mul- 
 vany, 49 Pa. St., 88; Low v. Trcadwcil, 12 Me., 411; Eames v. Eames, 16 
 Mich., 348; Lee v. Kirby. 104 Mass., 420; Addiugton v. McDonald, 63 N. C, 
 389; Morgan v. Scott, 26 Pa. St , 51 ; Nims v. Vaughn, 40 Mich., 336.
 
 IIAKDSHIP OF THE CONTUA(JT. 199 
 
 ties of tlie corporation itself ;"(w) and tliongh, as we have 
 seen,(?') the decision of the case in whicli this language was 
 used b}^ Lord Cottenham has been disapproved of in the 
 House of Lords, this principle seems to be untouched, and 
 to rest on solid reasoning. 
 
 § 409. If the execution of the contract would render the 
 defendant liable 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 Avill, on condition that, if he 
 sold it within twenty-live years, half the putchase 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 for- 
 feiting a piece of leasehold land through whicli it was to 
 pass, or of being sued by the lessor, the court, granting the 
 purchaser specific performance of the contract for sale, re- 
 fused to enforce this stipulation, but gave him compensa- 
 tion for the non-performance of it.(ir)' 
 
 § 410. But the court will give no effect to this defense 
 unless it clearly appear that the forfeiture will follow on the 
 judgment for specific performance. The mere apprehension 
 of such a result is not enough. Nor will tlie court give 
 much, if any, consideration to this defense where the for- 
 feiture is the result of other acts of the defendant himself. 
 So where a lessee of a theatre, having, by his lease, po^ver 
 to lease forty-one boxes, agreed to let a box to the plaintiff, 
 and in defense alleged that he had already let forty-one 
 boxes, so that to perform his contract with the plaintiff 
 would work a forfeiture, his defense failed. (?/) 
 
 (M) Per Lord Cottenliam in E.lwards v. (v) See supra, g -234. . . „ ^ _ „ „,,_ 
 
 Grand Junction Railway Co . 1 My & Cr., (w) Fame y. IJiown. cltPd 2 Ves Sen , 3<»7. 
 
 674; Hawkes v. Eastern Counties Railway (x) Peacock vPenson, 11 Ueav.i.s. 
 
 Co., 1 De G. M. & G., 737, 754; cl. supra, (y) Heiling v. Lumlt-y, 3 De G. & J., 4.«. 
 § 394. 
 
 ' Forfeiture.^ A contract of sale provided that if the vendee failed to make 
 his payments at the time agreed upon, "strictly and literally, without any de- 
 fault the contract shall become void, and the ri-lits and iiileresis thereby 
 created cease and determine, and the property revert to, and revest iii, (he vcri- 
 dor without any declaration of forleiture or act of re-entry, or ^vilhout any 
 right on the part of the vendee of reclamation or compensation. Held, that 
 ■where the notes given for the purchase money were not paid, it was competent 
 for the vendor to declare a forfeiture whhout otfeniig to return the notes. 
 Phelps V. Illinois Cent. 11. K. Co., 63 III, 4G8.
 
 200 IKY OX SPECIFIC PEUFORMANCK OF CONTRACTS. 
 
 J5 411. To this head of hardship we may, perhaps, best 
 reftM- the eases wliich establish tliat, wliere the vendor is 
 li:il)h- to certain covenants, and has not expressly stipulated 
 that thr puichaser shall indemnify him a^^ainst them, yet 
 the ])inrhaser, so soon as he has notice of them, whetlier 
 by the particulars of sale(^) or subsequently to the con- 
 tract, (^/) is l)ound to elect either to rescind the contract or 
 to execute an indemnity to the vendor ; for otherwise the 
 vendor would lose his land but retain his liability in respect 
 of it. In the earlier of the cases cited, it was only decided 
 that the pin-chaser as plaintiff could not enforce specific per- 
 formance without entering into such indemnity ; but, in the 
 latter, that the vendor as plaintiff might ])ut the purchaser 
 to his election. 
 
 § 412. In one case where trustees had joined their cestuis 
 que trust in a contract for sale, and had personally agreed 
 to exonerate the estate from the incumbrances, and it did 
 not appear whether the purchase-money would be sufficient 
 to discharge them, or what would be the extent of the de- 
 ficiency, the court refused specific performance on the 
 ground of hardship, although the i:>laintiff' had had posses- 
 sion of the estate, and could not be dt-prived of the benefit 
 of his contract without great inconvenience. (6) In another 
 case a mortgagee with power of sale had obtained a fore- 
 closure decree, and, intending to sell as absolute' owner, en- 
 tered into a contract for sale to the i^laintiff. In the contract 
 there was copied, by inadvertence, from conditions of sale 
 of other parts of the estate drawn up some time Vynfore, a 
 clause stating the vendor to be a mortgagee with power of 
 sale ; the vendor offered to convey as owner under the fore- 
 closure decree ; 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 l)y such a 
 sale, was a hardshii) which it would not put on him, and 
 accordingly dismissed the bill unless the plaintiff would 
 nccei)t the conveyance which the defendant was ready to 
 execute, (c) 
 
 ij 4111. But wdiere a tenant for life had agreed to grant a 
 
 (2) Moxh.-iy V. Imicrwick, 1 Dc G. & Sin., (b) Wedgwood v. Adams, G Beav , 600. 
 7( « \.c) WatBon v. Marston, 4 De U. M. JIe, G., 230. 
 
 (o) I.ukey v. lMj;g8, 24 L. J. Ch , 495 iKind- 
 erulcy, V C).
 
 IIARDSTITP OF THE CONTIIACT. 2Ul 
 
 mining lease, and to a hill l)y the intended lessee he ol)jected 
 that he was only tenant for life, and that he eonld not grant 
 the lease in question under his power, and that lie shoidd 
 be accountable for waste, Lord Nottingham ai)i)ears to have 
 considered this to be no defense, and he decreed the de- 
 fendant to execute the contract so far as he was capable of 
 doing, (('i) 
 
 § 414. In one case Lord Hardwicke, on the ground of 
 hardship, refue-ed specific performance of a covenant to 
 leave buildings in rej^air contained in an ecclesiastical lease, 
 the fact of the description of the buildings being continued 
 from lease to lease without variation showing that the build- 
 ings in question might not have been in being at the time of 
 the making of the lease. (^0 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 and stock abont 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 ascer- 
 tained by valuation, the court held the covenant thus framed 
 to be so injurious and oppressive to the lessee that it refused 
 specific performance, and would not interfere to prevent a 
 breach l)y injunction. (/) Again, where A. , in consideration 
 of B.'s not joining in barring an entail, agreed to convey to 
 him, his heirs or assigns, the fee of such parts of the estates, 
 which were situate iu three counties, as he or tliny should 
 choose, to the yearly value of £200; the inconvenience and 
 hardship to which such an option might expose the party 
 who had granted it was one ground on which specific per- 
 formance was refused by the House of Lords, (z/) In another 
 case the court refused to enforce a contract 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. (A) 
 
 § 415. Where a contract, if enforced, would make a man 
 buy what he could not enjoy, the court will, on the ground 
 of hardship, refuse to interfere, as in the case of a contract 
 
 (d\ Cleaton v. Gower. Kinrh, 1C4; but see (A) Klmberley v. .Jennings. 6 SJm..:U't; this 
 
 the cases stated supra. § 3S5 et se.,. case has been overriatMl but on «no her 
 
 (e) Dean of Ely v Stewart, '2 Atk . 44. point, by Luniley v. W agner. 1 Oe U. M. & 
 
 (/)Talbot V. Ford, 13 Sim., 173. G., C04. 
 07) Uamilton v. Grant, 3 Dow, 33, 47.
 
 202 FRY ON SPECIFIC PERFORMANCE OF CONTRACTS. 
 
 to sell a piece of land to which no way could be shown, the 
 contract itself being silent as to any right of way.(/) 
 
 g 4145. 'i'lie principle applies equally to contracts between 
 companies as to those between private individuals ; and, 
 therefore, where the result of such a contracjt was to divert 
 from its legitimate channel a considerable i)ortion of the 
 profits of one part of the line of one company for the benefit 
 of the other, without securing any corresponding i)orti(m of 
 profits of the other line, the court refused to interfere by 
 way of specific performance, irrespective of the considera- 
 tion whether such contracts were legally binding or not.(y) 
 
 §417. The inadequacy of the consideration on the one 
 side or the other is a form of hardship frequently alleged. 
 This will be considered separately in the next chapter." 
 
 (t) Denne v. T.ight, 26 L. J. Ch., 459; 8 De (j) Shrewsbury and Birmingham Railway 
 
 G. M <fc G., 774 Consider Tomlinson v. Co. v. London and North- Western Railway 
 
 Manchester and Birmingham Railway Co., 2 Co., 4 l)e G. M. & G., 115; S C, 6 H. L. C, 
 
 Rail. C , 1C4, 123. 113. 
 
 ' Where the plaintiff ocamons the hardship of the rontract, it will not be en- 
 forced Garnett v. Macon, 6 Call., 308; Ford v. Heuson, 4 Munf., 81G; Tur- 
 ner V. Clay, 3 Bibb. , 52 ; Patterson v. Marty, 8 Watts, 374 ; Potts v. Dough- 
 erty, 25 Pa. St., 405; Whittaker v. Bond, 63 N. C, 290.
 
 INADEQUACY OF THE CONSIDERATION. 203 
 
 CHAPTER VII. 
 
 OF INADEQUACY f>F TJIE CONSIDERATION. 
 
 §418. We now proceed to inquire liow far the inade- 
 quacy 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 purchaser ; either in the purcliase 
 money or in tlie thing sohl ; or again, in other cases, it may 
 consist in the inequality of the contingencies to which the 
 contract has reference. (a)' 
 
 § 419, It has been justh^ remarked that there is a great 
 difference between the defense grounded on the inadequacy 
 of purchase money set up by the vendor, and on the excess 
 of it set up by the purcliaser ; 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 de- 
 termining what represents the money value to a particuhir 
 individual of a particular estate. (^) 
 
 § 420. There is no doubt that inadequacy of considera- 
 tion, when combined with any case of fraud, misre])resenta- 
 tion, studied suppression of the true value of the prop- 
 erty, (c) or with any circumstances of oppression, or even of 
 
 (a) Hannilton v. Grant, 3 Dow, 33 (c) Deane t. Rastron, 1 Ans , 6-t. 
 
 (b) Dart, Vend., K83. 
 
 ' Bhamples of sufficient consideration.'] In Curlin v. Heudrieks, 25 Te.x., 225, it 
 was held that it was sufficient, if some profit is to enure to the proniissor, or some 
 detriment to the promisee. Where a person is prevented from performing an 
 intended act (as making gifts, or arrangements hy will, or otherwise) by the 
 promise of another, a court of equitj' will di'cree specitie performance of such 
 promise. Alead v. Randolph, 8 Tex., 1!»1 ; Coles v. Pilkington, L. li., lit Eq., 
 174. A written contract was made before, and in consideration of marriage. 
 Held, that the court would aid in enforcing it. Geuers v. Wright, 18 N. J. 
 Eq., ;);iO. In a controvers}^ concerning a will, there was an agreement to com- 
 promise. Held, that specific performance would be decreed, without iutjuiry 
 into the sufficiency of the consideration. Leach v. Forbes, 11 Gray. .50G. 
 Lautl was dedicated to a coimty on consideration that a certain town should be 
 made the county seat. Held, that sucli contract should be spreifically enforced 
 if the town was so made. Reese v. Lee Co., 4it Miss.. C.;}!) ; see, also, Twiss v. 
 George, 33 Mich., 23;5; Watsou v. Mohan, 20 Ind., 223; Thomas v. Kyles, 1 
 Jones' Eq., 302.
 
 204 lUY (».\ SPKOIFIC PEKFOUMANCE <»F CONTRACTS. 
 
 in-noraiKva^/) i^ a most material ingredient in the ciise, as 
 amu'tinu- the discretion of the court in grantini^- specific per- 
 formance ; and, further, it may materially concur in consti- 
 tuting a casp for setting aside a transaction. Thus, in Cockell 
 V. Taylor, (r) Lord Romilly, M. R., set aside an alleged sale 
 of land to the plaintiff, where the consideration was about 
 ten times the value of the land— the purcliase having been 
 made the condition of a loan v.hich the plaintiff was very 
 anxious to negotiate in order to prosecute his claim in chan- 
 cery to some valuable property, and he being in humble 
 circumstances a,nd illiterate. "Coupled vrith such circum- 
 stances," said his lordship, "the evidence of over-price is 
 of great weight, and if the case had stood here I should 
 have been of opinion that this transaction was one which 
 could not stand." (/) Inadequacy of consideration may 
 also concur with other circumstances to show tliat the trans- 
 action was in the nature not of a contract for sale but of a 
 gift, in respect of which, therefore, the court would not in- 
 terfere, as it does not decree the specific performance of 
 incomplete gifts. '(/7)'' 
 
 § 4»21. The question, however, which has been principally 
 dis(nissed, is the effect on contracts of the inadequacy of 
 consideration taken by itself and abstracted from all other 
 circumstances. 
 
 § 43S. With regard to it as a ground for the setting aside 
 
 (d) Young V. Clarke, Prec. Ch , 538; see, (e) 15 Beav., 103 
 
 also, per Kindernlfv, V. C, in Falcke v. (/) 15 T.cav.. iir). 
 
 Grav, 4 Orew.,660; Lewis v. Lord Lechmere, ig) CiUUtghan v. Callagrhan, 8 CI. & tin., 
 
 10Mo<J,5U. 374. 
 
 ' Gifts of real estate.] Such gifts will be enforced with great caution, and not 
 usually unless improvements have been made, and the donee has taken pos- 
 session by reason of such gift. Guynon v. McCauley, o2 Ark., 97; Ballard v. 
 Ward. SI) I'a. St., 358; Evans v. Battle, 19 Ala., 31)8; Cox. v. fox, 5!) id.. 591; 
 Jones v. Taylor, (i 3lieh , 3G4. Ferry v. Stevens, 60 N. Y. (Ct. of App.), 321, 
 is an instructive case on this point. 
 
 * Inadequacy of consideration when combined with unfairness of any kind, 
 as oppression, imbecility of mind, surprise, or undue advantage taken, will 
 warrant the con.sideration of a court of equity. Gasque v. Small, 2 Strobh's 
 Eq., 72; ^Modisett v. Johnson, 2 Black., 431; Cathcart v. Kobinson, 5 Pet., 263; 
 Cabeen v Gordon. 1 Hill. Ch., 51; Bunch v. Hurst, 3 Dessau., 273; McCor- 
 mick V Malin. 5 Blackf., 509; Brooke v. Berry, 2 Gill & J., 83; Howard v. 
 Edgell. 17 Verm., 9; Harri.son 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 tlian the inadequacy of price, which atlbrds 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. Frank- 
 hn, 2 Johii. C h., 24, and Willard's Eq. Jur., § 1, ch. 4, p. 263.
 
 INADEQTACY OF TIIK CONSIDERATION. 205 
 
 of transactions, the doctrine of the court is, tliat ina(le(niacy 
 of consideration, if only amounting to hardship, or even 
 great hardships, is no ground for relieving a man " from 
 a contract which he has wittingly and willingly entered 
 into ;"(70 but that it may be so enormously great as to be a 
 conclusive evidence of fraud, and that if is then a ground 
 for setting aside the transaction affected by it.(/)' 
 
 § 4*1:J. Regarded as a ground of defense to a specilic per- 
 formance, the doctrine of the older cases was, that inade- 
 quacy of consideration was a sufficient ground, it being 
 regarded— even where not amounting to evidence of fraud — 
 as a circumstance of hardshij) which would stay the inter- 
 position of tlie court. Thus, in a case before Eyre, C. B., 
 that judge said that, independently of all consideration of 
 fraud, " the court upon the mere considerati(m of its being 
 so hard a bargain will not enforce it."(./) So, in a case 
 where there was a contract between two men each mi i Juris 
 for the sale of an estate wortli £1(),()00 for i:0,()()(» down and 
 £14,000 more, payable at the death of a man aged sixty-four 
 or sixty-five, and there were no cii'cumstances of i>ressure 
 or circumvention. Lord Alvanley, M. R., refused, on a cross- 
 bill, to set aside the contract , but he also refused specific 
 performance of it on the ground of its being a hard bar- 
 gain. (A:) And in an earlier case, where a purchaser had, 
 during the South Sea mania, purchased a house under the 
 court for £10,600, and paid a deposit of £1,000, the pur- 
 
 (h) Griiath V. Spratley, 1 Cox, 383, 388-9; 2 ij) Tilly v. Peers, cited by Sir S. Ilomilly, 
 
 Bro. C. C. 179; Fox v. Miickreth,2 Dick., arg., U) Ves..301. __ 
 
 683. See, too, Harrieon v. Guest, De (-i. M. (/;) Day v. Newman, 2 Co^. ... b. C , cuea 
 
 & G., 4-.>4, affirmed in D. P., 8 U L. C, 481. by air S. RomiUy, arg , 10 Yes., JOO. 
 
 (i) Stilwell V. Wilkins, Jac, 280. 
 
 \ 
 
 1 It would seem to be equally the settled rule of this country, that inadequacy 
 of price is to be looked upon merely as evidence of fraud ; tbat ot itselt, it 
 affords no ground for the interference of courts of chancery, \vhicii have never 
 yet, in Enoland or America, attempted to fix the prices at which owners may 
 dispose of their property. But the consideration of a contract niay be so grossly 
 disproportionate as to amount to conclusive evidence ottnuul ; ana in lliesc 
 cases only will the agreement be set aside. Wright y. Wilson, 2 ^ org . -J-4; 
 Green v. Thompson, 2 Ired. Ch., 3G5; Butler v. Has^cell. 4 Dessau Ool; New- 
 man v. Meek, 1 Freem. Ch., 441; White v. Flora, 2 Overton. 42b; llardman v. 
 Burge, 10 Yerg., 202; Knobb v. Lindsay. 5 Ham 4(,b Osgood v Frajikl n. 
 2 John. Ch., if Wintermute v. Snyder, 2 Green's Ch.. 489; btubbleheld v. Pat- 
 erson, 3He;., 128; McCormick v. Malin. f. Blackf. 509; Juzan v. Toulm.n 9 
 Ala., 662; Delafield v. Anderson, 7 S. & M., 630; Holmes v. > resh 9 Miss 
 201. There is a class of cases, however, where the defendant is an heir or ex- 
 pectant, in which inadequacy of price is alone sufticicnt to obtain relief m 
 equity. Story's Eq. Jui-., § 336, and notes 1, 2, 3, 4.
 
 200 FRY ON SPKOIFIO PERFORMANCE OF CONTRACTS. 
 
 chaser, sii}>niittiii,u- to forfeit his deposit, was discharged by- 
 Lord Macclestiekl on the ground of the general delusion 
 which the nation was under at the time of the contract, and 
 the iinauinary values then put by people on estates, and this 
 in spite of a most able argument by Lord Nottingham, who 
 argiied on behalf of his granddaughters the plaintiffs. (Z) 
 
 i; IrJI. But ir seems now to be established by the de- 
 cisions of Lord Eldon and Grant, M. R., that mere inade- 
 quacy of consideration is no defense to specific performance,' 
 
 (/) Savile v. Savile, 1 P. Wm8.,'745; S. C, 5 Vin. Abr., 516, pi. 25. See. also, Vaughan v. 
 Thomas, 1 Bro. C. C, 550. 
 
 > Inadequate consideration.^ Mere inadequacy of consideration is not, in 
 itself a .sufficient reason for refusing specific performance of a contract, and 
 furnislies no suJlicient •ause for setting it aside. Heywood v. I'ope 25 Beav., 
 140- Wliite V Flora, 2 Ovurton (Tenn.). 42G; Newman v. Meek, 1 Frecm. Ch. 
 fMiss) 141- Wintermute v. Snyder, 2 Green's Cli., 489; Eyre v. Potter, 15 
 How 4->- Avres v. Baumgarteu, 15 III. 444; Harris v. Tyson, 24 Pa. St., 347; 
 Kidder v ' Chamberlain, 41 Yt., 62; Judge v. Wilkins, 19 Ala., 795; Charles v. 
 Brady 10 Fla. 133; Maddox v. Simmons, 31 Ga., 512; Holmes v. Fre.sh, 9 
 Mo 201- Harri.son v. Town, 17 id., 237; Sheplierd v. Bevin. 9 Gill, 32; Potter 
 V Everett 7 Irod. Eq., 152; Mann v. Bctterly. 21 Yt.. 326; Stearnes v Beck- 
 bam 31 Gratt. 379; Lee v. Kirby, 104 Mass., 420; Booten v Shefler, 21 Gratt., 
 474'Saiter V. Gordon, 2 Hill. Cli. (S. C), 121; Stailton v. Miller, 14 Hun, 383; 
 S. C. aff'd, 58 N. Y., 192. 
 
 W/u'>: iuadequncy of consideration a defense.] In a case where the inadequacy 
 of the consideration is such as to shock the moral sense of mankind, it will 
 constitute a defense in an action for the specific performance of a contract. 
 Fraudulent contract should be pleaded. Osgood v. Franklm, 2 John. Ch., 1; 
 Garnett v. Macon, 2 Brock.. 185; Fripp v. Fripp, Rice's Ch. 84; Hardiraan v 
 Buro-e 10 Yer"- 202; Juzan v. Toulmin, 9 Ala., 662; Davidson v. Little, 23 
 Pa St 245; White v. Thompson, 1 Dev. & Bat. Eq., 493; Burtch v. Hoagg, 
 Han. (ilich.), 31; Rodman v. Zilley, 1 N. J., Eq., 320; Yiele ^^ Troy R. R. 
 Co 2 Bail)., 581; ^Yestern R. R. Co. v. Babcock, 6 Mete, 346; Hayes v Hol- 
 lis 8 Gill 357; Hale v. Wilkinson, 21 Gratt., 75: Clement v. Reid, 9 Sm. & 
 Marsh 535; Modiset v. Johnson, 2 Blackf., 431; Graham v. Pancost, 30 Pa. 
 St., 89; Clitheral v. OgUvie, 1 Uessau 's Eq., 250; Bunch v. Hurst, 3 id., 273; 
 Butler 'v. Haskell, 4 id., 651. 
 
 Rule as to inadequacy of consideration.'] Where this is relied upon as ade- 
 fense in an action for the specific performance of a contract brought against 
 the vendor, it must be shown that it resulted from the fraud, surprise, misrep- 
 resentation or concealment on the part of the purchaser, or that the purchaser 
 took unconscionable advantage of the vendor's weakness or ignorance. This 
 is the only safe rule. Lowther v. Lowther, 13 Yes ,113; Wall v. Stubbs, 1 
 Mad. 81; Cadman v. Harner, 18 Yes., 10; "\Yestern v. Rus.sell, 3 Y. & B , 187; 
 Luke'y v O'Donnel, 2 Sch c^ Lcf., 471 ; Robinson v. Robinson, 4 Md. Ch., 182; 
 Powers v. Hale, 25 N. H., 145; Eastman v. Plummer, id., 478; Lee v. Kirby, 
 104 Mass., 420; Davis v. Parker, 14 Allen, 94; Todd v. Grove, 33 Md., 188. 
 
 Examples inhere the consideration was held to he .^sufficient.] A party agreed to 
 pay twice the value of real property, but the transaction was free from fraud 
 and he examined the property himself, although most of the land was covered 
 with snow. Held, that specific performance would be decreed White v. 
 McGannon, 29 Gratt., 511. Where the vender sold as trustee— held, that the 
 inadequacy as to price might be set up as a defense; but not where the same 
 was fair although afterwards there was an opportunity to sell at a much greater 
 sum. Goodwin v. Fielding, 4 De G. M. & G., 90. A parent made a contract 
 with bis son, to give him all his property, in consideration that the son should
 
 ' INADEQUACY OF THE CONSIDERATION. 207 
 
 unless it amount to an evidence of fraud, and so would fur- 
 nish a ground even for cancelling the contract. (?72,) " Unless 
 the inadequacy of price.'' said Lord Eldon in one case, "is 
 siich as shocks the conscience and amounts in itself to con- 
 clusive and decisive evidence of fraud in the transaction, it 
 is not itself a sufficient ground for refusing a specific per- 
 formance. "(?ij And in an earlier case, where, a sale by 
 auction having taken place for about half the value of the 
 estate, Lord Rosslyn had refused specific performance, Lord 
 Eldon, on a rehearing, although he ultimately decided the 
 case on a question of evidence, 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. (o) His 
 lordship also applied the same principle in the instance of 
 an annuity transaction. (jp) The doctrine Avas adopted by 
 Grant, M. R., and Lord Erskine, and is noAv, it is conceived, 
 the well-established rule of the court. (^) An illustration of 
 it may be found in the case of Abbott v. Sworder,(r) where 
 an estate was bought for £5,000, the value of which svas 
 considered by Knight Bruce, V. C, to be £3,500; but this 
 
 (m) Per Lord Eldon in Stilwell v. Wilklns, Lord Erskine in Lowther v. Lowther, 13 id., 
 
 Jac.,28-2; cf Harrison v. Ciuest, 6 De G. M. 103; Collier v. Brown, 1 Cox, 428; Rower v. 
 
 & G., 424, affirmed in D P , S H. L. C 481. Cooper. 2 Ha., 408; Borell v. Dann, 2 id ,451. 
 
 (n) In Coles V. Trecothick, 9 Ves., 246. See, also, Griffith v. Spratley,2 Bro C. C, 
 
 (o) White V. Damon, 7 Ves, 30 179; 1 Cox, 383; .Stephens v. Hothani, 1 K. & 
 
 (p) Underbill v. Horwood. 10 Ves., 209. J., 571 ; Holmes v. Howes, 20 W. R., 310. 
 
 (q) Burrowes v. Lock, 10 Ves., 470; per (?) 4 De G. & Sni.,44S. 
 
 support bis parents during their live.s. Held, sufficient. Lester v. Lester, 28 
 Gratt., 737; Lorentz v. Lorentz, 14 W. Ya., 761. 
 
 Public sale; bid much under value.'] Where a sale at public auction has been 
 apparently fairly conducted, specific performance will be decreed, unless there 
 is strong proof 'of fraud or imposition. Bun-ows v. Lock, 10 Ves., 470; Low- 
 ther v. Lowther, 13 id., 103; Collier v. Brown, 1 Cox, 42G; Bower v Cooper. 
 2 Hare, 408; Borel v. Dann, 2 id., 459; Gri tilth v. Sprightly, 2 Bro. C. C, 179; 
 S. C, 1 Cox, 383; Stephens v. Hotham, 1 K. & .J., 571; Kussell v. Stimseu, 3 
 Hayw. (Tenn.), 1; Newman v. Meek, 1 Freem. Ch (:Miss.), 141; Delafield v. 
 Anderson, 7 Smed. &: M., 6:J0; Ready v. Noakes, 29 N. .1. I-:q., 497; Erwiu v. 
 Parham, 12 How., 197; Byers v. Surget, 19 How., 309. Inadequacy of price, 
 coupled with other circumstances, may be a controling element in determining 
 whether a public sale was fair or not. Benton v. Shreeve, 4 Ind., 66. 
 
 Time of the inadequacy of the consideration.] The inadequacy of considera- 
 tion of a contract sought to be specifically enforced, must be determined with 
 reference to the time the agreement was made. The date of the contract should 
 be looked to, and if, at that time, the consideration was adequate, it is enough. 
 Hale V. Wilkinson, 21 Gratt., 75; Mortimer v. Capper. 1 Bro. C. C, 156; 
 Woodcock V. Bennett, 1 Cow., 711. See, however, where payment v\a.s to be 
 made in confederate money. Love v. Cobb, 63 N. C, 324; Hud.><ou v. King. 2 
 Heisk, 561 ; McCarty v. Kyle, 4 Cold, 349. See as to price rendered inade- 
 quate by laches. Whittaker v. Bond, 56 N. C, 290. Where the vendor de- 
 clared himself satisfied, after entering into the contract, the court decreed 
 specific performance. Woodruff v. Uargrave, Wright, 555.
 
 208 FKV ON >1'KCIFIC PEKFOKMANCE OF CONTIiACTS. 
 
 ina(l(Hiu:icy of considenition was held both by liim and by 
 Lord St. J^ouai'ds to be no bar to speciiic performance, 
 whifli was accordingly decreed at the suit of the vendor.' 
 
 ij •1*J5. One case before Kindersley, V. C, must be re- 
 ferred to, as it appears to break, the recent current of authori- 
 ties. Ills lionor there considered the older cases on the 
 subject, and came to the conclusion that mere inadequacy 
 of price, without the least impropriety of conduct on the 
 part of the plaintiff, was a sufficient defense ; and his honor 
 did not advert to the proposition that such inadequacy 
 must amount to evidence of fraud, but treated it as one 
 form of hai-dship which jDrevented the action of the court.(5) 
 
 § 4"J6. The general rule tliat the hardship of a contract 
 
 (s) Fatcke v. Gray, 4 iJrew., '151. 
 
 ' In Westervelt v. Matheson, 1 Hofl". Ch., 87, the court refused to set aside a 
 purchase of land made for $2,9(i0, its highest value being estimated at $3,500, 
 upon tlie ground tliat the inadequacy was not so gross as to indicate a fraud. 
 Seymour v. Delance}', o 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 carrieil 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 inade- 
 quacy of price, not amounting to fraud, was sufficient to stay the application 
 of a court of equity to enforce the specific 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 
 ])rice over value, though considerable," it is said in C'athcart v. Robinson, 5 
 Pet., 208, "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 bet- 
 ter settled than this, whether in regard to vendor or vendee. Garnett v. Macon, 
 2 Brock., 1H5; Rodman v. Zilly, Saxtou, 820; White v Thompson, 1 Dev. &, 
 Bat. Ch., 498: Tripp v. Tripp, Rice's Ch., 84; Bean v. Valde, 2 Miss., 126. In 
 the recent case of Viele v. Troy and 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 court 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 decided that inadequacy of price did not, in any case, 
 amount to conclusive evidence of fraud. White v. Damon, 7 Ves., 80. In the 
 ca.se of Borell v Dann, the vice-chancellor said : Fraud, in the purcha.se, is of 
 the es.seucc of the objection to the contract, on the ground of inadequacy. 
 The only exception to the rule for decreeing the specific performance of an un- 
 executed contract, 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 pur- 
 chaser. 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 
 tliere 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. 209 
 
 is, independently of fraud, a ground for refusing its specific 
 performance, would seem to carry with it the particular 
 rule that inadequacy of consideration, when amounting to 
 hardship, but not to fraud, should yet be a defense. But 
 there appears (notwithstanding an expression of opinion 
 from the bench to the contrary[^]) great good sense in re- 
 fusing to adopt such a rule. To make a contract for an 
 insufficient consideration incapable of enforcement by the 
 l')urchaser, would be practically to prevent a man from sell- 
 ing his property at less than its value — however impossible 
 it might be to sell it at its value, however desirous he might 
 be to sell it for the price actually obtained, however desira- 
 ble it might be for his interest that he should do so, and 
 however unwilling or unable the purchaser might be to pur- 
 chase at its full value. The rule would, when it did not 
 stop the sale, yet further reduce the amount receivable by 
 the vendor, because the purchaser would, in effect, indem- 
 nify himself for the risk he ran by offering less purchase 
 money than he otherwise would have done. The freedom 
 of contract, including in it the freedom to enter into en- 
 forceable contracts, should never be infiinged without suffi- 
 cient cause. But furthermore, if inadequacy of considera- 
 tion short of fraud were a bar to specific performance, the 
 question would arise as to the amount of inadequacy which 
 should so operate — a question not easy to answer. 
 
 § 4S7. In the later Roman law, these difficulties in the 
 way of relieving against inadequacy of consideration in cer- 
 tain cases were overcome, at least as to immoveable prop- 
 erty. By a constitution of the Emperors Diocletian and 
 Maximian, the right of recission for inadequacy of consid- 
 eration was first introduced. (w) Their constitution was 
 adopted by Justinian. It fixed the arbitary standard of 
 half the real price as that which would give the sufferer a 
 right 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. (zO The old French law adopted the same 
 
 (0 Xott V. Hill, 2 Gas. in Ch., 120. (i") Cod. lib. Iv, tit. 44. 2. 
 
 (w) Troplong, De la Vente, § 730. 
 
 14
 
 210 FRY OX SPECIFIC PERFORMANCE OF CONTRACTS. 
 
 principle, except in the case of sales between co-heirs and 
 co-proprietors, where a defect of one-qnarter of the price 
 liad the same effect as a like defect of one-half in other 
 cases. (?r) The present law of France is embodied in article 
 1674 of the Code Civil, which is remarkable for the strin- 
 gency of its i)rovisions and for the discnssion in the Coun- 
 seil d'Etat of which it was the result, a. discussion in which 
 the first consul took a prominent part.(.'c) It enables a ven- 
 dor of an immoveable to require recission, if he suffers in- 
 jury to the extent of more than seven- twelfths of the price, 
 though he may by the contract have expressly renounced 
 such right, and have declared that the price given is the 
 full value. 
 
 § 428. The question of the inadequacy of the considera- 
 tion must, of course, be decided at the time of the contract, 
 and not by the light of subsequent events.' It is true that, 
 in a case(?/) already stated, the circumstance of the con- 
 tract having been made during the excitement caused by 
 the South Sea scheme was allowed as a reason why the 
 court relieved a j)urchaser from the performance of his con- 
 tract ; but the case is one which cannot now be considered 
 as law, and the principle involved seems unjust. It is now, 
 therefore, well established that the time of the contract is 
 the time for judging of its consideration : thus, to give one 
 exami^le, where an annuity for life forms j^art of the con- 
 sideration, and the life drops before any payment is made, 
 this does not render the consideration necessarily inade- 
 quate, (z) 
 
 § 429. Where the contract refers the price to a valuer 
 for him to ascertain between the parties, this fact does not 
 of itself preclude the court from inquiring into the adequacy 
 of the consideration, (a) and this inadequacy of considera- 
 tion would, of course, be strengthened as a defense if any 
 circumstances arose which threw a doubt on the accuracy 
 with which the valuation was made.(&) 
 
 § 430. The effect of an undervaluing by the valuers is a 
 
 (ic) Pothler, Tr. des Obllg., Part I, ch. 1, port in Gilbert, the case was decided or 
 
 § 1, art. 3, § i. another point. 
 
 (X) Troplong, De la Vente, § 787 et seq. («) Mortimer v. Capper, 1 Bro. C. C, 156. 
 
 (y) Savile v. Savile, supra, § 423. See Klen (a) Parken v. Whitby, T. & K., 366. 
 V. stukeley, 1 Bro. P. C, 191, where the same (b) Emery v. Wase, 8 Ves., 505. 
 ground was urged; but according to the re- 
 
 ' Batty V. Lloyd, 1 Vem., 141.
 
 IXADEQUACY OF THE COXSIDEP.ATION. 211 
 
 question wliicli lias, however, been but little discussed in 
 our courts : it lias been debated with the usual diversity of 
 opinion by the writers on civil law.(c) It is conceived that, 
 if the undervalue were such as to convince the court that 
 the valuers had acted under fraud or mistake, the contract 
 would be incapable of enforcement in equity : otherwise, if 
 the undervalue did not so convince the court. 
 
 § 431. The question of inadequacy of consideration in a 
 sale of reversionary interests, Avhether arising in a suit to 
 set aside the sale or in a suit for the performance of the con- 
 tract, was formerly governed by special considerations. 
 The law upon this question has, to a certain extent, been 
 altered by statute. It is necessary, therefore, to consider 
 liow^ the law stood before the legislative alteration, and 
 Avhat is the extent of that alteration. 
 
 § 432. Before the statute hereafter to be referred to, the 
 defense of inadequacy of consideration in respect of con- 
 tracts for the sale of reversions had two peculiarities which 
 distinguished it from the like defense in the case of ordinary 
 contracts. It was clear (1) that the proof of inadequacy was 
 a sufficient defense, though there were no accompanying cir- 
 cumstances of fraud or oppression, and though the inade- 
 quacy did not amount to evidence of fraud \{d) (2) that the 
 burthen of proof lay on the plaintiff purchaser : it rested 
 on him to show that the price was adequate, not on the de- 
 fendant vendor to show that it was inadequate, (e) 
 
 § 433. The principle on which the court acted in these 
 cases was that a man possessed only of a future interest 
 sells at a disadvantage ; it, therefore, did not apply where 
 the tenant for life and the reversioner concurred, as they 
 together "form a vendor with a present interest ;''(/) and 
 so where a vendor had a rent-charge of £500 in possession 
 and an estate in reversion, and he sold a perpetual rent- 
 charge of £500, he was not considered as within the prin- 
 ciple now under consideration, he having it in his power to 
 secure a perpetual rent-charge of that amount in posses- 
 sion. (<7) 
 
 § 434. The mere fact, however, that some interest in pos- 
 
 i,\ Trn«imicr TIP la Vpnte S 15S (/) Woocl V. Abrcy, 3 "Mad., 417. 
 
 S Pla?fo;f V playfordf 4 H^; 54G. (P) Wardle v. Carter, 7 Sim.. 490. 
 
 (e) Kendall v. Beckett, 2 R. & My., S8 ; 
 Hincksman v. Smith, 3 Russ., 433.
 
 212 FKY OX SPECIFIC PERFOEMANCE OF CONTRACTS. 
 
 session was sold together Avitli the reversion, did not, at least 
 where the foniier was not considerable, take the case out of 
 the rule \{h) as, for instance, where an annuity in possession 
 was sold together with the reversion, the estimated value 
 of the annuity being only about one-sixth of that of the 
 reversion. (/) 
 
 § i:i5. Again, the principle did not apply where the re- 
 versionary interest was sold by auction \{j) and this for 
 two reasons. First, "there being no treaty between vendor 
 and purchaser, there can be no opportunity for fraud or im- 
 position on the part of the purchaser. The vendor is, in no 
 sense, in the power of the purchaser. "(A*) Secondly, it being 
 clearly established that the market price of the reversionary 
 interest, and not the estimate of actuaries, was the criterion 
 by which the court decided the question of undervalue, (Z) 
 and a sale by auction being a mode of ascertaining that 
 market price, it followed that the consideration for 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 undervalue could arise. 
 
 § 436. Such was shortly the state of the law before the 
 statute 31 Yict., ch. 4. By that statute it was enacted that 
 no purchase made bona fide and without fraud or unfair 
 dealing of any reversionary interest in real or personal 
 estate, should thereafter be opened or set aside merely on 
 the ground of nndervalue. 
 
 § 437. As regards actions for the rescission of contracts 
 for the sale of reversions, the operation of this act is clear. 
 It makes mere inadequacy no sufficient gi'ound for relief ; 
 but it leaves entirely unailected the jurisdiction which re- 
 lieves against the fraud which infects catching bargains 
 with heirs, reversioners, or expectants in the life of the 
 father. The doctrines of the court which throw protection 
 round unwary young men in the hands of unscrupulous 
 persons ready to take advantage of their necessities are 
 entirely unchanged. (m) 
 
 (h) Per Lord Eldon in Davis v. Duke of 460; Edwards v. Burt, 2 De G. M. & G.. 55. 
 
 Marlborough, 2 Sw., 154. Consider Perfect v. Lane, 30 Beav.,197; 3 De 
 
 (i) Earl of Portmore v. Taylor, 4 Sim., 182. G. F. & J.. 369; Lord v. Jeffkins, 35 Beav., 7. 
 
 O') Shelly V. Nash, 3 Mad., 232. (w) Tyler v. Yates, L. R. 11 Eq., 265; C Ch., 
 
 (k) Per Leach, V. C, id., 236. 664; Earl of Aylesford v. Morris, Id. 8 Ch., 
 
 (I) Wardlev. Carter, 7 Sim., 400; per Wig- 484; Beynon v. Cook, 10 Ch., 389; O'Rorke 
 
 ram.V. C, in Borell v. Dann, 2 Ha., 4.52; v. Bolingbroke,2 App. C.,S14; Nevill v. Snel- 
 
 Earlof Aldborough V. Trye,7Cl. &Fin.,430, ling, 15Ch. D.,679.
 
 INADEQUACY OF THE CONSIDERATION. 213 
 
 § 438. But tlie act is silent as regards the specific i^er- 
 formance of contracts relating to reversions. Does it, there- 
 fore, leave the law just as it was ? or does it for all purposes 
 place sales of reversions on the same footing- as other sales 
 so far as regards the question of inadequacy of considera- 
 tion? No decision has, it is believed, l)een given upon 
 these questions : but it is submitted that the true conclu- 
 sion is, that every contract for the sale of a reversion which 
 cannot be relieved against ought prima facie to be per- 
 formed ; that the object of the act was to place bona fide 
 and honest sales of reversions on the same footing as other 
 sales : and that henceforth in specific performance actions 
 there will rest on the defendant the burthen of proving in- 
 adequacy of consideration, and such inadequacy as shocks 
 the conscience of the court and constitutes evidence of 
 fraud, or as is accom]5anied by other circumstances of op- 
 pression or unfairness. 
 
 § 439. It only remains to add as affording some support 
 to this conclusion that the rule throwing the burthen of 
 proof of adequacy on the purchaser was adopted in specific 
 performance suits in obedience to decisions to that effect 
 in suits to set aside the transaction ; and not on any inde- 
 pendent ground affecting such suits in particular. (o) 
 
 (o) See Kendall V.Beckett, 2 R. & My., 884; the cases there cited and relied upon in 
 Hinckeman v. Smith, 3 Ru8s.,433; and notice judgment.
 
 214 FRY ON SPECIFIC PERFORMANCE OF CONTRACTS. 
 
 CHAPTER Aail. 
 
 OF AVANT OF MUTUALITY IN THE CONTRACT. 
 
 § 440. 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, there- 
 fore, whether from personal incai)acity to contract, or the 
 nature of the contract, or any other cause, the contract is 
 incai)able of being enforced against one party, that party is 
 equallj' 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.'' 
 
 (a) In Williams v. Williams, L. R. 2 Oh., verbal family arrangement. ConsiderTurner 
 294, 304, there was lield to be mutuality in a v. May, 32 L. T. (N. S.), 56. 
 
 ^ Mutualitii as to obligation and remedy. ] A contract whicli is sought to be 
 specificallj' enforced must be mutual, both as to the remedy and the obligation. 
 Boucher V. Yanbuskirk, 2 A. K. Marsh., 345; Hutchinson v. McNutt, 1 Ohio, 
 14: Ohio v. Baum, 6 id., 383; Cabeen v. Gordon, 1 Hill Ch. (S. C), 51; Mc- 
 Murtree v. Bennett, Harr. Ch., 124; Hawley v. Sheldon, id., 430; Benedict v. 
 Lvnch, 1 John.'s Ch., 370; German v. Machin, 6 Paige Ch,, 288; Beard v. Lin- 
 thicum, 1 Md. Ch., 345; Bodine v. Gladdins:, 21 Pa. St., 50; Jones v. Noble, 3 
 Bush. (Ky.), 694; Rider v. Gray, 10 Md.,^282; Reese v. Reese, 41 id., 554; 
 O'Brien V. Pentz, 48 id., 562; Ewins v. Gordon, 49 N. H., 444; Richmond v. 
 Dubuque R. R. Co., 33 Iowa, 422; Taw v. Scott, 4Breu 's (Pa.), 49; Cooper v. 
 Pena, 21 Cal., 403; Duvall v. Myers, 2 Md. Ch , 401; IMeason v. Kane, 63 Pa. 
 St., 335; Luse v. Deitz, 46 Iowa, 205; Maynard v. Brown, 41 Mich., 298; 
 Smith V. Smith, 63 Ga., 184; Bronson v. Cohill, 4 ]McLean, 19; Snyder v. 
 Neefus, 53 Barb., 63; Marble Co. v. Ripley, 10 Wall., 339; Mastin v. HaWey, 
 61 Mo., 196; Vassault v. Edwards, 43 Cal., 458. 
 
 Option.l An optional contract to sell property, or renew a lease, without 
 any covenant or obligation to purchase or accept, and without any remedy that 
 is mutual, will be enforced by a court of equity, when it has been made upon 
 proper consideration, or forms part of a contract between the parties, that may 
 he the true consideration for it. Classon v. Bailey, 14 Johns., 484; In re Hun- 
 ter, 1 Ed. Ch , 1; Woodward v. AspeuAvall, 4 Sandf., 272; Hawralty v. War- 
 ren, 18 N. J. Eq., 124; Vandoren v. Robinson, 16 id., 256; Green v. Richards, 
 23 id., 32; Schroeder v. Gemeinder, 10 Nev., 355; Cor.son v. Mulvany, 49 Pa. 
 St., 88; Boston, etc., R. R. Co. v. Bartlett, 3 Cush., 224; D'Arras v. Keyser, 
 26 Pa. St., 249. 
 
 Continuing offer to 8ell.'\ An agreement to sell, provided another will pur- 
 cha.se, is in the nature of a continuing offer, and when accepted completes the 
 contract. De Rutte v. Muldrew, 16 Cal., 505; Laffan v. Nagle, 9 id., 662; 
 Hall V. Canter, 40 id., 65; Willard v. Taylor, 8 Wall., 557; Napier v. Darling- 
 ton, 70 Pa. St., 64; Manlin v. Perrj-, 35 Md., 353. 
 
 " No rule in equity is more thoroughly settled than this. Benedict v. Lynch, 
 1 John. Ch., 370; Bromley v. JeflEers, 2 Vern., 415; German v. Machin, 6
 
 WANT or MUTUALITY IN THE CONTRACT. 215 
 
 § 441. Thus a tenant in tail cannot enforce a contract 
 entered into by a tenant for life, because the tenant in tail 
 could not be sued on it :(6) an infant cannot sue, because 
 he could not be sued, for a specific performance :{c) a pur- 
 chaser from a person who at the time of the sale had no 
 estate in the proj^erty sold, may defend himself on the score 
 of the vendor's original incapacity to perform his part:(<^) 
 a father cannot enforce a contract on the part of his mother- 
 in-law to pay him an allowance in consideration of his giv- 
 ing up to her the custody of his infant children during a 
 specified part of every year :(e) and where A. agreed with 
 B. not to join in barring an entail, and B. agreed to convey 
 to A. certain parts of the estate on his entering into pos- 
 session, and it was held, on the authority of Collins v. 
 Plummer,(/) that such a contract could not be specifically 
 enforced against A., a specific performance of B.'s part of 
 the contract was refused at the suit of A.'s representa- 
 tives. (^) On the same principle it would seem that a con- 
 tract entered into by several devisees in trust for sale, of 
 
 (b) Armiger v. Clarke, riumb.,lU; Rick- party of full age. The infant cannot recover 
 ett V. Bell, 1 De G. & Sm., 335. a deposit paid on the contract, except on the 
 
 (c) Flight V. Bolland, 4 Russ., 298. The ground of fraud. Wilson v. Kearse, Peake, 
 case of Clayton v. Ashdown, 9 Vln. Abr , 393, Add. Cas., 196. 
 
 may perhaps be explained on the ground of (rf) Hogsart v. Scott, 1 R. & My., 293. Cf. 
 
 a ratilication by the infant after attaining bis Forrer v. Nash, 35 Beav., 107. 
 
 majority, or asbelng au application in equity («) Kennedy v. May, 11 W. R., 358. 
 
 of the legal principle that the contract, (/) 1 P. Wms., 104. 
 
 though voidable by the infant, binds the (g) Hamilton v. Grant, 3 Dow, 33. 
 
 Paige, 288; Woodward v. Harris, 2 Barb. S. C. R., 439; Phillips v. Berger, 
 id., 611; confirmed on appeal, 8 id., 527; see, also, Rogers v. Saunders, 4 Me. 
 R., 92; Tyson v. Watts, 1 Maryl. Cli. Decis., 18; Beard v. Liutbicum, id., 345; 
 M'Miirtrie v. Bennet, Hamng. Cli., 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, b}^ tlie vendors of certain laud, 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 3Iaryl. Ch. Decis. 
 13. There, the manifest object of the jiarty resisting a decree for the specific 
 performance of a contract, and one which he supposed he had secured bj- the 
 contract, was to have the minerals on his farm worked as well as explored; by 
 the contract he gave A. full power to make explorations and work the mines; 
 but the only engagement on the part of A. was limited to explorations, and he 
 W'as not bound to work the mines. Upon this state of the case the court de- 
 cided the contract to be deficient in reciprocity of obligation, and refused its 
 specific performance. A party not bound by the agreement itself, has no right 
 to call upon a court of equity *to enforce specific performance against the other 
 contracting party, by expressing his willingness, in his bill, to perform his part 
 of the engagement. 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 character. Duvall v. flyers, 2 3Id. Ch. Decis., 401; see, also, the 
 case of Bodine v. Gladding, 21 Penu. (9 Harris), 50.
 
 216 FIIY ON SPECIFIC PERFOEMANCE OF CONTRACTS. 
 
 whom one Avas a married woman, would be unenforceable 
 by either side.(7i) So where the relief sought was analogous 
 to the speciiic i^erformance of a grant of an office, the court 
 held that, the duties and services incident to the office being 
 personal and confidential in their character, specific per- 
 formance could not have been decreed against the plaintiff 
 at the suit of the defendant ; and consequently, that the 
 plaintiff could not sue the defendant, though there were 
 no personal duties to be performed by the defendant. (i) 
 Again, where the plaintiffs had agreed to perform certain 
 services in working a railway, \vhich were of such a confi- 
 dential nature that the court could not have enforced them 
 If the defendants had sued the plaintiffs ; and the de- 
 fendants were to pay money, and do nothing else ; the 
 court refused specific performance, on the ground, amongst 
 others, of want of mutuality. (/) The like objection pre- 
 vailed where the plaintiff sued on a contract under which he 
 was to construct a railway, and offered to make the railway 
 and asked for payment. (A-) 
 
 § 442. A doubt was at one time entertained whether 
 there existed the proper mutuality between a 23erson having 
 entered into a contract to take a lease from a tenant for life 
 with a leasing power and the remainderman :{l) but that 
 doubt is now resolved, and it seems clear that such a con- 
 tract may be enforced by either of these parties, (m) 
 
 § 443. The mutuality of a contract is, as we have seen, to 
 be judged of at the time 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 subsequent to the con- 
 tract, have lost his right against the plaintiff. (;?)' And ac- 
 
 (h) That the purchaser could not enforce and wife Is not bad for want of mutuality, 
 
 such a contract has been decided. Avery v. and may be enforced by them. Fenelly v. 
 
 Griffin, L. R. 6 Eq , 606. Anderson, 1 Ir. Ch. R., 7()6. The grounds of 
 
 (t) Pickering v. Bishop of Ely, 2 Y. & C. C. this decision do not appear very conclusive. 
 
 C-. 249. Cf. Avery v. Griffin, h. H. 6 Eq., 606. 
 
 ij) Johnson v. Shrewsbury and Blrming- (k) Peto v. Brighton, Uckfield, and Tun- 
 ham Railway Co., 3 De G. M. & G., 914; bridge Wells Railway Co., 1 H. & M., 468. 
 Stocker v. Wedderburn,3 K. & J ,393; Ord (0 Per De Grey, C. J., in Campbell v. Leach, 
 V. Johnston, 1 Jur. (N. S.), 106:!; 4 W. R., 37 Ambl., 749. 
 
 gtuart, v. C). .-^ee, also, Hill v. Gomnie, 1 (m) Shannon v. Bradstreet, 1 Sch. & Lef., 
 
 Beav , 540 ; Bromley v. JeflVrieK. 2 Vern , 41.5, 52, particularly 04. See infra, § 506. 
 
 sed qu. it has been decided in Ireland that (n) South Eastern Railway Co. v. Knott, 10 
 
 a contract by a i)urchaser with a husband Ha , 122. 
 
 ' 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, 120, which 
 js a case agreemg precisely with the Southeastern Railway Co. v. I^nott, cited 
 in the text.
 
 WANT OF MUTUALITY IN THE CONTRArT, 217 
 
 cordingly it lias 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 :{o) if such 
 a defense were sustained, it would be to allow defendants to 
 take advantage of their own neglect. From the time of tlie 
 execution of the contract being the time to judge of its mu- 
 tuality it further follows, that the subsequent performance 
 by one party to terms which could not have been enforced 
 by the other will not prevent the objection which woukl. 
 arise from the presence of such terms, (i?) 
 
 § 444. The exceptions or apparent exceptions and limita- 
 tions to the doctrine of mutuality may now be considered. 
 § 445. (1) The contract may be of such a nature as to 
 give to the one party a right to the performance wliich it 
 does not give to the other— as for instance, where a lessor 
 covenants to renew upon the request of his lessee :((^) or 
 where the contract is in the nature of an undertaking, (r) 
 But these are merely cases of conditional contracts : and 
 when the condition has been performed, as for instance, in 
 the case above stated, by a request to renew, the contract 
 becomes absolute and mutual and capable of enforcement 
 alike by either party. (5) 
 
 § 446, In cases arising out of such contracts, the court 
 will exercise its discretion as to specific performance with 
 great care, and, it seems, view even somewhat narrowly the 
 conduct of the party claiming the benefit of his unilateral 
 right to make the contract absolute. (^) 
 
 § 447. (2) Mutuality may be waived by the subsequent 
 conduct of the person against whom the contract could not 
 originally have been enforced: thus, where a purchaser 
 contracts for an estate with a person having no title, or not 
 such as he affects to sell, and the contract, therefore, is not 
 mutual, for want of interest in the vendor— yet, if the pur- 
 ee) Hawkes v. Eastern Counties Railway ip) Hope v. Hope, S Do ^- M- & «.. 731,746, 
 Co ,1 De G. M. & G., 737, 75.'); S. C, 5 H. L. overruling the obs.rvnlions of Lord Uonillly, 
 C., 331,365. The observations 01' Lord Gran- M. K., in S. C, 'Ji Beav . 3(.4 
 worth (then L, J.) in Stuart v. London and Ui) Chesterman v Mann. '.I Ha , .<G. See 
 North-western Railway Co , 1 De G. M. & G. , Bell v. Howard. 9 Mo( ..m, 304. 
 7-21. to the contrarv, may probably be taken {r) Palmer y. bcoit 1 \i & Mj .. 301 
 to be overruled by his lordship's concurrence (.v) Cf. WeedinK v. S\ eedinfr. 1 J. & H . 4.4, 
 in Hawkes- Case in the House of Lords See. where a condliional '-"'''J";:^, Jill ^„7""V 
 also. Scottish North-Eastern Railway Co, v. absolute by the exercise ..fan option of pur- 
 Stewart, 3 Macq., 3S-2, where, however, the chase. C.onsider '^l'^<^r»«" ^■. ^'•»''V'^f"^, 
 point really determined was one of con- Ex. D..293, 3(<i (reversed \ V N , >H, p. C*). 
 Btruction. (,0 Chesterman v. Mann, 9 Ua, 2*. 0.
 
 218 Fliy ox SPECIFIC PERFOmiANCP: OF CONTRACTS. 
 
 chaser investigate the title and make requisitions or concur 
 in proceedings for the purpose of remedying the defect, -he 
 is afterwards precluded from setting up the original want of 
 mutuality in the contract.(?/0 
 
 g 448. 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 action waive that 
 want of mutuality, and enforce the speciiic performance of 
 the contract ; as in the case of an action by a cestui que 
 trust against his trustee for the performance of a contract 
 for sale, such a contract being originally binding on the 
 trustee, and not on the beneficiary. («) The case of a con- 
 tract for sale by a voluntary settler is similar, for though 
 he is incapable of enforcing the contract against an unwil- 
 ling purchaser, (w) the purchaser may waive the want of 
 mutuality and enforce it against him. (re) 
 
 § 449. (3) Another apparent exception to the principle 
 in question is afforded by the doctrine which was estab- 
 lished very soon after the passing of the Statute of Frauds, 
 that in case of contracts which by that statute are required 
 to be in writing, a party who has not signed the contract 
 may enforce it against one who has. (2/)' 
 
 § 450. It has been alleged in support of this doctrine, in 
 the first place, that the statute only requires the contract to 
 be signed by the iDarty to be charged therewith or his agent, 
 and is silent as to the signature of the other party. (^) But 
 this reasoning seems inconclusive ; because the doctrine of 
 mutuality is independent of the statute, and where one 
 party has signed and the other has not, the rights of the 
 
 (u) Salisbury v. Hatcher, 2 Y. & C. C. C, (j/) Hatton v. Grey, 5 Vin. Abr., 525, pi. 4, 
 
 54; Hoegart v. Scott, 1 R & Mv.,293. in 36 Car. ii; S. C, 2 Cas. in Ch., 164; Buck- 
 
 (f) Ex parte Lacey, 6 Ves.,625. house v. Crosby, 2 Kq Ca. Ab.,32, pl.44; and 
 
 iw) Smith V. Garland, 2 Mer., 123; Johnson see, as to the interest of the party who has 
 V. Lepard, T. & R , 281; Clarke v. Willott, L. not signed, Morgan v. Holl'ord, 1 Sm. & Giflf., 
 R. 7 Ex., 313. In Peter v. Nicolls, 1>. R. 11 101. See, too, infra, § 497. 
 Eq., 391, Stuart, V. C. . held that the rule (z) Coleman v. Upcot, 5 Vin. Abr , 527, pi. 
 establi-jhed by Smith V. Garland did not ap- 17; Child v Comber. 3 Sw., 423 n.; Back- 
 ply to a purchaser who admitted that he was house v. Mohun, id., 434 n.; Seton v. Slade, 
 a willing purchaser, but objected to the title. 7 Ves , 265; Lord Ormond v. Anderson, 2 
 See supra, § 3>7, and note there. Ball & B., 363. 
 
 (x\ Buckle V. Mitchell, IS Ves., ion ; and see 
 Rosher v. Williams, L. R. 20 Lq., 210. 
 
 ' In support of this exception, see Seton v. Slade, 7 Ves., 275 ; Fowle v. Free- 
 man, 9 id., 357; Clason v. Bailey, 14 John. Rep., 184; McCrea v. Purdy, 16 
 "Wend., 40f3; \Yoodward v. Aspinwall, 3 Sandf. S. C. R , 273; Sutherland v. 
 Briggs, 1 Hare, 34. But see the comments of Lord Redesdale in Lawrence v. 
 BMtler, 1 Sch. & Lef., 13; and of Verplanck, senator, in Davids v. Shields, 
 26 Wend., 36-2.
 
 WANT OF MUTUALITY IN THE CONTRACT. 219 
 
 parties, wliicli before the statute were mutual, have by force 
 of it ceased to be such, (a) A more satisfactory reason is 
 that, by instituting proceedings, the phiintiff has waived 
 the original want of mutuality, and rendered the remedy 
 mutual. (Z') 
 
 §451. On the same ground, a contract contained in a 
 deed-poll was enforced, notwithstanding an objection taken 
 from the unilateral nature of the instrument. (c) 
 
 § 452. (4) Where the vendor has not substantially tlie 
 whole interest which he contracted to sell, he cannot enforce 
 the contract against the purchaser, and yet the purchaser 
 can generally enforce it against him by compelling him to 
 convey what he can, with an abatement of the purchase- 
 money as compensation for the deficiency. This subject 
 will be found discussed in a subsequent chapter. (dZ) 
 
 § 453. In two Irish cases decided by Lord Redesdale, in 
 each of which the party seeking to enforce the contract was 
 at the time w^hen he entered into it aware of the defect in 
 the other party's title, (e) the principle stated in the last 
 preceding section was held not to apply. 
 
 § 454. In one of these cases, a tenant for life entered into 
 a contract with the plaintiff to grant a lease, which he could 
 not do without the consent of trustees :(/)' the consent was 
 refused, the contract 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 w^as at least entitled to such a lease as the tenant for life 
 could grant out of his estate. But Lord Redesdale dis- 
 missed the bill for want of mutuality. "No man," he said, 
 "signs an agreement but under a supposition that the other 
 party is bound as w^ell as himself : and, therefore, if the 
 other party is not bound, he signs it under a mistake ; ''(//) 
 
 (a) SeeperLeach.V.C.inBoysv.Ayerst, (c) Otway v. Braithwaitc. Finch, 405. So, 
 
 6 Mad 3'3 also, of a bona, Butler v. Powia, 1 Coll., lo6. 
 
 (6) Clifld V. Comber, 3 Sw., 423 n. ; Seton v. (</) Part IV, cliaii. li, § 1J--2 et seq. 
 
 Slade, 7 Ves., 2G5; Fowle v. Freeman, 9 id , (e) That this circumstance is not ncces- 
 
 351 • per Grant, M. R., in Western v. Kussell, sarily fatal to relief, see inlra, ^ Viol ; Uarker 
 
 3V. &B., 19-2; Martin V.Mitchell, 2 J. &W., v. Cox, 4 (Jh. D., 4G4. ». t , r n 
 
 413; Flight v. Bolland, 4 Kuss., iVS. (/) Lawrenson v. Sutler, 1 Sch. X Lei , IJ. 
 
 ° * (^) 1 Sch. & Lef, 21. 
 
 1 "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 con- 
 tract as to the residue of the laud, with a compensation m damages m relation 
 to which the vendor is unable to give a good title." Morss v. Llmendorf, 11 
 Paige, 387.
 
 220 Fi:V ON SPECIFIC PEKFOHMANCE OF CONTRACTS. 
 
 and his lordsliip considered that the principle above stated 
 only applies where, on the faith of a contract, one party has 
 put liimself in a situation from which he cannot extricate 
 himself, and is, therefore, willing to forego part of his con- 
 tract — where an injury 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, Lord Redes- 
 dale further observed upon the si^ecific performance of con- 
 tracts by a tenant for life exceeding his power. (7/^) "I 
 think," said his lordship, "courts of equity should never 
 enforce such contracts, whether Avith a view to the party 
 himself or to the person entitled in remainder. In the first 
 place, it is unconscionable in the tenant for life to execute 
 such a lease, because 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 himself, it is compelling 
 him to do what is to be the foundation of a future action for 
 damages, if he die before the twenty-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, obtained by a person who knew at the time the 
 nature of the title, is unconscionable in him, as he makes 
 himself a party 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." (/) 
 
 § 45*1. This view of the jurisdiction is certainly narrow^er 
 than that entertained -by previous judges : it has been re- 
 marked to be such by Lord Langdale, M. R.,(y) and has 
 been disaioproved of by Lord St. Leonards. "I doubt," 
 said his lordsliip, speaking 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 fi'aud in the transaction. If there be a bona fide inten- 
 tion to execute the power, and the contract cannot be carried 
 into effect, I do not see why the interest of the tenant for 
 life should not be bound to the extent he is able to bind it, 
 unless there be some inconvenience." (A') And the principle 
 
 (h) Harnett v. Yielding, -2. Sch. & Lef., 549; ( /) In Thomas v. Dering, 1 Ke., 746. 
 contra, Neale v. Mackenzie, 1 Ke., 474. (k) Dyas v. Cruise, 2 J. & Lat., 460, 487. 
 
 (i) i Sch. & Lef., 559. See, also, 553.
 
 WANT OF MUTUALITY IN THE CONTRACT. 2*21 
 
 thus stated is now firmly establislied, notwithstanding the 
 objection for want of mutuality. (Z)' 
 
 (I) See infra, Part IV, chap, li, § 1222 et seq. 
 
 1 "It is also perfectly evident," it is added bj' Wal worth, Cliancellor, ia 
 Morss V. Elniendorff, if 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 
 ouffht not to entertain the suit merely for the assessment of damages. Hatch 
 V. Cobb, 4 John. Ch., 5r,9; Kempshall v. Stone, 5 id., 193. But where the de- 
 fendant deprives himself of the power to perform the contract specifically, 
 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 dam- 
 ages, 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 complamant; 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 indam- 
 ages for the breach of a contract, except where the contract is of equitable 
 cognizance merely. Nor can a complainant entitle himself to the interference 
 of °this court, to give him a compensation in damages for the non-performance 
 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 filino- 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 complainant's remedy, if any he had, was at law and not m 
 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 obtain- 
 ing a compensation in damages merely, when he knew that he could expect 
 nothing more than such a compensation in damages at the time of filinj^ his 
 bill. And the complainant having made a case, by his bill, apixirently entitling 
 him to a specific performance, 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.'
 
 2*23 FRY ON" SPECIFIC PERFOKMAXCE OF COXTKACTS, 
 
 CHAPTER IX. 
 
 OF THE ILLEGALITY OF THE CONTRACT. 
 
 § 450. The illegality of a contract or of any i)art of a con- 
 tract 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, (a) The interference of the court is 
 prevented, Avhether the contract was illegal at the time 
 of its being entered into, or was then legal but has been 
 rendered illegal by subsequent statute law before its 
 execution. (^>) But in the latter case the court is, it seems, 
 anxious to find some means of executing the contract so far 
 as it may be done without violating the law,(c)' 
 
 (a) See infra, § 464. nington v. Briecoe, S Mod., 51; and intra, 
 
 (b) Atkinson V. Ritchie, 10 East, 530, 534; § 894. 
 
 Barker v. Hodgson, 3 M. & S., 267; Esposito (c) Betteswortli v. Dean of St. Paul's, Sel. 
 v. Bowden, 4 El. & Bl., 963. See, also. Win- C. in Ch., 66; Infra, § 986. 
 
 ' Bide as laid doirn by WalicortJi, Ch. (in Pratt v. Adams, 7 Paige's Cb., 615.)] 
 " It is a well-settled principle of the common law, that no court of justice will 
 lend its aid to enforce the performance of any contract or agreement which was 
 intended by the parties thereto to contravene to provisions of a positive law, 
 or the performance of a contract which is contrary to public policy." Consult, 
 under this head, Knowles v. Harylton, 11 Yes., 1G8; Ewing v. Oshaldistone, 2 
 Myl. & Cr., 53; De Beguis v. Arm'istead, 10 Bing., 107; Gas-light Co. v. Turner, 
 7 Scott, 779; Wetheuil v. Jones, 3 B. & A., 221 ; Seidenbender v. Charles, 4 Serg. 
 &Rawle, 159; Hall v. Mullin, 5 Har. & Johns., 193; Scott v. Duflfy, 14 Pa. St., 
 18; Boutwell v. Foster, 24 Yt., 485; Brian v. Williamson, 7 How. (Miss.), 14; 
 Buxton V. Hamblin, 32 Me , 448. Even where the parties consent, such a con- 
 tract cannot be decreed. Fowler v. Scully, 72 Pa. St., 456. It cannot be en- 
 forced, even if after the making of the contract the statute has been repealed. 
 In such case the court will carry out the intention of the parties, so far as it 
 can do so without a violation of law. Galliland v. Phillips, 1 S. C, 52; Bet- 
 tersworth v. Dean of St. Paul, Sel. Cas. in Ch., 66. 
 
 Contract in contravention of public policy.^ "The power to declare a contract 
 void for being in contravention of sound public policy, is a very delicate and 
 undefined power, and, like the power to declare a statute unconstitutional, it 
 should be exercised only in cases free from doubt." Richmond v. Dubuque 
 R. R. Co., 26 Iowa, 191. 
 
 Parties to the contract not equally guilty.'} The court will afford relief to the 
 more innocent party, where ecjuity requires it ; unless, however, the parties to 
 a contract sought to be specifically enforced are in pari delicto, as well asparti- 
 ceps crirninis. "Where both parties are in delicto, concurring in an illegal act, 
 it does not always follow that they stand in pari delicto, for there may be, and 
 often are, very different degrees in their guilt. One party may act under cir- 
 cumstances of oppression, imposition, hardship, undue influence or great ine- 
 quality of age or condition, so that his guilt may be far less in degree than that 
 of his associate in the offense. And besides there may be, on the part of the 
 court itself, a necessity of supporting the public interest, or public policy, in
 
 ILLEGALITY OF THE COXTUACT. •?-23 
 
 §457. In the case of foreign contracts, they luu-i, in 
 order to be enforced here, be legal according to the law of 
 this country ; and this notwithstanding that such foreign 
 contracts may have been made with a view to performance 
 al)road and to foreign laws. It is not enough that they are 
 valid according to the law of the country where they were 
 made. For "when the courts of one country aiv called 
 upon to enforce contracts entered into in another country, 
 the question to be considered is not merely whether the con- 
 tract sought to be enforced is valid according to the laws of 
 the country in which it was entered into, but whether it is 
 consistent with the laws and policy of the county in which 
 it is sought to be enforced. "(cZ) 
 
 § 458. What constitutes illegality in all the various spe- 
 cies 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, (e) and in part even by the rules which the courts 
 have adopted for the general protection of all suitors. (/)* 
 
 (d) Hope V. Hope, 8 De G. M. & G., 731, Brownlow, 4 H. L. C, 1, and the cases there 
 743; per Lord Ellenborough, C. J., in Potter collected. 
 
 V. Brown, 6 East, 131. (/) Cooth v. Jacksou, 6 Ves., 12. 
 
 (e) As to this class, see Egerton v. Lord 
 
 ming V. State, 23 lud., 416; Scottou v. State, 51 id., 52; Saudfoss v. Jones. 
 Cal., 481; Reynell v. Sprye. 21 L. J. Chan., G31. 651; Tracy v. Talina-:e, 14 
 Y. 162; Freelove v. Cole, 41 Barb., 318; Ford v. Harriugton, 16 N. \ ., 285; 
 
 Demm<: 
 35 
 
 N. ^. ...-, ^.^. , , - -, 
 
 Lowell V. Boston and Lowell R. R. Co., 23 Pick., 24; Mount v. Waite, 7 John., 
 434; Atlas Bank v. Nahaut Bank, 3 Met., 581. 
 
 Consideration unlatcfuh'] The illegality may refer to either tlie consideraticm 
 or to any of the stipulations of an agreement. A contract will not be specitl- 
 cally enforced, which grew immediately out of, or is connected with, an act or 
 other contract which is immoral or illegal. Paton v. Stewart, 78 111.. 491 ; 
 Whittaker V. Bond, 63 N. C, 290; Armstrong v. Talor, 11 Wheat.. 2o8; \\i\- 
 son V. Spencer, 1 Rand., 76; Bowman v. Cunningham, 78 111., 48; Uoilson v. 
 Swan, 2 W. Va., 511 
 
 1 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 analo- 
 gous with cases of constructive fraud; which, "although not onginaling in 
 any actual evil design or contrivance to perpetuate a frauil or injury upon other 
 persons, are yet, by their tendency to deceive or mislead other persons, or to 
 violate private or public coutidenee, or to impair or injure the puldic interests 
 
 (note). 
 
 Cases of illegality of contract. ] Foremost in contracts of this nature are ngrce- 
 ments respecting marriage, known as marriage brokage contracts by which a 
 party agrees, for a certain compensation, to negotiate a marriage for the other.
 
 224 fi:y on specific pekformat^^ce of coxtracts. 
 
 It will be needful here only to enter into tlie subject so far 
 as it i^ecnliiirly affects actions for specific performance. 
 i< l.*>». The' nature of a defense founded on the illegality 
 
 Courts of equity relieve against them, on grounds of public policy. Drury v. 
 Hook 1 Vern..41'2; Key v. Bradshaw. 2 id., 102; Duke of Hamilton v. Mohun, 
 2 id. 'g.")2; Ke'af v. Allen, id., 588; Toclie v. Atkins, 1 id., 451; Gale v. Lin- 
 coln id., 475; Kemp v. Coleman, 1 Selk., 156; Baker v. White, 2 Vern., 215; 
 ijoyiiton V. Hubbard, 7 Mass., 112. They are deemed incapable of confirma- 
 tion and money paid under them may be recovered. Cole v. Gibson, 1 Ves., 
 503; Smith v. "Bruning, 2 Yern., 392. See, also, the case of Williamson v. 
 Gih'on, 2 Sch. ct 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, 6 Hill, 445; Hailley v. Rice, 10 East, 22; Lowe v. 
 Peers, Burrows, 2225; Baker v. White, 2 Vern., 215; see, also, Woodhouse v. 
 Shipley, 2 Atk , 535; Key v. Bradshaw. 2 Vern., 103. 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 marriage, 
 provided that the postponement be not unreasonable. Scott v. Tyler, 2 Dick., 
 719; Stackpole v. Beaumont, 3 Ves., 96. 
 
 A condition that a xmloio shall not marry, it is said, is not unlawful. Story's 
 Eq. Jur., § 285. 
 
 Contracts in restraint of trade are also void.] Mitchell v. Reynolds, 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., 604. 
 
 A(jreements whereby parties agree not to bid against each other at public auction 
 sales are void. Jones v. Caswell, 3 John. Cas., 29; Doolin v. Ward, 6 John. 
 R., 194; Wilbur v. Howe, 8 id., 444; see Piatt v. OUver, 2 McLean, 267. 
 
 Where contracts are eiitered into between parties pending a bill in parliament 
 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. 
 
 An agreement made for a remuneration to commissioners, appointed to take tes- 
 timony, 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 the fees and profits of the office of keeping a house of correc- 
 tion, and of the profits of the tap-house connected with it, is void. Wethwold 
 v. Halbank, 2 Ves., 238. 
 
 An assignment oftlie half pay of a retired officer of the army is void. Stone 
 v. Lidelledale, 2 Anst., 533; McGarty v. Goold, 1 Ball and Beat., 389. 
 
 Agreements founded iipon the suppression (?/c?'«rt«;«a? prosecutions, fall under 
 the same consideration. Johnson v. Ogiliby, 3 P. Will., 276, and note (1). 
 
 Wager 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; Story v. Salmon, 71 N. Y., 420. 
 
 So are contracts which tend to encourage champerty. 1 Powler v. Knowler, 3 
 Atk., 224. 
 
 Contracts for the buying, selling or procuring t>/ public offices are void. Ches- 
 terfield v. Janseen, 2 Ves., 124; Hartwell v. Hartwell, 4 id., 811; Boynton v. 
 Hubbard, 7 Mass. R., 119; see Becker v. Ten Eyck, 6 Paige, 68. The question 
 as to what is a wager contract of wheat, etc., depends upon the question as to 
 whether the intention was to deliver or not. Bigelow v. Benedict, 9 Hun, 429.
 
 illeCtALity of the conti:act. 225 
 
 of a contract differs in its nature from most other defenses : 
 the objection is rather that of the public speaking through 
 the court, than of the defendant as a party to the ac- 
 
 Agreetiients founded on corrupt considerations, or moral turpitude, are void. 
 Hence, all agreements, bonds and securities, given as a price for future illicit 
 intercourse (prcrmium pudoris) or the commission of a public crime, as for tlie 
 violation of a public law, or for the omission of a public duty, are deemed in- 
 capable of confirmation or enforcement. Story's Eq. Jur., g 2!»G, and note of 
 cases. 
 
 Contracts affectimj public elections are void : so are assignments of rights of 
 property, pendente lite, when they amount to or partake of the charctor of main- 
 tenance 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 aises of nsury. where iJte tender coming into a court of ecjuity, 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 giving 
 lip 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 Hand., 214; Woodson v. Barrett, 2 Hen. <k M., 80; 
 Dade v. JMadison, 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- 
 cided that where money has been lost by gaming, but ?iot paid, equity will inter- 
 fere to prevent its collection, as between the original parties to the contract. 
 In Alabama, it is held that an action will not lie to recover money lost on u 
 wager. Tyndall v. Childress, 2 Stew. & Port., 250. ]Jut 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. Callilian, 5 Ala., 708. In Gill v. Webb, 2 Monr.. 4. A. 
 lost money at the earning table to B., who, at the same silting, 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 transferred. Held, that a judgment at law 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 Lj^on v. Respass, 1 Litt., 133; in Smith v. David.son, G J. J. 
 Marsh., 539, and in Downs v. Quarles, 6 Litt., 489. These cases preciselv cor- 
 respond with the ruling of Lord 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 ruinino; one another. Bo.synanct v. Dashwood, Gas. Tern. Talb.. 40; 
 Rawdon v. Sha^dwell, Amb. R., 269. In McKiravey v. Pope, 3 B. Monr., 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 ^Vilhin live years of the 
 time of the loss. Money, knowingly lent for the purpose of gaminir. it has 
 been held in England, is not recoverable. :McKimmell v. Robinson, 3 Alei'S. &, 
 Welsh., 434. There are, also, many cases of this nature, winch, though of 
 themselves, are not illegal, yet become so by the relative positions of the parties 
 concerned. Thev 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 ileceil or im- 
 position of the other; and if any mark of direct fraud be discovered, or if it 
 appears that one party has. for iiis own advantage, sacnhoed those interests 
 which he is bound to protect, he will not be permiited to hold any such advan- 
 tage. Story's Eq. Jur., ?5j5 307. 323; Grilliths v. Robins. 3 ^ladd.. 191. Thus, 
 contracts between parent and child, solicitor atfd client, guardian and waixl. 
 trustee and cestui que trust, and principal and surety, are watched with the 
 closest scrutiny, and that held to be fraudulent in contracts between them, 
 
 15
 
 226 FRY ON SPECIFIC PERF0R5IANCE OF CONTRACTS. 
 
 tion. The law discallows all proceedings in respeet of illegal 
 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 some 
 
 which iiiuler other circumstances, would be considered as unquestionable. 
 Story's Eu Tur § ^07 to § 827. There is another class of cases in which relief 
 iso-ranted on the ground of constructive fraud, or illegality, even where no 
 positive fraud infects the contract; and this is where the parties stand, m 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 indul- 
 o-cnce See Story's Ex. Jur.. § 323; opinion of Lord Stowell, in the Juliana, 
 5 Ha"-"- Adm. Kep., 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, rever- 
 sioners and expectants, during the life of their parents or other ancestors; 1 
 Foubl. Eq. B. 1 ; ch. 2, § 12, and . note (k) ; Davis v. Duke of Marlborough. 
 "Thei-e is always a fraud presumed," says Lord Hardwicke, in Chesterfield v. 
 .Janssen, "or inferred from the circumstances or conditions of the parties con- 
 tractin"-' 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 cir- 
 cumvention, but merely from the intrinsic unconsciouableness 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 ex- 
 pectant 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 ancestor, 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 before- 
 hand " See, also, Tuistleton v. Griflith, 1 P. Will., 310; Cole v. Gibbons, id., 
 293- Bauo-h v. Price, 1 Hill's R., 320; Barnardiston v. Lingwood, 2 Atk., 23o; 
 Bowes V. Heaps, 3 Ves. & Bea., 117; Halmerly v. Booth, 2 Atk., 27; 1 Madd. 
 Ch. Pr., 97. "Hence it is that, in all cases of this sort, it is incumbent upon 
 the party dealinti: 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 requiring 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 hasbeen 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 therefor, at 
 the time of delivery." Story's Eq. Jur., § 336, and notes 1, 2, 3, 4. Contracts 
 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 creditors, which 
 has ))een universally adopted in America, declares all fraudulent conveyances 
 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. 
 
 1 Public iwlicy ; examples of contracts void as against.'] The procuring 
 of legislation by improper means; personal influence with the member 
 is such. Marshall v. Baltimore and Ohio Railroad Co., 16 How., 314; 
 Chippinger v. Hopbaugh, 5 Watts & Serg., 315; Rose v. Truax, 21 Barb., 
 361; Usher v. McBratney, 3 Dil., 385. An agreement which promised
 
 ILLEGALITY OF THE COXTEACT. 227 
 
 illegal act to be performed by A., to which both are alike 
 privy, and A. do his part in the business, B. has, it seems, 
 no moral right to refuse performance of his part, provided 
 there be iiothing immoral in that ]3art abstracted from the 
 general end of the contract ; as, for instance, if, nnder a 
 contract to ship goods contrary to law, A. ship the goods, 
 B. has no ground in natural equity for refusing to pay the 
 stipulated price : A. and B. were equal in the culpability of 
 the contract, but B. does a fresh wrong by refusing pay- 
 ment :{(/) but it is a wrong for which no remedy is afforded 
 by the law, for ex dolo inalo non oritur actio. "It is not 
 for his (the defendant's) sake," said Lord Mansfield, C. J., 
 "that the objection is ever allowed; but it is founded in 
 general i^rinciples of iDolicy, which the defendant has the 
 
 {g) There is a diflerence of opinion amonprst be enforced. See Grot, de Jur. Bell, ac Pac. 
 
 the jurists as to the binding nature of the lib. ii, c. xi, s. 9; Pothler, Tr. desOblij,'.,I'art 
 
 promise, In the case above stated, in foro I, chap. 1, sect. 1, art. 3, § 6. 
 conscientice; though all agree that it cannot 
 
 to pay another for procuring a government contract for furnishing sup- 
 plies. Tool Co. V. Norris, 2' Wall., 45. That a pubUc officer should resign in 
 order that another should have his office. Parsons v. Thompson, 1 II. Bl., 323: 
 Eddy V. Capron, 4 R. I., 395. That one officer should exchange his office -with 
 another. Stroud v. Smith, 4 House (Del.), 448. A contract tliat aid should be 
 civen to obtain the appointment to office of a third party. Gray v. Hook, 4 
 N. Y., 449. That a bid will not be made for the labor of convicts. Gibbs v. 
 Smith, 115 Mass., 592. Thca s^natures shall be procured to a pardon, and 
 tlic same obtained from the Ps\ecutive. Hatzfield v. Golden, 7 Watts. 152. A 
 railroad company's conlracl that they will not maintain a depot at or near a 
 given place. St. Joseph R. R. Co. v. Rvan, 11 Kan., 602. To pay the agents 
 of a railroad company a given sum, provided they locate the road m a given 
 place. Fuller v, Danle, 18 Pick., 472; Pacific R. R. Co. v. Scely. 45 Mo., 212. 
 A combination for street improvement, agreeing to pay some who will conae 
 into the scheme. Maguire v. Smock, 42 Ind., 1 ; Howard v. First Ind. Churcli, 
 18 Med., 451, A contract that a right be waived, which is in contravention of 
 State poliov. Branch v. Tomlinson, 77 N. C, 388. Contracts m restr.aint of 
 marriage. ^ Lowe v. Peers, 4 Burr, 2225; Baker v. White 2 \ em 21o; \\ ood- 
 housc V. Shepley, 2 Atk , 535; Cook v. Richards, un es., 429; Phillips v. 
 >,l.dburv, 7 ConI 567; Conrad v. Willlan^s, 6 Hill, 444; Enghtnd ^^ Downes 
 
 1 Beav.: 96; Rarltey v. Rice, 10 East, 22j Sterling v. ^^i^ii't' ^ o"- ^.f ''"l^' •^^.• 
 Eldred V. Malroy, 2 Col. (Ter.), 320; loung, ex parte C B.^ 53. A mai- 
 ria"-e brokerage contract. Roberts v. Roberts, 3 P. ^V ms. , , 4 ; Drurj \ ^ Uooke. 
 iVern 412; Smith v. Aykwell, 3 Atk., 566; Boynton v. HnJ.bard, . Miu... 
 nl A contract for the ^hase of land ^on^f.^^^^^^^^'f^ 
 fvmd of the laws of the same. Brake v. Ballon, 19 Kan., 3J- , Mniin v. joun 
 ion 37 Ala!, l£ ' The contracts of a public enemy; no o-;?- -f"-^; -- 
 for his benefit. Brandon v. Nesbitt 6 Term. Rep., ^'^ • fj !.7,\"^;;,^;,J"te "u- 
 
 2 V. & B., 323; Musson v. Tales 16 Mass.. 334. ,f^,.^^'^"^'^'^.\.J ""^iVpicr 
 fnropd which is in restraint of trade or business. Alger \ . UKitcntr, t J i icw., 
 
 ^1^ bS'v Cofeman. 4 S, isi; Craig v. State of Missouri, id., 4S6.
 
 228 FRY ON SPECIFIC PERFOEMANCE OF CONTRACTS. 
 
 advantage of, contrary to the real justice between him and 
 the plaintiff— by accident, if I may so say."(70 Where the 
 defendant has received the benefit of the contract, this de- 
 fense is evidently an unrighteous one, and will accordingly 
 be received by the court with some degree of disfavor. (/) 
 
 J5 460. The principle on which this defense reposes is 
 shown by the cases on the specific performance of awards ; 
 for the illegality of the act directed to be done by the award 
 will be a ground for refusing specific performance, although 
 the unreasonableness 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 sx)ecific 
 performance, a fact not put in issue by either party has 
 come out on the evidence affecting the legality of the con- 
 tract, it has been noticed by the court, which has not pro- 
 ceeded without directing an inquiry. (^) 
 
 § 461. As to the clearness of the illegality which will be 
 a bar to specific performance, there is perhaps some slight 
 diversity of expression. In Johnson v. Shrewsbury and 
 Birmingham Railway Co.,(Z) Knight Bruce, L. J., laid it 
 down that, before the court would enforce the specific per- 
 formance of a contract, it must be satisfied that there is not 
 a reasonable ground for contending that the contract is 
 illegal or against the policy of the law: and in another 
 case,(m) Turner, L. J., refused to enforce a contract for sale 
 which he held to have been entered into for the purpose of 
 acquiring the right to set aside a transaction for fraud com- 
 mitted on the vendor to the plaintiff : he declined to deter- 
 mine whether the contract was tainted Avith champerty or 
 maintenance ; but held that the right to complain of fraud 
 was not a marketable commodity. But in a case on a con- 
 tract by a solicitor retiring from a firm, to allow his name to 
 be used after his retirement, Lord Hatherley (then Wood, 
 V. C.) observed, "the agreement must be legal or illegal, 
 and it is not within the discretion of the court to refuse 
 specific performance, because an agreement savors of ille- 
 gality. It must be shown to be illegal. "(''O 
 
 (h) In Holman v. Johnson, Cowp., 343. (k) Parken v. Whitby, T. & R., 366; Evans 
 
 (I) Shrewsbury and Birmingham Railway v. Richardson, 3 Mer., 469. 
 
 Co. V. London and Xorth-Western Railway (Z) 3 De G. M & G., 914. See, also, City of 
 
 Co., IG Beav., 44. See, also, supra, § 318, and London v. Nash, 3 Atk., 512; S. C, 1 Ves. 
 
 cf. Williams v. The St. George's Uarbor Co., Sen., 12. 
 
 2 De G. & J., 547. .5.58. (m) De Hoghton v. Money, L. R. 2 Ch.,ie4. 
 
 0) Wood V. Griffith, 1 Sw., 43. (n) Aubin v. Holt " K & J., 70.
 
 ILLEGALITY OF THE CO^sTTRACT. 229 
 
 § 462. Where a trust is constituted, designed to give 
 effect to 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 en- 
 forced, and by means of it the contract incidently per- 
 formed. This principle was acted on in the case of Powell 
 V. Knowler,(o) before Fortescue, M. R., wdiere A. and B. 
 entered into a contract for the division of an estate to be 
 recovered, which was incapable of being enforced on the 
 ground of champerty, and the party who, according to the 
 contract, w^as to convey part of the estate to the other, by a 
 codicil directed the contract to be carried into execution, 
 and created a trust for that purpose ; the trust was specifi- 
 cally enforced against the trustee. 
 
 § 463. The principle of this case is in analogy with that 
 of several other cases. Thus where an act, though the 
 result of an unlawful contract, is itself lawful, it may foim 
 the consideration for a lawful contract, as, for instance, 
 the actual transfer of stock, the contract for which was 
 illegal, (i^*) Similarly a trustee into whose hands money is 
 paid on account of a third person cannot set up the ille- 
 gality of the trust under which the money was so paid, 
 though the cestui que trust could not have enforced his 
 right against the payer directly, as in that case he could 
 only have got at the money through the illegal contract. (</) 
 
 § 464. The position of the court wdth regard to illegal 
 contracts was thus stated by Jessel, M. R., in a recent 
 case.(r) ''I think," said his lordship, "the principle is 
 clear that you cannot directly enforce an illegal contract, 
 and you cannot ask the court to assist you in carrying it 
 out. You cannot enforce ic indirectly ; that is, by claiming 
 damages or compensation for the breach of it, or contribu- 
 tion from the persons making the profits realized from it. 
 It does not follow tliat you cannot, in some cases, recover 
 money paid over to tliird persons in pursuance of the con- 
 tract ; and it does not follow that you cannot, in other 
 cases, obtain, even from the parties to the contract, mom^ys 
 which they have become possessed of by represt^itations 
 
 (o) " Atk ""4 ('/) Thomson v. Thomson, 7 Vcs., 470 ; Ten" 
 
 (p) k'Caiiau ;. Mortimer. M. & W.. CSC. "'^VrJ^-kl^s"'. B^a*on. llCh. D.. 170.
 
 230 FllY ox SPECIFIC PERFOKMANCE OF CONTRACTS. 
 
 that the contract was legal, and which belonged to the per- 
 sons who seek to recover them. "(5) 
 
 § 465. Trade unions being, apart from the trade union 
 act, 1871, illegal associations, the court will not, at the 
 instance of a member of such an union, enforce a contract 
 contained in its rules for providing benefits for its mem- 
 bers. (^)' 
 
 (s; 11 Ch. D.,197. (t) Bigby v. Connol.U Ch. D.,482; cf. Duke v. Ltttleboy, 28 W. R, 977. 
 
 1 Where the consideration is immoral.'] Such contracts are never enforced at 
 law or in equity. An agreement for the commission of crime, or in violation 
 of a statute law. or the writinsi, printing or sale of an immoral or libelous book 
 or picture. Trovinger v. McBurney, s'Cow., 253; Fores v. Johns., 4 Esp., 97; 
 Poplet v. Stockdale, R. & M., 337. 
 
 Contract forbidden hy statute law.'\ It is hardly necessary to say that such 
 agi-eements are always void. Tucker v. West, 29 Ark., 388. 
 
 Prohibitory icords in statute.] The rule is now well-settled, that although 
 there are no prohibitory words in statute, that a penalty imparts a prohibition. 
 Bartlett v. Vinor, Carth., 252; Little v. Poole, 9 B. & C. 192; Caunan v. Bryce, 
 3 B. & Aid., 179; De Begnis v. Armistead, 10 Bing., 107; Foster v. Taylor, 5 
 B. & Aid. 896; Ferguson v. Norman, 6 Scott, 794; Mitchell v. Smith, 4 Dall., 
 209- Pray' v. Burbank, 10 N. II., 377; Sharp v. Lease, 4 Halst., 352; Seiden- 
 hender v. Charles, 4 Serg. & Rawle, 159; Harris v. Runnels, 12 How., 80; 
 Coombs V. Emery, 14 Me., 404; Terrett v. Bartlett, 21 Vt., 184; White v. Bass, 
 3Cush., 449. 
 
 Ustiri/ affecting the contract.] Such contracts cannot be enforced specifically. 
 Belcher v. Vardon, 2 Col., 173. A plaintiff seeking the aid of a court of equity 
 from a contract usurious in its nature, must expect relief only upon the terms 
 of paying what is, in fact, due to the defendant. Where he does not offer to 
 do so, the pleadings may be demurred to. Story's Eq. Jur., g 301 ; Burfield v. 
 Solomons, 9 Ves., 84; Rogers v. Rathbun, 1 John.'s Ch , 3G7; Ballenger v. Ed- 
 wards, 4 Ired. Eq., 449; Beard v. Bingham, 76 N. C, 285. 
 
 War/ering co7itracts.] A wager is "a contract in which the parties stipulate 
 that they shall gain or lose upon the happening of an uncertain event in which 
 they have no interest, except that arising from the possi])ility of such gam or 
 loss." Fareira v. Gobell, 89 Pa. St., 90. Such contracts were laAvful at com- 
 mon law. Chitty on Con., Glo. An action will be sustained, brought to com- 
 pel a gambling security to be given up to be canceled. Rawdeu v. Shadwell, 
 Ambler, 269; "Basket v. Wotman, 1 Nott. A; McCord, 180; Wood v. Wood, 2 
 Murphy, 172; Forrest v. Hunt, id., 458; Martin v. Terrell, 12 Sm. & Marsh, 
 571; contra, Cowles v. Raquet, 14 Ohio, 55. The entire contract is void, 
 where a part of the consideration of the same was lost and won at gambling. 
 Reed v. Reeve, 13 Bush. (Ky.), 447. 
 
 Frustratinrj the administration of justice.] No contract which has this for its 
 object, can ever be enforced; that evidence shall be withheld and the like. 
 Kimbromrh v. Lane, 11 Bush. (Ky.), 550. A contract was made with a partv 
 to pay him, he being a witness in a cause on trial, provided his evidence should 
 lead to a favorable result for the party calling him. Held, that such contract 
 was void. Pollock v. Gregory, 9 Bosw., IIG; Nickleson v. Wilson, 6 N. 1., 
 362; reversing S. C, 1 Hun., 615, is an instructive case on this point. 
 
 Compounding a felony ] Where a contract is sought to be avoided on the 
 ground that the consideration was the compounding a felony, it must be shown 
 that the compounding the felony was the consideration for the contract m 
 question. The consideration of an instrument was 6o/ia^/?ffe, and the debtor 
 was under an obligation to pay or secure the same. Held, that a threat of a 
 criminal prosecution, unless a mortgage is given, does not compound the offense- 
 Plant V. Gunn, 2 Woods., 372.
 
 ILLEGALITY OF THE CONTKACT. 231 
 
 Contract for goods pin-ehased for an illefjal purpose.] "Where an action is 
 brouirht to recover the price of goods sold, the vendor knowing that they were 
 purchased for an illegal purpose — Held, that it was no defense, provided it was 
 not made a part of the contract that they should be used for that purpose : and 
 also provided, that nothing has been done by the vendor in furtherance of the 
 unlawful design. Holman v. Johnson, Cowp., 341: Faikney v. Reynous, 4 
 Burr, 2069; Hodgson v. Temple, 5 Taunt., 181; Merchants' Bank v. Sjpalding, 
 13 Barb., 303; Armstrong v. Toller, 11 Wheat., 258; Tracy v. Talmage, 14 
 N. Y., 163; McKinny v. Andrews, 41 Texas. 863; contra, Langdon v. Hughes, 
 1 Maule & Seld., 593. Walworth, Ch., in De Groot v. Vanduzer, 20 Wend., 
 390, gives a very clear exposition of the law on this question: "There are, 
 undoubtedly many conflicting decisions upon the question, how far the vendor 
 of an article is chargeable with a participation in the illegal purpose for which 
 it is intended to be used, from a mere knowledge of the fact that the purchaser 
 intends so to use it. The case of the druggist who sold drugs to a brewer, 
 knowing that he intended to use them in brewing, contrary to the statute, is a 
 very strong case in favor of extending the principle to a collateral contract, 
 which had no necessary connection with the violation of the law. That case 
 shows, too, that where the agreement is made for the purpose of aiding the 
 violation of the law, it is not necessary to aver and prove that the offense was, 
 in fact, consumated by an actual violation subsequent to the agreement, which 
 agreement is void from the beginning. Langton v. Hughes, 1 Maule ifc Seld., 
 593. If a trader agrees to furnish a robber with arms and ammunition for the 
 purpose of carrying on his business of highwayman, it cannot be a valid answer 
 to the illegality of Ihe contract, that the'arms and anmiunition sold to him for 
 that purpose were not, in fact, used in the prosecution of the illegal object 
 originallv intended at the time of the purchase. The illegality of the contract 
 consists 'in the intention to aid in a violation of the law, or of a principle of 
 public policy, or to commit a breach of good morals, and not in the actual 
 consummation of the oflense. These cases in which an independent contract 
 has been held void from a mere knowledge of the fact of the illegal end in 
 view, proceed on the ffround that the party having such knowledge, intended 
 to aid the illegal object at the time he made the contract; and whenever, there- 
 fore, that intention "is .shown, no doubt can exist as to the propriety of applying 
 the rule that no action or claim can be sustained in a court of justice founded 
 upon such contract." 
 
 Contracts in cases ichere the parties siisiain fiduciary relations to each other.'] 
 Such contracts are those between attorney and client, guardian and ward, parent 
 and child, physician and patient, principal and agent, and trustee and cestui 
 que trust. Such agreements are rarely enforced, and are regarded with sus- 
 picion. Goddard v. Carlisle, 9 Price, 169; Fox v. McKrath, 2 Bro. C. C, 407; 
 Baker v. Bradlev, 35 Eng. Law 6c Eq., 419; Wolmesley v. Booth, 2 Atk., 25; 
 Edwards v. Mvrick, 2 Hare, 60; Billing v. Southee, 10 Eng. Law & Eq., 37; 
 
 Dent v. Bennett, 4 M. 6c C, 269; Dawson v. Massey, 1 B. & B., 226; Hylton v. 
 Hvlton, 3 Yes., 548; Hatch v. Hatch, 9 id., 293; Cecil v. Plaistour, 1 Aust., 202; 
 
 heesv. Presbyterian Church, 8 Barb., 136; Blackmore v. Shelly, 8 Humph., 
 439; Dobsou v. Racev, 3 Sandf., 61; Pratt v. Thornton, 28 3[e., 33o; \an 
 Epps V. Van Epps, 9 Paige's Ch., 207; Farnam v. Brooks, 9 Pick., 212; King 
 v. Baldwin, 2 John. Ch., 554; Bank of N. S. v. Etting, 11 AVhcat., 59; Kerr 
 on Fraud, 161, 162. 
 
 Equity of redemption.] Contracts between mortgagor and mortgagee, which 
 have for their object the extinguishment of the etiuity of redemption, are 
 viewed with great suspicion by the courts; yet a new contract matle betweea 
 them whereby the title becomes absolute, if it is fair, will not be disturbed. 
 Remsen v. Hoy, 3 Edw. Ch., 535; Wilson v. Carpenter, 62 Ind., 495.
 
 232 FRY ox SI'ECIKIC I'Er.FOKMANCE OF CONTKACTS. 
 
 CHAPTER X. 
 
 OF THE CONTKACT BEING ULTRA VIRES. 
 
 § 466. Corporations created for special purposes have a 
 power to contract, but within certain limits only, and all 
 contracts in excess of their powers, or ultra vires, are void, 
 and, therefore, necessarily incapable of being enforced in 
 any legal proceeding. This subject has of late years under- 
 gone great discussion in respect of contracts by railway and 
 other companies.' 
 
 § 467. A contract entered into by such a corporation in 
 the proper form is prima facie good, and the onus lies on 
 
 J In Barry v. TMercliants' Exchange Company, 1 Sandf. Cli., 280, it is de- 
 cided tliat every corporation has, as such, at common law, the capacity to take 
 and "-rant property, and to contract obligations in the same manner as an indi- 
 vidual; that, except when restrained by law, it has the absolute 7«s disponendi 
 of its property, whether of lands or chattels, and in its exercise is unlimited 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 necessary 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 ascer- 
 tained by a reference to the acts of the legislature concerning it ; and a corpora- 
 tion 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 Case, 2 Bland, 99. Therefore a cor- 
 poration constructing works beyond that which is necessary for the purposes of 
 their incorporation, and beyond what is contemplated liy their charter, will 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 Newark Plank-road Co. v. Elmer, 
 and Binney's case. A very forcible instance of the rigidity of the doctrine is 
 presented in the case of Russell v. Topping, 5 McLean, 194. In this case, A. 
 mortgaged several tracts of laud to the plaintiff in ejectment, and afterwards 
 mortgaged one of the tracts to an incorporated bank. The plaintifl" foreclosed 
 his mortgage in chanceiy, making the bank a party defendant. The bank 
 answered that A. had mortgaged to them, subsequently to the plaintiff's mort- 
 gage, several parcels of land, but not the lot in dispute ; that he was largely 
 indebted to them, and was then insolvent, and prayed that the lands not in- 
 cluded in tlieir mortgage should first be sold to pay plaintiff'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 ]nirchased the lot in question and took a conveyance. The 
 defendant claimed throiurh the bank. The plaintiff received the purchase 
 money paid by the bank, and A. being otherwise indebted to him, the plaintiff 
 brought suit against him, recovered judgment, levied execution on the land in
 
 CO^s^TRACT BEING ULTKA YIKES. 233 
 
 the person alleging it to be void to show that it is in excess 
 of the corporation's powers, and not on the person relying 
 on it to show that the corporation was authorized to enter 
 
 controversy, and became the purchaser. By its charter the bank was prohibited 
 from purchasing, holding and conveying real estate, except such as was re- 
 quired for the transactio^n 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 ac<iuire any title to 
 the lot in question at the sale; and that the plaintiff was entitled to contest the 
 validity of the sale to the bank, notwithstanding 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 organized, as expressed in their articles 
 of association, " to do a general insurance agency, commission and brokerage 
 business, and such other "things as are incidental to, and necessary in, the man- 
 agement of that business," was held to have no power to subscribe to the stock 
 of a savings bank and building association. 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 insurance subsequently to 
 be effected. Berry v. Yates, 24 Barb., 199. Kor is a plank road company 
 authorized to loan money, unless there is a special clause in the charter to that 
 effect. Madison, etc., Plankroad Co. v. Watcrtown, etc., Plankroad Co., 5 
 Wis., 173. .It must not be understood, however, that corporations have no 
 other powers than those strictly conferred by charter. As has already been 
 said, an act of incorporation carries with it all the powers necessary to accom- 
 plish the act, unless it impairs vested rights. IMorris and Essex R. R. v. New- 
 ark, 2 Stockt (N. J.), 352; Strauss 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 specitically designed by the act of incorjiora- 
 tion. Madison, etc., Plankroad Co. v. Watertown, etc., Plankroad Co., 5 U is., 
 173. So, a corporation has, as incidental, a right to make an agreement with 
 an agent to compensate him for obtaining subscriptions to the slock. Cincin- 
 nati, Indianapolis and Chicago R. R. Co. v. Clarkson, 7 Ind., 595. Another 
 incidental power is that of the corporation to create debts. Barry v. :\Icrchants 
 Exchange Co., 1 Sandf. Ch., 280. But where the charter makes peculiar speci- 
 fications, as, for example, of modes of investing the corporate funds, all other 
 modes of investment are precluded. Scott v. De Pey.ster. 1 Edw. Ch., 513. 
 
 The rights of strangers dealing with corporations may vary, according as the 
 act is ^lUra vires in one or the other of these senses. When an act is ultra rires in 
 the first sense mentioned, it is generally, if not always, void in toto, and the cor- 
 poration may avail itself of the plea. But when it is ultra tires in the secontl 
 sense, the right of the corporation to avail itself of the plea will depend upon 
 the circumstances of the case. In the former case, the liefeuse ot ultra n;rjt is 
 available to the corporation as against all persons, because thi'y are bountl to 
 know from the law, of its existence, that it has no power to iierform the act. 
 But in the latter case, the defense may or may not be available, depending upon 
 the question whether the partv dealing with the corporation is aware _ol the 
 intention to perform the act for an unauthorized purpose, or under circum- 
 stances not justifying its performance. And the test as benyeen strangers 
 having no knowledge^of an unlawful purpose and the corporation, is to eoni- 
 pare the terms of the contract with the provisions of the law from wliicli tlie 
 corporation derives its powers; and if the court can .see that the act to be per- 
 formed is necessary bevond the powers of the corporation for any purpose, the 
 contract cannot be enforced, otherwise it can." Miners^ l)iteh Co. v. ^ellcu- 
 back 37 Cal , 543; Whitnev Arms Co. v. Barlow, G3 N. \.. 02; Pi-nu.sylvauia 
 Nav. Co. V. Dandridixe. 8 "Gill, ct John., 248: South Yorkshire Co. v. Great 
 Northern R. R. Co., 9"Exch., 55. 84: Mayor of Norwich v. Norwich and Nor- 
 folk R. R. Co., 4 Ell. & Bl., 397.
 
 234 FllY ON SPECIFIC PERFORMANCE OF CONTRACTS. 
 
 into it. Corporations have by law a power to enter into all 
 contracts not expressly or impliedly prohibited ;(a) and, 
 therefore, all corporate bodies are prima facie bound by 
 contracts under their corporate seals; "but this _pnma 
 facie riii:ht," said Lord Cran worth, " does not exist in any 
 case where the contract is one which, from the nature and 
 object of incorporation, the corporate body is expressly or 
 impliedly prohibited from making." (5) ' ' Where a corpora- 
 tion," said Lord Wensleydale,(c) "is created by an act of 
 parliament for particular purposes, with special powers, 
 their deed, though under their corporate seal, and that 
 regularly affixed, does not bind them, if it appears by the 
 express iDrovisions of the statute creating the corporation, 
 or by necessary or reasonable inference from its enactments, 
 that the deed is ultra mres ; that is, that the legislature 
 meant that such a deed should not be made." 
 
 § 468. This doctrine was very fully discussed in a case 
 to which it is proposed now briefly to advert. In the case 
 of The Shrewsbury and Birmingham Kail way Co. v. The 
 London and North- Western Eailway Co.,(«^) the contract 
 between the companies was briefly to the effect that the 
 :N'orth-Western Company should 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 tlieir line. In the course of the protracted liti- 
 gation which arose out of this contract, opposing opinions 
 were given by the highest authorities as to whether it was 
 ultra tyires or not. Lord Cottenham and the Queen's Bench 
 inclining to the opinion of its validity, and Turner, L. J., 
 and Lord Cranworth sitting in the House of Lords leaning 
 strongly to the opinion that it was in excess of the powers 
 of the companies. If such a contract was valid as to part of 
 the line^ why should it not be valid as to the whole ? and if 
 
 (o) Per Erie, J., in Mayor of Norwich v. 324; before Lord Truro, 3 id., 70; before Q. 
 
 Norfolk Railway Co., 4 El. & Bl., 397, 413. B., 17 Q. B.,652; before Lord Roiiiilly,M. R., 
 
 (6) In Directors, etc., of The Shrewsbury 16 Beav., 441; before the Court of Appeal In 
 
 and Birmingham Railway Co. v. Directors, Chancery, 4 De G. M. & G., 115; and In D. P , 
 
 etc., of The North- Western Railway Co., 6 H. 6 H. L. C, 113; and see Lancaster and Carl- 
 
 L C, 13.>-C. isle Railway Co. v. North-Western Railway 
 
 (c) In South Yorkshire Railway and River Co., 2 K. & J., 293; Hare v. London and 
 
 Dun Co. V. Great Northern Railway Co., 9 North-Western Railway Co., 2 J. & H., 80; 
 
 Exch., 84: accordingly Batenian v. Mayor, Midland Railway Co. v. Great Western Rall- 
 
 «tc., of Abhton under Lyne, 3 II. & N., 323. way Co., 21 W. R , 657. 
 
 {d) Before Lord Cottenham, 2 Mac. & G ,
 
 CONTRACT BEING ULTRA VIRES. 235 
 
 SO, there would be no impediment, it was urged, to two 
 companies bringing their funds into a common stock, and 
 dividing them amongst their shareholders in any stii^ulated 
 proportion. 
 
 § 469. It would be foreign to the objects of this treatise 
 to discuss the very numerous cases which ha\re arisen on 
 this doctrine of ultra tires ^ involving, as they almost always 
 do, a careful consideration of the statutes in force with re- 
 gard to the class of corporations in question, the charter or 
 act of parliament or memorandum of association of tlie 
 particular corporation and the contract in question in each 
 case.((e) 
 
 § 470. The question of ultra vires as applicable to cor- 
 porations must be carefully distinguished from the question 
 of ultra tires as applicable to the agents or officers of those 
 bodies. An act which is beyond the powers of the corpora- 
 tion can never be good and can never be made good by 
 ratification or acquiescence or in any way short of act of 
 parliament. (/) On the other hand, an act which is within 
 the powers of the body, but beyond the powers of the board 
 of directors or other managers, may, and often does, become 
 binding on the corporation by its ratification or acquies- 
 cence ; and so, again, acts which are beyond tlie powers of 
 the managers, except on the observance of certain condi- 
 tions, may, if within the powers of the body corporate, be 
 held good by a judicial inference from the conduct of the 
 corporation that the conditions have been observed. The 
 first class of acts are void from the nature of the corpora- 
 tion ; the second are objected to as having been beyond the 
 scox)e of the agenf s authority." 
 
 («) See Brlce's Doctrine of Ultra Vires. (/) See Ashbury Railway Carriage and Iron Co. 
 V. Rlche, L. K. 7 H. L., 653. 
 
 1 Distinction between corporatiom and individuals.'] The former can exercise 
 no powers which are not conferred by their charters, while the hitter may 
 make any contract which the law sanctions. Head v. Providence Ins. Co.. 2 
 Crauch, 127; Bank of N. S. v. Danbrid?e, 12 Wheat., G4: Ilannable and St. 
 Joseph R. K. Co. v. Marion, 36 Mo., 2'J4; Mathews v. Spinner, 02 id., 329; 
 National Bank v. Taylor, 56 Pa. St., 15. 
 
 Scope of corporations.] The charter of a corporation, with reference to its 
 powers and capacities, must, like anv other statute, be construed as an entirety. 
 White's Bank v. Toledo Ins. Co., 12 Ohio St., 601; Toledo v. North American 
 Coal Co., '6 Head (Tenn.), 837. The general purpose for which the corporation 
 was formed must be considered, and such reasonable construction be given to 
 the terms employed, as will tend to bring about such purpose. Vandall v. 
 South San Francisco Dock Co., 40 Cal., 83. A corporation possesses all such
 
 236 FltY ox SPECIFIC TEKFOKMANCE OF CONTRACTS. 
 
 § 47 1 . Hence it must not be assumed tliat the question 
 of nUra v/'rcs is in all respects the same when it arises be- 
 tween the members of a company and its directors, and 
 when it arises between the company and a third person. 
 
 powers as are necessarily incident to those specifically granted, or are essential 
 to the purposes and objects for which the corporation was organized. It is not 
 limited to the powers specifically granied. Bank of Augusta v. Earl, 13 Pet., 
 519; Whitman Minim,' Co. v. Baker, 3 Nev., 386; Coleman v. Eastern Counties 
 R. U. Co., 10 Beav.,l7; Ketchum v. City of Buffalo, 14 N. Y., 356; Le Cou- 
 teulx V. City of Buffalo, 33 id., 333; Shammut Bank v. Plattsburgh R. R. Co., 
 81 Vt., 491. 
 
 Municipal corporntiorif:.] Such corporations are held more strictly to their 
 charters than others. Parties dealing with them are bound to know their 
 powers at their peril. City of Leavenworth v. Rankin, 2 Kan., 357; Thomas 
 V. City of Richmond, 13 'SVall., 349. 
 
 Different securiiy from that prescribed.^ The charter of a corporation pre- 
 scribed what species of security should be taken of its officers. Held, that if 
 a different sort was taken, it could be enforced against the party who gave it. 
 Bank of South Carolina v. Hammond, 1 Rich., 281 ; Mott v. United States 
 Trust Co., 19 Barb., 568; United States Trust Co. v. Brady, 20 id., 119; Little- 
 wort v. Davis, 50 Miss., 403; see, however, Spendon v. Mayor, etc., of New 
 York, 7 Bosw., 601 ; S. C, 21 How. Pr., 395. 
 
 Corporation may waive its rights.] In a case where the provisions of a cor- 
 poration's charter were designed to protect it, it was held that such provisions 
 might be waived, and that such waiver might be shown by a repetition of acts 
 of a like or similar character. Hood v. N.^Y. and N. H. R. R. Co., 22 Conn., 
 503. 
 
 Legality of corporate act presumed.] "The dealings of a corporation which 
 on their face, or according to their apparent import, are within its charter, are 
 not to be regarded as illegal or unauthorized, without some evidence tending 
 to show that they are of such a character. In the absence of proof, there is 
 no legal presumption that the law has been violated. On the contrary, these 
 artificial bodies, like natural persons, are entitled to the benefit of the rule 
 which imputes innocence, rather than wrong, to the conduct of men. A differ- 
 ent doctrine would require a corporation, even in many of its ordinary transac- 
 tions, to show that it had not transcended the limits of its charter." Chautauqua 
 County Bank v. Risley, 19 N. Y., 369; Farmers' Loan and Trust Co. v. Clowes, 
 3 id., 470; De Graff v. American, etc., Co., 21 id., 124; Yates v. De Bogert, 
 56 id., 526; Farmers' Loan and Trust Co. v. Perry, 3 Sandf. Ch., 339; Peru 
 Iron Co., ex parte, 7 Cow., 540; Safford v. Wyckoff, 4 Hill, 442; Morris and 
 Essex R. R. Co. v. Sussex R. R. Co., 20 N. J. Eq., 542; Charleston Turnpike 
 Co. V. Willey, 16 Ind., 34; Dana v. Bank of St. Paul, 4 Minn., 385; Mitchell v. 
 Rome R. R. Co., 17 Ga., 574; Oxford Iron Co. v. Spradley, 46 Ala., 98. 
 
 Definition of incidental pover.] "An incidental power is one which is directly 
 and immediately appropriate to the execution of the power granted, and not 
 one which has a slight or remote relation to it." Hood v. New York and New 
 Haven R. R. Co., 22 Conn., 1; People v. Utica Ins. Co., 15 John , 358; New 
 York Firemen's Ins. Co. v. Sturges, 3 Cow., 664; Same v. Ely, id., 678; 
 Broughton v. Manchester Water AVorks, 3 Barn. i.\;Ald., 9; People v. Trus- 
 tees of Geneva College, 5 Wend., 317; Trustees v. Pcasley, 15 N. H., 317; 
 Downing v. Mt. Washington R. R. Co., 40 id., 2X0; Fuller v. Trustees of Plain- 
 field School, 6 Conn., 532; Commonwealth v. Erie R. R. Co., 27 Pa. St., 339; 
 Dartmouth Colletre v. Woodward, 4 Wheat., 518; Pacific R. R. Co. v. Sealy, 
 45 Mo., 212; Town of Petersburgh v. Metzker, 21 111., 2U5; see, however. Hart 
 V. Rensselaer and Saratoga R. R. Co., 8 N. Y., 37; Quimby v. Yauderbilt, 17 
 id., 306; Bissell v. Michigan Southern R. R. Co., 22 id., 258; Buffet v. Troy 
 and Boston R. R. Co., 40 id., 168. Unless the powers claimed to be implied 
 are immediately and directly appropriated to the execution of the specific 
 powers, and the same are a careful and necessary means to give them effect.
 
 CONTRACT BEING ULTRA VIKKS. 237 
 
 § 473. Some contracts are of such a nature that every 
 one must know them to be beyond tlie powers of the cor- 
 poration with wliich he is dealing, as e. r/., a contract by a 
 railway company to buj' a thousand gross of green specta- 
 
 such implied powers will not be held to be within the scope of the cliarter. 
 Curtiss V. Leavitt, 13 N. Y., 157, 158. 
 
 Unauthorized act by corporation. '\ Such an act is void, and cannot be en- 
 forced eitlier at law or equity. Mutual Life and Fire Ins. Co. v. McKelway, 1 
 Beasley's Ch., 183; Pennsylvania Co. v. Danbridge, 8 Gill. & John., 248; Pearce 
 V. Madison R. R. Co., 21 How., 441; Haynes v. Corringtou, 13 Sm. A: Marsh., 
 411 ; Little V. O'Brien, 9 Mass., 423; Commercial Bank v. Nolan, 7 How. (.Mi.ss.), 
 508; Littlewort v. Davis, 50 Miss., 403; Matter of Brooklvn R. R. Co., 72 N.Y., 
 245; Bank of Michigan v. Niles, 1 Doug., 401; all'g S.'C, I Walker (Mich.), 
 99; Brown v. Winnismap Co., 11 Allen, 326. 
 
 Corporate acts impliedly proMbited.'\ Any intentional use by a corporation of 
 any of its powers, with the intention of defeating the objects for which it was 
 created, will be prohibited \>y implication. East Anglican R. R. Co. v. East- 
 ern Counties R. R. Co., 11 C. B., 775; S. C, 7 Rail. Cas , 150: McGregor v. 
 Dover and Deal R. R. Co., 18 Q. B.. G18; S. C, 7 Rail. Cas., 227; Gage v. 
 Newmarket R. R. Co., 18 Q. B., 457; Eastern Counties R. R. Co. v. Hawkes, 
 5 House of Lds., 347; South Yorkshire R. R. Co. v. Great Northern R. R. 
 Co., 9 Ex., 55, G43; Patchin v. Doolittle, 3 Vt., 457; Common v. Inliabitants 
 of Cambridge, 7 Mass., 158; Parks v. Boston, 8 Pick., 218; Dudley v. Cilley, 
 5 N. BT., 55s ; Goodwin v. Milton, id., 458; Third Turnpike Co. v. Champnav, 
 2 id., 199; Knowle's Petition, 32 id., 361; Dudley v. Butler, 10 id., 281 ; Guern- 
 sey v. Edwards, 26 id, 224; Springfield v. Harris, 107 Mass., 532; Townsend 
 V. Hoyle, 20 Conn., 1. 
 
 Private party contracting with corporation.'] A contract may be ziltra fires 
 with respect to the officers or stockholders of a corporation, and not so in rela- 
 tion to a private party. Mount v. Shrewsbury R. R. Co., 13 Beav.. 1; Cohen 
 V. Wilkinson, 5 Rail."Cas., 741; Beaman v. Raffard, 7 id., 48, 75; Simpson v. 
 Dennison, 10 Hare, 51. To effect a private party, he must have known, at the 
 time of entering into the agreement, that it was intended for a purpose foreign 
 to the incorporation of the company. Osipee Mauuf'g Co. v. Canuey, 54 
 N. H., 295. 
 
 Act entirely complete on jylaintiff'a part] It is a well-settled rule that the de- 
 fense of ultra vires cannot be pleaded by a corporation, in a case where the con- 
 tract has been fully postponed, and the corporation has had the advantage of 
 the performance. Parish v. Wheeler, 22 N. Y., 494; Silver Lake Bank v. 
 North, 4 Johns. Ch., 370; Palmer v. Lawrence, 3 Saudf.. 161; State of lud. 
 V. Woram, 6 Hill, 37; Chester Glass Co. v. Dewev, 10 Mass., 94; Steamboat 
 Co. V. McCutchen, 13 Pa. St.. 13; Steam Nav. Co. v. Weed, 17 Barb.. 378; 
 Whitney Arms Co. v. Barlow, 63 N. Y., 62; Chippendale, ex parte. 4 De G. 
 M. & G., 19; In re National Soc, L. R.. 5 Cli., 309; In re Corle. etc, R. C, 4 
 id., 748; Fishmongers Co. v. Robertson. 5 Mc. & G., 131; Allegheny City v. 
 McChu-kson, 14 Pa. St., 81; Bradley v. Ballard, 55 III. 413; Rock River Bank 
 V. Sherwood, 10 Wis., 230; Farmers' Bank v. Detroit R. R. Co., 27 Wis.. 372. 
 
 Repayment can he compelled.'] Where a contract made with a corponition is 
 void, and for that reason the party cannot maintain an action \ipon it. he may 
 recover what has been paid, when" the parties arc not in pari delicto. Robinson 
 V. Bland, 3 Burr., 1077; Howsou v. Hancock, 8 Term. R., 577; Utica Ins. Co. 
 V. Scott, 19 .Tohn., 1; Same v. Cadwell, 3 Wend., 296; Same v. Bloodgood. 4 
 id., 652; Little v. O'Brien. 9 .Mass.. 423; Episcopal Soc. v. Episcopal Church, 
 1 Pick., 372; White v. Franklin Bank, 22 id., 181: Rich v. Errol, 51 N. H., 
 361; Whitney v. Peay, 24 Ark., 22. Where money has been paid in advance 
 to a corporation, upon a contract Avhich is vltra jv/rs— Held, that the party so 
 paying might recover the same, and that he need make no previous demand. 
 Dill V. W^ireham, 7 ]\Ietc., 438. 
 
 Surrender of possession before action brought.] "The cases in which posses- 
 sion must be surrendered before an action for the purchase money can be
 
 238 FRY ox SPECIFIC PERFORIMANCE OF CONTRACTS. 
 
 cles, or a contract by a company formed to make a railway 
 from A. to B. for the construction of a railway from C. to D. 
 Such contracts as these are equally void, whether the ques- 
 tion arise between tlie company and a stranger or between 
 members of the corporation. But the case is quite different 
 as regards many other contracts which may or may not be 
 really entered into for the purposes of the company. Direc- 
 tors nright buy iron rails not really for the purposes of the 
 line but for speculation. This contract would be void as 
 against the shareholders, but might be perfectly good in 
 favor of the vendor to the company. In short, the mere 
 fact that a contract by the directors is ultra mres, as be- 
 tween them and the shareholders, does not necessarily dis- 
 entitle the other party to the contract from suing upon it. 
 To do so, it is further necessary that the party suing should 
 have known at the time of the contract that it w^as intended 
 for a purpose unconnected with the incorporation of the 
 company. The nature of the contract will show this in 
 some cases : in others it will i\ot.{g) 
 
 § 473. From this principle it follows that, where a public 
 company is authorized to take land for extraordinary pur- 
 poses, a person who agrees to sell his land to this company 
 is not bound to see that it is strictly required for such pur- 
 poses ; but if he acts bona fide and without knowledge that, 
 the land is not so required, or that the transaction is any 
 misapplication of the funds of the company, the contract 
 is binding in his favor, and may be enforced by him in 
 equity \{h) and the same holds goods where the company, 
 really requiring part of an estate, purchase more than is 
 required, (z)' 
 
 ig) Per Lord Campbell, C. J., ami Erie, J., Green v. Nixon, 23 Beav., 530; Royal British 
 
 in Mayor of Norwich v. Norfolk lialhvay Co , Bank v. Turquand, 5 El. & Bl., 248; 6 id., 327. 
 
 4 El. & Bl , 397. 415, 443 ; per Lords Campboll {h) Eastern Counties R'way Co. V. Hawkes, 
 
 and St. Leonards in Eastern Counties Rail- 5 H. L. C, 331, 349, 355. 
 
 way Co. V. Uawkes, 5 U. L. C. 338, .355, 372; (i) S. C. 
 Re Contract Corporation, L. R 8 Eq , 14; 
 
 brought, are those where a contract has been made, and possession has been 
 taken thereunder, and the vendee seeks to rescind the contract on the ground 
 of defective title, or tlie inability of the vendor to perform the contract on his 
 part, or of some fraudulent representations inducing its execution. In these 
 cases the vendee must offer to restore whatever he has received before he can 
 call upon the vendor to refund the purchase money. Where the contract is void, 
 there is nothing to rescind ; no rights are acquired, and there are, in consequence, 
 no rights to restore." McCracken v. City of San Francisco, 16 Cal., 591. 
 
 * In the case of the Southern Life Insurance and Trust Co. v. Lanier, 5 Fla., 
 110, a contract with a corporation was held to be binding on the parties, 
 although it was an abuse of the corporate powers, for which the corporation 
 was answerable to the government who created it.
 
 CONTRACT BEING ULTRA VIRES. 239 
 
 § 474. Fnrtliermore, a contract will not be void as against 
 a third person dealing hona fide with the corporation, be- 
 cause there may have been the omission to observe some 
 fonnality required by the terms of its constitution, or be- 
 cause there may have been some irregularity on the part of 
 the directors or officers of the body entering into it on their 
 behalf. Thus, for instance, it has been held to be no defense 
 to an action against a company upon a debenture sealed 
 with their common seal that the borrowing of the money 
 thereby secured was not sanctioned by the resolution of an 
 extraordinary general meeting as required by its deed of 
 settlement, (y)' 
 
 (j) Royal British Bank v. Turquand, 5 El. Case, 1 De G. J. & S., 4S8; Prince of Wales 
 & Bl.,248; G id., 327; Agar v. Athenreutn Life Assurance Co. v. Harding, El. B. & E., 183. 
 Assurance Society, 3 C. B. N. S., 725; Grady's 
 
 1 The case of Kean v. Johnson, 1 Stockt. (N. J.), proceeds upon this same 
 principle. There, an incorporated company were engaged in a prosperous un- 
 dertaking. 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 chaucgry. It was held, that in cases of joint-stock com- 
 panies there was a contra^st between all the stockholders and the board of 
 directors, that the joint funds should be used for certain specified purposes, and 
 that any material deviation was a breach of this contract which would not be 
 permitted.
 
 240 FRY ON SPECIFIC PEHFOKMAXCE OF CONTRACTS. 
 
 CHAPTER XI. 
 
 OK THE STATUTE OF FRAUDS AND THEREIN OF PART 
 PERFORMANCE. 
 
 § 475. By the fourth section of the Statute of Frauds {a) 
 it is, amongst other things, enacted that no action shall be 
 brought whereby to charge any person upon any contract 
 or sale of lands, tenements, or hereditaments, or any interest 
 in or concerning them, "unless the agreement upon which 
 such action shall be brought, or some memorandum or note 
 thereof, shall be in writing and signed by the party to be 
 charged therewith, or some other person thereunto by him 
 lawfully authorized." 
 
 § 476. This section affects not the contract itself, but the 
 right of either party to sue the other upon it. Hence it has 
 been decided that it refers not to the solemnities of the con- 
 tract, but to the x-)rocedure, and consequently that an action 
 will not lie in this country on a contract made in a foreign 
 country, and valid there, which, if made here, would have 
 been incapable of being sued on by reason of this section. (&) 
 This decision, though still law, has not escaped criticism, (c) 
 and is difficult to reconcile with the well settled rule(fZ) 
 which requires that the writing relied on as taking a case 
 out of the statute should be in existence before action 
 brought ; a requirement which would be unreasonable and 
 contrary to the usual practice, if it related only to procedure 
 and did not go to the solemnities of the contract. 
 
 § 477. It is obvious that in many cases a defense to an 
 action for specific performance may be grounded upon this 
 fourth section of the Statute of Frauds. It is, therefore, 
 proposed to consider (1) how such a defense may be raised, 
 and (2) what constitutes a sufficient agreement or memo- 
 
 (a) 29 Car. II, c 3 the fourth section is matter of procedure in 
 
 (6) l.eroux v. Brown, 12 C. B., 801. the judgment of the Queen's Bench Division 
 
 (c) Williams v. Wheeler, 8 C. B X. S., 299, In Jones v. Victoria Graving Dock Co., 2 Q. 
 
 316; Gibson V.Holland, L. R.IC. P., 8. The B. D., 323. 
 
 case is, however, cited as an autliority for the (d) Bill v. Bament, 9 M. & W., 36. 
 
 proposition that the signature required by
 
 STATUTE OF FRAUDS, ETC. 241 
 
 randum or note of agreement within the meaning of the 
 statute. And as, notwithstanding the express language of 
 the statute, it was held by the court of chancery, and is now 
 the law of the land, that certain circumstances may preclude 
 a defense founded upon the statute, it is necessary to con- 
 sider a third question, namely, (3) what, according to the 
 principles of equity, takes a contract out of the statute.' 
 
 1. How the defense may he raised.'' 
 
 § 478. In order to make intelligible the decisions on the 
 present mode of pleading, it will be necessary to state briefly 
 
 ' StaUs in wliicJi the contract is void, if not in conformity loiih the statute] The 
 English statute (Mercantile Law Amendment Act, 19 and 20 Vie, 185(5) has 
 been in substance re-enacted in many of the States. In the following tlic con- 
 tract is void, if not in conformity with the provisions of the statute : Alabama 
 Code, 1867, § 1862; California Code, § 1741; Michigan Comp. Laws, 1871, vol. 
 11, p. 1455, ch. 166, § 8; Minnesota Stats., 1873, vol. 1, p. 692, § 12; Nebraska 
 Stats., 1873, p. 392, ch. 25, § 5; New York Rev. Stats. (6th ed.), vol. 3, p. 141; 
 Oregon Gen. Laws, 1872, ch. 8, § 775; Wisconsin Stats., 1871, vol. 11, ch. 
 106, § 8. 
 
 ' ' T7ie statute is not a mere rule of evidence, but a limitation of judicial authority 
 to afford a remedy. It requires that contracts for the sale of lands, in order to 
 be enforced by judicial proceedings, must be substantiated by some wrUing. 
 This provision of law cannot be dispensed with, merely for the reason that the 
 want of such writing was occasioned by mistake, accident or fraudulent rep- 
 resentations, unless some other ingredient enters into the case to give rise to 
 •equities stronger than those which stand upon the oral contract alone, which 
 estop the other party from setting up the statute." Wells, J., in Glass v. Hul- 
 bert, 102 Mass., 25; Stockbridge Iron Co. v. Hudson Iron Co., id., 45. 
 
 Assignee's contract to pay original purchase money. \ The assignee of a bond 
 for title, entered into a contract to pay the purchase money to the original 
 vendor. Held, that it was not a parol promise to pay the debt of another, nor 
 a parol contract for the sale of land, and that it would be specifically enforced. 
 Ford v. Finney, 85 Ga., 258. 
 
 Securities.'] "The words of the statute have never yet been extended bv 
 any court beyond securities which are subjects of common sale and barter, and 
 which have a visible and palpable form." Somerly v. Buntin, 118 Mass., >.9, 
 per cur. Gray, C. J. 
 
 Examples of promise within the statute.] A judgment to sell a stock of goods, 
 and, as a part of the transaction, the seller verbally agreed to give the purchaser 
 a three years lease of the store— Held, within the statute, and the action dis- 
 missed. Strahl V. Evers, 66 111., 77; Schulter v. Bockwinkle, 19 ^^lo^ 6-4; 
 William and Mary's Col. v. Powell, 12 Gratl., 372; Bryant v. Jamison, , Mo., 
 106. 
 
 « In order that a bill may be taken advantage of under these circumstances 
 it must not only show the want of an agreement conformable to the statute of 
 frauds, but it must also omit to make any allegations of part performance. 
 Thus, in the case of Field v. Hutchinson, 1 Beav., 599; S. C, 3 Jur.. <.».) it is 
 said, "where the want of a signature to an agreement for the sale of lands 
 cleariy appears on the bill, the objection may be taken advantage ot by general 
 demurrer; but the statements of this bill not beiu- inconsistent with a signa- 
 ture by the party to be charged, and containing allegations of part perform- 
 ance, a general demurrer thereto was overruled." 
 
 16
 
 242 FllY ox SPECIFIC PEKFOKMANCE OF CO^•TRACTS. 
 
 what was the nietliod of taking advantage of the statute be- 
 fore the judicature acts. 
 
 § 479. Under the old practice, then, the want of a con- 
 tract within the statute might, when clearly appearing 
 on the bill, have been taken advantage of by general de- 
 niurrrer,((?) or by a demurrer alleging the want of such a 
 contract. (/) In this respect, there was held to be a wide 
 difference between the Statute of Frauds and the statute of 
 limitations. (.(7) 
 
 § 4S0. The benefit of the statute might also have been 
 had by i^lea ; and, notwithstanding a doubt of Lord Mac- 
 clesfied,(70 by plea alone and without answer. 
 
 §481. To a bill alleging a parol contract and part per- 
 formance, a plea averring that there was no contract in 
 writing, and an answer insisting that the alleged acts did 
 not amount to part performance, was a sufficient defense. (/) 
 Though such a bill could not, it seems, have been met by a 
 plea alone, for a plea in bar to such a bill w^ould contain 
 two distinct points— namely, the denial of the written con- 
 tract and of the acts of part performance, and w^ould there- 
 fore have been multifarious and bad.(y)' 
 
 § 482. The benefit of the statute might also have been 
 obtained by the defendant's answer; and either by an 
 answer denying or not admitting the contract (which was 
 sufficient, without special reference to the statute, to throw 
 upon the plaintiff the whole burthen of proving a valid 
 
 (e) Field v. Hutchinson, 1 Beav., 599; cf. 9 Mod., 86; Moore v. Edwards, 4 Ves., 23; 
 
 Heard v Pllley, L R. 4 Ch., 548. Bowers v. Oator, id., 91; Evans v. Harris, 2 
 
 (/) Wood v.Midgley, 5 1)6 G.M.&G., 41; V. & B., 361. 
 
 S C ,2 Sm. &Gir., 115; Barkworth v. Young, (j) Whltbread v. Brockhurst, 1 Bro. C. C, 
 
 4 brew 1. See, also, Howard v. Okeover, 3 404; and see Belt's n. and Redes. Plead., 268. 
 
 Sw 421 n ''ee, also, as to this plea, Child v. Comber, 3 
 
 ((7) Per Lord Cranworth In Ridgway v. Sw., 423 n. ; for a plea to a parol contract 
 
 Wnarton, 3 l>e G. M. & G , 691 ; Ut-ysv. Ast- varying a written one, Jordan v. Sawkins, 3 
 
 ley 4 De G J & S., 34. Bro C. C, 388; and I'oi a plea alleging revo- 
 
 (h) Child V. Godolphin, 1 Dick , 39. cation of agency. Mason v. Armitage, 13 
 
 (i) Whitchurch v Bevis, 2 Bro. G. C 559; Ves., 25. 
 S. C.,2 Dick., 664. See, also, Hosier v. Read, 
 
 1 The case of French v. Shotwell, 5 John. Ch., 555. is a somewhat analogous 
 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 would, if 
 true, defeat the plea; and it must reduce the defense to a single point. Bogar- 
 dus V. Trinity Church, 4 Paige, 178: Saltus v. Tobias, 7 John. Ch., 214. If a 
 plea be double, the plaintifl'may demur for duplicity; but, if he reply, he must 
 answer both parts of the plea. Barrett v. Ruill, 3 Ired., 881.
 
 STATUTE OF FKAUDS, ETC. 243 
 
 contract capable of being enforced), (/i) or by an answer ad- 
 mittino- a contract, and expressly pleading tlie statute. (/) 
 
 §483. If the benefit of the st:itute was not claimed in 
 one or other of these ways, it could not be had at the hear- 
 ing. (;m) 
 
 § 484. A great change has been effected by the provisions 
 of the judicature acts in this matter. Order XIX, r. -23, 
 provides that " AVhen a contract is alleged in any pleading, 
 a bare denial of the contract by the opposite party shall be 
 construed only as a denial of the making of the conti-act in 
 fact, and not of its legality or its sufficiency in law, whether 
 with reference to the Statute of Frauds or otherwise." 
 Pleas, it may be added, find no place in the present system 
 of pleading. 
 
 § 485. From these provisions, the following inferences 
 have been or may be drawn, viz.: 
 
 (1) That the benefit of the statute can no longer be liad 
 by plea. 
 
 (2) That where the statement of claim alleges a contract 
 without alleging it to be in writing, a demurrer will not now 
 lie, but the statute must be specially pleaded ;(;?) and this 
 has been held to apply even to a case in which the state- 
 ment of claim alleged circumstances in anticij^ation of an 
 objection grounded on the statute, and these circumstances 
 were traversed by the defense. (o)' 
 
 (3) That where the statement of claim itself shows that the 
 contract was not in writing, and does not show any equita- 
 ble circumstances taking it out of the statute, then the statute 
 may be taken advantage of by demurrer. This point has 
 not yet, it is believed, been the subject of direct decision. (^) 
 
 (k) Uidewav v. Wharton. 3 De G. M. & G., («) Catlinp v.King,5Ch D .(JG i.GfiS; Towle 
 
 677, >. C in U. P., 6 H. L. C, 238. v. Topham, 37 1- T., 308; SluHnllow v. Cot- 
 
 (/') Cooth V. jaokson, 6 Vec. VI; Moore v. terill, W. X. (1881), 2. t , ^ t> 
 
 Edwards, 4 id , '23; per L,ord Eldon in Rows (o) Clarke v. Callow, -16 L. J. Q. B., 53. 
 
 V. Teed, 15 Id., 375; Blagden v. Bradbear, 12 See, also, Johnasson v. Bonhote, i Ch. D., 
 
 id, 466; per Lord Eldon in ex parte Whit- 298 , ,. , • , ^ 
 
 bread, 19 id., 212. See contra, Mussell v. (p) It appears tiiat this may be inferred 
 
 Cooke Free Cli 533 from the decision in > ale of Neath Colliery 
 
 (m) IJaskett v. Cafe, 4 De G. & Sm , 388. Co. v. rurness, 24 W. It., 631. 
 
 1 A defendant in a suit in cliancerv cannot put in several distinct defen.ses, 
 bv 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 reipiired to 
 make his several defenses by answer. Where it would be necessary to set out
 
 244 FRY ON SPECIFIC PERFORMANCE OF CONTRACTS. 
 
 (4) That wliere a pleading states a contract ."generally, the 
 opposite party's proper mode oi cUiiniing the benefit of the 
 statute is to plead it specially in his next pleading. 
 
 (5) That to such pleading the old rule applicable to answers 
 applies, viz., that the benefit of the statute must be claimed 
 distinctly and unambiguously. Under the former practice it 
 was held tliat when the answer alleged that no formal note 
 of the contract was made, and denied that any binding con- 
 tract ever existed, but did not expressly claim the benefit 
 of the statute, the defendant was not entitled to have that 
 benefit at the hearing. (</) It is not necessary that the de- 
 fendant should claim the benefit in the very words of the 
 statute, but he must claim it in words equivalent, so as to 
 call the attention of the other party to the circumstance 
 that the benefit of the statute is claimed, (r) 
 
 (6) If the plaintiff deliver a statement of claim, and the 
 defendant deliver no defense or demurrer, it appears clear 
 that the defendant cannot set up the statute at the hearing 
 of the plaintiff's motion for Judgment, for then the court is 
 to give such judgment as upon the statement of claim the 
 court shall consider the plaintiff" to be entitled to.{s) 
 
 (7) If the iDlaintiff indorse his writ for specific performance 
 of a contract and deliver no statement of claim, and the de- 
 fendant deliver no defense, it would seem equally clear that 
 the defendant cannot have the benefit of the statute.' 
 
 2. WJiat satisfies the statute." 
 § 486. The object of the Statute of Frauds being, as re- 
 
 (a) See Skinner v. McDowall, 2 De G. & of pleading now required, Byrd v. Nunn, 7 
 
 Sm '>65 Ch. D., 284. 
 
 (r) Per Wlgram.V. C, In Beatson v. Nich- (s) See Ord. XXIX, r. 10. 
 Olson, 6 Jur., 621. Cf. as to the distinctness 
 
 very long accounts, and in cases where the discovery sought by 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. 
 
 ' This is clearly the rule. Osborn v. Endicott, 6 Cal , 149; Lingan v. Hen- 
 derson, 1 Bland, 236; Kinzie v. Penrose, 2 Scam , 520; Thornton v. Henry, 
 id., 218; Talbot v. Bower, 1 A. K. Marsh., 4:W; Bean v. Yalle, 2 Miss., 
 126; Tarleton v. Vietes, 1 Gilm., 470; Woods v. Dille, 11 Ohio, 405; Small v. 
 Ownings, 1 Md. Ch Dec, 363; Hollingshead v. McKenzie, 8 Geo., 457. 
 
 "> What the rrntinrj muM contain to mtisfy the statute] It may be informal, but 
 it must contain all the terms of the contract, either expressly or by necessary 
 inference. In it must be found the names of the parties, the consideration, the 
 subject matter, the promise and the signature of the party sought to be charged ; 
 nothing must be left open for future negotiation. Laythoarp v. Brj^ant, 3 
 Bing. (N. C), 735; Ogilvie v. Foljambe, 3 Mer., 53; Nichols v. Johnson, 10
 
 STATUTE OF FJIAUDS, ETC. 245 
 
 gnnls the contracts now under consideration, to prevent the 
 niiscliiei' arising from the resort to parol evidence to prove 
 the existence and the terms of the alleged contract, it is 
 obvious that the mischief is avoided wherever there exists, 
 under the hand of the party sought to be charged, a written 
 statement containing, either expressly or by necessary infer- 
 ence, all the terms of the contract — that is to say, the parties 
 (described either by names or descriptions or reference suffi- 
 cient to preclude any fair dispute as to their identity), (^) the 
 subject matter of the contract, («) the consideration and the 
 X3romise(^) — and leaving nothing open to future treaty. (io) 
 
 § 487. This, therefore, is sufficient to satisfy the statute, 
 and provided this be found, no formality is required, nor 
 does it signify at all what is the nature or character of the 
 document containing such written statement — whether it 
 be a letter written by the party to be charged to the person 
 with whom he contracted, or to any other person, or a deed, 
 or other legal instrument, or an affidavit, (ic)' 
 
 (0 Potter V. DuffieUl, L. R. IS Eq . 4. See, did not refer to any plant, sipnol a mcmo- 
 for a further discussion of the mode of de- randuni referring !•« the contract, wan hum 
 scription. Part IH, chap, iii, § 330 et seq., to be sufficieHtly incorporated with the con- 
 where the cases are cited. traci, and to control the description in It 
 
 (u) See Nene Vall y Drainage Commls- (u» Laythoarp v. liryant, 2 Bing. N. C , .«. 
 
 Bloners v. Dunkley, i Ch. D., 1, where a plan (w> Oi;ilvle v. Foljambe, 3 Jler, 53. 
 
 on which the parties, contemporaneously (x,i Bariiworth v. Young, 4 Drew, 1, 14. 
 with their signature of the contract (which 
 
 I 
 
 Conn., 192; Doty v. Wilder, 15 111., 407; McConnell v. Brillharil, 17 id.. :«4; 
 Jolmsou V. Dodsre, id., 4^3; McFarsoii's App., 11 Pa. St., .'iOS; Sanbornc- v 
 Flagler, 9 Allen."474; Stone v. Browning, bS X. Y., .598; Helsa v. lUNa, 8 
 Mo. , b93 ; Huff v. Shepard, 58 id. , 242. It need not be sealed nor acknowleilged. 
 and words of inheritance need not be employed, ^vhere an intention to pas.s the 
 fee appears. McFarson's App., 11 Pa. St., 503. The writing may be by a 
 pleading, an affidavit or a receipt, and it may be found in one or more letters 
 It may be in the language of both parties, or either of them. Barkworthv. 
 Young, 4 Drew, 13; Ewing r. Gordon, 49 N. H., 444; Tripp v. Bishop, ob Pa. 
 St., 424; Joseph v. Holt, 37 Cal., 250; Welford v. Beazely. 3 Atk., 5U,J; Deut- 
 son V. McKenzie, 1 Dessau.'s Eq., 289. The entire agreement must be written 
 or printed, and may be in pencil. Cary v. Hyde, 49 Cal.. 470: 1 atlon v. Uevc- 
 lin's,2Phila., 1U3; Draper v. Pattina, 2 Speers. 292; Merrill v. Clasor, 12 Johns. 
 484. A contract by parol, or in writing, is presupposed by the statute ot 
 frauds. The memorandum, which is necessary to its validity, and the agree- 
 ment itself, are verv different things; one maybe made at one time, and the 
 memorandum at some other. If the promise of one of the parties is the con- 
 sideration for the promise of the other, in such case both niu.st be concurrent, 
 and obligatorv upon both at theisame time. Lester v. bennctt, 1- Hurli., .)U-: 
 Jones v, Noble, 3 id. (Kv.), 694; Yerger v. Green, 4 Gill, 472; Duvall v. Myers. 
 2 Md. Ch., 401. 
 
 1 In Barrv v. Coombe, 1 Pet.. G40, it is said that courts of (•(luily are not 
 rigid with regard to the direct and immediate purpose for which t lie written 
 exndence of a^'contract was created: -'It is written evidence llial the statult- of 
 fraud requires and a note or letter mav be sufficient to bring the case withm 
 the statute." Thus the following paper was held to be a sutlicieut uicmoran-
 
 240 vny ux simx-ific PERFOiniANCE of contracts. 
 
 The (|iiestion of wliat is necessary to be settled, and tliere- 
 iore wliat is necessary to be exi^ressed, in order tliat a writ- 
 
 dum of the turms of an agreement to sell land within the statute of frauds : 
 "Ellswortii, Dec. 15th, \SU. Received of D. B. and C. S. U. $1,000, to be 
 accounted for, if they shall furnish me satisfactory security for certain lands 
 on the Naraguagas river, say 119,000 acres for $113,000, on or before Friday 
 morning next: otherwise to be forfeited — John Black." Clark v. Burnham, 3 
 Story, 1. And a receipt in these terms: "Received from A. $20, on account 
 of the purchase of a house and lot. No. 38 Hammond street, at $2,900, subject 
 to a lease to B. for four years from the tirst of May next: $1,000 may remain 
 by bond and mortgage: the balance the first of May, when the deed will be 
 executed and possession given" — amounts to a valid contract for the sale of 
 land, under the statute in New York. Westervelt v. Matheson, 1 Hoff. Ch , 37. 
 Again, in Hutcher v. Hatcher, 1 McMuUan's Ch., 311, land having been sold 
 on execution against A., B. agreed, by parol with A., to advance the money 
 to the purchaser at the slieriff s sale, "to take a conveyance to himself, and t.) 
 reconvey to A. upon being reimbursed for the sum so advanced. Upon a sub- 
 sequent payment by A., under the agreement, B. gave him a written receipt 
 therefor, as in part payment of the land, describing it, and concluding thus : 
 "This in part payment to redeem the land from B." It was held, that there 
 was a sufficient memorandum of the contract, within the statute of frauds, 
 and that extraneous written evidence was admissible to show the consideration. 
 Thomas _y. Todd, 3 Litt., 337. is a case somewhat in point It was there held, 
 that an advertisement describing the situation and quality of land, signed by a 
 vendor, and being the onl}' printed or written memorandum of the contract on 
 his part, was held to contain the particulars with which he was l)Ound to com- 
 ply; and where he was unable to do so, the contract for a purchase of the land 
 was decreed to be rescinded. See Gray v. James, 4 Dessau., 185; Little v. 
 Peason, 7 Pick., 301, is a case of the same nature There A. paid B. .$100, re- 
 ceiving from B. a note payable to A. 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 engaged 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. Re- 
 ceived 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 agree- 
 ment out of the statute. Ellis v. Deadman, 4 Bibb , 46fj A memorandum 
 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. 
 Ch., 274; Coles v. Bowne, 10 Paige, .526. Therefore where A. proposed, in 
 writing, to sell to B., all that piece of property known as the TJnion 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 property." 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 recog- 
 nize that an estate, chargeable wntli certain annuities, is sold subject to them, 
 by mentioning when the payment of the annuities by the purchaser is to begin, 
 it is sufficient. Ives v. Hazard, 4 li. I., 14; see Kay v. Curd, 6 B. Monr., lOO. 
 Handbills and newspaper notices, published at the time of the sale, are not ad- 
 missible as explanatory evidence, the memorandum containing no reference to 
 them. O'Donnell V. Leman, 43 Me. 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- 
 settled. There the leading decision on the subject is Wain v. Warlters, 5 East, 
 16, decided at law by Lord Ellenborough, who then took occasion to explain 
 the meaning of the word agreement, 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 promiie or an xindertdkivrj. He said that the statute 
 was never meant to enforce any promise which was before invalid, merely be-
 
 STATUTE OF FRAUDS, KTC. '2A1 
 
 ten memorandum shall be evidence of a coniijleted contract 
 will be found more fully discussed in the chapterfy) on the 
 incompleteness of the contract.' 
 
 (y) Part III, chap. Hi. And see Blakeney v. Hardie, I. R. 8 Eq., 381 ; Carrlpv v. llrock 
 
 (collateral contract), I. U. 5C. L., 5<Jl. 
 
 cause it was put in writiusr; that a promi.'^e, without a consideration, was a 
 mere nudum pactum ; and that tlie object of the statute would be defeate<l if 
 the consideration were not expressed, as, in tliat case, it might be illeiral. or the 
 promise made upon a condition precedent, wliicli tlie party charged may not 
 afterwards be able to prove, the omission of which might materially vary the 
 promise by turning tliat into an absolute promise which was only a condi- 
 tional one. This decision has been sustained in Stadt v. Lill. 9 East, 348; Jen- 
 kins V. Reynolds, ;i Brod. 6c Bing., 14: Saunders v. AVakefield. 4 B »i: Aid., 
 495; Morley v. Boothlv. 3 Bing., 107; Cole v. Dver, 1 Cr. it .Ir., 4(5 1 ; James 
 V. Williams, 3 Nev. Sc Man.,' 196; Clancv v. Pi'ir-rott, 4 id., 4n0; Haik.-s 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 agreement, as detined in Wain v. 
 Warlters, should 1)e borne in mind, as in ca.ses arising under the seventeenth 
 section of the statute, wliich does not contain the word agreement, tlie consid- 
 eration need not be expressed. Egerton v. Mathews, 6 East, 307; Marshall v. 
 Linn, 6 M. & W., 118. The ruling in Wain v. Warlters has been approved in 
 Sears t. Brink, 3 John.. 210; Rogers v. Kneeland, 10 Wend., 218; Packard v. 
 Wilson, 15 id., 343; Bennett v. Pratt, 4 Denio, 275; Staats v. Howlelt. id., 559, 
 and has become the statute law of New York. 2 R. S., pt. 2, ch. 7. tit. 2, <j 2. 
 In Maryland and Georgia, decisions have been given to the same etfect. Wy- 
 man v."Gray, 7 liar. & 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. Richard.son, 17 Mass.. 112; Sage v. Wilcox. 6 
 Conn., 81; Tufts v. Tuft.s, 3 M. & W., 456; Reed v. Evans, 17 (Thio, 128; Git- 
 lighan v. Boardman, 29 Me., 79. In some of the States the language of the 
 statutes has been changed, and the Englisli doctrine, resting ujion the meaning 
 of the word agreemenf, repudiated. Viok-tt v. Patton, 5 Crancli, 142; Taylor 
 V. Rose, 3 Yerg., 330; Gilman v. Kibler, 5 Humph., 19; Wren v. lVar>e. 4 
 Sm. i&Mar.sh., 91. "Where an instrument of guaranty is under seal, this ex- 
 presses sufficient consideration to be deemed a comi)liance with the .'^tntute 
 requiring it to be expressed. Ro.seubamn v. Guuter, 16 N. Y. (2 Smitli), 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. Dcdrick. 23 
 Barb., 316; 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. tht'n, it has 
 been decided at law, it is altogether void. Cooke v. Toombs, 2 Anstr., 420; 
 Lea V. Barber, id., 425; Charter v. Beckett, 7 Term R., 201; Vaughan v. Han- 
 cock, 3 C. B., 76G; Lexington v. Clarke, 2 Vent., 223; Mechrlen v. \\ Maw, 7 
 Ad. & El., 49; Thomas v. Williams, 10 B. & Cr., 664; Loomis v. Ni-wliall. 15 
 Pick., 159. In Irvine v. Stone, 6 Cu.sh.. 508, it was lu-ld that a contract for the 
 purchase of coals at Philadelphia, and to pay for the freight of the same to 
 Boston, if void by the Statute of Frauds as to the sale, is v.. id also and cannot 
 be enforced as to'the freidit; thou-;h the latter, if it stood alone, wuuhl not l»e 
 within the statute. See Thayer v. Roeh. 13 Wend.. 53. But if the parts arc 
 severable, then it may be good in part and void in part. Mayfield v. ^\ adsley, 
 3B. ct C, 357. 
 
 ' Subject matter of contract imufflciently dexcrV>td. ] Tlie memonuulum n-lating 
 to realestate in the following cases was indefinite, and tliercfore insulUcicnt : 
 Holmes v. Evans, 4S Miss.,"'247; Pipkin v. James, 1 Humph . 325; Meadows 
 V. Meadows, 3 IMcCord, 458; Church of the Advent v. Farn.w, 7 Rich '.s Kq., 
 378; Ray v. Curd, 6 B. M., 100; Ives v. Armstrong. 5 R. 1.. 5(i7; Jslieid v. 
 Stamps, 2 Sneed, 172; Farwell v. iVIather, 10 Allen, 322. 
 
 Examples inhere tJie description iras held to be s'/jfinVht ] If a surveyor can 
 locate it, a contract is sutlieientlv desrriiitive. White v. Hermann. 51 111., 283; 
 Wiley V. Robert, 27 Mo.. 38S; "Boardman v. Ford, 6 Pet.. 345; lIoo|K-r v.
 
 248 FUY ON SPECIFIC PEMFOKMANCE OF CONTRACTS. 
 
 § 48H. There is, of course, no binding contract when the 
 writing appears only to be terms agreed on as a basis for a 
 contract, and not the contract itself ;{z) or wliere it provides 
 tliat any of the terms are afterwards to be settled ;(«) or 
 where the matter is nnconcliided, and one party may still 
 withdraw his consent ;(&) or wdiere there appears any de- 
 sign of furtlier negotiation ;(c) or where one of the parties 
 was, at the time when the memorandum was signed — which 
 is the point of time at which the statute requires the plain- 
 tiff to prove a concluded contract existing(fZ) — incapable of 
 contracting binding]y.(e) Therefore where the purchaser's 
 solicitor offered £25, 000 for the purchase of an estate, which 
 the defendant's agent accepted, " subject to the terms of a 
 contract being arranged between his (the vendor's) solicitor 
 and yourself," the court considered this to be a contract to 
 enter into a contract with respect to which some terms were 
 already agreed on, and the rest w^ere to be settled by future 
 arrangement, and that if they could be agreed on, this was 
 to become a valid contract ; but such a contract never having 
 been come, to, the court dismissed the purchaser' s bill ask- 
 ing for a specific performance. (/) On this principle the ap- 
 
 (2) Frost V. Moulton, 21 Beav., 596. C, 6 H. L. C, 112. See, too, Winn v. Bull, 7 
 (a) Wood V. Mifialey, 5 De G. M. & G., 41. Ch. D., 29. Whether the expression in the 
 (6) Earl of Glengal v. Barnard, 1 Ke., 7G9, memorandum that the contract is subject to 
 aflirmedasLordGlengal v.Thynne, .St. Leon, the approval of the title by the purchaser's 
 Law of Prop., o6. see, too, Hussey v Home- solicitor is enough to make the contract con- 
 Payne, 4 App. C., 311. dltional appears doubtful. Compare the 
 
 (c) Tawney v. Crowther, 3 Bro. C. C, 318; observations of Lord Carlns In Hussey v. 
 Stratford V. Bosworth, 2 V. &B., 341; Wilco.x HornePayne, 4 App. C, 321, 322, with the 
 V. Redhead, 28 W. R., 795. judgments of the Court of Appeal in S. C, 8 
 
 (d) Mundayv .\ sprey, 13 Ch. D., 857. Oh. D., 675 et seq. See, also, Hudson v. 
 
 (e) Avery v. Griffin, L R. 6 Eq., 606. Buck, 7 Ch. D., 683. 
 (/) Honeyman V. Marryat, 21 Beav., 14; S. 
 
 Lanej^ 37 Ala., 338; Hatcher v. Hatcher, 1 McMullan's Eq., 311 ; Mos.s v. An- 
 derson, 44 Cal., 3; Simmons v. Spruill, 3 Jones' Eq., 9; Ives v. Hazard, 4 R. I., 
 14; Spangler v. Danforth, 65 111., 152; Simpson v. Breckenridge, 33 Pa. St., 287. 
 Parol evidence to identify the property sold.'] Wells, J., in Hurley v. Brown, 98 
 Mass., 545, says : "It is not a question of the sufficiency of the writing under 
 the Statute of Frauds, so much as it is the right to resort to parol evidence in 
 aid of the writing where an ambiguity exists in respect to the property intended 
 to be sold, or to which the contract relates. The most specific and precise de- 
 scription of the property intended requires some parol proof to complete the 
 identification. A more general description requires more. When all the cir- 
 cumstances of pos.session, ownership, situation of the parties, and their relation 
 to each other and to the property, as they were when the negotiation took 
 place and the writing was made, are discIo.sed, if the meaning and application 
 of the writing, read in the light of those circumstances, are certain and plain, 
 the parties will be bound by it as a sufficient written contract or memorandum 
 of their agreement." Bee, also, Ross v. Parker, 72 Pa. St., 186; Murdock v. 
 Anderson, 4 Jones' Eq., 77; Mead v. Parker, 115 Mass., 413; see, as to usage 
 and customs in trade, Salmon Falls Manuf'g Co. v. Goddard, 14 How., 446; 
 Barry v. Combe, 1 Pet., C40.
 
 STATUTE OF FEAUDS, ETC. 249 
 
 proval of a draft does not of itself constitute a con- 
 tract. {(/) 
 
 §489. The court will refuse to act even where it only 
 "rests reasonably doubtful whether what jjassed was only 
 treaty, let the progress towards the conlines of agreement 
 be more or less-'X^**) 
 
 § 490. But the mere fact, though appearing on the paper, 
 that a more formal contract is intended to be executed, will 
 not prevent a paper duly signed and containing all the terms 
 from being a contract, an^' more than will a reference to deeds 
 thereafter to be executed, (z) Therefore where A. wrote to 
 B., "I offer you £3,000 for the estate," and B. replied. '^ 
 accept your offer, and, if you approve of the inclosed, sign 
 the same, and I will, on receipt of the deposit, sign you a 
 copy" (the inclosure was not produced), the court held that 
 there was a binding contract, and treated the inclosure as a 
 mere means of carrying that contract into elfect;(y) and in 
 another case, a correspondence about the taking of a house 
 was held to constitute a sufficient contract, though the agent 
 of the lessor accepted the offer 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 agree- 
 ment for sio:nature, which I will forward to you."(^) 
 
 § 491. But wherever the formal contract contemplated is 
 to be anything more than merely ancillary to the real con- 
 tract — wherever any new term not expressed or implied in 
 the earlier contract might be introduced into the formal 
 one, the first document will not by itself be binding. And 
 wherever the concluded nature of the arrangement does not 
 evidently a^Dpear on the writings, the fact that a subsequent 
 and more formal contract was intended to be entered into 
 will be strong evidence that the previous negotiations were 
 not intended to amount to a contract. (Z)' 
 
 (g) Doe d. Lambonrn v. Peiigriph, 4 Car. & 1 Ke., 741 ; Cowley v. Watts, 17 Jur, ITi; and 
 
 P., 312. Biipra, § JSti. 
 
 (h) Per Lord Eldon In Hiiddleston v. Bris- (;') Glbbins v. North Kastcrn Metropolitan 
 
 coe, 11 Ves., 592. Aevluni District, 11 Ucuv., 1. 
 
 (i) Fowle V. Freeman, 9 Vi'!>., 351 ; Kennedy (Ai skinner v. M'I)o\vall,J DeG. A Sm.,2t». 
 
 V. Lee, 3 Mer., 441. See per Lord Cranworth (/) Kidgwiiy v. Wharton, G II L. C , JSS, 
 
 in Ridgway v. Wharton, (; II L. C, 264; per and particularly PP- '-*>*'. •^• 
 Lord Langdale, M. K., iu Thomas v. Dering, 
 
 ^ How to make a bindinr/ contract within the !<tatut(\] 'NVIk'iv the writti'ii iiieni- 
 orandum itself does not contaiu all the particulars of the ajrreeinent. it imist 
 refer to some other writiug for the parts omitted. It may consist of many 
 parts, but all must be connected, and form together the entire agreement coii-
 
 250 I'llY UN SPECIFIC TEKFOK-MANCE OF CUNTKACTS. 
 
 § 49*3. In tlie case of Oliinnock v. The Marchioness of 
 Ely,rwi) the plaintiff had proposed certain terms of pur- 
 chase to the defendant's agents, who had replied to the 
 plaintiff that they were instructed by their client to proceed 
 with tlie sale to him, and that a draft contract was being 
 prepared and would be forwarded to him for approval in a 
 few days. It was contended on the plaintiff's behalf that 
 this letter clearly recognized the fact that there had been a 
 complete sale to him, and also amounted to a distinct accept- 
 ance of certain terms previously stated by him in writing. 
 But it was held by Lord Westbury that the true meaning 
 of the letter was that the defendant was willing to accept 
 the plaintiff's terms, if the plaintiff would agree to the 
 draft contract about to be sent to him. "I entirely ac- 
 cept,'' said his lordship, (7i) "the doctrine contended for by 
 the plaintiff's counsel, and for which they cited the cases 
 of Fowle V. Freeman, (o) Kennedy v. Lee, (^9) and Thomas v. 
 Dering,((?) which establish, that if there had been a final 
 agreement, and the terms of it are evidenced in a manner 
 to satisfy the statute of frauds, the agreement shall be bind- 
 ing, although the parties may have declared that the writing 
 is to serve only as instructions for a formal agreement, or 
 although it may be an express term that a formal agree- 
 ment shall be prepared and signed by the parties. As soon 
 as the fact is established of the final mutual assent of the 
 parties to certain terms, and those terms are evidenced by 
 any Avriting signed by the party to be charged or his agent 
 lawfully authorized, there exist all the materials, which this 
 court requires, to make a legally binding contract. But if 
 to a proi30sal or offer an assent be given subject to a i)ro- 
 vision as to a contract, then the stipulation as to the con- 
 
 (m) 4 neG. J. &S.,638. (p) 3 Mer., 441. 
 
 (n) 4 Pe G. J. & S., 645. ('/) 1 Ke., 729. 
 
 (o) 9 Ves., 351. 
 
 templated. If letters are relied upon, they must distinctly recognize and adopt 
 the contract. Allen v. Bennett, 3 Taunt., 169; Powell v. Dillon, 2 B. &: B., 
 41G; Esmay v. Gorton, 18 111., 483; Tallman v. Franklin, 14 N. Y., 584; Com- 
 mon V. Bay, 3 Gray, 447: Williams v. Bacon, 2 id., 387; Marsh v. Hyde, 3 id., 
 333; Merton v. Dean, 13 Mete, 385; Lerned v. Wannemacher, 9 Allen, 412; 
 Bourland v. County of Peoria, 16 111., 538; .lohnsou v. Dodge, 17 id., 433; 
 Long V. McLaughlin, 14 Minn., 72 ; Sanborn v. Flagler, 9 Allen, 474. A telegram 
 was sent, and a letter sent the same day, stating that a proposition had been 
 accepted bv telegraph. Held, sufficient subscription to take the case out of 
 the statute' of frauds. Trevor v. Wood, 36 N. Y., 397; Hazard v. Day, 14 
 Allen, 487.
 
 STATUTE OF FRAUD?^, ETC. 'iol 
 
 tract is a torm of tlie assent, aud there is no agreement 
 independent of tlia,t stipulation," 
 
 § 49 J{. The law upon this point has been summarized as 
 follows by Jessel, M. R.:(r) "It comes, therefore, to this, 
 that where you have a ijroposal or agreement made in 
 writing expressed to be subject to a formal contract being • 
 prei)ared, it means what it says ; it is subject to and is de- 
 pendent upon a formal contract being prepared. When it 
 is not expressly stated to be subject to a formal contract 
 it becomes a question of construction, whether the parties 
 intended that the terms agreed on should merely be put into 
 form, or whether they should be subject to a new agree- 
 ment, the terms of which are not expressed in detail." In 
 that case accordingly a writing purporting to be a contract 
 for a loan, but expressed to be "made subject to the prep- 
 aration and approval of a formal contract," was held not to 
 be a concluded contract, (.s-)' 
 
 (r) In VVinu V. Bull, 7 Ch. D.,3-2. See Rum- worth. 31 L. J. Ex., 448; Ileyworth v. Kiii^Mit, 
 mens v. Robins, 3 De G. J. & S., 88; Oxtord 33 L. J. C. P , 298. 
 
 V. Provand, L. R. 2 P. C, 135; Watts v. Ains- (s) See, too, Brian v Swainson, 1 L. R. Ir., 
 
 135. 
 
 ' Several wiitinr/s, jmrol evidence to contract ] AVliere tliere are several ■svrilin.'Ts, 
 one containing the terms of the agi-eement, and the other the signed agreement 
 which directly refers to the othel-s, the paper referred to may be identitied 
 by parol. This must not, however, be understood as enlarging the scope of 
 parol evidence. Clinau v. Cooke, 1 Sch. & Let"., 8;j; Noale v. Buchanan. U 
 Gill. & John., 314; TaUman v. Franklin, 14 N. Y., 584; Inhab of Freeport 
 V. Bartol, 3 Me., 340; Carter v. Shorter, 57 Ala., 253; Rhoades v. Castner. 12 
 Allen, 130. There must be no possi])ility for the substitution of another pajier. 
 where parol evidence is relied upon to connect one writing with another, and 
 the paper referred to must he in being when the agreement is signed. Sinitli v. 
 Arnold, 5 Mason. 416; Waul v. Kirkman, 27 Miss., 32:i; Stocker v. Partridge. 
 2 Rob., 193: Hvde v. Cooper. 13 Rich.'s Eq.. 25U. An imperfect memor.indum 
 was attempted 'to be aided by hand-bills and newspaper notices signeil by the 
 defendant, and exhibited bv him at the time of the sale, in wliich the terms of 
 the sale were stated. Held, that the memonuulum could not be so aided. 
 O'Donnell v. Leeman, 43 Me., 158. 
 
 The memorandum mut<t contain the mbstantial terms of the conirnct.} "The 
 jurisdiction of equity, in specific performance, proceeds on the supposition that 
 the parties have not'ouly agreed, as between themselves, upon every material 
 matter, Ijut that the matters so agreed on are of such a nature, aud the sul)jects 
 of agreement so delineated or iudicated, either directly or by reference to some- 
 thing else, or so raised to view bv legitimate implication, that the court can and 
 may^collect— and in their proper relations— all the essential elements, and pro- 
 ceed intelligentlv and practically in carrying into execution the verv things 
 ao-reed upon, and standing to be performed " Graves. C. J., in Rlanchard v. 
 Detroit R. R. Co , 31 Mich., 43; Blagden v. Bradhear. 12 Yes.. 4U0; Rarkluir^t 
 V. Van Courtlaudt, I John 's Ch., 273; Smith v. Stanton. 15 \ t.. (iSo; Adams v 
 McMillin, 7 Porter, 43; Abeel v. Radclitl'. 13 John , 297; Calkins v. Falk. 39 
 Barb., ()20; Grace v. Denison, 114 Mass.. 1(J; Mayer v. Adrian, 77. >. C. 83. 
 
 Receipt for purchase money, when sufficient] Where the vendor of real estate 
 .signs a receipt for a part of the purchase money, this may constitute a suth-
 
 2o2 lllY ox SI'IX'IFIC PKia-OiniAXCE OF CONTRACTS. 
 
 J< 494. "If," said Jessel, M. R , in another case, "there 
 is a simple acceptance of an offer to pnrchase, accompanied 
 by a statement that the acceptor desires tliat the arrange- 
 ment should be put into sonin more formal terms, the mere 
 reference to such a proposal will not prevent the court from 
 enforcing the final agreement so arrived at. But if the 
 agreement is made subject to certain conditions then speci- 
 fied or to be specified by the person making it, or by his 
 solicitor, then, until those conditions are accepted, there is 
 no linal agreement such as the court will enforce. (?!) 
 
 § 495. In a case in which estate agents received an offer 
 for sale, and replied that they were instructed to accept it, 
 and had asked their principal's solicitor " to prepare con- 
 tract," it was held that notwithstanding these words the 
 acceptance was complete, [u) 
 
 § 490. In the case of Rossiter v. Miller, (?)) the agent of 
 the plaintiffs (vendors) wrote to the defendant (purchaser) 
 reciting a parol offer which the defendant had made to him, 
 and accepting it on behalf of the plaintiffs, and said: "I 
 have requested Messrs. H. & M. to forward you the agree- 
 ment for purchase." The purchaser replied in terms of ac- 
 ceptance ; and it was held by the House of Lords that the 
 contract was complete, notwithstanding the expressed inten- 
 tion to forward a formal contract. 
 
 § 497. The statute requiring that the agreement, or the 
 memorandum or note thereof, shall be signed by the party 
 to be charged therewith, or his agent, and not requiring 
 that it shall be signed by both parties to the contract, it has 
 
 (t) Crossley V. Maycock, L R. 18 Eq., 181. observations ef James, L. J., in Smith v. 
 
 (M) Honnewell v. Jenkins, 8 Ch. D., 70. Webster, 3 Ch. D., 56, and rlistinguish Brif n 
 
 (V) 3 A pp. C. 1124, reversing the decision v. Swainson, 1 L. K. Ir., 135. 
 of the Court of Appeal, 5 Ch. D., G48. Cf. the 
 
 cient memorandum of sale, where it describes the land sold, and states the 
 price. Westervelt V. Matherson, 1 Hoffm.'s Ch., 36; Barrickman v. Kuyken- 
 dell, 6 Black., 21; Ellis v. Deadman, 4 Bibb., 406; Soles v. Hickman, 20 Pa. 
 St., 180; Holman v. Bank of Norfolk, 12 Ala., 369. 
 
 All the terms oftlie contract must be assented to on both sides, in order to take 
 such contract out of the statute by letters. Nesham v. Sclby, L. R., 13 Eq., 
 lUl; aff'd, L. R., 7Ch.,406. 
 
 States in ichich the consideration need not be expressed in the icriting.'\ Illinois, 
 St. of 1877. vol. 3, p. 210, §§1,2; Indiana, St., ch. 66, § 1; Kentucky, K. S., 
 ch. 22 ^ 1; Maine, R. S., ch. 3, § 1; Massachusetts, Gen. St., 1873, ch. 105, 
 ^ 2; :>Iichigan, Comp. Laws, 1871, ch. 100, i< 9; Nebraska, St., 1873, ch. 25, § 24; 
 Virsiinia, Code 1849, ch. 143, |5 1; West Virginia, Code, ch. 98, §1.
 
 STATITK OF FRAI'DS, ETC. 253 
 
 been held botli in the courts of equity, (w) and coninioii 
 law,(cT) that a signature by the party against whom the con- 
 tract is sought to be enforced is sufficient. 
 
 § 498. The statute requires a signature and n(jt a suij- 
 scription ;(?/) therefore all that is requisite to satisfy the 
 statute as to the signature is, that the name be inserted ])y 
 the party in such a manner as to govern and autlienticate 
 the entire instrument. Accordingly, a letter l)eginning 
 "Mr. Foljambe presents his compliments" was held didy 
 signed.(2r) The same was the case where A. wrote, "A. has 
 agreed," etc.;{a) and where B. wrote "A. agreed with B.," 
 etc. (5) An affidavit made by a person has been also held 
 sufficient, (c)' 
 
 (w) See supra, § 440. («) Ogilvie v. Foljambe, 3 Mer., 53 
 
 {X) Kgertonv. Mathews, G East, 307; Allen (o) Propert v. Parker, IK. & Mt , o:-">. 
 
 V. Bennet, 3 Taunt.. 16i); Laythoarp v. Br>- See. also. Western v. KusBell, i \ . & ii , \>, ; 
 
 ant, 3 Hing. N. C, 735. See. the editors' note Morieon v. Tumour, 18 \ es., \,o. 
 
 to Sweet V. Lee, 3 Man. & Gr., 402. {b) Bleakley v. Smith. 11 Sim., I.jO. 
 
 (w) Per Lord Westbury in Caton v. Caton, (c) Barkworth v. louug, 4 Drew., 1. 
 
 L. K. 2 H. L , 142. 
 
 1 States in which the writing must be '^subscribed" by the party to be cJiarged-l 
 Alabama, Code of 1867, g 1862: California, Code, § 1624; :Miclii.iran, Coinp. 
 Laws 1871, ch 166, i^ 8; Minnesota, St. of 1873. vol. 1, pp. 691, 692, ^.^ 6. 12; 
 New York, R. S. (6t'h ed.), vol. 3, pp. 141, 142; Oregon, Gen. Laws 1872, ch. 8, 
 § 775; Wisconsin, St. of 1871, vol. 2, ch. 10(3, g 8. In New York, where the 
 value of the property is more than fifty dollars, the agreement must be signed 
 by both parties. Justice v. Long, 2 Rob. , 333. 
 
 Who must sign the memorandum.'\ It depends entirely upon the language 
 of the statute: where the same provides that it " sliall be signed by the parly 
 to be charged," it is sufficient if the party or his authorized agent, aganist 
 ■whom it is "sought to be enforced, has signe'd it; but in tho.se States where tlie 
 ■writing is recpured to be " subscribed by the party or his agent making the 
 lease or sale," it is indispensable that he should sign it. Ilatton v. Gray. .'» \ in. 
 Abr., 525; Buckhou.se v. Crosby, 2 E(i. C"as. xVbr., 32; Egerton v. Matlicws, b 
 Ea.st, 307; Allen v. Bennett, 3 Taunt . I(i9; Laythropc v. Bryant. 2 Bing. 
 ^N. C), 735; Fararell v. Lowther, 18 111., 252; Ivorv v. Murpliy. ;J6 Mo.. 534: 
 Smith v. Fleck's App., 6!) Pa. St . 474; Perkins v. Adsell. 50 111.. 216; Estes 
 V Furlong 59 id., 298; Barstow v. Grav. 3 .Me., 409: Getehel v. .lewett. 4 id . 
 aoO- ]\I()rin v. Martz, 13 Minn., 198; l)om,dass v. Spears. 2 Nott A: McConl, 
 207' Old Col. R. R. Co. v. Evens, 6 Grav, 25; Fenley v. Stewart. 5 Sandf., 401; 
 Justice v. Lang, 42 N. Y., 493: S. C, 52 id., 323; AVarrall v. Mann. 5 id.. 229; 
 Bleccker v. Franklin. 2 E. D. Smith. 393; Van Sault v. Edwards. 43 Cal.. 4.>S; 
 Ruttenburudi v. :Main, 47 id., 213; Lowrv v. MehalTy. 10 Watts. 387: Tripi) v. 
 Bishop ,56 Pa. St 424; Slater v. Smith, 117 3Iass , 90; ^\ oodward v. Aspm- 
 Avall 3' Sandf., 272; :McCiea v. Purmort. 16 Wend., 460; SlurUy v. ShcrUy, 7 
 Blackf., 452; Cabott v.Cabott, 3 Pick.. 83: Ives v. Hazard, 4 K. 1.. 14; 1 arish 
 V. Koons, Parson's Sel. E(i. Cas., 76. 
 
 The word -'signed" in the statute.] The English statute provides tliat the 
 ■writing .shall be "«V//i(rf." This languaire has been adopted by many of the 
 States, viz.: Arkansas, St.. ch. 73, ?; 1; Illinois. St. (ed of 1874). vol. 3. P- 210; 
 Iowa. Code of 1873. i? 3663; Kentucky, R. S.. ch. 22. S; 1 : Ma.s.s,uhu,setls. H. ^.. 
 ch 105. ij 1; Missouri. St. of 1870. ch. 62, ^ 5; Nebia.ska. M. of 18.3. ch. V). 
 § 5; New Hampshire. St. of 1867. ch. 201. t^ 12: New .lerscy. Nixon s l)|i:. 
 (4th ed.) p. 358. ii 4: North Carolina, Code. ch. 50. ^ U; Ohio, R. b. of 18.0, 
 ch. 47, i5 5: Rhode Island, St. of 1872, ch. 193, ^ 8; Tennessee, St. of 18.1,
 
 254 FIIY ox SPKCirif rERKOiniANCK OF CONTKACTS. 
 
 § 199. Tlie siuiiatm-e must l)e tile actual writing of the 
 ii:niie, or the doinu' of some act intended by the person to 
 bn equivalent to the .-ictual signature of the name, such as a 
 murk by a marksman. Therefore a letter beginning "My 
 dear Kobert," and concluding Avith the words ''Do me the 
 justice to believe me the most affectionate of mothers," was 
 held not to be signed within the statute. (fZ) 
 
 jj 500. A signature in pencil is not necessarily delibera- 
 tive, and may be equally binding within the statute as one 
 in ink.(e) 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 x>ni"chaser, it was held that there was 
 such a ratification and adoption of the printed name as 
 made it a signature, and satisfied the statute. (/') In like 
 manner a stamp may, no doubt, be used for the purpose of 
 signing. (.(/) And the writing of the name of the sender of 
 a telegiam by the telegraph clerk, where the sender hcid 
 himself signed the instructions for the message, has been 
 held to be a good signature by an agent in that behalf. (^)' 
 It seems, too, that the setting down of the initials may be a 
 sufficient signature. (/) 
 
 § 501. It cannot be denied that there is some conflict of 
 authority on the question, how far the writing of his name 
 by the jjarty must be with the intent of signing. There is 
 
 (</^ Selby V. Sflby, 3 Mer., 2. there given from the stamping of Letters 
 
 (e) Lucas v. James, 7 lla., 410, 419. Patent by King William III. ■ 
 
 (/) Schnei'ler v. NOrrls, 2 M. & S., 286; per (A) Goodwin v. Fran, is, L. R. 5 C P., 29.5. 
 
 Lord Elflon in Sauncterson V. Jackson, 2 B & {i) .see Philiimore v. Barry. 1 Ca., 513; 
 
 P., 239; Torret v. Cripps, 27 W. R, 706; 48 Jacob v Kirk, 2 Moo & It., 221; Sweet v. 
 
 L. J. Ch..567. L»'e, 3 Man &Gr., 452; cited at- Leon. Vend., 
 
 (g) Bennett v. Rrnmfift, T, K. 3 C. P., 28. l;6. 
 
 See, also, 1 Mad. Ch., 376, rtiul tue illustration 
 
 vol. 1. § 1?5S; Texfus, rii.sh.'s Disj., p. , g 3875; Vermont, Stat of 1870, ch. 
 6(), § 1; Virginia, Code of 1849, cli 143, § 1; West Virginia, Code, ch. 98, § 1. 
 As to the pldce of the xif/wiiure. it may ])e in any part of the writing. The name 
 of tlie party must be so affixed as to autlientieate tlie instrument; it must, how- 
 ever, he acUially wrUten, or something done equivalent thereto. Hawking v. 
 Chase, 19 Pick., oo2; .McCounell v. Brillhart. 17 111 , 354; Higdon v. Thomas, 
 1 Har. & Gill, 13'.'; Auder.son v. Harrold, !0 Ohio, 399; Wright v. King, Har- 
 ring. (Mich.) St., 1:.'; Wise v. Ray. 3 Green (Iowa), 430; Pennymau v. Hart- 
 sorn. 13 Mass., 87; Cabot v. Haskins, 3 Pick., 83. 
 
 T/ie word "subscribed" in the statute.'\ In a State wiiere the statute provides 
 that the writing shall be '"subscribed" bj' the party to be charged, in such case 
 the name must be actually signed. There must l)e a manual subscription at the 
 end of the writing Davis v. Shields, -'(J Wend., 341; rev'g S. C, 24 id., 323; 
 James v. Patten, \\ N. Y., 9; rev'g S. C , 8 Barb., 344; DeBerski v. Paige. 47 ' 
 id., 172; Vielie v. Osgood, 8 id., 130. 
 
 ' See, also, Cabot v. Haskins, 3 Pick., 88; C owrie v. Remfry, 10 Jur., 789.
 
 STATUTE OF FRAUDS, ETC. 255 
 
 authority for the proposition that such a writing, even with 
 a diflt'erent intent, mav amount to a binding signature. "It 
 has been decided," said Lord Eklon (then Lord Chief Jus- 
 tice of the Court of Common Pleas), "that if a man draw 
 u^D an agreement in his own hand-writing, beginning, 'I, 
 A. B., agree, etc' and leave a place for a signature at the 
 bottom, but never sign it, it may be considered as a note 
 or memorandum in waiting within the statute. And yet it 
 is impossible not to see that the insertion of the name at 
 the beginning was not intended to be a signature, and that 
 the paper was meant to be incomijlete until it was further 
 signed ;"(y) and in a subsequent case his lordship said: 
 "It is true, that, where a party or principal, or person to 
 be bound, signs as, wdiat he cannot be, a witness, he can- 
 not be understood to sign otherwise than as principal." (/t) 
 But in other cases the courts have had regavd to the inten- 
 tion of the writing alleged to operate as a 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 ;(Z) and where the names were written at the begin- 
 ning of a paper embodying a contract w^hich concluded with 
 the words "as witness our hands," and no signatures fol- 
 lowed, it was considered by the court of common pleas not 
 to satisfy the statute, because the concluding w^ords evi- 
 dently show^ed an intention that the paper should be signed 
 at the foot.(?;^) 
 
 § 502. Some points, however, are clear. It is clear that 
 the incidental introduction of his name by the party to be 
 charged for some distinct and different purpose will not 
 do : as where A. wrote on a memorandum for a lease the 
 words "the rent to be paid to A.:" it was held to be no 
 signature by him.(??)' 
 
 (j) In Saunderson v Jackson, 2 B. & P., the court doubted the above dictum of Lord 
 
 239; ruterrins apparently to Knight v. Cucli- Eldon in Coles v. Trecothick; but see the 
 
 lord, 1 Esp , IDiKEyre, C. J.). observations of Lord St. Leonards, \ end., 
 
 (^■) Coles V. Trecothick, 9 Ves., 25L In 116. 
 Welford V. Beazeley (3 Atk , 503) It appears (m) Hubert v. Treherne, 3 Man. & C^r ,4d, 
 
 that tne person who subscribed the articles S. C, s n., Hubert v. Turner. 4 scott (N. h.), 
 
 as witness, and was held bound by the signa- 486. Cf Reg. v. Tart, 2b L. J. ^i- ^l . ' '^ 
 ture, was not a party to the articles. (n) Stokes v. Moore, 1 Cox, 219, Hawkins 
 
 (I) Gosbell V. ArchtT, 2 A. & E., 500, where v. Holmes, 1 P. U ms , , -0. 
 
 1 Geary v. Physic, 1 B. & Cr., 234; Draper v. Pattina, 2 Spears, 292j 
 7. Clayson, 12 John., 102; McDowel v. Chambers, 1 Strobh's Eq., 317. 
 
 Merritt
 
 2.")6 FKY ON SPECIFIC PERFORMANCE OF CONTRACTS. 
 
 "I adhere,'' said Lord Selborne in tlie House of Lords, (o) 
 "to what I said, when sitting in the court of chancery, in 
 the case of Jervis v. Berridge,(^) that the Statute of Frauds 
 'is a weapon of defense, not offense,' and 'does not make 
 any signed instrument a valid contract by reason of the sig- 
 nature, if it is not such according to the good faith and real 
 intention of the parties.' " 
 
 § 503. The same principle was affirmed by the House of 
 Lords in the case of Caton v. Caton,(»7) where specific per- 
 formance was sought of certain heads of arrangement set 
 out in a written memorandum and there called "conditions 
 as a basis for a marriage settlement mutually agreed upon 
 in the event of marriage between the under-mentioned par- 
 ties ;" the parties so referred to being the plaintiff, then a 
 widow, and the writer of the memorandum, who subse- 
 quently becama her husband, and whose estate was sought 
 to be charged. The document w^as not signed by the writer, 
 but his name and initials appeared incidentally in several 
 parts of it; and it was argued for the plaintiff that his 
 name and initials, occurring as they did, below the words 
 "undermentioned parties," were sufficiently connected with 
 those words to enable the court to treat the document as a 
 memorandum signed by him within the statute. The argu- 
 ment, however, was unsuccessful. "H," said Lord West - 
 bury, in the course of his speech, (r) "a signature be found 
 in an instrument incidentally only, or having relation and 
 reference onl}^ to a portion of the instrument, the signature 
 cannot have that legal effect and force which it must have 
 in order to comply with the statute, and to give authen- 
 ticity to the whole of the memorandum." 
 
 § 504. On the other hand, it seems that if there be an 
 actual signature written with the intention of signing or 
 authenticating the document, it is not the less operative 
 because the signature was attached for a purpose different 
 from that of satisfying the statute. (5) Thus, in a recent 
 case in the Queen' s Bench Division, the signature by the 
 chairman of a board of directors in their minute book, pur- 
 suant to the 67th section of the companies act, 1862, of a 
 resolution of the board to the effect that a particular draft 
 
 (o) In Hu88ey v. Horne-Payne, 4 App.,323. (r) L. R. 2 H. L., 143. 
 
 <;)) L. R. 8 <Jh., 360. (s) See, however, per Lord Selborne la 
 
 iq) L. R. 2 H. L., 127. Hussey v. Horne-Payne, 4 App. C, 323.
 
 STATUTE OF FRAUDS, ETC. 257 
 
 contract slionid be engrossed and executed, was held to 
 operate as a sufficient signature within the statute, so as to 
 bind the company to an admission of the contract, notwith- 
 standing that the chairman' s signature had been put to the 
 minute merely in order to verify its accuracy and \^ithout 
 any intention of attesting or verifying the contract. (^) 
 "The question," said Lush, J., in delivering the judg- 
 ment of the court, "is not what its [the minute's] object 
 was, but whether it was a written and signed statement of 
 the contract. "(i^) 
 
 § 505. But in another case, that of Eley v. The Positive 
 Government Security Life Assurance Co.,(?)) the question 
 being whether a clause contained in the articles of associa- 
 tion of a company, to the effect that a particular person 
 should be the solicitor of the company, was a contract with 
 this person, the judges of the exchequer Division held that 
 if it was such a contract at all, the signature affixed to the 
 articles having been affixed alio intuitu could not satisfy'' 
 the statute. In the court above, (-w) the case was disj^osed 
 of irrespective of the statute, on the ground that the arti- 
 cles of association were a matter between the shareholders 
 inter se or the shareholders and the directors, and did not 
 create any contract between the solicitor and the com- 
 pany. 
 
 § 506. It is submitted that no writing of a name at the 
 beginning, or end, or in the course of a paper, is a signature 
 within the statute, unless the court conclude that it was 
 there placed with the intention of authenticating the entire 
 paper ; but that if there be such a writing of a name, it is 
 immaterial whether the signature was attached with the in- 
 tention of evidencing the contract or for any other purpose 
 whatever. All motives, objects and purposes beyond that 
 of authenticating the paper are immaterial, (a;) 
 
 § 507. Where the contract purports to be signed by an 
 agent, it must be alleged and proved by the plaintiff that 
 the person who signed as agent was authorized to act as 
 agent for the purpose of concluding a binding contract of 
 
 {t} Jones V. victoria Graving Dock Co., 2 iw) 1 Ex. D., 88. , . _ „ 
 
 ■Q B. D ,314 (X) See the jutlgments in Bailey v. Sweet- 
 
 («) 2 Q. B D , 324. ingi 9 C B. (N. S.), 843. 
 {v) 1 Ex. D., 20. 
 
 17
 
 258 FKY ox SPECIFIC PEKF0K5IANCE OF CONTKACTS. 
 
 the nature of tlie contract set up.(2/)' It is not enougli 
 in tlie case of a sale that the agent Avas appointed to nego- 
 tiate for a sale : it is not enougli that he was appointed as 
 
 (y) Blore v. Sutton, 3 Mer.,'237; Rldjcway (Wood, V. C); Rice v. O'Connor, 12 Ir. Ch. 
 V. *Vharton, 3 De U M. & G., U77; 6 H. L. C, R., 424; overruling 8. C, 11 id., 510. 
 238; Firth v. Greenwood, 1 Jur. (N. S.). 8u6 
 
 ' Agent's Hiynaiurc.'] The ageut must be a third person to the agreement. 
 One of tlie parties, even bj' consent, cannot act as the agent of the other. The 
 same person can act as the agent of both parties. One partner can sign for the 
 firm upon its business. Wright v. Danuah, 2 Comp., 20:J; Bailey v. Ogden, 3 
 John.. 417; Lees v. Nuttall, 1 R. & M , 53; Lowther v. Lowther, 13 Ves., 103; 
 Reed v. Norris, 2 ]\I. & C, 374; Copeland v. Mer. Ins. Co., 6 Pick., 198; Reed 
 V. Warner, 5 Paige's Ch., 650; Bartholomew v. Leach, 7 Watts, 472; N. Y. C. 
 Ins. Co V. Nat'l Pas. Ins. Co., 20 Darb., 470; Button v. Williams, 35 Ala., 
 503; Tufts v. Plymouth Gold Mining Co., 14 Allen, 407; Chase v. City of 
 Lowell, 7 Grey, 33: -Johnson v. Trinity Church Soc , 11 Allen, 123; Kyle v. 
 Roberts, 6 Leigh, 445. 
 
 Aj)poiniment of agent.] The agent must have full power, by signing on be- 
 half of his principal, to bind him. Russell on Factors and Brokers, 75. This 
 power must, however, be clearly evidenced. Roby v. Cossit, 78 111., 638. Un- 
 less the statute particularly directs that it shall be in some other manner, the 
 appointment of an agent may be by parol. Weller v. Heudon, 5 Vin. Abr., 
 524, PI., 45; Coles v.^Trecothick, 9 Ves., 234, 250; Clinan v. Cooke, 1 Sch. & 
 Lef., 22; Tolhott v. Bowen, 1 A. K. Marsh., 434; Merritt v. Cla-son, 12 John., 
 102; McWhorter v. McMahan, 10 Paige's Ch., 386; Irvin v. Thompson, 4 Bibb., 
 295; Shaw V. Nudd, 8 Pick., 9; Hawkins v. Chase, 19 id., 502; Mortimer v. 
 Cornwell, 1 Hoflfm. Ch., 351; McConnell v. Brilhart, 17 111., 354; Taylor v. 
 Merrill, 55 111., 52; Dykers v. Townsend, 24 N. Y., 57; Moody v. Smith, 70 
 id., 598. The agent's authority must be in writing in the following States: 
 California, Code. § 1741; Illinois, St. (ed. of 1874), vol. 3, p. 210, §g 1, 2; 
 Michigan, Com. Laws of 1871, vol. 2, p 1455, ch. 166, § 8; Nebraska, Gen. St., 
 1873, p. 392, ch. 25 ; see, also, Morgan v. Bergen, 3 Neb , 309 ; New Hamp- 
 shire, Gen. St., 1867, ch. 201, § 12; Pennsylvania, Parrish v. Koons, Parson's 
 Sel. Cas.. 78; Home v. Fricke, 6 Serg. & Rawle, 90; Twitchell v. Philadel- 
 phia, 33 Pa. St., 212; New York, McComb v. Wright, 4 Johus.'s Ch., 659. The 
 agent's authority will be strictly construed. Bissell v. Terry, 69 111., 184. 
 
 WJiere the agent's act is sanctioned.'] Best, J., said in Maclean v. Dunn, 4 
 Bing., 722, "It has been argued that the subsequent adoption of the contract 
 bj' Dunn, will not take this case out of the operation of the Statute of Frauds; 
 and it has been insisted that the agent should have his authority at the time the 
 contract is entered into. If such had been the intention of the legislature, it 
 would have been expressed more clearly. But the statute only requires some 
 note or memorandum, in writing, to be signed by the party to be charged, or 
 his agent thereto lawfully authorized, leaving us to the rules of the common 
 law as to the mode in which the agent is to receive his authority. Now, in all 
 other cases, a subsequent sanction is considered the same thing, in effect, as 
 assent at the time, and, in my opinion, the .subsequent sanction of a contract, 
 signed by an agent, takes it out of the operation of the statute more satisfac- 
 torily than an authority given beforehand. Where the authority is given be- 
 forehand, the party must trust to his agent. If it be given subsequently to the 
 contract, tho- party knows that all has been done according to his wishes " 
 See, also, Ridgway v. Wharton, 3 De G. M. & G., 677; Clark v. Riemsdyk, 9 
 Cranch, 346 ; Lawrence v. Taylor, 5 Hill, 107. 
 
 The agent may sign in his own name.] The name of the principal need not 
 appear. Yerby v. Grigsly, 9 Leigii, 387; Stackpole v. Arnold, 11 Mass., 27; 
 Rice V. Gove. 22 Pick.. 158; Minard v. Mead, 7 Wend., 68; Spencer v. Field, 
 10 id., 87; Pentz v. Stanton, id , 271, Ford v. Williams, 21 How , 287; Dykers 
 V. Townsend, 24 N. Y., 57; Coleman v. First Nat. Bank, 53 id., 3^3; Ea.stern 
 R. R. Co. v. Benedict, 5 Gray, 506; Walsh v. Barton, 24 Ohio St., 28; White v. 
 Proctor, 4 Taunt., 209; Williams v. Bacon, 2 Gray, 387.
 
 STATUTE OF FRAUDS, ETC. 259 
 
 the person to whom intending purchasers were to apply to 
 treat and see the prox^erty :{z) and further, it has been held 
 that a written request by the owner of freeholds to procure 
 a purchaser for them, aud to advertise them at a certain 
 price, is no authority to enter into an open contract of sale, 
 and is probably no authority to contract for sale at alL((i) 
 
 § 508. As the statute does not require an agent for sign- 
 ing a contract to be appointed in writing, the general law 
 applies in such cases, and consequently the appointment 
 may be made as well by parol as by writing. (&) 
 
 § oOd. The court may conclude in favor of the agency in 
 any of the following ways : 
 
 (1) The court may come to this conclusion from direct 
 evidence, oral or written, of the api^ointment ; or, 
 
 (2) By inference from the acts, letters or conduct of the 
 parties, or from their relations to one another, or, in short, 
 from any evidence legitimately raising the inference of 
 agency. (,c)' 
 
 (2) Godwin v. Brind, L. R. 5 C. P., 299 n. Pilley, L. R. i Ch., 548; Cave v. Mackenzie, 
 
 (a) namerv. Sharp, L. R. 19 Eq., Iu8. 46 L. J. Ch., 564. 
 
 (b) Waller v llendou, 5 Vin. Abr., 524, pi. (c) Dyas v. Cruise, 2 Jon. & L., 461; Sharp 
 45; coles v. Trecothick, 9 Ves., 234, 250; v. Milligan, 22 Beav., 606; Pole v Leask, 28 
 Clinan v. Cooke, 1 Sen. & Lef., 22; Emmer- id., 562; affirmed in D. P., 33 L. J. Gh., 155; 
 son V. Heelis, 2 Taunt ,3S; per Timlal, C. J., Rossiter v. Miller, 3 App. C, 1124 
 
 in Acebal v. Levy, 10 Bing , 378; Heard v. 
 
 1 This principle lias been followed in numerous cases in this country. Yerley 
 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 Ves., 250, Lord Eldon 
 distinctly said that an agent need not be authorized in writing, in contracts re- 
 lating to real estate. Words to the same effect are used in Clinan v. Cooke, 1 
 Sch.^fc Lefr., 81; aud 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, requires the 
 instrument to be in writing in order to bind the party, he may, without writing, 
 authorize an agent to sign'it in his behalf, unless the statute positively requires 
 that the authority should be in writing. Story on Agency, ^ 50; 2 Kent (5th 
 ed.), 613, 614; Lhitty on Contracts (6th Am. ed.), 210, 211, note and cases 
 cited Shaw v. Nudd, 8 Pick., 9; Yerley v. Grigsby, 9 Leigh, 387; Turnlndl 
 V. Trout, 1 Hall, 3^6; Ewing v. Tees, 1 Binn., 46U; Talbot v. Boweu, 1 Marsh. 
 (Kv ) 43(1; 1 Sug. Yen. and Purch (6th Am. ed.), 132, 186; Mortimer v. Corn- 
 Avell 1 HofE. Cli., 351; Mortlock v. Buller, 10 Yes., 311; Johnson v. Dodge, 17 
 111 . '433. In Worrall v. Dunn. 1 Seld., 229, it is decided by the Court of Ap- 
 peals that, where an agent, authorized by parol to contract for his principal, 
 e.xecutes an atireemeut, in the name of the principal, nnckr seal, such agree- 
 ment is binding on the principal as a simple contract. That a contract for the 
 sale of lands need not be under seal, but merely in writing; and th)*t the 
 authority of the agent, to bind his principal, in case of this kind, may well be 
 conferred by parol. And in McWhorter v. jMcMahan, 10 Paige, 386, a case 
 decided bv Walworth, 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 bv the Statute of Frauds. An authority to convey 
 lands is required by the statute to be in writing, but clearly not of an authority 
 to ccmtract. to convey." Lawrence v. Taylor, 5 Hill, 107. But whether a con- 
 tract sio-ned by one' partner, in behalf of himself and copartners, for the sale
 
 260 FRY ON SPECIFIC PEKFORMANr K OF CONTRACTS. 
 
 (3) An alleged principal, though he may in fact have 
 given no authority to the alleged agent, may l)\' representa- 
 tions which he has made to the other party, or by inducing 
 
 of real estate, can be enforced against the purchaser, under the Revised Statutes 
 of New York, was thought in More v. Sraedburgh, 8 Paige, 600, to be ques- 
 tionable. A reference to the statute, however, will show that the agreement 
 or memoraTidum must be subscribed by the party 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 to execute a deed 
 or instrimien't under seal, must be conferred by an instrument 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 transac- 
 tions I think the doctrine, as it now exists, may be stat(!d as follows, viz. : If 
 a conveyance or any act is required to be by deed, the autliority of the attorney 
 or a"-ent to execute" it must be conferred by deed; but if the instrument or act 
 wouTd 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 con- 
 fined 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 founda- 
 tion' of reason or principle. The whole authority of a partner to act for his 
 copartners, and to bind them and their interest in the copartnership 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 direc- 
 tion of such grantor, is a sufficient 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 little perplexity. 
 "This point," says Mr. Parsons, in a learned note on the subject, "upon which 
 there seems to be no express decision, arose in the recent case of Wood v. Good- 
 ridge, 6 Cush., 117. This was the case of a mortgage deed and note made under 
 a power of attorney 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 sim- 
 ply writing the principal's name at the foot. It was not necessary to decide 
 the point, the court being of the opinion that the power, though very general 
 in its terms, 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, .1., signified an 
 inclination to hold, that where an attorney signs the name of Iiis principal 
 to an instrument which contains nothing to indicate that it is executed by at- 
 torney, and without adding his own signature as such, it is not a valid execu- 
 tion. In another case a deed was signed in the presence and by the direction 
 of P. 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 princi- 
 pal, should have had a power under seal; but the deed was held valid. Gard- 
 ner V. Gardner. 5 Cush., 483. In delivering the judgment in this case, Shaw, 
 C. J., said : "The name being written by another band, in the presence of the 
 grantor, and at her request, is her act. The disposing capacity, 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 weakness, instead of 
 her own, to do the physical act of making a written sign. Whereas, in exe- 
 cuting 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
 
 STATUTE OF FRAUDS, ETC. 261 
 
 him to lay out money on the faith of the alleged agency, be 
 estopped from denying the agency. (^Z) 
 
 (4) Ratification may take the place of agency. Here the 
 maxim applies, omnls ratUtahitlo retrotrahitur et mandato 
 CBqulparatur, and, therefore, the subsequent ratification of 
 a contract, entered into by a person then unauthorized as 
 agent, takes it out of the statute ;(e) and this ratification 
 need not be by any express act ; it is enough if the party 
 whose authority is required take the benefit of the contract, 
 or even if, with a full knowledge of it, he passively acqui- 
 esce in it for a length of time longer than that reasonably 
 to be allowed for the expression of dissent. (/) But it will 
 not be implied from vague expressions to a third person. (^)' 
 
 (d) Ridgway v. Wharton, 6 H. L. C, 238, (/) Rigg v Strong, 3 Sm. & G., 592; aflfd 
 297; per Lord Oranwortb in Ramsden v. 6\V. R.,536; Rice v. O'Connor, 12 Ir. Ch. R., 
 Dyson, L. R. 1 H. L., 158. 424, 434. And see per Lord Hatherley in 
 
 (e) Maclean v. Dunn, 4 Bing., 72i; Ridgway Phillips v. Homfray, L. R. 6 Ch., 778 
 
 V. Wharton, 6 H. L. C , 238, 296. See, too, (g) Ridgway v. Wharton, 6 H. L. C, 238. 
 Fitzmaurlce v. Bayley, 6 El. & B1.,86S; 8 id., 
 664; 9H. L. C.,78. 
 
 question 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 
 sufficient. From a passage from Dixon on Title Deeds, vol. 3, p. odi, it may 
 be inferred that the author's view is similar to tliat now taken by the supreme 
 court of Massachusetts. On the other hand, the books contain numerous iiiti 
 raations 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. ('id ed ), 
 298, 294; Smith's Merc. Law, B. 1, 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; Cherry V. Heuning, 4 Excheq., 631; Shepp. Touch, by Preston, oii. 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." 
 
 1 The case of Montacute v. Maxwell, 1 P. Wms., 618, is an important case on 
 this subject. The plaintiff brought a bill against the defendant, her husband, 
 setting forth that the defendant, laef ore her intermarriage with him, promised 
 that she could enjoy all her own estate to her separate use; that he had agreed 
 to execute writings to that effect, and had instructed counsel to draw such 
 writings, and that when they were to be married, the writings not being per- 
 fected, the defendant desired that this might not delay the match, because, his 
 friends being there, it inight shame him; but engaged tbat, upon his honor, 
 she should have the same" advantage of an agreement as if it were in writing, 
 drawn in form, by counsel, and executed ; whereupon the marriage took place. 
 To this bill the defendant pleaded the statute of frauds. And the Lord Chan- 
 cellor said : " In cases of fraud, equity should relieve, even against the words of 
 the statute, as if one agreement in writing should be proposed and drawn, and 
 another fraudulently and secretly brought in and executed in lieu of the former, 
 in this or such Uke cases of fraud, equity would relieve; but where there is no 
 fraud, only reiving upon the honor, word or promise of the defendant, the 
 statute making'these promises void, equity will not interfere; nor were the in-
 
 262 VKY ox SPECIFIC PERFORMANCE OF CONTRACTS. 
 
 §.110. For a valid ratification it is necessarj- that the 
 person wlio ratifies the contract should have been in exist- 
 ence at its date ;{7i) and further, that he should be the per- 
 son in whose name the agent has professed to act.(/) Thus, 
 where the pretended agent professed to contract in waiting 
 on behalf of a married woman, it was held that the husband 
 could not ratify the contract, as he had not been named as 
 a principal, (y) 
 
 § 51 1. It is now clearly decided that, at sales by auction, 
 auctioneers are agents of the purchaser as well as of the 
 vendor. (A-) This conclusion seems to have been arrived at 
 from the necessity of the case, and the peculiar nature of 
 the mode of sale.(Z) " The nature of the proceeding by auc- 
 tion," said Lord Langdale, M. R.,(?/i) " the bidding for the 
 purpose of making the purchase, the necessity of making a 
 statement of the bidding, the direction to the auctioneer to 
 write down the bidding, which is perhaps involved in the 
 very process of bidding, and some other circumstances 
 afford intelligible ground for the decision in Emmerson v. 
 Heelis,(7?.) and the approbation whicli has since been be- 
 stowed upon it." Where this necessity does not exist, as 
 in a subsequent purchase in private from the auctioneer, no 
 such agency arises, (o)' But where, after an unsuccessful 
 
 (h) Kelner v. Baxter, L. R. 2 C. P.. 174; worthy v. Schofield, 2 B & C.,945; Edfi;ell v. 
 
 SCf.tt V. Lord Ebury, id., 255; Molhado v. Day, L. R 1 C P.. SO, 84; cf. Bartlett v. Pur- 
 
 Porto Allegre Railway Co., L. R. 9 C. P., 50.3. nell. 4 A. & E , 792. 
 
 (I) Wilson V. Tumman, 6 Man. & Gr.. 236; (l) (iosbell v. Archer, 2 A. & E., 500; Earl 
 
 per Parke, J., in Vere v. Ashby, 10 B. & C , of Glengal v. Barnard. 1 Ke , 7S8 ; affirmed in 
 
 298. D. P. as Lord Glengal v. Thynne, St. Leon. 
 
 (i) Saunderson v. Griffiths, 5 B. & C, 909; Law of Prop.. 56. 
 
 and see Brook v. Hook, L R 6 Ex., 89. <m) In Earl of Glengal v. Barnard, 1 Ke., 
 
 (k) Emmerson v.Heelis, 2 Taunt., 38; White 788 
 
 V. Proctor, 4 id., 209; Kemeys v. Proctor, 3 (n) 2 Taunt., 38. 
 
 V. & B, 57; S. C, 1 J. & ^.,3.50; Buckmaster (o) Mews v. Carr, 1 H. & N , 484. 
 V. Harrop, 7 Ves., 341 ; S. C, 13 id , 456; Ken- 
 
 structions given to counsel, for the preparing of writings, material, since, after 
 tliev were drawn and engrossed, the parties might refuse to execute them." 
 But an entirely different view of a very similar case, and more in conformity 
 with Dundass v. Dutens, was expressed, in this country, by Mr. Justice Story, 
 in Jenkins v. Eldridge, 3 Story, 291. There, it was said that, where instruc- 
 tions are given and preparations made f<n- marriage settlements, and the woman 
 is persuaded by the man to marry, trusting tj his verbal promi.se to complete 
 them, equity ought to relieve and compel performance. 
 
 ' 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 sufBcicut note in writing of the 
 agreement, signed by a person thereto authorized by the purchaser, within the 
 meaning of the Statute of Fraiids. Smith v. Jones, 7 Leigh, 165; Episcopal 
 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 requi- 
 site. Bleeckcr v. Franklin, 2 E D. Smith, 93. But to render an auctioneer's 
 entry of sale at auction a compliance with the Statute of Frauds, he must be an
 
 STATUTE OF FEAUDS, ETC. 263 
 
 sale by auction, but before the auctioneer had left the ros- 
 trum, a iDurchaser ascertained from the auctioneer's clerk 
 the amount of the reserved bidding, and agreed to take the 
 propert}^ at that jDrice, and signed a bidding paper for it, 
 but subsequently denied the authority of the riuctioueer to 
 act as the vendors' agent, it was held impossible for him 
 to contend that the sale ought not to be treated as one by 
 auction. (^)* 
 
 {p) Else V. Barnard, 28 Beav., 228. 
 
 authorized public auctioneer. The validity of an entry in an auctioneer's book 
 applies equally to sales of real estate and personal property. Anderson v. Chick, 
 1 Bailey's Ch., 118. Thus, in Bailey v. Leroy, 3 Edw. Ch., 514, a person pur- 
 chased 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 auctioneer'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 memorandum 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 therewith, or by his agent, a 
 written memorandum of the terms of a sale made by 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 insuflicient under the statute. Den- 
 nison v. Carrahan, 1 E. D. Smith (N. Y.), 144. A commissioner appointed by 
 the court is likewise the agent of both parties; and a memorandum made by 
 him of the sale is a sufficient memorandum in writing. Jenkins v. Hogg, 3 
 Const Rep., 821. The same remark applies also to masters in chancery. Gor- 
 don V. Sims, 2 McCord, 154. 
 
 1 Public sale; signature by auctiotieer.] Story, J., in Smith v. Arnold, 5 
 Mason, 414, said : "It appears to me, speaking with all due respect, to have 
 done much to destroy the salutary operation of the Statute of Frauds. B}' the 
 common law, if an agent is to execute a deed for his principal, his authority 
 must be of a high nature. It must be by deed. By analogy, it would have 
 seemed convenient, if not indispensable, to have held that where the statute to 
 prevent frauds and perjuries required a contract to be in writing, if executed 
 by an agent his authorit}^ should be in writing also. That the auctioneer 
 is agent" of the seller is' clear. That he is also the agent of the buyer 
 is not very clear, and is a conclusion founded on somewhat artificial rea- 
 soning. But the doctrine is now established, and the best reason in sup- 
 port of it is, that he is deemed a disinterested person, having no_ motive to 
 mistate the bargain, and enjoving equally the confidence of the parties." See, 
 also, ]\Iacomb v. Wright, 4 John.'s Ch., 659; Hinds v. Whitehouse, 7 East, 558; 
 Shansfield v. .Johnson, 1 Esp., 101; Walker v. Constable, 1 Bos. & Bell, y06; 
 Cordon v. Sims, 2 JlcCord's Ch., 164; Adams v. Mc.Vlillin. 7 Portor, 78; An- 
 derson V. Chick, Bailey's Eq., 118; Endicot v. Perry, 14 Sm. ct Marsh., 157; 
 White V. Crew, 16 Ga., 41G; White v. Watkins, 23 Me., 423; Simon v. .Motives, 
 3 Burr., 1921; Gill v. Bicknell, 3 Cush., 358; Hart v. Woods, 7 Blackf., 568. 
 
 The memorandum made by the aucUoneer must, in plain terms, refer to the 
 conditions of the sale, and must state all the material terms of the agreement. 
 Morton v. Dean, 13 Mete, 385; Kenworthv v. Schofield, 2 B. & C, 945; 
 Nichols V. Johnson, 10 Conn., 193; Davis v. Shields, 36 Wend.. 341; :Meyer v. 
 Adrian, 77 N. C, 83 ; Pinckney v. Hagadorn, 1 Duer, 89.
 
 264 FRY ON SPECIFIC PERFORMANCE OF CONTRACTS. 
 
 § 512. In order to prove that the auctioneer on a sale by- 
 auction was the vendor's agent, it is only necessary to prove 
 by whose instructions he acted \{q) and it seems that after 
 the lianmier has fallen the vendor is not entitled to revoke 
 the authority of the auctioneer, although, at the time 
 when the vendor seeks to revoke it, no written contract has 
 been signed, (r) 
 
 § 513. As an agent may not, without express authority, 
 delegate his authority to another, an auctioneer cannot 
 without permission appoint another to conduct the sale,(.s) 
 and, for the same reason, the clerks of agents are not agents 
 for the principal, unless the principal has assented to their 
 acting as sach.(^) Tiie auctioneer's clerk at an auction will 
 be held to have been the purchaser's agent for the purpose 
 of entering his name at the time of the sale in a book,(z/) if 
 it can be shown that the purchaser, by word, sign or other- 
 wise, authorized the making of such entry : and even in the 
 absence of any -pvoot of such authority, there appears to be 
 general custom investing the auctioneer's clerk with it.(«)' 
 
 § 514. In one case, a solicitor employed in a marriage- 
 treaty, who drew up a minute of the arrangement came to 
 at an interview, was held not to be an agent lawfully author- 
 ized to bind the parties, so as to make the insertion of their 
 names in the minute a signature within the statute ;('?«) nor 
 has a solicitor, instructed on behalf of one of the parties to 
 prepare a formal contract, authority to act as his client's 
 
 iq) Consider Pike v. Wilson, IJur. (^. S.). see Rishtonv. Whatmore,8Ch.D.,4G7; infra, 
 
 59. S 525. 
 
 (r) Day V. Wells, 30Beav., 220. See further, (v) Bird v. Boulter, 4 B. & Ad., 443; Pierce 
 
 as to the auctioneer's authority, McMullen v. v. Corf, L. R. 9 Q. B , 210. 
 
 Helberg, I. R. 6 C. L., 465; Brett v. Clowser, (tv) Eari of Glengal v. Barnard, 1 Ke., 769; 
 
 5 C. P. D. , 386 affirmed in D. P. as Lord Glengal v. Thynne, 
 
 (*) Dart, Vend. (5th ed.), 178. fet. Leon, Law of Prop., 56. See, also, De 
 
 (t) Coles V Treoothick, 9 Ves., 234. Of. Biel v. Thomson, 3 Beav , 469; Hammersley 
 
 Bird V. Boulter, 4 B. & Ad., 443. v. De Biel, 12 CI. & Fin., 45. 
 
 (m) As to what such entries must contain, 
 
 ^ 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, 165. 
 
 Andioncefs clerk, signature by. ^ An auctioneer's clerk cannot sign for his 
 employer. This was Held in a case where the clerk signed, not having specially 
 obtained authority, and there was no proof of assent. Meadows v. Meadows, 
 3 McCord, 458; Enty v. Mills, 1 McMull., 453; Cristie v. Simpson, 1 Rich., 
 407; Carmack v. Masterson, 3 Stew. & Port., 411 ; Rice v. Durin, m Barb., G47, 
 Where the auctioneer has made a proper entry on the day of sale, and the same 
 has been adjourned, he need not repeat the entry on the adjourned day. Price 
 V. Durrin, SG Barb., 647.
 
 STATUTE OF FRAUDS, ETC. 2G5 
 
 agent for the purpose of signing any memorandum or note 
 of the contract within the statute, (a?) 
 
 § 515. A telegraph clerk despatching a message from 
 written instructions of the party sought to be charged has 
 been held the agent of such party for the purpose of signing 
 his name in the telegraphic message. (?/) 
 
 § 516. The authority of an agent may be revoked at any 
 time before the authority is acted ui)on, and such revoca- 
 tion may be proved by parol. (2:) But where the agent has 
 been habitually employed in that capacity, and so held out 
 by the principal, the latter will be bound by his acts if 
 within the scope of his former authority, until reasonable 
 notice has been given of its revocation, (a) 
 
 § 517. The death of the principal works an instant revo- 
 cation of an agent's authority, and any contract made by the 
 agent after, though without notice of the death, is void. (5) 
 
 § 518. The question of agency is one of fact, and comes 
 accordingly under the rules now applicable to such ques- 
 tions, (c) In former times the court of chancery has directed 
 an issue to try the question of agency, {dy 
 
 § 519. It follows from what has already been said that 
 letters passing between the parties themselves, or between 
 the party sought to be charged and some third party, even 
 including amongst such third x)arties the writer's own agent, 
 may in many cases be used for the purpose of completing or 
 supplying such evidence of the contract as the statute re- 
 quires. It may be convenient to consider these cases under 
 the following heads, viz.: (1) where there is an unsigned 
 writing containing all the terms of the contract, and the let- 
 ters are adduced as incorj)orating that Avriting, and furnish- 
 
 (X) Smith V. Webster, 3 Ch. D., 49. See, too, even to persons who have no notice or means 
 
 Forster v. Rowland, 7 H. & N., 103. Distln- of knowing of the revocation; seeFucntes v. 
 
 guish Jolliflfe V. Blumberg, 18 W R., 784. Montis, L. R. 3 C. P., 268; S. C, L. R. 4 C. 
 
 (y) Godwin v. Francis, L. R 5 0. P., 295. P.. 93 
 
 (2) Vynlor's Case, 8 Co., 83;| Manser v. Back, (b) Watson v. King, 4 Camp., 272; Smout v. 
 
 6 Ha,, 443. Ilbery, 10 M. & W., 1; Carr v. Livingston, 35 
 
 (a) Trueman v. Loder, 11 .\. & E., 589; E.x Beav., 41. 
 
 parte Swan, 7 0. B. (N. S.). 400, 432 Kut an (c) See Ord. XXXVI, rr. 3, 6. 26, 27. 
 
 agent for sale of goods whose authority has (d) Howard v. Braithwaite, 1 V. & B., 202. 
 been revoked cannot validly pledge the goods 
 
 ' 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 evi- 
 dent 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.
 
 26G FIIY ox SPKCIFIC PEKFORMAXCE OF CONTRACTS, 
 
 in,2,- thp signaturo of one or both of the parties ; (2) where the 
 principal writing is incomplete in one or more of its terms, 
 and the letters are referred to to supplement the defect ; and 
 (3) where they are adduced as themselves constituting the 
 contract and the written evidence of it.' 
 
 ij otJO. (1) In order to make a contract binding under the 
 Statute of Frauds, it is not necessary that it should be all 
 contained in one paper, signed by the party to be charged ; 
 but the terms of the contract may be contained in one paper, 
 and the signature may be found in some other paper, pro- 
 vided that such second paper refer to the paper which does 
 contain the terms. (e)" 
 
 § 5"21, For the ascertainment and identification of the 
 actual i^aper referred to, i^arol evidence is admissible :(/) 
 for the one paper cannot be physically contained in the 
 other paper. In the same way, 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, but the actual identi- 
 fication of the thing and the person must, from the nature 
 of the case, be dehors the instrument, and, therefore, a mat- 
 ter of parol evidence. (//)' 
 
 (e) Allen v.Bennct, 3 Taunt.. 169; Rldgway 450. Where the terms of the contract are 
 
 V. Wharton, 3 De G. M. & G., 6T7: S. C, 6 H. contained in several tlocunients, all must be 
 
 L C.,238. See, also, per Lord Elrlon in Coles produced. See Post v Marsh, 16 Ch. D, 395. 
 
 V. Trecothlck, 9 Ves., -i'yO; Gaston v. Fran- (/) Per Lord Redesdale in Clinan v. Cooke, 
 
 kum, 2 De G & Sin., 561; Powell v. Dillon. 3 1 Sch. & Lef., 33. 
 
 Ball. & B., 416; Long v. Millar, 4 C. P. D., (g) See supra, §325. 
 
 ' Barry v. Coombe, 1 Pet., 640; Case v. Worthington, 1 Root, 173. 
 
 ' Blair v. Snodgrass, 1 Sneed (Tena.), 1 ; Tallmau v. Franklin, 4 Keru. 
 (N. Y.), 584. 
 
 'In Blair V. Snodgrass, 1 Sneed, 1, it is said that, while a contract for the 
 sale of land may be perfectly valid, under the statute of frauds, in detached 
 writings, that a specitic performance will not be decreed, imless the papers can, 
 by reference to each othei-, be connected Avithout the introduction of parol evi- 
 dence. It is plainly the law that the precise meaning of the parties must be 
 clearly ascertained from the instrument themselves, to the exclusion of extrinsic 
 evidence; and the decisions upon this point are substantially the same, both at 
 law and in c^iuity. Brettel v. Williams, 4 Excheq., 623; Saunderson v. Jack- 
 son, 3 B. & P.. 238: Western v. Russell, 3 Ves. & B., 188; Forster v. Hale, 3 
 Sumn., 096; Allen v. Bennett, 3 Taunt., 169: Ide v. Stanborn, lo Verm., 685; 
 Toome v. Dauson, Cheves, 6S; Parkhurst v. Van Cortland, 1 John.'s Ch., 273. 
 Parol evidence is, however, admissible to identify a written contract. FarweU 
 v. Lowther 18 111., 253 
 
 Parol promise for tlie benefit of one wlio is not a party to the ar]reement.'\ An 
 action may be successfully maintained by a third person, one who is not a party 
 to the contract, in a case where a parol promise has been made for his benefit, 
 he having partly performed under it. Crocker v. Higgins, 7 Conn., 342. 
 
 Reformntion of inritten instrument hy parol.'] Parol evidence maybe given 
 that a mistake has been made in a written agreement, and it may be rectified
 
 STATUTE OF FRAUDS. ETC, 267 
 
 § 533. There must, however, be a reference : therefore, 
 where the contract made no reference to an advertisement 
 respecting the property which was sought to be introduced 
 
 and specifically enforced. It must, however, be conclusively shown, that the in- 
 strument does not conform to the intention of the parties, and tlie proposed 
 connection must be established by verv conclusive proof. Philpot v. Eliott. 4 
 Md. Ch., 273; Hunt v. Rosnomer, 8 Wheat., 174; Tyson v. Passraore, 2 Pa. 
 St., 122. An absolute deed may be shown to be, in fact, a mortgage. Taylor 
 V. Luther, 2 Sumn , 228; Artz v. Grove, 21 Md., 456. "When it appears that 
 the understanding, at the time of the verbal promise, was, by a writinsr. to 
 comply with the provisions of the Statute of Frauds, it is something more than 
 a mere verbal promise. The opposite party relies upon the special stipulation 
 to reduce it to writing, and thus make him secure. A chancellor would decree 
 its specific performance. If, in confidence that such writing will be exf>cuted, 
 the legal title is acquired, it is a fraud in the purchaser to refuse to do what 
 was promised, and claim to hold discharged of it, which will constitute him a 
 trustee ex maleficio." Sharswood, J., in Wolford v. Herrington, 74 Pa. St., 311 : 
 Wells, J., in Glass v. Hulbert, 102 Mass., 24, holds in a case where "the pro- 
 posed reformation of an instrument involves the specific enforcement of an 
 oral agreement within the Statute of Frauds, or where the terms sought to be 
 added would so modify the instrument as to make it operate to convey an in- 
 terest or secure a right which can only be conveyed or secured through an iusstru- 
 ment in writing, and for which no writing has ever existed, the Statute of 
 Frauds is a sufficient answer to such a proceeding, unless the plea of the statute 
 can be met by some ground of estoppel to deprive the party of the rights to 
 set up the defense. The fact that the omission or defect in the writing, by 
 reason of which it failed to convey the land, or express the obligation which 
 it is sought to make it convey or express, was occasioned by mistake, or bv de- 
 ceit and fraud, will not alone constitute such an estoppel. There must occur, 
 also, some change in the condition or position of the party seeking relief, by 
 reason of being induced to enter upon the execution of the agreement, or to 
 do acts upon the faith of it, as if it were executed with the knowledge and 
 acquiescence of the other party, either express or implied, for which he would 
 be left without redress if tlie agreement were to be defeated." See, also, Wil- 
 son V. Watts, 9 Md., So^i; Heth v. Woodbridge, fi Rand, 605; Chetwood v. 
 Brittin, 1 Green's Ch., 438; Luckett v Williams, 37 Mo., 38«; Espv v. Ander- 
 son, 14 Pa. St., 30'^; Markle v. Wehrheim. 32 111., 534. The respondent is 
 entitled to more latitude in the introductions of parol proof to vary a written 
 agreement, than is the petitioner. Quinn v. Roath, 37 Conn., 16. Where the 
 parties agree, in the writing itself, that parol evidence may establish its terms, 
 it is, of course admissible. Fowler v. Redicom, 52 111., A(^% 
 
 Rule where the properij/ lias been obtained b>/ frai/d.] "If the defendant en" 
 tered into the arrangement with the premeditated design to mislead the confi- 
 dence of the plaintiff, and of practicing upon his credulity and want of caution 
 to get the title of the property into his own hands, and then convert it into tlie 
 means of oppressivelv using it for his own benefit, the case would be out of 
 the Statute of Frauds." Storv, J., in Jenkins v. Eldridge, 2 Story, 181 ; see. 
 also. Kinard v. Hierz, 3 Rich's Eq., 423; Teague v. Fowler, 56 Ind., 563; 
 McDonnald V. :Mav. 1 Rich.'s Eq., 95; Schmidt v. Gatewood. 2 id., 162; Gill 
 V. Bickuell, 2 Cusli , 355; Willink v. Vanderveer, 1 Barb , 599. 
 
 JVo ovisideraiionfor the parol agreement.'] The Statute of Frauds always ap- 
 plies to a contract, in a case where the only defense is, that one party was 
 guiltv of a fraud in refusing to perform his part of the agreement: e. ;/ . A and 
 B. both being present at the sale, made a verbal arrangement to the effi ct that 
 A. should bid off the estate in his own name, pay the vendor, and enter into a 
 written contract for the purchase of the land; that the same should be con- 
 vened to them as tenants in common, B. agreeing immediatelv to refund one- 
 hnlf of the price paid bv A.: both parties mutually agree! to join in the mort- 
 gages required to be given; all of which was done. Held, "a p<irry, in no legal
 
 268 FRY ox SPKCIFIC I'KRFOKMAXCE OF CONTRACT^. 
 
 to supply a term, it was held that this could not be done :{h) 
 and so also the mere admission in writing of a contract, 
 without ascertaining its terms, is inoperative. (i)' 
 
 ^ ,V^:i. Further, the reference must be to terms in writing : 
 therefore, where a writing duly signed referred not to a 
 writing but to terms arranged by parol, there was no valid 
 contract.(i) But the terms, if in fact in writing, need not 
 appear on the face of the other paper to be so : so that a 
 reference iu one paper to " terms agreed on," when in fact 
 the only terms agreed on were in writing, was held suffi- 
 cient, (k) 
 
 § 5*34. Whether the reference must be express and on 
 the face of the paper containing the signature, or whether it 
 be enough that a jury or judge of fact would conclude from 
 the circumstances and contents that the two papers are parts 
 of one corres]3ondence, may be open to doubt. The latter 
 is i^'obably the better view. 
 
 § 535. In a case arising on an entry of a contract in an 
 auctioneer's book, where the entry contained no reference 
 to the conditions, subject to which the sale took place. Hall, 
 y. C, said that the entry must contain such a reference to 
 the conditions as to identify them iipon production as being 
 the conditions mentioned in the entry. (Z) 
 
 § 526. In Tawney v. Crowther,(m) the contract was re- 
 duced into writing, and was in possession of the defendant, 
 who, in answer to a letter from the plaintiff's solicitor, ask- 
 ing him to meet him and sign the contract, wrote a letter, in 
 
 (h) Clinan v. Cooke, 1 Sch. & Lef., 22 Dis- (j) Ridgway v. Wharton, 3 De G. M. & G., 
 
 tinguish Nene Valley Drainage Commiaslon- 677; S. C, 6 H. Ij. C, 238. 
 ers V Diinkley, i Ch D., 1. (k) Baumann v. James, L. R. 3 Ch., .''lOs. 
 
 (J) Rose V. Cuiiynghame, 11 Ves., 550; Clerk (0 Rlshton v. U hatniore, 8 Ch. U., 4(i7. 
 V. Wright, 1 Alk., 12. (m) 3 Bro. C. C, 161, 318. 
 
 sense, commits a fraud by refusing to perform a contract void of its provisions. 
 He has not, in that sense, made a contract, and has a perfect right both at law 
 and in equity to refu.se performance." Grover, J., in Levy v Brush, 45 N. Y , 
 597; see, also, Barnett v. Dougherty, 32 Pa. St., 371 ; Hogg v. Wilkins, 1 Grant 
 (Pa ), 67; Patterson v. Horn, 1 id., 301; Campbell v. Campbell, 2 .Tones' Eq., 
 364; Wallace v. Brown, 10 N. J. Eq., 308; Dodd v. Wakeman, 28 id., 4s4; 
 Farnhum v. Clements, 51 Me., 4^6; Wheeler v. Reynolds, 66 N. Y., 227; 
 Walker v. Locke, 5 Cush., '.)'•; Hickman v. Grimes, 1 A. K. Marsh, 86; Cooper 
 V. Stevens, 1 John.'s Ch., 425. 
 
 ' But it has been decided in Virginia, that a letter promising to convey a 
 certain tract of land, "according to contract," is a sufficient memorandum 
 under the Statute of Frauds, although the terms of the contract are not men- 
 tioned, if the party can prove the price to be given by one witness. Johnson 
 V. Ronald, 4 Munf., 77. See McConnell v. Brillhart, 17 111., 354.
 
 STATUTE OF FRAUDS, ETC. 269 
 
 which he mentioned his having been from home, acknowl- 
 edged having said his word should be as good as his bond, 
 and that there was time enough before Michaelmas to settle 
 everything ; and again said ' ' that his word should always 
 be as good as any security he could give." Lord Tliurlow, 
 first on a plea of the statute, and subsequently on the 
 answer, which insisted on the statute, held that the letters 
 and the paper together constituted a valid contract. " If a 
 letter cannot be referred to the agreement," said his lord- 
 ship, "or does not contain proper terms, I cannot treat it as 
 out of the statute ; but I confess, on what appears here, the 
 papers do refer to that agreement, and contain a promise to 
 perform it ; the defendant did intend by the letter to raise 
 a confidence that the agreement should be performed. (//) 
 Lord Redesdale has expressed his disapprobation of this 
 case, considering that the promise was intended to be of an 
 honorary and not of a legal and binding nature ;(o) and the 
 correctness of the decision has been questioned by Lords 
 Cran worth and Brougham in the case of Ridgway v. Whar- 
 ton. (^) From the note at the end of the case in Brown's 
 Reports {q) it appears that the decree was by consent. 
 
 § 537. In another case, the defendants' letters referred 
 distinctly to the conditions of sale which were in their 
 hands, signed by the plaintiff, and the Court of Queens 
 Bench held that no parol evidence was necessary to connect 
 the two, and that there was a binding contract. (?*) And 
 where A. wrote to B., pro]3osing to let a public house on 
 certain terms, and B.'s clerk met A. and discussed the terms 
 of the lease, and afterwards B. replied that he was willing 
 to take the premises of A., this was held to refer to the 
 terms contained in A.'s letter, and, therefore, to constitute 
 a contract. (5) 
 
 § 528. (2) Letters may be used to supply a temi wanting 
 in the principal writing : thus where, in a memorandum, 
 the lessor's name was not mentioned, and subsequently a 
 letter from the lessee, referring to this document, mentioned 
 his (the lessor's) name in a manner from which the court 
 
 (n.1 3 Bro. C. C.,3i0. (r) Dobell v. Hutchinson, 3 A. & E., 355. 
 
 (O) See Belt's n , 3 Bro. C. C, 153. See, also. Saunderson v. Jackson, 2 B. & P., 
 
 (P) 6 H. L. C, 265, 271. See per Lord St. 238, and Jackson v. Lowe, 1 BiDfr., 9 
 
 Leonards, 8. C , 293. l«) Wood v. »carth, 2 K. & J , 33 See, too, 
 
 (q) 3 Bro. C. 0. (Belt's ed.), 320. Morris v. Wilson, 5 Jur. (N. S.), 163.
 
 270 FliV ON SPECIFIC PERFORMANCE OF CONTRACTS. 
 
 could imply that he was lessor, there was held to be suffi- 
 cient evidence oi' the contract. (i") But where {u) two persons 
 came to a verbal agreement for the sale and purchase of an 
 estate, and the vendor tliereupon signed and handed to the 
 purchaser a memorandum of the particulars of the property 
 and the i3rice, which, however, did not contain the pur- 
 chaser's name ; and afterwards the vendor signed and sent to 
 the i3urchaser a letter, saying, "I am about to relet the land 
 at S. The Lady Day rents will be mine and the Michaelmas 
 yours.'' It was held that the defect in the memorandum 
 was not supplied by the letter. 
 
 § 5tJi). (8) Letters may themselves constitute the contract 
 and the written evidence of it : and the cases in which a con- 
 tract is thus constituted by correspondence between the par- 
 ties are very numerous : many of them have been already 
 discussed, (y)' 
 
 g o!tO. It is one of the first principles of a case of this 
 kind that where the contract, or the note or memorandum 
 of the terms of the contract, has to be found in letters, the 
 whole of the correspondence which has passed must be taken 
 into account, (w) Accordingly, in a case where the first two 
 letters of a correspondence, taken by themselves, appeared 
 to amount to a complete contract, but there really w^ere 
 other terms, which when those letters were written were un- 
 settled and in the result remained unsettled, the House of 
 Lords held that there was no concluded contract, (^r) The 
 I)laintiif cannot insist on some terms or some letters and re- 
 ject others. If tlie letters, taken as a whole, do not consti- 
 tute the contract, the plaintiff must fail.(y/) 
 
 § dJJl. The contract may even be sufficiently evidenced 
 by a letter addressed to a third person, provided it ascertain 
 the terms of the contract. (z) 
 
 g 5ti'2. It is desirable to consider the effect of letters 
 
 (0 Warner v. WillingtOD, 3 Drew., 523. see {x) Hussey v. Hornc-Pavne, 4 App. C, 311. 
 
 this case iotra, § 533. ly) Neshaiu v. belby, L. k. J3 Eq , 191 ; aff'd 
 
 (U) ftkeltoii V lole 1 De G. & J., 587. L. K. 7 C'h., 4 6. 
 
 ivj See supra, §-.!73 t-tseq. Sve, also, W'est- (a) Per Lord llardwicbe in Welford v. 
 
 em V. Hu^scil, 3 V & B., 187; Couplan.i v. Bt^az.-ly, 3 vtk .5(i3; Child v. Comber, 3 Sw., 
 
 Arrowsmith, IS L. T u\.S.),755; R-ssit-rv. 4.;3 n.; -fapoi.d v. Meale. Prec. Cli., 50 i. See. 
 
 Miller, oCh. I) , 648; 3 App. C , 1124; IJoii- also, narkwoitli v. Young, 4 Drew., 1, par- 
 
 newtll V Jenkins, 8 Ch L)., 70. licularly 13. 
 
 (W) Per Lord Cairne In Hussey v. Horne- 
 Payue, 4 App. C , 316. 
 
 - NeufviUe v. Stuart, 1 Hill. CL., 159.
 
 STATUTE OF FRAUDS, ETC. 271 
 
 which repudiate or disown a contract referred to in them. 
 Where the letters deny that a contract ever existed, it 
 wonld seem impossible to treat th^m as the evidence or an 
 admission of a contract, bnt wherts the ietter.s repudiate on 
 the gronnd of matter subsequent, as for example, of damage 
 done to the goods bought, there a statement of the terms of 
 the contract in the letters may satisfy the statute, (a) 
 
 § 5S3. The subject v/as discussed in the case of Warner 
 V. Willington,(^) before Kindersley, V. C. In that case 
 there was a memorandum for a lease, signed by the defend- 
 ant, the proposed lessee, but deficient in the lessor s name, 
 and then a letter by the defendant, withdrawing the memo- 
 randum, but referring to the lessor's name: and the Vice- 
 chancellor held that the letter suiDplied the original defect 
 in the memorandum, and converted it into a contract bind- 
 ing under the statute. It is submitted that this decision is 
 not without difficulties on principle ; for it would seem that 
 the whole letter must be looked at, and then that affirms the 
 memorandum to be, wiiat in fact without the letter it was, 
 namely, a mere offer : and, further, the case appears difficult 
 to reconcile with other decisions. Thus, where buyers have 
 written letters distinctly referring to invoices of the goods, 
 but insisting that they were not bound to acce]Dt the goods, 
 and thus repudiating the contract, the courts have held that 
 there is no sufficient writing w^ithin the 17th section of the 
 Statute of Frauds :(c) and in a case in the exchequer, in 
 w^hich Warner v. Willington was cited, the court considered 
 that it would be treating the Statute of Frauds as nothing, 
 if a letter, merely declining to accept goods under a parol 
 contract or an insufficient written contract, were held to 
 take the case out of the statute. (fZ) And again, in a case in 
 chancery. Turner, L. J., treated the argument that a letter 
 declining to enter into a contract could constitute one as too 
 strained to require any observation, (e) 
 
 § oSM. It is now distinctly settled, after some difference 
 of oi3inion, that a w^ritten memorandum of contract after 
 
 (a) Bailey v. Sweeting-, 9 C. B. (N. S.), 843; in Dobell v. Hutchinson, 3 A. & E.,371; Gos- 
 
 Nesham V. Selby, L.K. 13Eq ,191; 7Cti.,4(j6; bell v. Archer, -J itl., 500. 
 of. Jackson v. Oglander, 13 W. li , 936. (rf) tjooilman v. Griffiths, 1 U. & N'., 574. 
 
 (6) 3 Drew., 5-23. (e) Wood v. Alidglej , 5 De G. Jl. & G., 41, 
 
 (c) Cooper V. Smith, 15 East, liS; Richards 40. 
 V. Porter, b B. & C, 437; per Lord Denman
 
 272 FKY ox SPECIFIC PERFORMANCE OF CONTRACTS. 
 
 marriage, in pursuance of a parol one before, takes the case 
 out of the statute. (/)' 
 
 § 535. With regard to the mode in which a contract within 
 the statute should be pleaded, the rules of court under the 
 judicature act have swept away the diversity which existed 
 in the pleadings at common law and in chancery. Before 
 these acts, it was enough at law to allege a contract, on the 
 ground that " with respect to acts valid at common law, but 
 regulated as to the mode of performance by statute, it is 
 sufficient to use such certainty of allegation as was sufficient 
 before the statute :" (/7) whereas in chancery it \vas not 
 enough to allege a contract without stating that it was in 
 writing, on the ground that a parol contract was a contract, 
 though not an enforceable one ; and a bill merely alleging a 
 contract was, therefore, open to demurrer. (^)' 
 
 § 536. Now, as we have seen, one uniform mode of plead- 
 
 (f) Taylor v Beech, 1 Ves. Sen , 297; per 34. In RaiKiall v.Morf?an(12 Ve8.,67), Grant, 
 
 Lord Cottenham in HammerBley v. De Blel, M. R., expressed doubts on this point. 
 
 12 CI. & Fin , 64 n ; per Turner, L. J., in (o) Steph. Plead., 401 (4th ed ). 
 
 Surcome v. Pinniger, 3 De G. M. & G., 571 ; Qi) Barkworth v. \ oung, 4 Crew , 1 ; and 
 
 Baikworth v. Young, 4 Drew., 1. See. also, see per Lord Thurlow in Whitchurch y. 
 
 Hodgson V. Hutchenson, 5 Vin. Abr., 522. pi. Bevis, 2 Bro. C. C, 559; per Grant. M. B., m 
 
 Spurrier v. Fitzgerald, 6 Ves., 55.i. 
 
 > Wood V. Savage, Walk. Ch., 471; see Livingston v. Livingston, 3 .John.'s 
 Ch., 537, decided by Kent, Ch.; Argenbright v. Campbell, 3 Hen. & M., 144. 
 
 2 See Bean v. Yalle, 2 Mis. , 126. But a different rule is laid down, at law, in 
 Stern v. Drinker, -^ E. D. Smith, 401. In that case, which came before the 
 court on appeal, the plaintiff's complaint alleged that he recovered a judgment 
 a."-ainst one Nusbaun for |45; that he issued an execution thereon, and levied 
 on sufficient property of the defendant to satisfy the judgment; that the de- 
 fendant 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 wd 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 writmg, 
 void), to aver that it was written. It is suflicient 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 mle 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 
 2)leading, 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 defendani 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; Buller's N. P., 279; 3 Burr., 1890; 1 Saund. R., 276, note 2, to Duffe 
 V. Mayo; Case v. Barber, 3 Raym., 451; Birch v. Bellamy, 12 Mod., 540; 
 Hutchinson v. Hew.son, 7 T. R. 350, n.; 3 id., 159; Read v. Brookman, by Lord 
 Kenyan, 2 Chit. PI., 121, n. s.; 123, n. x. ; 2 Saund. PI. and Ev., 546; see, also, 
 on tills point, the case of Miller v. Upton, 6 Ind., 53.
 
 STATUTE OF FRAUDS, ETC. 273 
 
 ing prevails in all the divisions of the high coui-t : and now 
 an allegation of a contract is sufficient without stating it to 
 be in writing, and the defendant who admits the contract in 
 fact, but denies its sufficiency with regard to the statute, 
 must specially raise the point by his defense. (/)' 
 
 § 537. Another important provision of the rules is to the 
 effect that where a contract does not arise from an express 
 agreement, but is to be implied from a series of letters or 
 conversations or otherwise from a number of circumstances, 
 it is sufficient in pleading to allege such contract as a fact, 
 and to refer generally to such letters, conversations, or cir- 
 cumstances without setting them out in detail ; and that if 
 in such a case the i^erson so pleading desires to rely in the 
 alternative upon more contracts than one, as to be imx)lied 
 from such circumstances, he may state the same in the 
 alternative. (,y) 
 
 3. What takes a contract out of the statute. 
 
 § 538. Courts of equity hold that, notwithstanding the 
 express 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 defense of a contract in fact, where the defense does not 
 insist on the statute; (3) by fraud, (/l*) and (4) by a parol 
 contract and part performance, which is, as we shall see, 
 but a particular case of fraud. In the two first cases the 
 reason is, that the danger of that which the statute was 
 meant to guard against does not arise, and in the third 
 and fourth that the statute shall not be made use of to 
 cover a fraud. 
 
 § o39. (1) It was held that a sale in the court of chancery 
 by private contract, in pursuance of an order confiiming a 
 
 (i) Ord. SIX. r 23. Cf. as to the distinct- (i) Ord. XIX, r. 27. . , , , 
 
 ness now required in pleadings, Byrd v. (k) See, too, Intra, § ifel: (mistake). 
 Nunn, 7 Ch D., 284; and see supra, § 485. 
 
 1 The statute of frauds is no defense where the coutract is admitted, and the 
 defendant fails to plead the statute. Morse v. Merest, 6 Mad., 26; Ridgway v. 
 Whorton, 3 De G. M. & G., G77; Lincoln v. Wright, 4 id., 1; .Jenkins v. El- 
 dridge, 3 Story, 181; Willink v. Vanderveer, 1 Barb., 599; Trapnall v. Brown, 
 19 Ark., 39; Shield v. Tramell, id., 51; contra, Box v. Starford, 13 Smed. & 
 Marsh., 93; see, also, Glass v. Hulbert, 102 Mass., 38. 
 
 18
 
 274 FRY ON SPECIFIC PEllFOKMANCE OF CONTRACTS. 
 
 master's report," was exempted from the Statute of Frauds, 
 and consequently might be enforced against tlie representa- 
 tive of a purchaser who had not signed it. (Z) The consid- 
 erations upon which tliis decision was based are that the 
 judicial character of the proceeding is such as to jorevent 
 the hazard of uncertainty and perjury which the statute 
 was intended to prevent, and moreover that, in such a case, 
 the purchaser having been a party to the proceedings in 
 which the order for sale to him was made, is bound by the 
 order, and Avould be guilty of contempt in refusing to pay 
 the 2:)urchase money. 
 
 § 540. The same rule was held to apply to sales in the 
 ordinary way by auction before a master, (?7z) and would no 
 doubt apply to sales under the present practice ;(7z) but not 
 to ordinary sales by public auction, because, it is said, such 
 sales might be without written or printed particulars and 
 conditions, and also, no doubt, because they are in no way 
 proceedings connected with the court. (o) 
 
 § 541. (2) An admission of a parol contract in the answ^er 
 of a defendant to the bill of complaint was, under the old 
 practice, held to take the case out of the statute where the 
 answer did not insist upon the statute, and this because 
 the admission took the case out of the mischief which the 
 statute was designed to remedy. C^;')'' Another reason sug- 
 gested for the rule was that the contract, though originally 
 in parol, was, after admission, evidenced by writing under 
 the signature of the party, which would be a sufficient 
 compliance with the statute as interpreted by the decided 
 cases. (§') 
 
 (I) Att-Gen. V. Day, 1 Ves. Sen., 218; per (o) Blapdeii v. Braflbear, 12 Vrs., 466,472. 
 
 Grant, M It., in BlagdtMi v. liradbear, 12 Ves., See, too, Mason v. AraiUagc, 13 iil , 35 
 472; per Lord Cottenham In bx parte CiUts, (p) Gunterv Halser, Ainbi., 586; Liinond- 
 
 3 Deac , 207: Lord v Lord, 1 Sim., 503. sou v. .'iweed, GIU>., 35. See, aiso, per Lord 
 
 (m) Att -Gen. v. Dav, ubi supra. Rosslyn in Kendeau v. Wyatt, 2 II. Bl , 68. 
 
 («) See St. Leon. Vend , 86; Uart, Vend , (,q) Story, Kq. Jur., § 75o. 
 197 (5th ed.). 
 
 ' See the cases of Gordon v. Sims, 3 McCord's Ch., 151, and of Jenkins v. 
 Hogg, 2 Const. Rep., 821. Cases of tliis class are there rather considered to 
 resf upon the same basis as ordinary auction sales — i. e., the fact that the mas- 
 ter or commissioner is essentially the agent of both parties— than treated as 
 exceptions because of their legal nature. 
 
 - Woods V. Delle, 11 Ohio, 455. But the doctrine is firmly established that, 
 even where the answer confesses the parol agi-eement, if it insists, by way of 
 defense, upon the protection of the statute, the defense must prevail as a com 
 petent bar. Story's Eq. PI., § 763; Thompson v. Todd, 1 Pet. C. C, 388;
 
 STATUTE OF FRAUDS, ETC. 275 
 
 § 543. The substantial result of the present system of 
 pleadini!,- is to continue this effect of an admission of the 
 contiact in fact, and furthermore to treat tlie contract as 
 admitted unless it is actually denied. For it results from 
 the rules of court, (^") that if the contract be not expressly- 
 denied to exist in fact, and expressly stated not to satisfj^ 
 the Statute of Frauds, it will be held that the defendant 
 has admitted both its existence and its sufficiency to satisfy 
 the statute. 
 
 § 543. In the case of the death before judgment of the 
 person making such an admission, his representatives will 
 be bound by his admission on being made parties to the ac- 
 tion in the manner provided by the rules. (.9) But the ad- 
 mission b}^ a vendor that he had contracted to sell an estate 
 to a person since deceased will not bind the personal repre- 
 sentatives of such deceased purchaser ; nor will an admis- 
 sion by a purchaser that he had contracted to buy an estate 
 bind the real representatives of the alleged vendor ; for it is 
 now clearly settled that, in order to entitle the real or per- 
 sonal representative to enforce the execution of a contract 
 to the ijrejudice of the other, there must have been, at the 
 death of the deceased contractor, a contract by which he 
 was legally bound, and which the court would have com- 
 pelled him specifically to execute ; and it is consequently 
 open to any of the parties interested, notwithstanding the 
 admissions or submissions of any of the other parties, to 
 take every objection which the deceased might himself have 
 taken if living, (z^) Thus the admission of a contract by 
 the executors of a testator, will not bind the residuary 
 legatee. (?/.) 
 
 5< 544. (3) The principle upon which the court regards 
 fraud as forming an exception to the statute was stated 
 by Lord Eldon as follows: "Upon the Statute of Frauds, 
 though declaring that interests shall not be bound except 
 
 (r) Orrl \IX rr 17 "0 23 11 W-. ^■IS, overruling Laeon v. Merlins, 3 
 
 (.s) Att.'Gen.'v.bay,"l've8. Sen., 218,221; Atk., 1 _ see, also, Potter v. Potter, 1 Ves. 
 
 Ord L rr " i 5 Sen., 437. 
 
 (i) BilckHLaster v. Harrop, 7 Ves., 341 ; S. (n) Buckmaster v. Ilarrop, 7 Ves., 341 ; S. 
 
 C, 13 id., 4r>G. See Earl of Uailnor v. Shafto, C, 13 ul., 4.56. 
 
 Steams v. Hubbard, 8 Greenl., 330; Harris v. Knickcrbackcr 5 Wonrl., G38; 
 1 Suo- Vend & Purch. (G Am. cd.). 137; Whitbrcad v. Brockhurst. 1 Bro. C. 
 C. (Am. ed., 1844), 407 (note 3) ; Wbitcburch v. Bcvis, 3 id., 009 (note i); Moore 
 V. Edwards,' 4 Ves., 23 (note a).
 
 276 FRY ON SPECIFIC PERFORMANCE OF CONTRACTS. 
 
 bv writing, cases in this court are perfectly familiar decid- 
 ino- that a fraudulent use shall not be made of that statute ; 
 where this court has interfered against a party meaning to 
 make it an instrument of fraud, and said he should not take 
 advantage of his own fraud even though the statute has de- 
 clared tliat, in case those circumstances do not exist, the 
 instrument shall be absolutely void," One instance is the 
 
 » Fraud on the j>art of tlie defendant.'] "The rule that fraud takes the case 
 out of the statute is too well-settled to admit of doubt; and for the purpose of 
 showin"- that fraud has been committed, or is being attempted, parol evidence 
 has alw-^ivs been held to be admissible. The difficulty has been in determining 
 what amounted to fraud in the particular case; and to this difficulty is reiera- 
 ble'those conflicts of opinion which seem occasionally to have trenched upon 
 the rule itself. The rule, however, is universally acknowledged, and there is 
 no case, in which the conduct of the defendant was held to be fraudulent, that 
 he has been allowed to shelter himself behind the statute." Cope, J., in Hid- 
 den v Jordan 21 Cal., 93; see, also, Fannin v. McMullin, 2 Abb. Pr. (N. S.), 
 224; iiyan v.'Dox, 34 K Y., 807; S. C, 36 id., 511; Nelson v. Worrall, 20 
 Iowa, 469. 
 
 Statuteof Frauds, no defense for fraud.'] "We recognize the doctrine, then, 
 that a court of equity will not permit the Statute of Frauds to be set up as a 
 defense by a party infected with fraud, and that parol trusts of real estate may 
 be established in'direct contradiction to the statute on the ground of fraud ; 
 and that whenever a case of fraud is made out by the bill, parol evidence will 
 be received for the purpose of sustaining the case, even though the effect of 
 such evidence be to alter or vary a written instrument, and though the benefit 
 of the statute be insisted upon by the defendant." Miller v Gotten, 5 Ga., 
 346. See, however, Woodward, J., in McCulloch v. Cowher, 5 Watts & Serg., 
 4-27, where he says, "unless there be something in the transaction more than is 
 implied from the" violation of a parol agreement, equity will not decree the pur- 
 chaser to be a trustee. And the distinction is indispensable, otherwise there 
 would be a repeal of the statute, under the pretense of preventing fraud, by 
 decreeing an express trust, which would be introductive of the very evils the 
 statute was designed to prevent." 
 
 Parol trust in fraud of creditors.] A parol trust cannot be set up, where the 
 effect or design is to delay, hinder or defraud creditors. Murphy v. Hubert, 
 16 Pa. St., 50; S. C, 7 id., 420; Hills v. Elliott, 12 :Mass., 26. 
 
 Fraud at puUic sale.'] " It is not now an open question that, when a party 
 a<^rees before the sale to purchase property about to be sold, under an execu- 
 tion ao-ainst a party, and to give such party the benefit of the purc])ase, the 
 asreement is binding, and will be enforced. The defendant, upon the faith of 
 such agreement, may have ceased his efforts to raise the money for the purpose 
 of paying off the execution, and thus preventing a sale of his property. It 
 will not do to say that the party promising was moved merely by friendly or 
 benevolent considerations, and may, therefor, at his option. d"ecline a compli- 
 ance with his agreement. Such considerations constitute the foundation of 
 almost every trust, and the trustee should be held to account, as nearly as pos- 
 sible, in the same spirit in which he originally contracted. But it is said that 
 the ao-reement, if in fact made, was void under the Statute of Frauds. The 
 statufe has reference alone to a sale of lands, and not to a contract to purchase 
 of one person for the benefit of another." Per cunam in Soggins v. Heard, 
 31 Miss., 428; see, also. Walker v. Hill, 21 N. J. Eq., 191; Sandfoss v. .Tones, 
 35 Cal., 4S1. " Can it be tolerated that a creditor shall, at a sale of his debtor's 
 property, lull him to sleep, and keep off other purchasers by an agreement under 
 which he buys in the land for a small sum much below its value, and then that 
 he shall declare that the agreement was void under the Statute of Frauds, and 
 that the other party should have no benefit from the agreement, whilst he reaped
 
 STATUTE OF FRAUDS, ETC. 277 
 
 case of instruction upon a treaty of marriage ; the convey- 
 ance being absolute, but subject to an agreement for a de- 
 feasance, Avhich, though not appearing by the contents of 
 the conveyance, can be proved aliunde — and there are many 
 other instances. ' ' {v) 
 
 § 345. Thus, if it can be shown that the written contract 
 which is sought to be enforced Avas only signed in conse- 
 quence of some collateral contract having been come to, the 
 plaintiff must either submit to the collateral contract or have 
 his action for specific performance dismissed ; and this, 
 although the collateral contract is not evidenced in writing. 
 Thus, in Clarke v. Grant, (zy) where trustees of a charity 
 sought specific performance of a written contract to take a 
 lease, and the main defense was a parol contract of the same 
 date as the written one and alTecting the parcels, Grant, 
 M. R., held that evidence to prove the parol contract was 
 admissible, and that, if it were proved, it would be against 
 equity and a fraud on the defendant to insist upon his per- 
 formance of a contract, which he had only signed on the 
 faith of an alteration being made in one of its terms. 
 
 § 346. In the last-mentioned case the defendant set up 
 the collateral contract ; but the cases go much further, and 
 show that the plaintiff may, on the ground of fraud, obtain 
 the benefit of a collateral parol promise which the person 
 who claims under the written contract fraudulently refuses 
 to recognize. In one case Lord Thurlow allowed the plain- 
 tiff to give parol evidence that, at the time the contract 
 
 {V) Mestaer v. Gillespie, 11 Ves., 627. {w) 14 Ves., 519, 525. 
 
 all the fruits ? Surely not. Courts of justice would be blind, indeed, it they 
 could permit such a state of things." 
 
 Fraud must be at the time of the sale.'\ In Wheeler v. Reynolds, 66 N. Y., 
 227. it was lield that where fraud was relied upon in a purchaser at a sherill s 
 sale, to make such purchaser a trustee ex maleficio, that it must be found at the 
 time of the sale. 
 
 Mortgage properti/ frauchiknily purchased.^ "But even in this class of cases 
 so important it is to maintain the utmost confidence in the efhcicncy of judicial 
 sales, the purchaser should be protected against all pretenses of a trust by 
 parol, unless his ?H(//rt>(/('.5 be proved by the clearest and most complete evi- 
 dence. But where such demonstrative proof exists, and where the contract 
 between the defendant in execution, and the ]nirchaser, is not of such a charac- 
 ter as to affect injuriously the rights of creditors, a court of equity will frus- 
 trate the contemplatable fraud by enforcing the contract specitically between 
 the parties." Beaslev, C. J., in Merritt v. Brown, 21 N. J. Eq., 401; see, also, 
 Green v. Ball 4 Bush, 586; Combs v. Little. 3 Grei n's Ch., olO; iMarlatt v. 
 Warwick, 18 K J. Eq., 108; S. C, 10 id., 480; Rose v. Bates, 12 Mo., 30.
 
 278 FIJV ox Sl'i:clFIC rKlJFOKMAKCE or CONTRACTS. 
 
 (vvliicli was subsequently reduced tf) writing) was entered 
 into, an undertaking had been given by the assignee of the 
 lease to tlie assignor for indemnity against tlie rents and 
 covenants ; his lordship laying down that, ^' where the ob- 
 jection is taken before the party execute the agreement, 
 and the other side promise to ratify it, it is to be considered 
 a fraud on the party if such promise is not kept.(rr) 
 
 § 547. So, in -the case of transactions which are really 
 for mortgages or charges, if the written instrument be in 
 terms absolute and have been obtained on a promise to exe- 
 cute a defeasance, or if the clause for redemption have been 
 fraudulently omitted, the mortgagor or chargor has been 
 allowed to come to the court and to reduce the absolute 
 conveyance to a mortgage or charge, (j/) 
 
 § 548. So, again, in Jervis v. Berridge, ( >") where the plain- 
 tiffs assigned the benefit of a contract to the defendant upon 
 certain terms, some only of which were reduced into writing, 
 it was held that, under the circumstances of the case, the 
 memorandum was only ancillary to the verbal contract, and 
 any use of it by the defendant for a purpose inconsistent 
 with the verbal contract was fraudulent. Lord Selborne, in 
 the course of his judgment, (a) stated the principle now in 
 discussion in words which have already been quoted. (Z>) 
 
 § 549. So, again, if A. have in his hands money of B., 
 and at B.'s request lay it out in the purchase of an estate, 
 A. cannot, on the ground that the land is conveyed to him, 
 claim the estate as his own, and exclude parol evidence that 
 he was a trustee for B.(c)' 
 
 (X) Pembcr v. Mathers, 1 Bro. C. C, 52. (a) L. R. 8 (;h., 360. In his speech in the 
 Cf fincllinff v Th.-mas, h. R. 17 Eq , 303. House oi L'^rds. in liussey v. Ilorne-Payne, 
 where the plaintiff failed to establish tnecul- 4 App. C , 323, Lord Selborr.e expr-ssly re- 
 lateral contract alleged by hlni afflrme(i the doctrine laid down lu the quota- 
 
 (»/) 1 Eq Ca Abr., 20, pi. 5; Walker v. tion relerred to in the text. 
 
 Walker, 2 Atk., 98; England V. Codringt'.u, (6) Supra, § 502. , t,„i „ 
 
 1 Eden, 169; Williams v. Owen, 5 My. & Cr.. (c) Per Kindersley. V. C, in Lincoln v. 
 
 303. 306 ; Lincoln v. Wright, 4 De G. & J., 16 ; Wright, 28 L. J . Ch. , 707 n. ; S. C , on appeal, 
 
 Dougla.s V. Culverwell, 3 GllT., 251; S. (J., 4 4 De G. & J., 16 See Ryall v. Kyall, 1 Atk , 
 
 De G F & I 20 59; WilU.s v. Willis, 2 id , 71 ; per Grant. M. 
 
 (z) L. K. 8 Ch., 351. R • i" Leuch v. Lench, 10 Ves., 517. 
 
 ' ImpUed tnisf.-i are nof tltOHe to inhtch the Siniute of Frauds referx.'] Bigelow, 
 J., in Stone v. Hackett (12 Gray, 227), says: "It is certainly true that a court 
 of equity will lend no assistance toward perfecting a voluntary contract or 
 agreement for the creation of a trust, nor regard it as binding, so long as it re- 
 mains executory. But it is equally true that if such an agreement or contract 
 be executed by a conveyance of property in trust, so that nothing remains to be 
 done by the grantor or donor to comiilete the transfer of title, the relations of 
 trustee and cestui que trust is deemed to be established, and the equitable rights 
 and interests arising out of the conveyance, though made without consideration,
 
 I 
 
 STATUTE OF FRAUDS, ETC. 279 
 
 § 550. Ill all these cases, to exclude parol evidence and 
 to adjudge specific performance of tlie contract as evidenced 
 by the writing alone, would be to work the very mischief 
 which the statute was intended to prevent, viz., to fix the 
 party sought to be charged with a contract which he never, 
 in fact, entered into.' 
 
 § 551. So, again, the want of writing could not be set up 
 successfully by a man who had fraudulently prevented the 
 writing from coming into existence. (<?) Thus, where the 
 defendant, on a treaty for the marriage of his daughter 
 with the plaintiff, signed a paper comprising the terms of 
 the agreement arrived at, but afterwards, and with a view 
 to rid himself of the obligation imposed by it, induced his 
 daughter to wheedle the plaintiff to give up the writing 
 and then to marry her — the plaintiff was held entitled to 
 relief and obtained a decree on the ground of fraud. ((^) 
 
 § 552. But this want of w^riting must be due to fraud, 
 and not to mere non-performance of a contract to sign a 
 writing. No doubt the opposite view was formerly taken, 
 and it was thought that an allegation that it was part of 
 the parol contract between the contracting parties that the 
 contract should be reduced into writing, would take the case 
 out of the statute, on the ground of fraud. Accordingly, 
 w^here a bill containing such an allegation was met by a 
 plea of the statute. Lord North, after argument, ordered 
 
 (c) Maxwell v. Lady Montacute, Prec. Ch., & G., 115; reversed 5 De G. M. & G, 41; and 
 536; 1 Eq. Ca. Ab , 19; Whitchurch v. Bevis, see St-ry, Eq. Juris., § 768 (lOth ed.) 
 2 Bro. C. C, 565; cf. Wood v. Mldgl6y,2 Sm. (rf) Mullet v. Halfpenny, cited in Peachey 
 
 on settlements, 82. 
 
 will be enforced in clianceiy." See, also, Kekewicli v. Mannina;, 1 De G. !M. & 
 G., 176; Jones v. Lock, L. R. 1 Ch., 25; Wason v. Colburn'; 99 Ma.ss., 342; 
 Trapliagen v. Best, 67 N. Y., 80; Chesler v. Dickerson, 54 id., 1. 
 
 Parol eddence.'] Where a trust has resulted by implication of law, parol evi- 
 dence may be relied upon to establish the collateral fact from which a trust raa.y 
 legally result. Church v. Sterling, 16 Conn., ob8. 
 
 Equity enforces a parol trust where a fraud has been perpetrated, in order that 
 it may be relieved, by raising an implied trust. It treats the partj' perpetrating 
 the fi-aud as a trustee because he is ci' inaieftcio because of the fraud. ^Vheeler 
 V. Reynolds, 66 N. Y., y27; see, also, Hodges v. Howard, 5 R. I., 149; Cannon 
 V. AVard, 8 Ga., 245; Jones v. McDougall, 32 Miss., 179; Hidden v. Jordan, 21 
 Cal., 92; Cole v. Cole, 41 Md., 301; Wilton v Harwood, 23 Me., 131; McBur- 
 ney v Wellmau, 42 Barb., 390; Martin v. JIartin, 16 B. Mon., S; Blodgett v. 
 Hfldreth, 103 Mass., 484. 
 
 ' An agreement need only be signed by the party to be charged. Hatton v. 
 Gray, 2 Ch. Cas., 164; Seton v. Slade, 7 Ves., 265; Fowler v. Freeman, 9 id., 
 351; Martin v. Mitchell, 2 Sac. & JM., 426; Schneider v. Xorris, 2 31. ct S.,286; 
 Shirley V. Shirley, 7 Blackf., 452: liogers v. Saunders, 16 3Ie., 92; Ives v. 
 Hazard, 4 R. I., 14; Anderson v. Harotd, 10 Ohio, 399; Wright v. King. Har- 
 ring. Ch., 12.
 
 280 FRY ox SPECIFIC PERFORMANCE OF CONTRACTS. 
 
 the defendant to answer so much of the bill only as charged 
 that tlie contract was to be put into writing. (e) It seems 
 obvious, however, tliat such a procedure affords a most easy- 
 means of evading the intention of the statute, and introduc- 
 ing the mischief it was designed to remedy : and accord- 
 ingly, tlie law is clearly established, that such an allegation 
 does not withdraw the case from the operation of the statute, 
 and that, after a parol contract, a refusal to sign a written 
 one is no fraud of which, the court can take cognizance. (/) 
 § do*t. The same principle as regards fraud was once con- 
 sidered to apply to marriage contracts, which also are within 
 the fourth section of the statute. In Dundas v. Dutens,((7) 
 Lord Thurlow decided that a post-nuptial settlement recited 
 to be made in pursuance of an ante-nuptial j)arol control 
 was not a voluntary settlement, and that because a refusal 
 to perform the previous contract would have been a fraud; 
 but this decision is in effect overruled by the case of Warden 
 V. Jones, (7^.) where Lord Cranw^ortli remarked that, were the 
 decision in Dundas v. Dutens correct, the whole p)olicy of 
 the statute would be defeated, (z)' 
 
 (e) T.eakev. Morris, 1 Dick., 14; S. C.s.n., (g") 1 Ves. Jun., 196; S. C, 3 Cox, 235. See, 
 
 Leake v. Morrice, 2 Cas. in Ch., 135; Hollls too, Viscountess Montacute v. Maxwell, 1 P. 
 
 V. Whiteing, 1 Vern., 151; Deane v. Izard, 1 Wnis , 620. 
 
 id., 159. {k) 2 I)e G. & J., 76, 85. 
 
 (/) WJiitchurch V. Bcvis, 2Bro. C.C.,565; (i) Cf. Trowell v. Shenton, 8 Ch. D., 324, 
 
 Wood V M Id j; ley, 5 De G. ftl. & G , 41; re- where, however, the question turned on Lord 
 
 Tcrsing S. C , 2 Sm. & Gif., 115. Tenterden's Act. 
 
 ' The case of Montacute v. Maxwell (1 P. Wms., 618), is an important case on 
 this subject. The plaintiff brought a bill against the defendant, her husband, 
 setting forth that the defendant, before her intermarriage with him, promised 
 that she could enjoy all her own estate to her separate use; that he had agreed 
 to execute writings to that effect, and had instructed counsel to draw such writ- 
 ings, and that when they were to be married, the writings not being perfected, 
 the defendant desired that this might not delaj' the match, because, his friends 
 being there, it might shame him; but engaged that, upon his honor, she should 
 have the same advantage of an agreement as if it were in writing, drawn in 
 fonn, by counsel, and executed : whereupon the marriage took place. To this 
 bill the defendant pleaded the Statute of Frauds And the Lord Chancellor 
 said: "In cases of fraud, equity should relieve, even against the words of the 
 statute, as if one agreement in writing should be proposed and drawn, and 
 another fraudulently and secretly brought in and executed in lieu of the former, 
 in this or such like cases of fraud, equity Avould relieve; but where there is no 
 fraud, only relying upon the honor, word or promise of the defendant, the 
 statute making these promises void, equity will not interfere ; nor were the in- 
 stinictions given to counsel, for the preparing of writings, material, since after 
 they were drawn and engrossed, the parties might refuse to execute them." 
 But an entirely different view of a very similar case, and more in conformity 
 with Dundas v. Dutens, was expressed, in this country, by Mr. Justice Story, 
 in Jenkins V. Eldridge, 3 Story, 291. There, it was said "that, where instruc- 
 tions are given and preparations made for marriage settlements, and the woman 
 is persuaded bj^ the man to marry, trusting to his verbal promise to complete 
 them, equity ought to relieve and compel performance.
 
 STATUTE OF FKAUDS, ETC. 281 
 
 § 534. In cases of wills obtained by a promise to dispose 
 of the property in a particular way, the court will, notwitli- 
 stfinding the language of the Statute of Frauds that every 
 will must be in writing, and the language of the wills act to 
 the same effect, give effect to the verbal arrangement by 
 raising a trust on the property devised or bequeathed by the 
 will.(y) 
 
 § 5S5. (4) The part performance of a contract by one of 
 the parties to it may, in the contemplation of equity, pre- 
 clude the other pai-ty from setting up the Statute of Frauds, 
 and thus render it, although merely resting in parol, capable 
 of being enforced by way of specific x:)erformance.' 
 
 ij) Podmorev GunningJ Sim., G44; Chester v. Urwick (No. 3), 23 Beav., 407; McGormick 
 
 V. Grogan, L. R. 4 H. L., 82. 
 
 ^ That a part performance will take a case out of the Statute of Frauds, is a 
 position supported by authorities too numerous and too overpowering to admit 
 of its being treated as au open question. Annan v. Merritt, V3 Conn., 478. 13ut 
 in Tennessee, it is expressly decided that part performance will not take a parol 
 contract, for the sale of lands, out of the statute. Patton v. .McClure, 1 Mart. 
 & Yerg., 833. As to the good policy of admitting exceptions, sucli as pat 
 performance, to the provisions of the Statute of Frauds, see Story's Eq Jur., 
 § 7(55, and note 1. 
 
 Part performance.~\ "Nothing in this title contained shall be construed to 
 abridge the powers of courts of equity to compel the speeitic performance of 
 agreements in cases of part performance of such agreements." This is the 
 language of the statute in Michigan, Com. Laws of Mich., 1«71. vol. 2, p. 145"), 
 ch. 16tj, § 8; Minnesota, Stat, of Minn., 187:^, vol. 1, p. 6i)2, § 18; Nebra.ska, 
 Stat, of Neb., 1873, ch. 25, § 6; New York, Rev. Stat, of N. Y. (6th ed.), vol. 
 3, p. 341, § 10; and Wi.sconsin, Stat, of Wis., 1871, vol. 2, ch. 106, § 10. This 
 has long been the settled rule in England. Lister v. Foxcraft, Gibb. Eq. Rep., 
 4; O'Herhky v. Hedges, 1 Sch. & Lef., 123; Bond v. Hopkins, id., 433; Warden 
 V. Jones, 23 Beav., 487; Kelley v. Webster, 10 Eng. L. & Eq., 517. No verbal 
 contract for the sale of lauds, "or any interest in the same, except leases for one 
 year or less, can be sustained in Alabama, "unless the purchase money, or a 
 portion thereof, is paid, and the piu'chaser be put in possession of the land of 
 the seller." Code, 1867, p. 411, § 1862. Any parol agreement to be valid in 
 California for the sale, or any interest in land, except leases for one year, must 
 have been in part performed by the part}' seeking to enforce it, and siich part 
 performance must have been accepted by the other. Code, § 1741. The statute 
 does not apply in Iowa, "where the purchase money, or any part thereof, has 
 been received by the vendor, or where the vendee, with the actual or implied 
 consent of the vendor, has taken and held possession under and by virtue of the 
 contract," Code, 1873, § 3663. An in.structive case on the question of part 
 performance of contracts in relation to real property, as well as a summary of 
 the cases, will be found in Wright v. Pucket. 2 Gratt., 370. The English ami 
 New York rule has been adopted in several of the States. Downey v. Hotch- 
 kiss, 2 Day, 225; Wilde v. Fox, 1 Rand., 165: .Johnson v. Johnson, 6 id., 37«); 
 Ash v. Doggy, 6 Ind., 259; Hoen v. Simmons, 1 Cab, U'J; Arguellov. Edinger, 
 10 id., 150; Kidder v. Barr, 35 N. H., 235; Hawkins v. Hunt. 14 111., 42; Gil- 
 more V. John.son, 14 Ga., 683; Johnson v. Hubbell, 10 N. J Eq., 332; Eyre v. 
 Eyre, 19 id., 102 In Pennsylvania, the agreement is not avoided by the stat- 
 ute, its effects are merely restrained. Tripp v. Bishop, 56 Pa. St., 424. 
 
 Pari performance no defense in the foUotoincj States.^ Maine, "it appears to 
 have been the intention not to authorize, under any circumstances, a decree for 
 the specific performance of a contract not made in writing." Shepley, J., iJi
 
 282 FKY (».\ SPECIFIC PKKFOrv.ArANCK UK COXTKACTS. 
 
 5J 550. Tliis exception is ba^ed on a principle of common 
 fairness, on the view that it is unjust in a man wlio has made 
 a bargain with another, to alloAv that other to act upon it, and 
 then to set up tlie want of a formality as a bar to its com- 
 plete performance by himself. The principle is the same as 
 that wliich gave rise to the real contract in Roman law, that 
 being a contract in wiiich the connection between the parties 
 was clothed with obligation, and so ceased to be nudum 
 jiactum, by force of the actual delivery of the subject of the 
 
 Wiltou V. Ilarwood, 23 Me., 131. Massachusetts, Buck v. Dowley. IG Gray, 
 5.i5; Abell v. Calderwood, 4 Cal., 90; Patterson v. Graton, 47 Me., 308; Skip- 
 witt V. Dodd, 24 Mass.. 487; Mississippi, Box v. Stamford, 13 Sm. & Marsh., 
 93; Beaman v. Buck, 9 id., 207; Hariston v. Jandon, 42 Miss., 380; North 
 Carolina, Ellis v. Ellis, 1 Dev. Eq., 345; Barnes v. Teague, 1 Jones' Eq., 277. 
 Under a prayer for general relief equity will, however, decree an accounting. 
 Baker v. Parson, 1 Dev. & Batt. Eq., 281; Alhea v. Griffin, 2 id., 9; Lane v. 
 Neilson, 1 Jones' Eq., 339; Tennessee, Ridley v. McNairey, 2 Humph., 174. 
 On the general question of part performance, see Allen v. Chambers, 4 Ired. 
 Eq.. 125; Lucket v. Williamson, 37 Mo., 388; Brooks v. Wheelock, 11 Pick., 
 439; Jacobs v. Peterborough B. R. Co , 8 Cush., 223; Hunt v. Roberts, 40 Me., 
 187. " If judges who allowed themselves originally to be seduced from it by the 
 hardship of particular cases had never swerved the statute itself, and the neces- 
 sity of adhering to its provisions, would have become so well known that many 
 of those distressing cases arising from parol contracts never would have oc- 
 curred, and at all times, as well now as soon after enacting the law, there would 
 have been less hardship and injustice if its provision had been strictly followed." 
 Coulter, J., in Fry v. Shipler, 7 Pa. St., 91. 
 
 Part performance not recogni'ed at laic.'\ The doctrine of part performance is 
 entirely confined to equity courts; at law, in order that a case rany be taken out 
 of the operation of the Statute of Frauds, there must be complete performance 
 by one of the parties to the contract. Lane v. Shackelford, 5 N. H., 130; Pat- 
 terson V. Cunningham, 12 Me., 506; Norton v. Preston, 15 id., 14; Allen v. 
 Booker, 2 Stew., 21; Johnson v. Hanson, 6 Ala., 351 ; Payson v. AYest. Walker, 
 Miss., 515; Thompson v. Gould, 20 Pick., 134; Adams v. Towusend, 1 Met., 
 4S3; Seymour v. bavis. 2 Sandf., 239; Duncan v. Blair, 5 Denio, 196; Thomas 
 v. Dickinson, 14 Barb., 90; Eaton v. Whittaker, 18 Conn., 22; Sailor v. Gam- 
 briel. Smith (lud.), 82. An instructive case on this questian is Squire v. Whip- 
 ple, I Vt., 73. 
 
 Reason for permitting part perfornianee to operatc.'\ " If, therefore, it be clearly 
 shown what the agreement was, and that it has been partly performed, that is, 
 that an act has been done, not a mere voluntary act or merely introductory or 
 ancillary to the agreement, by a part execution of the agreement, and which 
 would not have been done unless on accoimt of the agreement — an act, in short, 
 unequivocally referring to. and resulting from, the agreement, and si»ch that 
 the party would suffer an injur}' amounting to fraud by the refusal to execute 
 that agreement, in such case the agreement will be deci'eed to ])e specifically 
 performed." Maddock's Cli. Pr., vol. 1, p. 301; see, also, Buckmaster v. 
 Hanop, 7 Ves., 346; Mundy v. Jolliffe, 5 My. & Cr., 177; Meach v. Stone, 1 
 D. Chip. (Vt.), 182; Heth v. Wooldridge, 6 Rand, 605; Hamilton v. Jones, 
 3 Gill. &; Johns . 127; Merethen v. Andrews, 44 Barb., 200; Netherbw Rip'ey, 
 21 Te.K., 434; Mas-^n v. Blair, 33 111., 194; Nve v. Taggart, 40Vt.,'295; Glass 
 V. Ilulbert, 102 Mass., 35; Bremer v. Bremer"; 19 Ala^ 481; Farrar v. Patton, 
 20 Mo., 81; Dickerson v. Cheisman, 28 Me., 134; Hare v. Goodrich 33 N. H., 
 3i; Weber v. Marshall, 19 Cal., 447; Moore v. Small. 19 Pa. St.. 461 ; Pond v. 
 McWhorter, 50 Tex , 5f>2; Williams v. 3Iorris, 5 Otto, 457; Evans v. Lee, 12 
 Nev., 393; Ryan v. Dox, 34 N. Y., 307.
 
 STATUTE OF FRAUDS, ETC. 28B 
 
 contract. "In tlie real contract," says Sir Henry Maine, 
 "performance on one side is allowed to im})()se a legal duty 
 on the otlier, evidently on ethical grounds." (/i) 
 
 § 557. In order thus to withdraw a contract from the 
 operation of the statute, several circumstances must concur: 
 1st, the acts of part performance must be such as not only 
 to be i-eferable to a contract such as that alleged, but to be 
 referable to no other title : 2ndly, they must be such as to 
 render it a fraud in the defendant to take advantage of the 
 contract not being in writing : 3rdly, the conti-act to which 
 
 (k) Ancient Law (6th ed ),. ^2. See, also, pige 338. 
 
 Wftat must be sliown, in order that part performmice may take agreement out of 
 the operation of the statute.'] Where part performance is relied upon, it must 
 be something performed with the actual or constructive knowledijce and assent 
 of the other party. It must directly refer to the agreement, and be a partial 
 execution of it ; and the party who seeks to complete the same must be dam- 
 aged, if it is not enforced. Anderson v. Chick, 1 Bailey's Eq., 118; Smith v 
 Smith, 1 Rich.'s Eq.. 130; Hatcher v. Hatcher, 1 McMull.'s Eq., 811; Woolf 
 V. Frost, 4Sandf.'s Ch., Ti; Eckert v. Eckert, 3 Prim. & Watts, 333; Dale v. 
 Hamilton, 5 Hare. 381; Buckmaster v. Hanop, 13 Ves., 4.'56; Lacon v. Meetius, 
 3 Atk., 1; Powell V. Lovegrove. 8 De G. M. & G., 357; Eaton v. Whiltaker, 
 18 Conn., 22:i; Kidder v. Barr, 35 N. H., 235; Moale v. Buchaunan, 11 Gill. & 
 John., 344; Morphett v. Jones, 1 Swaust.. 172; Peckham v. Barker, 8 R. I., 17; 
 Richmond v. Foote, » Lans.. 244; Hedrick v. Hern, 4 W. Ya., G20; Welsh v. 
 Bayard, 21 N. J. Eq., 18G; Lester v. Kinne, 37 Conn., 9; Billiugslea v. Ward, 
 33 Md , 48; Wright v. Puckett, 22 Gratt , 370; Davenport v. Mason, 15 Mass., 
 84; Stoddart v. Luck, 4 Md. Ch., 475; Semmes v. Worthiugloii, 38 Md., 289. 
 
 Part performance must have sole relation to the agreement.'\ In order that a 
 parol contract for the sale of land may be removed from the operation of the 
 Statute of Frauds, the evidence must establish the following facts: The bounda- 
 ries of the land audits quality; the amount of consideration must be fixed; 
 possession must be taken under the agreement soon after it was made; change 
 of possession must be continuous, notorious and exclusive, and the part per- 
 formance must be such that he cannot be reasonably compensated in damages. 
 Hart V. Carroll, 85 Pa. >t., 508. The acts of part performance which will be 
 sufficient to prevent the opei-ation of the statute must be certain, and refei- to 
 an agreement of which they form a part, and which they partially execute; 
 they must have no other end in view than the contract in question. Wheekr 
 V. Reynolds, GO N. Y., 227; Thyue v. Lord Glengall. (i H. of L., 153; Ralhbuu 
 V. Rathbun, C. Barb., 98; Mundorff v. Howard, 4 ild., 45!J; Aday v. Echols, 
 18 Ala., 353: Whitridse v. Parkhurst, 20 Md , (52 ; Brema v. Wilson, 17 N. J. 
 Eq., 18<»; Smith v. Crandall, 20 Md., 482; Bnntou v. Smith, -0 :<- H., 352; 
 Charpiot v, Sigersou, 25 Mo., 63; Wallace v. Brown, 10 N J. E.|., 3U8; Cole 
 V. Potts, id., 67; Williamson v. Williamson, 4 Iowa, 279; Eyre v. Eyre, 19 N. J. 
 Eq., 102; Petrick v. Petrick, 19 id., 3;-!9; Goodhue v. Barnwell, Rice's Eq., l!)8; 
 Owiugs v. Baldwin, 8 Gill., 337; Carlisle v. Flemming, 1 Harring. (Del.), 421. 
 
 The question of assent should he carefully considered.'] A contract cannot be 
 predicated upon a chance or loose conversation, notwithstanding the ])arties 
 may seem to have come to an agreement The que.-tion of assent shou'nl be 
 carefuUv considered as it is important; ail the attendant circumstances should 
 be Aveidied as well. The following instruction was held sound, and sustained. 
 "If the jury believe that all the terms of the contract were not finally arranged 
 the first day, but that the entire contract was to be arranged and reduced to 
 writing the next day, there was no binding contract between the parties unless 
 a contract was proved to have been made on the next day, or on some subse- 
 quent day." Per curiam, Brown v. Finne}', 53 Pa. St., 373.
 
 284 FRY ON SPECIFIC PEIlFOmrANCE OF CONTRACTS. 
 
 tliey refer must be such as in its own nature is enforceable 
 by the court : an-l 4thly, th>^ve TTiiist l)e 2:)roper parol evidence 
 of the contract which is let in by the acts ofpart i)erfoniiMnce. 
 
 jj 058. First, then, it seems evident that all that can be 
 gathered from acts of pjart performance is the existence of 
 some contract in pursuance of which they are done, and the 
 general character of the contract : they cannot, unless pos- 
 sibly in some very singular case, be themselves sufficient 
 evidence of the particular contract alleged, because they 
 cannot in themselves show all the terms of the contract 
 from which they flow. They may be evidence of an un- 
 known contract, but the making known what that contract 
 is, must be the result of the evidence which the acts in 
 question are allowed to introduce. (Z) It cannot be denied, 
 that there is some want of exactitude in the statements 
 sometimes made in this respect, as, for instance, where it is 
 said that the acts must, be referable to the alleged contract ; 
 and Lord Redesdale seems to have held that, to admit parol 
 evidence, the part performance must be such as to show the 
 very same contract as the plaintiff alleged. So, that in 
 a case where the plaintiff stated a parol contract for a 
 lease for three lives, and payment of rent in part per- 
 formance, and the defendant admitted a contract, but for 
 one life and not for three, his lordship said that the Statute 
 of Frauds put it out of the power of the court to execute 
 the contract for the lease for three lives, the part perform- 
 ance being perfectly consistent with the contract alleged by 
 the defendant, and that, therefore, there was no case to ad- 
 mit proof of a further contract, (m) 
 
 § 550. The true principle, however, of the operation of 
 acts of part performance seems only to require that the acts 
 in question be such as must be referred to some contract, 
 and may be referred to the alleged one ; that they prove 
 the existence of some contract, and are consistent with the 
 contract alleged. This is very well illustrated by a case in 
 the common pleas on the 17th section of the Statute of 
 Frauds, by which acceptance is treated as such an act 
 of part performance as disp>enses with the necessity of 
 
 (0 SeeperLorfl Vlvanlev, M. R , in Forster (m) Limlsav v. Lynch, 2 Seh. & Lef.,1,8. 
 V Hale, 3 Ves., 71'2; per Wigram, V. C, in See infra, § 613. 
 Dale V. Haiiiiltoii, 5 Ua., 381.
 
 STATUTE OF FRAUDS, ETC. 28.") 
 
 writing, (tz) It was there held that bare acceptance of the 
 goods by the vendee was sufficient to satisfy that section 
 of the statute, so that, although the vendee, immediately 
 after accepting them, stated that he did so on terms differ- 
 ent from those on which the vendor delivered them, yet the 
 acceptance having established the fact of a contract of sale, 
 parol evidence of its terms was admissible. It was there 
 strongly urged that tlie acceptance must be equivalent to a 
 memorandum in writing, and must show all the terms of 
 the contract ; but the doctrine was denied by the learned 
 judges, both during the argument and by their decision of 
 the case. Williams, J., in the course of his judgment, said, 
 "The legislature has thought that where there is a fact so 
 consistent with the existence of a contract of sale as the 
 actual acceptance of part of the goods sold, the necessity 
 of a written evidence of the contract might safely be dis- 
 pensed with. But it is clear that it was not meant to go to 
 all the terms of the contract ; and that acceptance is no evi- 
 dence of the price, but only establishes the broad fact of 
 the relation of vendor and vendee. So, where there is proof 
 of part performance, the jury must settle all the other facts 
 that go to make up the contract, "(o) 
 
 § 360. In like manner Mr. Austin, in one of his Frag- 
 ments, has called attention to the "distinction between such 
 solemnities of a contract as are merely evidence of a con- 
 tract, and such as are evidence of a contract and of its 
 terms:' "Earnest, for instance," he adds, "is merely evi- 
 dence that a contract was made : its subject, its terms, etc., 
 must be established by evidence allunde:\iS) 
 
 § dGl. To make the acts of part performance effective to 
 take the contract out of the Statute of Frauds, they must 
 be consistent with the contract alleged and also such as can- 
 not be referred to any other title than a contract, nor have 
 been done with any other view or design than to X)erform a 
 contract \{q) therefore, if a tenant in possession sue for the 
 specific performance of an alleged contract for a new lease, 
 the mere fact of his continuance in possession will have no 
 weight as an act of part performance of the contract, being 
 
 (n) Tomkinson v. Stalght, 17 C B., 697. (?) Gunter v. Halscy, Ambl.. 686. Consider 
 
 (o) 17 C. U., 707. Trice v. Salusbury, 32 Beav., 44b. 
 
 (p; Lectures (.3d ed.), 940.
 
 286 FRY ON SPKCIFIC PEIIFMIJ-MAXCE OF COXTUACT.S? 
 
 referable to liis cliaracter ns tenant. (r) Where a tenant 
 untler a term alleged the rebuilding of a xmrty-wall, which 
 was in a ruinous state during his term, as part x^erformance 
 of a contract by liis landlord to grant a renewed term : it 
 was held that the act was equivocal, as it might have been 
 done by him in respect of his new title under the old as well 
 as under the alleged new term. (5)' The cases in which pos- 
 session is an act of part performance will be considered 
 IDresently.(Y) 
 
 § SGH. Secondly, the principle upon wdiicli the court 
 exercises jurisdiction in adjudging specific x>erformance of 
 parol contracts followed by part performance, is the fraud 
 and injustice which would result from allowing the party 
 chai'ged to refuse to ])erform his part, after performance by 
 the other upon tlie faith of the contract and wdth the knowl- 
 edge of the party charged :{tc) and this j^rinciple extends 
 not only to contract w^liich, but for such part performance, 
 would be void by reason of the Statute of Frauds, but also 
 to such as, being entered into by corporations, are invalid 
 for want of their corporate seal.(??) 
 
 §*»<>!$. "Courts of equity," said Lord Cottenham,(?o) 
 
 (r) Wills V Stradling-, 3 Ves., 378 See, (0 Infra, § 576 et seq 
 
 too. per Lord Eulon in Ex parte Hooper, 19 (m) Per Grant, M. R., in Buckmaster v. Har- 
 
 i(l.,479; per Plumer, M. K., in Morphett v. rop, 7 Ves., 346. 
 
 Jones, 1 Sw, 181; 5 Vin, Abr , 323, pi. 41; (v) See infra, § 622, and Steevens' Hospital 
 
 Phillips V. Aldenon, 24 W. K., 8; and Brm- v. Dvas, 15 Ir. Ch. R., 4'».i, 421. 
 
 nan v. Boiton, 2 Dr. & War., 349. (w) In Mundy v. Jolliffe, 5 My. Cr., 177. 
 
 (s) Frame v. Dawnon, 14 Ves., 386. 
 
 ' la Crocker v. Iliggiu.s (7 Conn., 342), it is decided that an agreement within 
 the Statute of Frauds, carried into execution on one part by acts performed 
 ■with a irieic to the af/reement claimed, is thereby taken out of the statute, and may 
 be proved by parol evidence. It was held, in Harris v. Knickerbacker (5 
 "Wend., 68S), that an act alleged as part performance must be such as would 
 not have been done, except on the contract. In Carlysle v. Fleming (1 liar- 
 ring. Ch., 421), it is said that the acts alleged must appear unequivocally to have 
 been done in pursuance of the contract. Ellis v. Ellis (I Dev. Ch., lii> ), is 
 almost a repetition of the words used in Gunter v. Ilalsey, cited in the text. In 
 that case it is said, tliat an act under a parol contract must l)e of such a nature, 
 in order to take a case out of the statute, as a part performance, it could not 
 have been done, except witii reference to the contract. In Anderson v. Chick 
 (1 Bailey's Ch., 11«). it is said that the act claimed as part performance must 
 have been, and intended to have been, done in pursuance of the contract. In 
 order to show part performance of a contract to convey land, the claimant's 
 pos.session must be referable to the agreement to convey. Jervis v. Smith, 1 
 Hoff. Ch., 470. To take a case out of the statute, on the ground of part per- 
 formance, it is held, in Fiiilips v. Thomp.son (1 .John. Ch., 181), that the con- 
 tract must be clearly proved, and the act must be in part performance of that 
 particular contract. Lord v. Underdunk (1 Sandf. Ch., 4C), is precisely a 
 parallel case with .Jervis v. Smith, already cited. See Smith v. Underdunk, 1 
 Sandf. Ch., 57i); Byrne v. Romaine, 2 Edw. Ch., 445; Casler v. Thompson, 
 3 Green's <'h., 5!i; MclMurtrie v. Bennett, Harring. Ch., 124; Hatcher v Hatcher, 
 1 Mc^ilullan's Ch., 811.
 
 • STATUTE OF FRAUDS, ETC. 287 
 
 " exercise their jurisdiction, in decreeinc; specific perform- 
 ance of verbal agreements, where fhere has been part per- 
 formance, for the ]mi-pose "f preventing the great injustice 
 which would arise from permitting a party to escai)e from 
 the engagements he has entered into, upon tlie ground of the 
 Statute of Frands, after the other party to the contract has, 
 upon the faith of such engagement, expended his money or 
 otlierwise acted in execution of the agreement. Under such 
 circumstances, the court will struggle to prevent such injus- 
 tice from being effected ; and, with that object, it has, at 
 the hearing, when the plaintiff has failed to establish the 
 precise terms of the agreement, endeavored to collect, if it 
 can, what the terms of it really were." 
 
 § 564. Such being the principle on which the court 
 acts, it follows that, wherever the acts of the party to be 
 charged have caused no change of circumstances in the 
 other party, (rr) and wherever the acts of part performance 
 by the one are not such as to render refusal by the other 
 party to perform the contract a fraud in him, however 
 clearly they may evidence the existence of a contract, there 
 the jurisdiction in question can have no application; and this 
 may be the case either from the character of the person per- 
 mitting the acts, or from the nature of the acts themselves. 
 § 565. From what has been said, it appears that the acts 
 of part performance must in all cases be done by the person 
 asserting the contract with the knowledge of the person 
 sought to be charged that the acts are being done and are 
 being done on the faith of the contract; without such knowl- 
 edge there would be neither injustice nor fraud. 
 
 § 566. On the ground that the character of the person 
 permitting the nets prevented the notion of fraud, it has 
 been decided that where a plaintiff seeks to enforce against 
 a remainderman a parol contract entered in!o between the 
 plaintiff 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 shovrn that he permitted 
 the acts of the plaintiff with a knowledge of the contract 
 entered into by the tenant for life.(?/) For to constitute 
 
 in 
 ( 
 Redesdale in Shannon v. Uradfctrett, 1 irca. sou.
 
 28S FIIY ox SPECIFIC PERFORMANCE OF CONTRACT^. 
 
 fraud, tliere must coincide in one and the same person 
 knowledge of some fact and conduct inequitable having 
 regard. to such knowledge. And again, on the same princi- 
 ple, 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 
 duty, are not part performance of a parol contract for a 
 compromise and division of estates by arbitrators. (^) 
 
 § 567. From the nature of the act it follows, that though, 
 as we shall hereafter see, it has been a question how far the 
 acceptance of part of the iDurchase money binds the ven- 
 dor, the payment of this on the part of the purchaser can 
 in no wise bind him, because to refuse to complete the con- 
 tract after paying "jDart of the purchase money, would be 
 no fraud upon the seller, but his own loss."(ct) The ques- 
 tion was raised in a case where the co-heirs of a purchaser 
 sought the enforcement of the contract against his personal 
 representatives, and set uj) his i^art payment as a part per- 
 formance, making it a binding contract ;(6) but, on the 
 ground above stated, Grant, M. E,., decreed against the claim 
 of the heirs. 
 
 § 568. Upon the same principle it seems doubtful w^hether 
 any acts which admit of alternative remedies, one by the e:^e- 
 cution of the contract and another by some other means, as, 
 for instance, a compulsory taking under the lands clauses 
 consolidation act, can be taken as part performance ; be- 
 cause there is no fraud on the other party if the remedy 
 other than that by execution of the contract be pursued, (c) 
 
 § 569. Thirdly, the contract which the acts of part per- 
 formance allow to be set up by parol evidence must be of 
 such a nature as that the court would have had jurisdiction 
 to enforce it specifically, if it had been in writing. In this 
 respect the jurisdiction of the high court is the same as that 
 of the court of chancery. The rule in the latter court was 
 that where tliere was jurisdiction in the original subject 
 matter, viz., the contract, the want of waiting would not 
 deprive the court of it, where there was part performance. 
 But the want of writing could not itself be made the ground 
 
 (z) Cnoth V. JacksoB, 6 Ves., 12. (c) See per Lord Cranworth iu Morgan v. 
 
 (a) 7 Ves., 345. MUman, 3 De (i. M. & G., 35. 
 
 (6) Buckinaster v. Harrop, 7 Ves., 341; S. 
 C, on appeal, 13 id., 456.
 
 STATUTE OF FEAUDS, ETC. 289 
 
 of jurisdiction ; for, if that were so, all parol contracts re- 
 quired by the Statute of Frauds to be in writing, and in 
 part performed, might liaVe been enforced in equity, which 
 was not the case. Accordingly, a demurrer to a bill for 
 work and labor done, alleging fraud and part performance, 
 was allowed by Lord Cottenham.((^)' 
 
 § 570. This principle is illustrated by ca-es in which tliere 
 has been a want not of writing, but of a seal Thus, where 
 the plaintiff stated a claim against a company for work and 
 labor done on the estate of the company, and alleged that, 
 as the contract was not under seal, and as the company 
 claimed the legal estate in the land, he had no remedy ex- 
 cept in chancery, a demurrer by the company to tlie plain- 
 tiff's bill was allowed. (d) 
 
 §571. So, again, where the engagement is of an hon- 
 ed) Kirk V Bromley Union, 2 Ph , 640. original jurisdiction in respect of building 
 Tlie case of Pembroke v. Tliorpe (S Sw., 437, contracts. See supra, § 76. 
 n.), may appear at variance with ihis view, (e) Crampton v. Vania Kailway Co , L. R, 
 but will be reconciled bv con8i<lerinjr that 7 Ch , £62. 
 Lord Hardwicke held the court to have an 
 
 > Valuable improremenU made by vendee upon real property under a contract for- 
 its purcJia^e.] It is a well-settled rule that, wliore possession has been surren- 
 dercd under a parol contract, and the vendee has entered and made valuable 
 improvements, which have enhanced the value of tlie property, that act consti- 
 tutes a part performance Avhich will take the case out of the operation of the 
 Statute of Frauds. Wills v. Stradlinii-, :^ Ves., 878; Savage v. Foster, 5 Yin. 
 Abr., 524; Stockley v. Stocklev, 1 V. & B., 28; Sutherland v. Brijrs, 1 Hare, 
 26; Mundy v. Joliffe, 5 My. &"< r., 167; Toole v. Medlicott, 1 Ball & B.. 393; 
 Surcome v. Pinniger, 3 De G. M. & G., 571; Newton v. Swazey, 8 K H., 9; 
 Annara v. Merritt. 13 Conn., 478; Tiltcn v. Tilton, 9 N. H., 385; Dugan v. 
 Colville, 8 Tex., 126; Blakely v. Ferguson, 3 Eng. (Ark.), 272; Grant v. Ram- 
 sey, 7 Ohio St., 157; Casler v. Thompson, 3 Green's Ch., 59; Kidder v Barr, 
 35 K H., 236; Mason v. Wallace, 3 McLean, 148; Saier v. Hill, 10 Ind., 176; 
 Minis V. Lockett, 33 Ga , 9: Cuuiminos v. Gil!, <j Ala., 56!; W illiston v. Wil- 
 liston, 41 Barb.. 63o; Hoffman v. Fett, 39 Cal., 109; Despain v. Carter, 21 Mo., 
 331; Green v. Finn, 35 Conn., 178; Netherby v. Ripley, 21 Tex, 434; Tohler 
 V. Folsom, 1 Col., 207; School District v. McLoon, 4 Wis., 79; Massey v. 
 McIUwane, 2 Hill's (S. C.) Ch., 421: Johnson v. McGrader, 15 Mo., 365: Finn- 
 cane v. Kearney, Freem.'s (Miss.) Ch., 65; Oulenhouse v. Burleston, 11 Tex., 
 87- Blunt v. Tomlin, 27 111., 93; Bonner v. Cauldwell, Harrinir.'s (Mich ) Ch., 
 67'; Mason v. Blair, 33 111., 194; Brock v. Cook. 3 Port., 464; Morelaud v. 
 Lemasters, 4 Blackf., 383; Edwards v. Fry, 9 Kan., 417; Greg v. Hamilton, 12 
 id.. 333; Johnson v. Bowden, 37 Tex., 621; Clatou v. Frazier, 33 id., 91 ; Home 
 V. Rogers. 32 id., 218; Freeman v. Freeman, 43 N. Y., 34; Ingels v. Patterson, 
 30 Wis., 373; Patterson v. Copeland, 52 How. Pr., 460; Perkins v. Hadsell, 50 
 111., 216; Shirley v. Spencer, 4 Glm., 583; Thornton v. Henry, 2 Scam., 218; 
 Kellv V. Staiusbury, 13 Ohio, 408; Haines v. Haines, Md., 435; Tracey v. 
 Tracey 14 W. Va., 243; Vickers v. Sisson. lO id., 12: Pfiffm r v. Stillwater 
 and St. Paul R R. Co., 23 Minn., 343. In De Wolf v. Pratt, 42 111 , 198, wiU 
 be found the followiua;: ''A verbal contract for the sale of land will be enforced, 
 where it is shown to have been fairly made, on a valuable coDs:deration, a con- 
 siderable portion of the purchase money paid, no unreasonable delay in paying 
 the whole, possession taken, improvements made, no disposition shown by the 
 plaintiff to evade the contract, and no evidence of hardship." 
 
 19
 
 290 FllY ox SPECIFIC PEIIFOIIMANCE OF CONTRACTS. 
 
 orary and not of a legal character, part performance gives 
 the court no jurisdiction. (/) Thus, in the case of Lord 
 Walpole V. Lord Orford,(/7) where two testators on the 
 same daj^ and in the presence of the same witnesses, exe- 
 cuted mutual wills ; one of the testators having died, it 
 was argued that there was part performance under circum- 
 stances which could only be referred to a contract between 
 the testators to make such wills ; but Lord Kosslyn, though 
 inferring an agreement of some sort, held it to have been a 
 merely honorable engagement, and one which the court 
 therefore could not carry into effect. 
 
 § 572. On the same principle there can be no part per- 
 formance of an incomplete contract. For acts to amount 
 to part performance, the contract "must be obligatory, and 
 what is done "must be done under the terms of the agree- 
 ment and by force of the agreement. "(//) 
 
 § 573. Where, however, the owner of a ship-building 
 yard proposed to construct a siding from it to a railway 
 station close at hand, and obtained from the railway com- 
 pany a general assent to his proposal, and proceeded to 
 make the siding, without the details of the arrangement 
 having been agreed upon, and after the construction of the 
 siding was allowed to use it on terms embodied in an in- 
 formal memorandum ; it was held that even had there not 
 been any actual user, the court would probably have found 
 means to enforce the completion of some arrangement by 
 which the comx)any would have been compelled to allow 
 the siding to be used on reasonable terms, and that, the 
 memorandum showing what were reasonable terms, an ar- 
 rangement on that footing would be enforced (/) 
 
 § 574. It is, perhaps, scarcely needful to observe that 
 where the j)OSsession taken is not under a contract but ad- 
 verse, the circumstance that there is no common-law remedy 
 does not suffice to give the court jurisdiction. (,/) 
 
 § 575. The general character of the acts which are requi- 
 site to constitute part performance for the i3urpose in ques- 
 tion having been stated, it is proi:)osed now to show the 
 
 (/) Cf supra, § 3;)!. (i) Laird v. Birkenhead R'y Co., Johns., 
 
 {q, ?, Ve3.,41i2 500. 
 
 (h) PcfLortiKrouKhaminLa'lvE.Thj'nne ( y) East India Co. v. Nuthutnbadoo Veera- 
 
 V. Karl of Gleiigall, '2 £1. L.C , 158. sawiui Aloodelly, 7 Moo. P. C. C, 482.
 
 STATUTE UF FKA UDS, KTC. 1 91 
 
 result of tliese priiu-iijles in respect of som.- lariinilar 
 acts.(A-) 
 
 § 576. Possession is in some cases equivocal in resi)ect 
 of the title to which it is to be referred :(/) in other cases it 
 is not : therefore, the possession of a tenant, after tlie ex\)l- 
 ration of a lease, which was referable only to a contract for 
 a renewal, has been considered pait performance of such a 
 contract.! //d)' 
 
 v^ .177. 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 on an antecedent con- 
 tract. '\y/)' Thus, to refer to an often cited case, where a 
 
 (*) Coini.lur, In iuMitioii to the eases rfi- jr^ve, S l)e (i M A (J., :t'i7, 3iJ7 Diallnguish 
 
 feriH'l V> ill the U\t Ki-lly v. A aUh, 1 L. U lira.ly'n Ca^e, 15 \V li ,7.')J. 
 
 Jr., 'iT.'), where Klviiijf coiineiU to H l«a.se was (;i) I'er I'luintr, M. It, In .Morphett v, 
 
 hclil u> he, uiiilcr the circuiiistanced of tiie .loii' 8, 1 sw , 'f"!. S«-f,ar<-i>rilinf;lv, Kiiictier 
 
 ca-e, ail aet "I' part ptTlorinanc^;. v St^pelv, 1 Vern, littJ; I'j k>- v. W llh.iino. -J 
 
 (/) See l^aiuare v. Dt\«m, L. II li H. L., M.,4.V>; Karl nl Ayle»l'.>ril u Cat>e, "i Sir , Tsi; 
 
 414; Milhiril v. Harvcv, 34 Beav., 2S7. Sfwnrt v. Deiiloii, 1 Koiilil K<| , le7; .Snvage 
 
 (III) Dowell V. Dew, 1 V. A C. (J. C ,.U'>; v Carroll, 1 U.ill A I!., Jim; Kliie v llaife, • 
 
 li L.J. Ch , IV; <I. Uuikinaster v. Harrop, 1<I.,:J4.!; Dale v. llainilton. 5 H.i , :Wi; Pain 
 
 1.; Vp<., 45(;, 474; Mll'anl v. Harvev, 13 W v. ( ooiiihf, 3 Suj. A «JII , 44'.t; S. i' , 1 Dc G. 
 
 11., ii:>: lu Jiir. ,N. ts ), llt;7; l-owell'v. l.ovo- A .1 . :;4. 
 
 ' Rule irhfre poiott'ssioii has heeii enteird upon. ] Tlic doclriiR' uf jiart perforin- 
 ance by possessiou of tlic veuclcc i.s now well cstiibli.sla'd, bolli iti ihi.s cDUutry 
 and iii"l-^ii,iz:liincl. Mi'. Justift; Slory suy.s: "If upon ti paiol iiirreenR-nt a inuu 
 is adniittril into jxissession, lu; is inadL' a trL's|)assi.'r, and is iialilc to answer as a 
 trespasser if tlure be no agreement valid in law or eipiity. Now, for the pur- 
 po.se of defending himself against a charge as a trespasser, and a .Miit to aecouut 
 for the profits in such a case, the evidence of a parol agreement would .seem to 
 l)e admissible for his protection, and if admissible for such a purpose there .seems 
 no rea.son wliv it shoidd uot be admi.ssibie throughout." Story's Ya\. Jur.. 
 § 761. See. also, Pugh v. Good, ;J Watts k, Seig.. .")U; Simmonds v. Hill. 4 
 Har. & ]\Ichew , 2'")1 ; .Jones v. Peterman. :; Serg A: Puiwle, ."»4:J; Hums v. Suth- 
 trland, 7 Pa. St., Hi:}; Davis v. Townsend, Id Barb., ;;aj; Ha-^sler v. Niesly. 3 
 Seiii. k Rawle, 3r)2; Letcher v. Crosby, 2 A Iv. >[arsh . J (Hi; Wilber v Paine. 
 1 Ohio St., 'Z■^\\ Abbott v. Draper, 4 ]")enio, 31; Peifer v. I.andis. 1 Walts. ;;Si2; 
 McFarland v. Hall. :J id., ;^.7; Miller v. Hower, 'i Howie, ri;}; Gill v. Newman, 
 18 Minn., 4(52; Folmer v. Dale. Pa. St.. 83; Smith v. Underdunk, 1 Saudf. 
 Ch., oT'J; roidrii, < atlett v. Bacon, 88 Mass., 20i». The rule is very much 
 strengthened by the fact that the iio.s.session is accompanied or pr<i-ed(»l by the 
 payment of the purchase money, or some i)art of it. Pike v Morey, 82 Vi,. 87; 
 Drury v. (\)nner, (i H.ir. vt .lohns , 2.'^S; Stevens v. Wheeler. 2:) 111.. .iOii; fnder- 
 hill V.Williams, 7 IJlackf.. 125; Tibi)s v. Barker, 1 Blackf., .*>S; Byrd v. Ddem. 
 
 Ala., 7."")."); Sutton v. Sutlon. 18 Vt . 7i; Wimberly v. Bryan, .V> Ga.. ll»8; 
 Fit/simmons v. .VUen, 81) 111., 4U); Billington v Welsh. 5 Binney. 12U; Gilday 
 V. AVatson, 2 Serir. ic Kawle, 407; Adams v. Fulham, 48 Vt , ."iOi; A.sU'r v. 
 Lamareiux, 4 Sandf., 'rlA; Kellnms v. HichanUon. 21 Ark., 187. "The 
 ackuowledu-ed i>os.se.ssion of a stranger of the land of another is not aj)plical>lo, 
 except on the supposition of an agieeinent. and has, therefore, ('onslantly iHt-n 
 received as evidence of an antecedent contract." Sir T. Plumer. J., in Mor- 
 phett v. .Tones, 1 Swanst., ISl; Butcher v. Sheply. 1 Vern.. 80;]; Pyke v. Wii- 
 liams, 2 id., 45">. 
 
 •-' But in these cases actu.il delivery of posst'ssion, or jiwnt \o taking posses- 
 sion must be shown. AVroni^ful possession is not sufHcienl .lervis v. Smilli, 
 
 1 Hoff. Ch. 470- Lord v. L luierdunk, 1 Sandf. Ch., 40; sec Wagt>ner v. Speck,
 
 292 FRY ON SPECIFIC PERFORMANCE OF CONTRACTS. 
 
 parol contract for a lease was made, and the terms of it were- 
 au'reed on between tlie proposed lessor and lessee, and by 
 tile direction of the lessor the lessee instructed a solicitor, 
 who acted for both parties, to reduce the terms to writing ; 
 and the solicitor took a note of the terms thus stated to him, 
 and from it prepared a draft contract embodying these and 
 other terms, which he submitted to the lessor, who after- 
 wards, without objecting to it, let the lessee into possession, 
 and directed the solicitor to prepare a lease in pursuance of 
 the draft contract ; and a draft lease was accordingly pre- 
 pared, to which the lessor objected, and gave the tenant 
 notice to quit :— the court held that there was part perform- 
 ance of the contract, and enforced the same accordingly. (o> 
 
 § 578. Even where the possession has been taken with- 
 out consent, yet if the owner afterwards allow the stranger 
 to remain in possession, this will, it seems, operate as an 
 act of part performance. (^) 
 
 § 579. Possession is, it must be observed, part perform- 
 ance both by and against the stranger and the owner :{q} 
 the owner has allowed the stranger to do an act on the faith 
 
 (o) Pain V Toombs, 1 De G. & J , 34 See, I-or<1 Kinesdown In Ramsden v. Dyson, L. R_ 
 
 too, Miilerv. Finlay.SL T. (N.S.), .MO. 1 U. L , 170. ,^ , „ ., ,^., 
 
 (v) Gregory V. Mi^bell. 18 Ves., 328; Pain (q) Wilson v West Hartlepool Railway 
 
 V. Coombs. 1 De G. & J., 34 46. See, too, per Co , 3 De G. J. & S., 476, 48.5. 
 
 3 Ham., 294; Weed v. Terry, Walk. C\\., noi. It was held, in Smith, v. 
 TJnderduuk, 1 Saudf. Ch., fiTO, 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 onlv, and agieed to convey the other presently, and the 
 purchaser paid the whole price and entered into possession of both parcels, on 
 recei\nna: the deed for the one, the contract was nijt merged iu the deed, and 
 that theVii'chaser's assent to tiie delay, ;;nd the vendor's agreement to give a 
 deed for the second parcel, did nul constitute a new agreement, or substitute 
 for tlie first; but that the conveyance by one parcel was a part performance of 
 the original contract In Pugh v. Goods, :3 Watts & Serg., 50, it was said that 
 the delivery of the possession of the whole of the land sold, is sufficient, aQd 
 entitles the parties to a .specific performance. But in Allen's Estate. 1 Wiilt.s & 
 vSerg., 38:^, 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., 3-11. a purchaser of land was put in pos- 
 session, 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., 811, it is decided that remaining in possession by the pur- 
 chaser, if he was in possession at the time of his purchase, does not constitute 
 such a part performance as will take the case out of the statute. See Brock v. 
 Cook, 3 Porter, 464; Johnson v. Glancy, 4 Blackf., 04. But if the vendee takes 
 and continues possession of the premises, under the contract, and especially if 
 he makes valuable improvements on them, this will be sufficient to satisfy the 
 statute. Johnston v. Glancv, 4 I51a(;kf., 91 : Tibbs V. Barker, 1 id., 58; More- 
 land V. Lemaster, 4 id., Syg; Thornton v. Henry, 2 Scam., 218; see Keats v.. 
 Eector, 1 Pike, 391.
 
 STATUTE or rUAUDS, KTC 293 
 
 •of tlie contract, viz., enter on tlie land: tlie stranirer lias 
 allowed the owner to do an act on the faith of the contract, 
 viz., withdraw from tlie land. Tliey are, therefore, both 
 bound. 
 
 § 580. Possession is, as already i)oint<^d out, part per- 
 formance as well against a comi)any as against a natural 
 person, (r) 
 
 ^ olSl. It is not only in contiacts for a sale or a lease that 
 possession is part performance. It may let in parol evidence 
 of any contract explaining the possession. Thus, where A. 
 was in possession of his own land subject to a mortgage, 
 and he, as he alleged, contracted with B. that B. should 
 purchase the land from the mortgage^ and hold it for the 
 benelit of A., subject to certain terms for the repayment of 
 the purchase money, and B. afterwards set up the purchase 
 as being an absolute one for his own benelit, the continued 
 possession of A. as owner of the land was held to be part 
 performance of the contract alleged by him.(.sr) In another 
 case A., by parol, agreed to allow B. the occupation of a 
 leasehold house for life, on payment merely of ground rent, 
 rates and taxes. E. was i)ut into jiossession, and that pos- 
 session was held to preclude any objection on the ground 
 of the statnte.(0 
 
 s^ 382. Many c:ises have also risen in respect of marriage 
 contracts, where the part performance has excluded the 
 •operation of the statute. Thus, in a c:ise, where there was a 
 parol pnmiise before marriage to give certain pi-operty to the 
 married pair by the father of the intended wife ; the marriage 
 took place, and was followed by the delivery up of posses- 
 sion to the son-in-law, ex})eiiditure of money by him, and 
 the absence of all disturbance on the part of the father-in- 
 law ; these acts were held to be in i)art performance of the 
 •alleged ante-nuptial conti'act.(//) And so wheiv a father 
 verbally promised, in consideration of his daugliter's mar- 
 riages to give hor a liouse as a wedding pr.-seiit. and inim*^- 
 diately after the marriage put the daughter an<l her hu>band 
 into possession, and continued himself to pay what became 
 due to a building society in respect of an existing mortgage 
 
 ()■) S C. f«) Purcome v rinnlior. 3 De O. M. & G., 
 
 (•;) liiico'ii V. Wrizht, 2S L. -F. Ch., 7ii5; S. .'>7l ^ee, also, Floya v. Itucklaml, 1 hcrra., 
 
 •C.. 7 \V , ]2t,3.iO; 4 |)e (i & J , Mi -JGS. 
 {t) Coles V. PilkirigKMl, 1.. U. Ill Ef| , 17t.
 
 291 FKY OX SPECIFIC PEKFOKMANCE OF CONTRACTS. 
 
 on the liouse, it was lield by the court of appeal (affirming 
 the decision of Malins (V. C), that the possession took the 
 case out of the statute, and that the bahmce due to the 
 building society on the father's death was payable out of 
 liis estate. (?') 
 
 i$ i58Jl. The same principle applies in cases of family ar- 
 rangements involving the giving up, partition, or exchange 
 of land ; so that though such arrangements may be by parol, 
 yet, if they be followed by uninterrupted exclusive enjoy- 
 ment of the several lands in pursuance of the arrangment,. 
 the court will specifically enforce them.(?^) 
 
 § 584. In considering this effect of possession where the 
 acquiescence has been of very long duration, the court will 
 regard the lapse of time as a circumstance against allowing 
 the statute to be set up.(ir)' 
 
 § 585. The laying out of money, provided it be sucli as. 
 would only be likely to take place in pursuance of such a 
 contract as that alleged; and it be with the privity of the 
 other party, is an act of part performance. (2/) Therefore, 
 where a proposed lessee entered and built, the acts were 
 held to be such :{z) and, again, the alteration of a garden 
 fence and the plantation of a meadow with the privity of 
 the other party, and 2)artly at his expense, by a tenant in 
 possession, were held acts of part performance, evidencing 
 a contract to demise the meadow for a term. (a)' So the ex- 
 
 (V) Unglcj' V. Ungk-y, i Ch. I) , 73; 5 id., (x) Blackford v. Rockjiatrick, G BcaT., 232; 
 
 8^7 of. crook T « orporaliou of Sealorii, L. It. 18' 
 
 (w) Stooklcy V RtockUy, 1 V. & P.., 23; Kq ,678; 6 Ch.. 5.il. 
 
 Neale V Ni.iic, 1 Kf . C72; W illiamt, v. Wil- (v) NMils v. Slradlinp, 3 ''■es , 378 
 
 liiim'<,2 Ur & mil, 378; iiflirmcl I-. i:.2<,h , (s; Savage v Fobter. ft Vlii AIt, 5:24, pi. 
 
 2W4 (see (ppcciallv pages 3U4, 3 5;; Cood v. 43; lieddiu v. Jarmvii, 16 L. T.,449. 
 
 Cood, 33 Beav.,314. (") buUiirlai.d v. liiUg-, 1 Ha., 26. See^ 
 
 1 Thus, where a vendee having paid iKirt of the purehase money of land 
 under a parol agreement, had, together with hi.s heirs, been in possession for 
 several years, this was thought sutticient to take the case out of the Statute of 
 Frauds, and to entitle theheirs to a sijecitie performance of the agreement. 
 Cox V. Cox, Peck, 413; see Brock v. Cook, o I ort., 404. 
 
 ^ See Bomicr v Caldwell, Ilarring 's Ch., < 7: Johnston v. Glancy, 4 Black., 
 94; Tibbs v Barker, 1 id., .'iS; JMoreland v. Lemasters 4 id., iuSi; 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 tlial the continuance of the son to cultivate and manage the farm, 
 and his makiiig extensive improvements thereon at his own expense, it not 
 appearing that he agreed to do so l)y the contract alleged to have been made 
 with his "father, were not con.sidered a part performance of the contract, such 
 as would take the case out of the statute. Carlysle v, Fleu.ing, Ilarring. 's 
 Ch. 421.
 
 rtatutj: of frauds, etc. 295 
 
 penditure of money, in alterations and rei^airs of the prop- 
 erty, by a sub-lessee with the knowledge of the owner has 
 been held to be part performance of the contract by the 
 owner to let to the sub-lessor. (//) 
 
 § 580. The expenditure of mone}^ differs, it will be ob- 
 served, from possession, in two respects ; the one, that 
 wliilst mere possession is referable to a tenancy at will, as 
 well as to a larger estate, the laying out of any considera- 
 ble sums of money is rationally to be referred only to some 
 contract 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 possession may well lay out money 
 without the owner s cognizance ; and what is, therefore, 
 necessarily inferred in the one case must be proved in the 
 other. 
 
 § 587. There are cases where it has been held that, as 
 money spent in rej^airs easily admits of compensation, such 
 expenditure is no part performance, and consequently does 
 not avail to take a case out of the statute ;(<?) and where 
 the acts relied on are prox)er to be brought before a jury, 
 and can be answered in damages, or are in the nature of a('ts 
 of preparation, (r?) they will not be considered as part per- 
 formance. But nothing can be clearer than that there are 
 many acts, easily enough admitting of compensation, which 
 yet amount to such i)art performance as will enable the 
 court to enforce a parol contract. 
 
 § 588 If the laying out of money in alterations in pur- 
 suance of a contract is a part performance of it, it might be 
 supposed that making a payment of the jnu'chase money 
 payable under the contract was yet more clearly a part per- 
 formance. But this cannot be said to be the case ; for it 
 seems now to be decided that the payment by the purchaser 
 to the vendor of the whole(6^) or a part, whether substantial 
 or unsubstantial, of the purchase money, is not an act of 
 
 also, Stocklev v Stocklej', 1 V. & P... 23; See, too. Shlllibeer v. .Tarvis, S l>c (i M .t 
 
 Toole V. iMfiTlicott. 1 Uall & l{.. 393; Rluinly <i., 70, .h7. Di-<tiiiKiilf Ii How.- v IIhH, I i: 4 
 
 V. Jolliffe, 5 My. & Cr., 167; Snrcome v. Pin- Eq , HI; G..r.l'.ir v. Fook-. U) w it. 38rt 
 
 iiiger, 3 De 1^. M. & G , 571 ; Fan-Hll v. D\v- (c) Frame v. Drtwson, U Vv».,;lti«, ci. Forr- 
 
 enport, 3 Giff., 363; Norris v. .Jackson, Id., tir v. IIhIc, 3 id., 7.3 
 
 3il6. Distinguish Millard v.Uarvey, 34 Beav., (rii O R.-iny v •lh..m|>s<.n. 2 Cox, 27 
 
 037 (f) Soe (lei- Ivilglit Mriicc, I- •)., lu lliighfft 
 
 ' (i)) Williams v. E\ans, L. R. 19 Eq , 517. v. Morris, 2 De G. M. & G., 3M.
 
 296 fi:y ox si»]:ciric pekfokmaxce of contracts. 
 
 part ptTfonnance wliich will take the parol contract out of 
 the statute. 
 
 § 5^11. Tlic oi-oinuls ol' this decision seem to be, first, 
 that the nieiitiou ol' part payment in the ITtli section of the 
 Statute ol" Frauds, :iud the silence in that respect of the 
 4th section, must be taken to show that the legislature 
 did not int<-nd that part payment should be binding in 
 cases ol" the sale of lands ;(/) and, secondly, that the 
 money may be repaid, and that both parties will then be 
 in the stuation in which they w^ere belore the contract, 
 without either party having gained any inequitable advan- 
 tage over the other.if/) 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 elec- 
 tion to put the other party to the latter remedy is no fraud. 
 It has been truly snid that this reasoning overlooks the pos- 
 sibility of an insolvency intervening and preventing the 
 repayment of the purchase money, (//) and it is difiicult to 
 say that the leasoning is satisfactory, l)ut the courts have 
 acted upon it. 
 
 The law^ upon this subject has been somewhat vacillating. 
 In a case before Lord Hardwicke, he held part payment to 
 be part performance;!'//) but tliis as a general proposition 
 was early overruled. The qut-stion ihen arose whether, 
 although payment ol" a small installment was inoperative, 
 payment of the whole or of a substantinl part of the price 
 would not be an act of part performance. Lord Rosslyn 
 maintained the affirmative of this question ;( /) but Lord 
 Redesdale denied any such distinction ;(./) and Lord Ross- 
 lyn's decision seems now to be overruled, upon the ground 
 that it is impossible satisfactorily to discriminate between 
 substantial and unsubstantial part payments. (7i)' 
 
 (/) Clinan V. cooko, 1 Srli. & Lef, 22; Watt ar^utneiita In UMlls v Str.iil ing, 3 Ves., 378, 
 
 V Evans, 4 V. & C. Ex , 579. :i!iil Sinimous v. Coriu'liiia, 1 Kt-p. In (Jh., 138 
 
 (a) CMnaii V. ( ooke, 1 Sch. & Ia'I'., -22. (a f.asi; bcl'oit- tht; 8 atuie). 
 
 {■(/) 13 Ves , 401, iiott! bv t»ie reporter (,/') In c:iinan v C'>oke, 1 Sch. & I.ef., 23. 
 
 (ft! l>ac.oii V. iMeriiii?, 3 Atk., 4. tsee, also, './.■) Watt v. Evan«. 4 Y. & C. Ex., 579. See 
 
 Chii(i V. ConilxT, 3 Sw . 423 n. E\ parte Hooijor, 19 Vt-a , 479. 
 
 (i) Main v. Mclbuurn, 4 Ves., 730. See the 
 
 ' See Story's Eq. Jur., § 7(50. In this country the decisions upon this point 
 are, by no UK-aus. hitrnioniou.s. In Virginia and Mi.'^si.ssippi, it lias been held 
 that part payment of tlie purcliase money is not such a part performance of a 
 parol contract for the sale of lands, as totake an agreement out of the Statute 
 of Frauds. .lackson v. Cutri-jht, ■') Munf., 80^: Hood v. Bowman, 1 Fieem.'s 
 Ch., -290; and see Hatcher v. Ilatcher, 1 McMullan's Ch., ;}11. In Michigan it
 
 STATUTE OF FllAUDS, ETC. 297 
 
 § i»0©. Payment of the auction duty has been lield not 
 to be part performance, it being by the revenue laws essen- 
 tial to the contract, and "that without which there would 
 have been no contract cannot be said to be in part perform- 
 ance of the contract." (^) 
 
 § 501. The same vacillation which characterized the 
 €Ourse of the authorities on payment of the purcliase money 
 as part performance, has attended the cases dealing with 
 the question whether payment of an additional rent is to be 
 treated as part jjerformance. In the earliest case on the 
 subject, it was laid down that such a payment, if shown or 
 admitted to be on the foot of the contract, is a circumstance 
 •of part performance, (w) It was subsequently determined 
 not to be, (?i) but this decision appears to be ovei ruled by 
 the case of Nunn v. Fabian, (o) where a landlord, having 
 verbally agreed with his tenant to grant him a lease for 
 twenty-one years at an increased rent, died before the 
 execution of the lease, but after having received from the 
 tenant one quarter" s rent at the increased rate: and it was 
 held that this payment constituted a sufficient act of part 
 performance to take the case out of the statute. 
 
 § 592. It is not easy to think that the whole group of 
 cases dealing with the payment or expenditure of money 
 on the footing of a contract is satisfactory. It would seem 
 reasonable to hold one or other of two things : that all pay- 
 
 (D Per Grant, M R , in BiickmasttT v. liar- (") L. R 1 Ch.,35. Consiiier Tlowe v. nail, 
 
 rop 7 Ves , 34G. I- H 4 Kq . "^^2; Archbold v. Howth, 1. R. 1 
 
 (m) Wills V. Strarlll cr, 3 Ves.. 378. O. L, ,6.8. 
 (n) O'Herllhy v. Heflgeti, 1 sell. & Lcf., 123. 
 
 was held, in McMurtrie v. Bennett, Harring.'.s Ch., 1-24, that the payment of 
 the whole of the purchase money, clearly in pursuance of a definite and mutual 
 parol agreement, is suthcient to take the ca.se out of the statute; l>ut the pay- 
 ment of a tritling amount of the consideration is, in no case, of il.>*elf. suthcient. 
 But in another case, Towusend v. Houston, llarring.'s Ch., n^-J, it was decided 
 that payment of part of the pun-liase money is such a p^rt i)erlV)rniance of a 
 parol agreement for the sale of land, as to take a contract out of tlu- statute 
 and authorize a decree for a specific performance. In Connecticut, it is said 
 in Downey v. Hotchkiss, 2 Dav, il'), that the legislature adopteil not only tlic 
 Engli.sh Statute of Frauds, but also the construction given to it l.v tlie courts 
 in England. The same remark is made in reference to IVniisylvania, in Tugh 
 V. Good, :5 Watts & Serii., ")(>. And in Parker v. Wells, r, Wliart., l."):!. pay- 
 ment of the purchase moncv by the vendee of land, und.T ti iiarol contract of 
 :sale, does not alone take the coiitract out of the statute. North Carolina, South 
 Carolina, Missouri, Indiana and Ohio, have followed the same rule, ami hold 
 the payment of all the purchase money as insullicient to satisfy the .statute. 
 Ellis V Ellis, 1 Dev.'s Ch., 341 ; Smith v. Smith. I Rich.'s Ch , l;<0; Anderson 
 V ( hick, 1 Bailey's Ch., 118: Bean v. Valle. 2 Mis., 12G; Johnston v. Glancy, 
 4 Blackf., 94; Site v. Keller, Ham., 483; Pollard v. Kinner, id.. .j-JS.
 
 298 FRY ox SPECIFIC PEKKOKMAXCE OF CONTRACTS. 
 
 TTierUs of money made bj^ one contracting party with the 
 knowledge of the other, and on the faith of the contract, 
 shoukl be deemed acts of part performance for the purpose 
 in question ; or that none of such acts shouhl be deemed to 
 be part performance, and that the court should in all these 
 cases think that the possibility of repayment deprived them 
 of any effect on the Statute of Frauds. It does not seem 
 reasonable to halt between the two opinions. 
 
 § 50:1. Marriage alone is not a part performance of a con- 
 tract in relation to it : for to hold this would be to overrule 
 the Statute of Frauds, which enacts that every agreement 
 in consideration of marriage to be bindino: must be in writ- 
 ing. (7>>)' Accordingh\ where there was. before marriage, a 
 contract by parol for tiie settlement of part of the wife's 
 IDi'operty, and that the husband should lake the rest, which 
 he did, but there was no settlement made ; and the wife 
 subsequently hied her bill, stating these facts, for the pur- 
 pose of obtaining a declaration of her rights in certain 
 I)roperty coming to her, and the husband, by his answer, 
 admitted the statements in the bill, and a deed was then 
 prepared purporting to be a settlement on the wife in pur- 
 suance of the contract, and was signed but not acknowl- 
 edged by the wife ; in a suit by a plaintiff claiming under 
 the settlement against the heir, it w;is held that there was 
 
 (r')PerI,oril Hanhvickclii Taylorv IJeecli, M. U., In Wanlen v. Jones, 23 P.eav , i"-' (S. 
 
 1 Ves Sen, 297; I'cr L'M-d Thmluw in Dun- C on appehl, 2 De G. & J., 7fi). U.n^ider 
 rtas V. l>ul*:iis 1 Vt-s. Jun , lli!». As to this Gilchrist v Herbert, 20 W. B., 318. 
 
 case, bCc the observations of Lord Ramilly, 
 
 ' This chuisc has not been enacted in all of the States; but, wherever it lias 
 been, the requirements of the English statute must be eomplied -with, and its 
 entire interpretation received. Pars, on Contr., vol. 1, pp. 5-17, oib, and pp. 
 553, 5")4, vol. 2, p. 310 (note z). 
 
 Marriage contract ; excei)tpm.'\ "There is a dilTerence between agreements 
 on marriage being carried into execution and other agreements; for all agree- 
 ments besides are considered as entire, and. if either of the i)arties fail in per- 
 formance of the agreement in part, it caiuiot be decreed in specie, but must be 
 left to an action at hnv. In marriage agreements it is otherwise; for, though 
 the relations of the husband or wife shoidd fail in the performance of their 
 part, yet the children may compel a performance. If the mother's father, for 
 instance, htth agreed to give a portion, and the husband's father hath agreed 
 to 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." 
 Lord Hard wick, in Harvey v Ashlev, 3 Atk., Gil; see also. Llovd v. Lloyd, 
 
 2 My. ic Cr., VOI; Dennison v. Gothring, 7 Pa. St., 175; King v. Whitely, 10 
 Paige's Ch., 4G3; Nenes v. Scott, li How., 197; 2 Story's Eii. .Jur., ?= '^^\j.
 
 STATriK <iF FllAI'DS, ETC. 299 
 
 no part ix^foinuince by ni-aninnv, nor any other part per- 
 formance of tlie parol contract, and that it was void and 
 all the subsequent proceedings ineffectual. (/y)' 
 
 sj ."iOl In a case already referred to, the intended hus- 
 band and wife, previously to marriage, agreed by a writing, 
 which was held to be unsigned, that the husband shonld 
 have the wife's pi'opertj^ for her life, paying her a certain 
 sum by way of pin-money, and that she should have it back 
 again after his death ; and instructions were given for a 
 marriage settlement to have that effect ; but no settlement 
 was ever executed, the husband promising, as the wife 
 alleged, to make a will giving her all his i)r()perty — a prom- 
 ise which, if made, he did not keep. After the husband's 
 death the wife sought specific performance of the ante- 
 nuptial airangment, but it was held that there was no con- 
 tract in writing within the statute, and that the marriage 
 was no part performance. (r) This decision was affirmed by 
 the House of Lords, (*•) but the question of part perform- 
 ance was not there argued. 
 
 (q\ LTSsence v. Ticrnev, 1 Mac. & G . 'wl. w !<• K. 2 H. L.,127. 
 ((■) (Jaton V. Catoii, L. l^. 1 Ch., 137. 
 
 ' M((rn<ige <(>( part perfonnajicr.] Agreeincnts, iu considonition of nmrriagc, 
 iu order to be binding under the Statute of Frauds, must be iu writing; mar- 
 riage alone, therefoie, will not constitute such an act of part performance, as 
 will render valid a parol contract made in relation to it. "The subsequent 
 niairiage is not deemed a part performance taking the case out of the statute, 
 contrary to the rule which prevails in other cases of contract. In this resi>ect 
 it is alvvavs treated as a peculiar case standing on its own ground." Story's 
 Eq. Jur. ' In some of the States mutual promises to marry, are expressly ex- 
 cepted from the operation of the statute. The.se are, Alabama, Rev. Code of 
 18(57, ^ 1802; California. Code, i; 1()24: Kentuckv, II. S., ch. *2'2. § I; Mmne- 
 sota. Slal. 1873. vol. 1, p. GU2. ^ C, subd. li\ Nebraska, Stat. 1873. ch. 2.j, Ji U; 
 New York, K. S. (0th cd.), vol. 3, p. 343; Wisconsin, Slat. 1871, ch. 107. Ji 2. 
 
 Time irithia which the conlmrt in to be performed] Tiie English statute, and 
 the statutes of several of the Slates, makes it essential to tlie validity of any 
 verbal agreement, and to the maintenance of any action ujion it: that it is to 
 be performed within the .space of one year from the making of ihe same. In 
 New York, and in some of the oilier States, any such contracl, wilii the excep- 
 tion of lea.ses for one year or less, are void. Peter v. Compl(Jii. Skmner, 353; 
 Gilbert v. Svkes, l(i East. loO; Wells v. llorlon. 4 T.ing., 40; King v. Hunua. 
 J» B Mon . iiU!); Peters v. luh ib. of We.stborough, 19 Pick., itdo; I/ard v. Mid- 
 dlelou, 1 i)es,sau.'s Ch., 110; Thompson v. Gordon, 3 Slrobii., I'JO; Hhikc v. 
 Cole, 22 Pick.. i)7; Clark v. Pendleton, 20 Conn.. 4!)5: Howard v Ikrgen. 4 
 Dana. 137- McLees v. Hak-. ID Wend . 42G; Ellicott v. Turii.r. 4 Md.,476; 
 Archer v. Zeh, 5 Hill, 2U0: Tollev v. Green, 2 Saudf. Ch.. Itl : Koberls v. Uock- 
 hottom, 7 Mete , AVr. Lvon v. KiUiX, H id . 411: Doyle v. Dickson. ItT Ma.s.s.. 
 209; (iuackenbiisli v. Eble, r, Barb., 4(;<.». Wiiere it is not the mlcntioii and 
 understanding that the contract shall be performed wuhin a year, U wdl not 
 betaken out\>f Ihe operation of the statute by the fact that it is possible to 
 perform it within tliat time. P.oydell v. Drummond, 11 Ea.st, 142; Ilerrin v. 
 Butters, 20 Me , IIU: contni, Ellicott v. Turner, 4 Md., 470.
 
 300 Fi:V ox S1>ECIFI(" rKKFOllMANCK OF CONTllACTS. 
 
 vj oIK*. Tli<M-(» may, of course, often be acts connected 
 with the niarriai-e wliicli, as independently of it, they would 
 be acts of part performance, are not tlie less so from being 
 done in connection with it, and therefore differ from cases 
 Avhere the marriag-e is the sole act relied on. Thus, in a 
 case wliich was ultimately decided by tlie House of Lords, 
 it was held that the execution by the husband of a settle- 
 ment in pursuance of a parol contract entered into by him 
 with the lady's father previously to the mairiage being 
 something over and above the marriage, was an act of part 
 performance of the parol contract entered into previously 
 to it.{t) In the case of Warden v. Jones(?/) it was held by 
 Lord Romilly, M. R., that the execution of a settlement is 
 no act of part performance where the previous parol con- 
 tract is between the intended husband and wife only, and 
 not between tlie husband and some third person, and 
 that such a settlement must be considered a voluntary 
 deed ; and this decision was affirmed by Lord Cran- 
 worth. 
 
 § 596. The cases in which the court relieves on the ground 
 of marriage in fraud of a parol contract entered into pre- 
 viously, must, of course, be distinguished from cases in 
 which the marriage itself is set up as part perfornumce of 
 tlie contract. ('«) 
 
 § 597. But though marriage be not, cohabitation maybe 
 a sufficient act of part performance. In a separation deed, 
 the husband covenanted with a trustee for the payment of 
 an annuity to his wife ; shortly before the death of the hus- 
 band, his wife returned to him upon the faith of a promise 
 made by the husband to the wife and her trustee, that if 
 she would do so he would continue to pay the annuity and 
 would charge it upon his real estate. He died without 
 having done so, and it was held that the contracc could be 
 enforced against the devisees of the husband, on the ground 
 of part performance. (zo) 
 
 ^ 598. As acts done jorior to a contract cannot be referred 
 
 (t) riammerslev v. Pt r.iel, 12 r 1. & Fin., anirni»-<l 4 De G. M. & G., 137 Of. Alolerson 
 
 45, (^ n.; Surcome v. i'lniilger, 3 Do G. .M. & v. M:iililis.>ii. 5 Ex. 1) , -.'i);}, whore service as 
 
 (^.,571. lion-fkeoiitT jiihI jflvini,' up <ithtr prdsiipcts 
 
 («) 23 near., 4*^7: r.n apiical '2 De G. & J., 7C. In life were regimled bv Stephen,.! , as part 
 
 (r) See supra, § 553 pprt( rnianci-; hut hi^ decision v\;id rtvcj-std 
 
 (W) Welisier v W ebfter, 1 ^m. & G., 489; on api eal. W. N., 1881, p. GS.
 
 STATUTE OF FRAUDS, ETC. liOl 
 
 to it as (lone in pursuance of it, they can never 1)8 treated as 
 acts of part performance, (rr) 
 
 § 599. And so, also, acts subsequent to the contract, and 
 even in pursuance of it, if not strictly in performance of the 
 contract as between the parties to it, but preparatory to 
 such performance, cannot be taken as yjart performance. 
 It is evident that acts of this sort maj^ be, and for the most 
 part are, the mere acts of the party doing them : the other 
 party is not necessarily cognizant of them, and consequently 
 he is not so bound by them as to render it fraudulent in 
 him subsequently to refuse to carry the contract into elYect. 
 Therefore, giving instructions for a lease, (2/) putting a deed 
 into a solicitor's hands to prepare a conveyance, (z) giving 
 orders for a conveyance to be draAvn and going several times 
 to view the estate, («) the execution and registration of the 
 deeds by the vendor, (&) and the admeasurement of the 
 estate, (c) have all been decided not to be acts of part per- 
 formance binding on the other party to the conti-act. So 
 again, where it was a condition of the contract that the plain- 
 tiff should obtain a release of a right from a third party, 
 which the plaintiff did obtain by payment of a valuable con- 
 sideration ; it was held to be merely a preparatory act on 
 the part of the plaintiff, and not a part performance of the 
 contract. (VZ)' And the appropriation of money by a party, 
 
 (.r) Parker v Smith, 1 CiH., 6' 8, 623 (b) Hawkins v Holmes. 1 P. Wnis., 770; cf. 
 
 (2/) Cole V. White, cited 1 Bro. C. C, 409. Phillips v. Kilwarris, aj Beav., -144. 445. 
 
 iz) Heading v. Wilkes, 3 Bro. O. C, 400. (ci Peinliroke v Thorpe, 3 -Sw., 437 n. 
 
 (a) Clerk v. Wriiiht, 1 Atk., 12, Cooke v. (rf) O'lieilly v. Thoaipsou, 2 Cox, -271. 
 Tombs, 2 Anstr , 420. 
 
 ' Paymevt of monrt/ alo/ie* is not -part performance.'] The rule is uow well 
 settled, and all the best authorities agree, that the vendee will not be eutitled 
 to the specific performance of a parol contract for the purchase of real prop- 
 erty or an interest tliereiu, merely upon the payment of money, where notliing 
 else is done. Newland on Contracts, ch. 10, p. 187; O'lIerHliy v. Iled.iri'S, 1 
 Leh. & Lcf , 121); Coles v. Trecothick, 9 Ves., 'l-M: \ho\^ v. Patten. 1 Veru., 
 472; Lord Pengall v Itoss, 2 Eq. C;as. Abr., 415. \^\ 12; Leake v. M..rris. 2 Ch. 
 Cas., lo5; .Jaclvson v. Cutright, 5 :Muuf., 30o; Garner v. Slubblefield. .1 Te.\., 
 552; Mialhi v. Lassabee, 4 Ala., 712; Black v. Black, 15 Ga.. 4-15; Hart v. 
 McLellan, 41 Ala., 251; Sites v. Keller, 6 Ohio, 483; Dugan v. Colville, 8 Te.x., 
 12(5; Wood V. Jones, 35 id., G4; Netherlv v. Riplev. 21 id., 434: Parker v. 
 Wells, 6 Whart., 153; Hood v. Bowman, Freeman's (Miss.) Ch., 290; Blauch- 
 ard V. McDougall, 6 Wis., 1()7: Smith v. Finch. 8 itl., 245; Cogger v. Lansing, 
 43 N. Y., 559; Cole v. Potts. 10 X. .J. Eq., 67; Park v. Leawright, 20 .Mo.. sO 
 Underbill v. Allen, lSArk.,4G'J; Workman v. Guthrie. 29 Pa. St., 445; liladett 
 V. Hildreth, 103 JMass , 404; Lang v. McLaughlin, 14 Minn., 72; Odell v. .Mon- 
 tross, 68 N. Y., 499; Gilbert v. Trustees, etc, 12 X. J. Eq., 180. 
 
 Judge Story's rule as to part performance.'] " Nothing is to be deemed a part 
 performance which does not put the party into a situation Avhieh is a fraud 
 upon him, unless the agreement is fully performed." Story's Eq. Jur., g 701; 
 see, also, Temple v. Johnson, 71 111., 13.
 
 302 FRY ox SPECIFIC PEra-OIlMANCE OF CONTRACTS. 
 
 though it may be witli a view to an intended purchase, is 
 not of itself any part performance or evidence of any con- 
 tract. (^') 
 
 § 600. To tlie same principle may probably be referred 
 the case of Whaley v. Bagnel,(/) in the House of Lords. 
 A. agreed by parol with B. for the purchase of lands : B. 
 delivered a rent-roll to A., which showed by its heading 
 that a contract had been entered into betw^een them for the 
 sale of the lands comprised in it at twenty-one years' pur- 
 chase, and an abstract of the title and deeds was also 
 delivered to A. for the purpose of effecting the sale ; B. 
 informed his creditors by letter that he had agreed to sell 
 the land to A.: he took A. over the estate, introduced him 
 as landlord to the tenants, and refused to renew leases and 
 do other acts of management as owuier, in these cases refer- 
 ring the tenants to A. B. also set up the contract against 
 an elegit, and on the strength of it obtained a verdict finding 
 him not to be seized of the lands in question : but notwith- 
 standing all these circumstances, a plea of. the Statute of 
 Frauds was allowed. 
 
 § 601. In Phillips v. Edwards, (<'/) land being vested in a 
 trustee for a married woman with power to lease at her re- 
 quest in w^i'iting, the two verbally agreed to let it, and exe- 
 cuted a lease of it ; but before her solicitor had parted with 
 the deed, and before the i:>hiintifl:'s (the would-be lessees) 
 had executed the counterpart, the married woman (who had 
 made no waitten request to the trustee) signified her inten- 
 tion to retire from the transaction. Jt was held by Lord 
 Romilly, M. R., that her execution of the lease was no part 
 performance, and that there was no binding contract. 
 
 t; 60S. But where the contract lietween A. and B. com- 
 jirises acts between A. and B. and also between B. and C, 
 and A. may be supposed to have an interest or to have stipu- 
 lated in respect of the acts between B. and C, part perform- 
 ance with knowledge of this part of the contract renders it 
 binding on A. This seems to be illustrated by the case of 
 Parker v. Smith. (^) There a lessor entered into a parol 
 contract with a colliery company, holding a lease from him, 
 
 (e) East Inilia C". v. Xuthumba<loo Veera- (g) 33 Beav., 440. 
 sawmy Mooilellv, 7 Moo. I'. C. C , ■:8-2, 497. (/i) Coll., 0..8. 
 
 (/) 1 liro. P.C.,315.
 
 STATUTE OF FRAUDS, ETC. 303 
 
 and consisting of four partners, of wliom two were his sons, 
 that one of his sons and one of the other partners should 
 retire and leave the benefit of the business to the remaining 
 two, and that thereupon he would consider the subject of 
 rent, which it was found was i^ut too high in the original 
 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 contract, were held to take the 
 case out of the Statute of Frauds, and specific performance 
 of the contract to grant the lease was enforced against the 
 lessor's assignees in bankruptcy. 
 
 § 603. In a recent Irish case, B. being tenant to A. sur- 
 rendered his lease on the faith of a parol contract by A. to 
 grant a new lease to C: the surrender was held an act of 
 part performance, and the contract was enforced against 
 A. ' s representatives. (/) 
 
 § 604. Fourthly, the effect of part performance being, as 
 we have seen, to show that there is a contract, and to let in 
 parol evidence of the terms of that contract, it becomes 
 necessary to inquire on what evidence or admission of the 
 contract the court will act. 
 
 § 605. The cases which require to be considered may be 
 classified as follows : 
 
 (1) Where the defendant admits the contract as alleged. 
 
 (2) AVhere the defendant denies the contract as alleged, 
 and the plaintiff supports his case by one witness only. 
 
 (3) Where the defendant denies the contract as alleged, 
 and the evidence proves a contract, but different from that 
 alleged by the plaintiff. 
 
 (4) Where the defendant denies the contract as alleged, 
 but admits another contract. 
 
 § 606. (1) An admission of the contract in the pleadings, 
 of course, precludes the necessity of further proof : and the 
 fact that the defense claims the benefit of the Statute of 
 Frauds is immaterial in case of part peiformance, for that 
 excludes the operation of the statute, (y) 
 
 (i) Re Cooke's Trustees' Estate, 5 L. R. Ir. (j) Ccoth v. Jackson, G Ves., 12.
 
 304 FHY ox SI'ECIFIC PERFORMANCE OF CONTRACTS. 
 
 ij 607. {2) Under the practice of the court of chancery, 
 where the contract was positively denied by the answer and 
 was proved only by the unsupported evidence of one wit- 
 ness, that was not allowed to prevail : but where the one mt- 
 ness was corroborated in his statements ])y circumstances, 
 the proof might prevail over the denial, (/t) But now that 
 the defense is not put in upon oath, the court would, no 
 doubt, feel itself justified, in a proper case, in acting upon 
 the evidence of a single witness against the unsworn denial 
 of the defendant. But if the defendant, in answer to inter- 
 rogatories or by his evidence, swore positively to the denial, 
 the court would probably refuse to act upon the affirmative 
 evidence of a single witness, if uncorroborated. 
 
 § 608. (3) In considering the cases in which a variation 
 has arisen between the contract alleged and that proved, it 
 must be borne in mind that the burthen of proving his case 
 rests, of course, on the plaintiff, and, therefore, if there be 
 any such conflict of evidence, as leaves any uncertainty in 
 the mind of the court as to what the terms of the parol con- 
 tract were, its interference will be refused. (Z)' 
 
 § 60®. Therefore, where there were variations between 
 the evidence of the one witness and a memorandum of the 
 contract in a pocket-book which was produced, the witness 
 
 (k) East Inrtia Co. v. Donald, 9 Ves , 275 ; {D Lindsay v. Lynch, 2 Sch & Lef., 1; cf. 
 Morphea v. .lunea. I Svv., 172; Toole v. Med- Price v. Salusbury, 32 IJeav , 446. 
 licott, 1 J3a. & B , 393. 
 
 1 Variance between contract and proof.] The contract set out in the pleadings 
 as partly performed, must be tlie same one originally entered into; but, "if 
 the'contraet proved correspond with that descril)ed in the pleadings, it will be 
 eslablislied and enforced even if there is some variance between the terms de- 
 serib"d uud those proved provided this variance does not relate to matters of 
 substance If there be evidence of a contract, but it do not distinctly appear 
 what are the terms thereof, and there seems also to have been an act applicable 
 only on the supposition of an agreement, a court of chancery will exert itself 
 to ascertain the precise terms, and, if necessary for that purpose, will direct a 
 trial at law, and then, if the agreement can be dehned, and the acts of part 
 performance be consistent therevi^ith, it will decree a specific execution thereof." 
 Marcv, J , in Harris v, Knickerbacker, o Wend., 638: see, also, Miller v. Cot- 
 ton, Ga., ;J4l; PhiUiiJS v. Thompson, 1 John.'s Ch., 149; Printup v. Mitchell, 
 17 Ga. 558- jNIinturn v. Bavlis, US Cal., 13'J; Colson v. Thompson, 3 Wheat., 
 33(v Bremer v. Wilson, ifN. J. Eq , 180; Chanley v. Hanbury, 13 Pa. St., 
 16- Cooper v. Carlisle, 17 N. J. Eq., 025; Force v. Dutcher, 18 id., 401, Long 
 V. Duncan, 10 Kan., 294; Petrick v. Ashcroft, 19 N. J. Eq , 339; Parkhurstv. 
 Van Courtlandt, 1 John.'s Ch , 284; Gosse v. Jones. 73 111., 508; Blanchard v. 
 McDougall, 6 Wis.,. 107; Worthington v. Semmes. 38 Md., 298; Knoll v. Har- 
 vey, 19 Wis., 99; Reese v. Kce.se, 41 Md., 554; Wright v. Wright, 31 Mich., 
 380; Allen v. Webb, 64 111., 342; Hall v. Hall, 1 Gill, 383; Pierce v. Catron, 
 23 Graft., 588; Shropshire v. Brown, 45 Ga., 175; Stoddart v. Tuck, 5 Md., 37; 
 Smith V. Crandall, 20 Md , 500.
 
 STATUTE OF FRAUDS, ETC. 305 
 
 mentioning 1,000 guineas, exclusive of timber, as the price, 
 whilst the pocket-book made no mention of the timber, the 
 court dismissed the bill.(m) And where a contract was 
 alleged by the bill, another proved by the plaintiff's one 
 witness, and a third admitted by the two defendants, specific 
 performance was decreed according to the contract set up by 
 the answers ; but Lord Rosslyn considered that in strictness 
 the bill ought to have been dismissed, (/i.) In a more recent 
 case, where one contract was alleged and another proved, the 
 bill was dismissed without prejudice to the filing of another 
 bill.(o) 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 
 performance. (^) In one case Turner, L. J., observed that 
 "there are cases in which the court will go to a great extent 
 in order to do justice between the parties when possession 
 has been taken, and there is an uncertainty about the terms 
 of the contract. "(^) And in the case of Oxford v. Pro- 
 vand,(r) where there had been part performance of a con- 
 tract alleged to be vague in its terms. Sir William Erie in 
 delivering the judgment of the privy council said, '^With 
 respect to the supposed vagueness of the memorandum of 
 agreement, their lordships propose to consider what is the 
 true construction of that memorandum, having regard to 
 the terms of the instrument and to the surrounding circum- 
 stances, and also in refereace to this suit for specific per- 
 formance, and to the conduct of the parties in the interval 
 between the making of the agreements and the commence- 
 ment of the suit." 
 
 § 61©. Where the variation between the contract alleged 
 and that proved consists in the plaintiff ' s admission of some 
 term against himself, or omission of some term in his 
 favor ;{s) 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 per- 
 formed, the court will not refuse the evidence of the con- 
 
 (m) Reynolds v Waring. You , 346. (p) Mundy v. JolUffe, 5 My & Cr., 167. 
 
 (S Elmer V. Orchafd. 2 Ve's. Jun.. 243; (q) East In.iia Co. v^ N-uthumbadoo Veer- 
 
 cf. London and BirmiDgham Railway Co. v. asawmy Moodelly, 7 Moo. P. C. C, 4S2, 497. 
 
 Winter, Cr. & Ph., 57. See supra, § Sls^ 
 
 (o) Hawkins v. Maltby, L. R. 3 Ch., 188. (r) L R. 2 P. C_, 135 
 
 The fresh biU was filed : L. R 6 Eq., 505; 4 (s) Cllflford v. Turrell, 1 1 . & C C. C, 13R. 
 Ch.,200. 
 
 20
 
 306 FUY ON SPECIFIC PERFORMANCE OF CONTRACTS. 
 
 tract. 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 :{t) and again, where a plaintiff 
 admitted a contract to drain the lands generally, and he 
 only proved one to drain where necessary, and he also 
 stated, as part of the contract, that he was to lay certain 
 arable land into pasture, which was not proved by the evi- 
 dence :(w) in each of these cases, the variation was con- 
 sidered as no reason for rejecting the evidence of the 
 contract. (?))* 
 
 § 611. It is, perhaps, not quite clearly decided whether 
 the court can, in any case, direct an inquiry into the terms 
 of a contract, when it has not been sufficiently proved to 
 enable the court to pronounce a final judgment upon the 
 evidence before it. Lord Manners (w) strongly expressed 
 an opinion that the court has no such jurisdiction, a view 
 which seems to have met with the approval of the highest 
 authorities, (a:;) And in the case of Crook v. Corporation of 
 Seaford,(^) where Stuart, Y. C, had made an order giving 
 the parties liberty to apply in chambers in reference to the 
 performance of the contract, Lord Ilatherley said, that he 
 felt some difficulty about the decree, for it was the duty 
 of the court to ascertain whether there was a contract, and, 
 if not, to dismiss the bill ; but, being himself of oi)inion 
 
 (t) Gregory v. Mighell, 18 Ves., 328. (x) St Leon. Vend., 126; Stoiy, Eq. Jur., § 
 
 (u) Mundy v. Jolliffe, 5 My. & Cr., 167. 764; cf. London and Birmingham Kailway 
 
 (V) See supra, § 279. Co. v. Winter. Cr. & Ph., 57. 
 
 (w) Savage v. Carroll, 2 Ball & B., 451. (y) L. R. 10 Eq., 678; 6 Ch., 551. 
 
 1 How the contract should he pleaded.'] It is suCacient to allege that there was 
 a written contract; that it was signed is implied. Eist v. Hobson, 1 Sim. & 
 Stu., 543; Barkworth v. Young, 4 Drew, 1. The defendant, in his answer, 
 must insist that the contract was not in writing, where the answer admits the 
 agreement. Gunter v. Halsey, Ambl., 586; Rondeau v. Wyatt, 2 H. Bl,, 68; 
 Limondson v. Sweed, Gilb., 35; Harris v. Kuickerbacker, 5 Wend., 638; Tal- 
 bot V. Bowen, 1 A. K. Marsh., 437; Coles v. Bowne, 10 Paige's Ch., 526; 
 Champlin v. Parish, 11 id., 405; Dean v. Dean, 9 N. J. Eq., 425; Walker v. 
 Hill, 21 id., 191; Kirksey v. Kirksey, 30 Ga., 156; Hollingshead v. McKenzie, 
 8 id.', 457; Artz v. Grove, 21 Md., 456; Garner v. Stubblefield, 5 Tex., 552; 
 Woods V. Dillie, 11 Ohio, 455; Dyer v. Martin, 4 Scam., 146; Tarlton v. Vietes, 
 1 Gilm., 470, Switzer v. Skiles, 3 id., 529; Minns v. Morse, 15 Ohio, 568; Trap- 
 nail V. Brown, 19 Ark., 39; Winn v. Albert, 2 Md. Ch., 169; McGomen v. 
 West, 7 Mo., 569; Whiting v. Gould., 2 Wis., 552; Semmes v. Worthington, 
 38 Md., 298; Burt v. Wilson, 28 Cal., 632; Vandwyne v. Vreeland, 12 N. J. 
 Eq., 142; Esmay v. Groton, 18 111., 483; Billingslea v. Ward, 33 Md., 48. A 
 contract is not illegal for being within the Statute of Frauds. The court will 
 not interpose the statute in such a case; it must be pleaded, and where the 
 pleadings do not urge the defense, it will generally be regarded as waived. 
 Fall V. Hazelrigg, 45 Ind., 576.
 
 STATUTE OF FRAUDS, ETC. 307 
 
 that a contract had been made out, his lordship varied the 
 order by striking out the reference to chambers, and declar- 
 ing what the contract between the parties was, and ordering 
 specific performance of it. 
 
 § 613. The authorities upon the point now under discus- 
 sion to which reference has been made, were all under the 
 old practice, and were greatly influenced by the incapacity 
 of the court of chancery, except under very unusual cir- 
 cumstances, to permit an amendment of the record at the 
 hearing. The high court will probably feel itself freed from 
 some of the difiiculties which arose in dealing with cases 
 when one contract was alleged and another proved : it will 
 probably, for the most part, feel it possible to deal with the 
 matter once for all, and not to postpone the real discussion 
 till a further proceeding shall have been taken : it is proba- 
 ble that the main question will always appear to be — Was 
 there really and in truth a contract or not ? that if there 
 were, the court will generally allow the needful amendment 
 to put that contract in issue : that if there were not, it will 
 generally give judgment for the defendant, without reserv- 
 ing any right to the plaintifi: to institute fresh proceedings. 
 But the circumstances will govern the discretion of the 
 court in each case which may arise. 
 
 § 613. (4) It remains to consider the cases in which the 
 contract alleged by the plaintiff has been denied, but an- 
 other has been admitted by the defendant. In such cases, 
 if the acts of part performance were consistent alike with 
 the one contract and the other. Lord Redesdale seems to 
 have considered that there was no case to admit proof of 
 the contract of alleged by the bill, and that the acts of part 
 performance must be such as to show them to have been done 
 in pursuance of the very same contract as that alleged, (2) 
 It is, however, 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 contract to jDarol evidence ; and that as a 
 written contract where there are acts of part performance 
 may be added to by parol, (a) so a contract set up by the 
 defense may be modified by parol. If this were not so, 
 
 («) Lindsay v. Lynch, 1 Sch. & Lef., 1. See (a) Sutherland v. Briggs, 1 Ha., 26. 
 supra, § 558.
 
 308 FRY ON SPECIFIC PERFORMANCE OF CONTRACTS. 
 
 the plaintiff would be at the mercy of the defendant ; for, 
 whereas, if he simply denied the contract, the plaintiff 
 would have an opportunity of proof by parol : when he 
 set up some other contract, all that evidence would be ex- 
 cluded, {b) 
 
 §614. It maybe added that the existence of a signed 
 but incomplete contract is no obstacle in the way of proving 
 the additional terms by parol where there is part perform- 
 ance ;(c) for the whole might have been proved by parol, 
 and so may part. The doctrine of parol variation has, of 
 course, no application, where by reason of acts of part per- 
 formance parol evidence is admissible. 
 
 (6) Of., also the case of Tomkinson v. (c) Sutherland v. Briggs, 1 Ha., 26, 35. 
 Staight, 17 C. B., 697. Consider Price v. Saluabury, 32 Beav., 440.
 
 CONTRACTS BY CORPORATIONS. 309 
 
 CHAPTER XII. 
 
 OF THE FORMALITIES REQUIRED IN CONTRACTS BY 
 CORPORATIONS. 
 
 § 615. Questions relative to tlie formalities requisite to 
 render a contract binding on a body corporate have so often 
 arisen in proceedings for specific performance that it is 
 expedient to give an outline of the law on this point. 
 
 § 616. When the party whom it is sought to charge with 
 a contract is a corporation, the contract must, subject to the 
 excej)tions mentioned below, be under the common seal ; it 
 being the rule of law {a) that in no other way can a corpora- 
 tion express its intentions. This rule is, however, subject 
 to certain important exceptions. 
 
 § 617. (1) The rule does not apply to the contracts of 
 trading corporations (&) having relation to the trade which 
 they are constituted to carry on, nor to- contracts of so every- 
 day a character as would make the afiixing of the common 
 seal to them a practical inconvenience, (c) 
 
 § 618. (2) There are various statutes enabling certain 
 classes of corporations to contract otherwise than under 
 their common seal. The principal provisions for this pur- 
 pose now in force are comprised in the companies clauses 
 consolidation act, 1845, which regulates railways and other 
 undertakings of a public character, and the companies act, 
 1867, which regulates comxDanies constituted under the com- 
 panies act, 1862. 
 
 § 619. The companies clauses consolidation act, 1845 (8 
 and 9 Vict., c. 16), § 97, (rZ) is as follows : 
 
 "The power which may be granted to any such committee 
 [of directors] to make contracts, as well as the power of the 
 
 (n) 1 Bla. Comm., 475. 620; Smith v. Birmlm^ham and Staffordshire 
 
 (6) South of Ireland Colliery Co. v. Wad- Gas-LlRlit Co.. 1 A. & E, 526. 
 
 die, L. R. 3 C. P., 403; 4 C. P., 617. (d) See Leominster Canal NavlRatlon Co. 
 
 (c) Sanders v. St. Neota Union, 8 Q B., 110; v Shrewsbury and Hereford Railway Co., 3 
 
 Clarke v.Cuckfield Union, 21 L. J. Q. B..349; K. & J.,654. 
 
 Nicholson V. Bradfleld Union, L. K. 1 Q. B.,
 
 310 FIIY OX srECIFIC PERFOmiAXCE OF CONTRACTS. 
 
 directors to make contracts on behalf of the company, may 
 lawfully be exercised as follows (that is to say) : 
 
 "With respect to any contract which, if made between 
 private persons, would be by law required to be in writing, 
 and under seal, such committee or the directors may make 
 such contract on behalf of the comjDany in writing, and 
 nnder the common seal of the company, and in the same 
 manner nuiy vary or discharge the same : 
 
 "With respect to any contract which, if made between 
 private persons, would be by law required to be in writing, 
 and signed by the parties to be charged tlierewith, then such 
 committee or the directors may make such contract on be- 
 half of the company in writing, signed by such committee 
 or any two of them, or any two of the directors, and in the 
 same manner may vary or discharge the same : 
 
 "With respect to any contract which, if made between 
 private persons, would by law be valid although made by 
 parol only, and not reduced to writing, such committee or 
 the directors may make such contract on behalf of the com- 
 pany by parol only without writing, and in the same manner 
 may vary or disciiarge the same : 
 
 "And all contracts made according to the provisions 
 herein contained shall be effectual in law, and shall be bind- 
 ing upon the company and their successors, and all other 
 parties thereto, their heirs, executors or administrators, as 
 the case may be ; and on any default in the execution of 
 any such contract, either by the comi^any or any other party 
 thereto, such actions or suits may be brought, either by or 
 against the company, as might be brought had the same 
 contract been made between private persons only." 
 
 § 620. The 37th section of the companies act, 1867 (30 
 and 31 Vict., c. 131)(e), is as follows : 
 
 " Contracts on behalf of any company under the princi- 
 pal act [the comj)anies act, 1862], may be made as follows 
 (that is to say) : 
 
 "(1) Any contract wdiich, if made between private i)ersons, 
 would be by law required to be in writing, and if made ac- 
 cording to English law to be under seal, may be made on 
 behalf of the company in writing under the common seal 
 
 (e) See Beer v. London and Paris Hotel Co., L. R. 20 Eq., 412; Jones v. Victoria Graving 
 Dock Co., 2 Q. B. D., 314.
 
 COISTTEACTS BY COKPOEATIONS. 311 
 
 of the company, and such contract may be in the same 
 manner varied or discharged : 
 
 "(2) Any contract which, if made between private per- 
 sons, would be by law required to be in writing, and signed 
 by the parties to be charged therewith, may be made on 
 behalf of the company in writing, signed by any person 
 acting under the express or imj^lied authority of the com- 
 panj^, and such contract may in the same manner be varied 
 or discharged : 
 
 " (3) Any contract which, if made between private per- 
 sons, would by law be valid although made by i^arol only, 
 and not reduced into writing, may be made by parol on 
 behalf of the company by any person acting under the ex- 
 press or implied authority of the company, and such con- 
 tract may, in the same way, be varied or discharged : 
 
 "And all contracts made according to the provisions herein 
 contained shall be effectual in law, and shall be binding upon 
 the company and their successors, and all other i)arties 
 thereto, their heirs, executors or administrators as the case 
 may be." 
 
 §631. Somewhat similar provisions with regard to the 
 contracts of companies were contained in the joint-stock 
 companies registration act, 7 and 8 Yict., c. 110, §§ 44-46; 
 the joint-stock banks registration act, id., c. 113, § 22 (as to 
 bills of exchange and promissory notes only), and the joinl^- 
 stock companies act, 1856, § 41. But these acts are now 
 repealed. 
 
 § 62S. (3) Another exception arises from the doctrine of 
 part performance ; for it appears to be clear that such part 
 performance as will prevent an ordinary defendant from 
 setting up the defense of the Statute of Frauds, will pre- 
 vent a defendant company from setting up either that de- 
 fense or a defense grounded on the absence of the corporate 
 seal, or of the statutory formalities, in accordance with 
 which the company may be enabled to contract. This was 
 clearly laid down in the case of Wilson v. West Hartlepool 
 Harbor and Railway Co.,(/) and there are other authorities 
 leading to the same conclusion, (p') It must, however, be 
 
 (f) 34 Beav., 187; 2 De G. J. & S.,475. LIndsey v. Great Northern Railway Co., 10 
 
 \g) Marshall v. Corporation of Queenbor- Ha., 664; Crook v. Corporation of Seaford, 
 ough, 1 S. & S.,520; Maxwell v. Dulwich Col- L. R. 10 Eq., 678; 6Ch.,551; Mayor, etc., of 
 lege, 7 Sim., 222; London and Birmingham Drogheda v. Holmes, 5 H. L. C, 460. 
 Railway Co. v. Winter, Cr. & Ph., 57; Earl of
 
 312 FRY ON SPECIFIC PERFORMANCE OF CONTRACTS. 
 
 added that part performance by a company of a contract 
 not under seal, which is not in its nature the subject of 
 specific performance, as, e. g., a contract for work and 
 labor, will not give the court jurisdiction. (7i) 
 
 § 623. The subject chiefly dealt with in this chapter is 
 more fully discussed in various works on corporations and 
 companies with w^hich our law libraries abound, amongst 
 which the w^ell-known work of Mr. Justice Lindley has 
 long held the foremost place. 
 
 (ft) Crampton v. Varna Railway Co., 1,. R. 7 Ch., 562; supra, § 84.
 
 MISREPRESENTATION. 313 
 
 CHAPTER XIII. 
 
 OF MISREPRESENTATION. 
 
 § 624. A misrepresentation, having relation to tlie 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 
 performance at the instance of the former party ; and may 
 in certain cases be a ground for its active interference in 
 setting aside the contract at the instance of the latter, (a)* 
 
 (a) Edwards V. M'Leay, Coop., 308; S. C.,2 542, reversed in D. P., s. n., Wilde v. Gibson, 
 Sw., 287; Gibson v. DEsie, 2 Y. & C. C. C, 1 H. L. C, 605; St. Leon. Law of Prop., 614. 
 
 ' False statements with relation to a contract sought to be specifically enforced.'^ 
 Both law and equity will prevent the enforcement of a contract, where there 
 has been a deliberate misrepresentation of a material fact. Broderick v. Brod- 
 erick, 1 P. Wms., 240; Jennings v. Broughton, 6 De G. M. & G., 126; McShane 
 V. Hazlehurst, 50 Md., 107. Where the statements are recklessly made, with- 
 out knowledge of their truth, this is a fraud, even when there is no evil inten- 
 tion. Taylor v. Ashworth, 11 M. & W., 413; Rawlins v. Wickham, 3 De G. 
 & J., 804; Stone v. Demy, 4 Mete, 151; Hazard v. Irwin, 1 B. Pick., 96; 
 Lindsley v. Veasey, 62 Ala., 421. Where one party to a contract deliberately 
 makes a misrepresentation with relation to it, a court of equity will refuse to- 
 decree specific performance between the parties. Edwards v. McLeay, 3 
 Swanst., 287; Lord Gordon v. Lord Hutford, 2 Mad., 106; Monroe v. Taylor, 
 8 Hare, 56; Wilde v. Gibson, 1 H. of Lds., 605; Clowes v. Higginson, 1 Ves. 
 & Beav,, 524; Stapylton v. Scott, 13 Ves., 425; Swaisland v. Dearsley, 29^ 
 Beav., 430; Cockrane v. Willis, L. R., 1 Ch., 58; Harnett v. Yielding, 2 Sch. 
 «fcLef., 549; Wuesthoff v. Seymour, 22 N. J., 69; Plummer v. Kepler, 26 id., 
 481; James v. State Bank, 17 Ala., 69; Fuller v. Perkins, 7 Ohio, 196; Solinger 
 V. Jewett, 25 111 , 479; Gilroy v. Alis, 23 Iowa, 174; Cuif v. Dorland, 50 Barb., 
 438; Snedaker v. Moore, 2 Duvall, 542; Spure v. Benedict, 99 Mass., 406; Hill 
 V. Brower, 76 N. C, 124. 
 
 Fraudulent representations ; partnership formed on account of.] A party made 
 false and fraudulent representations with respect to the extent of his business, 
 and a partnership was made for a definite time. Held, that equity would de- 
 cree that the partnership should be annulled, and that the fraudulent party 
 should be restrained from the use of his partner's name in the business; and 
 that defendant must repay the money received on account of the partnership. 
 Smith V. Everett, 126 Mass., 304. It will be good reason for rescinding the 
 contract where it is shown that a direct falsehood has been told, or a truth has 
 been concealed, which, if known, would have been a good reason for causing 
 the terms of the contract to be different. In such a case, the party who is 
 damaged by such fraud may, if an action is brought against him founded on 
 the contract, successfully defend, or he may rescind the contract ; he may also 
 have the damages that he can show himself to have sustained. Tbweatt v. 
 McLeod, 56 Ala., 375; see, also, Raynor v. Wilson, 43 Md., 440; Comyn on 
 Contracts, vol. 3, 304. In a note to Lynch v. Brockhoff, 15 Abb. Pr., 357, wiH 
 be found the rule which operates to prevent specific performance being decreed
 
 314 FRY O.V SPECIFIC PFRFOIIMANCE OF C0XTRAC1\«^. 
 
 Kepresentations are most usually by words, written or 
 spoken, but they may be by act, as, for instance, by the per- 
 formance of fraudulent experiments, on the faith of which 
 a contract was entered into for a license under a patent. (&)' 
 
 (&) Lovellv. Hicks, 2 Y. & C.Ex.,46. 
 
 where fraud, surprise, mistake or hardship are pleaded. See, also, Quinn v. 
 Roath, 37 Conn., 16. 
 
 Either the law or the facts may he fraudulently misrepresented. ] A court of 
 equity -will not onlj^ refuse to decree specific performance when such is the case, 
 but will relieve against it. Broadwell v. Broadwell, 1 Gilm., 599. 
 
 For examples of misrepresentation wliicU vere relieved against, see Wells v. Mil- 
 lett, 23 Wis., 64; Holmes' App., 77 Pa. St., 50; Carmichael v. Vandebur, 50 
 Iowa, 651; Hickey v. Drake, 47 Mo., 369; Kelley v. Sheldon, 8 Wis., 258; 
 Chestnut Hill Res. Co. v. Chase, 14 Conn., 123; Warner v. Daniels, 1 Wood. 
 & Minot, 90; Gazzard v. Webb, 4 Porter (Ala.), 73. In Dale v. Roosevelt, 5 
 John.'s Ch., 173 (aff'd, 2 Cow., 129), there was no evidence of fraud, or inten- 
 tional misrepresentation. 
 
 Deception may consist of acts as icell as words.] "A nod, or a wink, or a shake 
 of the head, or a smile from the purchaser, intended to induce the vendor to 
 believe the existence of a non-existing fact, which might influence the price of 
 the subject to be sold, is a fraud at law. So, a fortiori, would work a contri- 
 vance on the part of the purchaser, better informed than the vender of the real 
 value of the subject to be sold, to hurry the vendor into an agreement without 
 giving him the opportunitj^ of being fully informed of its real value, or time 
 to deliberate and take advice respecting the conditions of the bargain." Lord 
 Campbell, in Walters v. Morgan, 3-De G. F. & J., 724. 
 
 ' If one person makes a representation to another who is about dealing with 
 Mm 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 consequences fol- 
 low a misrepresentation, if the party make the assertion recklessly, without 
 knowing whether it was true or false, or even innocently, if it operated 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 gi-ound for relief. Juzan v. Toulmin, 9 Ala., 662. So, 
 where the vendor of a forty-acre tract of land, well knowing the location 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 conveyed amounted 
 to almost one-third the purchase money, it was held that these facts were such 
 misrepresentations as entitled the vendee to have the 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, ])aying him therefor in shares of the stock of the 
 Cleft Ledge Granite Co., which he represented to be worth $6,000. Several 
 representations were made to W. by D., and also by F., who was concerned in 
 the same company, to induce W. to take the stock in payment, which repre- 
 sentations proved to be false, and the stock worthless. On a l)ill in equity by 
 W. for relief, it was decreed that the sale should be rescinded, the shares re- 
 conveyed by W. 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 W. to D. Where a conveyance is set aside for mis- 
 representations, 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 with 
 out 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 corf-
 
 MISREPRESENTATIOIf. olf) 
 
 § G95. Sacli misrex)resentations may be resolved into 
 some or all of the following elements, namely, — lirst, a 
 
 tract, of which a recission is sought oa these grounds, does not contain the 
 misrepreseutation upon which relief is asked. Hough v. Richardson, 8 Story, 
 U59. And where the vendee of land made representations respecting the value 
 of what wan taken for the consideration, which were false in material points, 
 and which influenced the vendor to sell, it was held that whether the vendee 
 knew them to be false or not, they would vitiate the sale. So, also, if thej'- 
 were made by another person, in the presence of the vendee, and he was bene- 
 fited by them. Warner v Daniels, 1 W. & M., 90. The same consequences 
 would result, although there w'as no fraudulent intent on the part of the ])arty 
 making the representations. Taylor v. Fleet, 1 Barb., 471. It is, however, 
 necessary that the party deceived should, in cases arising from false representa- 
 tions, have entered into the contract upon the faith of these representations. 
 Id. A misrepresentation made by the vendor in a matter of mbstanc-e affecting 
 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, 3 Sandf.'s Ch., 298. Relief will not be granted where the vendee 
 has had opportunity of making an examination of the property, concerning 
 which the false representations have been made Mason v. Crosby, 1 W. ic M , 
 342; Houirh v. Richardson, ?, Story, 059. And so where A. 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 pur- 
 chasers, to w^hom it was given, had as full means of knowledge as A., 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 exploration by A. Id. 
 But an examination, however, will not prevent a recovery for fraud, if false- 
 hood w^as 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 w^ithin the vendor's knowledge; and if the 
 purchaser, reiving in part oii the false representations, made only a slight exam- 
 ination, he wiil be entitled to relief. Mason v. Crosby, 1 AV. ct jNI , 342. Never- 
 theless, no purchaser is at liberty to remain intentionally ignorant of tacts 
 relatino- to his purchase witliin 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 parly, and by which 
 an undue advantage is taken, will be treated with severity, and regarded as a 
 fraud. Shaeffer 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 pro^of of fraud. Stuart v. Luddington, 1 Rand., 4G3; see Morgau 
 V Bliss, 2 Mass., 112; Fuller v. Hcirdon, 25 Me., 243; Ide v. Gray, 11 \ erm., 
 filG; Farrar v. Alston, 1 Dev.. 69. Misrepresentations may arise where a party 
 makes a statement which is literallv true, but substantially false Corbett v. 
 Brown, 8 Bing., 33; 1 Moored Scott. 85. In this case the detendant s son 
 having purchased goods from the plaintiffs on credit, they wrote to t lie detend- 
 ant requesting to know whether his son had, as he stated, i:3i)() capital his own 
 property, to commence business with; to which the deientlant replied that his 
 son's statement as to the £300 was perfectly correct, as the defendant had ad- 
 vanced him the money. It was proved that, at the time of the advance the de- 
 fendant had taken a promissory note from the son for £300, payable on demand, 
 with interest, which interest was paid. Six months after this communicatioa 
 to the plaintifTs, the defendant's son became bankrupt. Held, that it was prop- 
 erly left to the iury to say w^hether the representation made by the detendant 
 was false within his own knowledge, and, the jury having found a verdict for 
 him, the court granted a new trial. Denny v. Gihnan, 26 -Me. 14'.t, is a case of 
 the same kind. See, also, Allen v. Addington, 7 WendL, 9: A\ard y. Center _.:, 
 John 's R., 271; Upton v. Vail, 6 id., 181; Barney v. Dewey, 13 id., 224, o9a.
 
 316 FRY ON SPECIFIC PEKFOUMANCE OF CONTRACTS, 
 
 Statement actually untrue : secondly, the making of that 
 statement by a party to the contract : thirdly, the condition 
 of mind of the person making the statement as to its truth 
 or untruth : fourthly, the intent in the party making the 
 statement to induce the other party to enter into the con- 
 tract : fifthly, the reliance on the statement by the party to 
 whom it is made : sixthly, the statement having such a rela- 
 tion to the contract as that the statement being false makes 
 the contract unconscionable. 
 
 § 620. It will be desirable to discuss these points sepa- 
 rately ; and, in doing so, it must be remembered that it 
 makes a material difference whether the misrepresentation 
 in question is alleged by way of defense to an action for 
 specihc. performance, or to a common law action on the con- 
 tract, or as the ground for an action of deceit, or for the 
 rescission of the contract ; for somewhat less than the in- 
 gredients requisite for either of the two latter jDroceed- 
 ings (c) will suffice to prevent the active interference of the 
 court in specific performance. The object of the present 
 chapter being to consider misrepresentations in relation to 
 specific performance, it is, of course, only incidentally and 
 very partially discussed in any other relation. 
 
 § 627. A misrepresentation may or may not be a fraud. 
 Where it is false to the knowledge of the person making it, 
 it is a fraud.' Where its falsity was not known, it may 
 
 (c) Attwoorl V. Small, 6 Cl. & Fin., 232, 395, Eq , 485. Consider Arkwright v. Ncwbold, 
 
 444; Lovell v. Hicks, 2 Y. & C, 40, 51 ; Abera- 29 W. K., 455. reversing S. C, 28 id., 828; 4!> 
 
 man Ironworks V. Wickens, L. R. 4Ch., 101, L.J Ch.,684. 
 reversing the decree of Malins, V. C, L. R. 5 
 
 ^Innocent misrepresentation, and asserting a fact icithout knowledge.'] '■The 
 gist of the inquiry is, not whether the party making the statement knew it to 
 be false, but whether the assertion uttered as true was believed by the party to 
 whom it was made to be true, and if false, deceived him to his injurj^. The 
 consequences of an innocent misrepresentation, if there can be such a thing, 
 must fall on him who was the author of it, on the principle that the acts of even 
 an innocent man shall prejudice him, rather than a stranger equally innocent." 
 Gibson, Ch. J., in Tyson v. Passmore, 2 Pa. St., 122. Where a party makes a 
 representation as true, and has no positive knowledge as to its truth or falsity, 
 he is guilty of reckless negligence, and if another party is misled he is responsi- 
 ble. "Pulsiford v. Richards, 17 Beav., 87; Eeese v. Wyman, 9 Ga,, 439; Hunt 
 v. Moore, 2 Pa. St., 105; Smith v. Richards, 18 Pet , 20; Hough v. Richardson, 
 3 Story, 659: York v. Gregg, 9 Tex, 85; Turnbull v Gadsden, 2 Strobh. Eq., 
 14; Tayman v. Mitchell, 1 Md. Ch., 49G; Lewis v. McLemore, 10 Yerg., 206; 
 Thompson v. Lee, 31 Ala., 292; Oswold v. ]\tcGehee, 28 Miss., 340; Bennett v. 
 .Judson, 21 N. Y., 238; Phillips v. Hollister, 2 Coldw., 269: Beebe v. Young, 
 14 Mich., 136; Gunly v. Sluter, 44 ]\Id., 237; Frenzell v. Miller, 37 Ind., 1; 
 Elder v. Allison, 45 Ga., 13. 
 
 The truth may he so stated as to he a misj'epresentaiion.] The exact truth may
 
 MlSKEri'.KsSENTATION. 317 
 
 have been carelessly made, or even in perfect innocence : 
 and yet the fact that the statement was false may render it 
 unconscionable in the person who made the statement to 
 enforce the contract which it produced. 
 
 § 628. (1) The first point calls for little remark. It is 
 obvious that, to constitute misrepresentation, there must be 
 a statement, and that statement must be untrue. 
 
 § 629. Mere silence is, generally speaking, neither mis- 
 representation nor fraud ; and, as will be shown in the next 
 chapter, it is quite open to a vendor or purchaser to main- 
 tain such silence, though its effect may be that the other 
 party acts under a misapprehension. 
 
 § 630. The statement must be untrue : and in determin- 
 ing this question, it will not suffice to show that the lan- 
 guage used might admit of a meaning which would make it 
 correct. (<^) It must, it is conceived, be held to be untrue 
 wherever it is found that the speaker intended or expected 
 the hearer to accept it in a sense in which it would not be 
 true. ' 
 
 (d) Clarke v. Dickson, (i C. B. (X. S.), 453. 
 
 be a misrepresentation, where it is known that it is calculated to mislead a 
 party; as, for example, where it was asserted that there was plenty of water 
 upon the property, which was in fact true at the time, but the supply depended 
 not upon natural supply but upon artificial works which might fail. Kerr on 
 Fraud and Mis., 1)2; Edwards y. Wickwar, L. R. 1 Eq., 68; Colely v. Gadsden, 
 
 15 W. R., 1185; Ross v. E.states Ins. Co., L. R. 3 Eq., 135; Chester t. Spayo, 
 
 16 W. R., 576; New Brunswick R. R. Co. v. Congbeare, 9 H. of Lds., 711; 
 Legge T. Crocker, 1 Ba. & Be., 506. 
 
 ' RuU with regard io facts known to vendor.'] All the incidents to wiiich the 
 property is subject must be laid befora the purchaser by the vendor, and it 
 must be in language intelligible to a common understanding. The purchaser 
 must not understand ambiguous terms at his peril. Conyers v. Ennis, 2 !Mass., 
 236; Sheard v. Venables, 36 L. J. Ch., 922; Drysdale v. Mace, 5 De G. M. & 
 G., 107; Swaislaud v. Dearsley, 29 Beav., 430. The concealment must have 
 been such as to have prevented the other party, had the true facts been known, 
 from entering into the contract. Haywood v. Cope, 25 Beav., 140; Young v. 
 Bumpass, Freem. (Miss.), Ch., 241; Jonzin v. Toulmln, 'J Ala., 352; Baglebole 
 V. Walters, 3 Camp., 154; Schneider v. Heath, 3 id., 506; Pearett v. Shambhut. 
 5 Miss., 323; Steele v. Kinkle, 3 Ala., 352. 
 
 Material facts concealed.'] The purchaser, at the time of making the bargain, 
 was ignorant of a substantial defect with respect to the nature of the property, 
 and in regard to which he was not put upon inquiry. Held, that where the 
 defect was substantial, and referred to the nature, character, .situation, extent 
 or (juality of the property, specific performance would not be decreed. Ellicott 
 v. White, 43 Md., 145. 
 
 Tfie words " more or Uss."] The.se words cannot be a cover for misrepre- 
 sentation. King V Knapp, 59 X. Y., 402. 
 
 Part of in-emises purchased fraudulently omitted from deed.] A portion of the 
 estate purchased was fraudulently omitted from' the deed given, and the pur. 
 chaser, being deceived, paid the price, and went into possession under the deed ^
 
 318 FJiY ON SPECIFIC PElIFOr.MAXCE OF COXTRACTS, 
 
 § 031. (2) The statement which is relied on as a misrep- 
 resentation must have been made by a party to the con- 
 tract or his agent, and not by a stranger. "If," said Lord 
 Romilly, M. R., "a third person, by representing to A. 
 that it will be higlily for his benefit, and by false repre- 
 sentations induces him to enter into a contract with B., but 
 B. makes no false representation, and is neither party or 
 privy to any such, then the contract is valid, and stands 
 good in this court. But the person who, by false repre- 
 sentations, induced the other to enter into that contract is 
 liable, in an action, to make good to the person he has mis- 
 led the damage he has sustained by acting on the misrep- 
 resentation made to him."(e) Duranty's Case (/) and Ex 
 parte Worth {g) brings this principle into clear relief ; for 
 in those cases it has been held that if directors, as agents 
 of the company, issue a false report, and third persons, in- 
 fluenced by this report, contract with the company for 
 shares, the contract may be avoided ; but that if the same 
 third persons contract with individual shareholders for 
 shares, the contract cannot be avoided. 
 
 § 0:59. It is, of course, enough that the agent was ap- 
 pointed to bring about the contract for the principal, and 
 that he made the misrepresentation. It is not needful 
 that he should have been appointed the agent to make the 
 misrepresentation. (Z^)' Thus, in the cases in which con- 
 
 (e) In Duranty's Case, 26 Beav., 270. L. R. 2 Ex , 259. 
 
 </> 26 Beav., 268. (i) Sne, e. g., Reese River Silver Minins Co. 
 
 ig) 4 Drew., o29 ,. ^ ^ . v Smith, I.. R. 4 H L.,64; cf. Gibson's Case, 
 
 (/t) Barwick v. English Joint-Stock Bank, 2 De G. & J , 275, 283. 
 
 Held, that he was not bound to know that the description in the contract and 
 the deed, did not embrace all the land orally agreed to be sold, and that the 
 statute of frauds was no bar to an action for the specific performance. Beards- 
 ley V. Duntley, G9 K Y., 577; Goodenousrh v. Curtis, 18 Mich,, 298; Stewart 
 V. Beard, 23 Iowa, 477. 
 
 Rescissioriof Ike contract for fraitduUntconcealment.'] Where a party, by fraudu- 
 lent concealment, or willful perversion of material facts, induces another to 
 enter into a contract, the latter will be entitled to a rescission of such contract. 
 Pollard V. Rogers, 4 Cal., 239; :\IcNiel v. Baird, 6 Munf., 316; Snelson v. 
 Frankhn, 6 id., 210; Rawdon v. Blatchford, 1 Sandf.'s Ch., 344. 
 
 ' TJahility of principle for agent" s misrepresentations.'] The acts of an author- 
 ized agent who, by fraud and false representations, affects a sale of property, 
 even in a case where the fraudulent acts were without the authority or even 
 knowledge of the principle makes such principle legally accountable; it is as if 
 he had done the act himself. New Brunswick R. R. Co. v. Conybeare, 9 H of 
 Lds., 714, 726; Barwick v. English Joint-Stock B'k, L. R. 2 E.x , 265; Bartlett 
 y Salmon, 6 De G. M. & G., 39; Bristow v. Whitmore, 9 H. of Lds., 418; 
 Wheelton v. Hardisty, 8 E. & B , 270; Crump v. United States Mining Co., 7 
 Gratt. 3o2; Hough v. Richardson, 8 Story, 689; Fitzsimmons v. Joslin, 21 Vt., 
 129; Henderson v. R. R. Co., 17 Tex., 560; contra,, Cornfoot v. Fowke, 6 
 M. & W., 358.
 
 MISREPRESENT ATIOlSr. 31 C> 
 
 tracts have been rescinded against companies, tlie repre- 
 sentation have been made by the directors, who, of conrse, 
 have no express anthority to make a misrepresentation. (/> 
 
 § 633. (3) As to the state of mind of the person maldng 
 the statement as to its truth or falsehood ; it is to be ob- 
 served that though there can be no fraud without the knowl- 
 edge of the untruth of the statement, yet there may well 
 be misrepresentation, /. e., the representation may be erro- 
 neous, though not known to be so. 
 
 § 634. It would lead us oyer a wide field to consider how 
 far knowledge of the error is essential in actions to rescind 
 a contract, or in actions for deceit, or to support a defense 
 on the ground of fraud or misrejjresentation in answer ta 
 an action on the contract. (j»') But it is conceived to be clear 
 that, in equity, a false statement, though believed to be 
 true, if made with a view to a contract by a party to the 
 contract, is a good defense to an action for specific perform- 
 ance. In Wall V. Stubbs,(^) Plumer, V. C, observed, "that 
 whether the misrepresentation be willful or not of a fact 
 latent or patent, such misrepresentation may be used to re- 
 sist a specific performance, unless the purchaser really knew 
 how the fact was." 
 
 § 635. This point was particularly considered by Lord 
 Hatherley (when V. C.) in Higgins v. Samels,(Z) in which 
 case the defendant resisted si3ecific performance on the 
 ground of misrepresentation by the plaintiff, and it did not 
 appear that the plaintiff knew the falsity of the statement 
 which he made. His Lordship concluded that it was not 
 necessary to prove that the representation complained of 
 was made with a knowledge that it was false ; and, in so 
 concluding, relied on Taylor v. Asliton(?7z.) and Evans v, 
 Edmonds, {n) The latter case arose on a covenant in a sep- 
 aration deed, to which fraud was pleaded, and Maule, J., 
 said, "I conceive that if a man, having no knowledge what- 
 ever 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 done either with a view to secure some benefit to him- 
 self, or to deceive a third person, he is in law guilty of a 
 
 (j) See on this, at common law, Kennedy {I) 2 J. & H., 460, 466. 
 V. Panama, etc.. Mail Co., L. R. 2 Q. B., 580. (m) 11 M. & W., 4ul. 
 {k) 1 Mad., 80. (n) 13 C. B., 777.
 
 320 FRY ON SPECIFIC PERFORMANCE OF CONTRACTS. 
 
 fj'aud, for, lie takes upon himself to warrant his own belief 
 of the truth of that which he so asserts." (o) Indeed, exe- 
 cuted contracts have been rescinded on the ground of their 
 having been induced by false statements which were be- 
 lieved to be true by the persons making them.(^) 
 
 § 636. Questions of considerable nicety have been raised 
 at common law as to the effect of the misrepresentation by 
 an agent, where the principal is innocent and neither au- 
 thorized nor knew of the misstatement. It has been dis- 
 cussed whether such misrepresentations render the principal 
 liable in an action for deceit. ($') It has, in a celebrated 
 case, been held, that where an agent, without designing to 
 deceive, made a representation which was false, but which 
 he did not know to be so, w^hilst the principal had the 
 knowledge of the actual facts, but did not make the repre- 
 sentation, there was no evidence to support a plea of fraud 
 or covin, (r)' 
 
 § 637. But as an innocent misrepresentation by a ]3arty 
 to the contract is a bar to his seeking specific performance 
 of it, such questions do not seem to arise in actions of this 
 
 (o) 13 C. B., 786. See, also, Peek v Gurney, (r) Cornfoot v. Fowke, 6 M. & W., 358; dls- 
 
 L. R. 6 H. L ,377. cussed and explained InTlie Xaiional Ex- 
 
 (p) Rawlins V. Wickhara, 3 De G. & J., 304 change Co. v. I>rew, •.> N'acq., 103; and see 
 
 (as i-egards the deceased partner); Hart v. Barwick v. English Joint-Stock Bank, L. R. 
 
 Swaine, 7 Ch. p , 42. Distinguish Brett v. 2 Ex , 259. »ee, also, Fuller v. Wilson, 3 Q. 
 
 Clowser, 5 C. P. D., 376; and cf. per Lord B.,58; and in Cam. Scac. as Wilson v. Fuller, 
 
 Selborne in Brownlie v. Campbell, 5 App. C, 3 id., 68, which was an action fer deceit, ulti- 
 
 938. maiteiy decided on the grouwd that the caus« 
 
 (q) Udell V. Atherton, 7 H. & X., 172; Bar- of the injury was the plaintiff's ©wn misap- 
 
 wick V. English Joint-Stock Bank, L. R. 3 pi-ehenslon; and ct". per Lord Hatherley in 
 
 Ex., 259. Brownlie v. Campbell, 5 App. C, 941. 
 
 > Young V. Covell, 8 Jolin.'s R., 23, is a case precisely in point. It was there 
 said by the court that an action of tliis nature ' ' cannot be maintained withotft 
 proving actual fraud in the defendant, or an intention to deceive the plaintiff 
 by false representation. The simple fact of misrepresentation, unconnected 
 with fraudulent design, is not sufficient. The evidence produced by the plain- 
 tiffs at the trial did not make out the fraud, or show enough to justify the jury 
 in drawing the conclusion. The defendant made no representation of faots 
 within his knowledge. He stated correctly the circumstances of the connec- 
 tions of Davis in Rhode Island. He lived on friendly terms with the plaintiffs; 
 he gave them prompt and reasonable notice of his subsequent opinion of the 
 insolvency of Davis; and it did not appear that he had any connection with 
 Davis, or that he came and voluntarily recommended him to the plaintiffs. 
 The advice was rash and indiscreet ; but there is no ground from which to infer 
 that it was deceitful. Deceit is the gist of the action. If the case had gone to 
 the jury, the testimony would not have warranted a verdict for the plaintiifs, 
 and tlie motion to set aside the nonsuit ought, therefore, to be denied." In the 
 older case of Ward v. Center, 3 .John., 271, this point was treated as unsettled, 
 though the court seems to have inclined to the view taken afterwards in Young 
 V. Covell. Of course, where there exists the deceit or fraudulent design, said 
 to be the gist of the action, the complaint is well laid. Gallagher v. Mason, 6 
 Cow., 346; Benton v. Pratt, 2 Wend., 385; Upton v. Vail, 6 John., 181.
 
 MISREPRESElSrTATION, 321 
 
 nature ; for it seems clear that any misrepresentation of an 
 agent leading up to the contract, though both principal and 
 agent were innocent, would debar the principal from specific 
 performance/ 
 
 § 638. It may probably be laid down as a general prin- 
 ciple in equity, that a man is bound who makes a repre- 
 sentation which is not true, though without knowledge of 
 its untruth, and this even though the mistake be innocent ; 
 for a man, before making a representation, ought not only 
 not to know it to be untrue, he ought to know that it is 
 true.(6f) So, in a case where a trustee was charged by the 
 court in respect of a misrepresentation made to a purchaser, 
 and the trustee alleged that he did not, at the time, recollect 
 the fact thus misrepresented. Grant, M. R., said, "the plain- 
 tiff cannot dive into the secret recesses of his (the trustee's) 
 heart, so as to know whether he did or did not recollect the 
 fact, and it is no excuse to say that he did not recollect 
 it."(^)' In like manner, it may be added that, in the cases 
 of agents rendering themselves personally liable, it is the 
 
 (») Ainslie v. Medlycott, 9 Ves., 13, 21. G.. 339 ; and see per Lord Selborne in Brown- 
 
 (t) In Burrowes v. l>ock, 10 Ves., 476; ac- lie v. Campbell, 5 App. C, 93o, 936. 
 •ordingly Price v. Macaulay, 2 De G. M. * 
 
 1 Rule with respect to good faith.} "It is equally promotive of good morals, 
 fair dealing and public justice and policy, that a vendor shou-ld distinctly 
 comprehend not only that good faith should reign over all his conduct in re- 
 lation to the sale, but that there should be the most scrupulous good faith, 
 an exalted honesty, or, as it is often felicitously expressed, nbernma fides, in 
 every representation made by him as an inducement to the sale. He should 
 literally, in his representation, tell the truth, the whole truth, and nothing but 
 the truth. If his representation is false in any one subst^antial circumstance 
 going to the inducement or essence of the bargain, and the vendee is thereby 
 misled the sale is voidable, and it is wholly immaterial whether the representa- 
 tion be willfully or designedly false, or ignorantly or negligently untrue The 
 vendor acts at his peril, and is bound by every syllable he utters or proclaims, 
 or knowingly impresses upon the vendee, as a lure or decisive motive for the 
 bargain." Story, J., in^Doggett v. Emerson, 3 Story, 733; Hough v. Richard- 
 son, id., 659. 
 
 Misrepresentation made in good faith. ] A party misrepresented the law to his 
 sister-in-law and she, believing her title to property held by her not to be good, 
 sold it to him, the sale being greatly to his advantage. Held, that such sale 
 would be annulled, even where the misrepresentations were made in good faith, 
 and in a mistaken idea of the law. Sims v. Farrill, 45 Ga., 585. 
 
 2 A mortf^ao-e obtained by the misrepresentations of the mortgagee is void: 
 and it is ifnmaterial as to its legal effect upon the instrument, whether the 
 mortga<^ee at the time he made the representation, knew it to be false. It he 
 made a" statement of facts, knowing it to be false, it would clearly be a legal 
 fraud- but although he did not know it to be false, yet it he undertook to state 
 it as true without a knowledge of its truth or falsehood, and it operated as a 
 deception on the party to whom it was made, and thereby induce the mortgage, 
 it would avoid it. The gist of the inquiry is not whether the party making the 
 
 21
 
 322 FRY ON SPECIFIC PERFORMANCE OF CONTRACTS. 
 
 same whether they represent what they know to be false, 
 or what they do not know to be triie.('w)' 
 
 § 639. (4) The misrepresentation must have been made 
 in relation to the contract in question, and with a view to 
 induce the other to enter into it ; it must have been dolus 
 clans locum contractuL {v) Hence, unless under very special 
 circumstances, it must have been made at the time of the 
 treaty, (lo) and not have relation to some collateral matter, 
 or other relation or dealing between the parties, (a?)' 
 
 (u) Per Alderson, B., in Smout v. Ilbery, a published prospectus can be presumed in 
 
 10 M & W 10 the absence of specific evidence to have been 
 
 (V) t^ee per Lord Brougham in Attwood v. the basis of an insurance effected with tiiem, 
 
 Small. 6 CI. & Fin., Ui; per Lord Wensley- see Wheelton v. Hardisty, 8 El. & BK, 2u2. 
 
 dale in Smith v. Kay. 7 H. L. C. 775. (x) Harris v. Kemble. 1 Sim., Ill, 128. over- 
 
 (w) Per Leach, V. C. In Harris v. Kemble, ruled, but as to the apj)lication and not as to 
 
 1 Sim., 122 As to the question whether a the principle, 5 Bli. (N. S ). 730. See. also, 
 
 representation by an insurance company In Dawes v. King, 1 ^itark., 75. 
 
 Statement knew it to be false, but whether the statement made as true was be- 
 lieved and, therefore, if false, deceived the party to whom it was made. Jones 
 V. Taylor, 6 Gill & John., 54. In Donelson v. Youngs, Meigs, 155, where a 
 machinist sold a machine made by himself, which was wholly worthless, repre- 
 senting it to be a good one, it was held to be a fraud, although the vendor was, 
 throush want of skill in his business, ignorant that the machme was not a good 
 one. "But it is said that a misrepresentation of the solidity of a mercantile 
 house, made under a mistake of fact, without any interest or fraudulent inten- 
 tion, will not sustain an action, although the plaintiff may have suffered damage 
 by reason of such misrepresentation. Russell v. Clark 7 Cranch, 69. 
 
 ' A person who falsely states a matter within his knowledge, is not excused 
 by averring a want of recollection at the time of the statement. Kent, Ch., 
 Bacon v. Bronson, 7 John.'s Ch., 164. 
 
 2 Willard's Eq. Jur., ch. 3, p. 149; Story's Eq. Jur., § 195. The case of 
 Taylor v. Fleet, 1 Barb. Sup. Ct. R., 471, is an authority of value on this point. 
 A person about to purchase a farm was ignorant of the actual character and 
 capabilities of the land, and had no means of obtaining such knowledge, except 
 by information derived from others; and the owner, with a knowledge that the 
 purchaser's object was to obtain an early farm, and that his farm was not so 
 early as others lying in the neighborhood, represented to such purchaser "that 
 there was no earlier land anywhere about there," and the latter relying upon 
 the truth of such representation, made the purchase; and after ascertaining, by- 
 actual experiment, that the land was not what it had been represented to be, he 
 applied to the vendor, within a reasonable time, to rescind the bargain, who 
 refused to do so. Held, that this furnished a sufficient ground for the interfer- 
 ence of a court of equity to rescind the contract, even though there was no 
 intention on the part of the vendor to deceive the purchaser. In delivering the 
 opinion of the court, Harris, J. , said that a misrepresentation of a material^ fact, 
 constituting the basis of the sale, and relied upon by the purchaser, is sufficient 
 to warrant the interference of the court. In Camp v. Pulver, 5 Barb., 91, the 
 importance of the materiality of the misrepresentation is dwelt upon by the 
 court. Harris, P. J. See Halls v. Thompson, 1 S. & M., 443. 
 
 Misrepresentation without a design is not sufficient for an action, but if recom- 
 mendation of a purchaser as of good credit, to the seller, be made in bad faith, 
 and with knowledge, that he was not of good credit, and the seller sustain 
 damage thereby, the person who made the representation is bound to indemnify 
 the seller. 2 Kent's Com., 490. This rule places the liability of the defend- 
 ant upon the true ground, exonerating him where he may act in good faith and 
 still err in his judgment, and rendering him responsible where he knowingly
 
 MISREPRESENTATION. 323 
 
 § 640. This point was much discussed in a Scotch case in 
 the House of Lords. There, a tottering joint-stock company 
 had put out flourishing annual reports of its condition, and 
 shortly after the last of these reports, and with a view to pre- 
 vent its shares falling in the market and to counteract certain 
 unfavorable rumors, the company, through their manager, 
 urged the defenders to purchase additional shares in the 
 concern, and assured them that the comijany would advance 
 the necessary funds, and that the stock should be 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 comi)any: 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 by 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.(?/) 
 
 § 641. On the other hand, it has been held by the House 
 of Lords that a purchaser of shares in the market, upon the 
 faith of a prospectus which he has not received from its au- 
 thors, cannot so connect himself with them as to render 
 them liable for the misrepresentation contained in it.(r) In 
 
 (y) The National Exchange Co. v. Drew, 2 too, Barry v. Croskey, 2 J. & U., 1 ; and con- 
 Macq., 1(8. sider Barrett's Case, 3 De G. J. & S., 30. 
 
 (z) Peek V. Gurney, L. R. 6 H. L. 377. See, 
 
 misinforms the applicant for the purpose of deceiving him." Daniels, J., in 
 Marsh v. Falker, 40 N. Y., 567. 
 
 Statements claimed to be false, must have been acted upon.] In order that equity 
 may interfere, the misrepresentation complained of must have induced the party 
 to contract to his damage. The injured party must have had a right to rely 
 upon the statements made. Graffenstein v. Epstein, 23 Kan., 443. 
 
 Waiver of misrepresentations.] Where a party enters into new stipulations, 
 he waives a former misrepresentation thereby. Thureatt v. McLeod, 56 Ala., 
 375.
 
 324 FRY ON SPECIFIC PERFORMANCE OF CONTRACTS. 
 
 earlier cases it liad been held, that a report published by the 
 directors of a company as addressed to its shareholders, but 
 intended to come and coming into the hands of any person 
 who might wish to purchase shares, was a representation 
 made by the directors to any person who might obtain the 
 report and on the faith of it buy shares ;(a) and that false 
 representations made by the directors of a company to the 
 secretary of the stock exchange to obtain an official quo-, 
 tation justified a person who, knowing the rules of the 
 exchange, had bought on the faith of the quotation so ob- 
 tained, in suing the directors in damages :{b) but in Peek 
 V. Gurney,(c) Lord Chelmsford, while not doubting the pro- 
 priety of the former of these two cases, expressed strong 
 dissent from the latter. 
 
 It need hardly be said that if, in any case where an action 
 for deceit would lie, the result of the misrepresentations had 
 been a contract between a director and one of the public, 
 and the director had sued the purchaser in specific perform- 
 ance, the purchaser would have had a clear defense. 
 
 § 64S. Where directors as agents of the company pre- 
 pared false reports and a circular addressed to the share- 
 holders and customers of the bank, and intended for fhem, 
 and one of the directors took these papers to a person who 
 was neither a shareholder nor a customer, and thereby 
 induced him to become a shareholder, it was held that the 
 company were not bound, on the two grounds, (1) that the 
 authority was given to the directors as a body and not to 
 each ane individually, and (2) that the paper was prepared 
 for one purpose and applied by an individual director for 
 another, {d) 
 
 § 643. (5) Another circumstance essential to misrepre- 
 sentation as a defense to specific performance is, that it was 
 in reliance upon the statements in question that the party 
 to whom they were made entered into the contract. In 
 Attwood V. Small, (e) which was a case for the rescission of 
 the contract (and for this point the plaintiff's case for rescis- 
 sion and the defendant's case against specific performance 
 seem alike). Lord Brougham, after referring to the earlier 
 
 (a) Scott V. Dixon, 29 L. J. Ex., 62 n. (c) L. E. 6 H. L., 397, 398. 
 
 (6) Bedford v. Bagshaw, 4 H. & N., 538. (d) Nicol's Case, 3 De G. & J., 387. Con- 
 See, also, Clarke v. Dickson, 6 C. B. (N. S.), sider Barrett's Case, 3 De G. J. & S., 30. 
 453 (e) 6 CI. & Fin., 447.
 
 MISREPHESEXTATIOX. 1325 
 
 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 signi- 
 fies nothing ; that attempts to overreach go for nothing ; 
 that an intention and design to deceive may go for notliing, 
 unless all tliis dishonesty of purpose, all this fraud, all this 
 intention and design, can be connected with the particular 
 transaction, and not only connected with the i)articular 
 transaction, but must be made to be the very ground upon 
 which this transaction took place, and must have given rise 
 to this contract." 
 
 ^ 644. It is not, of course, necessary that the statements 
 which were false should have been the sole inducements to 
 the contract. The presence of true statements will not 
 remove or cancel the effect of false ones. (./')' 
 
 § 645. In considering whether the defendant relied on 
 the misreiDresentation of the plaintiff, the court will dis- 
 criminate between such representations as are in conscience 
 a part of the 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 stated 
 may lie in the knowledge of the party making the represen- 
 tation, or whether it must lie beyond his knowledge. Thus, 
 for instance, with regard to mines, a distinction will be 
 drawn between a specific account of what was to be seen in 
 the mine, and a general description of its prospects and 
 
 (/) Clarke v. Dickson, 6 C. B. (N. S.), 453; Nicors Case, 3 De G. A J.. 3S7. 
 
 1 Allen V Addington, 7 Wend., 9; Young v. Hall. 4 Geor., 9"). If a party 
 makes false affirmation, although he has no interest of his own to serve, whereby 
 another sustains damage, he is liable to an action. Beam v. Ilornek, 3 1-iiirf., 
 262; see Stiles v. White, 11 Mete., 35G. 
 
 Mule as P> statements false in fact] "To maintain an action for fraud and 
 deceit, based upon false representations, the representations must not only l)e 
 false, in fact, but the party making them must believe, or have reason to be- 
 lieve, them to be false, and' such false representations must mtluenci;^thi- other 
 party to contract." Grover, J., in Oberlander v. Spiers. 4.. >. \ .. 1 -o; .Meyer 
 v. Amidon id.. 169: :Marsh v. Falker. 40 id . r,(i6: Smith v. Coo, 29 id. <)00; 
 Bennett v. Judson, 21 id.. 23S; Carman v. Pultz. id.. 547: see. iilso, luirlev v. 
 Garrett. 9 B. & C, 92S; Freeman v. Baker. 5 B. ct AhL, <'•••: Thorn v. Big- 
 land 8 E.xch , 726; Bartlett v. Solomon, G De G. >I. A: G , 33; Moc-us v. Hey- 
 worth, 10 M. & W.. 147; Collins v. Evens. 5 Q. B.. 820; lUycraft v. Crea.sy. 
 2 East 92- O.swood v. Huth. 14 M. & W., 651: Burrows v. Lock. 10^e8.. 
 470- Brooks y. Hamilton, 15 Minn., 26: Stitt v. Little, 03 N. ^ ., 427.
 
 326 FRY ON SPECIFIC PERFORMANCE OF CONTRACTS. 
 
 capabilities, wliicli from the very nature of the property 
 must be problematical and doubtful. (^) So, again, the mis- 
 representations relied on must be statements of alleged facts 
 and not mere expressions of opinion.' 
 
 § 616. Accordingly, where an advowson was sold by auc- 
 tion, and the particulars stated that a voidance of the pre- 
 femient 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: Grant, M. R,, held the 
 
 (g) Jennings v. Broughton, 17 Beav., 234; 5 De G M. & G., 126; cf. Jefferys v. Fairs, 4 
 Ch. D., 448. 
 
 ' Where the false statements presumably produced no effect.'} " If the party to 
 whom the representations were made, himself resorted to the proper means of 
 verification before lie entered into the contract, it may appear that he relied 
 upon the result of his own investigation and inquiry, and not upon the repre- 
 sentations made to him by the other party. Or if the means of investigation 
 and verification be at hand, and the attention of the party receiving the repre- 
 sentations 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 of the 
 results, which, upon due inquiry, he ought to have obtained, and thus the 
 motion of reliance on the representations made to him be excluded. Again, 
 when we are endeavoring to ascertain what reliance was placed on representa- 
 tions, we must consider them with reference to the subject matter and relative 
 knowledge of the parties. If the subject is capable of being accuratelj' known, 
 and one party is, or is supposed to be, possessed of accurate knowledge, and 
 the other is utterly ignorant, and a contract is entered into after representations 
 made by the party who knows, or is supposed to know, without any means of 
 verification being 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 
 supposedto 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 information and equal skill, it is not easy 
 to presume that representations made by one would have much, or any. influ- 
 ence on the other." Lord Langdale, in Chapham v. Shillito, 7 Beav., 146; see, 
 also, Pike v. Vigcrs, 2 D. i; W., 201; Vesey v. Doto, 3 Allen, 380; Clarke v. 
 Macintosh, 4 GiS., 134; Hough v Piichardson, 3 Story, G59; Small v. Atwood, 
 6 CI. & Fin., 232. Their inspection, if the purchaser does not avail himself of 
 those means and opportunities, he will not be heard to say in impeachment of 
 the contract of sale, that he was drawn into it by the vendor's misrepresenta- 
 tions." This is the rule as laid down by the United States Supreme Court in 
 Slaughter's Admin, v. Gerson, 13 Wall., 383; see, also, Davis v. Sims, Hill & 
 Denio, 234; Sun Ins. Co. v. Adam, 23 Pick., 2rj6; Mooney v. Miller, 102 iSIass., 
 220; Long v. Warren, 68 N Y., 420; Tallman v. Green, 3 Sandf., 437; Smith 
 V. Countryman, 30 N. Y., C81 ; Grant v. Munt, Cooper, 173; Barnett v. Stan- 
 ton, 2 Ala., 181: Buck v. McCaughtrey, 5 Monr., 216; Eeadiug v. Price, 3. I. J. 
 Marsh., fil ; McKinny v. Fort, 10 Tex., 220; Barron v. Alexander, 27 Mo., 530; 
 Cauldwell v. McCelland, 3 Sneed, loO 
 
 Representations as to property at a didance.'X Where property is sold which 
 the purchaser has never seen, and is obliged to depend upon the statements of 
 the vendor respecting it, such vendor is bound to stand his representation. Re 
 Reese River Silver Mining Co., L. R., 2 Ch., 614; Spalding v. Hedges, 2 Pa. St , 
 240; Smith v. Richards, 13 Pet., 26; Camp v. Camp, 2 Ala., 632; Babcock v. 
 Case, 61 Pa. St., 427; Miner v. Medburv, 6 Wis., 29.j.
 
 MIS REPRESENT ATIOX. 327 
 
 representation made by the particulars so vague and indefi- 
 nite that its only effect ought to have been to put the de- 
 fendant upon making inquiries, and accordingly granted 
 specific performance. (7z) 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 performance :(/)' and the like was held as regards a 
 statement to the effect that the land in course of time might 
 be covered with warp and considerably improved at a mod- 
 erate cost. (J) 
 
 § 647. But, generally speaking, in statements made by 
 the vendor as to property, he is bound to make them free 
 from all ambiguity, and "the purchaser is not bound to 
 take upon himself the peril of ascertaining the true mean- 
 ing of the statement ;"(^') ^^^ ^^ ^U cases of commendation 
 by the vendor, a specific statement as to the character of the 
 thing sold is to be distinguished from general laudation. 
 The statement that a lime which would be produced by 
 stone to be got in an unopened field would be of a particular 
 quality, was held sufficiently precise to furnish a defense. (/)' 
 
 § 648. 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 were discussed by Lord Langdale, M. R., in the case 
 
 (ft) Trower v. Xewcome, 3 Jler., 704. Cotter. 3 Jon & L.. 507; ^'all v. ^tubbs, 1 
 
 (0 Scott T. Hanson, 1 Sim , 13; S. C, 1 R. Ma<1.. 80 See. too. Moxey v. B5pwood. 4 De 
 
 & Mv . 1-2S See, also, on this point Fenton G. F. & J., 3ol; Caballero v. Henty, L. R. 9 
 
 Browne. 14 Ves., 144; Brealey T. Collins. €h.,447. , .-, t * n aai <;«. 
 
 u., 317; Brooke v. Roundlhwaite, 5 Ha., <h Hisrsins v. Samels. 2 J. & H., 460. See. 
 
 vi) Dlmmock v. Hallett. L. R. 2 Ch., 21. 
 {k) Per Lord St. Leonards in Martin v. 
 
 1 It is undoubtedly true tbat to avoid a contract on the ground of misrep- 
 resentation, tliere 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 been made." Taylor v. Flett. 1 Barb. bup. tt. Rep 4<5. 
 Althou<^h other inducements besides the representations may have operated in 
 the o-ivmff credit, it is enough if the vendor is »i<^m? bv such representations, 
 so that Without it the goods Would not have been parted with. Addiugton v. 
 Allen, 11 Wend., 375. . 
 
 •^ There is also a distinction taken at law, between the mere expression of ^^ 
 oniniou and the statement of a fact. Pars. Contr., vol. 2. pt. 2, ch. S, p. -<5. 
 and no^e r/;. But t is added, by the same author, that this distinction must 
 no? be carried too far; and that if the opinion was one on which the other 
 mrty was iustified in reiving, either by the relations existing between the par- 
 ses oi by he nature of the ?ase, and it can be made to appear hat the opinion 
 expressed was not in fact held, that this should be deemed equivalent to a mis- 
 representation of facts.
 
 328 FRY ox SPECIFIC PEKFOEMANCE OF CONTRACTS. 
 
 of Clapham v. Sliilton.(m) His lordship there said : " Cases 
 have frequently occurred in which upon entering into con- 
 tracts misrepresentations made by 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 meaiis of verification, before he entered into the 
 contract, it may appear that he relied ujoon the result of his 
 own investigation and inquiry, ^d not upon the represen- 
 tations made to him by the other party : 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 in- 
 cumbent on a court of justice to impute to him a knowledge 
 of the result, wiiich, ujDon due inquiry, he ought to have 
 obtained, and thus the notion of reliance on the representa- 
 tions made to him may be excluded. Again, Avhen we are 
 endeavoring to ascertain what reliance was i)laced on repre- 
 sentations, we must consider them with reference to the 
 subject matter and the relative knowledge of the parties. 
 If the subject is capable of being accurately known, and one 
 party is, or is supposed to be, possessed of accurate knowl- 
 edge, and the other is entirely ignorant, and a contract is 
 entered into after representations made by the party who 
 knows, or is supposed to know, without any means of veri- 
 fication being 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 in- 
 formed : 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 acquir- 
 ing knowledge, and equal skill, it is not easy to presume 
 that representations made by one would have much or any 
 influence upon the other." ('?^) 
 
 § 649. It must not from this be inferred that the mere 
 presence of the means of detecting the misstatement pre- 
 vents the deceived person from relying on it.(c») If a state- 
 ment be made by A. to B. and the means of verification be 
 offered, B. may rely on the statement and refuse the investi- 
 
 (m) 7 Beav., 146. Kisch, L. R. 2 H. L., 99; affirming S. C, 3 De 
 
 (n) 7 Beav., 149, 150. G. J. & S., 122. 
 
 (0) Central Railway Co. of Venezuela v.
 
 MISKEPKESENTATION. 829 
 
 gation : but if lie accept tlie investigation and find or might 
 have found the statement false, he cannot afterwards allege 
 that he relied on the statement : for in fact he did not. 
 
 § 650. He who, because he does not rely on what is stated 
 to him, resorts to other means of knowledge, cannot after- 
 wards say that the misrepresentation was what he relied on. 
 "If," said Lord Holt, C. J., alluding to the circumstances 
 of the case before him, "the vendor gives in his particular of 
 the rents, and the vendee says he will trust him and inquire 
 no further, but rely upon his particular ; then, if the par- 
 ticular be false, an action will lie ; but if the vendee will go 
 and inquire further what the rents are, there it seems un- 
 reasonable he should have any action, though the particular 
 be false, because he did not rely upon the particular.' '(7>») 
 It was on this ground that the House of Lords ultimately 
 decided the celebrated case of Attwood v. Small. (^) The 
 Britisli, Iron Company had sent a deputation of their direc- 
 tors 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 con- 
 duct they precluded themselves from being able to rely on 
 any previous 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 Avill not 
 afterwards be allowed to say that he was deceived by the 
 representations of the vendor. This decision was given^ in 
 a suit for rescission, and not upon a defense to a specific 
 performance ; but for the present point these seem to l)e 
 
 alike, (r) 
 
 § 651. The principle is further illustrated by the case of 
 Jennings v. Broughton,(5) where the plaintiff, having bought 
 shares in a mine, afterwards sought to set aside the sale on 
 the ground of misrepresentation as to the state of tlie mine ; 
 but he having visited the mine himself, and the alleged mis- 
 statements being such as he was competent to detect, the 
 court held that his purchase of shares had not been made in 
 reliance on the representations, and the bill was dismissed 
 both by Lord Roniilly, M. R., and the court of appeal in 
 
 C.) Lysney V. Selby. 2 Lord Rayd.. HIS, l^^-^^^^^^^X:i't<:.k.f^S^ 
 "S6Cl.&FinV23-2. , ^^.. ^ W 5 I)e G. M. & G.. I'^O; aniru.ing S. C.. 17 
 
 (n Cf. Aberamiin Iron Works v. W ickcns, Bcav., 234.
 
 330 FRY ON SPECIFIC PERFORMANCE OF CONTRACTS. 
 
 chancery. "I desire," said Knight Bruce, L, J., "to be 
 understood as at once giving my opinion against the plain- 
 tiff with regard to every ' object of sense ' which on either 
 visit to the mine he may, as an educated man of ordinary 
 intelligence, having the use of his eyes, his mind on the alert 
 -and his interest awakened, be reasonably taken (whether 
 much or little of a workman or a philosopher) to have ob- 
 served. "(^) With this last mentioned case may advantage- 
 ously be brought into comparison the case of Higgins v. 
 Samels,(?^) where the rei)resentation was as to the character 
 of the lime which could be made from the stone under a 
 field, and where after this statement the defendant and two 
 friends made a cursory inspection of the field in company 
 with the plaintiff, and it did not appear that any of the 
 persons were competent to judge by inspection of the quality 
 of the stone for the purpose of lime burning. In this case 
 Lord Hatherley (then V. C.) considered that the inspection 
 did not preclude the defendant from relying upon the mis- 
 representation. 
 
 § 653. Where a purchaser comi)lained of a representation 
 that the woods sold had yielded £250 per annum on an aver- 
 age of fifteen years, on the ground that though they might 
 in fact have done so, yet that they would not have done sq 
 in 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.(«) 
 
 § 653. The allegation of misrepresentation may also be 
 effectually met by proof that the party alleging it was from 
 the beginning cognisant of all the matters comjolained of,(^o) 
 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 in- 
 stance, where a lessee of a mine, after knowledge of alleged 
 misrepresentation, continued to work it.{xy 
 
 (i) 5De G. M. & G., 131. See, al^o. Hay (w) Cf. Nene Valley Drainage Commission- 
 wood V. Cope, 25 Beav., 140, and Jefferys v. ers v. Dunkley. 4 Ch. D., 1, where misde- 
 Fairs. 4 Ch. D., 448. Bcription was alleged. 
 
 (u) 2 J. & H., 4b0. (x) Vigers v. Pike, 8 Cl. & Fin., 562, 650; 
 
 (V) Lowndes v. Lane, 2 Cox, 363. See, too, Hume v. Pocock, L. R. 1 Eq , 423; 1 Ch., 379. 
 €larke v. Mackintosh, 4 Giff , 134; 11 W. R , 
 «52. 
 
 ' At law, subsequent performance on the part of the one defendant, with 
 knowledge of the fraud acquired subsequently to the making of the agreement,
 
 MISREPRESENTATION. 331 
 
 § 654. Whether a misrepresentation not of fact, but of 
 law, would afford a defense to an action for specific perfonn- 
 ance has not, it is believed, been decided. (?/) But for the 
 purposes of holding a defendant liable to make good a rep- 
 resentation, or of rescinding a contract, it is certain that it 
 must be a statement not of law, but of fact. (2) Every one 
 is taken to know the law.' 
 
 § G35. Questions of title are mixed questions of law and 
 fact : but where the vendors knew of a fact which destroyed 
 their title to a material part of the property sold (viz. : the 
 fact that it was a recent encroachment from a common), and, 
 nevertheless, represented that they were the owners in fee 
 simple or had free power to dispose of the inheritance of 
 the whole of the proj)erty sold, and the abstract tliey deliv- 
 ered did not disclose the material fact, it was held by Grant, 
 M, It., and Lord Eldon that a bill for rescission could be 
 maintained. This was the case of Edwards v. M'Leay.(a) 
 
 § 650. But it must not thence be inferred that every rep- 
 resentation that the vendor has a good title will enable the 
 purchaser to set aside an executed contract or successfully 
 resist specific performance. (5) 
 
 § 657. The authority of Edwards v. M'Leay was followed 
 and relied on by Knight Bruce, Y. C, in the celebrated case 
 of Gibson v. D'Este,(c) in which he decided that the knowl- 
 edge 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, on the 
 
 (y) See infra, § 765 et seq. Union, 9 W. R., 155; Hart v. Swainc, 7 Ch. 
 
 (z) Beattie v. Lord Eburv, L. R. 7 Ch., 777; D . 42. 47. 
 
 affirmed in D. P. L. R. 7 II. L , 102; Legg v. (6) Legge v. Crokcr, 1 Hall & B., 506; Uunie 
 
 Croker, 1 Ball & B.. 506 v. I'ocock, L. R. 1 Eq ,423; 1 fli ,:379; Brown- 
 
 (a) Coop., 308; 2S\v.,287; St Leon.Eawof lie v Campbell, 5 A pp. i: ,92a, 9,i7. Cf. Brett 
 
 Prop., 649. See Turner v. West Bromwich v. Cloxvser. 5 C. P. D . 376. 
 
 (c) 2 Y. & C. C. C, 542. 
 
 and prior to its performance, precludes bim from the disaffirmauce of the con- 
 tract ; or suit for the consideration, but does not bar him of his remedy for 
 damages. Whitnej" v. Allaire, 4 Denio, 554. 
 
 ^ T7ie repreiientation mud he of maliei' of fad, and not of a matter of law, 
 opinion, judgment or mere intention, unless the expression of opinion consti- 
 tutes a warranty, or that of intention or contract; or unless, in dealing with 
 another, an unconscionable advantage is taken of his ignorance of his legal 
 rights. Adam's Equity, 176; see, also, Leake on Con., ]8'2: Kerr on Fravid 
 and Mis., 9U; Curry v- Keyser. ;!!) Ind., 214; Colter v. .Morgan, 12 B. Mou., 
 278; Townsend v. Coales, 31 Ala.. 42^.
 
 382 FRY ON SPECIFIC l>ERFOKMANCE OF COXTMACTS. 
 
 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 concealment 
 by the principal, and not merely by an agent, and that such 
 proof was wanting in the case.(rZ) This decision has by no 
 means given universal satisfaction, (e) but whether correct 
 or not, it leaves intact the doctrine established in Edwards 
 V. McLeay. 
 
 § 658. 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, he will 
 not be able to avail himself of the defect as a bar to specific 
 performance.' This was decided by Grant, M. R., in the 
 case of Dyer v. Hargrave,(/) 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 be- 
 fore purchasing it, and must have known Avhether 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 
 
 (d) Same note, Wilde v. Gibson, 1 H. L. C, (e) St. Leon. Law of Prop., 614. 
 605 See Brownlie V. Campbell, 5 App C, (/) 10 Ves., 505. See supra, § 651. 
 925. 937; and consider Brett v. Clowser, 5 C. 
 P. D., 376, 388. 
 
 ' Each party having an opportunity to examine, and doing so.'] "The rule that 
 when a purchaser has exammed property containing defects which can be dis- 
 covered by ordinary vigiUmce, he is not entitled to relief on account of such 
 defects, does not apply when fraudulent means have been employed to conceal 
 the defects. The obligation to communicate facts ceases when each party has 
 an opportunity of examining for himself, and undertakes to do, without relying 
 on the statements of the other. But it is not the mere opportunity to examine 
 which Telieves the other party from the duty to disclose For although the 
 opportunity exists, vet if the purchaser is led to repose confidence in the vendor, 
 and does not examine for himself, the duty to disclose defects is equally obli- 
 gatory, and the vendor will be held bound for all statements and all undue con- 
 cealm'e'nts." Sharkey, J., in Hall v. Thompson, 1 Sm. & Marsh , 443. 
 
 Purchaser need not give vendor information ofinhanced value.] The purchaser 
 is not bound to advise the vendor of a fact which may increase the value of the 
 property. There may be a mine upon the land of vendor, of which he is 
 ignorant, an intending purchaser who is aware of the fact, is not bound to dis- 
 close it. The rule appears to be, that the vendor must put the purchaser in 
 possession of any fact which decreases the value of the property; but the pur- 
 chaser is not reciprocally bound to advise the vendor of a fact which may 
 increase its value. Fox v. Mackreth, 2 Bro. C. C, 400, 420; Walters v. Morgan, 
 3 De G. F. cfc .J., 923; Wilde v. Gibson, 1 H. of Lds., 60o; Laidlaw v. Organ, 
 2 Wheat., 178; Livingston v. Penn. Iron Co., 2 Paige's Ch., 390; Perkins v. 
 McGanock, Cooke, 4L5; Smith v. Beaty, 2 Ired. Eq., 45G; Harris v. Tyson, 24 
 Pa. St., 347; Butler's App., 26 Pa. St., (53. See contra, where fraudulent mis- 
 representations were used. Swimm v. Bush, 23 Mich., 99.
 
 MISREPRESENTATION. 333 
 
 insisting upon the misrepresentation as a defense. This 
 principle will, of course, only apply where the thing in re- 
 spect of which the representation is made is one perfectly 
 visible to everybody. (<7) 
 
 § 659. This case Avas supported by Grant, M. R., by the 
 analogy of warranties at common law, in which, however 
 general, defects apparent at the time of the bargain are not 
 included, because they can form no subject of deceit or 
 fraud ; so that, for example, a person avIio buys a horse 
 knowing it to be blind in both eyes, cannot sue for this de- 
 fect on a general warranty of soundness. (^) 
 
 § 660. 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 represented to him as true ; for no man can be heard 
 to say that he is to be assumed not to have spoken the 
 truth, "(i)' 
 
 § 661. Such being the proof required, it is very certain 
 
 (a) Grant v. Munt, Coop., 173; infra, S 849 Macaulay, 2 De G. M. & G.,346; Wilson ▼. 
 
 et seq. Short, 6 Ha., 366, 378; Dyer t. Hargrave, >• 
 
 (ft) Bayly v. Merrel, Cro. Jac , 386; Marget- Ves., 505; Levlanrt v. Illlngworth, 2 De G. F. 
 
 eon V. Wright, 7 Blng., 603 & J., 248; Colby v. Gadsden, 34 Beav., 410. 
 
 (»■) Per Knight Bruce, L. J., In Price v. 
 
 ' Chitty's Contr. (6th Am. ed.). 445, 446; Story's Contr., §§ 530, 532. Th« 
 r»le, lioweTer, at law, is not everywhere uniform. "A general warranty," 
 says Mr. Parsons (vol. 1, bk. 3, ch. 5, p. 400, n. [i]), "is said iiot to cover tltv 
 fects plain and obvious to the purchaser, or of which he had coi^nizance: thus, 
 if a horse be warranted perfect, and want a tail or an ear. 13 H., 4, 1 b, pi., 4; 
 11 Edw., 4, 6 b, pi., 10; Southerue v. Howe, 2 Rol. Rep., 5; Lon^ v. Hicks, 3 
 Hump., 305; Schuyler y. Russ, 2 Gaines, 203; .Margetsou v. Wriirht, 5 M. & 
 P., 606; Dillard v. Moore, 2 Eng. (Ark.), 166. The same rule iipplies whetlier 
 the warranty is express or whetlier the warranty is implied by law, from a 
 jsound price, as is the case in some States. Richardson v. .Tohuson, 1 Louis. 
 Ann. Rep., 389. But care should be taken not to misunderstand 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 .wm/w/, 
 {or 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 l»een 
 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 warranty that a horse is ^^ouud i3 
 broken if he cannot see with one eye. House v. Fort, 4 Blackf. ~'^'^- ^> "7 
 may not the vendor be equally liable if one eye was entirely gone ? In Marget- 
 sou v. Wright 8 Bing., 454, 7 id., 603, a horse warranted sound had a splint 
 then- this was ■msible 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 acti(Mi was brought 
 to recover the value of horses sold and delivered. The detonse was that, at the 
 time of the purchase, the plaintiiT agreed to deliver the horses at the end ol a 
 fortnight, sound and free from blemish, and that at the end of a 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
 
 334 FRY ON SPECIFIC PERFORMANCE OF CONTRACTS. 
 
 tliat the mere circnmstance of other means of knowledge 
 being open to the purchaser will not have this effect, even 
 though, independently of any statement, the party relying 
 on the representation would in law have been taken to have 
 had notice of the contrary. The doctrine of notice has ho 
 application where there has been a representation as to the 
 fact of which notice would be implied ;(,/) the proof must go 
 further, and clearly show the purchaser to have had commu- 
 nicated to his mind information of the real state of facts. (^) 
 
 § 662. Therefore, where a distinct representation has 
 been made, it will not be countervailed by any general 
 statement or 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. (Z) 
 
 § 663. These principles are apijlicable not only where 
 the deceived party resists specific perfoiTnance, but where 
 he assumes the position of plaintiff and seeks to set aside 
 the contract on the ground of misrepresentation. In Raw- 
 lins V. Wickham,(77^) the plaintiff successfully repudiated a 
 contract of partnership after he had been a partner for four 
 years with full power of access to the books, and these 
 books would have shown the falsity of the representation 
 made to him. 
 
 § 664. Nor will it prevent the effect of a misrepresenta- 
 tion that the party making it recommended the other to 
 consult his friends and professional advisors, for "no man 
 can complain that another has too implicitly relied on the 
 truth of what he has himself stated." (/i) 
 
 ( j) Drysdale v. ]Vlace,2 Sm. & Gif., 225, 230; (l) Wilson v. Short, 6 Ha.. 366, 377. 
 cf. per Jessel.M.R., in Jones v.lllmmer.U (m)l Giff . 355; 3 De G. & J , 304. 
 Cli D 590 W Beynell v. Sprye, 1 De G. M. & G., 660, 
 
 ik) Price' V. Macaulay. 2 De G. M. & G., 339. 7lU; Dobell v. Stevens, 3 B. & C, 623. 
 See, also, Gibson v. D'Este, 2 Y. & C. C. C, 
 542, 572. 
 
 found a verdict for the defendant, a rule for a new trial was moved on, on 
 the ground that where defects are patent, a warranty against them is in- 
 operative. 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 express warranty of soundness. So of a swell- 
 ing 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 character 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 in this country as in England.
 
 MISEEPRESENTATIOX. 335 
 
 § 660. Thus where a misrepresentation is made V)y a 
 vendor in respect of a lease, of the covenants in which tlie 
 purchaser would, by law, be implied to have notice, the ven- 
 dor will be equally bound by his statement as if no such 
 implication arose, (o) 
 
 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 enti- 
 tled to specific perfomiance, though the defendant miglit,. 
 of course, have inquired into its actual state {p) 
 
 § 666. In Harris v. Kemble(5') there was a contract con- 
 sequent uj)on certain misrepresentations as to the profits of 
 a theatre. Leach, V. C, was of opinion that these repre- 
 sentations, 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 
 Lyndhurst and afterwards by the House of Lords, on the 
 ground that the representations were made with a view to- 
 the contract, and that the accounts were so kept as to ivn- 
 der it difficult without employing an accountant to draw 
 any certain conclusion from them, 
 
 § 667. The circumstance that the vendor sold "with all 
 faults," though it may serve to put the purchaser on liis 
 guard, will not enable the vendor to say that the purchaser 
 did not rely on any representation made, or prevent the 
 purchaser from avoiding the sale, if that representation 
 were false, (r) 
 
 § 668. The principle that, in order to render a misrep- 
 resentation operative, there must be reliance on it by the 
 party who uses it as a defense, applies to the case of the 
 assignment of a contract originally att'ected by such a 
 circumstance: thus it seems that if A. contract with B., 
 and in so doing there are misrepresentations on the part of 
 A. which would prevent his enforcing the contract against 
 B., and B. assign the contract to C, on v.hom no fraud is 
 practised and who is not afi'ected by the original misrepre- 
 sentation, in such circumstances the contract might be 
 
 (0) Van Y. Corpe, 3 My. & K., 269; Flight (?) 1 Sm . 111. particularly IM; S.C ,5 BU. 
 
 l^iTV^-'^'''^^^I^^^''A\l-t ^^(Vric{,nei.lcr.v. Heath. 3 Cam.. 5^. See. 
 
 Long, 6 Beav., 590. ^„ also. i^^f". § ^^' ■ 
 
 Cp) Cox v. MiUdleton, 2 Drew, 209.
 
 336 FRY ox SPECIFIC PERFORlMAlSrCE OF CONTRACTS. 
 
 enforced against C, for he placed no reliance on tlie mis- 
 representation made to B.{s) 
 
 § 669. From the same principle it follows that if A. make 
 a misrei)resentation to the agent of B., which is believed by 
 the agent to be true but known by B. to be false, B. cannot 
 avail himself of this as a defense to specific performance(^)' 
 
 § 670. (6) It is, for obvious reasons, necessary, to consti- 
 tute a misrepresentation which will prevent a specific per- 
 formance, 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 w^ould be unconscionable for 
 the party having made the statement to enforce. In other 
 words, the misrepresentation must be shown to have oper- 
 ated to the prejudice of the defendant. (?/) Tlierefore, where 
 A. induced a i^urchaser 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 in- 
 duce 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. (») But it is sufficient 
 if the misrepresentation operate to the prejudice of the de- 
 fendant to a very small extent, (w) 
 
 § 671. The effect of misrepresentation on the contract 
 and the rights of the parties und-er it is considered in con- 
 nection with cases of fraud in the next chapter. 
 
 (s) gmith V. Clarke, 18 Ves., 477, 484. in antecedentem qui dat cau8am con-tractui, 
 
 (t) Nelson V. Stocker, 4 De G. & J., 458. ita ut, eo absente, contractu* non fleret, et in 
 
 (u) See Polhill V. Walter, 3 B. & Ad., 114. eoncomitantem, geu incldentem, quo etiam 
 
 (v) Fellowea v.. Lord Gwydyr, 1 Sim., 63; absente adhuc contractus Iniretur. * * « 
 
 S. C, 1 R. & My., 83; cf. Flint v. Woodin, 9 Si error circa solam qualltatem accidentalem 
 
 Ha., 618. contigerit, qua? simul cum substantia rei non 
 
 (w) Cadman v. Horner, 18 Ves., 10. Tbe ingreditur objectum substantiale conti-actus, 
 
 distinction of tue casuists between trroy- ante- hie validus omnino persistet." Mariani Ex- 
 
 cedens and concomitant was the same as that amen, § 279. 
 
 referred to in this section. Error " divlditur 
 
 ' Fraudulent representations by the agent of a corpoi'atlon.] Tlie corporation i« 
 bound by the acts of its accredited agent, acting within the scope of liis 
 authority, and must be held for his fraudulent acts. Burnes v. Penuell, 2 H. 
 of Lds., 499 ; National Exch. Co. v. Drew, 2 Mcll., 125; Ranger v. Gt. Western 
 R. R. Co., 5 H. of Lds., 86; Custer v. Titusville Water and Gas Co., 63 Pa. St., 
 381; see, however, Brockwell's Case, 4 Drew, 205. 
 
 Where the agent has no avthority.'\ Where an agent has no authority to do 
 the act, yet where a principal suffers a party to expend his money, believing 
 that the representations of such agent were authorized by the principal, equity 
 will not suffer such principle to plead that his agent had no authority. Kerr 
 on Fraud and Mis., 117; Ramsden v. Dyson, L. R. 1 Ch., 129.
 
 FRAUD. 337 
 
 CHAPTER XIY. 
 
 OF FKAUD. 
 
 § 673. Fraud is, of course, a larger word tlian misrepre- 
 sentation, and includes not only misrepresentation when 
 fraudulent, wliicli lias already been considered, but also all 
 other unconscionable and deceptive dealing of either party 
 to any contract,' 
 
 § 673. Fraud comes before the court in several relations ; 
 as a defense to an action on the contract ; as the ground for 
 an action for deceit ; as a ground for setting aside an exe- 
 cutory or even an executed contract ; as a defense to an 
 action for si')ecific performance ; or, lastly, as forming an 
 exception to the Statute of Frauds, in which relation it has 
 been considered in the chapter {a) on that statute. 
 
 § 674. Fraud may arise either in the obtaining of the 
 contract, or in the course of its performance. 
 
 Fraud in the obtaining of the contract has long been held 
 aground for the cancellation of the contract ; and a fortiori 
 it presents a complete defense to an action for specific i)er- 
 formance. 
 
 § 675. Whether fraud in the course of its performance is 
 in all cases a ground for the rescission of a contract is a point 
 which cannot be considered as finally settled : it certainl}^ 
 appears to be so in all cases in which rescission is the only 
 adequate remedy. (/>) It is conceived that in no case could 
 a party guilty of fraud in the performance of a contract ask 
 
 (a) Part III, chap, xi, § 544 et seq. Co. v. India-rubber, Gutta-percha and Telc- 
 
 (6) Panama and South Pacific Telegraph graph Works Co., L. R 10 Ch., 515. 
 
 ' *'/«, order to constitute fraud at common law, it is not enough to show that 
 fraud, in the sense of misrepresentation and undue advantage of the i>ositiou 
 of the parties said to be imposed upon, has been committed: but tlie extent of 
 the fraud must be brought home to the part}' to the action who is charged with 
 it. In tlie case of frauds in the sense of a court of eijuity, a court of equity 
 will take into account all the circumstances of the case — not only the act anii 
 intention of the party, but the circumstances under which the act was done 
 the position of the party who is said to be imposed upon; his being inojw con- 
 silii; his being in a sense of bodily, and therefore mental, weakness, and so ou — 
 non constat, these are sufficient to eoustitute lesral fraud.'" Kinderslev, V. C, in 
 Stewart v. Greatwest. R. R. Co., 2 Dr. & Sm., 438; llJur. (N. S.), 627. " Fraud 
 
 22
 
 338 FRY ON SrECIFIC PEKFOKMANCE OF CONTRACTS. 
 
 the court to interfere for the purpose of enforcing its further 
 performance. Thus if A. were to contract with B. for the 
 sale of an estate at such a price as C. should fix and then 
 were to bribe C. to fix a very high price, A. could never, it 
 is submitted, bring an action against B. for the performance 
 of the contract either at a price to be fixed by C. or by any 
 third person. 
 
 § 676. In the chapter on misrepresentation it has been 
 seen, that the suggestion of what is false is a ground for re- 
 fusing specific performance, and also in certain cases for 
 rescinding contracts : the same results flow from the non- 
 disclosure of a fact which is material, and which it is the 
 duty of one party to the contract to disclose to the other, (c) 
 
 (c) The question as to what facts which " non ergo generaliter sequendum illud ejus- 
 micht Influence the mind of one party it is deni Ciceronis, celare esse, cum tu quod scias 
 the duty of the other, If knowing of them, to id ignorare eraolumenti tui causa velis eos 
 communicate, is one of great difliculty. It is iiuorum intersit scire : sed tum demum id 
 discussed by Cicero in a well-known pas- locum habet, cum de ns agitur qua; rem sub- 
 sage (De Offic. lib. ili, c. 13 et seq.); culpable jectam per se contingunt." De Jur. Belli ac 
 concealment being in his opinion "cum quod Pacis, lib il, c 12 s. 9. See,,^l«o> Potoer, 
 tu scias id ignorare emolumenti tui causa Tr. du Contrat de Vente, Part II, chap. 2, and 
 veils eos quorum intersit id scire." (C. 13.) supra, § 684, note 1. Consider Blenkhorn v. 
 The limitation put by Grotius on this princi- Penrose, 29 W. R., -237. 
 pie would probably be adopted by our law, 
 
 is infinite ; and were a court of equity to lay down rules how far they would 
 go, and no further, in extending their relief against it, or to define strictly the 
 species, or evidence of it, the jurisdiction would be cramped, and perpetually 
 eluded by the new schemes which the fertility of man's invention would con- 
 trive " Park's Hist, of Chanc, 508. Lord Hardwick says, in Lawley v. 
 Hooper, 3 Atk., 278: "The court very wisely hath never laid down any gen- 
 eral rule beyond which it will not go, lest other means for avoiding the equity 
 of the court should be found out." See, also, Kennedy v. Kennedy, 3 Ala., 
 571- Belcher v. Belcher, 10 Yerg., 121; Gale v. Gale, 19 Barb., 249; Laidlaw 
 V. Organ, 2 Wheat., 105; Smith v. Richards, 13 Pet., 36; Tyler v. Black, 13 
 How., 231. 
 
 Hoioframlistobesnoim'\ "A deduction of fraud may be made not only 
 from deceptive assertions and false representations, but from facts, incidents 
 and circumstances which may be trivial in themselves, but may, in a given 
 case often be decisive of a fraudulent design." 2 Kent's Com., 484. Where 
 a party seeks relief on the ground of fraud, he who alleges the fraud has the 
 burden of proof; it must be proved as alleged. Blair v Bromley, 5 Hare, 559; 
 Lomax v. Ripley, 24 L. J. Ch., 254; Smith v. Kay, 7 H. of Lds., 750; Mowatt 
 V Blake 31 L.T., 387; .Jenning v. Broughton, 17 Beav.,234; Burton v. Blake- 
 more, 2 Jur., 1062; Brock v. McNaughtney, 5 Mon., 216; Gibson v. Randolph, 
 2 Munf., 310; Gerde v. Hawkins, 2 Dev.'s Eq., 398; Eyre v. Potter, 15 How., 
 42; Blaisdell v. Cowell, 14 Me., 370. 
 
 Fraud in matters of contract.'] Lord Hardwick has divided fraud in matters 
 of contract into four heads. " 1st. Actual fraud arising from facts and cir- 
 cumstances of imposition. 2d. Fraud arising from the mtrinsic nature and 
 subject of the bargain. 3d. Fraud presumed from the circumstances of the 
 bargain. 4th. Fraud inferred from the circumstances, and affecting some third 
 person not a party to the transaction. " Chesterfield v. Jansen, 2 Ves. Sen. , 125. 
 Fraud very different from mistake.'] Where the cause of action is based on 
 fraud, it is very different from one based on a mistake alone. One cannot be 
 substituted for the other on the trial. Ross v. Mather, 51 N. Y., 108; Hadley 
 V. ScrantOD, 57 N. Y., 424; Burnham v. Walkup, 54 id., 656.
 
 FKAUD. 339 
 
 or from the active suppression and concealment of a fact 
 which is material, 'and which the other party would have 
 come to know, but for such suppression and concealment. 
 
 But mere silence as regards a material fact which the 
 one party is not under an obligation to disclose to the other 
 cannot be a ground for rescission or a defense to specific 
 performance. 
 
 It becomes then most material to consider what facts 
 either party to a contract is bound to disclose to the other. 
 
 § 677. The obligation to disclose arises in various 
 ways.(^)' 
 
 (d) See Davies v. London and Provincial Marine Insurance Co., 8 Ch. D., 469, 474. 
 
 ' It was decided in White v. Flora, 2 Overton, 426, 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 rescinding the contract in 
 equity. In Snelson v Franklin, 6 iMun., 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 
 liouse leased, 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 relieve the ven- 
 dee by enjoining the vendor from collecting the purchase money, and directing 
 his notes therefor to be given up and canceled. See, also, McNeil v. Baird, 6 
 Munf., 316; Pollard v. Rogers, 4 Call, 439. In Halls v. Thompson, 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 fraudulent. In White 
 V. Cox, 3 Hayw., 79, it was 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, A. borrowed 
 money of B., and secured it by the transfer of stocks. A. was then cashier of 
 a bank, and so continued until its failure, when it appeared that he was a de- 
 faulter to the bank for a large sum, and was insolvent. While this was known 
 to the bank commissioners only, he obtained the stock from B , without con- 
 sideration, upon a representation that he wanted it for a particular purpose, 
 and would substitute other security for it. His purpose, which was to transfer 
 the stock to the bank, to prevent a public disclosure, he withheld 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 uponB., and that the 
 bank could not retain the stock for its demand against A. But where a vendee, 
 in conversation with a vendor, charged him with having concealed an incum- 
 brance 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 jus- 
 tify a rescission of the contract- Halls v. Thompson, 1 S. & ]M., 443. At 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 ex- 
 poses 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 buyer beliexed had been the property of Sir Felix Agar, a cir- 
 cumstance which might have enhanced its value in his eyes. The seller knew 
 that the purchaser was laboring under this delusion, 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
 
 340 FRY ON SPECIFIC PERFORMANCE OF CONTRACTS. 
 
 (1) Where the parties to a contract stand in some pre- 
 existing relationship to one another of a fiduciai-y character 
 (as, for example, the relation of agent and principal), (e) they 
 can only deal after the most full disclosure. The relations 
 of trustee and cestui que trust,{f) solicitor and client, part- 
 ner and partner, are all well known to be of a fiduciary kind. 
 The cases arising out of such relationships show that when 
 there is a non-disclosure of that which it is the plaintiff's 
 duty to disclose, no specific performance can be granted. 
 
 § 678. (2) Sometimes the obligation to disclose may even 
 arise from an antecedent wrong done by the one party to the 
 other. "If," said Lord Hatherley, "a man knows that he 
 has committed a trespass of a very serious character upon 
 his neighbor' s propertj^ and finding it convenient to screen 
 himself from the consequences, makes a proposal for the 
 purchase of that property, he certainly ought to communi- 
 cate to the person with whom he is dealing the exact state 
 of the circumstances of the case:"(p') and on that ground 
 and under these circumstances specific performance was 
 refused. 
 
 («) See Imperial Mercantile Credit Associa- tionship imposing a similar obligation. See 
 
 tion V. Coleman, I>. R. 6 H. L., 189; Dunne per James, L. J., in Dicconson v. Talbot, L. 
 
 V. English, L. R. 18 Eq, 524. R. 6 Ch., 37. , „„.^ ,.,„,„ 
 
 (/) Probably in the case of a tenant for life {g) Phillips v. Homfray, L. R. 6Ch., uO, ,79. 
 purchasing from his trustees there is a rela- 
 
 itself it might be seen that Lord EUeuborough 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., say- 
 ino- that in Hill v. Gray there was '^positive aggressive" deceit. "Not removing 
 the delusion might be equivalent to an express misrepresentation-" 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 tlieir account, had been protested, 
 thou"-h the vendor's informant accompanied his statement 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 essentiallj^ 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 
 successftil, has known periods of commercial disaster when his property would 
 not pay his debts. It would be too strict to hold, that, under such circum- 
 stances, 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 charac- 
 ter, but who have not heard of his failure, and innocently purchase their prop- 
 erty on credit."
 
 FKAUD. 341 
 
 § 679. (3) Sometimes the obligation to disclose arises 
 from the character of the contract itself. For there are 
 certain contracts which are said to be uherrlmcefidei .•" ?. e., 
 they are contracts which, from their natnre, demand a fnll 
 disclosure of all material facts by the one contracting party 
 to the other : such are contracts for marine insurance, and 
 contracts for the formation of a partnership. In these cases 
 silence maj^ be fraud. (^) So again, in the case of the con- 
 tract between a company and a person taking shares, the 
 courts have held that there is an obligation to disclose 
 material circumstances. (/) 
 
 In the case of a contract for the sale of a chattel having 
 a latent defect, there exists an obligation to disclose that 
 defect. 0) 
 
 § 6SO. (4) Sometimes the obligation to disclose arises 
 from the course of the negotiation itself. 
 
 It is evident that the making of one statement during a 
 negotiation may create an obligation to make another : so, 
 if in the course of a negotiation A. make a statement to B. 
 which is false in fact and which A. subsequently discovers 
 to be false, he is under an obligation to state that discovery; 
 or if A. make a statement to B. which at the time is true 
 but in the course of the negotiations becomes false, A. 
 becomes under an obligation to state that change of fact to 
 
 "When," said Lord Blackburn, addressing the House of 
 Lords, "a statement or representation has been made in the 
 honafide belief that it is true, and the party who has made 
 it afterwards comes to find out that it is untrue, and dis- 
 covers what he should have said, he can no longer honestly 
 keep up that silence on the subject after that has come to 
 his knoAvledge, thereby allowing the other party to go on, 
 and still worse inducing him to go on, upon a statement 
 which was honestly made at the time when it was made, but 
 which he has not now retracted when he has become aware 
 that it can be no longer honestly persevered in. That would 
 be fraud too, I should say, as at present advised. And I go 
 
 {K\ See per Lord Blackburn In Brownlle v. Arkwright vjfewbold, 29 W. R. 455, revers- 
 
 Carapben; 5 A pp. C, 954. ing S. C, '28 W. B_. ?2!?; ^^,^ J-,< ^>^'^- „. 
 
 (J) New Brunswick, etc.. Co.v. Muggerklge, (./ ) Horsla 1 v. Thomas, 1 Hurl. & Colt., 90. 
 
 1 Dr. & Sm.. 363; Central Railway Co. of (A) Reynell v. Sprye, 1 De G M & (^^, 660, 
 
 Venezuela V. Ki6ch,L. R. 2 H. L., 99; Hend- 703; Traill v. Baring, 4 De t.. J. & S.,ol!<,329. 
 erson v. Lacon, L. R. 5 Eq , 249. Consider
 
 342 FRY ON SPECIFIC PERFORMANCE OF CONTRACTS. 
 
 on furtlier still to say, what is, perhaps, not quite so clear, 
 but certainly it is my opinion, where there is a duty or obli- 
 gation to speak, and a man in breach of that dutj^ or obliga- 
 tion holds his tongue and does not speak, and does not say 
 the thing he was bound to say, if that was done with the 
 intention of inducing the other party to act upon the belief 
 that the reason why he did not sj^eak was because he had 
 nothing to say, I should be inclined myself to hold that that 
 was fraud also.'"(Z) 
 
 § 681. Again, entire silence can hardly deceive: but an 
 imperfect statement may be a perfect untruth. For in- 
 stance, if the owners of a business, desiring to sell it to a 
 company, put out a prospectus containing various state- 
 ments, each in itself correct, but keep silence on a material 
 fact, it would seem well worthy of consideration whether 
 these persons who were under no antecedent obligation to 
 make any statement have not, by sajang something, assumed 
 an obligation to tell not only the truth but the whole truth, (m) 
 So where a proposed creditor describes a transaction to the 
 proposed sureties, the description may be evidenced of a 
 representation that there is nothing in the transaction that 
 might not naturally be expected to take place between the 
 parties to the transaction described. (7i) 
 
 § 689. (5) Further, it must, to prevent confusion, be ob- 
 served that there are obligations to disclosure which arise 
 from the contract itself : as, for example, the obligation on 
 a vender of real estate honestly to disclose his title. This 
 is a duty arising out of, and subsequent to the contract, and 
 the non-performance of this duty cannot constitute frrlud 
 dans locum contractu,!. With these we are not at present 
 concerned. 
 
 § 683. (6) Lastly, an obligation to disclosure may arise 
 from statute. The 88th section of the companies act, 1867 
 (30 and 31. Vict., c. 131), (o) provides that "Every prospectus 
 of a company, and every notice inviting jDersons to subscribe 
 for shares in any joint-stock company, shall specify the 
 dates and the names of the parties to any contract entered 
 into by the company or the promoters, directors, or trus- 
 
 (0 In Brownlie Y.Campbell, 5 App C.,950. (o) This section, iinfl the cases under it, 
 
 (m) Consider Peek v. Gurney , L. R. 6 H. L., are discussed in Buckley on the Companies' 
 
 377. Acts (3i ed ), 455 et seq. 
 (n) Lee v. Jones, 17 C. B. (N. S.), 482, 503.
 
 FRAUD. 343 
 
 tees thereof, before the issue of such prospectus or notice, 
 whether subject to adoption by the directors or the com- 
 pany, or otherwise ; and any prospectus or notice not speci- 
 fying the same shall be deemed fraudulent on the part of 
 the promoters, directors, and officers of the company know- 
 ingly issuing the same, as regards any person taking shares 
 in the company on the faith of such prospectus, unless he 
 shall have had notice of such contract." 
 
 § 684, But it has never (it is believed) been held by our 
 courts that there is any general obligation to disclosure on 
 the part of a vendor or purchaser of chattels or realty, 
 though the person maintaining silence may know that the 
 other party is acting under an erroneous impression. ' '■Aliud 
 est celare^ aliud tacere : neque enim id est celare quicquid 
 reticeas.''\'p) 
 
 It has been justly observed, by Mr. W. W. Story, (5') that 
 "it is the general policy of the law, in order to induce vig- 
 ilance and caution and thereby to prevent those opportuni- 
 ties of deceit which lead to litigation, to throw upon every 
 man the responsibilities of his own contracts, and to bur- 
 den him with the consequences of his careless mistakes." 
 "I am not aware," said Lord Chelmsford, addressing the 
 House of Lords in the case of Peek v. CTurney,(r) "of any 
 case in which an action at law has been maintained against 
 a person for an alleged deceit, charging merely his conceal- 
 ment of a material fact which he was morally but not legally 
 bound to disclose." The case of Keates v. The Earl of Cado- 
 gan,(5) is an authority for the proposition that there is no 
 obligation on a proposed lessor of a house in a ruinous and 
 unsafe condition to inform the proposed lessee of its state. 
 In Horsfall v. Thomas, (^) it was decided that the vendor of 
 a chattel is under no obligation to disclose a patent defect. 
 In Smith v. Hughes, (?/) the court of Queen's Bench deter- 
 mined that the passive acquiescence of the seller of chattels 
 in the self deception of the buyer does not entitle the latter 
 to avoid the contract. Lastly, in Edwards-Wood v. Mar- 
 
 {v-\ Cicero De Oflf. Lib. iii, c. 13. Cicero vdis must, it is conceived, import not only 
 
 continues: "Se.1 cum, quod tuscias, id iguo- will but some act consequent thereupon, 
 
 rare emolumenti tui causa vclis eos, (luorum See supra, § 6.b, 'lO'e 1. 
 
 Intersil id scire" The passage has been (?) Law of Contracts (.)the(l.), 8 b44. 
 
 culd by Lord Mansneld in Carter v. Boehm (r) L, R. G H L.. 39u ; and .ee page 403. 
 
 (3 Bur., 191(1), and by Knight Bruce, L. J , in (»•) IOC. B-. 591. 
 
 Nelthorpe v. Holgate (1 Coll., iil). If the W ^ ^ * Uolt , 00._ 
 
 wholeis to express the principles of our law, {«) L. U. b y. «.. •).»..
 
 344 FRY ON SPECIFIC PEKFORMANCE OF CONTRACTS. 
 
 joribanks,(r) a contract was made for the sale of an advow- 
 son, nothing being said or asked as to the income of the 
 living, which was in fact snbject to a charge in favor of the 
 Governors of Queen Anne's bounty, for repayment of a sum 
 borrowed from them to rebuild the parsonage ; the pur- 
 chaser filed his bill for specific performance with compensa- 
 tion, but got a decree only for specific performance without 
 compensation ; and from this he ineffectually appealed, first 
 to the Lords Justices, and lastly to the House of Lords. 
 
 § 685. Again, as regards the purchaser, he is not under 
 an obligation to communicate any circumstance which may 
 enhance the value of the thing bought by him. 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 it.(io) And so 
 where a first mortgagee, with power of sale, having entered 
 into an arrangement not amounting to a binding contract 
 for the advantageous sale of part of the mortgaged prop- 
 erty, afterwards bought ux) at a reduced price the interest 
 of the second mortgagee without informing him of the ar- 
 rangements for sale, a bill to set aside the sale by the second 
 mortgagee, on the ground of the suppression of information 
 by the purchaser, was dismissed by Lord Romilly, M. R., 
 and subsequently by Lord Cranworth. {x) Nor is the pur- 
 chaser liable to an action for deceit for misrepresenting the 
 seller's chance of sale, or the probability of his getting a 
 better j)rice than that offered. (2/) 
 
 § 686. The case is, however, quite different when, in ad- 
 dition to silence, something is done by the one party to con- 
 ceal from the other some fact material to that other party. 
 Thus, where a wall which required to be maintained against 
 the Thames was industriously concealed, a bill for specific 
 performance was dismissed, though without costs. (^)' 
 
 So, again, where collieiy owners entered into a contract 
 
 {V) 1 GIff.,384; 3 De G. & J.. 329; 7 H. L. C, (x) Dolman v. Nokee, 22 Beav , 402. 
 806. See, also, Haywood v. Cope, 25 Beav., (y) Vernon v. Keys, 12 East, 632 
 140. (») Shirley v. Stratton, 1 IJro. C. C, 440. 
 
 (w) Fox V. Mackreth, 2 Bro. C. C, 400, 420; Dietinguish Cook v. Waugh, 2 Giff , 201. 
 cf. Walters v. Morgan, 3 De G. F. & J., 723. 
 
 ' Margraft v. Muir, 57 N. Y., 155; Mank v. Patcbin, 42 id., 167; Pumpelly 
 V. Phelps, 40 id., 60; Bu.sh v. Cole, 28 id., 201; Taylor v. Merrill, 55 111., 52; 
 Fish V. Leser, 69 id., 394.
 
 FRAUD. 345 
 
 for tlie purchase of a farm adjoining their colliery not only 
 withont disclosing, bnt (it would seem) studiously conceal- 
 ing the fact, of which the vendors were at the time wholly 
 ignorant, that they (the purchasers) had wrongfully taken 
 2,000 tons of coal from under the farm, the court dismissed 
 with costs the purchasers' bill for specific performance of 
 the contract, and ordered it to be delivered uj^ to the ven- 
 dors for cancellation. («) And where A. agreed to sell his 
 land to B. at a half -penny per square yard, which amounted 
 to about £500, when the real value was £'2,000, and the de- 
 fendant asked the attorney whom he employed to calculate 
 the amount before the contract was signed, not to tell the 
 plaintiff how small it was, the court granted an interlocu- 
 tory injunction against the deceiver to stay proceedings at 
 law,(&) In Hill v. Gray,(c) the plaintiff had employed an 
 agent to sell a picture, and the defendant bought it under 
 the belief that it had belonged to a third x)erson. Tlie case 
 has sometimes been thought to support the proposition that 
 mere silence may be fraudulent. But in Keates v. Earl of 
 Cadogan,((^) Jervis, C. J., pointed out that the case really 
 turned on the "aggressive deceit" on the part of the agent 
 of the seller ; and if the case cannot be sui:)ported on tliis 
 ground it seems not to be law.(e) 
 
 Even as regards a sale with all faults, the industrious and 
 active concealment of faults would be fraudulent. (/') 
 
 § 687. So, though the purchaser may keep silence as to 
 the advantages of the estate, he must not make any false 
 representation as to it, or go any farther 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 i)riiici- 
 ple will not be allowed to operate." Accordingly, in the 
 case before his Lordship, the purchaser having made such 
 suggestions of what was not true, the contract was set 
 aside :(.^) and in a case where a solicitoi- bought of a jierson 
 in difficulties who was selling without professional advice, 
 and untruly represented the nature and title of the prop- 
 
 (n) Fothergill v. Phillips, L. R. 6 Ch,,770. (/) BaRlehole v. Walters, 3 Camp., 154; 
 
 (b) Deane v. Raetron, Anetr , 64. Schneider v. Heath, i<l , 5(10. 
 
 (c) 1 Stark., 434. (v) lumer v. Harvey, Jac., ICfl, ITS; and 
 (f/) IOC. B.,5'J1. "^ " " "■" '" '■'■ °" ' "'^" 
 (e) See per I.ord Chelmsford in Peek v 
 
 Gurcey, L. R. 6H., 391. 
 
 see Walters v Morjran. .T De G. F. & J., 723, 
 724; Davis v. Cooper, 5 My. & Cr., 270.
 
 346 FRY ox SPECIFIC PEIIFOUMANCE OF CONTRACTS. 
 
 erty as sucli that no one but a professional man would pur- 
 chase it, specific performance was refused. (7/ )' 
 
 § 688. It must be observed that it is possible that silence 
 which would not constitute fraud may yet constitute such 
 unfairness in a contract as to stay the hand of the court. 
 The case of Ellard v. Lord Llandaff,(0 if it is to be sup- 
 X)orted on tlie ground of the silence of the lessee as to the 
 fact that one of the lives in the surrendered lease was, at the 
 time of signing the contract, in extremis, rests upon this 
 principle ; and was so put by Lord Manners in deciding 
 
 it.(.y) 
 
 § 689. The employment of a puffer at auctions is in some 
 circumstances regarded as fraud, which will prevent the en- 
 
 (h) Davis V. Abraham, 5 W. R., 465. Cf. fi) 1 Ball & B., 241. 
 Summers v Uriflith, 35 Beav., 27. {J) tiee, also, supra, § 383. 
 
 ' But in Bowman v. Bates, 2 Bibb., 47, A. discovered a salt spring on B.'s 
 land, and purchased 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 pur- 
 chaser knew to the contrary was not ground to set aside the sale. Livingston 
 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 delivering 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 suflScient for an avoid- 
 ance 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 suffi- 
 cient to constitute a fraud upon the other party." In the case before him — 
 which was thi.s — 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 Wendell v. Fo.sdick, 13 
 Johns. 's liep., 325; Weller v. C^olden, 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 vendor, are at exact vari- 
 ance with those of equity (Pars. Contr., vol. 1, 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 be Laidlow v. Organ, 2 Wheat., 178 
 (Pars. Contr., vol. 1, p. 4(31). The facts were these: One Shepherd, interested 
 with Organ, and in treaty with Girault, a member of the firm of Laidlow & 
 Co., at New Orleans, for a quantity of tobacco, had secretly received intelli- 
 gence over night of the peace of 1815, between England 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 enhanced; but there was no evidence 
 that Organ had asserted, or suggested, anything to induce a belief that such 
 news did not exist; and under the circumstances the bargain was struck. INIar- 
 .shall, C. -J., delivered the opinion of the court, to the effect that the buyer was 
 not bound to communicate intelligence of extrinsic circumstances, which might 
 influence the price, though it were exclusively in his possession; and that it 
 would be dlflicult to circumscribe the contrary doctrine within proper limits, 
 where the means of intelligence are equally accessible to both parties.
 
 FRAUD. 347 
 
 forcement of the contract made at the auction. The cases 
 prior to the recent legislation seem to fall under three heads, 
 which it will be desirable to discriminate. 
 
 § 690. (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 circumstances, 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 highest bidding shall go.(^-) Therefore the em- 
 ployment by the vender in such a sale of one or more per- 
 sons to keep up the price on his behalf amounts to fraud in 
 the contemplation of the court, (Z) and is a bar to specific 
 performance. (7?i) Where the vendors, assignees of an in- 
 solvent, put up his life-interest in certain pro]Derty for sale 
 by auction without reserve, having previously entered into 
 an arrangement with a person whose wife was interested in 
 remainder, that he should bid £35,000 and be the purchaser, 
 unless a higher sum should be bid, and this fact was con- 
 cealed, it was held to taint the sale to the defendant at the 
 auction, though he purchased for £49,800. {ny 
 
 § 691. The statement that a sale is without reserve may, 
 of course, be modified by other statements, as in one case 
 of a sale under the court, where it was stated that the sale 
 was without reserve, but that all parties to the suit had lib- 
 erty to bid : and the court of appeal in chancery held that 
 the result of the two statements, though not very consistent, 
 was such that the purchaser could not complain. (o) 
 
 § 692. (2) Where there is no declaration that the sale is 
 without reserve, and no right of bidding is expressly re- 
 served to the vendor, and he employs one person to prevent 
 the property going at an undervalue ; this has been thought 
 not to be fraud in the contemplation of a court of equity, (7?) 
 though it clearly was in that of the courts of common law.((/) 
 
 {k) Per Lord Cottenham in Robinson v. (»0 Robinson v. Wall, 10 Beav., 61 ; S. C , 2 
 
 Wall, 2 Ph .375. Ph , 372. 
 
 {I) Thornett v. Haines, 15 M. & W., 307, (n) Dimmock v. Qallett. T. R. •> Ch., 21. 
 
 where the earlier cases are cited. (/>) Smith v. Clarke, 12 Vca., 477; Wood- 
 Cm) Meadows V. Tanner, 5 Mad, 34. As to ward v. Miller,'2 C.dl., 27it; Flint v. Woodin, 
 
 an intending purchaser buying off hidders, 9 Ha.tilS; Braniley v. Alt. 3 Ves, 620. 
 
 see Heffer v. Martvn, 15 W. K.,390; 3(> L J. (?) Per Lord Wensleydale in Thornett v. 
 
 Ch.,372, and cf. Ke Carew's Lstate, 2tj Beav., Haines, 15 M. A \V., 372; Crowder v. Austin, 
 
 187. 3 Bing., 3(JS. 
 
 ' See Morehead v. Hunt, 1 Dev. Ch., 65; Hinde v. Pcudleton, AVytlif, 144.
 
 348 FRY ON SPECIFIC 1>EKF0K.MANCE OF CONTRACTS. 
 
 The distinction, however, was disapproved of, if not doubted, 
 by Lord Cranworth in the case of Mortimer v. Bell.(r)' 
 
 J; 693. Inasmuch as a contract, if originally void by the 
 common law, ought not to be enforced by equity, the de- 
 fendant in a suit in the court of chancery for specific per- 
 formance might avail himself of the defense furnished by 
 this fraud at law, and that formerly by means of a trial of 
 the question at law.(.S') 
 
 Jj 694. (3) Even in the absence of any declaration that 
 the sale is without reserve, the employment of two or more 
 persons as puffers has in all courts been considered fraudu- 
 lent, inasmuch as only one person can be necessary to pro- 
 tect the property, and the employment of more can only be 
 to enhance the price. (/) 
 
 § 695. The decision in the case of Mortimer v. Bell above 
 mentioned led to the passing of an act of Parliament (the 
 
 (r) L. R. 1 Ch., 10. See infra, §§ 695, 696. Haines, 15 M. & W., 372. See, also. Rex v. 
 (s) Woodward v. Miller, 2 Coll . 279 Marsh, 3 Y. & J., 331; Bramley v. Alt, 3\e8., 
 
 It) Per Lord Wensleydale in Thornett v. 620. 
 
 ' But in Woods v. Hall, 1 Dev. Ch., 411, where a person interested in land 
 sold at auction, employed another to bid for hira, 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 imder 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 re- 
 served a bid for himself. Bexwell v. Christie, Cowp.. ;395: Howard v. Castle, 
 G T. R., 642. And this doctrine seems to be approved in 2 Kent, 538, 539 (5th 
 ed.), and 1 Story's Ei[. Jur., § 293. It has been adopted, also, in later English 
 cases. Crowder v. Austin, 2 Car. & P.. 2(i8; Wheeler v. Collier, 1 Mood. <k 
 Walk., 123: Fuller v. Abraham, 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, 8(i. Ithas 
 been decided in several American cases, that contract by which one party stipu- 
 lated 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 public 
 policy, and a fraud on the vendor. James v. Caswell, 3 John.'s Cas., 29 : Doolin 
 V. Ward, 6 John., 194: Wilbur v. Howe. 8 id , 444: Thompson v. Davies. 13 
 id., 112;'Dudley v. Little,2Ham.,505; Picatt v. Oliver, 1 McLean, 295; Gulick 
 v. Ward, 5 Halst., 87. According to other decisions, the validity of such agree- 
 ment is made to turn on the gtw animo, and they will be valid if made bona fide 
 for the sole purpose of preventing a sacrifice of the property Wolfe v. Luy- 
 ster, 1 Hall. 146; Jenkins v. Hogg, 2 Const. (S. C), 821 ; Smith v. Greenlee, 2 
 Dev., 120; Small v. Jones, 1 Watts & Serg , 128; Phippes v. Stickncy, 3 Mete, 
 384, where the subject is discu.ssed with clearness and the authorities are care- 
 fully examined. But an association of bidders with a design to stifle competi- 
 tion, is a fraud upon the vendor. Smith v. Greenlee, 2 Dev., 12G; See, also, 
 Morehead v. Hunt, 1 Badg. ct Dev. Eq.,35; :\[oncrief v. Goldsborough, 4 Harr. 
 & :M'Hen., 281; Troughton v. Johnstone, 2 Hayw., 328; note in Bramley v. 
 Alt (Sumn. ed.), 3 Ves., 620.
 
 FRAl'D. 349 
 
 30 and 31 Yict., c. 48), which was introduced by Lord St. 
 Leonards. , 
 
 The 4th section of this act, enacts that, after tlie passing 
 of the act, whenever a sale by auction of land would l)e in- 
 valid at law by reason of the employment of a puffer, the 
 same shall be deemed invalid in equity as well as at law. 
 
 Land is defined to include hereditaments of whatever 
 tenure : but the difference of the view of the courts of com- 
 mon law and equity as to fraud in auctions of chattels (if 
 such difference exist) is left in its pristine vigor. 
 
 § 696. The 5tli section of the act enacts that the particu- 
 lars or conditions of sale by auction of any land shall state, 
 (a) whether such land will be sold without reserve, or (b) 
 subject to a reserved price, or (c) whether a right to bid is 
 reserved : and 
 
 (a) If the land be sold without reserve, it is not lawful for 
 the seller to employ any person to bid at such sale, or for 
 the auctioneer to take knowingly any bidding from any 
 such person. 
 
 (b) In the event of the land being sold subject to a re- 
 served i)rice the act is silent, but it has been held that in the 
 absence of express stipulation, it is not lawful to employ 
 any person to bid up to the reserved 'pvice.{u) 
 
 But (c) in the event of a reservation of a right to the seller 
 to bid, it is lawful for him or for any one person on his be- 
 half to bid at such auction in such manner as he may think 
 proper (§ 6).{v) 
 
 § 697. As with regard to misrepresentation, so A^th re- 
 gard to fraud in general, delicate questions arise where the 
 fraud alleged is that of the agent jDracticed on third persons, 
 and the principal is sued on the ground of deceit or for re- 
 scission by reason of such fraud. (?o) But in actions for 
 specific performance these questions cannot arise. If the 
 principal of the fraudulent agent were the plaintiff, he 
 would not be at liberty to avail himself of that agency in 
 part and repudiate it in the rest of the transaction : to such 
 a case the well-established piinciple of equity that innocent 
 parties cannot derive benefits from the fraud of others {x) 
 would apply. If, on the other hand, the fraud were that of 
 
 (M) Gilliat V. Gilllat, L. R. 9Eq..60. (.r) Brldgman v. Green, Wilm. Sot., M; 
 
 (v) See Parfltt V. Jepson, 46 L. J. C. P., 529. Hueuenin v. Baseley, U Ves., 2S0: Nicol's 
 (w) See supra, § 636. Case, 3 De G. & J., 387, 43S.
 
 350 FRY ON SPECIFIC PERFOKMANCE OF CONTRACTS. 
 
 the defendant's agent, the plaintiff by sning on the contract 
 would have waived the fraud and ratified the contract. 
 
 § 698. A particular class of cases arising from the agency 
 of directors, and the fact that corporations are incapable of 
 l^ersonal fraud, has occujiied much attention in the courts 
 of late years, and has evoked a considerable variation of 
 opinion amongst the learned judges. (?/) But the question 
 can hardly arise in cases of specific performance for the 
 reason indicated in the last preceding section. 
 
 sj 609. Will the fraudulent act of a mnre stranger, to 
 which the plaintiff was neither party nor privy, deprive 
 him of his right to enforce the performance of a contract? 
 The question has never, it is believed, been judicially ans- 
 wered. But upon the general equitable princi^^le that no 
 person, though innocent, can derive a benefit from the fraud 
 of another, the contract if resting absolutely in fieri could 
 not be enforced. If the plaintiff were an assign for value of 
 the contract, or if the contract were partly performed, the 
 conclusion might probably be different. (2) 
 
 § 700. The effect of fraud on the contract tainted by it 
 extends to the entirety of the contract, though the fraud 
 may only have arisen or been jDracticed as regards one term 
 or one part of that contract. Hence the party guilty of the 
 fraud cannot enforce the contract to any extent even though 
 he may waive the part affected by the fraud. 
 
 § 701. The same results follow from misrepresentation, 
 even though innocent. 
 
 In a case where there was a misrepresentation which the 
 judge 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 plain- 
 tiff offered to take the land subject to the lease, and thus, 
 as he contended, to abide by the contract, exonerated from 
 what was affected by the misrepresentation ; so that the 
 question distinctly arose wiiether the misrepresentation 
 avoided the contract in toto or only quoad lioc ; Plumer, M. 
 R., said, "there is no authority anywhere, no case where 
 
 (2/) Ranger V Oreat Western Railway Co., Case, 3 De G. & J., 387; Western Bank of 
 
 5 H. L C, 72; Burnes v. Pennell, 2 id., 497; Scotland v. Addie, L. U. 1 H. L. Sc, 145; 
 
 New Brunswick and Canada Railway, etc., Mackay v. Commercial Bank of New Bruns- 
 
 Co. v.Conybeare.7id ,711(S C.,4Glff ,339; 1 wick, L. R 5 P.O., 394; Swire v. Francis, 3 
 
 De G F. & J., 5781 ; National Exchange Co. App. C, 106. 
 
 of Glasgow V. Drew, 2 Macq , 103; Nicol's («) Consider Cobbett v. Brock, 20 Bea v., 524.
 
 FRAUD. 3.-)! 
 
 the court lias, when misrepresentation was the ground of a 
 contract, decreed the specific perfoimance of it ; and notli- 
 ing would be more dangerous than to entertain such a juris- 
 diction. The principle on which performance of an agree- 
 ment is compelled, requires that it must be clear of the 
 imputation of any deception. The conduct of the i:)erson 
 seeking it must be free from all blame : misrepresentation, 
 even as to a small part only, prevents him from apphing 
 here for relief. The reason of this is obvious : if it be so 
 obtained, the contract is void both at law and in equity. 
 When an agreement has been obtained by fraud, is the 
 effect to alter it partially, to cut it down or modify it only i 
 No ; it vitiates it hi toto ; and the party who has been drawn 
 in is totally absolved from ol)ligation. 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 willing to consent to it, and to 
 enter into a new agreement, it would be a different case ; 
 but if he refuses, if he insists that he is absolved from it, 
 what equity can there be in favor of the other ^'(f/) 
 
 § 702. The view that fraud operates on the entire con- 
 tract was adopted and approved by the court of appeal in 
 chancery in Rawlins v. Wickliam,(i) which was a suit for 
 rescission, where the defendant urged that justice would be 
 done not by rescinding the contract but by directing the 
 representation to be made good ; but the contention was re- 
 jected by Knight Bruce and Turner, L. JJ., on the ground 
 that the misrepresentation gave a right to avoid the entire 
 contract. 
 
 § 703. The effect of fraud on the contract is two fold. 
 First, it renders the contract voidable at the election of the 
 defrauded party ; secondl}^, it operates as a personal bar to 
 specific performance. These two effects are for many pur- 
 poses distinguishable ; for example, the right to rescind 
 may be lost, and the right to object to specific performance 
 may remain. These two effects will therefore be considered 
 separately. 
 
 § 704. The first effect of fraud is to render the whole con- 
 tract voidable, but viodable only. The contract is not void ; 
 
 (o) Viscount Clermont v. Tasburgh, 1 J. & v. Fanaiua, etc., Mull Co , L. U. 2 Q B., 580, 
 W.. 119, 120. 587; and cl". Hart v. Swaine, 7 Ch. i>., 42, 47. 
 
 (6) 3 De tJ. & J., 304. See, also, Kennedy
 
 3;")2 y\i\ ON M'KriFic pehfokmance of contracts. 
 
 it is not a imllitv. ''It is now well settled," said Lord 
 Campbell, C. J., in The Deposit and General Life Assurance 
 Co. Registered v. Ayscougli, (c) "that a contract tainted by 
 fiMiid is nor void but only voidable at the election of the 
 parry defrauded." It is valid till disaffirmed ; not void till 
 
 affirmed. (<Z) 
 
 ij 705. From this distinction, many important conse- 
 quences follow: it follows that the defrauding party is 
 lx)und until the defrauded party elect to the contrary, and 
 that he can never set up anV invalidity in the contract : it 
 follows that the defrauded party is equally bound, until he 
 rescind \(e) it follows that the property the subiect of the 
 contract passes to the purchaser, Avhether defrauding or de- 
 frauded, until avoidance ; it follows that all mesne disposi- 
 tions by the defrauding party to third persons not parties 
 or privies to the fraud are valid, so that third persons may 
 acquire absolute interests and rights under the fraudulent 
 contract ;(/) and lastly it follows that the defrauded party 
 may, by electing to be bound or by losing his right to re- 
 pudiate, l)ecome absolutely bound by the contract. 
 
 § 706. The right of rescinding a contract may, however, 
 be precluded or lost by any one of the following circum- 
 stances, viz., (1) impossibility; (2) the vesting of an interest 
 under the contract in an innocent person which renders re- 
 scission inequitable ; (3) the election of the defrauded party 
 to abide by the contract ; or (4), the inability of the de- 
 frauded party to perform the obligation which rests upon 
 him to make restitution on his part.(^) 
 
 § 707. (1) The recission has become impossible when its 
 object is to get back something which is actually destroyed, 
 as, e. g., if A. sought to rescind a contract for the sale of a 
 sheep to B., which sheep B. had killed and eaten. (7i) 
 
 The rescission would be equally impossible, but for a legal 
 and not a physical reason, if B. instead of killing the sheep 
 had sold it ; for the contract between A. and B., not being 
 void, vested the property in B., and consequently before 
 rescission B. could make a good title to C, and C. could 
 
 (c) 6E1.&B1.,C71. See, also, Nicol's Case, (e) Deposit and General Life Assurance 
 
 3 De G. & J., :js7,431 ; Clarke v. Dickson, El. Co. Registered v. Ayscough, 6 El. & Bl., 761. 
 B. & E., 148; Oakes v. Turquand, L. R. 2 U. (/) Stevenson v. Newnham, 13 C. B., 285, 
 
 L., 325, 316; Urquhart v. Macpherson, 3 App. 302. 
 C., SU. {g) See Clough v. London and North West- 
 
 (ti) See per Lord Cairns in Reese River ern Railway Co , L. R. 7 Ex., 26. 
 Sliver Mining Co. v. Smith, L. R. 4 H. L., 69. (A) Pothier, du Central de Vente, s. 348.
 
 FKAVD. 353 
 
 hold free from any right of rescission in A.(/) It is too late 
 for the defrauded vendor to declare his election to rescind 
 when the property has passed from the fraudulent vendee 
 to a third person. (,/) 
 
 § 708. (2) The rescission is inequitable when third per- 
 sons innocent of the fraud have acquired interests under 
 the contract, and such innocent persons would consequently 
 be injured by its rescission. So in the great case arising 
 out of Overend Gurney & Co.'s failure, it was held by the 
 House of Lords that the person who took shares by reason 
 of a fraudulent misrepresentation could not, after a winding 
 up order, rescind this contract and have his name removed 
 from the list, because the creditors of the company had ac- 
 quired an interest in the enforcement of the contract which, 
 as they were innocent, the shareholder could not defeat by 
 rescinding. (A:) 
 
 § 709. (3) An election to abide by the contract will pre- 
 vent its rescission. A person defrauded into making a con- 
 tract has but an election, and an election once determined 
 is determined for ever.(?) Whether this election must be 
 made within a reasonable time, or whether the party enti- 
 tled to elect may do so at any time, unless he has, in the 
 meanwhile, lost that right on some other ground — as, e. g., 
 the acquisition of rights by third parties, is a question left 
 open by the most recent case on this subject. (w) It is cer- 
 tain, however, that in the case of rescission for fraud, the 
 election once determined in favor of the contract precludes 
 any subsequent rescission. (?i) 
 
 § 710. In the case of contracts to take shares induced 
 by a misrepresentation of the objects of the comi:>any, it 
 is now determined that the date of the allotment of the 
 shares is the very latest date to which the reasonable time 
 for election extends. (o) 
 
 § 711, The election to abide by a contract may be by ex- 
 press words, or may be inferred from acts done with a 
 
 (i) Klngsfonl v. Alerrv, 11 Ex ,577; Load (7n) Morrison v. Universal Marine Iiisur- 
 
 V. Green, 15 M. & W., 216, 219 ancc Co., I. R. S K.\ .4(1, I it7, particularly 2 >6. 
 
 U) White V. Garden, 10 C. B., 919. (n) Campbell v. Flcmiiijf, 1 A. & E., 40; 
 
 (k) Cakes v. Tiir(]uand, L,. R. 2 H. L. 325; CIoukIi v. London and North-Western liail- 
 
 Mixer's Case, 4 De G. & J., 575. waj' Co., L R. 7 Ex., Ji;. 6ee, also, Gray v. 
 
 {I) Corny n, Dig. Election, c. 2. Clough v. Fowler, L R. 8 Kx., 24'.i. 
 
 London and Xorth-Western Hallway Co., L. (o) Oakes v. Tur<iuand, L. R 2 H. L., 325, 
 
 R. 7 Ex., 26, 34. and i)artlcularly 352, where the earlier cases 
 
 are considered. 
 
 23
 
 354 FRY ON SPECIFIC PERFORMANCE OF CONTRACTS. 
 
 knowledge of the invalidity of the contrcact.(;?) The elec- 
 tion \h not necessiirily formal or ejspress. 
 
 As soon as the fraud is discovered the right to elect arises ; 
 and if this has been exercised by affirming the contract, the 
 subsequent discovery of fresh incidents of the same fraud 
 •will not give rise to a new right to rescind. (^) 
 
 ^71*2. (4) The person who seeks rescission and thereby 
 restitution to his state before the contract, must do the like 
 on his part and make restitution. ''Restitutio in integ- 
 rum,'' said Lord Cranworth,(r) "can only be had where the 
 party seeking it is able to put those against whom it is asked 
 in the same situation in which they stood when the contract 
 was entered into." 
 
 If, by any act on his part, done even in ignorance of the 
 fraud, the defrauded party has made this impossible, he 
 cannot obtain recission ;(5) as, e. g., if A. has by fraud been 
 induced to buy a sheep of B. and seeks the repayment of 
 the money paid to B., he must offer to restore the sheep, 
 and if he has himself killed the sheep, he cannot seek such 
 rescission, (^) though he may still maintain his action against 
 B. for the fraud practiced on him. 
 
 In the case of Clarke v. Dickson, (i^) the plaintiff sought 
 to rescind a contract for the sale of shares in a mine, and 
 the following facts were held to be several grounds of objec- 
 tion all falling under this principle ; (1) that he had held 
 the shares for three years, and that they were not the same 
 shares at the beginning of the time as at the end ; (2) that 
 he had received dividends ; (3) that he had concurred in the 
 conversion of the concern from a i)artnersliip on the cogt- 
 book principle, into a joint-stock cori:)oration ; and (4) that 
 at the time of the offer to restore the company was being- 
 wound up and all chance of profit was gone. 
 
 § 71U. In a more recent case in the House of Lords the 
 plaintiff complained of fraud in inducing a contract on his 
 part to take shares in an unincorporated banking companj?^ : 
 
 (/)) Per T.or'l hynflhurst in Attwood v. Nicol's Case, 3 De G. & J., .387, 431; Great 
 Small.G (Jl. &Fin.,432; Macbryflev.Wetkes, Liixemljourp Railway Co. v. AlaKniiy, 25 
 K Beav., .W3. Coinyn, Uijc. Election, c. 1. lieav,.i!-6, Thi» case, so far as It determined 
 Clough V. London and North-Wcalern Rail- that the plaiutifl's had lost their remedies be- 
 way Co., L. U. 7 Ex, 20; Morrison v. Uni- skIcs rescission, seems bad law. see Kimber 
 Tcrsal Marine Ins. Co.. L. R 8 Ex., )97, 2U3 v. IJaiber, L. R. 8 Ch., ."jG 
 
 (7) Campbell v. Fleming, 1 A. & E., 40. (m) El. B. & E , 14S See, too, Sheffield 
 
 (r) In Western Hank ot Scotland v. Addle, Kicbel Co. v Unwin, 2 Q B. L)., 214, 223; Ur- 
 
 L. R. 1 n. L. So ,1G4. qiihart v. Macpherson, 3 App. C, 831; and 
 
 (») S. C., ICG. consider Maturinv. Trtdennick, 12 W. R.,740. 
 
 (t> See Clarke v. Dickson, El. B. & El , 14S.
 
 FRAUD. 355 
 
 and the circumstances that tlie phiintift' liad in ifjiiorance of 
 the fraud taken i^art in proceedings to convert this company 
 into an incorporated company, and that the company was 
 in course of winding up, were held ta preclude tlie i)hiintitf 
 from rescission. Lord Cranwortli thought that the former 
 circumstance would of itself have been sufficient. (i') 
 
 § 714. The receipt of dividends before discovery of the 
 fraud was relied upon in the case of Clarke v. Dickson/;?^) 
 as precluding rescission ; and there are other authorities to 
 show that, at common law, tlie reception of any benefit 
 under a contract will preclude its rescission for default of 
 performance by the other party.(^) But it is submitted 
 that no such rule prevails where the rescission is on the 
 ground of fraud, and that where a benefit has been received 
 and is capable of restoration eitheir in kind or by way of 
 compensation, and the defrauded party offers such restora- 
 tion, he has not lost his right to rescind. 
 
 For to return to the illustration of the sheep : — if, before 
 the discovery of the fraud, A. has sheared the sheep, it ap- 
 pears reasonable to hold that such change in the condition 
 of the sheep will not dei^rive A. of his right to rescind, if he 
 offer to restore the sheep and account for the wool. 
 
 So, in Earl Beanchanip v. Winn,(//) the House of Lords 
 held that the construction of a warx^ing- drain and the in- 
 closure of a common would not have prevented the rescis- 
 sion of a contract for the sale of the land on the ground of 
 mistake : and in The Lindsay Petroleum Co. v. Hurd {z) the 
 privy council took the same view of the facts that possession 
 had been taken under the contract and a trial well sunken. 
 In that case the court below had offered an account of the 
 profit of the well, if any, which was not accepted. 
 
 § 713. In the rule as above stated, (a) the act precluding 
 restoration is referred to the party bound to restore. Is it 
 essential that it should be by his act, or is it enough that 
 even by another's act the restoration is impossible i To re- 
 turn once more to the sheep. Can the defrauded 2>nrcliaser 
 claim to rescind tliough the sheep have died by the act of 
 
 (v) Western Bank cpf Scotland v. AtUllc, L. (z) L. R. 5 P. C, ^il See, a?so, per Cromp- 
 
 JR. 1 H. L. Sc, 14.5. ton, J , In Deposit anil General l.tfe .\bsur- 
 
 (w) El B & K , 14S ance Co. Keglsteied v. Avscough, C El. jc Bl. 
 
 (a;) Hunt V. Silk, 5 East, 449; Blackburn V. 701. 
 
 ■Smith, 2 Ex., 7S:^ («) Supra. § 7lO. 
 
 («/) L. E. G H. L., 223, 232.
 
 350 FHY ox SPECIFIC PERFORMANCE OF CONTRACTS. 
 
 God ? Tlie point seems to have never been decided. On the 
 one side there are cases in which are found general state- 
 ments of the law wliicli imply that the impossibility of 
 restoration from whatever cause is a bar to rescission, (ft) 
 And it may be open to question whether any real distinction 
 can be drawn between the innocent act of the defrauded 
 paity Avhich precludes him from restoration, and the act of 
 God* or of a third person, leading to a similar result. On 
 the other side is the language of Crompton, J., in Clarke v. 
 Dickson, (r) that " the true doctrine is that a party can never 
 repudiate a contract after, by his own act, it has become out 
 of his power to restore the parties to their original condi- 
 tion." 
 
 § 716. As our law is far from clear on this point it may 
 be useful to refer to the principles of French law as ex- 
 pounded by Pothier.(fZ) According to him, an action for 
 rescission was not precluded by the change or destruction 
 of the thing sold If the destruction took place without 
 the act of the plaintiff, he was not bound to do more than 
 he could. If the horse had died, the plaintiff must give 
 back his skin ; if the cow sold had died of a contagious dis- 
 ease, and been buried, he need return nothing. If, on the 
 other hand, the change or destruction was due to the act of 
 the plaintiff, he was bound to account to the defendant for 
 the value of the thing but did not lose his action. 
 
 § 717. The right to rescind does not arise from an inno- 
 cent misrepresentation, unless it be such as to show there 
 is a complete difference in substance between what was 
 supposed to be and what was taken so as to constitute a 
 failure of consideration, (e) * 
 
 § 71 8. It must not be assumed that in every case in which 
 the right of rescission is lost, every other remedy in respect 
 of the transaction is lost also. This is not the case. Thus, 
 a person induced to take shares by fraud may have lost the 
 right of rescinding the contract, but may yet sue the de- 
 ceiver for indemnity against the loss resulting from the con- 
 tract. (/) A principal authorizes an agent to buy shares at 
 
 (6) Hunt V. Silk, 5 East, 449; Blackburn v. (0) Traite du Contrat de Vente, §§ 220-223. 
 
 Smith, 2 Ex., 783. («) Kennedy v. Panama, etc., Mail Co , L. 
 
 (c) El. B. & E., 1,5.5, approved in P. C. Urqu- R. 2 Q. B., 58'J; Torrance v. Bolton, L. R. 8 
 
 hart V. Macpherson, 3 App. C. P31. See, too, Ch., 118. Cf. Brett v. Clowser, 5 C. P. D.,376. 
 
 Sheffleld Nickel Co. v. Unwin, 2 Q. B. D., 214, (/) Peek v. Gurney, L. R. C H. L., 377. 
 223.
 
 FRAUD, 357 
 
 £3 per share on the agent's representation that he ran pro- 
 cure tliem for that price : the agent has, in fact, just bouglit 
 them for £2 a share ; the principal having sold the shares 
 before the discover}^ of the fraud cannot rescind the con- 
 tract, but may sue the agent for the difference between £3 
 and £2 -per share. (<7) 
 
 § 719. The second effect of fraud on the contract is this: 
 it "operates," as expressed by Lord Lyndhurst, "as a per- 
 sonal bar to the relief. (70 This is an operation independent 
 of the rescission of the contract ; and though there can be 
 no doubt that, where the defrauded party has elected to be 
 bound by the contract, he has also waived the right to insist 
 on the personal bar ; it does not follow that he has also lost 
 the right to set up that bar where rescission has become im- 
 possible from the interests of third persons, or from the 
 impossibility of restitution arising either from the act of 
 God or of third persons or from his own act before knowl- 
 edge of the fraud. In all these cases, it is conceived that 
 the defendant might still urge the fraud as a bar to specific 
 performance — just as at common law he might, after having 
 lost his right to rescind in any of the Avays last indicated, 
 maintain an action of deceit against the defrauding party. (z) 
 
 An innocent misrepresentation may, as well as a fraudu- 
 lent one, constitute a personal bar to relief. (,/) 
 
 § 720. Where it ai)pears that the execution of a contract 
 in the manner insisted on by the plaintiff will result in a 
 fraud upon the public, the court will not enforce the per- 
 formance of the defendant's part of the contract. Thus, in 
 a case where the plaintiffs sought to compel the defendant 
 to perform an alleged contract by him to edit a guide-book 
 with a title-page, stating it to be the work of K. (a well- 
 known editor of such books), who, in fact, had nothing to do 
 with it ; it was held, that the defendant was jiistilied in stay- 
 ing his hand and breaking off the delivery of '-copy "' of his 
 manuscript, on the ground that such a title-page was en leu- 
 la ted to deceive the public. (A*)' 
 
 (g) Kiniber v. Rarbcr, L. K. 8 Cb., fC (./> flermont v. Taslnrgh. 1 J. X- W., 11-2. ' 
 
 (A) Jn Mania v. Keinbl.', 5 Bli (N. S ). 75'. ik> Po-t v Marsh, l(i Cli. I) , 39o. Ct. Old- 
 (i) Clarke v. Dickt-on, El. B. & E., l^S. ham v. James, 15 Ir Cli U , SI. 
 
 ' Parol proof to inraJulnie written contract in case offrnvd.] The operation of 
 a deed or other written contract, complete and intelligible in itself, will be cou-
 
 358 FRY ox SrECIFIC PPZKFOKMAIS^CE OF CONTRACTS. 
 
 trdlli'd by parol evidence, -ohere fraud is allecrcd and proved. Where a party 
 applii'S to a court of equity for the cnforcemeut of a written contract, the ad- 
 verse partv is entitled to show that the instrument never contained the true 
 contract between the parties. Nelson v. "Wood, 02 Ala.. IT-l; Rearich v. fiwine- 
 beart. 11 Pa St., 233; Atlantic Delaine Co. v. James, i Otto, 207. 
 
 Friinduleni uae of a wriUcn inxtrumenf ] "It is enough tliat, though the 
 parties acted in mutual good faith at the inception of the transaction, an at- 
 tempt is made to invest the instrument to a different purpose not contemplated, 
 or to use it in violation of the accompanying agreement. It is as much a fraud 
 to obtain a paper for one purpose, and "to use it for a different and unfair pur- 
 pose, as to practice falsehood or deceit in its procurement. The primary hon- 
 esty of purjiose but adds to the moral terpitude of the subsequent efforts to 
 escape from it; or, when moral guilt cannot be imputed, a legal delinquency 
 attaches upon an attempted abuse of the writing, sufficient to subject it to the 
 influence of the oral evidence." Bell, J. in Rearich v. Swineheart, 11 Pa. 
 St.. '233; see, also. Parks v. Chadwick, 8 Watts &, Serg., 9G; Archer v. McCray, 
 59 Ga., 54'». "All the cases show that, to pave the way for the reception of 
 oral declarations, it is not necessary to prove that a part}' was actuated by a 
 fraudulent intention at the time of the execution of the writing. His original 
 object may have been j^erfectly honest and upright: but if. to procure an unfair 
 advantage to himself, he subsequently deny a parol qualification of the written 
 contract^ it is such a fraud as will, under the rules, operate to let in evidence of 
 the real intent and tinal conclusion of the contractors." Per curiam, in Ren- 
 sham v. Gauz, 7 Pa. St., 117; Murrv v. Duke. 40 Cal., 044; see, also. Neal v. 
 Speigle. 33 Ark.. 03; Young v. Peadiey, 2 xltk., 2')(); Campbell v. McClana- 
 chan. Serg. <k Rawle. 172; Lvon v. Huntington "Bank. 14 id., 2^3: Oliver v. 
 Rowland. 4 Rawle. 141; Hultz v. Wriicht. 10' Serg. & Rawle, 34o; Thompson 
 V. White. 1 Dallas, 424; Archer v. McCray, 59 Ga^ 540. 
 
 Fra 11(1 as 1o third person's riglits ] ' ' Where once a fraud has been committed, 
 not only is the person who has committed the fraud precluded from deriving 
 any benefit from it, but every other person is so likewise, unless there has been 
 .some consideration moving from himself If there has been consideration 
 moving from a third person, and he was ignorant of the fraud, such third per- 
 son stands in the ordinary condition of a purchaser without notice. But wiiere 
 there has been no consideration moving from himself, a third person, however 
 innocent, can derive no sort of benefit or advantage from the transaction." 
 Wood (V. C). in Scofield v. Templer, Johns., 150; Berry v. Whitney, 40 
 Mich., 65. 
 
 Gro!<!< inadequacii of consideration jnai^ he evidence of fraud.'] Gwynne v. Heaton, 
 1 Bro. C. C, !^: Janes v. :Morgan. 1 Lev., Ill ; Butter v. Haskell, 4 Dessau. 's 
 Eq.. 651: Havirarth. v. Wearing, L. R., 12 Eq.. 320; Osgood v. Franklin, 2 
 John.'s Cii., i; Gilford v. Thorn. 9 N. J. Eq., 7u2: CoffeeV RutBn, 4 Coldw., 
 507: Judi,n_- v Wilkins, 19 Ala., 705; Warner v. Daniels, 1 Woodb. & TMinot, 
 90; Byers v. Surget, 19 How., 303; Wrisht v. Wilson, 2 Yerg., 294; Hardi- 
 man v. Rurge, 10 id., 202; Morris v. Phillibar, 30 Mo., 145; Defvderich v. Wat- 
 kins, 8 Humph., 520. 
 
 FniHd ax ar/ain-st creditors.] " Distributees have no right whatever to inter- 
 meddle with the personal estate of the deceased, for an_v other purpose than to 
 do such acts as may be necessary to preserve it until an administrator can be 
 appointed Any other acts of control by any person, constitute him an execu- 
 tor de Kon tort, and subject him as a p naltv to the payment of the debts of the 
 deceased When, therefore, this bill shows' that the ch'ildren of William Simons, 
 Sr., instead of subjecting this property to the payment of his just debts in a 
 due course of administration, made an agreement that no administration .should 
 betaken; that they would wholly disregard the rights of creditors, and treat 
 the property as their own, it shows an agreement which a court of equity can- 
 not enforce. It is not based on any equitable rights of the parties. It is a 
 violation of the common law. It tends to defraud creditors. It is plainly for- 
 bidden by pul)lic policy." Curtis. J., in Allen v. Simons, 1 Curtis, 122"; Mc- 
 Kewan v. Sanderson. L. R.. 20 Eq , 65; Forsyth v. Clark. 3 Wend.. 637; Bird 
 V. Aiken, 1 Rice's Ch., 73; Clemens v. Davis, 7 Pa. St., 263; Thornton v. 
 Davenport, 1 Scam., 296.
 
 FRAUD. 359 
 
 Fraud as edi(lenc^:d by vohintary conveyance 1 "Upon a full examination of 
 all the cases, the legal priucipal appears to be established, that when a volun- 
 tary conveyance is made and received with an actual intent to defraud the then 
 existing creditors of tlie grantors, it is not a 6o/h< _/?(/<' conveyance which caa 
 protect the grantee against the claims of subsequent creditors." This is the 
 rule as laid down by Walworth, Ch.. in Kings v. Wilcox, 1 1 Paige's Ch.. 589. 
 In Day v. Cooley, 118 Mass., 524, Morton, J., said: "It is well-settled that if 
 a debtor makes a conveyance with the purpose of defrauding either existing 
 or future creditors, it mav be impeached by either class of creditors." Shand 
 V. Hauley, 71 N. Y., ;519f Case v. Phelps, ^9 id., 1G4; Dewey v. Moyer, 72 id., 
 70; Cole v. Tyler, Go id., 78; Curtis v. Fox, 47 id., 300. 
 
 Defense of bona fide pnrchiner without itotice.'\ In order that the defense of a 
 bona fide purchaser, without notice, may be perfect, such purchaser must have 
 paid in full before notice of the vendor's fraud. Florence Sewing Machine Co. 
 v. Ziegler, 58 Ala.; 221. Stone, J., said in this case: " We do not sanction the 
 extreme doctrine that a purchaser, no matter how innocent he may be, acquires 
 no rights against a latent equity until he pays, in full, and receives a convey- 
 ance. We hold that he acquires an equity jj/'o ^a/t^> to the extent he pays be- 
 fore notice." 
 
 Fraud maybe waived, and how?'} Where a part}' has been defrauded in a 
 contract, he may waive the fraud and adopt the contract. He may do .so by 
 positive act, or his conduct mav show that he acquiesces. VernolV. Vernol, 
 63 N. Y.. 45; Atwood v. SmaU, (i CI. vfc Fin., 4Hi; MacBrvde v. Weeks, 23 
 Beav., 533; Doughertv v Douahertv. 3 Halst.'s Ch., 627; .Moffatt v. Winslow, 
 7 Paige's Ch., 12'4; Cfawiey v.^Timberlake, 2 Ired.'s Eq., 460. 
 
 Voluntary CO II ceya nee in fraud of creditors.'] Where a conveyance of prop- 
 erty is made in trust for the use of the party making the transfer, it is void as 
 against creditors. Where the transfer is of all the property belonging to the 
 debtor, the grant is conclusive evidence of fraud as to indebtedness then exi.st- 
 ing. A grantee in a voluntary conveyance does not occupy the position of a 
 bona fide purchaser for value, that he is innocent of fraudulent intent, will not 
 protect his title. Young -v. Hermans, 66 X. Y., 3^2; see cases cited. 
 
 Equity will reliere against a judgment on the ground of fraud] A gross exag- 
 eration of value, knowingly and willfully made in the absence of the' adverse 
 party, would be sufficient evidence of fraud to invalidate the assessment of 
 damages. Jordan v. Volkening. 72 X. Y., 30ii; Hunt v. Hunt. 72 id., 217: St ,1e 
 of Michigan v Ph(enix Bank, 33 id., 9. Kent, Ch . said in Foster v. Wood, 6 
 John.'s Ch., 87, "that chancerv would not relieve ayainst a judgment at law 
 on the ground of its being contrary to equity, imless the defendant in the judg- 
 ment was ignorant of the fact in question pending the suit, or it wo\ild have 
 been received as a defense, or unless he was prevented from availing himself of 
 the defense by fraud or accident unmixed with negligence or f;,ult on his part.' 
 
 Fraud of a paity irho assumes to act for a third per--on.] Equity will deprive 
 a party of the benefit he may have derived from his own fraud, iuiposiiion or 
 undue influence, by jireventing acts intended to be done for the lienetit of a 
 third person Story's Eq. Jur., ^ 25'''; Shadda v. Sawyer, 4 McLean, 181; 
 Bellamy V Sabine. 2 Phil.. 425; Hunter v. Griffin, 19 111., 251; Johnson v. 
 Coun, 22 Wis., 329. 
 
 "In cases rf fraud, equiy will sometimes imply a trust, and treat the perpetrator 
 of the fraud as a trustee t.v maUficio for the purpo.se of administering a remedy 
 against the fraud, and in such a case the fraud gives the jurisdiction" Earl. J., 
 in Wheeler v. Keynolds, 66 N. Y., 227: see. also. Anthony v. Leltwick, 3 l{and., 
 238; Jackson v. Gray. 9 Geo., 77; Ambuchou v. Bender. 44 .Mo., -Mu; Menden- 
 hall v Treadwav, 44 Ind., 131; Aldridge v. Dana, 7 Blackf , 249; Dugan v. 
 Vattier, 3 id., 245.
 
 ■Mn KKV ox ji'i;iU''U' i'i;i:i-oi:mance of contuacts. 
 
 CHAPTER XV. 
 
 OF MISTAKI5. 
 
 ^ 7*JI. There being" two parties to every contract, it fol- 
 lows that mistake may be : 1st, the mistake of the defendant 
 ak)ne ; or 2ndly, the common mistake of both plaintiff and 
 defendant ; or 8rdly. the mistake of the plaintiff alone. 
 Tlie first and second species will reqnire discussion, as 
 grounds of defense to an action for specific performance ; 
 the second and third will both raise the question how far • 
 the iilaintiff may enfor«e performance with a correction of 
 the error. It will be necessary to consider mistake not only 
 as a defense to a specific performance, but, also, to some 
 extent as giving a phiintiff a right to a rescission or rectifica- 
 tion of the contract ' 
 
 1 Misttike IS ihiix defined hj/ Mr. Kerr} "Some unintentional act, omission, 
 or (>rror, arisiui; from unconsciousness, ignorance, forgetfullness, imposition or 
 mis])laccd confidence." Kerr on Fraud and Mis., 396. Equity relieves against 
 a mistake, as well as against fraud, In a deed or contract In writing; and parol 
 evidence is admissil)le to prove tlie mistake, though It Is denied in the answer; 
 and this, either Avhere the plamtilfs seeks relief aflhmatively, on the ground of 
 the mistake, or where the defendant sets it up as a defense to rehut an equity. 
 And, it seems, that a party may show a mistake in an agreement of which he 
 seeks the specitic performance. Gillis])ie v. Moon. 2 John's Ch., i5«o; see, 
 also, llutton v. Edgerton, (5 S. C , 4^"); Hayne's Outlines of P^q., 182; Mason 
 V. Armitage. 13 Yes., 20; .Jeremy's Eq. Jur., book 3. 9t. 2, p. 3r)8. "The 
 English courts have repeatedly expres.scd a strong inclination not to decide in 
 favor of plaintitT's .'seeking; not to .set aside the agreement, but to enforce it, 
 when it is reformed by parol evidence. They aflirm that the difference of 
 right and condition as" to the plaintiff and defendant, relating to evidence 
 offered for tlie jjurjiose of olitaining a decree or resisting It, exists in the code 
 of every civilized nation. The ground of the distinction is this: when a party 
 has entered into a written agreement, and seeks, as plaintiff", a specitic perform- 
 ance of it, he must rely on the agreement as it stands. He can neither add to, 
 vary, or exi)luin any of its terms by parol proof. If he cannot enforce the 
 true contract, he still retains all he was ever in po.s.session of. lie may suffer 
 di.sappointment, which, as the consequence of his want of caution and explicit- 
 ness, he must bear. But not so with the defendant. He might encounter not 
 di.sappointment Dniy. Imt sustain ruinous loss, if compelled .specifically to exe- 
 cute an agreement different from that which he contemplated." Lumpkin, J., 
 in Rogers v. Atkin.son, 1 Kelly, 12; .see. also, Peterson v. Grover, 10 Me., 363; 
 Bellows v. Stone. U N. H.. 17o. Lord Eidon .said in Marquis of Townshend v. 
 Stangroom, 6 Yes , 32s : " It cannot be said that Ixcause the legal import of a 
 ■written agreement cannot be varied by parol evidence intended to give it an- 
 other sense, therefore, in equity, when once the Courtis in possession of the 
 legal sense, there is nothing more for it to iiKpiire into. All the doctrine of the
 
 OF MISTAKE. 361 
 
 § 722. Mistake may be of sncli a character as, in the view 
 of a jjiirely common law court, to avoid tlie contract on the 
 ground of want of consent or of total failure of considera- 
 tion, (r/) But equity does not confine the defense of mistake 
 to these cases. The principle upon which it proceeds is 
 this : — that there must he a contract legally binding, but 
 that this is not enougli — ^that to entitle the plaintilf to more 
 than his common law remedy, the contract n)us-t be more 
 than merely legal. It must not be hard or unconscionable : 
 it must be free from fraud, from surpi'ise. and from mistake : 
 for where there is mistake, there is not that consent v/hich 
 is essential to a contract in equity : non mdentur qui errant 
 consent i re. {hy 
 
 § 723. In some cases, mistake furnishes an absolute bar 
 to specific performance : in other cases it affords no such 
 gi-ound, if the plaintiff be willing to nuike a reasonable com- 
 pensation to the dt-feudant for the mistake made : whether 
 a given case falls within one or other of these categories de- 
 pends on all its circumstances. (c) 
 
 § 724. Again, the Statute of Frauds has not affected the 
 situation of a defendant against whom specific performance 
 is sought, (fZ) and it, therefore, leaves it open to him to pro- 
 duce any evidence for his purpose, which is not to establish 
 a contract, but to rebut an equity which the i^laintift' insists 
 has arisen out of a contract. 
 
 (a) Raffl-s V. n-ichelhaus, 2 H. & C , 9<6; v. Winter Cr. & Ph , 57, 62; McKeiizie v. 
 KenneMv v. Panama, etc., .Mall Co., L. U. 2 Uesketh, 7 Ch. D.. 67.5 
 
 Q B., 580. (rf) Per Grant, M. IC, In Clarke v Grant, 
 
 (b) DU Lib. 50. tit 17, t. 116. U Ves., 519 
 
 (c) Loudon and Birmingham Railway Co. 
 
 courts as to cases of uuconscioua1)le agreements, hard agreements, agreements 
 entered into by mistake or .surprise, wliicli the court will not execute, must be 
 struck out. if it is true tliat because parol evidence .should not be admitted at 
 law. therefore it shall not he admitted in ecjuity upon the question whether, ad- 
 mitting the agreeuient 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 evi- 
 dence cannot be introduced." Lord Kedesdale in Cliuan v. Cooke. 1 Sch. & 
 Lef., ;^0, says: "No person shall be charged with the execution of an agree- 
 ment who has not, either by himself or his agent, signed a written agreement; 
 but the statute does not say that if a written agreement is signed, the .same ex- 
 ception shall not hold to it that did before the statute.'" 
 
 ' It is a matter, of course, for courts of equity to grant relief on the ground 
 of mistake. Chamberlain v. Thompson, 10 Conn., 2-l;3; Elmore v. Austin, 2 
 Root, 41)9. But in Massachusetts the court has no jurisdiction in equity, in 
 cases found" d only in mistake. Gould v. Gould, 5 Mete, 'i'A. And in >laine 
 this head of jurisdiction has been expressly conferred ou the court. Robinson 
 V. Sampson, S6 Me., u^H.
 
 3G2 FRY ox SPECIFIC PEKFORMAKCE OF CONTRACTS. 
 
 ^ 7*^.5. The cases of mistake have, it is true, seemed to 
 present rather iDeculiar difiiculties to the admission of parol 
 evidence, because it has been argued that to do so is to over- 
 rule the Statute of Frauds and to contradict the writing by 
 parol. Its admission is, liowever, the settled doctrine of 
 tlie 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.' The question of its ad- 
 mission by way of defense was much debated in the case of 
 the Marquis Townshend v. StangToom,(e) where Lord Eldon 
 said, "It cannot be said, that because the legal import of a 
 written agreement cannot be varied by parol evidence, in- 
 tended 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 
 perhaps more examinable at law : but all the doctrine of the 
 court as to cases of unconscionable agreements, hard agree- 
 
 («) 6 Ves., 3-28. 
 
 ' It is a well established rule iu this countiy that parol evidence is always ad- 
 missible, to vary or explain written agreements founded in mistake: and this 
 notwithstanding it is excluded by the general laws of evidence; it is an excep- 
 tion to the prevailing rule. Peterson v. Grover, 30 Me.. ;5(i3; Blanchard v. 
 Moore, 4 .J. J. MarshT, 471; Huston v. Stable, id., loO: Anderson v. Bacon, 1 
 A. K. ^lansh., 48; Perry v. Pearson, 1 Humph., 481 : Chamness v. Crutchfield, 
 2 Ired. Ch., 148; Harrison v. Ploward, 1 id.. 4u7; Van Ness v. City of Wash- 
 ington, 4 Pet., 3:32; Gibson v. Watts, 1 IMcC. Ch., 490; Goodell v. Field, 15 
 Verm., 448. Though there are cases of a different purport. Harris v. Dinkius, 
 4 Dessau , 60; Wesley v. Thomas, (5 Har & ,J., 34; Watkins v. Stockett, 6 id., 
 435; Sutherland v. Crane, Walk. Ch., 533. But parol testimony of what took 
 place immediately before the execution of a written instrument, is inadmissible 
 for the purpose of proving mistake in drawing the instrument, but not even in 
 a clear case of departure from instructions in drawing the instrument, against 
 a bona fide purchaser for a valuable consideration, claiming under the instrument 
 and without notice of the mistake. Scott v. Burton, 2 Ash., 313. Parol evi- 
 dence is inadmissible to show a mistake in law as a ground for reforming a 
 written instrument founded on such mistake. Wheaton v. Wheaton, 9 Conn., 
 00. Therefore, where it was stated in a l)ill in chancery, brought by A. against 
 B., liis father, tiial it was agreed between the parties tliat A. should purchase 
 of B. a farm of the value of .$4,000, for which A. should give B. two promissory 
 notes, one for !{;3,()0(l, payable on demand, with six per cent interest, the other 
 for the .same amount, with five per cent interest, payable at the decea.se of B., 
 and then to be delivered up unpaid to A. as his portion of B.'s estate: and the 
 parties thereupon app'ied to a justice of the peace to draw the writing neces- 
 sary to carry such agreement into etfect, 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 \ ears, and 
 omitted the stipulation that it should be delivered up at the death of B. unpaid, 
 which note was signed by A., he being ignorant of the operation of law thereon; 
 that B. had brought an action on such note, and was endeavoring to enforce the 
 coliection 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 2. That parol evidence was inadmissible to prove the agreement set 
 forth, aud consequently that the bill must be dismissed. Id.
 
 MISTAKE. 363 
 
 meiits, agreements entered into by mistake 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, whetlier, admitting the agreement to be 
 such as at law it is said to be, the party shall liave a specific 
 execution, or be left to that court, in which, it is admitted, 
 parol evidence cannot be introduced "(/") ''No person," 
 said Lord Redesdale, "shall be charged with the execution 
 of an agreement, who has not, either by himself or his 
 agent, signed a written agreement ; but the statute does not 
 say that if a written agreement is signed, the same excej)tion 
 shall not hold to it that did before the statute. "(.7) 
 
 § 726. It follows, from what has been stated, that where 
 the defendant has been led into any mistake or error, the 
 plaintiff cannot enforce the contract with the mistake. 
 Therefore, where, in a sale by auction, the plaintiff had in- 
 duced the defendant, who was the vendor, to think that he 
 should not bid, and so put him off his guard, and the estate 
 was, by a misa|3prehension on the part of the person em- 
 ploj^ed 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. (7^) 
 In another case, the estate was sold in lots : the particular 
 stated that the timber on lots four and five was to be taken 
 at a valuation : in addition to this, one of the conditions of 
 
 (/) B Ves., 333. Accordingly Mauser v. Ui) Mason v. Arniit.ag'e,13 Ves.,25; Pvm v. 
 Back, 6 Ha , 443. • Blackburn, 3 id , 34; Day v. Wells. 30 Beav., 
 
 (g) lu Cliuan v. Cooke, 1 Sch. & Lef , 39. 2-2U. 
 
 ' The utmost good faith i.s required by equity iu these cases; and therefore in 
 sales of property, for instance, the seller is bound to act strictly in fairness, and 
 if he mislead the purchaser by a false or niistakeu statement as to any one essen- 
 tial circumstance, the sale is voidalile. Dosiiret v. Emerson. '6 Story. IDO. Even 
 a mistake of the legal etfect of an instrument will be relieved against when it 
 can be shown to have been brought about by the misre]>resentations or false 
 assurance's of the plaintiff, i'.roadwell v. Broadwell, I Gilm., "iStO; see, also. 
 Drew V. Clarke, Cooke, 874; Callendar v. Colegrove. 17 Conn., 1, is a forcible 
 authority on this point, where a ]>laintij[f' sought, relief on these grounds. On a 
 bill charging a combination between the defendant and otliers to defraud the 
 plaintiff, in Uie sale of a mercantile concern, a committee was appomted, which, 
 without finding any fraudulent intent, stated in their report a train of circum- 
 stances brought ai)out l)y the management of tlie delendant, by wliieh the 
 plaintiff wasdeceiveci and injured; and the court adjudged thereon that the con- 
 tract of sale was fraudulent and void; but on a motion in error made by the de- 
 fendant, it was held, as it api)eared from the finding of the committee, the plaintitT 
 entered into the contract from a mistake as to the real nature of the concern, 
 in consequence of which the substantial object of the contract was defeated, 
 this W'as sufficient ground for settinix it aside.
 
 364 FUV ON SPECIFIC PERFOKMAXCE OF C(JXTRACTS. 
 
 sale specified tliat the purchaser was to take the timber 
 (speaking generally without reference to any particular lot) 
 at a valuation : Grant, M. R., said, that the express decla- 
 ration as to lots four and five was so likely to mislead a pur- 
 chaser as to the meaning of the conditions, that supposing 
 that the right construction of the condition was that it ap- 
 l)lied to all the lots, it would be inequita])Ie to enforce 
 specific performance of the contract. (/)' Again, where (,/) 
 on a sale by auction, the plan annexed to the particulars 
 of the property (a house and giounds) showed a shrulibery 
 on the western boundary, and the defendant, going to in- 
 spect the property before the sale, with the 2)lan in his 
 hand, found on tlie western side a belt of shrubs with an 
 iron fence outside it inclosing three ornamental trees, and 
 he then bought the property, believing that the fence was 
 the boundary, but the real boundary was a line of shrubs 
 within the shrubbery and did not inclose the trees, the court 
 of appeal held that the mistake was increased by at least 
 craasa ner/lir/entia on the part of the vendors, and ac- 
 cordingly dismissed, with costs, their bill for specific per- 
 formance. 
 
 § 797. In the preceding cases, it will be observed that the 
 plaintiff contributed to the mistake of the defendant : and 
 there is no doubt that the circumstance that the i)laintiff 
 has by his words or his silence, or in any way, contributed 
 to the error of the defendant, even though he may have 
 done so unintentionally, greatly strengthens the defendant's 
 case.(/i) 
 
 § 7"28. Even where the mistake is purely due to the de- 
 fendant himself or his agent, the court wij], in some cases, 
 refuse specific performance: (7) indeed, it will sometimes 
 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 held entitled as 
 plaintiff to the rectification of an error in a deed of his own 
 drawing. (?7^) The cases, too, on intoxication furnish an 
 analogy to this doctrine : for that circumstance is a ground 
 
 (i> Hlgiiliison V. Clowes, 15 Ves . 51G. Sec. cf. ( ahalle.o v. Heutv. L. R 9 Ch ,447; Bray 
 
 too, pcr.ItiBsel, M. K.,ii,Joiii-8 V. Kimmcr, 14 v. ISrijjas, 2ip W K , 'JOi 
 
 Ch i» r.'.fi; Moxey y. Hljjwoo.l, 4 l» • <.. V. & i/i S.-e pur ,Ji-s-el, M. R., in Jones v. Rim 
 
 J ,351; and el. l'lieli)s V. W hite, o L K. Ir, nicr, ]4 Cii. D., f,M. 
 
 ^•■, ,. „ , T ,. „ . (w> IJall V. Stoiie, 1 S & S., 210; cf. Coxv. 
 
 (J) Dentiy v. Ilancook, L. R 6 Cli., 1 Sniilh, 19 L. T. (N. t> ). 517 
 
 (k) Baskcomb V. Beckwitli, L R 8Eq., 10);
 
 MISTAKE. ' 365 
 
 of defense, though it may have been in nowise brought 
 about by the plaintiff. (;/)' 
 
 § 729. On this principle, where a person, who was em- 
 ployed to bid for one of two distinct estates offered for sale 
 at the same time and place, came into the auction-room, and 
 after hearing the description of a lot which was perfectly 
 different from that for which he was engaged to bid, kept 
 bidding in a hasty and inconsiderate manner for, and ulti- 
 mately purchased, this lot, which, l)y his own gross mistake, 
 he thought to be the lot for which he was to bid, the court 
 refused specifically to carry out the sale (o) And where a 
 vendor by mistake offered to sell an estate for £1,100, Avhich 
 figure he had by a wiong addition reached instead of £2,100, 
 the court refused the purchaser specific performance and 
 dismissed his bill, without costs. (p) 
 
 § 730. So where a vendor had revoked the authority of 
 the auctioneer as to part of the property, and the auctioneer 
 inadvertently sold the whole, the court refused specific per- 
 formance, 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 previous description, which had been pre- 
 pared by another solicitor on the report of a surveyor, and 
 the descri^jtion turned out to be erroneous as to quantity, 
 
 (n) See supra, § 384. mistake will not be a ground for opening bld- 
 
 (0) Malins v. Freeman, 2 Ke., 25. tiings, which can now only be opened for 
 
 (/)) Webster V. Cecil, 30 Beav , 62. As to fraud. Griffiths v. Jones, L. K. 15 Eq , 279. 
 
 the costs in this case, see per James, L. J , In (q) Manser v. Back, 6 Ha , Wi. 
 
 Tamplin v. james, 15 Ch. D.. 221. Such a 
 
 1 The "Western R. R. Corp. v. Babcock, 6 Mete, 346, is an analogous case. 
 It was there held that a defendant may sliow, that without gross laches of liis 
 own, he was led into a mistake by some uncertainty or obscurity of the descrip- 
 tive part of the agreement, so that it applied toad liferent subject from that 
 which he understood at the time, although he was not misled by any misrej^re- 
 sentation of the other party; or he may show that the bargain will operate in a 
 different way from that which was contemplated by the parties when they exe- 
 cuted it. But Mortimer v. Pritchard, 1 Bailey's Ch.. 505, expresses, seemingly, 
 a different view. It is said in that case that a mistake, suL;h as would entitle a 
 party to relief, must have been made under the intluence of false appearances, 
 and not merely from the sugiiestions of the party's own mind. The grounds 
 of the decisions in Post v. Leet, 8 Paige, 'S'Sl, made by Walworth, Ch., do not 
 atppear unapplicable to the point in question. There (he terms of a sale, by a 
 master, were that the lands wore sold free from iiiciunbrances, and that all 
 taxes and assessments thereon should lie paid out of the purchase money. Held, 
 that the purchaser could not be compelled to take the laud subject to an assess- 
 ment, for a street, laid out and used by the public prior to the aile, though the 
 assessment had not been formally confirmed until aflericards, it appearing that the 
 purchaser supposed such assessment included in the terms of the sale, and a resale 
 was ordered.
 
 366 FRY ox SPECIFIC PEUFORMANCE OF CONTRACTS. 
 
 the court would not enforce the sale on tlie vendor, unless the 
 case were one for compensation, and the purchaser would 
 submit to it.(;) And where a vendor sold a manor, being 
 at the time ignorant of its exact extent, and both jiarties at 
 the time of the contract believed that what it included was 
 something 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 per- 
 formance was dismissed. (5) 
 
 § 731. Where a 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 possession 
 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 x^roperty of the tenant for 
 life ; and he, imagining that he had, with the concurrence 
 of his wife, an absolute power of disposition over the set- 
 tled estate, entered into a contract for sale : Plumer, Y. C, 
 refused to carry it into effect by an exercise of the proviso 
 in the settlement, considering that such a performance of 
 the contract would be attended with great difficulty, and 
 that the defendant had not contracted for that purj)ose or 
 with that intention. (Z^) 
 
 § Tim. In a case where a corporation was contracting by 
 an agent, and he swore. to his sense and understanding of 
 the contract he entered into being to a certain effect which 
 the contract did not justifj'^, and a bill was tiled against the 
 corporation, one ground upou which Knight Bruce, L. J., 
 dismissed an appeal against the corporation was this mis- 
 take of the agent. (2^.) 
 
 It would open a wide field of defense if every misappre- 
 hension of the legal effect of a contract furnished a valid 
 one. But i^erhaps the court considers with more favor as a 
 defense the allegation of mistake in an agent than in a prin- 
 cipal, (r) 
 
 § 7JJa. Where there has been no misrepresentation, and 
 
 (r) Lesliev. Tompson,9Ha., 268. See, also, Richinls v. Xoith London Railway Co., 20 
 
 per LordCottenhamin Alvanlev v. Kinnaird,' W. R., 194. 
 
 2 Mac & G. 7; Helahain v. Langlev, 1 Y. & (/, Howell v. George, 1 Mad., 1 Of. Hood 
 
 C. C. C, 175; Neap v. Abbott, C. P. Coop. v. Oglander, 34 Beav., 518, 519. 
 
 Rep. (1837, 1^38), 333. And cl. McKenzie v. («) Wycombe Railway Co. v. Donnington 
 
 Hesketh, 7 Cli. L)., 675. Hospital. L R. 1 Uh , ecS 
 
 (s) Baxendale v. t?eale, 19 Beav, 601. See, (v) Per Turner, L. .)., in Morrison v. Bar- 
 
 tOo,Earl of Durham v. Legard, 34 Beav. ,611; row, 1 De G. F. & J., 638.
 
 MISTAKE. 367 
 
 there is no ambiguity in the terms of the contract, the de- 
 fendant cannot be alloAved to evade the performance of it 
 "by the simple statement that he has made a mistake. (-w) 
 In a case beford Lord Romilly, M. R., where the defendant 
 alleged that he misunderstood the ijarticulars of sale, his 
 Lordship observed that "if there appear on the particulars 
 no ground for the mistake, if no man with liis senses about 
 him could have misapprehended the character of the par- 
 cels, then I do not think it is sufficient for the purchaser to 
 swear that he made a mistake or that he did not under- 
 stand wliat he was about. "(^) And so where, according to 
 the true construction, the contract made the intended lease 
 determinable at the option of eitlier paity, but the lessee 
 insisted that he signed it in the belief that it gave the 
 option to him only, the court overruled the defense based 
 on the alleged mistake. (?/) 
 
 § 73-J:. So, again, where the proi^erty sold (an inn and 
 shoj)) was described in the particulars as consisting of Xos. 
 454 and 455 on the tithe map, containing by admeasure- 
 ment twenty perches more or less, and in the occupation of 
 Mrs. K, and Mr. S., — all which statements were correct — 
 and correct j^lans of the property were exhibited at the 
 auction ; and the purchaser deposed that he did not see the 
 plans, but had known the property from his boyhood, and 
 bought it in the belief that it included two idiots of garden 
 ground which had for many years been occupied with the 
 gardens behind the inn and shop respectively ; it was held 
 by Baggallay, L. J. (sitting for Malins, Y. C), and by the 
 court of appeal that ihe purchaser was not entitled to be 
 released from his bargain. (2') "If," said James, L. J., "a 
 man will not take reasonable care to ascertain what he is 
 buying, he must take the consequences. ^' * '■ It is not 
 enough for a purchaser to swear ' I thought the farm sold 
 contained twelve fields which I knew, and I find it does not 
 include tliem all,' or, 'I thought it contained 100 acres and 
 it only contains 80.' It would open the door to fraud if 
 such a defense was to be allowed. Perhaps some of the 
 cases on this subject go too far, but for the most part the 
 
 (ic) Per Baggallay, L. J., In Tamplin v. proved by Bacrgallay, L J., in Tamplin v. 
 
 James, 15 Cli. D, 217; Morley v. Claverlng, James, 15 Ch 1>.,'2|8. 
 
 29 Beav., 84. (j/' Powell v. smith, I.. R 14 Eq., S5. 
 
 («) Swaisland v. Dearsley, 29 Beav., 430. (z) Taaipliu v. James, 15 Cli. 1)., 2i5. 
 Tliis statement of tiie law was cited and ap-
 
 368 I'itY ox SPECIFIC PERFORMANCE OF CONTRACTS. 
 
 cases where a defendant has escaped on the ground of a 
 mistake not contributed to by the plaintiff, have been cases 
 wliere a hardsliip amounting to injustice would have been 
 inflicted uj^on liim by holding him to his bargain, and it 
 was unreasonable to hold him to it."(a) 
 
 § 75J»>. A mistake ^Durely attributable to one partj^ may 
 furnish a defense to specific performance. It does not 
 thence follow that it enables the party so falling into error 
 unconditionally to rescind for such error. So, where the 
 defendants sold to the plaintiffs 100 chests of tea ex Star of 
 the East, and the sale was made by a sample j)roduced 
 by the defendants as from that ship when, in fact, it had 
 nothing to do with that cargo, and the defendants gave 
 notice that they Avould, on that account, treat tlie contract 
 as void, the Court of Queen's Bench detennined that there 
 was no ecpiity in the defendants simply to rescind the con- 
 tract. (/>)' 
 
 Jj 7J{0. AVe may now^ proceed to consider the effect of a 
 parol variation set up by the defendant as a ground for re- 
 fusing the specific performance of a written contract alleged 
 by the plaintiff. It de^Dends on the particular circumstances 
 of each case wiiether the variation "is to defeat the plain- 
 tiff's title to have a specific performance, or whether the 
 court will perform the contract, taking care that the subject 
 matter of this parol agreement or understanding is also 
 carried into effect, so that all parties may have the benefit 
 of what they contracted for.(c) 
 
 § 737. (1) Where the parol variation set up by the defend- 
 
 (fi) 15 Ch D,2-21. Birmingham Railway Co. v. Winter, Or. & 
 
 (b) Scott V. Littit'iiale. S El. & Bl., 815. Ph., 62; Smith v. Wheatcroft, 9 Ch. D., 223, 
 
 (c) Per Liord Cottenhani in London and Cf. Morgan v. Griffith, L. R. 6 Ex., 73. 
 
 ^ Party defrauded may rexcirul.'] The party who would rescind a fraudulent 
 contract, must return whatever he has received upon it, in order to recover 
 what he has paid upon it; but if the other party has intangled himself hy his 
 own fraud, .so that he cannot he restored to his original condition, he must 
 bare the loss. Masson v. Bovert, 1 Den.. 09; Arnold v. Nichols, 6-4 N. Y., 117; 
 Eastman v. Plumer, 46 N. H,, 464; Hammond v. Pennock, 6 N. Y., 145. 
 Where a party has been defrauded in the purchase or sale of real property, he 
 may rescind the contract, so as to restore the parties to the same situation they 
 were in when the contract was made; or he may afiirm the contract, so far as 
 it lias been executed, and claim a compensation for the fraud. Bradley v. 
 Bosley, 1 Barb. Ch., 125. Some cases hold that the rescission must be made 
 after the party has had a reasonable opportunity to discover the fraud, and that 
 vigilance and care must be exercised. Ross v. Filterton, 6 Ohio. 287; Lepton 
 V. Firltlock, 13 Alb. Law J., 27. But these cases must be considered in con- 
 nection with the facts then presented, and do not establish any general rule 
 applicable to all cases. Miller, J., in Baker v. Lener, 67 N. Y., 304.
 
 MISTAKE. 369 
 
 ant shows that after the parties to the contract mutually 
 agreed with one another, an error occurred in the reduction 
 of the contract into writing, and it appears that the written 
 contract varied according to the defendant' s contention rep- 
 resents the true contract between the parties, the court will, 
 it seems, enforce specific jDerformance of the contract so 
 varied.' 
 
 § 738. Thus, where a bill was brought for the specific 
 performance of a contract to grant a lease at a rent of £9 
 per annum, and the defendant insisted that it ought to have 
 been a term of the contract that the plaintiff should pay all 
 taxes : Lord Hardwicke granted specific performance, and 
 directed that the terms of the verbal contract should be 
 carried into effect by the covenants to be inserted in the 
 lease. (<i) Again, where a bill j)rayed the execution of a 
 contract for the sale of an estate, and the defendant re- 
 sisted, and proved parol declarations 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 plaintifl: proposed that his bill should be dismissed, but 
 Lord Eldon pursued the court which the defendant insisted 
 on, which was specifically performing the contract as con- 
 tended for by the defendant, thus saving the ex^oense of a 
 cross-bill, (e) 
 
 § 739. (2) But where the mistake or parol variation set 
 up by the defendant does not show a mere mistake in the 
 reduction of the contract into writing, but that one party 
 understood one thing and the other another, there is no 
 such contract as the court will enforce, and the plaintifE' s 
 action is consequently dismissed. 
 
 (d) Joynes v. Statham, 3 Atk., 388. (e) Fife v. Clayton, 13 Ves., 546. See, also, 
 
 Gwynn v. Lethbridge, 14 id. , 585. 
 
 1 Bradford v. Union Bank of Tennessee, 13 How. (U. S.), 57 is an ample authority, 
 upon this branch of equity. It is laid down in that case, that where one party to 
 a contract in writing, brings a bill in equity for a specific performance thereof, 
 and the defendant in his answer, submitting to a specific performance of the 
 real agreement, alleges that the written contract was entered into by mistake, and 
 under a misapprehension of the facts, and estabhshes this by evidence, he is en- 
 titled to a specific performance of the agreement as proved, even against the 
 claim of the plaintifl' to have his biU 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 mis- 
 took 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; Wells v. Kruger, 5 Paige, 164. 
 24
 
 370 FRY ON SPECIFIC PEKFORMAXCE OF CONTRACTS. 
 
 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 
 timber, the bill was dismissed. (/■) 
 
 § 740. The same result follows where, from any other 
 circumstance, the enforcement of the parol variation set up 
 by the defendant would be unfair on either party. Accord- 
 ingly, where the plaintiff set up a contract which the de- 
 fendant successfully resisted by parol evidence of a subse- 
 quent contract, and the plaintiff insisted on a x^erfonnance 
 of the contract so set up ; Strange, M. R., refused to grant 
 it, on the grounds that it would be a surprise on the de- 
 fendant to insist, under the prayer for general relief, on the 
 performance of a contract which was not put in issue by 
 the record, and that the plaintiff had really caused the liti- 
 gation by his refusal to adopt the real contract. ((7) Again, 
 where the defendant 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 dismissed, but without costs. (^)' 
 
 So in Lindsay v. Lynch, (/) where the plaintiff had refused 
 throughout to adopt the contract which the defendant ad- 
 
 (/) Clowes V. Higginson, 1 V. & B., 524. the statement of this case by Grant, M. R., in 
 
 See the judgment in this case observed on by Price v. Dyer, 17 Ves. , 364. 
 
 Lord St. Leonards, Vend., 1S3, and by Stuart, (h) Garrard v. Grlnllng, 2 Sw., 244. 
 
 V. C, in Dear v. Verity, 17 \V. R., 568. See, (t) 2 Sch. & Lef, 1, 10-11. See Jefferv v. 
 
 too, Butterworth v. Walker, 13 W. R.. 168. Stephens, 6 Jur. (N. S.), 947; 8 W. R., 427; 
 
 {g) Legal v. Miller, 2 Ves. Sen., 299. See Smith v. VVheatcrolt, 9 Ch. D., 223. 
 
 > 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 put 
 up and sold bj- 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 complaint was not entitled to a specific per- 
 formance of the contract. Coles v. Bowne, 10 Paige, 536. See James v. The 
 State Bank, 17 Ala., 69; Story's Eq. Jur., ^ 134; Lyman v. United States In- 
 surance Company, 17 John., iiS'6, 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 American vessel. 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. 371 
 
 mitted, the bill was dismissed, but without prejudice to 
 another bill. 
 
 § 741. (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 puts the plaintiff to his election either to 
 have his action dismissed, or to have the contract executed 
 with the parol variation. (y) 
 
 § 742. Thus, in Higginson v. Clowes, (^) where the con- 
 ditions of sale were likely to have misled the defendant, and 
 the defendant contended for a different construction from 
 that of the plaintiff, Grant, M. K., offered the plaintiff 
 either to have his bill dismissed, or to have the contract 
 executed on the defendant's construction. The counsel for 
 the defendant contended that it was not competent to the 
 plaintiff to' have his bill dismissed, but that the defendant, 
 without filing a cross-bill, might have a specific perform- 
 ance of the contract. Grant, M. R., 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 defendant's construc- 
 tion was right, but only that he had contracted under a 
 mistake created by the plaintiff, the bill was merely dis- 
 missed. In a subsequent suit on the same contract, where 
 the parties were inverted, Plumer, V. C, holding that there 
 had been a mistake on both sides, refused specific perform- 
 ance on the construction of the defendant in the first suit. 
 
 § 743. In Ramsbottom v. Gosden,(w) where the written 
 contract confined a reference of expenses to those of con- 
 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. Grant, M. R., 
 put the plaintiff to his election, either to have the contract 
 performed in the way contained for by the defendant, or to 
 have his bill dismissed. And in a subsequent case, where 
 the defendant proved a parol variation, the same judge 
 
 U) See, in addition to the cases cited infra, cific performance enforced on the defend- 
 
 Browne v. Marquis of Sligo, 10 Ir. Ch. R., 1. ant's contention, as the error appears to have 
 
 (k) 15 Ves., 516. been merely in the reduction of the contract 
 
 {I) 1 V. & B., 524. into writing? 
 (n») 1 v. & B , 165. Query, why was not spe-
 
 372 FRY ON SPECIFIC PERFORMANCE OF CONTRACTS. 
 
 njinin left tlie plaintiff either to have a specific performance 
 with this variation, or to have his bill dismissed. (?i) 
 
 § 744. In a case where parol evidence was admitted on 
 behalf of the defendants to show that a contract by several 
 persons to enter into bonds in £1,500 ought to have been 
 for one Joint bond in that amount by all ; Plumer, V. C, 
 left it to the plaintiff to have his bill dismissed, or to take a 
 decree for the joint bond, or to take an issue on which the 
 witnesses could be examined, (o) 
 
 § 745. In Clarke v. Moore, (j9) where a landlord sought 
 specific iDerformance of a contract for a lease, and the de- 
 fendant set up a parol contract to abate the rent, to which 
 the plaintiff at the bar submitted, the lease was directed 
 with the abatement and each party was left to bear his own 
 costs : and in another case, where it appeared that, in ad- 
 dition to the written contract, there had been an understand- 
 ing 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, {q) 
 
 § 746. Where there is a stipulation which one of the 
 contracting parties may reasonably have understood to be 
 implied in the contract, and did so understand — as, for 
 instance, the insertion of a usual clause in a lease — specific 
 performance wiU not be enforced against such party except 
 with such condition included, (r) And where a plaintiff 
 sought relief 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 in- 
 creasing 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 on the plaintiff' s submitting 
 to a conscientious modification of it, to meet the circum- 
 stances of the case. (5)' In this instance acquiescence, and 
 not mistake, was the ground of the variation. 
 
 (n) Clarke v. Grant, 14 Ves., 519. As to 26 Beav.,253; Donald v. Scott, 10 Ir. Ch. R.^ 
 
 this case see Dear v. Verity, 17 W. R., 569. 4%. Distinguish Snelling v. Thomas, L. R. 
 
 (0) Lord Gordon v. Marquis of Hertford, 2 17 Eq , 303. 
 
 Mad., 106. (r) Ricketts v. Bell, 1 De G. & Sm., 335. 
 
 (p) 1 Jon. & D., 723. Consider Chappell v. Gregory, 34 Beav., 250. 
 
 (q) London and Birmingham Railway Co. (s) Davis v. Hone, 2 Sch. «& Lef., 341. 
 V. Winter, Cr. &Ph.,57; cf. Barnard v. Cave, 
 
 1 And a court of equity is competent to correct or reform any material mis- 
 take, in agreements or deeds, occasioned by tlie omission or insertion of material
 
 MISTAKE. 373 
 
 § 747. The parol variation may be alleged by the plaintiff 
 for the purpose of offering the defendant his election ;(^) or 
 it may be set up by the defendant by way of defense. If, in 
 the absence of its being thus alleged, it comes out on the 
 evidence, the court will inquire into it before disposing of 
 the case.('Z^.) The court will do the same 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. («) 
 
 § 748. From the great danger which would otherwise 
 arise, the court will not allow a person to escape from a 
 written contract on slight parol evidence of mistake on his 
 own part. So in one case Lord Hatherley (thenV. C.) said 
 
 (t) Robinson v. Page, SRuss., 114. & Ph., 57; cf. Helsham v. Langley, 1 Y. & C. 
 
 (u) Parken v. Whitby, T. & R., 366; London C. C, 175. 
 and Birmingham Railway Co. v. Winter, Or. (v) Van v. Corpe, 3 My. & K., 269. 
 
 stipulations, wliether it be simply upon parol testimony or more cogent proof. 
 Tilton V. Tilton, 9 N. H., 385. Wemple v. Stuart, 22 Barb., 154, is an im- 
 portant case in illustration. The action was commenced to recover damages 
 for the non-performance of a contract made by the defendants, with Gardinier 
 and Vandenburgh, of whom the plaintiff, Wemple, was the assignee, in which 
 the defendant sold and agreed to deliver to Gardinier and Vandenburgh certain 
 merchantable plank to the amount of 30,000. The defendant 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 defendants, might saw at 
 their mill the ensuing winter, at certain prices. The complaint alleged a neglect 
 and refusal by the defendants to ]ierform the contract. It also alleged an assign- 
 ment by G. and V. to the plaintiffs The defendants, 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 many, and if not, then it was the intention of the defendants to sell, 
 and of G. tlnd V. to purchase the plank they then had sawed at the mill and no 
 more. And the defendants insisted that such contract should be so construed, 
 and should be reformed in accordance with such intention. This allegation 
 was not denied in the repi}' 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 writ- 
 ten contract, in the absence of fraud, can only be reformed where it is shown, 
 by satisfactory proof, that there is a plain mistake in the contract, by the acci- 
 dental omission or insertion of a material stipulation, contrarj' 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, 155, 
 156, 157; 2 John.'s Ch., 595. The answer, in setting up the mistake in the 
 written contract, should have stated that the parties agreed to sell and purchase 
 only the plank which the defendants 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 accidentally 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 defend- 
 ants to a reformation 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 agreem«it 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 rale 
 adopted in the text.
 
 374 FRY ox SPECIFIC PERFORMANCE OF CONTRACTS. 
 
 tliat the oath of the defendant that he had inserted in his 
 letter a term winch he in fact omitted, and the oath of his 
 agent that he had received instructions to the like effect, in 
 letting the house, would not have sufficed ; but the defend- 
 ant 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 sub- 
 sequent offer was contained, the court held that sufficient 
 evidence of mistake on the defendant's part had been given, 
 and allowed the defense. (?c) 
 
 § 740. The common error, or mistake of both parties, as 
 to the subject matter of the contract is, on the j^rincipies 
 already stated, a clear ground for resisting specific perform- 
 ance : so where the plaintiff being entitled to estates during 
 the life of A. entered into a contract with regard to the 
 timber on the estates with the remainderman ; and it subse- 
 quently appeared that A. was at the time dead, though this 
 circumstance was unknown to both parties ; Lord Romilly, 
 M. R., and afterwards the lords justices refused specific 
 performance and dismissed the bill with costs, {x) 
 
 § 750. Further, wiiere both parties to a contract are, at 
 the time of the contract, in mistake or error as to the mat- 
 ters in respect of which they are contracting, this w^ill not 
 only furnish a ground for resisting specific performance, 
 but enable the court to rescind the contract. (2/) 
 
 § 75 1 . Thus, in Calverley v. Williams, {z) Calverley brought 
 his bill against Williams for a conveyance of seven acres of 
 copyhold land, part of an estate sold by auction and pur- 
 chased by the plaintiff as being comprehended in the adver- 
 tisement of the sale, and described as in the possession of 
 Groombridge. The defendant resisted this claim, on the 
 ground that he did not intend to include those seven acres, 
 or know that they were in the possession of Groombridge. 
 Lord Thurlow, in givina: judgment, said, "No doubt, if one 
 party thought he had purchased bona fide, and the other 
 party thought he had not sold, that is a ground to set aside 
 
 (w) Wooci V. Scxrth,2 K. & J., 33. completed contract, give relief against a com- 
 
 ix) Cochrane v. Willis. 34 Beav., 359; T> R. mon mistake in the same wav as it would 
 
 lCh.,58. Cf. perTurner.L. J.,ln Murrellv. against traud. 01. Lcuty v. llillas, 2 Ue G. 
 
 Goodvear, 1 De G. F. & J.. 449. & .1 , 110. 
 
 (y) See Torrance v Bolton, L. R. 14 Eq , (z) 1 Ves Jun., 210; per Lord Ersklne In 
 
 124; 8Ch.,ll?. In Jones v, Clifford (3 Ch. Stapylton v. Scott, 13 Ves., 4i7. See, too» 
 
 D., 792), Hall, V. C., intimated the opinion Davis v. Shepherd, L. R. 1 Ch.,410; Price v. 
 
 that the court would, even in the case of a Ley, 4 Glff., 235, affirmed 11 W. K , 475.
 
 MISTAKE. 375 
 
 the contract, that neither party may be damaged ; because 
 it is impossible to say, one shall be forced to give that price 
 for part only which he intended to give for the whole, or 
 that the other shall be obliged to sell the whole for what he 
 intended to be the price of part only.'" 
 
 § 752. Again, where both vendor and purchaser of an 
 alleged estate in fee in remainder on an estate tail, were 
 ignorant that 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, (a) 
 
 And w^here A. proposed certain terms of assurance to the 
 agent in London of a Scotch insurance office, and by mistake 
 wrote down other terms in his proposal, to which proposal 
 the Scotch office assented, the court at the instance of A. 
 (refusing to reform the contract) rescinded it, and directed 
 the repayment of the premiums paid. (5) 
 
 § 733! In a case brought before the House of Lords on 
 appeal from Ireland, the appellant believing himself to be 
 
 (a) Hitchcock v. Giddlngs, 4 Pri., 135. (b) Fowler v Scottish Equitable Liie Insur- 
 
 ance Society, 28 L. J. Ch., '225; 7 W. R., 5. 
 
 1 So where the consideration of a covenant to pay an annuity, was the con- 
 veyance to the covenantor of a tract of land on the 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 perpetually a 
 prosecution at law, to recover the annuity. Dale v. Roosevelt, 5 John.'s Ch., 
 164: S. C, 2 Cow., 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 7nore or less were inserted in 
 the deed for the express purpose of covenng 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 variant 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 cannot be put in statu 
 quo. Thus, where land was sold by an agent of the owner, who, by mistake, 
 included in the conveyance an adjoining lot, which he «nd the purchaser siip- 
 posed to be the property of his principal, but which was not his, and the prin- 
 cipal executed the deed without detecting the error, and, afterward, 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. Rankin v. Atherton, 3 
 Paio-e, 143. In Keyton v. Brawford, 5 Leigh, 39, by the mistake of both par- 
 ties? the description of boundaries of land, in a deed of conveyance, included 
 land of a conterminous proprietor, and the grantee took possession and occu- 
 pied such land as the grantor had before occupied. It was held that the mis- 
 take in the descriptionln the deed should be corrected, but that the vendee was 
 not entitled to any relief on account of the land so by mistake included in the 
 conveyance. See, also, Long v. Israel, 9 Leigh, 556, and Irick v. Fulton, 8 
 Gratt., 193.
 
 376 FRY ON SPECIFIC PERFORMANCE OF CONTRACTS. 
 
 a stranger to a fishery, agreed to take a lease of it ; the 
 respondents believing themselves to be entitled to the 
 property agreed to grant the lease ; it turned out that 
 the appellant was entitled to the property and not the re- 
 s])ondents, and the house declared that tlie contract was 
 entered into by the parties to it under mistake and in ignor- 
 ance of the actually existing rights and interests of the par- 
 ties in the fishery, and that the contract was not binding in 
 equity upon the appellant and respondents, but ought to be 
 set aside subject to certain terms which the special circum- 
 stances of the case and the principles of good conscience 
 were held to impose, (c) 
 
 § 754. But where neither party to the contract is in error 
 as to the matters in resx)ect of which they are contracting, 
 and there is an actually concluded contract, but there is an 
 error common to both the loarties in the reduction of the 
 contract into writing, there the court interferes for the pur- 
 pose of refonning the contract, and not of rescinding it.(<:Z) 
 For by so doing neither party will be damaged ; whereas, 
 by enforcing it as it stood, one party w^ould be necessarily 
 injured ; and by rescinding it, both would be deprived of 
 the benefit of the contract.' 
 
 (c) Cooper v. Phlbbs, 17 Ir. Ch. R., 73; L. Wichelhaus, 2 H. & C, 906; Earl Beauchamp 
 R 2 H. L., 149; Infra, § 770. See, also, Bing- v. Winn, L. R. 6 H. L., 223. 
 ham V. Bingham, 1 Ves. Sen., 126; Raffles v. (d) Murray v. Parker, 19 Beay., 305. 
 
 ' The interposition of a court of chancery to correct mistakes, 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 con- 
 tain what tlie 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 de- 
 fective execution of the intent of the parties arose. And mistakes of scrive- 
 ners in drawing deeds or agreements, will be corrected, even against bona fide 
 creditors of the grantor. Wj^che v. Greene, 16 Geo., 49; Alexander v. New- 
 ton, 2 Gratt., 266; Parham v. Parham, 6 Hump., 287; Perkins v. Dickinson, 3 
 Gratt , '635; Rogers v. Atkinson, 1 Kelly, 12; Collier v. Lanier. 1 id., 238; 
 Wooden v. Haviland, 18 Conn., 101; Clopton v. Martin, 11 Ala., 187; Webster 
 V. Harris, 16 Ohio, 490; Best v. Stow, 2 Sand.'s 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. Thompsons, 10 Conn., 243; 
 eobb V. Preston, 2 Root, 78; Chapman v. Allen, Kirby, 399. In Ohio this 
 remedy is at law. Carr v. Williams, 10 Ohio, 223. Of course, as equity has 
 no jurisdiction in ca.ses of mistake in Massachusetts, error in the reduction of 
 an agreement to writing is necessarily excluded ; and the court will also refuse 
 80 to amend agreements as incidental to its jurisdiction in regard to disputes 
 beiweeu parties. Leach v. Leach. 18 Pick., 68. Mistakes in instruments will 
 be corrected against sureties as well as others. Butler v. Durham, 3 Ircd.'s 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.son, 572.
 
 MISTAKE. 377 
 
 § 755. Accordingly, in a 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 
 the parties to the contract had mistaken each other in this 
 respect, it must be rescinded, said : "Upon the other hand, 
 if both understood the whole was to be conveyed, it must be 
 conveyed. But again, if neither understood so — if the })uyer 
 did not imagine he was buying, any more than the seller 
 imagined he was selling, this part, then this i:)retence to 
 have the whole conveyed is as contrary to good faith upon 
 his side, as the refusal to sell would be in the other case."(^) 
 
 § 756. The jurisdiction of the court in this respect was 
 clearly asserted by Lord Hardwicke in the case of Henkle v. 
 Royal Exchange Assurance Co.,(/') which was a bill seek- 
 ing, after the loss, so to rectif;^ a iDolicy, on the ground of 
 common mistake, as to turn the loss on the insurer, which 
 but for such variation must have been borne by the insured. 
 "IS'o doubt," said his lordship, "but this court has juris- 
 diction to relieve in respect of a plain mistake in contracts 
 in "v^Titing, as well as against frauds in contracts : so that if 
 reduced into writing contrary to intent of the parties, on 
 proper proof that would be rectified :" but for want of such 
 proper proof the bill was dismissed. 
 
 § 757. In another case, before the same judge, the captain 
 of an East India ship, by articles of agreement, bargained 
 and sold all his china-ware and merchandize brought home 
 in his last voyage to the defendant : the articles of agree- 
 ment were drawn u^j, from minutes made by the parties, by 
 an attorney, who, misunderstanding the transaction, drew 
 up the articles in an erroneous and absurd manner : the 
 captain, who was the party aggrieved by the error, brought 
 his bill for an account of what was due on the contract, and 
 insisted on its rectification : he was allowed to give parol 
 evidence of the error and of the usage of trade, to show the 
 nature of the real transaction and the consequent mistake 
 in the articles, (r/) 
 
 § 758. It follows, from the nature of the jurisdiction, that 
 there can be no rectification where there is not a prior actual 
 contract by which to rectify the written document : so that, 
 
 (e) Ca'verley v. Williams, 1 V( s. Jun., 210. (g) Baker v. Paine, 1 Ves. Sen., 4.';6; 6 Ves., 
 (/; 1 Ves. Sen., 317. 336 n.
 
 378 FRY ON SPECIFIC PERFORMANCE OF CONTRACTS. 
 
 for instance, a policy cannot be rectified {h) by the slip, be- 
 cause the slip constituted no contract, and there was no 
 contract till the policy was signed and the premium 
 paid.(/) 
 
 § 759. It equally follows, that the mistake of one party 
 to a contract can never be a ground for compulsory rectifi- 
 cation. It may be a reason for setting the whole thing 
 aside, but never for imposing on one party the erroneous 
 conception of the other. (/) 
 
 § 760. However, in two cases decided by Lord Romilly, 
 M. R., in each of which the mistake was, according to the 
 defendant, on the side of the plaintiff only, and the deed 
 of conveyance had been executed, his lordship held that, 
 though the plaintiff was not entitled to compel rectification, 
 the defendant must elect between having the transaction an- 
 nulled altogether and submitting to the rectification of the 
 deed in accordance with the plaintiff's intention. (A*) 
 
 § 761. Parol evidence is admitted to show the common 
 mistake of both parties in reducing the contract into writ- 
 ing, and as the ground for rectifying it.' "I think it im- 
 
 (h) See Morocco Land, etc., Trading Co. (k) Garrard v. Frankel. 30Beav.,445; Har- 
 
 (Llmited) v. Fry, 13 W. R., 310. ris v. Pepperell, L. R. 5 Eq., 1. In his judg, 
 
 (I) Mackenzie v. Coulaon, L. R 8 Eq., 368 ment in the latter case Lord Romllly, M. R.- 
 
 (j) Sells V. .>ell8, 1 Dr. & Sm., 42; Rooke v. points out the distinction between the decls- 
 
 Lord Kensington, 2 K. & J., 753; Thompson ions in Garrard v. Frankel and Earl of Brad- 
 
 V. Whitmore, IJ. &H.,268; Earl «f Bradford ford v. Earl of Romney (30 Beav., 431). 
 V. Earl of Romney, 30 Beav , 431. 
 
 ' Season for reforming written instrument by parol ] " The principle on whicli 
 courts of equity rectify an instrument so as to enlarge its operation, or to con- 
 vey or enforce rights not found in the writing itself, and make it conform to 
 the agreement as proved by parol evidence, on the ground of an omission by 
 mutual mistake in the reduction of the agreement to writing, is, as we under- 
 stand it, that in equity the previous agreement is held to subsist as a binding 
 contract, notwithstanding the attempt to put it in writing." Wells, J., in 
 Glass V. Hulbert, 102 Mass., 24. 
 
 Parolproof to refonmcriting must be very strong. ~\ "Where it is sought tore- 
 form a written instrument on the ground of mistake, by parol, the evidence 
 must be very clear and positive. It must, as some of the" cases say, "leave no 
 doubt of the mistake." Lord Eldon said, in Marquis of Townshend v. Stand- 
 groom, 6 Ves., 333, that the evidence must be the strongest possible." Kent, 
 Ch., in Gillespie v. Moon, 2 John.'s Ch., 585, said, after a careful review of all 
 the then law on this subject: " The ca.ses concur in the strictness and diflSculty 
 of the proof." Lord Thurlow said, in Shelburne v. Inchiquin, 1 Bro. C. C., 
 338, "that the evidence must be strong and irrefragable." See under this 
 head, Hinkle v. Royal Ex. Ass. Co., 1 Ves., 317; Vonillon v. States, 25 L. J. 
 Ch., 875; Anderson v. Bacon, 1 J. J. Marsh., 48; Planque v. Guesnon, 15 La. 
 An., 312; Guernsey v. Am. Ins. Co., 17 Minn., 104; Brady v. Parker, 4 Ired.'s 
 Eq, 430; McDonald v. Starkev, 42 111., 442; Sawer v. Hovey, 3 Allen. 331; 
 Goodell V. Field, 15 Vt., 448; Harrison v. Howard, 1 Ired.'s Eq., 407; Huston 
 v. Xoble, 4 J. J. Marsh., 130; Watkins v. Stocket, 6 Har. & John., 435; Lau- 
 derdale v. Hallock, 7 Sm. & Marsh, 622; Ross v. Wilson, id., 753; Wurzburger
 
 MISTAKE. 379 
 
 possible," said Lord Thurlow, "to refuse, as incompetent, 
 parol evidence wliich goes to prove that the words taken 
 down in writing were contrary to the concurrent intention 
 of all parties. (Z) 
 
 § 762. But in order thus to procure the rectification of a 
 contract, the proof must be clear, irrefragable, and the 
 " strongest possible, "(m) As the point to be proved is that 
 the concurrent intention of all the parties to the contract 
 was different from that expressed by the written contract, 
 the court will attentively regard the admission or denial of 
 the defendant as one of those parties. (;i) It need scarcely 
 be added that the court will only act on parol evidence when 
 satisfied that there is no existing writing which contains the 
 original instructions or contract, (o) 
 
 § 763. Where there is a writing by which an executed 
 deed is to be rectified, and in that writing, there is a term 
 in respect of which there is a latent ambiguity, parol evi- 
 dence may be admitted to explain it, and thus assist in the 
 rectification of the deed.{p) 
 
 § 764. Mistakes are usually divided into mistakes of 
 fact{q) and of law. The former kind have always been 
 held to give occasion to the jurisdiction of equity in mis- 
 take. 
 
 § 765. As regard mistakes of law, the maxim usually re- 
 ferred to was Ignorantia legis non excusat ; and the older 
 authorities seem to show that courts of equity would neither 
 set aside contracts for mistake in law,(r) nor allow such mis- 
 take to be set up as ground for resisting specific per- 
 
 (l) In Lady Shelbourne v. Lord Inchlquln, Beav.,445; Harris v. Pepperell, L. R. 5 Eq., 1. 
 
 1 Bro. C. C, 341. (0) Lackersteen v. Lackersteen, 30 L. J. 
 
 (m) Henkle V Royal Exchange Assurance Ch ,5; 6 Jur. (N. S), 1111. 
 
 Co.,1 Ves. t^en ,317; per Lord Eldon in Mar- (p) Murray v. Parker, 19 Beav., 305 
 
 quis Townshend v. Stangroom, 6 Ves , 333; (q) It may be observed thai mistake of fact 
 
 Vouillon V. States, 25 L. J. Ch., 875; 27 L. T., is not the les* a ground for relief because the 
 
 268; Fallon v. Robins, 16 Ir. Ch. R., 422. person who has made the mistake had the 
 
 (n^ 6 Ves , 334; Mortimer v. Shorhall, 2 Dr. means of knowledge. Wlllmoit v. Barker, 15 
 
 & War., 363, 374. In Pitcairn v. Ogboume, 2 Ch. D , 97, 106. 
 
 Ves. Sen., 375, 379, the evidence was consid- (r) Marshall v. CoUett, 1 Y. & C. Ex., 232, 
 
 ered su£&cient to overcome the defendant's 238; Cockerell v. Cholmley.l R. & My., 418. 
 denial. See, too, Garrard v. Frankel, 30 
 
 V. Meric, 20 La. An., 415; Bradford v. Union Bank of Tenn., 13 How., 57; 
 Hunter v. Bilyon, 30 111., 228; Selby v. Geine, 12 id., 69; Stine r. Sherk, 1 
 Watts & Sersr., 195; Kurkenbeister v. Becket 41 111., 172; Clarey v. Babcock, 
 41 id.. 371; Mills v. Lockwood, 42 id.. Ill; McCloskey v. McCormick, 44 id., 
 836; Terson v. Atlantic Mutual Ins. Co., 40 Mo., 33; Sbrivcly v. Welcb, 2 
 Oregon, 288; Lyman v. United Ins. Co., 17 John., 373; McMahon v Spangler, 
 4 Rand, 51.
 
 380 FRY ON SPECIFIC PERFORMANCE OF CONTRACTS. 
 
 formance of contracts in other respects free from objec- 
 tion, (.v)' 
 
 § 760. This view of the law was thus stated by Lord 
 Chehnsford in addressing the House of Lords in 1858. (^) 
 "Mistake is undoubtedly one of the grounds for equitable 
 interference and relief ; but then it must be mistake not in 
 matters of law, but a mistake of facts. The construction 
 of a contract is clearly matter of law ; and if a party acts 
 upon a mistaken view of his rights under a contract, he is 
 no more entitled to relief in equity than he would be at 
 law.('?^) 
 
 § 767. With the authorities referred to in the two last 
 preceding sections may be comjjared those others, which 
 show that a misrepresentation of law, at least if innocently 
 made, does not bind and create any civil liability. (^)^ 
 
 (s) PuUen V. Ready, 3 Atk., 587; per Lord (t) Midland Great Western Railway of Ire- 
 Alvanley, M. R., in Gibbons v. Count, 4 Ves., land v. Johnson, 6 H. L. C, SIO, 811. 
 849; Stockley v. Stocbley, 1 V. & B., 23, 30; (u) See Powell v. Smith, L. R. 14 Eq., 85. 
 Mildmay v. Hungerford, 2 Vern., 243. See, (ri Rashdall v. Ford, L. R. 2 Eq.,V50; Beat- 
 also, Bilbie v. Luniley, 2 East. 469; Croome tie v. Lord Ebury, L. R. 7 Ch , 777. 
 V. Ledlard, 2 My. & K.,:iol ; Price v. Dyer, 17 
 Ve9.,356. 
 
 ' Mistake as to the operation of law.'\ Where a contract lias been fairly entered 
 into with full knowledge of all the facts, a mistake of the law will not in gen- 
 eral be ground for resisting the specific performance of such contract. Marshall 
 V. Collett, 1 Y. & C. Ex., 232, 238; Mildmay v. Hungerford, 2 Vern., 243; Leed 
 V. Johnson, 25 L J. Exch., 110; Cockerell v. Cholmeley, 1 R. & My., 418; Pul- 
 len V. Ready, 2 Atk., 587; Stockley v. Stockley, 1 V. & B., 23, 30;' Gibbons v. 
 Ganut, 4 Ves., 489; Melius v. Duke of Dovenshire, 16 Beav., 257; Midland Gt. 
 West Co. V. Johnson, 6 H. of Lds., 798; Wooden v. Havelaud, 18 Conn., lUl; 
 Bank of U. S. v. Daniel, 12 Pet., 32; Lyon v. Richmond, 2 Johu.'s Ch., 60; 
 Trigg V. Read, 5 Humph., 529; Genter v. Thorns, 1 Ired 's Eq., 195; Shafer v. 
 Davis, 13 111., 395; Peters v. Florence, 38 Pa. St., 194; McMurry v. St, Louis 
 Co., 33 Mo., 377; Heilbron v. Bissell, 1 Bailey's Ch., 430; Storrs v. Barker, 6 
 John.'s Ch., 166; Dow v. Rer, Spear's Ch., 413; Wentermute v. Snj'der, 2 
 Green's Ch., 489; Bell v. Steele, 2 Humph., 148; Shotwell v. Murray, 1 John.'s 
 Ch., 513: Brown V. Armistead, 6 Rand., 594; State v. Reigert. 1 Gill., 1; Dill 
 V. Shahau. 35 Ala., 694; Gwynu v. Hamilton, 29 id., 233; Smith v. McDougall, 
 2 Cal., 586. 
 
 ' A distinction has been taken between ignorance of the law and mistake of 
 the law, which has caused no little diversity of opinion, and created considera- 
 ble perplexity. In the first case, it has been said, relief will be granted; in the 
 latter it will not. "We take it to be the settled rule, at present, that no such 
 distinction exists; and that ignorance of the law and mistake of the law are 
 equally considered in courts of equity to form no groundwork for relief. A 
 leading case in this country, upon this question, is Champlin v. Laytin, 18 
 W'end., 409, where the authorities upon the point in view were considered by 
 Bronson, J. Landsdown v. Land.sdown, Mosely, 364, is the oldest case which 
 has sought to establi.sh this distinction. The case was this : Tlie second of 
 four brothers died, and the eldest and youngest both claimed the estate. They 
 referred the question to a school master, who decided that the youngest was 
 entitled to the property, because lands could not ascend. Upon this, the par- 
 ties agreed to divide the estate between them, and the eldest brother executed 
 a release. The chancellor decreed that the deed should be delivered up, "be
 
 MISTAKE. 381 
 
 § 768. Recent decisions, however, have lessened, if not 
 destroyed the importance of the distinction between mis- 
 
 ing obtained by rilistake and misrepresentation. The facts are so briefly- 
 stated, that it is impossible to say, with certainty, on what ground the decision 
 proceeded. If there was any intentional misrepresentation in the case, either 
 about its facts or law, that would be a proper ground for affording relief; and 
 it is stated in a report of the case, 2 Jac. & Walk. , 205, that the complainant 
 alleged in his bill that he had been surprised and imposed upon by his brother 
 and the school master. And Justice Bronson continues further: "In there- 
 port by Mosely, Lord Chancellor King is made to say that the maxim of law, 
 ignorantia juris non crcusat, was in regard to the public: that ignorance cannot 
 be pleaded in excuse of crime, but did not hold in civil cases. Mosely is not a 
 book of very high authority 5 Burr., 2639; 3 Anstr., 861; and I think it much 
 more probable that the case turned on the ground of surprise and imposition, 
 than that the chancellor made use of the language imputed to him." Chief 
 Justice Marshall cited this case in Hunt v. Rousmanier, when first before the 
 court, 8 Wheat., 214, with the qualifying remark, 'if it be law,' and he added, 
 that there were certainly strong objections to the decision. Mr. Justice Story, 
 in commenting on the language imputed to Lord Chancellor King, says it is 
 utterly irreconcilable with the well-established doctrine, both of courts of law 
 and courts of equity." It may then be submitted that the distinction before us 
 receives no support whatever "from the case, which has been relied upon in its 
 defense. Willard's Eq. Jur., p. 60; Lawrence v. Beaubien, 2 Bailey's S. C. R., 
 623, is a decision directly to the effect that such a distinction should be main- 
 tained, and relief granted in the one case and refused in the other. Bronson, J., 
 is, however, of the opinion that the decision in that case " rests upon no solid 
 foundation." And in Haven v. Foster, 9 Pick., 112, the point was elaborately 
 discussed by counsel; and the court, though deciding the case upon other 
 grounds, clearly held that the principle ignorantia juris non excusat was appli- 
 cable alike to civil and criminal proceeding; that every man is presumed to 
 know the law of the land. In Shotwell v. Murray, 1 John.'s Ch., 512, Kent, 
 Ch. , holds ignorance of the law to be a very dangerous plea, whether applied 
 to rules of civil conduct or to duties of natural and moral obligation. The 
 case of Hunt v. Rousmanier, 8 Wheat., 174, it is thought cannot be quoted as 
 an authority to uphold the existence of any distinction between ignorance of 
 the law and mistake of the law. Willard's Eq. Jur. , p. 62. There are, how- 
 ever, other cases; and these are considered by Paige, senator, in Champlin v. 
 Laytin, to a different effect from the opinion of Justice Bronson. "I am pre- 
 pared," says the learned senator, " to assent to the proposition of the vice-chan- 
 cellor, that a contract entered into under an actual mistake of the law on the 
 part of both the contracting parties, by which the object and end of their con- 
 tract, according to its intent and meaning, cannot be accomplished, is as liable 
 to be set aside as a contract founded in mistake of matters of fact. The proper 
 distinction, in my judgment, is taken in tlie case of Lawrence v. Beaubien, 2 
 Bailev's (S. C. R.), 623; Lowndes v. Chisholm, 2 McCord's (S. C. R.), 455 (1827), 
 and Executors of Hopkins v. Maryck, 1 Hill.'s Ch. Cas. (S. C. R.), 250 (1833), 
 between a mistake of the law and mere ignorance of the law. This question, 
 it seems to me, was in those cases correctly decided." * * * Johnson, J., 
 in Lawrence v. Beaubien, 2 Bailey, 623, says: "All the difficulty and confusion 
 which have grown out of the application of the maxim ignorantia juris^ neminem 
 excusat, appears to me to have originated in confounding the terms ignorance 
 and mistake. The former is passive and does not presume to reason, but the 
 latter presumes to know, when it does not, and supplies palpable evidence of 
 its existence." He further says, in Executors of Hopkins v. Maryck, "that a 
 mere ignorance of the law is not susceptible of proof, and therefore cannot 
 be relieved ; but that a mistake of law may be proved, and, when proved, re- 
 lief may be afforded." Sparks v. White, 7 Humph., 86, seems, at least, in 
 some degree, to present the true doctrine of equity upon this point. Mere ignor- 
 ance of the law, it is there said, will not authorize a comt of chancery to set 
 aside a contract ; but if that ignorance be superinduced by the other party ,_ or if 
 there be a misplaced confidence, or if advantage be taken of weakness of Intel-
 
 382 FRY ox SPECIFIC PERFORMANCE OF CONTRACTS. 
 
 takes of fact and of law. In Stone v. Godfrey, (-W)) Turner, 
 L. J., said that lie felt no doubt that the court had power 
 to relieve against mistakes in law as well as ijiistake in fact. 
 
 (w) 5 De G. M. & G., 76. 
 
 lect, these, with other influences, united with ignorance of the law, will be 
 suflQcient to justify the court in so doing. See Sims v. Lyle, 4 W. C. C. R., 
 320. iVIistake of the law, as a rule, whatever may be the distinction between 
 it and ignorance of the law, if any there may be, is not a ground of equitable 
 relief. Boebe v. Swartwout, 3 Gilm., 162; Shotwell v. Murray, 1 John.'s 
 Ch., 512; Wintermute v. Snyder, 2 Green's Ch., 489; Good v. Herr, 7 Watts 
 & Serg , 253; Trigg v. Reade, 5 Humph., 529; Broadwell v. Broadwell, 1 
 Gilm., 599; Champlin v. Laytin, 18 Wend., 412; AVillard's Eq. Jur., pp. 59, 
 60; Story's Eq. Jur., § 140. It is not to be denied, however, that there are 
 cases to the contrary. In Crosier v. Acer, 7 Paige, 143, Walworth. Ch.. ex- 
 pressed no decided opinion. His words were — "if this court can relieve 
 against a mistake in law in any case where the defendant has been guilty of 
 no fraud or unfair practice, which is at least very doubtful, it must be in a case 
 in which the defendant has, in reality, lost nothing whatever by the mistake, 
 and where the parties can be restored to the same situation, substantially, in 
 which they were at the time the mistake happened." See, also, Hall v. Reed, 
 2 Barb.'s Ch.. 500. But Lowndes v. Chisholm, 2 McCord's Ch., 455; Hunt v. 
 Rousmauier, 8 Wheat., 174; Evantsv. Strode. 11 Ohio, 480; Beardsley v. Knight, 
 10 Verm., 185; Goodell v. Field, 15 id., 448; McNaughten v. Partridge, 11 Ohio, 
 223; Alexander v. Newton, 2 Gratt., 266; Parham v. Parham, 6 Humph., 287, 
 are sufficiently clear. Many of these cases may, however, have well been de- 
 cided upon other grounds; as, for instance, the error of the draughtsman in 
 reducing the contract to writing. And, indeed, it has been said that whatever 
 exceptions there may be to the general rule, that equity will not relieve upon 
 the ground of mistake of law, they will be found to have something peculiar in 
 •their character. Bank of United States v. Daniel, 12 Pet., 32; Hunt v. Rous- 
 mainier, 1 id., 115. But Paige, Senator, 18 Wend., 423, contends strenuously 
 for relief in these cases. "I cannot see any good sense," said he, " in the dis- 
 tinction of granting relief against mistakes of fact, and refusing it in cases of 
 acknowledged mistakes at law. Both, in my judgment, ought to be placed 
 upon the s'ame footing. If the principles of justice require relief in one case, 
 they equally do in the other." The vice-chancellor. Sir John Leach, in Naylor 
 v. Wench, 1 Sim. & Stu., 555, says: " ;f a party, acting in ignorance of a plain 
 and settled principle of law, is induced to give up a portion of his indisputable 
 property to another, under the name of compromise a court of equity will relieve 
 him from the effect of his mistake." Although the case of Hunt v. Rousmauier, 
 ultimately turned on another question, 1 Peters' U. S. R., 13, yet the opinion of 
 Chief -Justice Marshall in that case, as reported in 8 Wheat., 205, clearly shows 
 which way was the inclination of his mind. He says, speaking of the case of 
 Landsdown v. Landsdown, Mosely, 364, "that, as a case in which relief has 
 been granted on a mistake in law, cannot be entirely disregarded. And he 
 further says : ' 'Although we do not find the naked principle that relief may be 
 granted on account of ignorance of law, asserted in the books, we find no case 
 in which it has been decided that a plain and alleged mistake in law is beyond 
 the reach of equity. We are unwilling, where the effect of the instrument is 
 acknowledged to have been entirely misunderstood by both parties, to say a 
 court of equity is incapable of affording relief." And Washington, J., in the 
 same case, 1 Peters, 15, in the conclusion of his opinion, says: "It is not the 
 intention of the court to lay it down that there may not be cases in which a 
 court of equity will relieve against a plain mistake arising from ignorance of 
 law." It seems, however, that the learned senator proposed the adoption of 
 certain qualifications. "If relief," it is said in his opinion, "was to be granted 
 upon every allegation of a mere ignorance of the law, great embarrassments 
 would arise in discriminating between the cases of actual ignorance and those 
 of feigned ignorance. So where the ignorance or mistake of the law is only in 
 one of the contracting parties, and the other party has not taken any advantage
 
 MISTAKE. 383 
 
 § 769. Acting on tliis view, Lord Hatheiiey (wlien Yice- 
 Cliancellor) remitted to Ms original rights against Company 
 A., a creditor of that company who had given up that right 
 in consideration of the substituted security of Company 
 B., which purchased the business of the first Company A., 
 when that purchase was held void as ultra mres.ix) 
 
 § 770. The point has twice come before the House of 
 
 (a;> Re Saxon Life Assurance Co., Anchor Case, 2 J. & H , 408. 
 
 of the circumstances in making the contract, it would not be proper to grant 
 reUef against such ignorance or mistake ; but where a contract is entered into 
 imder an actual and reciprocal mistake of law in both the contracting parties, 
 hy which the manifest intention of the parties cannot be accomplished, and 
 which ex (s,que et bono ought not to be binding, and where such mistake is either 
 acknowledged, or undoubted evidence of it is produced, I cannot see any good 
 reason why relief should not be granted in equity to the same extent as is done 
 in cases of mistake in matter of fact. The principles of natural justice require 
 that the like relief should be granted in both cases. I would qualify the rule, 
 however, as was done by Johnson, J., in Lawrence v. Beaubien, and deny relief 
 if it appeared that the contract was the compromise of a doubtful right, or was 
 entered into as a speculating bargain. By adopting the rule with these qualifi- 
 cations, in my judgment, no mischievous consequences would follow, but on 
 the contrary, the interests of justice would be advanced." It may not be amiss 
 to observe that in the very case of Naylor v. Winch, cited in this opinion, and 
 which so broadly lays down the law in reference to compromises, relief was 
 denied, because the claim was doubtful, and the compromise was after due de- 
 liberation. Story's Eq. Jur., § 121 (note 1). And it is also to be remembered 
 that the positions of Chief -Justice Marshall were greatly shaken by Washington, 
 J., when the case came before him, on appeal to the supreme court. WiUard s 
 Eq. Jur., 63. The words of Washington, J., cited also in the course of the 
 opinion, do not necessarily imply that a court of equity will grant relief in usual 
 cases of a mistake of law. They may have been used in order to include such 
 cases as Mortimer v. Pritchard, 1 Bailey's Ch., 505, where a person lent money 
 at a usurious rate of interest in mistake of the law, and the court granted him 
 relief because usury consists in the corrupt intent to take illegal interest : and this 
 could not exist without a knowledge of the law. The dangers of breaking 
 through the rule as it now stands, together with its general practical utihty and 
 equity, are best considered by Bronson, J. 18 Wend., 412. Nevertheless, in 
 South Carohna, Kentucky and Maryland, men are not chargeable for want ot 
 knowledge of the law, and equity will relieve parties from their own acts and 
 deeds, fairly done, on a full knowledge of facts, though under a mistake of law. 
 Lowndes v. Chisholm, 2 McCord's Ch., 255; Hopkins Ex'rs v. Maryck, 1 Hill, s 
 Ch., 257; Drew v. Clarke, Cooke, 374; Fitzgerald v. Peck, 4 Litt., 12o; Laraat 
 V. Rowley 6 Har. & John., 500; and see cases collected in C. & H. Notes. 1483, 
 1484- Gilbert v. Gilbert, 9 Barb , 534; Arthur v. Arthur, 10 id., 9; Mathews v. 
 Terwilliger 3 id., 50; Dupre v. Thompson, 4 id., 279. There are cases ot ap- 
 parent mistake of law, in respect of titles, where relief has been grant^ed, but 
 they are cases of a mixed nature; partly mistake of fact. Story, J5§ i^\l%^' 
 122. Money paid, with a full knowledge of facts, cannot be recovered back, 
 on the ground that the party was ignorant of the law. Bilbie v. Lumley - ±-ast, 
 469; Lowrey v. Bordieu, Doug., 467, per Buller, J. ; Stevens v. Lynch 12 Last, 
 38- Busbane v. Dacres, 5 Taunton, 144; Clark v. Dutcher, 9 Cowen, 674; Jones 
 V Watkins, 1 Stewart, 81. Where a party has committed a tort, in consequence 
 of a mistake of law, and the other party is free from fault, equity will not re- 
 lieve the former from the legal consequences of his act. Pettcs v. Bank ot 
 Whitehall, 17 Verm., 435. Though a party may not be reheved f roni a mistake 
 of law, yet, if no new equities have intervened, the reverse will be the case in 
 reference to a rule of court. Gardiner v. Schermerhorn, 1 Clarke, 101 ; Gaul v. 
 Miller, 3 Paige, 192; Pratt v. Adams, J id., 61o.
 
 384 FRY ON SPECIFIC PERFORMANCE OF CONTRACTS. 
 
 Lords in late years. In Cooper v. Phibbs,(?/) where the 
 appellant believing himseK to be a stranger to his own land 
 agreed to take a lease of it, and was relieved from his mis- 
 take, his belief was founded on an erroneous impression of 
 the effect of certain documents of title ; and Lord Westbury 
 said: "It is said Ignorantia juris liaud excusat, but in 
 that maxim the word jus is used in the sense of denoting 
 general law, the ordinary law of the country. But when 
 the word,;i^5 is used in the sense of denoting a private right, 
 that maxim has no application. Private right of ownership 
 is matter of fact ; it may be the result also of matter of law ; 
 but if parties contract under a mutual mistake and misap- 
 prehension as to their relative and respective rights, the re- 
 sult is, that that agreement is liable to be set aside as having 
 proceeded upon a common mistake." (£:) 
 
 § 771. In Earl Beauchamp v. Winn, Lord Chelmsford, in 
 addressing the house, said, "that the ignorance imputable 
 to the party was of a matter of law arising upon the doubt- 
 ful construction of a grant. This is very different from the 
 ignorance of a well-known rule of law ; and there are many 
 cases to be found in which equity, upon a mere mistake of 
 the law, without the admixture of other circumstances, has 
 given relief to a party who has deait with his property under 
 the influence of such mistake, (a) 
 
 § 773. It seems to follow that, at least as a defense to 
 specific performance, common error of law of both parties 
 or even .the sole error of the defendant, when resulting in 
 mistake important to both parties to the contract as to some 
 of the matters dealt with by the contract, would be suffi- 
 cient. But it is submitted that neither the common error 
 of both parties nor the sole error of the defendant as to the 
 operation and effect of the contract can be a ground for re- 
 sisting specific performance, ih) 
 
 § 773. Again, as in cases of hardshii^, the turning out of 
 events in a way different from what the iDarties anticipated 
 will not furnish a ground of defense ; so in regard to mis- 
 take, if persons choose to speculate upon facts, and the 
 view on which they acted proves to be a mistaken one, that 
 
 {]/) 17 Ir. Oh. K., 73; L. R. 2 H. L. 149; («) L. R. 6 H. L., 234. Cf. Heald v. Walls 
 Bupra, § 753. ISW. R.,398. 
 
 (s) L.. R. 2 H. L., 170. (6) See supra, § 733 et seq.
 
 MISTAKE. 385 
 
 circumstance will furnisli no defense on wliicli the court 
 will act.(c) 
 
 § 774. Where there is a mistake of both parties, but not 
 about the very subject of the contract, it will not be a ground 
 for rectifying the contract. Therefore, where both i^arties 
 were under a mistake as to the duration of a leasehold in- 
 terest, so that the i^rice was considerably less than if the 
 actual extent of the interest had been known, and the ven- 
 dors filed a bill asking for a reassignment of the extra term 
 which the purchasers took under the assignment, Knight 
 Bruce, Y. C, held that the lease was the substance sold 
 and not a term of the supjDosed duration, and that the ven- 
 dors ought to have known what was the condition of the 
 property they proposed to sell, and accordingly dismissed 
 the bill.(^)' 
 
 § 775, In like manner the Roman jurists held that mis- 
 take as to the substance of the thing avoided the contract ; 
 but if there be only a difference in some quality or acci- 
 dent, though the misapprehension may have been the actu- 
 ating motive, yet the contract remains binding, (e) 
 
 § 776. The court, on a clear j)rinciple, will not interfere 
 for the rectification of a written contract where it was, by 
 the intention of the iDarties to it, that the writing did not 
 comprise all the terms of the actual contract ; for what is 
 done on purpose, is evidently not done by mistake. There- 
 
 (c) See, at common law, Harris v. Loyd, 5 («) Kennedy v. Panama, etc., Mail Co., L. 
 M. & W , 432. R. 2 Q. B., 580, and authorities there cited. 
 
 (d) Okill V. Whittaker, 1 De G. & Sm., 83, 
 afarmed2Ph.,338. 
 
 ' The fact upon which the party claims relief, must be material to the act or 
 contract — that is, it must be essential to its character, and an efficient cause of 
 its inception. For if there be an accidental ignorance or mistake of a fact, yet, 
 if the act or contract is not materially affected by it, the party claiming rehef 
 will be denied it. Therefore, where A. buys an estate of B., to which the latter 
 is supposed to have an vmquestionable title, and it turns out upon investigation 
 of the facts, unknown at the time to both parties, that B. has no title, in such a 
 case equity would relieve the purchaser and rescind the contract. But if A. 
 were to sell an estate to B., whose location was well known to each, and they 
 mutually believed it to contain twenty acres, and in' point of fact it contained 
 onty nineteen acres and three-quarters, and the difference would not have 
 varied the purchase in the view of either party, then the mistake would not 
 furnish grounds for a rescission of the contract. And further, to entitle a party 
 to relief, the fact must be such that he could not, with due diligence, have ob- 
 tained accurate knowledge of it. And hence, if a person has lost his remedy at 
 law, through negligence, equity will not assist him. Story's Eq. Jur., § 141 ; 
 Willard's Eq. Jur., 70, 71; Trigg v. Reade, 5 Humph., 529; Perry v. Martin, 4 
 Johm'sCh., 566. 
 
 25
 
 386 FRY ON SPECIFIC TERFOIiMANCE OF CONTRACTS. 
 
 fore, where there was a contract for an annuity, and the 
 parties to it designedly omitted a proviso for redemption, 
 thinking it would render the transaction usurious, the court 
 refused to rectify the deed.(/) The parties "desired the 
 court,"' said Lord Eldon,(^) " not to do what they intended, 
 for the insertion of that proviso was directly contrary to 
 their intention, but they desired to be put in the same situa- 
 tion as if they had been better informed, and consequently 
 had a contrary intention. "(^^/ 
 
 § 777. Where the parol variation which the plaintiff or 
 defendant seeks to set up is a subsequent contract in parol 
 between the parties to a written contract, the case in nowise 
 comes within the doctrine of mistake, and the parol varia- 
 tion is inadmissible under the Statute of Frauds, except in 
 cases where the refusal to perform it might amount to 
 fraud. C/y 
 
 § 778. Therefore where A., by writing, agreed with B. to 
 grant him a lease, to commence on the 21st of April, B. being 
 merely the agent of C. ; and subsequently A. and C. agreed 
 
 (/) Lord Irnham v. Child, 1 Bro. C. C, 92; (h) See, also, PItcairn v. Ogboume, 2 Ves. 
 Lord Portmore v. Morris, 2 id., 219; Hare v. Sen , 375; cf. Cripps v. Jee, 4 Bro. C. C, 472, 
 Shearwood, 3 id., 168; S. C, 1 Ves. Jun.,241. (i) See per Grant, M. R., in Price v. Dyer. 
 
 iff) In Marquis Townshend v. Stangroom, 6 17 Ves., 364. 
 Ves., 332. 
 
 1 The court will not, interfere -where the instrument itself is such as the par- 
 ties intended it to be. If the parties voluntarily choose to express themselves 
 in the language of the deed, thej' must be bound by it. Story's Eq. Jur., § 113; 
 Willard's Eq. Jur., p. 69. 
 
 * Therefore, where A. contracted in writing to give B. a deed of land on the 
 payment of B.'s notes for the purchase money, and afterwards agreed verbally 
 to deliver a deed on demand, on the payment of B.'s notes before they were 
 due, and at the time of this verbal agreement B. paid the notes then due, and 
 afterwards tendered payment of the notes not then due, and A. refused to de- 
 liver the deed, it was held that performance of the contract, as modfied by this 
 agreement, could not be enforced. Brooks v. Wheelock, 11 Pick., 489. But 
 in such cases it is said that the variation may be available as a defense, if accom- 
 panied by such part performance as would enable the court to enforce it if it 
 were an original, independent agreement, subject, nevertheless, to the doctrine 
 of equity, which allows parties by their acts to vary the original agreement in 
 respect of matters relating to the title and the time of completion. Will.'s Eq. 
 Jur. , p. 289. 
 
 Subsequent parol agreement to vary loritten contract.'] "The written executed 
 contract must be regarded as declaring the whole contract then made, and such 
 promises, if receivable at all, are admitted merely as evidence tending to show 
 the equity dehors the conveyance, arising from the misapprehension of the par- 
 ties. It is exceedingly clear that such evidence is to be regarded with extreme 
 caution. For otherwise the courts would, violate, in effect, the rule which they 
 profess to hold sacred, that the operation of a deed or other written instrument 
 shall not be abridged, enlarged or altered by parol testimony." Gaston, J., in 
 Chamness v. Crutchfield, 2 Ired.'s Eq., 148; Price v. Dver, 17 Ves., 356; 
 Blanchard v. Moore, 4 J. J. Marsh., 471; Coger v. McGee, 2 Bibb., 321.
 
 MISTAKE. 387 
 
 by parol that the lease should commence from the 24th of 
 June instead of the 21st of Ai^ril, and be made to C. instead 
 of to B., and C. and B. sought a specific performance of 
 the written contract as varied by the subsequent parol one, 
 a plea of the Statute of Frauds was necessarily allowed. (,;) 
 And where there was a contract in writing, and the defend- 
 ant set uj) a subsequent parol contract, by which the par- 
 ties mutually abandoned the terms of the written contract 
 and then agreed upen new terms, Grant, M. E,., held that 
 these new terms were merely meant to modify or add to the 
 terms of the original contract ; that therefore the parol con- 
 tract could not be set up as a waiver of the first, and that 
 the subsequent terms not having been in any way acted on, 
 the second contract formed no defense to the first, the execu- 
 tion of which he accordingly directed. (^) Again, where the 
 written contract was silent as to restrictive covenants, but 
 there was some evidence of a subsequent contract to take 
 the lease subject to a certain restrictive covenant as to trade, 
 the Statute of Frauds was held to be a bar to the perform- 
 ance which the plaintiff sought of this subsequent parol 
 contract. (Z) 
 
 § 779. The question how far a plaintiff can enforce spe- 
 cific performance of a contract with a parol variation, or, in 
 other words, with a rectification of a mistake, is on the au- 
 thorities not perfectly clear ; but the weight of authority 
 appears distinctly to prevail in favor of the proposition 
 that, under the practice of the court of chancery, a plain- 
 tiff could not sue for the specific performance of a contract 
 with a parol variation. 
 
 Before i^roceeding to consider the cases on this point, we 
 may briefly advert to princiioles. 
 
 § 780. With regard to a mistake of the plaintiff" alone, 
 it is at once obvious that to allow him to correct this mis- 
 take, and enforce the contract so corrected on the other 
 party to it, would be a great injustice. 
 
 § 781. With regard, however, to a mistake of both par- 
 ties to a contract in the reduction of the contract into 
 writing, there can be no objection in point of justice to the 
 plaintiff's asking to have that mistake corrected, and to 
 
 ( i) Jordan v. Sawkins. 3 Bro. C. C, 383 ; S. (fc) Price v Dyer, 17 Ves., 35G. 
 C. 1 Ves. Jun., 402. (ij Snelling v. Thomas, L. K. 17Eq., 303.
 
 388 FRY ON SPECIFIC PERFORMANCE OF CONTRACTS. 
 
 have the real contract carried into execution. This would 
 be the result, if the plaintiff sued for specific performance 
 of the written contract, and then submitted to a parol varia- 
 tion set up and proved by the defendant. Again, there be- 
 ins; an undoubted jurisdiction for the reform of contracts, 
 and also a jurisdiction for the execution of them, there 
 seems no reason why, when both these grounds of action 
 are necessary to give the plaintiff his full rights, they may 
 not be proceeded on in one and the same action. 
 
 § 783. It may be said that a plaintiff seeking to correct 
 and enforce a contract which is within the Statute of Frauds 
 is suing in contravention of that act. But the objection 
 seems untenable. For every action to correct by parol evi- 
 dence a written contract, whether executed or executory, is 
 in some sense a suing on the contract ; yet the jurisdiction 
 of equity in cases of mistake in written contracts is clear. 
 Mistake, like fraud, (m) must be deemed an exception to the 
 statute in equity. 
 
 § 783. Whether this reasoning be incorrect or not, there 
 is a series of cases which seem to establish the proposition, 
 that in the court of chancery a plaintiff could not be allowed 
 to sue for the specific performance of a contract with a parol 
 variation : these may now be considered. 
 
 § 784. In Rich v. Jackson, (7i) the plaintiff sought the exe- 
 cution of a contract for a lease with a variation by the intro 
 duction of the words "clear of all taxes," and the witnesses 
 I)roved the meaning of the iDarfcies to have been as the plain- 
 tiff alleged; but Lord Rosslj^n said, "I cannot find that 
 this court has ever taken ui)on itself, in executing a written 
 agreement by a specific performance, to add to it by any 
 circumstanse that parol evidence could introduce ;"(o) and 
 accordingly the parol evidence was rejected, and the court 
 refused to execute the contract, except upon the terms of 
 the written agreement, which the plaintiff declined, and ac- 
 cording had his bill dismissed. 
 
 § 785. In Woollam v. Hearn,(^) the point was fully con- 
 sidered by Grant, M. R. The plaintiff alleged a contract 
 with the defendant, by which the defendant was to grant to 
 
 (m) See supra, § 538. 484 (4th ed.), and cases there collected; Hlg- 
 
 (») 4Bro. C. C.,514; 6Ves.,334n. ginson v. Clowes, 15 Ves.,516, 523; Winch v. 
 
 (0) 6Ves.,335n. Winchester, 1 V. & B., 375, 378; Nurse v. 
 
 (P) 7 Ves., 211; S. C, W. & T.Lead. Case., Lord Seymour, 13 Beav., 254.
 
 MISTAKE. 389 
 
 tlie plaintiff a lease of a certain lioiise at £60 per annum : 
 of this contract a memorandum was drawn up and signed, 
 but by mistake, or with some unfair view, £73 10*. was in- 
 serted as the rent, instead of £60 : by her bill the plaintiff 
 sought specific i^erformance of the contract rectified as to 
 the amount of rent. The evidence of the plaintiff appeared 
 to the judge to establish her position, but he rejected it and 
 dismissed the bill, holding that though it would have been 
 admissible for the plaintiff if she had been defendant, yet 
 that it could not be used to j^rocure a decree. 
 
 § 786. The same doctrine was entertained by Lord Redes- 
 dale, (g) and has on more than one occasion been stated by 
 Lord Cottenham, and also by Wigram, Y. C.(r) "It is," 
 said Lord Cottenham in one case, " a familiar doctrine in 
 this court, that although, to resist a specific performance, 
 a defendant may show by parol that the written document 
 does not represent the contract between the parties, yet a 
 X^laintiff cannot have a decree for a specific performance of 
 a written contract with a variation uiDon parol evidence. "(5) 
 
 § 787. In the case of the Attorney-General v. Sitwell,(^) 
 Alderson, B., expressed a strong opinion, in accordance with 
 the doctrine in question, that the court would not reform 
 and then enforce an executory contract, except, x^erhaps, 
 where the mistake was admitted by the answer, which 
 might seem to take it out of the Statute of Frauds. 
 
 § 788. This line of cases may be closed by the authoritj^ 
 of Lord St. Leonards. In a case which came before his 
 lordsbi^D when chancellor of Ireland, there was a written 
 contract for a lease, and then a lease executed in conse- 
 quence of it, and a bill was brought for the reform of the 
 lease, not by the contract, but by introducing a term into 
 it bj^ -piirol.{ti) His lordship stopped the argument for the 
 plaintiff, considering that it was really against first princi- 
 ples to discuss the point, and said that the deed could not 
 be reformed by that which would have been inadmissible if 
 the contract were resting infiei% and the bill had sought a 
 specific performance of it. "It is said," observed his lord- 
 ship, (?)) "that if a mistake was proved, and that there was 
 
 (g) Clinan v. Cooke, 1 Sch. & Lef., 22, 3S. Winter, Cr & Ph , 57. 61. See, also, Emmett 
 (r) In Manser v. Back, 6 Ha., 447. v. Dewhurst, 3 Mac. & G., 587. 
 
 (s) In Squire v. Campbell, 1 My. & Or., 480; (t.) 1 Y. & C. Ex., 559. 
 JLondon and Birmingham Railway Co. v. (u) Davies v. Fitton, 2 Dr. & War., 225. 
 
 (V) 2 Di. & War., 233.
 
 390 FRY ON SPECIFIC PERFORMANCE OF CONTRACTS. 
 
 no written agreement, the parol evidence would be admissi- 
 ble. Perhaps it might, because there is no settled rule of 
 law in the way, and, as there is no written contract, the 
 court must endeavor to ascertain, by the best evidence it 
 can get, w^hat was the contract of the parties, and whether 
 there was any mistake." 
 
 § 789. It is, perhaps, not perfectly obvious why, if parol 
 evidence would be admissible to correct a deed executed 
 without any previous written contract, it should yet be in- 
 admissible to correct a written contract itself ; for the only 
 principle applicable seems to be that writing excludes parol, 
 and it might be thought that this would apply with more 
 force to a solemn deed than to a mere preliminary contract. 
 
 § 790. It may, perhaps, also be inquired wiiy, if the 
 court presumes a previous contract resting in parol in the 
 case of a deed, no such presumption is made in the case of a 
 written contract ; why the written contract may not, equally 
 with the deed, be corrected by reference to such a previous 
 parol contract ; and why the court does not, as much in the 
 one case as in the other, ascertain what that contract was 
 by the best evidence it can get. 
 
 § 791. The current of authorities, however strong, can 
 yet scarcely be considered uniform in favor of the position 
 that the plaintiff can never avail himself of a parol varia- 
 tion. There are dicta of Lord Hardwicke' s which, notwith- 
 standing the remarks upon them of Lord Iledesdale('io) and 
 of Grant, M. 'R.,{x) imply, it is submitted, a somewhat dif- 
 ferent view of the question from that already stated. 
 
 § 793. In Walker v. Walker, (2/) John Walker, a brother 
 of both the plaintiff and defendant, contracted with the 
 plaintiff, by parol, that if the plaintiff would surrender his. 
 copyhold estate for the benefit of the defendant, he, John 
 Walker, w^ould secure an annuity for the plaintiff' s life, and 
 another for that of his wife : upon this, John Walker sur- 
 rendered his copyhold estate to the defendant, charged with 
 these annuities; but the plaintiff did not, in accordance 
 with his contract with John AValker, surrender his copy- 
 hold estate to the defendant, whereupon the defendant re- 
 fused to pay the annuities. The plaintiff brought his bill 
 
 (w) In Clinan v. Cooke, 1 Sch. & Lef., 38. (y) 2 Atk., 98; S. C, 6 Ves., 335 n. 
 
 (a;) In VVoollam v. Hearn, 7 Ves., 219.
 
 MISTAKE. 391 
 
 for their payment, and the defendant relied on tlie phiin- 
 tiff's breach of tlie parol contract witli John Walker. Lord 
 Hardwicke held that the plaintiff's equity was rebutted by 
 the defendant's equity, and added, (z) '' I am not at all clear 
 whether, if the defendant had brought his cross-bill to have 
 this agreement established, the court would not have done 
 it, upon considering this in the light of those cases, where 
 one part of the agreement being jierformed 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,(a) Lord Hard- 
 wicke expressed his oi^inion that evidence of the omission, 
 in a contract for a lease, of the exi:)ression " clear of taxes," 
 might have been given by the defendant, if he had been 
 plaintiff seeking a specific performance, but his lordship 
 considered it in the light of an explanation of an executory 
 contract, and not of a variation. 
 
 § 793. There was a case before Lord Thurlow which, 
 though it rests rather on the ground of fraud than mistake, 
 comes very near to admitting i^arol evidence on the part of 
 the plaintiff to supply a term in a written contract. It Avas 
 a bill brought by the original lessees of a tenn against the 
 purchaser from them, for the specific performance of a con- 
 tract to indemnify the plaintiffs against all rents and cove- 
 nants in the lease, and to execute a bond for securing such 
 indemnity. The property had been sold by auction, and 
 the conditions of sale did not stipulate for such an indem- 
 nity ; but the contract was proved by parol. Lord Thurlow 
 held the evidence to be admissible, and laid it down that 
 where an objection is taken before the i^arty executes the 
 contract, 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. (Z>) 
 
 § 794. Lord Eldou seems to have been of opinion that 
 parol evidence was admissible for the plaintiff'. In the Mar- 
 quis Townshend v. Stangrooni,(c) the plaintifl" in the origi- 
 nal bill sought sjoecific performance with a parol variation, 
 
 (?) 2 Atk., ion. (h) Peniber v. Mathers, 1 Bro C. C, 52; per 
 
 (a) 3 Atk., .388 See this and the iireceOing Graut, M H , in flarke v. Grant, 14 Ve- , 5i4; 
 
 case observed on by I^ord Redesdale in CU- See. also, Harrison v. Gardner, 2 Mad., 193. 
 
 nan v. Cooke, 1 Sch. & Lef, 38, 39. (c) 6 Ves., 31S.
 
 392 FRY ON SPECIFIC PEKFOKMANCE OF CONTRACTS. 
 
 and the defendant by a cross bill songht the performance of 
 the written contract as it stood. " I will not say," said his 
 lordship, "that upon the evidence without the answer I 
 should not have had so much doubt, whether I ought not 
 to rectify the agreement upon which Stangroom relies, as to 
 take more time to consider, whether the bill should be dis- 
 missed, («^) language which seems to imply that, had the 
 evidence been satisfactory, the contract might have been 
 rectified and performed. 
 
 § 795. In a case before Knight Bruce, V. C, there was 
 an assignment by deed of a farming lease and stock for a 
 valuable consideration stated in the deed, and it was proved 
 by parol that, over and above this consideration, there was 
 a contract to pay the plaintiff £40 a year for his life, and to 
 find him during the same i^eriod a house worth £10 a year ; 
 the assignment having been carried into effect, the court 
 granted siDecific loerformance of the parol contract at the 
 suit of the annuitant :(e) the case was put on the ground of 
 an additional consideration, which may be proved by parol 
 when not inconsistent with the instrument, (/) It may be 
 observed that, where such a consideration is executory and 
 is alleged by the plaintiff, and a specific performance of it 
 obtained, the case seems to afford one instance in which a 
 plaintiff may obtain specific iDerf ormance of a contract with 
 a parol variation. 
 
 § 796. In the case of Martin v. FjcToft,(g) the plaintiff 
 alleged a written contract for a lease, and in addition a iDarol 
 term — namely, that he was to pay the defendant £200 for it 
 — and prayed siDecific performance: Parker, Y. C, refused 
 it on the ground that the plaintiff himself showed that a 
 material term in the contract had been omitted, and that 
 the specific performance of such a contract was inconsistent 
 with the Statute of Frauds. This decision was overruled 
 by the lords justices, who held a written contract to be, in 
 the absence of fraud or mistake, binding at law and in 
 equity according to its terms, although verbally a term was 
 
 id) eVes., 339. Robinson v. Page, 3 Rusa., 114, the parol 
 
 {p Clifford V Turrell, 1 Y. & C. C. C, 138; variatious to which the plaintiff by hia bill 
 
 c Kcuban V. Haiialey, 12 W. R , 932 (where offered to submit were considered by the 
 
 a contract to grant an annuity in considera- court not to affect the plaintiff's ris^lus: the 
 
 tlon of diacomiuuance of cohabitation was defendant was allowed to eiect whether they 
 
 enforced). should be carried into effect or not. liy reason 
 
 (/) Rex V. Scammonden, 3 T R., 474. of the plaintiff's offer, and not of any original 
 
 {</) i De G. SI. & G., 785. In the case of right in the defendant.
 
 MISTAKE. 393 
 
 agreed to which has not been inserted in the document, 
 subject to this, that the defendant may call on the court to 
 be neutral, unless the plaintiff will consent to the omitted 
 term, and that the case under consideration came within 
 that rule. The term was here, however, set up not by the 
 defendant, but by the plaintiff, and the case seems, there- 
 fore, to show that the x^laintiff may allege a parol variation, 
 which, if set wp by the defendant and submitted to by the 
 plaintiff, might have been introduced into the contract as 
 specifically performed by the court. It thus seems to estab- 
 lish a very important limitation on the generality of the 
 rule, that a plaintiff can never allege such a variation. 
 
 § 797. In this state of the authorities, it may be interest- 
 ing 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, (7i) it has 
 been combated by some of its most eminent jurists. " It is 
 in effect," says Mr. Justice Story, "a declaration that parol 
 evidence shall be admissible to correct a writing as against 
 a plaintiff, but not infa.vor of a plaintiff seeking a specific 
 performance. There is, therefore, no mutuality or equality 
 in the operation of the doctrine. The ground is very clear, 
 that a court of equity ought not to enforce a contract where 
 there is a mistake, against the defendant insisting upon and 
 establishing the mistake ; for it would be inequitable and 
 unconscientious. And if the mistake is vital to the contract, 
 there is a like clear ground why equity should interfere 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 ag- 
 grieved by a mistake in an agreement have relief in aU 
 cases, where he is plaintiff, as well as. where he is defend- 
 ant \ Why should not parol evidence be equally admissible 
 to establish a mistake as the foundation of relief in each 
 case ? The rules of evidence ought certainly to work equally 
 for the benefit of each party. "(/) 
 
 (h) 1 Story, Eq. Jur., § 161. (») Storr. Eq. Jur.. § IB: n.
 
 394 FRY ON SPECIFIC FERFOKMANCE OF CONTRACTS. 
 
 § 798, In delivering judgment in the case of Keisselbrack 
 V. Livingstone, (,y) Mr. Chancellor Kent held the following 
 language : " Why should not the party aggrieved by a mis- 
 take in the agreement have relief as well when he is plain- 
 tiff as when he is defendant ? It cannot make any difference 
 in the reasonableness and justice of the remedy, whether 
 the mistake were to the prejudice of the one i^arty or the 
 other. If the court be a competent 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 Avell as any 
 other agreement perfect in the first instance. It ought to 
 have the same efficacy and be entitled to the same protec- 
 tion, wdien made accurate under the decree of the court as 
 wlien made accurate hy the act of tlie parties.'''' {ky 
 
 § .799. The judicature act, 1873 (§ 24, subsection 7), re- 
 quires the high court in any cause to grant all such remedies 
 whatsoever as any of the parties thereto may appear to be 
 entitled to in respect of any and every legal and equitable 
 claim properly brought forward by them resi^ectively in 
 such cause, so that so far as possible all matters in contro- 
 versy between the said parties respectively may be com- 
 pletely and finally determined, and all multiplicity of legal 
 proceedings concerning any of such matters avoided. It is 
 submitted that under this provision the high court could 
 have no difficulty in entertaining an action for the reforma- 
 
 (j) 4 John.'s Ch. Rep., 148. (k) See per Lord Eklon in Cook v. Richards, 
 
 10 Ves., 441. 
 
 ' It has become an e.stablished nile in this country, that the plaintiff is as 
 fully entitled, in cases of this kind, to equitable relief, upon an agreement so 
 varied by parol, as the defendant. Equity will therefore correct an agreement 
 according to its true intent, when the variation is clearly established by evidence 
 aliunde, and enforce it as corrected. Rogers v. Atkinson, 1 Kellv, 13; Coot v. 
 Craig, 2 Hen. & Munf., 618; Rhode Island v. jMassachusetts,' 15 Pet., 233. 
 Gillespie v. Moon, 2 John.'s Ch., 585; Smith v. xillen, Saxton, 43; Dismukes 
 V. Terry, Walker, 197; Hendrickson v. Jones, Saxton, 563; Chamberlain v. 
 Thompson, 10 Conn., 243; Cobb v. Preston. 2 Root, 78. Saudford v. Wash- 
 burn, id., 449; Elmore v. 4-Ustin, id., 415; Wilson v. Henderson, 4 Scam., 13. 
 Shelly V. Smith, 2 A. K. Marsh., 504; Gooding v. McAllister, 9How.'sPr. Rep , 
 123. Therefore, where two tenants in common agreed to make partition, ac- 
 cording to the award of referees, executed deeds, and took possession 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. H., 385. And 
 see Coles v. Brown, 10 Paige, 535, a case decided by Walworth, chancellor. 
 See, also, Rosevelt v. Fulton, 2 Cow., 129.
 
 MISTAKE. 395 
 
 tion of a contract, and for the specific performance of such 
 reformed contract, in every case in which the Statute of 
 Frauds did not create a bar. 
 
 § 800. It may be added that tliere are cases somewhat 
 resembling specific performance, where, in the same suit, 
 the plaintiff has had an instrument rectified, and then ob- 
 tained consequential relief ; as where a bond and deposit of 
 deeds were given to secure an advance, and the ])ond, by 
 mistake, appeared to be usurious ; the plaintiff proved the 
 mistake, had the bond rectified, and was held entitled to 
 the consequential relief to wliich an ordinary obligee and 
 equitable mortgagee is entitled. (Z) In another case a client 
 entered into a contract with his solicitor for the payment of 
 a fixed sum of money in lieu of costs, and the contract con- 
 tained mistakes as to the name and rights of the client, 
 which, if construed strictly, would have excluded the so- 
 licitor from all rights under the contract. In consequence 
 of these mistakes, the solicitor, by his bill, alleged that he 
 had no remedy at law, and accordingly jirayed that the 
 contract might be rectified, and an order made for x)ayment 
 of the sum of money under the contract, as if, at the time 
 of its execution, it had expressed the intention of the par- 
 ties : the court made a decree directing the payment of the 
 money. (??^) 
 
 § 801. It may here be added that a misdescription in the 
 contract may be attributable to (1) the plaintiff alone, or 
 (2) the defendant alone, or (3) l)()th x^J^i'ties ; and in either 
 of the former cases it may be either fraudulent or innocent. 
 If it be fraudulent, the party guilty of the fraud of course 
 cannot avail himself of it in any way : if it be innocent, 
 then (1) if it be attributable to the plaintiff alone and induce 
 mistake, if falls under the head of mistake induced l)y the 
 plaintiff \{n) (2) if it be attributable to the defendant alone, 
 it conies under the head of mistake purely due to the de- 
 fendant ;(o) and lastly (3) if it be attributable to botli par- 
 ties, it falls under the head of common error or mistake.' 
 
 (0 nodgkinson v. Wyatt. 9 Beav , 566. (o) Supra, § 7-2S ct seq. 
 
 (TO) Stedman v. Colhtt, 17 Beav., 608. (p) Supra, § 749 et scq; § 781. 
 
 («) Supra, § 7-26 et seq., § 780. 
 
 ' CmitemporaneoiiH roridnfi!^ ill cafes of miHtdke in uritten c^mtrnrt.'] Where it 
 is sought to vary a written contract by parol proof, the coiirt will take into con- 
 sideration aots done under the agreement, and also examine contemporaneous
 
 396 FRY ox SPECIFIC perfor:mance of coxtracts. 
 
 ■writings betweeu the parties if they were written witliin a reasonable time, and 
 relate to the same subject matter! AVinnipissesgee Maniif. Co. v. Perle}^ 46 
 N. H., 83. 
 
 Wuiiier of written contract by parol jn-oof.] Parol evidence may be introduced 
 to .show that an executory contract, which has been reduced to writing, but not 
 under seal, has been discharged, abandoned or waived. But where the agree- 
 ment to rescind is established by parol proof only, the evidence must be very 
 clear of the intention to change tlie written contract. Laner v. Lee, 42 Pa. St., 
 1G.5; Buel v. ]Miller, 4 N. ll.,"l!)6; Goucher v. Martin, 9 AVatts, 106; Bottsford 
 v. Buer, 2 John.'s Ch., 405; Buckhouse v. Crosby, 2 Eq. Cas. Ab., 32; Boyce 
 v. 3IcCulloek, 3 Watts & Serg., 429; Tolson v. Tolson, 10 Mo., 736; Bowser v. 
 Craveuer, 56 Pa. St., 132. 
 
 Midake in aioard; correction.'] Where there is clearly a mistake in an award, 
 a court of e(iuit}^ will correct it. Kerr on Fraud and 31is., 44G, 448; Bunpass 
 V. Webb, 4 Porter, 65; Wheatly v. Wartin, 6 Leigh., 62; Ryan v. Blunt, 1 Dev. 
 Eq., 382; Pleasant v. Ross, 1 Wash. (Va.), 156. "An error'in judgment on the 
 merits will not be corrected however. Head v. Muir, 3 Rand , 122; Van Court- 
 land V. Lnderhill, 17 John., 405; Cromwell v. Owings. G Har. & John., 10; 
 Radcliffe v. AVightman, 1 McCord's Ch., 408; Rudd v. Jones, 4 Dana, 229; 
 Hurst V. Hurst, 2 Wash. C C, 127; Burchell v. Marsh, 17 How., 344; Boston 
 AVater Power Co. v. Gray, 6 Met., 131. 
 
 Settlement of controversies ; mistake as to the laic.'] Where a compromise is 
 entered into to avoid or terminate a litigation, both parties having the same 
 means of knowledge, and there is neither fraud, misrepresentation or undue 
 influence practiced — held, that a mistake as to the law is no reason for setting 
 aside such compromise. The rule is the same where, in fact, only one of the 
 parties has a valid claim, if the parties themselves considered it doubtful. 
 Gordon v. Gordon, 3 Swanst., 463; Lawton v. Campion. 18 Beav., 87; Stewart 
 v. Stewart. G CI. A: Fin., 9u9; Brooke v. Lord Morton, 2 De G. J. <fc S , 373; 
 Stapleton v. Stapletou, 1 Atk., 2; Luck, e.c ^wrfe, 4 De G. M. & G., 356; 
 Wheeler v. Smith, 9 How., 55. But the rule is reversed in a case where a 
 party, having no knowledge of a well-settled principle of law, is imposed upon, 
 and made to surrender his property under the pretense that a compromise will 
 be affected. Naylor v. AVinch, 1 Sim. & Ster., 555; Jones v. Munroe, 32 Ga., 
 181. 
 
 Mistake wliich has reference to both tJie law and the facts.] In such a case, 
 equity will afford relief, as it forms an exception to the rule. A party reposing 
 confidence in his coimsel gave his note for more than he was legallj- bound to 
 pay; this was done through a mistake of the counsel. Held, that equity would 
 relieve him. Fitzgerald v. Peck, 4 Litt., 125; Gross v. Leber, 47 Pa. St., 520. 
 
 Mistake as to matters of fact.] In such case, party complaining must not be 
 in fault, and must be reasonablj- diligent. Leake on Contracts, 182; Jenks v. 
 Fritz, 7 AA^atts & Sere., 201; Ketchum v. Catlin, 21 A't., 191; Duke of Beau- 
 fort V. Neeld, 12 CLi' Fin., 248, 286; Merchants' B'k v. Mclntyre, 2 Sandf., 
 431; AAlld v. Hillis, 18 L.J. Ch., 170; Jouzin v. Foulmin, 9 Ala., 662; AVarner 
 V. Daniels, 1 Woodb. & Minot, 90; AVestern R. R. Co. v. Babcock, 6 Mete, 
 346; Copehart v. Moon, 3 Jones' Eq., 178; Lenty v. Hillas, 2 De G. & J., 110; 
 Laub V. Harris, 8 Ga., 546; Daniel v. Mitchell, 1 Story, 172; Person v. Sanger, 
 1 Woodb. & Minot, 138; Hill v. Bush, 19 Ark., 522; Dimon v. Providence R. 
 R. Co., 5 R. I., 130: Taylor v. Fleet, 4 Barb., 95; Pennv v. Martin, 4 John.'s 
 Ch., 566; Kite v. Luupkin, 40 Ga., 506; Cu.stard v. Custard, T-' Tex., 49; Wood 
 V. Patterson, 4 Md.'s Ch., 335; Peterson v. Grover, 20 Me., 363; Upham v. 
 Hamill, 11 R. L, 5G5. 
 
 Equity icill reform a contract in order that it shall express the reed intent of the 
 parties. ] AVhen the phraseology of the contract does not express the true in- 
 tention of the .parties, specific performance will be refused; a court of equity 
 will carry out the real intention of the parties. James v. State Bank, 17 Ala., 
 69; Mitchel v. Nicholson, 8 Yerg., 194; Quick v. Stuyvesant, 2 Paige's Ch.. 
 84; ;Mechanics' Bank v. Lynn, 1 Pet., 376; King v. Hamilton, 4 id., 311 ; Brad- 
 bury v. AVhite, 4 Me., 391; Clopton v. Martin, 11 Ala., 187; Frisby v. Ballance, 
 5 111. (4 Scam.), 287; Dulamy v. Rogers 50 Md., 524; Hunt v. Freeman, 1 
 Ohio, 490; Langdon v. Keith, 9 Yt., 299; Fairstone v. De Camp, 2 C. E. Green,
 
 MISTAKE. 397 
 
 317; Webster v. Harris, 16 Ohio, 490; Rings v. A.sliworth. 3 Iowa, 452; Mosely 
 V. Wall, 28 Miss., 31 ; Leavitt v. Palmer, 3 N. Y., 19; McElderry v. Shirley, 2 
 Md., 25; Cummings v. Steele, 54 Miss., 647; Smith v. Jordan, 13 Miuu., :JG4. 
 
 Mistake cts to the subject matter of the contract.] In a case where, at the time 
 the agreement is entered into, there is a mutual mistake in relation to the sub- 
 ject matter, such contract will not be enforced in e(iuity. Either party may 
 apply to have it rescinded. Daniel v. 3Iitchell, 1 Storv", 173; Ledger v. Bou- 
 naflfe, 2 Barb.. 475; Suell v. Mitchell, Go ]Me., 48; Miles v. Stevens.' 3 Pa. St., 
 21; Quick v. Fulton, 3 Gratt., 193; Pitcher v. Ilennesy, 48 N. Y . 41.5. Lord 
 Thurlow says in Calverly v. Williams, 1 Yes., 210: "No doubt if one party 
 thought he has purchased to/Kf _/f<Z6', and the other party thought he has not 
 sold, that is a ground to set aside the contract that neither party may be dam- 
 aged. Because it is impossible to say, one shall be forced to give that price for 
 part only, which he intended to give for the whole; or that the other shall be 
 obliged to sell the whole for what he intended to be the price of part only." 
 See, also, Hitckock v. Giddins, 4 Price, 135. 
 
 Mistake in reducind uoreement to icritinr/.] Where the contract is correctly 
 understood by both parties, but in reducing it to writing an error is made, such 
 writing will, in an equitable action, be made to conform to the true agreement; 
 it will not be rescinded. Wake v. Hauoff, 1 H. 6c C, 2o2; Barrow v. IJarrow, 
 18 Beav., 519; Scofield v. Lockwood, 32 id., 430; Desell v. Casey, 3 Dessau. 's 
 Eq., 84; Leonard v. Austin, 2 How. (Miss.), 888; Ashurst v. Mill, 7 Hare, 502; 
 Druiff V. Parker, L. R., 5 Eq., 137; Murray v. Parker, 16 Beav., 308; Malms- 
 bury V. Malmsbury, 31 id., 407; Reade v. Armstrong, 7 Ired.'s Ch., 375; Wash- 
 burn V. Menell, 1 Day, 139; McMillen v. McMillen, 7 Mou., 560; Kej-ton v. 
 Bradford, 5 Leigh, 38; Brown v. Bonner, 8 id., 1; Finlev v. Lvou, G Cranch, 
 238; Scott V. Duncan, 1 Dev.'s Eq., 403; Goodsell v. Field. 1.5 Yt., 448; Lar- 
 kins v. Biddle, 2 Ala., 252; Xewcomer v. Kline, 11 Gill, ct Johns., 457; Col- 
 lier v. Lanier, 1 Kelly, 238; Alexander v. Xewton, 2 Gratt., 2UG; Stedwell v. 
 Anderson, 21 Conn., 139; Manz v. Beekman Iron Co., 9 Paige's Ch., 188; 
 Clump's App., 65 Pa. St., 476; Pickett v. Merchants' Nat. B'k,'"32 Ark.. 34G. 
 In Rogers v. Odel, 36 Mich., 411, Campbell, J., said : " It requires very strong 
 equities to induce a court to refuse to enforce a written contract, even where a 
 mistake is alleged to have been made in drawing it up." It is not enough that 
 one of the parties to an agreement misunderstood its terms; the dilTerenee be- 
 tween the real agreement and the written contract must be understood: in other 
 words, where a party seeks to reform a written instrument, he must show that 
 a material stipulation was inserted or omitted contrary to the material intention 
 of both parties. Nevins v. Dunlap, 33 X. Y., G76; Lyman v. Ins. Co., 17 
 Johns., 373; Lanair v. Wvmau, 3 Kob., 147; Wemple v. Stewart, 22 Barb., 
 154; Peunell v. Wilson, 2' Abb. Pr. (X. S), 466; Cooper v. .Alutual Fire Ins. 
 Co., 50 Pa. St., 299; Point St. Iron Works v. Simmons, 11 R. I., 406. 
 
 Mistake of the scrivener.] Sharswood, .1., said, in Huss v. 3Iorris, 63 Pa. St., 
 367: " It is the well settled-rule in this State, that the mistake of a scrivener in 
 preparing a deed or other writing, may be shown b_v parol evidence, :ind the 
 instrument reformed accordingly. It is but the exercise of the equity powers 
 in all our courts from the earliest days of the province." See, also, Winter- 
 mute V. Snyder, 2 Green's Ch., 489; Wooden v. Ilaviland. 18 Conn., 101; Col- 
 lin V. Lanier, 1 Kelley, 238; McCann v. Letcher, 8 B. Mou., 320: Elmore v. 
 Austin, 2 Root, 415; Cook v. Preston, 2 Root, 78: Chapman v. Allen. Kerby, 
 399; Gower V. Sterner, 2 Whart , 75; Rogers v. Atkinson, 1 Kellv, 12; Chew 
 V. Gillespie. 56 Pa. St., 308; Wvcke v. Green, 16 Ga., 49; Cooke v. Husbands, 
 11 Md.. 492; McDonald v. Starkie, 42 111., 442; Murphy v. Raney, 45 Cal., 78; 
 Pugh V. Chesseldine, 11 Ohio, 1U9. The Xew York Court of Appeals sjiid, in 
 De Peyster v. Hasbrouck. 1 Kernan, 582: " It is unnecessary to refer to cises 
 to establish the familiar doctrine that where, through mistake or fnuul, a con- 
 tract or conveyance fails to express the actual agreement of the parties, it will 
 be reformed by a court of equity so as to correspond with the actual agreement." 
 
 Slight parol proof of mistake -^iW not be sufficient to enal)le a party to evade 
 his written contract: in such a case, great attention will be paid to what is 
 stated by the other partv to the instrument. Andrews v. Essex Ins., 3 Mason, 
 6; Kerr on Fraud and Mis., 416; Philpott v. Elliott, 4 Md. Ch., 273; Bailey v.
 
 398 FRY ON SPECIFIC PERFORMANCE OF CONTRACTS. 
 
 Bailey, 8 Humph., 2:J0; Harrington v. Harrington, 2 How. (Mi.ss.), 721; Hall 
 V. Claggett, 2 :\Icl.".s Cli., 51; Perry v. Pierson, 1 Humph., 431; Adams v. Rob- 
 ertsonri? 111., 45; Dmaut v. Bacot, 15 N. J. Eq., 411. 
 
 Rule in the United States.] It may now be said to be the well-settled rule in 
 this country that, in a case where a party plaintiff would be entitled to main- 
 tain an action that a written agreement be reformed, he could introduce parol 
 evidence of mistake on a bill I'or specific performance. Keisselbrack v. Liv- 
 ingston, 4 Johu.'s Ch., 144: Philpott v. Elliott, 4 Md. Ch., 273; Coles v. 
 Brown, 10 Paige's Ch., .535; Lyman v. United Ins. Co., 17 John., 377: Gouver- 
 neur v.' Titus, 1 Edw. Ch., 477; Bellows v. Stone, 14 N. H., 175: Beardsley v. 
 Knight. 10 Vt., 185; Wooden v. Haviland, 18 Conn., 101; "White v. Port 
 Huron R. R. Co., 13 Mich., 356. In some of the States, however, the rule is 
 modified with the qualification that in cases where the contract is within the 
 Statute of Frauds, while parol evidence is admissible on the part of the plain- 
 tiff to restrict or even modify a written instrument, yet it cannot be received 
 to enlarsre or extend its powers. Glass v. Hulbert, 102 Mass., 24; Thomas v. 
 McCorruick, 9 Dana, 108; Elder v. Elder, 10 Me., 80; Whittier v. Van Schaick, 
 5 Oregon, 113; Osboru v. Phelps, 19 Conn., 62. 
 
 Rule as to relief from mistake whether parti/ plaintiff or defendant '\ Kent, Ch., 
 says, in Keisselbrack v. Livingston, 4 Johu.'s Ch., 144: "Why could not the 
 party aggrieved by a mistake in an agreement, have relief as well when he is a 
 plaintilf as when he is defendant V It cannot make any difference in the 
 reasonableness or justice of the remedy, whether the mistake were to the preju- 
 dice of one party or the other. If the court be a competent jurisdiction to 
 correct such a mistake (and that is a point understood and settled), the agree- 
 ment 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 efficacy, and be entitled to the same protection when 
 made accurate under the decree of the court, as when made accurate by the 
 act of the parties." On this subject the following language is u.sed in Story's 
 Eq Jur., § IGl (note): " It is, in effect, 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 mutualitj' or 
 equality in the operation of the doctrine. The ground is very clear that a 
 court of equity ought not to enforce a contract, where there is a mistake, 
 against the defendimt insisting upon and establishing, for it would be inequita- 
 ble and unconscientious. And if the mistake is vital to the contract, there is a 
 like clear ground why equity should interfere 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 evidence be equally admissible to establish mistake as the foundation of 
 relief in each case ? The rules ought certainly to work equally for the benefit 
 of each party. It may be added that if the doctrine be founded upon the mi- 
 propriety of admitting parol evidence to contradict a written agreement, that 
 rule is not more broken in upon by the admission of it for the pfaintiff, than it 
 is by the admission of it for the defendant. If the doctrine had been confined 
 to cases arising under the Statute of Frauds, it would, if not more intelligible, 
 at least have been less inconvenient in practice. But it does not appear to have 
 been thus restricted, although the cases in which it has been principally relied 
 on, have been of that description. It will often be quite as unconscientious for 
 a defendant to shelter himself under a defense of this sort, against a plaintiff 
 seeking the specific performance of a contract and the correction of a mistake, 
 as it will be to enforce a contract against a defendant which embodies a mis- 
 take to his prejudice."
 
 INCAPACITY TO PERFORM CONTRACT. 399 
 
 CHAPTER XVI. 
 
 OF THE INCAPACITY OF THE COURT TO PERFORM PART OF 
 THE CONTRACT. 
 
 § 803. The court Avill not, as a general rule, compel spe- 
 cific performance of a contract, unless it can execute the 
 whole contract ; or, as Lord Eomilly, M. R., expressed it : 
 "This court cannot specifically perform the contract piece- 
 meal, but if must be performed in its entirety if performed 
 at all. "(a) It often, therefore, becomes important to inquire 
 whether a contract is entire or divisible, or, in other words, 
 what is the whole contract which must be executed ; and it 
 is proposed in the present chapter, first, to inquire what 
 contracts are divisible ; secondly, to illustrate the general 
 doctrine of the court above stated ; and, thirdly, to consider 
 the exceptions or apparent exceptions to the rule. 
 
 § 803. 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 Avhicli 
 it is concluded : but some general rules may be gathered 
 from the cases. 
 
 § 804. A contract for the sale of property in one lot will 
 generally be considered indivisible. Thus, in a case where 
 two undivided seventh shares of land were sold in one lot, 
 the court refused to enforce specific performance where a 
 good title could be made to one-seventh only :{b) and the 
 purchaser of the entirety will, of course, not be compelled 
 to take six undivided seventh parts of the estate, (c) And 
 so in a case, where two persons were owners of an estate in 
 undivided moieties, and the plaintiff sought to enforce an 
 alleged contract by them to lease the coals under it, but 
 could not prove any such contract against one of the own- 
 ers, one ground on which the bill was dismissed against the 
 other owner also was that he had never contracted to lease 
 
 (a) Merchants' Trading Co. v. Banner, L. S. C. (same note), Roffey v. Shollcross, i 
 
 R. 12 Eq , -25; ef. per Turner, L. J., in Kernot Mad., 2-27. 
 
 V. Potter, 3 De G. F. & J., 450. (c) Dalby v. Pullen, 3 Sim., 29. 
 
 (&) Roffey V. Shatcross, 2 Bro. C. C, IIS n.;
 
 400 FKY ON SPECIFIC PEKFOKMANCE OF CONTRACTS. 
 
 one share alone. If he had held himself out and contracted 
 as the owner of the whole, then the case would have been 
 different. (fZ)' 
 
 § 805. But where properties are of tw^o descriptions — as, 
 for example, a ship and the freight — the fact that they are 
 both included in one instrument, and dealt with for one 
 entire sum, does not seem conclusively to render the con- 
 tract indivisible, (e)"" 
 
 (d) Viifie V. Griffith, 1 De G. M. & G., 80, 85. (<) Mestaer v. Gillespie, 11 Ves., 621, 629. 
 
 ' 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 1,022| acres," for which the 
 vendee was to pay $25,568.75, which was just twenty-five dollars per acre for 
 that quantity, Ava's 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 100 acres, for 
 $2,00U, will be considered as importing a sale by the acre, where it appears that 
 the vendee refused to take it without a survey. In this case the vendor acqui- 
 esced in the survey, and an excess of acres having been found, the vendee was 
 held liable for such excess at the rate of twenty dollars per acre. Clark v. 
 Baker, 5 Mete, 452, a case decided at law by Hubbard, J., furnishes an excel- 
 lent 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. $1,200 "on account of corn per schooner." The schooner was 
 hauled to A.'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 receive 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 $1,067, and A. sued B. in an action for money had and received, to recover 
 back the difference between that sum and the $1,200. 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 recover back the money advanced, or might have retained an action 
 on the warranty. "Was there one bargain for the whole cargo," says Hub- 
 bard, J., "or was there two distinct contracts for the yellow and white corn, 
 or was there a separate and independent bargain for each bushel of corn con- 
 tracted 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 2,000 or 3,000 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, by 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 1,405 bushels 
 that were retained, consisted of a part of each. So that the plaintiff, to sup- 
 port 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 
 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. 
 
 ' But, as a general rule, if the consideration to be paid is single and entire,
 
 INCAPACITY TO PERFOEM CONTRACT. 401 
 
 § 806. After some vacillation in the older cases, (/) it has 
 Tbeen decided at common law, that where property is sold in 
 distinct lots, there is a separate contract for each lot,(p') 
 each buyer having a complete right of action after he is de- 
 €lared the purchaser of each lot. {h) And in equity the same 
 is prima facie the case, so that, in the absence of special 
 circumstances, a vendor is entitled to compel the purchaser 
 of two lots to complete his purchase of the one, though he 
 may fail in making out a title to the other. (/)' But where, 
 
 (/) See the cases reviewed by Lord Broug- Lord Dormer, 4 B. & Ad., 77; per Coleridge, 
 ham in Casamajor v. Strode, 2 My. & K., 724; J., in Seaton v. Booth, 4 A. & E., 536. 
 Chambers v. Griffiths, 1 Esp , 150, seems to be Qi) Emraerson v. Heelis, 2 Taunt., 38, 45. 
 overruled. (i) Lewin v. Guest, 1 Russ., 325. See, also, 
 
 (fir) James v. Shore, 1 Stark., 426; Roots v. Buckmaster v. Harrop, 7 Ves , 341; S. C, 13 
 
 id. , 456. 
 
 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 off for $17, which he paid at the time. He then received the 
 cow, and afterwards 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, without rescinding 
 the whole contract, and that this could not be done without returning the cow. 
 And this objection was sustained by the court. 
 
 1 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, and, 
 not receiving others, may recover back the price paid for them. Where a num- 
 ber 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 conveyance, 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., 162. Johnson v. John- 
 son is this : In that case the plaintiff had purchased, from the same persons, 
 two parcels of real estate, the one for £700, the other for £300, 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 £300, at the same time refusing to give 
 . up the parcel of land for which £70(t had been paid. And the court held that 
 he was entitled to recover. Lord Alvanley, 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 consideration 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 in- 
 volved in this case, it would be a question for a court of equity. If the ques- 
 tion were how far the particular \y.\/ . . f vhich 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 retain all of which the title 
 was good, and recover a proportionate part of the purchase- money for the rest. 
 Possibly the part which he retained might not have been soul, unless ths other 
 part had been taken at the same time; and ought not to be valued m proporUon 
 to its extent, but according to the various circumstances connected with it. :But 
 
 26
 
 402 FlIY ON SPECIFIC PERFORMANCE OF CONTRACTS. 
 
 from the nature of the contract, or the property that is the 
 subject of it, or upon matters known to both parties, one of 
 them can prove tliat the one transaction was dependent on 
 the other, the two form one contract, although there may be 
 no express statement to that effect, (y) And the parties by 
 their subsequent dealing may convert two or more distinct 
 contracts into an entire one, as by entering into one contract 
 for the sale of the several subject matters at one aggregate 
 price. (^) Thus where A. purchased by auction three lots of 
 
 (j) Casamajor v. Strode, 2 My. & K., 722; Cox, 273; and at common law, Gibson v. 
 Poole V. Shergold, 2 Bro. C. C, 118; S. C, 1 Spurrier, Peake, Add. C 49. 
 
 (k) Dykes v. Blake, 4 Bing. (N. C), 463. 
 
 a court of equity may inquire into all the circumstances, and may ascertain 
 bow far one part of the bargain formed a material ground for the rest, and may 
 award a compensation 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 bargained for at the same time, we must consider the 
 bargain as consisting of two distinct contracts; and that the one part was sold 
 for £800, and the other for £700." Morton, J., then continued: "Had the 
 plaintiff bid off 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 assumpsit to recover compensation for services rendered by the plain- 
 tiff to the defendant as an auctioneer, in selling seventy-six lots of wood. The 
 plaintiff 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 plaintiff's claim for com- 
 pensation 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, therefore, 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 prop- 
 erty consists of several agreements, independent of each other, and the vendor 
 fulfills the agreement to be the first performed, but violates all the others. 
 Qufere, can he, after he has violated all other agreements, recover the price of 
 the property delivered under the first agreement ? McKnight v. Dunlop, 4 
 Barb., 36. Woods v. Russell. 5 B. <k Aid., 943, 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 the light plank, and the remainder when the ship was 
 launched. It was held that there arose a separate contract for each installment, 
 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 not entire, 
 and the contractor may recover a ratable portion of the contract price accord- 
 ing to the amount of work done, whenever the contract may be abandoned. 
 See Cunningham v. Morrell, 10 John R., 202; Tompkins v. Elliott, 5 Wend., 
 496; Goodwm v. Holbrook, 4 id., 337; Dox v. Day, 3 id., 3o6; Baldwin v. 
 Mann, 2 id., 399; Sage v. Ranney, id., 532; Gould v. Allen, 1 id., 182; Read v. 
 Moore, 19 John. R., 237; Rol) v. 3Iontgomery, 20 id., 15; Gazely v. Price, 16 
 id., 269; Ilaiden v. Kfeitsinger, 17 id., 293.
 
 IXCAPACITY TO PERFORM CONTRACT. 403 
 
 100 sliares each, and after tlie sale received the shares, paid 
 the price, and received a bill of parcels describing the trans- 
 action as a sale of 300 shares : it was held, that as each lot 
 was knocked down there was 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. (Z) 
 
 § 807. The mere fact of different prices being fixed for 
 different parts of the subject matter of the contract, will not 
 necessarily make it divisible : so where a person went into 
 a shop and bought various goods at distinct prices for each, 
 the contract was still held to be single, (m) And where one 
 price was fixed for the land, and another (a valuation 
 price)(?i) for the timber, and the vendor could not show a 
 title to all the timber by reason of the copyhold tenure of 
 parts of the estate, which were not distinguishable from the 
 freehold ; the court held that that was only 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 the timber ; and, as the conditions of 
 sale provided for the copyhold tenure as to the lands, the 
 contract was enforced as a Avhole.(o) • 
 
 § 808. In a case in which, by the same contract, A. con- 
 tracted to sell an estate to B., and B. contracted to sell 
 another estate to A., the contracts in resx)ect of the two 
 estates were held to be independent of one another :(^) 
 whilst in a case of cross contracts for the sale of goods, the 
 court of exchequer .held the contracts deiDendent.(^) 
 
 § 809. Where the contract itself contains a provision for 
 its j)iecemeal execution, the contract is treated as divisible. 
 So in a building contract, where the landowner agreed to 
 grant sex^arate leases of separate plots as and when the 
 buildings on each plot reached a certain stage, it was held 
 that the contract might be performed in separate parts, and 
 that it was no answer to the builder or his assign who sued 
 for its performance as regards one plot to show that it was 
 not performed by the builder as regards other plots, (r) 
 
 Q) Franiilyn v. Lamonci, 4 C. B., 637. (o) Crosse v. Lawrence, 9 Ha., 462; Crosse 
 
 (m) Baldey v. Parker, 2 B. & C, 37- V. Jieene, 9 Ha., 469. 
 
 (u) Cf Kichardson v. Smith, L. R. 5 Ch., {p) Croome v. Lediarcl, 2 My. & K., 251. 
 64S, and supra, § 347. (?) Atkinson v. Smitb, 14 M. & W., 695. 
 
 (?) Wilkinson v. Clements, L. R. 8 Ch., 96.
 
 404 VllY ox SPECIFIC PERFORMANCE OF CONTRACTS. 
 
 § 810. In like manner, where there are two contempo- 
 raneous contracts which the parties intended to be sepa- 
 rated, the court will treat them as separate, and will not 
 allow an objection to the one contract to bar the perform- 
 ance of the other. (5) 
 
 §811. It is, as we have already seen, a principle of the 
 court, that it will not compel specific performance of exe- 
 cutory contracts unless it can at the time execute the whole 
 contract on both sides.' On this principle, where there was 
 a contract between two neighboring landholders to change 
 the course of a stream, and one of the terms of the contract 
 was that, if any damage should accrue 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 arbitrators ; this 
 beino- a thing which the court could not do in prcesentl, and 
 the court holding that the parties entering into a covenant 
 to do it would not be a specific performance of the contract, 
 the bill was dismissed, as the whole contract could not be 
 carried into effect. (^^) And where the owner of a patented 
 invention entered into a contract with certain persons, who 
 with himself were to form a company, to the promotion of 
 
 (s) Odessa Tramways Co. v. Mendel, 8 Ch. (0 Gervais v. Edwards, 2 Dr. & War., 80. 
 D., 235. " 
 
 1 Trust created under a contract] Where a tru.st lias been created under a 
 contract, which is sought to be enforced, a party cannot claim the benefit of 
 such portions as are to his advantage, and repudiate the rest. Pajol v. McKin- 
 lay, 42 Cal., 559; see, also, Kraft v. De Forest, 53 id., (356. 
 
 Contract as to performance of future acts, icMch the court cannot com])el.'] In 
 such case specific performance will be refused. The chancellor said in Gervais 
 V. Edwards, 2 Dr. & W., 80: "As far as the merits of the case go, I would 
 decree the specific performance of the contract; but I do not see how it is pos- 
 sible. If I do execute it at all, I must execute it in toto ; and how can I exe- 
 cute it prospectively ? The court acts only on the principle of executing it in 
 speck, and in the very terms in which it has been made. Therefore, when you 
 come' to the specific execution of a contract containing many particulars, you 
 must see that it is possible to execute it effectively. The court cannot say that 
 when an event arises hereafter, it will then execute it. In the case of a decree 
 for the execution of a contract for the sale of timber, it is no objection that it 
 is to be cut at intervals. That is certain, and there mere delay will not pre- 
 vent the court from executing it. There the agreement is executed in specie. 
 The court decrees to one the very timber contracted for; to the. other, ths very 
 price. If I am callpd nn now to execute the agreement, I can only specifically 
 execute a portion, whereas I am bound to execute all. No precedent has been 
 cited; but, indeed, none is necessary. It is a question of principle; and I am 
 clearly of opinion that if I give a decree now, it would not be a specific execu- 
 tion of the contract, but only a declaration that there ought to be a specific 
 execution of it hereafter. I must therefore leave the phuntiff to his remedy at 
 law." See, also, Fallon v. llailroad Co,, 1 Dillon, 121; Sfocker v. Wedder- 
 burn, 3 K. & J.. 393.
 
 INCAPACITY TO PERFORM CONTRACT. 405 
 
 which he was to give his services for two years, and he was 
 to do his best to improve the invention for the benefit of tlie 
 company, and on the refusal of these persons to go forward 
 with the company, the patentee filed a bill for the specific 
 performance of the contract : 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 effect by directing the parties to execute a 
 deed, for the contract was to do certain acts, and not to 
 execute covenants to do them. (2^) 
 
 § 8l!2. So, again, where a contract was entered into by a 
 shipbuilder to alter a ship, and it was agreed tliat in default 
 of performance by him the owners might enter and make 
 the alterations : default was made by the shipbuilder, where- 
 uj)on the owners filed a bill to enforce their right to enter 
 and make the alterations : but on demurrer the bill was dis- 
 missed. (?)) 
 
 § 813. So wherever 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, spe- 
 cific performance of the contract will be refused. (-w) 
 
 § 814. 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, this being a con- 
 tract which in its entirety the court could not enforce, the 
 court refused to enforce it in part, by refusing the represen- 
 tatives of a deceased partner a decree for the dissolution of 
 the partnership and the sale of the partnership property. (a;) 
 And in another case the court refused to separate the parts 
 of an award which were capable of specific performance 
 from those which were not. (2/) 
 
 § 815. It is, as will have been already gathered, imma- 
 terial whether the things which the court cannot specifically 
 enforce are to be done by the plaintiff or by the defendant. 
 
 (M) Stocker v. Wedderburn, 3 K. & J.. 393. (x) Downs v. Collins, 6 Ha.. 418. 
 
 (r) Merchants' Trading Co. v. BaMner, L. iy) Nickels v. Hancock, 7 De (i. M. & G., 
 
 R. 12 Eq., 18. 300. See, alio, VaneittArt v. VansUtart, 4 K. 
 
 (M>) Per Wijtram, V. C, in Warinj? v. Man- & J , 62, aflirmed 2 De G & J., 249. 
 Chester, Sheffield and Lincolnshire Railway 
 Co., 7 Ha , 493.
 
 400 V\l\ ox SPECIFIC PERFOKMAXCE OF CONTRACTS. 
 
 So wliere tlie clefeiidant ngreed to grant a lease of a coal 
 mine to tlie plaintiff, and the plaintiff agreed to employ the 
 defendant as manager, specific performance of the part rela- 
 tive to the lease was refused. (^) 
 
 § 816, Where the contract stipulates for future acts, but 
 is silent as to any deed to be executed to secure their per- 
 formance, the court, as we have seen, will not consider the 
 execution of such a deed any performance of the stipula- 
 tion. Other cases have arisen, where the contract contemp- 
 lates some deed or obligation. 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 de- 
 cree performance of the works, refused also to decree the 
 execution of the bond, as that would have been a piecemeal 
 performance of the contract, and the stipulations as to the 
 works were the substance of the contract, and that as to the 
 bond only incident to them. (a) 
 
 § 817. But where the contract is to do a thing, and to 
 execute a deed for that purpose, and this deed covers, so to 
 say, the whole of the contract, or the whole of so much of 
 the contract as is incapable of immediate performance, 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 time. (6) The real contract here which 
 the court enforces is a contract to execute the deed. 
 
 § 818. In Wilson v. The West Hartlepool Harbor and 
 Railway Co.,(c) the company agreed to sell to the plaintiff 
 a plot of land near their line, and the contract contained 
 terms as to the company laying down a branch railway, and 
 as to the plaintiff using preferentially the defendants' line 
 of railway. Lord Romilly, M. R., granted specific per- 
 formance, and his decree was affirmed by the judgment of 
 Turner, L. J. , who held that the parties must have intended 
 that the user of railway which was necessarily prospective 
 should be secured by covenant. Knight Bruce, L. J., dis- 
 sented. The view of Turner, L. J., appears consonant to 
 the ordinary course of business and in furtherance of justice. 
 
 (z) Ogden v. Foasick, 4 De G. F. & J., 4-26 (6) Granville v. Bells, 18 L J. Ch., 32. 
 (o) South Wales Railway Co. v Wythes, 1 (c) 34 Beav., 187; 2 De G. J. & S., 475. 
 K. & J., 186; S. < ., 5 De G. M. & G.. 880.
 
 INCAPACITY TO PERFOKM CONTRACT. 407 
 
 § 819. The cases on marriage contracts strongly illustrate 
 tliH principle that the entire contract must be carried into 
 effect. With regard to these, it has been urged that as the 
 court interfere in behalf of those who are purchasers, or 
 considered as such by the court, but declines to aid volun- 
 teers, so when the court specifically executes a settlement, 
 its interference should be confined to limitations in favor of 
 purchasers, and not extended to volunteers. The court, 
 however, has applied the princij^le, that the whole or no 
 part of the contract shall be executed, to marriage contracts 
 as well as to other contracts. "There is no instance," said 
 Lord Hardwicke,((^?) "of decreeing a partial performance of 
 articles — the court must decree all or none ; and where some 
 parts have appeared very unreasonable, the courts have said 
 we will not do that, and, therefore, as we must decree all or 
 none, the bill has been dismissed." In a case where a hus- 
 band sued the heir of his wife, who was the settlor, on a 
 a covenant to settle land, the specific jjerformance was not 
 "restricted to his estate, but carried to a limitation to a niece 
 of the wife, who was, of course, a collateral, (e) 
 
 § 820. The cases of excei)tion, or, rather, of api^arent ex- 
 ception, to the principle in question may now be considered. 
 
 § 821. (1) It is hardly needful to repeat that the princi- 
 ple will not apply to contracts which, though the}'' may be 
 entire and single in themselves, contemplate a separate and 
 piecemeal performance of separate parts. There, in the 
 absence of other objection, the court will carry into effect 
 the intention of the parties {/) 
 
 § 822. (2) The principle in question is strictly applica- 
 ble to executory contracts. (^7) It does not apph', in terms, 
 to executed contracts. In Rigby v. Great Western Rail- 
 way Co.,(^) the company had demised the Swindon refresh- 
 ment rooms to the plaintiffs for ninety-nine years ; the lease 
 contained various covenants, one of which the plaintiffs 
 sought to enforce by injunction ; an objection was made 
 that the lease contained other covenants which the court 
 could not enforce ; and Wigram, V. C, made these observa- 
 tion :{i) "I cannot go the length of the defendant's propo- 
 
 (d) In Goring v. Nash, 3 Atk * 190. (.a) See supra, § 21. 
 
 («) Davenport v. Bishopp, 2 Y. & C. C. C, (h) 15 L. J. Ch.,'2t«5; S. C.,on appeal, 2 Ph. 
 
 451; S. C.,lPh.,693. 44. 
 
 (/) Wilkinson v. Clements, L. R. 8 Ch., 96. Ci) 15 L. J. Ch., iTl.
 
 408 FRY ON SPECIFIC PERFORMANCE OF CONTRACTS. 
 
 sition, that tlie plaintiffs are not to be protected by injunc- 
 tion, only because there are other covenants to be performed 
 by them which may be possibly broken hereafter. It would 
 be more correct to say that where the mutual rights of the 
 parties rest in covenant, each party is prima facie entitled 
 to enforce his right in equity or at law, according to the 
 nature of the covenant which may be broken. I cannot 
 doubt but that this court would, at the suit of a landlord, 
 restrain a tenant for years, under a husbandry lease, from 
 ploughing up ancient pasture, where he had bound himself 
 by covenant not to do so ; and it would be no answer to such 
 a bill for the tenant to say, that the landlord was under 
 covenant to find him rough timber for repairs, which cove- 
 nant might possibly be broken by the landlord before the 
 expiration of the lease. That is a very different case from 
 that of Gervais v. Edwards. (./) On the other hand, I am. 
 not prepared to go the length of the plaintiff's argument. 
 It would not be difficult to suppose a case in which great 
 injustice might be done by compelling a party specifically 
 to perform a particular covenant. ' ' 
 
 § 823. A similar view was enunciated and acted upon by 
 Lord Selborne in the case of Wolverhampton and AValsall 
 Railway Co. v. London and North Western Railway Co.,(/t) 
 where the plaintiffs sought an injunction on the ground of 
 the stipulations contained in a contract between the com- 
 panies sanctioned by act of Parliament. It was argued that 
 the contract contained terms, such as those providing for 
 the proper development of local traffic, which the court 
 could not perform : but the argument was repelled by the 
 lord chancellor, on the ground of the distinction between 
 injunction as a right flowing from an executed contract and 
 the specific performance of executory contracts. 
 
 § 824. A familiar illustration of this difference between 
 executory and executed contracts occurs in the case of x^art- 
 nership articles. The court will not, generally speaking, 
 enforce a contract to enter into a partnership whilst it re- 
 mains executory :(^ but, nevertheless, when the partnership 
 has been constituted, the court will by injunction enforce 
 the performance of particular terms, though it may be in- 
 
 (j) 2 Dr. & War., 80. (jL) Scott v. Rayment, L. B. 7 Eq., 112. See 
 
 (t) L. R. 16 Eq., 433. infra, § 1512.
 
 INCAPACITY TO PEEFOEM CONTEACT. 409' 
 
 competent to enforce all the terms :(m) this is the common 
 course of practice in the court. 
 
 § 825. Another familiar illustration arises on ' leases. 
 The court will restrain the breach of a covenant in a lease, 
 though it may contain other covenants which the court 
 could not j^ossibly perform. 
 
 § 826. (2) The principle in question is not to be extended 
 to all cases of legal or even equitable relief on contracts, 
 though the contracts may be executory. The fact that 
 future acts may have to be done under a contract is no bar 
 to relief grounded on a right perfect in itself, and resulting 
 from past transactions also under the contract. 
 
 § 827. Thus, where in a contract for the execution of 
 railway works the contractors, previously to their comple- 
 tion, tiled 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 
 complete, and though the court might not be able speciti- 
 cally to perform such a contract, the plaintiffs had a right, 
 perfect in itself, of wliich they had been deprived by the 
 alleged acts of the defendants, and that they were, there- 
 fore, entitled to some relief in equity. (7^.) And so, it seems, 
 that if by a partnership contract it were stipulated that ac- 
 counts should be made up half-yearly, and that one partner 
 should have a salary proportionate to the prolits to be so 
 ascertained, he miglit, from time to time, institute actions 
 to have the accounts so taken according to the contract, 
 though its other terms might not be the subject of an action 
 for specific performance, (o) 
 
 § 828. To this principle we may probably refer the case 
 of Lytton v. The Great Northern Railway Co.{p) where, 
 there being a contract by the company to make and main- 
 tain a siding so long as it should be of convenience, the 
 clause as to maintaining it was held no objection to a bill 
 for the specific performance of the contract to make it, the 
 question of repairs being a matter for inquiry when a breach 
 of that part of the contract should occur. 
 
 (m) Kemble V. Kean, 6 Slni.,333. (o) Per Wijtram, V. C, In the last-cited 
 
 (n) Waring v. Manchester, Sheffield and case, 7 Ha, 496. 
 Lincolnshire Railway Co., 7 Ha., 482. (p) 2 K. & J., 394.
 
 410 FRY ON SPECIFIC PERFORMANCE OF CONTRACTS. 
 
 § 820. (4) In the next place, it must be observed that 
 where the contract can be completely performed at the 
 .^ime, though there may be future acts dependent on it, the 
 court will l)e able to grant si^ecific performance; as, e. //., 
 a contract for the immediate sale of timber to be cut down 
 at a future time, or at intervals, and the purchase money 
 for it to be paid by instalments. (*7) The cases already 
 stated, where the court will direct the execution of a cove- 
 nant to do future acts, illustrate the same principle, (r) 
 
 § 830. (5) It seems very questionable whether the prin- 
 ciple that the court will not perform part of a contract if it 
 cannot perform all, ever applied to cases where the impossi- 
 bility of carrying a part into execution was due to the de- 
 fault of the defendant who set up this defense.' To permit 
 it to jDrevail, would be counter to the maxim that no man 
 shall take advantage of his own wrong. In the case of the 
 defendant 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 performance at the suit of 
 the purchaser. (5) In one case, there was a contract between 
 three railway companies having reference to a purchase and 
 an amalgamation : for the purchase no further parliamen- 
 tary powers were needed, but for the amalgamation they 
 were, and, as regards one of the companies, they could not 
 
 (q) Per Lord St. Leonards in Gervais v. (>•) See supra. §§ 816, 817. 
 Edwards, 2 Dr. & War. , 83. (s) Supra, § 453 , and see infra, § 1222 et aeq. 
 
 ■ In an action to compel specific performance for tlie convej^ance of land, 
 the defendant showed that performance was impossible, for the reason that 
 title had never been in him. The case was referred against the defendant's ob- 
 jection. Held, that the matter should have been disposed of at the circuit ; 
 that defendant had a right to have his damages determined by a jury, and 
 could not be deprived of it. Stevenson v. Baxter, 37 Barb., 18. Where a pur- 
 chaser of land has been evicted for want of title, there l)eing no fraud in the 
 transaction, he has no remedy in equity; he is left to the covenants in his deed. 
 ]\Iiddlekauff v. Barrick, 4 Gill, 290. The holder of a second mortgage agreed 
 that if he bought in his own name, or otherwise, at the sale under the fore- 
 closure of his mortgage, he would reduce the principal sum secured by the first 
 mortgage by paying on account of the same $3,000, and also the arrears of 
 interest: the holder of the latter agreed to waive his right to foreclose for the 
 whole principal and interest. Held, that under such an agreement, the plain- 
 tiff could not recover at law anything beyond nominal damages without show- 
 ing that his mortgage had been foreclosed for the whole principal, and that the 
 mortgaged premises did not bring suflBcient to pay the mortgage. Livingston 
 v. Painter, 19 Abb. Pr., 28; S. C, 28 How., 517; S. C, 43 Barb.. 270. In 
 Greene v. Westche.shire R. R. Co., L. R., 13 Eq., 44, it was held that specific 
 performanfce may be decreed of an agreement, notwithstanding the plaintiff 
 -has a covenant remedy in damages, o"r has entered into a negotiation for a 
 money consideration which has failed.
 
 INCAPACITY TO PERFORM CONTRACT. 411 
 
 be obtained, because a majority of its shareholders were 
 adverse to the scheme : in a suit relating to the purchase 
 the last-mentioned compa'ny set up as a defense the imi)os- 
 sibility of carrying into effect the contract as to the amal- 
 gamation ; but Lord Cottenham overruled the demurrer, 
 and doubted whether the defendant company could say to 
 the plaintiffs that they should not have the benefit of such 
 part of the contract as the defendants could perform, be- 
 cause tliey could not, without an act of Parliament, perform 
 the whole, and they declined applying to Parliament to give 
 them the necessary X30wers.(^) 
 
 § 831. But whatever difficulties may have previously ex- 
 isted on this point, seem now to be removed by Lord Cairns' 
 act (21 and 22 Yict., c. 27), and it may, it is conceived, be 
 laid down, that wherever the thing which the court cannot 
 enforce is a condition inserted for the plaintiff's benefit in 
 respect of which the defendant is in default, and where the 
 court Avould, before the XJ^ssiug of the act, have had juris- 
 diction to enforce the contract on the jjlaintiff's waiver of 
 tlie condition for his benefit, there the court can now grant 
 specific performance of the contract so far as it is enforcea- 
 ble specifically, and direct the defendant to pay damages 
 for his non-performance of the condition which the court 
 cannot, specifically enforce. Thus, in Soames v. Edge,(?/.) 
 the plaintiff had agreed to grant a lease to the defendant so 
 soon as he should have built a new house on the land ; and 
 the defendant agreed to accept the lease when required and 
 to build the new house : the i)laintiff filed his bill praying 
 specific performance of the contract to build and take the 
 lease, also for damages, either in addition to or substitution 
 for such relief : on demurrer the defendant urged that the 
 court could not execute the contract to build ; that the lease 
 was dependent on the house being built ; that the plaintiff 
 had not waived the condition, and, consequently, that Lord 
 Cairns' act did not apply : this argument -was repelled by 
 Lord Hatherley (then a vice-chancellor), who overruled the 
 demnrrer, and held that, on the lolain tiff's waiver of the con- 
 dition, he should have had jurisdiction before the act, and 
 
 (t) Great Western Railway Co. v. Birming- Ph., 597, 605. See, also, Norris v. Jackson, 1 
 ham and Oxford Junction Railway Co., 2 J. & H, 319, particularly 328. 
 
 (M) Johns., 669. "^
 
 412 FRY OX SPECIFIC PERFORMANCE OF CONTRACTS. 
 
 that, therefore, since the act he could give relief as to part 
 by way of specific performance, and as to the rest by way 
 of damages. 
 
 § 833. The limits of this principle are well illustrated by 
 a case of Norris v. Jackson, (?)) which shortly followed the 
 case just referred to. In that case Cook, through whom the 
 defendant claimed, in 1850 agreed with the jilaintiff to grant 
 him a lease of a certain house and farm, and on or before 
 the 11th of October, 1852, to put the house into sufficient 
 repair and to erect suitable coach-houses, etc., as Norris 
 and Cook should jointly agree upon, to the intent that the 
 house and premises should be made fit for the occupation 
 of Norris and his family : and Norris agreed that upon due 
 performance by Cook of the foregoing stipulations he would 
 accept the lease. These repairs were never done : but there 
 was no allegation in the bill that Cook had evaded giving 
 his consent to any arrangements : and the plaintiff did not 
 waive but insisted on his right to have such repairs done, 
 as the court should think proper to fit the house for the 
 occupation of himself and his family. The court held that 
 this was beyond its powers : that there was no contract 
 which could be performed with respect to repairs, nor any 
 contract binding the plaintiff to take a lease till the repairs- 
 had been done. The bill was consequently dismissed on 
 demurrer. 
 
 § 833. (6) It was formerly laid down that where the 
 positive part of an executory contract could not be per- 
 formed by the court, it would not enforce the negative by 
 injunction : so that, for example, where an actor had agreed 
 to act at a certain theatre, that being a contract which the 
 court could not enforce, it refused to restrain him by injunc- 
 tion from acting elsewhere :(?«) and where there was a con- 
 tract for hiring and exclusive service during seven years, 
 and for partnership at the end of that time on such terms as- 
 should be mutually agreed on ; the contract being one which 
 the court could not perform as a whole, it refused to enforce 
 by injunction the covenant for exclusive service. (re) Again, 
 where the defendants had agreed to furnisli the plaintiffs 
 with the drawings for maps which the plaintiffs were exclu- 
 
 (t) IJ & 11., 319. See, too. 3 Giff., 396. («) Kimberley t. Jennings, 6 Sim., 340. 
 
 (w) Kemble v. Kean, 6 Sim., 333.
 
 IISrCAPACITY TO PEEFORM CONTRACT. 413 
 
 sively to sell ; the court being unable to compel the defend- 
 ants to furnish these drawings, refused an injunction to 
 restrain the defendants from themselves selling the maps.(?/) 
 
 § 834. This question was very much discussed in the 
 case of Lumley v. Wagner, (2:) where, there being an execu- 
 tory contract in part positive and in part negative, and the 
 positive part being such as the court was unable to enforce 
 specifically, it yet interfered in respect of the negative part 
 by means of injunction. In that case, the defendant entered 
 into a contract with the jDlaintiff to sing at his theatre, and 
 not to sing at any other ; and Lord St. Leonards granted an 
 injunction restraining the defendant from singing at any 
 other theatre than the plaintiff's, thougli the specific per- 
 formance of the positive part would have been certainly 
 beyond the court's power. The pirinciple was acted on in 
 some earlier cases ;((z) but in the case just cited all the 
 authorities on the subject were quoted.' 
 
 § 835. It has been thought to follow from the language 
 of some parts of the judgment in Lumley v. Wagner(&) that 
 the pirinciple of that case is not confined to cases where the 
 negative stipulation is express, but applies also to others 
 where the negation is implied. Accordingly, in one case 
 
 iy) Baldwin V. Society for Difl'using Useful (a) Dietrichaen v. Cabl)urn,2 Pli ,5-2; Great 
 
 Knowledge, 9 Sim., 393; Clarke v. Price, 2 J. Norrhern Railwa}' Co. v. Manchester, Shef- 
 
 \Vil8., 157. field and Lincolnshire llailwav Co., ^ De (j. 
 
 (2) 1 De G. M. & G., 604. See, too, Catt v. & Sm , 138 See, also. Hills v. Croll, 1 De G. 
 
 Tourle, L. R. 4 Ch.,654 u^'here the court con- M. & G., 627 n.; S. C, 2 Ph., 60; Daggett v. 
 
 sidered that the covenant in question, though Rynian, 16 W. K., 302. 
 
 intermspositive, was in substance negative). (b) 1 De G. M. & G , 604. 
 
 ' 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 
 specific performance will alone answer the complete ends of justice, yet equity 
 will only interfere where the question has reference to property 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 enforced. They 
 generalh'' rest upon the reasons already stated, the inadequacy of the remedy 
 at law, and the difficulty of ascertaing 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 pdrtnership that the doctrine of Morris 
 V. Coleman, 1 8 Ves. , 487, was received into this country. But it is expressly 
 decided, that ' ' where there is no partnership between the parties, and the de- 
 fendant has violated his engagement to one theatre 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 Eq. Jur., 277. 
 And it is continued by the same author, "that the court possessing no means 
 to enforce the contract, the parties will be left to their remedy at law." See 
 De Rivafinola v. Kean, 4 Paige, 264, and ante, note (2), chap 4, pt. 'd.
 
 414 FliY ON SPKCIFIC PERFORMANCE OF CONTRACTS. 
 
 where an actor liad entered into a contract to perform on 
 certain niglits at Sadler's Wells Theatre, but without any 
 stii)iil:ition tliat he would not perform elsewhere, Lord 
 Hatherl«-y (then Wood, V, C.) restrained him from acting 
 at any other i)hice than the plaintiff's theatre on the nights 
 on whicli he had agreed to act there, (c) In Fechter v, Mont- 
 gomery, (<^7) Lord Romilly, M. R,, though refusing an in- 
 junction on other grounds, does not seem to have doubted 
 the jurisdiction in a like case : and in Montague v. Flock- 
 ton, (c^) Malins, V. C, granted an injunction on a similar 
 contract by an actor after a full discussion and considera- 
 tion of the authorities. 
 
 § 830. Another class of cases in whicli the courts have 
 imjDlied a negative are suits on charter-iDarties De Mattos 
 V. (Tibson(/') was the first case where this question arose. 
 There the defendant Curry being about to purchase a ship 
 contracted by charter-party with the plaintiff to carry for 
 him a cargo of coals from Newcastle to Suez. Curry then 
 bought the ship and mortgaged it to Gribson with notice of 
 the charter-party. The bill was filed to restrain Gibson 
 from interfering with the voyage contracted for : Curry was 
 afterwards added as a defendant, and the plaintiff moved 
 for an injunction before Lord Hatherley (then Wood, V. C), 
 who refused the motion on the ground that the case was 
 not within the i)rincix)le of Lumley v. Wagner, (17) and that 
 the whole matter sounded in damages. The lord justices 
 on appeal granted an injunction. Knight Bruce, L. J., hold- 
 ing it to be the duty and witliin the power of the court to 
 prevent the commission or continuance of the breach of 
 such a contract, when, its subject being valuable, as, for 
 instance, a trading sliix) or some costh^ machine, the origi- 
 nal owner and possessor, or a person claiming under him 
 with notice, having the physical - control of the chattel, is 
 diverting it from the agreed object, that object being of im- 
 portance to the others. Turner, L. J., put his judgment 
 upon the fitness of retaining matters as they were until at 
 the hearing the important questions in the suit should be 
 
 <c) Webster V. Dillon, 3 Jur. (N. S.), 432; 5 (/) 4 De G. & .1., 27G, where the case can be 
 
 W. H.,g6r. traced througli its stages up to the appeal 
 
 (rf) 33 LJeav , 22 Si^e, too, Leavitt v AVil- from the hearing of the cause, 
 
 llaras (Jesse!, M. R.), 24 Sol. Jouru., 706. ig) 1 De G. M. & G., 61)4. 
 
 (e) L. R. 16 Eq., 189.
 
 INCAPACITY TO PERFOIiM CO>TKACT. 415 
 
 decided. The cause then came before Lord Hatheiiey (then 
 Wood, V. C), at the hearing, who, after a full argument, 
 dismissed the bill : and his decision was brought by appeal 
 before Lord Chelmsford, who held that a vessel under char- 
 ter "ought to be regarded as a chattel of peculiar value to 
 the charterer, and that although a court of equity cannot 
 comj)el a specific performance of the contract which it con- 
 tains, yet that it will restrain the employment of the vessel 
 in a different manner, whether sucli employment is ex- 
 pressly or impliedly forbidden, according to the X)i"iii<^'ipl© 
 so fully expressed in the case of Lumley v. Wagner." But 
 he affirmed the dismissal of the bill on the ground that 
 neither of the defendjwits had done anything to liinder the 
 voyage. 
 
 § 837. The case of Sevin v. Deslandes,(7^) before Lord 
 Romilly, M. R., followed De Mattos v. Gibson, (/) and there 
 an injunction was granted, both on interlocutory motion 
 and at the hearing, to restrain the defendant from doing 
 any act inconsistent with the charter-party, which did not 
 contain any express negative clauses. 
 
 § 838. It is not easy to see the limits to which the doc- 
 trine of an implied negative might be carried : for as A. and 
 not A. include the whole world, it follows that a contract 
 to sell to A. or to sing at A. must imi:)ly a negation of a sale 
 to not-A. or a singing at not-A: and if injunction is to be 
 granted where specific pei'formance niiglit be impossible, 
 the logical conclusion of the doctrine would be a great and 
 rather formidable enlargement of the jurisdiction of equity. 
 Such an enlargement of the doctrine would be contrary to 
 a dictum of Lord Cottenham, couched in the form of a 
 question, in Heathcote v. The North Staffordshire Railway 
 Co.,(^") where he asked: "If A. contract with B. to deliver 
 goods at a certain time and place, will equity interfere to 
 prevent A. from doing anything which may or can prevent 
 him from so delivering the goods V 
 
 § 839. In De Mattos v. Gibson, Lord Ilatherley (then 
 V. C), thought the implication of a negative stiijulation 
 was to be confined to cases in which " the breach of a posi- 
 tive agreement involves specific damage beyond that of the 
 
 (h) SOL. J.Ch.,457; 9 W. R.,218.JSee,too, (0 4 De G. & J., 276. 
 Le Blanch v. Granger, 35 Beav., 187. U) 2 Mac. & G., 112.
 
 416 FRY OX SPECIFIC PERFORMANCE OF CONTRACTS. 
 
 mere non-perforniance of the agreement itself "—tlie special 
 damage (in Miss Wagner's case) resulting from her singing 
 elsewhere at a rival theatre, ultra the non-performance of 
 her contract to sing at the plaintiff's theatre : and in another 
 case, the same learned judge observed that the instances in 
 which the court had found it possible to infer the negation 
 were very few and special, (A*) 
 
 § 840. In Fothergill v. Rowdand,(^) Jessel, M. R., had 
 before him a bill, based on a contract for the sale of all the 
 coal from a particular colliery for a certain period, which 
 prayed for an injunction against selling the colliery, except 
 subject to the contract, and against disposing of the coal 
 except for the purpose of the performance of the contract. 
 His lordship observed that he could not find or seize any 
 distinct line dividing the two classes of cases, that is, the 
 class in v/hich the court not being able to grant specific per- 
 formance grants an injunction, and the class in which it 
 does not grant the injunction : and he, therefore, following 
 the dictum of Lord Cottenham, allowed a demurrer. 
 
 § 841. The doctrine in Lumley v. Wagner(??i,) has been 
 criticised by Lord Selborne : and after his observations it is 
 doubtful whether the mere presence of a negative stipula- 
 tion can be relied on, if the contract is not such in its nature 
 as to be the proper subject of equitable jurisdiction. "It 
 was sought in that case, ' ' said his lordship, iii) ' ' to enlarge the 
 jurisdiction on a highly artificial and technical ground, and 
 to extend it to an ordinary case of hiring and service, wiiich 
 is not projoerly a case of specific i^erformance : the techni- 
 cal distinction being made,' that if you find the word ' not ' 
 in an agreement — 'I will not do a thing' — as well as the 
 w^ords 'I will,' even although the negative term might have 
 been implied from the positive, yet the court, refusing to 
 act on an imj)lication of the negative, will act on the ex- 
 pression of it. I can only say, that I should think it was 
 the safer and the better rule, if it should eventually be 
 adopted by this court, to look in all such cases to the sub- 
 stance and not to the form. If the substance of the agree- 
 ment is such that it would be violated by doing the thing 
 
 (fc) Peto V. Rrighton, Uckfleld and Tan- (m) 1 De G. M. & G., 604. 
 
 bridge >v'cll3 Kuilway Co , 1 tl. & M., 468,486. \>i) In ^Volverharapton and Walsall Rall- 
 
 (?) L. U. 17 K(j., 132. Distinguish Jones v. way Co. v. Loudon and North Western Rail- 
 
 Korth, L. K. 19 Eq., 426. way Co., L. R. 16 Eq., 440.
 
 INCAPACITY TO PERFORM CONTRACT. 417 
 
 sought to be prevented, then the question will arise, whether 
 this is the court to come to for a remedy. If it is, I cannot 
 think that ought to depend on the use of a negative rather 
 than an affirmative form of expression. If, on the other 
 hand, the substance of the thing is such that the remedy- 
 ought to be sought elsewhere, then I do not think that the 
 forum ought to be changed by the use of a negative rather 
 than an affirmative." 
 
 § 842. The view thus plainly expressed by Lord Selborne 
 had been indicated in an earlier case before Lord Hatherley, 
 when vice-chancellor. The object of the bill, in that case, 
 was to enforce the si:>ecific performance of a contract to em- 
 ploy the plaintiff as a broker, which contained a stipula- 
 tion that the i^laintiff's name should appear in all advertise- 
 ments of the company. To it the defendant's demurred, 
 and the only point on which the judge entertained any 
 serious question was whether -the stipulation as to adver- 
 tisements did not bring the case within the principle of 
 Lumley v. Wagner ;(o) but he determined that it did not, 
 and that as the defendants did not employ the plaintiff as 
 broker, the court could not restrain their issue of advertise- 
 ments omitting his name.(^) 
 
 § 843. The position of that branch of the law on which 
 Lumley v. Wagner is the leading authority can hardly be 
 said to be very satisfactory. It may, it is conceived, be con- 
 cluded that the principle of this case will not be extended ; 
 that negative stipulations will not be implied except in the 
 cases where the courts have already done so ; and that even 
 the presence of an express negative stipulation will not be 
 found a sufficient ground for jurisdiction unless the con- 
 tract is of a kind of which specific performance can be 
 granted. In other words, it is probable that the court will 
 hereafter, except so far as it may be bound by existing au- 
 thorities, consider whether the contract in respect of which 
 the injunction is sought is or is not of a kind fit for specific 
 performance ; that, if it be, the court will tend to restrain 
 acts inconsistent with it, whether there be negative words 
 or not ; that if it be not of a kind fit for specific perform- 
 
 (0) IDeG M & G..604 (P) Brett v. East India and London Shlp- 
 
 ping Co., Limited, 3 H. & M., 404. 
 
 27
 
 418 YllY ON SrECIFIC PERFORMANCE OF CONTRACTS. 
 
 ance, no injunction will be granted, even though negative 
 words may be present. 
 
 § 844. In cases where the contract on which an injunc- 
 tion is sought contains stipulations, soiye of which the court 
 can, and others which it cannot enforce, and the latter are 
 wholly on the plaintiff's part, no difficulty arises ; because, 
 though the court may be unable to enforce them directly, 
 it does so indiiiectly, inasmuch as the moment the plaintiff 
 fails in performing his part of the contract, the injunction 
 would be dissolved. (§') 
 
 § 845. (7) Where an arrangement come to between two 
 persons is intended to be of a complex character, partly 
 legal and partly honorary, the court will, if there be no 
 other impediment, specifically perform the legal contract, 
 leaving the honorary part of the arrangement to rest, as was 
 intended, on the honor of the parties. So that, wdiere this 
 latter part is malum pro7iiMtu7n 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. (7*) 
 
 § 84tt. (7) Where the contract is in any manner alterna- 
 tive) so that the parts of it are mutually exclusive one of 
 the other, and the plaintiff has a right to ask for the per- 
 formance of one part, the court may treat this as inde- 
 pendent of the other : thus, in a contract to grant a lease 
 with an oiDtion to the lessee to purchase this option was 
 held so far independent of the contract for a lease, that a 
 default on the part of the plaintiff in insuring, which would 
 have prevented his suing for a lease, did not prevent his 
 suing on the option to purchase. (5) 
 
 § 847. (9) In one case Lord Romilly, M. R., appears to 
 have expressed the opinion, that where a part of the con- 
 tract 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. But 
 the doctrine appears to have been rejected by the court of 
 appeal. (^)* 
 
 (n) Stocker v. Wedderburn, 3 K. & J., 393, (s) Green v. Low, 22 Beav., 625. 
 
 405 (t, Hope V. Hope, 22 Beav., 351; S. C.,8De 
 
 (r) Cardan v. Brabazon, 2 Jon. & L., 200, G. M. & G., 731, 746. See, also, Walrond v. 
 
 213. Walrond, John., 18. 
 
 1 27ie court must he able to enforce the contract as to all the parties to it.'] "There 
 is no instance of decreeing a partial performance of articles. The court must
 
 INCAPACITY TO PERFOKM CONTRACT. 41(J 
 
 decree all or none. And where some parts have appeared verj- unheasonable 
 the courts have said, we will not do that; and, therefore, as we must decree all 
 or none, the bill has been dismissed." Lord Ilardwick in Goring v Nash 3 
 Atk., 190; Davenport r. Bishop, 2 Y. & C. C. C, 451: S. C, 1 Phi]., fl'js. ' 
 
 yatiire of the contract, lohether divisible ornot.^ This is to be determined from 
 the nature and subject of agreement. Moore v. Bonnet, 40 Cal., 251; Hacv v. 
 Grinnel, 50 111., 179 ; Southwell v. Beezley, 5 Oregon, 458. An agreement to' sell 
 real estate in one lot is not divisible. Ralley v. Shatcross, 2Bro. C. C . 1 18(n )• 
 S. C. , 4 Mad. , 227 ; Price v. Griffith, 1 De G M. & G. , 80. A contract to grade a 
 railroad for a specilic sum, to be paid as the work progresses, is entire Cox v. 
 ■West. Pac. R. It. Co., 44 Cal., 18; see, also, C<>l)urn v. City of Hartford, 38 Coim.' 
 290. A lot of coal was contracted for at a given price per ton on board vessels! 
 Held, that none of the coal should be paid for until the delivery was complete! 
 Shrim v. Bodine, 60 Pa. St., 182. Different prices may be paid for different 
 articles, and yet the contract be entire. Parker v. Bergen, 4 Heisk., 590. Lord 
 Alvanley, Ch. J., said in Johnson v. Johnson, 8 Bos. ct Pull., 102: "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 hiw to say that he would retain all of which 
 the title was good, and recover a proportionable part of the purchase money 
 for the rest. Possibly the part which he retains 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 circum- 
 stances, and may ascertain how far one part of the bargain formed a material 
 ground for the rest, and may award a compensation according to the real state 
 of the transaction. In this case, however, no such question arises; for it ap- 
 pears to me that, although both pieces of ground were bargained for at the 
 same time, we must consider the bargain as consisting of two distinct contracts, 
 and that one part was sold for £300 and the other for £700. " It has not beea 
 suggested that they were necessary to the occupation of each other." 
 
 Example of dicisihle contracts.'^ Shaw, C. J., said in Robinson v. Green 3 
 Mete, 159: "The plaintiff does not claim on an entire contract. The sale of 
 each lot is a distinct contract. The plaintiff's claim for a compensation arises 
 upon each several sale, and is complete on such sale. If there were an express 
 promise to pay him a fixed sum as a compensation for the entire sale, it would 
 have presented a different question. Wliere an entire promise is made on one 
 entire consideration, and part of that consideration is illegal, it may avoid the 
 entire contract. But here is no evidence of a promise of one entire sum for 
 the whole service. It is the ordinary case of an auctioneer's commission which 
 accrues upon each entire and complete sale. We do not see how the question 
 can be answered which was put in the argument, namely; suppose the plaintiff 
 had stopped, after selling the two lots lying in South Reading, which it was 
 lawful for him to sell, would he not have been entitled to his commission ? If 
 he would, we do not perceive how his claim can be avoided by showini; that he 
 did something else on the same day which was not malum, in 'se, but an act pro- 
 hibited by law on considerations of public policy. The court are of opinion 
 that the plaintiff's claim for a quantum meruit may be apportioned, and that he 
 is entitled to recover for his services in the sale of the two lots." The matter 
 is very fully discu.ssed in McDauiel's v. "Whitney, 38 Iowa, (50. On the follow- 
 ing questions the court were equally divided: " Proposition made by me to Mr. 
 McDauiels — I lierebj' agree to give up the banking business in Atlantic to 3Ir. 
 McDauiels, and the best lot he can pick out in our town, provided he will now 
 build upon the same, and become a permanent resident in our count}', and take 
 $16.50 per acre for the farm of 375 acres in sections 33, 34 and 38 of township 
 77 — 36 as marked blue on his plat — and give up to said 3Icl)aniels ni}- chance 
 of purchasing the tw'O 40-acre lots of which Judge Temple is acting as a"-ent. 
 This propo.silion is not a standing one, but to be decided witiiin two'davs from 
 date." Beck, C. J., and Day, J,, held that there were two distinct contracts, and 
 that one of them might be specifically enforced without the other. Miller, J. 
 and Cole J., held that there was one entire contract. Cole, J., said: "The 
 proposition, while single in itself, yet contains an agreement on the part of
 
 420 FRY ON SPECIFIC PEUFORMAXCE OF CONTRACTS. 
 
 Whituey to do four thiiiirs, each of which is separated from the preceding only 
 by a comma, and is coniie(;ted with tlie i^receding- by the. copulative conjunc- 
 tion and. Mr. Wliitney. hv his proposition, says: I hereby agree to give^up 
 the hanking business in" Atlanta to ]\Ir McDaniels. and the best lot he can pick 
 out in our Town, and take $1(5.50 per acre for the farm of 375 acres, and give 
 up to said McDaniels my chance of purchasing the two 40-acre lots. There is 
 no division of this proposition into sentences, nor any specification of the con- 
 sideration the proposer is to receive for each of the four things he proposes to 
 do. The price per acre for the land is specified. But whether such price is 
 above or below its real or market value does not appear, either in tlie proposi- 
 tion itself, or in the evidence in the case. It may have been much above its 
 value, and, in the contemplation of the parties, ecjualized by the chance of 
 getting the two 40-acre tracts. Or, it may have been much below its value, 
 and, in the estimation of the parties, compensated for by taking the banking 
 business with its burdens of doubtful securities. At all events, there is nothing 
 in the proposition itself, which specifies the consideration to be paid to the pro- 
 poser for each of the four things he agrees to do, nor for any one of them. 
 The proposition further shows that it was not binding at once, and, in any 
 event, upon the proposer Whitney. But it was to be, and would become, bind- 
 ing upon him only when it should be accepted by McDaniels. What was 
 :McDaniels to do in order to accept it, and make it binding upon Whitney ? 
 lie was to pick the best lot, and to build upon it. and take the banking busi- 
 ness, and become a permanent resident of the county, and pay $16.50 per acre 
 for the farm, and take the chance of purchasing the two 40-acre lots. He was 
 to do all of these things before Whituey would become bound to him to do 
 what he had proposed. McDaniels could not elect to take the banking busi- 
 ness alone, and require Whitney to give it up. This is too clear to require 
 demonstration, and, if he coul^ not do this, it is just as clear that he could 
 not require Whitney to do any other one of the several things pi'oposed, without 
 bimself doing all that he was required to do by the proposition, and from this 
 it must appear that the contract is no more divisible into two parts than into 
 four."
 
 DKFECT IN SUBJECT MATTER OF CONTKACT. 421 
 
 CHAPTER XVII. 
 
 OF DEFLECT IX THE SUBJECT MATTER OF THE CONTRACT. 
 
 § 848. Another ground on which the specific performance 
 of a contract may be resisted is the existence of some essen- 
 tial defect in fhe subject matter of it, or some variation 
 from the descrij)tion 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 n]^ the defense 
 that the title rehites to a different subject matter from that 
 which he contracted for. (a) The cases in which this varia- 
 tion arises between the thing and some representation made 
 in respect of it are considered under the head of misrepre- 
 sentation. (5) The cases in which no such representation 
 has been made it is now proposed briefly to consider. ' 
 
 (a) Bentley v. Craven, 17 Beav., 204. (b) Snpra, § 624 et eeq. 
 
 ' Substantinl defect in (lie contract is a good defense in equity. '[ The vendor of 
 land received a bond for title, and gave a note therefor, which sho-wed upon its 
 face that it had been so given. Held, that an assignee holder of the note, in 
 case of a deficiency, cannot recover on such note, notwithstanding he received 
 it previous to its becoming due. Howard v. Kimball, G5 N. C, 175. 
 
 Variance beticeeii the amount of land sold and the real quantity. '\ Grant, J., 
 said in Deem v. Corp., etc., 9 Ves., 368: " There was no instance of compelling 
 a man w^ho had contracted for a freehold, to take a leasehold estate; that where 
 a party gets substantial!}' that for what he contracts, any small difference may 
 be remedied by compensation; but not where it extends to the whole estate. 
 See, also, Holmes v. Thorp, 1 Halst 's Ch.. 41 o; Wiune v. Reynolds, G Paige's 
 Ch. 407; Howard v Kimble. Go N. C, 175; Weems v. Bremer, 2 Har. ct Gill.. 
 390; Shaw v. Vincent, 64 X. C, 690. In Wilcoxon v. Calloway, 67 N. C, 
 463, it was held that, where the quantity of land sold was deficient one-third, 
 the purchaser might rescind the agreement, or demand a ratable abatement of 
 the price. See, also, Leigh v. Crump, 1 Ired.'s Kq., 299; Gentley v. Hamilton, 
 3 id., 376; Jacob v. Locke, 2 id., bG; Calcraft v. Roebuck, 1 Ves., Jr , 221. 
 Gray, J., said in Noble v. Googins, 99 ]\Iass.. 231: "The American courts 
 have sliown more willingness than the English to encourage litiiration about 
 the amount of the price, by reason of a variation in the quantity ot hmd agreed 
 to be conveyed, without clear evidence that the (juantity was made an es.sential 
 element of the bargain." See, also, Mann v. Pierson, 2 Johns., 37. "It is 
 unnecessary for a man who has contracted to purchase one thing, to explain why 
 be refuses to accept another." Aylcs v. Cox, 16 Beav., 23; Botran v. Daugh- 
 drill, 51 Ala., 312; Morse v. Elniendorf, 11 Paige's Ch., 288; "White v. Dobson, 
 17 Gratt., 262; Napier v. Darlington, 70 Pa. "St , 64; Lehiffer v. Pniden, 64 
 N. Y., 47. 
 
 Encroachmeiit.'] Where real estate is .sold free of incumbrance, and the same 
 is encroached upon by an adjoining owner, the sale may be rescinded. King 
 V. Knapp, 59 N. Y., 462; liing v. Bardean, 6 John's Ch., 38.
 
 422 FRY ox SPECIFIC PEKFOKMANCE OF CONTRACTS. 
 
 § 8 19. The miiterial distinction to be considered is be- 
 tween delects which are jDiitent and visible to eveiy one and 
 those which are latent ; for just as at common law a war- 
 ranty, however general, is not taken to include defects ap- 
 parent 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 performance, patent defects are 
 not.(c) 
 
 § 850. Accordingly wliere a man bought a meadow with 
 a road round it and a way across it which wjere not noticed 
 in the description, Lord Rosslyn nevertheless enforced spe- 
 cific pierformance with costs \{d) and the circumstances that 
 an estate described as inclosed in a ring-fence was not so, 
 was held by Grant, M, E,., no defense to a suit for perform- 
 ance, (e) 
 
 § 851. But where the objection taken by the purchaser, 
 who was defendant, was the existence of certain water ease- 
 ments, and it was jDroved that the defendant had long lived 
 in the neighborhood, was well acquainted with the property, 
 had in passing the road constantly seen some of the wells 
 on the lower land supplied from the upper land, which was 
 the subject of the contract, and had on the morning of the 
 sale been upon the land; Knight Bruce, V. C, expressed 
 his opinion, but without giving the reasons, that no such 
 degree of knowledge or notice had been proved as to pre- 
 clude the purchaser from taking, the objection. (/') In this 
 case, it may be observed, the objection to the upjDer 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 
 Avells, 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 patent. 
 
 § 859. With regard to the latency of defects, it is to be 
 observed that the court will not demand a minute examina- 
 
 (c) Dyer v. Hargrave, 10 Ves., 505; supra, Pope v. Garland, 4 Y. & C. Ex., 404; Cook v. 
 § 658; cf. Pothier, Tr. flu Contrat de Vente, Waugh, 2 Giflf.. 201. 
 
 Part II, chap. 1, sect 3, § 1. (e) Dyer v. Hargrave, 10 Ves., 505. 
 
 (d) Oldlleld V. Round, 5 Ves., 508, and see (/) .^liacklelon v. Sutcllffe, 1 De G. & Sm., 
 
 609.
 
 DEFECT IN SUBJECT MATTER OF CONTRACT. 423 
 
 tion on the part of the purchaser, even where the vendor 
 does not make any representation ;(r7) to render a defect 
 patent it must, it seems, be an ob^^ous and unmistakable 
 object of sense. 
 
 § ^5S. The defect need not be in the actual physical sub- 
 ject-matter of the contract, it may consist in the existence 
 of some liability of which the other party is ignorant ; so a 
 vendor of a lease described as subject to the usual covenants 
 cannot, of course, enforce specific performance where the 
 lease is subject to unusual ones :(7iY and so where the ven- 
 dor of leasehold property had, before 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 tlie state of the premises, the contract was held void at 
 the suit of the purchaser who had been ejected :(/) and at 
 common law the undisclosed fact that the property in ques- 
 tion is liable to be taken under the powers of an act of Par- 
 liament, has been held a valid ground for rescinding the 
 contract. (,/)' 
 
 ((7) Cf. per James, L. J., in Deiiny v. Han- (j) Ballard v. Way, 1 M. & W. 5-20. Dls- 
 
 cock L R 6 Ch V2 tlnguish from the cases cited in this section, 
 
 (?j)' Hampshire" V. Wickens. 7 Ch. D., 555 Edwards Wood v. Marjoribanks a Giff., 381; 
 (whore the subject of what are usual cove- 3 De G. & J., 3-29; 7 H. L. C. Sm, where the 
 nants is fullv considered, as regards lease- purchaser of au advowson was held not en- 
 holds)- cf Ti'ldeslev v Clarkson, 30 Beav., titled to any compensation in respect oi a 
 4J9 charge on the living under a grant from 
 
 (i) Stevens v. A damson, 3 Stark., 422. Queen Anne's Bounty. 
 
 » In Willis V. Astor, it was held that where there was a coveuaut to renew a 
 lease at a o-iven rent, aud nothinir more, that this does not carry with it the 
 covenants'of the old lease. A lease contained a covenant for renewal Held, 
 that the renewed lease need not contain a covenant for further renewal, unless 
 the original instrument contained an express covenant for perpetual renewal. 
 Rut-ei^ V. Hunter, 6 Johns., 215; Phyfe v. Wardell, 5 Paige's Ch. 2G8. 
 Where a lease has been assigned, the assignee is entitled to specifac perform- 
 ance of a covenant to renew. Robinson v. Perdy, 21 Ga., 183. Where the 
 lessor covenants to extend a lease, without naming the amount of rent : held, 
 that equity would not enforce the covenant. Robiuson v. Kettletas, 4 Ldm. s 
 Ch., 63. 
 
 « Seaman v. Hicks, 8 Paisre, 655, is a case precisely in point. It was there 
 said that where the purchaser of lands contracts for a perfect title, he was 
 relieved from a performance of the contract \ipon its appearing that the cor- 
 poration of the citv. in which the laud was situated, were empowered to take 
 a portion of the laud, without compensation for the buildings thereon, though 
 the probability that such power would be exercised as very remote. Durrett v. 
 Simpsou S M'our. 517, affords an illustration of the sjime doctrine, that a pur- 
 chaser shall be compelled to take only that for which he contracts. Iii that 
 case A sold to B. a lot of land, with a hotel on it, which was supplied with 
 water bv pipes leadim: from a spring owned by A., and situated some three 
 hundred yards from the hotel. A. stipulated in his coutract '• that the priyi- 
 le^e of the water works, as thev now are, shall remain to B. forever, aud the
 
 424 FRY ON SPECIFIC PERFORMANCE OF CONTRACTS. 
 
 § 854, The existence of a defect, unknown at the time 
 of the contract both to the vendor and the purchaser, will 
 not, it seems, be a bar to the enforcement of the contract, (/l) 
 unless, probably, where the defect is such as lies properly 
 in the knowledge of the vendor. 
 
 § S5«5. Where the variation between the thing and the 
 description of it seems rather in the nature of an excess 
 than of a defect, and so in favor of the purchaser, the ven- 
 dor is nevertheless disabled from enforcing the contract on 
 an unwilling purchaser. Thus, freehold land cannot be 
 forced on a purchaser who bought it as copy-hold. " It is 
 unnecessary," said Lord Romilly, M. E,., "for a man who 
 has contracted to purchase one thing to exj^lain why he re- 
 fuses to accept another. (Z) 
 
 § 856. Where an uncertainty exis^;s as to the subject- 
 matter of the contract, but the description by which it was 
 sold is eqully uncertain, there is, of course, no variation or 
 defect. Therefore where property was sold by a general 
 description as being part freehold and part leasehold, and 
 the exact boundary between the freehold and leasehold 
 parts of the estate could not be ascertained, this circum- 
 stance furnished no defense to a suit for specific perform- 
 ance, {m) 
 
 § 857. A purchaser may, of course, contract for the pur- 
 
 {k) Per Wigram, V. C, in Lucas v. James, holds: Hick v. Pliillips, Prec. in Ch. 575; cf. 
 
 8 Ha., 418. See, also, Parkinson v. Lee, 2 Twining v. :Morrice, 2 Bro. C. C, 331. 
 
 East, 314 (771) Monro v. Taylor, i Mac. & G, 713. As 
 
 (0 Ayles V. Cox, 16 Beav., 23. See the to conditions respecting such a minglina: of 
 
 observations fif Lord St. Leonards on this tenures, see, also, Cronse v. Laurence, 9 Ha., 
 
 case. Vend., 251 ; cf also .Stanton v. Tatter- 463; Crosse v Keene.id., 409; cf. .Jeffervs v. 
 
 8all,l Sm. & G., 529. Copyholds cannot, of Fairs, 4 Ch. D., 448. Davis v. .•"hepherd (L. 
 
 course, be forced on a purchaser of free- R. 1 Ch., 410) is, of cx)urse, clearly distin- 
 guishable. 
 
 privilege of the conveyance of the water "as it now is." After this contract, 
 B. sold the spring and the intervening lands, reserving, in .all the deeds but one, 
 the right of entering and repairing the pipes, and in that one it was stipulated 
 that the pipes should remain undisturbed." B. having paid all the purchase 
 money before the day when the property was to have been delivered, refused 
 to accept a conveyance, and tiled his bill for a rescission of tlie contract, and 
 recoverj' of the money paid by him. Held, that tlie contract should be re- 
 scinded, and that A. .should refund the price paid by B., the rents, during the 
 time B. occupied the premises, to be set off against the interest. Durrett v. 
 Simpson, 3 Monr., 517. Though equity does not demand a minute examina- 
 tion by the purchaser, it nevertheless requires that he should, at least, exercise 
 due diligence. So, where land was sold by a trustee under a deed of trust, and 
 the purchaser could, by the exercise of proper diligence, have ascertained 
 •whether the land was subject to any rights of dower, equity refused to relieve 
 the vendee from his contract, because a right of dower in the iand did exist, 
 and he was left to his legal remedy, in case he should at any time be disturbed 
 in his possession. Greenleaf v. Queen, 1 Pet., 138.
 
 DEFECT IN SUBJECT MATTER OF CONTRACT. 425 
 
 chase of a thing with all faults, and lie then take on himself 
 the knowledge of the title and of the qualities of the sub- 
 ject. The cases on the effect of this clause in a contract 
 seem to show, first, that such a contract is binding, liow- 
 ever many may be the defects in the subject, and whether 
 they be latent or patent, and whetlier discoverable by the 
 purchaser or not ;{n) secondly, that it will not protect the 
 vendor where he takes positive means to conceal the de- 
 fects, (o) as where a vessel was moved off her ways wliere 
 she lay dry into the water in order to conceal her worm- 
 eaten bottom and broken keel ;{2y) and thirdly, that it 
 will not protect the vendor when he make a misrepresenta- 
 tion, and that misrepresentation is embodied in the con- 
 tract, ($') or is both false and fraudulent. (^7-) The court re- 
 fuses to direct any inquiry as to title where the sale is Avith 
 all faults, and the vendor only sells such interest as he 
 has. (5)' 
 
 § 858. The effect on the specific performance of the con- 
 tract of a defect in the thing sokl, or a variation from the 
 description, is two-fold, according to its magnitude. If, in 
 the view of the court, it be unessential, the contract may 
 yet be performed, but with compensation ; if it be essen- 
 tial, it confers on the party injured the right of rescinding 
 the contract and defeating its performance, (z!)" The distinc- 
 
 (n) Baglehole v. Walters. 3 Camp., 154; (q) "Schneider v. Heath, 3 Cam o.. 506. 
 Pickering v Dowson, 4 Taunt., 779, overrul- (7-) Early v. Garrett, !) B. & C./JiS; Spring- 
 ing Lord Keynon.M. K 'srlecislon in Mtllish well v Allen, 2 Eas^t. 448 n. 
 T. Motteux, Peake, 115, that the stipulation (s) see intra, § li^' ^ee, nl^o, Hume v. 
 in question only apiilies to laults which the Pocock, L. K. 1 Kq., 423 ; 1 Cii., 37!). 
 purchaser can discover or the vendor is (0 ^lanton v Taitersall, 1 Sui .C G., 529; 
 ignorant of Turquand v. Rhodes, IG '^ . K., 1074; el". Mc- 
 
 (o) Baglehole v. Walters, 3 Camp., 154. Kenzie v. Hesketh, 7 Lh D., ti82. 
 
 ip) Schneider v. Heath, 3 Camp , 50(4. 
 
 ' 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 succcssfuliy 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 Monr., 1G4; .see, 
 also, Winne v. Reynolds, 6 Paige, 407. 
 
 ^ A specific performance will be decreed where the vendor is able to perform 
 his contract in substance, although there is a trifling variation in the descrip- 
 tion of the premises, -or a trilling incumbrance on tlie title which cannot be 
 removed, and which is a proper subject of compensation to the purchaser. 
 Winne v. Reynolds, G 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 jterform- 
 ance, if the difference is a proper subject for compensation in money. Humes
 
 426 FRY ON SPECIFIC PERFORMANCE OF CONTRACTS. 
 
 tion between these two classes of cases will be considered 
 in the chapter on compensation, (z^)' 
 
 (m) Part V, chap. 3, § 1174 et seq. 
 
 V. Thorpe, 1 Halst.'s Ch. (N. J.), 415. King v. Bardeau, 6 John.'s Cli., 38, 
 is <a case belonirinir to the same class. It was a case of sale of property at 
 auction: and tiionsrh 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 adjoinini!: lots are sold together, in one parcel, and for one price, 
 and on one (If the'lots were buildings which projected two feet over on the 
 other lot, that this did not constitute so material a defect in the subject matter 
 as to warrant the abandonment of the contract by the purchaser. Byit, as the 
 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. 
 
 ' Suhject matter of the contract accidentally destroyed.'] Where the owner of 
 ■real estate agreed to sell the same for a definite sum, and before it is paid a 
 house, upon the premises, is accidentally destroj-ed by fire; held, that no part 
 of the purchase money could be rescinded or retained by the vendor. Bacon 
 V Simpson, '6 M. & M., 78; Wells v. Colman, 107 Mass., 514; Thompson v. 
 Gould, 20 Pick , 134. In Snyder v. Murdock, 51 Mo., 175, it was held, that 
 where an executory contract for the sale of real property had been made, and 
 a bond for title and notes given in payment for the property, that the same 
 ■was then at the risk of the purchaser, and that it was his loss if it was destroyed 
 by fire A written contract was made for the purchase of land, and the build- 
 ings thereupon were accidentally destroyed by fire. Held, that neither party 
 could rescmd such contract, unless the buildings were the principal inducement 
 of the purchase Banty v. Kuworth, 1 Montana, 133. There was a spring of 
 water on land of the vendor, which was conveyed in passes to the land of the 
 vendee, and was a great inducement to the purchase. Held, that the destruc- 
 tion of the water privilege after the sale, and before conveyance, would fur- 
 nish a sufficient ground for abandoning the contract. Durett v. Simpson, 3 
 Monr., 517.
 
 WANT <»F A GOOD TITLK. 421 
 
 CHAPTER XVIII. 
 
 OF TJIE WANT OF A GOOD TITLK. 
 
 § 8i>9. Where the vendor of land sues the purchaser for 
 a specitic performance of the contract, the defendant is 
 entithxl to have the action dismissed, if it appear that the 
 plaintiff cannot make out to the land a title free from rea- 
 sonable doubt.' The defendant may have the action thus 
 dismissed at the trial, x^i^ovided the defect in title has been 
 l^rominently put forward in the pleadings, and the court 
 can then decide the question, («) or even where the objection 
 appears on the evidence at the trial, and is a different objec- 
 tion from that on which the defendant had relied. (/>) But 
 the question more usually arises after the reference to title 
 has been made." 
 
 («) Lucas V. James, 7 Ha., 418. 425. (/>) Baskcomb v. Phillips, 29 L. J. Ch., 380; 
 
 6 Sur. N. S., 363. 
 
 ' Watts V. Waddle, 1 McLean. 200; Bates v. Delavau, 5 Pai.L,'e, 20t); Cans v. 
 Rensliaw, -3 Barr., )]\: Fitzpatrick v. Fcathcrstoue, ;5 Ala.. 40; Beckwitli v. 
 Kouns, B. Monr., 422; Owiiiys v. Baldwin, 8 Gill., 3o7. And it i.s not neces- 
 sary that the vendee should stipulate in the contract that a covenant of war- 
 ranty shall be inserted in his deed. This will be prcsunif^d, unless the vendee 
 expressly takes the risk oT title. Bates v. Delavan. 5 Paige, 279. An agree- 
 ment to give good and sufficient deeds to lands, must be construed to mean 
 deeds in fee simple. New Barl)adoes Toll Bridge v. Vreeland, 3 Green's Cl>., 
 157. It is sufficient if the vendor is able to make a good title at any time I>e- 
 fore the decree is pronounced, although he liad not a good title when the con- 
 tract was made. Hepburn v. Auld, 5 Cranch, 2t)2. 275; Finley v. Lynch, 3 
 Bibb., ;;6(5; Seymour v. Delancev, 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, 110. An exception 
 to this rule is where a contract is made in bad faith bv one who knows thai 
 he has neither title nor the legal or equitable means of acquiring one. Mo.ss v. 
 Hanson, 17 Peun. (5 Harris),' 379. 
 
 ^ Excess or deficiency of real estate xold.^ Where there is no designated (iu;in- 
 tity, and the estate is sold in gross, a party can have no relief in eciuily i-ither 
 for an excess or deficiency. The case must, of course, be devoid of fraud. 
 Kent v. Carcand, 17 Md., 291; Gilman v. Hincle, 8 W. Va.. 2<;2; Foley v. 
 McKeown. 4 Leigh, 678. Where the land was sold by the acre, the number 
 sold must be found. Wilson v. Randall, 67 N. Y., 338.' Where the estate sold 
 is described by boundaries, or equivalent words to more or less are used, sudi 
 a statement will control a statement as to boundary or (luantity, and a surplu.«i 
 or deficiency will not be a sulficient reason for relief at eipiity, unle.^s there is 
 such great variation as to give rise to the presumiilion of gross fraud or mis- 
 take. Stebbins v. Eddy, 4 Mason, 414; Marvin v. Bennett, 8 Paige's Ch., 312;
 
 428 FIIY ox SPKCiriC PKItFOUMANCE OF CONTRACTS. 
 
 i; 860. The old practice of the court of chancery, in all 
 cases of dispute as to the title of the estate sold, was to 
 decide either for or against the validity of the title, and 
 either to compel the purchaser to take it as good, or to dis- 
 
 Winch V. Wincliestcr, 1 Ves. & B., 375: Stull v. Hurst, 9 Gill.. 446; Morris 
 Canal Co v. Einmett, 9 Paige's Ch., 168; Kotchum v. Stout, 20 Oliio, 453; 
 Faurc v. Martin, 3 SeUl., 210; Noble v. Gog,-!:ins, 99 Mass , 231. In Hudson v. 
 Hud-son, 64 Ga., 513, it was lield, that although the contract described the 
 estate as containing one hundred acres more or less, yet the vendee was entitled 
 to no abatement, notwithstanding a deficiency was discovered of thirty-six 
 acres. 
 
 Where real 'property is sold, the vendor must give a good title.'\ Equity will not 
 decree specific performance of a contract for the purchase of real property, 
 wliere the vendor, for any reason, cannot give a perfect title. He must be the 
 owner, and he must have the legal or equitable right to convey. Lay v. Huber, 
 3 Watts. 367; Garuett v. Macon, 2 Brock., 185; Fitxpatrick v. Featherstone, 3 
 Ala., 40; Pipkin v. James, 1 Humph., 325; Hurley v. Brown, 98 Mass., 545; 
 Morgan v. Morgan, 2 Wheat , 290; Tomlin v. McChord, 5 J. J. Marsh., 135; 
 Owings v. Baldwin, 8 Gill., 337; Stevenson v. Buckstone, 15 Abb. Pr , 352; 
 Nicol v. Carr, 35 Pa. St., 381. It makes no difference that the land has been 
 sold under a decree of the court, if the title is imperfect. Coster v. (lark, 3 
 Edm.'s Ch., 428. An injunction against collecting the purchase price was 
 granted until the title should be made perfect, in a case where the vendor 
 frauduentlv represented that he had an absolute title. Hinkle v. ]Margerum, 50 
 Ind., 240; "Davis v. Perkins, 40 Iowa, 82. Where a party holding the legal 
 title, sold for a valuable consideration, it was held, that his vendee, without 
 notice of outstatidiug equities, took the property divested of su(-h equities. 
 Farmers' Nat. Bank v. Fletcher, 44 Iowa, 252. In order that the vendor shall 
 maintain a decree for specific performance, he must show, to a moral certainty, 
 that the vendee will receive such a. title as he contracted for. Hinckley v. 
 Smith, 51 N. Y., 21; Welsh v. Barton, 24 Ohio St., 28. Real property was 
 sold at auction, warranted free from incumbrance, and a vendee paid full value 
 for the property. Held, that where he afterwards discovered tliat there were 
 mortgages upon it, he was not bound to retain the property. Mayer v. Adrian,. 
 77 N. C, 83. 
 
 Specific jierformavce icill not be decreed where the title is doubtful.'] The court 
 said in Dobbs v. Norcross, 24 N. J. Eq., 327. " Every purchaser of land has 
 a right to demand a title, which shall protect him from anxiety, lest annr^ying, 
 if not successful, suits be brought against him, and probably take from him, or 
 his representatives, land upon which money was invested. He should have a 
 title which should enable him not onlj^ to hold his land, but to hold it in peace, 
 and, if he wishes to sell it, to be rea.sonablj' sure that no fiaw or doubt will 
 come up to disturb its niMrketable value " See, also, Pyrke v. Waddington, 10 
 Hare, 1 ; Sturtevant v. Jacques, 14 Allen, 525; Griffin v. Cunningham, 19 Gratt , 
 571; Richmond v. Gray, 3 Allen, 25; Voorhies v. De Myer 3 Sandf.'s Ch., 614;. 
 Swayne v. Lyon, 67 Pa. St., 436; Smith v. Turner, 50 Ind., 367; Jeffreys v. 
 Jeffreys, 117 Mass., 184. Lord Eldon, Chancelor, said in Stapylton v. Scott, 
 16 Ves., 272, that the doubt, in order to prevent specific performance, must be 
 "considerable and rational, such as would and ought to induce a prudent man 
 to pause and hesitate; not based on captious, frivolous and astute niceties, but 
 such as produce real bona fide hesitation in the mind of the chancellor." See 
 Kostenbader v. Spotts, 80 Pa. St., 430. 
 
 Long continued naked possession, specific perform ance.] Specific performance 
 will not be decreed, and a purchaser compelled to accept the title, which rests 
 merely in naked possesion; even twenty years uninterrupted pos.session is not 
 sufficient to raise the presumption of a conveyance. Cunningham v. Sharp, 11 
 Humph., 116; Lewis v. Herndon, 3 Litt., 358; Smith v. Hollenbeck. 57 111., 
 223; see, however, Stroher v. Button, 6 Fhila., 185; Chapman v. Lee, 55 Ala.,. 
 616.
 
 WANT OF A GOOD TITLE, 429 
 
 miss the bill on tlie score of its being bacl.(c) But the case 
 of Maiiow V. Smith, (<^) before Jekyll, M. R., followed by 
 Shai^land v. Smith,(e) before Lord Thurlow, established the 
 practice of allowing a class of titles which, without affirm- 
 ing them to be bad, the court considered so doubtful as that 
 it would not comj^el a purchaser to take them.(/) 
 
 § SOI. Lord Eldon, though feeling himself bound to ad- 
 here to this as an established rule, on more than one occa- 
 sion expressed his dissent from it on principle, and bewailed 
 the great mischiefs wdiich had resulted from it. (17) But such 
 expressions of opinion did not shake the rule : and it has 
 been recognized by the House of Lords as one of the estab- 
 lished rules of a court of equity. (7^) 
 
 § 862. Against the rule it has been urged that it is logi- 
 cally absurd, as well as practically injurious ; for every title 
 is good or bad, and if so, the court ought to know nothing 
 of a doubtful title. For the rule it has been urged in effect 
 that, having regard to the nature of an action for specific 
 performance, the rule in question is necessary in point of 
 practical justice, and correct in reasoning. It must be re- 
 membered that the judgment of the court in such an action 
 is in personam and not in rem ; that it binds only those 
 who are parties to the action, and those claiming through 
 them, and in no way decides the question in issue as against 
 the rest of the w^orld ;(/) and that doubts on the title on an 
 estate are often questions liable to be discussed between the 
 owner of the estate and some third j)erson not before the 
 court, and, therefore, not bound by its decision. (7) If, 
 therefore, there be any reasonable chance that some third 
 person may raise a question against the owner of the estate 
 after the completion of the contract, the court may consider 
 this to be a circumstance wdiich renders the bargain a hard 
 one for the purchaser, and one which in the exercise of its 
 discretion it will not compel him to execute. Though every 
 title must in itself be either good or bad, there must be 
 
 (c) Seel Bro. C. C.,76, n. . Mulgrave, 2 id , 526; Roake v. Kt<l<i, 5 Id., 
 
 (d) 2 P. Wms., 198. 647; Willcox v. Bellacrs, T. & U . 491 
 
 (e) 1 Bro. C. C, 75. Lord Eldon was In the (g) In Vancouver v. Bliss, 11 Ves., -tCJ, and 
 habit of treating this as the first case in in Jerroise v. Duke of Northumberland, 1 J. 
 which the later rule had prevailed: but in & W.,568 
 
 Sloper V. Firih, 2 V. & B., 149, Grant, M. R., (h) See per Lord Wcstbury in Parker v. 
 
 referred to the earlier cases, and stated that Tootal, 11 II. L. C , 158 
 
 the rule in question had been repeatedly (i) See per Jessel M. R., in Osborne to 
 
 acted on by Lord Hardwicke. Rowlett, 13 Ch. U., 7SI. 
 
 (/) See, also, Cooper v. Dennc, 4 Bro. C. C„ (j ) See v)er Turner, V. C, in Glass v. Rich^ 
 
 8U; S. C , 1 Ves. Jun., 565; Sheffield v. Lord arusou, 9 Ha., 7ul.
 
 430 FKY ON SPECIFIC PEKFOKMANCE OF CONTRACTS. 
 
 many titles wliich the court cannot pronounce with cer- 
 tainty to belong to either of these categories in the absence 
 of the parties interested in supporting both alternatives, 
 and without -having h^-ard the evidence they might have to 
 produce, and the arguments they might be able to urge : 
 and it is in the absence of these parties that the question is 
 geiiei-ally agitated in proceedings 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.' 
 
 g 8C;{. It is by no means easy to express what amount of 
 doubt upon a point there must be, to induce the court to 
 refuse speciiic performance : and this difficulty has been 
 increased by the ebb and flow of judicial opinion and de- 
 cision for and against the rule, which has characterized the 
 cases of the last quarter of a century. One mode of measur- 
 ing the doubt 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. "(/«:) 
 
 § 861. In another case. 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 marketable: "(^) but a marketable title being "one 
 which, so far as its antecedents are concerned, may at all 
 times and under all circumstances be forced on an unwilling 
 purchaser," (?«) the observation seems not much to assist us 
 in measurii;ig how great the doubt must be. 
 
 § 865. It was formerly held that, though the court might 
 entertain an opinion in favor of the title, yet if it were satis- 
 fied that that ox)inion might fairly and reasonably be ques- 
 
 (^'l 111 .Jervoise v. Duke of Xorthumber- (0 In Lord Braybroke v. Inskip, 8 Ves., 
 
 land.l J. & W.,569. See, also, Sheffield t. 428. 
 
 Lord Mulgrave, 2 Ves. Jiin., 526; per Tur- (m) Per Turner, V. G., in Pyrke v. Wad- 
 
 ner, V. C, in Pyrke v. Waddinghaoi.lO IIa.,9. dinghfhn, 10 Ua., 8. 
 
 ' It has repeatedl}- been decided that equity will not compel a vendee to take 
 a doubtful title. Butler v. O'Hear, 1 Dcs., 382; Lewis v. Herndon, o Litt., 158; 
 Kelly V. Bradford, 3 Bibb, 817; Seymour v Delancey, 1 Hop., ^dC; Young 
 V. Lillard, I Marsh., iH'i; Morgan v. Morgan, 2 Wheat., 290; Lougworth v. 
 Taylor, 1 McLean, 200.
 
 WANT OF A GOOD TITLE. 431 
 
 tioned by other competent persons, it would refuse specilic 
 performance. Thus, in a case before Leach, V. C, he ex- 
 pressed the strong inclination of his opinion to be in favor 
 of the title, and yet refused the relief sought by the plain- 
 tiff ;(72) and in the case of Pyrke v. Waddingham,(o) in 
 which Turner, V. C, discussed the subject now before us, 
 he expressed an opinion in favor of the title, but, neverthe- 
 less, dismissed the vendor's bill, with costs. P^or this reason 
 it was held that the court would not force a title on a pur- 
 chaser in opposition to the decision of another court, though 
 it might think that decision to be wrong. (^j>) Accordingly, 
 the court of appeal in chancery in one case dismissed an 
 appeal, though thinking the title good, on the ground of the 
 opinion of the judge below -.{q) though the same measure of 
 deference was not extended to the opinion of a conveyanc- 
 ing counsel of the court. (r) 
 
 § 866. But these cases cannot now be relied on ; for, 
 since the case of Pyrke v. AVaddingham, there have been 
 something like a reaction against that case, and a tendency 
 to lessen the area of doubt as regards titles. 
 
 The very same title which Turner, Y. C, refused to force 
 on a purchaser in Pyrke v. Waddingham, was forced on 
 another purchaser by Lord Romilly, M. R., not on the 
 ground that the principles laid down in that case were erro- 
 neous, but that they did not justify the decision. (5) 
 
 § 867. And so as regards the decision of an inferior court; 
 the judges of the court of appeal have held that they are in 
 no wise bound by such (Jecision, and that where they con- 
 sider that there is no reasonable doubt, the adverse decision 
 of the inferior court will not be a suflicient reason to i-pfiise 
 the plaintiff relief, {t) 
 
 § 868. "With resi)ect to the common cases of doubtful 
 title," said Lord St. Leonards, "I cannot agree with the 
 proposition, that an unfavorable decision in the court of 
 inferior jurisdiction renders the title doubtful. The judge 
 
 («) Price V. strange, 6 Mad., 159, 1G4. pendens), ami Wripley v. Sykos, 21 Itcav., 
 
 (0) 10 Ila., 1; of. Rogers v. Waterhouse, 4 337. See, also, Highpate .vrchway Co. v. 
 
 Drew ,329. ■ Jeakes, L. II. 12 Eq, U; Hell v. Holtbv, Id., 
 
 (») liobe V. Callaiid, 5 Ves.. 186. 193; Au.stin v Tawncy, L. K. 2 Ch., H3; Os- 
 
 Xq) Collier v. Mclican, L. U. 1 Ch., SI ; and borne to Itowlctt. 13 Ch. D., 774, "81 ; Wise v. 
 
 see Haiiulton v. liuckmastcr, L. li. 3 Eq., 323. Pipt-r, id., 848, ^5.5. 
 
 (r) H;'rj!Uon v. Buckmaster, L. R. 3 Eq., (t) lleloley v Carter, L K 4( h.iH; Alex- 
 
 323. ander v. MilLs, id G ih., 124 ; Hadlord v. Wil- 
 
 (s) Ml Fi ? ". Trinder, L. R. 10 Eq., 449. lis. il. 7 Ch., 7, reversing b. C, L. K. 12 Eq., 
 
 See, altt), .. iv Ilutchens, 32 Beav.,615(lls 105.
 
 432 FHY ox spKcrFir perfokmance of contracts. 
 
 of the .superior court would still be bound to exercise his 
 own discretion and decide according to his own judg- 
 ment." (i^) This language has been cited with approval by 
 the court of appeal in chancery in England, (w) 
 
 § S09. The donbt which may prevent the court from 
 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 law of the realm, (-zfj) or with the construc- 
 tion of particular instruments ',{x) and, as to fact, it may 
 be in reference to facts appearing on the title, or to facts 
 extrinsic to it.(?/) Again, it may be about a matter of 
 fact which admits of proof, but has not been satisfactorily 
 proved, (^) or about such a matter as from its nature admits 
 of no satisfactory proof, as the negative proposition that 
 there was no creditor of the vendor capable of taking ad- 
 vantage of an act of bankruptcy, (a) 
 
 § 870. It is not easy to give any perfect classification of 
 the doubts which would and of those which would not pre- 
 vail with the court, but the following attempt may not be 
 useless. The court Avould, it is conceived, consider the title 
 doubtful in the following cases :' 
 
 (M) Sheppard v. Doolan, 3 Dr. & War , 8. v. Lord Clanmorrls, 3 Bll , 62; but as to this 
 
 See, too, per Jessel, M. R., in Osborne to see §§ 770, 771. 
 
 Roniett, 13 Ch. D., 781 Consider Cook v. (x) Lincoln v. Arcedecline, 1 Coll., 38; 
 
 Dawaon, 3 De ii. F. & J., 130. Bristow v. Wool, id., 480; per Turner, V. C, 
 
 (v) In Beioley v. Carter, L. R. 4 Ch., 236, in Pyrke v. Weddingham, 10 Ha,, 9. 
 
 240. iy) Id. 
 
 (w) .Sloper V. Fish, 2 V. & B., 145; Blosse («) Smith v. Death, .i Mad., 371. 
 
 (a) Lowes V. Lush, 14 Ves., 547. 
 
 ' Right of (Jotcer as an incumbrance.'\ The vendor agreed to convej', free of 
 all iucumbrances. Held, that the vendor was not obliged to accept the prop- 
 erty, incumbered with an outstanding inchoate right of dower. Shearer v. 
 Ranger, 22 Pick., 447; Smith v. Connell, 32 Me., 126; Heimburgh v. Ismay, 
 35 N. Y. Sup. Ct., 35; Prescott v. Truman, 4 Mass., 629; Henderson v. Hen- 
 derson, 13 Mo., 152; Holmes v. Holmes, 12 Barb., 137; contra, see Obermyce 
 V. Oberty, 17 Ohio, 71; ]\Ianson v. Brimfield Manuf'g Co., 3 Mason, 855; Blair 
 V. Rankin, 11 Miss., 440. Rawle on Covenants, says, pages 138, 139: ''It is 
 one of the best settled principles of the law of vendor and purchaser, that, as 
 a general rule, the right of the latter to a title, clear of all claims whatever, 
 present and future, fixed or contingent, is one of which he cannot be deprived 
 but by his own acts. It is a right, as has been often observed by the greatest 
 equity judges, given by the law, and not springing from the contract of the 
 parties." 
 
 Doubtful tith need not he accepted ] If a reasonable objection is found to exist 
 against the title to real propsrtj", specific performance will not be decreed against 
 the vendee. If there is a cloud on the title, rendering it doubtful, he need not 
 take the property. Vauconner v. Bliss, 11 Ves., 458; Howarth v. Smith, 6 
 Sim. 161; Dutch Church v. Mott, 7 Paige's Ch., 77; Bartlett v. Blanton, 4 J. 
 J. Marsh., 426; Starncs v. Allison, 2 Head (Tenn.), 221; Shapland v. Smith, 1 
 Bro. C. C, 75; Mullins v. Triudcr, L. R., 10 Eq., 449; Sloper v. Fish, 2 Ves. 
 «& Bea., 145; Collier v. McBlau, L. R, 1 Ch., 81; Sohier v. Williams, 1 Curtis
 
 WANT OF A GOOD TITLE. 433 
 
 (1) Where tlie probability of litigation ensuing against 
 the purchaser in respect of the matter in doubt is considera- 
 ble, or, as it was put by Alderson, B.,(^) where there is "'a 
 reasonable decent i)robability of litigation." The court, to 
 use a favorite expression, will not compel the purchaser to 
 buy a lawsuit. (c) 
 
 (2) Where there has been a decision by a court of co- 
 ordinate jurisdiction adverse to the title or to the principle 
 on which the title rests, though the court thinks that de- 
 cision wrong. (fZ) 
 
 (3) Where there has been a decision in favor of the title 
 wliicli the court thinks wrong. (^) 
 
 (4) Where the title depends on the construction and legal 
 operation of some ill-expressed and inartificial instrument, 
 and the court holds the conclusion it arrives at to be open 
 to reasonable doubt in some other court. (/') 
 
 (6) In Cjttell V. Corrall, 4 Y. & C, Ex., 237 (d) Per Lord Romilly, M. R., in Mullings 
 
 (c) PriCi* V strange 6 Ma<1., 159,165; Sharp v. Trlniter, L. R 10 Eq , 454. 
 
 V. Adcock. 4 Rii88.. 374; Heseltlne v. Sim- (e) Id. 
 
 mons.G W.R ,'268; Pepler v. White, 33 Beav , ( /") Per James, L. J., in Alexander v. Mills, 
 
 403. consider Potter v Parry, 7 W. R , 182; L.R. 6 Ch., 132. 
 
 Burnell v. Firth, 15 W. R., 546. 
 
 C. C, 470; Seymour v. Delancy, Hopk.'s Ch., 436; S. C, 5 Cow., 714; Jarraan 
 V. Daviss, 4 T. B. Mon.. 115; Hightower v. Smith, 5 J. J. Marsh.. 542; Beck- 
 with V Korms, 6 B. IMon., •222; iSturtevaut v. Jaques, 14 Allen, 523; Swayne 
 V. Lyon, 67 Pa. St., 486; Young v. Rothlare, 1 C. E. Green, 2-24; Powell v. 
 Connant, 33 Mich., 396; Griffin v. Cunningham, 19 Gratt., 571; Lowrey v. 
 Muldron. 8 Rich.'s Eq., 241; Butler v. O'Hear, 1 Des.'s Eq , 382; Collins v. 
 Smith, 1 Head (Tenn.), 251; Littlefield v. Linsley, 26 Tex., 353; Snyder 
 V. Spalding, 57 111., 480. For a most instructive case, setting out the defects 
 which will induce a court of equity to refuse the vendor aid in a case where 
 there is doubt in relation to title. See Dalzell v. Crawford, 1 Pars. Sel. Cas., 
 37. Baron Park said, in Cadwallader v. Pierce, 11 Jur., 132: "This is not the 
 only case in which courts of law are called on to determine questions appertain- 
 ing to courts of equity. Where a man sells an estate, we are called on to say 
 whether the title he offers is a good one both at law and in equity, and the 
 point before us in such cases is, can such good title be made?" Malins, V. C, 
 said, in Bell v. Holtly, L. R., 15 Eq., 178: "Where doubtful cases of con- 
 struction arise, whether on an act of Parliament or the words of an instrument 
 or a will, it is the duty of this court to remove that doubt by deciding it; and 
 instead of feeling a doubt whether other judges, at other times, may think in 
 the same way with them. I consider it the duty of the court to assume that 
 that which a competent tribunal has at one time decided, will be followed at 
 future times, and that that which judges at the present time think right, is to 
 be assumed judges of eqttal competency in the future will think right also." 
 Lord Eldon said in Vancouver v. Bliss, 11 Ves., 465," he recollected the period 
 when it was the office of the court to decide whether the title was good or not. 
 and it was thought better that the dry rule should prevail that, if the title was 
 good, the purchaser should take it, than that the court should speculate upon 
 the point whether there was more or less difficulty in the title, and say in one 
 case he should take it, in another he should not. The old course was, that if 
 the parties were afraid of the decision, they appealed ; and had not a title abso- 
 lutely indefeasible, but as good a warranty as could be procured. The depart- 
 
 28
 
 434 m;v on >i'i:('iric rKiMoiiMANc e of conikacts. 
 
 (.')) W licit' tlie title rests on ;i i)resunipti(>n of fact of such 
 a kind that if the question of fact were before a jury, it 
 ■\voukl he tl»e duty of the judge not to give a clear direction 
 in favor of the fact, but to leave the jury to draw their own 
 conclusion from the evidence. 
 
 To this ])iin('ii)le we may probably refer many of those 
 cases where a doubt as to a fact has prevailed ; as where the 
 title dei)ended upon proof that there was no creditor who 
 could take advantage of an act of bankruptcy committed 
 by the vendor:(/7) or where the title dei)ended upon the ab- 
 sence of notice of an incumbrance, of which absence the 
 vendor produced some evidence, (7^) or upon the i)resump- 
 tion arising from mere possession. (/) 
 
 And it may be noticed that the court will not allow a vol- 
 untary settlor to force on an iinwilling(y) x>urchaser a title 
 depending on the invalidity of the settlement. (A") "One 
 difficult}^ in the way of assisting him," said Lord Eldon, 
 "is, that he has no equity to defeat the act which 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 may not have been some intermediate acts, 
 
 (g) T.owps V. l.ush, 14 Ves., 547. (k) Smith v. Garlani, 3 Mer., 12.3; Burke v. 
 
 (ft) Freer v Hesse, 4 [)e G. M. & G., 495. Dawson, St Leon. Vend., ^92; Clarke v. \Vi - 
 
 (i) Kj Ion V. Dieken, 4 Pri . 3i 3. lott, L. K. 7 Ex., 3 3. 
 U) Peter v. Mcolls, L. R. 11 Eq., 391. 
 
 ure from that course has been attended with great mischief. Whenever a 
 contract is made for tlie purchase of land, though no doubt has ever l:)een 
 entertained upon the title, no one thinking of disputing it, if the purchaser has 
 a good bargain, he overlooks all these objections; but if he finds he cannot sell 
 the estate as we.ll as he wi-sbed, or cannot enjoy it to his satisfaction, the first 
 thing is that the al)8tract goes to some one for the express purpose of finding 
 out objections, and opinions are given on both sides. I feel great concern for 
 the owners of this sort of property. The consequence is, not only the misery 
 arising from the uncertainty whether that which they have been enjoying with 
 happiness, and upon which their families are to subsist, is their property; but 
 it is an invitation to all who may fancy, that they have an interest in it, to 
 make an attack. There cannot be much doubt, therefore, which is the best 
 rule." See, also, Jervoise v. Duke Northumberland, 1 J. & W., 568. Battin 
 on Specific Performances, page 117, says: "This anomaly in the practice of 
 courts of equity, which refuse to decide whether the title is good or bad, and 
 only decide tfiat there is doubt about it, and which refuse to force the pur- 
 chaser to take the title if there is a cloud upon it, incidentally arose from their 
 considering that there was a remedy at law, and that the jurisdiction was, there- 
 fore, discretionary. But the doctrine seems now to be too well-estabhshed to 
 allow us to confine its application to those cases where relief can be obtained at 
 law. It is said that the court, knowing that its decision on the title could not 
 bind anybody, would not force the purchaser to take a title which it could not 
 waiTant to him. But this obviously supposed an uncertainty as to tlie law, 
 which ought, in a perfect system of jurisprudence, never to be presumed."
 
 WANT OF A GOOD TITLE. 435 
 
 Avliicli, by matter ex iDost facto, may have made the settle- 
 ment good which in its origin was not good.''(0 
 
 (6) Where the circnmstances amount to j)resumptive 
 {though not necessarily conclusive) evidence of a fact fatal 
 to the title; as, e. g., that the exercise of a power nnder 
 which the vendor claimed was a fraud upon the power.(w.) 
 
 § 871. On the contiary it is conceived that the court 
 would consider the title not to be doubtful in any of the 
 following cases, viz.: 
 
 (1) Where the probability of litigation ensuing against 
 the purchaser in jespect of the doubt is not great, the court, 
 to use Lord Haidwicke's language in one case, ''must a'ov- 
 •ern itself by a moral certainty, for it is impossible, in the 
 nature of things, there should be a mathematical certainty 
 of a good title. "(vO Accordingly, in the case before Lord 
 Hardwicke, his lordship enforced specific j^erformance, 
 although there was a reservation of mines, because the 
 court was satisfied that there was not- subject matter for the 
 reservation to act upon, or that all legal right to exercise it 
 had ceased. (o) And in another case. Lord Romilly, M. R., 
 forced on an unwilling purchaser a title depending on the 
 validity of a i^urchase by a solicitor from his client, on proof 
 of the validity of the transaction, though given in the ab- 
 sence of the client, who. it was urged, might possess other 
 evidence and ultimately set aside the sale.(^;) 
 
 (2) Where there has been a decision adverse to the title 
 by an inferior court, which decision the suj)erior court holds 
 to be clearly wrong, (g) 
 
 (3) AVhere the question depends on the general law of the 
 land. "As a general and almost universal rule, the court 
 is bound as much between vendor and purchaser, as in every 
 other case, to ascertain and so determine, as it best may, 
 what the law is, and to take that to be the law which it has 
 so ascertained and determined. "(r) 
 
 (4) Where the question, though one of construction, turns 
 
 (0 In Johnson v. Legard. T. & R., 294. Seaman v. Vawdrey, 16 Ves., 393; Martin v. 
 
 See, too, Clarke v. Willott, L R. 7 Ex., 313. Cotter, 3 Jon. & L., 496. 
 
 For an instance of a decree for specific per- (,p) spencer v. Topham, 22 Beav , 573 See, 
 
 formance, notwithstanding a previous vol- too, Falkner v. Equitable Reversionary So- 
 
 iintary grant, at the suit of a purchaser, see ciety, 4 Drew.. 3.i2. 
 
 Rosher v. Williams, L. R. 20 Eq., 210. (g) Supra, § S67. 
 
 \m) Warde v. Dixon, 28 L. J. Ch.,315; S. (r) Per James, L. J., In Alexander v. Mills, 
 
 C, s. n., Warde v. Dickson, 7 W. R., 148. L. R. 6 Ch., 131, 132; Forster v. Abraham, L. 
 
 (re) In Lyddall v. Weston, 2 Atk. R. 17 Eq., 351; Osborne to Rowlett, 13 Ch. 
 
 <o) See, as to this case, per Grant, M.R., In D.,774,
 
 430 FllY UN SPKflFlC l>EKFt)HMANCE OF CONTRACTS. 
 
 on a general rule of construe rion, unaffected by any special 
 context in the instrument, and the court is in favor of the 
 
 title, (.s) 
 
 (5) AVhere the title depends on a presumption, provided 
 it be such, that if the question were before a jury, it would 
 be tht- duty of the judge to give a clear direction in favor 
 of the fact, and not to leave the evidence generally«to the 
 consideration of the jury.(0 So where the recital of deeds 
 raised the presumption that they contained nothing adverse 
 to the title, the mere loss of the deed, where the title was 
 fortified by sixty years' undisputed possession, was held 
 not to create a reasonable doubt ;{u) and so again, where 
 the validity of a title depended on no execution having been 
 taken out under certain judgments, between the 27th Sep- 
 tember, 17^^*9, and the 23d May, 1770, and nothing was shown 
 to have been done which could be referred to sucli an exe- 
 cution, the court considered the title good.(«) To this head 
 may perhaps be referred the fact that the court will (except 
 at the suit of the settlor[?o]) compel specific performance of 
 a title depending on the invalidity of a voluntary convey- 
 ance as against a purchaser for valuable consideration with- 
 out notice, (ic) the court, as it seems, acting on the presump- 
 tion of the conveyance not having been rendered valid by 
 subsequent dealings.' 
 
 (s) Radford v. Willis, T,. R. 7 Ch., 7. (r) Cauhton v Macklew, 2 Sim., ■242. 
 
 (t) Emery v. Grococb, 6 Mad., 54; Barnwell (w) Supra, §§ 387, 448, 870. 
 
 V Harris, 1 Taunt , 430. (x) ButterfleUl v. Heath, 15 Beav., 408 ; 
 
 (M) Prosser v. Waits, 6 Mad., 59; Magennis Buckle v. Mitchell, 18 Ves., 100. 
 V. Fallon, 2 Moll., 561. 
 
 ^ Mdrketabh title, specific performance.'\ A court of equity will not decree 
 specific performance, unless a marketable title can be given. It is not enough 
 that a court might consider the title good Swayne v. Lyon, 67 Pa. St., 436; 
 Littlefield V. Fiusby, 26 Texas, 353; Liulcons v. Coo'per, 2 W. Ya., 67; Speakman 
 V. Forepaugh, 44 Pa. St , 363; Freetley v. Barnhart, 51 Pa. St., 279; Butler v. 
 O'Hare, 1 Dessau. 's Eq., 382 ; Thompson v. Dalles, 5 Rich. Eq.. 370; Powell v. 
 Conanti 33 Mich., 396. The rule is slightly qualified in Vreeland v. Blauvelt, 
 23 N. J. Eq., 483. 
 
 Construction of tlie words '■'good deed,'' or its equii'aleni.~\ A covenant to exe- 
 cute and deliver a good and sufficient deed, means an operative conveyance, or 
 one that transfers a good and sufficient title to the land. Where the contract is 
 to o-ive a "good deed," or where equivalent words are used, it is not enough 
 that a deed with proper warranty is executed in legal form. In order to sat- 
 isfy the language, the deed must be good and sufficient to convey a title to the 
 land, both in form and substance, Clute v. Robinson, 2 Johns., 413; Everston 
 V. Kirkland 4 Paige's Ch., 638; Burwell v, Jackson 9 N. Y.. 535; Mead v. Fox, 
 6 Cush., 202; Mitchell v. Hagen, 4 Conn., 495; Taft v. Kes.sel, 16 Wis., 273; 
 Morgan v. Smith, 11 111., 199; Tindell v. Conover, 1 Zab., 654; Jones v. Gard- 
 ner, 10 Johns.. 266; Judson v. Wass, 11 Johns., 528; Traver v. Holstead, 23
 
 WANT OF A GOOD TITLE. 437 
 
 (6) Where tlie doubt raised rests not on proof or pre- 
 sumption, but on a suspicion of mala fides. This point has 
 .given rise to some diversity of opinion. In Hartley v. 
 Smith, (?/) the title depended on a deed of grant of chattels, 
 containing a stipulation for the grantor s continuing condi- 
 tionally in possession ; and Leach, V. C, withont 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 consideration and bona fide, and that these were 
 ■circumstances, the existence of which the purchaser had no 
 adequate means of ascertaining. "My opinion, therefore, 
 is," said the vice-chancellor, " that a court of eqnity onght 
 not to compt-1 this purchaser to accept this title ; because 
 assuming the deed not to be fraudulent ex facie, it still may 
 be avoided by cii'cnmstances extrinsic, Avhicli it is neither 
 in the power of the purchasers or of this court to reach. "(2) 
 
 (2/) Buck, Bankr. C , 36S (s) P. 380. See, also, Boswell v. Mendham, 
 
 6 Mad., 373. 
 
 lud , 6'!; Carpenter v. Bailey, 17 Ind., 244; Pomerov v. Drury, 14 Barb., 424; 
 Fletcher V. Button, 4N Y., 400; Story v. Conger, H6 N. Y., (iT3; Swan v. 
 Drury. 22 Pick., 48S; Gilchrist v. Bine, 1 Den. ct Bart. Eq , 84(i: Little v. 
 Paddleford, 13 N. Y.. 1G7; Watts v. Waddle, 1 M'I.ean, 'iOH; Lawrence v. 
 Dole, 11 Vt., 541); Greenwood v. Ligon, 10 Sni. & Marsh., ()I5; Dodd v. Sey- 
 mour, 21 Conn., 480; Pugh v. Chesscldine. 11 Ohio. 109; Hunter v. O'Neil, 12 
 Ala., 37; Freemaster v. May, 13 Sm. & Marsh., 275; Cunningham v. Sharp, 
 11 Humph, 120; Dearth v. Williamson, 2 Searg. & Rawle, 41)8; Cowell v. Hamil- 
 ton, 10 Watts, 415; ( hristiau v. Cabell. 22 Gratt., 82; Tarwater v. Davis, 2 
 Eng. Ark., 153; Toll Bridge Co. v. Yreeland, 3 Green Ch., 132 Contm. Par- 
 ker V. Parmlee, 20 John., 132, where it was held, that a covenant to convey 
 " by a good warranty deed of conveyance" refers to the instrument, and not 
 to the title, and is satisfied by the execution of a warranty deed, "^ee, also, 
 
 ■Gazeley v Price, Ui John., 2l>"7; Barrow v. Bispham, (i HaKsh., 119; Brown v. 
 Covilland. 6 Cal , 566; Tinney v. Ashley, 15 Pick , 552; Hill v. Robert, 16 Me., 
 lf)4. In Delavan v. Dimcan, 49 N. Y , 487, the court says that Gazeley v. 
 Price, and Parker v. Parmlee, were both overruled by the Court of Appeals 
 
 .(the highest court in New ^ ork) in Burwell v. Jackson, supra. "In this 
 
 'Case it was distinctly held that a covenant to give a good and sufficient con- 
 veyance of land would be performed only by givii g a deed that would vest in 
 the grantee an unincumbered title to the premises." Brown v. Gannon, 14 
 John, 276 is an instructive case as explaining the words " the title to be a good 
 and sufficient deed." In Vermont it has been held that where the grantor cove- 
 nanted '-to give a good and warranty deed," that this language did not refer to 
 the title, but did refer to the instrument, and that the contract was not broken 
 by the inability of the vendee to convey free of incubrance. Joslyn v. Tay- 
 lor, 33 Vt., 470; Preston v. Whitcomb, 11 Vt.. 47. 
 
 " The title on inventigntion to be satinfar.tory "] Where thi.s languat-e was used 
 in a written contract for the sale of land^ and the vendee gave notice that he 
 was not satisfied with rhe title Held, t^'at an agreement on the part of the 
 vendee to perfect the title did not make the case one for specific performance. 
 
 "Taylor V. Williams, 45 Mo., 80; see, however, Lord v. Stephens, 1 Y. & C. 
 Ex.. 222.
 
 488 FItY ox SPKCIFIC PKHFOPvMAXrf: OF COXTUACTS. 
 
 vj ST'I. This dictum seems to allow no room to the pre- 
 sumption of ho)i(i Jules, and to make the jjossibilit}^ of fraud 
 in extrinsic facts a sufficient objection to the title: accord- 
 iniily. it has not Ix'en accepted in all its generality. It 
 "must not," said Alderson J-5. of this dictum, ''be pushed 
 to the farthest extent which the words will i)ossibly 
 bear ;'"(«) and, accordingly, that judge lield good a title 
 under a deed which extrinsic evidence might hav^^- 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 nuide in contemi)lati(m of bankruptcy, 
 because there was no ground apparent for nudving any of 
 these objections to it.(//) 
 
 § 873. In Green v. Pulsford(c) the vendor claimed under 
 an appointment made by a husband and wife to their eldest 
 daughter, under a settlement gave them successive life 
 estates, with remainder to their childi-en as they slioidd. 
 appoint, and in default of appointment between such chil- 
 dren ; 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 everyone's mind a suspicion that the appointment 
 was a fratid on the settlem-nt, and that was strt^ngthened 
 by a notice from a younger son to the purchaser not to com- 
 plete, and that the appointment was such a fraud ; but 
 inasmuch as the notice alleged no facts, and gave no infor- 
 mation not apparent on tlie 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. In an earlier case, where there were somewhat 
 similar grounds for suspecting the bona fides of an appoint- 
 ment. Lord Eldon pursued the same course, and enforced 
 specific j)erformance.(r^) 
 
 § 874. In another case, the purchaser showed that the 
 title was made under a sale by newly appointed trustees to 
 a person who had previously bought the interest of the ten- 
 ant for life, and who, eighteen months afterwards, made a 
 
 (a) 4 Y. & C. Ex . 236. also. Grove v Bastard, 2 Ph.. 619; S. C, 1 De 
 
 (h) (;att»-,ll V. (jorrall, 4 X. & C. Ex., 228. »J. M & ti , G9; and Re Huish'a Charity, L.. 
 
 (r) 2 Hf-av.. 71. H. 10 Kq. 5. 
 (d) M Queen v. Farquhar, U Ves., 407. See,
 
 WANT (»!•• A (;o«)D Till.?:. 4:^0 
 
 profit on liis i»iirchase : but the court lu-ld ili.-r- rinuui- 
 stnncHS i in ma terial . (/') 
 
 55 ^7Si. A^ain, a puirliasrr is not ••fiiillfd in t lie absence 
 of circmustances of suspicion to refuse a till*' nuele under 
 a will, because tlie will has not l)een jirovt-d aixaijist the 
 ht'ii- or lit' dot's not join :(_/') so that wlifrc, ilurinu' a lili^T'i- 
 tion of thirteen ycar^. no (juestion had bfcn iai^<'d iin- 
 ])«'achin,u" .the validity of the will, and a |tei-son who hail 
 claimed uiidfi' anotlifi- will ha<l w it lnhau ii from all conten- 
 tion against the one hist mentioui'il. l/)i'd Hatlierlcy ( tlu*ii 
 Wood. y. ('. ) con4>elled the purchaser to take a title un<l'-r 
 the will.! 7)' 
 
 sj S7(>. Where the court comes to the conclusion that a 
 irood title can be made it litMu-rally onlers t!ic jturchascr to 
 l)ay tlie costs of the litigation, so as to assure his title ;ind 
 show that the court entertains no doubt ujton it.i//) 
 
 s5 H77. llecent legislation affords machineiy under whi(di, 
 in some cases at least, the i)ers<)n making an adverse claim 
 may be brought into the liiigatioii. an<l that, which in his 
 absence might have lemained doubtful, may receive judicial 
 detennination. It seems worthy of consideration whether 
 this jtrinciple could not be further extended." 
 
 J; S*7^». By the' land translV-i- act, 187.") C^S and ;'.!> Vict., c. 
 87), s. 9:^, it is enacted that " wliei-e a suit is instituted for 
 the specilic perforinance of a contract i-elating to registered 
 land or a legisteied <-haige, the court having coi:ni/.ance of 
 such suit may by summons, or by such other moile as it 
 de^ms expedient, cause all oi' any p;iriies who have regis- 
 tered estates or rights in such land (»r charge, or have 
 entered up notice^, cautions, oi' inhibitions against the 
 same, to ap}ie;ii' in such suit and show cause why such c(»n- 
 
 (6) Al«x;in.l r V. MilN. I,. Ii. C Ch . 1>4. let', KJeh. r>.. T'.ts; «-r. Ml.»i..li« v. < •.rlM-t«,»4 
 
 (/•iColtoii V WiNon, :{ r 'ViiiH. I!K»; p-r U.-iv, :{si. .<.«.'; U »• I v I. T I H irrlnj{t >n, 
 
 T.onl K '[on in M..rii-(..t, v. Aniol.l. Ill Va , I.. K. (J K.)., J.'4; Ao.U v. tlyl- . 10 »V U.. 
 
 67i). \Vi!.| l;ill V. \i\Mi IT H.-iv., It;(i :n I In IC.pII -nl v *Vi||ii.|, K T Cti.. 7. Ill 
 
 (.7) M'CuliiH-n V (irt'Kory. :{ K Ji..1.,\i. iii<' inin-hHifr was " CM;u»o<i'' lr«in iMiyiniC 
 
 (ht Per Jcsdcl, M. U., In OjHoriie l> How- oml: 
 
 ' See to this effect, tlie ruse of Huller v O'llenr, 1 Dessiiii., 3S2. . 
 
 - Hut a title miiy he (loulitfiii, l)cc)iii>;e it (Icpciidt on ii <li)ulitful iiilerprela- 
 tioii of a will, if all parties wlm may i)o interesli-il in llu' ft^ljili- are ii<it it-iuii«l 
 l>v the decree;, aiul therefore will ii<»t lie forectl (ipmi a pnrrli.is. r. S«ihier v. 
 Williams. 1 Curtis' V. C. Hep. -171). 
 
 Where will pn-siMits diniciilt tpH'stions df (•(»iistru<tion its lo lillc it is tuilitT 
 of (listTction with court as to wiifllu-r it will ii>'np»l ^pciilli- p.Tf.irm mev nf a 
 coiitrael for sale of l.in.l. Kelso v. Loullar.l. s.') .N". V . ITT.
 
 440 FKY ox .SPKCIFIC rKKFOU:^! AN( E OF CONTRACTS. 
 
 tract slioiild not be specifically performed, and tlie court 
 may diivct that any order made in such suit shall be bind- 
 ing on such parties or any of them."(0 
 
 ^ H7ft. Aiiain. by the rules of the Supreme Court, wliere 
 it appears to the court or a judge that a question in the 
 action should be determined, not only as between the plain- 
 tiff and defendant, but as between the i)laintiff, defendant, 
 and any other person, or betwHen any or eithei- of them, the 
 court or a judge may, on notice being given to such last- 
 mentioned person, make such order as may be proper for 
 having the question so determined. (,/) 
 
 § 880. In a case wliere parties stated facts in the form of 
 a special case, and required the opinion of the court whether 
 on these facts a good title was shown, the court declined to 
 consider the question of the title being doubtful : it con- 
 fined itself to the question asked, whether or no a good title 
 was shown. (A:)' 
 
 (i) See infra. § HIO. ''ase under Sir Geo Turnnr's Art (13 and 14 
 
 (j) Old. XVI, r. 17. ser, too, Rules 17,21, Vift , c. 3.)), ss. 2, 18 the procedure under 
 
 of the pani." Order, 8uprrt.*i 1()8 whi.-h has heen Fup. rseded l>y V'Hl under 
 
 {k) Gt.vrnors for R.-liet of Poor Widows Ord. XXXIV (see et'peiially ru e 1). 
 
 of ClerKjmen, etc., v. Sutton, 27 lieav., G.il, a 
 
 ^ III a caKe where the title is suspicious, extrinsic circumstances.'] Equity will 
 not dt'cree spccitic judgment against a purchaser in a case where although tliere 
 is no proof of fraud, yet tliere are instances connected with the title which 
 would give a prudent man cause for suspicion, and the good or bad i'aith of the 
 transaction depends upon extrinsic circumstances. In Hartley v. Smith. Buck's 
 Banks Gas., 86>^, the vice-chancellor, said. "My opinion, therefore, is, that a 
 court of equity ought not to compel the purchaser to accept this title; because 
 assuming the deed not to be fraudulent ex-fncie, it still may be avoided by cir- 
 cumstances extrinsic, which it is neither in the power of the purchaser or of 
 this court to reacli." 
 
 Aft^r possession has been, occvpied by the renilee.'] Both courts of law and 
 equity where the transaction is free from fraud, apply the maxim caveat emptor 
 to contracts of purchase of real as well as of personal property, a purchaser 
 may in general, rely on old deeds, as to location and boundery. Welsh v. Hall, 
 66 iN C., -2'd'^. Where the contract is executory, if the vendor has no title the 
 vendee may have a rescission: but if the agreement has been extended, in order 
 that a court of equity may grant relief to the purchaser, or restrain the col- 
 lection of the purchHse money, eviction or fraud must be averred and proved. 
 Patton V. Taylor. 7 How., 13H; Campbell v. Medbury, .5 Bissell. 3:^). The ven- 
 dee of land in possession, soiigbt to resist the payment of the purchase money, 
 on the ground that his vendor could not make a good title; the paramount title 
 being in a third party. Held, that he must show affirmiitively the existence of 
 such paramount title, and that the evidence must be clenr and satisfactory. 
 Cantrel v. Mobb. 63 Ga., 19]; Sawyer v. Sledge, 55 Ga , l.')2. 
 
 Iifumbran/^es existing against real proj)ertg sold ] Where real property has 
 been sold free from incumbrances, a purchaser need not receive his deed, and 
 pay his money while incumbrances ext^t against the property. A court of 
 equity will not compel him to rely on the personal responsibility of the vendor, 
 but will .suspend the payments of the purchase money until the incumi-rances 
 are removed, if this is not done after a reasonable time the contcact will be re-
 
 WANT OF A GOOD TITLE. 441 
 
 scinded. Bisliop v Newton, 20 111., 175; Rindley v. Gray, G Ired.'s Eq., 445; 
 Shaw V. Viiiceiil. 6tN. i\, 690; Wallace v. McLaughlin, 57 111., 53. In David- 
 son V. Perrine, 22 N. J. Eq , 87, where the vendor filed a bill for specific per- 
 formance, that the vendee should elect either to accept such a title as the vendor 
 was able to convey, or abandon the contract, and restore the pos.session 
 
 lYme within, icliicli the vendor muj^t be prepared to make a good title ] In order 
 that a vendor may be in a position to envoke the aid of equity in enforcing spe- 
 cific performance of a contract of sale of real projjerty, he must show that in 
 good faith, and without unnecessary delay he has performed all the obligations 
 which devolved upon him; or that he is ready and in a position to do so. King 
 V. Hamdton, 4 Pet., 311; Seymour v. Delauc y. G Johns., Ch., 222; Grundy v. 
 Ford, Litt Sel. Gas., 129; Barnett v. Higgins, 4 Dana, 565. A reasonable dil- 
 ligence must be exercised by the vendee in ascertaining the state of the title. 
 Havens v. Bliss, 26 N. J. Eq., 363 The vendor will ^ot be deprived of his 
 right to enfo'-ce the contract specifically, by mere delay, unless it be shown 
 that such delay has been unreasonable and without excuse; and it is out of the 
 power of the court to place the respective parties in the same position they 
 would have occupied had the contract been carried out before. McKay v. 
 (Harrington, 1 McLean, 5i); Cooper v. Brown, 2 McLean, 495; Snyder v. Spaul- 
 ding, 57 111., 480. It appears to be the well settled rule that the vendor of real 
 estate has a right to a decree of specific performance, in cases where time is not 
 of the essence of the original contract, without showing that the title is actually 
 in him at the time of the conveyance. If lie is able to give a good title at the 
 time of the decree, it is usually sufficient. In Layford v Pitt, 2 P. Wms , 
 629, it was said pi;r curiam, " It is sufficient if the party entering into articles 
 to sell has a good title at the time of the decree; the direction of the court being 
 in all these cases to inquire whether the seller can, not whether he could, make 
 a title at the time of executing the agreement In the case of Lord Stowttm v. 
 Sir Thomas Meers, the Lord Stowton, at the time of the articles for a sale, or 
 even wiien the decree was pronounced, could not make a title, the reversion in 
 fee being in the crown. And yet the court indulged him with time moie than 
 once for the getting in of this title from the crown, which could not be effected 
 without an act of Parliament to be obtained in the foUovvipg session. How- 
 ever, it was at length procured and Sir Thomas Meers decreed to be the pur- 
 chaser. Indeed it woiild be attended with great inconveniences, were decrees 
 to direct an inquiry whether the contractor to sell had, at the time of entering 
 into such contract, a title; for this all encumbrances, and defects must be raked 
 into. Wherefore, it has been thought sufficient to answer the end, if, at the 
 time of the decree or report the seller can make a good title " See, also, Hep- 
 burn v. Auld, 5 (ranch, 262; Wilson v. Tappan, G Ohio, 172; Mays v. Swope, 
 8 Gratt., 74; Allerton v. .Tohn.son, 3 Sandf. Ch.. 72; Dubose v. James, McMul- 
 lan Eq., 55; Hepburn v. Dunlop, 1 Wheat., 179; Seymour v. Delaney, 3 Conn., 
 445; Cotton v. Ward, 3 Monr.. 305; Westall v. Austin, 5 Ired.'s Eq., 1; Brown 
 v. Haff, 5 Paige's Ch , 235; Luckett v. Williamson, 37 Mo., 388; Moss v. Han- 
 son, 17 Pa. St., 370; Mus.selman'3 App., 65 Pa St., 480; Wmne v. Reynolds, 
 6 Paige's' h., 407; Jenkins v. Fahey. 73 N. Y , 855. In Rutland v Brister. 53 
 Miss., G83, it was held, that a party could contract to convey land, he having 
 at the time no title either legal or equitable in it; and that his obligation was 
 fulfilled if when the time for performance arrived, lie induced the real holder 
 of the title to convey to the vendee. 
 
 Inabiliti/ to nh'ain tit/f, go id defence ] An action was brought for specific 
 performance of a contract to convey land. The vendor was unable to convey 
 by reasim of want of title Held, a good defense, after reasonable efforts to 
 obtain title, ^wepsou v Johnson, 81 N. C, 449.
 
 442 ritV ox SPEC IFIC I'KUFoKMANCE OF CONTKACTS. 
 
 CHAPTER XIX. 
 
 OF FAILFKE OF THE COXSIDERA'IloX, 
 
 § 881. It will be necessary to inquire under what circum- 
 stances events wliicli either detennine the existence of die 
 subject-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 compensation, but will not prevent performance 
 of the contract.' 
 
 ' Vi-ndor xlio'ild inspect property.^ A piirchuser had an opportunity, and was 
 urged to inspect the property, i)ut neglected to do so; there was no fraud in 
 the transaction. Held, that lie slundir not be relieved from his purchase by 
 reason of the partial failure of consideration Vincent v. Berry, 46 Iowa. 571. 
 
 P.THoii'il property, fdilnre of conxidenitioii.] The rule is. not only that there 
 is sucii property. Init that it is really in the form, and is of the deseription 
 stated in the agreement. .Morrill v. Aden, I'.J Vt , oO.l; Dutman v. Porter, loO 
 
 Ma.ss., m:. 
 
 Property sold by. order of Vie court.'] In such a case, the question frccpiently 
 to be determined is whether the agreement is conchiiled by the sale, subject to 
 defeat if the same is opened, in which case the agreement will relate back to 
 the day of sale: or whether the contract is not concluded until it becomes ob.so- 
 lute by having been confirmed by the court The rule appears to be, that the 
 first review is sustained bv the weight of authority. Ve.sey v. Elvvood. '6 Dr. 
 & W.. 74; Anson v. Tovvgood. 1 .1. & W., (i:j7; Robertson v. Spelton. 12 Beav., 
 260; See, also, Busey v. Hardin. 2 B Mon , 4i)7; Owen v. Owen, 5 Humph., 
 852; Kobb V. ]Mann, I Pa St, ;>00. is an in.struciive case in this connection. 
 See, as well, Stoner v. Rice, 3 Whart., 2."); iiashaw v. Whisler, ;j Watts. 41)4; 
 Morri.son v. Wurtz. 7 Watts, 4:57; Bjllas v. McCarthy, 10 Watts, 22; Andrews 
 V. Scottau, 2 Bland Ch. (Md.), 62!). 
 
 IiKibiUtii to f'lltillattime (uireed upon.] Where an a^rreemcnt to purchase is 
 to be completed at a definite period, and the title is tinaily made out, the par- 
 ties to the same continuing in treaty and the party purchasing not by any acts 
 relca.sed from his agreement, it is the rule that ilie estate belongs to the pur- 
 chaser, from the date of the contract, and the money to the party who sells. 
 The completion of title must not i)e unreasonal)ly delayed by the vend.tr. 
 Brewer v. Herbert, 30 Md.. :50!; Griffin v. Cunningham, 10 Gratt., 571. Where 
 the house was consumed by fire before titles was perfected, held, that specific 
 performance would not be tlecreed. Christian v. Cabell, 2i Graft... 82. 
 
 Un£.vcitml delay in paymeM.] Where this is the fact, and a material change 
 of circumstances have transpired, which makes the contract more onerous, 
 equity will not decree its specific performance. Andrews v. Bell, 56 Pa. St , 
 343; iiouton v. Sheifer, 21 Gratt., 474; Menet v. Brown, 10 N. J. Eq. (4 Green), 
 286. 
 
 (Jondilional contract. Rule] The condition must be performed, before the 
 contract becomes absolute, 'i'he propeity is at the risk of the vendor, until 
 thit is the fact. Penfield v. Penfield, 4rConn.. 474; .laycox v. Clark, Walk, 
 (ilich.) I h., 50'^: Davis v. Bowker, 1 Nevada, 487; Counter v. Macpherson, 5 
 Moo. P. C. C, 83.
 
 FAILUllE OF THE CONSIDERATION. 443" 
 
 1. Eoenia prior to the contract. 
 
 % 88*2. Events may happen before the conclusion of a 
 contract, which may either (1) determine the existence of 
 its subject matter, or (2) mateiially affect such subject mat- 
 ter. The former chiss of events do not, properly speaking, 
 avoid the contract, but prevent its ever arising, on the ground 
 of the common mistake ; the hitter class of events give the 
 parry injuriously affected a right to avoid the contract.(rt)' 
 
 § 883. In one case, tlie contiact was for the sale of an 
 estate in fee in remainder cm an estate tail : a conveyance 
 had been executed and a bond given for payment of tlie 
 purchase moiiey, when it was discovered, for the first time^ 
 that at the time of the sale no such remainde'r existed, the 
 tenant in tail having previoush' suffered a recovery ; the 
 court rescinded tlie contract, and ordered the bond to be 
 delivered up and repayment to be made of all interest which 
 liJid been paid on \l.\hf 
 
 § '^'^^. In another case, where, in order to preserve the 
 timber on an entailed estate fiom being cut down by the 
 assignee in the insolvency of a tenant for life, the owner of 
 the next life estate and the tenant in tail contracted with 
 the assignee that he should be deemed to be entitled to the- 
 timber, as if it had been cut down and carried away by him 
 
 (nr.) Consi \cx Pri<'.haril v. Mercliant-*'. etc , (i) Hitchcock v. Giddi gs, 4 Pri., T35. 
 Lite Assurance Sock-ty, 3 U. U , N. >-5., 6-2i. 
 
 ' It is well settled tluita contract muy be avoided for failure of consideration; 
 but it must l)e a total one, or at least total as to distinct parts of the contract; 
 the oI)ject of the agreement must he defeated or rendered unattainable by the. 
 default. Morrill v. Aden, li) Vt. (4 Washb.), 50'): Baker v. Thompson, 1& 
 Ohio, 504 -clhy v. Hutchinson, 4 Gilm., aiU; .Jacox v. Clark, Walk. Cli., 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 Avater 
 power, and dig a race on complainaut's land, in consideration of erecting a mill 
 at a certain place where their lands joined. But the defendant, having diver- 
 ted 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 set- 
 ting up his deed in defense in any action for a previous diversion of the water. 
 At law, a failure of consideration in cases of contract, is constantly treated as 
 a sufficient ground for consitlering the contract as rescinded and maintaining 
 an action for money had and received. Cloherty v. Creek, 3 Har. ct J., ;)28; 
 Eames v. Savage, 14 Mass., 435; Lyon v. Annable, 4 Conn., 850; Gillet v. 
 Maynard 5 .John., h5; Ravmond v. Bearnard, VI id., 274; Wheeler v. Board. 
 Id , 868; Davis v. :Marston. 5 Mass., lyO; Danfortli v. Dewey. 8 N. H. 79; 
 Spring V. Cotlln, 10 Mass., 81; Lacoste v. Flotard, 1 Rep. Con. Ct., 467; Whar- 
 ton V. O'Hara, 2 N. & M., 65; Duncan v. Bell, Id., 158; Pettiboue v. Roberts, 
 2 Root, 258; Boyd v. Anderson, 1 Overt'., 488; Putnam v. Westcott, 19 
 John., 73.
 
 444 fi:y on si»i:cii'ic pkkfoji.maxce of coxtracts. 
 
 on a specified day prior to the contract, but should not 
 actually cut it before another specified day ; and at the time 
 when tliis contract was made, the insolvent was dead, but 
 no ])arty to the conti'act was aware of that fact ; the court 
 of appeal declined on the grounds of mistake and absence of 
 consideration, to enforce the contract.(c) 
 
 § S8.>. Again, where a contract for the sale and purchase 
 of shares in a company was entered into at a time when, in 
 fact, though neither vendors nor purchaser knew it, a peti- 
 tion for winding up the company had been presented, the 
 court of appeal refused to enforce the con tract. (<;Z) 
 
 § 886. A contract relating to a chattel implies, at com- 
 mon law, the existence of the chattel and its existence in 
 the form or of the description specified in the contract, and 
 consequently an event destroying the chattel before the con- 
 tract is concluded puts an end to it. Therefore, where a 
 contract for the sale of a life annuity was concluded in 
 England on the 28tli of February, and the annuitant died 
 in New South AVales on the 6th of the same month, there 
 was held to be no contract ;(c) and where a floating cargo 
 was sold, and it snbsequentl}^ appeared that, at the time of 
 the sale, the captain had sold the cargo abroad, in conse- 
 quence of the damage it had sustained at sea, the exchequer 
 chamber and the House of Lords held the contract to be 
 incapable of being enforced. (/")' But no warranty being 
 implied at common law as to condition, the sale of a ship 
 at sea, which at the time happened to have been stranded, 
 was held binding, for the subject of the contract still con- 
 tinued a ship.(//) The impossibility of performing a con- 
 tract of which the subject matter is extinct would, of course, 
 prevent the interference of a court of equity in these cases, 
 if, on other grounds, it could give relief. (/c) 
 
 (c) Cochrane v Willis, L. li. 1 Ch, 58. (/) Coutiirierv. Ha8tle,8 Kx ,40; reversed 
 
 id) Kmmersoti's CBfe, L. K. 1 <Jh., 433, re- In Cam. Scic.,9 Kx., lOi; tlie reversal aflirm- 
 
 versini? tii« onler ol' Lt)rd Hoiullly, M. It , L. eil ."J U. L C, 673 
 
 K. 2 Eq , 231. (a) Barr v Gliis..n, 3 M. & VV.,390. 
 
 («) siri'klHiifl V. Turner, 7 Exch., 2US; cf. (h) sets liil'ra, § H6H. 
 Cochrane v. Wllhs, L. K. 1 CD., ^S. 
 
 ' Tlie same doctrine obtain.s at law. Dick.son v. Cunninijham, Mart. & Yerg., 
 20:1 In that case, the defendant was indebted to A., who was indebted to fi., 
 who was indebted to tne phiintiff; they ail met toj^ether. and the defendant 
 aided ^1. in successfully a.ssigning to the plaintiff a debt which belonged to 
 neither: and, by this means, A. paid his debt to ]}. and B. paid hi.s debt to the 
 plaintilf, aiuj ^4 credited, the defendant. Held, tiiat the plaintiff might disaf- 
 lirm the coutratt, and maintain an action of assumpsit against the defendant.
 
 FAILURE OF THE CONSIDERATION. 445 
 
 § 887. But a person may so contract as to preclude him- 
 self from raising any question as to the existence or deter- 
 mination of the subject matter at the time of the contract. (/) 
 § 888. The question of the time at which the contract 
 became complete, frequently arose in cases of sales by the 
 court of chancery, because until the report had been con- 
 firmed absolute, or, according to the subsequent practice, 
 until eight days after the certilicate of the purchase had 
 been signed by the judge in chambers, the biddings might 
 be reopened.(,/) In these cases, the question was, whether 
 the contract was to be treated as concluded by the sale be- 
 fore the master or the chief clerk, subject only to being 
 defeated by the opening of the biddings, in which case the 
 confirmation related back to the day of sale, and that day 
 divided events prior and events subsequent to the contract ; 
 or, on the other hand, whether the contract was to be con- 
 sidered concluded only when it became absolute and inde- 
 feasible by the confirmation. In the case of Vesey v. 
 Elwood,(^-) Lord St. Leonards decided on the former of 
 these views, that the sale transferred the property, subject 
 only to the risk of its being opened. This was the view of 
 Lord Eldon also, in Anson v. Towgood,(Z) though it seems 
 at variance with the previous cases(7M) before him. The 
 other view was supported by the statement of Lord Lang- 
 dale, M. R.: "By the established 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 ;"(7i) but 
 as the circumstance which in this case gave rise to the ques- 
 tion was not only after the sale but after the confirmation 
 also, the case is probably not of the same weight on the 
 point now under discussion, as if the circumstance had 
 been after sale but before confirmation.' 
 
 (i) Hanks V. Pulling, 25 L. J Q. B.,375; S. (m) Ex parte Minor, 11 Ves., 559 (which 
 
 C (s n. Hanks v. Pulling) 4 W. U., 607. See may, perhaps, be supported by the general 
 
 Uifra S 1-^88 power of the court in dealing with such con- 
 
 (i) 'll and' 16 Vict., c. 80. 8. 34. contracts) . Twigg v FiUeld Jfje^ • pll" 
 
 (k) 3 Dr & War 74 (»*) Uobertson v. rikelton, 1-2 Beav.. 26 i, 265, 
 
 (I) IJ. & W., 637*. cf. Paramore v. Greenslade, 1 Sm. & G., o41. 
 
 1 In Kentucky, it is clearly the rule that the highest bidder at a sale, under 
 a decree is held only as a preferred bidder, subject to confirmation by the 
 chancellor. Busey v. Hardin, 3 B. Monr. 407. And it would seem that the 
 same doctrine is adopted in Tennessee. Owen v. Owen, 5 Humph., 3o3 In 
 Maryland the practice of opening biddings does not prevail. Andrews v. boot- 
 ten, 3 Bland, G39.
 
 446 FJiY ox SPECIFIC PERFOmiAN^Cp: OF COXTKACT.S. 
 
 § N89. But the former practice of opening biddings has 
 now been discontinued bj' statute, and it has been enacted 
 that tlie liighest bona fide bidder at the sale, provided he 
 ■shall have bid a sum equal to or higher than the reserved 
 price (if any), shall be declared and allowed the purchaser, 
 unless the court or judge shall, on the ground of fraud or 
 impropei- conduct in the management of the sale, upon the 
 Ai)plication of a person interested in the land (such ax)plica- 
 tion to be made to the court or judge before the chief clerk's 
 ■certificate of the result of the sale shall have become bind- 
 ing), either open the biddings, holding snch bidder bound by 
 his bidding, or discharge him from being the j)urchaser.(c>) 
 Under this enactment it seems . clear that the purchase is 
 -complete when the sale at or above the reserve price, if any, 
 has taken place. (^) 
 
 2. E-cents to the contract. 
 
 § 890. Events subsequent to the contract will, in some 
 'Cases, furnish a defense to an action for si)ecific perform- 
 ance ; in other cases they will not, 
 
 § 891. Where, from the nature of the contract, it ap- 
 pears that the contracting parties contemplated its fulfill- 
 ment only in the event of the continued existence of some 
 subject matter or thing, the contract is held to be subject 
 to an implied condition that it shall cease with the subject 
 matter or thing : and if, before performance, the thing cease 
 to exist, the contract goes with it.{q). 
 
 § 893. In the case of contracts for the sale of land, it 
 has been laid down with regard to events happening after 
 their being signed, that the question on whom the advan- 
 tage or loss resulting from them would fall, and whether, 
 therefore, the court would enforce specific x^^i'^oi'^^^^J^ce 
 without reference to them — or whether, on the other hand, 
 they might determine the contract — is to be decided by 
 w^hether or not the title had then been actually accepted, (r) 
 But the more correct doctrine appears to be that the equita- 
 ble estate passes on the signature of the contract if there 
 be a good title, though, that may not be shown till after- 
 
 (0) 30 & 31 Vict. c. 48, 8. 7. (»-)Wyvlll v. Bishop of Exeter, 1 Pri., 292, 
 
 {p) Cf. Re Bartlett, 16 Ch. D., 561. 295 n.; and see Paine v. Meller, 6 Vea., 349. 
 
 iq) Taylor v. Caldwell, 3 Best & S., 826; 
 Howell V. Coupland, 1 Q. B. D., 258.
 
 FAILUItK OF TlIK COXSlDKIiATlOX. 447 
 
 wards. '-It is," said Plumer, V. C, " tlie established doc- 
 trine of eqtiity, that if a contract to purchase is to be com- 
 pleted at a given period, and the title injuiallf/ made out, 
 the parties continuing in treaty, and the purchaser not ])y 
 any acts released from his bai-gain, the estate is considered 
 as belonging to the purchaser from the date of the con- 
 tract, and the money from that tiiiie as belonging to the 
 vendor. "(5)' 
 
 § 893. Where the contract is in its inception expressly 
 conditional, the transfer of the equita])le estate from the 
 vendor to the purchaser takes place not on the ccjnclusion 
 of the contract, but on its becoming absolute by the per- 
 formance of the condition, and until that event the property 
 sold remains at the risk of the vendoi-. This is well illus- 
 trated by a case which was decided by the judicial com- 
 mittee of the privy council, on appeal from the court of 
 chancery in Canada. A contract was entered into for a 
 lease for live years, from the 1st of April, 1840, the land- 
 lord undertaking to erect by that time a new warehouse on 
 part of the ground to be demised, and to put the old ware- 
 house 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 of April, but no objection was made by 
 the intended lessees, wdio then continued to occupy part of 
 the premises under a former contract. Shortly afterwards, 
 the whole premises w^ere destroyed by tire. The landlord 
 brought a bill for specific performance of the contract, and 
 for the defendants to rebuild the premises and accept a lease. 
 It was held, in the first place, that if time w^ere of the 
 
 («) In Harford v. Purrier, 1 Mad , 538. See too infra, § 13G.j et seq. 
 
 > If a defendant 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 jirotocted, 
 and his objects as successfully aUaiucd, 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 nuich so tliat 
 ■where there is a contract for the purchase of land, and the person contracting 
 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 defendant 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; Sey- 
 mour V. Delancey, 3 Cowen, 446. In the cases of chattels the rule is different. 
 Seymour v. Delancey, 3 Cowen, 535.
 
 448 FRY ON SPECIFIC PERFORMANCE OF CONTRACTS. 
 
 essence, it luid been waived by the defendants, but that this 
 did not waive the obligation on the leesor as to bnilding, and 
 that the defendants were not bound to accept a lease till 
 that was performed ; and, in the second place, that, treat- 
 ing the contract to take a lease as a contract to purchase, 
 the warehouse 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. (^)' 
 
 § 804. In the case of a contract legal at the time it was 
 entered into, but subsequently and before judgment ren- 
 dered illegal by statute, it seems to be clear on principle 
 that no specific performance could be granted except where 
 the court could still execute the contract cy jx'Q^ •'(^) a con- 
 tract thus rendered illegal would in the contemplation of the 
 court have become impossible. (y)"" 
 
 § 895. But when the contract has been completely made, 
 the thing sold is at the risk of the purchaser, who must bear 
 
 (0 Counter v. Macpherson, 5 Moo. P. C. Barber v. Hodgson, 3 M. & S., 267; Eaposito 
 
 C.,S3. V. Bowden, 4 El. & Bl., 963. See also vv'ln- 
 
 (?<) See infra, § 979 et seq. nington v. Briscoe, 8 Mod., 51, and nupra, § 
 
 {V) Alkinbou V. Kuchie, 10 East, 530, 534; 456 
 
 ' Personal property is, equally with real estate, the subject of conditinal sale ; 
 and possession is to be construed only as prima facie evidence of ownership. 
 Mount V. Harns, 1 S. & M., 185. Where a slave was 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 performed. 
 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 buyer does not become absolute until the paj'ment of the pur- 
 chase 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 trus- 
 tee 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 conditional sale of a 
 slave, the property is at the risk of the vendee. Prether v. Norfleet, 1 A. K. 
 Marsh., 178. A condition may, however, be waived by subsequent acts. So, 
 where goods are sold and delivered on condition that the purchaser gives his 
 own notes on time therefor, endorsed by a third person, which he fails to per- 
 form, 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, 3 
 Humph., 272. 
 
 * Contract separable, part illegal.] A contract is void, where a part only 
 of the same is illegal. The rule is otherwise, in a case where the consideration 
 is legal, and some of the stipulations which can be separated, are illegal. 
 Featherstone v. Hutchinson, Cro. Eliz., 199; Schackell v. Cosier, 3 Scott., 59; 
 Crawford v. Monell, 8 Johns., 253; Donnalen v. Lenox, 6 Dana, 91; Woodruff 
 V. Henniman, 11 Vt., 592; Leavitt v. Palmer, 3 N. Y., 19.
 
 FAILURE OF THE CONSIDEEATION. 449 
 
 all subsequent losses, and is entitled to all subsequent 
 gains :(?o) subsequent events, therefore can neither deter- 
 mine the contract nor give either party a right to resist its 
 performance. 
 
 § 896. Formerly this principle does not appear to have 
 been as clearly recognized as it is now : thus, where a great 
 subsequent advantage accrued to one party, Lord Hard- 
 > wicke seems to have doubted how far the court would de- 
 cree performance on the original terms of the contract. (?/) 
 And where A. contracted to sell his estate for an annuity 
 during his life, the time appointed for conveyance was the 
 31st of October, but the annuity was to commence 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 
 accident : Lord Bathurst and the House of Lords dismissed 
 a bill for specific performance. (2) Lord St. Leonards(a) at- 
 tributes 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 inade- 
 quate consideration, and treated as a case of hardship. 
 
 § 897. The principle as now established is illustrated by 
 numerous 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 
 iDefore the contract had been carried into execution A. died 
 without issue, the contract was nevertheless specifically per- 
 formed. (5) So a. contract to sell for an annuity will not be 
 avoided by the death of the annuitant, even before any pay- 
 ment, (c) So where, subsequently to the contract for the 
 sale of a house, the house is burnt down, the loss falls on 
 the purchaser :{d) and in such an event the purchaser will 
 not, in the absence of part of any provision in the contract, 
 be entitled to the benefit of an existing insurance against 
 fire effected by the vendor, (e) And again, where a trader 
 
 ^«rt Infitu 1 iii tit "4 sec 3; Porthier, Tr. (f^) Paine v. Moller, 6 Vr.;., MO. In Cass v. 
 
 du^ontrat de Vente ParflV. Buddie. 2 Veru., 2ow the ea^t quake which 
 
 '^^.TplrlordTanie'^s'ln Revel v. Hussey, destroyed the houses appearB "j^h.^e taken 
 
 9 Knii Xr Ti "ST place after the contract had been carriea 
 
 (jT) ctvy V Barber 2 Atk , 489. See also into eflVct. See Raithby's note on case, and 
 
 Stent V. Baills 2 R Wms 217 1 fro C c.^ 156 n ^ ^ ^ 
 
 S) \ZV-i! ' ' FrttoTuCi^. D. 297, affirmed in C A. 25 
 
 (h^' CarCV Carter Forrest 271 Sol. Jo. 448; cf. Edwards v. West. 7 Ch. D. 
 
 SMon'imer';'%peTlBro.'-C.C,.l^ 858, and distinguish Reynard v. Arnold. 
 
 Jackson v. Lever, 3 Bro. C. C, 605. L. R- 10 Ch. 38b. 
 29
 
 450 FRY ON SPECIFIC PEKFORMANCE OF CONTRACTS. 
 
 agreed to take two persons into partnership for a period of 
 efghteen years, in consideration of a sum to be paid by in- 
 stalments, and before they were all paid he became a bank- 
 rupt, the assignees were held entitled to the remaining 
 
 instalments. (/) 
 
 § 898. xVnother class of cases which have illustrated the 
 same principle has arisen from the failure or winding-up of 
 a company after a contract has been entered into for the 
 purchase of shares into it, but before the contract has been 
 completed. Such an event furnishes no defence to an action 
 for specific performance of the contract to buy the shares. (^) 
 
 § 899. Where a contract, capable of being specifically 
 executed at the time of the issuing of the writ, has by lapse 
 of time between that and the trial become incapable of 
 execution in the ordinary way, so as to confer future 
 benefits, the question arises, what course ought to be pur- 
 sued. This question came before Plumer, M.R., in Nesbitt 
 V. Meyer, (70 where a bill was filed before the term expired 
 for a specific performance of a contract to accept a lease, 
 but, without fault on either side, the term expired before 
 the hearing. The case w^as decided upon another point, but 
 the judge 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 Avith this view, Lord 
 Cranworth expressed the opinion that it would require very 
 special circumstancjes indeed to induce the court to decree 
 specific performance of a lease after the expiiation of the 
 term, {i) ' ' What the court, ' ' said his Lordship, (,/) ' ' 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, how^ever, to be remarked, 
 that the circumstances of the case before Plumer, M. E,., and 
 before his Lordship were different, inasmuch as in the 
 former the delay seems to have been entirely due to the 
 
 (n Akhurst V.Jackson, ISw. 85. See also (A) 1 Sw. 223. r. , t... ■ ^ k 
 
 Lord Eldon in Coles v. Trecothick, 9 Ves. (i) Walters v. Northern Coal Mining Co., 5 
 
 oig De G. M. & G., 629. 
 
 (n) Paine v. HutchiP?on, L. R. 3 Eq. 257; (j) 5 De G. M. & G. at p. 639 Sec, also, 
 
 S Ch 3S8- Cole V. Bristowe, L. R. 6 Eq. 149, Hoy)e v. Llvesey, 1 Mer., 3«1, and De Brassae 
 
 l-iO freversed on a diflferent ^rouna, L R 4 v. Martyn (11 W. K., lOaO). where the court 
 
 Ch 3)- Hawkins V. Mallby, L. R. 4 Eq. 572; Intimated that the plaintiffs proper course 
 
 3c'h 188- 6 Eq. 505; 4 Ch. 201); Chapman v. would have been to apply to have the case 
 
 Shepherd L R 2C. P. 228; Taylor v. Stray, advanced so as to La beard belore the ex- 
 
 2 C B. n! S. 175; Stray v. Russell, 1 El. & piration of the teim. 
 
 El. 888.
 
 FAILUKE OF THE CONSIDERATION. 451 
 
 court ; whereas in tlie latter no steps were taken until just 
 before the expiration of the term, so that it \^■as impossible 
 for the plaintiff to obtain a decree until the term was at an 
 end. (A*) 
 
 § UOO. On the other hand, the opinion of Alderson B. 
 was somewhat at variance with the doctrine above stated. 
 " The moment the bill is filed," said his Lordship, (Z) "the 
 rights of the parties remain fixed, or ought so to do. I can- 
 not accede to the doctrine in Xesbitt v. 'Meyer. {?7i) How 
 can the constitution of the court alter the rights of the 
 parties f The decision in the case in the Exchequer seems, 
 however, reconcilable with those before stated ; for the 
 prayer of the bill was for the specific performance of a con- 
 tract for a lease, and for an account of arrears of rent on the 
 footing of the contract, and it was held that although by 
 the expiration of the term before the hearing the specific 
 performance could not be granted, yet that the plaintiff was 
 entitled to a decree for an account. 
 
 g 901. And similarly, in a previous case, Leach V. C. 
 held that a bill might be maintained hy a purchaser for the 
 specific performance of a contract for a life annuity, 
 although the annuitant had died not only before the hear- 
 ing, but before the bill was filed, where there were arrears 
 of the annuity between the time of the purchase and the 
 death of the annuitant, to which the purchaser had an 
 equitable title under the contract : but his Honor said that 
 it might be a question whether such a bill could be main- 
 tained 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.(;i) 
 
 § 902. These cases perhaps left the exact state of the law 
 on this point somewhat difiicult to state. But now that 
 both legal and equitable remedies may be obtained in one 
 proceeding, and every prudent plaintiff will ask for both, 
 the point appears of little practical importance." 
 
 (/;) Cf. Anon V.White, 3 Sw., 108 n., where, (/) Wilkinson v. Torkington, 2 Y. & C. 
 
 belore the lease contracted for was executed, Ex . 72G. 728. 
 
 events rendered the intended subject-matter (m) 1 Sw., 223. „ „ ^ 
 
 of the lease useless to the intended lessee; («) Ivenney v. \\ exham, 6 Mad., .•?,k5. See 
 
 and the court directed only a quantum Strickland v. Turner, < Ex., 208. 
 damniticavit. 
 
 1 Sale of real projjerti/ bij an. adminidrator.'] Wlieu uu administrator .sells the 
 land of his intestate, thi.s is a judicial sale, and a proceeding in rem, the doct-
 
 452 FRY ON specific; PEIIFOKMANCE OF CONTRACTS. 
 
 rine of caveat emptor applies. The vendee takes at his peril, and he must pay 
 the agreed price even though he gets no title, where there is no proof of fraud, 
 mistake, or concealment of material facts. Burns v. Hamilton, 33 Ala., 210; 
 Garrett v. Lynch, 45 Ala., 204. 
 
 Real property conveyed witJwvt warranty.'] In such a case, where there has 
 been no concealment of material facts, and no fraud, no part of the purchase 
 money can be recovered back either at law or in equity, in a case where the 
 title proves defective. Botsford v. Williams, 75 111., 132. The vendee of real 
 property was fully informed of the nature of the title which he purchased. In 
 an action to recover the purchase money, it was held, that he could not wait 
 the determination of an action of eviction against him. Boisblanc v. Markey, 
 21 La. An., 21.
 
 DEFAULT ON PAirr OF THE PLAINTIFF. 453 
 
 CHAPTER XX. 
 
 OF DEFAULT ON PART OF TIIE_^ PLAINTIFF. 
 
 § 903. With regard to the matters to be done by the 
 plaintiff according to the terms of the contract, it is, from 
 obvious principles of justice, incumbent on him, when he 
 seeks the performance of the contract, to show, first that he 
 has performed, or been ready and willing to perform, the 
 terms of the contract on his part to be then performed \{a) 
 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 action may be resisted. (Z>)' We will first 
 consider cases of default in respect of terms of the contract 
 which ought to have been already performed.' 
 
 (a) 2 Fq. Gas. Abr., 33. See. also, the Ian- (b) See infra, § 915; Walker v. Jeflreys, 1 
 guage of Lord Haiiiwicke and Gilbert C. B., Ha., 341. 
 cited infra, §§ 925-927 ; and of Ghillis v. Mc- 
 Gliee, 13 Ir Ch. R.,48. 
 
 'McNeil V. Magee, 5 Mason, 244; Longworlh v. Taylor, 1 McLean, 395; 
 CoLson V. Thompson, 2 Wheat., ;^36; WaUs v. Waddle, G Pet., 389; Vail v. 
 Nelson 4 Rand., 478; Bates v. Wheeler, 1 Scam., 54; Stewart v. Kaymoud 
 Rail Road Co., 7 S. & M., 568; Wood v. Perry, 1 Barb. Sup. Ct. K., 114; Se- 
 crest V. McKenna, 1 Strobh's Eq., 356; Richardson v. Linney, 7 B. ]\Ionr.,571; 
 Taylor v. McCardle, 9 S. & M., 230. A party seeking a specific performance 
 cannot be excused from proper diligence, on the part of the defendant. Long- 
 worth V. Taylor, 1 McLean, 395; Doyle v. Teas, 4 Scam., 202. And a subse- 
 quent 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 spe- 
 cific performance. Unless performance can be shown, or the benefit of ]ier- 
 formance secured to the defendant, specific performance will not be decreed in 
 favor of a vendee, even if possession has been given and improvements made 
 by him. Simmons v. Hill, 4 Har. & M'Hen., 252. This principle, that a 
 plaintiff must perform the essential parts of his contract, is tully carried out, 
 at law, in cases concerning deeds. Fuller v. Hubbard, 6 Cowen, 13; Fuller v. 
 Williams. 7 id., 63; Ncwcomb v. Bracket, 16 Mass., 161, Eames v. Savage, 14 
 id., 425; Eveleth v. Scribner, 3 Fairf., 24. 
 
 2 He must do equity, lolio asks equity.'] " There are few Vases in which a court 
 of equity will insist on the maxim that he who asks equity must do equity, 
 with more vigor, than m those for specific performance." Eastman v. Plumer, 
 46 N. H. 464 See also Tripp v. Cook, 26 Wend., 143, 160; Bruen v. Hone, 3 
 Barb. 536- Linden v. Hepburn, 3 Sandf., 668; Williams v. Fitzhugh, 33 N. 
 Y. 444, 452- Wheeler v. Tanner, 39 N. Y., 481, 502. 505; Abernathey v. 
 Church of the Puritans, 3 Daly, 1. The rule is well settled tliat whore a party 
 asks the specific performance of a contract, he must first .■^how, either that he 
 has performed, or has offered and is willing to perform all that his contract can 
 at any time call for; it will be a defence to his action to show that he has made
 
 454 FRY ox SPECIFIC PEllFOKMANCE OF COXTHACTS. 
 
 1. Tlie iic.rformance of past acts. 
 § 904. Of what terms must the plaintiff show the per- 
 formance ? The answer is that he mast show i3erformance 
 of (1) the express and essential terms of the contract, 
 
 (2) Its implied and essential terms, and 
 
 (3) All representations made at the time of the contract 
 on the faith of which it was entered into : but that he need 
 not show performance of 
 
 (4) Non-essential terms, 
 
 (5) The terms of a collateral contract, or 
 
 (6) Terms of which the defendant has prevented or waived 
 the performance. 
 
 default in a matter of serious importance. More v. Skidmore, 6 Litt., 453; 
 Greenup v. Strong, 1 Bibb., 590; Stewart v. Raymond, 15 Miss., 568; Hoen v. 
 Simmons, 1 Col., 119; McKinney v. Watts, 3 A. K. Marsh, 268; West v. Case, 
 3 Ind., 301; Stevenson v. Dunlap, 7 T. B. Monr., 134; Hepburn v. Aukl, 5 
 Cranch, 262; Stone v. Buckner, 12 Sm. & Marsh, 73; Snodgrass v. Wolf, 11 
 W. Va., 158; Clay v. Turner, 3 Biljb., 53; Boone v. Missouri Iron Co., 17 
 How., 340; Vennum v. Babcock, 13 Iowa, 194; Ganatson v. Vanboon, 3 Iowa, 
 128; Bearden v. Wood, 1 A. K. Marsh, 450; Logan v. McChord, 2 A. K. 
 Marsh, 224; Rogers v. Sanders, 16 Me., 92; Tvler v. McCardle, 17 Miss., 230; 
 Earl V. Halsey, 14 N. J. Eq., 332; Thorp v. Pettit, 16 N. J. Eq., 488; Colson v. 
 Thompson, 2 Wheat., 336; Slaughter v. Hains, 1 Ind., 138; Satterfield v. Keller, 
 14 La. An., 606; Wilson v. Brumfield, 8 Blackf.. 146; Watts v. Waddle, 6 
 Pet., 384; Bryan v. Read, 1 Den. & Batt. Eq.. 78; Reed v. Nor, 6 Greg. 283; 
 Hooner v. Calhoun, 16 Gratt., 109; Jordan v. Deaton, 23 Ark., 304; Scott v. 
 Shepherd, 3 Gilman, 83; King v. Kuapp, 59 N. Y., 762; Jones v. Roberts, 6 
 Call, 187; Cox v. Boyd, 38 111., 42; Hauney v. Banks, 1 Rand, 408; Frakfort 
 Turnpike Co. v. Churchill, 6 Monr., 427; Kitchen v. Coffyn, 4 Ind., 504; Board 
 of Supervisors v. Hennelemiy, 41 111 , 179; Huldeman v. Chambers, 19 Texas, 
 1; Purbush v. White, 25 Me., 219: Jones v. Alle.y, 4 Greene, Iowa, 181; O'Brien 
 V. Pertz, 48 Md., 562; Marburgh v. Cole, 49 Md., 402. 
 
 Executory contract to sell land, relation of t?ie parties.] In substance the same 
 relation exi.sts between the vendor and vendee in an executory contract for the 
 sale and purchase of real estate, as exists between mortgagee and mortgagor. 
 The same general rules govern both cases. The legal title to the estate in both 
 cases, is held as a security for the debt ; the owner of the equitable title receives 
 it, when the debt is paid. Ellis v. Hussej^ 66 N. C, 501; Jones v. Boyd,' 80 
 id., 258. 
 
 Two acts to be done at the same time ] Where this is the case, neither party 
 can maintain an action against the other, unless he alleges performance, or an 
 offer to perform. Brasswell v. Pope, 80 N. C, 57. 
 
 Equity does not alioays require an exact performance.] Equity will seek to do 
 exact justice between the parties, and a party may sometimes be excused from 
 a literal fullillment of his contract, where the failure does not relate to matters 
 of substance. Davis v. Hone, 2 Sch. & Lef., 347; Counter v. McPherson, 5 
 Moo. P. C. C, 83, 108; Oram v. Merrill, 27 Iowa, 476. 
 
 Omission by mutual consent of a part of the contract^ Where a particular 
 stipulation in the contract, which does not materially affect the riglits or 
 interests of the parties, has been omitted by mutual consent; this will not 
 deprive a party of liis right to a decree for specitic performance, when he has 
 otherwise fully performed. Portland R. R. Co. v. Grand Trunk R. R. Co., 63 
 Me., 90.
 
 DEFAULT ON PAKT OF THE PLAINTIFF. 455 
 
 Lastly it will be necessary to consider 
 
 (7) Terms, the performance of which has become impos- 
 sible without the plaintiff's fault or default. 
 
 § 905. (1) As to the express terms nothing more need 
 now be said. The only important point will be consid- 
 ered when we come to the difference between essential and 
 non-essential terms. 
 
 § 906. (2) The performance must extend to such of the 
 implied terms as are essential. Thus where an intended 
 lessor agreed to finish a house for an intended lessee, who 
 was to do the repairs during the intended term, the court 
 held that in such a contract was implied an undertaking to 
 deliver it in complete tenantable repair i^roper for houses of 
 the character demised : and this undertaking not luiving 
 been, in the judgment of the court, performed, the intended 
 lessor's bill for specific performance was dismissed with 
 costs. (c) The case might probably have been determined as 
 one rather of construction than of the implication of terms, 
 i. (P., that to finish a house means to finish so that the house 
 shall be in proper repair. 
 
 § 907. (3) Performance must be shown of representa- 
 tions of future acts made at the time of the contract on the 
 faith of which the contract was entered into. These repre- 
 sentations(rZ) need not amount to a guarantee, nor in case 
 of non-performance give a right to an action either for dam- 
 ages or for cancellation of the contract : but yet, if made and 
 not i^erformed, they are a defense to an action for specific 
 performance, (e) 
 
 § 908. 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 ;(/) and the same was the decision of 
 the court in a case where the vendor by his agent repre- 
 sented that a church should be erected in the immediate 
 neighborhood of the building ground whicli was the subject 
 of the contract, and that he would complete certain streets, 
 and the purchase was made on the faith of these represen- 
 
 (c) Tildesey v. Clarkson, 30 Beav., 419; cf. ty be considered as part of the contract, see 
 
 Oxford V. Provand, L, R.2 P. C, 156. Dlstin- supra § 624 et seq. 
 guish Chappell v. Gregory, 34 Beav., 250. (e) Lamare v. Dixon, L. R. 6 H. I.., 422. 
 
 {d) As to what representations wiil in equi- (/) Beaumont v. Dukes, Jac, 414.
 
 456 FKY ox SPECIFIC PERFOKMANCE OF CONTRACTS. 
 
 tations, ^vliicli tlie pliiintifif, however, never carried into 
 effect, (r/) 
 
 ij 909. We may h'ere briefly inquire into how far maps 
 or phms of the property, exhibited by the vendor at the 
 time of entering into contract, form representations of the- 
 kind w^e are now considering. (/<'-) 
 
 § 910. Where tlie 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 constru- 
 ing an act afterwards, except so far as they are referred to 
 and thus incorporated in the act of Parliament itself, (y) 
 But where they are so referred to and incorporated, effect 
 must be given to them according to the terms of the act.(^:) 
 
 § 911. Where the map thus exhibited delineates the in- 
 tended division of the property by new roads, the vendor 
 may not afterw^ards divide the land in a manner so different 
 as to attract a population entirely different from that which 
 would have been produced by the execution of the plan 
 proposed by the map.(Z) 
 
 § 913. But though the exhibition of a map may bind to 
 this extent, it will not oblige to an exact performance of 
 the scheme it embodies. Thus where a plan w^as 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 
 width of the street w^ere marked, but there was nothing in 
 the contract wdiich distinctly pointed out that part of the 
 plan as binding the parties, Lord Langdale, M. R., held that 
 it did not form part of the contract, so as to entitle one 
 party to relief against an encroachment on the width of the 
 street, (m) 
 
 § 913. In another case the particulars referred generally 
 
 f<7) Myers V Watson, 1 Sim. N. S , 523. CI. & Fin., 722; Beardmer v. London and 
 
 (A) Cf cilave V. iJarding, 27 L. J. Ex., 286, North-Western Kailway Co., 1 Mac. &i^., 
 
 as to the effect of plans on (alleged) implied 112. ,^ , ^ i tw i „..„ 
 
 erants of easements ^k) Att-Gen. v. Tewkshury and Malvern 
 
 (i) Feoffees of Heriot's Hospital v. Gibson, Railway Co., 1 De G J. & S. 423; Little v. 
 
 2 Dow 301- Squire v. Campbell. 1 My. & Cr., Newport, Abergavenney, and Hereford Rail- 
 
 459. Cf. and distinguish Nene Valley Drain- way Co., 12 C. B 752. o-k qo 
 
 age Commissioners v. Dunkley, 4 Ch. 1)., 1. d) Peacock v. Penson, 11 Beav., 3.-)5, 361. 
 
 wliere the plan was held to be Incorporated (m) Nurse v Lord .Seymour, 13 Beay., 2^4. 
 
 with (though not referred to in) the contract. Distinguish Roberts v. Karr, 1 Paunt., 495; 
 
 (j) North British Railway Co. v. Tod, 12 Espley v. Wilkes. L. R. 7 Ex , 298.
 
 DEFAULT OX TAKT OF TJIE PLAINTIFF. 457 
 
 to an accompanying jjlan, and on tlie plan several roads 
 were marked out so as to provide frontages for all the lots, 
 and the lines of roads were marked out on the land itself in 
 accordance with the x^hm : Knight Bruce, V. C, held, that 
 in the absence of any clause in the particulars or conditions 
 of sale i^roviding for any rights of way beyond a road lead- 
 ing into the nearest highway, such road was all that the 
 purchaser was entitled to. {n) 
 
 § 914. Where the sale X)lan, instead of, as in the previous 
 cases, representing an intended and future state of the prop- 
 erty, 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 prox3erty. Therefore, where a plan rej^re- 
 sented a well on lot 4 communicating with a reservoir on 
 lot 2, and that communicating with the inn which was on 
 lot 1, wiiich the plaintiff purchased, and the vendor con- 
 veyed 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, (o) St. Leonards, however, considei-ed this case 
 open to observation.(j9) 
 
 § 915. (4) In the averment of perfonnaiice by the ] Jain- 
 tiff, equity, as already stated, discriminates between the 
 essential and the non-essential terms of a contract : and to 
 furnish the defendant with aground foi' resisting the action, 
 the non-performance of the plaintiff must be a term impor- 
 tant and considerable. ('z) The Court of Chancery fre- 
 quently interfered at the instance of a party avIio might 
 have been debarred fiom relief at Common Law, because 
 unable to allege performance in the veiy terms of the con- 
 tract, which is by the Common Law^ essential. (/) Thus, for 
 example, where A, contracted to sell property to E., and 
 by the same contract it was also stipulated that A. should 
 continue tenant from year to year of the land, and it hap- 
 pened from embarrased circumstances he was unable to fill 
 the tenancj', this was, from the determinable nature of the 
 holding, held to be a matter of consideration, and so not a 
 
 (n) RaiKiall v. Hall, 4 De G. & Sm., .S43 Reeves v. The Greenwich Tanning Co. Limi- 
 
 (0) Fewster v Turner, 11 L. J. Oh., 161. ted. 2 U & M.. hi. 
 
 (p) St. I, eon. Vend., 20 (/•) S<>e per Lord Rcdesdale In Davis t. 
 
 (q) Modlen V. Snowball, 31 L. J. Oh 44; Hone, 2 soli & Lef 347; supra, § 29. 
 10 \V. U. 24. affirming S. C. 29; Ueav., 641;
 
 458 FRY ox SPECIFIC PERFORMANCE OF CONTRACTS. 
 
 bar to specific perforiiiance of the contract for sale. (.9) And 
 all the cases in Avhich the court grants a vendor asking for 
 specific performance indulgence in the making out of his 
 title, (0 f^v allows him to enforce the contract with com- 
 pensation/?/) are, of course, illustrative of the principle 
 now before us. 
 
 § 016. In a case before the Privy Council, the judgment 
 may at first sight appear to go so far as to assert that no 
 default of performance on the part of the plaintiff short of 
 that Avhich goes to the whole consideration for the promise 
 sued on, is available as a defense against specific perform- 
 ance. (?>) But probably such reading is incorrect and the 
 intention of their lordships was to draw the distinction 
 between essential and non-essential terms. 
 
 § !>I 7. (5) Where that, on the non-performance of which 
 by the plaintiff the defendant relies, is in its nature a col- 
 lateral and separate contract, or is. part of or referable to 
 such a contract, though between the same parties and 
 entered into at the same time, and having relation to the 
 same subject-matter as the contract which the plaintiff seeks 
 to enforce, the court will not consider the default by the 
 plaintiff in resi^ect of the one contract as any bar to the 
 specific performance of the other, though such default may 
 give the defendant a cross right of action on legal or equit- 
 able grounds, {wf 
 
 (s) Lord V. Stcpbens. 1 Y. &. C. Ex., 222. (_v) Oxford v Provand, L. R., 2 P. C, 135; 
 
 {t) See infra. § lS3fl et scq. cf T.amare v. Oixon. L R., 6 H. L., 414. 
 
 (ti) See inira, § 1178 et. seq. (lo) Phlpps v. Cliild, 3 Drew, 709. 
 
 ' Conrlitwn precedent or subsequent.'] In a conditional contract one party may 
 fail to perform the condition. The contract becomes aJjsolute as soon as the 
 condition has been performed, but imtil it is performed it cannot be 
 specifically enforced. Where it is a condition precedent the estate is avoided 
 by not permitting it to rest until tlje condition is literally performed. _ Where 
 it is a condition subsequent, its non-performance defeats the estate bj^ divesting 
 the party of his title. It is very material to notice this distinction for the 
 reason that a court of equity "can, upon principle, interfere with and control 
 the effect of one species of condition and not of the other. A man enters into 
 a contract, or makes a deed, or settlement, or a will, and he agrees to grant or 
 devise an estate upon a condition which he declares nuist be performed before 
 the person to be benefited can take it. No court of law or equity can have 
 a right to say that the condition which is lawful in itself, and one the party had 
 a right to impose. ,<sha]l be dispensed with. In order to do this, the contract or 
 act of the party himself must be annulled, and one. created by the court, put 
 in its place. The principle whereon the court is to act in relation to conditions 
 subsequent is widely different. In cases of this sort, if a breach or non- 
 performance happens, the effect of which is to work a forfeiture, or dive.st an 
 estate, the court, acting upon the principle of compensation to the party for the 
 injury sustained by the l)reach, will interpose and prevent the forfeiture. On 
 account of the nature of conditions subsequent, they are said to fall within the
 
 DEFAULT OX PAIIT OF THE PLAINTIFF, 459 
 
 § 918. Thus where A. contracted with B., the owner of 
 a x>lot of land, to erect a villa on it, and to keep it insured 
 in the joint names of A. and B. in the county tire 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 per- 
 form his part, the contract for the lease should l>e void ; 
 and the contract also sti])ulated that ,A. should have the 
 option of jiurchasing the fee within two years ; A erected 
 the villa, but insured in the wrong office, and in his own 
 name alone, and then brought his bill for a sale under the 
 option to purchase ; and it was held by Lord Roniilly, M. R., 
 that tliis 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 lie accordingly decreed 
 a specific perf orma-nce. (.t)' 
 
 (x) Green v. Low, 2-2 Beav., 625. 
 
 lenient principle l)y wLicli equitj' relieves against penalties; and the court will 
 onl_v give relief where compensation could be made in damages There may 
 even be cases of conditions subsequent unperformed, in wliich the court will 
 not relieve from forfeiture on account of the difficulty of ascertaining with any 
 degree of certaintv tlie amount or adequatelv of compensation to be allowed." 
 McCoun, Y. C, ill Wells v. Smith, 2 Edw. Ch., 78. 
 
 ' The cases at law, concerning dependent and independent covenants, pro- 
 ceed upon tlie same principle and are in close analogy with those of equity. 
 Manning V. Brown, 1 Fairf., 49, is an authority oC tliis kind. A., there, cove- 
 nanted to convey to B. a certain lot of land, if certain notes of hand, given at 
 the Sime time, pa^yable at a future day, should be paid at maturity by B. ; and 
 it was further agreed that, in failure of payment of said notes by B., the agree- 
 ment was to be void, B. to be liable to pay all damages that should have 
 occurred to A., 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 convi-y were independent, and that a suit on the former might well 
 be maintained, without showing a conveyance or an offer to convey. Left- 
 wich V. Coleman, 8 How. Miss., 107; and Hector v. Price, 6 Ala., 301, are 
 decisions to the effect, that an action will lie upon a note, given for the pur- 
 chase money of land, ]:)ayal)le on a day certain, where there is an agreement to 
 to convej' b}^ deed upon the pajnnent 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 mouej', payable at the end of twelve mouths, and 
 took the vendor's penal bond to make him a " lawful title, or cause it to be 
 made," within tlu; same period, it was held, that the note and the bond being 
 wholly separate and disconnected with eacli 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. Martin 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 l)reach of eitlier may be compensated in damages. And, there- 
 fore, where the defendants hired of the plaintiff two slaves at certain monthly 
 wages, and tlie plaintiff agreed to permit the defendants to transport his cotton 
 to market, at a c;ertain stipulated ral(i 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 
 Jie had tendered his cotton to be transported to market by the defendants. 
 Bice V. Sims, 3 Bailey, 82.
 
 460 FRY ox SPECIFIC PERFORMANCE OF CONTRACTS. 
 
 i$ 019. 80, where in a deed I'or the dissolution of partner- 
 ship, one partner assigned to another certain foreign shares, 
 and covennnted for further assurance ; and the other partner 
 covenanted with the former for indemnity against certain 
 liabilities : a further assurance of the shares became 
 necessary, and on a bill filed to enforce specific perform- 
 ance of tlie covenant to that effect, it was held by Knight 
 Bruce nnd Turner, L. J. J., overruling Lord Roniilly, M. 
 R., that a breach of the covenant to indemnify which the 
 plaintiff had entered into with the defendant w^as no defense 
 to the suit. The tw^o covenants were independent, so that 
 the joerformance of the one w^as not to be resisted by reason 
 of the non-performance of the other. {y) 
 
 § 920. (6) A defendant who has waived the performance 
 by the plaintiff of that was on his j)art to be performed can- 
 not, of course, nse the nonperformance as a defense ; but 
 the burthen of proving this waiver of course rests on the 
 plaintiff. (^) 
 
 § 921. Still more clearly, if possible, is non-performance 
 by the plaintiff excused when that has resulted from the 
 neglect of default of the defendant. («)' So where the pur- 
 chaser prevents the vendor from comjileting his title, he will 
 Nbe comjDelled to forego an objection he may raise on the 
 score of that incompleteness. (^) 
 
 5< 922. 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 j)arty ; 
 as, for examx)le, of a contract to lay out money m building 
 within three years, (c) 
 
 § 923. (7) We shall now consider how far the impossi- 
 bility of performing the iDlaintiff 's part arising without any 
 fault or default on his part furnishes an excuse for non-i:)er- 
 formance. In those cases in which all that was to have 
 been performed by the plaintiff has become entirely inca- 
 
 (y) Gibson v Golflsmid, 5 De G. M. & G., (b) Murrcll v. Goodyear, 1 De G. F. & J.,. 
 
 757; reversing S. C, 18 Beav., 584. 432 (S. C before Stuart. V. C. 2 Giff. 51j. 
 
 (z) Lamare v. I'ixon, L. K , 6 II. L , 414. (c) Griffiu v. Grillin, 1 Sch. & Lef., 35-2. 
 (a) llotham v. East India Co., 1 T. R., 638 
 
 ' See Stewart v. Raymond Rail Road Co., 7 S. &M., 568; Tyler v. McCardle, 
 9 id., 2^0; Kirby v. Harrison, 2 Ohio (N. S.), 326.
 
 DEFAULT 0:X PART OF THE PLAIISTTIFF. 461 
 
 pable of being executed, the plaintiflP cannot demand the 
 performance by the other party, because his non-perform- 
 ance is a total failure of the consideration which was to have 
 moved from him. 
 
 But where the impossibility refers not to the substantial, 
 but only to the exact and literal performance of tlie con- 
 tract, the court will struggle with matfers of form in order 
 to do complete justice between the parties ; but it will care- 
 fully avoid going so far as to make a new contract between 
 theni.(r/) Hence arise the cases on compensation.(e) 
 
 § 934. As to the cases in which the plaintiff has per- 
 formed a substantial part of his contract, and then the 
 remaining part has become impossible by reason of circum- 
 stances not dependent upon him and without his fault, a 
 distinction has been drawn between those cases in which the 
 plaintiff has not, by performing that part of the contract 
 which he has performed, altered his position, and those 
 cases in which he has so altered his position by his part per- 
 formance of the contract by the other party in the former 
 casp, and enforcing it in the latter. 
 
 § 9S5. This distinction rests almost entirely on the author- 
 ity of Gilbert, C.B., in a passage in his " Lex Pr<Ttoria,"(/) 
 but has been approved by subsequent writers, (/7) and seems 
 worthy of attentive consideration. " Here," says his Lord- 
 ship in the j)assage in question, '-it is to be noted that the 
 plaintiff that exhibited his bill wiion the foot of performing 
 the bargain on his part, ought to show that he has per- 
 formed 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, because he 
 cannot specifically execute on his own part : as in the case 
 of my Lord Feversham, which was on a marriage agree- 
 ment, whereby he contracted to settle the manor of Holmly 
 on his wife and the heirs of their bodies, and clear it of 
 incumbrances, and settle a certain 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 £3,000 
 
 (rf) Counter v. Macpherson, 5 Moo. P. C. (/) pp. 240-3. 
 
 C, 83. 108. {g} 1 Fonbl. Eq. Book I., c. 6, 8. 3; Story, 
 
 («) See infra, Part IV., chap, ii., § 1.174 et Eq. Jur., s. 772. 
 seq. ; also \>)rris v. Jackson, 3 Uiflf., 396.
 
 4&2 IKY 0\ SPECIFIC PEMFOIIMAXCK OF CONTRACTS. 
 
 per anmiiu on the Lord Feversbam for life, remainder to 
 the wife for life, and so to the issue of the marriage. Lord 
 Feversham cleared the manor of Holmly, settled it accord- 
 inuly, and settled the separate maintenance, 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 ,£'8,(X)(i. per annum settled on him for life : 
 but decreed because Lord Feversham was m statu quo as to 
 all that part of the agreement which he had loerformed, and 
 having not j^erformed the whole, and the other parts being 
 now impossible, and no compensation being possible to be 
 adjusted for it, he had no title in equity to have perform- 
 ance of Sir George's part of the agreement, since such 
 performance could not be mutual. But the issue of Lord 
 Feversham might have been relieved, because in no default." 
 Lord Feversham v. Watson. Rep. t. Finch, 445, 2 Freem. 
 25, Skin., 287. 
 
 To make the foregoing statement perfectly clear, it should 
 be added that, in the settlement made by the plaintiff, the 
 reversion expectant on the default of issue by his late wife 
 w'A's, reserved to him in fee, S(^ that the settlement had in 
 the event ojjerated nothing. {It) 
 
 §9"26. "But if," continues the Lord Chief Baron, "a 
 man has performed so much of his part of the agreement as 
 he is not in statu quo^ and is in no default for not perform- 
 ing the residue, then he shall have a specific execution from 
 the other party of the agreement : as if a man has con- 
 tracted 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 disincumber,, 
 and is going on to disincumber and settle the rest : then if 
 the" wife dies without issue before the settlement be actually 
 made, yet he shall have a jjortion, because he cannot be in 
 statu quo^ having sold part of his lands, and there is no 
 default in him, since he Avas going on to disincumber and 
 settle the rest ; therefore the accident of the death of his 
 wife doth not alter his riglit to his wife's portion." Mere- 
 dith V. Wynne, Eq. Abr. 70, p. 15 ; Gilb. Eq. Rep., 70 ; Free. 
 Ch., 312 ; 2 Yerne., 448.' 
 
 (i) Powell on Contracts, 22. 
 ' The dcctrine seems to be well stated in Breckenridge v. Clinkinbeard, 3-
 
 DEFAULT ON PART OF THE PLAINTIFF. 463 
 
 § 937. To prevent error, it may be well to observe that, 
 as regards marriage contracts, the rule under consideration, 
 as well as many other rules relating to the specific perform- 
 ance of purely executory contracts, does not apph^. ' ' There 
 is," said Lord Hardwicke, "a difference between agree- 
 ments on marriage being carried into execution and other 
 agreements ; for all agreements besides are considered as 
 entire, and if either of the parties fail in performance of the 
 agreement in part, it cannot be decreed in specie, but must 
 be left to an action at law : in marriage agreements it is 
 otherwise, for though either the relations of the husband or 
 wife should fail in the performance of their part, yet the 
 children may compel a performance : if the mother's father, 
 for instance, hath agreed to give a portion, and the husband's 
 father hath agreed to make a settlement, though the moth- 
 er'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 bene- 
 fit of the settlement ; so if there be a failure on the part of 
 the father's relations, it is the same."(/) 
 
 The distinctions in this respect as regards marriage con- 
 tracts are numerous, but they are not properly within the 
 scope of this volume, they need not here be further noticed* 
 
 2. T7te performance of future acts. 
 
 § 928 We may now consider the obligation which lies 
 on the plaintiff, in an action for specific performance, of 
 being ready and willing to perform all acts that on his p^rt 
 yet r.^main to be i^erformed. 
 
 § 9*39. On the ground of this obligation, trustees in 
 bankruptcy are not liable as plaintiffs to enforce a contract 
 entered into by the bankrupt, which would have involved 
 covenants on his part, unless they will personally enter 
 into the covenants into which the bankrupt would have 
 entered :(j'*) whereas where specific performance is sought 
 
 (i) In Harvey v. Ashley, 3 Atk., 611; Of. ham v. Joyce, 3 Ves., 168; Powell v. Lloyd, 3 
 
 Lee V. Lee, 4 Ch. D., 175; Jeston v. Key, 19 Y. & J. 372; per Grant M. K. in Weatherall v. 
 
 W. R. 342, 804. Geering, 12 Ves , 513. 
 
 U) Ex parte Sutton, 2 Rose, 86; Willing. 
 
 Litt., 127. It is there said that where a party claims specific performance of a 
 contract and although he has not wholly performed his part, is in no default as 
 to the residue, but cannot be placed in italic quo, he is entitled to a specific per- 
 formance, but is not so entitled when in default, and, when by receiving com 
 pensation for what he has done, he may be placed in statu quo. See, also' 
 Hays V. Hall, 4 Porter, 374; McCorck/e v. Brown, 9 S. & M., 167.
 
 464 FRY ON SPECIFIC PERFOinfANCE OF CONTRACTS. 
 
 not by, but against, persons having a tiduciary interest only, 
 they kre bound to covenant only so as to bind the property 
 and not themselves personally. (A*) 
 
 § 930. And so of bankruptcy ; if the plaintiff be the 
 vendor, the commission of an act of bankruptcy, though 
 without proof of the existence of any debt to support a 
 petition, is a bar to an action for specific performance, 
 because the plaintiff may be incapable of conveying the 
 estate, which may belong not to him, but to his trustee. (Z) 
 If on the other hand the plaintiff be the purchaser, he can- 
 not enforce the contract, because he is incapable of so pay- 
 ing the money to the vendor, as that the vendor shall be 
 certain of being able to retain it against the trustees, (m) 
 
 §931. Bankruptcy does not of itself discharge a con- 
 tract, either for the sale of an estate of inheritance or for a 
 lease ; for, with regard to the latter, the trustee may cove- 
 nant in the same manner as the bankrupt woidd have been 
 bound to.{n) By the 146th section of the statute 12 & 13 
 Vict., c. 106, the vendors of lands might compel the 
 assignees to elect whether they would abide by or decline 
 an agreement for sale :(o) and now by the 23d section of the 
 bankrupt act, 1869, where any property of the bankrupt 
 acquired by the trustee consists of unprofitable contracts, 
 the trustee, notwithstanding he has endeavored to seU, or 
 has taken possession of such property, or exercised any act 
 of ownership in relation thereto, may by writing under his 
 hs^d disclaim such property, and thereupon the contract 
 shall be deemed to be determined from the date of the order 
 of adjudication. 
 
 It has already been noticed that specific performance can- 
 not be enforced against a trustee in bankruptcy or liquida- 
 tion without his consent. (^) 
 
 § 93*2. So the insolvency of the plaintiff is a ground of 
 defense -.{q) and, to constitute this defense in the case of a 
 continuing contract as a lease, it is not necessary that the 
 
 {k (Page V. Broora. 3 Beav., 83G; Phillips (m) Franklin v. Lord Brownlow. 14 Ves., 
 
 V. Everarcl, 5 Sim., 102; Stephens V. Hotham, 550. . „ ^. 
 
 IK & J , 571 ; a i<! see further, as to cove- (n) Brooke v. Bewitt, 3 \ es., 2o3. 
 
 nants by trustu'j:i, \Vorley v. Frampton, 5 (o) Of. Buckland v. Papillon, L. R., 2 Ch., 
 
 Ha.. 5fi •; OiiBlovV V. i..or.lL 'Tidesborougb, 1(1 67. ^ , ^- .^r t, r.^-, 
 
 Ua . G7; Cooper Mlnia? Co. v. Beaci;. 13 ';)) Halloway v. lork, 2.i W. R.,627; supra, 
 
 Beiv., 418; Hodges v. Bla>rravc, 18 Beav., ? -•^■'i. ^ ^. „, w •, « s, ir a-h . 
 
 4(H; Harev. Burge3,4 K. & J.,45. {qi Crosbie v. Tooke, 1 My. & K., 431, 
 
 (0 Lowes V. Lush, 14 Ves., 547; Of. McNal- Price v. Assheton, 1 Y. & C. Lx., 441. 
 ly V. Gradwell, 16 Ir. Ch. R., 512. 518.
 
 DEFAULT ON PART OF THE PLAINTIFF. 465 
 
 plaintiff should be proved to have given up all his property 
 for the benefit of his creditors, but there must be proof of 
 general insolvency, so as to show that the plaintiff is not in 
 a situation to perform the covenants on his part.(r)' Thus 
 Lord Eldon, remarking on the insolvency of an intended 
 lessee as being an objection of more or less weight depend- 
 ing on the circumstances, in the case then before him dis- 
 solved an injunction against an ejectment by the land- 
 lord. (5) 
 
 § 9S3. How far insolvency would be an objection, if the 
 j)laintiff had subsequently become affluent, does not ai3pear 
 to have been decided. (^) 
 
 § 934. Where the interest under a contract has been 
 assigned, the insolvency of the original contractor, who is 
 the assignor, is no defense, though that of the assignee 
 would be.(w) 
 
 § 935. On like grounds, the felony of a i)laintiff would 
 be a bar to specific performance. (^) 
 
 § 936. And the same principle is illustrated by a case 
 where the deeds were destroyed. It was a suit by a vendor 
 on an ordinary contract for sale of lands: in such a contract is 
 implied, as an essential term on the part of the vendor, the 
 proof of the due execution of the deeds which constitute his 
 title, and the delivery up of them to the purchaser : the 
 deeds having been subsequently destroyed by fire, the 
 performance of this term by the plaintiff was rendered 
 
 (r) Nealev. Mackenzie. 1 Ke, 474; Willing- cf. Neale v. Mackenzie,! Ke., 474; McNally 
 
 ham V. Joyce, 3 Ves , 168; McNally v. Grad- v. Gradwell, 16 Ir. Ch. R., 512, 519. .. 
 
 well, 16 Ir. Ch. R., 512, 519. (M) Crosbie v. Tooke, 1 My. & K., 431. 
 
 (s) Buckland v. Hall, 8 Ves., 92. (v) Willingham v. Joyce, 3 Ves., 168. 
 
 (0 Price v. Assheton, 1 Y. & C. Ex., 82, 91; 
 
 ^ Insolvency of a party to an action for specific performance.'} In England the 
 law appears to be that " upon the sale of a bankrupt's estate he is usually made 
 to convey and covenant for title. His covenants, however, are obviously of 
 little value, and it would seem that he cannot be compelled to execute a con- 
 veyance. But the court of bankruptcy is empowered, upon the application of 
 the assignees or of the purchaser, if the bankrupt shall not try the validity of 
 the adjudication, or if there shall have been a verdict at law establishing its 
 validity, to order the bankrupt to join in the conveyance, and if he do not exe- 
 cute it within the time directed by the order, then he, and all persons claiming 
 under him, will be estopped from objecting to such conveyance, and all estate, 
 right or title which he had in the property will be as effectually bound as if 
 such conveyance had been actually executed by him." Dart on Ven. and Pur., 
 250, 251; Lower v. Lush, 14 Ves., 547. 
 
 Insolvency of party, dsmand.} In an action for specific performance, where 
 no demand has been made, it is not sufficient to aver and prove that the de- 
 fendant is insolvent. BeU v. Thompson, 34 Ala. 633; Carter v. Thompson, 41 
 id., 375. 
 
 30
 
 466 FRY ON SPECIFIC PERFORMANCE OF CONTRACTS, 
 
 impossible, and the contract could not be specifically per- 
 formed. (?o)' 
 
 (to) Bryant v. Rusk. 4 Russ , 1 ; cf. Moulton secondary evidence of the execution of the 
 T. Edmonds, 1 De (i F. & J., 216, where the missing deeds was held sufficient. 
 
 ' When the deed must be delivered.] In Birdsall v. Waklron. 2 Ed.'s Ch., 315, 
 the vice cbaucellor said, "the court will not order purchase money to be paid 
 before a title is given, unless under special circumstances, such as taking pos- 
 session contrary to the intention or against the will of the vendor; or where the 
 purchaser makes frivolous objections to the title, or throws unreasonable obsti- 
 cles in the way of completing the purchase, or is exercising improper acts of 
 ownership by which the property is lessened in value." See, also, Van Campen 
 V. Knight, 63 Barb., 205. 
 
 Implied offer of performance.'] The offer of the party making the demand to 
 perform his part of the agreement is implied, and where the other party refuses 
 to comply this dispenses with the necessity of anj' other offer. Ramson v. 
 Johnson, 1 East, 208; Finney v. Ashley, 15 Pick., 546. See, however, Eng- 
 lander v. Rogers, 41 Cal , 420.
 
 ACTS IN COKTRAYENTION OF THE CONTRACT. 467 
 
 CHAPTER XXI. 
 
 OF ACTS IN CONTRAVENTION OF THE CONTRACT. 
 
 § 937. In the last chapter we considered cases in which 
 "the plaintiff had disentitled himself by defanlt on his part : 
 we shall now consider the closely allied cases where he has 
 disentitled himself, not by default merely, but by acts in 
 fraud or contravention of the contract, or at variance with 
 it, or tending to its rescission and the subversion of the 
 relation established by it. For where the party to a con- 
 tract who asks the intervention of the court for its specific 
 execution has been guilty of such conduct, that circum- 
 stance may be put forward as a defense to the action. 
 Sometimes the facts may be evidence of a mutual agreement 
 between the parties to rescind the contract : but even where 
 not amounting to tliis, they may be sufficient to disentitle 
 the plaintiff to ask for the intervention of the court in 
 specific performance. 
 
 § 938. Still more plain is the case, if the acts be such as 
 would have worked a forfeiture of all benefit of the contract 
 if it had been executed ; it would be idle for the court to 
 compel a grant of that which, if granted, would have been 
 forfeited, (a) — to create a legal relation which, if created, 
 would be immediately dissoluble. (&)' 
 
 § 939. The cases by which this principle is most exten- 
 sively illustrated are on contracts for leases. With regard 
 to these, it is well established that where a p)erson, holding 
 under an agreement, commits waste, treats the land in an 
 unhusbandlike m.anner, or acts in breach of covenants which 
 would be contained in the lease, and for which acts a right 
 of re-entry would accrue to the landlord, such i^erson can- 
 
 (a) See per Lord Romilly, M. R., iu Lewis (b) Per Turner, V.C, In Gregory v. Wilson 
 V. Bond, IS Beav ,85 9 Ha., 687. 
 
 ' Foi'feiture of estate.'] Equitj^ will not enforce, a forfeiture Warner v. Ben- 
 nett, 31 Conn., 461; Leffoyr v. West, 2 Ind., 514; Smith v. Jewett, 40 N. H 
 530; White v. Port Huron R. R. Co., 13 Mich., 356; Fitzhugh v. Maxwell, 34 
 id., 138; Orr v. Zimmerman, 63 Mo., 73; Palmer v. Ford, 70lll., 369; Beecher 
 V. Beecher, 43 Conn., 556.
 
 468 FRY ON SPECIFIC PERFORMANCE OF CONTRACTS. 
 
 not enforce a specific performance of the contract, (c) The 
 same has been held in respect of covenants to repair. (cZ)' 
 
 ^ 940. It seems that even where the lease, when executed, 
 would^ contain no provision for re-entry, yet such acts, 
 when amounting to a forfeiture, as for example, a gross case 
 of waste, whicii is in all cases a forfeiture of the place 
 wasted, would prevent a specific performance of the con- 
 tract {e) 
 
 §941. In order that acts may thus be a bar to the 
 plaintiff's relief, they must, it has been said, be gross and 
 willful. (/) That expression seems to have been originally 
 applied to cases in which the breaches would not work a 
 forfeiture of the legal interest. (^) If applicable at all to 
 cases where there would be a proviso for re-entry for breach, 
 it seems to mean that the acts must be (1) Such as would 
 work a forfeiture at common law, and (2) Such as would 
 not justify or permit relief against the forfeiture in a court 
 
 of equity. 
 S 943. Where the court of chancery found such a conflict 
 
 fr\ VPr T.ord Eldon In Hill v. Barclay, 18 (e) See per Lord EUlon in Duke of Somer- 
 
 \7-p« fiV Lewis V. Bond, 18 Beav., 85; set v Gourlay, 1 V. & B., 73. 
 
 IrezoS'v WiTson, 9 Ha . 683. (/) Parker v. Taswell. 2 De G. & J., 559, 
 
 fd) Nunn V. Truscott, 3 De G. & Sm., 304. 573. - ^ r> .o. 
 
 i-"^ nu"" »• (^) Hare v. Burges, o W. R , 585. 
 
 1 JoD V Banister, 39 Eng. Law and Eq., 599, is an analogous case, though 
 not concemin"- specific performance. The case was this: In a lease of copy- 
 hold house property for twenty-one years, the lessee covenanted, amongst other 
 thino-s to pay the rent, keep in repair, and insure, etc., and the landlord cove- 
 TiRnt'ed that he would, at the expiration of the term of twenty-one years (pro- 
 vided all arrears of rent should then have been paid, and all the covenants 
 should then have been well and truly performed and kept), at the request 
 in writin^^ of the lessee, grant a new lease of the premises for a further term of 
 twentv-one years, at the same yearly rent, and subject to the proviso and agree- 
 ments in the same indenture contained (including the covenant for renewal), 
 and so from time to time upon the expiration of every subsequent term of 
 twentv-one years, provided such request in writing should be given as afore- 
 liid The lessee expended large sums of money in building houses on the 
 T)remises and at the expiration of the first twenty-one years a new lease was 
 ^ranted in the same terms for twenty-one years. In both leases there were the 
 usual covenants for re-entry on breach of any of the covenants. Some months 
 before the expiration of the second term of twenty-one years the lessee gave 
 notice in writing that he would require a renewal. At that time one of the 
 houses was much out of repair, and the lessee allowed it to renaain out of re- 
 nair on the ground that from communications with the lessor it was doubtful 
 whether a new lease would be granted, in consequence of an alleged forfeiture, 
 bv reason of having failed to keep the fire insurance up for a few days. Held, 
 first that the condition precedent for the present renewal was twofold— request 
 in w'ritin"- and compliance with the covenants; and that the double condition 
 was not confined to the first renewal, but applied loties quoties. Secondly, that 
 the court could not grant an injunction to the lessee, to restrain the lessor from 
 recovering in ejectment, because of the lessee's breaches of contract in not re- 
 pairing the premises within a reasonable time.
 
 ACTS IN CONTEAVENTIOlSr OF THE CONTRACT. 469 
 
 of evidence as left it in doubt whether there had been such 
 a breach of covenant as to render it proper and expedient 
 to refuse specific performance on that ground, it took the 
 ■course of directing the lease to bear the date of the con- 
 tract, and leaving the parties to settle their legal rights at 
 law. (7^) 
 
 § 943. It follows from what has been said that three 
 •classes of cases fall to be considered, as arising out of con- 
 tracts for leases. 
 
 (1) Where the acts complained of have led to the refusal 
 of relief : 
 
 (2) Where they have not led to this refusal : and 
 
 (3) Where the relief has been granted and the question of 
 breach left for decision at common law. 
 
 1. Where tlie acts comjylained of have led to refusal of spe- 
 cific j)erformance. 
 
 § 944. In Thompson v. Guyon(/) a lease had been granted 
 with a proviso for re-entry on breach of any of the cove- 
 nants, and a covenant to grant a further term at the end of 
 the original term, if it should not have been sooner deter- 
 mined by the lessee's acts or defaults: the lessee paid all 
 his rent, and continued in possession to the end of the term, 
 but had in fact committed breaches of covenant during the 
 term, of which the lessor was not cognizant till after its 
 •determination : a bill for specific performance of the cove- 
 nant to renew was dismissed, and an injunction against an 
 •ejectment was refused, on the ground that the lessor ought 
 not to be placed in a worse condition at the expiration of 
 the term than he would have been if he had known of the 
 breach, and availed himself of it during the term. 
 
 § 945. In Gregory v. Wilson(y) possession had been 
 taken under a contract for a lease : breaches were alleged 
 of the covenants which should have been inserted in the 
 lease to insure and also to repair : it was contended as to 
 the first that the receipt of rent after knowledge was a waiver 
 of all the breaches, but the court held such waiver to have 
 no longer operation at law than on the breaches antecedent 
 to the receipt, and not to preclude the effect of the sub- 
 
 {h) Rankin v. Lay, 2 De G. F. & J., 65. See (j) 5 Sim., &5. 
 Infra, § 954 et seq. (^ ) 9 Ha., 683.
 
 470 FRY ox SPECIFIC PEUFOU.M ANCE OF CONTRACTS. 
 
 sequent breaches of the continuing covenant : as to the 
 breaches of the covenant to repair, it was urged that they 
 were neither wilful nor obstinate, and that accordingly they 
 might be relieved against in equity : but the court held that 
 as they were not attributable to mistake or accident, and 
 were persisted in, they were, in the contemplation of the 
 court, willful and obstinate. The bill was accordingly dis- 
 missed. 
 
 § 94<». In another case the defendant was lessee under a 
 restrictive covenant against carrying on a beer shop. The 
 plaintiff got a contract from the defendant for a sub-lease 
 with knov/ledge of defendant's title and of the covenant. 
 The plaintiff entered under the contract, and persisted in 
 carrying on a beer shop. His bill for specific performance 
 was dismissed with costs. (A*) 
 
 2. Cases loJiere relief lias not been refused. 
 
 % O-iT. Tiiere may be cases of breach of covenant for 
 which merely nominal dama,ges could be obtained, or there 
 may be cases where a breach having been committed, may 
 have been waived : and in favor of such cases an exception 
 may be made to the genei-alrule that the plainrifi must prove 
 performance of the contract on his i3art.(Z) On this prin- 
 ciple, Jessel, M.^E,., in a recent cise held that trilling 
 breaches by a husband of the covenants on his part in a 
 separation deed did not debar hini from enforcing the 
 
 deed.(?/0 
 
 § 948. But as regards breaches of covenant under con- 
 tracts for leases, it seems that the breach which the court 
 would neglect must be either such a breach as would not 
 work a forfeiture at common law, or such that the legal for- 
 feiture would not be relieved against in a court of equity : 
 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 ci'eated.(?i.)' 
 
 (A) T>e.wis V. F.)n<l, IS BPav., 85. (m) Be-aiit v. Wood, 12 C.h P., B05. 
 
 kI) Walker v. Jeffreys, l 11a , a41. 3V2. (-) Gregory v. WiUou, 9 Ha.. 083. 
 
 ' Breach "f condition precedent; rule an to relief .'] Scudder, J., said in Grigg 
 V. Luudis 21 N. J E^i , 4v)-l:: •'Penalties, forfeitures and re-entries, for condi- 
 tions broken, are not favored in equit3% and constitute a large branch of equita- 
 ble relief. Usually they are held to be securities for tiie payment of money and 
 the performance of conditions, and where compensation can be made for non-
 
 ACTS IN CONTRAVENTION OF THE CONTRACT. 471 
 
 § 949. In one case a lessor of mines covenanted to grant 
 a furtlierterm, 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, (o) 
 
 § 950. The case of Parker v. Taswell(j??) may usefully be 
 consulted as the law bearing on this question was there 
 much considered, but the court came to the conclusion that 
 according to the true construction of the contract there had 
 been no breach of covenant. 
 
 S 951 Is reo-ards all cases where the landlord is defend- 
 ant and raises an objection on the ground of breach of cove- 
 nants which ought to be in the lease, if the plaintiff shows 
 that the landlord never complained before action, the land- 
 
 (o) Walker V. Jeffreys, 1 Ha., 341. (.p) 2 De G. & J., .^oO. 
 
 payment and uon-perfonnance, equity will relieve against the rigid enforcement 
 of 'the contract. This is u[)on the principle that a court of equity is a court ot 
 conscience and will permit nothing to be done within its jurisdiction which is 
 unconscionable. But it is not, the'i-efore, to be supposed that a court of equity 
 will lightly dispense with contracts made between competent parties and sub- 
 stitute other agreements more in accordance with variable rules of right and 
 conscience. Every presumption will be made in favor of such contracts, and 
 thev will be enforced according to the intention of the parties expressed and irn- 
 plied, unless it can be shown that thereby some hardship or wrong, not within 
 the presumed contemplation of the parties at the time, will result froiu such 
 enforcement." See, also. Livingston v. Tompkins, 4 John 's Ch., 4:Jl ; 2 btory s 
 Eq. Juris., §§ 1314, 1816. 
 
 Breach of condition ; subsequent relief.^ Where compensation can be made 
 for the failure of exact performance, courts of equity have in general relieved 
 ao-aiust forfeitures which arose from the breach of a condition subse(iuent. 
 Popham V. Bamptield. 1 Vern., 79; Woodman v. Blake, 2 id., 222; Walker v. 
 Wheeler, 2 Conn., 299. 
 
 Comlitionsi imcedent arid subsequent Jiou- (IMinguished.^ There are no iech- 
 nical words by which conditions precedent and sulisequent may be dis- 
 tinguished from each other. It is matter of construction and depends upon 
 the'partv creatino- the estate, whether a condition is one or the other. 4 Kent s 
 •Com 124- I Te'rm li . G4o; 2 Bos. ct Pull., 2'.)o; Finlay v King. 3 Peters, 
 346; Nicoli v. New York and Erie R. R. Co., 12 N- Y., 121; Underhdl ^ Sara- 
 tO"-a R R Co.. 20 id., 4.')5; Bennett v. Strong, 26 Miss ,116; Roger v. Walker, 
 1 Wis , 527. For a most instructive case, presenting a learned discussion upon 
 the distinction between conditions precedent and subsequent in contracts or 
 covenants see Roberts v. Brett. 6 C. B. (N. S.), (ill. The mum test, with 
 respect to these conditions, is whether the vesting of the estate granted by ihe 
 instrument in Avhich they are contained is postponed until the happening ot the 
 contin"-ent event forming the condition, or is to be divested by it. 1 owJe v. 
 Palmer 1 Rob 487. The estate is not divested by the breach ot a ctmdition 
 subsequent in such a case; the grantor, or his heirs, have the right of re-entry 
 and this may be waived Ludlow v. New York and Harlem K R. <- "•••'* 
 Barb., 44U; Rhoenir v. Com'rs of Emigration, 12 How. Pr., 1; att g 1 Abb. 
 Pr., 466.
 
 472 FRY ON SPECIFIC PERFOKMANCE OF CONTRACTS. 
 
 lord must j)rove a strong case to get the benefit of his 
 objection. («/) 
 
 S 05»2. In Gordon v. Smart, (^') where a contract to grant 
 a building lease had been entered into, and the plaintiff, 
 claiming under this contract, had erected a brewhouse on 
 part of the ground, which, it was contended, would be an 
 injury to the adjoining property of the lessor ; this was 
 argued, but unsuccessfully, to be a reason for refusing 
 sj)ecific performance, Leach, Y. C, saying that it was not 
 necessarily a nuisance : he left open the question whether, 
 if it liad in itself been a nuisance, that would have been a 
 defense in such a suit. 
 
 § 953. It seems that under the Irish tenantry acts, and 
 perhaps even independently of them, the breach by the 
 tenant of covenants in the lease will not be a bar to specific 
 performance of a covenant for renewal. (5) Certainly they 
 will not so oi^erate unless they be gross and perhaps also 
 willful.^) 
 
 3. WJiere specific performance icas granted and the 
 question of breach of covenants left for decision at 
 laiD. 
 
 § 954. Where the Court of Chancery found such a con- 
 flict of evidence as left it in doubt whether there had been 
 such a breach of covenant as to render it proper and 
 expedient to refuse specific performance on that ground, it 
 took the course of directing the lease to bear the date of the 
 contract, or a date anterior to the alleged breaches, and 
 required from the plaintiff an undertaking to admit in any 
 action which might be brought under such lease for the 
 recovery of the demised property, or upon any breaches of 
 covenant to be contained in such lease, that such lease was 
 executed on the the day on which it should bear date. 
 
 § 955. This practice was first introduced by the case of 
 Pain V. Coombs -.{u) it was followed by the Court of AjDpeals 
 in Lillie v. Legh \{v) it was discussed, adopted and approved 
 in Rankin v. Lay, (10) and had thus become the well- 
 established practice of the Court of Chancery. 
 
 (q) Munrtv V. .Jolliffe, 5 My. & Or., 167, 177. (v) 3 De G & J., 204 Cf. Powell v. Love- 
 
 (r) 1 S & S. 66. grove. 8 De G. M. & G at p. 36.5. 
 
 («) Trant v. Dwyer, 2 Bii. N. S , 11. See {w\ 2 De G. F & J . 6.5. See too Poyntz v. 
 
 Thompson v. Guyon, 5 Sim., 6.5; supra, § Fortune, 27 Beav.. 393; Brown v. Marquis of 
 
 (t) Hare v. Burges. 5 VV. R., 58,5. Sligo, lUlr.Ch.R., 1; Cartan v. Bury,iil ,387. 
 
 (w) 1 De G. & .J, .34 ^S. C. before Stuart V. 
 C, 3 Sm. & G.. 44«).
 
 ACTS IN CONTRAVENTION" OF THE CONTRACT. 473 
 
 § 956. It would be presumptuous to inquire whether 
 the court did wisely in directing deeds to bear false dates, (i??) 
 or in requiring persons to admit as a fact that which was 
 not a fact. But it may be allowable to rejoice in the ex- 
 pectation that, under the improved judicature now in exist- 
 ance, no such decrees as those last referred to will be made. 
 The high court will probably decide the whole case at 
 once. 
 
 § 957. Other cases have arisen which illustrate the gene- 
 ral principle, in cases not arising out of contracts for 
 leases. 
 
 Where an estate was sold upon the condition, amongst 
 others, that immediate possession should be given, and in 
 course of disputes which subsequently arose about the title, 
 the vendors tendered the purchaser his deposit, demanded 
 back possession, drove the purchaser's stock off the estate, 
 and gave notice to the tenants not to pay the rent to him, — 
 this was conduct inconsistent with the condition of the sale, 
 and was held to operate as a bar to specific performance at 
 the suit of the vendors. (?/) 
 
 § 958. In another case it was thought by Lord Cranworth 
 doubtful whether a bill could be maintained for the specific 
 performance of an award after the i)laintiff had taken pro- 
 ceedings to set it aside. (2:) 
 
 § 959. Where a vendor has given notice of his intention 
 to resell under the contract, it was held that he had pre- 
 cluded himself from afterwards seeking for specific per- 
 formance, (a) 
 
 § 960. Again, a railway company cannot first enter into 
 a contract for the i^urchase of land, then take proceedings 
 under their compulsory powers in a way which assumes 
 that there is no subsisting contract, and then fall back upon 
 and seek to enforce the original contract. (Z>) 
 
 § 961. Still it is not every breach of good faith which will 
 prove a bar. Where the plaintiff has been guilty of small 
 breaches of good faith, for which the defendant had a 
 remedy in his own hands, and where, if the interference of 
 the court were refused, the plaintiff would be without any 
 
 (x) The fraudulent making of a deeil with (z) Blackett v. Bates, L. R. 1 Ch., 117; re- 
 
 a talse date is, or may b»', forgery. Keg. v. versing 8. C. 2 H. & M., 270. 
 
 Ritson, L. R., 1 C. C. R., 200 (1) Bovou v. Paul, 28 L. J. Ch., 555. 
 
 (y) Knatchbull v. Grueber, 1 Mad., 153; S. ib) Bedford and Cambridge Railway Co. v. 
 
 C. Mer. 124. Stanley, 2 J. & H. 746.
 
 474 FRY ON SPECIFIC PERFORMANCP: OF CONTRACTS. 
 
 adequate remedy, such breaches of good faith liave been 
 hekl not to be a bar to relief, though they affect the 
 costs. ((?)' 
 
 (C) Hoimea v Eastern Counties Railway Co., 3 Jur. M.S., 737; cf Besant v. Wood, 12 
 
 Ch. D., 6.i5. 
 
 ' Tender, in casen itliere specific performance is demanded ] In order that an 
 action may be sustained by the" vendor he must show that he has made a tender 
 of a "-ood title and an offer to fulfill the conditions on his part. Hodges, e.c 
 parte', 2i Ark.. I'.iT: Mix v. Beach, 4(5 111., 113; McIIugh v. Wells, 89 Mich., 
 17o: ISowle v. lloldridge, 03 Ind., 21-! Before a conveyance can legally be 
 required, the vendee must make a good tender of the purchase money. Ilutf 
 V. Jennings, Morris (Iowa), 454; Heuer v. Rotkowski, 18 Mo., 216; Beebe v. 
 Dowd, 2i Barb , -Z'y); Goodale v. West, .5 Col., 8311; Bearden v. Wood. 1 A. K. 
 Marsh", 4.i0- Greenup v. Strong. I Bibb., rm; McComas v. Earley, 21 Gratt., 
 29; Iwin v. Blakeslev, 07 Pa. 8t., 24; Bislinger v. Kitts, Barb., 273; Tanner 
 V. Peck, 1 Barb's Ch., 549; Lansing v. Thompkins, 45 Barb., 308; Chase v. 
 Hogan 3 Abb. Pr. (N. S ), 59. A tender of the purchase money mu.st not only 
 be uiade, but it must be kept good, in order to stt)p the running of interest. 
 The vendee nuist not use the money for other purpo.ses. Bissell v. Heyward, 
 6 Otto., 58). When the purchase money was tendered, the estate was worth 
 more than the price agreed upon, and the vendor refu.sed to convey. After 
 waiting until the value had considerably depreciated he sought the aid of 
 eciuity^to compel specific performance. Held, that he could not obtain it. 
 Tobey v. Foreman 79 111., 489. The i)laintitf, in an action for specific per- 
 formance, showed no offer of compli:ince with his part of the agreement, and 
 no excuse therefor, for a period of twenty-one or twenty-two months. Held, 
 that he was not entitled to a decree. Green v. Covilland, 10 Cal., 317. 
 
 Examples of sufficient Under J, As to U. S Treasury notes, see Davis v. 
 Parker, 14 Allen, 94. Where money is payable in installments, see Rogers v. 
 Taylor,' 40 Iowa, 193; Blackner v. Phillips^ 07 N. C , 340. There was an all - 
 gation that a lender oi payment had repeatedly been made, and that the plain- 
 tiff had at all -times been and stdl was ready and willing to pay. Held, that 
 ihe tender shcjuld have Ijeen stated with greater particularity. Duflf v. Fisher, 
 15 Cal., 375: Hart v. McClellan, 41 Ala., 251. In Eiiglander v Rogers. 41 
 Cal., 4 JO, the allegation of tender by the plaintiff was as follows: that he "has 
 been ready and willing during all the time aforesaid, and has oUered to accept 
 and take said conveyance, pursuant to said agreement, anil to pay the balance 
 of said purchase money." This was held not sufficient. "To constitute a 
 valid tender in such a case, the party must have the money at hand, inuuedi- 
 ately under his control, and must then and there not only be ready and willing, 
 but produce and offer to pay it to the other party on the performance by him 
 of the requisite conditions." Crockett, J >ee, also. Strong v. Blake, 40 Barb., 
 227. Where there has been a tender of the purcha.se money, and a rt-fu.sal to 
 convey, it need not be shown that the tender was kepi good. Allen v. Atkin- 
 son, 2l Mich.. 351; King v. Ruckman, 21 N. J. E(i , 599; McDonald v. Kun- 
 brell, 3 Iowa, 335.
 
 NON-PEKFOEMANCE OF CONDITIONS. 475 
 
 CHAPTER XXII. 
 
 OF NON-PEHFORMANCE OF CONDITIONS. 
 
 § 962. 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 be- 
 comes absolute, and rests on the same footing for all pur- 
 poses as if it had been originally made positively and without 
 reference to any contingency. («) Bat until it has thus be- 
 come absolute, no person can l)e entitled to call for its per- 
 formance. (?>) Where, therefore, the contract is in its origin 
 conditional, it may alford a ground of defense that the con- 
 dition has not been performed.' 
 
 (a) Pt Lorii Bjmillv, M. R.. in Regent's Giff , 21fi; 3 De G. & J., 334; Cf. Abbott v. 
 Canal Co. V. Ware, '23 Heav., 5Si) I'.Uir, S vV K,61i; DoiuMms v. i*Mmouth 
 
 (6) .Scutt V. (Jorporiiion of Liverpool, I R liiwav an'l Harbor Co., 14 W. R. 361. 
 
 ■ Where A. signs an agreement to do certain acts, on tlie performance of cer- 
 tain conditions precedent by B., and B. perfoims tiio.se conditions, equity will 
 compel a specific performance of the agreement l)y A. Launing v. Oole, :•» 
 Green's Ch., 229. Hut a party .so .seeking to (jhtaiu the benefit of a conditional 
 agreement must show not only that he accepted the otfer made, but also that 
 h(^ faithfully performed the condition, liilly v. Barnard, S Gill- 6c .1., 170. 
 And, therefore, at law, where one party covenants to give a deed on a certain 
 day, and the other c 'venants to pay money on the same day, neither can main- 
 tain an action against the other, •until he has performed or tendered perform 
 ance on his part Green v. Reynolds, 2 John., 207; .Jones v. Gardiner, 10 id., 
 20(5; Hardin V KreiLsinger, IT id , 29-J; Robb v. 3Iontgomery, 20 id., lo; Gazely 
 V Price, lb' id.. 2ij7; Rubert.son v. Robertson, :! Rantl , GS; .Northrup v. Nor- 
 thrup, (5 Cow., 296; Meriwether v. Carr, I Blackf., 41 o; Bailey v. Clay, 4 
 Rand., ii4(); see Gibbs v. Champion, ;j Ham., i5:i5. And in equity, where 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 cannot compel 
 the other party to the contract, or his assignee, to make a lease to him. Jones 
 V. Roberts, G Call, 187; Harvie v. Banks, 1 Rand., 4<)8. Chancer}' never re- 
 lieves against the breach of conditions precedent, althoiigh it may against con- 
 ditions subsequent. The reason of this is obvious. In cases of conditions 
 precedent no estate can vest until the condition be performed ; and, therefore, 
 any claim for relief must be without foundation Bat in cases of conditions 
 subsequent, the estate, or interest, vests in tlie first instance, subject to be 
 divested on non-performance or breach of the condition. Wells v. Smith, 2 
 Edw.'s Ch., 7^; Chipman v. Thompson. Walk 's 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 suliscriptions, on conditions with which it 
 refuses to comply. Turnpike Co. v. Churchill, ti Monr., 427. But where there 
 has been a breach of a condition sul)se(iuent, and compensation can be made, a 
 court of equity will grant relief. Walker v. Wheeler, 2 Conn., 299; De Forrest 
 V. Bates, 1 E<iw.'s Ch., 394; Chipman v. Thompson, Walk 's Ch., 4U5. And, 
 in accordance with this principle, it has been held that, where b}' the terms of 
 a lease, it is to cea.se and determine upon a breach of any of the covenants 
 therein, and, by a clau.se in the lease, it is provided that the lessor may re-enter
 
 476 FIIY ox SPECIFIC PERFORMANCK OF CONTRACTS. 
 
 § 9«:i. A case before Lord Romilly, M. R., may be cited 
 as an illustration of this obvious principle. The defendants 
 ao-reed to take a lease of a public house from the plaintiff, 
 provided the retail license was obtained, and the plaintiff 
 agreed to use his utmost efforts to obtain this license. The 
 defendant entered into possession to qualify himself as a 
 publican for the license and obtained a license from the 
 justices, but under compulsion of the Justices and threat of 
 refusal, he gave to the justices a verbal promise that no 
 excisable liquor should be sold for consumption on the 
 l^remises. It was held that the condition was not performed 
 and specific performance was refused. (c) 
 
 § 964. A contract may be conditional either by express 
 words of condition, or because the court, upon a considera- 
 tion of its terms, gathers that to have been the intention of 
 the contracting parties. This is, of course, a question to be 
 decided on the terms of each contract. It will, therefore, 
 be sufficient briefly to allude to two or three cases of practi- 
 cal moment. 
 
 § 965. In the care of contracts by railway companies, the 
 question has sometimes arisen how far they are conditional 
 on the formation of the railway. In one case, where a com- 
 pany before incorporation contracted with a landowner, the 
 contract provided for a bridge over the railway, a certain 
 deviation of the line, and other works entirely dependent 
 on its formation, and also for the payment of £4,500 as pur- 
 chase money for certain lands to be taken by the company, 
 and for consequential damages 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 
 
 (c) Modlen v. Snowball, 29 Beav., 641, affirmed 31 L. J. Ch., 44; 10 W. R., 24. 
 
 for a breacli of the same covenants, the lease is voidable only upon such a 
 breach, and not void. (Walworth, Ch.) Stuyvesant v. Davis, 9 Paige, Vi7. To 
 create a condition precedent or subsequent no precise technical words are re- 
 quired. The con.struction must always be found upon the intention of the 
 parties. If the act or condition required does not necessarily precede the vest- 
 ino- 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 nature of the 
 act to be performed, and the time required for its performance, it is evidently 
 the intention of tiie parties that the estate shall vest, and the grantee perform 
 the act, after taking possession, then the condition is subsequent. Underhill v. 
 Sarato-'-a and Washington R. R. Co.. 20 Barb., 455. Therefore, a conveyance 
 to a railroad corporation upon the expre.ss condition that the company should 
 construct its railroad within the time prescribed by the act of incorporation, is 
 a I'-rant upon a condition subsequent, and not precedent. NicoU v. ^'ew lork 
 and Erie 11. R. Co , 2 Keruan (N. Y ), 121.
 
 NON-PERFOKMANCE OF CONDITIONS. 477 
 
 taking the lands had expired, Xine-tenths of the contract, 
 as Knight Bruce, L. J., remarked, had become impracti- 
 cable by reason of the abandonment of the railway : and 
 the Lords Justices, though not deciding the point, evidently 
 inclined to the oj)inion that the contract was conditional, 
 not only on the passing of the act, but on the making of the 
 railway, {d) And in the subsequent case of Lord James Stuart 
 V. London and Xorth- Western Railway Co.,(e) Lord Cran- 
 worth, L. J., expressed a similar opinion. These cases have 
 been doubted, (/') but rather on the point of Jurisdiction 
 than of the construction of the contracts : and they have 
 certainly received great support from the case of Gage v, 
 Newmarket Railway Co.{g) There the company had cove- 
 nanted with the plaintiff that, in the event of a bill for 
 extending their powers being passed in the then present 
 session, the company should, before they should enter on 
 any part of the plaintiff's land, pay him £4,900 purchase 
 money for any portion of his land, not exceeding forty-three 
 acres, which the com j)any might require to take, and £7,100 
 as landlord' s compensation for damages arising by the seve- 
 rance thereof. It was held that the covenant was not for 
 the payment of an absolute sum as a consideration for the 
 plaintiff's withdrawing his opposition, but a payment as 
 purchase money and compensation for services, which could 
 not be due when no land was required or taken, and no 
 severance affected for which compensation could arise. In 
 the case of the Scottish Xorth-Eastern Railway Co. v. Stew- 
 B.Tt{h) the House of Lords arrived at a similar conclusion 
 upon the contract there in question. 
 
 § 966. The performance of conditions precedent may of 
 course be waived by the persons entitled to their perform- 
 ance ;{i) but any w^aiver to be binding must be made inten- 
 tionally and with a knowledge of the circumstances, (y)' 
 
 (d) Webb V. Direct London and Ports- {g) IS Q. B., 457. See, also, Edinburgh, 
 mouth Railway Co., 1 De G. M. & G., 521, re- Perth and Dundee Hallway Co. v. Philip, 3 
 versing S. C. 9 Ha , 129. Macq.. 514 
 
 (e) 1 De G. M. & G , 721. This case in the {fi) 3 Macq , 382. 
 
 court below is reported, 15 Beav., 513. See, (i) Beatsou v. Nicholson, 6 Jur., 620. 
 also, 5 H. L. C, .351. (J) Earl of Darnley v. London, Chatham, 
 (/) Hawkes v. Eastern Counties Railway and Dover Railway Co., L. R 2 U. L. 43 (S. 
 Co., 1 De G. M. & G., 737; S. C. 5 H. L. C, C, 1 DeG, J. & 6., 204,3 id. 24. 
 331. 
 
 ' Contract assigned before payinent.'] The purchaser assigned his contract 
 before payment became due, and the assignee failed to pay before the vendor 
 commenced his action for specific performance. Held, that it was proper for 
 the latter to tender a conveyance to the original purchaser. Corbus v. Leed, 69 
 111,, 205.
 
 478 FRY ON SPECIFIC PERFORMANCE OF CONTRACTS. 
 
 CHAPTER XXIII. 
 
 OF THE INCAPACITY OF THE DEFENDANT TO PERFORM HIS 
 PART OF THE CONTRACT, 
 
 § 967. There are certain cases in which the contract is 
 construed to be conditional, on individual capacity, or on 
 the continued existence of some state of facts or thing. 
 "Contracts for personal service, for matters dependent on 
 personal capacity, as to write a book or paint a picture, are 
 conditional on the continuance of the ability, mental or cor- 
 poreal, to perform them."(«) So, again, where from the 
 nature of the contract it appears that the parties contracted 
 upon the footing of the existence at the time of perform- 
 ance of some particular specified thing, and there is no 
 express or implied warranty that the thing shall exist, a 
 condition is implied that the party to do the act shall be 
 excused, in case before breach performance becomes impos- 
 sible by the perishing of the specified thing without the 
 default of the party. This principle has been applied to a 
 contract to let a music hall, which was destroyed by fire 
 before the day arrived ■,{h) and to a contract to sell 200 tons 
 of potatoes grown on particular land.(c) 
 
 § 968. All these contracts, being conditional and not 
 positive, are not within the rule that, where there is a posi- 
 tive contract to do a thing not illegal, the contractor must 
 perform it or pay damages for not doing it, though it has 
 become impossible. On such contracts no action can be 
 maintained, whether for damages or specific performance. 
 
 § 969. But in contracts i^ositive and not conditional, the 
 incapacity of the defendant to x^erform his part- of the con- 
 tract, whilst it lurnishes no answer to an action for 
 damages, (cZ) affords aground of defense against specific per- 
 formance, (e) This contention does not, like that in the case 
 
 (a) PerBramwell B., in Hall v. Wright, See, also, Appleby v. Myers, L. R. 2 C. P. 
 El. B. & E., 778; Poussard v. Spies, 1 Q. B. 651. _ 
 
 D., 410, 414. (d) Hall V. Wri?ht, El. B. & E., 746; Brown 
 
 (6) Taylor v. Caldwell, 3 B. & S., 826. v. Royal Insurance Co., 1 El. & EL, 853. 
 
 (c) Howell V. Coupland, 1 6. B. D.,25S. («) Per Lord Hardwicke in Green v. Smith, 
 
 lAtk., 573.
 
 INCAPACITY OF TllP: DEFENDANT. 479 
 
 of conditional contracts, rest upon the nature or terms of 
 the contracts, nor, like that grounded on the incapacity of 
 the plaintiff to perform his part, rest upon any principle of 
 justice that operates in favor of tlie defendant, but is based 
 upon the necessity of the case arising out of the nature of 
 the relief sought.' 
 
 § 970. Where a bill was filed against the provisional 
 committee of a projected railway company for the specific 
 performance of a contract to deliver to the plaintiff a certain 
 number of scrip certificates ; there being no allegation that 
 the defendants had any scrip 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 capacity 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 -.{g) and 
 so again, assuming that a covenant to produce deeds can be 
 obtained by way of specific performance of a covenant for 
 further assurance, it seems that the court will not attempt 
 so to carry it into effect where the deeds are not in the pro- 
 posed covenantor's power. (7i)' So again a contract by 
 
 (/) Columbine v. Chichester, 2 Ph., 27; (g) Denton v. Stewart,! Cox, 258, 17 Ves., 
 Ferguson V. Wilson, L. R. 2 Ch., 77. 276 n. „.jj, . , r. oio 
 
 * (A) Hallett V. Middleton, 1 Russ, 243. 
 
 1 Courts of equity never enforce the specific performance of an agreement 
 where the decree would bo a vain or imperfect one. Tobey v. The County of 
 Bristol, 3 Story, 800. But although the incapacity of the defendant will defeat 
 a decree for specific performance, yet, where a party has juit it out of his 
 power to perform specifically, a bill tiled for that purpose will l)e retained, and 
 an equivalent in damages awarded, to be assessed on reference to a master, or 
 to a jury upon an issue of quantum damnificatus, according to circumstances. 
 Woodcock V. Bennett, 1 Cow., 711. 
 
 « Who nmd prepare the deed; abstract of title.'\ In many of the States the 
 vendor must cause the deed to ])e ready for defivery. This has been expressly- 
 held to be the rule in California, Morgan v. Stearns, 40 Cal., 484; Illinois, 
 
 V. King, 2 id., 155; Hunt v. Livermore, 5 id., 895; Brown v. Bellows, 4 id., 
 179- Minnesota, St. Paul Division v. Brown, 9 Minn., 157; Mississippi, Stan- 
 dife'r v. Davis, 18 Sm. c^ INIarsh., 48; New Hampshire, Fairbanks v. Dow, 6 
 N. H.. 26(3; New York, in an executory contract, the vendor of real property 
 must cause a suflicient deed to be prepared, which must be tendered to the 
 
 V Northrup 6 Cow\, 296; Hudson v. Swift, 20 John., 27; Parker v. Parmlee, 
 20 id., 130; Slocum v. Despard, 8 Wend., 615; Johnson v. Wygant, 11 id., 48;
 
 480 FKY ON SPECIFIC PERFORMANCE OF CONTRACTS. 
 
 directors to accept sliares in payment of calls being legally- 
 impossible of performance cannot be enforced. (i) And 
 where a charitable corporation, which had no power of sell- 
 ing except under the land clauses act, contracted to sell 
 land without having the price settled in the manner pre- 
 scribed by the act, the court refused to decree specific per- 
 formance. (,/) 
 
 § 971. It is immaterial for this purpose that the defend- 
 ant is the author of his own incapacity. " Put the extreme 
 case," said Kindersley, V. C, "of a vendor burning a title 
 deed : the court could not make a decree that he should 
 deliver it up, and be imprisoned if he does not."(A-) 
 
 § 979. It is not necessary to the speciific performance of 
 a contract, that it should be one which the parties at the 
 time of entering into it had the power of carrying into 
 effect, nor one with regard to which it depends on them- 
 selves alone whether they would ever be able to perform 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 contract 
 he entered into.(Z) Therefore a defendant cannot object at 
 an early stage of an action for specific performance that he 
 he has not the interest he has contracted to sell, as he can- 
 not be i)ermitted to say that he did not mean to acquire that 
 interest. (t?^)' And so where a defendant had contracted to 
 give a certain indemnity to be secured on real estate, and 
 alleged that he had not real estate of sufficient value, and 
 contended that the plaintiff ought to accept a personal 
 indemnity, it was held that he was bound to purchase real 
 estate of sufficient value, (ti) 
 
 (i) Ellis V. Colman, 25 Beav , 662. See, (I) Holroyd v. Marshall. 10 H. L. C, 191, 
 
 also, Seawell v. Webster, 29 L. J. Ch., 71. 211; Crane v. Mitchell, 15 L. J Ch., 287. 
 
 (j) Wvcombe Railway Co. v. Donnington (m) Per Lord Eldon in Browne v. Warner, 
 
 Hospital, L. K. 1 Ch., 268. 14 Ves , 412. 
 
 {k) In Seawall v. Webster, 29 L. J. Ch. , 73. (n) Walker v. Barnes, 3 Mad., 247. 
 
 Fuller V. Hubbard, 6 Cow., 13; Connelly v. Pierce, 7 Wend.. 129; Pennsyl- 
 vania, Switzer v. Hammel, 3 Serg. & Rawle, 228 ; South Carolina, Prothro v. 
 Smith, 6 Rich.'s Eq., 334. In Arkansas the vendee must cause the deed to be 
 prepared and must tender it to the vendor. This is the rule in England. 
 Byers v. Aiken, 5 Pike, 419. In Alabama the rule is the same as in England 
 and Arkansas, and in this State the vendor, when required, must furnish an 
 abstract of his title. Chapman v. Lee, 55 Ala., 016. 
 
 • See the cases of Collins v. Carr, Freem., 5; Greenaway v. Adams, 12 Ves., 
 401; Coffin v. Cooper, 14 id., 205; and Hull v. Vaughan, 6 Price, 163, in sup- 
 port of the rule.
 
 INCAPACITY OF THE DEFENDANT. 481 
 
 § 97Jf . 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 was thus absent, the defendant, wlio was his 
 heir apparent, without authority from the then Duke, sold 
 and conveyed to the plaintiff certain estates of the Duke, 
 and received the jjurchase money, and a|iplied it for the 
 benefit of the family. The defendant having subsequently 
 succeeded to the dukedom and the estates in question as 
 heir, was, by Lord Nottingham, held bound to make good 
 his sale, and was decreed to do so accordingly, (o) At the 
 time of the contract, specific performance would have been 
 impossible on the part of the defendant, but it had subse- 
 quently become possible by the devolution of the estate con- 
 tracted to be sold. 
 
 § 974. On the same principle, the court will not in all 
 cases consider as void, contracts, whether by private persons 
 or companies, which require the interposition of the legisla- 
 ture before they can be carried into effect, and accordingly 
 will in the meanwhile protect the property in issue. (^.') 
 
 § 975. With regard to real estate, the statute 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 pretended right, contracts on a certain future day 
 to convey an estate, and he is on the day possessed of it, 
 the contract api3ears not to be within the oi^eration of the 
 statute, and to be binding on both parties. ((7) 
 
 § 976, And so also with regard to goods, the legality of 
 contracts for the sale of such property not at the time in the 
 possession of the vendor is now well established ;(r) so that, 
 notwithstanding an opposite decision of Lord Maccles- 
 field, (.9) such a contract would noAv probably be enforced, if 
 in other respects it fell under the jurisdiction of the court. (^) 
 
 § 977. As the consent of a third party is, or may be, a 
 thing impossible to procure, a defendant who has entered 
 
 (o) Clayton v. Dukeof Newcastle, 2 Gas. in legal, see Mayor of Norwich v. Norfolk Rall- 
 
 Ch.. 11-2. way Co., 4 El. & Bl., 397. 
 
 (p) (ireat Western Railway Co. v. Birm- (q) De Medina v. Norman, 9M. & W., 829; 
 
 Ingham and Oxford Junction Railway Co., 2 and see turther, as to this statute, supra, § 
 
 Ph., 597; per Lord st. Leonards in Hawkes 211. 
 
 V. Eastern Counties Railway Co., 1 De G M. (r) Hibblethwalte v. McMorine, 5 M. & W. 
 
 & G., 756; Devenish v. Brown, 2S L. J. Ch., 462. 
 
 23; 4 W. R.,783(\Vood, V. C); Frederick v. (s) Cuddeev. Rutter,5 Vin. Abr ,538,pl.2L 
 Coxwell, 3 Y. ito J., 514. As to contracts re- (t) Holroyd v. Marsnall, 10 H. L. C, 19L 
 quiring proposed legislation to render them 
 
 31
 
 482 FRY ON SPECIFIC PKRFOUMANCE OF CONTRACTS. 
 
 into a contract to the performance of which such consent is 
 necessary, will not, in case such consent cannot be procured, 
 be decreed to obtain it, and thus perform an impossi- 
 bility, (w) 
 
 g 978. Where the husband, or husband and wife, have 
 entered into a contract to sell the estate of the wife, the 
 Court of Chancery used formerly to decive the husband to 
 procure his wife's consent, and in default commit him to 
 croal until she yielded. (?;)' But the absurdity of such a 
 
 6 vv" k. -206; 27 L. J. Ch., 156; Meara v. Ambl., 495; Morria v. Stephenson,? Ves., 474. 
 Alei^ra, 8 Ir. Ch. R., 37; and Willmott v. 
 
 1 Wheeler v. Newton, 2 Eq. Cas. (Ala ), 44; Colvert on Par., 269. A husband 
 and wife contracted, in writing, to sell the land of the wife; the separate ac- 
 knowledgment of the wife was had. Held, that an action would lie for specific 
 performance. Darkel v. Hunter, «I Pa. St.. 382. See contra, Frarey v. Wheeler, 
 4 Oregon, 190. Where the conveyance made by a married woman is void she 
 should be made a party. Stainsbury v. Pope, 4 Bibb. (Ky.), 492. Where the 
 husband is not named the action may be brought by the wife alone. Stampoff- 
 ski V. Hooper, 75 111., 241; see, in this connection, Harper v. Whitehead, 33 
 Ga., 138. A bill was tiled by a husband and wife to compel specific perform- 
 ance of a contract to convey land to the wife; pending the action the wife died. 
 Held, that their children must be joined, or an order to proceed in the name of 
 the survivors in order that a decree could be entered on the merits. Hand v. 
 Jacobus, 19 N. J. Eq., 70. Wliere the wife is a tenant for years she may, with 
 her husband, sustain an action for specific performance against the lessor. 
 Bain v Bickett, 1 Cine ,101. When a wife was not a party to a contract for 
 the sale of land she cannot ])e compelled to join in the conveyance of the same, 
 and she is not a proper party to an action for specific performance. Richmond 
 v. Robinson, 12 .Mich., 193. A husband contracted for the sale of his wife's 
 land and described it as his. Held, that the wife, after his death, was not 
 entitled to a decree of specific performance against the purchaser for her own 
 benefit. Hoover v. Calhoun, 16 Graft., 109. The wife of a surviving partner 
 need not be joined as a party. Galbraith v. Gedge, 16 B. Mon., 631. Au 
 action will lie to chanee the separate estate of a married woman under her 
 ao-reement to purchaseT Knowles v. McEamly, 10 Paige's Ch., 342; Hinckley 
 vT Smith, 51 N. Y., 21 ; Berry v. Cox, 8 Gill., 466; Ballin v. Dillage, 37 N. Y., 
 35- N. Y. Rev. St. (6th ed.), vol. 3, page 160, i:$ 82. It cannot be maintained 
 a^-ainst her personally, however. Francis v. Wizzel, 1 Mad., 258. The engage- 
 ment must be made on the credit of her separate estate. Johnson v. Gummius, 
 16 N. J. Eq., 97; Harrison v. Stewart, 18 id., 451; Hinckley v. Smith, 51 N. 
 Y., 21. In New York a married woman acts as nfeme sole, her liability, when 
 she binds herself to an executory contract, does not depend upon the existence 
 of special circumstances, but is governed by the ordinary rules by w^hich the 
 liability of persons sni juris upon their contracts are determined. Cushman v.- 
 Henry, 75 N. Y., 103 ; Rev. S C, 44 N. Y. Sup. Ct., 93. In Iowa the wife can 
 control her own property, vindicate her individual rights and bind herself by 
 contract as fully and to the same extent as her husband. Spafford v. Warren, 
 47 Iowa, 47. In South Carolina the husband is a formal and not a substantial 
 party in actions against the wife on her individual contracts, other than for 
 necessaries. Ross v. Linden, 12 S. C, 592. Equity for many purposes treats 
 the husband and wife as capable of concocting with each other ; such contracts 
 will sometimes be enforced, even as against the creditors of the husband. 
 Campbell v. Galbreath, 12 Bush. (Ky.), 459. A husband and wife, in a con-
 
 INCAPACITY OF THE defp:xdaxt. 483 
 
 course is obvious ; because the Court of Cliancery was 
 thus putting all the compulsion 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 was dis- 
 tressing her to give her consent, whilst the court of common 
 pleas was examining her to see that she was acting from 
 freewill alone; audit is now accordingly established that 
 the court will not interfere specificallj^ to perform contracts 
 where a wife's consent is requisite, and she refuses to give 
 it {w) But in cases of contracts by the husband and wife, 
 it will enforce the contract against the husband, with com- 
 pensation for the interest which the wife's refusal has pre- 
 vented the plaintiff from acquiring, (.t) 
 
 § 979. It must not, however, be misunderstood that the 
 incapacity of the defendant to perform a contract literally 
 and exactly in all its parts will enable him to refuse to per- 
 form it in substance. The plaintiff has in many cases the 
 right to call on the defendant to perform the contract as 
 best he can, though the defendant's incapacity to perform it 
 fully might be a bar to him, if he filled the position of plain- 
 tiff. All the cases in which a plaintiff' enforces a contract 
 so far as the defendant can perform it and obtains compen- 
 sation from him for the part unperformed are instances of 
 this.(?/) Some other cases of the same sort may be men- 
 tioned. 
 
 § 980. If two tenants in tail in common were to contract 
 
 («,■) Bryan v. Wooley, 1 Bro. P. C, 1S4; per Lord Mausfleld, C. J., In Davis v. Jones, 
 Emery v. Wase, 8 Ves.. 5(j5; Frederick v. 1 X. R.,iG9. 
 
 Coxwell, 3 y. & J., 5U; Howell v. George, 1 (x> Barnes v. Wood, L. R.8 Eq, 424; Castle 
 Mad., 1; Buck v. Whellev, in D. P. 1 Mad., v Wilkinson, L. K. 5 Cn., 534; inira, § 12-2S, 
 7 n.; Martin v. Mitcliell, 2 J. & W., 413, 425; 1232. 
 
 (y) See Part V., chap, ii., § 1222, et seq. 
 
 tract founded upou a proper consideration, bound themselves to execute a mort- 
 gage upon the separate estate of the wife. Held, that a court of equity -will 
 enforce such contract, and that the estate is liable for the debt intended' to be 
 served. Hall v. Hume, 37 Md., 500. A married woman purchased real estate 
 and gave her notes, secured by mortgage. Held, that the vendor could hold it 
 in equity for the purchase money. This was in a case where no personal judg- 
 ment could be given upon the notes. Pemberton v. Johnson, 40 Mo., 342; 
 Warmick, 40 Pa. St., 140; see, also, Beame v. McGee, 46 Ala., 170; Phillips v. 
 Gr3,ves, 20 Ohio St., 371. In Massachusetts the written assent of the husband 
 , is required to make a wife's contract binding; it may then be specifically 
 'enforced. Boker v. Hathaway, 5 Allen, 103; TownsloyV. Chapiu, 12 id., 479. 
 "Where a married woman conveyed her real property for a valuable considera- 
 tion and the vendee made permanent improvements thereon. Held, that 
 although her contract, entered into during coverture, was incapable of specific 
 enforcement, still the value of the improvements, less the rent of the premises, 
 must be a charge upon the land until paid. Frarey v. "Wheeler, 4 Oregon, 190.
 
 484 FRY ON SPECIFIC PERFORMANCE OF CONTRACTS. 
 
 to sell an estate and one of them died before completion, 
 the issue in tail of the one dying would not be bound by 
 the contract ; but it seems that the purchaser might, if he 
 chose, sue the survivor for a conveyance of his moiety on 
 jDayment of a half of the purcliase money. (^) 
 
 §981. So in Carey v. Stafford, (r^ in the Exchequer in 
 1725, where a man executed a deed affecting to convey land^ 
 therein described of the yearly value of £22 to his servant, 
 and no such lands existed, the court compelled him to con- 
 vey lands of equal value. 
 
 § 98*3. And so if a copyholder were to contract to grant 
 a lease for a longer term than the custom allowed, he would, 
 it seems, be compelled to effectuate his contract in substance, 
 by from time to time executing leases for such terms as he 
 could, till he had made up the term contracted for. (6) 
 
 §983. Errington's case,(c) though not on a specific per- 
 formance, is another illustration of this principle. He had 
 contracted for £9,000 to build a bridge over the Tyne, and 
 to maintain it for seven years, and had entered into a bond 
 in that sum conditioned 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. There- 
 npon he hied his bill for relief from the bond ; and upon 
 his building a bridge upon a neighboring site where it could 
 stand, and submitting to an issue of quantum damnlficatus 
 by the change of site, he w^as relieved from the penalty of 
 the bond. 
 
 § 984. Where a contract is in its original form obnoxious 
 to difficulties on the score of illegality, but can, neverthe- 
 less be lawfully j)erformed 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 
 rent-charge, a contract for a lease, stipulating that the 
 tenant should pay a certain sum for rent and also the rent- 
 charge, may be carried into effect by the court by means of 
 a lease reserving as rent the two sums in the contract treated 
 respectively as rent and rent-charge. (^) 
 
 § 985. But such modelling can only apply to matters of 
 
 (z) Per Lord Hardwicke in Att-Gen. v. (c) Per Lord Redesdale in Davis v. Hone^ 
 
 Day, 1 Ves. Sen ,2-24. 2 Sch. & Lef. 351; Errlngton v. Aynesly, % 
 
 (a) 3 Sw.,427n. Bro. C. C, 341. 
 (6) Paxton v. Newton, 2 Sm. & Gif., 437. (rf) Carolan v. Brabazon, 3 Jon. & L., 20O.
 
 INCAPACITY OF THE DEFEXDAXT. 485 
 
 form. So where an incumbent was under a statute able to 
 grant a lease with rent payable half-yearly, the court 
 declined to compel the lessee to take a lease with a leserva- 
 tion of rent payable quarterly : the mode of reservation of 
 rent was held to be an essential pai-t of the contract. (d) 
 
 § 986. The court will probably be anxious to execute a 
 contract cy pres, where ])y subsequent legislation a contract 
 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, and the plaintiff brought his bill asking for a 
 renewal for such term as the corporation could grant under 
 tlie statute, it was ultimately decided by the House of 
 Lords, in accordance with the opinion of Jekyll, M. R., but 
 overruling the judgments of Lord King, Lord Raymond, C. 
 J., and Price, J., that the plaintiff was entitled to this cy 
 pres relief. (/') 
 
 § 987. 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 is feasible. In one 
 case there was a contract entered into by the defendants 
 within two years to procure the heir-at-law of A. B. to con- 
 vey certain estates to the plaintiffs, or Avithin the same 
 p)eriod to petition the House of Lords for, and to use their 
 utmost endeavors to procure, an act of Parliament for 
 substituting a trustee in place of the heir, in case such heir 
 could not be found, or there was no heir : on a bill tiled for 
 the performance of this conti'act, the court decreed the 
 defendants to allow their names to be used in an application 
 to ParliaYnent for the act.(<7) A contract by a person to use 
 his utmost endeavors seems to be one which the court could 
 not specifically execute. 
 
 § 988. In some railway cases, the court has shown a 
 great inclination to regard what it considers as a substance 
 of the contract. In one case, company A. contracted with 
 the plaintiff for the purchase of the lands required for their 
 proposed line, and for the withdi-awal of his oj^position in 
 consideration of £20,000 to be paid to him, in case the bill 
 
 (e) Je.Dklna v. Green (No 2), 27 Beav., 440. Paul's, Sel. C. In Ch., 66 (Nov. 1720); supra, 
 ( f) Beteowtirlii v. Dean ana Chapter of jst. § 39 
 
 {g) Frederick v. Coxwell, 3 Y. & J., 514.
 
 4bG FUY ON SPKCIFIC PEUFOiniANCK OF CONTKACT?^. 
 
 sliould pass into law : there was a rival company B., which 
 would require different lands of the plaintiff : by 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 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 ai:»proved, and company A."s bill was 
 accordingly withdrawn : company B. refused to pay the 
 plaintiff the £'2(),0()(), 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 by the plaintiff against them, their demurrer Avas 
 overruled by Shad well, V. C, and Lord Cottenham.(/?) In 
 a subsequent case, however, the same vice chancellor con- 
 sidered the passing of a bill of an amalgamated company 
 sufficiently distinct from the passing of the bill of one of the 
 comj^anies to relieve the amalgamated company from a con- 
 tract binding in case of the bill of the one company pass- 
 ing. (/) The decree was affirmed by Lord Cottenham, but 
 on a different ground. (j) 
 
 § 989. Where a contract 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, impossible, the question arises how far the con- 
 tracting party is bound to the performance of the alternative 
 that remains possible. The cases seem to divide them- 
 selves into (1) those where one alternative is impossible at 
 the time of the contract, (2) where it becomes so subse- 
 quently to the contract, but before election, 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, and (5) those cases where the 
 impossibility arises after election. The different cases are 
 briefiy considered. 
 
 § 990. (1) Where at the time of the contract one alterna- 
 tive is impossible or void, the party to execute the contract 
 is bound to the performance of the other alternative, (/t) So 
 
 (ft) Stanley v.CbPstcran'l Birkenhead Rail- Great Northern Railway Co., 10 FTa , (64; 
 
 way Co , 9 Sim , '264 , S C 3 My. & Tr. , 773. King v. Arcumiilhtive Asturai.ce Co , 3 C. 
 
 (i) Greenhaigh v. Manchester ami Biiiuiug- B. N. >., 151; Kearns v. Lea), 1 H. & M., 681. 
 
 ham Railway Co ,'.» Sim.. 41G (i-) Com. Dig. Comlit. IC, 2, Wigley v. 
 
 (i) 3 My. & Cr , 784. bee lurllier, as to the Blackwal, Cro. Eliz., 780. 
 rcbulis ofanialgauiaiioD, Earl ol Liridsey v.
 
 INCAPACITY OK 'HIE DKFKX DA XT. 487 
 
 where the condition oi' u bond was to pay a certain .sum, or 
 render in execution a person wiio had been previously dis- 
 chai'ged, 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 Avas for- 
 feited. (Z) And where an award dii-ected that a sum of 
 money should be paid or be secured to be j^aid, and did not 
 define the security to be given, and the question was whether 
 the award was Qot void for uncertainty : 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 imjiossible, it is yet incumbent on the 
 party to perform the other of them.(?/0 
 
 § 001. (2) The leading authorit}^ on the second class of 
 cases is Laughter's case,(;i) where it was laid down, •' that 
 where a condition of a bond consists of two parts in the dis- 
 junctive, and both are possible at the time of tlie bond made, 
 and afterwards one of them becomes impossible by the act of 
 God, the obligor is not bound to perform the other part." 
 On this case it may be remarkfd in the first place, that the 
 case itself did not require the enunciation of the principle. (o) 
 as both alternatives in the bond there i)ut in suit wei-e 
 rendered impossible ',{p) and in the second place, it is to be 
 observed, that subsequent decisions show that the principle 
 was stated too broadly, and that even at common law the 
 intention of the parties has been gathered from the jnirticu- 
 lar language of each instrument. In the case of Studliolmes 
 V. Mandell,(7) the court said that the rule and reason of 
 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 a bond was conditioned 
 either to make a lease for the life of the obligee before such 
 a day or to pay £100, and the obligee having died before 
 the day, it was held in the common pleas that the obligor 
 should pay the £100. And in Diummond v, Duke of 
 Bolton, (r) in an action on a bond conditioned to pay or 
 secure to the plaintiff or her children by William Ashe, her 
 
 l^ Da Costa v. Davis, 1 B. & P , iii. (o) Bsrkworth v Young. 4 Drew, i, j*. 
 
 {in) siinmoii(l-i v. Swalne, 1 Taunt.. .549. {p) See ilif case In rro. Eiiz , 3Jt8 
 
 (/») 5 Rep., -21, b.; !S. S , s n. KatonV ca^e, iqt 1 Lonl Rayiu, it'.'; aihui, 1 >alk , 170. 
 ^loore, 3.i7; a n. Katim v. Laughter, Lr-. (/•) -as, 'i4o .>ie, also, |i. r W alineslBj , J., 
 
 Eliz , 39S; acconllugly Warner v. vV hite, T. in More v. Alorecouib, Cro. bl;z., e64. 
 Jon., 95.
 
 488 FRY ON SPECIFIC PERFORMANCE OF CONTRACTS. 
 
 then intended husband, £3.000 within six months after the 
 defendant slionld become Duke of Bolton, the defendant 
 pleaded that AVilliam Ashe died without having any children 
 before the defendant became Duke : but the plea was over- 
 ruled, on the ground that the intention of the parties must 
 be regarded, and that it could never have been their inten- 
 tion 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 plaintiff becoming Duke, though if she then had 
 a child, the defendant might have had his election to whom 
 to pay the money. 
 
 § 992. And this view of the law was fully supported in 
 a case before Kindersle}', V. C, 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 with his other chil- 
 dren. The daughter died in the lifetime of her father, 
 leaving children, and this circumstance was argued to be a 
 discharge from the contract by an act of God. But the vice 
 chancellor held the contract might have been performed in 
 either of two ways, — namelv, by A.'s making a provision 
 for his daughter by will or by his dj'ing intestate : and that 
 though the death of the daughter iDrecluded him from per- 
 forming it in the first way, he was not thereby exonerated 
 from performing it in the second, and that the bill, by 
 which the husband prayed for an equal share in the testa- 
 tor' s residuary estate, w-as not on that ground demurrable, (.s) 
 His honor, after referring to some of the previous cases, 
 expressed his oi:)inion that it is impossible to lay down any 
 universal proposition either way, and that each case must 
 depend upon the intention of the parties : but that where 
 this intention is clear that one of the parties shall do a 
 certain thing, but he is allowed his oj)tion to do it in one or 
 other of two modes, and one of these modes becomes imjiossi- 
 ble by the act of God, he is bound to j^erform it in the other 
 mode : and that, in the case before the court, it was mani- 
 festly the intention of the parties that, in one way or other, 
 the daughter should have an equal 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 
 
 (s) Barkworth v. Young, 4 Drew , 1.
 
 INCAPACITY OF THE DEFENDANT. 489 
 
 was bound to perform it in the otlier way, which was 
 possible. (^) 
 
 § 9»:i. In Jones v. Howe(%) a father on the marriage of 
 his daiigliter covenanted by some act inter vivos or by will 
 to leave his daughter a certain provision : no act inter T'rnos 
 was done by the covenantor, nor did his will contain any 
 provision for her : the daughter died in the lifetime of the 
 father : the court of common pleas, on a case stated for its 
 opinion by direction of Wigram, Y. C, held that the cove- 
 nantee had no cause of action, on the ground, it appears, of 
 the i^rovision by will having failed by the death of his 
 daughter, and a consequent exemption from liability to i^er- 
 form the other alternative. The vice chancellor, though 
 expressing an opinion that by this view the intention of the 
 parties was disapi)ointed, as the provision was intended to 
 be absolute, and the mode of making it only intended to be 
 left to the discretion of the covenantor, yet confirmed the 
 certificate, and dismissed the bill with costs. 
 
 § 994. (8) Where one of the alternatives becomes impos- 
 sible by the act»or default of the party for whose benefit 
 the contract is to be executed, the other alternative is dis- 
 charged and need not be performed. (») Therefore in debt 
 on an obligation conditioned for the delivery up by tlie 
 defendant to the plaintiff of three obligations in which the 
 plaintiff is bound to the defendant, or for the execution to 
 the plaintiff such release of them as should be devised by 
 the plaintiff' scounsil before Michaelmas, a plea that neither 
 the plaintiff' nor his counsel devised any release before 
 Michaelmas was held good by a 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, {w) This authority Avas followed 
 by another case in tlie 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, 
 on request then to pay £800, a plea that no grant had been 
 tendered within six months was held good.(ir) 
 
 (<) Page-25 The rule ofthe civil law seems (u) 7Ha.,2t57; S. C. '.» C. B., 1. 
 
 to agree with tlilH. ".si quia illuil vul illuil (r) (oni.Uig Condlt. K , 'i. 
 
 Btipulutus sit, t"t oldifjail'ines sunt (juot (wj Oreniiinghani v. Ewer, Cro. Eliz., 396, 
 
 corpora: qiiarc. ti alt" ra res ex (|uaciiiique .WJ 
 
 causa d irl iion potest, altera iiihilomiiius (X) Basket v. Basket, 1 Mod., 265; 2 id., 200. 
 dabitur."— Warnkoiilg, Instit. Jur. Horn. 
 Prlv lib. 111. c. 2, t. 1, § 79i.
 
 490 FRY OX SPECIFIC PEUFOKMANCE OF CONTRACTS. 
 
 § 995. The principle of these rases is obvious. The con- 
 tract gives the party to perform an election, and creates an 
 obligation to perforin only the elected thing, but the other 
 party has destroyed tlie election and so lias released the per- 
 forming x>arty from liis obligation to do anything. 
 
 § 996. (4 ) Where one alternative is prevented by the act 
 of a stranger rendering its performance impossible, the 
 other alternative must be performed. This was held in a 
 case in the 4th of Henry VII., which decided that if one be 
 obliged to enfeoff me to certain lands, or to marry A. S. 
 before such a day, and a stranger marry A. S. before the 
 day, the obligor must make a feoffment of the lands : but 
 otherwise if the obligee married A. S. before the day, for 
 then the other alternative is discharged. (?/) 
 
 § 997. (5) If, after the party to ]3erform had elected to 
 perform one alternative, that alternative becomes impos- 
 sible, the effect of the impossibility is precisely the same as 
 in the case of a single contract, for by election the contract 
 has become single. The performing party therefore is ordi- 
 narily liable in damages. (£)' % 
 
 (y) Quoted in Grenningham v. Ewer, Cro. (s) Rrown v. Royal Insurance Co., ] El. & 
 Eliz.,397. E1.,8.'J3 
 
 ' Contract entire ; no equitable middle y von nd ; vendee must pay the whole jvir- 
 cJtMse money. '\ The contract for the sale of an estate was entire, for a .sum in 
 gro.ss, and there was a faihxre of title to considerable portion, both parties being 
 ignorant of the defect at the time of the sale. There was no equitable middle 
 ground between an entire performance and an entire rescission. Held, that if 
 the vendee declined to rescind, he must pay the entire purchase monej'. Glas- 
 sell V Thomas. 8 Leigh, 118; Bailey v. James, 11 Grait., 40S; Gillman v. 
 Hinckle, 8 W. Va., 202; Etheridge v.'Vernoy, 70 N. C, 713- 
 
 Statement of tlie quantity of acres mere matter of description.'] " The number 
 or quantity of acres, after a certain description by metes and liounds, or by 
 other known specifications, is but matter of description, and does not amount 
 to any covenant though the quantity of acres should fall short of a given 
 amount. Whenever it appears by the defining bouudaries, or by words of 
 qualification as ' more or Jess,' or as ' containing by estimation,' or the like, that 
 the statement of the quantity of acres in the deed is mere matter of description, 
 and not of the essence of the contract, the buyer takes the risk of the quantity, 
 if there be no admixture of fraud in the case." 4 Kent's Com., 460. 
 
 Tract c^mtaining much le-'^s than agreed ; map slmicn.'] The vendee made a 
 purchase under the belief, which he had good reason to entertain, that the farm 
 sold contained a given number of acres, the representations as to the amount 
 was made by the vendor, who exhibited a map of the property. Held, that 
 where the farm contained very many less acres that equity would not compel 
 the vendee to accept the property. Kent v. Carcand, 1 T Md., 291 ; Winston v. 
 Browning, 61 Ala., 80: Foley v. McKown, 4 Leigh, 678; Miller v. t'hetwood, 
 1 Green's (N. J.) Ch., 199; .see, also, Brooks v. Hiding, 46 lud., 15. 
 
 Example of no abatement in price, tchere tract contained much less than de- 
 scribed.] A lot was sold, the contract providing that the vendee should pay a 
 definite sum "for wharf lot on Border street;" the lot was further described
 
 IXCAPACITY OK TIIK DLFKNDANT. 491 
 
 as bounded on two sides b}' ship-yurds of named parties, and as "measuring 
 about two hundred and twenty ieet on Border street, more or less." The lot 
 in fact measured only one Imndred and seventy feet on Border street, and the 
 value of the lot was shown to be in propoi tion to the uuml)er of feet on the line 
 of that street Long before the contract tlie title deeds of the lot were matter 
 of public record and showed the actual Ijounduries and extent of the lot. 
 Neither the plaiutilf's agent, or tlie defendant, had actual knowledge of those 
 deeds. Held, Gray, J., delivering the oiiinion, which was unanimously con- 
 curred in, that no abatement of tlie price could be had. Noble v. Godking, 99 
 Mass., 231; see, also, Stebhins v. Eddy. 4 .Mason, 414; ^larvin v. Bennett, 8 
 Paige's C:h., :^12; Morris Canal Co. v. Emmett, 9 id., 16.S; Fame v. Martin, 7 
 N. Y., 219: Ketchum v Stout, 20 Ohio. 4W; Stull v. Hunt, 9 Gill.. 44G; Weart 
 V. Rose, 16 N. J. Ecj , 290; Stevens v. Hudson, 4.5 Ga., old. 
 
 W^here the irordx •'more or lexK" are nsed.'^ In Stebbins v. Eddy. 4 Mason, 
 414, Story, J., said: "It seems to me that there is much good sense in holding 
 that the words 'more or less.' or other e(4uivalent words, used in contracts or 
 conveyances of this .sort, should be construed to qualify the representation of 
 quantity in such a manner that, if made in good faith, neitlier party should 
 be entitled to any relief on account of any deticiency or surplus. Nor am I 
 prepared to admit that the fact that the sale is not in gross, but for a specifjc 
 sum by the acre, ought necessarily to create a dilference in the application of 
 the principle. I do not .say that cases may not occur of such extreme deticiency 
 as to call for relief ; but they mu.st be such as would naturally raise the pre- 
 sumption of fraud, impcjsilion or mistake in the very es.sence of the contract. 
 Where the sale is fair and the parties are eciually innocent, and the (juantity is 
 sold by estimation and not by measurement, then is little, if any, hardship, and 
 much "convenience, in holding to the rule anrat emptor." See, also, Pedens v. 
 Owens, Rice.'s Eq , 5.j; Brown v. Parish. 2 Dana, 9; Hill v. Buckley, 17 Ves., 
 394; Smith v. Evans, 6 Bin., 102; Howes v. Barker, 3 .lohns., 50G; Twyfard 
 V. Wareup, Finch, 310; Marvin v. Bennett, 8 Paige's Ch., 312.
 
 492 FRY ON SPECIFIC PERFORMAXCE OF CONTRACTS. 
 
 CHAPTER XXIV. 
 
 OF THE RESCISSION OF THE CONTRACT. 
 
 § 998. The rescission of a contract necessarily consti- 
 tutes a bar to its performance by either of the parties to it. 
 The rescission may result from : 
 
 (1) A simple agreement between the parties to rescind the 
 contract. 
 
 (2) An agreement between the parties to new terms which 
 put an end to the terms of the old contract. 
 
 (3) An agreement between the original parties and a third 
 person, by which the third person takes the place of one of 
 the original contractors. 
 
 (4) An exercise of a power' to rescind reserved by the con- 
 tract to one or both of the contractors. 
 
 (5) An exercise of the right to rescind which results to 
 the injured party from fraud or mistake in relation to the 
 contract. 
 
 (6) An exercise of the right to rescind wiiich results to 
 one party from the other party's absolute refusal to per- 
 form the contract or unreasonable delay in its performance. 
 
 (7) An exercise of the right to rescind which results to 
 one party from the other party's having made performance 
 impossible. 
 
 1. A simple agreement to rescind.'' 
 § 999. Generally speaking, the parties to a contract, sup- 
 posing them both to continue sui juris and capable of con- 
 
 ' When an asreement is thus rescinded by novation, the contract, or contracts, 
 in existence prior to the novation, lose their individuality and become merged in 
 the new contract. Pierce v. Dorr, S Pick., 2;jy, is a case, at lawr, of this nature. 
 The bill, in that case, charged that, on March 21, 181 1, A. lent B. $;^,000. re- 
 ceiving as security B 's deed of certain lands, but giving no instrument of de- 
 feasance; that B. repaid the sum lent, taking notes, whereby A. 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 consideration, with interest, 
 and if not, the deficit was to be regarded as part payment of A.'s notes; that A. 
 connected this with a former and separate transaction, by which A. had on 
 ]\Iarch 7. 181 1, received au absolute conveyance of certam other land as security 
 for another debt; that the value of the laud exceeded the amount of B.'s debt, 
 and that it was understood that A. should sell the land, and after deducting the
 
 THE RESCISSION OF THE CONTRACT, 493 
 
 traoting, have a right to determine it bj^ an agreement to 
 rescind it, or to use other words, a waiver and abandonment 
 by mutual consent of the parties : and tliis they may do 
 even when the contract between them affects the interests of 
 some third person ; except, it seems, where there has been 
 a part performance of it affecting the third person. So that 
 where A. by deed contracted with B. that 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 performance as regards the child, so that his condi- 
 tion in life had not been altered, and no exception on his part 
 was defeated, it was held that A. and B. might by agree- 
 ment rescind the deed, though it would, it seems, have been 
 different if there had been any part performance affecting 
 the child. («) 
 
 § 1000. An agreement to rescind a contract which is in 
 writing(Z>) or under seal(c) may clearh* in equity be by parol. 
 
 (a) Hill V. Gomnie, 1 Beav , 540; S. C. 5 Lanesborough v. Ockshott, 1 Bro. P. C, 151. 
 
 My. & Or , 250; supra, § 182. See, lor the doctrine at tjommon Law, Goss 
 
 lb) Uavis V. iSyraouds, 1 Cox, 402, 406. v. Lord Niieent, 5 B & A. D. 58; Harvey v. 
 
 (c) Hill V. Gomme, 1 Beav., 540; Lady Grabham, 5 A & E., 61 
 
 amount of said debt, pay the surplus to B It was also charged that in May, 
 1813, A. and B. signed an agreement stating that A. had bought the above 
 named lands of B., and that B. desired to repurchase them, and binding A. on 
 the payment of $8,296.40 in two years, with interest, to quit-claim said laud to 
 B., and also binding A. to convej' said lands, whenever before two years a fair 
 price could be obtained, and to apply the proceeds to the payment of the afore- 
 said sum, and the surplus, if any, to be paid to B. A.'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 Irust 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 agree- 
 ment to rescind is made. Johnson v. Reed, 9 Mass., 78; Blood v. Enos, 13 
 Verm., 625; England v. Jackson, 3 Humph., 58 i. But an offer to rescind an 
 agreement will not be binding before it is accepted by the other party, bj' doing 
 what is proper to be done by him toward the rescission, although the agreement 
 has been delivered up for cancellation 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. Tliere are agreements, however, which subsequent contracts will 
 not, in all cases, annul. Thus, for example, where there is an agreement, upon 
 an adequate consideration, to pay a certain sum, it cannot be avoided by an 
 agreement to receive a less sum. Geisner v. Kerslmer, 4 Gill ».t Johns., 305; 
 Seymour v. Minturn, 17 id., 169; also, Inman v. Griswold, 1 Cow., 199; Make- 
 peace V. Harvard College, 10 Pick., 298. Yet, if a creditor agree with an in- 
 solvent 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 con- 
 stitutes a valid contract ; and if the creditor afterwards enforce pajmient of the 
 whole, the debtor may recover damages for a violation of the contract. Col- 
 born V. Gould, 1 M. H.. 279.
 
 494 FRY ON SPECIFIC PEUFOUMAXCE OF CONTRACTS. 
 
 § lOOl. Against tliis conclusion various arguments have 
 at various times been raised : it lias been urged that the rule 
 of law does not allow the variation of a contract that has 
 been reduced to writing to be evidenced by parol ; but to 
 this it has been replied that rescission is not variation, that 
 the law allows parol evidence of matters collateral to a con- 
 tract, (f^) and that rescission or waiver being in its nature 
 subsequent and collateral to the contract may therefore be 
 proved by parol testimony, (e) 
 
 § 100^. Again, it has been urged that the statute of 
 fraud precludes parol evidence of rescission of contracts 
 relating to land : for a contract to waive a purchase of land 
 as much relates to land as the original contract, (e) But it 
 is replied that the rescinding contract is not the contract on 
 which the action is brought, and that whilst the statute 
 provides that no action shall be brought on any contract of 
 the descriptions there specified, except it be in writing, it 
 does not provide that every such written contract shall sup- 
 port an action. In the result it is perfectly well ascertained 
 that a contract in writing, and by law required to be in writ- 
 ing, may in equity be rescinded by parol ;(/) and- waiver 
 by mutual parol agreement therefore furnishes a sufficient 
 defense to an action for specific performance. (//) 
 
 § 1003. Any circumstances or course of conduct from 
 whence can be clearly deducted an agreement to put an end 
 to the original contract will amount to a rescission of it. 
 Thus, to give one or two examples : where, on default in 
 payment of the purchase-money, one party said to the other 
 that there must be an end of the negotiation, and the other 
 assented, the contract was held to have been rescinded. (^) 
 And where the vendor was allowed for a long period to 
 remain in possession, and the purchaser's representatives 
 seventeen years afterwards treated themselves, in a deed 
 between the parties, as entitled to interest on the debt 
 which had been the consideration for the sale and not to the 
 
 (d) Pym V. Campbell, 6 El. & Bl., 370. v. L!ppingwell,2 Dick., 469; S. C. 5 Vin. Abr. 
 
 (e) Davis v Symonds, 1 Cox, 4ij2, 4:6. This 616, pi. l^; per Grant, M. R. in ex parte Lord 
 seems denied, as to waiver at Common Law, Ilchester, 7 Ves.. 377. See also Buckhouse v. 
 by Lord Hardwicke in Bell v. Howard, 9 Mohun, 3 Sw., 434 n.; Buckhouse v. Crosby, 
 Mod., 305. 2Eq. Cas. Abr.,32, pi.. 44 
 
 («) Per Lord Hardwicke in Buckhouse v. iff) Davis v. Symonds, 1 Cox, 402; Bobin- 
 Crosby. 2 Eq. Cas. Abr., 33. son v. Page, 3 Russ., 114. 
 
 (/) Goman v. Salisbury, 1 Vern., 240; Inge (h) Carter v. Dean of Ely, 7 Sim., 211.
 
 THE RESCISSION OF THE CONTRACT. 495 
 
 rents and profits of the land, the contract was held to have 
 been waived. (/) 
 
 § 1004. But the court must be satisfied of this total 
 abandonment by both parties to the contract. "The court," 
 said Lord St. Leonards, "requires as clear evidence of the 
 waiver as of the existence of the contract itself, and will not 
 act upon less."(,y) And in another case his Lordship said 
 that, unless a party has by his conduct forfeited his right, 
 "abandonment of a contract, according to the law of this 
 court, is a contract in itself ;'' and accordingly he refused to 
 hold a loose conversation which was alleged as a waiver of 
 a contract for a lease to amount to such a new contract. (^*) 
 
 § 1005. To these cases may be likened those where an 
 absolute refusal of one party gives rise to a right to rescind 
 in the other: the refusal must be clear, total, and unquali- 
 fied. (Z) 
 
 § 1006. An agreement to rescind an existing contract 
 must amount to a total abandonment of the whole contract, 
 and not to a partial waiver of some of its terms : for to 
 allow of such a proceeding in the case of a written contract 
 would .be to have a contract proved partly by writing, and 
 partly by parol :(m) it would be a parol novation of a written 
 contract, which is inadmissible where the law requires the 
 contract to be evidenced by writing: (71) and therefore the 
 agreement, or the circumstances from which it is inferred, 
 must show an absolute dissolution and abandonment of the 
 contract, (o)' 
 
 (i) Earl of Ross v. Sterling, 4 Dow, 442. Avery v. Bowilen, 5 El. & Bl , 714; 6 id , 953; 
 
 See also Hill v. Gomme, 1 Beav., 54U. intra, § 1035. 
 
 0') Carolan v. Brabazon, 3 Jon. & L., 200, (m) Goss v. Lord Nugent, 5 B. & Ad., 58. . 
 
 209; Whiitakerv. Fox, 14 W.K ,19-2; Harrison {ti) luira, § 1016. 
 
 V. Brown, 14 W. R., 193 n. ; Cliflord v. Kelly, (o) Price v. Dver, IT Ves., 3o6; Robinson v. 
 
 7 Ir. Ch. R., 333; Cartau v. Bury, 10 Ir. Ch. Page, 3 Russ., 114. Lord Thurlow seems to 
 
 R., 400. have thought that a part might be rescinded 
 
 (k) Moore v. Crofton, 3 Jon. & L., 438, 445; by parol, in Jordan v. Sawkins, 1 Ves. Jun. 
 
 Whittaker v. Fox, 14 \V. R., 192. 404. 
 
 (,1) Ehrensperger v. Anderson, 3 Ex., 148; 
 
 ' Where a contract is rescinded it must be entirely rescinded. Glassel v. 
 Thomas, 3 Leigh, 118. So, where A. sold to B. a plantation of slaves, a part 
 of whom had been introduced in the State (Mississippi) contrary to the consti- 
 tution, and B. paid a large portion of the purchase money, knowing of the 
 illegal introduction of the slaves, it was held, that the court could not order the 
 money to be paid back and rescind the whole contract, and, therefore, must 
 refuse its aid, the contract being entire, and it being contrary to the doctrines of 
 equity to rescind a contract only in part. Hope v. Evans, 1 S. 6: M.'s Ch., 195. 
 The same principle is carried out at law. Potter v. Titconib, 9 Shep., 300. 
 And, therefore, where a party to an agreement for the purchase of land sought
 
 496 FRY ON SPECIFIC PERFORMANCE OF CONTRACTS. 
 
 § 1007. The cases, of which many have arisen at com- 
 mon kuv (and wliich will be considered siibsequently[^7]), 
 of the rescission of a contract by the one party based on an 
 absolute refusal to perform by the other, may well be 
 broug-ht under the head of agreement to rescind. 
 
 § 1008. It is to be borne in mind that the conduct of one 
 party, which may debar him from insisting on a contract, 
 may yet not prevent its being enforced against him or 
 amount to a rescission of it :{q) and further, that there are 
 many cases in Avhich there has been such a departure in 
 conduct from the contract between the parties, that the 
 court will refuse to execute the contract, though the effect 
 of that conduct may not have been to substitute a valid 
 contract for the old one, or absolutely to rescind the old one 
 for all purposes, (r) 
 
 2. All agreement upon new terms. 
 
 § 1009. Where the parties to a contract come to a fresh 
 agreement of such a kind that the two cannot stand 
 together, the effect of the second agreement is to rescind the 
 first. This is one form of novatio in the Roman law. (5) 
 
 § 1010. But it is not every change in a term of the 
 original contract which will amount to such a substitution 
 as to extinguish that contract. Thus where there was a 
 contract 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 sony to hold that because a 
 landlord abates 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, wliich occurs every day, would altogether 
 put an end to the existing contract, and create a new tenancy 
 
 (p) See infra, § 1035. ob'igatlonem aut civilesm autnaturalem et 
 
 (q) Price V. Assheton, 1 Y. & C. Ex., S2. translatio : hoc est cum ex pra?cedenti causa 
 
 (r) An example of this seems afforded by ita nova constituatur, ut prior perimatur." 
 
 the case of the l^aris Chocolate Co. v. Crystal Dig. lib. xlvi. t. 2, c. 1. See, also, Instit. lib. 
 
 Palace Co., 3 Sm. & Gif., 119. iii. tit. 30, s. 3. 
 («)"Novatlo est prioris deblti in aliam 
 
 to affirm the agreement in part, and rescind it in part, and maintain assumpsit 
 for the price paid for the part which he claimed to rescind, the court prevented 
 him from so doing. Rinker v. Sharp, 5 Blackf., 185. Upon these grounds, an 
 agreement which is rescinded in part will be treated as rescinded in toto. Ray- 
 mond V. Bearnard, 12 Johns., 274.
 
 THE EESCISSIOlSr OF THE CONTRACT. 497 
 
 from year to year. The abatement of the rent was rather a 
 confirmation of the existing tenancy, with a relaxation of 
 one of the terms of it.(^) 
 
 § 1011. So, also, a suggestion made by either party after 
 contract for the purpose of obviating any difficulties in the 
 completion of it, will not be taken to amount to a novation, 
 so to hold would be to X3reclude parties from endeavoring 
 to remove objections by concessions of any kind.('?^). 
 
 §'10l!3. But where the defendant being in possession of 
 -a house under a contract for a lease, the plaintiff and the 
 defendant entered into a further contract to the effect that 
 the plaintiff would accept H. W. as his tenant in lieu of the 
 defendant, and on the same terms, the defendant under- 
 taking to guarantee the rent during H. W.'s tenancy, and 
 H. W. accordingly for several years occupied the property 
 and paid rent, it was held that the latter contract must be 
 considered a substitution for the former. («) 
 
 § 1013. As it is the existence of the new contract that 
 works the extinction of the old, this new one must, of 
 course, be a valid contract : so that, for instance, where a 
 second contract is alleged, but without consideration, the 
 original contract will remain intact, and may be executed 
 without regard to the second. (?«)' 
 
 § 1014. This makes it requisite to consider the evidence 
 of the new contract alleged. 
 
 (1) Where the original contract is by j)arol, the new one 
 may, of course, be by parol also." 
 
 (<) Clarke v. Moore, 1 Jon. & L., 723, par- (v) Moore v. Marrable, Lr. I Ch., 217. 
 iicularly 73S-9. (wj Rob«on v. Collins, 7 Ves. 130. 
 
 (u) Monro v. Taylor, 8 Ha., 51, particularly 
 61. 
 
 ^ In Thurston v. Peicival, 1 Pick., 415, services were performed by one per- 
 son 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. 
 
 ^ Possession undei' parol gift.] Naked posses.sion under an alleged parol gift 
 of land will not constitute such part performance as will take the case out of 
 the operation of the statute of frauds Stewart v. Stewart, 3 Watts, 253; 
 •Cronk v. Trumhle, 66 111., 428; Pinckard v. Pinckard, 23 Ala., 649. 
 
 Bule as to the degree of occupation.'] In order that a court of equity will decree 
 specitic performance of a parol agreement the possession of the vendee. must be 
 such that if the vendor refuses to complete it will be a fraud upon him. White 
 V. Watkins, 23 Mo., 423; Chambers v. Lecompte, 9 id., 566. Possession must 
 be tflkpii with the permission of the vendor and must refer to and be connected 
 with the contract ; in such a case it shows a part performance by the vendor. 
 Lord v. Underdunk, 1 Sandf.'s Ch., 46; Beau v. Valle, 2 Mo., 103; Jar vis v. 
 
 32
 
 498 FRY ON SPECIFIC PERFORMANCE OF CONTRACTS. 
 
 § 1015. (2) "Where the original contract was in writing,, 
 though not by law required so to be, the new contract may 
 be evidenced in any way which establishes it according to 
 the principles of the court. Thus a contract, though under 
 seal, may in the contemplation oi' the ciourt of equity be 
 waived by a course of conduct from whence the presump- 
 tion of a new contract in substitution arises. " In ordinary 
 partnerships," said Lord Eldon, "nothing is more cltiar 
 than this, that although partners enter into a written agree- 
 ment, stating the term upon which 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 demon- 
 strate that they have all agreed to change the terms of the 
 original written agreement, they may be held to have 
 changed those terms by conduct. "(i2?) And accordingly, in 
 another case, where a contract for a partnership was decreed 
 to be specifically executed, the court directed an inquiry 
 whether any and what variations had been made in the^ 
 
 (X) Const V. Harris. T. & R., 496. 523; Ged- Sedgwick, 1 Sw , 460, per Lord Langdale M. 
 des V. Wallace, 2 Bli., 27u, 297; Jackson v. R. in Smitii v. Jeyes, 4 Beav., 505. 
 
 Smith. 1 Hoflf.'s Ch., 470; Givens v. Calder, 2 Dessau. 's Eq., 171, 190; Wills v 
 Stradling, 3 Ves., 381; Greaiorv v. Misrhell, 18 id., 333: Thompson v. Scott, 1 
 McCord's Ch., 39; Cole v. White, 1 Bro., 409; Morphett v. Jones, 1 Swanst., 
 179; Foot V. Mitchell, 1 B. & B., 400; Harris v. Knickeibocker, 5 Wend., 638; 
 Aitkin v. Young, 12 Pa. St., 15; Cristy v. Barnhart, 14 id., 260; Carroll v. 
 Cox, 15 Iowa, 455; Moore v. Higly, 45 Ind., 487. Lord Manners, in Kine v. 
 Balf e, 2 Ball & Beatty, 343, said : ' ' Whether possession be an unequivocal act 
 amounting to part performance must depend upon the transaction itself. If it 
 be distinctly referred to, the contract alleged in the pleadings, I think no case 
 has denied that it is a part performance. The defendant is protected from lia- 
 bility as a trespasser, and the plaintiff is disabled from dealing with any other 
 person." There was a parol agreement for the sale of a mining claim, under 
 which the vendee took possession, paying a part of the agreed price with the 
 proceeds of the mine, all of which he appropriated to his own use. Held, 
 sufficient to take the contract out of the operation of the statute of frauds. 
 Taterm v. Brooker, 51 Mo., 148. 
 
 Length of time of possession important.'] LoDg continued possession, with the 
 acquiescence of the vendor, will be regarded as a strong circumstance against 
 permitting the statute to be pleaded. Blatchford v. Kirkpatrick. 6 Beav., 232; 
 Bonier v! Caldwell, 8 Mich., 463; Rhea v. Jordan, 28 Graft., 678; Lester v. 
 Lester, id., 737; Miranville v. Silverthorn, 1 Grant (Pa.), 410; Palmer v. Rich- 
 ardson, S Strobh.'s Ecj., 16. 
 
 Poissession must be under the parol contract sought to be enfoi'ced and none other.'] 
 In order that a parol contract may be taken out of the operation of the statute 
 of frauds, where possession has been given, the posscs.-^ioJi must have been sur- 
 rendered under the very contract and none other. A U -j^vA in possession, pur- 
 chasing, would not come within the rule, he would La\. entered under another 
 agreement. Danfoith v. Laney, 28 Ala., 274: Tate v. Jcik.s, 16 Fla., 216^ 
 Charpiot v. Liugerson, 25 ]\Io., 63; Cole v. Potts, 10 N. J. iJq., 67; Litton v. 
 Shipp, 65 Mo., 293; Knoll v. Harvey, 19 Wis., 99; Davis v. Moore, 9 Rich.,. 
 215; Mohana v. Blunt, 20 la., 142; Rosenthall v. Freeburgher, 26 Md., 75.
 
 THE RESCISSION OF THE CONTRACT. 499 
 
 original contract by tlie consent of the partners, and di- 
 rected tlie deed to be settled by the master having regard 
 to such variations. (?/) 
 
 § 1016. (3) Where the original contract is by law re- 
 quired to be in writing, the new one must be in writing also, 
 if the plaintiff insists on it as jjart of his case ; so that, for 
 instance, where the relation of landlord and tenant is con- 
 stituted by writing, a contract for an abatement of rent set 
 up by the plaintiff must be in writing also.(£'V From the 
 principles of the court, liowever, in regard to part perform- 
 ance, 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 £20 
 for repairs, and this contract was signed and sealed by the 
 parties, and N., finding that the repairs of the house would 
 cost more than £20, laid out a further sum, in consequence 
 of W.'s having i^romised to enlarge the term, but without 
 mentioning for what term : Jekyll, M. R., carried the parol 
 contract into effect, on the ground that it was a new con- 
 tract, and that the laying out of money was a part perform- 
 ance on the one part, which made it needful to execute the 
 parol contract on the other, (a) 
 
 § 1017. But where the new contract is relied on only as 
 an extinguishment of the old one, the mere fact that it is 
 not in writing, and so could not be put in suit, seems to be 
 no ground for denying its effect in rescinding the original 
 contract. The statute of frauds does not make the parol 
 contract void, but merely prevents an action upon it ; and . 
 it does not seem to be necessary to the extinction of one 
 contract by another that the second contract could be 
 actively enforced. The point has never, it is believed, been 
 
 (y) England v. Curling, 8 Beav., 129. (a) 5 Vin. Abr., 522, pi. 38. 
 
 (») O'Connor v. Spaight, 1 Sch. & Lef.,305. 
 
 ' 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. 
 perfoi-mance beyond the time fixed, was not deemed a waiver of the party's 
 right to recover a stipulated sum as liquidated damages for not performing on 
 the day, such promise being void by the statute of frauds, and, therefore, in- 
 capable of affecting the previous contract. Hasbrouck v. Tappen, 15 Johns., 
 200. 
 
 - This doctrine is equally well estalilished in this country. "Walker v. Wha- 
 ley, 2 Humph., 119; England v. Jackson, 3 id., 584; McCorkle v. Brown, 9 
 Sm. & Marsh., 167.
 
 500 FRY ON SPECIFIC PEllFOllMAXCE OF CONTRACTS. 
 
 matter of decision. (&;) But in point of principle it seems to 
 stand on the same footing as a good simple agreement to 
 rescind. 
 
 3. An agreement with a third 'person. 
 
 § 1018. An agreement between the original parties and a 
 third person, b}^ which the third person takes the place of 
 one of the original contractors, creates a new contract on 
 the old terms between the new parties and rescinds the 
 original contract. 
 
 § 1019. So where M. agreed Avitli a company to take 
 certain shares, and no payment was made by M., so that 
 according to the contention of the liquidator of the company 
 he had no right to the shares : and M. then transferred the 
 shares to G., and G. was registered : it was held that, assum- 
 ing the contention to be correct, the contract with M. was 
 restricting in fieri,, /ind the transfer to which the company 
 was a party constituted a new contract to take the same 
 shares between the company and G., and that the old con- 
 tract with M. was discharged by the new contract with G.(c) 
 
 § 1020. So again 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 specific per- 
 ■ formance against B., but it was held that A., having assigned 
 the shares to C, 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 
 circumstances. (^Z) 
 
 § 1031. In the chapter on contracts for the sale of 
 shares, (e) it will be seen that questions of novation by the 
 introduction of a third person arises upon sales on the stock 
 exchange. The reader is referred to that chapter for their 
 bearing on the question of novation. 
 
 § 1033. There are two other classes of contracts in 
 respect of which the question of novation has frequently 
 
 (ft) See Vinnius, Common, in Inst. lib. lii. {d) Shaw v. Fisher, 5 De G. M. & G., 590? 
 
 tit. 30. As to a parol contract at common Holden v. Hayn, 1 Mer., 47; Hall v. Laver, 3 
 
 law to vary (in effect) the terms of a deed, see Y. & C. Ex., 191; Stanley v. Chester and 
 
 Nash V. Armstrong, 10 C. B. N. .S., 259. Birkenhead Hallway Co., 9 Sim., 264; S. C. 3 
 
 (c) Morton's case, L. R. 16 Eq., 104. Of. My. & Or, 773; supra, § 151. 
 Ex parte Beresford, 3 Mac. & G., 197; Moore (e) Infra, Part VI., chap. 1, § 1472, et seq. 
 T. Marrable, L. R. 1 Ch., 217.
 
 THE EESCISSION OF THE CONTRACT. 501 
 
 arisen — the first relating to continued dealings between A. 
 and one set of partners and A. and another set of partners 
 successors in trade to the former ; and the second relating 
 to the dealings of a person insured in one company and 
 continuing to make X->ayinents to another with which the 
 first had amalgamated, or to which it had assigned its busi- 
 ness. The full discussion of these classes of cases would be 
 too remote from the subject of these pages to be here 
 proper. 
 
 4. Exercise of a power to rescind resermd hy the 
 
 contract. 
 
 § loss. Generally speaking, one party to a contract can- 
 not rescind it, except by consent of the other party, but this 
 general principle is liable to exceptions. The first that falls 
 to be noticed is where the contract reserves to one or both 
 of the contracting parties a power in certain specified cir- 
 cumstances to rescind the contract. (/) Such stipulations 
 are frequent in contracts for the sale of land. It will be 
 desirable briefly to consider these stipulations. 
 
 § 1024. When a contract stipulates that on the happen- 
 ing of a certain event it shall be void, the construction put 
 upon it by the courts generally is, that it may on this event 
 be rescinded by the party injured by such event. Thus a 
 proviso that in case the vend.or of an estate cannot deduce 
 a good title, or the purchaser shall not pay the money at 
 the appointed day. the contract shall be void, has been held 
 to mean that in the former case, the purchaser, and in the 
 latter the vendor, may avoid the contract, and not that the 
 contract is utterly void, {g) 
 
 § 1025. A right to rescind a contract on the non-perform- 
 ance of an act, wdiich act it is the duty of the party invested 
 with the riglit of rescission to perform if he can, will not 
 give such party a right to refuse to perform his part of the 
 contract, but will be held to apply where the act cannot be 
 done : thus where there is a condition that, if any objection 
 shall not be removed within a limited time, the vendor shall 
 be at liberty to annul the contract, the vendor is not entitled 
 to neglect to remove any objection, and then, on the strength 
 
 (/) E g Mareden v. Sambell,28 W.B,952. also, Doe d. Nash v. Birch, 1 M. & W., 402; 
 (g) Roberts v. VVyatt, 2 Taunt., 268. fc>ee, Hyde v. Watts, 12 M. & W., 254.
 
 502 FRY ON SPECIFIC PERFORMANCE OF CONTRACTS. 
 
 of his own neglect, to annul the contract, (/^) but the condi- 
 tion will entitle him to rescind the contract if, having done 
 all that is incumbent on him, he fails to show a good title, (i) 
 But whei'e the right to rescind is limited to arise in case of 
 his being unable or unwilling to do the act, the case is of 
 course diiferent, and he is generally exemx)ted at his election 
 from any obligation to do the act.(y) 
 
 § 10^6. Instances of the exercise of this right to rescind 
 may be found in the following cases. {7c) The contract stipu- 
 lated that if from any cause whatever the purchase was not 
 completed by the time specified, the vendor was to be at 
 liberty to annul the contract. At the day appointed the 
 parties met, and the vendor oifered and the purchaser 
 accepted the vendor's undertaking to satisfy certain unsatis- 
 fied requisitions. Nevertheless the purchaser refused to pay 
 the purchase-money, whereupon the vendor said that he 
 would annul the contract if the money was not paid : the 
 purchaser refused to j)ay till the requisitions were satisfied : 
 the vendor on the same day annulled the contract by notice, 
 and successfully maintained a bill for an injunction to 
 restrain any proceedings at law on the contract. (Z) 
 
 § 1027. In another case, one condition i)rovided that if 
 any objection to title were persisted in, the vendor might 
 rescind the contract : another provided that if any mistake 
 should appear in the description of the property or of 
 the vendor's interest therein, compensation should be 
 given. A question arose as to the rights of the lord of 
 the manor to certain mines or minerals, the purchaser 
 claimed compensation and the vendor rescinded : the pur- 
 chaser brought his bill for performance with compensation : 
 the vendor relied on his rescission. The court held that the 
 question in dispute was one of title, and that the vendor 
 was therefore entitled to rescind, (m) 
 
 § 1028. A condition enabling the vendor to annul the 
 sale if the purchaser should make any objection or requisi- 
 tion which the vendor should be unwilling on the ground of 
 expense or otherwise to comply with, does not enable a 
 
 (A) Greaves v. Wilson, 25 Beav., 290; cf. Re ever Powell v. Powell, L. R. 19 Eq. 422; Re 
 
 Jackson & Oakshott, 14 Ch. D., 851. Jackson & OakshoU. 14 Ch. D., 851. 
 
 (i) Page V. Adams, 4 Beav., 269. (k) See too infra, §§ 11G4. 1165. 
 
 U) Tanner V. Smith, 10 Sim., 410; Morley (I) Hmlson v. Temple. 29 Beav., 536. DIs- 
 
 V. Cook, 2 Ila., 106; Duddell v. Simpson, L,. tlnfculsh Turpin v. Chambers, ib., 104. 
 
 R. 2 Ch., Wi, varying S. C. L, R. 1 Eq., 578; (m) Maweon v. Fletcher, L. R. 10 Eq., 213; 
 
 Gray v. Fowler, L. R. 8 Ex , 249. See how- 6 Ch , 91.
 
 THE RESCISSION OF THE COISTTRACT. 503 
 
 vendor who shows no title whatever to rescind. Such a 
 vendor was consequently made to pay damages for his non- 
 performance, ill) 
 
 § 1029. Where a right to rescind a contract must be 
 •exercised within a reasonable time after it arises, or at any 
 time before it is waived or abandoned, may be open to 
 question, (o)' But it is conceived to be clear that a party 
 who, having a right to rescind, either himself does some 
 act under the contract which involves or im]olies the con- 
 tinued existence of the contract, or suffers the other party 
 to do such act without asserting the right to rescind, has 
 thereby lost that right. 
 
 § 1030. Thus where conditions of sale stipulated that if 
 there was any objection which the vendor should be unable 
 or unwilling to remove he might rescind the contract, and 
 the purchaser should be entitled to his deposit without 
 interest or costs, it has been held that such a condition is 
 confined to the objections first taken after the abstract is 
 delivered, and that a treaty between the parties for the 
 completion of the purchase is a waiver of the condition, (7:») 
 It being, of course, evidence of the vendor's willingness to 
 remove the objection.' Such a condition will apply, if it be 
 acted on by the vendor the moment the defect is kno^Ti to 
 him, but will not allow him to spend time in fruitless efforts 
 to remove the objection, and then to rescind the contract on 
 the terms of the condition. (^) And so where money is pay- 
 able by instalment, and there is a power to rescind on 
 breach of the contract, the receipt of money due on a subse- 
 quent instalment is a waiver of the right to rescind for 
 
 (n) Bowman v. Hyland, 8 Oh. D., 588, and 952; Ker v. Crowe, L. R. 7 C. L,., 181; and 
 
 see Re Jackson & Oakshott, 14 Ch. D., Sol, supra, § 709. 
 
 cited infra. Part V. , chap 1, § 1165. (p) Tanner v. Smitli, 10 Sim., 410; Morley 
 
 (0) See Morrison v. Universal Marine In- v. Cook, 2 Ha., 1C6. See, also, Cutis v. 
 
 surance Co., I.. R. 8 Ev., 40, 197, particularly Thodey, 13 Sim , 206. 
 
 ^05; and see Marsden v. Sambell, 28 W. K., (q) Md ulioch v. Gregory, 1 K. & J, 236; 
 
 Lane v. Debenham, 17 Jur., 1005. 
 
 * The same doctrine obtains at law. Canfield v. Wescott, 5 Cow., 270; Man- 
 cius V. Sergeant, id., 371; Church v. Ayres, id., 272. But when a contract 
 shall be thus rescinded, if there be a mode of rescission provided, it must be 
 rescinded in that way. McKay v. Carrington, 1 McLean, 50. 
 
 * And an application for a rescission must likewise be made as soon as the 
 cause of rescission is discovered. Ayres v. Mitchell, 3 S. & M., 683. In aU 
 cases there must be promptness on the part of the one seeking the rescission; 
 he must move in the matter on the first knowledge of the breach ; and if, after 
 knowledge of the violation of the contract, he negotiates with the other party, 
 he waives all right of rescission. Lawrence v. Dale, 3 John.'s Ch., 23; McKay 
 V. Carrington, 1 McLean, 50.
 
 504 FRY ON SPECIFIC PERFORMANCE OF CONTRACTS. 
 
 default in respect of a previous one.(r) So the receipt of 
 royalty at a reduced rate is a bar to the exercise of a right 
 of rescission reserved on the non-payment of royalty at a 
 higher rate. (5) 
 
 § lOSl. Where the contract stipulates for a right of 
 rescission in respect of separate breaches, the waiver of one 
 will not waive another : so that where there was a contract 
 for the payment of money by instalments, and that time 
 should be of the essence, and further, a power to rescind on 
 breach of the contract, it was held that each default of pay- 
 ment of an instalment at the stipulated time was a fresh 
 breach of the contract, on which the right to rescind arose. (^) 
 
 § 103:3. Where there are conditions for compensation 
 and for rescission('?^) the courts will, for obvious reasons, 
 generally construe them so as to confine the right to rescind 
 to cases not within the condition for compensation. Thus, 
 in a case in which j^iarticulars of sale by error, but without 
 fraud or gross negligence on the x)art of the vendor, described 
 part of the property as a customary leasehold holden of a 
 manor renewable every twenty-one years on payment of a 
 customary fine, and the property was in fact holden only 
 for a term of twenty-one years with no customary right of 
 renewal ; the fourth condition of sale, after providing for 
 the delivery of the abstract and of objections to the title, 
 stipulated that the vendor should be at liberty at any time 
 after the delivery of such objections to vacate the sale, and 
 that the deposit was thereupon returned without interest, 
 costs, or other compensation ; the fifth condition of sale 
 provided that the purchaser should accept the existing lease 
 and the assignment to the vendor as a sufficient title to this 
 property ; and the sixth condition stipulated that if through 
 any mistake the estate should be improperly described or 
 any error or mis-statement be inserted in the particular, 
 the same should not vitiate the sale, but that conijpensation 
 should be made by either party, as the case might be. The 
 purchaser tiled a bill for specific performance with com 
 pensation, contending that the error was within the sixth 
 condition : the vendor resisted performance and sought to 
 vacate the contract, on the ground that it was within the 
 
 (r) Hunter v. Daniel, 4 Ha., 420. (t) Hunter v. Daniel, 4 Ha. , 420. 
 
 (») Warwick v. Hooppr, .3 Mac. & G., 60. {u Cf. infra, §§ 1258, 1259. 
 See, also, Langridge v. Payne, 2 J. & H., 423.
 
 THE KESCISSION OF THE COXTKACT. 505 
 
 fourth condition. Lord Hatlieiiy (then V. C), referrino- to 
 the fifth condition as exi^laining the nse of the word title in 
 the condition, held that this was rather a mis-statement of 
 the subject-matter of the sale than of the vendor' s title to it, 
 and therefore within the sixth and not within the fourth 
 condition of sale ; and he accordingly enforced specific per- 
 formance with compensation -.{v) and Lord Romilly, M. R., 
 put a like construction on similar conditions in a similar 
 case, (w) 
 
 § 1033. It remains to remark that the plaintiff, bringing 
 an action for the specific performance of a contract, may 
 claim in the alternative that, if the contract cannot be 
 enforced, it may be rescinded and delivered up to be can- 
 celled, (re) provided that the alternative relief is based on the 
 same state of facts, though with different conclusion as to 
 law. (7/) When the action is brought by the vendor, and 
 the purchaser has been in possession, this alternative claim 
 may embrace an account of the rents and profits. (2) But, 
 for the reason already stated, an action to set aside a trans- 
 action for fraud or, in the alternative, for specific per- 
 formance of a compromise cannot be sustained, (a) 
 
 5. Rescission on the ground of fraud or mistake. 
 
 § 1034. Either party to a contract who has been led into 
 it by fraud may rescind the contract: (6) and either party 
 to a contract who by fraud of the other part}- has been pre- 
 vented from obtaining the full benefit of it may rescind the 
 contract. (c) This right is discussed in the chapter on 
 fraud. ((^Z) 
 
 Mistake is also under some circumstances a ground for 
 rescission, (e) 
 
 6. Wliere one party has refused to perform or unreas- 
 onably delayed performance. 
 § 1035. Where one party to a contract absolutely refuses 
 
 (f) Painter v. New by, U Ha., 26; Xelthorpe (z) Williams v. Shaw, 3 Russ., 78 n. 
 
 V. Holgate.l Coll., 203. Pee, also, Mawson v. (a) Cawley v. Poole, 1 H. & M., 50. Dis^ 
 
 Fletcher, L. R. Id Eq., 2]2; 6 Ch.. 91. tinjtuish Bagot v. Easton. 7 Ch. D., 1. 
 
 (M)) Hoy V. Smithies, 22 Beav., 510. (b) Onions v. Cohen, 2 H. & M., 354, 361. 
 
 (a;) Moseley v.Virgln,3Ves., 184; Costigan (O Panama &c. Telegraph Co. v. lurjia- 
 
 V. Hastier, 2 Sch. & Lef., 160, 166; Stapylton rubber, etc , Co., L. R. 10 Ch., 515. 
 
 V. Scott. 13 Ves., 425; Clarke v. Fauxe. 3 (d) Supra. Pait III., chap, xiv., § 673 et 
 
 Rns.-. 32(1 ; King v. King, 1 My. & K., 442; eeq. ; and ci. Cargill v Bower, 10 Ch. D.. 502, 
 
 Douglass V. London and >»orth- Western Rail- and per Lord Blackburn in Brownlie v. 
 
 way Co., 3 K. & J., 173; Forster v. Great Can pbill, 5 App. C. 949 
 
 Eastern Railway Co., W. X. 1868, 122. te) See supra, § 750; and cf. Cullen v. 
 
 {y) Rawliugs v. Lambert, 1 J. & H., 458, O'Meara, I. R. 1 C. L.,640, 4 C. L., 53/ (mis- 
 
 and see Ord. XIX. r. 8. description).
 
 506 FRY ox SPECIFIC PEUFOllMANCE OF CONTRACTS. 
 
 to perform his part of the contract, either before or after 
 the hour for perfoniiaiice lias arriYed,(/) the other party 
 may accept that refusal and thereupon rescind the contract. 
 So that wlKn-e a man contracted to buy straw to be deliv- 
 ered by instalments, and to pay on delivery, and after a 
 time refused to pay for the last load delivered and insisted 
 on always keeping one payment in arrear, the other party 
 was held entitled to rescind the contract. (^) But to justify 
 rescission for this reason, the refusal to perform must not 
 be mere non-performance or neglect in performance : " there 
 miist have been something equivalent to saying ' I rescind 
 the contract,' — a total refusal to perform it, or something 
 equivalent to that which would enable the plaintiff on his 
 side to say, ' If you rescind the contract on your part, I 
 will rescind it on mine.' "(7^) In an earlier case in the 
 Queen's Bench, these cases were exj^lained by Coleridge, 
 J.,(/) as depending upon the concurrence of the parties in 
 the rescission, so that they may reallj^ be considered as cases 
 in which an agreement to rescind is proved by the acts of 
 the parties.,/) 
 
 § 1036. Where, on becoming insolvent, a contracting 
 party practically gives notice to his creditors and those who 
 have contracted with him that he does not mean to pay any 
 of his debts or j)erform any of his contracts, there is a 
 refusal which may be accepted by the other side, and that 
 by conduct as well as by express rescission. (^') 
 
 § 1037. The right to rescind which arises from unreason- 
 able delay in performance will be considered in the next 
 chapter. (/) 
 
 7. W7iere one party leas made performance impossible.. 
 § 1038. It is a clear principle of law that if by any act of 
 one of the parties the performance of a contract be rendered 
 impossible, the other party may, at his election, rescind the 
 contract, (m) so that where A. contracted with B. to supply 
 B. with a chariot for five years, which A. was to repair, and 
 
 (/■) Danube and Black Sea Railwav.etc, Co. (ft) Ex parte Chalmers. L. R. 8 Ch , 289; 
 
 V. Xenos.ll C. B X. 8 .ISi; 13 C H. N.S.,825. Morg;ni v. Bain, L. R. 10 C. P , 15; Cf. Scrim- 
 
 {(1) Withers V. Reynohls, '2 B. & Ad., 882 geour's claim, L. R.. 8 Ch., 921. 
 
 (/i) Ehrcnsperger V. Anderson, 3 Ex., 148, (/) See too Micholls v. Corbett, 34 Beav., 
 
 per Parke B , 158; Freeth v. Burr, L. R. 9 C. 376. 
 
 P . 208 im) Panama, etc.. Telegraph Co. v. Indla- 
 
 (t) Franklin v. Miller, 4 A. & E., .599. rubber, etc., Co., L. R. 10 Ch. 515, 532. 
 
 (j) See further 2 Smith, L. C 35 et seq. 
 (Sth ed.)
 
 THE RESCISSION OF THE CONTRACT. 507 
 
 before the five years had expired A. made over the chariot 
 to his successor in trade and thereby disabled himself from 
 performing the unperformed part of the contract, B. was 
 held at liberty to rescind it.(7i) Similarly it seems queer 
 that a contract to convey an estate may be rescinded if the 
 vendor convey the estate to a third person :{o) that a con- 
 tract to pay in goods may be rescinded if the payer part 
 with the goods :(^j) that a contract to write an essay for a 
 particular series may be rescinded if the publisher finally 
 abandon the series :{q) that a contract to accept and pay for 
 a telegraph cable on the certificate of an engineer may be 
 rescinded if the party to deliver the cable bribe the en- 
 gineer, (r) 
 
 § 1039. The impossibility must, it seems, arise in respect 
 of some substantial or essential part of the contract ■,(s) 
 though it is not perhaps clear on principle why a contract- 
 ing y)arty who disables himself from performing modo et 
 forma should be at liberty to allege that the incapacity 
 which he has produced is in a non-essential particular. 
 
 § 1040. But even though the particular in respect of 
 which the impossibility arises may not be of the essence of 
 the contract, yet if it be brought about by the fraudulent 
 misconduct of the defendant, the plaintiff's right to rescind 
 is clear 'in equity. Thus where Company A. contracted 
 with Company B. to lay a telegraph cable for Company B., 
 and then bribed the engineer for whose services in certify- 
 ing as to the work the contract provided, Mellish, L. J., 
 held that even if the certificate of the engineer could not be 
 considered so much of the essence of the contract that the 
 plaintiff would at common law have been entitled to rescind, 
 yet that the fraudulent misconduct of the defendant com- 
 pany having made it impossible that the plaintiff company 
 could have the full benefit of the contract, they were at 
 liberty to rescind. (?^)' 
 
 (n) Robson v. Drummonil, 2 B. & Ad., 303. (r) Panama.etc.TelegraphCo.v. India-rub- 
 
 (o) Palmer V. Temple, 9 A. & E. ,50b; Love- ber, etc., Co. b. R. 10 Ch.. 51o. 
 
 lockv Franklyn, 8Q. B., 371:Fordv. Tllley, (s) Panama, etc., Telegraph Co. v. India- 
 
 6B &'0 325 rubber, etc., Co., L. R. 10 Ch., 532. 
 
 (p) Keyes V. Harwood, 2 C. B., 905. (t) Panama, etc.. Telegraph Co. v. India- 
 
 iq) Planche v. Colburn. 8 Blng., 14. rubber, etc., Co , L. R. 10 (Jh., 515. 
 
 1 Tender. '\ A party agreed to pay a part of the purchase price by executing 
 and delivering his bond, with a mortgage upon the hind, and the balance in 
 cash upon delivery of the deed upon a day specified. Defendant agreed to 
 ■deliver the deed when so paid. The parties met ; defendant produced a deed
 
 508 FRY ox SPECIFIC PFKFORMANCE OF CONTRACTS. 
 
 bearins? date the day the contract was executed; plaintifE produced and handed 
 to defendant the Ixmd and mortgage, and had a certified check for the cash to 
 be paid; neither party made a tender. Defendant claimed that he was entitled 
 to interest on the whole purchase money from the date of the contract ; the 
 matter was discussed and defendant left the room for consultation. Upon liis 
 return he offered to carry out the contract according to its terms. In an action 
 to compei specific performance, held, that a formal tender was not necessary 
 in order to maintain the action. The defendant having taken an untenable 
 ground, if he changed his views, or receded from his position, he was bound to 
 notifv plaintiff, and his refusal to pass the title, except upon payment of the 
 interest claimed, was a good excuse for not making a tender. Selleck v. Tall- 
 man, 87 N. Y., lOG. 
 
 The possession must be exclusive and absolute.'] The possession, in order to- 
 satisfy the statute, must be exclusive and absolute: must not be as a tenant in 
 common or as a joint tenant; it must be actual, open and notorious. A merely 
 technical possession will not answer. Elliott v. Thomas, ;3 M. & W., 170;. 
 Mills V. Hunt, 17 Wend., 838: Smith v. Underdunk, 1 Saudf.'s Ch., 579; .Jones 
 V. Pease, 21 Wis., 644; Briggs v. ^hisking, 25 Eng. L. and Eq , 257; Bout- 
 well V. O'Keefe, 32 Barb., 434; McKnight v. Dunlop, 5 N. Y., 537. 
 
 Parol partition between several grantees.'] Where there are several grantees of 
 real property, a parol partition between themselves, if followed by actual pos- 
 sessession, is sufficient to take the case out of the operation of the statute. 
 Corbin v. Jackson, 14 Wend., 619; Piatt v. Hubbell, 5 Ohio, 243; Williams v. 
 Pope. Wright, 406: Ebert v. Wood, 1 Bin , 216; Cummins v. Nutt, Wright, 
 713; Calhoun v. Hays, 8 Watts & Serg., 127; Wilday v. Bonney, 31 Miss., 644. 
 This is not true, vvhere possession is not taken. Shoe v. Derrick, 2 Rich., 627^ 
 An action of ejectment was pending, and the parties verbally agreed to divide 
 the property, each holding their respective shares in severalty; all entered into- 
 possession. Held, that "there is no substantial differences in principle between 
 such an agreement when carried out by taking possession in severalty under it, 
 and a parol partition of land between parties in possession and claiming title, 
 accompanied and followed by possession by each party of the part conceded 
 to him " Handy, J., in City of Natchez v. Vandernelde, 31 Miss , 706. 
 
 JDivii<.ion line, acceptance and possession under.] A disputed boundary line- 
 may be settled by an express parol agreement, where possession is immediately 
 entered upon ; the parties, in such a case, cannot afterwards, set up the statute 
 of frauds as a defense. Boyd v. Graves, 4 Wheat., 513; Jackson v. Corlear, 11 
 Johns., 123; Jackson v. Dyeling, 2 Caines, 198; Davis v. Townsend, 10 Barb., 
 333; Lindslev v. Springer, 4 Harring. (Del.), 547; Fuller v. County Commr., 15 
 Pick., 81; Blair v. Smith, 16 Mo., 273; Kipp v. Norton, 12 Wend , 127; Adams- 
 V. Bockwell, 16 id., 285; Yorborough v. Abernathy, Meigs, 413. 
 
 Exclxunge of real property by parol possession] "If the evidence shows an 
 unequivocal and complete taking possession of one of the subjects of an ex- 
 change by the party owning the other subject, it strengthens the evidence of 
 possession taken by the opposite parly of the corresponding subject. Proof 
 of possession that might seem weak and inconclusive, in the case of a parol 
 sale, is thus made convincing in the case of an exchange." Agnew, J., in 
 Mossv. Culver, 64 Pa. St., 4l4; see, also, Johnson v. Johnson, 6 Watts, 370; 
 Bennett v. Abrams, 41 Barb., 619; Cauldwell v. Carrington, 9 Pet., 86; Beebe 
 V. Dowd, 22 Barb., 255; Parrill v. McKinuey, 9 Graft., 1 ; Reynolds v. Hewett, 
 27 Pa. St., 176. In Miles v. Miles, 8 Watts & Serg., 135, it was held, that 
 notwithstanding each party did not take immediate possession of his allowance, 
 yet a parol exchange of land might be valid. 
 
 Irnpi-ovements to real property upon the faith that it will be p)resented.] Where- 
 there has been an actual delivery of possession, and valuable improvements 
 made of which the donor had knowledge, a parol promise that land would be 
 deeded to another will be specifically enforced. Freeman v. Freeman, 39 N. Y. , 
 34; see, also, Haines v. Haines, 4 Md.'s Ch., 133; S. C, 6 Md., 435. 
 
 Improvements made on land of child under parol gift] In order that a parol 
 contract for the gift of land from a father to a sou can be sustained, all the
 
 THE EESCISSION OF THE CONTRACT. 509 
 
 acts necessary to its validity must have special reference to it, and not to any- 
 thina; else; tlie terms of the'contract must be clearly settled. The fact that the 
 father has called the land his son's property, is not alone sufhcient. Hugh v. 
 Walker, 12 Pa. St., 173: Cox v. Cox, 2G id., 373; Poorman v. Kilgore. id , 305; 
 King V.' Thompson, 9 Pet.. 204; Eckert, v. Mace, 3 Pear. & Watts, 3G4; Shell- 
 hammer V. Ashbaugh, 83 Pa. St., 24; Sower v. Weaver, 84 id., 2G2. Where 
 large expenditures have been made, which have resulted ia the permanent im- 
 provement of the estate, in consideration of his parol promise to couvej' the 
 same, and with his knowledge, in such case the court will enforce the promise. 
 Young V. Gleudenning, (i Watts, 509; Willis v. Mathews, 46 Tex., 478; Lob- 
 dell V. Lobdell, 3G K Y., 327; Moore v. Pierson, 6 Iowa, 279; Golhiarth v. 
 Golhiarth, 5 Kan., 402; Bright v. Bright, 41 111., 101; Hardisty v. Richard- 
 son, 44 Md., G17; Lewis v. George, 33 Mich., 253; Atkinson v. Jackson, 8 Ind., 
 31; Savler v. Eckhart, 1 Bin., 378; Davidson v. David.son, 13 N. J. Eci., 246; 
 France v. France, 8 id.. 650; Laur v. Henry, 39 Ind., 414; see, however, For- 
 ward V. Annistead, 12 Ala., 124.
 
 510 FRY OX SPECIFIC PERFORMANCE OF CONTRACTS. 
 
 CHAPTER XXV. 
 
 OF THE LAPSE OF TIME, 
 
 § 1041. The lapse of time before application to the court 
 for its interference to enforce an uncompleted contract, or 
 the fact that the plain tiil has not performed his part of the 
 contract at the time speciiied, may furnish grounds of 
 defense to an action for specific performance. 
 
 5j 1042. Before the judicature acts, the plaintiff in a 
 conjmon law court had to show that all things on his part 
 to be performed had l)een performed within a reasonable 
 time, or, where a time was specified in the contract, within 
 the time so specified : and at common law time was thus 
 always of the essence of the contract. («) But in equity the 
 question of time was differently regarded, for courts of 
 equity discriminating between these formal terms of a con- 
 tract, 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 were of the substance and essence of the contract, (&) 
 and applying to contracts the principles which governed the 
 interference of those courts in relation to mortgages, (c) held 
 tiniH to be ^;rma facie non-essential, and accordingly 
 granted specific performance of contracts after the time for 
 their performance had been suffered to pass by the party 
 asking for the intervention of the court, if the other party 
 had not shown a determination not to proceed, {dy ' ' When ' * 
 
 (a) Berry v. Young, 2 Esq., 640 n ; AVilcle ib) Parkin v. Thorold, ]6Beav.,59. 
 
 V. Fort, 4 Taunt. 334; Stowell v. Robinson, 3 (c) See per Lord Eldon in Seton v. Slade, 7 
 
 IJing X. C, 9i8; Alexander v. Godwin 1 Ves., 273. 
 
 Bing N. C.,671; Vernon v. Stephens 2 P. (d) Pincke v. Curti8,4 Bro. C. C, 329; Rad- 
 
 Wms.. 6G; and cf. Xoljie v. Edwardes, 5 Ch. cllffe v. Warrington, 12 Ves., 326. See per 
 
 D , 378. Where a condition as to time is a Lord Kede8<lale in Lennon v. Napper, 2 Sch. 
 
 mutual stipulation and not a condUion pre- & Lef., 684; per Lord Romllly, M. R., and 
 
 cedent, the lapse of time is of course no bar Lord Cranworth (when V. C.) in Parkin v. 
 
 to an action on the contract. Hall v. Caze- Thorold, 16 Beav.. .59; 2 Sim N. S.. 1; Baker 
 
 r.ove, 4 Eabt, 477; iiavelock v. Geddes, 10 v. Metropolit-in Railway Co., 31 lieav., 504 
 
 East, 555; Horneman v.Tooke, 1 Camp., 377; (completion within a reasonable time). 
 l.iu;:is V Godwin. 3 Blng. N. C *37; Lamp- 
 rel' V Billericay Union, 3 Ex., 283. 
 
 ' At law, where goods are to be delivered at a certain time, they mu.st all be 
 delivered at that time. Davenport v. Wheeler, 7 Cow., 381. And it mii.st be 
 impossibility, not difficidty, that will excuse a party from the performance 
 of his agreement. Huling v. Craig, 2 Addi.s. , 342. But although rigid enforce-
 
 THE LAPSE OF TIME. 511 
 
 said Leach, V. C, " a court of equity holds that time is not 
 of tlie essence of a contract, it proceeds upon the principle 
 that, having regard to the nature of the subject, time is 
 immaterial to the value, and is urged only hy way of pre- 
 tence and evasion." (e) 
 
 § 1043. Now, however, stipulations in contracts as to 
 time or otherwise, which would not before the date of the 
 commencement of the judicature act, 1873, have been 
 decreed to be or to have become of the essence of such con- 
 
 (e; In Doloret v. Rothschild, 1 S. «& S., 598. 
 
 ment is the feature of law, j^et, in equity, the time of performance may be 
 enlarged. Runnels v. Jackson, 1 How. (Miss.), 358; see Getchel v. Jewett, 4 
 Greeul., 350; Rogers v. Saunders, 16 Me., \)Z. The covirt will s(; 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. Lyiui, 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.'s 
 Ch., 596; Runnels v. Jackson, 1 How. (Miss.), 358; Attorney-General v. Pur- 
 mont, 5 Paige, 620; see Hepburn v. Auld, 5 Cranch, 263; Fletcher v. Wilson, 
 1 S. & M.'s 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 specific per- 
 formance of it by a court of equity. Goodwin v. Lyon, 4 Port., 297. In Ken- 
 tucky, the case of Smith v. Carney, 1 Litt., 295, expresses an essentially different 
 doctrine from that which, judgiiag 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 laud, made before the statute of frauds went 
 into operation, as assumpsit alone could be maintained at law for a l)reach 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 e(piity 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 Seatou v. 
 Blade, 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 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 incidents of actual ownership. It 
 necessarily follows that while a default in the literal fulfillment of the stipula- 
 tions 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 effect in equity, 
 unless of such a nature as to render it inequitable to enforce tlie contract. 
 Although, therefore, a party who has committed a default of a nature to be in- 
 jurious, 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 compensated, equity will not consider it a 
 sufticient reason for refusing to cany the contract into execution. 1 Dev. & 
 Bat. Eq., 237. A default iu'poiut of time generally admits of compei\.<ation. 
 Time is held, therefore, not to be material in itself in equity, although it may 
 undoubtedly be so in its consequences. A failure to conqily with th'- terms of 
 a contract, on the day fixed lor their fuUillment, will not. lhereft>i\', neces- 
 sarily preclude the right to fulfill them afterwards, and apply to equity a cor- 
 responding f ultiUmcut by the other part3\"
 
 512 FKY OX SPECIFIC PERFOUMA^XE OF COXTP.ACTS. 
 
 tracts in a court of equity, receive in all courts the same 
 construction and effect as tl'iey would formerly have received 
 in equity. (/) In other words, the doctrines and rules of 
 equity as to the effect of of lapse of time are now applicable 
 to and govern every contract that falls within the jurisdic- 
 tion of any of the courts, superior or inferior, (r/) of this 
 country. 
 
 These doctrines and rules then we now proceed to con- 
 sider. 
 
 § 1044. It is proposed to discuss the subject in hand 
 under the following heads, viz.:— 
 
 (1) Cases where time was originally of the essence of the 
 ■contract : 
 
 (2) Cases where time, though not originally of the essence 
 of the contract, has been engrafted into its essence by 
 subsequent notice : 
 
 (3) Cases where the delay has been so great as to consti- 
 tute laches disentitling the party to the aid of the court, 
 and evidencing an abandonment of the contract irresi^ec- 
 tively of any particular stipulation as to time : 
 
 (4) Cases where time does not run : 
 
 (5) Cases where the objection on the ground of lapse of 
 time is waived. 
 
 1. Time originally of the essence of the contract 
 § 1045. Time is originally of the essence of the contract 
 in the view of the court of equity, whenever 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. (/^^ As this intention may 
 either be separately expressed, or may be implied from the 
 nature or structure of the contract, it follows that time may 
 be originally of the essence of a contract, as to any one or 
 
 (/) Jud. Act., 1873. 8. 25 (7) ; Jud. Act, 1875, (p) See Jud. Act, 1873, b. 91. 
 8. 10. Cf. Noble V. Edwards, 5 Ch. D., 378. Qi) Hipwell v. Knight, 1 Y. & C. Ex., 401. 
 
 • 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, without excuse, or any 
 acquaintance 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, 23; Smith v. Brown, 5 Gilm., 305. So where a certain act has 
 been clearly stipulated to be done within a given time, as, for example, giving 
 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.
 
 THE LAPSE OF TIME. 513 
 
 more of its terms, either by virtue of an exi^ress condition 
 in the contract itself making it so, or by reason of its being 
 implied. It will be convenient to consider the cases sei)ar- 
 ately ; 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. (i)' 
 
 (i) Monro v. Taylor, 8 Ha., 51, 62. 
 
 ' 2'ime when a contract is complete.'\ Tlie time when the negotiation cul- 
 minates in an agreement is often of importance. When the answer containing 
 the acceptance of a distinct proposition, is dispatched by mail or messenger, if 
 due dilligence is used, and no intimation that the offer has been withdrawn has 
 been received, completes the contract. Adams v. Lindsell, 1 B. & A., 681; 
 Mactier v. Frith, 6 Wend., 103; Levy v. Coke, 4 Ga., 1; Bri.sbane v. Boyd, 4 
 Paige's Ch., 17; Averil v. Hedge, 12 Conn., 426; Hamilton v. Lyeswing Ins. 
 Co.. 5 Pa. St., 339; Abbott v. Shepard, 84 N. H., 14; Stockton v. Stockton, 
 32 Md , 136; Chicago R. R. Co. v. Done, 43 N. Y., 260; Potts v. Whitehead, 
 20 N. J. Eq., 55; Kent's Com. (9th ed.), 640. The agreement is held to date 
 from the posting, and not from the receipt of the letter. Potter v. Saunders, 6 
 Hare, 1; Brisbane v. Boyd, 4 Paige's Ch., 17; Vassar v. Camp, 11 N. Y., 441; 
 •Clark V. Dales, 20 Barb., 42; Falls v. Garther, 9 Porter, 605; Chiles v. Nelson, 
 7 Dana, 281; Levy v. Coke, 4 Ga.. 1; Averil v. Hedge, 12 Conn., 424; Beck- 
 with V. Cheever, 21 N. H., 41; Bryant v. Boone, 55 Ga., 438, contra, McCul- 
 loch V. Eagle Ins. Co., 1 Pick., 278; Hayer v. Middlesex Ins. Co., 10 Pick., 
 326; Gillespie v. Edmonston, 11 Humph., 553. 
 
 When time made a distinct feature of tlie contract.'] It makes no difference 
 what the nature of the subject matter is, the time for the performance of the 
 agreement will be regarded, when the time of performance appears to have 
 been made a distinct feature of the transaction. Ganetson v. Vanloon, 3 Iowa, 
 128. 
 
 Want of miitiialifi/, time "-of the essence."] Where there is a want of mutual- 
 ity in the obligations arising" from the transaction, in equity as well as at law, 
 time is of the essence. Manghlin v. Perry, 35 ]\Id., 352; Magoffin v. Holt, 1 
 Duvall, 95. 
 
 Mmj i^tipidate that time ><hall be of the essence.] Baron Alderson said in Hip- 
 well v. KniiJ-ht, 1 Y. & C, 415: "I do not see therefore why, if the parties 
 choose, even arbitrarily, to stipulate, provided both of them intend to do so, 
 for a particular thing to be done at a particular time, such a stipulation should 
 not be carried literallv into effect in a court of equity. That is the real con- 
 tract. The parties had a right to make it. Why, then, should a court of 
 equity interfere, to make a new contract which the parties have not made ? " 
 See also, Stow v. Russell, 36 111., 18; Benedict v. Lynch. 1 John.'s Ch., 370; 
 Kemp V. Humphrevs, 13 111., 573; Prince v. Griffin, 27 id., 514; Potter v. Tut- 
 tle 22 Conn., 512;"'Baldwin v. Vanvorst, 10 N. J. Eq., 577; Earl v. Halsey, 1 
 McCarter(N. J. Ch.), 332; Grigg v. Laudis, 21 N. J. Eq., 494; Fessler's App., 
 75 Pa. St., 483. ZabrLskie, Ch., said in Bullock v. Adams, 20 N. .1. Eq., 367: "A 
 court of equity has no more right to disregard an express stipulation that time 
 shall be of the essence of the contract, than it has to give a year, or ten years, 
 or ninety-nine years, for the payment of the whole or of one-half of the pur- 
 chase money stipulated for in cash, if it should appear that it is difficult or im- 
 possible for the purchaser to pay at the time agreed upon." 
 
 Stipidations as to time; e.vamples.] The following cases will show the effect 
 of stipulations as to time: Jones v. Noble, 3 Bush (Ky.), 694; Mason v. Payne, 
 47 Mo., 517; Mitchell v. Wilson, 4 Edm. Ch., 697; Heckord v. Sayre, 34 111., 
 142- Shuffleton v. Jenkins, 1 Morris (Iowa), 427; Reed v. Breedeu, 61 Pa. St., 
 460 "; McClure v. King, 15 La. An., 220; Gale v. Archer, 42 Barb.. 320; Troy 
 V. Clarke, 30 Cal., 419. Walworth, Ch.. said in Smith v. Wells, 7 Paige's Ch., 
 22; S. C, 2 Edm. Ch., 78: "Although, in theory, the interest is suppo.sed to 
 be a fair equivalent for the non-payment of money at the time agreed upon, we 
 33
 
 614 FRY ON SPECIFIC PFKFORMANCE OF C<JNTKACTS. 
 
 § 10-16. The Court of Clumcerj^ seems at one time to have 
 gone so far in its disregard of time as to consider that it was 
 of no consequence in equity \{j) and accordingly Lord 
 Tliurlow(7t) seems to have maintained that no expression 
 
 (j) Gibson v. Patterson, 1 Atk , 12, which (k) Gregson v. Riddle, cited by Romilly 
 has been thought ail erroneous report. See arg. 7 Vee., 268. 
 Lloyd V. Collett, 4 Hro. C. C, 4G!) n. (3). 
 
 all know that, in point of fuct, the persons to whom it is due, frequently sus- 
 tain great losses in consequence of the disappointment which the legal rate of 
 interest cannot compensate. On tlie other hand, it frequently happens that tlie 
 perfecting of the title, and the delivery of tlie possession of the premises at 
 the time contemplated by the purchaser, is of essential benefit to him, which, 
 cannot be compensated by damages which are ascertainable by the ordinary 
 rules of computing damages. It would, tlierefore, not only be unreasonable, 
 but entirel}' unjust, for any court to hold that parties, in making executory 
 contracts for tlie purchase or sale of real estate, should not be permitted to 
 make the time of performance an essential and binding part of the contract in 
 equity, as well as at law, where, as in this case, the other partj^ was fully 
 apprised of the intention to insist upon a strict performance at the day. Here 
 there was no such impossibility as might not have been foreseen and provided 
 against bj- proper care and vigilance. Under such circumstances, if the prop- 
 ertj^ had very much increased in value after the making of the original con- 
 tract, the defendant is fairly entitled to the benefit thereof under the agree- 
 ment by which the complainant contracted to relinquisli all claims upon the 
 property, either at law or in equity, if he did not comply with the terms of 
 the agreement at the day. And as there is nothing inequitable or unconscien- 
 tious in her insisting upon this part of the contract, 1 think the vice-chancellor 
 was right in not making a new contract for her, contrary to the understanding 
 of both parties when they entered into this agreement." Land was sold under 
 a written contract, which contained the following covenant: " In the event of 
 failure to comply with the terms hereof hj the party of the second part, the 
 party of the first part shall be released from all obligations in law or equity to 
 convey said property, and said party of the second part shall forfeit all right 
 thereto." The vendee failed to make his payments without excuse, and a court 
 ef equity held that he could not be i"elieved from the consequences of his de- 
 fault. Rhodes, J., said: "Courts will not inquire into the motive, or the suffi- 
 ciency of the motive, that induced the parties to contract that time should be 
 essential in the performance of any of the agreements contained in the con- 
 tract of purchase. But if it appears that the parties have thus, contracted, 
 courts of equity will not disregard the contract in order to give effect to some 
 vague surmise that all the vendor intended to secure by the contract was the 
 payment of the purchase monej% with interest at some indefinite time." Grey 
 v.Tubbs, 43 Cal., 359. 
 
 Time loas held to be of the essence of iJie contract in the folhxcing cases: "In 
 case of the failure of the said S. to pay the afpresaid sums of money at the 
 dates aforesaid, or any part thereof, to the said L., his heirs or assigns, then 
 the said S. shall forfeit to the said L. the sums alreadj" paid, and no deed shall 
 pass for said land. Held, that time was of the essence of such a contract. 
 Snider v. Lehnherr, 5 Oregon, 385; see, also, Westerman v. Means, 12 Pa. 
 St., 97. 
 
 How time shall be reckoned-l Where the contract bore an impossible date — 
 e. g., February 30, the time was held to be reckoned from its delivery. Styles 
 V. Wardle, 4B. &C., 908. 
 
 To say time is regarded in this court, as at laic, is quite impossible. ] This is the 
 language of Lord Eldon in Seton v blade, 7 Ves., 2G5. Stiindations having 
 reference to time merely, are construed liberally by courts of equity, unless it 
 is Cwbliuctlj' made to appear that it -was the design of the parties to make time 
 of the f- fence." Bnmfield v. Palui(;r, 7 Blackf., 227; Mathews v. Gillis, 1 
 Iowa, 24..; Hoffman v. Ilumner, 7 N. J. Eq., 2G3; Kirchwal v. Swope, 6 
 ^ionr., oG;J; Evving v. Course, 6 Ind., 313; Keller v. Fisher, 7 id., 718; Jones
 
 THE LAPSE OF TIME. 515 
 
 in the contract could make time of the original essence 
 of it. Lord Kenyon, M. R., liowever, maintained the 
 contrary :(Z) Lord Thmiow's doctrine was doubted by 
 Lord Eldon -.{m) and accordingly express stipulations render- 
 ing time of the essence have repeatedly bf^en maintained as 
 valid and binding in equity, (^0 iii respect, for instance, of 
 covenants for the renewal of leases, (o) and stipulation as to 
 the time for j^ayment of the deposit(^) or the balance of 
 the purchase-money . (^)' 
 
 (l) Mackreth v. Mavlar, 1 Cax, -259 (o) Baynham v. Guy's Hospital, 3 Ves., 295. 
 
 (m) In ^eton v. Slacle, 7 Ves , 270. (p) Honeyman v. Marryat 21 Beav., 14, 24. 
 
 (//) Hudson V. Bartram 3 Mad., 440; Lloyd {q) Barclay v. Messenger, 22 W.R., 522; 43 
 
 T. Ripijingale, cited 1 Y. & C. Ex., 410. L. J. Oh., 449. 
 
 V. Robins, 29 Me., 351; Wolton v. Wilson, 30 Miss., 576; Younger v. Welch, 
 23 Tex., 417; Runnels v. Jackson, 1 How. (Miss.), 385; White v. Butcher, 6 
 Jones Eq., 281; Smote v. Rea, 19 Md., 398; Hannah v. Ratekin, 43 111., 462; 
 Miller V. Miller, 25 N. J. Eq., 354; Converse v. Blumrich, 14 Mich., 109. 
 
 Stipulation as to time inserted as a penalty merely. '\ Where there is a stipula- 
 tion that a party shall forfeit his rights under the contract in case of default, 
 and it is clearly shown that such stipulation was inserted as a penalty merely, 
 to induce more prompt performance ot the contract, and where the party in 
 default has given a reasonable excuse for the delay, and has acted throughout 
 in good faith, and the other party has sustained no damage by the delay, spe- 
 cific performance will be decreed. Quinn v. Roath, 37 Conn., 16; see, also, 
 Scarlett v. Stein, 40 Md., 513; Steele v. Branch, 40 Cal., 3; Moote v. Scrinen, 
 38 Mich. , 500. 
 
 Time icithiih icJnch a contract is to be performed. '\ Formerly equity paid little 
 attention to the mere want of punctuality, and carried the doctrine of relief 
 to an extravagant length. Judge Story says, in Story's Eq. Juris., § 780: 
 "Equity went beyond the true limits to which every jurisdiction should be 
 confined, as it amounted to a substitution, pro tanto, of what the parties had 
 not contracted for. But the tendency of the modern decisions is to bring the 
 doctrine within such moderate bounds as seem clearly indicated by the princi- 
 ples of equity, and by a reasonable regard to the common accidents, mistakes, 
 infirmities and inequalities belonging to all human transactions." See, also. 
 Drew V. Han.son, 6 Yes., 678; Halsey v. Grant, 13 Ves., 76; Linton v. Potts, 5 
 Blackf., 396; Bowyer v. Bright, 13 'Price, 702; Barnard v. Lee, 97 Mass., 93. 
 
 Time, how recjarded at law?^ At law, the plaintiff must show performance 
 within a reasonable time ; and in cases where the time is fixed, he must show 
 performance within such time. Berry v. Young, 2 Esp., 640, n;5McCulloch 
 V. Dawson. 1 Cart. (Ind.), 413; Stowell v. Robinson, 3 Ring. (N- C;, 938; 
 Wilde v. Fort, 4 Taunt., 334; Alexander v. Godwin, 1 Bing. (N. C.J, 671; 
 O'Kane v. Kiser, 25 Ind., 168. 
 
 Time, Jioio regarded in equity f] Equity holds time to be prima facie, non- 
 essential. Setou V. Slade. 7 Ves., 273; Radclitfe v. Warrington, 13 Ves., 336; 
 Parkin v. Thorold, 16 Beav., 59; Pincke v. Curtis, 4 Bro. C. C, 329. In 
 Peters V. Delaplaine, 49 N. Y., 367, Church, C. J., said: "The time within 
 which actions may be brought for specific performance of contracts, has not 
 been extended by implication by the statutes prescribing a time within which 
 the action must, in all cases, be brought. The question still remains, and must 
 be decided in each action, although brought within the statutory limit as to 
 time, whether, under the peculiar circumstances, equity and good conscience 
 require that the contract shall be specifically performed, or whether the party 
 shall be left to his remedy at law for the uou-perfoimance." See, also. King 
 V. Hamilton, 4 Pet. (U. S }, 311. 
 
 ^ It is clearly <he rule that equity will not disregard the manifest inteuiion of 
 the parties. It is only reciuired that they shall make time essential^to induce
 
 516 FRY ON SPECIFIC PERFORMANCE OF CONTRACTS. 
 
 § 10B7. In order to render time thus essential, it must 
 be clearly and expressly stipulated, and must also have 
 been really contemplated and intended by the parties that 
 it shall be so : it is not enough that a time is merely men- 
 tioned dui'ing which or before which something shall be 
 done. 
 
 § 1048. Therefore in a case wdiere the contract, dated the 
 23d of October, was to grant a new lease " upon condition" 
 of the intending lessee paying on or before the end of the 
 month a premium of 1,000 guineas, Lord Eldon nevertheless 
 refused (on an interlocutory application) to treat the period 
 limited by the contract as essential, considering that, upon 
 the facts of the case, the amount of tlie premium was really 
 the only thing contemiolated by the parties, and that there 
 was nothing to show that payment at a particular day was 
 the object, (r) 
 
 So, again, wiiere a day was specified for the delivery of 
 the abstract, it w^as held non-essential, although the pur- 
 chaser upon its expiration immediately refused to pro- 
 ceed :(.?) and in Parkin v. Thorold,(^) where a day had been 
 specified for the comi^letion of the contract, Lord Romilly, 
 M. R., held it to be non-essential, though in so doing he 
 difi'ered from the previous observations of Lord Cranworth, 
 made (when V. C.) in the same case at an earlier stage, (w)' 
 
 (r) Hearne V Tenant. 13 Ves., 287. Jessel, M. R., in Barclay v. Messenger, 23 
 
 (s) Kolierts V. Berry, 16 Beav., 31, affirmed W. R., 522; 43 L. J. Ch., 499. 
 
 3 De G. M. & G., 281. Consuler Venn v. (m) Parkin v. Thorolrl. 3 Sim. N. S., 1. Dis- 
 
 Cattell. 27 L T . 469. tinguish Barclay v. Messenger, 22 W. R., 
 
 (<) 16 Beav., 50; but see the jutlgment of 522; 43 L. J. Ch., 449. 
 
 the court to so consider it. Scott v. Fields, 7 Ham , 90 (2d pt.); Benedict v. 
 Lynch, 1 Jolin.'s Ch., 370; Doar v. Gibbes, 1 Bailey's Ch., 371 ; Wells v. Smith, 
 7 Paige, 2i 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 essentials 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, etc. , might induce the court to 
 reUeve. 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 parties 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 contract. 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 cquitj' arising out of one's own neglect! It is a singular 
 head of equity! " 
 
 1 Wells V. Wells, 3 Ired.'s Ch., 59G; Runnels v. Jackson, 1 How. (Miss.), 368; 
 Attorney-General v. Purmont, 5 Paige, 620. But in Benedict v. Lynch, 1
 
 THE LAPSE OF TIME. 517 
 
 Lapse of time in payment of the purchase-money may 
 generally be recompensed by interest and costs. (?)j 
 
 § 1049. Time may be implied as essential in a contract, 
 from the nature of the subject-matter with which the parties 
 are deahng. "If, therefore/' said Alderson, B.,(2^) "'the 
 thing sold be of greater or less value according to the 
 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, (a?) unless 
 indeed the terms of the contract are such as to show that 
 the parties contemplated the possible occurrence of a delay, 
 and intended, in the event of that delay occuring, to keep 
 the bargain alive. (//)' 
 
 § 10."50. So, again, 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, (5") in contracts for granting annuities on lives, (a) and 
 in purchases of government stock. (6)' 
 
 (V) Vernon v. Stephens, 2 P. Wms., 66. (z) Coslake v. Till, 1 Russ., 376; Weston v. 
 
 <io) In llipwell v. Knight, 1 Y. & 0. Ex , Savage. 10 Oh. D . 741. ^ „ ^„ 
 
 416 («) Withvv. Cottle. T. & R., 78. 
 
 (ix) Newman v. Ro^erf?, 4 Bro. 0. C, 391; (b) Dolorct v. Rothschild, 1 6 & S.,59!i See 
 
 Spurrier v Hancock, 4 Ves., 6G7. also Lewis v. Lord Lechniere, 10 Mod., 503 
 
 [y) Patrick V. Milner, 3 C. P. D , 348. See 
 infra, § 1057. 
 
 Jolin.'s Cli., 370, a clause to the effect that if the plaintiff failed in either of his 
 payments the agreement was to be void, was thought to be abundantl}' distinct, 
 and to render time of the essence of the contract. See Mitchell v. Wilson, 4 
 Edw.'s ( h., (>i)7. 
 
 1 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 diminished 
 and injustice might be done, equity will not decree a specific performance. 
 McKav V. Carriugton, 1 McLean, 50. '1 hercfore, in Pillow v. Pillow, 3 
 Humph., G4-4, where it was agreed between a judgment creditor and debtor, 
 that the latter should pav the judgment in land, at a value to be fi.xed by per- 
 sons designated, and the debtor defeated the performance of the agreement 
 until his^land had risen in vahie. it was held that he could not maintain a bill 
 to compel a specilic performance of the agreement. See, also. Holt v. Rogers, 
 8 Pet., 420 And where land lias 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. 3IcKay v. Carriugton, 1 :McLcan, 5U; 
 see .Jones v. Robbins, 20 Me , 351. 
 
 2 "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., 2112), time will be considered as of the essence of a contract. 
 The cases establish that it will Im considered essential in tlie ]-turchase of a 
 house for residence (Levy v. Linds, 3 Mt-r., 81), or of lands or houses tor the 
 purposes of trade (Coslalie v. Till, 1 Russ., 376; Walker v. JeflVeys. 1 Ha., 341),
 
 518 FF.Y ON SPECIFIC PKKFOKMA^CE OF CONTKACTS. 
 
 § 10."51. And so, again, where the object of the contract 
 is a commercial enterprise, the conrt is strongly inclined to 
 hokl time to be essential, whether the contract be for the 
 pnrcliase of land for such jjurpose, or more directly for the 
 prosecution of trade. (c) This principle has been acted on 
 in tlie matter of a contract respecting land which had been 
 purchased for the erection of mills, (cZ) and in several cases 
 of contracts for the sale of public houses as going con- 
 cerns, (e) For the purchaser of a public house presumablj'^ 
 buys it for the purpose of carrying it on, and it would be 
 ruinous to him if he were kept out of it.(/) 
 
 § 105'3. The same principle applies with especial force 
 to contracts relating to mines. The nature of all mining 
 transactions is such as to render time essential: 'for no 
 science, foresight, or examination can afford a sure guar- 
 antee against sudden losses, disappointments, and reverses, 
 and a person claiming an interest in such undertakings 
 ought therefore to show himself in good time willing to 
 partake in the XDOSsible loss as well as profit. (^7) 'So -in 
 several cases time has been held of the essence in contracts 
 for the sale of mines and works. (7^) 
 
 § 105S. Again, where the contract had relation to the 
 supply of coal, and eleven months -were allowed to elapse 
 before filing 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 :(?') and where the 
 contract contemplated the payment of moneys to be applied 
 
 (c) Walker v. Jeflfteys, 1 Ha., 341, 348; gastv. Turton, 1 T. & C C. C , UO, and in 
 
 CoBlake v. Till, 1 Russ., 376, Clegg v. Edmondfion, 8 De G. M. & G., 814. 
 
 (rf) Wright V. Howard. 1 S. & S., 190 (A) Parker v. Frith, 1 S. & S., 199 o.; per 
 
 (e) Senton v. Mapp. 3 Coll., .556 (where the Lord Eldon in City of London v. Mitlbnl, 14 
 
 essentiality of time was arrived at from the Ves., .58; Walker v Jeffrevs, 1 Ha., 341; AUo- 
 
 conditions as well as from the subject- way v. Braine, -26 Beav., 57.5; and of. Eacls v. 
 
 matter); Day v. Luhke, L. R. .5 Eq., 336; Williams. 4 De G M. & G . 674; Clegg v. 
 
 Cowles V. Gale, L. R 7 Ch., 12. .see too Edraondson. 8 ib 787; Uuxham v. Llewellyn, 
 
 judgmentof Hall, V.C.,m Westonv. Savage, 21 W. R.. 570,766; Glasbrook v. Richardson, 
 
 10 Ch D., 741, and Claydon v. Green, L. R. 3 23 W. R., 51; intra, § 1078. 
 C. P., 511. (i) Pollard v Clayton, 1 K. & J., 463; per 
 
 (/) Per James, L. .J., in Cowles v. Gale, L. Lord Re(iesdale iu Crofton v. Orrasby, 2 Sch. 
 
 R. 7Ch,l.-. & Lef,, 604 Cf. Huxham v, Llewellyn, 21 
 
 (g) Per Knight Bruce, L. J,, in Prender- W. R., 570, 766; infra, § 1079. 
 
 in dealing for reversionary interests (Newman v. Rogers, 4 B. C C, 391), or 
 concurrent leases (Carter v. Dean of Ely, 7 Sim., 2lT), 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 
 Ves., 690). where the contract relates to stock in the pul)lic funds (Forrest v. 
 Elwes, i Ves,, 492), or where there is a reference to ar))itrators as to the price 
 (Morse v. Merest, 6 Mad., 27), or where the vendors are an ecclesiastical cor- 
 poration or other fluctuating body. Carter v. Dean of Ely, ubi sup." Batten 
 Spec. Per., 12(3, 127; see Southern Life Ins. Co. v. Cole, 4 Flor., 359.
 
 THE LAPSE OF TIME. 519 
 
 towards obtaining patents, time was from the nature, of the 
 object in view held to be of ^^e essence. (./) 
 
 § 10."5i. So, again, where a contract specified a time by 
 which calls were to be paid up, or in default the shares 
 were to be forfeited ;(^) and where a contract gave an 
 option to be exercised before a certain time to convert loan 
 notes into shares :(Z) in both these cases time was from the 
 nature of the subject-matter of the contract held to he 
 essential. 
 
 § 1055. The case of Macbride v. Weekes(m) is a strong 
 illustration of this principle ; for there the plaintiif by the 
 contract undertook to purchase a field adjoining 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 
 rendering it incumbent on the vendor to use his utmost 
 diligence in completing the contract, and giving the pur- 
 chaser a right to decline completing, if the vendor failed in 
 so exerting himself. In this case the purchaser, after little 
 more than two months had elapsed from the date of the 
 contract, gave the vendor notice that, unless he completed 
 it within another month, the purchaser would rescind, and 
 the time so limited by the purchaser was held to be, under 
 the circumstances, reasonable. 
 
 § 1056. The essentiality of time may also be implied 
 from the surrounding circumstances connected in each case 
 with the particular contract. (?i) Thus where a man pur- 
 chasing a house with the object of immediately occupying 
 it as his own residence stipulated in the contract that pos- 
 session should b§ given on a specified day, and the vendor 
 failed to show a good title by that day, it was held that the 
 stipulation as to time was of the essence of the contract, (o) 
 and the vendor, though he offered actual possession, failed 
 to enforce specific performance, (i?) Possession in such a 
 contract means possession with a complete title previously 
 shown. (^) 
 
 U) Payne V. Banner, 15 L. J. Ch , 227. (w) Per Turner. L. J., in Roberts v. Berry, 
 
 (k) Sparks V. Liverpool Waterworks Co., 3 Ue G. M. & G., 291. «„„♦..„.„ ok 
 
 13 Ves. 428 (o) See Gedye v. Duke of Montrose, 26 
 
 («) Campbell V. London & Brighton Rail- Beav.,4.V t n \ m. r< 
 
 way CO . 5 H. A., .'■>19, 529. (P) Tilley v. Thomas, L R. 3 Ch. 61. 
 
 (/«) 22 Beav., 533, 539; cf. Huxham v. (9) Per Rolt L. J., L R. 3 Ch., 6b. As to 
 
 Llewellyn, 21 W.R., 570,766; and, as to the • possession,' see also Lake v. Dean, 2b Beav., 
 
 notice, infra, § 1062 et scq. •>""•
 
 520 FKY ox SPECIFIC PERFOTJ.MA]NrCp: OF CONTRACTS. 
 
 § 1057. The later case of Webb v. Hiighes(r) is not at 
 variance with this principle, bat illustrates a limitation of 
 it. There, too, the house and land, the subject-matter of 
 the contract, were required by the purchaser for immediate 
 residential occupation, but the conditions of sale after nam- 
 ing a day for comp)letion went on to provide that if, from 
 any cause whatever, the purchase should not then be com- 
 pleted, the purchaser should pay interest on the unpaid 
 purchase-money from that day until the actual completion 
 of the purchase ; and it was accordingly held that, inas- 
 much as parties to the contract evidently contemplated the 
 possibility of the conq^letion being x^ostponed beyond the 
 day named, time was not of the essence. The ratio deci- 
 dendi of this case is obviously applicable whatever the 
 nature of the subject-matter of the contract, and it has 
 accordingly been applied even to the sale of a reversionary 
 interest, {sy 
 
 § 1058. Again, where the members of a company in 
 general meeting agreed to certain conditions on wdiich dis- 
 senting members should be allowed to retire from the com- 
 pany, and one of those conditions fixed a date by which the 
 option to retire was to be declared, the House of Lords held 
 that that date was so essential a part of the arrangement, 
 that the directors had no power to allow any member to 
 
 (r) L. R. 10 PJq., 281. (s) Patrick v. Milner, 2 C. P. D., 342. 
 
 ' ^Mle)•e no time hats been desirjnated.'\ An action for specific performance can- 
 Dot Ijc maintained, where no time has been designated for the performance of 
 the contract. Potts v. Whitehead, 20 N. J. Eq., 55. 
 
 Contracts for the sale of real estate; time not usually "of the essence."'\ In 
 such cases the intent usually is, that the purchase shall be completed within a 
 reasonable time under the surrounding circumstances of the case. Rader v. 
 Nea], Vd W. Va., 374; Chadwell v. Winston, ;3 Teun. Ch., 110; Abbott v. 
 L'Hommedien, 10 W. Va., 677. 
 
 Parol proof that time was "of the esse7ice."'\ In an action for specific perform- 
 ance, parol evidence may be introduced to show that time was to be considered 
 as of the essence of the contract when it was made. King v. Kuckman, 20 
 N. J. Eq., 316. 
 
 When performance icithin a given time material.'] Time is of the essence,, 
 where the other party would be seriously injured by a non-performance within 
 the stipulated time. Doar v. Gibbes, Bailey's Eq., 371. Or, whenever from 
 change of circumstances, a performance, which would alone answer the ends 
 of justice, has become impossible. Pratt v. Low, 9 Cranch, 406; Longworth 
 V. Taylor, 1 McLean, 395; Garnett v. Macon, G Call., 308. See as examples 
 where time was held material, Hipwell v. Knight, 1 Y. & C. Ex., 401; New- 
 man V. Rogers, 4 Bro. C C, 391; Merritt v. Brown, 19 N. J. Eq., 286; Gall v. 
 Archer, 42'^Barb., 320; Edwards v. Atkinson, 14 Tex., 373.
 
 THE LAPSE OF TIME. 521 
 
 retire who had not declared his option within tlie limited 
 time.(^^) 
 
 § 1059. Where hardship would result from considering 
 time immaterial, as where delay in completion would 
 involve one of the jiarties 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 goodwill and business to a purchaser to 
 be completed on the 2otli of Marcl), that day Avas considered 
 essential, inasmuch as if the conti^ict were not then com- 
 pleted, the vendor might render himself liable as tenant for 
 the ensuing jen.v.(u) And so, again, where the body to par- 
 ticipate 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. («)' 
 
 § 1<$60. 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 fairly," said 
 Knight Bruce, V. C, "complain of being held strictly to 
 the conditions themselves * -^ * The plaintiffs' propo- 
 sition is that the purchaser shall be held b}^ a cable, and the 
 vendors by a skein of silk."(?o) Accordingly where it was, 
 by one clause of the contract, provided that the vendors 
 should deliver the abstract to the purchaser within twentj'- 
 one days from the date of the contract, and by another 
 chmse, that the purchnser should send in his requisitions 
 within twenty-eigiit days from the delivery of the abstract, 
 and in this respect time should be of the essence of the con- 
 tract ; and the vendors did not deliver the abstract until 
 more than two months after the date of the contract ; the 
 court refused to hold the purchaser bound to comi')ly with 
 
 (t) Houldsworth v. Evans, L. R. 3 H. L., Ch. D., 589; Roberts v I'errj-. 3 De G. M. & 
 
 263 G., 292 ; St. Leon. Vend , 227 
 
 (?/) Coslake v. Till. 1 Russ., 376; Wells v (ri Carter v DeancfElv 7 Sim . -ni. 
 
 Max^\ell (No. 1), .32 Beav., 408, aflirmed33 I.. (w) Seaton v. .Miipp, 2 Coll., 556, £.64. 
 J. Ch.,44, IIW. R., 842; Gr. en v. Sevin, 13 
 
 ' Dour V. Gibbes, 1 Bailey's Ch., 371; Colcock v. Butler, 1 Dessau., 307, 
 ■where the court refused to tlecree specific performance of a contract for the 
 sale of a house, where there had been a delay of ei;,dit months in completing 
 the house, which had greatly depreciated in the meantime. See .Jackson v. 
 Edwards, 22 Wend., 498.
 
 522 FRY ox SPECIFIC PERFORMANCE OF COTs^TRACTS. 
 
 the stipulation as to tlie time for sending in requisitions, 
 holding that, in such a case, the time for taking the objec- 
 tions, and the mode in ^^■hit■h they are to be considered as 
 waived, should depend upon the general principles of the 
 
 court. (i2^) 
 
 § 1 061 . Where the contract contains stipulations in favor 
 of one party and not of the other,— as, for instance, an 
 option, — or is in 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. (2/) 
 
 2. Time engrafted hy notice. 
 
 § iOOS. Where time was not originally of the essence of 
 the contract, but one party has been guilty of gross, 
 vexatious, unreasonable, or unnecessary delay or default in 
 relation to it, the other party becomes entitled to limit a 
 reasonable time within which the contract shall be perfected 
 by the other ; and in default of obedience to such notice the 
 court will not enforce specific performance, but will leave the 
 parties to their strictly legal rights. (2)' It is to be observed 
 that it is only when such delay or default has happened 
 * that this right occurs. There is no general right in either 
 party to limit a time. 
 
 § 1063. This beneficial principle is of comparatively 
 recent introduction. In a case before Leach, V. C, in 
 1821, he did not consider it to be then decided that time 
 could thus be made essential by subsequent notice ;(a) and 
 where clear notice had been given that a purchaser would 
 insist on completion by the time specified, Lord Erskine 
 had previously refused to consider time as of moment in the 
 contract. (&) But the principle is now well established. 
 
 § 1064. It is not, of course, possible for either party 
 arbitrarily and suddenly to put an end to negotiations as to 
 title, (c) or other matters pending between the parties. The 
 time specified by the notice must be reasonable,' i. e. long 
 
 («) Upperton V. Nickolsoii, L R 6Ch.,436. v. Lamb, 9 Beav., 502; Nokes v. Lord Kil- 
 
 (w) tiMiC inl'ra, § 1073. AS to the exercise of morey, 1 De G & Sm., 444. 
 
 oplionH, see Moss v. Barton, L'. K. 1 Eq , 474 (a) lleynokis v. Nelson, 6 Mad., IS. 
 
 (lease), and Austin v. Tawney, L. K. 2 Cli., (b) Hadclifte v. sVarrington, 12 Ves. 326. 
 
 143 (purchase). (c) Taylor v. Brown, 2 Beav., 180; Green 
 
 (8) Taj lor V. Brown, 2 Beav., 180; Benson v. Seviu, 13 Ch. U., 589. 
 
 ' Wi.swall V. ItlcGowan, 1 Hoff.'s Ch., 125, expresses precisely this principle.
 
 THE LAPSi: OF TIME. 523 
 
 enough foi- tlie proper doing of tlie things required to be 
 done -.ifl) if it be not so (and the question of reasonableness 
 must be determined as at the date wlien the notice is 
 given[e]), the notice will fail in engrafting time into the 
 essence of the contract. Thus, in one case, six weeks, 
 being a "less time than the vendor took to furnish the 
 abstract, were held to be an unreasonably short time for the 
 vendor to insist on the ]iurchaser's completing, and the 
 notice was therefore inoperative ;(/") in another case, four- 
 teen da.ys were held not to be a reasonable time- within 
 whicli to require the plaintiffs to produce a deed' and com- 
 plete the title •,{gy and, in another, Avhere, after negotiations 
 as to the title had been going on for upwards of three years, 
 the purchaser gave notice that, unless a good and market- 
 able title were shown and made out within five weeks he 
 would treat the contract as at an end, the notice was held 
 held unreasonable and bad. (A) 
 
 § 10$lo. But where a vendor has previously refused to 
 remove an objection, a time which would be unreasonably 
 shcn-r in the iirst instance for the removal of it may tlien 
 become a reasonable iDeriod, after which the purchaser nvdy 
 treat the contract as rescinded.r/) 
 
 § 1060. Again, where a noti«e to rescind was waived in 
 case evidence requisite to prove the title was produced im- 
 mediately, the evidence not having been produced, the bill 
 was dismissed.(/) 
 
 § 1067. And the nature of the contract rendering expe- 
 dition obligator}^, may make reasonable a notice Avliich 
 would otherwise be too short. Thus, where A. agreed to 
 grant B. a mining lease, and for that purpose undertook to 
 buy a held adjoining his own, to procure an assignment of 
 
 {d) King V. Wilson. G Beav., 124; but see (No. 1), 32 Beav . 408, affirmed 33 L. J. Ch . 
 
 Jtacbiyde v. Weekes, 2G Beav., 533; supra, § 44, 11 \V. & , 8)2; Oirecu v. seviu, Crawlord 
 
 1055 V. Tuogood, ubi supra 
 
 (e) Crawlord v. Toogood, 13 Ch. D., 153. (//) McMurray v. Spicor. L. R. 5 Eq., 527. 
 
 (/) Pcgg V. Wisden. IG Beav., 2;J9. (i) Nott v. iliccard. 22 lieav., 307. 
 
 {g) Parkin v. Th..rold, 16 Keav , 59 (of S. (j) Stewart v. Smith, G Ua., 22i n. (Leach, 
 
 C, 2 Sim. N. S. 1). .See too Wells v. Maxwell V. C.) 
 
 1 Brashier v. Gratz, 4 Wheat , .528; Rogers v. Saunders, 16 Me., 93; Hatch 
 V. Cobb, 4 .lohu., ooU; Bunuiugtoa v. Israel, 7 Ohio, 97, aud Jacksou v. Logau, 
 3 Leigh, 161, are all cases to tlie ell'ect that a vendor may determine the con- 
 tract by an express notice that he will consider it at an end, unless the default 
 of the vendee be made good by an immediate jiayment; but Higbj' v. Whitaker, 
 8 Ohio. I!l8, is an authority to the effect that the contract may be thus deter- 
 mined, without notice, and when the presumption of abandonment is repelled 
 by actual possession.
 
 524 FRY ON SPECIFIC PERFOKMANCE OF CONTRACTS. 
 
 a term, and do further acts requiring time, and nine weeks 
 elajjsed from tlie contract without any communication from 
 A. to B. to show when the contract was likely to be com- 
 jjleted, and B. then cave A. notice to complete within one 
 calendar month, and in default to rescind the contract ; it 
 was held that the nature of the subject-matter of the con- 
 tract rendered expedition on the part of the lessor essential, 
 and that the month's notice was reasonable. (/»:) 
 
 § 1068. The notice to engraft time into the contract must 
 be distinct, and unequivocal : thus, a notice that one party 
 would consider the non-performance by a certain day as 
 equivalent to a refusal to perform, was held not to amount 
 to a notice that the contract would then be considert^d as 
 rescinded. (?) The notice should, for certainty, be confined 
 to the next act to be done by the party to whom it is given ' 
 
 § 1069. It does not appear to be necessary that the notice 
 should be in writing : for this purpose statements made by 
 the purchaser's agent at the time of signing the contract, to 
 the effect that time was essential, were in one case admitted 
 as evidence, (m) 
 
 3. Lapse of time constituting ladies or emdencing ahan- 
 donmenl' of contract. 
 
 § 1070. The Court of Chancery was at one time inclined 
 to neglect all consideration of time in the specific perform- 
 ance of contracts for sale, not only as an original ingredient 
 in them, but as affecting them by way of laches. (^0 But 
 it is now clearly established, that the delay of either i)arty(o) 
 in not performing its terms on his part, or in not prosecu- 
 
 (fc) Macbryde v. Weekes, 22 Beav., .533. fendant. Whether this makes a difference,. 
 
 (I) It'^ynolds v. Nel.son, 6 Mad., 18. query. See per Knight Bruce, V. , 458. 
 
 {m) Nokes v. Lord Kilmorey, 1 De G. & (n) See supra, § l(i46. 
 
 Sm., 444. In that case the purchaser was de- (o) Rich v. Gale, 24 L. T. (N. S.), 745. 
 
 1 Demand of performance before action for specific pejfoj'mcmce.] The court 
 said lu >bvets v. Andrews, 2 Blaclvl, 27-4, that a demand for conveyance "is 
 hest calculated to .secure the specific execution of contracts, and to prevent a 
 multiplicity of suits. Besides, it may be often a convenience to the purchaser, 
 for a variety of reasons, not to receive the title as soon as he is entitled to it; 
 and he may, therefore, prefer its continuance for some time in the vendor. If 
 lie can obtain the title to which he has a right whenever he may choose to de- 
 mand it, he ought not to complain." See, also, Hubbell v. Van Schoening, 49 
 N. Y., o2(J; Delavan v Duncan, id , 485; Gall v. Archer, 42 Barb., 3---*0; AVnght 
 V. Le Clain, 4 Green (Iowa), 420; Kimble v. Tooke, 70 111., 55o: Crabtree v. 
 Leviugs, 5o id., 52(5; Walker v. Douglass. 73 id., 445; Brown v. Hart, 7 
 Blackf., 429; Bowen v. Jackson, 8 id., 203; Mather v. Scoles, 35 Ind., 1;. 
 Fairbanks v. Dow, 6 N. H., 2(36.
 
 THE LAPSE OF TIME. 525 
 
 ting his right to tlie interference of the court by the institu- 
 tion of an action, or, Lastly, in not diligently prosecuting his 
 action when instituted, (^) may constitute such laches as 
 will disentitle him to the aid of the court, and so amount, 
 lor the purpose of specific performance, to an abandonment 
 on his part of the contract.' 
 
 {p) Moore V. Blake, 1 Ball & B., 62. 
 
 ' 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., 4Uo; Hawley v. Cramer. 4 Cow., 717; e'olemau r. Lyne, 4 Rand., 4:j4; 
 Johnson v. Johnson, 5 Ala., 90; Atwater v. F<>wler, 1 Edw Ch , 417; Rich- 
 ardson V. Baker, 5 Call, 514; Craig v. Leiper, 2 Yerg., 198. But it is said that 
 lapse of time is permitted in equity to defeat an acknowledged 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., yj2; 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, !04; See Larrone v. Beam, id., 498 It seems clear, that where nothing 
 is to be done by one to entitle him to specific performance 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 delaj^ amounting even to apparent negli- 
 gence, maj', it would appear, be explained: and uuder special circumstances, 
 as where there is a difhculty about the title, it presents no bar to relief in 
 equity. King v. Morford, Saxton, 274; Aj'lett v. King, 11 Leigh, 480; Nelson 
 V. t'arrington, 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 excusing the delay. Baker v. 
 Morris, 10 Leigh, 284. In Tate v. Greenlee, 2 Hawks, 486, where the com- 
 plainant w^as married in her infancy, but immediately on the death of her hus- 
 band, asserted her rights, although thirty-five years 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 sufiicient explanation 
 tBat a part of the delay had been occasioned by the mutual agreement of the 
 parties, and the residue, with the exception of three j^ears, by the in.sanity of 
 the complainant's ancestor who made the contract. The bill was sustained, 
 notwithstanding a delay of thirty years. Poverty, however, is no excuse. 
 Perry v. Craig, 3 Miss., 316. 
 
 Rule tchere there lias been considerable delay. '\ In such a case either party? 
 when asking specific performance, must satisfy the court that during the whole 
 time he was ready, and intended to fulfill ; and that the delay was not in order 
 to take advantage of a possible change in value of the property. Tiernan v. 
 Roland, 15 Pa. tSt., 429; see, also, O'Fallon v. Kennerly, 45 Mo., 124. 
 
 Considerable cliamje in value of the property pending delay. 1 The parties will 
 be left to their remedy at law, where they cannot be placed in the situation 
 which they would have occupied had the contract been originally carried out, 
 and the value of the property is ma'^'^'-'^ilv changed. Boston R. R. Co v. Bart- 
 lett, 10 Gray, 384; Brashier v. Gratz, 6 Wheat., 528; McKay v. Carrington, 1 
 McLean, 50; Demorest v. ilcKee, 2 Grant's Pa. Gas., 248; Finch v. Parker, 49 
 N. Y., I; Delavan v. Drum, 49 id., 485; Peters v. Delaplane, id., 362; Cluner 
 V. Saratoga Co. Bank, 47 How. Pr., 376; Callen v. Ferguson, 29 Pa. St., 347;
 
 526 FRY ON SPECIFIC PERFOR:\rANCE OF CONTRACTS. 
 
 § 1071. One of tlie earliest cases tending to establisli tliis 
 principle was Mackreth v. Marlar(7) before Lord Kenyon, 
 M. R. : Lord Loiighboroiigli 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 demanded back his dejDosit at the 
 
 (q) 1 Cox, 259. 
 
 Pickerinii' v. rickeriug, 88 X. H., 400; Ruckiiian v. Cing; 19 N, J. Eq., 360; 
 Jobus V. Norris, 22 id., 102; Pratt v. Carroll, 8 Crancli, 471; Roby v. Cassitt, 
 78 111., G;]8; Jackson v. Edwards, 22 Wend., 498. 
 
 Excuse fo?- delay on the part of tlie veiuUf.?^ Equity will not refuse its aid in a 
 case where tlie vendee has made delay in payments, but such delay has not 
 operated injuiiously, and the condition of the parties is the same as if payment 
 had been promptly made; particularly where a reasonable excuse is made for 
 the default. Loui:;\vorth v. Taylor, 1 McLean, :)9o; Spaulding v. Alexander, 6 
 Bush (Kv). IfiO; Penuock v. Ela, 41 N. II.. 191; Morgan v. Scott, 2(1 Pa. St., 
 51; Galla\^'ay v. Bau. 12 Ohio, 854; Williston v. Williston, 41 Barb., G35; 
 Trimble v. Elliott, Wright, 810; Farris v. Bennett, 2G Tex., 568; Iluljble v 
 Van Schoening, 49 N Y , o2(J; Barnard v. Lee, 97 Mass., 92; Ewens v. Gor- 
 don, 49 N H., 444. In Coulsou v. Walton, 9 Pet. (U. S.), 62, it was held, that 
 in a case where the complainant had made no default, and had made an attempt 
 to enforce his agreement, that a great lapse of time was not a sufficient bar to 
 prevent a court of equity from decreeing specific performance. 
 
 Great delay uneicused, laches.] It is now well-settled, that where there is 
 great unexplained delay on tlie part of any of the parties to an agreement, 
 that this will constitute an abandonment of the same, and wili amount to such 
 laches as will bar a court of equity from decreeing specific performance. An 
 unjustified default is ecpiivalent to a re.sci.sion. Getchell v. Jewitt, 4 Me., 350; 
 King V. Hamilton. 4 Pet , 311 ; De Cardova v. Smith, 9 Tex., 120; Haughwort 
 V. Murphy, 2 K J. Eq., 118; jMnrgan v. Bergen, 3 Neb., 209; Vangant v. 
 Mayor of New York, 8 iiosw., 375; Sarter v. Gordon, 2 Hill's Ch., 121; Lud- 
 low V. Cooper. 13 Ohio, 552; Grundy v Wilson, Lift. Sel. Cas , 129; Higby v. 
 Whittaker, 8 Ohio, 198; Richardson V. Baker, 5 Call., 514; Smith v. Hampton, 
 13 Tex., 459; Hemphill v. Miller, 16 x\rk., 2'\ ; Lawrence v. Lawrence, 2 N. J. 
 Eq., 317; Miller v. Henlan. 51 Pa. St., 265; Childress v. Holland, 3 Ilayw , 
 274; Kerby v. Harrison, 2 Ohio St., 326; Merritt v. Brown, 3 N. J. Hq., 401; 
 Maddox v. McQueen, 8 A. K. Marsh., 400; Gallon v. Ferguson, 29 Pa. St., 247; 
 Dubois V. Baum, 46 id., 537; Marston v. Humphrej', 24 Me, 513; Shortall v. 
 Mitchell, 57 111 . 161; Hough v. Coughlan, 41 id., 131; Hedenburgh v. Jones, 
 73 111., 148; Taylor v. Merrill, 55 id.r52; Fitch v. Harding, 73 id., 114; Alex- 
 ander v. Hoffman, 70 id., 114; Fitch v Willard, 73 id., 92. Where the ven- 
 dor attempts to resell the property, or exercises unequivocal ownership over it 
 unexplained, this will imply an abandonment of the contract. Garnet v. 
 Macon, 6 Call., 308. An action for specific performance was held to be based 
 on the ground that the delay constituted laches Thirty-seven years, Ewing 
 V. Beauchamp, 6 B. Monr., 422; thirty-four years, Tate v. Conner, 2 Dev.'s 
 Eq. , 224; thirty years, Ritson v. Dodge, 33 Mich., 463; twenty years, Baird v. 
 Baird, 5 J J. Marsh., 580; Williams v. Hart, 116 Mass., 518; eighteen years. 
 Johnson V. Mitchell, 1 A. K. Marsh., 225; eight years. Brink v. Steadmau, 70 
 111., 241 In Huffner v. Dickson, 2 Har. 6c Johns., 46, twenty-seven years 
 was held to be no bar in an action for specific performance. 
 
 Specific performance, delay.] A party bought shares in a corporation from a 
 member of a firm and received an authority authorizing a transfer on the books 
 of the corporation. The seller at that time owned a large number of shares. 
 The purchaser delayed for several months in applying for a transfer of his 
 shares, and during the delav all the shares owned by the seller were sold la 
 other parties, who obtained transfers. The shai^es had in the meantime risen 
 in value. Held, that the purchaser could not in equity demand that a member
 
 TPIE LAPSE OF TIME. 527 
 
 date for completion, that there was evidence of an abandon- 
 ment of the contract by the vendor, (r) These cases were 
 approved by Lord Alvanley, M. E. ;(5) and finally the doc- 
 trine in question was adopted and acted on by Lord Eldon : 
 thus, for example, in one instance he on this ground dis- 
 discharged a purchaser under a decree, error having been 
 shown in the decree, though the i^arties were proceeding to 
 rectify it.(^) 
 
 § 1079. The doctrine of the court thus established, there- 
 fore, is that laches on the part of the plaintiff (v/hether 
 vendor or purchaser), either in executing his i)art of the 
 contract or in applying to the court, will del^ar him from 
 relief. "A party cannot call upon a court of equity for 
 specific iierformance," said Lord Alvanley, M. ^.,{u) 
 ''unless he has show^i himself ready, desirous, prompt and 
 eager;" or, to use the language of Lord Cranworth,(«) 
 "specific performance is relief which this court will not 
 give, unless in cases where the parties seeking it come 
 promptly, and as soon as the nature of the case will 
 permit, "(^o) 
 
 § 14^7S. Where the contract is in anywise unilateral, as, 
 
 (r) LlOYd V. Collett, 4 Bro. C. C, 469; Har- (v) In Eads v. Williams, 4 De G. M. & G , 
 
 rington V. Wheeler, 4 Ves , 686^ 691. 
 
 (s) Fordyce v. Ford, 4 Rro. C. 0. 494 (w) See also Alley v. Deschamps,-13 Ves., 
 
 (<) Lochmf re v. Brazier, 2 J & W , 287; 225; Williams v. Williams, 17 Beav., 213; 
 
 Coster V. Turaer, 1 R & My., 311. See also Firth v. Greenwood, 1 Jur. N. S , 866 (VVood, 
 
 Cubitt V. B ake, 19 Beav., 4.54. V. C.) ; Mills v. Haywood, 6 Ch. D., 202. 
 
 (w) In Milvard v. Earl Thanet, 5 Ves., 
 720 n. 
 
 of the firm who sold the shares, but who was ignorant of the trausactiou, 
 should deliver shares of the same character owned by him. Held further, that 
 the purchaser was entitled to a decree for the amount which he had paid for 
 the shares. Winsom v. Fenno, 129 Mass., 405. 
 
 Example of great delay.'] See Holt v. Rogers, 8 Pet. (U. S.), 420. And where 
 there was not only delay, but failure of proof. Col vert v. Nichols, 8 B. Mon., 
 264. 
 
 Belay by consent.'] It will, of course, operate as a defen.se where a party can 
 show that the delay was acquiesced in, or that the other party has accepted a 
 substitute for a literal performance. Hutchinson v. McNutt, 1 Ohio, 14; Koen 
 V. White, Meigs (Tenn.), 358; Mitchell v. Long, 5 Litt., 71. 
 
 Example of waiver of paymend. ] The vendee of real estate was distinctly 
 recognized by the vendor as the owner; said vendee Avas asked to refund a' 
 year's tax the vendor Lad paid for the year subsequent to the time fixed for the 
 completion of the cbntract. Held, that it might be inferred that the time of 
 pajnnent was waived. Mix v. Baldne, 78 111., 213. 
 
 Waiver, where mere Jiad been both delay and depreciation.] The vrrdor ac- 
 cepted payment, and gave a receipt for the same, uotwithsiandir .; U.;;e iiad 
 been delay as to a portion of the payment and depreciation as tc value He'd, 
 that the del-iy was waived. Hale v. Wilkin-?on, 21 Gratt., 75. This case ^ :;s- 
 cited and followed in Ambrobe v. Keller, 22 Gratt., 76".).
 
 528 FKY ox SPECIFIC PEKFOKMANCE OF CONTRACTS. 
 
 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, tlien any delay in the party in whose favor 
 the contract is binding is looked at with especial strict- 
 ness, (.t) On this principle, the delay of a purchaser in 
 deciding whether he will or will not accept the title is an 
 injustice, because tlie 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. (2/)' 
 
 ^ 1074.' So where a railway company agreed to make 
 such crossings as the landowner's surveyor should wiihin 
 one month direct and notify in writing to the company or 
 their engineer, and the surveyor did not give any such 
 direction or notilication until after the expiration of the 
 stipulated time, it was held that the landowner's right to 
 have the crossings made under the contract was lost. (2:) 
 
 § 1075. But where no time has been oiiginally limited 
 within which a tenant's option to have a lease must be 
 exercised, and the landlord has never called upon the tenant 
 to declare his option, mere lapse of time will not preclude 
 the tenant(a) or his assignee(5) from exercising it. 
 
 § 1076. Acquiescence in the breach of a covenant will 
 form a bar to its specific performance in equity, (c) 
 
 § 1077. In many of the cases there has been a general 
 dilatoriness in all the proceedings, so that it is almost 
 impossible to state briefly the actual amount of delay which 
 has been considered to bar the plaintiif ' s right to relief : but 
 some notion of the present doctrine of the court on this 
 point will be gained from the following cases." 
 
 (X) Allen V. Hilton, 1 Fonbl. Eq., 432; (y) Spurrier v. Hancock, 4 Ves., 667, 673- 
 
 Brooke V Garrod, 3 K. & J , 62; Lord Raue- 673 
 
 lagh V. Melton, 2 Dr. & Sm., 27S; Weston v. («) Earlof D rnley v. London, Chatham 
 Collhis, 13 W. R,510. Distinguish Ward V. and Dover Railway, 1 De G. J. &S.,204, 3 
 Wolverhampton Waterworks Co., L. II. 13 ib. 24, L. R 2 H. L 43. 
 Eq., 243, and see Austin v. Tawney, L. R. 2 (a) Moss v. Burton, L. R. 1 Eq., 474. 
 Ch., 143, where the necessity of strict com- (6) Buckland v. FaplUon. L. K. 2 Ch., 67. 
 pliance with the terms of option as to time (c) Harrett v. Blagrave, 6 Ves., 104. 
 was recognized, and held to have been satis- 
 fled. 
 
 ' See, also, Lloyd v. Collet, 4 Bro. C. C, 469; HarriDgton v. Wheeler, 4 Ves., 
 C86; Guest v. Ilomfray, 5 id., 818; Walker v. Jeffreys, 1 Ha., 352; Southcomb 
 V. Bishop of E.xeter, 6 id., 213; Doriu v. Hawey, 15 Sim., 49. 
 
 - Option to jyurchase-l In such a case, delay on the vendee's part will be re- 
 garded with suspicion. The conduct of the party claiming ^he benefit of such 
 a contract will be closely scaned, and the court will exercise its discretion with 
 great care. Allen v. Hilton, 1 Fonbl. Eq., 432; Brooke v. Gauod, 27 L. J. 
 Ch., 226; Estes v. Furlong, 59 111., 298. 
 
 Vendor's delay in giving deed.'] A vendor failed to make title for an unrea-
 
 THE LAPSE OF TIME. 529 
 
 § 1078. In the oldest case of The Marquis of Hertford v. 
 Boore,(<:Z) a delay of fourteen months was not considered a 
 bar to the plaintiff' s bill. But in the comparatively recent 
 €ase of Eads v. Williams, (e) where the contract was for the 
 lease of a coal mine, a delay of three and a half years was 
 considered fatal : in Southcomb v. The Bishop of Exeter,(/) 
 a delay from the 17th of January, 1842, to the 30th of 
 August, 1843, was held to have the same effect : and in Lord 
 James Stuart v. The London and North-western Railway 
 C".,(^) Knight Bruce, L. J., seemed to think that a delay 
 from October, 1848, to July, 1850, must be fatal to such a 
 bill.' 
 
 § 107t>. Where one j^arty to the contract has given notice 
 to the other that he will not perform it, acquiescense in this 
 by the other party, by a comparatively brief delay in 
 
 (d) 5 Ves , 711). Wheeler, 4 Ves., 686; Guest v. Horn fray, 5 
 
 le) 4 De G. M. & G., 674; cf. supra, § 1052. Ves., 818; Thomas v. Blackman, 1 Coll., 301, 
 
 (/") 6 tla.,'213. 313; Sharp v. Wright, 28 Biav., 150; .MOore 
 
 (g) 1 DeG. M. & G.,721; and see also Spur- v Marrable, L. R. 1 Ch. 217. 
 rler V, Hancock, 4 Ves., 667; Harrington v. 
 
 sonable time, aud not until an action had been commenced to recover back the 
 purchase money paid. Held, that where no material change of circumstances 
 was shown, such vendee was not entitled to relief. Anderson v. Fry, 18 111., 
 94; Pratt v. Carroll, 8 Cranch, 471; Cadwalader's App , 57 Pa. St., 153; Tay- 
 lor v. Porter, 1 Dana, 421; Watts v. Woddle, 6 Pet., 3S9; Harris v. Kidwell, 
 7 J. J. Marsh., 382. 
 
 Unreasonable delay. ] The court will not decree specific performance of a 
 contract in favor of a party who has unreasonably delayed the fulfillment of 
 his part of the contract. Jones v. Jones, 11 Phila. (Pa.), 559. 
 
 ' In Strickland v. Fowler, 1 Dev. & Bat.'s 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, 8 Cranch, 503, a delay of tliirty 
 jears was held to be fatal. In Atkin.son v. Robinson, 9 Leigh, 398, twenty- 
 seven years was thought, when spent in sleeping on their rights, sufficient to 
 preclude relief. In Barett v. Emerson, 6 Monr., 607, twenty years' delay was 
 held to constitute laches. In Caruthers v. Trustees of Lexington, 12 Leigh, 
 610, a lottery was authorized in lb02, and the funds realized were expended by 
 1809, most of them passing through the hands of the treasurer, who died in ISIk 
 In 1830 a bill was filed by parties interested, against the repiesentatives of the 
 treasurer, for an account, aud the court refused to entertain the bill, on the 
 ground that it was a stale claim. And in McMillin v. Milliu, 7 Monr., 560, a 
 lapse of five years was held to bar a bill in equity for the specific performance 
 of a parol contract for the sale of land, of which the plaintifl" had not held pos- 
 session. But in Osborne v. Bremar, 1 Dessau , 486, 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-sur ^y pnicl the debt, and, nearly 
 two years afterwards, demanded contribution of the administrator of his co- 
 suritJ^ Held, that the claim was not barred by lapse of time, the administrator 
 having made no payments Jn the mean time except to himself. 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 partner- 
 
 34
 
 530 FRY ON SPECIFIC PERFORMANCE OF CONTRACTS. 
 
 enforcing liis right, will be a bar : so that, in one case(70 
 two years' delayin iiling a bill after such notice, in another 
 case(/) one year's, and in a third(i ) (where the contract was 
 for a lease of collieries) five months' like delay were held to 
 exclude the intervention of the court. 
 
 4. Whe?'e time does not run. 
 
 § 1080. Where the contract is substantially executed, 
 and the pkiintiif is m iDossession of the property, and has 
 got the equitable estate, so that the object of his action is 
 only to clothe himself 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 ;(A-) for the 
 plaintiff has not been sleeping on his rights, but relying on 
 his equitable title, without thinking it necessary to have his 
 legal right protected. (Z). 
 
 § 1081. Therefore, where a tenant holds under a con- 
 tract for a lease, pays his rent, and has possession of the 
 property and the enjoyment of all the benefits given him 
 by the contract, the effluxion of time will not be a ground 
 for resisting its enforcement :(m) and so, where there was a 
 contract 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 paid,— in 
 fact, everything had been done but the execution of the 
 lease, which the defendant had refused to execute on a 
 ground which was untenable,— specihc performance of the 
 lease was granted, notwithstanding considerable laches on 
 
 ih) Heaphy v I] ill 2 S. & S., 29. (k) Per Lord Rosendale InJCrofton v. Orms^ 
 
 (i^ ^Vat^<>n v.Reid, i R & Mv., 236. See, by. a ^ch. & Lef , 604. 
 
 alBO per Lord Romilly, M. R . in Parkin v. {1} See Cartan v. Bury, 10,^ Ir. Ch. R., 395; 
 
 Thorold 16 Beav , 73. and Lehmann v. Ale- Homan v. Sbelton, 11 Ir < h R., 96. 
 
 Arthur L R 3 Cti , 49«. iwi) Clarte v. Moore, 1 Jon. & L.. 723; 
 
 (j) Huxhani v Llewellyn, 21 W. R., 570, Sliarp v. Milligan.22 Reav.,6C6 (affirmed by 
 
 766 See too Glasbrook V Richardson, 23 W. theL. J. J.); Shepheard v. Walker, L. R. 20- 
 
 L., 51 (delay ofS months and 13 days). Eq., 659. 
 
 ship concerns, at an annual salary, and in 1825 the other partner died, but ad- 
 ministration 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, tbe lapse of twenty- 
 seven years is no bar to a bill for the specific performance of a contract. Hatf- 
 ner v. Dickson, 2 Har. &. J., 46. And in South Carolina, it would seem that 
 the court of chancery had established the rule that it will not interfere, unless 
 under very special circumstances, to interpose lapse of time as a bar to a claim^ 
 unless excluded by the statute of limitations. Gi.st v. Cattell, 2 Dessau., 53.
 
 THE LAPSE OF TIME. 631 
 
 tlie part of the plaintiff subsequent to tlie defendant's refu- 
 sal, but therefore without costs. (ti)' 
 
 § 10S2. But possession, to save a purchaser from the 
 usual consequence of delay, must be possession under the 
 contract sought to be enforced, and the vendor must, have 
 known or have been bound to know that the purchaser 
 claimed to be in posession under the contract. Accordingly 
 in a case where the tenant of a tavern, with an option of 
 purchasing it during his term, duly gave notice that he 
 elected to purchase, but after some correspondence allowed 
 the subject to drop, and then for upwards of five years 
 remained in possession without ever insisting on the effectu- 
 ation of the purchase, and from time to time making pay- 
 ments to the lessor" s mortgagee for most of which he took 
 receipts ex[)ressing them to be for rent, it was held by the 
 Court of Ai:^i3eal that his possession had not been such as to 
 prevent his delay being fatal to his claim for sx)ecific per- 
 formance, (o) 
 
 § 1083. Nor will time run as laches pending a negotia- 
 
 (n) Burke v. Smytn. 3 Jon. & L., 193. See, Brophy v. Connolly, 7 Ir. Ch. R , 177; Finu- 
 also, per I.ord St. Leonards iu Rklgwav v. cane v. Turner, 13 Ir Ch. K., 488, 494. 
 Whaiton, 6 H L. C, 292; and consider (o) Mills v. Haywood, 6 Ch. D., 196. 
 
 1 It seems to be well established, in this country, that lapse of time is no ob- 
 jection to a specific performance of a contract to convey land, where the per- 
 son 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 A. pur- 
 chased a lot of land from B., paying one-third of the price and taking posses- 
 sion. B. agreed to give a deed in three mouths, and A. to give a mortgage to 
 secure the balance of the price, which was payable in six and twelve months. 
 B. did not make a deed, nor did A. pay the second installment, but payment 
 was suspended on an agreement that interest should be paid instead. A. elected 
 buildings on the lot, but on learning that the title was contested, he withheld 
 any further paymeuls in 1810. B. recovered possession in 1822, in an action 
 of ejectment. In 1825, A. filed a bill for specific performance. Held, that 
 the parties might be considered as mortgagor and mortgagee, as the defendant's 
 default had prevented them from occup\ ing that position in law ; that the 
 plaintiiT's equity was not extinguished by lapse of time, and that he had not 
 been guilty of such negligence as to cut off liis right to a decree for perform- 
 ance. So, in Waters v. Travis, 9 John., 450, where, by a contract for the sale 
 of land, the vendor Avas to convey at a time specified, and the vendee was, "at 
 the same time," to secure the purchase money, and the vendee took possession 
 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 objec- 
 tion to a decree for specific performance at the suit of the vendee. And again, 
 where A., the owner ol' a survey in 1774, agreed to convey a portion thereof to 
 B., who took, tiud held, pos.session of sucli portion until 1822, when A. never 
 having assigned bis right to .such land to B., nor himself obtained a grant, and 
 having died, his devisee obtained a grant of the whole survey, it was held 
 that the Irpce ( ' *'iT.e was not a bar to a bill by B. against the devisee for a 
 specific performanLe of A.'s contract. Williams v. Lewis, 5 Leigh, G86.
 
 532 FRY ON SPECIFIC PERFORMANCE OF CONTRACTS. 
 
 tion between the parties to the contract, even though it may 
 be carried on without prejudice to a notice given by one 
 party that he hokls the contract rescinded. (i?) But where 
 the negotiation is about a point whicli is not the real cause 
 of the delay, its pendency will not prevent the effluxion of 
 time operating as laches: so where there were two pur- 
 chases, 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, 
 Knight Bruce, V. C, though after some hesitation, refused 
 specific performance, as the plaintiflf in such suits must have 
 more tliat ;i doubtful title. (g) 
 
 § 1084. When the delay arises from an untenable objec- 
 tion taken by one party, that party cannot avail himself of 
 the delay caused by it, as a ground for the non- performance 
 of the contract. (?•) And generally, whenever the delay is 
 attributable to the defendant, he will not be allowed to avail 
 himself of it as a defense. (5) 
 
 § 1085. In Lamare v. Dixon(i^) an intending lessee, rely- 
 ing on a verbal promise by the owner of some wine vaults 
 that they should be made dry, signed a written conti-act to 
 accept a lease of the vaults at a specilied rent, and went into 
 possession. The vaults not being made dry, the tenant 
 constantly complained, and, though he paid rent, always 
 paid it under protest ; until, finally, after having actually 
 occupied the vaults for upwards of two years, he refused to 
 take the lease on the ground that the owner's promise had 
 never been fulfilled. The House of Lords held that the 
 tenant' s payments were referable merely to his actual use 
 and occupation of the premises, that such payments and 
 possession did not amount to such acquiescence as to debar 
 the tenant from defending his refusal on the ground of the 
 non-performance of the i)romise which had been the induce- 
 ment to the contract, and that the owners delay and con- 
 duct in the matter generally disentitled him to insist on 
 specific performance of th^ contract; but the house con- 
 
 (p) Southcomb V. Bishop of Exeter, 6 Ha , (s) Morse v. Merest, 6 Mad., 26; Shrews 
 
 213- McMurray v Spicer, L. K. 5 Eq , 527; bury ami Birmingham llailway (Jo. v. L,on 
 
 and cf Lehman V. McArthur, L. R. 3Ch., don ami Xorth- Western Railway Co., 2 Mac 
 
 5Q4 & G. 324, 355; per I>oril St. Leonards in Jiidg 
 
 (a) Gee v Pearse, 2 De G. & S., 325. way v. Wharton, C 11 L. C, 292. 
 
 (r) Monro v. Taylor, 3 Mac. & G. 713, 723. (t) L. K. 6 H. L , 414.
 
 THE LAPSE OF TIME. 533 
 
 sidered the delay which had occurred so chargeable to both 
 parties that the bill, though dismissed, was dismissed with- 
 out costs. 
 
 § 10S6. The fact that the purchaser has allowed the 
 deposit to remain in the hands of the vendor from the time 
 when the former rescinded the contract until the filing of 
 the bill has been decided not to affect the question of 
 laches. (?/) 
 
 § 1087. So also continuing in possession, if under an 
 arrangement to that effect, will not affect the question. («) 
 
 § 1088. In a case already referred to Lord Romilly, M. 
 R., expressed the 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 rail- 
 way ceased, as the fact whether the company would require 
 the land or not could not be ascertained until that time •,{w) 
 but this view was not adopted by Knight Bruce and Lord 
 Cranworth, L. J. J., who seem to have thought that time 
 would run from the date of the contract. 
 
 § 1089. It is to be observed that a mere claim or protest 
 by words or letters, tliough continual, unaccompanied by 
 any act to give effect to them, will not prevent time operat- 
 ing as laches against the party making the claim, nor keep 
 alive a right which would otherwise be precluded. (^) 
 
 5. Waiver of delay. 
 
 § 1090. Objections grounded on lapse of time are waived 
 by a course of conduct inconsistent with the intention of 
 insisting on such an objection : and in this respect it is 
 immaterial whether time were originally of the essence or 
 subsequently engrafted on the contract. (?/)' 
 
 § 1091. Therefore, where a title is in a state which may 
 cause delay, or a good title has not been completely shown 
 by the day for completion, and tlie purchaser goes on deal- 
 ing about the title after that day, this will waive his right 
 
 (t/) Watson V. Reirt.l R. & My., 236; South- North-Westem Railway Co., 15 Beav., 513; 
 comb V. lUshop of Ex.-ter, 6 Ha., 213, 224. S. C. 1 De G. M. A G.. 721. 
 
 (r) Southcomb v. Bishop of Exeter, ubl (a?) ClepR v. Eilniondson, S De G. M. & G., 
 supra. 787. 810; Lehmann v. McArthur, L. R. 3 Ch., 
 
 (MJ) Lord James Stewart v Lomlon and 490, 604. 
 
 {!/) King V. Wilson, 6 Beav., 124. 
 
 ' Specific performance will be decreed against a party, who, by bis acts, has 
 waived the materiality of time. Rector v. Price, 1 Mis., 373.
 
 534 FRY ON- SPECIFIC PERFORMANCE OF CONTRACTS. 
 
 to insist on the time. (2) So the examination of the abstract 
 after the time will prevent a defendant insisting on time as 
 essential, for he had no right to look into the abstract if he 
 meant to abandon his purchase, (a) And such conduct will 
 amount to a waiver, even though a formal notice to abandon 
 the contract may have been given. (^>) So again, insisting 
 on the contract after the time limited for completion is an 
 act waiving the right to insist on that time as essential. (c) 
 But where a purchaser protests against delay, and then 
 under protest deals about the title, this will not, it seems, 
 amount to a waiver. ((^) 
 
 § 1093. As a general principle, a stipulation as to time 
 cannot be bindingly waived otherwise than by an intentional 
 act, done with knowledge of all material circumstances. Ac- 
 cordingly, in a case already cited, where a railwaj^ company 
 agreed to do certain works to be directed by the award of a 
 surveyor, to be made within a specified time, and the award 
 was not made within that time, the company were held not 
 to have waived the condition as to time by having, in ignor- 
 ance of the fact that the award was made late, taken it up 
 and paid the surveyor's charges for it.((?) 
 
 § 1093. Again, as to time for jDayment : 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 Avitli the notion that the agreement was at 
 an end.(/) In another case there was a contract that if the 
 residue of the purchase money was not paid at a certain 
 day, the contract should be void : it was not paid, but the 
 vendor, allowing the i)urchaser to retain possession and 
 taking from him a warrant of attorney to confess judgment 
 in ejectment, was held to have waived the condition. (^^) 
 
 § 1094. As to the time for the delivery of objections, a 
 subsequent corsespondence as to title was in one case held 
 to work a waiver :(7i) and a similar lesult was in another 
 
 (z) Pincke v. Cxirtis. 4 Bro. C. C, 329. and Dover Railway, 1 De G. J. & S., 204, 3 
 
 (a) Seton v. Slarle, 7 Ves., 265 id 24, L. K 2 H. L., 43. 
 
 (b) Hipwell V. Kniglit, ] Y. & C. Ex ,401. (/) Hudson v. P.artram, 3 Mjid., 440; Webb 
 
 (c) Pegg V. WiBden, 16 Beav.. 239. v. Hughes. L. R. 10 Eq , 2S1. 
 
 (d) Magennis v. Fallon, 3 Moll., 561, 576. (q) Ex parte Gardner, 4 Y. &C. Ex., 5(3. 
 But see St. Leon. Vend , 291. (h) Cutis v. Thodey, 13 Sim., 206. 
 
 (e) Earl of Darnley v. London, Cliatham
 
 THE LAPSE OF TIME. 535 
 
 case held to follow froiri the subsequent renewal of negotia- 
 tion as to price. (/)' 
 
 § 1095. So, again, taking possession after the default as 
 to time may, it seems, i3reclude the objection •.{j) but merely- 
 giving i)ossession before the day for payment has arrived is 
 no Avaiver of a vendor's right to insist upon payment on 
 that day. {Jc) 
 
 § 1096. The mere extension or giving of time, where time 
 is of the essence of the contract, is only a waiver to the 
 extent of substituting the extended time for the original 
 time, and not an utter destruction of the essentiality of the 
 time. And so where, by the terms of a contract for the sale 
 of the benefit of a building contract, a moiety of the price 
 was to be paid on a specified day, and the vendors after- 
 wards by letter gave the purchaser until a later (named) day 
 to make the payment, but the money was not paid by that 
 day, Jessel, M. R., held that time was originally of the 
 essence of the contract, and the letter only a qualified and 
 conditional waiver of the original stipulation ; and that, 
 consequently, the vendors were entitled to treat the contract 
 as at an end.(Z) 
 
 § 1097, It is perhaps scarcely needful to remark, that a 
 waiver as to the time in which an act is to be done, is not 
 necessarily in any degree a waiver of the act itself. So that 
 where it was agreed that A. should repair some warehouses 
 by the first of April, and that B. should then take a lease of 
 them, and the rej^airs 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 execu- 
 ted the warehouses were burned down : it was held that B., 
 though he had waived the essentiality of time, had not 
 
 (i) Elds V. Williams, 4 De G. M. & G., C74. distinctly dissented from the view expressed 
 
 0") IJochm V. Wood, IJ . & W., 420. by LordKomilly, M. K., in ParKin v. Thorold 
 
 (k) See Barclay V. Messenger, 2-2 W. II., 523. (16 Beav., 59), as to the eflVct of a letter ex- 
 
 (i) Barclay v. Alessenger, 22 W. It., 523; 43 tending the lime for completion. 
 L. J. Ch., 449. In this case Jessel, M. R., 
 
 ' What will relieve the vendor of the necessity of execiitinfj a deed.'\ Tbe vcudor 
 need not execute and tender a deed where tbe vendee pcsilively refuses to 
 receive it at the time and phiee agreetl upon. It is the same where the vendee 
 abandons the possession and refuses to take the property. ^laxwell v. Pet- 
 tinger, :{ N. J. Eq., 156; Crary v. Smith, 2 N. Y , tiO. Tlie vendee need not 
 tender tlie purchase price where the vendor notifies liim that lie will not fultill. 
 "White v. Dobsou, 17 Graft , 202; Brown v. Eaton, 21 Minn., 409; Mattociis v. 
 Young, GG Mo., 459.
 
 536 FRY ON SPECIFIC PERFORMANCE OF CONTRACTS, 
 
 waived the condition that the repairs should be effected 
 prior to his taking a lease, and consequently, that the pro- 
 posed lessor A., and not the proposed lessee B., must bear 
 the loss.(w-) 
 
 § 1098. The question whether time was originally of the 
 essence, and whether it has since been waived, is one of evi- 
 dence, and can therefore be disposed of only at the trial. (7i)* 
 
 (m) Counter v. Macpherson, 5 Moo. P. C (.n) Levy v. Llndo, 3 Mer., 81. 
 C, 83 ; and See Hughes v. Jones, 3 De G. F. 
 
 & J., 307. 
 
 ' Mciension of time.] Where delay has been by common consent, and particu- 
 larly where it has occasioned no injury, equity will not refuse specific per- 
 formrnce. Leaird v. Smith, 44 N. Y., 618; Hull v. Sturtevant, 46 Me., 34; 
 Bass V. Gillilaud, 5 Ala., 76; Schroeppel v. Hopper, 40 Barb., 425; King v. 
 Ruckman, 24 N. J. Eq., 356. 
 
 WJiere both parties are in default.} When this is the case, of course neither 
 can complain of non-performance. Crabtree v. Levings, 53 111., 526, 
 
 Default of vendee in payment of purchase money.] The vendee's failure to pay 
 the purchase money upon a particular day, almost always admits of adequate 
 compensation, either by the payment of interest or the imposition of a greater 
 penalty; and where time is not made a definite part of the agreement it is not 
 essential, and will not operate to prevent equity from decreeing specific per- 
 formance. Gibbs V. Champion, 3 Ohio, 335; Magoffin v. Holt, 1 Duvall, J)5; 
 Keeler v. Fisher, 7 Ind., 718; Pinckney v. Hagedoru, 1 Duer, 89; Grouer v. 
 Fisher, 11 111., 666; Hall v. Delaplaine. 5 Wis., 206; Andrews v. Nullivan, 7 
 111., 327; Crittenden v. Drury, 4 Wis., 205; Reed v. Jones, 8 id.. 302; Arm- 
 strong V. Pierson, 5 Iowa, 317; De Arras v. Keyser, 26 Pa. St., 249; Converse 
 v. Blumrich, 14 Mich., 109; Bromier v. Cauldwell, 8 id., 465; Primm v. Bar- 
 ton, 18 Tex., 200; De Camp v. Crane, 19 N. J. Eq,, 106; Shaffer v. Niner, 9 
 Mich., 253; Shouman v. Harford, 55 Me., 197. 
 
 Example of due diligence in attempting to pay purchase money.] Hubble v. 
 Van Schoening, 49 IS. Y,, 326; reversing S, C, 58 Barb,, 498, is an instructive 
 case, as explaining what is deemed due diligence in an attempt to tender the 
 purchase money. 
 
 Delay constituting a " stale equity."] There is no certain rule as to what will 
 constitute a " stale equity;" each case mu.st be decid. d upon its surrounding- 
 circumstances, what has been paid, and any reasonable excuse for delay. Pas- 
 chell v. Hiuderer, 28 Ohio St., 568; Rayner v. Pearsall, 3 John.'s Ch., 578; 
 Atwater v. Fowler, 1 Edw., 417. A delay of fourteen months was excused. 
 Marquis of Hertford v. Boore, 5 Ves., 719; Glover v. Fisher, 11 111., 666. 
 Valuable improvements were made upon land conveyed, and several years 
 were permitted to elapse before an action was brought. Held, that the mere 
 delay was not fatal. Laverty v. Hall, 19 Iowa, 526. Delay, for the following 
 time, was held to be fatal: One year, seven months and thirteen days, South- 
 comb V. Bishop of Exeter, Hare, 213; one year and nine months. Lord James 
 Stuart V. Loudon and Northwestern R. 11. Co,, 1 De G. M. & G., 721; three 
 years and a half, Eads v, William.s, 4 id., 674. The parties differed as to the 
 construction of the agreemement. Held, that a delay of seven years was fatal. 
 Milward v. Earl of Thanet, 5 Ves., 720. 
 
 Waiver.] A party cannot insist on a forfeiture, in a case where he has 
 waived a condition, or treated the contract after default, as continuing in force. 
 Sharp V. Trimmer, 24 N. J. Eq., 422; Morgan v. Herrick, 21 III, 481; Ewins 
 V. Gordon, 49 N. H., 460. Where valuable improvements have been made 
 after default, see Bellamy v. Ragsdale, 14 B. Mon., 364. A tender having been 
 refused on the ground that it was not made in time — held, that the objection 
 could not afterwards be taken that the tender was not made in money. Duffy
 
 THE LAPSE OF TIME. 537 
 
 V O'Don.nvan, 4fl N. Y.. 223; sec. also, Lavcrty v. Moore, 33 id., CIS; v'un- 
 ninL^luun v Brown, 44 Wis., 72; Hcdeiibiirtih v. Jones, 73 111 , 149; Hoyt v, 
 Texburv, 70 id., 331 ; Dittou v. Harding, 73 id., 117; De Wolf v. Pratt, 42 id , 
 19s. The vendor agreed to execute a deed when demanded, and did not make 
 the collection of pai)er, assigned in payment, a condition precedent to the con- 
 veyance of title. Held, that he took the risk of collection, and that the con- 
 tract would be specilically enforced. Smoot v. Rea, 19 iMd.. 3'.)S. AVhere 
 either party shows by his acts that he has waived or abandoned the contract, 
 and particularly where circumstances justify the belief that he intended to 
 perform only in case it suited his interest, in such a case he forfeits all claim 
 to equitable relief. Eastman v. Plumer, 46 N. H., 464- 
 
 No lime fixed for payment, and making titlr.] W^here real property is sold, 
 and there is no 'time fixed either for the payment or delivery of the deed, tlie 
 payment must be made uiion request, or within a reasonable time. Andrews 
 v. Bell, 56 Pa. St., 343. 
 
 Abandonment of tlic contract by vendee.} Any action on the part of the ven- 
 dee which clearly indicates an abandonment of the contract on his part, will 
 deprive him of 'the right to demand the interposition of a court of equity. 
 Finch v. Parker, 49 X."Y., 1 ; Fuller v. Hovcy, 2 Allen, 324; Sprigg v. A i.in, 
 6 J. J. Marsh., 1.58; Brackin v, .Alartin, 3 Yerg., So; Mann v. Dunn. 2 Ohio 
 St., 187; Eflhiger v. McGreal, 31 Tex., 147; Rose v. Swann, .50 111 , :'.71; Lre- 
 iner v. Connecticut. U Ohio, 18'.); Howe v. Rogers, 32 Tex , 218; Bennett v. 
 Welch, 25 Ind., 140; Campbell v. Hicks, 19 Ohio St., 4- 3; Gentry v. Rogers, 
 40 Ala., 442; Weber v. Marshall, 19 Cal., 447; Scott v Barker, 14 Ohio, ;)4/; 
 Broaddus v. Ward, 8 Mo., 217; Patterson v. Martz, 8 Watts. 373; Thompson 
 V. Brueu, 40 111., 125; Green v. Covillaud, 10 Cal., 317; Peck v. Brighton, 09 
 111., 200; Mix v. Bulduc, 78 id., 215. 
 
 GrosH laches; vendor may resell.} Where the vendee of real property has 
 been guilty of gross laches, "the vendor will be justified in reselling the property; 
 this he may do'^ without first making a tender of the money already i)aid him. 
 Mason v. 'Owens, 5(i 111.. 259; see, al.so, Williams v. Starke. 2 B. Monr., 190; 
 Hawthorn v. Bronson, 16 Serg. ct Rawle, 209; Gariss v. Gariss, 2 N. J. Eq.. 79. 
 Failure, to enforce his riffhts of action.] A party must not sleep on his rights. 
 Where a party has risrhts under a contract, it will be a good defense to his 
 action, wheu'finally brought, that he sull'ered an unrea.sonably long time to 
 elapse ^vithout atteinpliug to enforce such rights. This is true, iinless there is 
 some special equity which requires a specific performance. \ an Doreu v. 
 Robinson, 16 N. J. Eq., 250; Preston v. Preston, 5 Otto, 20U; Keller v. Lewis, 
 53 Cal., 113; McLaurie v. Barnes. 72 111.. 73. An agreement was made to exe- 
 cute a mortgage. Held, that a delay of eight years before commencement of 
 the action, Avas fatal. Nelson v. Hagerstown Bank, 27 ]Md., 51. A party paid 
 no taxes, exercised no ownership over an estate, ami asserted no rights under a 
 contract for eleven years, and allowed a subsequent purchaser, without notice, 
 to improve the property. Held, that the delay was such as to bar all claim for 
 relief at equity. Inglehart v. Vail, 73 111., 03: see, also, Conway v. Kins- 
 worthy, 21 Ark., 9; Fitch v. Boyd, 55 111.. ;107; Dubois v. l?aum. 40 la. br. 
 537; King v. Hamilton, 4 Pet., 311. A vendee paid the purchase money, and 
 then slept on his rights for sixteen years, before bringmg his action for specitic 
 perfornuince. HeUl, that the contract could not be enforced, in the absence of 
 any strong equities. Johnson v Hopkins, 19 Iowa, 1 72 A decree was refused 
 where the delay was for seventeen years. Peters v. Delaplaine, 49 N 1 ., 363. 
 And where the delay was eighteen years. Watson v. Inniau, 23 Tex., 031. 
 
 I
 
 638 FRY ON SPECIFIC PEKFORMANCE OF CONTRACTS. 
 
 PART IV. 
 
 OF THE MODE OF EXERCISING THE JURISDICTION. 
 
 CHAPTER I. 
 
 OF THE IIS^STITUTION OF THE PROCEEDINGS. 
 
 § 1099. At the time when the judicature act, 1873, 
 came into operation, tlie usual mode of proceeding in order 
 to obtain the specific performance of a contract was to insti- 
 tute a suit for the pur^^ose by bill of complaint in Court of 
 Chancery. 
 
 § llOO. By the 34th section of the Judicature act, 1873, 
 all causes and matters for the specific performance of 
 contracts between vendors and purchasers of real estates, 
 including contracts for leases, are specially assigned (sub- 
 ject to the rules of the Supreme Court[«]), to the chancery 
 division of the high court of justice. 
 
 § 11©1. Causes or matters for the specific performance 
 of other contracts are not expressly assigned to any par- 
 ticular division of the high court, and may accordingly, it 
 would seem, be instituted, at the plaintifi"s option, in any 
 division, subject to the powers of transfer exercisable under 
 the judicature acts and the rules of court. (&) 
 
 § 1 103. A form of endorsement for the writ in an action 
 for the specific x^erformance of a contract for the sale of land 
 is given in Appendix A. (Part II. § i. 9), to the first sched- 
 ule to the judicature act, 1875. 
 
 § 11 Oil. It is provided by the acts and rules (c) that any 
 action may be transferred from one division of the court to 
 another. Accordingly, where, in an action for the recovery 
 of land commenced in the exchequer division the defendant 
 set up a counterclaim for specific performance of a contract 
 for a lease of the land to himself, and it apx)eared that there 
 
 (a) See Ord. L. I. (c) Jud. Act, 1873, 8. 36; Jud. Act, 1875, 8. 
 
 (b) See Jud. Act, 1873, s. 33; Jad. Act, 1875, 11 ; Ord. L. I. rr., 1, 2. 
 3.11; Ord. L I.
 
 INSTITUTION- OF Till: PKOCEEDINGS. 539 
 
 was ii2yrimd /ac/'e case for specific performance, the actir>n 
 was transferred, on the defendant's ax)plication and against 
 the i^laintiff's will, to the chancery division. (<^) And a 
 similar order was affirmed by tlie Court of Appeal in the 
 case of Holloway v. York,(e) where, the liquidation-trustee 
 of a person who had contracted to purchase real estate hav- 
 ing commenced an action in the exchequer division against 
 the vendor for a return of the deposit, the vendor had deliv- 
 ered a counterclaim for specific performance of the contract. 
 
 § 1104. But a defendant sued in the Queen's Bench di- 
 vision of the court does not become entitled to have the 
 action transferred to the chancery division merely by put- 
 ting in a counterclaim for the specific performance of some 
 contract relating to land between himself and the plain- 
 tiff. (/') The court v.ill, however, take notice of an equita- 
 ble right to specific pei'formance appearing incidentally 
 in the course of an ejectment action, though there be no 
 counterclaim for such performance. (^) 
 
 § 110*3. The determination by the court of questions of 
 law between vendoi's and purchasers of real or leasehold 
 estate, and judicial declarations as to their respective rights 
 under the contract of sale, mny, it is conceived, be obtained 
 upon a si)eciMl case stated in the action. (//^) The court of 
 chancery could not enforce specific performance in a pro- 
 ceeding of this nature ;(/) but under the present practice, 
 where the answers te the special case dispose of the action, 
 they may be turned into a judgment making declarations to 
 the san!e effect. (,/) 
 
 i; 1 iO<5. A convenient mode of obtaining an authoritative 
 decision of questions arising upon some of the class of con- 
 tracts discussed in this treatise has been introduced by the 
 vendor and purchaser act, 1874, under which (section 9) a 
 vendor or purchast^r of real or leasehold estate or their re- 
 spective representatives may at any time apply in a sum- 
 mary way to a judge of the high court in chambers in respect 
 of any requisitions or objections or any claim for compen- 
 
 (d) Hillman v. Mayhew, 1 Ex D., I3i!. deoree for specific performance), and Ord., 
 
 («) 2 Kx I).,:5:>3 XXXI v. 
 
 (/) Sti>rey v. Waddle, 4 Q. B D., 289 (i) See Evans v Saunders, 22 L. T.. 4:5, 51. 
 
 (g) Willidina v. Snowden, \V. N., 1880, 124 T lie pr.>cediire by special case under >ir 
 
 (C. 1'. Div.) George Turner's act {\:i & 14 Vict., c 3'),) is 
 
 (h) Compare Sabin v. Heape, 27 I5eav., .^53, now abolished )Ord.. XXXlV. r. 7). 
 
 661 (where the decision was tantamount to a (j) IIarri-.on v. Cornwall Minerals R:iil- 
 
 way Co., 16 Ch. D., 67, SO.
 
 540 FRY ON SPECIFIC PERFORMANCE OF CONTRACTS. 
 
 satioii or any other question arising out of or connected 
 "with the contract (not being a question affecting the exist- 
 ence or validity of the contract), and the judge is to make- 
 such order upon the application as to him shall appear just, 
 and to order how and by whom all or any of the costs of 
 and incident to the application are to be borne and paid. 
 In very many of the disputes that arise between vendors 
 and purchasers of realty and leaseholds an application 
 under this section is an advantageous and efficient substi- 
 tute for an action for specific performance. (A*) The parties 
 to such an aj^plication are in the same position as they 
 would be under a reference as to title in such an action. (Z) 
 
 A person who has availed himself of the provisions of the 
 act is not entitled afterwards to bring an action for the spe- 
 cific x)erformance of the contract which was the subject of 
 the summons. {'/n) 
 
 § 1107. By the county courts act, 1865, section 1, all the 
 jurisdiction of the Court of Chancery in suits for specific 
 performance(7?) was given to the county courts where the 
 purchase-money did not exceed the sum of £500; and by 
 virtue of the 6th section of the county courts act, 1867, the 
 jurisdiction so given may now be exeicised in all actions for 
 specific performance of any contract for the sale, purchase, 
 or lease of any property, where, in the case of a side or pur- 
 chase, the purchase money, or in the case of a lease the 
 value of the property, does not exceed £500. Apparently, 
 however, the jurisdiction under these enactments is confined 
 to cases where the consideration for the sale is a sum certain. 
 
 g 1 108. Directions are given in the county courts acts of. 
 1865 and 1867 (28 and 29 Vict. c. 99, 10 ; 30 and 81 Vict. c. 
 145, s. 1) as to the particular county court to be selected, in 
 any particular case, for an action for specific performance ; 
 and the details of the practice and procedure in all county 
 court actions are regulated by the county couit rules, 1875 
 and 1876. Every county court has, in dealing with actions- 
 within its jurisdiction, all the i)owers of the high court of 
 
 (k) For cases uiKier this section see lie 774; Drai)er8 Co. v. McCaun, 1 L. R Ir., 13 
 
 Waddell's contract. 2 Ch. I)., 172; Re Cole- (hunimons may be served out of the jiirlsdic- 
 
 nian and .Jnrrom, 4 Ch. D., 165 (where, to tion) 
 
 strengthen the purchaser's title, .lessel, M. (/) In Re Burroughs, Lynu and Sexton, 5 
 
 R., delivered jud)inieritin court; He Popple Ch D..611I. 
 
 and Barratt's contract, 25 W. R., 4S; Ke (»i) Thompson v. Rinpor, 29 W. R. 520. 
 
 Keitrl.yand Clayton's contract, 7 Vh I>.,615; (n) See Wilcox v. Marshall, L. R. 3Eq.,270- 
 
 Ke Metropolitan District Railway Co. & Cosh, (contract for lease). 
 13 Ch. D,,C07; Osborne to Kowle'tt, 13 Ch. D.,
 
 INSTITUTION OF THE PROCEEDINGS. 541 
 
 justice (judicature act, 1873, s. 89) ; and, in a proper case, 
 any action may be transferred either from a county court to 
 the high court, or mce versd^ or from one county court to 
 another, (o) An appeal lies from the decision of a county 
 court judge in an action for specific performance to a divis- 
 ional court of the high court ; but, except by special leave, 
 there is no further appeal. (^) 
 
 i; 1109. The jurisdiction of the high court in cases of 
 specific performance has not been ousted by that conferred 
 by county courts. Though the matter may be within the 
 jurisdiction of the inferior court, a plaintiff is at liberty to 
 bring his action in the high court (subject, of course, to the 
 statutory provisions as to transfer already referred to), and 
 is entitled, if successful, to tiie usual costs of a suitor 
 tliere.(<7)' 
 
 i; 1110. It may here be mentioned that by the land 
 transfer act, 187.3, it has been enacted that (s. 1)3) where a 
 suit is instituted for the specific performance of a contract 
 relating to registered land, or a registered charge, the court 
 having cognizance of such suit may by summons, or by such 
 othei- mode as it deems expedient, cause all or any j^arties 
 who have registered estates or rights in such land or charge, 
 or have entered up notices, cautions, or inhibitions against 
 the same, to appear in such suit, and show cause why such 
 contract should not be specifically performed, and the court 
 may direct that any order made by the court in such suit 
 ^liall be binding on such parties or any of them. Further, 
 by the 94th section of the same act, all costs incurred by 
 any party so appearing in a suit to enforce against a vendor 
 
 (o) 28 & 29 Vict. c. 99, ss. 3, 8, 9, 11; 30 & 31 (q) Scotto v. Heritage, L. R. 3 Eq , '212; 
 
 Vict, c 142, 8 a; Jiid. Act, 1873, a 90. Brown v. Rye, 1.. R. 17 Eq., 343; Carpmael v. 
 
 (p) 28 & 29 Vict. c. 99, 88. 18, 19; Jud. Act, Carvell, 18 vV. U., 513. 
 1873, 8. 45. 
 
 ' Concurrent jurisdiction.'] Equitj' will not assist where the remetly at law- 
 has licen barred by the statute, in cases of concurrent jurisdiction. IJhuichard 
 V.Williamson, 70 111., 647. 
 
 Statute a bar in Neic T<^rk after ten yearn.] " The provisions of the Code re- 
 quiring a written acknowk-dgiuent to take a case out of the statute of limita- 
 tions has effectually destroyed the old doctrine on which courts of equity 
 relieved vendees from forfeitures incurred in couseciueuce of their failure to 
 perform executory contracts for the sale of lands. That doctrine rested on the 
 principle that time was not of the essence of the contract; but now the statute 
 Las interpo.sed an absolute bar after the lapse of ten years." Gilbert, J., in 
 McCotter v. Lawrence, 4 Hun, 107.
 
 542 FRY ox SPECIFIC PERFORM ANCK OF COXTKACTS. 
 
 specific performance of liis contract to sell registered Lind 
 or a registered charge are to be taxed as between solicitor 
 and client, and, unless the court otherwise orders, paid by 
 such vendor, (r) 
 
 § 1111. How far the summary jurisdiction conferred by 
 the 35th section of the companies act, 1802, is properly 
 applicable to the enforcement of contracts for the sale and 
 purchase of shares is a question which has been much dis- 
 cussed, but can hardly be said to be even now satisfactorily 
 settled. That section provides that if the name of any per- 
 son is without sufficient cause entered in or omitted from 
 the register of members of a company under the act, or if 
 default is made or unnecessary delay takes place in enter- 
 ing on the register the fact of any person having ceased to 
 be a member of the company, the person or member ag- 
 grieved may apply by motion or summ<ms for an order of 
 the court, that the register may be rectilied, "and the court 
 may either refuse such application, with or without costs 
 to be paid by the applicant, or it may, if satisfied of the Jus- 
 tice of the case, iriake an order for the rectification of the 
 register, and may dir-ct the company to pay all the costs 
 of such motion, application, or petition, and any damages 
 the party agrieved may have sustained. The court may, in 
 any lU'oceeding under this section, decide on any question 
 relating to t\w title of any person who is a party to such 
 proceeding to have his name entered in or omitted from the 
 register, whether such question arises between two or more 
 members or alleged members or between any members or 
 alleged members and the company, and generally the court 
 may in any such proceeding decide any question that it 
 be necessary or expedient to decide for the rectification of 
 the register." 
 
 § 111:3. The enactment may seem at first sight to offer 
 an attractive and efficient substitute for an action for specific 
 performance incases arising out of contracts for the sale of 
 shares, but the decisions upon it show that its applicability 
 in practice to such cases is by no means universal. The 
 jurisdiction which it confers is clearly discretionai-y ; and, 
 whatever the effect of ihe limited power which it gives the 
 
 (r) See too as to bringing in third parties, Onl, XVI. rr. 17, 10, 21; s-upra, § 168 et seq. 
 
 iUHl § 877.
 
 INSTITUTION OF THE PROCEEDINGS. 543 
 
 court over costs upon the generality of its subsequent 
 language, (5) it seems that the court will at any rate be slow- 
 to exercise this jurisdiction for the purpose of^deciding 
 questions between vendors and purchasers of shares, except 
 where the legal title of the applicant is clear, {t) 
 
 (s) See per Jessel, M. R., in Ex parte Sar- L. R. 5 Eq., 193; Ex parte Sargent, L. R , 17 
 
 gent, L. R. 17 Eq., 276. Eq., 273; Ex parte Shaw, 2 Q. B. D., 463. See 
 
 (0 Ward and Henry's case, L R. 2 Eq., too Buckley, Comp Acts (3a ed.), 81-84. 
 226; 2 Ch., 431; Musgrave and Hart's case,
 
 544 FKY ON SPECIFIC PERFORMANCE OF CONTRACTS. 
 
 CHAPTER II. 
 
 OF INJUNCTIONS. 
 
 ij 1113. It has already been in effect stated(a) that 
 executed, as distinguished from executory, contracts are 
 not witliin the scope of this treatise. The present chapter 
 will accordingly be confined to the consideration of the use 
 of injunctions in connection with contracts of the latter 
 kind. 
 
 § 1114. The jurisdiction of the court in injunction is 
 connected with the specific })erforniance of executory con- 
 tracts in three wa^^s :' — 
 
 (1) Sometimes the injunction is the instrument by which 
 the court specifically enforces the contract itself or some 
 part of it ; 
 
 (2) Sometimes the injunction is merely incident or ancil- 
 lary to the performance of the contract ; and 
 
 (3) Sometimes the injunction is used for the purpose of 
 giving effect to rights resulting from the non-performance 
 of the contract. 
 
 1. Injunction the uistru/nent of performance. 
 % 1115. It is evident that whenever the court grants an 
 injuncticjn restraining the breach of any express or implied 
 
 (a) Supra, § 21 ; cf. §§ 180, 1540. 
 
 ' Injunction ; xcliere lite law would work injustice. ] lu a case when, by fraud 
 or mistake, a party has an advantage in proceeding at law, and which will 
 manifestly make tlie law a sword of injustice, a court of equity will restrain 
 the party where conscience is thus barred from using the advantage he has im- 
 properly gained. In such a case it was said, per curiam : "The only ground 
 upon whicli this testimony can be received to control the legal effect and opera 
 tion of these covenants is the fraud of the party in attempting to enforce them 
 in violation of his agreement. The evidence is regarded as sufficiently certain 
 and clear, in the proof of that contract, that the damages to be paid by the rail- 
 road for their right in the premises were to be divided between these parties in 
 specific proportions, and that no claim was to be made on the grantor on his 
 covenant in this deed for any matter arising out of that negotiation; and evi- 
 dently it was in confident reliance upon this understanding that the grantor 
 neglected so to qualify his covenant tliat no right of action could arise thereon 
 for that matter. Regarding these facts, therefore, as sufficiently proved, and 
 the bill as sufficiently setting up the fraud and asking for rcl'of on that ground, 
 we think the case is brought within the general rule upon which relief is 
 granted." Taylor v. Gilman, 25 Vt., 411.
 
 iisr JUNCTIONS. 545 
 
 term of a contract it thereby jpTO tanto specifically enforces 
 the performance of the contract. (&) 
 
 § 1110. Where the contract contains express negative as 
 well as positive terms, and the positive terms are capable of 
 specific performance by the court, the court may and 
 naturally will enforce by injunction the observance of the 
 negative terms ; for by so doing it promotes the complete 
 performance of the contract as a whole. 
 
 § 1117. Thus where the commissioners of woods and 
 forests contracted with a committee of the united service 
 club for the grant by the commissioners to the trustees of 
 the club of a lease of a specified piece of ground, and further 
 that a specified plot on the south side of this piece of 
 ground should be laid out as an ornamental garden, and no 
 buildings whatever should be erected thereon, and after- 
 wards the commissioners began to build stables on the plot; 
 the court sjDecifically enforced the observance of the negative 
 stipulation by restraining the commissioners from continu- 
 ing to build on the plot and also from permitting such part 
 of the stables as had already been built to remain u^Don it.(c) 
 
 § Ills. But where part of the contract is of such nature 
 as to be incapable of sjiecific performance by the court, a 
 difiiculty presents itself with respect to the court's enforce- 
 ment of any other part of it by injunction. 
 
 For, as we have seen,((^) the court will not, as a general 
 rule, enforce part of an executory contract unless it can per- 
 form the whole ; and, in the case supposed, the grant of an 
 injunction would obviously be tantamount to a merely 
 partial enforcement of the contract. 
 
 § 1119. On the principle referred to in the last preced- 
 ing section, one would exjDect to find the court alwa};s 
 refusing to interfere by injunction to restrain the breach or 
 non-performance of part of an executory contract where the 
 rest of the contract is incapable of, or is not a proper subject 
 for, specific performance : and in fact there are numerous 
 instances of such refusal, (e) 
 
 (6) As to injunctions r?stralning applica- (d) Part III., chap, xvi., §§ 80'2, SU, 833 et 
 
 tions to Parliament, see infra, Part VI., chap. seq. 
 
 ix., § 1567et seq ; and, as to the discretionary (e) See e. g., supra, § isiS et seq., and the 
 
 character of the jurisdiction, see per Lord cases there cited: also Fothergill v. How- 
 
 Westbury in Low v. Innes, 4 De G. J. & S., land, L. R. 17 Eq., 132, cited supra, § S40; per 
 
 29J. I^ord Cottenham in Dietrichseu v. Cabburn, 
 
 (c) Rankin v. Huskissom, 4 Sim., 13 (Shad- 2 Ph., 67; Rogers v. Wllmot, \V. N., 18SJ, 88. 
 
 well, v. C). Cf. Home v. London and North western 
 
 35 
 
 Railway Co., 10 W. R., 170.
 
 546 FRY 01^ SPECIFIC PERFOKMAISXE OF CONTRACTS. 
 
 § 1120. There are, however, cases in which, though the 
 contract as a whole has been such as the court could not or 
 would not specitically enforce, it has nevertheless 'granted 
 an injunction restraining the breach of some express or 
 implied term of it. These cases have already been dis- 
 cussed at length in a previous chapter. (/) It may here 
 be added that whenever, in such cases, a person is com- 
 pelled by injunction to observe some negative term of a 
 contract, the whole benefit of the injunction is conditional 
 upon the plaintiff's performing his part of the contract, 
 and the moment he fails to do any of the acts which he 
 has engaged to do, and which were the consideration for the 
 negative term, the injunction will be liable to be dis- 
 solved. (//) 
 
 § 1121. In connection with the cases referred to in the 
 last preceding section, the old case of Martin v. Nutkin(Z') 
 may be referred to. There articles were executed between 
 the plaintiffs, who resided very near the church of Hammer- 
 smith, and the parson, church wardens, overseers, and some 
 of the other inhabitants of the parish, by which the plain- 
 tiffs covenanted to erect a new cupola, clock and bell to the 
 church, and the other parties covenanted that a bell which 
 had been daily rung at five o'clock in the morning, to the 
 great annoyance of the plaintiff's, should not be rung during 
 the lives of the 2:)laintiffs or the survivor of them : the 
 plaintiffs performed their part of the contract, but the bell 
 after about two years was rung again : the contract on the 
 jDart of the parish authorities was specifically enforced 
 against them by means of an injunction ; although, as Lord 
 St. Leonards remarked in the course of his judgment in 
 Lumley v. Wagner, (/) the court clearly could not have 
 granted any sj)ecific performance. 
 
 2. Injunction ancillary to 'performance. 
 
 § 1122. The jurisdiction of the court in injunction is 
 often ancillary to that in specific performance, for the jour- 
 pose of preventing the defendant making a use of some legal 
 interest or right vested in him in a way inconsistent with 
 
 (/) Part III., chap, xvi., § 833 et seq. fA) 2JP. Wms., 266. 
 
 (g) See per Lord Hatherley (then V. C.) in (i) 1 De G. M. & G., 614. 
 ^ Stocker v. Wedderbiurn, 3 K. & J., 4i)5.
 
 INJUNCTIONS. * 547 
 
 the equity claimed by the plaintiff, or embarrassing the 
 plaintiff by dealing with the property during the pendency 
 of the action, or obstructing the performance of some act 
 incidental to the execution of the contract. "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 decided, and tliat without expressing, and often 
 without having the means of forming, any opinion as to such 
 
 rights. "(./) 
 
 § 1123. In the class of cases now to be considered the 
 
 injunction is therefore granted, upon interlocutory applica- 
 tion and until the trial, on the plaintiff showing a lyrima 
 facie case for specific performance. (A*) It is not necessary 
 that it should be clear that the plaintiff will succeed at the 
 trial : it is sufficient if there is ground for supposing that 
 relief may be given. (Z) For on this application the court 
 will not decide delicate points, (7?z) such as delay, which can 
 only be decided at the trial, {n) 
 
 § 1124. Accordingly, where an intended lessor was sued 
 by an intended lessee for the specific performance of a con- 
 tract to grant a lease, he was restrained from bringing an 
 ejectment during the suit.(o) In another case the plaintiff 
 (purchaser) obtained an injunction to restrain the vendor 
 from conveying awaj^ the legal estate, which might compel 
 the plaintiff to make some other person a party to the 
 suit.(^) In other cases injunctions to restrain sale and sur- 
 render of estates as to which specific performance was 
 sought, were granted on certificate of bill filed and affida- 
 vit, (g) And in another case, an injunction was granted to 
 restrain a purchaser, who had got into possession, from cut- 
 ting timber on the estate. (?')' 
 
 ( j ) Per Lord Cottenham in Great Western land v. Hall, 8 Ves., 92 ; Attwood v. Barham, 
 
 Railway Co. v. Birmingham and Oxford 2 Russ , 186. Distinguish Fox v. Purssell, 3 
 
 Junction Railway Co. 2 Pi)., 602; Cf. Order Sm. &G.,242. 
 
 LIT. rr. 1-3. (p) Echliflf v. Baldwin, 16 Ves., 267. 
 
 {k) Powell V. Lloyd, 1 Y. & J , 427. (?) Curtis v. Marquis of Buckingham, 3 V. 
 
 (^ Hudson V. Bartram, 3 Mad., 440, 447; & B., 168: Spiller v. splller, 3 Sw., 5.56. 
 
 Attwood V. Barham, 2 Russ. , 186. {r\ Crocktbrd v. Alexander, 15 Ves., 138. 
 
 (ni) Price v. Assheton, 1 Y. & C. Ex., 82. Distinguish Marshall v. Watson, 25 Beav., 
 
 (») Levy V. Lindo, 3 Mer., 81. 501, 504. 
 
 (o) Boardman V. Mostyn, 6Ve8.,467; Buck- 
 
 1 Injunction granted.'] The vendee paid the entire consideration for personal 
 property, and, before its delivery, the vendor was about to dispose of it in fraud 
 of vendee's rights. The vendee was insolvent, and great difficulty would have 
 been experienced in replevying the property. Held, that the vendee was enti- 
 tled to an injunction in the nature of specific performance. Parker v. Garri- 
 son, 61 111., 350; see, however, City, etc., Ins. Co. v. Olmstead, 33 Conn., 476.
 
 548 FRY ox SPECIFIC PERFORMANCE OF CONTRACTS. 
 
 § 1135. On the same principle, where the contract was 
 for the sale of a leasehold public house at a fixed price, and 
 of the furniture, fixtures, and other effects on the premises, 
 at a valuation to be made by a valuer named in the con- 
 tract, and the vendor refused to allow the valuer to enter 
 upon the premises for the purpose of making an inventory 
 of the articles to be valued, Jessel, M. R., upon the interlo- 
 cutory application of the purchaser in a suit instituted by 
 him for the specific performance of the contract, made an 
 order compelling the vendor to allow the valuer to enter. (5) 
 "I have no hesitation," said his lordship, "in saying that 
 tliere is no limit to the practice of tlie court with regard to 
 interlocutory applications so far as they are necessary and 
 reasonable applications ancillary to the due performance of 
 its functions, namely, the administration of justice at the 
 hearing of the cause. " (^) 
 
 § lis©. In one case, wdiere the validity of the contract 
 was disputed, Lord Langdale, M. R., refused a motion for 
 an injunction to restrain the vendpr from letting or selling 
 tlie estate pending the hearing, on the ground that a lessee 
 or purchaser ^m^e/i^e lite would take subject to the plain- 
 tiff's rights. (zO ^^^ ii^ another case, where, on the plaintiff 
 (purchaser) making his interlocutory application, it w^as not 
 clear tliat he would be able at the hearing to establish his 
 right to specific performance, the court of appeals refused, 
 on tlie ground of comparative convenience, to restrain the 
 vendor by injunction until the hearing from selling the 
 property in dispute, it appearing that the grant of tlie 
 injunction would, if the iDlaintiff ultimately failed, do more 
 injury to the defendant than its refusal would occasion to 
 the plaintiff should he ultimately be successful. (?)) Turner, 
 L. J., however, in his judgment in the last cited case, dis- 
 tinctly affirmed the general principle that, if there is a clear 
 valid contract for sale, the court will not permit the vendor 
 afterwards to transfer the legal estate in a third person, 
 although such third person would be affected by lis pen- 
 dens. {1.6) 
 
 (s) Smith V. Peters, L. R. 20 Eq., 511. Of. 4 De G. J. & S. 462; Munro v. Wlyenhoe and 
 infra, § 1564 linghthngsea Rai way Co., 4 De Or. J. & S., 
 
 (M) Turner ^Vrlght, 4 Beav., 40. '' w) 3 Oe G. J. & S , 70. where the Lord 
 
 \v\ Hadley v. The London Bank of Scot- Justice also suggests a probable explanation 
 
 land. Limited, 3 De G. J. & S.. 63. *,f. Garrett ot a (seemingly) contrary dictum of Lord 
 
 V Banstead and Epsom Downs Railway Co., El.lon in Spiller v. SpiUer, 3 Sw, 55(.
 
 ijsr J UNCTIONS. 549 
 
 § 1127. It is hardly necessary to remark that the court 
 will not restrain a person who is under contract to buy an 
 estate from buying another, merely on the ground that the 
 completion of the second purchase may incapacitate him to 
 complete the first, (re)' 
 
 § 1128. The court will, in some cases, restrain even third 
 persons, whose rights are independent of the contract, from 
 acting in a manner which would prejudice the plaintiff in 
 respect of the property. For instance, where after a con- 
 tract for the sale of an advowson the incumbent 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 tlie plaintiff . (2/) 
 
 § 1 129. Other cases in which the court has restrained by 
 injunction acts inconsistent with the due performance of 
 the contract have been discussed in a previous chapter. (^) 
 
 § 1 130. The Court of Chancery used to grant injunctions 
 to restrain actions at law for the deposit upon its being paid 
 into court ;(a) and to restrain actions at law for damages 
 for delay in completion ;{b) or in which the defense was a 
 contract between the parties which the court of law could 
 not specifically enforce ;(c) and it had jurisdiction to restrain 
 parties from applying for jn'obate or the grant of letters of 
 administration, and would so restrain them if it were 
 necessary for the purpose of enforcing a contract which 
 they had entered into. (cZ) But whether, in a suit for the 
 specific performance of a contract for a separation deed 
 between husband and wife, it would have been within the 
 province of the Court of Chancery to interfere by injunction 
 to restrain a suit in the court of probate for the restitution 
 of conjugal rights, as incident to the main object of the suit 
 in equity, can hardly be said to have been determined, 
 though it was twice discussed by the House of Lords in the 
 case of Wilson v. Wilson, (e) opiDosite opinions having been 
 
 {a:)Syer8v.BrightonBreweryCo.(Limitecl), 213,226. See too Vlney v. Chaplin, 2 De G. 
 
 13 W. R., 220. & J ., 468 (action tor purchase-money) 
 
 [y) Nicholson V. Knapp, 9 Sim , 326. (c) Waterlovv v. Bacon, L R. 2Eq.,514. 
 
 (2) Part III, chap, xvi., §834 et seq. td) Per Mellish, L. J., in VVilcocks v. 
 
 (n) Foniyce v. Ford, 4 Bro. C C, 494. Carter, L. R. 10 Ch., 444. 
 
 (6) Duke of Beaufort v. Glynn, 3 Sm. & G., (e) 1 H. L. C, 538; S. C. 5 H. L. C, 40.
 
 560 FRY ON SPECIFIC PERFORM A XCE OF CONTRACTS. 
 
 expressed on the point by tlie learned lords by whom that 
 case was decided. 
 
 § 1131. Under the present practice (Judicature act, 1873, 
 s. 24, subs. 5), no cause or proceeding pending before the 
 high court or the court of appeal can be restrained by 
 injunction, but every matter of equity on which an injunc- 
 tion against the prosecution of any such cause or proceeding 
 might, if the judicature act, 1873, had not been passed, have 
 been obtained, either unconditionally or on any terms or 
 conditions, may be relied on by w^ay of defense thereof. It 
 is by the same sub-section enacted that nothing in that act 
 contained shall disable either of the said courts [the high 
 court and the court of apj^eal], from directing a stay of pro- 
 ceedings in any cause or matter piending before it if it shall 
 think fit ; and that any person, wdiether a party or not to 
 any such cause or matter, who would have been entitled, if 
 that act had not been passed, to apply to any court to 
 restrain the prosecution thereof, shall be at liberty to apply 
 to the said courts respectively by motion in a summary way 
 for a stay of j)roceedings in such cause or matter either 
 generally, or so far as may be necessary for the purpose of 
 justice ; and that the court shall thereupon make such order 
 as shall be just. 
 
 § 113^. In other words, the defendant to an action who 
 desires to avail himself of some matter which would form- 
 erly have been a ground for asking the Court of Chancery 
 to restrain proceedings in another court, has now two courses 
 only open to him : — he may plead the matter as a defense 
 to the action, or he may make it the ground of an ai)plica- 
 tion to the court in wiiich the action is pending to stay the 
 proceedings in an action. (/) 
 
 3. Enf or cement of rigid resulting from non-performance. 
 
 § 1133. The court wdll, in a proper case, grant an injunc- 
 tion for the purpose of enforcing a right resulting to the 
 applicant from the non-performance of the contract. 
 
 § 1134. Thus, where a decree had been made declaring 
 that a contract betw^een a railway company and the rector 
 
 (/) Garbutt v. Fawcus, 1 Ch. D., 155; Ee People's Garden Co., 1 Ch. D., 44.
 
 INJUNCTIONS. 551 
 
 of W. for the purchase by the company of certain glebe 
 lands of which the company had taken possession before 
 the institution of the suit ought to be specihcally performed, 
 and that the plaintiff was entitled to a vendor' s lien, and 
 directing the company to pay the purchase-money by a day 
 named, with liberty for the plaintiff, in case of default, to 
 apply for the purpose of enforcing his lien ; and, default 
 having been made by the company, an order had been made 
 for the sale of the lands, but two attempts to sell had proved 
 unsuccessful : Lord Selborne finally ordered that, in default 
 of the company paying the purchase-money with interest 
 and costs into court within a month after service of the 
 order, an injunction should be awarded to restrain them 
 from continuing in possession of the lands. (^) 
 
 § 1135. -With regard to the extent of the court's juris- 
 diction in injunction, it is to be observed that the judica- 
 ture act, 1873, enacts (s. 25, subs. 8) that an injunction may 
 be granted by an interlocutory order of the court in all cases 
 in which it shall appear to the court to be just or convenient 
 that such order should be made, but does not in terms 
 extend this wide power to the grant of injunctions at the 
 trial. It seems, however, that the effect of the above enact- 
 ment, read in connection with the 76th section of the same 
 act and the common law procedure act, 1884 (sections 79, 81, 
 ^2), is to give the court an unlimited power of granting an 
 injunction at any stage of any case where it would, accord- 
 ing to sufficient legal reasons or on settled legal principles, 
 be right or just to do so.{7iy 
 
 (a) Williams v. Aylesbury & Buckingham Lord Nelson v. Salisbury and Dorset June- 
 Railway Co., 21 \V. R., 819; Seton, 1331; infra, tion Railway Co., IC W. R, 1074. 
 6 1149 Dieingulsh Pell v. Northampton and (h) Beddow v. Beddow, 9 Ch. D.. 89, 93; Of. 
 Banbury Junction Railway Co., L. R. 3 Ch , Thomas v. Williams, 14 Ch. D., 8T3 ; aiid per 
 100; Latimer v. Aylesbury and Buckingham Bacon V. O. in Dicks v. Brooks, 15 Ch. D., 25. 
 Railway Co., 9 Ch. D , 385; and consider 
 
 1 Execution.'] Unless the complainant has a good defense at law, and was 
 prevented from availing himself of the same by mistake, suprise or fraud, 
 without neo-lio-ence on his part, an injunction will not be granted to restrain the 
 execution ol a judgment. Hill v. Reifsnider, 46 Md., 555. Where the judg- 
 ment entered is contrary to an express agreement between the parties, an in- 
 junction will be granted. Kent v. Ricards, 3 Md. Ch., 392. A clear agreement 
 was violated. Held, that an injunction would be granted. Reily v. Miami 
 Ex. Co., 5 Ohio, 333. 
 
 Balance of equities. ] In a case where either party may suffer oy the granting 
 or withholding of an injunction, the equitable rule appears to be that the court 
 must balance the inconveniences likely to be sustained, and to grant or withhold
 
 552 FRY ON SPECIFIC PERFORMANCE OF CONTRACTS. 
 
 the injunction according to sound discretion. Gray v. Ohio R. R. Co., 1 
 Grant, 412; Rich.'s App., 57 Pa. St., 105. 
 
 Bakince of proof .] Where the proof is so equally balanced as to leaved the 
 contract in doubt, this will furnish sutlicient cause to deny the applicationfor 
 an injunction. Brown's App., 62 Pa. St., 17. 
 
 Mdndatory injunction.'] The courts grant mandatory injunctions, in this 
 country, with great reluctance. Washington Univ. v. Green, 1 Md. Ch., 97; 
 Audenreid v. Phila. and Read. R. R. Co., 68 Pa. St., 370. 
 
 Covenant not io build ] Land was sold, and a covenant entered into, not to 
 erect a building more than ten feet m height; an injunction was granted to re- 
 strain. Clark V. Martin, 49 Pa. St., 289.
 
 WRIT OF NE EXEAT. 553^ 
 
 CHAPTER III. 
 
 OF THE WRIT OF NE EXEAT. 
 
 § 1136. The Court of Chancery sometimes issued a writ 
 of ne exeat in suits for for specific performance, (a)' 
 
 § 1137. It is conceived that this writ, though not 
 abolished, will in future probably not be often applied for 
 in actions of the kind with which this treatise is concerned ; 
 inasmuch as, under the present practice, it is not likely to 
 be issued except in cases where the party applying for the 
 writ can satisfy the court on all the points on which proof 
 is required by the provisions of the 6th section of the 
 debtors act, 1869 ;(5) under which if the plaintiff in any 
 action in the court in which, before the year 1870, the 
 defendant would have been liable to arrest proves, at any 
 time before final judgment, by evidence on oath to the 
 satisfaction of the judge, that the plaintiff has good cause 
 of action against the defendant to the amount of £50 or 
 ui^wards, and that there is probable cause for believing that 
 the defendant is about to quit England unless he be appre- 
 
 (a) Raynes V. Wise, 2Mer., 47->; Blaydes v. Morris v. McNeil, 2 Rusb., 604; and seeSeton, 
 Calvert, 2 J. & W., 211; Boehm v. Wood, T. 316. 1329. 
 & R., 33-2; Jenkins v. Parker, 2 My. & K., 5; ij>) See Drover v. Beyer, 13 Ch. D , 242, 243. 
 
 ' A complainant is not entitled to a writ of ne e-teat on a bill for the specific: 
 performance of a contract, previous to the time at Avhicli tlie 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 Rivalinoli v. Consetti, 4 Paige, 264; Brown v. Hati", 6 id., 535. It 
 has been laid down that a writ of ne 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. '6. 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, ISy. 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 wheie bail has not been obtained, it 
 will be granted in aid of the action at law. 8. Where the two courts have con- 
 current jurisdiction, and no action at law^ has been commenced, but in a suit in 
 equity mstituted, the removal of the defendant 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.
 
 ,554 FRY OlSr SPECIFIC PERFORMANCE OF CONTRACTS. 
 
 lieuded, and that the absence of the defendant from England 
 will materially prejudice the plaintiff in the prosecution of 
 his action, the judge may order such defendant to be 
 arrested and imprisoned for a period not exceeding six 
 months, unless and until he gives security (not exceeding 
 the amount claimed in the action) that he will not go out of 
 England without leave of the court, (c)' 
 
 (c) 32 & 33 Vict. c. 62, 8. 6; cf. Jud. Act, 1873, s. 76. 
 
 1 Rule in this country.'] This is a writ of right, rather than a prerogative 
 writ. It is only granted in cases of eq\iitable debts and claims. Seymour v. 
 Hazard, 1 John.'s Ch., 1; Forrest v. Forrest, 10 Barb., 46. It is a mesne pro- 
 cess, holding the party to equitable bail; it commands the arrest of the parly if 
 the bail is not furuished. ' Adams v. Whitcomb, 46 Vt., 708. Until the party 
 refuses to give the required security he cannot be restrained of his liberty. 
 Bushuell V. Bushnell, 15 Barb., 309. 
 
 Writ of capias. ] In Samuel v. Wiley, 5 N. H. , 353, it was held that the 
 power of a court of equity independently of any statute to obtain security for 
 the performance of its decree by ordering, by a writ of capias, the arrest of a 
 party intending to leave the State to avoid such decree is analogous to the 
 practice pertaining to the writ of Jie exeat, 
 
 AitMchment.'] The remedy may be by an order, that the party within a given 
 time give security, and upon default an attachment will issue for contempt. 
 Attorney General v. Macklow, 1 Price, 289. 
 
 JVo adequate remedy at laic.'] In order that the writ may be granted it must 
 be affirmatively shown that there is no adequate remedy at law. Orme v. Mc- 
 Phersou, 36 Ga., 571. 
 
 Courts of concurrent jurisdiction.] Such courts will not refuse this writ 
 merely because the plaintiff has a remedy at law. Lucas v. Hickman, 2 Stew., 
 11; Mackdonough v. Gaynor, 18 N. J. Eq , 249. 
 
 Certainty.] The demand must be capable of being reduced to a certainty. 
 Whitehouse v. Partridge, 3 Swaust., 365; Bonesteal v. Bonesteal, 28 Wis., 245. 
 
 Fraud must be sJtoion.] Where this is not done, and the action is not of an 
 equitable nature, this writ will be refused. Malcolm v. Andrews, 168 111., 100. 
 
 Where the contingency might never happen, the writ was refused. Anon., 1 
 Atk., 521. 
 
 Partnership settlements.] The defendant had sold all his ])roperty and was 
 threatening to leave the State; he refused a partnership settlement. Held, that 
 this writ was properly issued. Dean v. Smith, 23 Wis., 488; Myer v. Myer, 
 25 N. J. Eq., 28. 
 
 Rule in Arkansas.] In this State this writ is allowed by statute in cases of 
 executory contracts, and the time for performance has not arrived, if the com- 
 plainant entered into the contract in good faith and without notice on the part 
 of the defendant that he intended to leave the State. Gresham v. Peterson, 25 
 Ark., 377.
 
 RELIEF AFTER JUDGMENT. 655 
 
 CHAPTER IV. 
 
 OF RELIEF AFTER JUDGMEl^T. 
 
 § 1138. It may and not unfrequently does happen that, 
 after judgment has been given for the specific performance 
 of a contract, some further relief becomes necessary, in con- 
 sequence of one or other of the parties making default in 
 the performance of something which ought under the judg- 
 ment to be performed by him or on liis part; as, for 
 instance, where a vendor refuses or is unable to execute a 
 proper conveyance of the property, or a purchaser to pay the 
 purchase-money. The character of the consequential relief 
 appropriate to any particular case will of course vary 
 according to the nature of the subject-matter of the con- 
 tract and the position which the applicant occupies in the 
 transaction ; but in every case the application must, under 
 the present practice, be made only to the court by which 
 the judgment was pronounced, (a) and the multiplicity of 
 legal proceedings which sometimes(5) occurred before the 
 fusion of the jurisdictions of the Courts of Chancery and 
 common law is now practically impossible. (c)' 
 
 (a) Jud. Act, 1873 (36 & 37 Vict. c. 66), 8. 24 722; Ford v. Compton, 1 Cox. 296; Reynolds 
 
 (5) ; xppell. Juris. Act, ISie C39 & 40 Vict. c. v. Xelson, 6 Mad., 29i); Frauk v Basuelt, 2 
 
 59), «. 17. My. &K.,618. 
 
 (6) Plielp« V. Prothero, 7 De G. M. & G., (c; Jud. Act, 1873, 8. 24 (/). 
 
 1 It is well settled that, while proceedings are pending in the court of chan- 
 cery, 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 cotruizable at law. Where equity can do complete justice between the 
 parties,lt will never turn them out of court to pursue their remedy at law. 
 Cathcart v. Itobinson, 5 Pet., 263; Beardsley v. Halls, I Koot, 86G; .Milter v. 
 McCanu, 7 Paige, 457; Chinn v. Heale, 1 Munf., «:{; McHaven v. Forbes. (5 
 How. (Miss ), otiy; 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.'s Ch., 291; Hawley v. Sheldon, id., 420. So where a bill was tiled 
 against^'a mortgagee, who was also lessee of the mortgaged premises, to obtain 
 a1?et-off of the rent against the amount due on the mortgage, the bill was re- 
 tained to compel paynient of the rent, though the plaintiff failed to support his 
 claim of set off. Walcott v. Sullivan, 1 Edw.'s Ch., 339. Again, where, on a 
 bill by a vendor to enforce the specilic performance of a contract for the sale of 
 land, it appeared that by the contract the vendee had the right to relieve him- 
 self 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 clciir, the court, 
 in refusing to decree such specific performance, might decree the payment by
 
 556 FRY ON SPECIFIC PEKFOKMANCE OF CONTRACTS. 
 
 § 1139. There are two kinds of relief after judgment for 
 specific performance of whicli eitlier party to the contract 
 may, in a iDroper case, avail himself. 
 
 ti 1140. (1) He may obtain (^on motion in the action) an 
 order ai)pointing a definite time and place for the comple- 
 tion of the contract by payment of the unpaid purchase- 
 money and delivery over of the executed conveyance and 
 title deeds, (<:Z) or a period Avithin whicli the judgment is to 
 be obeyed, and, if the other party fails to obey the order, 
 may tliereupon either at once issue a writ of sequestration 
 against the defaulting party's estate and effects, (e) or, if the 
 default was in some act other than or besides the payment 
 of money, may move, on notice to the defaulter, for a writ 
 of attachment against him.(/) Indeed, in a case where a 
 person who had agreed to accei)t a lease would not, though 
 ordered by the court to do so, execute the lease, it was held 
 that an attachment was the only means to which the court 
 could resort for enforcing such execution. (/7) 
 
 § 1 141, (2) He may aj^ply to the court (by motion in the 
 action) for an order rescinding the contract. On an appli- 
 cation of this kind, if it appears that the party moved 
 against has positively refused to complete the contract, it& 
 immediate rescission may be ordered : otherwise, the order 
 will be for rescission in default of completion within a limi- 
 ted tmi(i:{k) and the court will decline to order the deposit 
 
 ((Z) Morley V. Clavering, 30 I5eav., 108; Dor- under the Debtors Act, 1869; and Order 
 
 lins V. Evautf, belore Bacon, V. C, 18 July, XLIV. r 2. 
 
 1878 (cited Seton, 132S). (.91 Grace v. Baynton, 25 W. R., 5n6 
 
 (6) Order XLVII. r. 1. Cf. the Debtors (A) Foligno v. Martin, 16 lieav.. 586; Simp- 
 Act, 1869, s. 8. son V. Terrv,34 Beav., 423; Clark v. Wallie, 
 
 (/) .^ee Uule 6 of the Order (7th Jan. 1870), 35 Beav., 4(50; llenty v. Schroder, 12 Ch. D., 
 
 666. 
 
 the vendee of such stipulated sum to the vendor, although the vendor might 
 have received the same at law. Cathcart v. Hobinsou, 5 Pet., 2(i3; Long v. 
 ]\IcMillan, 5 Dana, 484, is an authority of similar nature In that case the de- 
 fendant denied fraud, alleging that through mistake he had not received suffi- 
 cient credit; and it "was held that although the remedy was complete at law, 
 yet, as the subject matter of the bill and cross-bill were connected the court 
 might take jurisdiction. Upon the same general principle, where a note was 
 made payable in the year "one thousand eighteen hundred and thirty-six" by 
 mistake for IH'dQ, it was held that chancery would correct the mistake on a bill 
 for that purpose, and having obtained jurisdiction for that purpose would 
 enforce payment of the note. Savage v. Berry, 2 Scam., 545. And though, 
 chancery will not rever.se the judgment of a court of law, nor decide against a 
 point decided in such court, they will, neveitheless, hear the same subject of 
 controversy upon grounds not litigated at law, either for want of legal testi- 
 mony, s\ipplied in chancery by the party's oath, or because it was a subject of 
 equity jurisdiction only, or perhaps lor other causes, and enjoin the judgment 
 at law; even though the grounds may, at the time of the injunction, be cog- 
 nizable at law, if they were not so considered by the courts of law when the 
 judgment was rendered and the bill brought. Dana v. Nelson, 1 Atk., 252.
 
 RELIEF AFTER JUDGMENT. 557 
 
 to be returned to a defaulting purchaser. (/) An order for 
 the defendant to pay the phiintiff's costs, and a stay of 
 further proceedings in the action, may also be obtained on 
 this motion. 
 
 § 1143. In some cases the order has expressly excepted 
 from the stay of proceedings any application to the court 
 to award and assess damages sustained by the plaintilrs by 
 reason or in consequence of the breach of the contract. 0) 
 
 In Henty V. Schroder, (^O however, Jessel, M. R., declined 
 to make this exception, considering that the plaintiffs could 
 not at the same time obtain an order to have the contract 
 rescinded and claim damages for the breach of it. If this 
 be so, it would seem that in many cases the court must fail 
 to give the iDlaintiff the full measure of relit-f requisite for 
 replacing him in the position in wdiich he stood before the 
 contract, — the payment for instance, of expenses incurred 
 b}^ him in showing his title. 
 
 § 1143. The vendor has in many cases another form of 
 relief open to him after a judgment for specihc performance, 
 in the enforcement of his lien for unpaid purchase-money, 
 with interest and his costs of the action. 
 
 § 1144. ''Although," said Bacon, Y. C.,{1) "the rule of 
 law upon which the doctrine of an unpaid vendor's lien de- 
 pends must be very frequently influenced by the particular 
 circumstances of each case in wdiicli it is said to arise, there 
 is one piain principle which guides and governs its applica- 
 tion in all cases. If it be ex^Dressed, or can be safely and 
 j)roperly inferred from documentary or other evidence, or 
 from the nature of the contract, that it was the intention of 
 the parties that the s?Je or transfer, however absolute in its 
 terms, was subject to the condition that the purchase mpney 
 should be paid, or that the thing contracted to be done by 
 the vendee should be performed, the lien will prevail. If, 
 on the other hand, no such inference can be properly drawn, 
 if the performance of the thing contracted to be done by the 
 vendee was not the condition uj^on which the transfer was 
 made, but the engagement to do the thing was the consid- 
 eration for the transfer, the vendor, having accepted that 
 
 (t) Dunn V. Vere, 19 W. K., 151. (k) 12 Ch. D., 666. 
 
 Ij) Sweet V. Mereaith, 4 Giff.,20T; Watson (l) lu Ke Albert Life Insurance Co., L. B. 
 
 V. Cox, L. K. 15 Eq., 219. See too Corpora- 11 Kq., 178. 
 tlon of Hythe v. East, L. R. 1 Eq.. 630.
 
 568 FRY ox SPECIFIC PEKFOKMAXCK OF CONTRACTS. 
 
 engagement, lias the very thing he bargained for. and can- 
 not say that the consideration has not passed to him. In 
 such cases the lien cannot prevail. The rale I have men- 
 tioned and its application cannot be more pointedly illus- 
 trated nor more clearly explained than in the judgment of 
 lord Cranworth in Dixon v. Gayfere."(m) 
 
 § 1145. Where this lien exists, a vendor obtaining judg- 
 ment for the speciiic performance of a contract for the sale 
 of hereditaments of any tenure may have embodied in the 
 judgment a declaration of the lien, and a clause giving him 
 liberty to apply to the court, in case of need, for its enforce- 
 ment.(n) Then, if default in payment of the moneys pay- 
 able under the judgment by the purchaser ensues, the 
 vendor may have further relief in some or all of the follow- 
 ing ways as occasion may require, viz.: — 
 
 (1) By sale of the propecty. 
 
 (2) By the appointment of a receiver pending the sale. 
 (B) By means of an injunction operating to restore to him 
 
 the possession of the property. 
 
 § 114®. (1) Upon the vendor satisfying the court that 
 the purchaser has made default in payment of the moneys 
 directed by the judgment to be paid, an order will be made, 
 on motion or petition in the action, for the sale(6») by the 
 court of the property comprised in the contract, and the 
 vendor may have liberty to hid.{p) The proceeds of the 
 sale will be directed to be paid into court, and leave will be 
 reserved to the vendor to apply in chambers for pay- 
 ment. (2) 
 
 § 1147. A vendor of land to a railway company is, with 
 respect to his right to such an order, in no different 
 position from any other vendor, and, if the company fail 
 to pay, is entitled to have the land sold, although the rail- 
 
 (m^ 1 re G & J.. 655. See further Mack- Watfoni and Rlckmansworth Railway Co., 
 
 reih V. Symmons. 1.'. Ves. 329. and the note 36 L. J. Ch., 379, an immediate sale was di- 
 
 on thatcase In 1 W. & T. Lead. C. (4ili e<l.), recteu. 
 
 2S9-and cf Mycocli v. Jieatson, 13 Cli D., (o) Munns v. Isle of Wight Railway Co., L. 
 
 3g^' ■ •' R. 5 Ch., 414; Williams v. Aylesbury and 
 
 (n) Hf ath v Metropolitan Railwv C, cited Buckingham Railway Co., 21 W. U., 819; 
 
 Seton 1330- Walker v Ware Hadham and LyceUv.^tHfford and Uttoxeter Railway Co., 
 
 liuntiDKford Railway Co., L. R. 1 Eq., 195; L. R. 13 Eq., 261. 
 
 Vyner v Hoylake Railway Co., 17 W. R.. 92; (j?) Lycett v. .Stafford and Lttoxeter Rail- 
 Wing v. Totenham and Hampstead Junction way Co, L. R. 13 Eq., 261; Warev^Ayles- 
 RallwavCo.,L, R 3Ch.,741; Muuns v.Isleof bury and Buckingham Railway Co., 21 \\ . K , 
 WIeht Railwav Co., L. K. 5 Ch., 414; Bee v. bl9. 
 
 Stafford and Uttoxater Railway Co., 23 W. (5) Vyner v. Hoylake Railway Co., cited 
 
 R. S6S; Keaue v. Athenrv and Enni.s Junction Seton, 1331. 
 Railway Co., 19 W. R.,"43. In Sedgwick v.
 
 RELIEF AFTEIl JUDGMENT. 559 
 
 way may have been actually made and may be ready or even 
 opened for traffic, (r) 
 
 § 1148. (2) Where profit is capable of being made of 
 the property pending the sale, that profit ought to be 
 made. (5) The court Avill accordingly, in a proper case, upon 
 the vendor's application, appoint a receiver of the property 
 and direct the defaulting purchaser to let him immediately 
 into possession. (^) 
 
 § 1149. (0) In a case that came before Lord Selborne, 
 two attempts to sell the subject-matter of the contract — laud 
 of which the purchasers, a railway company, had taken po- 
 session and over which tht^y had constructed their railway — 
 having proved abortive, his lordship, on the application of 
 the vendor, discharged the order for sale and directed the 
 defendants within a month to pay the unpaid purchase- 
 money with interest into court; and the order went on to 
 direct that, in default of such payment into court, an in- 
 junction should be awarded restraining the defendants from 
 running trains over the land and from continuing in posses- 
 sion of the land, and that the vendor should be put in 
 possession of the land.('Zi) 
 
 § 11^0. In a previous case Lord Romillj^ M. R., finally 
 ordered a writ of assistance to issue to put the vendor in 
 possession of the lands comprised in the contract. (^) 
 
 § 1151. Lastly, a purchaser who has obtained a judg- 
 ment in his favor for the specific performance of a contract 
 concerning land may, if for any reason he cannot otherwise 
 get a proper and complete conveyance of the purchased 
 property, apply to the court for an order vesting it in him 
 or appointing some one to convey it to him, with a release, 
 where necessary, of contingent rights. (zo) 
 
 (r) Winjr t. Totenhara and Hampstead ()/) Williams v. Aylesbury and Hucking- 
 
 Junction Railway Co., L. K. 3 Ch , 741; hani Railway Co., 21 W. R , Si9; S. C. (flnal 
 
 Keane v. Athenry and Ennis Junction Rail- order). Scton, 13:il. 
 
 wayCclOW.R 43; Earl of Jersey v. South (v) Vyner v. Iloylake Railway Co., clttd 
 
 Wales Mineral Railway Co., 19 L. T. N. S., Seton. 1331. 
 
 446 {w) Trustee Act, 1850 (13 & 14 Vlct. c 60), 
 
 (s) Per Giffard, L. J., in Munna v. Isle of s. 30. For cases under this section see Seton, 
 
 Wight Railway Co., L. R. 5 Oh., 419. 5'28-o31. The application is usually by sum- 
 
 {t) Munns v Isle of Wight Railway Co , mons. Cons. Onl , XXXV.. r. 1,\4); but in 
 
 L. R. f) Ch., 414; Ware V. Aylesbury and Wellesley v. Wellesloy, 4 l>e G. M. & (j.,537,. 
 
 Buckingham Railway Co. 21 W. R. 819. Dis- the order was niudc on a petition. 
 tinguish Latimer v. Aylesbury and Bucking- 
 ham Railway Co., 9 Ch. D., 385.
 
 560 FRY ON SPECIFIC PEIIFORMANCE OF CONTRACTS. 
 
 PART V. 
 
 OF INCIDENTAL MATTERS. 
 
 • CHAPTER I. 
 
 OF CONDITIONS OF SALE AND rAPvTICULAES. 
 
 § 1 153. The conditions of sale subject to wMch property- 
 is sold constitute part of the contract. Particular con- 
 ditions of sale are considered in several other parts of this 
 treatise. («) But it will be desirable here briefly to state the 
 general principles upon which the court acts in construing 
 conditions. 
 
 § 11*53. It is to be observed, in the first place, that the 
 circumstances connected with the title and character of the 
 property are, of course, in the knowledge of the vendor 
 rather than of the purchaser ; and secondly that, subject to 
 any stipulation to the contrary in the contract, the legal right 
 of a purchaser is to have a good title, according to the rules 
 laid down in the vendor and purchaser act, 1874, and an 
 estate free from all incumbrances ;{b) and, therefore, that 
 conditions tending to give the purchaser less than this are 
 in restraint of a legal right, (c) 
 
 § 1154. Proceeding on these principles, the courts have 
 held that it is incumbent on the vendor to express himself 
 wdth reasonable clearness, and, in the case of sales by 
 auction, so to state his plans, particulars, and conditions of 
 sale as to convey clear information to the class of persons 
 who ordinarily frequent auctions. (cZ) If the vendor uses 
 terms reasonably capable of misconstruction or ambiguous 
 w^ords, the purchaser is not bound to take on himself the 
 
 (a) E. K. §§ 11123 et seq. (rescission), 1046 et to title, see Jones v. Clifford, 3 Ch. D., 779; 
 
 seq (tinie"l 2114-31 and 1251-Gl (compensa- Wadclell v Wolle, L. R. 9 Q. B., 515; and 
 
 tion), 1287-97 (title). See, also, St. Leon, infra, § 1287 et seq. 
 
 Vend ch i 8 2. (d) Gibson v. d'Este, 2 Y. & C. C. C, 542, 
 
 (6) Phillips V. Caldcleuqh, L. R. 4 Q. B., 558-9; Dykes v. Blake, 4 Bing. N. C, 463, 476. 
 
 159; (iatayes V. Flather, 34Beav.,38S. See, too, per Lord Westbury m Cordiugley 
 
 (c) As to conditions precluding inquiry as v. Cheeseborough, 4De G. F. & J., 381.
 
 CONDITIONS OF SALE AND PAETICULABS, 561 
 
 peril of ascertaining the true meaning of the statement, (e) 
 "but may generally construe it in the manner most advan- 
 tageous to himself :(/) and it may be gathered from the 
 case of Taylor v. Martindale(,^) that, where a condition of 
 sale is so obscurely worded that, taken in connection with 
 the particulars, it is likely to mislead an ordinary person as 
 to the nature of the property, the court will on that ground 
 alone, and even on the argument of a summons to vary the 
 certificate as to title, discharge a purchaser from his 
 bargain. 
 
 § 1155. The case of Torrance v. Bolton(7i) affords a 
 notable illustration of this principle. There the adver- 
 tised particulars described property about to be offered for 
 sale as an absolute immediate reversion of a freehold estate, 
 to fall into x)ossession on the death of a lady in her 70th 
 year, and no conditions of sale were issued, but just before 
 the auction the auctioneer's clerk read out from a manu- 
 script a string of conditions, in one of which the property 
 was stated to be [subject to three mortgages, and it was 
 stipulated that the purchaser should take a conveyance 
 subject to them. On the purchaser proving that he bought 
 without distinctly hearing or understanding the effect of 
 this condition, it was held by the court of appeals in 
 chancery that he was entitled to have the contract rescinded, 
 on the ground that the description in the j)articulars was 
 misleading, and onus was therefore on the vendor to show 
 (which he failed to do) that the purchaser was not actually 
 misled. 
 
 § 1156. Again where, on a sale by auction in four lots 
 of leaseholds in Liverpool, it appeared from the particular 
 and conditions that three of the four lots were held under 
 the corporation, upon whose leases there is usually only a 
 nominal rent reserved ; ^and as to the fourth lot, the par- 
 ticular stated the rents at which the houses comprised in it 
 were underlet, and that it was subject to a mortgage for 
 £500, but by an accidental slip neither particular nor con- 
 dition mentioned the fact that the lots was subject to a 
 
 (e) Martin v. Cotter, 3 Jon. & I.., 496; (£j) 1 Y. & C. C. C, 658. Cf. Jones v. Rim- 
 Graves V. SVilson, 25 Beav., 29U. Cf. Torrance nier, 14 Oh. D., 588. 
 V. Bolton, L. R. S Ch., US. (ft) L. R. 8 Ch., n9. Cf. Re Arnold, 14 Ch. 
 
 (/) Seaton v. Mapp, 2 Coll., 556. See, too, D., 27C, 
 <5eoghegan v. Connolly, 8 Ir. Ch. R., 598, 603; 
 Gardiner v. Tate, I. R. 10 C. L., 460. 
 
 36
 
 562 FRY ON SPECIFIC PERFORMANCE OF CONTRACTS. 
 
 ground rent of £43, 175. Q>d. ; upon the purchaser of this 
 lot applying to be discharged from his purchase, deposing 
 that he had bought under the belief that the property was 
 not subject to any ground-rent, it was held that he was 
 entitled" to be discharged with costs. (/) ' ' The real question 
 J think," said Jessel, M. R., "is, is this a fair particular ; 
 is it one in which a purchaser is told wiiat he has to buy, 
 so as to enable him to form an idea of the value of the 
 thing to be purchased. * * * No doubt the purchaser, 
 if he had been a careful purchaser, would have inquired. 
 But is it for the vendor who sends out such a statement as 
 this of the nature of the property to say that the purchaser 
 only was careless ? I think the vendor also was careless. 
 It cannot be said to be a fair mode of drawing a particular 
 of sale of leasehold houses subject to a ground-rent of £43 a 
 year, to say nothing about the rent." (J) 
 
 § 1157. So where there was an ambiguity as to whicb 
 of tw^o leases was referred to, the purchaser's construction 
 w-as admitted by the court, and the bill dismissed. (^•) So a 
 condition that no title should be called for prior to a lease 
 was not held so explicit as to preclude inquiry into dealings 
 with the contract for the lease wiiich had taken place prior 
 to its being granted. (Z) And where a vendor selling a 
 reversionary estate stipulated that a statement in a deed of 
 1836 that a life annuity had not been paid for eight years, 
 and a declaration by the vendor that no claim had been 
 made on him since 1841, and that he believed the annuity 
 had not been claimed for the last twenty years, should be- 
 conclusive evidence that the annuity had determined ; and 
 it appeared that the annuity w^as granted by a person 
 entitled only in reversion, and was granted for the life of 
 the survivor of four persons ; it was held that the descrip- 
 tion of it as a life annuity was likely to lead to the belief 
 that the annuity w^as for one life only, and that the omission 
 to state the facts disentitled the vendor to specific per- 
 formance, (m) And so, again, where property sold was 
 described as subject to articles of agreement, bearing date 
 1804, for a lease for four lives and one year, and in fact the 
 
 (i) Jones v. Rlmmer, 14 Ch. D., 588. (I) Rhodes v. Ibbetson, 4 DeG. M. & G., 787. 
 
 (j) 14 Ch. D., 591, 592. See Sheard v. (m) Drvsdale v. Mace, 2 Sm. & Gif., 225, 
 
 Tenables, 15 W. R., 1166. affirmed '5 De G. M. & G., 103; cf. Geoghegan. 
 
 (ft) Seaton v. Mapp, 2 Coll., 556. v. Connolly, 8 ir. Ch. R., 598.
 
 CONDITIONS OF SALE AND PAKTICULARS. 563 
 
 terms of the agreement were such that the lives were not 
 named until 1845, this was considered so ambiguous as to 
 amount to an objection to the performance of the con- 
 tract. (?i) 
 
 § 1158. In Phillips v. Caldcleugh(o) the plaintiff con- 
 tracted to buy a house, described in the particulars as "a 
 freehold residence," subject to conditions, one of which was 
 that the abstract should commence with a conveyance 
 of April, 1860, and no objection should be taken in respect 
 of the prior title, and another provided that if any error 
 should appear to have been made in the particulars it should 
 not annul the sale. The abstract of the deed of April, 1860, 
 showed it to have been a conveyance of the property, sub- 
 ject "so far as the same premises were subject thereto," to 
 the (unspecified) covenants and conditions on the guarantee' s 
 part contained in an indenture (not abstracted) of March, 
 1850. It was held that, the property having been sold as 
 freehold, neither of the above conditions protected the 
 vendors from explaining what these covenants and con- 
 ditions were, and showing that the property was unincum- 
 bered by them. 
 
 § 1159. The inclination of the courts to construe con- 
 ditions of sale strictly is shown by many other cases, (p) 
 but, perhaps, it is not more strongly illustrated by any than 
 one at the rolls, where, on a sale of leaseholds, one of the 
 conditions stipulated that the possession under the lease 
 should be deemed conclusive evidence of the due perform- 
 ance, or sufficient waiver, of any breach of the covenants in 
 the lease up to the completion of the sale : Lord Romilly, 
 M. R., held that this condition covered all breaches up to 
 the date of the contract, but not a breach between the con- 
 tract and completion for which the lessor was entitled to 
 enter, and that notwithstanding the express words "up to 
 the completion of this sale."(§')' 
 
 (n) Martin v. Cotter, 3 Jon. & L., 496. See, Nowell, 25 L. J. Ch., 709 (Kindersley, V. C ); 
 
 too, Gardiner v. Tate, I. K. 10 C. L , 460 Brumflt v. Morton, 3 Jur. N. S , 1198 (Stuart, 
 
 where an equitable interest was described in V. C.); Cox v. Coventon, 13 Beav., 378; 
 
 language w^ich might naturally be read as Russell v. Harford, L. R. 2 Eq, 507 (construc- 
 
 iniporting a legal interest. tlon of condition as to rights of water and 
 
 (o) L. R 4Q. B.,159. easements-), cf. Brooks v. Drysdale, 3 O. P. 
 
 (])) Southby V. Hutt, 2 My. & Cr , 207; D, 52 (construction of the word " covenant " 
 
 Symonds v. James, 1 Y. & C. C. C, 487; In a contract for sale); and .'^ee §§1296,1297. 
 
 Adams V. Lambert, 2 Jur., 1078; Cruse v. (q) Howell v. Kightley, 21 Beav., 331. 
 
 ' Dykes v. Blake, 4 Bing. (N. C), 463, is a case in point. There several lots 
 were sold by number. The plaintiff purchased lots Nos. 13 and 13. In lot
 
 564 l-llY ON SPECIFIC PERFORMANCE OF CONTP.ACTS. 
 
 § 1160. Again, wliei-e one of the conditions stipulated 
 tliat all objects should be delivered within fourteen daj^s 
 from the delivery of the abstract, and another that "if the 
 purchaser shall fail to comply with these conditions his or 
 her deposit shall be tliereupon actually forfeited to the 
 vendors ;" and after the expiration of the fourteen days 
 the purchaser delivered an objection showing a fatal defect 
 in the title ; the ground upon which the majority of the 
 court proceeded, in holding him entitled to recover his 
 deposit, was that the latter condition did not apply to the 
 case of vendors unable to give a good title. (r) 
 
 § 1161. Where on the sale of leaseholds, the conditions 
 provided that the purchaser should have possession on the 
 14th of November, all outgoings up to that day being cleared 
 by the vendors, the purchaser was held to be entitled to 
 insist that an apportioned part of the current rent from the 
 last quarter-day to the 14th of November was an " outgo- 
 
 (»•) Want V. Stallibross, L. R. 8 Ex., 175. 
 
 No. 7 there was a reservation to the occupants of that and other lots, of a car- 
 riage-way and foot-path, over lot No. VS; but the plans and particulars did not 
 show any such right of way : the lease of lot No. 7 not being .at the place of 
 sale, although referred to by the descriptions and particulars. It was held that 
 the plaintiff might rescind the contract in toto, the agreement being entire. 
 See, also, Adams v. Lambert, 2 Jur., 1078; Judson v. Wass, 11 John., 526. And 
 a vendor will be held to make good his descriptions and particulars uncontrolled 
 by verbal statements made at the time of the sale by the auctioneer. Gurmis v. 
 Erhart, 1 H. Bl , 289; Olgivie v. Foljambe, '3 Aleriv., 53; Rich v. Jackson, 4 
 Bro. C. C, 514. But it seems that declarations so made are admissible as evi- 
 dence to explain the written terms of the conditions of sale : and they were so 
 admitted in Cannon v. Mitchell, 2 Dessau., 320, where it was stated publicly by 
 the agent of the vendor, at an auction sale of two tide mills, and also by the 
 auctioneer, that the stream upon which the mills were situated was to be kept 
 open for the use of both, although the written terms of sale contained no such 
 statement. It has been said that an estate cannot be too minutely described in 
 the particulars: for although it is impossible that all the particulars relative to 
 the quantity, situation, etc., should be so specifically laid down as to call for 
 some allowance when the bargain comes to be executed, yet, if a person, how- 
 ever little conversant with the actual situation of his estate, will give a descrip- 
 tion, he must be bound by that, whether conversant with it or not. Although 
 it is not to be supposed that no care or diligence is required of the purchaser. 
 If every nice and critical objection be admissible, and sufficient to defeat the 
 sale, it would greatly impair the eflScacy and value of public judicial sales; and, 
 therefore, if the purchaser gets substantially the thing for which he bargained, 
 he may generally be held to abide by the purchase, with the allowance of some 
 deduction from the price by way of compensation for any small deficiency in 
 the value, by reason of the variation. Pars. Contr., vol. 1, p. 415, note (t). 
 See Foley v. McKeon, 4 Leigh, 627. It appears, further, that any declaration, 
 in the terms of the sale, that such sale shall not be avoided by any misdescrip- 
 tion of the property, on the part of the vendor, will be without effect, and the 
 contract may be rescinded, if the variation is of moment. Duke of Norfolk v. 
 Wortley, 1 Camp., 237; Stewart v. Alliston, 1 Mer., 26; see, also, Robinson v. 
 Musgrove, 3 Mood & Rob., 92; see post, g 803.
 
 CONDITIONS OF SALE AND PARTICULAES, 565 
 
 ing" within the meaning of the conditions. (5) And a 
 stipulation tliat purchasers are to receive "all rents and 
 profits'' from the day fixed for completion has been held to 
 entitle them to an occupation rent from the vendors, on the 
 latter remaining in possession after that day.(^) 
 
 § 1162. Thn court, construing conditions thus strictly, 
 will not by implication extend the terms of one condition 
 so as to enlarge another beyond what it actually expresses. 
 In the case of Southby v. 'H.utt,{u) the interpretation of con- 
 ditions in this respect was fully considered. There, by the 
 conditions of sale, the vendor agreed to deliver an abstract 
 and deduce a good title, except as to part of the estate 
 acquired under an inclosure, as to which he was not to be 
 required to go back beyond the award ; and by a subse- 
 quent condition it was stipulated that the vendor should 
 deliver to the largest purchaser all deeds in his custody, but 
 should not be required to produce any other deeds than 
 those in his possession and set forth in the abstract : and it 
 was held that the latter condition did not so affect the 
 former as to entitle the vendor to insist on verifying his 
 abstract only so far as could be done by deeds in his jdos- 
 session, but that the purchaser was entitled to a general 
 verification. And so a condition that certain specified deeds 
 only should be given up, does not limit the title to be shown 
 to that disclosed by these deeds. (?^) 
 
 § 1163. On the same principle of strict construction, 
 where (as commonly hapjDens), there is a condition that all 
 objections to the title are to be taken within a specified num- 
 ber of days from the delivery of the abstract, or to be 
 deemed waived, and that time shall, in that respect, be of 
 the essence of the contract, the time will not begin to run 
 against the purchaser until the vendor has delivered a per- 
 fect abstract, (zo) 
 
 § 1164. It is a natural principle of interpretation, that a 
 vendor shall never be allowed to avail himself of the con- 
 ditions of sale for the purpose of acting fraudulently. The 
 court requires good faith in conditions of sale, (a?) Accord- 
 
 (s) Laws V. Gibson, L. R 1 Eq., 135. {v) Dick v. Donald, 1 Bli, N. S 655. 
 
 («) The Metropolitan Railway Co v. De- (to) Hobson v. Bell, 2 Beav., 17; Want v. 
 
 fries, 2 Q. B. D., 189. 387. 8talUbra?8, L. R. 8 Ex., 175; Cf. Re Jackson 
 
 (u) 2 My. & Cr , 207; Osborne t Harvey, 7 and Oakshot, U Ch. D. 851. 
 
 Jur., 229 See also Gabriel v. Smith, 16 Q. (a;) Per TurBer. L. J., in Dimmock v. Hal- 
 
 B., 847; and cf. Lord Westbury's judgment lett, L. R. 2 Ch., 28. 
 In Cordingley v. Cheeeeborough, 4 De G. h\ 
 &J.,384et seq.
 
 566 FRY ON SPECIFIC PERFORMANCE OF CONTRACTS. 
 
 ingly a condition for compensation will not apply where 
 there has been misrepresentation ;(?/) and under a condition 
 giving the vendor a power of rescission in case of any ob- 
 jections to the abstract, he will not be permitted fraudu- 
 lently to deliver an imperfect abstract to which objections 
 would necessarily be taken, and thereupon avail himself of 
 his fraud to avoid his contract by means of this condition. (2) 
 So it seems that a condition as to objections to title being 
 delivered by a certain time, would not apply where there 
 had been misrepresentation ;(<x) and a condition not drawn 
 bo7id fide, but intended to cover difficulties arising from 
 facts uncommunicated, will not preclude the purchaser from 
 taking the objection which it is designed to guard against. (&) 
 § 1165. Further, though there may have been neither 
 fraud nor misrepresentation on the vendor's part, the court 
 will be slow to allow him to get rid of an inconvenient but 
 legitimate requisition by means of a condition giving him a 
 power of rescinding the contract. Thus, where a vendor 
 contracted to sell leasehold property under a bona fide belief 
 that there was no charge upon it ; and the condition of sale 
 provided that, for the purpose of any objection or requisi- 
 tion, the abstract should be deemed to be perfect if it 
 supplied the information suggesting the same : the abstract 
 delivered contained nothing showing or suggesting the 
 existence of any incumbrance, but during the investigation 
 of the title it was discovered that there was in fact a mort- 
 gage on the property, which the purchasers thereupon 
 required the vendor to discharge : it was held that, under 
 the circumstances, the vendor was not entitled to rescind 
 the contract under one of the conditions, which in terms 
 empowered him to do so in the event of the purchasers 
 insisting on any requisition which the vendor should be 
 unable, or on the ground of expense should decline, to 
 remove or comjoly with.(c) . 
 
 § 1166. A condition of sale may, of course, without any 
 intentional fraud or misrepresentation, be in fact misleading 
 or erroneous. It will be bad as misleading if it require the 
 
 («) Stewart v. AUiston, 1 Mer., 26. Of. 339, 347. Cf. Boyd v. Dickson, I. R. 10 Eq.' 
 
 Brownlle v. Campbell, 5 App. C, 925, 936; 239. oq tj„„„ i^q 
 
 and Bee infra § 1217 (6) Jackson v. Whitehead, 28 Beav., 159 
 
 (z) Per WaKram, V. C, in Morley v. Cook, (c) lie J ackeon and Oakthott. 14 Ch. L).. 158. 
 
 2 Ha., Ill ; and see supra. § lu25 et seq. Cf. Greaves v. VVilson, 25 Beav.. 290; Bow 
 
 (o) Price v. Macaulay, 2 De G. M. & G., man v. Hyland, 8 Ch. D., 588; see supra, § 
 
 1025 et seq.
 
 CONDITIONS OF SALE AND PAKTICULARS. ^67 
 
 purchaser to assume that which the vendor knows not to be 
 true or if it assert that the state of the title is not accurately 
 known to the vendor, when it in fact is known to him.(^) 
 
 § 1107. On this principle, where one of the conditions 
 being tluit the title to the beneficial ownership should 
 commence with the will of A. B., and the purchaser should 
 assume that A. B. was at his death beneficially entitled to 
 the property in fee simple free from incumbrances, the 
 abstract showed that A. B. had only entered into a contract 
 for the purchase of the property with persons whose title to 
 sell was doubtful, and had not paid the purchase-money, it 
 was held that the purchaser was not bound by the con- 
 dition, (e) 
 
 § 1168. Where conditions state facts upon which they 
 are grounded, these facts must be proved (/) 
 
 Where the vendor states facts, and then states that the 
 purchaser shall take such interest as the vendor under such 
 state of facts has, the purchaser is, it seems, bound to take 
 the title as it is \{g) but where, after stating facts, the con- 
 ditions add, as a positive and distinct fact, and not as a con- 
 clusion of law from l.he preceding circumstances, that the 
 vendor can make a good title to the fee : as this title may 
 have arisen from indepentent sources, the purchaser is not 
 bound by the title resulting from the facts, but may inquire 
 generally whether the vendor can make out a good title. (7i) 
 
 § 1 169. With respect to sales by the court, it would be 
 going t.oo far to say that, in such sales, the conditions are 
 dealt with on different principles from those which obtain 
 in ordinary cases. But the court is scrupulously careful 
 not to strain the meaning of any condition framed under its 
 authority, (/) nor to allow a purchaser to be prejudiced by 
 any such condition which appears on examination to be 
 misleading or unfair. 
 
 § 1170. Accordingly where property had been sold under 
 a decree, subject to conditions, one of which provided that 
 no requision should be made in respect of a certain under- 
 
 (d) Re Banister, 12 Ch. D., 131. See per horn v. Penrose, 29 W. B, 237 (condition In- 
 Jessel, M. K., in Oamberwcll and South volvlng neither siippressio veri nor suggesUo 
 I.ondon lUiilding Society V. llolloway, 13 Ch. falsi). _ „ „, 
 1). 162 Distinguish IMcnkhorn v. Peuroec, (h) Johnson v. Smiley, \i Beav., 223. Cf. 
 29 \v R "37 Cox v. C'oventon, 31 Bcav , 3iS. 
 
 (e) Ha'nielt'v. Baker, L. R. 20 Eq, 50. (t) E. g. Powell v. Powell, L. R. 19 Eq., 
 (/) Symonds v. James, 1 Y. & C O. C, 487. 422. See too per Jesse), M. R., in Re Arnold, 
 (g) Cf. dmlthv. Watte, 4 Drew., 338; Blenk- 14 Ch. D.,273.
 
 568 FRY ON SPECIFIC PERFORMANCE OF CONTRACTS. 
 
 lease of 1852, or of any underlease prior to 1864, and it 
 turned out that another underlease (besides that of 1852) 
 had, to tlie vendors' knowledge, been made prior to 1864, 
 the court held that it was the duty of the vendors to give 
 the fullest information which they themselves possessed as 
 to the title, and therefore to disclose the underlease in ques- 
 tion, and that the purchaser was entitled, notwithstanding 
 the condition, to require it to be produced. (y) 
 
 § 1 171. So in another case of sale under a decree, where 
 the conditions (settled by one of the conveyancing counsel 
 of the court) stated the facts correctly, and in a manner 
 which might have led a lawyer to the inference that the 
 vendor had no title, but would not lead an ordinary pur- 
 chaser to that conclusion. Lord Romilly, M. R., refused to 
 enforce specific performance against the purchaser, saying 
 that it was of great importance, pai-ticularly in sales by the 
 court, that conditions of sale should distinctly explain any 
 difficulty of title.(^) 
 
 § 1172. In a latter case the same judge relieved a pur- 
 chaser from a misleading condition on the express ground 
 of the sale having taken place under the authority of the 
 court ; but he at the same time intimated that such a con- 
 dition would be bad in any sale. (Z) On the other hand, a 
 condition precluding the purchaser from objecting to the 
 court's jurisdiction to order the sale of a reversion in which 
 (as the condition expressly stated) infants were interested 
 was held by the Court of Appeal in Chancery to be fair, 
 reasonable, and binding, (m) 
 
 § 1173, It may here be noticed that if the conditions of 
 sale clearly stipulate that the property will be conveyed 
 subject to specified liabilities, the vendor may enforce the 
 insertion in the conveyance of apt words for giving effect 
 to the stipulation, even though it be not shown or alleged 
 that the property is in fact subject to any of the specified 
 liabilities. 
 
 Thus where, on a sale by auction, one of the conditions 
 provided that "the property is sold and will be conveyed 
 subject to all free rents, quit rents, and incidents of tenure, 
 and to all rights of way, water, and other easements, if 
 
 {}) Edwards v. WIckwar, L. R. 1 Eq., 68, (i) Else v. Else, L. R. 13 Eq., 196, 201. 
 
 ,f N -.TT-,,. ^ ^ ^ ("'> Munn V. Hancock, L. R. 6 Ch , 850. 
 
 (A) Williams v. Wood, 16 W. R., 1005.
 
 CONDITIONS OF SALE AND PARTICULARS. 569 
 
 any," it was held that the vendors were entitled to have 
 the words " subject to all free rents, etc.," inserted in the 
 conveyance, notwithstanding the purchasers objection that 
 they were wholly inapplicable to the property. (?^) 
 
 (n) Vale v. Squier, 4 Ch. D., 226, affirmed 5Ch. D.,625. Of. Sidney v. Clarkson, 35 Beav.,. 
 
 118.
 
 570 FRY ON SPECIFIC PERFORMANCE OF CONTRACTS. 
 
 . CHAPTER II. 
 
 OF COMPENSATION. 
 
 § 1 1 74. Where a vendor is able to perform the contract 
 in its substance, but unable to perform it liberally in all its 
 parts, he may yet sue the purchaser for its sjDecific perform- 
 ance. On the other hand, where a vendor has not substan- 
 tially all that he has contracted to sell, he cannot sue for 
 S])ecific performance, but the purchaser may generally insist 
 on taking what the vendor has. 
 
 § 1175. From these princii:>les arises a right in the pur- 
 chaser to compensation in respect of the difference between 
 the thing which the vendor insists that he shall take, or he 
 himself insists on taking, and the expressed subject-matter 
 of the contract. It will be shown that the subjects of com- 
 pensation in the two cases are very different, and that maay 
 defects for which the purchaser may obtain compensation 
 will not be made the subjects of compensation at the in- 
 stance of the vendor, {a) The rights of the parties to com- 
 pensation may be and frequently are qualified by the con- 
 tract, which in many cases contains a condition on the 
 point. 
 
 § 1170. It was formerly held that, where the vendor 
 sought to enforce the performance of a contract with com- 
 pensation, his biU was demurrable, unless it showed that 
 the defect was a fit subject for compensation, (&) and in a 
 case before Stuart, V. C, where the whole of the vendor's 
 bill was framed on the view that a good title had been shown 
 by the time iDrescribed, and that was the sole issue raised 
 by it, the court held that, the plaintiff having failed in that 
 contention, sj^ecific performance would not be enforced with 
 compensation. (c) It is conceived that, under the present 
 practice, if either party is aware of any case for compensa- 
 tion, and means to insist on it, he ought distinctly to raise 
 the question of his pleading ; (d) but it seems that compen- 
 
 (a) Compare Nelthorpe v. Ilolgate, 1 Call., (6) Boyer v Bright, 13 Pri, 698. 
 
 203 with Collier v. .Jenkins, You.. 295. See (o Ashton v Wood, 3 Sm & G., 436. 
 
 also Wilson v. Williams, 3 Jur. N. S., 810 (d) Oraer XIX. rr., 4,8, 18. 
 (Wooil, V. C.)
 
 COMPENSATION. 571 
 
 sation may be granted for a defect appearing on the investi- 
 gation of title, though the pleadings and judgment make no 
 reference to compensation, (e) 
 
 § 1177. It will be convenient to consider separately (1) 
 the cases where the vendor is the party insisting on the per- 
 formance of the contract, subdividing these into (a) cases 
 where either the contract contains no condition for compen- 
 sation, or at any rate no such condition enters into the 
 ■question, and (b) cases where there is such a condition ; and 
 then (2) to deal in a similar way with the cases in wliich the 
 purchaser is the party insisting on the contract. 
 
 1 . (a) Vendor insistinr/ on the contract^ there heinff no 
 condition, for coiwpensation.' 
 
 § 1178. The description by which a thing is contracted 
 to be sold is a matter for which a vendor is jyriind facie re- 
 4sponsible. Accordingly, when he seeks to enforce a con- 
 tract it is incumbent u\)Oi\ him to show that he is able to 
 perform his part of it. Inasmuch, however, as equity looks 
 to the subs' ance rather than to the mere letter of a contract, 
 if the vendor shows that he can substantially do what he 
 contracted to do, he is entitled to enforce specilic perform- 
 
 (e) Wilson v. Williams, 3 Jur. N. S., 810 (Wood, V. C.) 
 
 ' Compensation for deficiency in the purchase of lands, is essentially a matter 
 of equity jurisdiction. Castleton v. Veitch, 3 Rand., r)98. But it is clear that 
 conditions expressly inserted in the articles of sale, to the effect that variations 
 or misdescriptions sliall not vitiate the sale, will render the agreement cogniza- 
 ble at law. Adams' Eq., pp. 89, 90. From its more extended jurisdiction, 
 equity has no difiiculty ni granting aid, to a purchaser wlio has entered into a 
 contract without knowledge that the other party cannot fulfil his part of the 
 contract in into : and upon a proper case being made by the bill, of enforcing 
 so mucli of the contract as lies within the power of the vendor, and awarding 
 ■compensation for the deficiency. The cases upon this point are numerous. 
 Thomas v. Dering, 1 K., 729; Wheatley v. Slade, 4 Sim., 126; Graham v. Oli- 
 ver, o Bea., 124; Nelthorpe v. Ilolgate, 1 Coll., 203; Couse v. lioyles, 3 Green's 
 ■Ch., 212; Nelson v. Carrington, 4 Munf , %S'l; Crenshaw v. Smith, 5 id., 415; 
 Blessing v. Beatty, 1 Rob (Va.), 287; Neal v. Logan, 1 Gnitt.. 14; Barton v. 
 Bird, I Overton, 00; Mo.ss v. Elmendorf, 11 Paige, 277; Hepburn v. Auld, 5 
 Cranch, 202; Jacobs v. Lake, 2 Ired.'s Ch., 280; Henry v. Leles, id., 4ur; 
 Weatherford v. James, 2 Ala., 170; Ba.ss v. Gilliland, 5 id., 701; Rankin v. 
 Maxwell, 2 A. K. Marsh., 488; see Jones v Shackleford, 2 Bibb., 410. Nor 
 vpill equity refuse to grant a specific performance in favor of the vendor, not- 
 withstanding its greater reluctance to interfere in favor of vendors than pur- 
 chasers. AlcWhorter v. McMahan, 1 Clark, 400. And there are cases in which 
 a vendor of land may come into equity 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. Pliyfe v. Wardell, 5 Paige, 208; see Brown v. Half, 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 trifluig variation 
 will not defeat a decree. Willard's Eq. Jur., 290; Winne v. Reynolds, Paige,
 
 572 in\ ON SPECIFIC pekfokmance of coxtracts. 
 
 ance, although he may be unable to do it modo et formd 
 according to the letter of the contract ; the difference be- 
 tween what he contracted to do and what he can actually 
 do becoming the subject of coni[)ensation. 
 
 §1179.. "Lord Thurlow," said Lord Eldon, in a pas- 
 sage already cited, '"used to refer this doctrine of specific 
 performance to this ; that it is scarcely possible, that there 
 may not be some small mistake or inaccuracy ; as that a 
 leasehold interest, represented to be foi- twenty-one years, 
 may be for twenty years and nine months : some of those 
 little circumstances, that would defeat an action at law ; 
 and yet lie so clearly in compensation, that they ought not 
 to prevent the execution of the contract. "(/) 
 
 g 1180. But "if (to quote Lord Erskine), a court of 
 equity can compel a party to perform a contract, that is 
 substantially different from that, which he entered into, and 
 proceeded upon the principle of compensation, as it has 
 compelled him to execute a contract substantially different, 
 and substantially less than that, for which he stipulated, 
 without some very distinct limitations such a jurisdiction, 
 having all the precision of law, the rights of mankind under 
 contracts must be extremely uncertain." (z/) 
 
 Jj 1181. It falls then to be considered (1) what defects or 
 circumstances will be considered by the court so material 
 or essential as to debar a vendor from enforcing the contract 
 at all, and (2) what, on the other hand, will be held so im- 
 material or non-essential as to allow of the contract being 
 enforced at his instance. 
 
 § 1182. (1) The contract will not be enforced against the 
 
 (/) In Mortlock v. Buller, in Ves . 305; Elflon in Calcraft v. Hoebuck, 1 Ves Jun. 
 supra, Part I.cliap. ii. § 29. JSee too perLonl 223, 221 
 
 i,g) In Halsey v. Grant, 13 Ves., 76. 
 
 407. Kingv. Bardeau, 6 Jobn.'s Ch., ;^8, is a case in point. Two lots were 
 sold at auction at the same tinn; and to the same person, and the buildings upon 
 the one projected upon the other, and it was hekl that the vendor might enforce 
 the purchase in equity, because the vendee obtained substantially what he bar- 
 gained for. and the deticiency was capable of compensation. Henry v. Grady, 
 5 B. Monr , 450, is very much of the same nature. 'I here was a contract for 
 the conveyance of land, which, although not crried into execution at the time 
 appointed, was not considered by either vendor or vendee as abandoned. The 
 vendor refused to deliver full pos.session 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 com- 
 pensated out of the purchase money still to be paid.
 
 COMPENSATION. 
 
 573 
 
 purchaser with compensation where a material part of the 
 subject-matter is wanting. Formerly the court went far 
 beyond what it now does in enforcing contracts substanti- 
 ally different from those entered into ; as where a wharf- 
 inger 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 disap- 
 proval, and it is now abandoned by the court. (A) "The 
 court," said Lord Eldon on one occasion, "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."(/) 
 
 § 1 1 83. Accordingly where a wharf and jetty w^ere con- 
 tracted to be sold, and it turned out that the jetty was 
 liable to be removed by the corporation of London, specific 
 performance was refused. (y)' 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 for 
 compensation. (A-) And in case Lord Eldon thought that a 
 defect in title in respect to eleven out of seventy acres, 
 which do not ajopear to have been peculiar in their position 
 or character "would probably be material to the suit.'X^) 
 
 § 1184. 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 prejudicial to 
 the enjoyment of the estate ; as where land near a mansion 
 was such that it would be most profitably used for building 
 ground or for a brick-kiln. But the nuisance thus appre- 
 hended must be probable, and not merely distant, fanciful, 
 and conjectural. (m)' 
 
 (h) Drewe v. Hanson, 6 Ves., 675; Halsey (i) 3 Mer., 146. See. too, the judgments of 
 
 V. Grant. 13 Ves , 73; Stapylton v. Scott, 13 the L. J. J. in Re Arnold. U Ch. D., 2,0. 
 
 Ves., 425; KnatchbuU v. Grueber, 3 Mer., 124. ( j) Peers v. Lambert, i Beav., o46. 
 
 8ee also Howland v. Norris, 1 Cox, 59. The (k) Perkins v. Ede, IG beav., 193. 
 
 decision in Shirley v. Davis, to which Lord (I) Osbaldsiton v. Askew, 2 J. & AY ., 539. 
 
 Eldon frequently alludes, aupears to have Cf. Portman v. Mill, 2 Kuss., o,0, o,4 
 
 been in fact the opposite of that which his (wi) See per Plunier, V.C.in Ku tchbull v. 
 
 Lordship stated. Shirley v. Stratton, 1 Bro. Grueber, 1 Mad., 167 (the case oa appeal is 
 
 C C, 440, n. (2). reported 3 Mer. 124). 
 
 1 Deficiency essential to the enpyment of tlie residue.] Where the deficiency is 
 so great that the remainder could not be enjoyed profitably, or where the defi- 
 ciency is essential to the enjoyment of the residue, equity will not enforce sp_e- 
 ciflc performance against a purchaser. Howard v. Kimball, 05 X. C, 175; 
 Philips V. Stanch, 2U Mich. , 36!). 
 
 - Doctrine of comiyensation.'] Sir Thomas Plumer, V. C, said in Kuatchbull
 
 574 FRY ON SPECIFIC PERFORMANCE OF CONTRACTS. 
 
 § 1185. Again where the tenure of an estate contracted 
 to be sold is in fact altogt^ther, or to a substantial extent, 
 different from that which the vendor has represented him- 
 self to be selling, he will not be able to enforce performance, 
 unless indeed the purchaser has wiuved the objection. 
 
 § 1180. Thus where, on a sale by auction, the particu- 
 lars described the property to be sold as a "freehold estate 
 with a leasehold adjoining," and it turned out that, of the 
 seventy acres of which the estate consisted, sixty-two were 
 leasehold and only eight freehold, Lord Alvanley, M. U., 
 said that, if the purchaser had objected on that ground, he 
 should have thought the purchase ought not to be carried 
 into execution. As, however, the purchaser had not taken 
 the objection, his lordship granted an injunction restraining 
 an action for the dej^osit on the terms of the vendor bringing 
 the money into court, (ti.) 
 
 § 1187. Again, where an estate is sold as tithe free, 
 subject to a modus, and it is in fact subject to tithe, 
 the court will not, as a general rule,(o) compel the pur- 
 chaser to take it with compensation. (^j") 
 
 § 1188. Nor, it seems, would the court compel a person 
 who had contracted for the purchase of an estate free from 
 incundjrances to take, instead of that, an estate subject to 
 
 (w) Fordyce v. Forrt, 4 Uro. C. 0.,494 Cf. (p) Ker v. Clobury. St. Leon, Vend., 267; 
 
 Cox V. Coventon, 31 Beav., 378; ind eee Binks v. Lord Ittikeby. 2 Sw., 222. Lord 
 
 Hughes V. Jones, 3 De G F. &J.,3(i7. Stanhope'scase cited 6 Ves.. 678,isexplalned 
 
 (o) See, however, iuira, § 1199. by Lord St. Leonards, Vend., 266 
 
 V. Giueber, 1 Mad., 153: "There is great difficulty of applying the doctrine of 
 compensation to a reluctant purchaser. 1 here is no standard by which to ascer- 
 tain what is essential to a ]nirchaser. The motives for purchasing real property 
 are very ditferent in different persons Facts, opinions and ages create differ- 
 ent views Some particularity, some whim, may have induced him to purchase. 
 What is desirable to one is not so to another. One wants a wood for game, 
 another dislikes tithes. It therefore seems a little arbitrary to insist on a party 
 takiug compensation. Why am I bound to take what I did not mean to buy ? 
 You say yiai will give me compensation, but who is to judge of the compensa- 
 tion ? Can you be sure it is a compensation ? It is a dillicult thing for a mas- 
 ter to ascertain what is essential to the enjoyment of the estate, and what is a 
 proper compensation. It is as difficult for the court to decide, if, having all 
 the data before it, it decides, as it is then proper to do, without sending it to 
 the master. Are you to look at the land in its present state, or to consider in 
 Avhat state it may be in future ? It is said a purchaser should communicate 
 his motives lor purchasing. If so. the vendor might enhance the price. It is 
 also said that the defendant's objection that these twelve acres are essential was 
 an after thought. Suppose it was. Is a court of equity to say no advantage 
 can be taken of the objection ? Though a purchaser may not, at first, be aware 
 of tlie essentiality of the land to which no title can be made, yet, if he after- 
 wards finds it is es.sential, is a court of equity to say he shall not avail himself 
 of the obiection ? " See, also, Foley v. Crow, 37 Md , 51 ; Shaw v. Vincent, 
 64N. C.,'690.
 
 COMPENSATION. 575 
 
 an incumbrance amounting to one half of the purchase- 
 money \{q) though if there is only a small incumbrance upon 
 a considerable estate, the decision may, as will be shown, be 
 otherwise, (r) 
 
 § 1189. In some cases the compensation to be made for 
 a defect may take the form of an indemnity ; which is a 
 species of compensation— inasmuch as something else is 
 given in place of the very thing contracted for— applicable 
 to cases where the defect or loss is not certain but con- 
 tingent. 
 
 § 1190. The court will not, however, at a vendor's in- 
 stance, compel the purchaser to take an indemnity, unless 
 such indemnity was part of the contract between the par- 
 ties. (-?) Thus, where the sub-lessee of a house had con- 
 trajcted to grant a twenty-one years' lease of it to the 
 defendant, but, owing to the house in question being, with 
 five others, subject to the covenants and proviso for' re-entry 
 contained in the head lease, could not give the defendant a 
 secure lease for the term of his contract, specific perform- 
 ance was refused, though the plaintiff offered to indemnify 
 the defendant in case of his eviction. (zJ) Similarly it has 
 been held that a purchaser could not be forced to take an 
 indemnity in respect to a misdescription, (-z^) or of a possible 
 liability under an ambiguous covenant. («) 
 
 § 1191. In a case decided by Lord Hatherley (then 
 Wood, V. C.,) in the year 1858, the contract was that the 
 defendant should procure a lease then vested in his father 
 to be surrendered to the plaintiff, and would thereupon 
 accept a new lease from the plaintiff and pay a premium of 
 £3U0 for it. The father refused to surrender his lease, 
 whereupon the plaintiff filed her bill for specific perform- 
 ance, praying that, if the defendant could not obtain the 
 surrender, he might be decreed to accept a lease com- 
 mencing from the expiration of his father's lease, and in 
 other respects in the terms of the contract, and also to make 
 good her loss resulting from the non-performance of the con- 
 tract. It was held on demurrer that the court could not 
 
 (a) Per Lord Eldon in Wood v. Bernal, 19 §§ 1245, 1246. See too Wood v. Bernal, 19 
 
 Ves "21 Yes ,221. 
 
 (r)' See' infra, § 1196 et seq (<) Fildes v. Hooker, 3 Mad., 193. 
 
 (s) See per Lord Eldon in Balmanno v. («) Ridgway v. (iray, 1 Mac. & Or., 109. 
 
 Lumley 1 V. & B., J25, a:nl (-\...,l-3 cited Infra, {v) Nouaiiie v. Fli^jlit, 7 Bcav., 521.
 
 576 FRY ON spkcifk; pekformaxce of contkacts. 
 
 interfere to decree specific performance, but would leave the 
 I)laintiff to her remedy at common law in damages. (wj) . 
 
 § 1 192. The principle of compensation will not be applied 
 at the instance of a vendor who has been guilty of misrex)re- 
 sentation. This point will be illustrated hereafter. (re) 
 
 § 1193. Even where the circumstances are such that the 
 vendor might originally have enforced the contract with 
 compensation, he may lose his right to do so by subsequent 
 conduct inconsistent with the contract — as for instance 
 where, one of the terms of the contract being that im- 
 mediate possession should be given, and the purchaser 
 liaving taken possession accordingly, the vendor, on a 
 question as to compensation arising, turned him out of 
 p)Ossession.(?/) 
 
 § 1194. (2) On the other hand, in each of the following 
 cases the defect was considered a proper subject for com- 
 pensation, but not so essential as to debar the vendor 
 altogether from enforcing the contract : — where an estate of 
 about 186 acres was described as freehold, and in fact about 
 two acres, part of a i)ark, were held only from year to 
 year ;{z) vfhere 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 ;(a) where 
 fourteen acres were sold as meadow, and only twelve 
 answered that description ;{b) and where, on a purchase by 
 a tenant in possession, property described as forty-six feet 
 in depth proved to be only thirty-three feet.(c) 
 
 § 1195. In one case where, on a sale of colliery works, 
 the vendors had stated the annual profits of the concern at 
 a sum largely in excess of the actual amount, they were 
 nevertheless allowed to enforce the contract, but on the 
 terms of making compensation to the purchasers by sub- 
 mitting to an abatement from the purchase-money, bearing 
 the same proportion to the excess as the total purchase- 
 money bore to the caj)italised value of the amount of profits 
 stated by the vendors, {d) 
 
 § 1196. On the general principle already stated, (e) the 
 mere fact of* the existence of some small or (to the pur- 
 
 (w) Beeston v. Stately, 6 W. R., 20G; 27 L. {z) Calcraft v. Roebuck. 1 Ves. Jun., 221. 
 
 J. Ch., 156; sec now infra, §§ 1265, 1270. («) McQueen v. Farquhar, 11 Ves., 46*. 
 
 (a;) Infra, § 1217 et seq. (b) Scott v. Hanson, 1 K. & My , 128. 
 
 (y) Knatchbull v. Grueber, 3 Mer., 124, 144, (c) King v. Wilson, 6 Beav., 124. 
 
 14^7. (d) Powell V. Elliot, L. R. lU Ch., 424.
 
 COMPENSATIOlSr. 577 
 
 €haser) immaterial incumbrances on the property is not 
 enough to deprive a vendor of his right to insist on the 
 specific performance of the contract. 
 
 § 1197. Thus, where titlies contracted to be sold were 
 subject to sundry small charges, (/) and where the estate 
 sold was subject to quit-rents (which may be regarded as 
 incidents of tenure, [p']) the court enforced the contracts, in 
 one case with an inquiry whether there ought to be any and 
 what indemnity in respect of the charge, (7^.) and in the 
 others with compensation to the purchaser by way of abate- 
 ment from the purchase-money. 
 
 § 1198. And in a case where an estate sold as fen land, 
 and so described in the particular, was subject, under a 
 local but public act, to certain embanking and drainage 
 taxes which were not mentioned in the particulars, the 
 €ourt, on the ground apparently of the act imposing the 
 charges being a jJi^blic act, decreed against the purchaser 
 specific performance of the contract without compensa- 
 tion, (z) 
 
 § 1 199. Further, although, as we have seen, (,/) a man who 
 contracts to purchase an estate which is described as tithe- 
 free will not generally be compelled to complete his pur- 
 chases, if it turn out that the land is subject to tithe, — it 
 being considered that, as a general rule, the right to the 
 tithe is so material to the enjoyment of the land as to have 
 formed the inducement to the purchase, — still, where the 
 circumstances show that the right to the tithe is not thus 
 material, the general rule ceases to apply. For instance, 
 where an estate of about 140 acres was described as subject 
 to tithe except thirty-two acres, and the exem]3tion from 
 tithe of those thirty-two acres was not proved, (A*) and again 
 where the circumstances showed that the question whether 
 the land was to be tithe free or not was an immaterial one 
 in the view of the x^urchaser ;(Z) the court compelled the 
 purchaser to complete the contract witli comj)ensation. 
 
 § 1300, On the principle that a warranty or a represen- 
 
 (e) Supra, § 1178, (i) Barraud v. Archer, 2 Sim., 433; affirmed 
 
 If) Halsey V. Grant, 13 Ves, 73; Horniblow on appeal (not reported: see 2 R. & My., 751), 
 
 V. Shirley, 13 Ves., 81. Of. Drewe v. Hanson, (J) supra, § 1187. 
 
 6 Ves, 675. (A) Binks V. Lord Rolceby, 2 Sw., 222, In 
 
 ig) Esdaile v. Stephenson, 1 S. & S., 122, this case there appears to have been a con- 
 
 124. dition that errors of description should not 
 
 {h) Halsey v. Grant, ubi supra. vitiate the sale. See 2 Sw., 225. 
 
 (I) Smith V. Tolcher, 4 Kuss., 302. 
 
 37
 
 578 FRY ON SPECIFIC PERFUKMANCE OF CONTRACTS. 
 
 tation is not bindino;, where in respect of some defect that 
 is perfectly patent, (^^i) the court will not give a purchaser 
 comiDensation for defects of this nature : so that a contract 
 was enforced, at a vendor's instance, without any compen- 
 sation in respect to the misdescription of a farm described 
 as lying within a ring fence, which did not so lie, as the 
 purchaser had himself seen and knew ; while in the same 
 case compensation was given for latent defects. (?z) 
 
 § 1301. But in order that this principle shall apply, the 
 defect must be perfectly visible to everybody : therefore^ 
 where a representation was made by a vendor as to the dry- 
 rot in a house, w^hich was not a matter so perfectly visible, 
 the court gave compensation :(o) and where a tenant in pos- 
 session purchased the property, which was represented as 
 forty-six feet in depth, but was in fact only thirt}' -three 
 feet, he was held entitled to compensation, inasmuch as 
 occupiers are not in the habit of measuring their premi- 
 ses, {p) 
 
 § 1S03. Moreover, if the purchaser, after he knows of a 
 defect, acts in a manner implying a waiver of it, the vendor 
 becomes entitled to insist on the completion of the purchase 
 without compensation. Thus, where the abstract, delivered 
 in January, showed part of the estate to be subject to a 
 right of sporting, and in the following A^Dril the purchaser 
 at his own request was let into possession, and afterward 
 several letters passed between the parties, and most of the 
 purchase-money was paid without any objection on the score 
 of the right before, in October of the same year, the pur- 
 chaser claimed compensation ; it was held that he had 
 waived the objection, and si^ecific performance without com- 
 pensation was decreed against him. ((7) 
 
 § 1303. In an Irish case specific j)erformance was en- 
 forced, at the vendor's instance, without compensation for 
 a deficiency of nearly one-half in acreage of propert}^ de- 
 scribed in the contract as "about 200 acres of mountain 
 land," the land being a waste of heath of trifling value. (r) 
 
 (ot) Supra, §§ 658, 659, 849. Of. Horsfall v. (;;) King v. Wilson, 6 Beav., 124. 
 Thomas, 31 L. J. Ex., 322; 10 W. R., 650. (q) Burnell v. Brown, 1 J. & W., 168. Dis- 
 
 (n) Dyer v. Hargrave, 10 Ves., 505. tinguish Hugbes v. Jones, 3 De G. F. & J.,. 
 
 (o) Grant v. Munt, Coop., 173. 307. 
 
 (r) Corless v. Sparling, I. R. 9 Eq., 595.
 
 coMPENSATioisr. 579 
 
 1. (b) Vendor insisting upon the contract, there being 
 a condition for comyensation. 
 
 § 1304. In the cases now to be considered, while the 
 general principles already stated are applicable, and the 
 rights of the vendor are usually somewhat extended by the 
 language of the particular condition, at the same time, con- 
 ditions of sale being, as we have seen,(.^) construed strictly 
 against the vendor, it is incumbent upon him, if he rely 
 upon the condition to compel the purchaser to carry the 
 contract into execution, taking compensation for some de- 
 fect, to show that the defect is of such a nature as pro^^erly 
 to fall within the condition. (^) 
 
 § ISOS. Quite apart from any consideration of fraud, 
 where there is in a contract a misdescription " in a material 
 and substantial point, so far affecting the subject-matter of 
 the contract as that it may be reasonably supposed, that, 
 but for sncli misdescrij)tion, the purchaser might never have 
 entered into the contract at all, in such case the contract is 
 avoided altogether, and the purchaser is not bound to resort 
 to the clause of compensation." (^0 
 
 § 1206. Thus, where the particulars of a leasehold house 
 in Covent Garden stated that, by the lease, "no offensive 
 trade was to be carried on, and that the premises could not 
 be let to a coffee-housekeeper or working hatter," and there 
 was a condition for compensation in case of error or mis- 
 statement, and the original lease, in fact, prohibited a vast 
 variety of other businesses than those described, including 
 the sale of any provisions, the i^urchaser was held to be 
 entitled to rescind the contract, (-y) 
 
 § 1207. Again, where there was a condition for com- 
 pensation in the case of error in the description of the 
 premises, or of any other error whatsoever in the particulars, 
 and the jiroperty which was described as coj)yliold turned 
 out to be partly freehold. Lord Romilly, M. R., refused to 
 compel specific performance by the purchaser : he had con- 
 tracted to purchase one thing, and he might refuse to 
 accejDt another. (w) 
 
 («) Supr », § 1154 et seq. Phillips, Prec. in Cli., 575, a bill by a vendor 
 
 (<) See per Lord Westbury in Cordingly v. of an estate, which in the articles was treated 
 
 Cheest.boi. ..,-.i, 4De G. F & J., 384. as freehold, was refused hecaiise about one- 
 
 (M) Per Ml tlal, C. J., in Flight v. Booth, 1 sixth in value was copyhold, but nothing is 
 
 Bin.p;. N . C ;. . stato ^ as to the peculiar nature of the tenure. 
 
 (r) r!i;.htv /'-octh, 1 Bing. N. C, 370. Dis- Of. the observations of Romilly, M. R , in 
 
 tii.Miisli Groaveu.-i v Green, 7 W. R., 140. Hui-.roii v. Cook, L. R. 13 Eq., 4J0. See too 
 
 ^M7) Ayles V. 0;x, i6 Beav., 23. In Hick v. Evans v. Robins, 8 Jur. N. S., 846.
 
 580 FRY ON SPECIFIC PEKFOIIMANCE OF CONTRACTS. 
 
 § 1208. In anotlier case a yard, which was essential to 
 the enjoyment of tlie property sold, was held from year to 
 year, instead of for the term of twenty-three years for which 
 the rest of the i)remisHS were held, and at a separate rent : 
 this was considered to be a defect which the vendors were 
 not entitled to bring witliin a condition for comj)ensation 
 for mistake in the description of the property or anj other 
 error whatsoever in the particulars. (:c) 
 
 § 1209. In Madeley v. Booth(i?/) leasehold iDroperty was 
 sold for the residue of a term of ninety-nine years, which 
 commenced on the 24th of June, 1838, under conditions 
 which prohibited the purchaser from calling for the lessor's 
 title, and stipulated that any error or misstatement of the 
 property, term of years, or other description, should not 
 vitiate the sale, but that a compensation should be given : 
 the term sold was really not the residue described, but a 
 derivative term less by three days than the original one : 
 Knight Bruce, V. C, held that the underlease was not sub 
 stantially the same thing, the resulting rights being different, 
 and accordingly dismissed with costs a bill by the vendor 
 praying for specific performance with comi^ensation. This 
 decision, however, has been Judicially disapproved of, and 
 does not seem to be consonant with principle. (^) 
 
 § 1210. The principle under consideration of course 
 applies where, though the whole land is conveyed, it, or a 
 part of it, is subject to rights which materially affect its 
 enjoyment : thus a right of way, which would render use- 
 less for building a close advertised as building-ground, has 
 been held not to come within a condition for compensa- 
 tion ;{a) so grants 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 the title to the upper lands, and con- 
 sequently were not the subject of compensation, notwith- 
 standing a condition that a mistake in the description or an 
 
 {X) Dobell V. Hutchinson, 3 A. & E., 355. way, 13 Ch. D., 760, and infra, § 1215. See 
 
 (y) 2DeG. & Sm., 718. too Darlington v. Hamilton, Kay, 557, 558; 
 
 (z) See per Jessel, M. R., in Camberwell ami Hayford v. Criddle, 22 Beav., 477 
 and South London Building Society v. UoUo- (a) Dykes v. Blake, 4 Bing. N. C, 463.
 
 COMPENSATIOlSr, 581 
 
 error in the particulars sliould be the siibject of com- 
 pensation, and not annul the contract. (6) 
 
 § 1211. Generally, where there is a proper case for com- 
 pensation, and the amount can be reasonably estimated, the 
 court is disposed to grant it.(c) 
 
 § 1219. But where thi« reasonable estimate is not attain- 
 able, the court refuses to compel the purchaser to take com- 
 pensation : thus, where a house and grounds were sold by 
 the court, and, pending the making out of the title, some 
 ornamental timber was cut down, the purchaser was dis- 
 charged, 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. (rZ) And where the particulars 
 represented the average size of the timber in the wood, 
 which was the property sold, as approaching fifty feet, but 
 in no way specified the number of the trees ; and the 
 witnesses for the plaintiff (the vendor) treated no trees con- 
 taining less than ten feet as timber trees, and on this basis 
 showed an average of thirty-four feet six inches ; whilst the 
 defendant's witnesses, reckoning all trees containing not 
 less than five feet as timber trees, showed an average of 
 twenty-two feet only ; it was held by Lord Hatherley (then. 
 Wood V. C.) 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 bi]l.(e) 
 
 § 1213. The same principle seems to have governed 
 another case, in which the premises were described as in 
 the joint oc(?upation 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 for compensating the pur- 
 chaser, but that he could not be forced to take an in- 
 demnity. (/) 
 
 § 1214. On the other hand, where the conditions pro- 
 vided that any misstatement of the quality, tenure, out- 
 
 (b) Shackleton v. Sutcliffe, 1 De G & Sm., (e) Lord Brooke v Rounthwaite. 5 Ha., 298. 
 609. Ct. Nouaille V. Flight, 7 Beav., 521. Cf. infta, § 1261. 
 
 (c) .see infra, § 1242. (/) Kidgway v. Graj', 1 -Mac. & G., 109. 
 
 (d) Magennis v. Fallon, 2 Moll., 561, 584. Distinguish Farebrother v. Gibson, 1 De G. 
 Cf, Cox. V. Coventon, 31 Beav., 378. & J.. 602.
 
 582 FRY ON SPECIFIC PEKFOKMANCE OF CON TPwACTS. 
 
 goings, or other particulars of the property, described by 
 an innocent mistake as "valuable freehold estate," should 
 be the subject of compensation ; and one lot was in fact of 
 copyhold tenure, but it appeared that under a composition 
 with the lord of the numor the difference in value between 
 copyholds in that manor and freeholds was very slight ; it 
 was held that the vendor was entitled to compel the pur- 
 chaser to take the lot in question with compensation. (^) 
 
 § 1S15. Further, although, where a man sells a lease for 
 a definite term of years, and nothing m<n'e is said on either 
 side, he cannot make a good title unless he show^s that it is 
 an original lease, yet where the particulars and conditions 
 of sale in effect tell the purchaser that the lease which is 
 offered for sale is in fact an underlease, the vendor is 
 entitled to enforce completion without compensation, and 
 that notwithstanding a condition for compensation in 
 the event of any error or mistake appearing in the descrip- 
 tion, or in the nature or quality of the vendor's interest 
 therein, or in the particulars of the sale. Former se calling 
 a thing a lease whicli is a lease is not a misdescription. (A) 
 
 § 1S16. The cases where the defect is, from its magni- 
 tude or importance, not a proper subject for compensation, 
 have been already stated. We may now consider some 
 other cases, wdiere the doctrine will not be applied. 
 
 § 1217. The principle of compensation, whether arising 
 under the general doctrine of the court, or under a condi- 
 tion for compensation in case of any error or misstatement, 
 will not be applied where there has been misrepresentation, (/) 
 even, it seems, though the difference be of such a character 
 that, if it had arisen from mere error, it w^ould have been 
 subject to compensation, as, for instance, in respect of the 
 difference between copyholds nearly equal in value to free- 
 holds and freeholds, {j) 
 
 % 1918. Thus where, on a sale by auction, one of the lots 
 was described as to be sold wi th a reservoir and waterworks 
 
 {a^ Price V Macaulay, 2 De G. M. & G., (i) Per Plunil)er M. R. in Clermont v. Tas- 
 
 339"^ burgli, IJ. & W, 119. liO; 
 
 {K\ PerJessel M. R. in Cumberwell and Duke of NorfoU v. Worthy, 1 Camp-, 337, 
 
 South Lon<lon Building Society v. Holloway, 340; Powell v Doubh'.e, St. Leon. Vend ,23; 
 
 13 th D., 754, Tin Cf Darlington v lianiil- .•>ti;\vart v. AUlston, 1 Mer. 26; eupra, § 1164; 
 
 ton, Kay, 558; Havford v. ('riddle, 22 Beav , and .Mstinguish Powell v. Ellioit, L. R. 10 
 
 477; Nouaille v. Flight, 7 Beav., 521 ; Hen- Ch., 424. „ ,. „ ,c p. ^ 
 
 dernon v. Hudson, 15 \V. R., &6t); Flood v. (j) Price v. Macaulay, 2 De G. M. & L... 
 
 Pritchard, 40 I,. T., 873; Turner v. Turner, 339, 344. 
 W.N. 1881,70.
 
 COMPENSATION. 
 
 583 
 
 yielding a yearly rental of about £60, and it turned out 
 that this rental arose from supplying with water from the 
 reservoir some houses between which and the reservoir lay 
 lands of other proprietors, through which the vendor had 
 no right to carry the water except under a license from year 
 to year for which he paid rent ; it was held that the de- 
 scription contained such a misrepresentation as to debar the 
 vendor from enforcing specific performance. (A') 
 
 § l!31». Representation as to the tenancy of a house, the 
 court refused to hold the purchaser to his contract and 
 make him take compensation for the delay which would 
 have been needed for an ejectment, although the purchaser 
 Ibought for investment, and not for residence. (Z) 
 
 § 129©. Again, where the particulars of sale described a 
 farm, which formed about one-third of the estate sold, as 
 . ''lately in the occupation of A. at an annual rent of £290, 
 155," and the facts were that A. had occupied the farm for 
 a year and a quarter only, and then at the nominal rent of 
 £3, for the first quarter, and that since his tenancy (which 
 came to an end about sixteen months before the sale) the 
 vendor had been willing to let the farm at £225, and knew 
 that nothing like £290 a year could be obtained for it, the 
 court held that such misrepresentation was not a matter for 
 compensation, but entitled the purchaser to be discharged 
 altogether from his purchase, (m) 
 
 § 1221. But it seems that a mere flourishing description 
 in particulars, such as that land is fertile and improvable, 
 whereas part of it has in fact been abandoned as useless, 
 cannot, except as in extreme cases — as for instance where a 
 considerable part is covered with water, or otherwise irre- 
 claimable—be considered such a misrepresentation as to 
 •entitle a purchaser to be discharged. (?z) 
 
 2. (a) Purcliaser insisting on the contract, there being 
 no condition for compensation. 
 
 § 1 222. Although, as a general rule, where the vendor 
 has not substantially the whole interest he has contracted 
 
 (Ti) S. C Sf»e too Leyland v. lllingworth, («) S. C. 27 (per Turner, L J See too 
 
 2 De G F. & J , 248. Johnson v. Smart, 2 Glflf., 151 (" substantial 
 
 (0 f-aclilan v". Uevnolils, Kay, 52. and convenient " awelling.kouse). 
 (to) Dimmock: v. Hallett, L K. 2 Ch., 21.
 
 584 FRY ON SPECIFIC PERFORMANCE OF CONTRACTS. 
 
 to sell, lie, as we have seen, cannot enforce the contract 
 against the purchaser, yet the purchaser can insist on hav- 
 ing all that the vendor can convey, with a compensation for 
 the difference (o) 
 
 § 1S23. "If," said Lord Eldon,(^) "a man, having- 
 partial interests in an estate, chooses to enter into a con- 
 tract, representing it, and agreeing to sell it, as his own, it 
 is not competent to him afterwards to say, though he has 
 valuable interests, he has not the entirety ; and therefore 
 the purchaser shall not have the benefit of his contract. 
 For the purpose of this jurisdiction, the person contracting 
 under those circumstances is bound 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 will not hear the objection by the vendor, that 
 the purchaser cannot have the whole. "(<7)' 
 
 § 1234. The principle was acted on by Lord Notting- 
 ham, in the case of Cleaton v. Gower,(r) where the defendant 
 Gower was tenant for life of certain estates in Shropshire, 
 and he and his late father agreed with the ijlaintiff that the 
 plaintiff should open and work 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 i^laintiff sought a specific performance of this contract : 
 the defendant objected that he was only tenant for life, and 
 subject to account for waste, and that he could not execute 
 the contract because it was inconsistent with his power : the 
 court decreed the defendant to execute the contract so far 
 as he was capable of doing it, and likewise to satisfy the 
 plaintiff such damages as he had sustained in not enjoying 
 the premises according to the contract. 
 
 § 1335. The principle is also well illustrated by Lord 
 
 (o) See e. g. per Turner, L. J , In Tluphes Day, 1 Ves. Sen., 224; Milliifan v. Cooke, 16 
 
 y Jones, 3 De G. P\ & J., 315 The authority Ves., 1; Pale v. Lister. 16 Ves., 7; Uill v. 
 
 of James V. Lichfield, L. R. 9 Kq., seems at Buckley, 17 Ves., 394; Western v. Russell, 3 
 
 least questionable. Compare Phillips v. V. & B., 187; Neale v. Macktnzie, 1 Ke., 474; 
 
 Miller L. R 9 C. P., 196, IOC P., 420, with Bennett v. Fowler. 2 Beav.,302; Sutherland 
 
 Caballero v. Henty, L R. 9 Ch., 447. See, v. Briggs, 1 Ha., 26, particularly 34; Wilson 
 
 however, Keays v Carroll, I. R. 8 Eq , 97. v. AVilliams. 3 .'ur. N. S.,810 (Wood V. C); 
 
 (p) In Mortlocb v. Buller, 10 Ves, 315. and cf. Dyas v Cruise, 2 .Jon. & L., 487. 
 
 Iq) See accordingly Attorney -General v. (r) Finch, 164. 
 
 J Clark V. Reins, 12 Gratt., 98; Waters v. Travis, 9 John., 450; Herbers v> 
 Gadsden, 6 Rich.'sEq., 281; Voorhee v. De Myer, o Sandf.'s Ch., 614; Jacobs 
 V. Locke, 2 Ired.'s Eq., 286; Erwin v. Myers, 46 Pa. at., 96; Mapier v. Dar- 
 lington, 70 id , 64; Weatherford v. James, 3 Ala., 170.
 
 COMPENSATION. 
 
 585- 
 
 Bolin,ul)roke' s case, {s) before Lord Tliiulo w. The incumbent 
 of a living had contracted with a tenant in remainder for the 
 purchase of the avowson, and on the faith of the contract 
 had built a much better house on the glebe than he would 
 otherwise have done : the tenant for life refusing to concur 
 in the sale, Lord Thurlow compelled the tenant in remainder 
 to convey a base fee for levying a fine, with a covenant to 
 suffer a recovery on the death of the tenant for life. 
 
 § la^G. In Wheatley v. Sladef^ Shad well, V. C, held 
 the principle under discussion not to apply where a large 
 part of the property could not be conveyed ; and con- 
 sequently, the contract in that case being for the sale of a 
 lace manufactory, and it turning out that the vendors were 
 only entitled to nine-sixteenths of the whole, and that those 
 parts were subject to a debt which would exhaust nearly 
 the wdiole of the purchase- money, he refused specific per- 
 formance. The vice chancellor's decision appears to have 
 been influenced by the circumstance that the vendors entered 
 into the contract under a mistaken impression that they 
 were possessed of the entirety of the property. But the 
 case, even if it can thus or otherwise upon its own particular 
 circumstances be supported, is not, it is submitted, likely 
 now to be followed. For it will be shown that, though the 
 difllerence between the property contracted to be sold and 
 that which the vendor can actually convey may be great, 
 the court will generally, notwithstanding this circumstance, 
 enforce the c5ntract where it sees that its intention is the 
 sale of whatever interest the vendor has. 
 
 § 1297. Indeed the tendency of the court in recent years 
 has been to apply the principle liberally. Thus where two 
 vendors contracted to sell two-sixths of certain leaseholds 
 " together with all other their rights and interests therein," 
 and it turned out that they were only entitled to two twenty- 
 first parts each, the purchaser was held entitled to specific 
 performance of the contract to the extent of the vendors' 
 interests, with a proportionate abatement of the purchase- 
 money, (w) 
 
 (s) ] Sch. & Lef., 19 n., quoted by Lord also Maw v. Topham. 49 Beav., 576, where 
 
 Cottenham in Great Western Railway Co. v. the vendors were only entitled lo three- 
 
 BlrminRham and Oxford Junction Railway lourtha. 
 
 Co 2 Ph., 605. (?<) Jones V. Evans, 17 L. J. Ch.. 469. See 
 
 (/) 4 Sim., 126. See the observations of too Leslie v. Crommelin, I. R. 2 Eq., 134. 
 Lord St. Leonards on this case, Vend., 263;
 
 586 FRY ON [SPECIFIC PERFORMANCE OF CONTRACTS. 
 
 § 1228. Again, where A., wlio had only an estate jyer 
 autre vie in property, the remainder in fee belonging to his 
 wife, contracted to sell the fee simple to B. (who was ignor- 
 ant of the state of the title), and then got his wife to concur 
 with him in conveying it to C. (who knew of B.'s contract), 
 it was held that B. was entitled to have a conveyance from 
 C. of A.'s interest, with compensation in respect of his wife's 
 interest which he was unable to convey or bind without her 
 consent. (v5) 
 
 § 1229. So where vendors contracted to sell the entirety 
 -of certain freeholds, and it was afterwards discovered that 
 they were entitled to an undivided moiety only, the pur- 
 chaser obtained a decree for the specific performance of the 
 contract by the vendors to the extent of their moiety, with 
 an abatement from the purchase money of one-half the 
 amoii nt. {w) 
 
 § 12:i<l>. And so where A. and B. contracted to sell lease- 
 hold property to C, and on examining the title it appeared 
 that A. was entitled to a moiety subject to a mortgage for 
 its full value, and that B. had no interest at all — facts which 
 were not known to C. at the time when he entered into the 
 contract — C. was held entitled to an assignment of A.'s 
 moiety, on the terms of covenanting to pay the rent and 
 perform the covenants in the lease, and also to pay the 
 mortgage-debt, and to indemnify A. in resjject to those lia- 
 bilities, (re) 
 
 § 1231. In each of the cases referred to i^i the last four 
 sections, the purchaser was unaware, at the time when he 
 entered into the contract, of the imperfection of the vendor's 
 title. (?/) But even if the purchaser has from the first been 
 aware of the state of the title, that circumstance will not 
 necessarily exclude him from the benefit of the principle 
 under consideration.' 
 
 (v) Baruesv. Wood, L. R. 8 Eq., 42-1. Cf. {x) Horrocks v Rigby, 9 Ch D., ISO. 
 Xelthorpe v. Holgatc, 1 Coll., 203. (y) See supra, § 453 et seq. 
 
 (w) Hooper y. Smart, L. R. 18 Eq., 683. 
 
 ' 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: 
 " Tliere 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 ni>t 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 f(jr such com- 
 pensation or damages. But, where no such remedy hes at law, there a peculiar
 
 COMPENSATION. 587 
 
 § 1333. Thus, in a recent case, real estate stood limited 
 hy marriage settlement to such uses as A. and his wife 
 should appoint, and in default of appointment to the use of 
 the trustees of the settlement during the wife's life, in trust 
 for her separate use, with renuiinder to A. in fee. A. agreed 
 to sell the fee simple to C. by a contract in which the wife's 
 interest was mentioned, but which went on to say that A. 
 would procure a proper assurance to be executed by all 
 proper parties ; afterwards the purchaser actually paid over 
 the purchase-money to the trustees, but the wife refused to 
 oonvey lier interest. Bacon, V. C, held that C. was entitled 
 to have the purchase completed to the extent of A.'s rever- 
 sion in fee, with comp^-nsation for the life interest of the 
 wife and a lien on the fund in the hands of the trustees. (?") 
 "If," said the Vice Chancellor, "a man enters into a con- 
 
 (a) Baker v Coi, 4 Cli. D , 464 (cf. S. C on gulsh Castle v. Wilkinson, L. R. 5 Ch., 535, 
 demurrer, 3 Ch. D., 359) See too Wilson v. infra, § 1236. 
 Williams, 3 Jur. N. S., Slu. ( f. and clisiiii- 
 
 ground for the interference of courts of equity seems to exist, in order to pre- 
 vent irreparable mischief, or to avoid a fraudulent advantage being tal^en of 
 the injured party. Thus, where there has been a part performance of a parol 
 contract for the purchase of hxnds, and the vendor has since sold the same to a 
 bona fide purchaser for a valuable consideration without notice: in such a case, 
 inasmuch as a decree for a specific performance would be ineffectual, and the 
 breach of the contract being by parol, would give no remedy at law for com- 
 pensation or damages, there" seems to be a just foundation for the exercise of 
 -equity jurisr.iction." Eq Jur., J^ 798 See the case of Robertson v. Hogs- 
 heads, 3 Leigh, mi. It has also been said, upon the highest authority, that 
 where the vendor never had any title to the laud 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 tU fact ts kmton 
 to the vendee, the latter cannot tile a bill in equity for the mere purpose of ob- 
 taining compensation in damages, for the nou-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 spe- 
 cifically, durinq the pendency "fa suit against him, to compel such performance, 
 the court will retain the suit; and will award to the complainant a compensa- 
 tion in damages, for the nou-performance of the contract by the defendant. 
 The principle on which this is based is to prevent a multiplicity of suits. ^ Be- 
 sides, the plaintiff, who had a iiood cause of action when his bill was tiled, 
 ought not to be turned out of co\irt, by the mere act of the defendant, without 
 either the relief for which he originally filed his bill, or a compensation m 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 faitli, supposing at the time he insti- 
 tuted his suit that a specific performance could be granted, and wt knoinng 
 that the defendant had previously parted with the title, the bill may be^ retained 
 for compensation. VVa-lworth, C3h., Moss v. Elmendorf, 11 Paige, 277; Hatch 
 V Cobb, 4 Johu.'s Ch , 559. Kent, I'h., Kimpshall v. Stone, 5 id., \m; AVood- 
 ward V. Harris, 2 Barb.'s Sup. Ct. R., 439; VVillard's Eq. Jur., 291; see Wis- 
 wall V. McGowan, 1 Hoff.'s Ch., 125.
 
 688 FKY ON SPECIFIC PEKFOMMANCE OF CONTJiACTS. 
 
 tract to sell something, representing- that he has the entire 
 interest in it, or the means of conveying the entire interest, 
 and receives the price of it and does not perform his con- 
 tract, then the other party to the contract, who has parted 
 with liis money or is i-eady to pay his money, is entitled to 
 be placed in the same joosition he would be in if the con- 
 tract had been completed ; or if not, by compensation to be 
 placed in the same position in which he would be entitled 
 to stand." («) 
 
 § ]^:i3. It is obvious that, in thus proceeding, the court 
 is executing the contract cij pres, or rather perhaps is carry- 
 ing into execution a new contract, (&) a course in which 
 difficulties sometimes arise which put restrictions on the 
 aijplicatiou of the princix3le under discussion. These have 
 now to be considered. 
 
 § 1234. The principle will not, it seems, be applied where 
 the alienation of the partial interest of the vendor miglit 
 prejudice the rights of third persons interested in the estate. 
 Thus where a tenant for life without impeachment of waste 
 under a strict settlement had contracted for the sale of the 
 fee, the court refused to compel him to alienate his life 
 interest, on the ground that a stranger would be likely to 
 use his liberty to commit waste in a manner different from 
 a father, and more prejudical to the rights of those in 
 remainder, (c) 
 
 § l^S.*. If the purchaser is, from the first, aware of the 
 vendor s incapacity to convey the whole of what he con- 
 tracts for, he cannot, generally, insist on having, at an 
 abated price, what the vendor can convey, (r/) 
 
 I I'^^SO. Thus where a husband and Avife signed a con- 
 tract for the sale of the wife's fee simple estate to the 
 plaintiff, who knew from the plain language of the contract 
 the true state of the title, it was held that, as the plaintiff 
 clearly never could have believed for a moment that the 
 husband could sell the fee simple, he was not entitled to 
 have a conveyance of all the husband's interest, /. e. his 
 estate for the joint lives of himself and his wife and his 
 
 (n) 4 Ch. D., 469. (c) Thomas v. Dering, 1 Ke , 729. Of. 8iipra»- 
 
 (b) Seeper J.oril Langdale, M.B., in Thomas § StS et seq 
 V. Bering, 1 Ke., 746. {d) Cf. bupra, § 1231.
 
 COMPENSATION. 589 
 
 estate by curtesy with an abatement of the pnrchase-money; 
 and the bill was accordingly dismissed, (e) 
 
 § 11337. Similarly where vendors were entitled only to 
 three-fonrths of the property, and the pnrchaser was at the 
 time he filed his bill aware, or had good reason to believe, 
 that no good title could be made to the whole of the 
 premises, Lord Romilh% M. R., held that, though he might 
 probably have recovered damages, yet, as he chose to lile a 
 bill for specihc performance, he was not entitled to any abate- 
 ment from the i)urchase-mone3% but that he might take 
 without abatement the three-quarters which the vendors 
 could convey. (/') And it has been decided that where a 
 person has dealt with a tenant for life for a certain lease, 
 being at the time aware that it would be in excess of the 
 tenant for life's power, and so endeavoring to put a fraud 
 upon the settlement, he will not afterwards be allowed to 
 call for a lease from the tenant for life to the extent of his 
 interest : the contract was not at the time it was entered 
 into a fair and proper one, and the coui't therefore would 
 not interfere, (p') 
 
 ^ 1238. In the case of Edward Wood v. Marjoribanks,(^) 
 the purchaser of an advovvson discovered, after accepting 
 the title, that the benefice was subject to a mortgage to 
 Queen Anne's bount}^ which he might have discovered 
 before : there had been no misrepresentation or willful con- 
 cealment on the part of the vendors : on bill filed by the 
 purchaser for specific performance with compensation, 
 Stuart, V. C, decreed specific performance, but without 
 compensation, and ordered the purchaser to pay the costs 
 of the suit ; and this decision w^as affirmed by Knight Bruce 
 and Turner, L. J. J. 
 
 § l!33i>. Where there is a defect in the quantity of the 
 estate, the principal on which the abatement is calculated is 
 'prima facie acreage. But where woodland was sold as so 
 many acres, and the w^ood as having been valued at so much, 
 
 (fi) Castle V. Wilkinson, L. R. 5 Ch., 535. St. Leonards appears to doubt this decision. 
 
 Of. and distinguish Hooper v. Smart, L. R., Vend., 257; and it certainly seems difficult 
 
 IS Eq., 683, supra, § 1229; Barker v. Cox, 4 to reconcile it with some of the more recent 
 
 Ch. D , 464, supra, 1232. See too Keayes v. Ciises already cited supra, § 1227 et seq. 
 Carroll. 1. R. 8 Eq., 97; Fairhead v. .-iouthee, (g-) O'KourKe v. Percival, 2 Ball & li., 58. 
 11 \V. R., 739. {h) 1 Gifl-., 384; 3 De G. & J., 329; 7 H. L. 
 
 (/) Maw V. Topham, 19 Beav.,576. Lord C.,806.
 
 690 FRY ON SPECIFIC PEKFOKMAXCE OF CONTUACTS. 
 
 the abatement was for so mucli as the soil covered with 
 wood would be worth without the wood.(/) 
 
 § 1340. Where the difference in value of the interest 
 contracted for and the interest that can actuallj^ be con- 
 veyed is incapable of computation, the court will not, in- 
 deed cannot, enforce specific performance. (,/) But having 
 regard to some of the decided casps ah-eady referred to,(Z:) 
 it is conceived that the court will seldom now consider a 
 difficulty of this kind insuperable. 
 
 § 1341. In one case what was contracted to be sold was 
 an absolute and indefensible estate in fee, and it turned i^'Ut 
 that the vendors held under a crown grant, containing va- 
 rious reservations and conditions with a proviso for re-entry 
 on breach of condition. The court considered that the 
 l^roper amount of compensation was not estimable, but held 
 that the purchaser was not bound to take the property with- 
 out compensation, and therefore was entitled to the pay- 
 ment with interest of a part of the purchase-money that he 
 had paid, and to a lien on the estate for the amount. (Z) 
 
 § 1243. Althougl], where there are no data from which 
 the amount of compensation can be ascertained, the court 
 cannot enforce the contract with compensation, (w) the ob- 
 jection that the compensation is unascertainable is, as has 
 Ibeen already in substance observed, one which the court is 
 unwilling to entertain ; and it grants relief with compensa- 
 tion in many cases in which the ascertainment of the amount 
 to be paid cannot be said to be certain or exact, but only 
 the reasonable estimate from the evidence of competent per- 
 sons ; as, for instance, where compensation was granted for 
 the existence in a stranger of the right to dig coals in the 
 lands sol d.(7?)' 
 
 (i) Hill V. Biukley, 17 Ves., 394. See too life was dismissed by Lord Lyndhurst (then) 
 
 McKcDzie V. ELesketh.T Cii. D 675, where the C. B Cf. Thomas v. Dering, 1 Ke , 729; 
 
 reut was reduced proportionately to the de- Graham v. Oliver. 3 Beav , 124. 
 
 flclency of acreage, and Powell v. Elliott, L. (/.;) See supra, § 1227 tt seq 
 
 K 10 (.'h., 424, 430. iO VVestmacott v. Robins, 4 De G. F. & J., 
 
 (j) See supra, § 1212, infra, § 1248, and Col- 390. 
 
 Her V. .lenliins. You.. 29.5, whtre bill by pur- (to) '^ee infra, § 1212 
 
 chaser's heir lor specific perlormance with (w) Ramsden v Hirst. 4 .Jur. N. S.,200. Cf. 
 
 compensation for an outstanding lease for Powell v. Elliot, L. K. lOCh., 424. 
 
 ' Eule as to cmapenmtion.'] In oider tliat a party be entitled to compensa- 
 tion, the defect complained of mu.st he;— l.st. Such that it can l)e made the 
 subject of compen.satiou or of recompense in damages 2d. It must be a case 
 in which the court is satisfied that the purcha.ser would not have declined the 
 contract had he known the defect at the time of the piu'chase, Byer v. Marks, 
 2 Sweeney, 715. Spencer, J., said in this case: 1st. A purchaser may insist
 
 COMPETiTSATIOlSr. 691 
 
 § 1343. Again it iriay, it is conceived, be laid down gener- 
 ally that, wherever the court sees that the enforcement of 
 the contract with compensation \vonld be unjust or unfair, 
 or would disappoint the reasonable expectation of the par- 
 ties, there it refuses to take such a course.' 
 
 § 1344. Thus, where an estate which really contained 
 only 11,814 acres was, by a bond fide mistake of the vend- 
 or's agent, described in the contract as containing 21,750 
 acres, and it appeared that the vendor had accepted the 
 price on a computation of the rental of the estate. Lord 
 Komilly, M. R., considered that to force him to sell the es- 
 tate for little more than half the price contracted for would 
 be a hardship, and that the case was one of mistake ; and 
 he accordingly held that the purchaser might, at his option, 
 either take the actual quantity at the contract price or have 
 the contract rescinded, but that he was not entitled to spe- 
 cific performance with an abatement for the deliciency of 
 acerage. (o) 
 
 § 1345. A purchaser cannot insist on the vendor per- 
 
 (0) Earl of Durham v Lcgard, 34 Beav., Colver v. Clay, 7 Beav , 188; and distinguish 
 611. Cf the remarks of Lord Abinger. € J . Hill v. Buckley. 17 Ves , 394 (.supra, § 1-230), 
 in Price v. North, 2 Y. & C. Ex , 626, and and McKenzie v. Ilesketb, 7 Ch. D., 675. 
 
 upon a good, valid and unincumbered title. 2d. He is entitled to receive sub- 
 stantially, from bis vendor, all tbe property for wbicb be contracted. 3d. If 
 he obtains such a title, and, by the conveyance offered, obtains substantially 
 the property for which he contracted, a court of equity will enforce perform- 
 ance on his part, otherwise not. These general rules are not, in my opinion, 
 modified or affected by those relating to compensation, which the court will 
 enforce, in all proper cases, in favor of the purchaser against the vendor, when 
 specific performance has been or shall be decreed; as, for instance, in the case 
 of a slight or immaterial deficiency in the estate, a variance of description, or 
 an incumbrance affecting the title. The doctrine of compensation, as a rule of 
 equity, follows these and like cases, in order to pay the ]jurchaser for those 
 slight defects that in equity he may be entitled to, if in equity he should be 
 compelled to fulfill the contract of purchase; and, in such cases, compensation 
 follows as a matter of right, and I hold must be provided for in the decree." 
 See, also. Caun v. Cann, iJ Sim., 530; King v. Bardean, « John.'s Ch., 38; 
 Morss V. Elmendorf, 11 Paige's Ch., 277; Powell v. Elliott, L. R., 10 Ch., 424; 
 Lee v. Home, 27 Mo., 521; Hepburn v. Auld, 5 Cranch, 262; Hcbers v. Gads- 
 den, 6 Rich.'s Eq., 284; Stockton v. Union Oil Co., 4 W. Va., 273; Bell v. 
 Thompson, 38 Ala., 633; Smith v. Fly, 24 Tex., 345; Scott v. Bilgerry, 40 
 Miss., 119. Where there is a pecuniary charge against an estate which is 
 amply protected by an adequate security, equity will compel a vendee to re- 
 ceive the title in such a case. Halsey v. Grant, 13 Ves., 75; Horniblow v. Shir- 
 ley, 13 id., 181; Fildes v. Hooker, 3 Mad., 193; Thompson v. Carpenter, 4 Pa. 
 St., 132. 
 
 1 Where A. purchased of B. 686 acres of land for cultiva'.lon, and the ven- 
 dor's title to 2U9 acres thereof was found defective, it wac ho' ' 'hat the vendee 
 should not be compelled to take the residue, although it lay disliix ', and separated 
 from the other portion by a pubhc road. Jackson v. I.igon, ;; A-^-,,h, 161 ; see 
 Bryan v. Read, 1 Dev. & Bat.'s Ch., 78; Read v. Noe, \j Yorg. ;.'83.
 
 ^592 FRY ON SPECIFIC PEIiFOKMANCE OF COXTIIACTS. 
 
 forming the contrnrt, giving an indemnity against a defect, 
 unless the indemnity was contracted for.(^) 
 
 § 134©. In Bainbridge v. Kiunaird,(<7) a vendor (since 
 deceased) had contracted to sell to tlie plaintiff a property 
 Avhich was, in common with other estates, subject to 
 a charge of £10,000 raisable for the benefit of the vendor's 
 sisters. Lord Romilly. M. R., held tliat the plaintiff might 
 have a simple decree for specific performance against the 
 trust devisees of the vendor, but was not entitled either to 
 compensation in respect of the charge or to an indemnity 
 against it. 
 
 § 1217. Within what limit of time after the conclusion 
 of the contract a claim for comi)en:?ation must, if made at 
 all, be made, is a question that may obviously in many 
 cases be important, 
 
 § 1S48. There is, it is conceived, no doubt that the court 
 will enforce compensation, at any time before the com- 
 pletion of the transaction by the execution of the conveyance 
 and the payment of all the purchase-money, in respect of 
 any matter, the fit subject of compensation, which has 
 arisen before that time, and whether before or after the con- 
 clusion of the contract. Thus, where an estate was sold as 
 tithe free, and, after a claim had been started by the 
 incumbent of one parish, the conveyance was executed, but 
 a part of the purchase-money w^as set aside as an indemnity 
 against this claim : the claim came to nothing, but, before 
 the indemnity fund w^as transferred, it appeared that the 
 land was in another parish, and was subject to tithe to its 
 incumbent : 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.('r) 
 
 § 1249. And on the same principle the court will allow 
 comiDensation for deterioration which may have occurred in 
 the value of the estate, between the time when the contract 
 ought to have been completed by the vendor, and the time 
 when he does in fact make out the title, (5) whether it have 
 arisen by the willful default or merely by the negligence of 
 
 (P) Balnianno v. Lumley, 1 V. & B., 224; 353. Cf. (under the old practice) Gator v. 
 
 per Liord Eldon In Paton v. Brebner, 1 Bli., Earl of Pembroke, 1 Bro. C. C, 301 ; 2 Bro. 
 
 ■66; Aylett v. Ashton, 1 My. & Or., 105; cf. C 0., 282; Frank v. Basnett. 2 My. & K., 618; 
 
 supra, § 119J. Phelps v. Paothero, 7 De G. M. & G., 722. 
 
 (5) 32 Beav , 346. (s) Binks v. Lord Kokeby, 2 Sw., 222. 
 
 {r) Crompton v. Lord Melbourne, 5 Sim.,
 
 coMPEisrsATioN. 593 
 
 the vendor or his tenants, (i^) Thus, where stone had been 
 subtracted from a quarry pending a suit for specific per- 
 formance of a contract to grant a license to work it, com- 
 pensation was obtained by means of a supplemental bill.('?^) 
 § 1^50. Whether, after conveyance has been executed 
 ^nd purchase-money paid, the court still has jurisdiction to 
 enforce comjDensation, is a question on which there has been 
 «ome conflict of judicial opinion. (?)) It is submitted that 
 rights to compensation under the contract may exist even 
 ^f ter the conveyance and payment have been executed and 
 made ; and further that, whenever such rights exist, they 
 may now be asserted in the same action as that in which 
 specific performance is claimed. Where the contract gives 
 no right to compensation the case is, of course, different, (zo) 
 
 2. (b) PurcJiaser insisting on the contract, tJtere being a 
 cond/ition for compensation. 
 § 1351. The language of the condition must of course 
 have an important effect on the subject for compensation 
 under any particular contract, and in every case serves at 
 least to indicate the nature of the matters in respect of 
 which, and the circumstances under which, both parties 
 intended that the purchaser should have a right to com- 
 pensation. But the purchaser is not, it is conceived, bound 
 to show that the subject-matter of his claim is of a kind 
 expressly embraced by the words of the condition : except 
 in so far as there may be anything in the contract excluding 
 his claim, or empowering the vendor to defeat it — which are 
 matters to be determined according to the ordinary rules of 
 •construction(a?) — he is entitled not merely to the right 
 expressly given to him by the condition, but to the full 
 measure of relief applicable to the case according to the 
 general princij)les already discussed : in other words, his 
 right to compensation under the condition is generally 
 cumulative to a purchaser's ordinary right to it: but he 
 must, of course, submit to the cor j esponding limitations of 
 the general I3rincii3les. 
 
 (0 Foster v. Deacon, 3 Mad., 394. Cf. per (v) Compare the cases cited in §§ 1252, 1253, 
 
 Lord Eldon In Binks v. Lord Rokeby, 2 Sw., infra. 
 
 226. (ao) Consider Brett v. Clowser, 5 C. P. D., 
 
 (M) Nelson v. Bridges, 2 Beav., 239. On 376. 
 
 the question of deterioration see further (a;) Consider the observations of Lord West- 
 
 inlra. Part V. chap. v. § 1404 et Eeq. bury in Cordingley v. Cheeseborough, 4 De 
 
 38 
 
 G. F. & J.,3S4.
 
 594 FRY ON SPECIFIC PERFORMANCE OF CONTRACTS. 
 
 § 1S53. In accordance with a principle already stated, (?/)• 
 it lias been held, in cases decided before and also since, the 
 passing of the Judicatnre acts, that a condition for com- 
 pensation may be enforced notwithstanding that the con- 
 veyance has been executed. In Cann v. Cann,(2) Shadwell, 
 y . C. , decided that a right of the purchaser to receive com- 
 pensation, under such a condition, for a misstatement (dis- 
 covered after possession taken) in the particulars as to the 
 value of the property was not at all affected by the circum- 
 stances of his having paid the whole purchase-money into 
 court and taken a conveyance. Subseqviently the court of 
 exchequer unanimously adoi:>ted the same view :{a) and the 
 jurisdiction has again been emphatically asserted, upon a 
 full consideration of the authorities, by Jessel, M. R., in a 
 case in which his lordship held a purchaser entitled to the- 
 benefit of a condition for compensation, in respect of a 
 deficiency of acreage discovered by measurement after the 
 execution of the conveyance. (5) 
 
 § lSo3. On the other hand, in a case wdiere the land sold 
 was described as "available" for a building site for a ware- 
 house, and after the completion of the purchase the pur- 
 chaser discovered that under the land ran a culvert (not 
 mentioned in the particulars) with which he could not 
 interfere, Malins, V. C, held that, there being no question 
 of fraud, the purchaser could not after conveyance have the- 
 benelit of a condition for compensation in respect of errors or 
 misstatements :{c) and his lordship subsequently expressed 
 his deliberate adherence to this \iew.{d) 
 
 § 1354. The decisions referred to in the last preceding 
 section appear to be irreconcilable with the authorities 
 previously cited. It is suggested that if a vendor wishes to 
 preclude the j)0ssibility of controversy on the point, he may 
 effectually do so by simply inserting in the contract words 
 to the effect that compensation shall be taken and given 
 
 (y) Supra, § 1250; and cf. per Hall, V. C, (c) Manson v. Thacker, 7 Ch. D., 620. Cf.- 
 
 In Jones v. Cliflford, 3 Ch. D., 779, 792. Brett v. dowser, 5 C. P D., 376. 
 
 (s) 3 Sim., 447. Cf. Horner v. Williams, 1 (d) Besley v. Besley, 9 Ch. D., 103; Allen v. 
 
 Jones & C, 274. Richardson, 13 Ch D., .524, 541. where the 
 
 (a) In Bos V. Helsham, L. R. 2 Ex., 72. Vice Chancellor expressly dissented from 
 
 ib) Re Turner and Skelton, 13 Ch. D.,130. Re Turner and SkcUon, 13 Ch. L>., 524, con- 
 See too Phelps V. White, 5 L. R Jr., 318, sidering that the doctrine of caveat emptor 
 where the purchaser was held entitled to applies to such cases. Consider Browlie v. 
 compensation, though he had means of dis- Campbell,5App. C, 925,936; Leuty v. Hillas,. 
 covering the error before completion; and 6 W. K. 51, 2 De G. & J., 110. 
 distinguish Brett v. Clowser, 5 C. P. D., 376.
 
 COMPENSATIOISr. 595 
 
 only for errors or other things discovered before the com- 
 pletion of the purchase. 
 
 § 1255. In consonance with the general principles on 
 which the court deals with conditions of sale,(e) its tendency 
 is to put a liberal and comprehensive construction upon 
 conditions giving compensation to a purchaser, and a strict 
 one upon any which limit his right to it. 
 
 § 1956. Thus, where by an innocent mistake the par- 
 ticular described part of the estate as customary leasehold 
 renewable every twenty-one years, whereas in fact there was 
 no such custom to renew; the fourth condition of sale 
 empowered the vendor to vacate the sale upon objection 
 taken to the title, and another condition stipulated that if, 
 through any mistake, the estate should be improperly 
 described, or any error or misstatement should not vitiate 
 the sale, but the vendor or purchaser should pay or allow 
 compensation for it; Lord Hatherley (then Wood, V. C.,) 
 held that the misstatement fell within the condition for 
 compensation, and further that it was not an objection to 
 title, within the meaning of the fourth condition, enabling 
 the vendor to vacate the sale.(/) 
 
 § 1357. And where land was described in the particulars 
 as containing 753 square yards, whereas it actually con- 
 tained only 573 square yards, and one of the conditions pro- 
 vided that if any error, misstatement, or omission in the 
 particulars should be discovered, the same should not 
 annul the sale, nor should any compensation be allowed by 
 the vendor or purchaser in respect thereof, it was held by 
 Malins, Y. C, that such a condition must be construed as 
 intended to cover small unintentional errors and inaccuracies, 
 but not to cover reckless and careless statements, and that 
 so large a deficiency as 180 square yards out of 753 did not 
 come within the condition ; and that the purchaser was 
 therefore entitled to compensation. (^) 
 
 § 1358. AYhere, however, the conditions stipulated that 
 (1) the admeasurements should be presumed to be correct, 
 but if any error were discovered therein, no allowance 
 should be made or required either way; (2) if any error of 
 
 (c) See Part V. chap. i. § 1153 etseq.; and (g) Whitemore v. Whitemore, L. R , 8 
 
 per Lord Westbury in Cordingley v. Cheese- Eq., 603. Cf. Porlman v. Mill, 2 Russ., 570. 
 
 borough, 4 De G. F. & J. , 381 et eeq. 574. 
 
 (/) Painter v. Newby, 11 Ha , 26.
 
 596 FRY ON SPECIFIC PERFORMANCE OF CONTRACTS. 
 
 any kind were made in the description of tlie premises such 
 error should not invalidate the sale, but a fair compensation 
 should be given or taken ; and (8) if the purchaser should 
 make any objection as to compensation or otherwise which 
 the vendor should be unwilling to remove or comply with, 
 the vendor should be at liberty to vacate the sale : and the 
 area of the property, stated in the particulars to 7,683 
 square yards, was found by the purchaser upon actual 
 admeasurement to be only 4,350 square yards: and the 
 vendor before suit offered to vacate the contract, but the 
 purchaser refused the offer and insisted upon the perform- 
 ance of the contract with compensation for the deficiency : 
 Lord Westbury held that the right of the purchaser must 
 be determined by the operation of the conditions read in 
 connection with one another, and that, though the court 
 probably would not, at the vendor's instance, have enforced 
 the condition as to erroneous admeasurement where the 
 error was so great, the purchaser could not, in the face of 
 that condition, have an allowance for the deficiency of 
 area.(7i)' 
 
 § 1259. It has also been decided that where the con- 
 ditions, while providing that, if any mistake appear to have 
 been made in the description of the property or the vendor's 
 interest therein, it shall not annul the sale, but shall be the 
 subject of compensation, at the same time provide that, if 
 any objection is persisted in, the vendor may rescind the 
 contract, then, if the purchaser persists in a claim for com- 
 pensation which really involves an objection to the title, the 
 vendor may rescind the contract, and, if he does, the court 
 will not afterwards give the purchaser any relief in respect 
 of the condition for compensation. (^) 
 
 § 1260. Another illustration of the principle that a 
 purchaser's right to claim compensation may be abrogated, 
 notwithstanding a condition for compensation, by the 
 
 (h) Cordlngley v. Cheeseborough, 4 De G. affirmed L. R. 6 Ch., 91. And see Cordlngley 
 F. & J., 379, affirming 8. C. 3 Giff., 496. v. Cheeseborough, 4 De G. F. & J., 379. 
 
 (») Mawson V. Fletcner, L. R. 10 Eq., 212, 
 
 ? See Hepburn v. Auld, 5 Cranch, 262, and Foley v. McKeon, 4 Leigh, 627, 
 where a lot was advertised for sale at auction as containing nearly two acres. 
 At the sale, the auctioneer stated that there were nearly two acres, and pointed 
 out the boundaries— the sale was in gross : and there was in reality but one 
 acre and twelve poles. Held, that the deticiency should not avoid the sale.
 
 COMPENSATION. 597 
 
 operation of another term of the contract, is afforded by the 
 case of Williams v. Edwards. (/) There A. had contracted 
 to sell to B. certain freehold property, and the contract con- 
 tained a stipulation that errors in the description of the 
 premises should not vacate contract, but a reasonable abate- 
 ment or equivalent should be made or given, but it was also 
 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 purchase, the contract should be 
 void and be delivered up to be cancelled ; and B.'s counsel 
 was of opinion that a good title could be made only to two- 
 thirds, and that one-third was held for a life only : the 
 purchaser insisted on specific performance with compensa- 
 tion ; but it was refused, because the contract was by its 
 special terms void under the circumstances. 
 
 § 1^61. In a case which came before the House of Lords, 
 the particulars stated that the fines in the manor of T., 
 which was the subject-matter of the sale, were arbitrary, 
 and also that the clear profits of the manor for the last eight 
 years had averaged £150 a year ; and one of the conditions 
 of sale provided for compensation being given for errors and 
 misstatements. It turned out that by the custom of the 
 manor only one class of fines was arbitrary ; but that the 
 clear profits of the manor exceeded £200 a year. The lord- 
 ships refused to give the purchaser compensation for the 
 misstatement as to the fines, considering that, reading the 
 statements in the particulars as a whole, there had been 
 no substantial misrepresentation : but it was intimated in 
 the speeches of Lord Brougham and Lord Cottenliam(A-) 
 that, if the misstatement as to the fines had been a sub- 
 stantial one, the impossibility of computing the proper 
 amount of compensation would have prevented its being 
 given. (/; 
 
 § 1S63. Damages may be said to be a species of com- 
 pensation, inasmuch as they are awarded in order to make 
 good to the purchaser some loss or expense which he has 
 suffered or been put to in connection with the contract, but 
 
 U) 2 Sim.. 78. See per Lord Westbury in (h) Wliite v. Cuddon, 8 CI & F., 786, 792. 
 
 Cordlngiey v. ChecBeborougli, 4 De G. F. & (l) White v. Cuddon, 8 CI. & F., 766. See 
 
 J , 885; and cf. Hudson v. Buck, 7 Cti. D., supra, §§ 1212, 1240 et seq. 
 683, 687.
 
 C98 FRY ON SPECIFIC PERFORMANCE OF CONTRACTS. 
 
 they are so distinct a form of relief that they may most 
 conveniently be discussed in a separate chapter. (m)' 
 
 (m) See Infra, Part V. chap. 111. § 1263 et eeq. 
 
 ' Small and trifling incumbrances on land are generally disregarded Winne 
 V. Reynolds, 6 Paige, 407; Ten Broeck v. Livingston, 1 John.'s Ch., 357. But, 
 although both quit-rents, and entire rent charges, are subjects of compensation 
 (Esdaile v. Stephenson, 1 S. & St , 124; Horniblow v. Shirley, 13 Ves., 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 ac- 
 cept compensation, or to complete the contract, unless the vendor can procure 
 a certain appointment of the charge (Barnewell v. Harris, 1 Taunt., 431), pro- 
 vided 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, although it 
 may not be an absolutely perfect exoneration. Casmajor v. Strode, 2 Swanst., 
 356. 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 
 specific performance of a contract for the sale of a certain tract of land, although 
 the quantity of the tract is not stated in the contract, the defendant may show 
 by parol evidence that the complainant, before the sale, represented to the de- 
 fendant 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 tlie 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 refu.sed. In a case where it would be 
 difficult to ascertain the injury resulting from a breach 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 in- 
 jury, nor direct an issue of quantum domrdficahis. Pratt v. Law, 9 Cranch, 
 456; Pratt v. Campbell, 2 Pet., 354.
 
 DAMAGES. 599 
 
 CHAPTER III. 
 
 OF DAMAGES. 
 
 § 1363. In early times, the Court of Cliancery did not 
 •entirely disclaim jurisdiction in respect of damages, where 
 they were incident to the subject-matter already in con- 
 tention before the court, (a) Subsequently the jurisdiction 
 was disowned, and a broad distinction set up between com- 
 pensation and damages, the extent and measure of the one 
 Ibeing regarded as different from that of the other, so that 
 (to follow the illustration given by Lord Eldon) if A. con- 
 tracted to sell B. an estate tithe free, and B. contracted to 
 sell it to C. on the same conditions, and it was found that 
 
 A. could not convey tithe free, he might be compelled by 
 the court to make compensation for the difference in the 
 Talue of the property, but not for the damage sustained by 
 
 B. from being unable to complete his contract with C.{b) 
 
 § 1264. However, in a case which came before the lords 
 justices in the year 1855, the jurisdiction of the Court of 
 Chancery to award damages for the want of a literal per- 
 formance of a contract which it had directed to be specifically 
 performed was re-asserted. "It is the constant course of 
 the court," said Turner, L. J., "in the case of the vendor 
 and purchaser, where a sufficient case is made for the jDur- 
 pose, to make an inquiry as to the deterioration of the 
 estate, and in so doing, the court is, in truth, giving 
 damages to the .purchaser for the loss sustained by the con- 
 tract not having been literally performed. "(c) 
 
 § 1265. In the year 1858 an express power of awarding 
 damages in cases of specific performances was conferred 
 upon the Court of Chancery by the chancery amendment 
 act of that year(rZ) (commonly called Lord Cairns' act), 
 whereby it was enacted (section 2) that, in all cases in which 
 the Court of Chancery then had jurisdiction to entei tain an 
 
 (a) Cleaton v. Gower. Finch, 1C4; City of (6) Per Lord Eldon in Todd v. Gee, 17 
 
 London v. Nasli, 3 Atk , 51-2, where Lord Ves , 278; Jenkins v. Parkinson, 2 My. & 
 
 Hardwicke refused speciflc performauce, but K., 5 
 
 relieved by way of dii mages, to be ascertained (c) In Protherov. Phelps, 7De G. M. &G. , 
 
 toy an Issue ol quantum damniflcatus. 734.
 
 600 FRY ON SPECIFIC PERFORMANCE OF CONTRACTS. 
 
 application for the specific performance of any contract, it 
 should be lawful for the same court, if it should think fit, 
 to award damages to the party injured either in addition or 
 in substitution for such specific performance ; and that such 
 damages might be assessed in such manner as the court 
 should direct. 
 
 It is to be noticed that the jurisdiction given by this enact- 
 ment is a discretionary one, and enables the court to deprive 
 a suitor of what would otherwise be in his right to specific 
 performance. 
 
 § 1366. It was — as indeed the language of the second 
 section of Lord Cairns' act clearly shows — a condition pre- 
 cedent to the Court of Chancery's awarding damages under 
 that act that the plaintiff should show himself to have been 
 entitled, at the time when he commenced his suit, to some 
 equitable relief of the nature specified in that section. 
 Accordingly w^here a plaintiff prayed for the performance of 
 an alleged contract by a company to allot shares to him,, 
 and also, if all the shares had been allotted to other persons, 
 for damages, and it appeared that all the shares had been 
 allotted before the filing of the bill, it was held that, specific- 
 performance having from che first been impossible, the 
 claim for damages also failed, (e) 
 
 § 1267. In a case decided by Lord Hatherley (when 
 AYood, V. C), the contract was that the defendant should 
 grant a lease of a paper mill to M. ; that M. should pay £122' 
 for sundry articles on the premises, and should execute 
 sundry improvements ; and that, if the defendant should 
 fail to grant a valid lease, he would repay the £122 and all 
 outlay on improvements. M. paid the £122 and expended 
 about £5,000 on the premises ; but afterwards, on investiga- 
 tion of the title, it appeared that the defendant could not 
 grant a valid lease according to the contract. Upon bill 
 filed by M. for specific performance, or, if the defendant 
 could not grant a valid lease, for repayment of M.'s outlay 
 and damages, it was argued for the defendant that there could 
 be no specific performance of the contract to grant a lease^ 
 that the alternative contract to repay outlay was not a sub- 
 
 (d) 21 & 22 Vlct., c. 27 V. Earl of Shaftesbury, L. R. 7 Eq ,270; Scott 
 
 {e) Ferguson t. Wilson, L. R. 2 Ch., 77. v. Rayment, L R. 7 Eq., 112; Rogers v. 
 
 Compare Howe v. Hunt, 31 Beav, 42U, and Challis, 27 Beav , 175; and Middleton v. 
 
 Hilton V. Tipper, 16 W. R., 888, with Frank- Magnay, 2 H. & M., 236. 
 
 linski V. Ball, 33 Beav., 560. See, also, Lewers
 
 DAMAGES. 601 
 
 ject for specific performance, and that damages would not 
 be given where specific performance was impossible. But 
 these arguments were repelled by the judge, who said, 
 "There is an implied contract in every case between vendor 
 and purchaser, that the purchaser shall have a lien on the 
 property to the extent of the purchase-money he has paid, 
 and here there is an express stipulation that the money 
 expended shall be repaid. This right will sustain a claim 
 for damages just as much as the right to specific perform- 
 ance of a contract to grant a lease which has dropped by 
 reason of the impossibility of performance. "(/) 
 
 § 1268. In a case decided in the year 1866, where, after 
 specific performance of a contract had been decreed, certain 
 facts occurred from which it was alleged that damage had 
 arisen to the plaintiffs, Kindersley, V. C, held that the 
 Court of Chancery had, under Lord Cairns' act, no jurisdic- 
 tion to make after decree, on motion in the cause, an order 
 for assessing damag^-s ; inasmuch as such an order would in 
 effect be a supplemental decree founded on what had 
 occurred since the decree was made.(/7) 
 
 § 1269. Now, however, the jurisdiction conferred upon 
 the Court of Chancery by Lord Cairns' act,(^) and also all 
 the powers of granting damages which before the passing 
 of the judicature acts were exercisable by the common law 
 courts, are by virtue of the judicature act, 1878 (sections 16, 
 76), vested in the high court of justice ; and by the last 
 mentioned act it is expressly enacted (section 24) (7) that 
 the high court and court of appeal, in the exercise of their 
 respective jurisdictions, in every cause or matter pending 
 before them respectively shall grant, either absolutely or on 
 such reasonable terms as to them shall seem just, all such 
 remedies whatsoever as any of the parties thereto may 
 appear to be entitled to, in respect of any and every legal 
 or equitable claim properly brought forwai'd by them 
 respectively in such cause or matter ; so that, as far as 
 possible, all matters so in controversy between the parties 
 may be completely and finally determined, and all multi- 
 plicity of legal proceedings concering any of such matters 
 avoided. 
 
 (/) Middleton v. Magnay, 2 H. & M., 237. ment, upon defendant's default, see supra, 
 {(/) Corporation of Hythe v. East, L. R. 1 Part IV. chap. iv. § 1142. 
 Eq., 620. As to granting damages after judg- (ft) see Fritz v. Hobson, 14 Ch. D., 542.
 
 ■602 FRY ON SPECIFIC PERFORMANCE OF CONTRACTS. 
 
 § 1270. The court therefore can now give damages in any 
 -of the following cases, viz.: — 
 
 (1) In substitution for specific performance where there 
 is a case for specific performance — under Lord Cairns' act. 
 
 (2) Where there is no case for specific performance — 
 under the judicature acts.(^) 
 
 (3) In addition to specific performance in whole or in 
 part— under Lord Cairns' act, and probably also under the 
 judicature acts. 
 
 ^ 1271. Notwithstanding the judicature acts, the ob- 
 servance of the condition mentioned in a previous section(y) 
 is still obligatory upon the court in the exercise of its dis- 
 cretionary jurisdiction under Lord Cairns' act ; and damages 
 in addition to or in substitution for specific performance 
 will be given by virtue of that jurisdiction only when the 
 plaintiff had a case for specific performance at the time 
 when he issued his writ. (A*) 
 
 § 1973. The court's jurisdiction in damages is an apt 
 and flexible instrument for doing exact justice under the 
 diverse and complicated circumstances of many of the cases 
 upon which the court has from time to time to adjudicate. 
 
 § 1373. For instance, where the plaintiff contracted with 
 the defendant to take a lease of property belonging to the 
 latter, for the purpose, as he knew, of carrying on a busi- 
 ness which the plaintiff intended to carry on there, and, 
 owing to the defendant' s willful refusal to perform his x^art 
 of the contract, the plaintiff was for fifteen weeks unable to 
 commence his business ; the court, in addition to giving 
 judgment for the specific performance of the contract, 
 awarded £250 to the plaintiff by way of damages, in respect 
 of his loss of profits during the fifteen weeks. (Z) , 
 
 § 1374. Where the i^laintiff was at the time when he 
 filed his bill entitled to specific performance, and also to 
 damages for injury occasioned to him by tlie defendants' 
 delay of performance, and before the suit could be brought 
 to a hearing the defendants ]3erformed the contract ; it was 
 held that the plaintiff was nevertheless justified in bringing 
 his suit to a hearing for damages. (???.) 
 
 (i, See infra, § 1278. 2), 26 VV . R , 3GS ; Wesley v. Walker, iO W. R., 
 
 (j) Supra. § 1266. 36S. Consuler Hyani v. Terry, 25 Sol. .Jo ,371. 
 
 (k) While V liokty, 2« W. R , 133. im) ( <>ry v. Tlie Thames Iron Works and 
 
 U) Jauues v.i.\Uller,6Ch. D.,153; S.C. (So. Shipbuildiiif; < o., il W. R , .589; cf. S. S. (in 
 
 Q. l^.;3 L K. Q. U.,181.
 
 DAMAGES. 603 
 
 § 1375. Sometimes the court can best do justice by en- 
 forcing the specific performance of one part of the contract 
 and awarding damages for breach of the remainder. Where, 
 for instance, a man contracted to pull down an old house, 
 to rebuild, and to accept a lease of the new building, and 
 then made default in rebuilding. Lord Hatherley (then 
 Wood, y. C.,) held the intended lessor entitled to have 
 damages for the non-building, and also specific performance 
 of the contract to accept a lease. (t?) 
 
 § 1276. Again it may well happen that, though the court 
 has jurisdiction to enforce the specific performance of a con- 
 tract, the justice of the case will be better met by awarding 
 damages in substitution. Thus where a railway C(»mpany 
 contracted with a landowner to " erect, set up and construct 
 a station," on land which they had bought from him, but 
 the contract contained no further description of the station, 
 and no stipulation as to. the user of it when erected ; and 
 the company afterwards refused to erect a station on the 
 agreed site ; the court of appeal in chancery, considering 
 that it could not satisfactorily do justice by means of a 
 decree for si)ecific performance, directed that the damage 
 sustained by the landowner by reason of the non-perform- 
 ance of the contract should be ascertained (by an inquiry in 
 chambers) aiid the amount paid to him by the company.(o) 
 
 ^ 1277. It may happen that a purchaser finds himself 
 unable to obtain specific performance of a contract owing to 
 some fatal defect in his vendor s title, which was unknown 
 to him (the purchaser) at the time when he had entered 
 into the c(mtract. In such a case damages are the only 
 possible form of relief ; and the vendor will not be allowed 
 to escape from liability to pay them by purporting to 
 rescind the contract under a condition entitling the vendor 
 to rescind in the event of the purchaser making any 
 objection or requisition in respect of the title which the 
 vendor is unwilling to comply with : foi- such a condition 
 does not apply to a case where the vendor has not any title 
 at all.(77) 
 
 § 1978. Where an action is brought for specific per- 
 
 (n) Soames v. Edge, Johns.. 669, followed (o) Wilson v. Nortliamplon and Banbuiy 
 
 in MavtT and Corp(iratioi) of London v. juncti..n Railway Co , L. K. it Lh, 2i_9 
 
 Soulhgate, 17 W. 1{., 197. Distinguibh Xorris (;>) Bowman v. llj ia-id, 8 e h._D_, obh, 590; 
 
 V. JacKsoD, 1 J. & II.. 319; and see Samuda cf. Oaliel. y v. Kanl^ay.'2l L. T., .4o. bee too 
 
 <v Lawford, 4 Uiff.. 42. supra, I'art III. thap. xxiv. § H ib et seq.
 
 604 FRY ON SPECIFIC PERFORMANCE OF CONTRACTS. 
 
 formance, and specific performance is refused on the t^ole 
 ground of a mistake by the defendant, the court will now 
 consider the question of damages, and give the siime 
 dariiages as would, under the old practice, have been given 
 in an action at law. ((7) 
 
 § 1979. Where there was a case for damages, the Court 
 of Chancery sometimes directed an issue to ascertain the 
 amount. (?•) The more usual course was to direct an inquiry, 
 in chambers as to the sum to be awarded or allowed : and 
 this is still commonly done. (5) In some recent cases, how- 
 ever, the damages have been assessed by the judge himself 
 at the trial, and, where the plaintiff has not been ready with 
 his evidence as to the amount of damages, the trial has been 
 adjourned to give time for it to be obtained. It seem& 
 clearly desirable that the assessment of damages should, 
 wherever practicable, take i)lace at the trial, without any 
 separate inquiry : for otherwise the parties are virtually 
 put to the expense of two trials of the same question. (^)' 
 
 (cj) Per James and Cotton, L. J. J , In man, 1 Sim., 530: also Ord. XXVf.and Ord, 
 
 Tamplii) v James, 15 Ch. D., 222, 223. XXXVl. rr. 26, 27. 
 
 (r) e. g. Corey v. The Thames Iron Works (x) ^ee Selon, 1285. As to the costs of such 
 
 and Shipbuilding Co., 11 W. R , r89; S. C. (in an inquiry, cf. Slack v. Midland Railway Co., 
 
 Q. B.) 1>. K. 3 Q IJ., 181. Cf. Nelson v. 16Ch. D.,81. 
 
 Bridges, 2 Beav., 239, and Fersusou v. Tad- (t) Jnques v. Millar. 6 Ch. D., 153; Wesley 
 
 V. Walker, 26 W. R , 368; seton, 1319. 
 
 ' AffreemeiU to rescind contract, renting in parol only.] Where the agreement 
 to rescind a contract rests only in parol, such rescission must be proved by acts 
 ■which can leave no doubt of the intent. There must be a cancelling of the 
 contract, or a removal from the possession, or some act which will make the 
 intent positive. Where the agreement is unexecuted, it must be clearly pioved, 
 and must be founded on a new consideration. Liiuer v See, 42 Pa. S., I(j5; 
 Pratt V. Morrow. 45 Mo., 404; Washington v. McGee, 7 T. B. Mour , i;31;. 
 Phelps V. Seely, 22 Graft., 578. 
 
 Example of insufficient proof of rescission of the sale of real j^ropeity.] For an 
 instructive case, see Pipkin v. Allen, 24 Mo., 520. 
 
 Contract rescinded, both parties must content to renew.] A contract had beea 
 rescinded. Held, that it could not be renewed without the mutual consent of 
 both parties. Lassen v. Mitchell, 41 111 , 101. 
 
 Tico parcels of land purchased ; rescission, if at all, must be as to both.] A con- 
 tract was entered into for the purchase of two parcels of laud for a detinite 
 sum; one was conveyed at the time and the other was to be when both were 
 paid for. Held, that it was an entire purchase, notwithstanding two-thirds of 
 the purchase price was to be applied to one of the parcels, and that if there was 
 a rescission at all it must be as to both parcels. Fay v. Oliver, 20 Vt., 118. 
 
 What imll amount to an abandonment of an agreement?] An intention to re-^ 
 scind a contract of sale may be shown bj' circumstances, or it may be shown 
 by such a coiu'se of action as establishes clearly that such was the intention of 
 the party. Wheeden v. Fiske, 50 N. H., 125; Green v. Wells, 2 Cal., 584. 
 
 What will constitute an abandonment f] Whenever either party so conducts 
 himself that his conduct can be viewed in no other light than that of a relin- 
 quishment of the contract, it will be regarded as rescinded. Any act by any of 
 the parties which of necessity prevents the performance of the mutual agree-
 
 DAMAGES. 605 
 
 ment will constitute an abandonment Suber v. Pullin, 1 S. C. (N S.). 273: 
 Wright V. Haskell, -45 Mo., 4!<9; see, also, Tibbatts v. Tibbatts, (J McLean, 80. 
 Where the vendor sold the land to a third person, this was held to be a rescis- 
 sion of the contract of sale. Little v. Thurston, 58 Me., 86; Warren v. Rich- 
 mond, 53 111., 53. Where ejectment was brought to recover the land m pos- 
 session of the vendee under a parol contract of sale, this was held to be a 
 rescission of the contract. Hairston v. Jandsou, 42 ]Miss., 3s0. Where the 
 written contract of sale was surrendered, and such act was followed by acts 
 which were inconsistent with its continuance, this was held to be a rescission. 
 Crane v. De Camp, 21 N. J. Eq , 414. 
 
 When application of rescimon not a remssionf] A party applied for the re- 
 scission of a contract and requested the other party to rescind it. Held, that 
 such application did not amount to a rescission, and that it did not imply any 
 breach or abandonment on the part of the applicant. Picot v. Douglass, 46 
 Mo., 497. 
 
 Mere contract ofaqencij.'] A railroad corporation employed a party to obtain 
 donations and right of way for an extension of the road ; he was to be allowed 
 a large proportion of the amount received for his services Held, that such 
 contract might be revoked whenever the company saw fit. The following is 
 an extract from the opinion. Per curiam: "We can regard the relations 
 between the defendant and the plaintiff, created by the instrument, in no other 
 right than that of principal and agent. It is a familiar principle at law, that 
 an agency is revocable at the will of the principal, unless the power conferred 
 on tiie agent be given for a valuable consideration or as a security, or is coupled 
 with an interest. It is not claimed that the authority conferred upon the plain- 
 tiff was based upon a consideration, or was given as a security. Is it a power 
 coupled with an interest ? What was the interest of plaintiff ? It was to re- 
 ceive a certain compensation in value and kind of the donations he should 
 receive for defendant. His interest existed in that which should be produced 
 by the exercise of the power conferred upon him. Now, it is plain that the 
 thing in which he had, or rather was to have, an interest could not exist until 
 the power was exercised The exercise of the power was necessary to bring 
 the thing in which he was to have an interest into existence. In each instance, 
 where a donation was given, the power was exhausted when the donation was 
 received. Hence, the power and the interest were not united. The interest, 
 coupled with a power which gives it an irrevocable character, must be in the 
 thing upon which the power is exercised, and not in that which may be pro- 
 duced by the exercise of the power. Before the exercise of the power con- 
 ferred by the instrument in question, nothing did or could exist in which 
 plaintiff had an interest. He had a right to a part of the donations which he 
 should procure. He had no interest in a thing, but a right to a thing when it 
 should be created. His power, therefore, was not coupled with an interest 
 and was revocable at the will of the defendants." Smith v. Cedar Falls and 
 Minn. R. R. Co., 30 Iowa, 244. 
 
 One party refusing to execute a substantial pari of the contract.] Where one 
 party to an agreement refuses to execute any substantial part of his contract by 
 that act he gives the other party to the mutual agreement the option to rescind 
 the entire contract by offering to restore what he has received and replacing 
 the parties in their original position. This is true, provided the offer is made 
 within a reasonable time, and the parties can be placed in their original posi- 
 tion; the offer must, however, be made distinctly and unequivocally. Webb 
 V. Stone, 24 N. H , 282; Allen v. Webb, 24 id., 278; Sumner v. Parker, 36 id., 
 449; Fay v. Oliver, 20 Vt., 118; Fletcher v. Cole, 23 id., 114. 
 
 Application to rescind must be made icithout delay.] Where a party asks for 
 the rescission of a contract deliberately entered into, he must make his election 
 with all due promptness. Lowber v.'Selden, 11 How. Pr., 526; Lawrence v. 
 Dale 3 John.'s Ch., 23, 41; Wheaton v. Boker, 14 Barb., 594; Bruce v. Dav- 
 enport, 3 Keyes, 474; Tobey v. Crown, 37 Md., 51; Hunter v. Daniel, 4 Hare, 
 420. 
 
 Agreement to rescind at future time; waiver.] There was an agreement that 
 if certain acts were not performed at a future day that the contract might be 
 rescinded. Held, that either party might, if so disposed, stand with the con-
 
 606 FRY OlSr SPECIFIC PERFORMANCE OF CONTRACTS. 
 
 sent of the other, cither express or implied, upon the terms of the orijiinal 
 contract; he may waive whatever advantages he has under the agreement of 
 waiver. Echols v. Butler, 28 Miss., 114. 
 
 Example of fraud diticorered too late to renc/'nd.] A purchaser discovered fiaud 
 in his contract and raised no objection ; afterwards he found other evidence of 
 fraud and did so. Held, that he was too late to rescind the contract. Patter- 
 son, J., said: " To entitle him to do so he should, at the time of di.scovering the 
 fraud, have elected to n'liiidiate the whole transaction. Instead of doing so, 
 he deals with that for which he now says that he never legally contracted. 
 Long after this, as he alleges, he discovers a new incident in the fraud. This 
 can only be considered as strengthening the evidence of the original fraud, and 
 it cannot revive the riirht of repudiation which has been once waived " Camp- 
 bell v. Fleming. 1 A. & E., 40. 
 
 Reference to determine the amount of dn mages.] A reference is usually made 
 to a master, or commissioner, to ascertain the amount of damages in an action 
 for specific performance. Where a reference has been ordered, the money 
 should be brought into court. Stevenson v. Jackson, 4o Mich., 702. Wh<'re 
 it is proper that a jurv should assess the damages, the court may either order 
 an a.ssessment, or remit the parties to an action at law. Milkman v. Ordway, 
 lOH Mass., 2;:i2. The contract could not be specifically enforced, for the reason 
 that "it was not mutual, fair, just and reasonable in all its parts;" the plain- 
 tiff had been deprived of the benefit of the contract by the defendant's fraud. 
 Held, that the money paid should be returned with interest, and this was done 
 without ordering an issue (juan/um danmifentus. Rider v. Gray, 10 Md., 282^ 
 See, also, Pratt v. Law, S) Cranch, 494. 
 
 liule as to measin-e of damages in specific performance.'] Where the title has 
 failed, without the fault of the vendor, the proper measure of damages is the 
 purcha,se price, together with legal interest. Luckett v. Williamson, 37 Mo., 
 808. In a case where the vendor has refused, or put it out of his power to 
 make title, the measure of damages is the difference in the value of the estate 
 at the time the agreement ought to have been completed, and what was to 
 have been paid, if that value exceeds the price mentioned in the agreement. 
 Dustin v. Newcomer, 8 Ohio. 49; Ilall v. Delaplaine, 5 Wis., 206. Clavton, 
 P. J., said in Burk v. Senill, 80 Pa. St , 413: "The law regulating the dam- 
 ages to be recovered, makes a distinction between the cases where there is a 
 fraudulent breach of contract and those where the breach is occasioned by 
 some unforeseen aod unavoidable obstacle. As where one covenants to convey 
 a good title, and it is afterwards discovered that he does not possess, and by no 
 means in his power can procure, such a title, or the wife of the covenanter, 
 without any collusion, persuasion or request, on his part, refuses to join in the 
 deed. In cases of this kind, when the covenanter does all in his power to ful- 
 fill his contract, and, without any fault of his, cannot perform it, the damages 
 to be recovered against him are only such actual and immediate losses as he 
 may have suffered, such as the money paid with interest thereon, the time lost 
 and expenses incurred in examining the title, conveyancing expenses, and such 
 work or improvements as he nia}^ have made upf)n the land upon the faith of 
 the contract. But where there is a wanton or dishonest refusal to perform the 
 contract, or where the covenanter, by some fraudulent act on his part, renders 
 the performance impossible — as where, by collusion with his wife, or by re- 
 quest on his part, she refuses to sign the deed, or where her refusal is not her 
 own free and uncontrolled act, but made at the implied or actual request cf 
 her husband — the law, in such a case, awards full compensatory damages, 
 and permits a recovery for all the party has lost by reason of the default of 
 the other party, including the value of the bargain, and all injury and damage 
 he may have suffered by reason of any act of bis made upon the faith of the 
 broken covenant." Hoar, J., said in Woodbury v. Luddj', 14 Allen, 1: "The 
 plaintiff seeks the aid of a court of equity, to compel the specific performance 
 of the defendant's contract to convey land. The defendant is unable to make 
 a perfect title, and the court, at the plaintiff's election, will compel the con- 
 veyance of so much as the defendant can convey, and will award comi>ensation 
 in the nature of damages for the deficiency. The defendant has not undertaken 
 to apportion the contract. If he was sued at law, the whole market value of
 
 DAMAGES. 607 
 
 the estate would be the measure of damage. But dividing the estate may very 
 much increase the proportionate damages, vpithout any corresponding advan- 
 tage to the defendant. By making the election, the plaintiff undertakes to re- 
 ceive what the defendant never agreed to give, namely, a partial conveyance 
 of the estate; and equity will only allow this ou the condition that the defend- 
 ant shall not thereby be subjected to unreasonable injury. The i)laintif[, in 
 effect, elects to take satisfaction, partly in land and partly in money; and if he 
 is allowed to do this, he should only, in equity be allowed to receive the fair 
 money value of the part of the estate which is not conveyed to him. In the 
 adjudged cases, though this is sometimes called damages, it is more usually 
 spoken of as an equitable compensation for the value of that which the defend- 
 ant does not convey. It is not always proper to estimate the value of the de- 
 ficiency, at the average price per acre. The true inquiry should be, how much 
 more was agreed to be paid by reason of the supposed additional quantity ? 
 Wilcoxon v. Calloway, 07 N. C, 468. Where the estate is of uniform value, 
 the price agreed upon to be paid per acre, would, of course, furnish a proper 
 measure of damages in a case of excess or deficiency. King v. Hamilton, 4 
 Pet., 311 Where the vendor, in an executory contract for the sale of land, 
 fails to make title without fraud or bad faith, but tlirough an inability which 
 was not known to him at the time of contracting, he is liable for nominal dam- 
 ages only. 3 Wm. Black.. 1078; Conger v. Weaver, 20 N. Y.. 140. Where 
 the vendee insists on a conve3^ance of a part, he must pay to the vendor the 
 value of such part proportioned to the price which was to have been paid for 
 the whole. Jacobs v. Locke, 2 Ired.'s Eq., 28(5; Chandler v. Geraly, T) S. C, 
 5U1 ; see, however, Stockton r Union Oil and Coal Co., 4 W. Va., 273. 
 
 Rule as to damages in equitable actions.'\ Where the claim is solely for dam- 
 ages, whether for breach of the contract or for fraud in making it, and it is 
 not sought to rescind it altogether, the party is, as a general rule, confined ta 
 his action at law ; but a bill to have the contract res'anded for fraud, and for 
 the recovery of damages, lies, though it does not ask for a discover}^ Com- 
 pensation in damages in an action for specific performance, is an incident 
 merely. Unless, in very specific cases, chancery takes no cognizance of suits 
 for damages only, founded on contract. Hatch v. Cobb, 4 John.'s Ch., 559; 
 Kempshall v. Stone, 5 id., 198; Moss v. Elmendorf, 11 Paige's Ch., 279; Lynch 
 V. Willard, 6 John.'s Ch., 342; Mayne v. Griswold, 3 Sand., 408; Newham v. 
 May, 13 Price, 732; Sims v. McEwen, 27 Ala., 184; Doau v. Mauzey, 33 id., 
 227; Welch v. Bayard. 21 N. J. Ex., 168; Harrlspn v. Deramus, 83 Ala., 463;, 
 Richmond v. Dubuqe R. R. Co., 38 Iowa, 422; Carroll v. Wilson, 22 Ark., 
 32; Stevenson v. Buxton, 87 Barb., 13; Horn v. Luddington, 32 Wis., 73. " It 
 must be under very special circumstances and upon peculiar equities, as, for 
 instance, in cases of fraud, or in cases where the party has disabled himself by 
 matters ex post facto from a specific performance, or in cases where there is na 
 adequate remedy at law." Story's Eq. Jur., g 790; see, also, Peler v. Levy, 
 26 N. J. Eq., 360; Izard v. May's Landing Power Co., 31 id., 511; Gumpton 
 V. Gumpton, 47 Mo., 37. "We think the doctrine ou this subject is now well- 
 settled, and may be succintly stated to be this. Where the court of chancery 
 has jurisdiction of the case, and where it is a case proper for specific perform- 
 ance, it may, as auxiliary to specific ]x;rformance, decree compensation or 
 damages. And where the ascertainment of damages is essential in order to do 
 complete justice between the parties in the case before it, the court ought not 
 to send the parties to another forum to litigate their rights, but should refer 
 the matter to one of its own commissioners, or direct an issue quautiun damni- 
 Jkattis to be tried at its own bar." Christian, J., Nagle v. Newton, 22 Gratt., 
 814; see, also, Prothero v. Phelps, 35 Eng. Law and Eq., 528; .Masson's App., 
 70 Pa. St., 26; Bell v. Thompson, 34 Ala., 633; Holland v. Anderson, 38 Mo., , 
 55; Woodman v. Freeman, 25 Me., 531; American Laud Co. v. Grady, 38 Ark , 
 550; Hopkins v. Gilm., 22 Wis , 476. 
 
 A7i action cannot be hroiigJit in equity, solely for damages.'\ Where the vendee 
 files his bill for a specific performance, knowing that the vendor has disabled 
 himself from ])erformirg, •' will not be retained to give him a compensation in 
 damages. Such an action is matter strictlj- of legal, and not of equitable juris- 
 diction. Hatch V. Co'^b. .t«. 'm.'& Ch., 559; Kempshall v. Stone, 5 id., 198; 
 Morrs v. Elmendorf, 11 Paige, 2?7; Doan v. Manzey, 33 111 , 227; McQueen v.
 
 608 FRF ox SPECIFIC PERFORMANCE OF CONTRACTS. 
 
 ■Chouteau, 20 Mo., 222; Heuty v. Schroder, L. E., 12 Ch. D., 666; Lewis v. Yale, 
 4 Fhx., 437; Barnctt v. ^Meiulenhall, 42 Iowa, 296; Smith v. Kelly, 56 Me , 64; 
 Frauy v. Ortou, 75 111., 100. 
 
 Where specific performance cannot be performed.'\ "The rule assumes, of 
 course, a sufficient contract, performance, or an offer to perform, by the plain- 
 tiff, and every other element requisite on his part to the cognizance of his case 
 in chancery ; and that the special relief sought is defeated, not by any defen.se 
 or counter e(iuities, but simply because an order therefor would be fruitless 
 from the inability of the defendant to comply. The jurisdiction is fixed by 
 establisiiing the equitable right of the plaintiff. Relief must tlieu be given by 
 a decree in the alternative, awarding damages, unless the defendant should 
 secure the specific performance sought. In many cases this would be an effec- 
 tive and proper course, insomuch as the defendant, although not having him- 
 self, at the time, the title or capacitj^ requisite for such performance, might be 
 able to procure it otherwise. The jurisdiction is not lost when the court, in- 
 stead of such alternative decree, determines to proceed directly to an award 
 of dan)ages or compensation. The peculiar province of a court of chancery, is 
 to adopt its remedies to the circumstances of each case as developed by the 
 trial. It is acting within that province, when it administers a remedy in dam- 
 ages merely in favor of a plaintiff who fails oi" other equitable relief to which 
 he is entitled, without fault on his part. The diversity of practice, in this re- 
 spect, and the doubt as to the jurisdiction, we think must have arisen less from 
 the nature of the relief to be afforded, than from the character of the means 
 for determining the amount of compensation to be rendered." Wells, J., in 
 Milkman v. Ordway, 106 Mass., 232; Wiswall v. McGowan, Hoflf. Ch., 125; 
 Woodcock V. Bennett, 1 Cow., 71; Hall v. Delaplaine, 5 Wis., 206; Holland v. 
 Anderson, 38 Mo., 55; Chartier v. Marshall, 56 N. H., 478; Hamilton v. Ham- 
 ilton, 59 Mo., 232.
 
 EEFERENCE OF TITLE. 609 
 
 CHAPTER IV. 
 
 OF REFERENCE OF TITLE. 
 
 § 1280. Where tlie vendor of land sues the purchaser 
 for a specific performance of the contract, the defendant 
 may, in some cases, succeed in having the action dismissed 
 at the trial, on the ground of a defect in the plaintiff's title, 
 provided the defect in title has been prominently put 
 forward in the pleadings :{a) but where this is not the case, 
 the defendant is entitled to have an inquiry directed as to 
 the title of the vendor to the lands 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, 
 but the highest assurance upon the nature of his title which 
 can be acquired for him by the production of deeds, the 
 directing of inquiries, and the sifting of the vendor's con- 
 science. (5)' 
 
 Hence it follows that, though the purchaser may admit 
 that he has only one particular objection, (c) or no objection 
 at all((rZ) to the title, he is equally entitled to a general refer- 
 ence as to it. 
 
 § 1281. Still whenever, in a judgment decreeing the 
 specific performance of a contract, an inquiry whether the 
 vendor can make a good title is directed in general terms, it 
 
 (a) Lucas v. James, 7 Ha. , 418. 42.5. (d) Jenkins v. Hlles. 6 Ves., 646; cf. Fleet- 
 
 (6) Jenkins v. Hiles, 6 Ves., 646, 653. wood v. Green, 15 Ves., 594. 
 
 (c) Lesturgeon v. Martin, 3 My. & K., 255. 
 
 1 Part iierformance ; mndee may insist upon.] Where the vendor cannot fully 
 perform the vendee has a right to insist upon part performance with equitable 
 compensation. Barns v. Wood, L. R., 8 Eq., 421; Wright v. Young, 6 Wis 
 137- Jones v Shackelford, 2 Bibb., 410; Matthews v. Patterson, 2 How. (Miss.), 
 729- McConnell v. Brillhart, 17 111., 354; Bass v. Gilliland, 5 Ala., 759 ; Col- 
 lins' v. Smith, 1 Head (Tenn.), 251; Harding v. Parshall, 56 111., 219; Wilson 
 V Cox 50 Miss., 133. The vendor contracted to sell land, to which it was 
 afterwards ascertained he had only the ownership of an undiminished half. 
 Held, in an action to recover possession, or a decree for the purchase money, 
 that the vendee might elect to take the half and pay one-half the purchase 
 price or that the contract should be rescinded, and the vendor to receive back 
 the money paid and compensation for improvements, and, if any waste had 
 been committed, damages should be deducted. Erwin v. Myers, 46 Pa. St., 96. 
 
 39
 
 610 FRY ON SPECIFIC PERFORMANCE OF CONTRACTS. 
 
 must be understood to mean a good title according to the 
 terms of the contract : but if the vendor wishes to prevent 
 the renewal, under the inquiry, of objections waived before 
 the action, lie should guard himself by establishing such 
 waiver at the trial, and taking care that the judgment 
 expressly recognizes it : for under a general inquiry as to 
 title the court will not enter into any question of such 
 waiver, (e) 
 
 § 1282. However, where a purchaser allowed the vendor' s 
 suit for specific performance to proceed to the i^oint of the 
 inquiry as to title, before bringing forward an objection 
 which was patent on the face of the abstract originally 
 delivered, he was not allowed his costs of the inquiry, 
 though the objection was fatal to the title. (e) 
 
 § 1283. The right to the reference is so far that of the 
 purchaser that the vendor cannot except to the title, so as 
 to assert his own title to be bad.(/) 
 
 § 1284. The purchaser is also entitled to a reference of 
 title where he is plaintiff in an action for specific perfonn- 
 ance ; but inasmuch as in this case 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 reference, and then waives the objections, he will have 
 to bear the costs of investigating the title, {g) 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. (7^) 
 
 § 1285. 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 an action for 
 specific i)erf ormance, and the nature of which renders such an 
 inquiry i)rox)er. Accordingly, inquiries have been directed 
 into the title of vendors to shares in railway companies, (z) 
 and in mining concerns. (,/) The nature of the inquiry, of 
 course, varies according to the nature of the property, and 
 the essentials of a good title to it. 
 
 § 1280. But there are necessarily many contracts in 
 
 (e) Upperton v. Nickelson, L. R. 6 Ch.. 437; (g) Bennett v. Fowler, 2 Beav., 303. Of. 
 
 Curling v.Austie. 2 Dr. &Sm.,129;McMurray Freme v. Wright, 4 Mad.. 364. 
 
 V. Spicer, L. R. 5 Eq , 527. Cf. Corless v. (ft) See Lyle v. Earlof Yarborough, John., 
 
 Sparling, I. R. 8 Eq., 335. 70. 
 
 (/) Bradley v. Munton, 15 Beav., 460. (i) Shaw v. Fisher, 2 De G. & Sm., U. 
 
 •^ (j) Curling v. Flight, 2 Ph., 613.
 
 REFERENCE OF TITLE. 611 
 
 respect of wliich no sucli inquiry is or can be made. Where 
 the contract is not for the sale of any property, such a 
 reference is of course out of the question. And so, too, 
 where a contract is ratlier in the nature of a compromise of 
 disputed rights than of a contract for sale, the court will 
 not make the inquiry. (A') In a case where a small piece of 
 land was described as held of certain commissioners 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 com- 
 missioners. (Z) 
 
 § 1287. The court will not direct an inquiry where, 
 though the contract be one of sale, the vendor only sells 
 such interest as he has :{m) such a contract is, of course, 
 perfectly valid, but, being in restraint of the purchaser's 
 implied right to a good title, it must be made clear and 
 unambiguous to the x")urchaser.(7i) A vendor may, of 
 course, stipulate that a purchaser shall take such title as he 
 himself bought with.(c») 
 
 § 1S88. Of such restrictive stipulations there are many 
 cases : thus where a i^urchaser 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 estate outstanding. (_/^)' So, again, where con- 
 ditions of sale of a free-farm rent stated that no evidence 
 
 (k) Godson v. Turner, 15 Beav., 46. See, also, Anderson v. HIggins, 1 Jon. & L., 
 
 (I) Ashton V. Wood, 3 Jur. N. S., 1164 718. 
 
 (Stuart, v. C). (o) Monro v. Taylor, § Ha., 51, 71. 
 
 (m) See supra, § 857. (p) Duke t. Barnett, 2 Coll., 337; Wilmot 
 
 (n) Southby v. Hutt, 2 My. & Cr., 207, 212. v. Wilkinson, 6 B. & C, 506. 
 
 1 Contracts only partially in restraint of trade.] Such contracts are sometimes 
 enforced in equity. Tallis v. Tallis, 18 Eng. Law and Eq., 151 ; Pierce v. 
 Woodward, 6 Pick., 206; Chappell v. Brockway, 21 Wend., 158; Mott v. 
 Mott, 11 Barb., 127; Hoysland v. Segar, 28 N. J. Eq., 230; Dwight v. Hamil- 
 ton, 113 Mass., 175; Roller v. Ott, 14 Kan., 600; Brown v. Rounsevall, 78 111., 
 589; Peltz v. Eichele, 63 Mo., 171; Oregon Steam Nav. Co. v. Windsor, 20 
 Wall., 64; Noah v. Webb, 1 Edw. Ch., 603. 
 
 Contracts to erect public buildings in a given locality sustained. ] Specific per- 
 formance will be decreed of a contract to pay money toward the erection of 
 public buildings, provided the same are erected at a given locality, or are not 
 removed therefrom. Carpenter v. Mather, 3 Scam., 374; State Treas. v. 
 Cross, 9 Vt., 289; Bull v. Talcolt, 2 Root, 119; Comm'rs of Canal Fund v. 
 Perry, 5 Ohio, 56; Cauldwell v. Harrison, 11 Ala., 755; University of Ver- 
 mont V. Buell, 2 Vt., 48; Religious Society v. Stone, 7 Johns., 112; McAuley 
 V. Billinger, 20 John., 89; Collier v. Baptist Educat. Society, 8 B. Mon., 68; 
 Trustees of Amherst Acad. v. Cowles, 6 Pick., 427; Williams Col. v. Dan- 
 forth, 12 Pick., 541; George v. Harris, 4 N. H., 533; Odineal v. Barry, 24 
 Miss., 1; State v. Johnson, 52 Ind., 197; contra, Comm'rs v. Jones, Breese, 237; 
 Stilson V. Comm'rs of Lawrence Co., 52 Ind., 213.
 
 612 FRY ON SPECIFIC PERFORMANCE OF CONTRACTS. 
 
 should be required of the receipt, or payment, or existence 
 of the gi'ound-rent, other than that disclosed by a conveyance 
 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 twenty years, and so was extinguished, 
 and that there was therefore no subject-matter of the con- 
 tract, 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. ((7) 
 
 § 1289. The case of Best v. Hamand(r) is a remarkable 
 instance of the upholding of such a stipulation. There, the 
 subject-matter of the contract being land which the vendor 
 had bought from a railway company as superfluous land, 
 the contract contained a stipulation that the purchaser 
 should assume and admit that everything (if anything were 
 necessary) was done and performed by the company to 
 enable them to sell and effectually convey the land as 
 surplus land, and should not call for or require i^roduction 
 of any evidence to that effect. The vendor all along knew 
 (as appeared from the abstract and replies to requisitions) 
 that the statutory offer of i)re-emption had not been made to 
 the adjoining owners ; but the court of appeal neverthless 
 held that the purchaser was bound by the stipulation ; — to 
 the extent, at any rate, that his refusal to abide by the 
 stipulation was a breach of the contract which disentitled 
 him to sue for the repayment of his deposit. Unless the 
 decision may be limited in this way, it seems difficult to 
 reconcile it altogether with the principles laid down by the 
 same court in the almost contemporaneous case of Re 
 Banister(.9) already referred to. 
 
 ^ 1290. 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 was for an assignment of the vendor's share 
 and not of the land, and the vendor was held not liable to 
 show the lessor's title. (^) 
 
 § 1291. The vendor may generally by express stipula- 
 tion, as we have seen, entirely exclude any inquiry into his 
 
 (g) HankB v. Palling, 6 El. & Bl., 659; cf. (r) 12 Ch. D., 1. 
 Smith V. Harrison, 26 L. J. Ch., 412, 5 W. R., (s) 12 Ch. D., 1.31; supra, § 1166. 
 408. stated supra. § 374. (0 Phipps v. Child, 3 Drew., 709.
 
 KEFERENCE OF TITLE. 613 
 
 title. But lie will not be allowed to fall back upon such a 
 stipulation in support of a misleading condition of a sale \{u) 
 and where, the contract containing such a stipulation, the 
 purchaser at first under a mistake common to both parties 
 accepted the title, but on discovering the mistake objected 
 to complete, it was held that his objection was not pre- 
 cluded by the stipulation. (71) 
 
 § 1293. Or the vendor may take a middle course, and, 
 without excluding, may limit the inquiry. He may, for 
 instance, exclude all objections in respect of a particular 
 instrument, (?o) or all objections to title earlier than a certain 
 deed,(ic) or he may sell merely an equitable and not a legal 
 estate. (?/) 
 
 § 1293. The cases on the question whether and how far 
 the inquiry into title has been limited fall into two cate- 
 gories ; first, where the stipulations of the contract preclude 
 the purchaser from making requisitions upon or inquiries 
 from the vendor as to his title,— which relieves the vendor 
 from the necessity of complying with or answering any 
 such requisition or inquiry, but does not prevent the pur- 
 chaser from showing, by any means in his own power, that 
 the vendor's title is defective ; and secondly, cases in which 
 the stipulations preclude the purchaser, not only from 
 making such requisitions upon and inquiries from the 
 vendor, but from making any inquiry or investigation about 
 the title anywhere ;— which may quite validly be stipulated, 
 and will generally, provided that the stipulation be clear, 
 altogether preclude inquiry and investigation for every 
 purpose. (2) 
 
 § 1394. Of the first of these categories an illustration 
 may be found in the case of Darlington v. Hamilton(a) 
 where there was 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 in- 
 volved with the title to other property, so that the pur- 
 chaser would run the risk of being ousted by reason of a 
 
 (w) Re Banister, 1'2 Ch. D., 131; cf Harnett (?/) Ashworth v. Mou-.isey, fl Ex., 175. Cf. 
 
 V. Baker. L. R. 20 Eq , 5(). Distinguish Official Manager of Sheerness Waterworks 
 
 Blenkhorn v. Penrose, -29 W. R., 237. Co. v. Poison, 20 Beav.,70, 3 De G. F. & J., 36. 
 
 (V) .Jones V. Clifford, 3 Ch. D., 779. («) See Jones v. Clifford, 3 Ch. D , 790 
 
 (w) Corrall v. Cattell, 4 M. & VV.,734; S. («; Kay, 550. See, too. Shepherd v. Keat- 
 
 C,3 Y. & C. Ex.. 413 ley. 1 Cr. M. & R.. 117; GeogheRan v. Con- 
 
 \x) Taylor v. Martindale, 1 Y. & C. C. C, noUy, 8 Ir. Ch. R., 598, 604. 
 €58. Cf. per Mallns. V. C, in Harnett v. 
 Baker, L. R. 20Eq.,53.
 
 614 FRY ON SPECIFIC PERFUKMANCE OF CONTRACTS. 
 
 breach of covenant in respect to other property ; and the 
 court accordingly refused specific performance. 
 
 § 139.1. On the other hand, where the condition provided 
 that the lessors' title should neither be produced nor in- 
 quired into,(^) and the purchaser offered a(;ts of parliament 
 in evidence that the lessors (a public company), had no 
 power to grant leases, tlie objection was held to be pre- 
 cluded, (c) 
 
 § l!396. But conditions restrictive of a purchaser's com- 
 mon law rights are, as we have seen,(rZ) construed very 
 strictly. Thus in AVaddell v. Wolfe, (e) where on a sale of 
 leaseholds held by underlease there was a condition that no 
 requisition or inquiry should be made respecting the title 
 of the lessor, or his superior landlord, or his right to grant 
 the underlease, and the purchaser, in investigating the title, 
 discovered for himself that the lessor had no power to grant 
 the underlease, it was held that the purchaser was not pre- 
 cluded l)y the condition from insisting on the objection. 
 The court appears to have considered that the language of 
 the condition pointed only to requisitions and inquiries be- 
 tween vendor and purchasor ; so that the case really fell 
 within the principle of Darlington v. Hamilton. (/) 
 
 § 129r. Again, in Smith v. Robinson, (r/) the defendant 
 having in 1877 agreed to purchase freehold property, sub- 
 ject to a condition that the abstract should commence with 
 a deed dated in 1867, and that no earlier or other title 
 should be required or inquired into by the purchaser, 
 there happened to be, among the muniments handed to the 
 defendant's solicitor for comparison with the abstract, a 
 deed, of the existence of which the vendor was then ignor- 
 ant, which threw grave doubt on the title ; and it was held 
 that, the objection having arisen not from any requisition 
 or inquiry by the purchaser but from the vendor s own dis- 
 closure, the condition did not apply. 
 
 § 1298. Generally, 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 conditions. (7^) 
 
 (b) See now the Vemlor and Purchaser (e) L. R 9 Q. B., 515. Cf. Musgrave v. Mc- 
 Act, 1874, 6. 2 (li; infra. § 1317. Cullaph, U Ir. Oh R. 496. 
 
 (c) Hume v. Bentlev, 5 De G. & Sm.. 520. (/) Kay, 5f,0; eupra, § 1294. 
 
 SprattT. Jeffery (10 B. & C, 249), which is [(/) 13 Lh. D., 14s .., x* ■ w 
 
 at variance with the distinction above stated (A) See §§ 1281, 1337; and consider Meyrick 
 
 must now be considered as overruled. v. Laws, 34 Beav., 58. 
 
 (d) See snpra, § 1153 et seq.
 
 REFEEENCE OF. TITLE. 615 
 
 § 1299. Accordingly, in the case of Re Banister(/) 
 already referred to, although the purchaser was relieved 
 against a misleading condition, still, as the conditions pro- 
 fessed on their face to give only a good holding title, the 
 reference was confined to ascertaining whether such a title 
 could be made out.(y) So, again, where at the time of the 
 written contract (an open one), being signed, the purchaser 
 verbally agreed to take a limited title, and negotiations 
 went on for a long time upon that footing, the court at the 
 hearing limited the inquiry as to title accordingly. (^') And 
 where A. contracted with B. for a lease, B. knowing the pur- 
 poses for which A. wanted the house, and A. knowing that 
 B.'s title was merely leasehold, a reference was directed 
 having regard to the covenants in the lease, and the i)ur- 
 poses for which the premises were taken. (Z) 
 
 § 1300. Generally, either vendor or purchaser has a 
 right to have the inquiry in question — the one thing entitled 
 to an opportunity of perfecting, and the otlier of investiga- 
 ting the title. But there may be, on the part of either of 
 them, a waiver of the right. 
 
 § 1301. Thus, if the vendor states his title, and conclu- 
 sively avers that he can make no other or better title, and the 
 title disclosed is objected to by the purchaser, the court 
 may decide without a reference ;(m) but if in such a case 
 the decision were in favor of the vendor, it seems that the 
 purchaser would then be entitled to call for a reference. 
 
 § 1302. But it is with regard to a waiver by the pur- 
 chaser that this question more often arises : for a j)urchaser 
 originally entitled to examine the vendor's title may subse- 
 quently waive that right, either expressly or by implication ; 
 and this waiver may be either as to the whole title or limited 
 to j)arts :{)i) and in case of an express waiver, it may be 
 either absolute or conditional. 
 
 § 1303. An admission of title by a defendant in his 
 pleading is an express waiver, which excludes the right to 
 a reference of title : for this purpose it is enough if the de- 
 
 (i) 12 Ch D., 131; supra, § 1166. Rose v. Calland. S Ves., ISi; Omero'l v. 
 
 Ij) See too Smith v. Robinson, 13 Ch. D., HardmaD,5 Ves., "'2-, explained in Jenkins 
 
 148. V. Hilee, 6 Ves., 6o4-5. &ee too Austin v. 
 
 (k) McMurray v. Spicer, L. R. 5 Eq., 528 Martin, 29 Beav., .535. , 
 
 ll) Wllbraliam v. Livesey, IS Beav., 206. im) e. g. Corless v. Sparling, I. R 8 Kq., 
 
 For form of reference where the vendor has 335. 
 
 a power of sale with the consent of trus- (n) Townley v. Bond, 2 Dr. & War., 240 
 
 tees, see Graham v. Oliver, 3 Beav., 124. 261.
 
 616 FRY ON SPECIFIC PERFORMANCE OF CONTRACTS. 
 
 fendant pleads belief that at the time of the contract the 
 plaintiff had a title ;(o) or even if, the plaintiff having 
 pleaded the facts constituting his title, they are not denied 
 (specifically or by necessary implication), or stated to be 
 not admitted, in the pleading of the defendant. (^) 
 
 § 1304. But this waiver, where not express, must be 
 clearly implied from the acts of the purchaser. "The 
 court/' said Lord Eldon, "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 sur- 
 prise upon him, and that there has been a full and fair rep- 
 resentation as to the title on the part of the plaintiff :"(§') 
 and so where the vendor 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 clearly 
 and explicitly, and not merely by inference or notice, (r) 
 
 ^ 1305. It is often the case that there is only a particu- 
 lar objection to the title that is of moment, and it is then 
 frequently a question whether the purchaser has not waived 
 all right to object to it. 
 
 §1306. 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 where the defect is incurable, and 
 
 (3) those of acts before the objection is known to the pur- 
 chaser. It is evident that under the last we may treat the 
 question of a general waiver of title. 
 
 ij 1307. (3) 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 yet not 
 amount to a waiver, because they may be done in the faith 
 and expectation that the remedy will be applied. And a 
 negotiation about the objection between the parties after 
 the acts is, on this i)rinciple, an evidence that it was not 
 waived. (5) 
 
 P 1308. (2) But where the defect is known to the pur- 
 chaser, and is in its nature incurable, there no such ex- 
 pectation can arise, and much slighter acts will operate as 
 
 (o) Phipps V. Child, 3 Drew., 709. (r) Blacklow v. Laws, 2 Ha , 40. 
 
 (p) Ord. XIX. r. 17. (»■) Calcralt v. Roebuck, 1 Ves. Jun., 221. 
 
 (5) In Jenkins V. Hilea, 6 Ves., 655; Hay- 
 don V. Bell, 1 Beav., 337.
 
 EEFERENCE OF TITLE, 617 
 
 indications of an intention to waive the objection. So 
 where an estate, sold a 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.(^) So 
 where an estate was subject as to part to a reservation of 
 rights of si)orting, which appeared on the abstract, and 
 which the vendor could not cure, and after the delivery of 
 the abstract the purchaser took possession ; he was held to 
 have waived his right to object to the reservation in ques- 
 tion. (2^) 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. (?)) And, Avhere the 
 defect alleged was an erroneous and misleading description 
 of the situation of a house, but the purchaser had proceeded 
 to investigate the title after this was known, he was held to 
 have waived all objection on the score of misdescription. (w) 
 
 § 3309. So with regard to the contract itself— if the 
 defendant contends that it is a nullity, and, after having 
 become aware of the facts on which he relies for this con- 
 tention, has gone on acting as though there were a subsist- 
 ing contract, he will be estopped from subsequently taking 
 the objection, (x) 
 
 § 1310. Where, either by the terms of the original con- 
 tract, 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 by 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 jDerson purchased a share in some iron 
 works to which a good title was to be made in about a year, 
 and it appeared to be the intention of both jDarties that the 
 purchaser should previously take possession and act as 
 partner, his doing so was no waiver of his right to a good 
 title.{y) 
 
 (t) Fordyce V.Ford, 4 Bro. C. C, 494; S. C, (The contract was, however, rescinded on 
 
 6 Yes., ti79. another ground ) 
 
 (M) Burnell v. Brown, IJ. & W., 16S. (x) Flint v. Woodin, 9 Ha., 618; Campbell 
 
 (») Ex paite Sidebotham, 1 Moiit. & Ayr., v. Fleming, 1 A. & E., 40. 
 
 €55; Ex parte Barrington, 2 Mont. & Ayr., (y) Stevens v. Guppy, 3 Ru39., 171; Mar- 
 
 245. gravine of Anspach v. Noel, 1 Mad., 310, 315. 
 
 (w) Stanton v. Tatteraail, 1 Sm. & G., 529.
 
 618 FRY ON SPECIFIC PERFOKMANCE OF CONTRACTS. 
 
 § 1311. In Burroughs v. Oakley(£:) the original contract 
 was silent as to possession, but possession liaving been 
 taken by the purchaser, and both parties having for more 
 than a year subsequently continued negotiating as to title, 
 Plumer, M. R., concluded that possession was prematurely 
 taken with the consent of both parties, but without an 
 intention of waiving the investigation of title : and so where 
 a purchaser took possession, with the vendor's leave, pend- 
 ing an answer to a requisition as to the tenure of the 
 property, he was held to have not thereby waived the 
 requisition, (rf) 
 
 § 1313. (3) Acts of ovvership on the part of a purchaser 
 may amount, in the contemj)lation of the court, to a declara- 
 tion that he considers himself as the owner of the property, 
 and then they work an acceptance of title and a waiver of 
 all objections ; or secondly, such acts, though falling short 
 of this, may yet, by changing the property which is subject 
 to the vendor's lien, affect that security, and therefore 
 furnish a motive to the court to order the payment into 
 court of the purchase-money, (b) 
 
 § 1313. 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, (c) — such acts, in short, as are 
 equivalent to a declaration by the purchaser that he has 
 taken the estate at all possible risks, and considers him- 
 self as the absolute and unconditional 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. (rZ) 
 
 ^ 1314. Leaving the abstract unobjected to for two 
 years, altering the property, letting it, and apologizing for 
 not paying the purchase-money, which was of course only 
 payable if the title w^as accepted, have been considered 
 strong acts of a waiver, (e) And where the purchaser was 
 in possession twenty years, and, after making frivolous 
 
 (z) 3 Sw., 159. (d) Osborne v. Harver, 2 Y. & C. C C, 116; 
 
 (a) Turquand v. Rhodes, 16 W. R., 1074. Small v. Attwood, You., 5(i6. 
 
 (6) Cutler v. Simons, 2 Mer., 103. («) Margravine of Anspach v. Noel, 1 Mad., 
 
 (c) Dixon V. Astley, 1 Mer., 133. 310.
 
 REFERENCE OF TITLE. 619 
 
 objections and refusing any further explanation of them, 
 still continued in possession, the right to investigate title 
 was held to have been waived. (/) The like was held in a 
 case where a purchaser continued twenty-six years in 
 possession after his requisitions of title were sent in, and 
 had paid a considerable part of his purchase-money, and 
 made alterations, (r/) In another case, Lord Romilly, M. R., 
 expressed an opinion that the purchaser, having retained 
 the abstract for five months and made no objections to the 
 title, but simply got the vendor to verify the abstract with 
 title-deeds, had thereby waived all objections as to title, (/i) 
 And where the purchasers of a leasehold interest, after 
 investigating and accepting the vendor's title, delayed com- 
 pletion on the ground that they had since discovered an 
 ancient lease, which they suggested (but did not attempt to 
 prove) would override the vendor' s interest ; they were held 
 to have lost the right to make any inquiry on the subject. (/) 
 
 § 13 1*5. The right of investigation may sometimes be 
 waived by the silence of a subsequent contract concerning 
 it. Thus where, by a contract for the sale of an estate, the 
 purchaser was 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 dis- 
 tinguish from the freehold ; the purchaser asked for evidence 
 of the identity of the parcels in the abstract with the estate 
 sold : subsequently, l)y a supplemental contract, the pur- 
 chaser accepted the title, subject to the production of a 
 declaration of the identity of the parcels in the deeds and 
 land sold— which was produced and approved on the 
 purchaser's behalf : and he subsequently objected that the 
 buildings were on the coj^yhold part of the estate : it was 
 held that this term of the original contract had been waived 
 by the silence on that head of the supplemental one.{J) 
 
 § 1310. On the other hand, the mere acquiescence of 
 both parties in not enforcing the completion of the con- 
 tract, (A") the continuing of a treaty and at the same time 
 insisting on the objection, (Z) and the approval of the title 
 
 (/) Hall V. Laver, 3 Y. & C. Ex., 191. (i) Corbett t. The Commissioners of Her 
 
 {g) Wallls V. Woodyear, 2 Jur. N. S., 179 Majesty's Works, etc., 16 W. R., 889. 
 (Wood, V. C). See too Bown v. Stensou, {j) Dawson v. Brinckman, 3 De G. & Sm.» 
 24 Be.av., 631. 376; S. 0. 3 Mac. & G., 53. 
 
 (h) PcKK V. WIsden, 16 Beav., 239. (k) Blachford v. Kirkpatrick, 6 Beav., 232. 
 
 (I) Knatchbull y. Grueber, 1 Mad., 103.
 
 620 FKY ON SPECIFIC PERFOKMATs^CE OF CONTRACTS. 
 
 by the i^urcliaser's counsel, (w) liave all been held sufficient 
 to waive the purchaser s right to investigate the title of the 
 vendor. 
 
 § 1317. By the vendor and purchaser act, 1874, s. 2 (1) 
 it is enacted that (subject to any stipulation to the contrary 
 in the contract) under a contract to grant or assign a term of 
 years, whether derived or to be derived out of a freehold 
 or leasehold estate, the intended lessee or assign shall not 
 be entitled to call for the title to the freehold. But in cases 
 where the purchaser of a lease still has the right to inquire 
 into the title of the lessor, conduct may waive that right 
 which does not waive the right as to the title of the lessee. 
 
 § 1318. So where B. contracted with A. to take an as- 
 signment of a lease when executed, and inspected the lease 
 and the assignment of it to A., and subsequently directed 
 A. to cause an assignment to himself to be endorsed iotldem 
 verbis, he was held to be precluded from calling for the 
 lessor's title. (?i) Again, where a purchaser, after transmis- 
 sion to him of the original lease, prepared a draft assign- 
 ment, and made various objections as to repairs and other 
 matters, but did not require the production of the lessor's 
 title, it seems that he would have been held to have waived 
 the right, but the point was not decided, (o) And in a case 
 which came before Lord Cranworth, he, affirming a decision 
 of Stewart, V. C, held that joining in a valuation, adver- 
 tising the property to be disposed of, and other like acts on 
 the iDart of the lessee, which implied that nothing remained 
 to be done but the execution of the lease, amounted to a 
 waiver of his right to call for the lessors title. (^9) 
 
 § 1319. In analogy with the distinction established by 
 the above cases on conditions of sale as to the lessor's title, 
 it is established that acts may amount to a waiver of a 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 a 
 
 (to) Deverell ▼. Lord Bolton, 18 Ves., 505. 665, which see for the form of a declaration 
 
 Distinguish Corbett t. The Commissioners that the right to call for the lessor's title has 
 
 of Her Majesty's Works, etc., 16 W. R., 889. been waived. See also Ogllvie v. Foljambe, 
 
 (n) smith v Capron, 7 Ha., 185, 189 3 Mer., 66. 
 
 (o) Clive V. Beaumont, 1 De G & Sm., 397. (7) You., 1. 
 
 (p) Simpson V. Sadd, 4 De. G. M. & G.,
 
 KEFEKENCE OF TITLE. 621 
 
 title ; but it appearing on the report of the Master, to whom 
 it was referred to settle the lease and to state any 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 was plaintiff, 
 could not make a good title ; the court refused to enforce 
 the completion of the contract on the defendant. 
 
 § 1320. Where the purchaser, having discovered a 
 material defect in the title in the course of his investigation 
 of it, gave notice to determine the contract, and immediately 
 afterwards bought up the interest which had constituted 
 his objection, it was held that, having thus by his own 
 voluntary act cured the defect, he could not avail himself 
 of this purchase for the purpose of destroying the original 
 contract; and specific performance was decreed against 
 him.(r) 
 
 § 1321. With regard to the proper mode of pleading 
 that the right to investigate the title has been waived, it 
 was decided by Knight Bruce (then V. C.) in Clive v. Beau- 
 mont, (5) that it was not enough for the party relying on 
 such waiver to allege facts from which it is a legal inference ; 
 but that he must allege the facts and that there had thereby 
 been such waiver. And this seems to be the i-)roper course 
 under the present practice of the high court, (i^)' 
 
 § 13S2. With regard to the stage of the proceedings at 
 which the reference of title may be obtained, it will be con- 
 venient briefly to refer to the former practice of the Court 
 of Chancery, inasmuch as the principles upon which that 
 practice was based will no doubt continue to be observed by 
 the high court, so far as they are applicable to the present 
 procedure. 
 
 § 1323. The inquiry as to title might be directed by the 
 Court of Chancery, 
 
 (r) Murrell v. Goodyear, 1 De G. F. & J., Frankum, 2 De G. & Sm., 561^ Cf. Hughes, 
 432 V. Jones, 3 Ue G. F. & J.,316-^. 
 (!s) 1 De G & Sm., 397. See to Gaston v. (t) Ord. XIX. r., 18. 
 
 1 Waiver of tender.^ A tender need not be averred by the plaintiff, wliere he 
 avers and proves that the defendant refused to fulfil the contract, and expressly- 
 waived a tender. Martin v, Merritt, 57 Ind., 34. 
 
 Cross bill in sjiecific lyerformance.^ Where the vendor, by his answer to the 
 action of the vendee, submit to perform, it is competent for him, by a cross 
 bill to compel the vendee to perform also. He cannot, however, after resist- 
 ing performance, and where the property has depreciated in value, compel 
 specific performance by the vendee. Tobey v. Foreman, 79 111., 489.
 
 622 FRY ON SPECIFIC PERFORMANCE OF CONTRACTS. 
 
 (1) At the hearing : 
 
 (2) On motion before the hearing but after the answer : 
 
 (3) On motion before answer. 
 
 The practice of allowing this inquiry to be directed on 
 motion was introduced by Lord Thurlow.(?^) 
 
 § 1334. (1) Where an inquiry as to title alone was 
 directed at the hearing, it was taken as excluding all other 
 questions but that of title, so that the court would not, on 
 further consideration, enter into any other question set up 
 as a defense by the answer, (t^) 
 
 § 1335. (2) The inquiry might be directed before the 
 hearing where, the defendant having answered, there was 
 no other question on the record but that of title, or where, 
 there being some other question, the objection on that score 
 was removed by consent. (^) 
 
 § 1336. Where other qu-estions were raised, but the 
 court, on looking into the defendant's answer, saw that they 
 were mereh' frivolous and entirely uuAvorthy of argument, 
 it would treaty them as no questions at all, and direct the 
 inquiry as if they had not been raised, (x) 
 
 § 1337. Unless, however, the other question raised by 
 the answer were merely frivolous, even though the defend- 
 ant's contention might be such as the court judged unlikely 
 to succeed, an inquiry before the hearing— which was in one 
 case described by Leach, V. C, as "in its nature an 
 extraordinary indulgence to the plaintiff, out of the common 
 course of i3roceedings,"(2/) — was not granted. (^) 
 
 § 1338. Accordingly, such references were refused in 
 the following cases : — where there was a claim for com- 
 pensation, (a) even though the defendant submitted to com- 
 plete his contract ;(5) where a purchaser insisted on laches 
 as a defense ;(c) where there was a question as to the pro- 
 duction of a lessor's title ;{d) and where there was a ques- 
 tion whether there was any subsisting contract. (e) "The 
 rule was quite obstinate," said Lord Eldon in the last-cited 
 
 {«) 1 Sw., 551 n. ; Anon. v. Skelton, 1 V. & Wood, 1 J. & W., 419; Boyes v. Liddell, 1 Y. 
 
 B., 517; Eldridge v. Porter, 14 Ves., 139; & C. C. C, 133; Wood v. Machu. 5 Ha., 158. 
 Cons. Ord. XX. See also Briscoe v. Brett, 2 (y) Gordon v. Ball, 1 S. & S., 180. 
 V &B 377 (s) Withy V. Cottle, IS. &S.,174; Gordon 
 
 (V) Le Grand v. Whitehead, 1 Russ., 309; v. Ball, IS & S., 173; Portman v. Mill, 2 
 
 cf. Hor»d V Oglander, 34 Beav., 513. Russ., 570. 
 
 (?u) Blyth V. Elmhirst, 1 V. & B. 1; Paton (a) Paton v. Rogers, 1 \ . & B., 351. 
 V. Rogers, 1 V. & B. 351; Moss v. Matthews. (6) Lowe v. Manners, 1 Mer., 19. 
 3 Ves.. -279; Wright v. Bond, 11 Ves., 39. (c) Blyth v. Elmhirst, 1 V. & B., 1. 
 
 (X) Withy V. Cottle, T. & R., 78; Boehm v. (d) Gompertz v. Anon, 12 Vea., 17. 
 
 (e) Morgan v. Shaw, 2 Mer., 138.
 
 REFERENCE OF TITLE. 623 
 
 case, "that a reference of title cannot be had except in a 
 case where there is no question but of title ; and this must 
 be the rule ; for otherwise, we should fall into the absurdity 
 of having the master's report upon a title, and a subsequent 
 decision that there is no subsisting agreement." (/) 
 
 § 1 329. By questions of title are meant those which can 
 only become properly the subject of adjudication upon the 
 investigation 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 as 
 to the application of them, the question was held to be one 
 of title. (.17) 
 
 § 1330. AVhere the circumstances were such as, on the 
 principle already stated, to justify this inquiry on motion, 
 the Court of Chancery would make it on such an applica- 
 tion, even though the question in dispute might be one 
 which could be conveniently disposed of at the hearing 
 without a reference, (7/) 
 
 § 1331. In one case, where the defendants by their an- 
 swer set up inability on the part of the plaintiff to make a 
 title, and further that he has not done so within a period 
 specified by-the contract for that purpose, and had also de- 
 livered a notice to rescind the contract. Turner and Knight 
 Bruce, L. J. J., affirming the decision of Stewart, Y. C, 
 held that the defendants were not entitled to move, before 
 the hearing, for a reference as to title according to the con- 
 tract, and when first shown, without prejudice to any ques- 
 tion in the cause. Turner, L. J., expressed a doubf whether 
 defendants could ever so move successfully. (/) 
 
 § 1332. (3) An inquiry as to title might also be made on 
 motion before answer, where the vendor, being plaintiff, 
 undertook to do all such acts for the purpose of executing 
 what the court should \liink right, as if the answer had 
 been put ui,U) and it being admitted at the bar that there 
 was no other question than that of title. (A-) Where such 
 an admission was not made, the motion was refused. (Z) 
 Nevertheless in one case Shadwell, V. C, held that, after 
 such a reference, the defendant might by his answer, which 
 
 (/) 2Mer., 140. Mining Co., Limited, 3 De G. J. & S., 593, 
 
 (g) Machu, 5 Ha., 158, 161. 595. 
 
 (A) Curling v. Flight, 5 Ha., 248. (/) Balmanno v. Lumley, 1 V. &. B. 224. 
 
 (i) Reed v. Don Pedro North Del Key Gold («) See per Lord Eldon in 1 Mer., 372. 
 
 (I) Matthews v. Dana, 3 Mer., 470.
 
 624 FRY ON SPECIFIC PEKFOKMANCE OF CONTRACTS. 
 
 was called for by the plaintiff, make any 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 objec- 
 tion as to title. "(;i) It would seem from this that the order 
 should have been prefaced with such a declaration. 
 
 § 133^1. In the case of Phillipson v. Gibbon, (o) the pro- 
 priety of the vendor taking the earliest possible opportunity 
 of obtaining the reference, where only title is in question, 
 w^as plainly intimated by James, L. J. "In almost every 
 case," said his Lordship, " It is the duty of a vendor, where 
 there is no question but that of title between him and the 
 purchaser, to avail himself of the opportunity of having an 
 immediate reference as to title and so saving a multiiilica- 
 tion of unnecessary costs. (^:>) 
 
 § 1334. The inquiry as to title is now, it is conceived, 
 obtainable either under Ord. XXXIII., which provides that 
 "the court or a judge may, at any stage($') of the proceed- 
 ings in a cause or matter, direct any necessary inquiries or 
 accounts to be taken, notwithstanding that it may appear 
 that there is some special or further relief sought for, or 
 some special issue to be tried, as to which it may be proper 
 that the cause or matter should proceed in the ordinary 
 manner ;' ' (r) or, in an appropriate case, under the eleventh 
 rule of Order XL., ]providing that "any party to an action 
 may, at any stage thereof, ajDply to the court or a judge for 
 such order as he may, uj)on any admission(5) of facts in the 
 pleadings, be entitled to, without waiting for the determi- 
 nation of any other question between the parties, -s^- * * 
 Any such application may be made by motion, so soon as 
 the right of the party applying to the relief claimed has 
 appeared from the iDleadings. The court or a judge may, 
 on any such ax)plication, give such relief, subject to such 
 terms, if any, as such court or judge may think fit."(^) 
 
 § 1335. The order for reference is not strictly confined 
 to an inquiry whether a good title can be made, but may 
 
 (m) Emery v. Pickering, 13 Sim., 583. {r) Compare Consol. Ord. XX., and see 
 
 (n) 13 Sim., 584. Ord. I. r. 3; also Ord. XXXVI. r. 6. 
 
 (o) L. R., 6 Ch., 423. (s) .^ee Symonds v. Jenkins, 24 W. R., 513. 
 
 (p) L. R. 6 Ch., 435. (t) The Judge of first instance has a discre- 
 
 Iq) For form of judgment where the inquiry tion as to making or refusing an order under 
 
 is directed, see Seaton, 1287. this rule. Mellor v. Sldebottom, 5 Ch. D., 
 
 343 (C. A.)
 
 KEFERENCE OF TITLE. 625 
 
 extend to everything that appears to be connected with 
 the title, (w) It should therefore include an inquiry as to 
 the time at which a good title was shown, («) unless for some 
 reason stated at the time — e. g., that the contract itself, (20) 
 or the plaintiff's right to specific performance, (a?) has been 
 disputed— and by the exiDress direction of the court, this 
 inquiry was omitted. (?/) As this inquiry, if to be made at 
 all, should be directed at the original reference, the court 
 has refused to direct it subsequently on a second motion. (2;) 
 
 § 1336. On the same principle, the inquiry may extend to 
 whether it appeared by the abstract that a good title could 
 be made :(a) and on the like ground, an inquiry was in one 
 case added whether 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 to be not so connected with the title as to be 
 added to the reference. (5) 
 
 § 1337. The inquiry may be limited in any manner 
 appropriate to the circumstances of the particular case, as, 
 for instance, by directing that regard is to be had to, or that 
 the inquiry is to be made subject to, specified requisitions 
 or declarations. (c) 
 
 § 1338. In Harnett v. Baker, (rZ) the court (Malins, V. 
 C), having come to the conclusion that a condition of sale 
 restrictive of the title was not binding on the jDurchaser, on 
 the ground that it was founded on an erroneous statement 
 of facts which the vendor was bound to know was erroneous, 
 held that the vendor (plaintiff") must either take an open 
 reference of this title (which he refused), or have his bill 
 dismissed with costs. 
 
 § 1339. 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, when one of the inquiry has been 
 
 (M) Jennings v. Hopton, 1 Mad., 211; Ben- practice on this point was somewhat vari- 
 
 nettv. Rees, 1 Ke., 4u8; Enraght v. Fitzger- able. Moss v. Matthews,;? Ves, 279; Gibson 
 
 aid, '2 Dr. & War., 43. See too Gedye v. Clarke, 2 V. & B., 108 
 Commissioners of Public Works, 16 W. R. (z) Hyde v. Wroughton, 3 Mad., 279. 
 1106. (a) Wright V. Bond, U Ves., 39; Horniblow 
 
 (V) Seton, 1297, 1303. See Foxlowe v. Am- v. Shirley, Seaton, 129&*; Jennings v. Hopton, 
 
 coats, 3 Beav., 496. 1 Mad., 211. 
 
 (w) Gibbons v. North-Eastern Metropolitan (b) Bennett v. Rees, 1 Ke., 405, 40S-9. 
 Asylum District, 11 Beav., 1; Morris v. WIl- (o) Saul v. Bolton, Seton, 1297; Remnant v. 
 
 son, 5 Jur. N. S., 168. Holt, Id., 1298; Hume v Pocock, L. R. 1 Eq., 
 
 (X) Potter V. Crossley, 5 W. R.. 33. 423, 431, 1 Ch , 377; and supra, §§ 1298, 2299. 
 
 (y) Bennett v. Rees, 1 Ke., 409 The old {d) L. R. 20 Eq., 50, 58. 
 
 40
 
 626 FKY ON SPECIFIC PERFORMANCE OF CONTRACTS. 
 
 directed, (c) he may make out his title at any time before 
 the certificate, and if he can do so he will be entitled to a 
 judgment or order in his favor, (/) at least where there has 
 been no unreasonable delay, and time is not material. ((7) 
 
 § 1340. The Court of Chancery often allowed time for 
 the completion of the title : in an old case it more than 
 once allowed the vendor time to get an act of Parliament ;(7i) 
 and where upon the face of the contract it appeared that 
 there was a difficulty in the plaintiff's title, Lord Hatherley 
 (then Wood, Y. C.,) refused on demurrer to stop a suit for 
 specific performance, on the ground that the act of Parlia- 
 ment contemplated had not been obtained. (/) So, in 
 another case, the court allowed the vendor time to procure 
 a small part of the estate ^{J) and, in another case, allowed 
 a limited time to procure the concurrence of an assignee in 
 insolvency. {7c) 
 
 § 1341. The court grants indulgence in point of time for 
 getting over any difficulties in matters of conveyance, as 
 much where the vendor is the plaintiff, as where the pro- 
 ceedings are instituted by the purchaser. (^) 
 
 § 1343. But this indulgence will not be granted where 
 the defect to be remedied was known to the vendor or his 
 agent, and was concealed from the x^urchaser -,{771) nor where 
 there has been great delay, and there is no probable chance 
 of the difficulty being got over in a short time ;{%) so that a 
 purchaser under the court would be discharged if it appeared 
 requisite to his title that an account should first be taken 
 in an action to be instituted, (0) or that an action should be 
 instituted to try whether certain devisees were trustees for 
 the seller or not. {p) 
 
 § 1343. Nor will the court grant additional time where 
 the vendor j)roposes, not to cure a defect in the title which 
 he had at the sale, or to produce fresh evidence in support 
 of it, but to get an entirely new title : for the court will not 
 
 (e) Questions as to time and delay may, it (i) Devenlsh v. Brown, 26 L. J. Ch. 23. 
 
 is conceived, be properly raised on the ap- (j) Chamberlain v. Lee, 10 Sim., 444. 
 
 plication lor the inquiry. (k) Sidebotham v. Barrington, 4 Beav. 110. 
 
 (/) Bennet College v. Carey, 3 Bro. C. C, See too on this point. Re Banister, 12 Ch. D., 
 
 390; per Lord Eldon in Jenkins v. Hiles, 6 145. 
 
 Ves., e.'i.'j, and In Seton v. Slade, 7 Ves., 279; (0 Duke of Beaufort v. Glynn, 3 Sm. &. G., 
 
 Wynn v. Morgan, 7 Ves., 292, 315; Vancou- 213 
 
 ver V. Bliss, 11 Ves., 4.58 (m) Dalby v. Pullen, 3 Sim., 29; S. C. 1 R. 
 
 (</) Langford v. Pitt, 2 P. Wms., 629. & My.. 296. 
 
 (h) Lord Stourton v. Meers, cited 2 P. (n) Fraser v. Wood, 8 Beav., 339. 
 
 Wms., 630. See also Lord Braybroke v. Ins- (o) Magennis v. Fallon, 2 Moll., 561. 
 
 kip, 8 Ves., 417,436; Coffin V. Cooper, 14 Ves., (]>) Noel v. Hoy, St. Leon. \ end., 293. 
 205.
 
 EEFERENCE OF TITLE. 627 
 
 force a buyer to take an estate froin a vendor who is neither 
 owner of it, nor possessed of the power by the ordinary 
 course of legal proceedings to make himself so ;{q) for it is 
 not the purpose of the court to enable one man to sell 
 another man's estate. (r) As to this point, it was in one 
 case decided that a title from possession defeasible by the 
 crown on account of the alienage of the original owner, 
 cured by a grant from the crown Avhilst the question was in 
 the master's office, was the same title, and the purchaser 
 was compelled to take it.{s) And the fact that the vendor 
 may have had no title to a small part of the estate at the 
 time of sale, and subsequently i^urchases it, will not make 
 the title a new one within this rule.(^^) 
 
 § 1344. But even where the vendor has no title at all at 
 the time of sale, so that the purchaser may withdraw if he 
 choose, yet, if he acquiesce in steps taken by the vendor to 
 get in the estate, he will thereby have waived the want of 
 mutuality, and be bound to accei^t the title, if made out at 
 the trial or other necessary time.{u) 
 
 § 1345. The inquiry as to title takes place in the cham- 
 bers of the judge, and the result is embodied in a certificate 
 of his chief clerk, which, when approved by the judge, is 
 signed by him, and filed in the central office of the court. (?)) 
 
 § 1346. Evidence by affidavit of matters of fact material 
 to the title is admissible under a reference of title, (-w) 
 Accordingly where, under such a reference, after the con- 
 veyancing counsel had given his opinion in favor of the 
 title, but before the certificate had been actually signed, a 
 very serious defect of title, not in any way disclosed or 
 raised by the abstract, was discovered by the jmrcliaser's 
 insj)ecting the property, evidence of the matters so dis- 
 covered was admitted. (.t) 
 
 § 1347. Whatever can be done in chambers upon a 
 reference as to title under a judgment where the contract is 
 established, can be done upon jDroceedings under the ninth 
 section of the vendor and purchaser act, 1874, already 
 
 (q) Tendringv. London, 2 Eq Cas. Abr., (v) Dart, Vend. (5th eu.), 1099; Ord. LXa. 
 
 680, pi. 9; Magennis v. Fallon, -2 Moll., 561. As to objecting: to the certificate before it is 
 
 (r) Chamberlain v. Lee, 10 Sim.. 444. signed by the Judge, see Parr v. Lovegrove, 
 
 (s) Eyaton v. Simmons, 1 Y. & C. C. C, 608. 4 Drew., 17';. 
 
 It) Chamberlain v. Lee, 10 Sim., 444. (,w) Re Burroughs, Lynn and Sexton, 5 Ch. 
 
 (M) Hoggart V. Scott, 1 R. & My., 293; Sails- D., 603. 
 
 bury V. Hatcher, 2 Y. & C. C. C, 54. see (a;) Phillipson v. Gibbon, L. R. 6 Ch., 428. 
 supra, §§ 447, 448, and Murrell v. Goodyear, 
 1 De G. F. & S., 433.
 
 628 FRY ON SPECIFIC PERFORMANCE OF CONTRACTS. 
 
 referred to.{y) That act enables the luirties in such cases 
 to dispense with the formal pleadings of an action, and at 
 once to put themselves in chambers in exactly the same 
 position in which they would have been, and with all the 
 rights which they would have had, under the old form of 
 decree, (z) 
 
 § 1348. The certificate should, it seems, be on the fact 
 of title aye or no : and accordingly it is improper to certify 
 that a defendant with the concurrence of a third party 
 could make a good title, (a) or that he could do so subject to 
 the performance of certain conditions ;(6) but where the 
 certificate is against the title, it should state the precise 
 points in which it is defective, (c) 
 
 § 1349. If any party is dissatisfied with the certificate 
 as filed, he must apply (by summons or motion) to dis- 
 charge or vary it within eight clear days from the filing ; 
 otherwise, at the expiration of that time it becomes binding 
 on all the parties to the proceedings, and will not after- 
 wards be opened except upon special grounds. (cZ) 
 
 § 13oO. If the certificate is in favor of the title, and 
 either no application to discharge or vary it is made, or 
 such application fails, specific performance will generally 
 be ordered at the hearing (original or on further considera- 
 tion, according to the stage at which the reference was 
 directed), of the action, (e) After such an application has 
 failed, it seems that no other objection to the title can be 
 made. (/) 
 
 Under the^old practice, where the report was in favor of 
 the title, but the court thought it too doubtful to force on 
 a purchaser, the court might dismiss the bill without allow- 
 ing the exceptions, (p')iand either with(7i) or without(/) costs, 
 as the court might think right. 
 
 § 1351. Where the court varies a certificate in favor of 
 the title, (,y) or refuses to vary one against it,{Jc) and the ven- 
 
 (y) Supra, § 1106. <f) Brooke v. Anon., 4 Mad., 212. As to 
 
 (z) Re Burroughs, Lynn and Sexton, 5 Oh. the eflfect of a direction that the vendor shall 
 
 D., 604. convey, see Minton v. Kirwood, L. R. 3 Ch., 
 
 (o) Lewis V. Loxam, 1 Mer., 179. 617. 
 
 (6) Magennis v. Fallon, 2 Moll., 561,575, (g) Bickner v. Milner, 1 Ha., 578 n. 
 
 583. See too Eadaile v. Stephenson, 6 Mad., (h) S. C. Js^ ■ 
 
 3C6 (i) Wilson v. Bellairs, T. & R., 491. 
 
 (c) Green v. Monks, 2 Moll., 325. (j) Egerton v. Jones, 1 R. 4& My., 694. 
 
 (d) Howell V. Kightley, 8 De G. M. & G., {k) Consider Brewster v. Woodall, (Hall, 
 325. v. C, 22nd.July, 1S78), cited Seton, 1299. 
 
 («) See Dart, Vend. (15th ed.), 1109. Con- ^ 
 
 aider Jeudwine v. Aicock, 1 Mad., 597. [ .—.k^tiL—
 
 EEFERENCE OF TITLE. 629 
 
 ■ dor desires to have an opportunity of making out a better 
 title, the certificate is generally, upon the hearing of the 
 application to vary, referred back to chambers for review ;{l) 
 and the vendor will be allowed a reasonable time within 
 which to remove the objection, (m) On the other hand, 
 when the matter has gone back to chambers, and a new 
 abstract of title has been delivered, further objections may 
 be brought m.{7i) 
 
 § ] S5*i. The Court of Chancery referred back the ques- 
 tion of title where the master (now represented by the chief 
 clerk) was satisfied with evidence of a fact with which the 
 €ourt was not satisfied, the vendor offering to produce 
 further evidence ;(o) also where, by expressing an opinion 
 in favor of some part of the title, the master had j)revented 
 the vendor from showing that the title was good, even sup- 
 posing that part not to be so.(^) 
 
 When the report (now the certificate), was against the 
 title, and the defect was cured at the hearing on further di- 
 rections, the Court of Chancery compelled specific perform- 
 ance, (§') without giving time for further proceedings: but 
 if there was a question whether the defect was in part 
 cured, the court would refer it back to the master to review 
 his report with the additional circumstances. (r.) 
 
 § 1353. In a case where the certificate was against the 
 title, but it appeared that, since the contract, the purchaser 
 had by his own act acquired the means of curing the de- 
 fect, the court refused to dismiss the vendor's bill. (5) 
 
 § 1354. But, generally, if the certificate is against the 
 title, and either no application is made to discharge or vary 
 it, or such application fails, the action will be dismissed. (^) 
 
 § 1355. In one case, where the vendor was plaintiff and 
 a deposit had been paid, the vendor was ordered to repay it 
 with interest at four per cent, and it was declared that the 
 purchaser was entitled to a lien on the estate for the deposit 
 and interest, and also for his costs of the action, with liberty 
 
 (I) Curling v. Flight, 3 Ph., 616, 619. Cf. (q) Paton v Rogers, 6 Mad.. '256 
 
 Ehodes v. Ibbetson, 4 De G. M. & G . 787. (r) Esdalle v. Stephenson, 6 Mid , 366. 
 
 (m) Portman v. Mill, 1 K. & Mv., 696. {s) Hume v. Pocock, L. R. 1 Eq., 6«2; cf. 
 
 (») See Brooke v. Anon , 4 Mad , -IVi. Miirrell v. Goodyear, 1 De G. F. & J., 432. 
 
 (o) Andrew V. Andrew, 3 Sim., 390. {t) See Dart, Vend. (5th ed.). 1111 ; Pretty 
 
 (p) Egerton V Jones, 3 .Sim.. 392; S. C. 1 v. Solly, 26 Beav., 613. Distinguish Gedye v. 
 
 R & My ,694; Portman v. Mill. 1 R. & My., Commissioners of Public Works, 16 W. R., 
 
 696; Flldes V. Hooker, 2 Mer., 424. See also 1106. 
 Jeudwine v. Alcock, 1 Mad , 597.
 
 630 FKi UN SPECIFIC PERFORMANCE OF CONTRACTS. 
 
 to api>ly at chambers to give effect to the lien, and there- 
 upon the bill was dismissed, with costs. (?^) 
 
 § 1356. As an ordinary rule, costs are given not to, but 
 against, a vendor up to the time at which he has lirst shown 
 a good title. («)' But there is also another general rule, that 
 if a purchaser has taken certain objections to the title of the 
 vendor, and those objections wliicli have been the cause of 
 the litigation are overruled, the vendor will be entitled to 
 his costs, and the purchaser will not escape paying them by 
 reason of some evidence, the want of which was never the 
 subject-matter of dispute between them, not having been 
 supplied until the title was investigated in chambers. (20) 
 
 And where a defendant prevented the plaintiffs (vendors) 
 from obtaining the usual reference as to title on interlocu- 
 tory motion by setting up defenses wdiicli, at the hearing, 
 he failed to establish, he was ordered to pay the plaintiffs^ 
 costs up to and inclusive of the hearing, (ic) 
 
 § 1357. In the inquiry as to the time when a good title 
 was shown is involved the question, what is showing a good 
 title. (2/) In relation to this, two distinctions are to be borne 
 in mind, the one between questions of title and of convey- 
 ance, the other between questions of title and of evidence. 
 
 § 1358. As to the first, the rule was thus stated by Lord 
 Eldon in Lord Bray broke v. Inskip :{z) ''As to the question 
 whether the abstract was complete, the abstract is complete 
 whenever it appears that, upon certain acts done, the legal 
 and equitable estates will be in the purchaser. That may 
 be long before the title can be completed." So that a good 
 title is shown when it appears from the abstract that the 
 vendor has the whole equity, and in what persons the out- 
 standing portion of the legal estate is vested. («) The acts 
 to be done, of which Lord Eldon speaks, must be confined 
 
 (u) Turner v. Marriott. L. K. ?, Eq.. 744. (v) See §§ 1281, 136-2. 
 
 [v) Phillipson v Gibbon, L K 6 Cti., 434. (s) 8 Ves , 436. 
 
 {w)S c;,434. Cf. Bridges v. l-oiigman, 24 (a) Avarne v Browne, 14 Sim.,3(i3; Cam- 
 
 Beav., 27. herwell and South London Building Society 
 
 (a;) Hyde v. Dallaway, 4 Beav., 606. v. HoUoway, 13 Ch. D., 7o4, 763. 
 
 1 Demand as Mving relation to the question of costs.'] Where a party is entitled 
 to a conveyance on request, he may commence an action for specific perform- 
 ance -without previous request. Proof of previous demand in equity is only 
 important in reference to costs. The party liable to perform is put in the 
 wrong, where there is a demand and refusal, and is chargeable with costs- 
 Bruce V. Tilson, 25 N. Y., 194; see, also, Gray v. Daugherty, 25 Cal., 266; 
 Jones V. City of Petaluma, .36 id., 230; Morris v. Hoyt, 11 Mich., 9.
 
 EEFERENCE OF TITLE. 631 
 
 to acts the performance of which the vendor can enforce in 
 a court of justice, as, for instance, by calling on a trustee to 
 convey the estate vested in him. Tlierefore, where an estate 
 tail was outstanding in a person who had consented to bar 
 it, but was not in any way a trustee for the vendor, the 
 court held that the title was not made out till the recovery 
 had been fully perfected, (b) 
 
 § 1359. In Esdaile v. Stephenson, (c) Leach, V. C, after 
 consultation with Lord Eldon, laid down the rule "that 
 where a necessary party to the title was neither in law or 
 equity under the control of the vendor, but had an inde- 
 pendent interest, unless there was produced to the master 
 a legal or equitable obligation on the part of the stranger to 
 join in the sale, the master ought to report against the title ; 
 otherwise where a necessary party to the title was under the 
 legal or equitable control of the vendor, as a mortgagee, 
 where the master might well report that upon payment of 
 the mortgage a good title could be made." 
 
 § 1360. The rule is further illustrated by other cases. 
 In one, it was held to be no objection to title, that a satis- 
 fied term was outstanding in a lunatic against whom no com- 
 mission had issued, so that there was then no person com- 
 petent to make the assignment :{d) and in another case, the 
 legal estate of a moiety of the property was outstanding in 
 a married woman or those claiming under her, but she being 
 under the order of the court to convey was bound by it, 
 and became absolutely a trustee for the purchaser under the 
 order of the court : the title was tlierefore held good, but 
 without prejudice as to the question of conveyance, (e) 
 
 § 1361. it appears to have been considered by Shad- 
 well, V. C, to be sufficient, if the abstract showed that the 
 outstanding legal estate had been formerly vested in a trus- 
 tee for the vendor, and that the abstract was then complete, 
 though a supplemental abstract was necessary to trace the 
 legal estate. (/) But this decision seems at variance with 
 the rule enunciated by him in the same case, of which one 
 condition is that the abstract must disclose in whom the 
 legal estate is vested, not in whom it was formerly vested. 
 And accordingly Lord Gifford, M. R., held that where an 
 
 (b) Lewin v. Gust, 1 Ruse., 325. (e) Jumpson v. Pitcher, 1 Coll., 13. 
 
 (c) 6 Mad,, 366. (/) Avarne v. Brown, 14 Sim., .303. 
 Id) Berkeley v. Dauh, 16 Ves., 380.
 
 682 FRY ON SPECIFIC PERFORMANCE OF CONTRACTS. 
 
 abstract only showed that the legal estate had long since 
 been vested in persons who would be trustees for the ven- 
 dor, but did not show in whom the legal estate was then 
 vested, the defect was one of title and not of conveyance. (<7) 
 
 § 1363. A distinction has also been taken between show- 
 ing and making a good title. A good title is shown when 
 all the matters essential to the title are stated in the ab- 
 stract : it is made, when those matters are proved. (7/) 
 
 § 130:t. It is evident, further, that there is a distinction 
 to be drawn between matters of title and of the evidence, 
 whereby that title is supported. The verification of the ab- 
 stract may be 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 par- 
 cels apparently different on the deeds — is a matter of title. (/) 
 
 ig) Wynne v. Griffith, 1 Russ., 283. See, Kindersley, V. C, in Oakden v. Pike, 13 W. 
 further, as to what is a perlect abstract, per R., 674; 11 Jur. N. S., C66. 
 Wigram, V. C , in Morlev v. Cook, 3 Ha , 111 ; (h) Parr v. Lovegrove, 4 Drew, 170, 181. 
 Ward V. Ghrimes, 11 W. R., 794; and per (i) Sherwin v. Shakspear, 17 Beav., 267, 
 
 275; varied on appeal, 5 De Q. M. & G., 517.
 
 INTEREST, RENTS, DETERIORATION, ETC. 633 
 
 CHAPTER V. 
 
 OF INTEREST, RENTS, DETERIORATION, AND PAYMENT INTO 
 
 COURT. 
 
 § 1364. In the case of every contract of sale, the ques- 
 tion arises — At what time does the property in the thing- 
 sold pass from the vendor to the purchaser V 
 
 In the case of a contract for the sale of real or chattel real 
 property in this country, the answer to this question involves 
 important consequences, some of which it is i)roposed to 
 discuss in the present chapter. It will be convenient, there- 
 fore, briefly to consider the effect of such a contract as 
 between the parties to it. 
 
 § 1305. Where such a contract is entered into, the legal 
 estate in the property passes, not by the contract, but only 
 upon and by virtue of the execution of a subsequent formal 
 deed of conveyance, (a) The equitable estate or beneficial 
 ownership, however, passes, as between the contracting 
 parties, by the contract itself (&) but only sicb modo, or, in 
 other words, conditionally upon the contract being ulti- 
 mately completed by the "fulhllment by the vendor and 
 l)urchaser respectively of the mutual obligations imposed 
 on them by the contract.* 
 
 (a) See Austin's Jurisp , 388, 1001-2; and (6) Per Lord W estbury in Rose v. Wataon, 
 per Grant, M. R., in Fludyer v. Cocker, 12 10 H. L. C ,678. Of. Edwards v. West, 7 Ch. 
 Ves., 27. D., 862, and supra, § 892. 
 
 ' 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 fornaer. The laud is, in equitj-, 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 ritrhts of the vendor under the contract. 
 Wing V. McDowell, Walk. Ch., 175. 
 
 ' Immediately upon the contract to purchase, an equitable estate arises in the ven- 
 dee.'\ "The doctrine of the English courts is necessary to give effect to the 
 principle that, in equity, immediately on the contract to purchase, an equitable 
 estate arises in the vendee, the legal estate remaining in the vendor for his 
 benefit Qualified by the obligation to make compensation to any subsequent 
 bona fide purchaser, who has paid only part of the consideration moriey, for all 
 disbursements made l)efore notice, the rule is every way consonant with correct 
 principles. Such indemnity is protection pro tanto. The rule of law which 
 deprives a subsequent purchaser who has contracted and accepted a convey- 
 ance, and paid part of the purchase money, in good faith of the fruits of Ms 
 purchase, without indemnity, is extremely harsh, and often oppressive in its 
 application. Mitigated by the obligation to make indemnity for payments
 
 634 FRY ON SPECIFIC PEKFOKMANCE OF CONTRACTS. 
 
 It follows (it is conceived) that upon the completion of 
 the contract the condition is satisfied, and the vesting of the 
 equitable as well as of the legal estate becomes absolute ; 
 but that upon the contract coming to an end in any other 
 way than by completion the equitable estate revests in the 
 vendor, (c) 
 
 § 1360. It is, then, important to inquire what are the 
 mutual obligations of the parties to a contract of the kind 
 under discussion. It is submitted that, in the absence of 
 express stipulation, they are shortly as follows : — 
 
 ^ 1 367. The vendor is bound — 
 
 1. To show a good title to the property contracted to 
 be sold. 
 
 2 i (a) To take reasonable care of the property, and 
 ( (b) to pay the outgoings, until the jiurchaser takes, 
 or ought to take, possession of it. 
 3. Upon being paid the purchase -money, and any 
 interest on it that may have become payable, 
 
 (c) to execute and i^rocure the execution by all 
 other necessary parties (if any) of a proper 
 deed of conveyance vesting the legal estate in 
 the purchaser, and 
 
 (d) to put him in possession of the property. 
 
 § 1368. It is in regard of these or some of these obliga- 
 tions that the vendor has been said to be a constructive 
 tmstee, or a trustee suh modo, of the estate for the pur- 
 chaser from the time when the contract is constituted. («^) 
 
 § 1369. On the other hand, the purchaser is bound — 
 
 1. As soon as either the vendor has shown a good title, 
 or he (the purchaser) has accepted such title as the vendor 
 shows or has, 
 
 (c) See per Plumer, M. R„ in Wall v. L. R. 5 H L, 338,349, 350; per Jeseel, M. B., 
 Briffht IJ & W . 501. in Lvsaght v. Edwards, 3 Ch. D., 506-510; 
 
 (d) See per Plumer. M. R., in Wall v. per James, L. J., in Rayner v. Preston, 29 
 Bright, IJ. & W., 500-51)3; Shaw v. Foster, AV. R., 550. 
 
 and expenditures before actual notice, its operation is nevertheless frequently- 
 inequitable. A party who seeks the enforcement of a rule of this nature against 
 another who is innocent of actual fraud, must seek his remedy promptly. He 
 may lose his right to specific relief against the land by laches, and be remitted 
 to the unpaid purchase money as the only relief which will be equitable." 
 Dupue, J., in Houghwout v. Murphy, 22 N. J. Eq., 531.
 
 INTEREST, KENTS, DETERIORATION, ETC. 635 
 
 (a) to pay the purcliase-money, and any interest 
 on it that may have become payable, and 
 
 (b) to take possession of the property (that the ven- 
 dor may be relieved from all future liabilities 
 incident to the ownership.) 
 
 2. To bear the loss resulting from any accidental injury 
 to the property happening after the contract has been 
 constituted, (e) 
 
 In regard to the first of tliese obligations the purchaser 
 has been said to be constructively a trustee of the purchase- 
 money for the vendor. (/") 
 
 § 1370. In addition to the above obligations, the con- 
 tract gives or may give rise to certain liens — of the vendor 
 for unpaid purchase-money, and of the purchaser for the 
 deposit or other portion of the purchase-money paid before 
 completion, but these really result from the non-perform- 
 ance, in some respect, to the contract, rather than from the 
 contract itself. 
 
 § 1371. If the foregoing statement of the obligations of 
 the parties to the contract of the kind under discussion be 
 correct, it follows that, where the contract contains no ex- 
 press stipulation on the jjoint, the transfer of the possession 
 of the estate from vendor to purchaser ought to be contem- 
 i:)oraneous with the completion of the contract. 
 
 In practice, however, possession is often taken by the pur- 
 chaser at an earlier date, in pursuance either of an express 
 term of the contract, or of some extrinsic act of, or arrange- 
 ment between, the parties.' 
 
 § 137S. Now it is obviously inequitable, in the absence 
 of express and distinct stipulation, that either party to the 
 contract should at one and the same time enjoy the benefits 
 flowing from possession of the property and those flowing 
 
 («) See Lyeaght v. Edwards, 2 Ch. D , 507; (/) See the cases cited at the footof § 1368 
 and cf. Inet. Hi 23, 3. Distinguinh Counter supra. 
 V. Macpherson, 5 Moo. P. C. C. 63, eupra, § 
 893. 
 
 1 Purchase of property pendenU lite.'] Where a party purchases property pcn- 
 dente lite, he is bound by the decree made against his vendor. It is not neces- 
 sary that he should be made a party to the action. Sorrell v. Carpenter, 2 P. 
 Wms., 482; Garth v. Ward, 2 Atk., 175; Gaskell v. Durdin, 2 B. & B., 169; 
 Masson's App., 70 Pa. St., 27; Metcalf v. Pulnertorft, 2 V. & B., 205; Snow- 
 man V. Harford, 57 Me., 397.
 
 636 FRY ON SPECIFIC PERFORMANCE OF CONTRACTS. 
 
 from possession of the purchase-money. The estate and the 
 purchase-money are things mutually exclusive. "You 
 cannot," said Knight Bruce (then) V. C, in a case arising 
 out of the sale of some slob lands in Chichester harbor, 
 "have both money and mud." And so neither party can 
 at the same time be. entitled both to interest and to rents. (.7) 
 § 1373. The general principles laid down in the prece- 
 ding section of this chapter are of primary importance in 
 determining 
 
 (1) The respective rights and liabilities of vendor and 
 purchaser in regard of interest on the purchase-money 
 and the rents and profits and outgoings of the estate : 
 
 (2) their respective rights and liabilities in regard of 
 the deterioration of the estate after the constitution of the 
 contract : 
 
 (3) the right of the vendor to have unpaid purchase- 
 money paid into court. 
 
 The application of these principles to any particular case 
 of contract may, however, be, and in practice usually is, 
 modified by express stipulations embodied in the contract. 
 
 § 1374. With these preliminary observations it is pro- 
 posed to consider the rather complicated questions which 
 arise between vendor and purchaser in respect of rents, 
 interest, outgoings, deterioration, and payment into court, 
 under the following heads, viz. : 
 
 I. Where the vendor is in possession of the estate, 
 either by receipt of the rents or by personal occupation. 
 
 II. AVhere the purchaser is similarly in possession of 
 the estate. 
 
 1. WJiere tlie vendor is in possession. 
 § 1375. Where the contract fixes no time for the com- 
 pletion of the purchase, and is silent as to the rents and 
 interest, there prima facie the vendor, it is conceived, is 
 entitled to the produce of the purchase-money, in the shape 
 of interest, and the purchaser has a corresponding right to 
 
 (a\ As to manorial fines, see Garrick v. Earl Camden, 2 Cox, 231; Cuddon v. Tite, 1 
 ^^' Glff.,395.
 
 INTEREST, RENTS, DETERIORATION, ETC. 637 
 
 the produce of the estate, in the shape of tenants' rents or 
 occuj)ation rent, as from the time when the contract ought 
 to have been completed and the transfer of possession to 
 have taken place as a part of such completion, 
 
 § 1376. Where, as is usually the case, the contract fixes 
 a time for completion, there prima facie, and in the 
 absence of stipulation, the time so fixed is the time from 
 which the purchaser is liable to the payment of interest and 
 is entitled to the rents. But this rule must be taken sub- 
 ject to several exceptions. (7<^) 
 
 § 1377. First, where the interest is much more in amount 
 than the rents, 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 possession 
 of the interim rents. (/) In such cases, the day at which the 
 interchange of j)roperties is treated as taking place is re- 
 moved from the time fixed for completion to the time at 
 which a good title is first shown. (j)' 
 
 § 1378. In one case, where a vendor had retained pos- 
 session of the whole of the estate and of one- third of the 
 purchase-money for fifteen years, and the delay was wholly 
 due to his wrongful conduct, Plumer, M. R., not feeling 
 himself justified in removing 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 accruing. (/»:) 
 
 § 1379. Secondly, where the title is made out in cham- 
 bers, the day when the title is made out is the day on which 
 the purchaser comes under an obligation to complete. 
 Hence up to that day, the vendor is entitled to the rents, 
 and the purchaser to interest on the deposit paid to the 
 vendor ; and from that day the purchaser takes the rents 
 
 {h) Consider Blnks v. T,ord Rokeby, 2 Sw., Rogers, G Mad., 230. It seems previously to 
 
 225, 22G; Carrodus v. Sharp, 20 Beav , 58; have been held that Interest necessarily ran 
 
 Wells V. Maxwell (No 2), 32 Beav., 550; and from the date for completiou. See Wilson v. 
 
 see supra, §§ 1369, 1371. Clapham, IJ. & W., 36; per Plumer, M. R., 
 
 (i) Esdaiie v. Stephenson, 1 S. & S., 132. in Burton v. Todd, 1 Sw., 260. 
 
 (j) Jones V. Mudd, 4 Russ., 118; Paton v. (A) Burton v. Todd, 1 Sw., 255. 
 
 ' 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., 296.
 
 638 FRY ON SPECIFIC PERFORMANCK OF CONTRACTS. 
 
 and pays the vendor interest on the unpaid balance of the 
 purchase-money. {lY 
 
 § 1380. Accordingly where a suit was instituted for the 
 specific performance of a contract to buy a mill, and the 
 decree was made in Februarj^, 1854, but a good title was 
 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, Lord Romilly, M. K., decided 
 
 (D Pincke v. Curteis, 4 Bro. C. C, 333. Cf. Enraght v. Fitzgeral (a sale of a reversion), 
 
 2 Dr. & War., 43. 
 
 1 Who is liable for repairs and losses ?] By the coatract of sale, the vendee 
 was to cut no timber until the entire price had been paid. Held, that the 
 vendee had an equitable right to such timber, and that his legal ri^ht dated 
 from the time that he fulfilled, or offered to fulfill, the contract, notwithstand- 
 ing he, or some one else, had wrongfully cut such timber. Where the loss is 
 accidental, and happens entirely without the fault of the vendor after the prop- 
 ert}' has been sold, such loss must be sustained by the vendee. Thompson v. 
 Gould, 20 Pick., 134; Blem v. McClelland, 29 Mo., 804; Hill v. Cumberland 
 Co., 59 Pa. St., 474. If the vendor cannot make a good title, and a loss occurs 
 after a sale, the vendor must sustain the loss. Christian v. Cahill, 22 Gratt., 82. 
 Where an accidental loss occurs pending a contract of sale, the true test as to 
 which party should bear the sale is, wiio ow^ned the property at the time ? 
 Willis V. Culver, 107 Mass., 514. 
 
 Tinpromments.'] A purchaser of land was in possession, and, on a bill of 
 specific performance, established his right against the vendor and a subsequent 
 purchaser having notice. Held, that specific performance would be decreed, 
 so as to give him his improvements. Boyd v. Vanderkemp, 1 Barb. Ch. , 273. 
 In a case where a vendee makes valuable improvements on the faith of a con- 
 tract, but specific performance is denied him, compensation for such improve- 
 ments may be made a charge on the land, imless the equity of a third person 
 has intervened. Alday v. Echols, 18 Ala., 353; Hilton v. Duncan, 1 Coldw., 
 313; Evans v. Battle, 19 Ala., 389; Pitcher v. Smith, 2 Head, 208; Cox v. Cox, 
 59 Ala., 591; Williams v. Champion, 6 Ohio, 169. Story, J., said in Bright v. 
 Boyd, 1 Story, 478: "It appears to me, speaking with all deference to other 
 opinions that the denial of all compensation to such bona fide purchaser, in such 
 a case, where he has manifestly added to the permanent value of an estate by 
 his meliorations and improvements, without the slightest suspicion of any in- 
 firmity in his own title, is contrary to the first principles of equity. Take the 
 case of a vacant lot in a city, where a bona fide purchaser builds a house thereon, 
 enhancing the value of the estate ten times the original value of the land, under 
 a title apparently perfect and complete. Is it reasonable or just that, in such 
 a case, the true owner should recover and possess the whole, without any com- 
 pensation whatever to the bona fide purchaser ? To me it seems manifestly un- 
 just and inequitable, thus to appropriate to one man the propertj^ and money 
 of another who is in no default. The argument, I am aware, is, that the 
 moment the house is built, it belongs to the owner of the land by mere opera- 
 tion of law, and that he may certainly possess and enjoy his own. But this is 
 merely stating the technical rule of law, l)y which the true owner seeks to hold 
 what, in a just sense, he never had the slightest title to — that is, the house. It 
 is not answering the objection, but merely and dryly stating that the law so 
 holds. But, then, admitting this to be so, does it not furnish a strong ground 
 why equitj' should interpose and grant relief ? I have ventured to suggest that 
 the claim of the bona fide purchaser, under such circumstances, is founded in 
 equity. I think it founded in the highest equity, and, in this view of the mat- 
 ter, I am supported by the positive dictates of the Roman law."
 
 INTEREST, KENTS, DETEEIOEATION, ETC. 639 
 
 tliat these must be borne by the vendor up to the time at 
 which the imrchaser conkl prudently take jDossession, 
 which is the time at which a good title is shown, and after 
 that by the i3urchaser.(m) 
 
 § 1381. Where, however, the title has not been made 
 out till after action brought, but the delay has arisen from 
 the purchaser's raising other points which made the action 
 necessary, then, the delay not being the fault of the vendor, 
 interest will run from the day fixed for completion. (7i) 
 
 § 1383. Thirdly, where the contract leaves the amount 
 of the purchase-money to be subsequently ascertained, 
 interest will not begin to run until the purchase-money is 
 actually ascertained, notwithstanding that the time fixed 
 hj the contract for completion may have arrived before this 
 is done. Thus in a case where the contract provided that 
 the price should be determined by the award of a surveyor, 
 the Court of Ai)j)eal in Chancery held that the vendor must 
 pay the outgoings up to the date of the award, and was en- 
 titled to interest only as from that date, although the con- 
 tract also contained a clause providing that the purchase- 
 money paid at a time which, in the events which haj)pened, 
 arrived more than fourteen months before the award was 
 made.(o) 
 
 § 1383. Fourthly, the purchaser was discharged from his 
 pri7Jid facie obligation to pay interest on the unpaid pur- 
 chase-money where the purchase-money has been appropria- 
 ted by him and has been unproductive, (p) and notice to this 
 effect has been given by the i^urchaser to the vendor. (^) 
 "Where nothing appears to occasion the delay," said Lord 
 Cottenham, "the rule no doubt is, that the purchaser, who 
 on the face of the contract is under the necessity of paying 
 on a certain day, sets apart his money, and gives notice that 
 it is ready, interest stoj)s from that time, provided it be 
 shown that he made no interest of it."(r) And even in con- 
 tracts by railway companies taking land under their 
 
 (m) Carrodus v. Sharp, 30 Beav., 56. (7) Powell v. Martyr, 8 Ves., 146; Roberts 
 
 (n) Monro t. Taylor. 3 Mac. & G., 713. v. Massey, 13 Ves., Stjl; Dyson v. Hornby, 4 
 
 (o) Catling v. Great Xorthern Railway Co., De G. & Sm., 4S1 ; Ilowland v. Norris, 1 Cox, 
 
 18 W. R.. 1-21; 21 L. T. X. S , 17. In this case 59; Regent's Canal Co., v. Ware, 23 Beav., 
 
 the possession appears to have been vacant 575. Cf. Kershaw v. Kershaw (purchaser in 
 
 during the period in dispute. Cf. Re Eccles- possession), L. R. 9 Eq., .")6. 
 
 hill Local Board, 13 Ch. D.. 365. (r) lu De Visme v. De Visme, 1 Mas. & G., 
 
 (p) As to the result where the purchaser 352. 
 maKes any profit on the appropriated money 
 see infra, § 1424.
 
 640 FRY ON SPECIFIC PERFORMANCE] OF CONTRACTS. 
 
 compulsory powers, where the owner makes default in 
 completing the sale, interest will cease upon appropriation 
 of the purchase-money, with notice that it is unemployed. (5) 
 
 § 1384. The general rule which we have been discussing 
 may, of course, be excluded by express stipulation, as where 
 conditions of sale reserved the rents to the vendor, which 
 Avas held to exonerate the purchaser from the payment of 
 interest on the unpaid purchase-money. (^) 
 
 § 1385. The contract very commonly contains a condi- 
 tion to the effect that the purchaser shall pay interest from 
 the day apxDointed for completion from whatever cause the 
 delay may arise. In a case decided in the year 1822, Leacih, 
 V. C, held that the mere fact of the delay having arisen on 
 the part of the vendor did not release the purchaser from 
 the obligation of such condition, and that accordingly he 
 was bound to pay interest, ('2^) and in a case where the con- 
 ditions of a sale under the court stipulated for payment of 
 the purchase-money on a certain day, and that, if from any 
 cause whatever it should not theij be i)aid, interest should 
 be paid at £5 per cent. ; and there was great difficulty and 
 delay on the vendor's part ; Lord Langdale, M. R., ordered 
 the payment of interest according to the contract, but 
 without prejudice to any application for compensation. («) 
 
 § 1386. However in another case, where there was a 
 stipulation that if, by reason of any unforeseen or unavoid- 
 able obstacles, the j)urcliase should not be completed by the 
 day fixed, the X3urchaser should from that day pay interest 
 at £5 per cent, on his purchase money and be entitled to the 
 rents, and the vendor did not show a good title till long 
 after the specified day, Leach, V. C, held that the stipula- 
 tion would not make interest run before the time when a 
 good title was shown, but would only affect its vsite.{w) 
 
 § 1387. In the case of De Visnie v. De Visme,(a;) the 
 effect of such conditions was very elaborately considered by 
 Lord Cottenham, and his lordship held that a condition for 
 
 (s) Regent's Canal Co. v. Ware, 23 Beav., sion, but the only question that arose was as 
 
 575. to Interest. 
 
 it) Brooke v. Champernowne, 4 CI. & Fin., (w) Monk v. Huskisson, 4 Russ., 121, n. 
 
 589, 611. This case seems irreconcilei.ble with the 
 
 (u) Esdaile V. Stephensen, 1 S. & S., 122. same V. C 's decision in Esdallev. Stephen- 
 See Lord St. Leonards' observations on this son (1 S. & S., 122;, supra, § 1385, and Lord 
 point, St. Leon. Vend., 529 et seq. St. Leonards thought it wrong. St. Leon. 
 
 (v) Greenwood t. Churchill. 8 Beav., 413. Vend., 521. 
 
 In this case the purchaser had taken posses- (x) 1 Mac. & G., 336. reversing the decision 
 
 ot Wigram, V. C, 13 Jur., 205.
 
 INTEREST, RENTS, DETERIORATION, ETC. 641 
 
 the payment, in case of delay, of interest from the day 
 appointed for completion, 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 argu- 
 ment and upon principle. It may either be considered that 
 that 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 benetit 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 was not 
 expressly provided for by the contract ; or it may be con- 
 sidered 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 pur- 
 chaser has been thereby exposed to damage (the damage 
 being the difference between the interest and the annual 
 value of the property), and then, although this is a de- 
 parture from the terms of the previous contract, which the 
 court would not regard as a bar to decreeing a specific per- 
 formance, yet that the court will in this case regard it, by 
 giving to the purchaser comx)ensation for the loss he has 
 sustained by the non-performance of the whole contract by 
 the vendor. "(?/) "My opinion," said his lordshii:>, in con- 
 clusion, (2) "is, that the vendors being in default, the delay 
 having been occasioned by their not performing their part 
 of the contract, are not to exact from the purchaser the pay- 
 ment of interest until the time they shewed 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 abstract. 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 jDlace of that payment, had not 
 commenced to run :. it did run when they shewed a good 
 title, and not before." 
 
 (y) 1 Mac. & G , 348. («) 1 Mac. & G., 353. 
 
 41
 
 642 FRY ON SPECIFIC PERFORMANCE OF CONTRACTS. 
 
 § 1388. The cases at commou law, deciding that the 
 exception in a charter-party as to pirates will not be held 
 to exempt the owners from liability, where the ship has 
 fallen into the hands of pirates by the master's negli- 
 gence, (a) and that a stipulation in a bill of lading exempt- 
 ing the carrier from liability in respect of leakage and 
 breakage will yet not comprise leakage and breakage caused 
 by his negligence or that of his servants, (Z>) seem to furnish 
 close analogies with the decision in De Visme v. De Yisme.(c) 
 It is in fact an instance of the general principle, that no 
 man shall take advantage of liis own wrong. 
 
 § 1389. Still, the decision in De Visme v. De Yisme v\'as 
 an innovation, and the i>rinciples which it applied to con- 
 ditions of the kind now under consideration have not been 
 accepted by co-ordinate authority(<^) as supplanting the 
 former rule of the court — which was and, it is conceived, 
 now is, that such conditions are to have effect given to 
 them according to the natural and literal meaning of 
 their words, except only where there is bad faith, vexa- 
 tious conduct, or gross negligence — in other words, some- 
 thing amounting to willful default — on the part of the 
 vendor, disentitling him, in the view of the court, to the 
 benefit of the stipulation, (e) 
 
 § 1390. Therefore delay arising from mere accident, or 
 from something which the vendor could not have guarded 
 against, or from difficulties occasioned by the state of the 
 title, is not enough to exemjot the purchaser from the pay- 
 ment of interest in such cases, even though the difficulties 
 may be such as to justify the purchaser in refusing to com- 
 plete till they are removed. (/) Indeed it may fairly be 
 said that the insertion of such a condition in a contract 
 shows that the possilility of delay arising on the vendor's, 
 no less than on the purchaser's part, is from the first 
 contemplated by both iDarties, and that there can therefore 
 be no hardship on the purchaser in holding him, subject 
 
 (a) Abbott on Shipping (12tb ed.), 330; De 5-23. In Robertson v. Skelton (!2 Beav., 3C3), 
 
 Rothschild V. Royal Mail bteam Packet Co., Lord Langdale, M. R., simply obeyed Lord 
 
 7 Ex., 736. " Cotteuham's decision in De Visme v. De 
 
 (6) Phillips V. Clark. 26 L. J. C. P., 168. Visme, ubi supra. 
 
 \c) 1 Mac. & G., 336 (e) St. Leon. Vend., 5-23. See too Herbert 
 
 {d) Sherwin a. Shakspear, 5 De G. M. & G., v. Salisbury and Yeovil Railway Co., L. R. 2 
 
 517 (varying S. C. 17 Beav., 267); Williams v. Eq., 221 ; infra, § 1421. 
 
 Glenton, L. R. 1 Ch., 200(S. C.31Beav.,52S). { /") Sherwin v. Shakspear, Williams v. 
 
 Consider Birch V. Podmore, St Leon. Vend., Glenton, ubi supra. 
 521, 523, and Oxenden v. Lord Falmouth, id.
 
 INTEREST, RENTS, DETERIORATION, ETC. 643 
 
 only to the admitted exceptions already mentioned, to the 
 literal performance of the condition. 
 
 § 1391. In accordance with the rule stated in the last 
 section but one, it has been held that the fact that a suffi- 
 cient abstract is not delivered in time will not deprive the 
 vendor of the interest which he has stipulated for:(^) so 
 again in a case where there was a condition of the kind now 
 under discussion, and delay arose from circumstances under 
 which the court's approbation (which was necessary to the 
 sale) was to be obtained, and neither party was to blame, 
 the vendors were held to be entitled to interest by force of 
 the condition, although the interest greatly exceeded the 
 amounts of the rents of the land:(7i) and to where, there 
 being a similar condition in the contract, it became neces- 
 •sary, in order to make a good title, that a suit should be 
 instituted to procure the rectification of the power under 
 which the vendors sold, the x)urcliaser was held bound to 
 pay interest from the day named for completion. (?) 
 
 § 1893. The condition of course ai)i)lies where the delay 
 arises from an untenable objection taken on the part of the 
 purchaser :(y) it operates also where the delay arises from 
 the act of God, as the death of the vendor. (A-) 
 
 § 1393. Whether, where there is a condition of this kind, 
 a purchaser can nevertheless exempt himself from the pay- 
 ment of interest by specially investing the purchase-money, 
 and giving the vendor notice that it has been thus appro- 
 priated to the purposes of the contract, seems to be at least 
 doubtful. (Z) 
 
 § 1394. The court will construe a condition fixing the 
 time from which interest is to run in connection with an- 
 other fixing the time for the delivery of the abstract : so 
 that where there is a condition that the abstract shall be de- 
 livered by a certain day, and interest shall begin to run 
 from another and subsequent day, and a perfect abstract is 
 in fact not delivered till after the time fixed for that pur- 
 pose, interest will not run from the day specified in that 
 behalf, but from a day so long after the actual delivery "of a 
 
 (£/) Rowley v. Adams, 1-2 Beav., 470. See (J) Storry v. Walsh, IS Beav., 559. 
 
 also Cowpe V. Bakewell, 13 Beav., 4il; Dy- (k) Bannerman v. Clarke, 3 Drew., 632. 
 
 son V. Hornby, 4 De U. & Sni., 481; Vickers v. (/) Compare De Visme v. De Visme, 1 Mac. 
 
 Hand, 26 Beav., 030. & G., 336, and Vickers v. Hand, -26 BeaT., 
 
 (fc) Tewart v. Lawson, 3 Sm. & Gif., 307. 630, with Williams v. Gleuton, L. R. 1 Ch., 
 
 <i) Lord Palmerston v. Turner, 33 Beav., 206, and Denning v. Henderson, 1 De G. & 
 
 524. Sm.,6S9.
 
 644 KRY ON SPECIFIC PERFORMANCE OF CONTRACTS. 
 
 perfect abstract, as the day stipulated for tlie commence- 
 ment of interest was after the day stipulated for the deliv- 
 ery of the abstract, (m) 
 
 § 1395. The amount on which the purchaser pays inter- 
 est is the purchase-money less the deposit : and this applies 
 even where the action may have been made necessary by 
 the purchaser's conduct. (?i) 
 
 § ItMHi. The vendor is not, it seems, generally liable to 
 pay interest on the deposit, if the contract proceed, (o) 
 
 § 1397. The rate of interest usually allowed is four per 
 cent.(^:') But this, of course, maybe varied by contract, (g-) 
 
 In one case interest at the rate of five per cent was given, 
 where the circumstances did not justify the delay in paying 
 the money, the then Lord Chief Baron (sitting for Plumer, 
 M. R.,) observing, " that he had always been of opinion, 
 that a party withholding money 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. "(?■) But this does not appear to be the rule of the 
 court. (5) 
 
 § 1398. 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. (^^) 
 
 § 1399. Whenever a purchaser has to pay interest to 
 the vendor, he is entitled, on making the payment, to 
 deduct the income-tax on the amount of the interest. (1^) 
 
 § 1400. The vendor in receipt of tenants' rents is generally 
 charged only with the rents he has received, but he may, ^ 
 ■ under certain circumstances, be charged with those which 
 Avithout his willful neglect or default he might have re- 
 ceived. («) 
 
 § 1401. In a case before Plumer, M. R., the vendor was 
 so charged, where 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 
 
 (m) Sherwin v. Shakspear, 5 De G. & M. {s) St. Leon. Vend., 528. 
 G., 517, particularly 536. (0 Acland v. Gaisford. 2 Mad., 28. 
 
 (n) Bridges V. Robinson, 3 Mer., 694. (u) See per Malins, V. U., in Crane v. 
 
 (0) M. Leon. Vend., 524. Kilpin, L. R., 6 Eq , 335. See too Bebb v. 
 
 (p) Calcraft v. Roebuck, 1 Ves. Jan., 221. Bunny, 1 K. & J., 216, cited infra, § 1446. 
 
 (g) e. g. Firth v. Midland Railway Co., L. (r) Acland v. Gaisford, 2 Mad., 28; Piiillip^ 
 
 K. 20 Eq., 100, 114. T. Silvester, L. R. 8 Ch., 173; Seton, 1305. 
 
 (r) Burnell v. Brown, IJ. & W., 175.
 
 INTEREST, RENTS, DETERIORATION, ETC. 645 
 
 vendor's fault that the purchaser was not able safely to 
 take possession. (^/j) But in a case where the vendor was 
 similarly charged by Lord Romilly, M. R., the judgment 
 was reversed, on appeal, by Knight Bruce and Turner, L. 
 J. J., who decided that, in the absence of special circum- 
 stances, the vendor will not be charged with the rents which 
 he might have received without willful default, and that he 
 will not be subject to any inquiry unless there be evidence 
 that he has in some way acted otherwise than a prudent 
 owner would have done.(ir) 
 
 § 1402. The vendor in iiossession is therefore not, as has 
 sometimes been said, in the position of a bailiff at common 
 law to the purchaser ; for such a bailiff is answerable not 
 only for his actual receipts, but for Avhat he might have 
 made of the lands without his willful default. (//) 
 
 § 1403. Inasmuch as the outgoings of an estate virtually 
 represent the (or part of the) difference between the gross 
 and the net rents, and may accordingly be regarded as 
 included in the former, the liability to discharge them is, it 
 is conceived, in the absence of stipulation, incident to and 
 conterminous with the right to receive the rents. In a case 
 where the conditions of sale of leaseholds stipulated that 
 all outgoings up to the day of completion should be cleared 
 by the vendors, it was held that an apportioned part, from 
 the quarter-day last preceding to the day for comi:»letion, 
 of the current ground-rent was an outgoing within the 
 meaning of the condition, and must be paid or allowed to 
 the purchaser by the vendors. (2:) 
 
 § 1404. If, after the contract, and before the purchaser 
 takes, or ought to take, possession of the estate, any 
 deterioration take place by the conduct of the vendor or his 
 tenants, he will be accountable foi' it to the purchaser. (a) 
 "He is not entitled to treat the estate as his own. If he 
 willfully damages or injures it, he is liable to the purchaser ; 
 and more than that, he is liable if he does not take reason- 
 able care of it.(^) 
 
 (w) Wilson V. Claphani, 1 J. & W., 36. R., ir,9; and see further, as to outgoings, 
 
 [x) Sherwln v.Sliahspear, 17 Beav.,2G7; S. Carrodus v. Sharp (20 Beav., 56, 58), cited 
 
 €. 5 De G M. & G., 517. See, also, Howell v. supra, § 1380; Midgley v. (Joppock, 40 L. T., 
 
 Howell, 2 Mj' & L'r., 478, and compare st. 870. 
 
 Leon. Vend., 519. (a) Foster v. Deacon, 3 Mad., 394. See too 
 
 (y) Co. Litt., 172, a.; Wheeler v. Home, Counter v. Macpherson, 5 Moo. P. C. C, 83, 
 
 Willes, 208. suura, § 893. 
 
 (s) Lawes v. Gibson. L. R. 1 Eq , 135. Cf. (6) Per Jessel, M. R., in Lygaght v. Ed- 
 Williams V. East London Railway Co., 18 W. wards, 2 Ch. D., 507.
 
 646 FRY ON SPECIFIC PEKFOKMATs'CE OF CONTRACTS. 
 
 § 1405. Where a purchaser had paid liis nioney into 
 court under an order, and he was considered entitled to com- 
 pensation for deterioration, which had taken place while 
 the vendors retained possession, he was allowed the amount 
 out of his i^urchase-money, together with interest at four 
 per cent, from the time when he paid it in, and the costs of 
 the trial of an issue directed to ascertain the amount of 
 damage, (c) 
 
 § 1400. Again, where vendors insisted on continuing in 
 possession i^ending certain disputes between themselves 
 and the purchaser, and allowed the X)roperty to fall into a 
 state of dilapidation, Lord Selborne held that the purchaser 
 must be allowed to set oif against the interest payable by 
 him the amount of rent which the vendors might, but for 
 their willful neglect and default, have received, and also the 
 amount of the deterioration, (rZ) 
 
 § 1407. In another case, where the purchaser (plaintiff) 
 alleged that tlie vendors (defendants) had since the date of 
 the contract let the property (an oil mill, with tlie plant and 
 machinery,) to third parties, and that the plant was daily 
 being deteriorated and worn out by the improper user 
 thereof by the defendants' tenants, it was held that the 
 plaintiff was entitled to discovery from the defendants of 
 the names of the persons to whom, and the term for 
 which, the property had been let.(e) 
 
 § 1408. The vendor's accountability for deterioration 
 arises out of his constructive trusteeship(/) for the pur- 
 chaser. Therefore, if the vendor of a farm subject to a 
 yearly tenancy linds and knows, before the day for com- 
 pletion arrives, that it will be impossible to complete on 
 that day, and that the tenancy will determine before actual 
 completion, then, inasmuch as it is his duty, as a trustee 
 for the purchaser, to keep the property in a projier state of 
 cultivation, he ought to relet it on a yearly tenancy ; unless 
 the purchaser, being asked what he wishes to be done, is 
 willing to run the risk of it being unlet, and Avill guarantee 
 the vendor against any loss that may arise to him in case 
 the purchase goes oS.{g) 
 
 § 1409. In a case that came before the privy council, the 
 
 (c) Fersuson v. Ta(5man, 1 Sim., 530. (/) See supra, § 1368. 
 
 (d) Phillips V. Silvester, L. R. 8 Ch., 173. (g) Earl ol Egmont v. Smith, 6 Ch. D., 46&, 
 
 (e) Dixon v. Eraser, L. B. 2 Eq., 497. 475.
 
 INTEREST, KENTS, DETERIORATION, ETC. 647 
 
 vendor of a coal mine, having, during delay of completion, 
 worked the mine for liis OAvn benetit, was held bound to 
 pay the purchaser the value in situ naturali of the coal 
 taken, i. e. its market value at the place where it was to be 
 sold, less the costs of severing it and taking it from the 
 mine to that place. (7^) 
 
 § 1410. On the other hand, the purchaser Avill have to 
 bear the loss from deterioration in the following cases : 
 First, where it occurs after the time at which he ought to 
 have taken i)ossession.(/) 
 
 § 1411. Secondly, where it occurs during the period in 
 which the vendor is in j^ossession, but is the result of 
 accident, without the fault of the vendor: so tliat where 
 during this period the vendor was, in consequence of such 
 an accident, compelled to expend money on or in respect of 
 the property, as in shoring it up, or removing rubbish 
 which had fallen on a neighbors property, the vendor was 
 held entitled to have this repaid by the x^urchaser : 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. (,/) 
 
 § 1412. Thirdly, where the deterioration is due to the 
 purchaser himself, the loss mast fall on him though not 
 in possession. Thus, where a purchaser agreed with a ten- 
 ant of the estate that he should give up possession if the 
 purchaser had a conveyance by a certain time, and the ten- 
 ant, misconstruing the agreement, gave up possession 
 though the purchaser had not the conveyance ; the pur- 
 chaser was held to be the innocent cause of the mischief, 
 and so responsible for the deterioration which resulted. (A:) 
 
 § 1413. The cases which arise where the vendor is him- 
 self in personal occupation of the estate correspond with 
 those where he is in receipt of the rents, except that, in- 
 stead of having to pay over the rents received from others, 
 he will have to pay to the purchaser an occupation rent to 
 be set upon the estate, himself receiving interest in return. (Z) 
 
 § 1414. In a recent case, the contract having stipulated 
 
 (t) Brown v. Dibbs, 25 W. R , 776, lollowing (,/) Robertson t. Skelton, V2 Beav., 360. 
 the principle of Jegon v. Vivian, L. R 6 Ch., ik) Harford v. Furrier, 1 Mad., 532. 
 742. (I) Dyer v. Hargrave, 10 Vts., 505. 
 
 (t) Binks V. Lord Rokeby, 2 Sw., 222; Min- 
 chin V. Nann, 4 Beav., 332.
 
 648 FRY ON SPECIFIC PERFORMANCE OF CONTRACTS. 
 
 tliat, from the clay named for completion, tlie purchaser 
 should receive "all rents and prolits," the vendors, remain- 
 ing in occupation of the property after that day, were held 
 bound to pay a fair occupation rent 'for the interval which 
 elapsed before the purchase was completed. (???-) 
 
 § 1415. No such occupation rent, however, will be 
 allowed where the purchaser ought under the contract to 
 have taken possession, and the vendor has continued in pos- 
 session, onlj'- by reason of the purchaser's wrongdoing. (?i) 
 
 § 1416. Thus where the property (a tavern), was occu- 
 pied by the vendor, a licensed victualler, for the purposes of 
 his business, and the purchasers a railway company, having 
 made default in payment of the purchase-money on the day 
 named for completion, the vendor continued the business 
 on his own behalf, but under great inconvenience, all his 
 arrangements having necessarily to be made subject to de- 
 termination on payment of the purchase-money, it was held 
 that the purchasers were not entitled to any allowance by 
 way of occupation rent.(o) 
 
 § 1417. AVhere the court fixes an occupation rent to be 
 paid by the vendor, he will, it seems, be allowed to deduct 
 the income tax on it as a "just allowance ;" but the court 
 will not insert any express provision on the x>oint in the 
 judgment. (7>)' 
 
 . (2) W//ere tlie ijurcliaser is in possession.'' 
 
 § 1418. It follows from the principles already stated and 
 discussed in this chapter that generally, in the absence of 
 
 (m) Metropolitan Railway Co. V. Defries, 2 (o) Leggott v. Metropolitan Bail way Co., 
 Q. B. D., 189; affirmed, id.,3J<7 L. R. 5Ch.,716 
 
 (n) Dakiu v. Cope, 2 Russ.. 170, 181. (p) Sherwin v. Shakspear, 5 De G. M. & 
 
 G., 517, 532. 
 
 ' Thomas v. Thomas, 1 Bibb., 219, is not an inapplicable case. B., there, 
 agreed to surrender fiftj' acres of land to A., upon the conveyance from A. to 
 B. of 250 acres. A. conveyed the 250 acres, but B. refused to give up the fifty 
 acres. A. brought ejectment; B. his bill for an injunction. Ileld, that B. had 
 no longer any claim to the fifty acres; and that an account of the rents and 
 profitsfrom the time of the commencement of the ejectment should be taken, 
 and set off against the value of the improvements made by B. ; it appearing 
 that bv agreement, all improvements were to be paid for. See Dike v. Greene, 
 4 R. l!, 2.^5. 
 
 - Purchasers in possession will be holden to pay interest, but will not be held 
 liable for mesne profits. Portland v. ^Miller, 3 Hawks, (328; McKay v. Melvin, 
 1 Ired.'s Ch., 73; Rutledge v. Smith, 1 McCord's Ch., 399; Liddell v. Rucker, 
 13 La. An., 569; Bryant v. Booth, 30 Ala., 311 ; Stevenson v. Maxwell, 2 Sandf.'s 
 Ch., 273; 2 Comst., 408; Seldon v. James, fi Rand., 465; Sebree v. Harper, 4 
 Dana, 66; Oliver v. Hallam, 1 Gratt (Va.),298; see Irick v. Fulton, 3 id., 193;
 
 INTEREST, RENTS, DETERIORATION, ETC. 649 
 
 stipulation, a purcliaser in possession of the estate which is 
 the subject matter of the contract must pay interest on the 
 unpaid jDurchase-money from the time when his possession 
 under the contract commenced until completion. (^) 
 
 § 1419. The rule that the purchaser in p)ossession shall 
 pay interest on the unpaid part of the j)urchase-money will 
 be applied even in cases where the delay arises from the ne- 
 glect of the vendor, and the purchaser makes no actual 
 profit out of the land,(r) "The act of taking possession," 
 .said Grant, M. R., "is an applied agreement to pay inter- 
 est : for so absurd 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." (5) 
 
 § 14»20. Accordingly where a purchase was to be com- 
 pleted by a given day, when the purchaser Avas to have 
 possession, and it was jorovided that, if from any cause 
 whatever the j)urchase-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 i:)roper abstracts, he was put to his election to 
 
 (q) See Supra, § 1372; and Fhulverv. Cock- (?■) Fludyer v. Cocker, 12 Ves., 25; Ballard 
 
 er, 12 Ves , 27; Binks v. Lord Rolieby, 2 Sw., v. Shutt. 15 Ch D., 122. 
 
 226; Neath New Gas Co. v Gwyn, W. N., (s) Fludyer v Cocker, 12 Ves , 27, 28. 
 1873, 200; Ballard v. Shutt, 15 Ch. D., 122. 
 
 Walker v. Ogden, 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 pur- 
 chase 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 withcjut interest. Janu- 
 ary V. Martin, 1 Bibb, 586. And, again, where the purchaser of land was pre- 
 vented 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 improvements should be at the risk of the purchaser, in case 
 the title should be questioned. Wightman v. Reside, 2 Dessau., 578. But in 
 cases of this kind, where there has been no injury done to ihe vendee in the 
 hindrance of improvements, and the adverse title" is ultimately defeated, the 
 vendee must pay interest. Nor is it suthcient, to excuse the payment of interest 
 in such a case, that the vendee has been willing and ready to pay the princijial 
 during the time of litigation, unless it appear that the money laj' uselessly by 
 him, and unproductive, and that he gave notice to the vendor that it was so 
 unproductive. Selden v. James, 6 Rand., 465; Breckenridge v. Hoke, 4 Bibb, 
 272 ; see Rutledge v. Smith, 1 Mc(.;ord's Ch , 399. In regard to delay occa- 
 sioned 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 of profits, it has been said that a purchaser, although in po.ssession, 
 shall not pay interest, Stevenson v. Maxwell, 2 Sandf.'s Ch , 273.
 
 650 FRY ON SPECIFIC PERFORMANCE OF CONTRACTS. 
 
 pay interest or give up rents, though notice had been given 
 by the purchaser that the money was lying idle.(^) 
 
 § 14»31. In a case decided by Lord Rom illy, M. R., the 
 contract provided that the purchasers should i)ay interest 
 on the purchase-money nt four per cent from the time of 
 their taking possession until the 1st of July, 1858 (the day 
 for completion), at five per cent from the last mentioned 
 date until the 1st of January, 1859, and afterwards at eight 
 per cent until payment, with a proviso that the purchasers 
 should not ])e entitled to withhold payment of the purchase- 
 money upon paying interest at the higher rates. The pur- 
 chasers took possession before the end of 1857, but' without 
 any misconduct on the vendors' part, comyJetion did not 
 take place until 1865. His lordship held that the stipula- 
 tion for the payment of interest at the rate of eight per 
 cent was a separate and distinct contract which the pur- 
 chasers were bound to perform, and not as they contended, 
 in the nature of a penalty to secure the completion of the 
 purchase within a reasonable timii.{u) The case well 
 illustrates the principle that stipulations of this kind will 
 have effect given to them according to their natural mean- 
 ing. (?)) 
 
 § 1423. Again where a purchaser under a decree ac- 
 cejDted possession, and on a report of an objection returned 
 possession, he was ordered to pay interest from time to 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. (?o) 
 
 § 14*23. But where a purchaser had l)een let into pos- 
 session at the intended time for completion, and afterwards, 
 difficulties having without any fault on his xmrt arisen to 
 delay completion, paid the purchase-money into a separate 
 account at a bank, and gave notice to the vendors that the 
 money was appropriated to the purposes of the contract, 
 and that he was ready to complete ; Lord Romilly, M. R., 
 held that he w^as not chargable with interest after the date 
 of his notice, but must pay to the vendors any interest he 
 had received from the bank in respect of the sum paid in.(ir) 
 
 (t) Cowpe V. Bakewell, 13 Beav, 421. (w) Binks v. I.oril Rokeby, 2 Sw., 222. See 
 
 (w) Berber' v. Salisbury and Yeovil Rail- alf^o Att -Gen. v. Cliristchurch, 13 Sim., 214. 
 
 way Co., L. B 2 Eq., 221. (x) Kershaw v. Kerehaw, L R. 9 Eq., 56. 
 
 (V) See supra, § 1389. Distinguisti iJicKenson v. Heron, St. Leon. 
 
 Vend., 516.
 
 INTEREST, RENTS, DETERIORATION, ETC. 651 
 
 § 1424. For where the pn^haser in possession makes 
 any profit on any part of the appropriated purchase-money, 
 he is discharged from the payment of interest only in re- 
 spect of the purcliase-money on which he has made no 
 interest. Thus where a purchaser, on entering into posses- 
 sion, paid the money into his banker's, and gave the vendor 
 notice that he was ready to invest in such manner -as the 
 vendor shonkl require ; and during the investigation of the 
 title kept a balance at his banker's equal to the purchase- 
 money, except on four days, when it was a little less ; 
 Leach, V. C, 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 
 lie 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 broker's for the 
 three years preceding the purchase, and the average balance 
 during the period of the investigation of the title, and de- 
 clared that in respect of the difl'erence between those balan- 
 ces he was not chargeable with interest on his purchase- 
 money. (^) 
 
 § 1435. 8o strongly does the court hold to this principle, 
 that a purchaser in possession shall pay interest on the un- 
 paid purchase-money, that it will look at any contract 
 which appears to i)revent the application of this rule by the 
 light of this general principle of justice, and, it seems, re- 
 fuse execution of it where it grossly violates this principle : 
 for "a court of equity interposes only according to con- 
 science." (2") 
 
 § 1426. 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 should commence on the execution of such assur- 
 ances ; 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 
 
 {y) Winter V. Blades, 2 S. & S., 393. Lord (2) Per Lord St. Leonards in Birch v. Joy, 
 St. Leonards doubted the correctness of this 3 H. L. C, 59S. 
 decision. St. Leon. Vend., 514.
 
 *652 FRY ON SPECIFIC PERFORMANCE OF CONTRACTS. 
 
 that the purchaser's exemption from interest, though per- 
 missible if the contract had been speedily executed, would 
 not, under such circumstances and with such length of time, 
 be enforced by the court of equity. (a) 
 
 § 1427. In a recent Irish case, the purchaser, who had 
 been allowed to go into possession without paying the pur- 
 ■chase-money, and had afterwards been forcibly dispossessed, 
 sued for specific performance and damages. He was charged 
 with interest for the period during which he was in posses- 
 sion, and, as from the time when the vendor retook pos- 
 session, interest was not charged against the purchaser nor 
 the rents against the vendor ; and no damages were given. (&) 
 
 § 1428. Where a corporation, acting under some special 
 act of Parliament incorporating the lauds clauses act, 1845, 
 takes possession of land by virtue of its statutory powers 
 before the price had been ascertained, the vendor is gener- 
 ally entitled to interest on the purchase or compensation 
 moneys from the date of the taking possession, (c) 
 
 § 1429. But in a case where a local board compulsorily 
 purchased lands which were subject to tenancies, and the 
 price of the landlords' [vendors'] interest was ascertained 
 by the verdict of a jury, the court held that interest was 
 payable by the purchasers from the day of the verdict, not- 
 withstanding that they could not and did not obtain actual 
 possession of the property for sometime afterwards ; but it^ 
 was at the same time held that, it* the vendors had received 
 any rents since the verdict, the amount of those rents would 
 be deducted from the interest. (tZ) 
 
 § 1430. In one case, where the jjurchaser had been let 
 into possession under the contract, and objected to the title, 
 he was allowed to remain in possession on payment of an 
 occupation rent : but the case seems to have been one of 
 arrangement, not of strict right, (e) 
 
 § 1431. 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 
 
 (a) Birch v. Joy, 3 H. L. C , .%">. (d) Re Eccleshill Local Board, 13 Ch. D., 
 
 (6) .Johnston v. .Johnston, I. R 3 Eq., 328. 365. Cf. Catling v. Great Northern Railway 
 
 (c) Rhvs V.Dare Valley Railway Co., L R. Co., 18 W. R., l-JI; 21 L. T. N. S., 17. 
 
 19 Eq , 93; Firth v. Midlami Railway Co , L. («) Smith v. Lloyd, 1 Mad , 83; d. C. s. n. 
 
 H. 21) Eq., 100. Smith v. Jackson and Lloyd, 1 Mad., 618.
 
 IISrTEREST, RENTS, DETERIORATION, ETC. 653 
 
 payment of interest on liis uni^aid purchase-money : for the 
 wearing away of the lives, or of the time after which the 
 reversion will vest in possession, is justly considered 
 equivalent to possession, and as creating in the purchaser a 
 liability to pay interest. (/') 
 
 § 1433. The purchaser of such an estate pays interest 
 from the time at which he became by law entitled to receive 
 the rents, (r/) which is prlmd facie the time fixed for com- 
 pletion of the contract \{h) or, where the contract specifies 
 no time for completion, the time at which a good title was- 
 first shown or the title was accepted. (/) 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 comjoleted, the vendor was held not 
 entitled to claim interest on the unpaid part of the purchase- 
 money. (/) 
 
 § 143S. In cases of sales of reversions under the court, 
 interest will, it seems, run from the time when the chief 
 clerk's certificate of the result of the sale becomes bind- 
 ing. {Jc) But where a time is specified at which the money 
 ought to be paid into court, that, and not the confirmation 
 of the sale, will, it appears, be the time from which interest 
 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 De- 
 cember, 1849. was appointed for the payment of the money 
 into court, but the abstract was delivered in September, 
 1851, and a good title w^as not made out till March, 1852, 
 interest was directed to ])e paid from the 25th December, 
 1849. (Z) 
 
 § 1434. Possession of the estate and of the purchase- 
 money being, as we have seen,(m) mutually exclusive, the 
 vendor is generally entitled to call on a purchaser in pos- 
 session to pay the purchase-money into court. 
 
 § 1435. Where the purchaser is in x^ossession, and the 
 
 (/) See, in addition to the subsequent cases, date of the report of good title; and see 
 
 Davy V. Barber, i Atk., 4t^9; Robertshaw v. supra, § 1375. 
 
 Bray, 14 L,. T., 101, 12 Jur., iii. (J) Broolie v. Champernowne, 4 01. & Fin , 
 
 ig) Champernowne v. Brooke, 3 CI. & Fin.. 589; and see Weddall v. Nixon. 17 Beav., 160. 
 
 4 (overruling Blonnt v. Blount, 3 Atk., 636). (k) Ex parte Manning, 2 P. Wras., 410. ( f. 
 
 (h) Bailey v. Collett, 18 Beav., 179; Wallis Seton,1397, 139S; Dart, Vend. (.5th ed), 1200. 
 
 V. Sarel. 5 De G. & Sm., 429; Davy V. Barber, See, also, Child v. Lord Abingdon, 1 Ves, 
 
 2 Atk., 489; Owen v. Davies, 3 Atk., 637. Jun., 94; Trefusis v. LordClinton,2 Sim., 359. 
 
 (j) Enraght v. Fitzgerald, 2 Dr. & War., 43, ([) VVaUis v. Sarel, 5 De G. & Sm., 429. 
 
 reversing Lord Plunkett's decision S. C. 2 Ir. (w) Supra, § 1372. 
 Eq. R., 87, that interest should run from the
 
 654 FRY ON SPECIFIC PEKFOUMAXCE OF CONTRACTS. 
 
 vendor lias disclosed sucli a title as the purchaser ought to 
 accept, the vendor's right thus to i)roceed is clear. And 
 the court will pursue this course where the purchaser in 
 possession admits a good title, though he may claim the 
 right to object, it not having been approved by counsel. (7i) 
 
 § 14:t0. On the other hand it is a general rule, that 
 where it is through the laches of the vendor that the title 
 remains incomx)lete, the court will refuse an application for 
 the payment of the purchase-money into court. (o) 
 
 § 1437. But wliere the want of a good title being shown 
 is not from the default of the vendor, the court will, it 
 seems, put the purchaser tb his election, either to pay in 
 his purchase-money or to give up possession. 
 
 § 1438. Thus, in a case before Lord Eldon, where the 
 purchaser was let into possession, both parties acting in the 
 confidence that the title would soon be 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 purchaser should be put 
 to his election, either to give ujd possession or to pay the 
 money into court : but on a subsequent day his lordship 
 said only that the purchaser ought, at least, to i^ay interest 
 on his purchase-money ; and the point was ultimately 
 settled by agreement detween the j)arties.(jf>) And not- 
 withstanding some doubts cast upon the wisdom of this 
 judgment in a subsequent case by Plumer, V. C, who con- 
 sidered it to be "the imprudence of the vendor in letting 
 the vendee into jDossession before the questions upon the 
 title were disposed of, "(g) the court will generally put a 
 purchaser in j)ossession, where the title has not been made 
 out, to his election, either to pay in the purchase-money or 
 to give wp possession ;(r) and the court did so in one case 
 where it was part of the contract that £5,000, j)art of the 
 purchase-money (£6,300), should be secured by a mortgage 
 of the estate. (5) In such cases(^) two months, and in an- 
 
 f (11) Crutchley v. Jernlngham,2 Mer., 502. See also King v. King 1 My. & K., 442; and 
 (o) Fox V. Birch, 1 Mer., Id"). Curling v. Austin, 2 Dr. & Sm., 129, 139 (in 
 i Ip) Gibson v. Clarke, 1 V. & B., 500. which case the purchaser had been in pos- 
 [ (q) Clarke v. Elliott, 1 Mad., 607. session without receipt of the rents.) 
 (r) Clarke v. Wilson, 15 Ves., 317; Smith v. (s) Vonnge v. Duncombe, You. 275. 
 Lloyd, 1 Mad., S3; Wickham v. Evered, 4 (/) Younge v. Duncombe, Tindal v. Cob- 
 Mad., 53; Tindal V. Cobham, 2 My. & K., 3S5. ham, Curling v. Austin, ubi supra.
 
 INTEREST, RENTS, DETERIORATION, ETC. 655 
 
 other(z^) one month, having been allowed the purchaser to 
 elect whether of the alternatives to accej^t. 
 
 ^ 1439. Where the contract allows possession to be taken 
 before the completion of the title, the court will not gener- 
 ally order the payment of the purchase-money into court 
 on the score of possession. (?)) 
 
 § 1440. Thus, where by the contract the purchasers, a 
 railway company, were to be at liberty to take x)ossession 
 on depositing a specified sum of money in a bank, and 
 they duly made the deposit and entered into possession of 
 the land and made their railway over it, though they after- 
 wards for a long time neglected to complete, the Court of 
 Appeal in Chancery held that the vendor was not entitled, 
 on interlocutory motion, to have the purchase-money jmid 
 into court, (w)) 
 
 § 1441. But in another raihvay case, where the purchas- 
 ing comjDany were by the contract allowed to take posses- 
 sion, but the contract also contained a clause providing that 
 the vendors should nevertheless retain their lien for the un- 
 paid purchase-money, and all rights and remedies incident 
 to such lien, Kindersley, Y. C, held that the fact of the 
 company having been let into possession did not prevent 
 the vendors from applying to have either payment into 
 court of the unpaid balance of the purchase-money or de- 
 livery np of X)ossession, and he ordered such paj^ment or 
 delivery to be made within a month, on the terms, however, 
 that if possession were delivered up, the vendors should, 
 within a fortnight after such delivery, pay into court the 
 instalment of the purchase-money which they had already 
 received, (a?) 
 
 § 144:3. If the purchaser hai^pens to be in j)ossession 
 under some other title than the contract, this is a circum- 
 stance against calling for the j)ayment of the purchase- 
 money into court ; as where the purchaser was in possession 
 not under the contract for sale, but as tenant to the vendor 
 at the time of the purchase \{y) and where the purchaser was 
 
 (m) Wickham v. Evered, ubi supra. bury Junction Railway Co., L. K. 2 Co. 100, 
 \v) Morgan v. s(haw, 2 Mer , 138; Gibson v. 102; Capps v. Norwich and Spaulding Rail- 
 Clarke, 1 V. & B,500; Gell V. Watson, 3 way Co., 2 N. R ,51, where Kindersley, V. C. 
 Mad., 225. seems to have considered that the company 
 (w) Pryse v. Cambrian Railway Co., L. R. had bought the right to possession by pay- 
 2Ch.,444. Consider Tonilinson V. Manches- ing part ot the price. 
 
 ter and Birmingham Railway Co., 2 Rail. C, (x) Cooper v. London, Chatham and Dover 
 
 104 (where theacts relied on were done under Railway Co., 14 W R., 0S5 
 
 a mistake); Pell v. Korthampton and Ban- (y) Bonner v. Johnston, 1 Mer., 36G.
 
 656 FRY ON SPECIFIC PERFORMANCE OF CONTRACTS. 
 
 a tenant in common with the vendor, and liad with his con- 
 sent been in receipt of the rents of the whole. (2)' 
 
 § 1443. In a case Avhere the contract of which the plain- 
 tiff sought specific performance was that, when a house of 
 the plaintiff should be completed, he would grant to the 
 defendant and the defendant would accept a lease of it for 
 twenty-one years, and the defendant took possession of the 
 house before it was completed, and occupied it for a year, 
 but refused to pay rent ; a motion by the plaintiff that the 
 defendant should be ordered to pay the year's rent into 
 court was refused, on the ground that the money asked for 
 was no part of the contract, nor w^as the defendant in i)os- 
 session under it.(«) 
 
 § 1444. Where the mere taking possession of the property 
 does not furnish any ground for ordering the i)ayment of 
 the money into court, the order will yet be made, and with- 
 out giving the option of delivering u^) possession, where the 
 purchaser in possession commits acts of ownership, par- 
 ticularly acts occasioning the deterioration of the property ;(6) 
 and this, even though the title may not have been made 
 out,(c) or the purchaser may be in possession according to 
 the terms of his contract. (<:?) The ground of this proceed- 
 ing is that by such acts the purchaser is altering the 
 
 (z) Freebody v. Parry, Coop. 91; cf. Walt- (6) Pope v. Great Eastern Railway Co., L. 
 
 ers V. Upton, Coop. 9-2, n., which appears to R. 3 Eq., 171. 
 
 depend on the circumstances stated by Sir (c) Bonner v. Johnson, 1 Mer., 366. 
 Samuel Romilly, arguendo, in the case to (rf) Dixon v. Astley, 19 Ves., 564; S. C, 1 
 
 which it is a note. Mer., 133, 378, n. 
 
 (a) Faulkner v. Llewellin, 31 L. J. Ch., 549. 
 
 ' Tenants in common, or joint tenants.'] " "Where two devisees are in posses- 
 sion, under an imperfect title derived fi'om their common ancester, there would 
 seem naturally and equitably to arise an obligation between them, resulting 
 from their joint claims and community of interest, that one of them should not 
 effect the claim to the prejudice of the other. It is not consistent with good 
 faith, nor with duty which the connection of the parties as the claimants of a 
 common subject created, that one of them should be able, without the consent 
 of the other, to buy in an outstanding title and appropriate the whole subject 
 to himself and thus und(ji"mine and oust his companion. It would be repug- 
 nant to a sence of refined and accurate justice. It would be immoral, because 
 it would be against the reciprocal obligations to do nothing to the prejudice of 
 each others equal claim which the relationship of the parties as joint devisees 
 created. Community of interest produces a community of duty, and there is 
 no real difference on the ground of policy and justice, whether one co-tenant 
 buys up an outstanding incumbrance or an adverse title to dissuage and expel 
 his co-tenant. It cannot be tolerated when applied to a common subject in 
 which the parties had equal concern, and which created a moral obligation to 
 deal candidly and benevolently with each other, and to create no harm to their 
 joint interest." Kent, Ch., in Home v. Fonda, 5 John. 's Ch., 388, 407; see, 
 also, Carter v. Home, 1 Eq. Abr. (7 PL), 13; Fawcett v. Whitehouse, 1 R. & 
 M., 132; Barton v. Wookey, 6 Mad., 367.
 
 INTEREST, RETs'TS, DETERIORATION, ETC. 657 
 
 property wliicli constitutes the security of the vendor for 
 his purchase-money, and diminishing the value of the 
 vendor's lien on the estate. (e) 
 
 § 1445. Hence, acts of ownership which are clearly an 
 improvement to the estate will not support such an applica- 
 tion to the court :{/) and hence, also, acts which may not 
 show that the occupier considers himself the owner, and so 
 will not justify a decree of specific performance against him 
 without further investigation of the title, may yet be a 
 ground for an order to pay the money into court, and the 
 appointment of a receiver ; so that in one case stubbing up 
 an osier-bed, levelling the land and filling up a pond, were 
 held to justify an order for payment and the appointment 
 of a receiver, but a reference of title was at the same time 
 made.(p') In another case, Lord Eld on took into considera- 
 tion the unreasonable delay which had been caused by the 
 purchaser in possession as well as his acts of ownership, [h) 
 
 § 1446. Although, as we have seen, where delay occurs 
 in the completion of a contract and the purchase-money 
 bears interest, the purchaser paying such interest to the 
 vendor is entitled to deduct the income-tax on the amount 
 of the interest, (/) where the purchase-money is paid into 
 court, this deduction is not allowed : because payment into 
 court is not payment to the party as against whom the pur- 
 chaser is entitled to deduct the tax. HoAvever the purchaser 
 may, it seems, apply for the deduction when the money is 
 paid out of court, (y) 
 
 § 1447. The order for X3ayment into court may be made 
 on motion, (/t) and, if circumstances justify it, before the 
 delivery of the defense. (Z) In the Court of Chancery the 
 order might be made before answer, (m) even though the 
 defendant had filed no affidavit so as to bring the merits 
 before the court, (??) and though the acts of ownershij) relied 
 on were not stated in the bill ;(o) and the facts necessary to 
 
 (e) Cutler V. Simons, 2Mer., 106, where a (k) Tindal v. Cobham, 2 My. & K., 3So; 
 
 list of acts upon which such orders had been Wickham v. Evered, 4 Mad., 53. See, also, 
 
 made is given. See, also. Pope v. Great Buck v. Lodge, IS Ves., 450; and Ord. XL. r. 
 
 Eastern Railway Co., L. R. 3 Eq., 171, and 11, quoted supra, § 1334. 
 
 Ballard v. Shutt, 15 Ch. D-, 122. \l) Bonner v. Jonnston, 1 Mer., 366; Dixon 
 
 (/) Bramley v. Teal, 3 Mad., 219. v. Astley, 1 Mer., 133. 
 
 (g) Osborne v. Harvey, 1 Y. & C. C. C, 116. (in) e. g. Cooper v. London, Chatham, and 
 
 (h) Burroughs v. Oakley, 1 Mer., 52, 376, n. Dover Railway Co., 14 W. R , 985. 
 
 (i) Crane v. Kilpin, L. R. 6 Eq., 339, supra, (n) Blackburn v. Stace. 6 Mad., 69. 
 
 § 1399; Bebb v. Bunny, 1 K. & J., 216. (o) Cutler v. Simons, 2 Mer., 103. See now 
 
 (J) Bebb V. Bunny, IK. & J.,216. Ord. XIX. rr. 4,9, 17, 18,20; Ord. XXIX. r. 11. 
 
 42
 
 658 FRY ox ^PECrFIC PERFOR.UANOE OF CONTRACTS. 
 
 support sucli an application niight be supplied by affidavit, 
 wliether stated in the bill and not admitted by the answer, (^) 
 or not stated in the bill.(^)' 
 
 § 1448. AVhere an order for payment into court has been 
 oi:)posed, and the money is in the hands of a stakeholder who 
 afterwards absconds, the loss has been held to fall on the 
 party who opposed the order, (r) 
 
 § 1449. It has been decided that, when interest is pay- 
 able by a purchaser in possession, the time at which it first 
 becomes due within the meaning of the 42d section of the 
 Statute of Limitations (3 and 4 William IV, c. 27) is the time 
 when the purchase-money becomes actually payable, though 
 it (the interest) may have to be calculated from a much 
 •earlier date. In the case referred to the contract, made in 
 March, 1811, stipulated that the purchase-money should be 
 paid on the following thirteenth of May, but the transaction 
 remained uncompleted for upwards of forty years under 
 circumstances which kept alive the vendor's right to the 
 purchase-money : it was held that all the arrears of interest 
 irom the IStli of May, 1811, were recoverable by the persons 
 representing the vendor. (5) 
 
 (p) Boothby v. Walker, 1 Mad., 197. («) Toft v. Stevenson, 5 De G. M. & G., 735. 
 
 (q) Crulchley v. Jerningham, 2 Mer.,502. Of. S. C, s. n. Toft v. Stephenson, 7 Ha., 1; 
 
 (r) Fenton v. Browne, 14 Ves., 144; Bur- 1 De G M. & G.,2S. 
 
 roughs V. Oakley, 1 Mer., 52. * 
 
 1 Tender by payment into court.'\ In a case wliere the payment of a sum of 
 money is a condition precedent, and a tender of performance has been made, 
 this entitles the vendee to performance on the part of the vendor. Tlie money 
 need not ])e brought into court until the vendor demands it. Washburn v. 
 Dewey, 17 Vt., 92^ Where money has been conditionally paid into court, the 
 party who denies the existence of the contract upon which it is paid, has no 
 claim upon such money. Lynch v. Jennings, 43 Ind., 276; Soule v. Holdridge, 
 25 Ind., 119. Where the vendor voluntarily permitted the vendee to take pos- 
 session without any stipulation about paying the purchase money, such vendee 
 cannot be compelled to pay the money into court, before the completion of the 
 title. Clark v. Elliot, 1 Mad., 606. In Binns v. Mount, 28 N. J. Eq., 24, a 
 non-resident purchaser having brought his action for the specific performance 
 of the agreement, although he was not in possession of the property, was re- 
 quired to pay the purchase money into court.
 
 THE DEPOSIT. 659 
 
 CHAPTER VI. 
 
 OF THE DEPOSIT. 
 
 § 1450. It is common on sales of real estate for the pur- 
 'cliaser to pay to the vendor at the time of the contract a 
 portion of the purchase-money by way of part payment. 
 This is very generally, or perhajjs almost universally, the 
 practice in cases of sales by auction :{a) it is the exception 
 in cases of sales by private contract. 
 
 § 1451. In many other cases payments are made to the 
 vendor by way of instalment or part payment. Where 
 without any default on the part of the purchaser the con- 
 tract fails, this money should be repaid.' 
 
 § 145^. Furthermore, it is clear that the payment of this 
 money to the vendor or his agent creates a lien for the 
 amount paid on the vendors interest in the land. "There 
 can be no doubt, I apprehend," said Lord Cranworth, ad- 
 dressing the House of Lords, ' ' that when a purchaser has 
 paid his purchase-money, though he has got no conveyance, 
 the vendor becomes a trustee for him of the legal estate, 
 and he is, in equity, considered as the owner of the estate. 
 When, instead of paying the whole of his purchase-money, 
 he pays a part of it, it would seem to follow, as a necessary 
 corollary, that, to the extent to which he has paid his x^ur- 
 chase-money, to that extent the vendor is a trustee for him ; 
 in oth'er words, that he acquires a lien, exactly in the same 
 way as if, upon the payment of part of the purchase-money, 
 
 (a) Note that where, on a sale by auction, ally relieve against the lapse of time. See 
 
 there Is a condition for the forfeiture of the per Lord Redesdale in Lennon v. Xapper, 2 
 
 deposit if the purchase be not completed Sch. & Lef., 684. 
 within a certain time, the court will gener- 
 
 1 Effect of part payment on tJie rights of the purchaser. '\ For an instructive case, 
 see Keegan v. Williams, 22 Iowa, 378. 
 
 Rise in value, notice that contract teas at an end.'\ Real estate which had been 
 sold, was likely to rise in value within a few days ; the vendor gave notice on 
 Saturday that the contract was at an end, and would not be renewed, except 
 for a greater price. The vendee made no objection, and the vendor sold to a 
 third party on the following Tuesday. Held, that the original vendee had no 
 remedy, and that his action for specific performance would be dismissed. 
 Hawley v. Jelley, 25 Mich., 94.
 
 660 FRY ON SPECIFIC PERFORMANCE OF CONTRACTS. 
 
 the vendor had executed a mortgage to him of the estate to 
 that extent." (6) 
 
 § 1453. In Rose v. Watson, (c) W., having successfully 
 resisted a vendor's suit for the specific performance of a 
 contract to purchase a building estate on the ground of the 
 vendor's representations not having been fulfilled, filed a 
 bill to enforce his lien on the estate for deposit and instal- 
 ments, of purchase-money with interest. The House of 
 Lords, affirming the decision of Kindersley, V. C, held the 
 l)laintiff entitled to such lien and interest in priority to per- 
 sons to whom, after the contract, the vendor had mortgaged 
 the property ; and that although some of the plaintiff's pay- 
 ments were made after he had notice of the mortgage. 
 
 § 1454. The lien is not strictly confined to a case of sim- 
 ple purchase : it extends to the case of a lease, and entitles 
 an intended lessee who has entered under the contract and 
 expended money to a lien on the lessor's interest :((^Z) it ex- 
 tends, too, to a sub-purchaser : so that where A. sold to B. 
 and received part payment from him, and B. sold to C. and 
 received part payment from him, C. was held entitled to a 
 lien on B.'s interest in A.'s estate. (e) 
 
 § 1455. This lien, in the case of a purchaser, extends to 
 (1) all instalments of the purchase-money ;(/) (2) interest 
 thereon at four per cent per annum ;{g) (3) sums paid under 
 the contract as interest on the unpaid purchase-money ; (4) 
 interest thereon \{h) and (5) the costs of an unsuccessful ac- 
 tion by the vendor against the purchaser. (?') 
 
 § 1456. It may be observed, in passing, that a vendor 
 under the Lands Clauses Consolidation Act, 1845, has no 
 corresponding lien on the land sold for the costs of an arbi- 
 tration payable to him by the company. (,/) 
 
 § 1457. The lien can, no doubt, be enforced in precisely 
 the same way as a vendor's lien for unpaid purchase-money, 
 and under the present practice {k) there can, it is conceived, 
 
 (6) Rose V Watson, ID H. L. C, 683, 684. Webb v.Kirby, 7 De G.M. & G., 376; Wythes 
 
 See, too, perLord Westbury, inS. C.,678. v. Lee, 3 Drew., 396. 
 
 (c) 10 H. L (;., 67-2. See, also, Wvthes v. (h) Rose v. Watson, 10 H. L. C, 6<2. 
 
 Lee, 3 Drew, 396., where the earlier cases are (i) Middleton v. Magnay, 3 H. & M.,233; 
 
 considered Turner v. Marriott, L. R. 3 Eq., 744 
 
 id) Middleton v. Magnay, 2 H. & M., 233 (j ) Earl Ferrers v. Stafford and Uttoxeter 
 
 (« Aberaman Ironworks v. Wickens, L. Railway Co., L. R. 13 Eq., 524; AValker v. 
 
 R 4 Ch 101 Ware, Hadham and Buntingl'ord Railway 
 
 '(/) Bryant v. Busk, 4 Russ., 5; ffick v. Co., L. R. 1 Eq., 195; Gould v. Staffordshire 
 
 Phillips, Prec. in Ch., 575. See Graves v. Potteries Waterworks Co., 5 Ex., 214. 
 
 Wright, 2 Dr. & War., 79; cf. Myycock v. {k) See, especially, Jud. Act, 1873, 8. 24,. 
 
 Beatson, 13 Ch. D., 386. subs. 7. 
 
 {g) Lord Anson v. Hodges, 5 Sim., 227;
 
 THE DEPOSIT. 661 
 
 be no difficulty in giving full effect to the purchaser s rights. 
 For— 
 
 (1) If the vendor be plaintiff, the purchaser (defendant) 
 resisting specific performance may deliver a counterclaim, 
 asking for a personal order for repayment of the amount 
 paid and interest, and for a declaration of his lien on the 
 plaintiff's interest for those sums and costs; and on the 
 plaintiff's action failing, such relief would clearly be granted 
 to the defendant. 
 
 (2) If the purchaser be plaintiff', he will frame his claim 
 in the alternative, asking for specific performance or the 
 rej^ayment of the amount paid and the enforcement of his 
 lien, and obtain relief accordingly. 
 
 § 1458. Where the deposit which the purchaser seeks 
 to recover by action is in the hands of the auctioneer at the 
 time when the action is commenced, and is a large sum, the 
 purchaser may properly make the auctioneer a party to 
 the action. If the sum is small, the auctioneer ought not 
 to be made a party unless and until he has refused to pay it 
 into court. (Z)' 
 
 vi 1459. In a recent case, where the contract was for the 
 sale of a term of twelve and a half years in a public house 
 (a going concern), and the abstract showed that the lessors 
 had a right to determine the lease at the end of five years, 
 it was held that the purchaser was entitled to rescind the 
 contract, and sue for the repayment of the dej^osit and in- 
 terest, without waiting even until the day fixed by the con- 
 tract for the transfer of possession. (??i^) 
 
 § 1460. On the other hand, where the purchaser, after 
 making a payment by way of deposit, unjustifiably repudi- 
 ates the contract, or it in any other way goes off* through his 
 default, the vendor is, in the absence of stipulation on the 
 point, entered to retain the money, treating it as having 
 been paid to him as a guarantee for the purchaser's per- 
 formance of the contract, (/i.) 
 
 (i) Earl of Egniont V. Smith, 6 Ch. D.,469; Roberts, 31 Beav., 613. See too Essex v. Dan- 
 
 Cf. Yates V. Farebrother, 4 Mad., 239 iell, T>. R 10 C. P., 538 (where there was a 
 
 (to) Weston v. Savage, 10 Ch. D , 736. condition for forfeiture of the deposit) ; and 
 
 (n) Ex parte Barrel!, I,. R. .10 Ch., 512; De- as to relief against forfeiture of the deposit, 
 
 pree v. Bedboroueh, 4 Giff., 470; Kell v. see Lennon v. Napper, 2 Sch. & Lef.,684; 
 
 Kokes, 14 W R.,908; cf. Moeser v. Wlsker, Moss v. Matthews, 3 Ves , 279. 
 
 L. R. 6 C. P , 120, and distinguish Casson v. 
 
 ' It is obvious that a covenant to convey, in many instances, carries witli it 
 an obligation to refund. Pratt v. Law, 9 Cranch, 456; Pratt v. Campbell, id., 
 456; see Fox v. Longly, 1 A. K., Marsh., 388; Campbell v. Bealor, 3 Bibb, 
 300.
 
 662 FRY ON SPECIFIC PERFORMANCE OF CONTRACTS. 
 
 § 1461. But conditions for forfeiture of the deposit to the 
 vendor, (o) or its repayment without interest or costs, (^) 
 cannot be enforced by a vendor who is unable to make a 
 good title, 
 
 § 146'3. It may be convenient briefly to advert to the 
 jurisdiction in respect of part payment of the purchase- 
 money and the lien for it under ,the i^ractice of the Court 
 of Chancery. 
 
 § 1463. Where the vendor was the plaintiff, and failed in 
 his suit for specific i^erformance, the court might dismiss 
 the bill, and order the plaintiff to return the deposit with 
 interest at four per cent. \{q) or it might declare the defend- 
 ant entitled to a lien for these amounts and the costs of 
 suit, and dismiss the bill subject to this declaration. (r) 
 
 § 1464. But the proceeding of the court in this respect 
 was discretionary, and depended on circumstances : for the 
 court, by dismissing the bill, sometimes meant to leave the 
 parties to their remedies at common law, in which case it 
 did not order the return of this deposit. (.9)' 
 
 § 1465. With regard to the power of the Court of Chan- 
 cery to give the i^urchaser relief in respect of his deposit 
 where he was the plaintiff, and specific performance 
 was refused, considerable variation took place. (^) But in 
 Todd v. Gee,('w) Lord Eldon, after fully considering the ear- 
 lier cases, held that, except in very special cases, a bill 
 could not be filed asking the performance of a contract, or, 
 in the alternative, an issue or an inquiry Avith a view to 
 damages. This decision was followed in many subsequent 
 cases. («) 
 
 § 1466. But if the plaintiff prayed not the mere repay- 
 ment of money but a lien upon the land, he was seeking for 
 
 (0) Want V. StalUbraBS, L R. 8 Ex., 175. Ves , 276, n.; Greenaway v. Adams, 12 Ves., 
 
 (») McCulloch V. Gregory, 1 K &J.,286, 3'J5; Gwillim v. .^itone, 14 Ve8., 128. See also 
 
 295. t!l"re V. .-ulton, 3 Mer , 237, 248. 
 
 (q) Lord Anson v. Hodges, 5 Sim., 227; (m) 17 Ves., 273 
 
 Webb V. Kirby, 7 De G M. & G. 376; SheaW (v) Kendall v. Beckett, 2 R. & M., 88; Jen- 
 
 V. Venables, 15 W. R , 1166. kJn» v. Parkinson, 2 My. & K , 5; Van v. 
 
 (r) Turner v. Marriott, L. R. 3 Eq , 744. Corpe, 3 My. & K., 269; bainsbury v. Jones, 
 
 (*) Southcomb v. Blohop ol Extter. 6 Ha., 2 Beav., 462; >. C. 5 My. & Cr., 1; WilliamB 
 
 225; Rede V Oakes, 2 De G. J & S., 518 v. Edwards, 2 Sim., 78. 
 {t) Denton v. Stewart, 1 Cox, 2.'J8; S. C, 17 
 
 ' A vendee of land, in possession, paid part of tlie purchase money under 
 the contract, but on being sued for the residue by the vendor, set up in answer 
 the statute of frauds, and defeated the action. Held, that this was an aban- 
 donment of the contract, which precluded him from a decree of specific per- 
 formance, and entitled him to a restitution of his purchase money. Payne v. 
 Graves, 5 Leigh. 561.
 
 THE DEPOSIT. 663 
 
 equitable and not merely legal relief, and lie could maintain 
 his bill for specific performance, or, in the alternative, for 
 alien on the vendor's interest and the sale of it accord!- 
 ingly ;{w) or he might enforce his lien by means of a sup- 
 plemental bill.(c'r) 
 
 § 1467, Where a contract was rescinded on the ground 
 of fraud, surprise, or misrepresentation, and a deposit had 
 been paid, it was within the jurisdiction of the court, 
 when decreeing rescission, also to order the deposit to be 
 returned. (?/V 
 
 {w) Wythes v. I^ee, 3 Drew., IVX, coinpro- (x) Westmacott v. Robins, 4 De G. F & J., 
 mlsed on appeal, 23 I., J. Ch , 381). CI'. lilore 39). 
 
 V. Sutton, 3 Mer., 237 (y) Torrance v. Bolton, L,. R. 14 Eq., 124, 
 
 135; affirmed L. R 8 Ch., 118 
 
 ' Interest irJiere the purchase price has not been paid or tendered.'] The pur- 
 chase price bek)ngs to the vendor from the time fixed for the completion of the 
 contract. He is entitled to interest upon it, provided it is not then paid or ten- 
 dered. Hart V. Brand, 1 A. K. ]Marsh., 161; Breckenridge v. Hoke. 4 Bibb, 
 278; Drake v. Barton, IfS Minn., 462; see, also, Warrall v. Munu, 88 N. Y., 
 137; Gillet v. Maynard. 5 Jolin , 8.5; Jones v. Jones, 49 Tex., 683. 
 
 Rents and jnrj fits.] The property sold belongs to the vendee from the time 
 fixed for the completion of tlie contract, and he is entitled to the rents and 
 profits from that time. The vendee died, leaving minor heirs, after he had 
 paid a portion of the purchase money and taken possession of the estate. 
 After his death the vendor re-entered, wasted the property, and sold it. In an 
 action for specific perforniaiuc held, that the vendor should pay the highest 
 rental value of the land since his re-entry. Cole v. Tyson, 8 Ired.'s Eq., 170. 
 "Whatever maybe the rule where a trustee has not himself occupied and 
 enjoyed the trust estate, but has received rents from it, justice and equity de- 
 mand that where he has wrongfully excluded the true owner, and has himself 
 occupied and enjoyed the fruits of the estate, he shall at least account for its 
 rental value." Per curiam, Henlen v. Martin, 53 Cal , 321. In one case the 
 interest had accumulated until it amounted to considerably more than the rents 
 and profits, and it was held that the vendor should be left in the enjoyment of 
 them until a good title was shown, and that then he should receive interest 
 on the purchase money, and the vendee reasonable rents and profits, notwith- 
 standing, by reason of a fire which destroyed the building, no rents were re- 
 ceived. Lombard v. Chicago Sinai Con., 7.5 111., 271. The owner of an undi- 
 vided half of an estate, contracted to convey the whole Held, that if the 
 vendee elects to take what the vendor can convey, he need pay or tender only 
 one-half the contract price, and the vendor is not entitled to any portion of the 
 rents and profits accruing subsequent to the making of the contract. Marshall 
 V. Caldwell, 41 Cal., 611.
 
 664 FRY ON SPECIFIC PERFORMANCE OF CONTRACTS. 
 
 PART VI. 
 
 OF SOME CONTRACTS IN PARTICULAR. 
 
 CHAPTER I. 
 
 OF CONTRACTS FOR THE SALE OF SHARES. 
 
 § 1468. The subject-matter of this chapter is contracts 
 for the sale of shares between an existing and an intending 
 shareholder, not contracts for the taking of shares from a 
 company by an applicant. Contracts of the latter kind 
 have been referred to in a previous part of this treatise, {a) 
 
 § 1469. The vendor or purchaser of shares may gener- 
 ally, as we have ah'eady seen,(&) maintain an action for the 
 specific performance of the contract -.(c) he will be entitled 
 to a direction that the defendant execute a proper deed of 
 transfer and concur in all steps necessary to procure its 
 registration, and also, in the case of the vendor being plain- 
 tiif, to a declaration of his right to indemnity in respect of 
 calls on the shares accruing after the purchaser has become 
 the owner in equity \{d) and where the circumstances of the 
 case do not demand the whole of this relief, the plaintiff 
 may receive so much as suits the necessities of the case : 
 so, for example, the decree or Judgment has, in some cases 
 been merely one for indemnity. 
 
 § 1470. The courts of common law having recognized 
 the liability of the purchaser to indemnify the vendor, ac- 
 tions were, before the judicature acts came into operation, 
 maintained on this liability in those courts, (e) 
 
 § 1471, Contracts of this description are, for the most 
 part, made on the stock exchange, and it has been long es- 
 tablished that, in such cases, the contract must be held to 
 
 (o) Supra, §§ 55, 283, 285. Eq., 544; 16 W. R.,918; approved in 0am. 
 
 (b) Supra, § 54. ^<"ac , Grissell v. Bristowe, L. R. 4 C. P., 36, 
 
 (c) A 8 to proceeflingfl under the Companies 151. 
 
 Act. 1862. 8. 35, see supra. §§ 1111,1112. {«) Walker v. Bartlett, 18 C. B., 845, which 
 
 {d) As to the form of the judi^ment in such must be taken to overrule Humble v. Lan^s- 
 
 a case, see Evans v. Wood, L. R. 5 Eq , 9; ton (7 M. & W., 517) on the point of indem- 
 
 Palne v. Hutchinson, L. R 3 Ch., 338. See, nity. See, ton. Kellock v. Enthoven, L. R., 
 
 also, Sheppard v. Murphy, I. R 1 Eq., 490; 2 8 Q. B., 458; affirmed, 9 id., 241.
 
 CONTRACTS FOR THE SALE OF SHARES. 665 
 
 be made with reference to the customs of that body, or such 
 of them as are not unreasonable or otherwise illegal ;(/") 
 the customs being pa.rtly written and partly unwritten, and 
 liable to change from time to time, and to be proved afresh, 
 and possibly differently, in each succeeding case. 
 
 But contracts for the sale of shares are sometimes made 
 off the Stock Exchange, and then they are not regulated by 
 anj special customs, though they are naturally construed 
 with reference to the constitution of the company, as estab- 
 lished by its special act, charter of incorporation, or other 
 constituent instrument. 
 
 § 1472. In order to comprehend the nature of contracts 
 on the Stock Exchange, it must be observed that the mem- 
 bers of the Stock Exchange consist of two classes, brokers 
 and jobbers : that a broker is an agent of a vendor or pur- 
 chaser of shares or stock ; that a jobber is a dealer on his 
 own account in the like commodities, who buys them for 
 the purposes of re-sale at a profit : that on the Stock Ex- 
 change there are two classes of contract, those for cash 
 and immediate execution, and those for the ' ' account : ' ' 
 and that, as regards the dealings for the account, there are 
 three successive days or times which, according to the cus- 
 toms of the Exchange, govern the execution of such con- 
 tracts, viz. : first, the name day, when a purchasing broker 
 or jobber has to give the name of the original or of a sub- 
 stituted purchaser to the vendor's broker; secondly, the 
 account or settling-day, which is the day after the name 
 day — on this day the price has to be paid to the vendor's 
 broker ; and thirdly, a period of ten days after the account 
 day, allowed for the completion by registration of the trans- 
 fers of the shares, where registration is required. 
 
 § 1473. Bearing these facts in mind, the reader will be 
 able to follow the practice on the Stock Exchange, which 
 was fully stated in the evidence of Mr. De Zoete read by 
 Lord Cairns in addressing the House of Lords in the case 
 of Nickalls v. Merry :(//) "In the case suj^posed, Avhere the 
 jobber would stand as purchaser, he would on the day pre- 
 ceding such account day (which was usually called the ' name 
 day') be bound to pass to the broker a ticket containing the 
 
 (/) Nickalls v. Merry, L. R. 7 H. L., 530. (g) L. R. 7 H. L.. 539-541. See, too, ex parte 
 
 Grant, 13 Ch. D.,667.
 
 666 FRY ON SPECIFIC PERFORMANCE OF CONTRACTS. 
 
 name of a person, or of several persons, as tlie purchaser 
 or purchasers of the said shares ; or he might, if he pleased, 
 pass his own name as such purchaser, in which latter case 
 only would h':" have been bound himself to take to the 
 shares. If the jobber had failed to i^ass to the broker such 
 a name or nanu-'s by the name day, the selling broker could 
 have sold out the sliares against him, and have compelled 
 him to 23ay any loss thereon. Until the name day it was 
 not seen who might stand ultimately either as purchasers 
 or sellers, or, iu otlier words, who might ))e the persons to 
 transfer or to talve transfers of shares, and until then a job- 
 ber might have had a great many transactions l)oth of buy- 
 ing and selling with the same brokers or jobbers, or with 
 various brokers or jobbers. On the name chi}', in the case 
 supposed, if the jobber having purchased had sold again, a 
 ticket, containing the name oL' the Y)erson to whom the 
 shares were to be transferred, would have been issued by 
 and passed on from the ultimate purchasing broker to his 
 seller, and so on through the hands of the other intermedi- 
 ate sellers and buyers in succession, who, wdiether acting as 
 jobbers or as brokers, had dealt in the shares, until it 
 reached the hands of the original selling broker. Every 
 member passing a ticket was required to write on the back 
 of it the name of the member to whom it was passed ; such 
 ticket would also have contained the amount of purchase- 
 money agreed to be given for the shares by the ultimate 
 purchasing broker, and also a note that he would pay the 
 same. So many transactions of this kind took place during 
 the account, that on the name day the ticket of necessity 
 only remained in the possession of an intermediate jobber 
 or broker for the time required to take the particulars of it. 
 It sometimes happened that the same ticket passed through 
 the same member's hands several times in f ultillment of bar- 
 gains made with other members, and, as a matter of fact, he 
 had neither the opportunity, time, nor the means for making 
 inquiries respecting the name so passed. The original sel- 
 ling broker would not have been bound to deliver a transfer 
 of the shares to the ultimate purchasing broker until the 
 expiration of ten days after the account day, and during 
 these ten days the said purchasing broker could not have 
 bought in the shares against the seller. During this time it
 
 CONTRACTS FOR THE SALE OF SHARES. 667 
 
 was open to tlie original selling broker to object to the name 
 passed by his buyer, in which case such buyer would, of 
 course, h:\\*^ passed on the o})jection to the person from 
 whom he received the name as hereinbefore mentioned, and 
 practically such Iniyer would have had no liability or inter- 
 est in the question, as whatever grounds there might have 
 been for object iii.i;- to the name would have had to be met by 
 the person from whom it emanated, and who had originally 
 issued the ticket, and the committee of the said Stock Ex- 
 change would, if appealed to by the sellifig broker, have 
 decided as to the validity of any such objection, and would 
 have required ' another name to be given in case they had 
 consideied it right to do so. But after the lapse of these 
 ten days the selling broker was recpiired to deliver the cer- 
 tificates mid transfer of the shares to the said ultimate pur- 
 chasing broker, or in default thereof, the latter could have 
 bought in the shares against the seller. The usual course 
 of business was for the selling broker to deliver the transfer, 
 together with the corresponding ticket, to the said ultimate 
 purchasing broker from whom he received the purchase- 
 money. The said ultimate purchasing broker did not know 
 to whom his ticket had been ultimately passed until the 
 delivery of the tiansfer. According to the long- recognized 
 and weil-established rules and usages of the said exchange, 
 if the original selling broker did not deliver his transfer 
 and certificates and obtain payment of the purchase-money 
 within hfteen clear days from the name day, his immediate 
 buyer was released from all loss caused by the default of 
 the ultimate purchasing broker to pay for the shares, and 
 the latter would alone remain responsible ; in like manner, 
 if the member who issued the ticket containing the name of 
 the intended transferee of the shares did not buy in, or at- 
 tempt to buy in, the same shares within "fifteen days from 
 the account day, his immediate seller was released from all 
 loss caused by the failure of any member through whose 
 default the shares were not delivered to, and the purchase- 
 money paid by, the ultimate purchasing broker ; the jobber 
 had fulfilled all the obligations lequired of liim by the rules 
 and usages of the said Stock Exchange in respect of his 
 contract." 
 
 § 1474. In this passage, and in several of the cases which
 
 668 FRY ON SPECIFIC PERFORMANCE OF CONTRACTS. 
 
 have occurred, the jobber is spoken of as if his rights and 
 liabilities were distinct from those of a broker. But the 
 broker of a purchaser, and through him as principal the 
 purchaser, appeared to be in precisely the same position as 
 a jobber, (Z() 
 
 § 1475. Such being the practice, the contract of sale to 
 a jobber has been determined to l^e to the effect that, at the 
 sitting-day, he will either take the shares himself, in which 
 case he must accept and register a transfer and indemnify 
 the vendor, or he will give, as purchaser or purchasers, the 
 name or names of one or more persons capable of contracting 
 and who have authorised him to contract for them, and to 
 w-hom no reasonable objection can be made : and that when 
 the vendor has, by executing a transfer to the nominees, 
 accepted them as purchasers, and the nominees have ac- 
 cepted the shares, through the delivery to their brokers, on 
 a payment by their brokers, of the transfers and certificates 
 of shares, then two things follow, viz., (1) a new contract 
 arises between the original vendor and the nominees of the 
 original purchaser ; and (2) as a consequence, the original 
 purchaser is released and no action can be maintained 
 against him in respect of the contract. (^) So that he is not 
 in any sense a guarantor of the performance of the new con- 
 tracts b}^ his subvendees. 
 
 § 1476. The peculiarity of this transaction does not con- 
 sist in the extinction of the original contract by the new 
 one : that occurs in many cases : but in the right reserved 
 by the original contract to the purchaser to compel the 
 vendor to accept a new contract in lieu of the old one. In 
 short, the original contract with the purchaser is one for 
 sale and purchase, with a right reserved to the purchaser, 
 under certain circumstances, to call on the vendor to enter 
 
 {h) See Maxted v. Pain (2d action). L. R. executed and delivered to him : that the 
 
 6 Ex., 132, 170; consider Street v. Morgan, 21 vendor has no right to object to execute a 
 
 L I. N. S , 432 transfer to any one named by the purchaser, 
 
 (i) Coles V. BrlBtowe, L. R. 4 Ch., 3, re- and does not, by executing the transfer, re- 
 versing S (J. 1-.. R 6 Eq., 149; Grlssell v. lease the purchaser from his liability to in- 
 Bristowe, L R. 4 C. P.. 36, reversing S. C. L. demnify. His Lordship held, as a conse- 
 R 3 C. P., 112. In Maxted v. Paine (2d quence, that Coles v. Bristowe and Orissell 
 action), L. R. 6 Ex., 132, Lord (then Mr. v Bristowe (ubi supra) were rightly decided, 
 Justice) Blackburn suhjected the whole but on wrong grounds, and that Maxted v. 
 jnatter to a very elaborate examination, and Paine [1st action] (L. R. 4 Ex., 81) was 
 held that it was no part of the contract of a wrongly decided. See, as to this judgment, 
 purchaser of shares to give in either his own per James, L. J., in Merry v. Nickalls, L. R. 
 name or that of his real principal: that he 7 Ch., 750. Lord Blackburn's views seem to 
 contracts to accept a transfer into the name be practically overruled by the decision of 
 which he furnishes, and to indemnify the the House of Lords in the last-named case 
 Tcndor against all calls after the transfer Is (L. R. 7 H. L., 530).
 
 CONTRACTS FOR THE SALE OF SHARES. 669 
 
 into a new and substitutionary contract, and an obligation 
 on the part of tlie vendor to do so. It is an effective con- 
 tract to contract. 
 
 § 1477. Of the original liability of the first purchaser to 
 be sued in specific performance and for indemnity there is 
 no doubt. Let us now inquire a title more exactly what 
 such original purchaser must have done to relieve himself 
 from his original liability. 
 
 1st. He must give as purchaser the name of a person 
 capable of contracting. Accordingly it has been decided 
 that the passing on the name of an infant is no satisfaction 
 of the jobber's liability. (y) 
 
 2d. He must give as a purchaser the name of a person 
 who has authorised the original purchaser to bind him to a 
 contract of purchase : so that passing on the name of a 
 person who gave no authority is no satisfaction of the first 
 purchaser's liability. (^') As regards these two p>oints, it 
 has been urged that if no objection was taken to the name 
 within ten days after the settling-day, that being the period 
 allowed for the approval or rejection of the name of the 
 ultimate purchaser, the original vendor lost his right to 
 object : but the contrary has been held ; the j)ersonal re- 
 sponsibility, and not the personal capacity or authority, 
 being the only point left for inquiry and determination 
 within the ten days. 
 
 3d. The original purchaser must give a name to which no 
 reasonable objection can be taken. It seems that residence 
 in Smyrna would be a reasonable objection. (^) This objec- 
 tion, if not taken within ten days, would come too late. 
 
 § 1478. The nominee of the original purchaser, whether 
 jobber or purchasing broker, is in most cases a sub- vendee. 
 But this is not necessary. The exigency of the contract is 
 satisfied if the name given as that of a purchaser be that of 
 a person capable of contracting and who has contracted to 
 take the shares. Thus, where the j)erson named was a man 
 
 (j) Merry v. Xickalls, L. R. 7 Ch., 733 ; S. C. 118 (James, V. C), and Maynard v. Eaton, L. 
 
 8. n. Nickalls v. Merry, L. R. 7 H. L., 530 (re- R. 9 Ch., 414. See, also. Brown v. Black, L. 
 
 versing the decision of Bacon, V. C, in S. U. R. 15 Eq., 363; 8 Ch., 939. 
 
 L. R. 7 Ch., 740, and overruling Rennie v. (k) Maxted v. Paine (1st action), L. R. 4 
 
 Morris, L. R. 13 Eq , 203) ; Dent v. Nlckalls, Ex., 81. 
 
 22 W. R., 218; Watson v. Miller, W. N., 1876, (I) Allen v. Graves, L. R. 5 Q. B., 47S, which 
 
 18 (.Hall, V. C.) ; Heritage v. Paine, 2 Ch. D , case, however, was on a special contract. 
 594. Of. Nickalls v. Furneaux, W. N., 1869,
 
 670 FRY ON SPECIFIC PERFORMANCE OF CONTKACTS. 
 
 of straw, who for a gratuity accepted the shares in a broken 
 company, and the vendor's brokers did not object to the 
 name given or require a better name, tlie original purchaser 
 was hekl to have performed his contract, and so was no 
 longer bound. (?;?^) 
 
 Whether the original purchaser is bound to do anything 
 more than produce a new contracting party, /. e., whether 
 he is liable till the new purchaser has actually accepted the 
 transfer of the shares, is a point which is hereafter con- 
 sidered. (?i) 
 
 § 1479. Where the nominee's name has been given, with 
 his authority, by the jobber or purchasing broker, and such 
 name has been accepted by the vendor by his executing the 
 transfer to the nominee, and the nominee has, through his 
 broker, paid for the shares and accepted the transfer and 
 certificates, a new contract, as we have seen, arises between 
 the vendor and the nominee. (o) This new contract may be 
 enforced by an action for indemnity, (^:>) or by an action for 
 si)ecific performance and indemnity, (g-) 
 
 § 1480. In accordance with some of the authorities the 
 new contract has, in the foregoing sections, been stated as 
 arising when the nominee lias paid for his shares and ac- 
 cepted the transfer and certificates, or, to put it in other 
 terms, the original purchaser is only discharged when he 
 produces a nominee who himself pays for the shares and 
 accepts the transfer (and does not merely contract so to 
 do).(r)' But there are not wanting authorities which would 
 place the constitution of the new contract at a possibly 
 earlier stage, viz., when by the ticket the new purchaser 
 has been signified to the original vendor, and the vendor 
 has signified his acceptance to the new purchaser. (6-) The 
 point has never been precisely determined : and as the only 
 notification that the original vendor accepts the new pur- 
 chaser appears to be by delivery of the transfer on payment 
 
 (m) Maxted v. Paine (2d section), L. R. 4 appreved in Cam. Scac. in Grissell v. Bris- 
 
 Ex., 203, affirmed in Cam. Scac. L. R. 6 Ex., towe, L. R. 4 C. P., 36, 51; Hawkins v. Malt- 
 
 132. bv, 1.. R. 4 Eq , .572; 3 Cli . 188; 6 Kq., 505; 4 
 
 (71) See infra, § 1480 et seq. Cii., 2iiO; Hodgkinson v. Kelly, 6 Eq , 496. 
 
 (o) Sec per Cockburn. C. J , in Grissell v. (r) See per Cockburn, C. J., in Grissell v. 
 
 Brlstowe, i.. R. 4 C. P., 51. Brlstowe, L. R. 4 C. P ,51; per James, L.J. , 
 
 (p) Davis V. Haycock, L. R. 4 Ex., 373; In Merry v. Nickalls, L. R. 7 Ch , 751. 
 
 Bowring v. Shepherd, L. R. 6 Q. B.. 309. (s) See per Brett, J , in Howring v. Shep- 
 
 (g) Sheppard t. Murphy, 16 W. R , 948; I. herd, L. R. 6 Q. B., 328; per Kelly, C. B.. In 
 
 R. 2 Eq., 544 (reversing S. C, I. R. 1 Eq., 490), Davis v. Haycock, L. R. 4 Ex., 384.
 
 CONTRACTS FOR THE SALE OF SHARES. 671 
 
 of the price, the point does not seem to be one of much 
 practical importance. 
 
 § 1481. The new contract is, as we have seen, between 
 the original vendor and the ultimate purchaser or nominee. 
 Between the original vendor and any of the intermediate 
 parties there is no contract. (^) 
 
 § 1489. In one case, however, it has been held that there 
 is a right to indemnity in equity on the ground of trust. 
 The case alluded to is Castellan v. Hobson.(w) There A. 
 through his broker sold to a jobber, B. B. sold to C. 
 through his broker. C.'s broker gave the name of D., who 
 was a man of straw and was held to be a trustee for C. A. 
 executed a transfer to D. and received the money : D. did 
 not execute the transfer, and before registration the com- 
 pany was woundup: C. was held liable to indemnify A., 
 on the ground that A. was a mere legal owner of the shares 
 and entitled to indemnity from the real equitable owner, 
 and that C. was such owner. It may be doubted how^ far 
 the case can be considered as an authority since the decis- 
 sions in Coles v. Bristowe(?5) and Maxted v. Paine (second 
 action) :{io) for it would appear that A.'s original contract 
 of sale was liable to be extinguished by a new contract 
 which he agreed to enter into with a nominee, and that by 
 executing a transfer to D. he accepted him as purchaser, 
 and it would seem to follow that he could look to him and 
 to no one else for indemnity. The non-registration of the 
 transfer, too, seems immaterial according to the more recent 
 cases. 
 
 § 1483. In Viscount Torrington v. Lowe,(.r) the court of 
 common pleas held that no action could be maintained 
 against the subvendee whose nominee had been accepted by 
 the original vendor, and they expressed the further opinion 
 that there was no equitable right against him. 
 
 § 1484. In some cases the ordinary form of contract is 
 departed from, and a contract is made by the jobber or pur- 
 chasing broker with registration guaranteed. This sui)er- 
 adds an important obligation on the original purchaser, so 
 that he has not completed his contract until he has either 
 
 (t) viscount Torrington v. T.owe, L. R. 4 this case. Cf. Nickalls v. Furneaux, W. N., 
 
 C P , 26 1869, 118 (James, V. C.) 
 
 (M) L. R. 10 Eq,. 47 (James, V. C.) The (i) L. R. 4Ch., 3. 
 case of Viscount Torrington v. Lowe does (w) L. R. 4 Ex.. 20S, 6 Ex., 133. 
 not appear to have been cited to the V. C. in (x) L. R. 4 C. P. 26.
 
 672 FRY OlSr SPECIFIC PERFORMANCE OF CONTRACTS. 
 
 himself paid for the shares and registered tlie transfer, or 
 has procured some nominee to do both these things. There- 
 fore where the jobber procured a nominee to accept or pay 
 for the shares, but the transfer was not registered, the job- 
 ber or original purchaser was still liable to a suit for specific 
 performance and indemnity. (//) 
 
 § 1485. Cases may, of course, often occur where, inde- 
 pendently of the customs of the stock exchange, a third i)er- 
 son may so adopt the purchaser' s contract as to place him- 
 self in the shoes of the purchaser, and give to t]).e vendor a 
 direct right against himself. The x)ractice of x)assing on 
 shares before transfer executed gives great facilities for such 
 a result to arise. 
 
 § 1486. In one caseW. directed his broker to buy shares 
 in a discount comj)any : the broker bought them from the 
 plaintiff, and, on W.'s instructions, gave the name of G. (a 
 director of the company) as purchaser. G. received the 
 transfers made out in his name, retained them, and depos- 
 ited them as security for the purchase-money, which was 
 paid out of the com^Dany's funds and debited to Gr.'s firm. 
 G. denied that he had assented to the shares being bought 
 in his name : but Stewart, V. C, held that G. had assented 
 to the new contract, and accordingly made against him a 
 decree of s^Decific performance. (^) 
 
 § 1487. A somewhat similar state of facts arose in an 
 earlier suit. There A. sold to B., and B. sold to C. A. 
 executed a transfer to C, which C. did not register. A. 
 then sued B,, and obtained a decree directing an inquiry as 
 to A.'s title : the Master certified in effect that A., by exe- 
 cuting the transfer to C, had precluded himself from making 
 a title to B., and on this ground the bill was dismissed on 
 further consideration, (a) 
 
 § 1488, So again, in the case of a contract between A. 
 and a comxDany to take shares and make certain payments, 
 the registration by the company of a transfer by A. to B., 
 before A. had made the payments entitling him to be 
 registered as a shareholder, was held by Lord Selborne 
 (sitting as a judge of first instance) to be a new contract 
 
 (y) Cruse v. Paine, L. R. 6 Eq., 641; 4 Ch., iz) Shepherd v. Gillespie, L. R. 5 Eq., 293. 
 441. (a) Shaw v. Fisher, 5 De G. M . & ti. 596.
 
 CONTRACTS FOR THE SALE OF SHARES. 673 
 
 between B. and the company which extinguished the earlier 
 contract between A. and the company, (6) 
 
 § 1489. The following circumstances require considera- 
 tion in actions of this description : 
 
 The plaintiff in some cases has been only equitably entitled 
 to the shares, which have been registered in the name of 
 some third person. This has been held no objection to a 
 decree for specific performance or for indemnity to the 
 plaintiff, (c) 
 
 § 1490. Whether the fact that, before the contract was 
 made, a call was made on the shares of which the purchaser 
 was ignorant, was a defense to a suit for the performance of 
 a contract to buy the shares, was a point much considered 
 in the successive stages of the litigation in Hawkins v, 
 Maltby,(rZ) but can hardly be said to have been there 
 decided. In fact there the call was made on the same day 
 as the contract, but whether before or after did not appear. 
 In the absence of fraud or misrepresentation, it does not 
 seem clear wiiy the fact that a call, which the purchaser 
 must have known could at any time be made, has been 
 made, should avoid the contract or prevent either party 
 from enforcing it. 
 
 § 1491. Where the constitution of the company gives 
 the directors a power to refuse to register transfers, the 
 ■question arises whether the refusal on the part of the 
 directors to register- the purchaser, relieves him from the 
 obligation of performing the contract. 
 
 This question must be answered differently according to 
 circumstances. 
 
 § 1492. (1) Where the contract is made on the Stock 
 Exchange, but is made with reference to the constitution of 
 the company, or subject to its rules, and the constitution of 
 the company requires the vendor to do all that is essential 
 to the transfer, the vendor is under an obligation to procure 
 the assent of the directors, and if he fail to do so, the pur- 
 chaser is relieved from the contract, and if he have already 
 paid his purchase-money in ignorance of this refusal, he 
 may recover it back.(6) 
 
 (b) Morton's case, L. R. 16 Eq., 104. («) Wilkinson v. Lloyd, 7 Q. B., 27; cf. per 
 
 (c) Paine v. Hutchinson, L. K. 3 Eq., 257; 3 Lord Campbell, C. J., in Stray v. Russell, 1 
 €h., 388. El. & El., 900. 
 
 (d) L. R. 4 Eq , 572; 3 Ch., 188; 6 Eq., 505; 
 4 Cb., 21)0. 
 
 43
 
 674 FRY ON SPECIFIC PERFORMANCE OF CONTRACTS, 
 
 § 1493. (2) Where the contract is made on the Stock 
 Exchange and subject to its rules, it is clear that the refusal 
 of the directors to register the transfer is immaterial ; for, 
 according to the construction put upon such a contract, it 
 is performed on the vendor' s part by the delivery of the 
 transfer and certificates, and the vendee is entitled to the 
 right which he thereby acquires to procure himself to be 
 registered, if the directors so choose : he is not entitled to 
 an absolute and unconditional right to registration. (/ ) In a 
 sale on the Stock Exchange it is no part of the vendor's 
 duty, irrespective of express contract, to i^rocure the regis- 
 tration of the transfer. (^) 
 
 § 1494. (3) There are numerous contracts for the sale of 
 shares which fall under neither of the two classes just ad- 
 verted to : and with regard to these it is more difficult to 
 say what is the effect of the power of the directors to refuse 
 registration, or of their actual refusal. 
 
 Opposite views have been expressed. On the one hand, 
 Lord Komilly, M. R. , in one case expressed the view that 
 every contract for sale of shares is conditional on the com- 
 pany accepting the purchaser as a shareholder : (A) on the 
 other hand. Lord Chelmsford intimated an opinion that in no 
 ordinary case will the discretionary power in the directors 
 furnish a defense. " The directors," he said, "may decline 
 to register, but the transaction is complete as between trans- 
 feror and transferee. "(/) 
 
 The opinion expressed by Lord Romilly, M. R., in the 
 case referred to,0) can probably not now be sustained. 
 
 § 1495. In a subsequent case, before the last-named 
 judge, the deed of settlement of the company provided 
 that no shareholder should transfer his shares, except in 
 such a manner as the board should approve : a shareholder 
 contracted to sell his share : the board refused its consent 
 to his making the transfer : and the vendor tlien refused to 
 complete : the purchaser filed his bill, and obtained a de- 
 cree on the ground that the deed of settlement did not pre- 
 vent the sale of shares or give the directors an arbitrary 
 
 (/) Remfry v. Butler, El. B. & E., 887; (h) Bermlngham y Sheridan, 33 Beav.^ 
 Stray v. Russell, 1 El. & El., 888. 660. 
 
 (ff) Stray V, Russell, 1 El. & EL, 888. As to (i) Hawkins v. Malthy, L. R. 3 Ch.. 194. 
 purchases with registration guaranteed, see See per Lord Romilly, M. R,, in Hodgliinson 
 supra, § 1484. v. Kelly., L. R. 6 Eq., 496 
 
 (j) Bermingham v. Sheridan, 33 Beav., 660.
 
 COISTRACTS FOE, THE SALE OF SHARES. 675 
 
 will on such an occasion : in case the parties differed the 
 conveyance was to be settled in chambers, (/i) 
 
 g 1496. Whether, independently of the rules of the 
 Stock Exchange or of other special contract, the duty of 
 procuring the transfer to be registered rests on the vendor 
 or purchaser, has not been the subject of any conchisive 
 decision. It is a point of great moment for the determina- 
 tion of the question now under our consideration : for, if it 
 rests on the purchaser, his non-performance of his obliga- 
 tion can never prejudice the vendor. There are in the cases 
 arising upon Stock Exchange contracts(Z) numerous dicta 
 which imply that, generally, the duty is upon the purchaser, 
 and it is apprehended that this will be decision of the ques- 
 tion when it shall arise. 
 
 § 1497. It is settled, and indeed could hardly be doubted, 
 that when, through the fault or default of the defendant, 
 the transfer had not been presented for registration, and 
 then a winding up had intervened, and there was no evi- 
 dence to show, if the transfer had been duly presented by 
 the defendant, he would not have been accepted as a trans- 
 feree, the objection based on the refusal to transfer must 
 fail.(m) 
 
 § 1498. The winding up of the company has, in many of 
 these cases, been urged as an objection to the relief sought, 
 here we must distinguish between cases in which the pre- 
 sentation of a petition was before and those in which it was 
 after the making of the contract. 
 
 § 1499. (1) Where the petition has first been presented, 
 then the contract has been made by both parties in ignor- 
 ance of that fact, and then the petition has resulted in a 
 winding up, there has been common mistake or common 
 ignorance : and in such a case it appears that the court 
 could not compel the specific performance of the contract. (ti) 
 § 1500. (2) But where the petition has been presented 
 after the making of the contract, the defense does not ap- 
 pear admissible : for the general rule, that the destruction 
 or failure of the subject matter of a contract after it is en- 
 tered into is no defense, must prevail, (o) and if the contract 
 
 (k) Poole V. Midilleton, 29 Beav., 046. (to) Evans v. Wood, L. R. 5 Eq., 9; Paine 
 
 (l) Sheppard v. Murphy, 1. R. '2 Eq., 544; v. Hutchinson, L. R. 3 Ch.,388. .,^^ 
 
 16 VV R 948- Stray V. Russell, 1 El. & El., (n) Emerson's Case, L. R., 1 Ch., 433. '■ ' 
 
 888- Evans v Wood, L. R. 5 Eq.,9; Hodg- (o) Coles v. Bristowe, L. R. ti Eq., 149; 
 
 kinson v. Kelly, L. R. 6 Eq., 496. Taylor v. Stray, 2 C. B. N S., 175.
 
 676 FRY ON SPECIFIC PERFORMANCE OF CONTRACTS. 
 
 cannot be perforaied modo et forma, tlie court can still give 
 relief by way of indemnity. (^) 
 
 § 1501. The point has been urged in various forms. It 
 has been said that the substitution of the one name for the 
 other on the register of the company is part of the contract, 
 and that by the winding up of the company this has become 
 impossible: and further, as regards companies under the com- 
 panies act, 1866, that the effect of the 131st and 163d sec- 
 tions of that act is to render transfers after the commence- 
 ment of the winding up absolutely illegal and mere waste 
 paper, (^) But neither of these arguments seems valid. 
 As to the first, it may be replied that, unless by special 
 contract, the vendor is not bound to procure the registra- 
 tion, but that duty rests on the purchaser, (r) and that in 
 cases of contracts on the Stock Exchange the registration 
 of the transfer is no part of the bargain : as to the second 
 point, it is clear that the effect of the statute is not to make 
 the transfer illegal or void, but to give a discretion to the 
 liquidator, or the court, to allow them to operate or not to 
 operate as transfers. (5) In short, the question who is on the 
 register is one between the company and the shareholder ; 
 the question who is to bear the calls and take the profits is 
 one between the buyer and seller, with which the company 
 is not concerned, (if) 
 
 (p) Cruse V. Paine, L. R. 6 Eq., 641, 653. (;•) See supra, § 1496. 
 
 Birmingham v. Sheridan, 33 Beav., 660, prob- (s) Chapman v. Shepherd and Whitehead 
 
 ably cannot be supported. Distinguish v. Izod ubi supra; Emmerson's Case, L. R. 
 
 Holmes v. Symons, L. R. 13 Eq., 66. 1 Ch., 433; Sheppard v. Murphy, ubi supra. 
 
 (?) Chapman v. Shepherd and Whitehead (t) See per Lord RomiUy, M. R., in Hodg- 
 
 V. Izod, L. R. 2 C. P., 228; Sheppard v. Mur- kinson v. Kelly, L. R. 6 Eq., 496. 
 phy, I. R. 2 Eq., 544; 16 W". R., 948. 
 
 ' The doctrines of English chancery have, in this respect, been carried out in 
 this country. So in Lewis v. Madisons, 1 Munf., 308, 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 bonos mares. 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 cer- 
 tain 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 life-time 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 be- 
 fore her, was decided not to be a nudum pactum, but founded on sufficient 
 consideration, and, therefore, binding on the contracting parties.
 
 CONTINGENT INTERESTS AND EXPECTANCIES. 677 
 
 CHAPTER II. 
 
 OF CONTRACTS RELATING TO CONTINGENT INTERESTS AND 
 
 EXPECTANCIES, 
 
 § 150^. At common 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. (a)' 
 However, in a case before the Queen's Bench, the court sup- 
 ported as valid a contract to sell an estate if it should be 
 devised to the vendor by a person then living. (5) 
 
 § 1503. In courts of equity contracts relating to expect- 
 andes have been long upheld, (c) and that although they 
 may in some sort seem to have defeated the intentions of 
 testators, or been in fraud of parental authority. 
 
 § ldi04. One of the earliest cases on the subject is Wise- 
 man V. Eoper,(<^) 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 against 
 him. 
 
 § 1505. In Beckley v. New]and,((S) the plaintili' and the 
 defendant had married two sisters, who were the presump- 
 tive heiresses of Mr. Turgis, a very rich man, who had made 
 and revoked several wills, and ultimately made one leaving 
 a great estate to the defendant, and only a small one to the 
 
 (a) Per Lord Kenyon, M. R., in Jones v. Lord Eldon In Carleton v. Leighton ^3 Mer., 
 
 Roe 3T. R.93 The Roman law likewise 671), that the expectancy of an heir could not 
 
 prohibited such contracts. Pothler, Tr. ues be made the subject of contract seems an 
 
 Oblig , Part 1. chap. 1. s ct. 4, § 2. error of the reporter. Apparently the word 
 
 (6) Coofe V Field, 15 Q B , 460. contract is written for conveyance. 
 
 (c) Of. Alexaniler v. Duke of Wellington, 2 (d) 1 Rep. in Ch.. 154. 
 
 R. & My., 35. The statement attributed to («) 2 P. VVms.,182. 
 
 1 Varick v. Edwards, 11 Paige's Ch., 290; Anderson v. Lewis, 1 Freem. Ch. 
 (Miss), 178; Baylor v. Commonw^ealth, 40 Pa. St., 87; Powers' App., 63 id., 
 443; Hasten v. JVIarlow, 65 N. C, 695. In Kentucky, a contrary doctrine is 
 held Lomry v. Spear, 7 Bush (Ky.). 451. The husband agreed to convey 
 land belonging to his wife, in which he had a life estate by the custody: the 
 wife refused to convey. Held, that the contract could not be specifically en- 
 forced, and that he could not be compelled to convey his life estate in the same. 
 McCann v. Jones, 1 Rob. (Va.), 256. An executory verbal contract depended 
 upon an event which might never happen. Held, that equity would not de- 
 cree specific performance. Bradley v. Morgan, 2 A. K. Marsh, 369.
 
 678 FRY ON SPECIFIC PERFOKMANCE OF CONTRACTS. 
 
 plaintiff. Previously to the execution of the will, the plain- 
 tiff and the defendant had entered into a contract for the 
 equal division between them of what should be left to each 
 of them ; and this contract was upheld and specifically en- 
 forced by Lord Macclesfield, who said that the contract 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 j^ower to dispose of the 
 said estate when it should come to him." The same prin- 
 ciple 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 possibly on 
 the death of a sister unmarried. (5^) 
 
 § 1506. InHarwood-v. Tooke,(A) the plaintiff and the 
 defendant, the celebrated John Home Hooke, had made a 
 ]3arol contract to divide what should come to them from a 
 testator : in satisfaction of this the plaintiff had given to the 
 defendant Tooke a note for £4,000, which he had endorsed 
 over to the other defendant, Sir Francis Burdett, for valua- 
 ble consideration. All that Lord Eldon ultimately decided 
 in the case may have been that the plaintiff had no equity 
 to follow the note into the hands of this j^urchaser for 
 value ; and it apj)ears from one of the reports that he ex- 
 pressed doubts whether the transaction between the plain- 
 tiff and the defendant Tooke was not a fraud on the testa- 
 tor, and whether the court would at any rate assist in speci- 
 fically performing such a contract. But the case has usu- 
 ally been treated as an authority for the validity of contracts 
 relating to expectancies. (/) 
 
 § 1507, In another case the contract seemed, at first 
 sight, in fraud of the parental authority, but was upheld on 
 a like ground to that taken by Lord Macclesfield. A con- 
 tract had been entered into by two sons to divide equally 
 between them whatever they might receive from their father 
 in his lifetime or after his decease, by will or otherwise. It 
 was very strongly argued that this was a scheme on the part 
 
 (/) Hobson V. Trevor, 2 P. Wms., 191. (i) See per Shadwell, V. C, In Wethered v. 
 
 (g) WrlKht V. Wright. 1 Ves. Sen. 409. Wethered, 2Slm., 191; Hyde v. White. 5Slm., 
 
 ih) 2 Sim., 192, from Mr. Maddock' MS. n.; 524; and per Lord Brougham in Lyde v. 
 
 IMy. &K., 685. Mynn, 1 My. &. K.,693.
 
 CONTINGENT INTERESTS AND EXPECTANCIES. 679 
 
 of the sons to protect themselves from the consequences of 
 misconduct, and to bid defiance to parental authority. But 
 Shad well, V. C, 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 did not choose so to give it, but gave it absolutely, he 
 had allowed it to become liable to all their antecedents con- 
 tracts, and therefore to the contract in question, of which 
 specific performance was accordingly granted. (,/) 
 
 § 1508. Similar in principle is the case of Lyde v. 
 Mynn, {k) 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 rela- 
 ting to a mere expectancy ; and the court accordingly spe- 
 cifically performed the covenant. And so, again, contracts 
 respecting the costs of proceedings in lunacy, or the ulti- 
 mate division of a lunatic' s i^roperty are not void. {I) 
 
 § lo09. In a case recently decided by Denman, J., a hus- 
 band and his wife had assigned to one of the iDlaintiffs (who 
 was held by the judge to be a trustee for the other plain- 
 tiffs) all the interest to which the wife or the husband might 
 become entitled under the will of C. (who had, at the time, 
 to the wife's knowledge, made his will leaving his residuary 
 estate to her for her separate use), to secure £4,000 borrowed 
 by the husband for the iDayment of his debts : and C. had 
 died without altering his will. It was held that the wife 
 had power to charge, and had by the contract effectually 
 charged, her expectancy, (??z) 
 
 § 1510. The circumstances attending such contracts as 
 those now under discussion, are oftentimes of such a kind 
 as to prevent the court from enforcing them. Such were 
 the circumstances in Morse v. Faulkner(7i) in the exchequer, 
 and in the more recent case of Ryan v, Daniel, (o) In the 
 latter case each of the two young officers in the army signed 
 and gave to the other a document, by which each charged 
 his estate with £1,000 in favor of the other, in case the 
 
 (j) Wethered v. Wethered, 2 Sim, 183. (Z) Persse v. Persse, 7 CI. & Fin.,279. 
 
 See accordingly Hyde v. White, 5 Sim., 524; (m) Flower v. Buller, 15 Ch. D., 665, 
 
 HouKhton v. Lees, 1 Jur. N. S., 862; 3 W. B., (n) 3 Sw., 429 n. 
 
 135 (Stewart, V. C) (o) 1 Y. & C. C. C, 60. 
 
 (k) 1 My. &K.,683.
 
 680 FRY ON SPECIFIC PERFORMANCE OF CONTRACTS. 
 
 other should survive him, the consideration of each of these 
 documents being the other of them : many years subse- 
 quently a correspondence passed between these officers with 
 a view to a rescission of the transaction, but that intention 
 was never carried into effect. The court held that, looking 
 at the circumstances of the transaction, the age and con- 
 dition of the parties and their subsequent correspondence, 
 there was no equitable claim which the court would enforce, 
 but it retained the bill for twelve months, with liberty to 
 bring an action to establish, if the xolaintiff could, a legal 
 debt. 
 
 § 1511. It has been judicially suggested that contracts 
 made by a person before the devolution of the estate or 
 other realization of his expectancy are purely personal, and 
 only capable of being enforced against the contractor per- 
 sonally during his lifetime. In Morse v. Faulkn*'r,(^) in 
 1792, Eyre, C. B., speaking of such a case, said, " The sur- 
 rendor 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 x)resent 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. IS^either the land itself or the conscience of the 
 present defendants is bound by this act of William the sur- 
 renderor." It is however believed that this view has not 
 received any subsequent confirmation.' 
 
 (p) 3 Sw., 429 n. ; shortly reported, 1 Anster , 11. 
 
 ' Provision by jvirenis for children.^ Equity "will often interpose to sustain 
 defective conveyances by parents for children. The same principle is applica- 
 ble to brothers or sisters. A father, for the purpose of securing a provision 
 for his children, executed deeds of part of his estate to them, retaiuing the 
 instruments in his possession, and directing his wife to hand them to the clerk 
 for record after his death. This was done. There was no claim by creditor 
 or purchaser. Held, that equity would enforce the instruments. Jones v. 
 Jones, 6 Conn., Ill; Belden v. Carter, 4 Day, 68.
 
 CONTRACTS FOK PARTNERSHIP. QSt 
 
 CHAPTER III. 
 
 OF CONTRACTS FOR PARTNERSHIP. 
 
 § 1512. As a general rule, the court will not enforce 
 specific performance of a contract to form and carry on a 
 partnership, (a) And notwithstanding some early authori- 
 ties more or less to the contrary, (&) it is clear that the court 
 would in no case compel performance of a contract to enter 
 into a partnership not for a definite term :(c) for it might be 
 dissolved as soon as entered upon, and the interference of 
 the court would thus become simply nugatory. 
 
 § 1513. "Where, however, the contract defines the term 
 of the partnership, and there has been part performance of 
 the contract, the court may specifically execute it by decree- 
 ing the parties to execute a iDroper deed, and, if necessary, 
 by restraining any partner from carrying on business under 
 the partnership style with other persons, and from publish- 
 ing notices of dissolution.(cZj* 
 
 § 1514. AYhether the court would siDecifically enforce a 
 contract not in terms to enter into partnership but to exe- 
 cute a deed of partnership to certain terms defined or ascer- 
 tainable, has never, it is believed, been decided. The argu- 
 ment that such a judgment should be pronounced in order 
 to give the plaintiffs legal rights, seems of much less weight 
 now that the courts of common law and equity are united. 
 
 (a) Scott V Ravment, L. R 7 Eq, 112;Si- Gas Consumers Co. (Repiptered) v. Harrigon, 
 
 chel V. Mosenthkl. 30 Beav , 371; and see 17Beav.,294; per Kiucersley, "'. C, in New 
 
 enpra, g§ 73, 824. Brunswick, etc., Co. v. Muggeridge, 4Drew., 
 
 (6) see per Lord Hardwlcke in Buxton v 69S. 
 
 Lister, 3 Atk.,3S5; Anon., 2 Ves. .Sen., 629; {d) England v. i urling, 8 Beav., 129; Hlb- 
 
 Anon , 1 Mad , Ch., 525n.; Hibbert v. Hib- bert v Hibbert. Collyer, PaUn.. 133 Cf. the 
 
 bert, Collyer, Partn, 133. pleadings In Bluet v. Capstlck, 12 Ch. D., 
 
 (c) Hercy v Birch, 9 Ves., 357; Sheffield 863. 
 
 1 This appears to be clearlj- the rule. Story's Eq. Jur. , § 666 ; Collyer on 
 Partnership (2d Am. ed.), 107, 110; Byrd v. Fox, ^ 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 
 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. 166.
 
 682 FRY ON SPECIFIC PERFORMANCE OF CONTRACTS. 
 
 § 1315. Contracts for partnership may in some cases be 
 illegal, as amounting to sales of office, as contravening the 
 laws regulating trade, or otherwise. (d) It is hardly neces- 
 sary to observe that the court will not in any way interfere 
 for the benefit of parties claiming under such contracts, or 
 in favor of contracts for partnership tainted with fraud, 
 hardship, or improper conduct. (/") 
 
 § 1516. Again, where the contract had reference to the 
 manufacture and sale of a patent medicine. Lord Eldon 
 considered that the court could not decree specific perform- 
 ance, because, if the receipe were a secret, the court had no 
 means of enforcing its own orders, (p') 
 
 § 1517. There are of course a great many cases(7^-) in 
 which courts of equity give specific relief on partnership 
 articles : but these are not cases of specific performance of 
 executory contracts. 
 
 (e) See Hughes V. Statham, 4 B. & C, 187; also, as to secret medicines, Williams v. Wil- 
 
 Knowles v. Haughton, 11 Ves., 168. liams, 3 Mer., 157; Green v. Folglmm, 1 S. & 
 
 (/) Vivers v. '1 uck, 1 Moo. P. C. (N. S.), S.,398; Yovatt v. Winyarci, 1 J. & \V.. 394. 
 
 516; Alaxwell v. Port Tenant, etc., Coal Co., See also Lingen v. Simpson, 1 S. & S., 600. 
 24 Beav., 495. (h) E. g. Homfray v. Fothergill, L. R. 1 
 
 ig) Newbery v. James, 2 Mer., 446. See Eq., 567.
 
 CONTRACTS FOR THE SALE OF SHIPS. 683 
 
 CHAPTER IV. 
 
 OF CONTRACTS FOR THE SALE OF SHIPS. 
 
 § 1518. Contracts for the sale of ships, or of shares in 
 ships, have long been affected by legislation. The present 
 position of legislation is shortly this. By the merchant 
 shipping act, 1854 (17 & 18 Vict. c. 104), it is enacted (s. 55) 
 that a registered ship, or any share therein, when disposed 
 of to persons qnalified to be owners of British ships, shall 
 be transferred by bill of sale, containing such description of 
 the shij) as is contained in the certificate of the snrveyor, 
 or such other description as may be snfiicient to identify the 
 ship to the satisfaction of the registrar, and which shall be 
 in a form (a) given by the statute, or as near thereto as 
 circumstances permit, and executed by the transferer 
 before and attested by one or more witnesses : no individual 
 is entitled to be registered as transferee till he has made a 
 certain declaration (s. 56): and (s. 57) every bill of sale with 
 the required declaration is to be produced to the registrar, 
 who is to enter the name of the transferee as owner in the 
 registrar. (/>) 
 
 § 1»519. By the merchant shipping act amendment act, 
 1862, (25 & 26 Yict., c. 63,) s. 3, it is declared to be the in- 
 tention of the merchant shipping act, 1854, that, Avithout 
 prejudice to the provisions contained in that act for pre- 
 venting notice of trusts from being entered in the register 
 book or received by the registrar, and without prejudice to 
 the powers of disposition and of giving receipts conferred 
 by that act on registered owners and mortgages, and with- 
 out prejudice to the provisions contained in that act relat- 
 ing to the exclusion of unqualified persons from the owner- 
 ship of British ships, equities may be enforced against 
 owners and mortgagees of ships in respect of their interests 
 therein, in the same manner as equities may be enforced 
 against them in respect of any other personal property. (c) 
 
 (a) Cf The Merchant Shipping 4ct Amend- thereby registered. Orr. v. Dicliinson, .John.s., 
 ment Act, 1855 (18 & 19 Vict., c. 91), 8. 11. 1 ; cf. Holderness v. Lamport, 9 W. R., 327; 
 
 (b) The registration ofa bill of sale, which 30 L. J. Ch., 489. 
 
 is in fact invalid, gives no title to the person (c) See Stapleton v. Haymen, 12 W. E.,317.
 
 684 FRY ox SPECIFIC PERFORMANCE OF CONTRACTS. 
 
 § 15'20. The definition to persons qualified to be owners 
 of British ships is to be found in the 18th section of the 
 merchant shipping act, 1854, which is as follows : 
 
 " No ship shall be deemed to be a British ship unless she 
 belongs wholly to owners oL the following description ; that 
 is to say, 
 
 "(1) Natnral-born British subjects : 
 
 "Provided that no natural-born subject who has taken 
 the oath of allegiance to any foreign sovereign or state shall 
 be entitled to be such owner as aforesaid, unless he has, 
 subsequently to taking such last-mentioned oath, taken the 
 oath of allegiance^^fZj to Her Majesty, and is and continues 
 to be during the whole period of his so being an owner 
 resident in some place within Her Majesty's dominions, or, 
 if not so resident, member of a British factory, or partner 
 in a house actually carrying on business in the United 
 Kingdom, or in some other place within Her Majesty" s- 
 dominions : 
 
 ••(2) Persons made denizens by letters of denization, or 
 naturalized by or pursuant to any act of the imperial legis- 
 lature, or by or pursuant to any act or ordinance of the 
 proper legislative authority in any British possession : 
 
 ''Provided that such persons are and continue to be dur- 
 ing the whole period of their so being owners resident in 
 someplace within Her Majesty's dominions, or, if not so 
 resident, members of a British factory, or partners in a 
 house actually carrying on business in the United Kingdom, 
 or in some other place within Her Majesty's dominions, and 
 have taken the oath of altegiance to Her Majesty subse- 
 quently to the period of their being so made denizens or 
 naturalized : 
 
 "(3) Bodies corporate established under, subject to the 
 laws of, and having their principal place of business in, the 
 United Kingdom or some British possession.'' 
 
 § 15^1. The result of this legislation appears to be clear : 
 that any person qualified to be the owner of a British ship 
 may sue on any contract for the sale of a ship or share in a 
 ship, and that on obtaining judgment he will be entitled to 
 
 (d) As to the form of the oath, eee The Promis^iory Oaths Act, 1S^^,8 (31 & 33 Vict. - 
 
 7-2), 8. 14, subs. 8.
 
 CONTKACTS FOR THE SALE OF SHIPS. 685 
 
 \)e registered : but that, pending entry of liis name as owner 
 on tlie register, no notice of liis equity can ajjpear on the 
 register, or be noticed by the registrar : that the registered 
 owner or mortgagee can make a good transfer and give good 
 receipts to purchasers for value without notice of the equity 
 under the contract : and lastly, as regards unqualified per- 
 sons, that they cannor maintain an action ior the sale of a 
 ship or share in a ship to them. 
 
 § 15^2. It may be convenient very briefly to advert to 
 the history of the legislation on this topic. (r=) The Act 26 
 Geo. III. c. 60 required (section 17) the bill of sale on every 
 transfer to recite the certificate of registry, and declared 
 that otherwise such bill of sale should be utterly null and 
 void. The act being silent as to contracts, doubts arose 
 which were ended by the Act 34 Geo. III. c. 68, which (sec- 
 tion 14) made void both in law and in equity all contracts 
 unless made in the manner prescribed by the former act. 
 Under these acts a contract for the sale of a ship not reciting 
 the certificate, but having a copy of the certificate annexed, 
 was void.(/) 
 
 § 15^3. These acts were repealed: and the enactment 
 which then came into force was 4 Geo. lY. c. 41, which pro- 
 vided (section 29) that when and so often as the property in 
 any ship, or any part thereof, belonging to any of His 
 Majesty's subjects, should, after registry thereof, be sold 
 to any other or others of His Majesty's subjects, the same 
 should be transferred 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, other- 
 wise such transfer should not be valid or effectual for any 
 purpose whatever, either in law or in equity : to which was 
 added a proviso limiting the effect of an error in such 
 recital. 
 
 § 1524. This clause, which departed from the language 
 of the older statutes, was re-enacted by the 6 Geo. IV., c. 
 110, s. 31, the 3 c£- 4 W. TV., c. 55, s. 31, and the 8 & 9 Vict., 
 c. 89, s. 34 : and the 37th section of the last mentioned act 
 further provided that no bill of sale or other instrument in 
 writing should be valid or effectual to pass the property in 
 
 («) See Liverpool Borough Bank v. Tur- i/) Brewster v. Clarke, 2 .Mer , To. 
 ner, IJ. & H. h)6.
 
 QS6 FRY ON SPECIFIC PERFOKMANCE OF CONTRACTS, 
 
 any sliij), or in any share thereof, or for any other purpose^ 
 until the same was entered on the register. 
 
 § 1535. The change of hinguage gave rise to a question : 
 but it was determined, under the hist cited act, that execu- 
 tory contracts to transfer not complying with the terms of 
 the act were avoided by them. (17)' 
 
 § 15!l26. Then came the merchant shipping act, 1854^(17 
 & 18 Vict., c. 104), which omitted all express reference to 
 executory contracts, and omitted also any such words 
 as are contained in the 37th section of the previous statute 
 (8 & 9 Vict., c. 30): and thereupon the question arose 
 wdiether executory interests might be enforced under con- 
 tracts not complying with the formalities of the act : and 
 this question was determined, as to an equitable mortgage, 
 in the negative. (A) It has, however, been recently decided 
 that an executory contract to transfer a shix) to a purchaser 
 need not be registered, and may be enforced by the registered 
 owner notwithstanding the non-registration. (/) 
 
 § 1527. Lastly has. come the amending statute of 1862 
 (25 & 26 Vict., c, 63), which permits the enforcement, under 
 certain conditions, of equities, clearly including the equity 
 which results from a contract for sale not satisfying the 
 statutory requisites for the legal transfer. 
 
 § 1528. Independently of the statute of 1862. it has been 
 determined that the merchant shipping acts do not apply to 
 a contract relative to the xjroduce of the sale of a ship. A. 
 was the registered owner of certain shares for his father's 
 representatives: he was captain of the ship, and entered 
 into a contract with his father" s administrators that he 
 should navigate the ship for twelve months and account for 
 the profits, and at the end of the twelve months sell the 
 shares and account for their proceeds. He sold the ship: 
 
 (g) Hughpg V. Morris, 2 De G. M. & G., 349; (A) Liverpool Borough Bank v. Turner, 1 
 
 S C. 9 Ha. 6^6; McCalmont v. Rankin, 2 De J. & H., 159; 2 De G. F. & J , 502 See, also, 
 
 G. M. & G.. 403, 418; Coombes v. Mansfield, Chapman v. Callie, 9 0. B. N. S., 769 
 
 3 Drew., 193; Duncan v. Tinciall, 13 C. B., (t) Batthyany v. Bouch, 44 L. T. N. S., 177. 
 258. 
 
 ' 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 enacted 
 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 certifi- 
 cate of registiy, and, without it, the vessel is incapable of being registered 
 anew. Laws of the United States, 31st December, 1793, § 14; see Kent's 
 Com., vol. '3; p. lio.
 
 CONTEACTS FOR THE SALE OF SHIPS. 687 
 
 and on the bill filed to enforce the contract, the objection 
 from the merchant shipping acts was overruled. (,/) This 
 case seems to have been thought by other judges open to 
 doubt. (A*) 
 
 § 1539. It is needless to remark that foreign ships>re 
 entirely outside the observations hitherto made. As re- 
 gards contracts for the sale of such ships, or shares in them,. 
 the case of Hart v. Herwig(Z) may usefully be consulted. , ^ 
 
 U) Armstrong v. Armstrong, 21 Beav., 71, (l) L. R. 8 Ch., 860; and see observations 
 78. on this case, supra, § 1L6. 
 
 (k) Parr v. Applebee, 7 De G. M. & G., 585. 
 Combes v. Mansfield, 3 Drew., 193.
 
 688 FRY ON SPECIFIC PERFORMANCE OF CONTRACTS. 
 
 CHAPTER V. 
 
 OF CONTRACTS FOR SEPARATION DEEDS. 
 
 § 1530. It seems clear that a contract providing for the 
 separation of husband and wife at a future time is against 
 public policy, and will not be enforced by the court ; and 
 further that any instrument which provides for a present 
 separation, but also prospectively looks forward to the 
 parties living together again, and then to a future separation, 
 is, so far as it provides for that future separation, equally 
 unenforceable, {a) 
 
 § 1531. The jurisdiction of courts of equity to enforce 
 the specific performance of contracts for present separation, 
 by the execution of proper deeds of separation, was estab- 
 lished in the House of Lords, after a learned argument 
 against it, in the case of Wilson v. Wilson, (&) where Lord 
 Cottenham showed .that the law does not now consider a 
 contract for present separation so contrary to public policy as 
 to make void all arrangements of property arising out of it. 
 
 § 153^. In order to enable the court thus to interfere, 
 there must of course be a valid contract.. It is essential to 
 this that the contract be between persons capable of con- 
 tracting, and therefore, on the ground of a husband's 
 general inability to contract with his wife without the inter- 
 vention of some third jDcrson, it has been supi^osed that a 
 simple contract between them to live separate will not be 
 enforced by the court, (c) 
 
 § 1533. In more than one case, however, Lord Hather- 
 ley has expressed an opinion that a wife suing her husband 
 for a divorce is in a position to contract with him, without 
 the intervention of a trustee, for the abandonment of the 
 suit in consideration of an annuity to be paid by him. {cl) 
 
 (a) See per Lord Eldon in Westmeath v. (c) Hope v. Hope, 22 Beav., 8 De G. M. & 
 
 Salisbury, 5 Bli. N. 8,366,367; Earl of West- G. 731; Wilkes. 3 Dick., 791; Walrond v. 
 
 meath V. Oountess of Westmeath, Jac, 142. Wahond, John. IS. 
 
 Of. Woodgate v. Watson, in C. A., 16th (d) Vansittart v. Vansittart, 4 K. & J., 62; 
 
 November, 1880. Nicholl v. Jones, L. R. 3 Eq.. 696; Gibbs v. 
 
 (6) 1 H. L. C, 538, affirming S. C. 14 Sim., Harding, L. R. 5 Ch., 336, affirming S. C. L. 
 
 405; Fletcher v. Fletcher. 3 Cox. 99; Gibbs R., 8Eq.,490. 
 V. Harding, L. 11. 8 Eq.. 49il; 5 Ch , 336; 
 IJucknell v. Bucknell, 7 Ir. Ch. R., 130.
 
 CONTRACTS FOR SEPARATION DEEDS. 689 
 
 And in the case of Besant v. Wood(d) Jessel, M. R., adopted 
 this view, holding that a married woman must take, as inci- 
 dent to her undoubted right to sue (by a next friend, or 
 even alone), for divorce or restitution of conjugal rights, 
 the right to contract, i. e., to compromise her suit ; that as 
 a necessary corollary to the right to sue, she must have the 
 right to contract not to sue ; and that therefore she can en- 
 ter into a valid and enforceable contract to live separate and 
 ^part from her husband.' 
 
 § 1534. There must also be a good consideration : and as 
 in contracts for separation this is sometimes peculiar, it will 
 be well very briefly to allude to a few of the cases." 
 
 § 1535. 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 :(/) and where the husband had so behaved 
 as that the wife might have obtained a divorce a mensd et 
 thoro, and she agreed, instead of prosecuting her right, to 
 accept maintenance from the husband, this was held a good 
 consideration, {g) A good consideration is also afforded by 
 an engagement by the trustees to indemnify the husband 
 against the wife's debts ;(y^) or even by a covenant to that 
 
 («) L. B. 12 Ch D., 622; cf. Marshall v. Mar- (h) Stephens v. Olive, 2 Bro. C. C, 90; Karl 
 
 shall, 5 P. D., 19. of Westmeath v. Countess of Westmeath. 
 
 (/) Wilson V. Wilson, 1 H. L. C, 538; S. Jac, 126, 141; Elsworthy v. Bird, 2 S. & S . 
 
 €. U Sim., 405. 372. 
 
 {g) Hobbs v. Hull, 1 Cox, 445. 
 
 ' 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 occasion what- 
 ever, enforce articles of separation by decreeing a continuance of the separa- 
 tion. Wilkes V. Wilkes, 2 Dick. R, 791; Worrall v. Jacob, 3 Merriv., 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 separa- 
 tion 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 con- 
 ciliation, set aside articles of separation, however much disposed chancery may 
 be to the adjustment of difficulties of this kind. Therefore, in Heyer v. Bur- 
 ger, 1 Hoff's. 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 days, 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. 
 
 '' A /ewe covert m&,j make a valid agreement with her husband to discontinue 
 a suit against him for separation ; but she cannot make a binding contract with 
 him for separation, except under the sanction of the court. Rogers v Rogers 
 4 Paige, 516. ' 
 
 44
 
 690 FRY ON SPECIFIC PERFORMANCE OF CONTRACTS. 
 
 effect conditional on an annuity, which was agreed to be 
 paid, being secured ;(/) or, as it seems, by a covenant of a 
 third party to pay the husband' s debts. (J ) So, in a contract 
 which provided ior the execution of a separation deed to 
 contain all proper and usual clauses, and also a stipulation 
 that the costs of the deed should be paid by the husband 
 and wife's father in moieties, the court found consideration 
 not only, it appears, in the contract as to the costs, but also 
 in the covenant by the father to indemnify the husband, 
 which seems to have been held to be a usual clause. (A*) 
 
 § 1«>36. In many contracts for separation there have 
 been contained provisions as to the care of the children 
 which have been held to be at variance with the law, and 
 so have formed a bar to the performance of the contract. 
 For the law of England gives to the father the custody and 
 control of his children, and casts on him the duty of caring 
 for them and seeing to their education ; and this duty he 
 can neither renounce nor delegate. {I) 
 
 § 1537. On this ground the following contracts have 
 been held incapable of performance : a contract by the 
 father to allow an infant son to remain under the care of 
 his mother :(m) a contract that the mother should have the 
 children above seven years of age :{)i) and a contract to allow 
 an infant daughter to remain under the control of and to be 
 educated and supported by her mother. (o) But a stipula- 
 tion in a deed that her children should remain at such 
 schools in England as the husband, or such schools else- 
 where as the husband, with the consent of the wife, should 
 from time to time direct, and that the holidays of the chil- 
 dren should be passed by them at such places and in such 
 manner as the trustees should from time to time direct, 
 having regard as far as practicable to the wishes of each of 
 them, the husband and wife, was held by Lord Hatheiiey, 
 reversing the decision of Lord Komilly, M. R., to be 
 reasonable. (^) 
 
 § 1538. An alteration in this branch of the law has 
 recently been effected by statute (36 Vict., c. 12). The 2d 
 
 (i) Wellesley v. Wellesley, 10 Sim., 256. (»») Hope v. Hope. 8 De G. M. & G., 731. 
 
 (j ) Wilson V. Wilson, 1 H. L. C. 538. (n) Vansittart v. Vanslttart, 4 K. & J., 62. 
 
 (k) Gibbs V. Harding, L. R. 8 Eq., 490; 5 (o) Walrond v. Walrocd, John., 18 
 Cii 336 (p) Hamilton V. Hector, L. R. 13 Eq., 511. 
 
 (I) Lord St. John v. Lady St. John, 11 Ves., 6 Ch., 701. 
 525; Lord Weetmeath's case, Jac, 251 n.
 
 CONTRACTS FOE SEPARATION DEEDS. 691 
 
 section of this act enacts that no agreement contained in 
 any separation deed made between the father and mother of 
 an infant or infants shall be lield to be invalid by reason 
 only of its providing that the father of such infant or 
 infants shall give up the custody or control thereof to the 
 mother ; provided always that no court shall enforce any 
 such agreement if the court shall be of the oj^inion that it 
 will not be for the benefit of the infant or infants to give 
 effect thereto. 
 
 § 1539. It will be observed that this enactment apjDlies 
 in terms only to agreements contained in deeds, and not to 
 contracts to execute separation deeds. But as the invalidity 
 of the deed itself is removed, the whole objection to the 
 specific xierformance of the contract falls also. 
 
 § 1540. The questions which arise on specific relief with 
 respect to the stipulations contained in deeds of separation 
 do not, of course, fall within the purview of this treatise, 
 which relates to executory contracts only.
 
 692 FRY ON SPECIFIC PERFORMANCE OF CONTRACTS. 
 
 CHAPTER VI. 
 
 OF CONTRACTS TO COMRPOMISE. 
 
 § 1541. The court will specifically enforce private com- 
 promises of rights in the way in which it will any other 
 contracts ; and, inasmuch as the compromise of a bond fide 
 claim to which a person believes himself to be liable, and of 
 the nature of which he is aware, is a good consideration for 
 a contract, the court, in enforcing the compromise, will not 
 inquire into the validity of the claim on which it is 
 founded, (a) 
 
 § 154S. Where the compromise sought to be enacted re- 
 lated to proceedings in another court, it was manifest that 
 the Court of Chancery could only entertain jurisdiction on 
 a bill filed. (6) But where the primary litigation was also 
 in the Court of Chancery, the question arose whether the 
 compromise could be enforced in the original suit, by an 
 interlocutory proceeding in it, or only by a fresh suit, based 
 on the compromise. 
 
 § 1543. It seems that where the immediate interference 
 of the court was necessary to give effect to the contract, as 
 where a party to the contract was, but for it, liable to an 
 immediate attachment, there the court would to that extent 
 interfere to execute the contract in the original suit.' 
 
 § 1544. Further, there is authority to show that, where 
 all the parties to the compromise were parties to the original 
 suit, and the equity arising out of the compromise was of 
 
 (a) Attwood T. Anon.. 1 Russ., 353. (6) See, for example, Nicholl v. Jones, L. 
 
 • The compromise, to be upheld by a court of equity, must relate to a doubt- 
 ful claim; where the claim is undisputed, payment of a part will not discharge 
 the rest for want of consideration. Blanchard v. Noyes, 3 N. H., 518; Sey- 
 mour V Mintern, 17 John,, 169; Wheeler v. Wheeler, 11 Vt., 60; Geiser v. 
 Kershner, 4 Gill. & Johns., 305; State v. Payson, 37 Me., 361. As to family 
 disputes and settlements, see Gordon v. Gordon, 3 Swanst., 400; Stapleton v. 
 Stapleton, 2 Whart. & Tucker's Eq. Cas., note; Bailey v. Wilson, 1 Dev. & 
 Batt. 183; Price v. Winston, 4 Munf., 63; Waikins v. Watkins, 24 Ga., 412; 
 Fulton V. Smith, 27 id., 413; Smith v. Smith, 36 id., 184; Puller v. Ready, 2 
 Ark., 587; Mercier v. Mercier, 50 Ga., 546. The agreement to settle a family 
 dispute must be final to be enforced; it must silso be complete in itself. John- 
 son V. Johnson, 40 Md., 189; Wister's App., 81) Pa. St., 484.
 
 CONTRACTS TO COMPROMISE. 693 
 
 the same nature as the original equity, as where an account 
 was to be taken alike under the original suit and under the 
 compromise — where the whole matter was before the court, 
 and the acts to be done were simple— there the court might 
 enforce the compromise by interlocutory proceeding in the 
 original suit.(c) 
 
 § 1545- But, before the judicature acts, if not in all 
 other cases, at least in all cases where the contract to com- 
 promise went beyond the ordinary range of the court in the 
 existing suit, or the equity sought to be enforced was 
 different from that on the record, or the contract was dis- 
 puted, or the right to have it enforced in the suit was dis- 
 puted, or the parties were not identical, there the proper 
 course of proceeding was by bill for the specific performance 
 of the contract to compromise. (cZ)' 
 
 § 1546. In the litigation which arose out of the will of 
 Mr. Samuel Swinfen, the mode of enforcing a compromise 
 entered into by counsel was much discussed, as well as the 
 authority of counsel to bind his client to a compromise. 
 The original proceeding was a suit in chancery by the heir 
 of one of the next of kin, for the purpose of securing the 
 testator's real and personal estates whilst proceedings were 
 being taken to set aside the will on the ground of the want 
 of testamentary capacity. The will gave the property to 
 Mrs. Swinfen, the widow of the testator's son. Lord 
 Romilly, M. R., directed an issue demsamt ml non, in 
 which Mrs. Swinfen was plaintiff' and the heir was defend- 
 ant During the trial at Stafford the leading counsel for 
 the plaintiff and for the defendant signed a memorandum of 
 
 ic) Dawson v Newsome, 2 Giflf., 272. The ton, 9 Ha., 65; Richardson v. Eyton, 2 De G. 
 
 Court of CJhancery woul(i not enl'orce a con- M. & G., 79; Pryer v. Gribb.e, L. K. 10 Ch., 
 
 tract for compromise between an infant and 634; which seem to overrule the dictum of 
 
 an adult, there being no mutuality : per Lord Lord Eldon in Kowe v Wood, IJ . & W .,337, 
 
 J^anedale, M R , in Hargrave v. Margrave, and the c.se of Tebbutt v. Potter, 4 Ha., 164. 
 
 12 Heav., 411. See, also, King v. Pinsoneauli, L. R. 6 P. C , 
 
 (rf) Forsvth V. Manton, 5 Mad , 78; Wood 245. 
 V. Rowe, 2 Bli., 595,617; Askew v. Milling- 
 
 ' 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., 406; Taylor v. Patricli, 1 Bibb. 1()8; Fisher v. May. 2 
 id., 448; Mills v. Lee, 6 Monr.. 97; Hoge v. Hoge, 1 Watts; Covode v. M'Kel- 
 vey Addis., 56; O'Keyson v. Barclay, 2 Penn., 531; Mclntire v. Johnson, 4 
 Bibb, 48; Chamberlain v. M'Clurg, 8 Watts & Serg., 31; Moore v. Fitzwater, 
 2 Rand., 442; Bailey v. Wilson, 1 Dev. & Bat.'s Ch., 182. And, therefore, an 
 agreement between a creditor and a third person, founded on a valuable con- 
 sideration, to compromise the claim of the former against his debtor, will be 
 specifically enforced by a court of equity.
 
 694 FRY ON SPECIFIC PERFORMAIS^CE OF CONTRACTS. 
 
 compromise, including a stipulation for a conveyance of the 
 land by the plaintiff at law to the defendant and the pay- 
 ment by the defendant to the plaintiff of an annuity. The 
 memorandum of comiDromise was embodied in an order at 
 Nisi Prius, and afterwards made a rule of the court of com- 
 mon pleas. Mrs. Swinfen declined to perform the contract, 
 as made without her authority and against her wishes, 
 Thereupon a rule nisi for an attachment against her was 
 obtained, but discharged on the ground of want of evidence 
 of demand of performance and refusal, (e) A second ap- 
 plication for an attachment was refused because one of the 
 judges of the court of common pleas doubted the authority 
 of counsel to bind the plaintiff at law.(/) Thereupon the 
 defendant. at law and original plaintiff in equity filed a 
 supplemental bill for the specific performance of the con- 
 tract, or in the alternative that another issue demsai)it vel 
 non might be directed. This bill was dismissed by Lord 
 Romilly, M. R., without costs, on the ground of want of 
 authority of counsel :(,.7) and this decision was affirmed by 
 Knight Bruce and Turner, L. J. J.,(/0 on the ground that, 
 even if the plaintiff at law was bound at law, the contract 
 was not one of which, under the circumstances, specific per- 
 formance should be decreed. Mrs. Swinfen subsequently 
 brought an action ag'ainst her leading counsel (then Lord 
 Chelmsford) for damages, but failed. (/) 
 
 § 1547. The judicature act, 1873, has introduced a great 
 improvement in this practice. By section 24, sub-section 7, 
 the court has in every cause power to grant all such 
 remedies whatsoever as any of the parties may appear to be 
 entitled to in respect of any claim properly brought forward 
 by them in such cause ; so that as far as possible all matters 
 so in controversy 'between the parties may be completely 
 and finally determined. Accordingly it has been decided 
 that the court has jurisdiction to stay all further proceed- 
 ings in the action compromised, in cases in which an in- 
 dependent suit would probably have previously been 
 necessary, (y) 
 
 (e) Swinfen v Swinfen, 18 C. B., 485, (i) Swinfen v Lord Chelmsford, 5 H. & N., 
 
 (/) S. C. 1 C B. N. S., 3(;4 890. 
 
 (fir) Swinfen V. Swinfen, 24 Beav., 549. (j) Compare Eden v. Naish, 7 Ch. 1)., 781, 
 
 (A) S. C. 2 De G. & J., 381. Cf. HoU v. an<l Scully v. Lord Dundonald, 8 Ch. D., 658, 
 
 Jesee, 3Ch. D., 177; Davis v. Davis, 13 Ch. with Pryer v. Gribble, L. R. 10 Ch , 540. 
 
 D., 861. Distinguish Gilbert v Endean, 9 Ch. D , 
 
 259, and cf. Davis v. Davie, 13 Ch. D., 861.
 
 AWAKDS. 695 
 
 CHAPTER VII. 
 
 OF AWAKDS. 
 
 § 1548. The Court of Chancery, in many cases, 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 ;(a) but not, it would seem, awards simply to pay 
 money. (Z>) The court thus decreed their performance "be- 
 cause," to use Lord Eldon's language, " the award sux3poses 
 an agreement between the parties, and contains no more 
 than the terms of that agreement ascertained by a third 
 person. "( 6*)' 
 
 § 1549. Lord Hardwicke(r7) seems to have laid it down 
 that a bill to carry an award into execution, where there 
 
 (rt) Norton v. Mascall, 2 Verne., 24; Hall v. per Turner, L. J., in Nickels v Hancock, 7 
 
 Hardy, 3 P. Wms., Is7; Walters v. Morgan, De G. M. & a., 300. 
 
 H Cox. 369. (d) Thompson v. Noel, 1 Atk., 60, and see 
 
 (6) Note of reporter, 3 P. Wnis., 190. other cases cited in Russell on Awards (5th 
 
 (c) In Wood V. (iriflith, 1 Sw., 54; see also ed.), 548 et seq. 
 
 ' Courts of equity will geaerally decree the specific pevformance 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 submis- 
 sion, and that most, if not all, of the principles regulating specific performance 
 are applicable. If, therefore, the arbitrator exceeds his authority, or does not 
 decide all the matters submitted to him, or decide 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. 
 JSickels V Hancock, 35 Eng Law and Eq., 'Sij'S; McNeil v. Magee, 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 coin- 
 cide with that of England. Turpin v. Banton, Hardin, 312; Storv v. Norwich 
 and Worcester R. R. Co., 2 Conn., 94; Babier v. Babier, 24 Maine, 42. But 
 in Wood, 2 P. & H. (Va j, 442, it is said that a court of equity has jurisdiction 
 to enforce specific execution of an award concerning real estate, or of an agree- 
 ment for the purchase and sale of real estate, notwithstanding that it involves 
 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 monej'. 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 R. R. Co., 24 Conn., 94; Vie'le v. Troy and Boston 
 R R. Co., 21 Barb., 381..
 
 696 FRY ON SPECIFIC PERFORMANCE OF CONTRACTS. 
 
 was no acquiescence in it by the parties to the submission^ 
 or contract by them afterwards to have it executed, would 
 not lie. But, as we have seen, subsequent cases established 
 that the jurisdiction was not subject to these restrictions. 
 
 § 15^0. The fact that the submission had been made a 
 rule of the common law court created no impediment to its 
 specific performance by the Court of Chancery, (e) though it 
 would have been otherwise in a suit to set it aside. (/) 
 
 § 1551. There is an old case in which the Court of Chan- 
 cery specifically enforced an award not binding by form of 
 law.(^) But, in Blundell v. Brettargh,(7i) 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 purpose of carrying into 
 effect the contract for an award, were not valid at law, as to 
 the time, manner or other circumstances, unless in the cases 
 of acquiescence or part performance: and accordingly in 
 the case before him he refused specific performance of a 
 contract to sell at a valuation, which, on the construction 
 of the contract, the court held was to be made during the 
 lives of the parties, one of them having died before the 
 award was made.' 
 
 § 155^. It is, however, plain that by mutual abandon- 
 ment of some provision of the submission, as e. ^., that 
 limiting the time for the award, the defendant may be pre- 
 cluded from raising in a court of equity an objection which 
 might otherwise prevail. (i) 
 
 § 1553. The objection arising from unreasonableness, not 
 of the submission but of the award itself, the court is not 
 willing to entertain ; for the arbitrators being judges of the 
 parties' own choosing, it has been held that the award can- 
 not be objected to by either of the parties, on the ground of 
 its being unreasonable. (,/) This principle was stated and 
 
 (e) Wood V. Griffith. 1 Sw., 43; Hawks- strictly one of arbitration and award, but 
 
 worth V. Bramhall, 5 My. & Cr., 281 ; Black- rather of contract to sell at a valuation. See 
 
 ettv. Kates. 2 H. & M , 270, 610; reversed, on Kinneen v Persse, 7 Ir Cli. R., 438. 
 
 point, L R. 1 Ch., 117. (i) Hawksworth v. Brammall, 5 My. & Cr.,, 
 
 (/) Auriol V. Smith, T. & R., 121. 281. 
 
 (</) Norton V. Mascall, 2 Vern., 24. {j) Per Lord Hardwicke in Ives v. Met- 
 
 (h) 17 Ves., 232, 241. This case was not calfe, 1 Atk., 64. 
 
 ' Although an award, to be specifically enforced, must be binding by form of 
 law, yet, if legally void by an apparent non-compliance with the terms of sub- 
 mission, caused by a mere clerical error, it will be enforced in equity, unless its 
 performance would work injustice. Buys v. Eberhardt, 8 Mich. (Gibbs), 524.
 
 AWAKDS. 69T 
 
 acted on by Lord Eldon in Wood v. Griffith, (^) where his 
 lordsliip enforced the specific performance of an award 
 which ordered the sale of an estate under circumstances- 
 whicli greatly depreciated its value. 
 
 § 1554. Where, on the other hand, the award is more^ 
 than unreasonable,— where the award is in excess of the 
 authority given to the arbitrator, the court, of course, re- 
 fuses to enforce it. In a case that came before Knight 
 Bruce and Turner, L. JJ., the award was objected to as un- 
 reasonable, but it was contended on the other side that the 
 cjurt could not entertain the objection. Turner, L. J., after 
 expressing his dissent from the observations of Lord Eldon 
 in Wood V. Griffith, (Z) said, "If it be a fair subject of dis- 
 cussion and consideration, whether one course or another 
 course be the right one to be taken by parties who have 
 submitted their differences 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 that 
 question must decide the point. But here the Judgment of 
 the arbitrator goes to the length of destroying the right of 
 one of the parties to the agreement, though the parties 
 never authorized Mr. Carpmael to decide that any one of 
 them had no right, and sliould acquire no interest in the 
 subject in dispute, but only agreed that he should deter- 
 mine the mode in which 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 unreasonable- 
 ness, that point alone would be sufficient to decide it.'\m) 
 
 § 1555. 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 per- 
 formance of contracts, it follows that many, if not all, the- 
 principles applicable to ordinary actions of that nature must 
 apply, (tz) 
 
 § 1556. AVhere, therefore, the contract contained in the 
 submission is such in its character as, whether from the un- 
 reasonableness, unfairness or imprudence, the court would 
 not specifically enforce, this will prevent its interference in 
 respect of the award founded on it.(o) 
 
 (k) 1 Sw., 43. See supra, f 400. (n) Nickels v. Hancock, 7 De G. M. & G ,. 
 
 (i) 1 Sw., 43. 300. 
 
 (m) Nickels v. Hancock, 7 De G. M. & G., (o) S. C. See lupra, J 400. 
 32S.
 
 698 FRY ox SPECIFIC PERFORMANCE OF CONTRACTS. 
 
 § 1557. Nor can the court interfere where the award is 
 excessive or defective : not if it be excessive, for so far the 
 arbitrator has gone beyond his authority, and there is no 
 binding contract between the parties : not if it be defective, 
 because the parties had contracted to be bound by his de- 
 cision on the whole, and not on part of the matters submit- 
 ted to him.(;?) 
 
 § 1558. In a case where the submission was of all mat- 
 ters in difference, and the defendant omitted to submit ques- 
 tions which he alleged ought to have been decided, he was 
 naturally held to be precluded from so doing by the course 
 which he himself had pursued. (§') 
 
 § 1559. AYhere the award is uncertain on its face, a^nd 
 that uncertainty is not removed by the arbitrator' s evidence, 
 the court refuses specific performance of the contract, though 
 the plaintiff may waive all claims beyond the award as con- 
 strued against him.(r) 
 
 § 1560. Where the plaintiff has first sought to set the 
 award aside, it is doubtful whether he can afterwards turn 
 round and maintain an action for th^ specific performance 
 of it, especially where there has been a considerable lapse 
 of time. (5) 
 
 § 1561. The cases which have arisen of misconduct or 
 inipropriety of conduct on the part of persons appointed to 
 value a rent, or the amount of purchase-money, throw light 
 on^the way in which the court would regard like miscon- 
 duct on the part of persons more accurately described as 
 arbitrators. (?J) 
 
 ip) Nickels v. Hancock, 7 De G. M. & G., (s) Blackett v. Bates, L R. 1 Ch., 117, re- 
 
 3'JC!; WabefleW v. Llanelly Railway and Dock versing S C. 2 H. & M , 2/0, 610. 
 
 Co 3DeG J &S 11 i^) See Emery v. Wase, 8Ves., 50o; Chi- 
 
 (g) Hawk'sworth V. Brammall. 5 My. & Cr,, Chester v. Mclntyre, 4 Bit N. S., 78: I'arken 
 
 ogi' V. Woitby, T. & R., 306: Ormes v. Beadel, 2 
 
 " (r) Wakefield v. Llanelly Railway and Gifl., 166, 2 De G. F. & J., 333. 
 Dock Co., De G. 9. & S., 11.
 
 CONTRACTS TO REFER TO ARBITRATION. 699 
 
 CHAPTER VIII. 
 
 OF CONTRACTS TO REFER TO ARBITRATION. 
 
 § 1562. With regard to contracts to refer to arbitration, 
 it is clear tliat tlie coi»rt will not entertain actions for their 
 specific performance," a principle in the first place, it seems, 
 acted upon by Lord* Thiirlow in a case of Price v. AVil- 
 liams,(a) and which has been since well established, (^) In 
 one case Knight Bruce, and Turner, L. J. J., upon this 
 amongst other grounds, refused to compel the specific exe- 
 cution of a bond to refer to arbitration, (c) 
 
 § 1563. In like manner we have seen that, where there 
 is a contract to buy at a price to be fixed by persons to be 
 named, the court can neither compel a defendant to name a 
 valuer, nor compel a valuer to value, nor compel the defend- 
 ant to sell at any other value. (rZ) 
 
 § 1504. There is, however, a case before L^^ach, Y. C, 
 somewhat briefly reported as to its circumstances, in which, 
 the vendor refusing to permit the referees to come upon the 
 land, the court compelled him to permit the valuation, (d)' 
 
 (rt) Referred to ill 6 Ves . SIS. De G. M &G.,8sO. 
 
 (b) Street V. liigby, 6 Ves., 815; per Grant, {d) Wilks v. Davis, 3 Mer., 507; Darbey v. 
 M R , in Gourlay v l>iike of Somerset, 19 Whitaker, 4 Drew , 134; Vickers v. Vickers, 
 Ve^.,429; A ear v MacUlew, 2 8. & s.,418; L. R. 4 Eq., .'5'29; supra, § 338 et seq. 
 Gervais V Ed«a.<ls, 2 Dr. & War , 80. See (e) Morse, v. Merest, 6 Mad., 26. See too 
 too Kussell on awards (.^th ed.), C3 et seq. supra, § 1125. 
 
 (c) South Wales Railway Co. v. Wytlies, 5 
 
 1 It is well established that these agreements will not be enforced. And it 
 has been said that courts of equity never decree the specific performance of 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 i^ 800; see, also, Connor v. Drake, 1 Ohio St. R., 166. 
 
 2 Connor v. Drake, 1 Ohio St., 166; Tobey v County of Bristol, 3 Story, 
 800- Nnyes v. Marsh, 123 Mass., 286 The court will determine what is a fair 
 value. Dunnell v. Ketletas, 16 Abb. Pr., 205. The lease made it optional 
 with the lessor to pay for improvements to be valued by arbitrators, or to renew 
 the lease; he refused to do either. Held, that although specific performance 
 could not be decreed, yet as the court had acquired jurisdiction it would award 
 compensation for the value of the improvements. Hopkins v. Oilman, 22 
 Wis., 476. 
 
 TJie award of arbitrators %oiU he enforced.'\ Specific performance of an award 
 of arbitrators will be enforced; e.g., that land be conveyed, a boundary line 
 adopted, securities assigned, or a lease be renewed at a fixed rent; this is true, 
 although the award has not been made the order of the court, and although the 
 agreement for arbitration names a penalty, which the losing party offers to 
 pay. Whitney v. Stone, 23 Cal., 275. An award supposes an agreement
 
 700 FRY ON SPECIFIC PERFORMANCE OF CONTRACTS. 
 
 § 15^5. Tliougli the court will thus refuse specifically to 
 enforce references to arbitration, an inequitable refusal of a 
 plaintiff 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 ad- 
 vances, the amount of which was to be settled by arbitra- 
 tion, and the arbitrator died before the award was made ; 
 in a suit seeking the reconveyance of "the property, Alder- 
 son, B., held that the contract between the parties was com- 
 posed of tw^o distinct parts — the first 'admitting that some 
 balance was due to the solicitor, and the second, a contract 
 for a specific mode of ascertaining that balance ; that the 
 latter part alone had failed ; that the former jmrt remained 
 entire, and that the court would not decree a reconveyance 
 without the plaintiff's consenting to do equity by having 
 the accounts taken by the master. (/) 
 
 § 1*166. Moreover, under the common law procedure 
 act, 1854 (17 & 18 Vict., c. 125, s. 11), where any parties to 
 any instrument in writing thereafter made or executed 
 agree to refer any past or future differences to arbitration, 
 and any party so agreeing, or any person claiming under 
 such party, nevertheless commences any action against the 
 other party or parties, or any of them, or against any per- 
 son claiming under him or them in respect of any of the 
 matters so to be referred, the court or a judge, on applica- 
 
 (/) Cheslyn v. Dalby, 2 Y. & C. Ex., 170. 
 
 between the parties, and contains no more than the terms of that agreement 
 ascertained by a third person. Penniman v. Rodman, 13 Mete, 382; Thomp- 
 son v. Deans' 6 .Jones' Eq., 22. Where the award is valid, both parties are 
 concluded by it, and the validity of the partition cannot be drawn in question.- 
 Emans V. Emaus, 14 N J. Eq., 114. Specific perlormance of an award will 
 be decreed where the petitioner cannot obtain, by a verdict, all that it was the 
 object of the award to give him Kirksey v. Fike, 27 Ala., 3^2; Jones v. Bla- 
 lock, 31 Ala., 180. But an award will not be supported, merely for the pay- 
 ment of money, which can be recovered at law. or by the ordinaiy proceedings 
 upon the award. Turpin v. Banton, Hardin (Ky.), 312; Howe v. Nickerson, 
 14 Allen, 400; Babier v. Babier, 24 Me., 42; contra, see Wood v. Shepherd, 2 
 Patton & Heath (Va.), 442. 
 
 Discretion as to awards.] The court will exercise a sound discretion in the 
 enforcement of awards, and equity will not interfere when objections to the 
 enforcing of an award appear upon its face, or otherwise. Backus' Appeal, 58 
 Pa. St., 186. 
 
 Lieu of an award.'] Where the amount tixed by an award is to be a lien 
 upon property, the lien attaches upon the making of the award and furnishes 
 an element of equity jurisdiction. Memphis and Charl. R. R. Co. v. Scruggs, 
 50 Miss., 284; see Overbee v. Thrasher, 47 Ga., 10.
 
 CONTRACTS TO KEFER TO ARBITRATION. 701 
 
 tioii by the defendant or defendants, or any of them, after 
 appearance and before pleading, upon being satisfied that 
 no sufficient reason exists why such matters cannot be or 
 ought not to be referred to arbitration according to the 
 agreement, and that the defendant was, at the time of bring- 
 ing the action, and still is, ready and willing to join in all 
 necessary and proper acts for causing such matters to be 
 decided by arbitration, may stay all proceedings in the ac- 
 tion on such terms as to the court or judge may seem fit. 
 Under this enactment orders have been made which have 
 indirectly the effect of compelling the plaintiff specifically 
 to perform the contract to refer to arbitration. (<7). 
 
 (flf) For cases under this section in the Court Gillett v. Thornton. L. R., 19 id., 599; New- 
 
 of Chancery and in the Chancery Division, ton v. Taylor, id., 14; Law v. Garrett, 8 Ch. 
 
 see Willesford v. Watson, L R. 14 Eq., 572; D., 26. 
 S Ch., 473; Plews v. Baker, L. R 16 Eq., 564;
 
 702 FRY ON SPECIFIC PERFORMANCE OF CONTRACTS. 
 
 CHAPTER IX. 
 
 OF CONTRACTS NOT TO APPLY TO PARLIAMENT. 
 
 § liiHT. The court lias not infrequently been asked to 
 enforce the specilic performance of a contract not to apply 
 to Parliament, by means of an injunction restraining such 
 ai:)l)lication. 
 
 § 1508. It is perfectly clear that a Court of Equity has 
 power, upon a proper case being made out, to enjoin a per- 
 son from petitioning Parliament ; for the court merely acts 
 m personam, and does not therefore in any way interfere 
 with the proceedings of Parliament \{a) but what is a proper 
 case for this interference of the court is a question of con- 
 siderable difficulty. It^ has even been said that it is diffi- 
 cult to conceive or define what are the cases in which it 
 would be proper for the court to exercise its undoubted 
 power of restraining any person from making an improper 
 ai)ijlication to Parliament. (^) 
 
 g 1500. The mere fact that the intended application 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. (c) Nor will the court interfere, even where for the 
 j)rotection of private interests a contract 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 jjolicy, of which Parliament can judge, 
 but a court of equity cannot. (cZ) This seems to apj^ly to 
 all cases in which the application is in soliciting a bill ; for 
 in all such cases grounds of a 2:>ublic nature may be urged. 
 
 § 1570. Accordingly, in a case where the defendant com- 
 pany contracted with the plaintiff company not to make 
 
 (a) AVare v. Grand .Tunction AVaterworks See, too, Steele v. North Metropolitan Rail- 
 Co., 2 R & My, 470, 483; Heathcote v. North way Co., L R. i Ch., 237. 
 Staffordbhire Railway Lo., 2 Mac. & G., 100; (c) Heathcote v. North Staffordshire Rail- 
 Lancaster and Carlisle Railway Co v. North- way < o, 2 Mac. & G , HO. 
 Western Railway Co , 2 K. & J., 293. See (tit) Lancaster and Carlisle Railway Co. f. 
 also, Att'y-Gen. v. Manchester and Leeds Northwestern Railway Co., 2 K. <fc J., 293. 
 Railway Co., 1 Rail. C , 486. .■?ee, too, per Bacon, V. C, in Telford v. Met- 
 
 (6) Re London, Chatham and Dover Rail- ropolitan lioard ol Works, L. R. 13 Eq , 594. 
 ■way Arrangement Act, L. R. 5 Ch,. 671, 679.
 
 CONTRACTS NOT TO APPLY TO PARLIAMENT. 703 
 
 any line connecting their respective railways, 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 previously done) the ap- 
 plication of the defendants for the last-mentioned line, and 
 the plaintiffs j)erformed their part of the contract, and the 
 defendants' application was successful, the court, neverthe- 
 less refused to restrain the defendants from applying to 
 Parliament in contravention of their contract, considering 
 that such an application, if successful, would be so on pub- 
 lic grounds, of which the court could not judge, and that, 
 if it were rejected, the breach of the contract, if a legal one, 
 might be compensated for in damages, (e) 
 
 § 1571. The only case, therefore, in which the court 
 would interfere apjoears to be when the applicant is acting 
 on private grounds only. "It might well be conceived," 
 said Lord Hatherley (then Wood, V. C.) in one case, "that 
 where a tenant for life had stipulated that he would not 
 apply for a private act, he might be restrained from so 
 doing. "^^ ^' * If a man had made an agreement to buy 
 a house or field, and afterwards found the agreement incon- 
 venient, and wished to apply to Parliament to set it aside, 
 that possibly might be a case in which the court would 
 interfere, and say that this not being a matter of public 
 policy, the man should not make the application. "(/') 
 
 {€) Lancaster and Carlisle Railway Co. v. (/) Steele v. North Metropolitan Tramway 
 Northwestern Railway Co., 2 K. & J., 293. Co., L. K. 2 Ch. 238 n.
 
 704 FRY ox SPECIFIC PERFORMANCE OF CONTRACTS. 
 
 CHAPTER X. 
 
 OF CONTRACTS TO INDEMNIFY. 
 
 § 157^1. Agreements for indemnity, whether taking the 
 form of a covenant or of .an executory contract, appear 
 equally to attract the jurisdiction of the court by way of 
 specific relief, (a) All or most of the reported cases appear 
 to be on executed contracts. 
 
 § 1573. A contract by A. to indemnify B. against a pay- 
 ment is not broken till the payment has been made: and 
 when made by B., he might, before the judicature acts, 
 have recovered the amount paid by an action at law, and 
 have obtained in that way all that he needed. 
 
 But where the contract by A. is to indemnify B. against 
 all claims and demands of C, there is a breach so soon as 
 C. makes the claim, (&) and B. may here usefully invoke the 
 ^id of a court of equity to compel A. to satisfy his demand 
 to the relief of B., and thus specifically to perform the con- 
 tract : and accordingly, in such cases, the Court of Chancery 
 entertained jurisdiction. 
 
 § 1374. In the case of Ranelaugh v. Hayes (c) the plain- 
 tiff assigned certain shares to the defendant, and the defend- 
 ant covenanted with the plaintiff to indemnify him against 
 (amongst other things) all demands in respect of the shares : 
 the plaintiff was prosecuted for a demand by the crown, 
 and accordingly prayed specific performance, which was 
 granted. The decree extended not only to the claim then 
 advanced but to future demands, and directed the master, 
 toties quoties any breach should happen, to report it to the 
 court. It is conceived that such a judgment could not now 
 be pronounced as regards future and repeated acts.((^) 
 
 § 157o. In a much more recent case, company A assigned 
 its business to company B, and company B covenanted with 
 company A that the shareholders of company A should, out 
 
 (a) See per Kindersley, V. C, in London v. Young, 3 B. & Al., 521; Penny v. Foy, 8 
 
 and South- Western Railway Co. v. Humph- B. & C, 11. 
 
 rey, 6 W. R., 784. (c) 1 Vern., 189. 
 
 (6) Warwick v. Richardson, 10 M. & W., {d) See Lloyd v. Dimmack, 7 Ch. D., 398 
 284; Carr v. Roberts, 5 B. & Ad., 78; Taylor
 
 CONTRACTS TO IXDEilNIFY. 705 
 
 of tlie funds of company B, be indemnified against all lia- 
 bilities in respect of company A. Actions and suits were 
 instituted by various persons against company A in respect 
 of claims against which the indemnity had been given, and 
 these were not paid by company B. Company A thereupon 
 sued for and obtained a declaration of the liability of com- 
 pany B to perform their indemnity, (e) 
 
 (e) Anglo-Australian, etc., Co. v. British Provident, etc., Society, 3 Giff.. 521; 4 De G. 
 
 F. & J., 341. See, also. Story Eq. Jur., § 850. 
 
 45
 
 ADDITIONAL NOTE. 707 
 
 ADDITIONAL NOTE. 
 
 The iDeculiarly Englisli cliaracter of the jurisdiction in spe- 
 cific performance, has been adverted to above (page 3, § 6). 
 The fact that no such jurisdiction existed in the Roman 
 law, or exists (for instance) in the law of France, ai)pears 
 remarkable : and the following further information with re- 
 gard to the French law may not be uninteresting. The 
 clauses of the Code Civil which bear upon the point are 
 the following : 
 
 " 1142. Toute obligation de faire ou de ne pas faire se resout en 
 dommages et interets, en cas d'inexecution de la part du debiteur. 
 
 " 1143. Neanmoins le creancier a le droit de demander que ce qui 
 aurait ete fait par contravention a I'engagement soit detruit; et il 
 peut se faire autoriser a le detruire aux depens du debiteur, sans 
 pr^'judice des dommages et interets, s'il y a lieu. 
 
 " 1144, Le creancier peut aussi, en cas d'inexecution, etre autorise 
 a faii'e executer lui-meme I'obligation aux depens du debiteur." 
 
 Through the kindness of Professor Holland, of Oxford, I 
 have received the following note explanatory of the subject 
 from M. Renault, Advocate and Professor of Law at Paris : 
 
 " Le debiteur peut-il etre tenu a une execution en nature (specific 
 performance), ou peut-il etre seulement condamne a des dommages- 
 interets ? 
 
 "Les principes sont poses dans les articles 1142, 1143, et 1144, du 
 Code Civil. Ces trois articles doivent etre combines, et il en resulte 
 une doctrine qui peut etre resumee de la maniere suivante : 
 
 "La formule de I'art. 1142 est trop geuerale : ce n'est pas toute 
 obligation de faire ou de ne pas faire que se resout necessairement 
 en dommages-interets, c'est celle dont I'execution effective est im- 
 possible par voie de contrainte; parce que cette execution forcee ne 
 pourrait etre obtenue sans porter atteinte a la liberte individuelle 
 du debiteur, sans exercer une pression materielle sur sa personne. 
 Ainsi un acteur a promis a un directeur de chanter sur son theatre, 
 ou, au contraire, de ne pas paraitre sur une sc6ne rivale ; s'il refuse 
 de tenir ses engagements, le creancier ne pourrait obtenir I'execution
 
 708 FEY ON SPECIFIC PERFORMANCE OF CONTRACTS. 
 
 effective sans Gtre autorise a exercer sur la personue de son debiteur 
 des violences physiques pour I'amener de force sur son theatre, ou 
 pour IV'carter du theatre rival. Ces violences, cette contrainte 
 physique dont les resultats ne pourraient etre que fort imparfaits, 
 sont contraires a I'esprit et an texte de toute notre legislation, et 
 c'est dans ces cas-lu que I'obligation se resout necessairement en 
 dommages-interets. 
 
 " Un proprietaire a promis a son voisin d'abattre des abres qu'il 
 a sur son propre terrain, et qui font obstacle a la vue de ce voisin. 
 Si, se repentant de cette promesse, et dispose a faire de grands sac- 
 rifices d'argent pour conserver ses arbres, le debiteur refuse d'exe- 
 cuter son obligation, le creancier pourra ne pas se contenter des 
 dommages-interets ; il obtiendra I'autorisation d'entrer sur le fond 
 de son debiteur, et de faire abattre les arbres, 
 
 "Pour les details, voir le Repertoire de Dalloz, 33"' volume, au 
 mot Obligation, § 702 et suivant. Pothier, Traite des Obligations, 
 N° 146 et suivant. 
 
 It is curious to observe the contrast presented by the 
 English and French laws on this subject. The English is 
 more careful of the observance of contracts : less anxious 
 for the liberty of the subject. The French law is more care- 
 ful of liberty ; less solicitous of the i^erformance of obliga- 
 tion. The same jealousy for the liberty of the subject which 
 limits the jurisdiction in France, was urged in the Common 
 Law Courts against specific performance in chancery. (See 
 
 supra, p. 8, § 20.) 
 
 hi. c .
 
 INDEX. 
 
 ABANDONMENT: pase. 
 
 of contract 495, 537 n. 
 
 delay amounting to 524 
 
 evidtence of 524 
 
 {And see Bescission, Waiver.) 
 
 ABATEMENT: 
 
 mode of calculation of 589 
 
 purchase-monej', from 577, 586, 589 
 
 purchaser's right to enforce contract with 584 
 
 rent, of 496, 499, 589 
 
 (And see Compensation.) 
 
 ABSTRACT OF TITLE: 
 
 condition for delivery of 643 
 
 effect of non-delivery of 526, 643 
 
 examination of, after time for completion 583 
 
 inquiry as to perfectness of 625 
 
 perfect, 631 
 
 retaining, without making objections 618 
 
 TIME {q, V.) for delivery of 516 
 
 verification of 633 
 
 when complete 680, 631 
 
 who must prepare 479 n. 
 
 ACCEPTANCE: 
 
 acts, by ? 144, 150, 617 ei seg. 
 
 agent, by letter of 250 
 
 by agent, binds principal 145 n. 
 
 of proposer, communicated to 145 
 
 ambiguous 133 
 
 communicated, must be 139, 145 
 
 conditional 133, 135, 248 
 
 constituting contract 132 
 
 delay, without 139 
 
 essentials of 132 
 
 executing transfer, by 581 
 
 expression of hope, with 138 
 
 formal contract, referring to 138, 249
 
 710 INDEX. 
 
 ACCEPTANCE— (7on<jVi?/ed. page. 
 
 goods, of 284 
 
 inclosure, referring to 249 
 
 indulgence, granting • 138 
 
 inferred after explicit refusal • • • 143 n. 
 
 institution of action, by 142 
 
 marriage, evidenced by 150 
 
 name of purchaser, of 670 
 
 of terms 132 ?i., 130 n. 
 
 new term, introducing 136 
 
 what is not 138 
 
 no privity, where 102 
 
 not receive 144 
 
 nugatory variation, with 138 
 
 parol 143 
 
 PART PERFORMANCE {q, V.) by 151 
 
 plain 133 
 
 posting letter, by 145 
 
 promise of representation {q. v.) by acting on 14G 
 
 RETRACTATION {q. V.) before 134 
 
 subject to title being approved 137, 248 n. 
 
 terms of head-lease, of 170 
 
 TITLE (q. v.), of 617 
 
 unconditional 135 
 
 unequivocal 133 
 
 WITHDRAWAL {q. V.) before 140 
 
 without variance from offer 136 
 
 written 143 
 
 {And see Proposal.) 
 ACCIDENT: 
 
 delay arising from • 642 
 
 ACQUIESCENCE: 
 
 breach of covenant, in 528 
 
 corporation, by 235 
 
 notice of refusal to perform, in 529 
 
 of both parties in non-completion 619 
 
 payments and possession not amounting to 532 
 
 self-deception of buyer, in . . . .- 343 
 
 variance from prescribed mode of renewal, in 196 
 
 vendor's proceedings for getting-in estate, in 626 
 
 ACREAGE: 
 
 abatement for deficiency of, refused ■ 591 
 
 proportioned to 589 
 
 compensation after conveyance for deficiency of 595 
 
 ACT OF GOD: 
 
 alternative rendered impossible by 486 
 
 delay arising from 643 
 
 earthquake 449 n. 
 
 restoration precluded by 857
 
 IISTDEX. 711 
 
 ACTION: PAGE. 
 
 on the case 7 
 
 equity creates no right of 13 n. 
 
 ACTS IN CONTRAVENTION OF THE CONTRACT: 
 
 conduct inconsistent with condition of sale, by 473 
 
 defense, a 467 
 
 evidence of agreement to rescind 467 
 
 forfeiture, which would have worked 467 
 
 gross and willful 468, 470 
 
 LEASE {q. V.) under contract for 467 et seq. 
 
 {And see Covenant.) 
 
 notice of intention to resell 473 
 
 railway company, by 473 
 
 repair, in respect of covenants to 467 
 
 small breaches of good faith, in cases of 473 
 
 waste 468 
 
 ACTS OF OWNERSHIP: 
 
 acceptance of title worked by 618 
 
 affecting vendor's lien 618 
 
 before knowledge of objection to title 618 
 
 not stated in the bill 657 
 
 PAYMENT INTO COURT {q V.) On the ground of 618, 656, 657 
 
 receiver, justifying order for 618 
 
 waiver of objections worked by 617 
 
 ACTOR: 
 
 contract by 412, 413 
 
 ADMISSION: 
 
 against himself, by plaintiff 305 
 
 date of lease, as to 472 
 
 death of party after making 275 
 
 evidence not required after 303 
 
 executors, by 275 
 
 mere, of contract 267 
 
 pleadings, in 274, 615, 616 
 
 surviving contractor, by 275 
 
 title, of 274, 654 
 
 administrator does not guaranty title at sale 451 m. 
 
 ADOPTION: 
 
 of contract by third party 156 
 
 ADVOWSON : 
 
 contract for 343, 584, 589 
 
 injunction in relation to sale of 549 
 
 AGENCY: 
 
 contracts of 45 
 
 direct evidence of 259, 259 n., 262 n. 
 
 fact, a question of 265 
 
 inference of 259 
 
 issue to try question of 265
 
 712 INDEX. 
 
 AG'ENCY— Continued. paqb. 
 not proved 117 
 
 REPRESENTATION (q. V.) of 25^ 
 
 AGENT: 
 
 act of, the act of principal 115, 145 n. 
 
 appointment of 259, 318, 258 n. 
 
 AUCTIONEER {cj. V.) 119, 120, 262 et seq. 
 
 authority of 115, 257, 114 n. 
 
 breach of duty by 192 
 
 claiming to have contracted for his own benefit 117 
 
 clerk of 264 
 
 communication of acceptance to 144 
 
 concealment by 331 
 
 contract purporting to be signed by 257 
 
 contracting as agent 113 
 
 principal 113 
 
 Crown, for the 117 
 
 delegation of authority by 264 
 
 director 118 
 
 FRAiiD (q.v.)hj 349, 350, 336 ?i 
 
 INCAPACITY (q. V.) of, to perform contract 118, 119 
 
 interest in the property, claiming 118, 119 
 
 married woman, professing to contract for 262 
 
 MISREPRESENTATION (g. V.) by 318, 319, 320 
 
 to 336 
 
 mistake by 360 et seq. 
 
 nominee • 117 
 
 not necessarily party, where 117 
 
 personal qualities relied on, where 113 
 
 pledge of goods by, after revocation of authority 265 
 
 principal sued with 117, 119 
 
 without 118 
 
 promoter 110 
 
 proper party, where 118 
 
 question whether contractor is, where 117 
 
 RATIFICATION (q. V.) of Contract of 262, 258 n. 
 
 revocation of authority of, by death of principal 265 
 
 proved by parol 265 
 
 signature, rendered liable by 118, 258 n. 
 
 SOLICITOR {q. V.) 264 
 
 specific performance, where sued for 118 
 
 stakeholder of deposit 119 
 
 suing as principal 93, 94, 95 
 
 at Common Law without principal 118 
 
 in Chancery 118 
 
 telegraph clerk 265 
 
 ULTRA VIRES {q. V.), where there is a question of 235 
 
 unnamed principal, of 117 
 
 unassignable, where contract is 117 
 
 woods and forests, commissioners of 117 
 
 AGKEEMENT : (See Contract.)
 
 Ij^^dex. 713 
 
 ALTERNATIVE : page. 
 
 claims : T8, 6G0, 662 
 
 contract 418, 600 
 
 impossibility of one 486 e< seq. 
 
 relief 48, 505, 662 
 
 AMALGAMATION: 
 
 companies, its effect on contracts of 105, 484, 486 
 
 contract for 410 
 
 AMBIGUITY : 
 
 C0NDITI01S7S OF SALE {q. V.), in 561 et seq . 
 
 latent, in writing used for rectification of deed 379 
 
 vendor's statements, in '. 327 
 
 ANCIENT LAW: 
 
 as to contracts 3 
 
 ANNUITY: 
 
 arrears of -^ 451 
 
 coNSiDEKATiON {q. V.), where part of 210 
 
 contract for 97, 156, 449 
 
 lives to be named, for 156, 157 
 
 misdescription of 562 
 
 parol contract for 392 
 
 reversion sold with 211 
 
 sale of, after death of annuitant 443 
 
 APPEAL: 
 
 COUNTY COURTS (q. V.). from 540 
 
 stay of execution pending . 31 «. 
 
 APPOINTMENT : 
 
 of agent 258 Ji. 
 
 APPRENTICE : 
 
 contract to teach 92 
 
 APPROPRIATION : 
 
 goods, of 160 
 
 purchase-money, of 639, 648, 649, 650 
 
 APPROVAL: 
 
 of draft not a contract 248 
 
 ARBITRATION: 
 
 Common Law Procedure Act, 1854, as to 70O 
 
 contracts to refer to 699, 701, 195 >i. 
 
 inequitable refusal to refer to 700 
 
 ARBITRATOR : 
 
 award will be enforced 699 n. 
 
 award in excess or authority of 699 
 
 death of, before award 700 
 
 misconduct of 186, 698 
 
 price to be fixed by 165 
 
 rent referred to 186 
 
 valuer, distinguished from 164
 
 714 INDEX. 
 
 ARCHDEACON: page. 
 
 jurisdictiou of, over contracts 6 
 
 AREA: 
 
 COMPENSATION (q. V.) eiven for deficiency of 595 
 
 not given for deficiency of 596 
 
 ARTICLES OF ASSOCIATION, 
 
 liow far a contract 131, 132, 257 
 
 ASSENT: 
 
 must be to that wbicii is offered 134 n. 
 
 ASSIGN : 
 
 cannot by notice prevent completion with his assignor 102 
 
 enforcement of contract by 93, 100 
 
 extent of rights of 103 
 
 FKAUD (q. v.), of contract tainted by 350 
 
 insolvency of 465 
 
 notice of previous contract, with 102 
 
 recognized as tenant 99 
 
 ASSIGNEE : 
 
 BANKRUPTCY {q. «,), in, suing 99 
 
 time allowed to procure concurrence of 626 
 
 insolvency, in, contract for lease enforced against 103 n. 
 
 ASSIGNMENT : 
 
 amalgamation of companies, upon 105 
 
 contract, of 93 ei! seq., 93 n. , et seq. 
 
 exceptions to general rule as to 96 
 
 EXPECTANCY (g. ^.), of 100 
 
 family arrangement, where 99 
 
 general rule as to 93 
 
 illegal 96, 99, 101 71. 
 
 MISREPRESENTATION («?. V.), of contract affected by 336 
 
 offer of 102 
 
 personal contracts, of 96, 99, 113 
 
 pretended rights or titles, of 99 
 
 previous personal relation between contractors, where 97 
 
 property, of the 102 
 
 provision against, where 96 
 
 waived 99 
 
 public policy, contrary to 96, 101 
 
 right at the time undisputed, of 100 
 
 to bring action, of 100 
 
 satisfied term, of 631 
 
 set off, where a 97 
 
 statutory powers, of 102 
 
 trustee in bankruptcy, by 100 
 
 ASSIGNOR : 
 
 completion of contract with , 102 
 
 insolvent 93, 465 
 
 party, when a 93
 
 INDEX. 
 
 715 
 
 ASSISTANCE: paae. 
 writ of 559 
 
 ASSYRIA : 
 
 contracts in ancient 3 n. 
 
 ATTACHMENT : 
 
 enforcement of order by 556 
 
 AUCTION : 
 
 improvident sale by 190 
 
 AUCTIONEER : 
 
 agent of purchaser at auction ■ 262 
 
 authority of 264 
 
 clerlv of, how far purchaser's agent 264 
 
 confirming, contract "on behalf of the vendor " 163 
 
 co-plaintiff > H" 
 
 declaration by ^69 
 
 defendant 119 
 
 deposit, his rights and liabilities in respect of 119, 120, 661 
 
 entries in sale-book by 264, 268 
 
 interpleading 119 
 
 party, when made a ■. 119, 127, 651 
 
 purchase in private from 262 
 
 signature by 263 n. 
 
 solicitor for vendor 120 
 
 stakeholder 120, 661 
 
 substitute, may not appoint 264 
 
 AUTHOR: 
 
 contract by, to complete work 92 
 
 AWARD : 
 
 abandonment of a term of the submission, after 696 
 
 alternative directions, giving 486 
 
 death of party before 696 
 
 defective 698 
 
 exceeding arbitrator's authority 696, 698 
 
 founded on improper submission 697 
 
 hardship in 195 
 
 ILLEGALITY {q. V.) Oi 228 
 
 not binding by form of law 698 
 
 not signed by valuers together 186, 187 
 
 partial execution of 405 
 
 price to be determined by 689 
 
 specific performance of, when decreed by the Court of Chancery 
 
 695 11 695, 696 
 
 uncertain 698 
 
 ■ unreasonableness of 195, 228, 695, 697 
 
 unsuccessful proceedings to set aside, effect of 47, 473, 698 
 
 valuation, on sale at a 696 
 
 BAILIFF: 
 
 accountability of 645 
 
 to purchaser, vendor in possession is not 645
 
 716 INDEX. 
 
 BANKRUPT: page. 
 
 purchaser 464 
 
 vendor 464 
 
 BANKRUPTCY : 
 
 act of, a bar to action for specific performance 464 
 
 assignees in, suing '. 99 
 
 contract, does not per se discharge 464 
 
 personal contracts, its effect on 96 
 
 trustee in, assignment by 99 
 
 covenants by 463 
 
 disclaimer by 464 
 
 enforcement of contract by 463 
 
 specific performance against 106, 464 
 
 BANKRUPTCY ACT, 1869 : 
 
 disclaimer under 464 
 
 BIDDINGS 188 
 
 opening 446 
 
 (And see Puffer.) 
 
 BILL OF LADING : 
 
 stipulating as to leakage and breakage in 642 
 
 BILL OF SALE: 
 
 transfer of ship {q. v.) hj 683 
 
 BOND: 
 
 alternative conditions, containing 487 
 
 ante-nuptial 37 
 
 contract contained in condition of 57 
 
 evidenced by 57 
 
 to give 406 
 
 marriage articles by 60 n. 
 
 relief from penalty of _ 485 
 
 to refer to arbitration 699 
 
 {And see Penalty.) 
 
 BREACH : 
 
 COVENANT {q. v.), oi 36, 468, 470 et seq. 
 
 duty, of 192 
 
 good faith, of .- 473 
 
 BREACH OF TRUST: 
 
 assignees in bankruptcy, by 192 
 
 contract necessitating, not enforced 190 
 
 objections for, precluded by conditions of sale 191 
 
 setting aside contract for 192 
 
 trustees for sale, by 1 90 
 
 BUILDING CONTRACT : 
 
 anciently enforced 34, 39 
 
 damages uuascertainable, where 42 
 
 defined work to be done, where 41 
 
 divisiljle 403 
 
 house to be built and leased, concerning 39, 156, 157 
 
 liability of court to enforce 39 
 
 Lord Cairns' Act, since 41
 
 INDEX. 717 
 
 BUILDING CO'^TRA.CT—Coniinued. page. 
 
 market-house, for erection of 42 
 
 plaintiff's interest in, material 41 
 
 possession obtained, where 42 
 
 savouring of the realty 34 
 
 Scotland, in 41 
 
 uncertainty of 39 
 
 where court will enforce 41, 39 n. 
 
 {A7id see Railway, Siding.) 
 
 BURDEN OF PROOF 131, 141, 400 
 
 {See Onus.) 
 
 BUSINESS : 
 
 covenant not to carry on 58, 36 n. 
 
 CALLS : 
 
 indemnity against 664 
 
 made before contract 673 
 
 CANAL : 
 
 covenant to repair 43 
 
 CANON LAW : 
 
 obligation of actual.perf ormance recognized by 6, 7 
 
 CAPACITY : 
 
 acquired after contract 480 
 
 to contract 124 e^ seq, 688 
 
 perform contract 479, 480 
 
 {And see Incapacity, Incapacity to Contract.) 
 
 CERTAINTY : 
 
 amount of, what required 175, 176 
 
 boundaries, by ascertainment of 160 
 
 essential in contracts 155 
 
 FKAUD {q. V. ), less required in cases of 180 
 
 indefinite words, in cases of 176 
 
 reasonable 175, 176 
 
 user and course of dealing, given by 176 
 
 {And see Uncertainty.) 
 
 CERTIFICATE : 
 
 against the title, but defect cured 629 
 
 should state the defects 628 
 
 application to discharge or vary 628, 630 
 
 defect discovered before signing of 627 
 
 form of, upon inquiry as to title 627, 628 
 
 in favor of title 628 
 
 objecting to, before signature 627 n. 
 
 purchase under the court, of 445 
 
 reference-back of 628, 629 
 
 result of inquiry as to title, of 627 
 
 sale, of 653 
 
 CESTUI QUE TRUST: 
 
 contracts injurious to, not|enforced 191 
 
 real estate devised in trust, of 88 n. 
 
 {And see Parties.)
 
 718 INDEX. 
 
 CHAMPERTY : page. 
 
 contract unenforceable on ground of 229 
 
 doctrine of ^^^ 
 
 CHARIOT: ' 
 
 contract to supply ^^^ ^^^ 
 
 CHARITABLE CORPORATION: 
 
 contract by '^^^ 
 
 CHARONDAS: 
 
 principle of •* 
 
 CHARTER-PARTY : 
 
 effect of exception in, as to pirates 642 
 
 negative term implied in 414, 415 
 
 specific performance of, enforced 28 ». 
 
 CHATTELS : 
 
 connected with enjoyment of estate 34, 34 
 
 convenient 33 
 
 deliverj' of 3, 5, 9 
 
 part of contract 28 w. 
 
 disclosure of latent defect in • 341 
 
 execution for return of 5 
 
 of judgment for delivery-up of, stay of 31 n. 
 
 essential 38 
 
 generally court refuses to interfere in respect of 28 
 
 implication of existence of 444 
 
 improper dealings by agent with 34 
 
 instalments, delivery of, and payment for, by 35 
 
 not in possession of vendor, sale of 481 
 
 peculiar value, of 33 
 
 pretium affectionis, having 28 
 
 price agreed on, where 33 
 
 specific 32 
 
 trust constituted, where 34 
 
 unique 28 
 
 CHAUCER . 
 
 contracts mentioned by 6 
 
 CHOICE OF REMEDIES: 
 
 must seek redress first at law 47 n. 
 
 CHOSE IN ACTION : 
 
 contract to assign 16, 79 n. 
 
 CICERO : 
 
 concealment, on j 343 
 
 CIVIL LAW : 
 
 alternatives, as to 489 n. 
 
 COAL: 
 
 contract for supply of 518 
 
 COLLATERAL CONTRACT 277, 278 
 
 default by plaintiff in respect of 458
 
 INDEX. 719 
 
 <JAGK. 
 
 COLLIERY 40, 519, 530, 613 
 
 (See Mines.) 
 COLONIES : 
 
 land in the 50 n. 
 
 COMMON IGNORANCE 675 
 
 COMMON LAW: 
 
 agent suing in his own name at 118 
 
 defect of justice arising from 22 
 
 its approaches to specific perfokmance {q. v.) 3 
 
 Parliamentary contract not enforced at 53 
 
 penalty and liquidated damages, difference between, at 57 
 
 performance not enforced by 2 
 
 pretended title, transaction as to, void by 99 
 
 purchaser's liability to indemnify vendor of shares recognized at 664 
 
 remedy 15 
 
 adequate 33 e« seq. 
 
 inadequate 22 
 
 less beneficial 22 
 
 personal responsibility of defendant, dependent oa 22 
 
 want of exactitude in 23 
 
 reversioner suing at 74 
 
 special damage to be shown at 74 
 
 stranger to contract cannot sue at 82 
 
 suing in equity after proceeding at 47 
 
 supplemented by equitable jurisdiction 22 
 
 COMMON LAW PROCEDURE ACT 1854 : 
 
 arbitration, as to 700, 701 
 
 delivery of chattle, as to 5 
 
 injunctions, as to 550, 551 
 
 mandamus under 4 
 
 valuers do not come under 164 
 
 COMPANY : 
 
 action by, against person taking shares 28 
 
 amalgamation of 105 
 
 bond fide sale of land to 238 
 
 contract to form 38 ii., 404 
 
 intra vires and beneficial to 110 
 
 delegation of powers by 101 
 
 directors of, where liable on contracts 118 
 
 disclosure of material circumstances by 341 
 
 expiration.of statutory powers of 194, 216 
 
 FRAUD {q. v.)\)y 321 
 
 fraudulent misconduct of 507 
 
 liability of, on contracts 118 
 
 Lord Cottenham's doctrine as to, criticised Ill, 113 
 
 member of, contract to become 38 
 
 MISREPRESENTATION {q. V.)'bj 323 
 
 projectors' place, not a body succeeding to Ill
 
 720 INDEX. 
 
 COMPANY— Ctf?i?m2<ef?. page. 
 
 promoters' contracts, taking benefit of 108 
 
 recognised by 108, 109 
 
 ultra xnres HO, HI 
 
 warranted bj- terms of incorporation of 108, 110, 111 
 
 purchase of superfluous land by 238 
 
 winding-up of, before completion of contract to purchase shares 
 
 450, 671, 675 
 {And see Corporation, Raihcay, Ultra vires.) 
 
 COMPANIES ACT, 1863 309 
 
 application to rectify register under 543, 543 
 
 transfers after winding-up, as to ' 676 
 
 COMPANIES ACT, 1867 310, 342 
 
 COMPANIES CLAUSES CONSOLIDATION ACT, 1845 309, 310 
 
 COMPENSATION: 
 
 abatement from purchase-money, by 577, 586, 589 
 
 rent, by 590 ». 
 
 acreage, for deficiency in 578, 591, 594, 571 n., 586 n., 590 n. 
 
 advowson, on purchase of 423 n. 
 
 apprehended nuisance, for 573 
 
 bond fide mistake, in case of 591 
 
 calculating, mode of 589 
 
 where no data for 581, 590, 597, 598 
 
 case for, should be pleaded 571 
 
 charges for portions, in respect of 593 
 
 completion, claimed before 593, 593 
 
 right to, after 593 
 
 condition for, 
 
 considerable deficiency of area, in case of 595 
 
 construction of = 595 
 
 enforced nothwithstanding execution of conveyance 594 
 
 material misdescription, where there is 379 
 
 purchaser's rights, its effect on -"93 
 
 recission notwithstanding 579 
 
 right of way not within 580 
 
 suggested mode of framing 594 
 
 usually extends vendor's rights 579 
 
 vendor suing must bring the defect within . .• 579 
 
 copyhold lot nearly equivalent to freehold, in respect of 581 
 
 Counsel's opinion, where completion depended on 596 
 
 customary right of renewal, for 504 
 
 DAMAGES Cg. v.) a spccics of 597 
 
 distinguished from . 599 
 
 given as 603 
 
 •DELAY (q. V.) in payment of purchase-money, for 517 
 
 needed for ejectment, for 583 
 
 DETERIORATION {q. V.) for 592 
 
 difference between position of vendor and purchaser as to 570 
 
 dry-rot, for representation as to 578
 
 INDEX. 
 
 721 
 
 COMPENSATION— (7<?w<mwe(?. page. 
 
 house without wharf, for 572 
 
 impossibility of exact performance, in cases of 460 
 
 incumbrances, for 575 
 
 INDEMNITY {q. V,) a specics of 575 
 
 innocent misstatement or mistake, for 594 
 
 investigation of title, for defect appearing on 570 
 
 knowledge of the state of the title, where purchaser had 587, 588 
 
 large part of property incapable of being conveyed, where 585 
 
 latent defect, for 578 
 
 liaJbility of jetty to be removed, for f •■ 573 
 
 limitations of the principle of 588 
 
 Lord Erskine on the principle of 572 
 
 Lord Thurlow on 573 
 
 manorial fines, for 597 
 
 material part wanting (and vendor plaintiff), where 572, 573 
 
 means of discovering error before completion, notwithstanding. . . 594 ?i. 
 
 JvnsREPRESENTATiON (q. V.), where vendor has made 576, 582, 583 
 
 MISTAKE (q. v.), for 580 
 
 moiety, where vendor entitled only to a 586 
 
 occupier, upon purchase by 578 
 
 origin of the right to 570 
 
 ornamental timber, on cutting of 581 
 
 outstanding lease for life, for 590 
 
 over-statement of profits, in respect of 576 
 
 partial interest only, where vendor has 219, 570 
 
 patent defect, in cases of 577, 578 
 
 payment of fixed sum, by 60 
 
 purchaser insisting on the contract, in cases of 583, 597 
 
 may generally enforce contract with 583 et seq. 
 
 Queen Anne's Bounty, for charge in favor of 348, 423, n., 589 
 
 quit rents, for 5 < 7 
 
 reasonably estimable 577, 590 
 
 RESCISSION (q. V.), where vendor has power of 596 
 
 reservations and conditions in Crown grant, for 590 
 
 right of digging coals, for 590 
 
 fetching water, for 580 
 
 sporting, for 578 
 
 right to, abrogated by another term of the contract 596 
 
 lost by vendor's conduct 596 
 
 rights materially affecting enjoyment, in cases of 580, 581 
 
 road, for non-construction of 199 
 
 severance, for ^"^ 
 
 slip of ground between residence and high road, for 573 
 
 stone subtracted from quarry, for 592 
 
 supplemental bill, obtained by 592 
 
 taxes under local public Act, in respect of 577 
 
 tenant for life, in cases of contracts by 584, 588, 589 
 
 tenant in remainder, on contract by 584 
 
 tenure, for difference of 574, 579 
 
 46
 
 722 INDEX. 
 
 COMPENSATION— Ctf?ia/i«6(f. page. 
 
 third persons, where partial alienation would prejudice 588 
 
 timber, on sale of 581 
 
 tithe, for 574,577, 592, 59» 
 
 underlease sold as lease, where • 580, 582 
 
 unessential defects, in cases of • 576, 578 
 
 unimportant misstatement, in cases of 597 
 
 unjust or unfair 991 
 
 Vendor and Purchaser Act, 1874, as to claims for 539 
 
 vendor insisting on the contract, in cases of 571-583 
 
 waiver of defect, in cases of 578 
 
 water, for loss of 457 
 
 wife's interest, for 482, 586, 587, 588 
 
 within what limit of time it must be claimed 592 
 
 CO«MPLETENESS: 
 
 ascertained at commencement of action 156 
 
 ascertainment of term, effected by ■ 157 
 
 insufficient, instances of 168 
 
 material terms, as to 168 
 
 SUBJECT-ilATTEK {q. V.), aS tO 157 
 
 {And see Incompleteness.) 
 COMPLETION : 
 
 claim for compeksation (g. v.) after 593, 594 
 
 before • 592 
 
 equitable estate absolutely vested upon 633 
 
 expiration of company's powers before 194 
 
 interest and rents interchanged from time for 636 
 
 means of discovering error before 594 
 
 no time fixed for 636, 65a 
 
 removal of interchange of properties from time fixed for 637 
 
 TITLE ((/. 1).}, of 625, 626 
 
 COMPROMISE : 
 
 attachment to enforce 45 
 
 counsel, made by 693 
 
 FAIRNESS {g. V.) of 183 
 
 good consideration, a 692 
 
 infant and adult, between 693 n. 
 
 jurisdiction in the Court of Chancery as to enforcing 692, 694 
 
 High Court 694 
 
 must relate to doubtful claim 692 n. 
 
 married woman, l)y 688 
 
 proceedings in another court, relating to 692 
 
 specific enforcement of 17, 692, 694 
 
 stay of proceedings after 694 
 
 uncertainty, rendered fair by 183, 692 
 
 CONCEALMENT : 
 
 agent, by 331 
 
 industrious 344 
 
 KEScissiON {q. V.), a ground for 838 
 
 right of way, of 331
 
 INDEX. 723 
 
 CONCEALMENT— COTi!:«/iwe(Z. page. 
 
 sale with all faults, in cases of 344 
 
 wrongful taking of coal, of 344 
 
 {And see Fraud.) 
 
 CONDITION : 
 
 BOND (q. v.), of 55, 57 
 
 (And see Penal Sum.) 
 
 breach of 462 n. 
 
 construction of, as to rights of water and easements 563 n. 
 
 contract rendered absolute by performance of 447, 475 
 
 implied, for delivery-up of deeds 170 
 
 excusal of non-performance 478 
 
 good-title 170 
 
 ncn-pe"rf ormance of, a defense 475, 475 n. 
 
 precedent 458 n. 
 
 TIME (q. v.^, as to, a mutual stipulation 510 n. 
 
 public-house license, as to 476 
 
 waiver of 411, 477 
 
 CONDITIONAL CONTRACT : 163, 217, 447,, 475 
 
 implication, by 476 
 
 no action on 478 
 
 personal services, for 478 
 
 railway company, by 478, 476, 485 
 
 warehouse, to take lease of 447 
 
 CONDITIONS OF SALE": 
 
 abstract, for delivery of 648 
 
 admeasurements, as to correctness of 595 
 
 ambiguous ... 562 
 
 assumption, requiring purchaser to make 566, 567, 612 
 
 cestuis que trust, injurious to 191 
 
 COMPENSATION {q. V.), for 565, 570, 578, et seq, 
 
 concealing difficulties • . . . 565, 566 
 
 conduct inconsistent with 473 
 
 constitute part of the contract 560 
 
 deficiency on re-sale, for recovery of 58 
 
 delivery of objections, as to 565 
 
 discharge of purchaser for obscurity of 560 
 
 deposit, for forfeiture of 58, 659, n., 661 n. 
 
 repayment of 661 
 
 fee-farm rent, of 611 
 
 FRAUD {q. v.)\n. 565 
 
 good faith required in 565 
 
 immediate possession, for 473 
 
 inability of vendor to give a good title, in case of 564 
 
 interest, as to 640, 649, et seq. 
 
 lessor's title, as to 620 
 
 letters, referring to 269 
 
 life-annuity, as to 563 
 
 misleading 566, 15, 612 
 
 MiSREPKESENTATioN {q. V.), in cases of 565
 
 724 INDDX. 
 
 CONDITIONS OF SKLEr—Co7itinued. page. 
 
 outgoings, as to 564, 645 
 
 possession under lease, as to effect of 563 
 
 precluding inquiiy as to title 560 n. , 563, 612 
 
 objection to the court's jurisdiction to order sale 568 
 
 principles on which'.the court construes, 560, 578, 604, 594, 640, 650, et seq. 
 
 read in connection with one another 595 
 
 reasonable clearness required in 560 
 
 reference in auctioneer's entry to 268 
 
 rents, as to 640 
 
 rents and profits, as to receipt of 564 
 
 restraint of purchaser's legal right, in 560 
 
 restrictive stipulation in ." 611, 625 
 
 right to rescind, living 501, 504, 565, 566 
 
 limited by condition for compensation 504, 595, 595 
 
 where vendor shows no title 502, 603 
 
 Sale of Land by Auction Act, 1867, as to 348 
 
 sales by the court, in 567, 568 
 
 specified deeds, as to giving up 595 
 
 stating facts 567, 568 
 
 superfluous land, of 612 
 
 tenures, as to mingling of 424 n. 
 
 TIME (q. v.), as to 514, 518, 7i., 519 
 
 TITLE (q. V.) in accordance with 614 
 
 verification of abstract, as to 565 
 
 wording of conveyance, as to 568 
 
 CONDUCT : 
 
 equity derived|f rom 85 
 
 CONSENT : 
 
 essential to a contract in equity 363 
 
 mortgagee's failure to obtain 195 
 
 nature of proper 187 n. 
 
 refusal of, no defense to purchaser 198 
 
 third party, of 481 
 
 wife, of 482 
 
 CONSIDERATION : 
 
 absence of 443 
 
 additional proof of 392 
 
 ascertainment of amount of 166 
 
 contingent interest, for charge on 679 
 
 contract without 45 
 
 examples of suflicient 203 7i. 
 
 failure, of 442, 442 7i. 
 
 by destruction of subject-matter 444, 446 
 
 by plaintiff's non-performance 460 
 
 fair, contract to give a 167 
 
 future act 405 
 
 inadequacy of 202, 449, 204 n., et seq. 
 
 annuity transaction, in 206, 210 
 
 auction, on sale by 206
 
 INDEX. 
 
 725 
 
 CO'NSID'ERATIO'N— Continued. ■ pase. 
 
 burden of proof of 211, 213 
 
 combined with fraud, or circumstances of oppression or ignorance, 203 
 
 evidence of fraud 204, ~06 
 
 former doctrine as to 205 
 
 HARDSHIP {q. ^^) only 208 
 
 liow it may appear in the contract . .• 202 
 
 206 
 mere """ 
 
 KEVERSioiTAKY INTEREST (q. V.), in sale of 211, et seq. 
 
 Roman law, in 209 
 
 setting aside contracts, as a ground for 204 
 
 showing transaction to have been a gift 203 
 
 valuer, where price referred to 210 
 
 when to be judged of • • •-•-^ 210 
 
 legal 
 
 45 
 
 marriage settlements, in 45 
 
 separation, in contracts for 689, 690 
 
 statement of when necessary 252 n. 
 
 unlawful 223 w. 
 
 CONSTRUCTION : 
 
 condition as to rights of water and easements, of 563 n. 
 
 " covenant," of ^^^ ""• 
 
 CONTEMPORANEOUS WRITINGS 395 «. 
 
 CONTEMPT '^^^ 
 
 CONTINGENT INTEREST : 
 
 conveyance of - " ' ' 
 
 non-enforcement of contract relating to 67^ 
 
 CONTINUOUS ACTS : 
 
 performance of 35, 40 
 
 CONTRACT : 
 
 abandonment of 495, 524 
 
 absolute 447 
 
 adoption of 1^^ 
 
 agency, of 45 
 
 AGENT (q. v.), by 113, 120 
 
 alternative 418, 486, 600, et seq. 
 
 amalgamation, for 410 
 
 annuity, for 9'^> 156 
 
 approval of draft not a 248 
 
 arbitration not enforced for 195 n. 
 
 articles of association constituting 131 
 
 assignment of 93 et seq 
 
 benefit of, had in specie 42 
 
 BREACH OP TRUST {q. V.) Or of prior contract, involving 190 
 
 BUILDING {q. V.) 34, 156, 39 n. 
 
 business, not to carry on 57 
 
 CERTAINTY (q. V.) of 155 et seq. 
 
 COMPLETENESS {q. V.) 155 et seq. 
 
 change of 163 n.
 
 726 INDEX. 
 
 CONTRA.CT— Continued. page. 
 
 charitable purposes, for 47 
 
 CHATTELS (rj. v.), foT Sale and delivery of 5, 28 e^ seq. 
 
 Chaucer's mentiou of 6 
 
 chose in action, to assign 16 
 
 collateral 277, 458. 
 
 common law, how regarded at 15 
 
 coxrPANY {q. V.), of 118, 232, 309 
 
 compounding a felonj- 230 n. 
 
 complete, must be 155 7i. 
 
 concluded 131, 248 
 
 conditional '. 447 
 
 consideration, where no 45, 203 n 
 
 contemporaneous 404 
 
 contingencies, involving 184, 475 et seq. 
 
 continuous acts, involving 35, 40 
 
 corrupt consideration 225 n- 
 
 cross 403 
 
 death of party, to 88 ?i. 
 
 debt to purchase 19 
 
 deed, contemi)lating 406 
 
 defect in subject matter of 421 n 
 
 definitions of 1, 133 n. 
 
 discrepant with itself 177 
 
 divisible or not 399, 419 7i., et seq. 
 
 donee of power, by 73 
 
 effect of 633 
 
 elements of, classified 169 n. 
 
 enforcement, of, when impossible 17 n. 
 
 equity, how regarded in 15, 571 
 
 essentials of 155 
 
 events prior to 443, 445 
 
 subsequent to 446 
 
 existence of 131 
 
 EXPECTANCY (q. «.), relating to 677 et seq. 
 
 expectation of 131 
 
 FAiKNESS {q. V.) of 181 et seq. 
 
 foreign 49, 49 n. 
 
 foreign government, by 48 
 
 full performance impossible 399 w., 410 n. 
 
 future acts, depending on 410 
 
 stipulating for 406 
 
 future day, to convey on 481 
 
 general terms, framed in 168 
 
 GOOD WILL (q. V.), respecting 36 
 
 guide-book, to edit ■ 357 
 
 HARDSHIP (^q. V.) of 188, 193, 193 71. , et seq. 
 
 HIRING AND SERVICE (q. V.), of 43 
 
 HUSBAND AND WIFE (^q. V.), between 128 
 
 ILLEGALITY (q.v.)of 223, 229, 448, 222 n., 46 n.
 
 INDEX. 727 
 
 CONTKACT— Cb«^2VmefZ. p^ob. 
 
 immovable property, relating to 49 
 
 implied terms of 169 e< seq. 
 
 impossible 45 
 
 incapacity of defense 124 n. 
 
 indemnify, to 391 
 
 instalments, to be performed by 35 
 
 instructions for a settlement .... 131 
 
 intoxicated person, by 189 n. 
 
 judge's order, 131 
 
 LEASE {q. v.), to accept 41, 125 n. 
 
 lunatic, of 130 
 
 marine insurance, for 341 
 
 marriage, in restraint of 224 n. 
 
 MAERiED WOJIAK {q. 1).), oi 125, 129 
 
 material terms of 168 
 
 music-hall, to let 478 
 
 MUTUALITY {q. V.), of 213, 220, 221 71. 
 
 notice of withdrawal from 659 n. 
 
 non-conclusion of 131 et seq. 
 
 new, must not be inconsistent 182 
 
 obligations arising from 2, 635 
 
 of the parties to 634 
 
 option, giving 65 
 
 parliamentary 53 
 
 PARTNERSHIP {q. V.), for 38, 680, 681 
 
 PART-PERFORilANCE (q. V.) of 281, 301 71. 
 
 passing of the property in subject-matter of 633 
 
 payment of money for , 5 
 
 satisfied by .' 25 
 
 not part performance 301 n. 
 
 PENAL SUM {q. V. ) , with 55 
 
 personal 92, 96, 98, 99, 113 
 
 personal services, for 43, 44, 404, 478, 36 n., 45 n. 
 
 (See Hiring and Service.) 
 
 philanthropy, for purposes of 47 
 
 piecemeal execution, providing for 162 w., 403, 407 
 
 place of execution -. % n. 
 
 pleasure, for purposes of 47 
 
 pollicitatio distinguished from 133 n. 
 
 positive 478 
 
 posting, perfected by 295 
 
 premium, to reduce 35 
 
 privity of » 50 
 
 promoters, by 107 et seq. 
 
 (And see Com/pany.) 
 
 public policy, against 96, 101, 676, 7i., 222 %., 226 n. 
 
 purchasing goods 232 n. 
 
 real estate 50 n. 
 
 RAILWAY {q. v.), to make 25, 179, 215 
 
 (And see WorJcs.)
 
 728 INDEX. 
 
 CONT'RACT—Co7iii7iued. page. 
 
 reasonableness of WS, 181 
 
 recital evidencing 131 
 
 recission of 497 n. 
 
 registered land or charge, relating to 81 
 
 renewal, for 169 
 
 renew perpetually, to 65 
 
 repairing 39, 40, 43. 
 
 {See Building Contract.) 
 
 REPRESENTATION (rj. V.), by 147 et seq. 
 
 RESCISSION (q V.) of 492 et seq. 
 
 reversion, for sale of 211, 213 
 
 {See Reversionary Interest.) 
 
 revocable 37, 88 
 
 roads, to make 173 
 
 savouring of the realty 34 
 
 scientific pursuits, for purposes of 47 
 
 several documents, contained in 266 n., 251 n. 
 
 SHARES {q. V. ), for 664 et seq, 
 
 SHIP (q. v.), for sale of 683, 686 
 
 SIGNATURE {q. V.) of 253 et seq. 
 
 specific chattel, for delivery of 31 
 
 spes successionis, concerning 16 
 
 STOCK (q. v.), for purchase or transfer of 26, 19 
 
 STOCK EXCHANGE {q. V.), made on the 664 et seq. 
 
 subscription of 253 n. 
 
 tenancy, for 24 
 
 tenant in tail, by 73 
 
 third person's decision, referring to 169' 
 
 timber trees, for purchase of 19 
 
 time of payment may be of essence of 512 n. 
 
 time, when complete 512 n. 
 
 to contract 169, 658 
 
 trust created under 404 n. 
 
 uberrimm fidei 341 
 
 ULTRA VIRES {q.v.) 110, 232 n. 
 
 unbusiness-like 192 
 
 UNCERTAINTY {q. V.) oi 160, 172, 173 w., et seq 
 
 undated 171 
 
 underlease, for 170 
 
 undertaking, in nature of 217 
 
 UNFAIRNESS {q. V.) of 181 et seq. 
 
 unlawful consideration 223 n. 
 
 unilateral 217. 527 
 
 unreasonable 196 n. 
 
 unregistered 103 
 
 utmost endeavours, to use 485 
 
 voluntary 45 
 
 way-leave, to grant 25 
 
 will, to make 105 
 
 working mines or quarries, for 40
 
 INDEX. 729' 
 
 PAGB. 
 
 CONTRAVENTION OF CONTRACT, ACTS IN AGT et seq. 
 
 {See Acts in Contravention of the Contract.) 
 
 CONVEY : 
 
 effect of direction to 70, 628 ?i. 
 
 CONVEYANCE : 
 
 legal estate passes by 633 
 
 by parents for children 680 n. 
 
 questions of 680, 631 
 
 vendor's obligation to execute and procure execution of 634 
 
 COPYHOLD : 
 
 cannot generally be forced on purchaser of freehold (and vice versa), 
 
 424, 424 n., 579, 579 n. 
 compensation for 581, 582 
 
 CORPORATION : 
 
 common seal, absence of, when not a defense to 311 
 
 must generally contract under 309 
 
 companies act, 1867, as to contracts by 310 
 
 companies clauses act, 1845, as to contracts by 309 
 
 contracts by 235 n. 
 
 distinction between individuals and 235 n. 
 
 ecclesiastical, covenant for renewal by 485 
 
 every-day contracts of 309 
 
 fraudulent representation by agents of 336 n. 
 
 formalities requisite in contracts by 309 
 
 HAKDSHiP (q. « ) on individual members of 198 
 
 irregularity in contract by 239 
 
 omission of formalities in contract by 239 
 
 PART-PERFORMANCE [q V.) of invalid contracts of 285 
 
 power of, to contract ^ 232 
 
 prima facie bound by contract under seal 232 
 
 validity of contracts of 232 
 
 RATIFICATION {q. V.) by 235 
 
 trading, contracts of 309 
 
 ULTRA VIRES (q. V.), contracting '. 466 ei seq. 
 
 (And see Company.) 
 correction of mistake in deed 372 n. , 376 n. 
 
 COSTS : 
 
 application to rectify register, of 541 
 
 contract respecting 679, 689 
 
 county court, where action within jurisdiction of 540 
 
 demand as relating to 630 n. 
 
 inquiry as to damages, of 604 n. 
 
 issue to ascertain damages, of 646 
 
 laches, in case of 531 
 
 land transfer act, 1875, under 541 
 
 lien on estate for 629, 6G0 
 
 purchaser's objections overruled, where 630 
 
 reference of .title prevented by purchaser, where 630 
 
 representative of deceased vendor, of 88 n., 90 7i.
 
 730 INDEX. , 
 
 ■COSTS — Continued. page. 
 
 rescission of default after judgment, upon 556 
 
 small breaches of good faith may affect 473 
 
 title assured by payment of 439 
 
 too doubtful to force on purchaser, where 628 
 
 up to time of first showing a good title 630 
 
 waiver of rights, by 235 n 
 
 COUNTERCLAIM 80, 538, 660 
 
 COUNTY COURT ACTS, 1865, and 1867 540 
 
 COUNTY COURT RULES : 
 
 appeal from 540 
 
 concurrent jurisdiction of high court in cases cognisable by 541 
 
 jurisdiction of, in specific performance 540, 541 
 
 transfer of actions to and from 540 
 
 COVENANT : 
 
 breach of, frequent 36 
 
 involving merely nominal damages 470 
 
 breach of, landlord defendant objecting on ground of 471 
 
 trifling , 470 
 
 under contract for lease 33, 467, 470 
 
 waived 470 
 
 willful 470 
 
 canal, to repair 43 
 
 construction of the word 563 
 
 deeds, to produce ■ • • • 479 
 
 farming lease, in 35, 58, 408 
 
 further assurance, for 460, 478 
 
 indemnify, to 460, 704 
 
 INJUNCTION {q. V.) to restrain breach of 407 et seq. 
 
 by insolvent 465 n 
 
 liquidated damages, protected by provision for 124 
 
 mines, to work 471 
 
 mutual as to building 124 
 
 notice of 105 
 
 oppressive to lessee of mines 201 
 
 possible liability under 575 
 
 prima facie right to enforce 407 
 
 real 6 
 
 renew, to 20, 217, 469, 471 
 
 repair, to 467, 470 
 
 to leave buildings in 201 
 
 restrictive 470 
 
 reversioner enforcing 74 
 
 right of pre-emption, to give 102 n. 
 
 separation deed, in 470 
 
 settle lands, to 407, 677 
 
 three classes of 56 n. 
 
 trustees, by 464 
 
 ULTRA VIRES {q. V.) 190 
 
 usual 168 7i. , 423 TO.
 
 INDEX. 731 
 
 ■COVENANT— Co?j^2>Mierf. page. 
 
 variation of 372 
 
 writ of 6 
 
 CREDITORS : 
 
 deceased vendor's contract enforced by , 90 
 
 cross bill 63 ?i. 
 
 CY PRES EXECUTION : 
 
 .COMPENSATION {q. V.), in enforcing contract with 588 
 
 illegality created by statute, in cases of 448 
 
 incapacity of defendant to perform contract literally, in cases of 483 
 
 subsequent legislation, where contract partly invalidated by 485 
 
 utmost endeavors, of contract to use 485 
 
 DAMAGES : 
 
 act of part-performance answerable in 43 
 
 addition to specific performance, in 599, 603, 603 
 
 bringing suit to hearing for 603 
 
 building contract, for breach of 156 
 
 chattels, a sufficient remedy in respect of 38 
 
 COMPENSATION (q. V.), a spccies of 597 
 
 distinguished from 599 
 
 condition, for non-performance of 411 
 
 contrasted with specific performance 3,5 
 
 delay in performance, for 603 
 
 deterioration, given by means of inquiry as to 599 
 
 elected alternative, for non-performance of 490 
 
 equity will not interfere, when IS n. 
 
 evidence as to amount of 604 
 
 French law, as to '^05 
 
 inequitable action 607 
 
 inexactness of measure of 33 
 
 inquiry as to 603, 604 
 
 jurisdiction of the Court of Chancery in respect of 599, 600 
 
 High Court in respect of 601 
 
 liquidated • 57, 59, 58 7i. 
 
 {See Penal Sum.) 
 
 Lord Cairns' Act (q. v.), under 411, 600, G02 
 
 loss of profits, for 602 
 
 mistake of defendant, where specific performance is refused for G04 
 
 no case for specific performance, where 601 
 
 non-building, for 603 
 
 no title, where vendor shows •■ 503, 603 
 
 part-payment and outlay by purchaser, in case of 601 
 
 positive contract, for non-performance of 479 
 
 quantum damniflcatus, ascertained by issue of 599 n. 
 
 railway cases, in 33 
 
 remedy by, unavailable from form of contract 19 
 
 rule as to 606 ?j. 
 
 specific performance impossible, where 600, 601 
 
 specific performance in lieu of 21 7i. 
 
 station, for non-erection of 603
 
 732 INDEX. 
 
 BAMAGES—Contmned. page. 
 
 stay of proceedings, upon 557 
 
 subsequent to decree • 601 
 
 substitution for specific performance, iu 600, 601, 603 
 
 trial, assessed at the 604 
 
 utility of the jurisdiction in 602 
 
 vendor of land, an incomplete remedy to 25 
 
 where performance cannot be had 608 n. 
 
 DEATH : 
 
 admission in pleadings, after 275 
 
 author, of ■ ^5 
 
 contract enforced notwithstanding 88 
 
 rendered impossible by 19 
 
 personal contracts, in cases of 92 
 
 principal, of 265, 88 n. 
 
 proposed lessee, of 92 
 
 purchaser, of 91 
 
 revivor after 91 
 
 tenant in tail in common, of 483 
 
 vendor, of 88 
 
 DEBT: 
 
 contract to purchase 19 
 
 sale of proved, contract for 23 
 
 specific performance 14, n. 
 
 DEBTORS ACT, 1869 : 
 
 defendant about to quit England, as to 553 
 
 DECEIT : 
 
 action for 316, 319. 320, 323, 337, 344 
 
 aggressive 345 
 
 {And See Fraud, Misrepresentation.) 
 DECEPTION : 
 
 as to the person contracted with 98, 313, n. et seq. 
 
 DECLARATION : 
 
 indemnity, of liability to perform covenant of 704, 705 
 
 purchaser's lien, of 662 
 
 vendor's lien, of 558 
 
 DEED: 
 
 accidental destruction of 170 
 
 antedating 473 
 
 contract contemplating execution of 406 
 
 to execute 681 
 
 decreeing execution of 681 
 
 deUvery up of 170, 465, 480, 565, 466 n. 
 
 description in 490 n. 
 
 duplicate when had 17 w. 
 
 fraudulent misdating of 473 n. 
 
 loss of 465, 46 n. 
 
 mistake in, may be corrected 372 n. 
 
 not in proposed covenantor's power 480
 
 INDEX. 
 
 733 
 
 DEED— Continued. page. 
 
 prepare, who must 499 n. 535 n. 
 
 production of ^'^^ 
 
 secondary evidence of execution of 466 n. 
 
 verification of 632 
 
 {And see Title Deeds.) 
 
 DEFAULT OF PLAINTIFF ; 
 
 ACTS IN COXTRAVEXTION OF THE CONTRACT {q. «.), by 467 et SCq. 
 
 collateral contract in respect of 45S 
 
 excused ^"^ 
 
 independent covenant, in respect of ^60 
 
 {And see Perfm'mance.) 
 
 DEFAULT OF BOTH PARTIES 536 n. 
 
 DEFECT IN SUBECT-MATTER: 
 
 easements, consisting in existence of 422 
 
 essential 421, 425 
 
 latent, obligation to disclose .• 341, 421, 423 
 
 liability, consisting in existence of 423 
 
 minute examination of, not demanded 422 
 
 patent 332, 421, 422, 577 
 
 question of title not a 421 
 
 sale with all faults, in cases of 424 
 
 subject matter 4-1 n. 
 
 uncertain description, in cases of 424 
 
 unessential 4»o 
 
 unknown at time of contract to both parties 423 
 
 DEFENSE: 
 
 of personal incapacity 124 n., 187 n. 
 
 DEFINITION: 
 
 mistake 360 n. 
 
 signed 253 n. 
 
 specific performance in . . • 133 n. 
 
 subscribed ; '. 254 n. 
 
 DELx-^Y: 
 
 abandonment, amounting to 526 
 
 acceptance must be without 139 
 
 of title, in regard to 527 
 
 accidental 64«/ 
 
 act of God, arising from 643 
 
 action, in instituting 525, 526, 529 n., 530, 531, 536 n. 
 
 prosecuting 5-6 
 
 constituting laches 526 et seq. 
 
 damages for 60- 
 
 death of vendor, arising from 643 
 
 defendant, attributable to 532 
 
 "from whatever cause" 640 e« seq., 649 
 
 interlocutory injunction, as an objection to grant of 546 
 
 interest, not exempting purchaser from payment of 642 
 
 lessor of wine-vaults, of 532
 
 734 INDEX. 
 
 DELAY — Continued. page. 
 
 liability or loss, involving 521 
 
 mine, in contract iof lease of 529, 530 
 
 negotiation, pending 531 
 
 notice limiting time (q. v.), after 522 
 
 of refusal to perform, after 53(X 
 
 performance, in 526, 537 
 
 possession, where plaintiff is in 529, 531 
 
 possibility of, contemplated 642 
 
 protest against 533 
 
 purchase-money, in payment of 517 
 
 purchaser in possession, by 657 
 
 purchaser's objections, occasioned by 639 
 
 unilateral contracts, in cases of 527, 528 
 
 untenable objection, arising from 532, 643 
 
 vendor, attributable to 637 
 
 "waiver of 533 et seq. 
 
 conduct, by • 533, 534 
 
 notice of abandonment, after 534 
 
 what, sufficient to bar right to relief 529, 530 
 
 DELIVERY : 
 
 of deed 466 n. 
 
 DEMAIs'D: 
 
 relating to costs 630 n. 
 
 of performance 529 n. 
 
 DEMURRER: 
 
 compensation, to vendor's bill for performance with 570 
 
 Statute of Fkauds {q. v.), on ground of 240, 243, 244 
 
 work and labor done, to bill for 289 
 
 DEPENDANT COVENANTS 459 n. 
 
 DEPOSIT: 
 
 allowed to remain in vendor's hands « 533 
 
 AUCTIONEER {q. V.), holding 119, 661 
 
 condition as to time for payment of. 516 
 
 for repayment of 662 
 
 discretion of Court of Chancery as to ordering return of 662 
 
 forfeiture of 58 n., 661 
 
 infant cannot recover 215 n. 
 
 injunction against action for 549, 574 
 
 interest on 629, 639, 644 
 
 lien on estate for 629, 659 et seq. 
 
 memorandum of terms of 18 
 
 purchaser disentitled to sue for 611 
 
 retainer of vendor's costs out of 662 
 
 sale by auction, on 659 n. 
 
 private contract, on 659 
 
 stakeholder of 119 
 
 sued for before day fixed for transfer of possession 661 
 
 vendor ordered to repay 629, 662, 665
 
 INDEX. 735 
 
 DESCRIPTION : PA»E. 
 
 deflniteness of, what required 159, 490 n. 
 
 flourishing 583 
 
 " freehold residence " 563 
 
 general 157, 184, 424 
 
 indefinite 177 
 
 misleading 561 
 
 MISREPRESENTATION (^ t'.) in 582 
 
 name, instead of 161 
 
 parties, of 160, 162 
 
 reference to holder of deeds, by 159 
 
 subject-matter, of 157, 159 
 
 sufficient, instances of 163 
 
 UNCERTAINTY {q V.) of 161, 424 
 
 variation from, a ground of defense 421 
 
 vendor prima facie responsible for 571 
 
 DESTRUCTION : 
 
 of SUBJECT-MATTER {q. V.) of coutract 443, 444, 447 et seg., 675 
 
 DETERIORATION: 
 
 accidental 647 
 
 accountabitity of vendor for 592, 646, 647 
 
 acts of ownership occasioning 656 
 
 after purchaser takes or ought to have taken possession 647 
 
 COMPENSATION {q. V.) for 592, 64& 
 
 discovery in case of 646 
 
 due to purchaser himself 64& 
 
 inquiry as to • • • • 599 
 
 negligence of vendor or his tenants, arising from 593 
 
 set-off of amount of, against interest 646 
 
 vendors' lessees, by 646 
 
 working mine, by 647 
 
 yearly tenancy, where property sold is let on 646' 
 
 DETINUE : 
 
 action of 13 
 
 (And see Chattels.) 
 DEVISE: 
 
 agreement to 105 '^- 
 
 DEVISEE : 
 
 purchaser's, when a party 91 
 
 vendor's, when a party 88 
 
 DIRECTOKS : 
 
 agents of company H^ 
 
 breach of duty by 1^2 
 
 irregularity in contracts by 23& 
 
 liability of, on contracts 118 
 
 MISREPRESENTATION {q. V.) hj ' 318, 324 
 
 principals 118 
 
 refusal of, to register transfers 873 
 
 resolution of, where a contract 118
 
 '736 INDEX. 
 
 DmBCTOHS— Continued. page. 
 
 statutory power of, to contract 309 
 
 suing without joining shareliolders 75 
 
 ULTRA VIRES (q. V.) in cascs of contracts 285 
 
 DISCLOSURE: 
 
 obligation to 340 cJ seq. 
 
 patent defect, of • - 343 
 
 state of house, of 343 
 
 {And see Fraud. ) 
 
 DISCOVERY : 
 
 deterioration, in case of 646 
 
 DISCRETION OF COURT: 
 
 Companies Act, 1863, s. 35, under 542 
 
 injunction, as to 624 
 
 Lord Cairns' Act, under 599, 602 
 
 relief on admissions of fact, as to 624 
 
 return of deposit, as to 662 
 
 specific performance, as to 10 
 
 transfers of shares after winding up, as to 676 
 
 when it ceases 11 n. 
 
 DISENTAIL: 
 
 contract to (cf.) 48 n. 
 
 DISMISSAL OF ACTION: 
 
 certificate against the title, upon '. 629 
 
 title, for defect or want of 427, 609 
 
 DISTRESS : 
 
 evidences of 187 
 
 DIVISIBLE CONTRACT 399 ei! seq., 419 n. 
 
 builder, by 403 
 
 contemporaneous contracts intended to be separate, where there are . . 404 
 
 distinct lots, for 401 
 
 piece-meal execution, providing for 403, 407 
 
 ship and freight, for 400 
 
 two estates included in same contract, where 403 
 
 DIVISION LINE: 
 
 by parol agreement '• 508 
 
 DOLUS DANS LOCUM CONTRACTUI 322, 342 
 
 DOWER: 
 
 rule for computing 128 n. 
 
 right of a cloud on title 432 ?i. 
 
 DRUNKENNESS 188 
 
 (See Intoxication.) 
 
 EASEMENT : 
 
 construction of condition as to 564 
 
 ECCLESIASTICAL CORPORATION: 
 
 contract for purchase by 521 
 
 ECCLESIASTICAL COURTS: 
 
 former jurisdiction in specific performance of 6, 7
 
 INDEX. 737 
 
 « 
 
 PAGE. 
 
 ECCLESIASTICAL LAW 7 
 
 EGYPT: 
 
 contracts in ancient 3 n. 
 
 ELECTION: 
 
 alternative, of 487 e^ seq. 
 
 assignees in bankruptcy, by 464 
 
 award, respecting 47 
 
 bond, where contract comprised in 60 
 
 common law, to proceed at 47 
 
 completion and recission, between 486 
 
 contract becomes single by 490 
 
 decree, given by 123 
 
 destroyed by obligee 490 
 
 discovery of fresh incidents of fraud after 353 
 
 express or inferred, may be 353 
 
 FRAUD (g. V. ), as to contract tainted by 351 et seq. , 354 
 
 inadequacy of coksideration {q. v.), in cases of •. 210 
 
 indemnification of vendor and rescission between 200 
 
 interest and rents, between 649 
 
 Lands Clauses Act, by proceedings under 47 
 
 marriage articles by bond, not imported from form of 60 w. 
 
 married woman, of 128 
 
 MISTAKE (q. v.), in cases of 371 
 
 mode of ascertaining price, as to 165 
 
 negotiation for payment of money, by 47 
 
 once determined 353 
 
 open reference of title and dismissal of bill, between 625 
 
 parol variation, in cases of 369 
 
 payment into court and giving up possession, between 653, 656 
 
 performance and payment, between 55, 57, 60 
 
 {And see Penal Sum.) 
 
 plaintiff's offer, arising from 392 
 
 present practice, under 47 
 
 proposal giving l43 
 
 ratification and annulment, between 378 
 
 rescind, to 353, 507 
 
 settlement, in contracts for 64 
 
 SUBJECT-MATTER^?. 1).) of contract ascertained by 160 
 
 time for exercise of 353 
 
 EQUALITY : 
 
 essential in contracts 155, 181 
 
 EQUITY : 
 
 relief by 555 ti. 
 
 creates no right of action \Z n. 
 
 EQUITABLE ESTATE : 
 
 sale of 61^ 
 
 revesting of 633 
 
 when it passes 4^'''' ^33, 633 n„ 
 
 47
 
 738 INDEX. , 
 
 EQUITY OF REDEMPTION : page. 
 person interested in, a party 67 
 
 ERROR : 
 
 antecedens and consequens, distinction between 336 iu 
 
 COMPENSATION (g. v.)ioT 544 et seq., 579, 583, 595 
 
 knowledge of 319 
 
 means of discovering, before completion 561 
 
 person contracted with, as to 98 
 
 reduction of contract into writing, in 369, 371 n. . 
 
 {And see Mistake.) 
 
 ESTATE AGENT: 
 
 ACCEPTANCE (q. V.) hj 252 
 
 ESTOPPEL: 
 
 by treating contract as subsisting 616 
 
 EVIDENCE: 
 
 abandonment, of 524 
 
 additional terms, of 308 
 
 AGENCY {q. v.), of 259, 259 n., 263 n. 
 
 agreement to rescind, of 466, 494, 495 
 
 arbitrator, of 698 
 
 buildings not being on copyhold part, of 698 
 
 collateral matters, of 493 
 
 conflicting, as to breach of covenant 472 
 
 connecting subject-matter of contract with claim 159 
 
 damages, as to amount of 60S 
 
 defendant's denial, overcoming 379 
 
 distress, of 187 
 
 earnest as 285 
 
 extrinsic 167 
 
 fraud, of 205 n. 
 
 identity, of 157, 619, 633 
 
 knowledge of misrepresentation, of 333 
 
 litigation, to maintain 100 ii. 
 
 matters of, distinguished from matters of title 632 
 
 MISTAKE (q. v.), of 360, 373, 378 
 
 new contract, of 497, 499 
 
 (And see Novation.) 
 
 non-waiver of objection, of 616 
 
 PAROL {q.v.) 157, 159, 277, 386, 308, 360, 371, 377, 49S 
 
 admission of, for plaintiff 387 ei seq. 
 
 latent ambiguity, in cases of 379 
 
 only acted on when no writing exists 379 
 
 PART PERFORMANCE (q. V.), in cases of 281, 313 
 
 {And see Parol Variation.) 
 
 admission in pleadings, where there is 303 
 
 conflict of testimony, where there is 304 
 
 one witness, of 304 
 
 variation between contracts alleged and proved, where there is. . . 304 
 
 recovery of property, for 100 n. 
 
 REFERENCE OP TITLE {q. V.), under 627
 
 INDEX. 739 
 
 EVIDENCE— Conimy^c?. page. 
 
 secondary, of execution of deeds. 465 n. 
 
 SUBJECT-MATTER (g. V.) of contract, as to 157 
 
 terms of sale, of 284 
 
 trusteeship for real purchaser, of 278 
 
 usage of trade, of 378 
 
 variation of written contract, of 494 
 
 vendor, as to the real 163 
 
 willingness to remove objection, of 503 
 
 ■wills, of persons and things mentioned in 157 
 
 EXCHANGE: 
 
 contract for 16 n. 
 
 EXECUTED CONTRACT: 
 
 EXECUTORY CONTRACT {q. V.), contrasted with 9, 408 
 
 injunction as a right flowing from 407 
 
 notice, effect of, on the relief in respect of 105 
 
 PARTNERSHIP (q. V.), of 408 
 
 principle of entire performance does not apply to 407 
 
 rescission of, for innocent misstatements 319 
 
 specific performance may be refused Qn. 
 
 EXECUTORS : 
 
 contract enforced by 66, 91 
 
 discharged from hability, where 93 
 
 one of two, contract for sale by 191 
 
 personal qualities required, where 92 
 
 proposed lessee, of 93 
 
 suing before probate 91 
 
 EXECUTORY CONTRACT: 
 
 converted into actual sale by election 160 
 
 EXECUTED CONTRACT ((/. V.), Contrasted with 9, 408 
 
 implication in, as to usual stipulations 171 
 
 negative term, containing 412 et seq. 
 
 PARTNERSHIP {q. V.), fOT 409 
 
 performance of whole of 404, 407, 545 
 
 EXPECTANCY: 
 
 annuity charged on 679 
 
 contract relating to 677 et seq. 
 
 lunatic, from 679 
 
 personal nature of contract relating to 680 
 
 transfer of, not forbidden by the 82 Hen. VIII. c. 7 100 
 
 wife, of 679 
 
 {And see Contingent Interest, Will.) 
 
 EXTINCTION : 
 
 of SUBJECT-MATTER ((/. t).) 443,444,460, 675 
 
 FAILURE : 
 
 of CONSIDERATION {q. V.), et seq 443, 442;n. 
 
 FAIRNESS : 
 
 compromises, in. ••-.•• 183
 
 740 INDDX. 
 
 YAIR^BSS— Continued. page. 
 
 contingencies, in contracts involving 184, 193 
 
 essential 155, 181 
 
 famil}^ arrangements, in 183 
 
 " surrounding circumstances, of 186 
 
 when to be judged of 181 
 
 {Atul see Unfairness.) 
 
 FAMILY AERANGEMENT 99, 183, 214, 294 
 
 FAULTS: 
 
 sale with all 334, 335, 434 
 
 FEE-FARM RENT : 
 
 conditions of sale of 611 
 
 FELONY: 
 
 plaintiff, of 465 
 
 FINES . 
 
 manorial 635 n. 
 
 misstatement as to 597 
 
 FINES AND RECOVERIES ABOLITION ACT: 
 
 dispositions of lands by tenants in tail under 48 
 
 FIRE: 
 
 benefit of insurance against / 449 
 
 deeds destroyed by 465 
 
 music-hall destroyed by 478 
 
 subject-matter destroyed by 447 
 
 FISHERY : 
 
 contract for lease of 375 
 
 FOREIGN CONTRACT: 
 
 enforced here, may be 49, 49 n. 
 
 immovable property, relating to 49, 50 
 
 in specie, to deliver a thing here 50 
 
 legaUty of 223 
 
 lien on foreign real estate 50 
 
 marriage contract made in France 49 
 
 Mr. Justice Story on the English doctrine 50 
 
 Statute of Frauds {q. v.), affected by 240 
 
 FOREIGN GOVERNMENT: 
 
 contract by ._ 48 
 
 FORFEITURE: 
 
 acts which would have worked or would work 467 
 
 apprehension of, not a defense 199 
 
 calls, for non-payment of 519 
 
 deposit, of 661 
 
 equity will not enforce 467 n. 
 
 liability to, a hardship (?.«.) 198 
 
 relief against 470, 471, 659 n., 661 n. 
 
 resulting from other acts of defendant himself 199 
 
 WATVER {q. V.) of ■ 533 
 
 waste, worked by 468
 
 INDEX. 
 
 741 
 
 FORM OF PROCEEDINGS: paoe. 
 
 alternative relief 48 
 
 amendment ^° 
 
 {And see Inquiry, Issue, Pkculing, Reference of Title, Rules of Court, ^rii.) 
 
 FORMALITIES . 
 
 CORPORATION (q. V.) required in contracts by 309 e« seq. 
 
 omission of, in contract by corporation 239 
 
 Statute of Fratjds {q. v.) not required by 245 
 
 FRAUD: 
 
 absolute conveyance, in cases of 276 
 
 affects the entire contract .• . 350 
 
 agent, by 3*^ 
 
 antecedent wrong done, where 340 
 
 apparent defects no subject of 332 
 
 assign for value of contract tainted by 350 
 
 belief, by warranty of 320 
 
 certainty less required in cases of 179 
 
 certificates, in withholding 409 
 
 collateral parol contract or promise, in cases of 277 
 
 comes before the court in several relations 337 
 
 company, by 3~o 
 
 concealment by 338, 344 et seq. 
 
 CONDITIONS OF SAXE (q V.) in relation to 565 
 
 consideration, inadequacy of 205 n. 
 
 constituents of 287 
 
 corporations are incapable of personal 350 
 
 deceit, a ground for an action for 337 
 
 disclose, where there is an obligation to 330, 339 n. 
 
 dispositions by defrauding party to persons not privy to 352 
 
 election to be bound by contract tainted with, et seq 352 
 
 fiduciary relationship, in cases of 339 
 
 how shown 338 n. 
 
 imperfect statement, by 342 
 
 inducement to the contract, must have been 325 
 
 innocent party cannot derive benefit from another's 349 
 
 in toio, vitiates contract ^^*^ 
 
 knowledge of the untruth requisite to constitute 219 
 
 legal ■ 320 
 
 marriage articles or contracts, in relation to 279, 280, 300 
 
 married women, of 1^° 
 
 memorandum only ancillary to verbal contract, where 278 
 
 MISREPRESENTATION {q. V.), a larger word than 337 
 
 non-disclosure in cases of 338 
 
 non-performance of parol contract to sign a writing is not 279 
 
 obtaining contract, in 337 
 
 opening biddings for 365 
 
 parol evidence in cases of • • • • 2(9 
 
 part of contract, as to 350 
 
 partnership, in contract for 682
 
 742 INDEX. 
 
 FRAUD — Continued. pagb. 
 
 PART-PERFORMANCE {q. V.), prevented by the operation of the principle 
 
 of 286 
 
 perf onnance of contract, in 337 
 
 personal bar to performance, a 351 
 
 plea of 320 
 
 promise to rectify objection, by non-fulfillment of 391 
 
 prospectus, in 342 
 
 proviso for defeasance or redemption omitted, where 278 
 
 public, on the 357 
 
 PUKFER {q. v.), by employment of 347 et seq. 
 
 receipt of dividends before discovery of 364 
 
 refusal to sign a written contract is not 279 
 
 rescind, partly defrauded may 368 n. 
 
 RESCISSION (q. V.) for 181, 337 
 
 restitutio in integrum in cases of 354 et seq. 
 
 right to complain of, not marketable 100, 228 
 
 sale with all faults, in cases of 344 
 
 settlement, upon 589 
 
 shares, inducing contract to take 354 
 
 SILENCE (q. V.) generally is not 317, 338, 343 et seq. 
 
 may he 341 
 
 specific performance, a defence to an action for 337 
 
 Statute of Frauds, an exception to 375, et seq. 
 
 stranger, by 350 
 
 suppression of material fact, in cases of 338 
 
 uberrimm fidei, where contract is 341 
 
 voidable only, renders contract 351 
 
 waiver of 349, 350 
 
 wills, in relation to 281 
 
 {See Misrepresentation.) 
 
 FRAUDS, STATUTE OF 2^ et seq. 
 
 {See Statute of Frauds.) 
 FREEHOLD : 
 
 cannot be forced on purchaser of copyhold, and vice versa, 424, 424 n., 579 n. 
 
 FRENCH LAW: 
 
 inadequacy of consideration ; as to 209 
 
 no specific performance in 707 
 
 price, as to non-ascertainment of 63 /i. 
 
 rescission, as to 209, 356 
 
 FUNDS. 
 
 {See Stock, 26.) 
 
 FURTHER CONSIDERATION: 
 
 specific performance ordered on 628, 629 
 
 FUTURE ACTS: 
 
 judgment relating to 704 
 
 GIFTS OF REAL ESTATE 204 n. 
 
 GOING CONCERN: 
 
 contract for sale of 518, 561
 
 INDEX. 743 
 
 PAGE. 
 
 GOOD FAITH IN FORMING CONTRACT 321 n. 
 
 GOODS: 
 
 appropriation of 160 
 
 GOODWILL: 
 
 attorney's business, of 36 
 
 contract for sale of t 36, 521 
 
 nature of 36 
 
 term respecting, introduced by acceptance 133 
 
 GOVERNMENT STOCK. 
 
 {See Stock, 26.) 
 
 GREGORY, DECRETALS OF. 
 
 {De Pactis, 6.) 
 GUIDE-BOOK: 
 
 contract to edit 357 
 
 HARDSHIP: 
 
 acts of plaintiff after contract, arising from 196 et seq. 
 
 alteration of state of property, arising from 196 
 
 annuity, in contract to sell 449 
 
 AWARD {q. v.), in 195 
 
 bars the court's interference 193 
 
 BREACH OF TRUST {q. V.), wliere contract necessitates 190 
 
 brought upon defendant by himself 198 
 
 companies, in contracts between 202 
 
 covenant to leave buildings in repair, arising out of 201 
 
 discretion of court not affected by 10 
 
 disregard of time, resulting from 520 
 
 failure of purchaser's speculation not a 198 
 
 forfeiture, wliere apprehension of 199 
 
 where liability to 199 
 
 impossibility of enjoying thing purchased, where 201 
 
 inadequacy of consideration a form of 202, 204 et seq. 
 
 indemnity, where vendor has not stipulated for 200 
 
 latent and patent, distinguished 197 
 
 members of corporation, resulting to 198 
 
 mortgage, on 200 
 
 oppressive covenant, of 201 
 
 option, arising from grant of 201 
 
 partnership, in contract for • 682 
 
 plaintiff's conduct a trap to purchaser, where 197 
 
 service, of contract for 201 
 
 SILENCE (q. V.) creating 188 
 
 submission, in 195 
 
 subsequent events, arising from 193 et seq. 
 
 trustees for sale, on 200 
 
 when to be judged of 193 
 
 when a defense • • 193 n. , 198 n. 
 
 HEIE: 
 
 costs of 88 «., 90 n.
 
 744 INDEX. 
 
 B-EIR—Contimied. . fagb- 
 disposition of succession by 677 
 
 EXPECTANCY (q. V.) of 677 
 
 infant 90, 460 
 
 non-performance by .- 460 
 
 purcbaser's, wbere a party 91 
 
 specific performance decreed against 18 
 
 trustee, declared 90 
 
 imauthorized sale, decreed to make good 481 
 
 vendor's wben a party 80, 90 
 
 HEIRLOOM 20 
 
 HIKING AND SERVICE: 
 
 auctioneer, of 45 
 
 broker, of 417 
 
 confidential office, in cases of 44 
 
 contracts for, formerly enforced 43 
 
 HARDSHIP {g. iJ.) of 201 
 
 now not enforced. ,43, 45, 416 
 
 manager for life, of 43 
 
 sbipping broker, of 45 
 
 HONORARY ENGAGEMENT 131, 148, 149, 268, 289 
 
 partly legal 418 
 
 HUSBAND AND WIFE: 
 
 assignment by, of wife's expectancy 679 
 
 bond given before marriage, where 19 
 
 consent of, to trustees' contract 104 
 
 contracts between. . ..'.... 128, 482 n. , 688 
 
 by 482, 588 
 
 with 215 TO. 
 
 {And see Married Woman, Wife.) 
 
 IDENTITY: 
 
 declaration of 619 
 
 evidence of 157, 619, 632 
 
 parties, of 161 
 
 (And see Description.) 
 
 SUBJECT-MATTER {q. V.), of 157 et seq. 
 
 IGNORANCE: 
 
 common 
 
 675 
 
 (A7id see Knowledge, Mistake.) 
 ILLEGALITY: 
 
 a bar to specific performance 222, 223 n. , 224, n. 
 
 alternative, of 486 
 
 AWARD (q. v.), of act directed to be done by 228 
 
 breach, of trust, where contract necessitates 190 
 
 clearness of, what required to be shown 228 
 
 compensation of 497 ?i. 
 
 foreign contracts, in cases of 223 
 
 immoral consideration 230 n. 
 
 impossibility of performance resulting from 448
 
 INDEX. 745 
 
 ILLEGALITY— Continued. page. 
 
 inquiry as to 228 
 
 Jessel, M. E., on 229 
 
 modelling contract to obviate 484 
 
 nature of the defense of ■ 224 
 
 partnership, in contract for 082 
 
 part-performance, objected after 155 
 
 public policy, in regard to 223 
 
 stock, in contract for transfer of 229 
 
 subsequent statute, created by 222, 448 
 
 trade unions, in rules of ♦ - 230 
 
 trust constituted, where 229 
 
 ILLITERATE PERSON: 
 
 contract, by 187 
 
 IMPLIED TERMS: 
 
 contract, of 455, 169 
 
 purchaser's lien, as to 600 
 
 rebutted l"^! 
 
 silence as to 1^^ 
 
 title, as to : 610 
 
 waiver of 1 *" 
 
 IMPROVEMENT: 
 
 made under promise of gift 508, 638 n. 
 
 IMPOSSIBILITY: 
 
 amalgamation, of executing contract for 410 
 
 COMPENSATION {q. V. ), of ascertaining amount of 590, 597 
 
 consent, of procuring 481 
 
 of fulfilling contract 45 n. 
 
 default of defendant, due to 410, 507 
 
 delivering-up deeds, of • 465, 480 
 
 elected alternative, of 490 
 
 extinction of subject-matter, owing to 444, 478 
 
 fraudulent misconduct, induced by 507 
 
 illegal contract, of performing 448, 479 
 
 lease of performing contract to grant 603 
 
 legal 479 
 
 one alternative, of 4ob 
 
 by act of God 487 e< seq. 
 
 by act of other party - 489 
 
 by act of stranger - 490 
 
 original ; '*'"" 
 
 plaintiff's part, of performing 460 
 
 putting parties in position stipulated for, of 35 
 
 / 481 
 
 removed 
 
 RECissioN (g. V ) for 507 
 
 winding-up, arising from • • • " * '^ 
 
 INADEQUACY: 
 
 COMMON LAW {q. V. ) remedy, oi -^ 
 
 CONSIDERATION {q. V.), of ~^"-' 213, 449
 
 -746 
 
 INDEX. 
 
 IN ADEqU ACT— Contimied. page. 
 
 evidence of fraud 205 7i. 
 
 what is 206 n. 
 
 when a defense v 206 n. 
 
 INCAPACITY: 
 
 defendant the author of his own 480, 401 n., 419 n. 
 
 of court to execute contract 35, 399, 682 
 
 (jbid see Partial Execution.) 
 
 defendant to perform his part 478, 479, ?i. 
 
 vendor to convey, knowledge of 587 
 
 ^INCAPACITY TO CONTKACT: 
 
 agent of 130 
 
 confidential relations, of persons standing in 130 
 
 distinguished from incapacity to execute contract 124 
 
 ground of defense 124, 187 
 
 guardians of 130 
 
 husband and wife, of 688 
 
 LUNATIC ((?.«.), of 139 
 
 MARRIED WOMAN (q. 1).), of 125, 129 
 
 when judged of 124 
 
 INCOME-TAX: 
 
 deducted from interest paid by purchaser 644 
 
 occupation-rent, on 648 
 
 payment into court, in cases of 657 
 
 INCOMPLETENESS : 
 
 contract, of the 155, 171 
 
 defendant's default, arising from 156, 460 
 
 evidence of the contract, in the 156 
 
 future agreement, where matter reserved for 169 
 
 implied terms, as to 169 
 
 instances of 168 
 
 material item wanting, where 171 
 
 PRICE iq. v.), ast 162 
 
 remediable 156 
 
 treaty, in cases of 249 
 
 (_And see Completeness.) 
 
 ^INDEMNITY: 
 
 calls, against 664 
 
 charge on estate, against 593 
 
 COMPENSATION {q. V.), a specics of 575 
 
 contract for, enforced 481, 704 
 
 when broken 704 
 
 declaration of liability to perform covenant for 704 
 
 ELECTION (q. V.) between, and rescission 200 
 
 equitable owner of shares, from 671 
 
 FRAUD (q. v.), against loss resulting from 355 
 
 future demands, against 704 
 
 inquiry as to, in respect of charge 577 
 
 new contract (for shares), enforced by action for 670
 
 INDEX. 747 
 
 INDEMNITY— Cfe?i<i7iw«Z. page. 
 
 parol contract to give 391 
 
 part of purcliase-money set aside as 592 
 
 purchaser not compelled to take 575, 581 
 
 trust, on ground of 671 
 
 vendor not compelled to give 591, 592 
 
 vrinding up after contract to purchase shares, in case of 675 
 
 INDIAN LAW: 
 
 of contract, ancient 3 
 
 INEQUALITY 155, 181 
 
 (See Equality.) 
 INFANT: 
 
 compromise by 692 n. 
 
 DEPOSIT (g. v.), cannot generally recover 215 n. 
 
 non-perforjnance by 460 
 
 passing on name of 669 
 
 KATIFICATION (q. ®. ) by 215 71. 
 
 INITIALS: 
 
 signature by 254, 256 
 
 INJUNCTION: 
 
 Act of Parliament, to enforce contract sanctioned by 408 
 
 actor, against 413, 413 
 
 acts inconsistent with contract, against 417, 548, 549 
 
 advertisements, against issue of 417 
 
 ancillary 544, 546 
 
 balance of convenience in relation to 548 
 
 bell, against ringing 546 
 
 benefit of, conditional on plaintiff's performance of his part 546 
 
 breaches frequent, where 36 
 
 building, against 545 
 
 business, against carrying on 57, 59 ?i. 
 
 charter-party, against acts inconsistent with 414, 415 
 
 clerk, against presenting, instituting, or collating 549 
 
 collier}', against selling 416 
 
 connected with specific performance {q. v.), how 544 
 
 conveying away legal estate, against 547 
 
 damages for delay, against action for 549 
 
 deposit, against action for 549, 574 
 
 ejectment, against 465, 469, 547 
 
 executed contract, as a right flowing from 408 
 
 express or implied term, restraining breach of 544 
 
 extent of the court's jurisdiction in 551 
 
 farming covenant, against breach of 58, 407 
 
 granted, when 547 n, 
 
 injustice worked by 544 ?i. 
 
 in statu quo, to keep property 546 
 
 instrument of performance 544 
 
 interlocutory 547, 548, 551 
 
 Judicature Acts as to 550, 551
 
 748 
 
 INDEX. 
 
 INJUNCTION— Co?i<mwfi(f. page. 
 
 lease, to enforce covenant in 407, 409 
 
 letting estate pending the hearing, against 548 
 
 liable to be dissolved, where 546 
 
 maps, to restrain sale of 413 
 
 negative term, where contract contains 413, 545, 54fi 
 
 non-performance, enforcing rights resulting from 544, 550 
 
 Parliament, against applying to 703, 703 
 
 part of contract incapable of performance, where 545, 546 
 
 {And see Partial Execution.) 
 
 partnership, in cases of 408 
 
 possession, against continuing in 550, 558, 559 
 
 prima facie case, upon . 547 
 
 probate, against applying for 549 
 
 repairs enforced by 43 
 
 restitution of conjugal rights, against suit for . 549 
 
 restrain execution 551 n. 
 
 sale and surrender of estates, against 547, 548 
 
 second purchase before completion of first, against 549 
 
 separation deed, against breach of covenant in 48 
 
 service, to enforce covenant for exclusive 413 
 
 ship, against removing 50 
 
 singer, against . 413 
 
 specific performance, where court is unable to grant 413, 416 
 
 third persons, against 549 
 
 timber, against cutting 547 
 
 trade, against carrying on 58 
 
 trains, against running 559 
 
 unenforceable terms all on plaintiff's side, where 418 
 
 valuer, against obstructing 548 
 
 voyage, against interference with 414 
 
 INQUIRY: 
 
 average balance at bankers, as to 651 
 
 damages, as to ' 603, 604 
 
 deterioration, as to 599 
 
 indemnity, as to 577 
 
 rules of court, under 634 
 
 terms of contract, as to 306 
 
 title, as to 609, 673 
 
 {See Reference of Title.) 
 
 variations in partnership contract, as to 498 
 
 willful default, as to 644 
 
 INSANITY 139, 166, 679 
 
 {See Lunacy. ) 
 INSOLVENCY : 
 
 assign 465 
 
 convenantor 465 n. 
 
 intended lessee, of 464 
 
 original contractor, of 465 
 
 plaintiff, of 465 
 
 subsequent afiiuence, in cases of 465
 
 INDEX. 749 
 
 INSTALLMENTS: page. 
 
 contract to be performed by 35 
 
 interest on G59 
 
 payment into court of 655 
 
 price to be paid by 410, 449 
 
 purclaaser's lien for 659 
 
 refusal to make due payment of 505 
 
 separate breaches in respect of 504 
 
 INSTRUCTIONS : 
 
 for settlement. 131 
 
 INSTRUMENT : 
 
 contract to execute revocable 38 
 
 INSURANCE 449 
 
 {See Fire.) 
 INTENTION 148, 149 
 
 {See Bepresentatio7i.) 
 INTEREST: 
 
 amount on which purchaser pays 644 
 
 appropriated purchase-money, on 639, 651 
 
 arrears of 658 
 
 award, from date of 639 
 
 contract exempting purchaser from payment of 651 
 
 silent as to 636 
 
 to sell vendor's 159 
 
 condition for payment of, whatever cause delay may arise. . .640, 643, 649 
 
 deduction of income-tax on the amount of 644 
 
 deposit, on 629, 637, 644 
 
 dispossession of purchaser, in case of 653 
 
 election between, and rents 649 
 
 examption from, not enforced 651 
 
 implied agreement to pay 649 
 
 instalments of purchase-money, on 660 
 
 interest on 660 
 
 personal occupation, where vendor is in 647 
 
 possession returned by purchaser, where 650 
 
 purchaser in possession generally pays 648 et seq. 
 
 though delay owing to vendor and no actual profit made 649 
 
 rate of, allowed to vendor 644 
 
 stipulation for increasing 650 
 
 rents and, mutually exclusive . 636, 649 
 
 deducted from 652 
 
 reserved to vendor by conditions of sale, where 640 
 
 set off against amount of deterioration 646 
 
 Statute of Limitations, when due within 658 
 
 statutory power, where possession taken under 653 
 
 time from which purchaser has to pay, where action rendered neces- 
 sary by purchaser's objections 539 
 
 conditions fix time for delivery of abstract 643 
 
 contract fixes a date for completion 637 
 
 fixes no date for completion 636
 
 750 INDEX. 
 
 mTEB.BST—Coniinued. pagb_ 
 leaves amount of purcliase-money to be subsequently ascer- 
 tained 639 
 
 estate sold is reversionary 652 
 
 interest much exceeds rents and delay is owing to vendor 637 
 
 notice of appropriation of purchase-money has been given, 
 
 639, 643, 649, 650 
 
 price is ascertained by verdict of jury 653 
 
 time for payment into court is appointed 653 
 
 title is made out in Chambers 637 
 
 INTOXICATION: 
 
 contract not void but voidable in cases of 188 n., 189 n. 
 
 defense, a 188, 364 
 
 INVENTORY: 
 
 vendor obstructing the making of 548 
 
 ISSUE: 
 
 devisnvit vel non 693 
 
 quav-tum damnificatus 484, 599 n., 604, 646 
 
 JOBBER: 
 
 contract of sale to 668 
 
 JUDGE'S ORDER 131 
 
 JUDGMENT CREDITOR: 
 
 when a party ■ 66 n. 
 
 JUDICATURE ACTS, 1873 and 1875: 
 
 damages, in relation to 601 
 
 injunction, as to 550 
 
 multiplicity of legal proceedings, as to 394, 693, 694 
 
 specific performance assigned in certain cases to Chancery Division 
 
 by 538 
 
 stay of proceedings, as to 550 
 
 time, as to 511 
 
 transfer of actions, as to 538, 539 
 
 JURISDICTION: 
 
 boundaries of North American colonies, respecting 48 
 
 Companies Act. 1863, s. 35, under 543 
 
 concurrent, of High Court and County Courts 540 
 
 County Courts [q. v.), oi 539, 540 
 
 defendant not subject to, where 48 
 
 given by contract itself 48 
 
 INJUNCTION (q. v.), va. 544 et seq. 
 
 Lands Clauses Act, to enforce proceedings under 53 
 
 matrimonial causes, in 48 
 
 penalty, efEect of, on the 55 
 
 person, against the 48 
 
 Sovereign in Council, of the 48 
 
 statute, where taken away by 48 
 
 subject-matter not originally within 48 
 
 {And see Specific Performance,.)
 
 IITDEX. 751 
 
 JURY: PASE. 
 
 price ascertained by verdict of 52, 53, 549 
 
 JUST ALLOWANCE: 
 
 income-tax on occupation-rent, of 648 
 
 JUST, CONTRACT MUST BE 181 ?i. 
 
 JUSTINL^N: 
 
 quoted 164 
 
 KNOWLEDGE: 
 
 defect in vendor's title, of - = 586, 588 
 
 LACHES: 
 
 bar to relief, a • 527 
 
 continuing in possession under arrangement "will not effect question 
 
 of 533 
 
 delay constituting 524: et seq. 
 
 deposit allowed to remain in vendor's hands, where 533 
 
 disentitling vendor to payment into court 653 
 
 expiration of company's powers by 194, 216 
 
 insisted on as a defense 622 
 
 mere claim or protest, in cases of 533 
 
 negotiation, pending 531 
 
 railway act, where land taken under 533 
 
 refusal to execute lease, after '• • 531 
 
 resale by vendor if gross ■ 53 ti. 
 
 {And see Belay, Time.) 
 
 LAND TRANSFER ACT, 1875 81, 87, 439, 541 
 
 {And see Parties.) 
 LANDS CLAUSES CONSOLIDATION ACT, 1845: 
 
 charitable corporation selling under 480 
 
 compensation-money, ascertainment of, under 53 
 
 election by proceedings under 47 
 
 jurisdiction to compel company to proceed under 52 
 
 mandamus to compel proceedings under 52 
 
 no equitable relief in cases under 52 
 
 notice to treat under, 
 
 effect of ^2 
 
 followed by contract 53 
 
 Parliamentary contract under 53 
 
 possession taken under "52 
 
 proceedings under, enforced 53 
 
 purchase-money, how ascertained under 52 
 
 quasi-contracts under ^^ 
 
 refusal of company to proceed under 52 
 
 of land-owner to convey under 52 
 
 warrant to sheriff to summon jury under 157 
 
 LAPSE OF TIME 510 «^ ««?• 
 
 {See Time.-) 
 LEASE : 
 
 antedating 468, 472-
 
 752 IXDEX. 
 
 • 
 
 JjEASlEr-Contirmed. ^^<^^- 
 
 assignability of contract for ^ ' 
 
 bishop's ^'^ 
 
 breach of covenant before execution of 38, 468 
 
 conditional contract to accept ^'^'^' ^^8 
 
 contract to accept 157, 412, 575 
 
 to procure surrender of ^ ' ^ 
 
 copyholder contracting to grant ^S'* 
 
 COVENANT (g. V.) to renew 20, 217, 469, 471 
 
 disobedience to order for execution of 556 
 
 expiration of, before the hearing 450, 451 
 
 farming, covenants in ■ 35, 58 
 
 house to be built, of 41 
 
 lives, for 
 
 168 
 
 notice of covenants in 335 
 
 person out of possession, contract by, to grant 100 
 
 personal accommodation, for "9 
 
 power, under -^l" 
 
 re-entry, proviso for, in 469 
 
 solvency of intended lessee in contract for 95, 465 
 
 suppressio veri in obtaining renewal of 188 
 
 useless to intended lessee 450 n. 
 
 usual covenants, described as subject to 423 
 
 LEASEHOLD: 
 
 advance on security of 18 
 
 LEGAL ESTATE : 
 
 passes upon and by conveyance 533 
 
 LEGATEE : 
 
 when a party 80, 91 
 
 LESSEE: 
 
 assign of intended 99 
 
 death of proposed 92 
 
 insolvent 96 
 
 lien of 660 
 
 party, when a ''^ 
 
 solvency of 96, 464 
 
 LESSOR : 
 
 TITLE (?.«.) of 170, 613, 614, 620 
 
 {And see Waiver.) 
 
 LETTERS: 
 
 conditions of sale, ref emng to • • 269 
 
 constituting contract and evidence of it 270 
 
 correspondence by, must be considered as a whole 270 
 
 declining to accept goods 271 
 
 enter into contract 271 
 
 evidence of contract completed or supplied by 265 
 
 extending time for completion 535 n. 
 
 general assurance as to intention, containing 149 
 
 implication of contract from 278
 
 IISTDEX. 
 
 753 
 
 LETTERS— Continued. page. 
 
 lessor's name, mentioning 269 
 
 parol evidence in relation to 266 
 
 promising to perform contract 268 
 
 reference in, express 268 
 
 to written terms 268, 269 
 
 repudiating contract 270, 271 
 
 BiGNATUEE (q. V.), where paper referred to for 267 
 
 supply a term, used to 269 
 
 third persons, addressed to 270 
 
 LETTERS PATENT : 
 
 contract contemplating the obtaining of 618 
 
 LEX FORI: 
 
 remedies governed by 49 
 
 LEX PRiETORIA: 
 
 quoted • ^^^ 
 
 LIEN: 
 
 costs of action, for 630, 660 
 
 counterclaim for declaration of 660 
 
 lessor's interest on 660 
 
 on land, where surrender had no title 680 
 
 purchaser's declaration of 662 
 
 extent of 660 
 
 for purchase-money paid and interest 600, 629, 635, 659 
 
 mode of enforcing 660, 662 
 
 where purchase-money paid over to trustees 587 
 
 sub-purchaser, of 660 
 
 vendor's (q. V.) 657 
 
 LIGHT-HOUSE : 
 
 contract to build ^2 
 
 LIQUIDATED DAMAGES 68 n. 
 
 LIS PENDENS: 
 
 third person affected by 648 
 
 LORD BACON: 
 
 quoted ^^^ 
 
 LORD CAIRNS' ACT: 
 
 building of house and grant of Jease, where contract for ... . 41, 156, 411 
 
 condition, in cases of^non-performance of 411 
 
 DAMAGES (q. v.), Under, condition precedent to 599, 602 
 
 subsequent to decree not assessed under 600 
 
 jurisdiction under, discretionary 599, 602 
 
 power of awarding damages conferred by 599 
 
 unavailable, where 599 
 
 LOSS: 
 
 • DETERIORATION {q. V.), from 646, 647 
 
 happening after signature^f contract 446, 449 
 
 profits, of : • • ^^^ 
 
 purchaser's obligation to.bear 634 
 
 48
 
 754 INDEX. 
 
 LOSS — Continued. tase. 
 
 right to rescind, of 503 
 
 stakeholder, of money in hands of 658 
 
 LOTS: 
 
 sale in distinct 401 
 
 one ^^^ 
 
 purchasers of separate : 399 
 
 {And see Parties. 69, 78.) 
 
 LUNACY : 
 
 contract respecting costs of proceedings in 679 
 
 how judged of 1^30 
 
 issue directed as to • . • 166 
 
 setting aside contract for 129 n. 
 
 subsequent, of party to contract 129 u. 
 
 supervening, of vendor 166 
 
 LUNACY KEGULATION ACT, 1853 130 
 
 LUNATIC: 
 
 contract relating to division of property of 679 
 
 generally incapable of contracting 129 
 
 lucid intervals of, contracts during 129, 129 n. 
 
 evidence required to prove 129 n. 
 
 satisfied term outstanding in 630 
 
 MAINTENANCE : 
 
 doctrine of 10*^ 
 
 transaction savouring of 100 
 
 MANDAMUS : 
 
 Lands Clauses Act 51 
 
 object of 4 
 
 prerogative writ of 4 
 
 statutory writ of 4 
 
 MANOR : 
 
 fines in 597, 636 n. 
 
 MAP 456 
 
 {See Plan.) 
 MARINE INSURANCE : 
 
 contracts for 341 
 
 MARRIAGE : 
 
 acceptance of written proposal, evidence of 151 
 
 agreement in consideration of, must be in writing 298 
 
 contracts for, enforced in ecclesiastical courts 6, 20 n, 37 n. 
 
 contract in restraint of, unlawful 224 n. 
 
 PART PERFORMANCE {q. T.), is not 151, 297, 299 n. 
 
 promise, not induced by 150 
 
 {See Representation.) 
 
 proposals on treaty for 151 
 
 settlement 85 n. 
 
 written memorandum of contract after 271
 
 INDEX, 765 
 
 MARRIAGE ARTICLES OR CONTRACTS: pasb. 
 
 FRAUD {q. V.) in relation to 279, 280, 300 
 
 impossibility of performing part of 461 
 
 partial performance of " 407, 463 
 
 uncertainty of 177 
 
 MARRIED WOMAN: 
 
 bound by order of the court to convey 631 
 
 capacity of, to contract 688, 124 
 
 compromise by 683 
 
 election by ... 128 
 
 fraud of • 128 
 
 general engagements of 126 
 
 husband, contracting with 688, 128 
 
 lease, contracting to take 127 
 
 power, contracting under 127 
 
 real estate of 128 
 
 separate estate of : 
 
 actions as to 1 27 n. 
 
 bound 127 
 
 having 127 
 
 not having 125 
 
 parties to action in respect of 127 
 
 restraint on anticipation, with 127 
 
 trustee for sale 129, 215 
 
 (And see Husband and Wife, Wife.) 
 
 MARRIED WOMEN'S PROPERTY ACT, 1870 127 n, 
 
 MARRY : 
 
 specific performance of contract to 6 n. 
 
 MASSINGER : 
 
 his maid of honor cited 6 ». 
 
 MAXIMS : 
 
 Actio personalis moritur cum persona 92 
 
 Actio sequitur forum rei 49 
 
 JEquitas agit in personam 49 
 
 Ex dolo mala Twn oritur actio 224 
 
 Id cerium est quod certum reddi potest 157, 159, 161 
 
 Ignorantia juris Tiaud excusat 379, 383 
 
 Nemo potest precise cogi ad factum 3 
 
 Non videntur qui errant consentire 361 
 
 Omnis raiiMbitio retrotrahitur et mamlaio cequiparatur 259 
 
 MEDICINE : 
 
 secret • 35 
 
 MEMORANDUM : 
 
 of offer distinguished from memorandum of agreement ^cf.) il32, 143 
 
 {And see Statute of Frauds.) 
 
 MERCHANT SHIPPING ACTS 683. 686 
 
 MESNE PROFITS 648 7i,
 
 766 INDEX. 
 
 MINES : PA««. 
 
 delay under contract for lease of 528 
 
 non-communication of existence of 344 
 
 representations with regard to 325, 329 
 
 TIME {q. V.) essential in contracts relating to 518 
 
 uncertain contract to take l"''?, 186 
 
 vendor working, during delay of completion 646 
 
 working contract for ........' 40, 471 
 
 MISDESCRIPTION : 
 
 annuity, of 562 
 
 both parties, attributable to • 395 
 
 defendant alone, attributable to 395 
 
 equitable interest, of 562 n. 
 
 fraudulent 395 
 
 indemnity in respect of 575 
 
 innocent . 
 
 895 
 
 plaintiff alone, attributable to 395 
 
 RESCISSION {q. V.) for 579 
 
 ring-fence, of farm as lying within 577 
 
 trustees for sale, by 191 
 
 underlease sold as lease, where • • • 580, 582 
 
 waiver of objection on the score of 616 
 
 {And see Misrepresentation, Mistake.) 
 
 MISREPRESENTATION : 
 
 advowson, on sale of 326 
 
 afifects the entire contracts 350, ^351 
 
 agency, what proof required as to, in cases of 318 
 
 agent by 318, 321 n , 333 n. 
 
 to •• 336 
 
 allegation of, how met 330 
 
 alleged fact, must be statement of '• 325 
 
 assignment of contract affected by 335 
 
 belief of truth, must exist 325 n. 
 
 collateral matter, as. to 322 
 
 commendation by vendor, in cases of : 327 
 
 COMPENSATION (q. V.) \Q cases of 576, 582, 583 
 
 CONDITIONS OF SALE {q. V.), in relation to 565 
 
 contract, as to 313 n. 
 
 deceit, as ground for action for 317, 320, 323 
 
 description in 583 
 
 directors, by ^ 318, 323 
 
 dolus clans locum contractui 323 
 
 effect must be produced. 326 to. 
 
 elements of 315 
 
 evidence of knowledge of 333 
 
 examination by party " 3S2 n. 
 
 flourishing description not • 583 
 
 FBAUD {q. v.), how related to 316 
 
 fraudulent experiments, by performance of 313 
 
 house, as to character of 335
 
 INDEX. 757 
 
 MISREPRESENTATION— Cfenfo'nti/Jd. • PAeir.. 
 
 inadvertant, a man is generally bound in equity by 821 
 
 innocent 320, 350, 355, 380 
 
 intention, of 322 
 
 joint-stock company, by 323 
 
 knowledge of matter constituting alleged 319, 330 
 
 latent or patent fact, of ." 31^ 
 
 law, of 331, 380 
 
 lease, with respect to • 335 
 
 lime, as to quality of -• 327, 329 
 
 material to the contract, must be 336 
 
 matter of fact, must be of 331 n. 
 
 means of knowledge, where 327 
 
 mines, with regard to 325, 329 
 
 non-reliance upon, how shown 327 
 
 not sole inducement to the contract, where 325 
 
 partnership, in cases of 334 
 
 party, must be by a 318 
 
 patent defect, in cases of 332 
 
 person contracted with, as to 335 
 
 personal bar to relief, a 357 
 
 prejudice of defendant, must have operated to * 336 
 
 principal innocent, where 320 
 
 prospectus, in 323 
 
 purchaser, by 344, 345 
 
 recollection, where want of 321 
 
 recommendation to consult adviser, where 334 
 
 relation to the contract, must have 322, 325 
 
 reliance of defendant upon the 324 
 
 report, by issue of false 318, 323 
 
 RESCISSION (q. v.), a ground for 316, 334 
 
 when not a grovmd for 355 
 
 resulting in contract between director and one of the public 323 
 
 sale with all faults, in cases of . .' « 335, 424 
 
 SHARES {q. v.), in relation to contracts for 318 
 
 SILENCE iq. V.) generally is not 317 
 
 small part only of contract, as to 850 
 
 specific performance, a ground for refusing 313, 316 
 
 state of mind of person making 319 
 
 statement false but believed to be true, where 319, 330 
 
 made and untrue, where 317 
 
 stock exchange, to secretary of 323 
 
 stranger making • 318 
 
 tenancy, as to 583 
 
 theatre, as to profits of '- 335 
 
 time of treaty, must generally have been made at 323 
 
 TITLE (q. v.), as to 331, 345 
 
 trustee, by 321 
 
 unimportant 597 
 
 vague commendations to be distinguished from 345 
 
 water-meadow, as to land being 326
 
 758 INDEX. 
 
 MISREPRESENTATION— Cbntim/ed. pao". 
 
 willful or not ^^^ 
 
 woods, as to yield of ^^^ 
 
 {And see Mistake.) 
 
 MISSTATEMENT : 
 
 COMPENSATION {q. V.), foT 579, 594 
 
 (And see Misrepresentation, Fraud.) 
 
 MISTAKE : 
 
 absolute bar to specific performance, may be 361 
 
 agent, of ^^'^ 
 
 American jurist on 
 
 393 
 
 assurance, in contract for 375 
 
 auctioneer, of 365 
 
 award, iu - • 390 n. 
 
 careless ■" ^^* 
 
 common, of botli parties 374, 395, 443, 675 
 
 COMPENSATION {q. V.) for 361, 595 
 
 corporation's agent, of 366 
 
 crassa negligentia, increased by - 364 
 
 damages where specific performance refused on ground of 603 
 
 deed, may be corrected in 372 n. 
 
 defendant, of, alone 363, 368,- 395, 603 
 
 contributed to by plaintiff 363 
 
 where not a defense 33 
 
 definition of 360 n. 
 
 dismissal of action for 371 
 
 bill for ■. 372 
 
 documents of title, as to effect of 383 
 
 effect of contract, as to 385 
 
 election in cases of 33t» et seq. 
 
 evidence of ... - 373 
 
 fact, of 379, 380 
 
 failure of consideration, may avoid contract for 361 
 
 fishery, in contract for lease of 375 
 
 forms of 7,8, 396 
 
 innocent ^^^ 
 
 law, of 375 
 
 leasehold interest, as to duration of 385 
 
 manor, on sale of 365 
 
 means of knowledge, where person had 379 n. 
 
 MiSDESCKiPTiON {q. V.) , by 395 
 
 misleading particular and condition, occasioned by 363 
 
 no ground for, where 868 
 
 not about the very subject of the contract 385 
 
 one party, of 360, 363, 378 
 
 opening biddings, not a ground for • 365 ii. 
 
 operation of law, as to . .• • 380 n. 
 
 operation of contract, as to 384 
 
 option to determine lease, as to 368 
 
 parol evidence admitted in cases of 362, 378 
 
 FAROL VARIATION {q. V.), in cascs of 368, 386
 
 INDEX. 759 
 
 MISTAKE— Continued. pagh. 
 
 plaintiff alone, of 387 
 
 plan, occasioned by ' 364 
 
 principle of the defense of 361 
 
 private right, as to 383 
 
 KECTIFICATION {q. V.) of 376 
 
 when not a ground for compelling 378 
 
 reduction of contract into writing, in 369, 871 n, 376, 887 
 
 EESCissiON (q. V.) for 369 
 
 reserve bidding, of person employed to make 363 
 
 Roman law as to 385 
 
 sample, in sale by 369 
 
 shares, in contract relating to 676 
 
 solicitor, of 865, 377 
 
 species of, distinguished 360 
 
 speculation upon facts, in cases of 384 
 
 Statute of Fratjds {q v.), an exception to 388, 361 
 
 subsequent parol contract not within doctrine of 386 
 
 tenant for life, of .- 866 
 
 unreasonable 367 
 
 vendor, of 365 
 
 vendor's agent of 364, 365 
 
 want of consent, may avoid contract on ground of 361 
 
 (AndseeMisrepreseJitation, Parol Variation.) 
 
 MONEY; 
 
 agreement to lend or pay 17 
 
 contract satisfied by payment of 23, 25 
 
 equivalent for breach of contract, when an 22 
 
 measure for every loss 22 
 
 MOKTGAGE: 
 
 contract to execute • • 17 
 
 MOETGAGEE: 
 
 contract, of 95 
 
 party, when a 67, 80, 96 
 
 MORTGAGOR: 
 
 when a party 68 
 
 MULTIFARIOUSNESS : 
 
 demmTer for '. 78 
 
 no objection made for '8 
 
 MULTIPLICITY: 
 
 of suits, avoiding • 76 
 
 {And see Judicature Acts, 1873 and 1875.) 
 
 MUNICIPAL CORPORATIONS: 
 
 held strictly to charter • 236 n. 
 
 MUSIC HALL: 
 
 contract to let 478 
 
 MUTUALITY: 
 
 allowance, in contract to pay 214 n. 
 
 company suing on contract intra vires and beneficial, in cases of 110
 
 760 INDEX. 
 
 MUTUALITY— Continued. pasb. 
 
 compromise, in 692 n. 
 
 conditional contracts, in ! 217 
 
 confidential services stipulated for, where 215 
 
 deed-poll, where contract contained in 219 
 
 defined 214 
 
 employment, in contract for 44 
 
 {And see Hiring and Service.) 
 
 exceptions to the doctrine of -. 217 
 
 famil}" arrangement, in 214 ?i. 
 
 husband and wife, in contract with 215 n. 
 
 infants, in contracts by 215 
 
 institution of action, created by 218 
 
 leasing power, in contract under 216 
 
 Lord Redesdale's view as to 219 
 
 loss of, by conduct subsequent to contract 216 
 
 married woman trustee, in sale by 215 
 
 PAROL VAKiATiON {q. V.), in connection with the doctrine of 352 
 
 partial interest only, where vendor haa 219 
 
 (See Compensatio7i.) 
 
 party who has not signed, in action by 218 
 
 personal incapacity of one party, in cases of 215 
 
 services incident to the contract, where 215 
 
 proposal, not created by 140 
 
 railway, in contract to construct 215 
 
 Statute of Frauds, independent of 219 
 
 subsequent performance of unenforceable terms, in cases of 216 
 
 tenant for life, in contracts by 219 
 
 in tail suing on contract of tenant for life, in cases of 215 
 
 unilateral contracts, in cases of 217 
 
 vendor having no estate, in case of 219 
 
 voluntary settlor, in action against 218 
 
 waiver of 217, 218, 627 
 
 when to be judged of 216 
 
 NAME: 
 
 PARTIES {q. V.), of 161 
 
 NE EXEAT: 
 
 writ of 553 
 
 NEGATIVE TEEM: 
 
 charter-parties, in suits on 413 
 
 enforcement of -. 412 
 
 express, where not sufficient ground for jurisdiction 417 
 
 implication of 414 
 
 mere presence of 416 
 
 special damage, where 415 
 
 NEGOTIATION : 
 
 as to title after possession taken 617 
 
 doubt whether it is still open 133, 24S
 
 INDEX. 761 
 
 NEGOTIATION— C<)7i«»m«(Z. pias. 
 
 laches, in relation to 531 
 
 money compensation, for ? 42 
 
 not an election 47 
 
 obligation to disclose arising from course of 341 
 
 un-concluded 131 
 
 NEGROES: 
 
 specific delivery of 28 n. 
 
 NEW CONTRACT: 
 
 must nof be inconsistent ■with former 182 n. 
 
 written contract changed by 1S2 n. 
 
 by parol, waiver of written 183 n. 
 
 NON-CONCLUSION: 
 
 of contract 131 
 
 NOTICE : 
 
 appropriation of purchase-money, of 639, 343, GoO 
 
 assign, by 102 
 
 with ' 102 
 
 charter-party, of : 414 
 
 conditional waiver of 523 
 
 easements, of 42-- 
 
 executed contracts, in cases of 105 
 
 express term of contract not affected by • 171 
 
 husband's and wife's consents to trustees' contract, by 104 
 
 implied term, rebutting presumption of 171 
 
 intention to resell, of • 473 
 
 lease, of covenants in 470, 335 
 
 owner of prior title affected by 103 
 
 possession of subject-matter with 86 
 
 purchaser with 102, 103 
 
 refusal to perform, of 528 
 
 REPRESENTATION (q. V.), where there has been a 334 
 
 revocation of agent's authority, of 265 
 
 right of pre-emption, under 141 
 
 thn-d persons, to 80, 440 
 
 TUIE {q. V.) for completion, limiting 519, 532, et seq. 
 
 unreasonable 5'.-2 
 
 waiver of time, notwithstanding 534 
 
 withdrawal or retractation, of 659 n , 140- 
 
 NOTICE TO TREAT : • 52 
 
 withdrawal of • 1^0 
 
 (And see Lands Clauses Consolidation Act, 1845.) 
 
 NOVATION : 
 
 alteration not amounting to 496 
 
 continued dealings with successive firms, by : ■. 500 
 
 insurance companies, by • 500 
 
 evidence of ^^^ 
 
 parol, of written contract 495 
 
 PARTIES iq. V.) to suit, its effect on '72
 
 762 INDEX. 
 
 l^OY ATW^—Continvid. page. 
 
 re-sale of shares (q. v.), upon 500 
 
 RESCISSION (q. v.)hy 496, et seq. 
 
 STOCK EXCHANGE (q. «. ), in salcs on the 668, 73, et seq. 
 
 substitution of tenant, by 497 
 
 suggestion not amounting to 497 
 
 valid contract, must amount to a 497 
 
 TSUISANCE : 
 
 brew-house is not necessarily a T 472 
 
 OCCUPATION: 
 
 immediate, purchase with view to 519 
 
 payments referable to 532 
 
 vendor in person 647 
 
 OCCUPATION RENT : 
 
 " all rents and profits " included in 647 
 
 condition of sale entitling purchaser to 565 
 
 income-tax on 648 
 
 no allowance by way of 548 
 
 purchaser in possession, paid by 652 
 
 purchaser's wrong-doing, where vendor's possession is owing to 648 
 
 vendor in personal occupation generally pays 647 
 
 OFFER. 132 eif seq- 
 
 assignment of 102 
 
 continuing 142 n., 214 n. 
 
 telegram, b}" 143 w- 
 
 withdrawal of ; 141 n. 
 
 (And see Acceptance, Proposal.) 
 
 ONUS : 
 
 concluded contract, of proving 131 
 
 misleading particulars, in case of 561 
 
 WAr\"ER {q. v.), of proving 460 
 
 OPTION: 
 
 branch of court, as to .' 538 
 
 converting loan-notes into shares, of 519 
 
 delaj' under contract giving 527 
 
 exercise of 522 n. 
 
 HARDSHIP {q. V.) and inconvenience arising out of 201 
 
 independent of contract for lease 418, 459 
 
 lease, to determine 368 
 
 to have 528 
 
 PENALTY (q. v.), to pay 65 
 
 purchase, of 217 «., 418, 522 n., 531 
 
 retirement from company, of 520 
 
 TIME iq. V.) in relation to 527 n., 528 
 
 to do a thing in either of two modes 488 
 
 OUTGOINGS : 
 
 apportioned part cf current ground-rent included in 645 
 
 award, up to date of 639 
 
 condition of sale as to 564
 
 INDEX. 763 
 
 OUTGOING— Conimwed. page. 
 
 liability as to, conterminous with right to rents 645 
 
 title made out in chambers, where 637 
 
 vendor's obligation to pay 634 
 
 OWNERSHIP, ACTS OF 6\S et seq- 
 
 {See Acts of OwiiersMp.) 
 parents, defective conveyance by, to children 680 n. 
 
 PARLIAMENT : 
 
 contract not to apply to 702, 703 
 
 requiring application to 481 
 
 injunction against application to • 703, 703 
 
 time allowed for application to 626 
 
 PAROL: 
 
 abatement of rent by 498 
 
 ACCEPTANCE {q. V.) 142, 143 
 
 additional terms, where proveable by 318, 392 
 
 agreement as to division line o08 n. 
 
 antenuptial contract ... 280, 299 
 
 appointment of agent by 114 n. , 259. 
 
 collateral contract 277 
 
 contract added to or modified by , , 307, 372 
 
 will be enforced 144 n. 
 
 declarations by auctioneer 370 
 
 EVIDENCE {q. 13.).. .. . 157, 162. 277, 279, 284. 362 n., 378 n., 394 n., 895 n. 
 
 exchange of property ... 508 n. 
 
 gift, possession under 497 n. 
 
 identification of legatee by 266 
 
 of paper by 268 
 
 new contract by 498 
 
 notice engrafting time 524 
 
 novation of written contract 495 
 
 partition between several grantees 508 n. 
 
 reference to terms arranged by 267 
 
 rescission by 494 
 
 revocation of agent's authority by 265 
 
 trust, equity will enforce 279 n. 
 
 PAROL VARIATION : 
 
 American jurists on the doctrine of 393 
 
 defendant, set up hy '. 369 
 
 dismissal of action on proof of 370 
 
 election on proof of • 371 
 
 enforcement of contract with 370 
 
 by plaintiff 387 
 
 evidence, coming out on the ... 373 
 
 lease, in contract for 371, 372 
 
 part-performance, in cases of 308 
 
 plaintiff, alleged by 373, 387 
 
 reduction of contract into writing, where error in 369 
 
 right of common, as to •, 370
 
 764 INDDX. 
 
 PAROL VARIATION— CoH^mtz^d. page. 
 
 Statute of Frauds, inadmissible under 386 
 
 subsequent parol contract, by 386 
 
 timber, as to payment for 373 
 
 unfair, where enforcement would be 371 
 
 PARTIAL EXECUTION: 
 
 alternative, where contract is 418 
 
 award, of 405 
 
 default of defendant, where impossibility due to 410 
 
 distinct lots, where property sold in 401 
 
 prices, where 403 
 
 DIVISIBLE CONTRACT (q. V.), in cascs of 399, 407 
 
 exceptions to the principle of the court respecting 407 
 
 future acts to be done, where there are 409 
 
 generally not compelled 399, 405 
 
 honorary, where part of arrangement is 418 
 
 independent contracts, in cases of 403 
 
 indivisible, where contract is 399 
 
 lease, of contract relating to 405 
 
 malum prohibitum, where part of arrangement ia 418 
 
 marriage contracts, in cases of 407, 463 
 
 moiety, in case of contract by owner of 399 
 
 negative terms, where contract contains 412, 
 
 one lot, in case of contract for sale in 399 
 
 option to purchase, in case of ' 418 
 
 partnership contract, in case of 405 
 
 ship and freight, of contract relating to 400 
 
 unenforceable part performed before suit, where 418 
 
 works, of contract relating to 406 
 
 PARTICULARS : 
 
 imperfect enumeration of prohibited trades in 579 
 
 misleading ......." 544 
 
 PLAN (q. v.), referring to 456 
 
 sale of land by auction act, 1867, as to 348 
 
 (And see Conditions of Sale.) 
 PARTIES: 
 
 adding 1 80 
 
 adverse claimants ^ 77, 80, 81 n. , 82 n. 
 
 rights, persons having 71 
 
 AGENT (q.v.) 93, 113, 120 
 
 ASSIGN (g. V.) 95 
 
 assignee in bankruptcy 99 
 
 under insolvency 77 
 
 assignor 95 
 
 auctioneer 120, 661 
 
 bare trustee 79 
 
 COMPANY (q. V.) 107 
 
 conflicting 67 n., 68 n., 71 n. 
 
 contract, parties to, parties to suit 66 
 
 conveying 70
 
 IXDEX. 765 
 
 PARTIES— Continued. page. 
 
 counterclaim, by 80 
 
 creditors of vendor 76 n., 90 
 
 death of 88 n. 
 
 defendant not interested in all relief claimed. 79 
 
 DESCKIPTION iq. V.) oi 160, 162, 244 
 
 devisee 88, 91 
 
 directors of unincorporated company 75 
 
 donee of power 73 
 
 equity of redemption, person interested in 67 
 
 former practice of court of chancery, under 66, 79 
 
 general rule, the 66 
 
 exceptions to the 72, 79 
 
 heir 88, 91 
 
 inconsistent rights, persons having 71 
 
 infant heir 91 
 
 insolvent lessee 97 
 
 judgment creditor 67 n. 
 
 Land Transfer Act, 1875, in cases under 81, 87, 439 
 
 legatees 80, 92 n. 
 
 lessee ''O 
 
 lots, purchasers of separate 69 
 
 involved 77 
 
 lunacy of 129 
 
 MAKRIED WOMAN (q. V.) 127 
 
 misjoinder of 71, 113 n. 
 
 ♦mortgagee 67, 68, 80, 95 
 
 mortgagor 68 
 
 multifariousness of 78 
 
 multiplicity of suits avoided by relaxation of rule as to 76 
 
 ^0 interest, person having 71, 79 
 
 novation, in cases of : 72 
 
 personal representative 76, 88 
 
 pleading, where objection precluded by 74 
 
 possession, railway company in 70 
 
 present practice, under the 79, 81 
 
 previous contract impeached, where 69 
 
 interest in estate or purchase-money, where 73 
 
 principals H^ 
 
 property sold twice over, where 69 
 
 . provisional assignee in insolvency ■ .- 103 n. 
 
 purchase-money, person claiming interest in 73 
 
 registered estates or rights, persons having 81 
 
 remainderman - 73 
 
 reversioner 74 
 
 RtroES OF cotJRT (?• "O-) as to 79 
 
 second purchaser "9 
 
 separate estate, trustees of 127 
 
 several contracts, where 78 
 
 objects, where suit had 70 
 
 shareholders - • 75
 
 766 INDEX. 
 
 VARTIES—Contiin/ed. pabe. 
 
 solicitor 82 
 
 some suing or suedon behalf of all '''5, 78 
 
 stakeholders 119, 120 
 
 steward. 83, 68 
 
 Stock Exchange, in cases of sales on 72 
 
 STRANGER (q. V ) to the contract 73, 82, 87 
 
 necessary party to conveyance 66 
 
 sub-mortgagee 95 
 
 sub-purchaser 74 
 
 tenant of vendor 70 
 
 third persons 80, 440 
 
 treasurer of jointrstock company 75 
 
 trustees 76, 78, 80,-83, 88 
 
 ultimate purchaser 72 
 
 uniting v^ith others in same situation 75 ?i. 
 
 voluntary settlor 78 
 
 widow 90 
 
 PARTITION : 
 
 contract for 16, 677 
 
 parol 508 TO. 
 
 PARTNERSHIP: 
 
 accounts, action for 681 n., 409 
 
 at will, contract for 38, 681 
 
 capital, contract silent as to 168, 405 
 
 contract for, generally not enforced 681 
 
 illegal ■*682 
 
 tainted with fraud, hardship or improper conduct 682 
 
 where enforced 681 
 
 contract to execute deed of 681 
 
 executory and executed contracts of, contrasted 408 
 
 injunction in cases of 4('8, 681 
 
 member of company, of 38 
 
 part-performances of contract for 681 
 
 partial execution of contract relating to 405 
 
 specific relief on articles of • • 682 
 
 RESCISSION (q V.) of contract of ' • 334 
 
 sale of share in 179, 184 
 
 uberrima fides 341 
 
 valuatioa at end of 166 
 
 variation in terms of 498 
 
 PART-PAYMENTS: 
 
 jurisdiction of court of chancery as to 662, 663 
 
 lien created by 659 
 
 repajanent of 659 
 
 sub-purchaser, by 660 
 
 PART-PERFORMANCE 400 w. 
 
 acceptance of goods, by 284 
 
 acts prior to contract cannot be 300 
 
 admeasurement of estate not an act of 301
 
 INDEX. 767 
 
 PART-PERFORMANCE— Con^mr^eff. page. 
 
 alleged contract denied but another admitted, wliere 307 
 
 alteration of plaintiff's position by 463 
 
 alternative remedies, in cases of ^ 288, 29(> 
 
 appropriation of money is not 301 
 
 arbitrators, acts done by, are not 288 
 
 auction-duty, by payment of 297 
 
 building by 294 
 
 cohabitation may be 800 
 
 compensation, where acts admit of , ' 295 
 
 compulsory taking under Lands Clauses Act, by 284 
 
 consistent with the contract alleged, must be 284 
 
 consent to lease, by giving 290 n. 
 
 corporations, in contracts by 286, 293, 311 
 
 damages, answerable in 43, 295 
 
 defense claims benefit of the statute, where 303 
 
 delivery of rent-roll and abstract to purchaser not 302 
 
 dissolution of partnership, by 303 
 
 essentials of 283 
 
 execution of deed by vendor not 301 
 
 lease by married woman not 303 
 
 settlement by husband not 300 
 
 expenditure distinguished from possession as an act of 295 
 
 review of the cases on, as an act of 297 
 
 FRAUD {q. V ) prevented by the operation of the principle of 286 
 
 where refusal to perform does not amount to 287 
 
 honorary engagement, of 289 
 
 incomplete contracts, of 290, 308 
 
 injustice prevented by the operation of the principle 286 
 
 instruction for lease or conveyance not acts of 301 
 
 knowledge of, in party to be charged ' ... 287 
 
 lapse of time in relation to 294 
 
 laying out money, by 294, 499 
 
 marriage, acts connected with, may be 299 n., 300 
 
 alone is not 298 
 
 contracts, in respect of 293 
 
 mutual wills, in cases of 289 
 
 new contracts supported by acts of 499 
 
 objections raised after 155 
 
 parol evidence let in by • 283, 303, et seq^ 
 
 • origin of the jurisdiction in cases of ' 43 
 
 payment of money not 301 n. 
 
 pleading 306 n. 
 
 possession as an act of 
 
 acquiesced in 293, 294 
 
 adverse 290 
 
 both parties bound by 293 
 
 company, against 293 
 
 family arrangements, under 294 
 
 marriage contracts, under 293^ 
 
 occupier, by 293^
 
 768 INDEX. 
 
 PART-PERFORMANCE— Continued. faqb • 
 
 owner, by 292 
 
 stranger, by 291 
 
 tenant, by 285, 291 
 
 preparatory acts not 295, 301 
 
 principle of, as an exception to the Statute of Frauds 282, 286, 307 
 
 purchase-money, part payment of, is not 288, 296 
 
 purchase of release of a right not an act of 301 
 
 railway cases, in 42 
 
 rebuilding of party-wall as 285 
 
 referrable to contract, must be 284 
 
 no other title, must be , 285 
 
 registration of deed by vendor not an act of 301 
 
 remainderman, when binding and when not binding on 287 
 
 rent, payment of additional, as 297 
 
 rescission after 493 
 
 seal, where want of ; ... 290 
 
 service, by 300 n. 
 
 siding, construction and user of , -as 290 
 
 specifically enforceable contracts, applies only to 288 
 
 Statute of Frauds, may preclude party from setting up 281 
 
 strangers' acts are not 287 
 
 sufficient evidence of the contract, cannot be 284 
 
 surrender of lease, by 303 
 
 vague contract, of 304 
 
 vendee may insist on 609 n. 
 
 work and labor done, in cases of 289, 311 
 
 PATENT : 
 
 contract contemplating the obtaining of 518 
 
 PATENT MEDICINE : 
 
 contract relating to 682 
 
 PAYMENT : 
 
 charter party, in pursuance of 28 w. 
 
 contract satisfied by 23, 25 
 
 instalment, by way of 659 
 
 neglect to make 449 
 
 notice of mortgage after 660 
 
 such a sum as A. may fix, of . • '. 168 
 
 time of, of essence of contract 512 n. 
 
 time, when not fixed 537 n. 
 
 PAYMENT INTO COURT ; 
 
 acts of ownership, on the ground of 618, 656, 657 
 
 admission of title by purchaser in possession, upon 653 
 
 affidavit in support of application for 657 
 
 before delivery of defense 657 
 
 contract allowing possession to be taken before completion of title, in 
 
 case of 654, 655 
 
 deduction of income-tax in cases of 657 
 
 election between, and givmg up possession 654, 656 
 
 instalment of purchase- money received by vendors, of 655
 
 INDEX. 769 
 
 PAYMENT INTO COURT— Continued. pasb. 
 
 interest payable after time appointed f or 653 
 
 laches on vendor's part in cases of 654 
 
 loss of purchase-money in consequence of opposition to order for 658 
 
 motion, ordered on 657 
 
 payment by > 658 «. 
 
 possession under some other title, in cases of 656 
 
 rent of 656 
 
 stakeholder, where purchase-money is in hands of 658 
 
 vendor's right to require 653 
 
 PECULIAR PROPERTY: 
 
 specific performance in regard to 13 ?i., 29 7i. 
 
 PENAL SUM OR PENALTY: 
 
 alternative contract, in 61, 65 
 
 amount of, largeness or smallness of 62 
 
 benefit of, and of contract, where different persons would take 64 
 
 bond, contained in 57 
 
 common law remedy, as regards 57 
 
 compensation, where fixed sum to be paid by way of 60 
 
 contracts with a 55 n.,Gl fi., 62 ?i. 
 
 classification of 55 
 
 general rule of equity as to 56 
 
 intention governs construction of 60, 64 
 
 unreasonable unless giving option 65 
 
 where enforced 56 
 
 where not enforced 55 
 
 courts of equity, how regarded by 60 
 
 effect on the jurisdiction of a clause for paj-ment of 55 
 
 election between performance and payment of 55, 56, 60 
 
 to pay, not imported by contract being comprised 'in bond 59 
 
 form of contract as to •. 60 
 
 higher rate of interest not a 650 
 
 increased rent not, a (cf . ) 58, 65 
 
 where there is a stipulation for forfeiture in addition to 65 
 
 liquidated damages distinguished from 57 
 
 obligation and contract distinct, where 59 
 
 penalty strictly so called, where a 56 
 
 rights of obligee with respect to 59 
 
 sum single and continuing act, where 64 
 
 variable, where . 64 
 
 PERFORMANCE: 
 
 alternative, of 486, 490 
 
 common law, at 457, 510 
 
 CONDITION (?.«.), of 446, 447 
 
 consent of third party necessary to 481 
 
 continuous acts, of 35 
 
 delay in 524 
 
 enforcement of actual 12 
 
 complete, where possession taken 156 
 
 49
 
 770 INDEX. 
 
 PERFORMANCE— Con imu^. paok. 
 
 essentials to enforcement of 155 
 
 exact 457 
 
 frequent breaches, where 36 
 
 immediate 460 
 
 IMPOSSIBILITY {q. V.) of 410, 444, 448, 460 
 
 infant heir, by 460 
 
 lease, of contract to accept 156^ 
 
 MARRIAGE CONTRACT {q. V.), in cases of 461, 462 
 
 neglect in 505 
 
 plaintiff, by 454, et seq. 
 
 alternation of position, involving 461, et seq. 
 
 collateral contract, in respect of 458, 460 
 
 express terms, of 455 
 
 future acts, in respect of 468, 465 
 
 implied terms, of 455 
 
 impossible 460 
 
 non-essential terms, of 454, 458, 470 
 
 prevented by defendant 460 
 
 representations of future acts 455, et seq. 
 
 substantial part of contract, of 461 
 
 waived 460 
 
 positive contract, of 478 
 
 REPRESENTATION {q. V.), of 147, 455 
 
 result of default in 12 
 
 separate contemporaneous contracts, of ■ 404 
 
 unenforceable by court 35 
 
 unless, where 37 
 
 WAIVER {q. V.) oi 460, 477 
 
 worse than non-performance, where 43 
 
 {And see Part perf&rmance, Specific Performance. ) 
 PERSON: 
 
 error in regard to 98 
 
 PERSONAL : 
 
 acts • 36 n., 45 n., 177 n. 
 
 contracts."."."*'.' 92, 96,98, 113 
 
 incapacity, a defense 124 to., 187 n. 
 
 motives disregarded by Lord Thurlow 97 
 
 property 13 ». , 34 n. 
 
 relation, where motive to contract 97 
 
 services, contracts for 43, 44, 815 
 
 {And see Hiring and Service.) 
 
 PLAINTIFF : 
 
 conflicting parties should not be joined as 71 n> 
 
 PLAN: 
 
 act of parliament, referred to in 45& 
 
 doubt as to identification of 177 
 
 exact performance of scheme not rendered obligatory by 456 
 
 exhibited by vendor 456 
 
 incorporated 244/1., 466
 
 INDEX. 771 
 
 PLAN — Continued. pa«s. 
 
 intended division of estate, showing 458 
 
 misleading 374 
 
 present state of property, representing 457 
 
 silence of contract as to 456 
 
 PLEA: 
 
 covin, of 320 
 
 fraud, of 320 
 
 statute of 32 Henry VIII, c. 9, of 8, 99 
 
 STATUTE OP FRAUDS {q. V.), of 242 
 
 PLEADING : 
 
 adding parties 80 
 
 admissions in 274, 615, 624 
 
 alternative relief 48, 505, 660 
 
 amendment 48, 307 
 
 compensation, case for 570 
 
 connection of subject-matter of contract with claim 157 
 
 counter-claim 80, 538, 660 
 
 defect in title put forward in 609 
 
 distinctness in 120 n.. 122 n., 128, 243 
 
 implied contract 273 
 
 misjoinder 71, 113 «. 
 
 notice to bare trustee 80 
 
 third parties 80 
 
 objection as to parties precluded by 74 
 
 PLEA iq. v.), 99, 242, 243, 320 
 
 remedy or relief over 79 
 
 separate trials 79 
 
 several causes of action 79 
 
 special case 539 
 
 dating contract 306 n. 
 
 STATUTE OF FRAUDS {q. V.) 242, 272, et seq. 
 
 third parties 80 
 
 waiver 621 
 
 {And see Judicature Acts, 1873 and 1875, Parties, Rules of Court.) 
 
 POSSESSION: 
 
 account of rents and profits against purchaser in 505 
 
 agreement to pay interest implied in act of taking 649 
 
 acquiescence in non-performance of promise, not amounting to 532 
 
 complete title previously shown, with 519 
 
 continuing in, under arrangement 533 
 
 estate and purchase-money, of 635, 633 
 
 immediate, condition for 473 
 
 injunction restraining company from continuing in 550, 559 
 
 intended lessee, taken by 170 
 
 lapse of time where plaintiff is in 53O 
 
 often taken before completion , .• 635 
 
 order for delivery-up of 655 
 
 PART-PERFORMANCE {q. V.), an act of 291
 
 772 iXDEx. 
 
 VOSSESSIO'S— Continued. pase. 
 
 purchase of right to 655 n. 
 
 purchaser turned out of 576, 653 
 
 purchaser's obligation to take 634 
 
 referable to contract to give a fair-consideratiou 167 
 
 some other title 655, 656 
 
 returned by purchaser 650, 65S 
 
 reversionary estates, on sales of 653 
 
 specified day, to be given on 519 
 
 statutory power, taken under 652 
 
 tenant in common, as 655 
 
 to vendor, as 655 
 
 time at which purchaser can prudently take 638 
 
 transfer of, where no stipulation as to 635 
 
 under the contract 531 
 
 under parol gifts , 479 n., 508 «. 
 
 vacant 639 n. 
 
 vendor in, is not bailiff to purchaser 645 
 
 vendor's obligation to give 634 
 
 waiver not worked by 618 
 
 worked by 616, 618 
 
 without receipt of rents 654 
 
 POSTING: 
 
 of ACCEPTAXCE {q. V. ), contract dates from 144 
 
 POST-OFFICE: 
 
 acceptor not answerable for casualties of 145 
 
 PRACTICE. 
 
 (See Costs, Pleading, Rules of Court.) 
 
 PRAECIPE QUOD REDDAT 6 
 
 PRE-EMPTION, RIGHT OF: 
 
 contract made in forgetfulness of 191 n. 
 
 covenant to give 102 n. 
 
 enforced 16 
 
 limited by personal nature of acts to be done 97 n. 
 
 notice in pursuance of 141 
 
 statutory offer of, not made 612 
 
 violation of 16 
 
 PREMIUM: 
 
 contract to reduce 35 
 
 lease conditional on payment of 516 
 
 PRESUMPTION : 
 
 bona fides, of 438 
 
 implied term, of, may be rebutted by notice 171 
 
 new contract, of 499 
 
 previous parol contract, of 390 
 
 settlement silent as to promise, wliere 150 
 
 TITLE {q. v) depending upon 432 
 
 PRETENDED TITLES 99
 
 INDEX. 
 
 773 
 
 PRICE : Txn. 
 
 arbitrators, fixed by 699, 165 
 
 award of surveyor, to be determined by 639 
 
 defendant preventing ascertainment of 165 
 
 determination of 165 
 
 different, for different parts of subject-matter 403- 
 
 essential ingredient of contract 163 
 
 fair 163, 164 
 
 inadequacy of 206 
 
 (And see Consideration.) 
 
 instalments, to be paid by 410 
 
 Lands Clauses Act, fixed pursuant to 6, 52, 166 
 
 mode of ascertaining : 
 
 alternative 165 
 
 essential 163, 164, 699 
 
 no election as to 165 
 
 not essential 163, 166, 168 
 
 provided by contract 164 
 
 omission of 392 
 
 referees as to 166 n. 
 
 reserved 349 
 
 Roman law as to ascertainment of 164 
 
 third person, to be fixed by 337, 186, 163 
 
 unascertained 162 
 
 valuers, to be ascertained by 163, 183 
 
 QAnd see Part Payment, Purchase Money.) 
 PRINCIPAL : 
 
 AGENT {q. v.), sued with. 117, 119 
 
 MISREPRESENTATION {q. V.), innoccnt of 320 
 
 named 113 
 
 question whether contractor is, where 117 
 
 sued 113 
 
 suing 113, 115, 117 
 
 unnamed 113 
 
 PRINTED NAME: 
 
 regarded as signature 254 
 
 PRIVITY : 
 
 of contract 50 
 
 of estate 50 
 
 PROFIT: 
 
 on appropriated purchase-money 651 
 
 PROMIt^E 146 
 
 {See Bepresentaiion.) 
 
 PROMISSORY NOTE: 
 
 compelling indorsement of 16 
 
 contract as to 23 
 
 PROMOTERS : 
 
 contracts by 107 
 
 {See Company.)
 
 774 INDEX. 
 
 PROPERTY: pag«- 
 
 passing of the ^^^ 
 
 where no right to, taken away 43 »., 47 
 
 PROPOSAL: 
 
 and ACCEPTANCE (q. v.), contract constituted by 132, 144 
 
 creates no mutuality, no obligation 140 
 
 determined by: 
 
 WITHDRAWAL {q. V. ) of proposcr 140 
 
 refusal of person to whom it is made 140, 141 
 
 (And see Eetractration.) 
 
 election, giving 143 
 
 formal contract, subject to provision as to 250 
 
 invalidity of, without acceptance 132 
 
 leaving term to be ascertained or decided 137 
 
 marriage treaty, on 1^1 
 
 memorandum of, distinguished from memorandum of agreement 132 
 
 not revived by tender of acceptance after refusal 141 
 
 payment on a particular day, involving 138 
 
 promise, by ^46 
 
 REPRESENTATION (q. V.), hj 146 
 
 SHARES (q. v.), to take 1^6 
 
 variance between, and acceptance 136, 142 
 
 variation of, by proposer 143 
 
 verbal, distinguished from written 151 
 
 PROSPECTUS : 
 
 Companies Act, 1867, as to 342 
 
 material fact, silent as to 342 
 
 PROTEST: 
 
 delay against 533 
 
 mere "oo 
 
 PUBLIC: 
 
 fraud on the 357 
 
 injury to the 1^2 
 
 PUBLIC DUTY: 
 
 arising from private contract 4, 5 
 
 PUBLIC HOUSE: 
 
 deposit on sale 661 
 
 essentiality of time in contracts relating to 518 
 
 sale of stock in 517 
 
 (And see Going Concern.) 
 
 PUBLIC POLICY: 
 
 application to Parliament on grounds of 702 
 
 assignment contrary to . 
 
 96 
 
 contract against 222 7i. 
 
 court of equity cannot judge of '''02 
 
 delegation of statutory powers, as to 101 
 
 illegal contracts, as to proceedings on 23 
 
 separation, as to contracts for 688
 
 INDEX. 775 
 
 PUFFER: »*«■. 
 
 all parties having liberty to bid, in cases 347 
 
 FRAUD (g. V.) in employment of 348 
 
 more than one 348 
 
 one 347 
 
 sale of land by Auction Act, 1867, as to 348 
 
 vendor's solicitor 188 
 
 without reserve, where sale is 347 
 
 PURCHASE-MONET : 
 
 amount of, left by contract for subsequent ascertainment 639 
 
 appropriation of, by purchaser 639, 643, 650 
 
 constructive trusteeship of 634 
 
 estate and, mutually exclusive 653, 635 
 
 inadequacy of 203 
 
 {And see Consideration.) 
 
 interest in, under prior contract 73 
 
 part-payment of 288, 296 
 
 PAYMENT INTO COURT (q. V.) oi 653 
 
 profit made by purchaser on appropriated 651 
 
 purchaser's obligation to pay 634 
 
 (And see Lien, Price.) 
 
 PURCHASE : 
 
 pendente lite 635 n. 
 
 PURCHASER: 
 
 constructively a trustee 634 
 
 obligations of 634 
 
 QUARRY: 
 
 COMPENSATION {q. V.) foT stone subtracted from 592 
 
 contract to work 40 
 
 QUASI-CONTRACTS 61 
 
 {See Lands Clauses Consolidaiion Act 1845.) 
 QUIT RENTS : 
 
 incidents of tenure 577 
 
 RAILWAY : 
 
 abandoned 25 
 
 branch, contract to lay down 294 
 
 confidential services in working 215 
 
 construct, contract to 25, 40, 177, 215 
 
 contracts conditional on formation of 470, 485 
 
 neglect to complete purchase after making 655 
 
 sale of 55^ 
 
 siding ^ 
 
 user of, contract as to 406 
 
 work, contract to 47 
 
 works, contract to execute 406 
 
 for convenience of plaintiff's lands 42 
 
 RATIFICATION : 
 
 acquiescence, by 269 
 
 agency, may take the place of 259
 
 776 INDEX. 
 
 HATIFICATION—Continmd. pasb. 
 
 benefit of contract, by taking 259 
 
 corporation, by 235 
 
 essentials of 263 
 
 infant, by 215 7i. 
 
 l^rinted name, of .• 254 
 
 {And see Signature.) 
 
 STATUTE OP FRAUDS {(J. V.), may take contract out of 259 
 
 vague expressions not implied from 259 
 
 KEAL ESTATE : 
 
 consent of wife to sell •182 n. 
 
 contract to purchase 50 n. 
 
 contract for sale of 400 n. 
 
 conveyed without warranty 452 
 
 gift of • 204 n. 
 
 improvement by vendee 289 
 
 specific performance as to 13 n. , 34 n. 
 
 variance between description and quantity of 421 n. 
 
 veodor of, has choice of remedies 13 n. 
 
 must give good title 428 n, 
 
 EEASOXABLE : 
 
 contract must be 181 n. 
 
 RECALL : 
 
 of offer 1-11 n., 142 n. 
 
 RECEIVER: 
 
 ACTS OF OWNERSHIP (q. v), in consequence of 618, 656, 657 
 
 appointment of. pending sale , 558 
 
 RESCISSION: 
 
 of contract 497 /i. 
 
 RECITAL : 
 
 evidence of contract 131 
 
 RECOVERY OF LAND : 
 
 counter-claim in action for 538 
 
 equitable right to specific performance appearing in action, for 539 
 
 RECTIFICATION : 
 
 ambiguous writing, by 379 
 
 articles of agreement, of 377 
 
 bond, of 395 
 
 common error, of 376 et seq. 
 
 consequential relief in addition to 395 
 
 election between amendment and 378 
 
 intentional omission, in cases of 385 
 
 judicature act, 1873, by virtue of . . ." = 394 
 
 mistake of one party, in cases of 378 
 
 plaintiff, for 364 
 
 parol evidence admitted as a ground for 378 
 
 payment of money, of contract for 395 
 
 plaintiff suing for specific performance, where 387 et seq- 
 
 policy, of 375, 377
 
 INDEX. 777. 
 
 BECTIFICATIOI^^— Continued. page. 
 
 previous parol contract, by reference to 390 
 
 prior actual contract, requires 377 
 
 register of shares, of 542 
 
 rent, as to amount of 388 
 
 strongest possible proof required for 379 
 
 KEFEE : 
 
 contracts to, not enforced 699 n. 
 
 REFERENCE TO TITLE : 
 
 admission of title (g. v.) by defendant's pleading, in case of 615 
 
 answer, before " p23 
 
 CERTIFICATE (q. V.) of result^ of 627 et seg. 
 
 chambers, to 627 
 
 compromise of disputed rights, in cases of 602 
 
 conditions of sale, in accordance with 614 
 
 costs of 630 
 
 court of chancery, at what stage directed by the 621, 624 
 
 covenants in lease, having regard to 615 
 
 decision of objection without 615 
 
 delay, questions of, raised on application for 625 n. 
 
 disallowance of purchaser's costs of ^ 610 
 
 either party generally has a right to 616 
 
 everything connected with the title, may extend to 624 
 
 evidence under 627 
 
 form of 615, 624 n. 
 
 frivolous questions raised by the answer, where 622 
 
 general terms, in 609 
 
 good holding title, confined to 615 
 
 hearing, at the 615 
 
 before the 615, 622 
 
 immediate, where vendor should apply for 624 
 
 hmited 615, 625 
 
 loss of right to 618 
 
 motion, on 622, 623 
 
 by purchaser defendant for 623 
 
 no objection at all, though purchaser has 609 
 
 not confined to sales of real estate 610 
 
 only one objection, where 609 
 
 open 
 
 625- 
 
 origin of purchaser's right to 609 
 
 present practice, how obtainable under 624 
 
 prevented by defenses which failed at the hearing 630 
 
 purchaser defendant is entitled to 609- 
 
 plaintiff seeking 610 
 
 purposes for which premises were taken, having regard to 615 
 
 question of title only, where 622, 623 
 
 reference back to chambers after 629 
 
 resulting in showing that good title was shown in due time 610 
 
 sale with all faults, in cases of 424 
 
 shares in railway companies, in respect of 610-
 
 778 INDEX. 
 
 REFERENCE TO TITLE— Continued. pagm. 
 
 mines, in respect of "1*^ 
 
 time allowed for completion of title under 626 
 
 at which title shown, should include inquiry as to 624 
 
 not allowed for completion of title under 626 
 
 questions of, raised on application for 625 n. 
 
 varjing nature of 610 
 
 vendor cannot except to the title on 610 
 
 selling such interest as he has, in cases of 611 
 
 Vendor and Purchaser Act, 1874, under 627 
 
 waiver of objections should be recognized in judgment directing 610 
 
 where purchaser has asked for 610 
 
 of right to, by purchaser 615 
 
 by vendor 615 
 
 when title may be made out under 625 
 
 where not directed 610, 615 
 
 REFRESHMENT-ROOM : 
 
 accommodation in, contract for 177 
 
 assign of lease suing for occupation of 102 
 
 enforcement of covenant in lease of 407 
 
 REFUND : 
 
 covenant to convey carries an obligation to 661 n. 
 
 REFUSAL : 
 
 of one party to perform 495 
 
 PROPOSAL iq. V. ) determined by 140, 141 
 
 to register transfer 673, 674 
 
 REGISTER : 
 
 application to rectify, under Companies Act, 1862 542 
 
 shipping, of 683, 685 
 
 substitution on, part of contract 676 
 
 REGISTER COUNTIES : 
 
 contracts relating to land in 103 
 
 REGISTERED LAND OR CHARGE: 
 
 contracts relating to land in 81, 439, 642 
 
 REGISTRATION : 
 
 of transfer of shares {g. v.) 664, 665, 668, 671, 675 
 
 REGISTRY ACTS: 
 
 in United States 686 
 
 RELATIONS : 
 
 agreements between 85 n. 
 
 RELIEF : 
 
 alternative 48, 505, 662 
 
 grounded on right perfect in itself, and resulting from transactions 
 under contract 409 
 
 .RELIEF AFTER JUDGMENT: 
 
 attachment, by writ of 556 
 
 costs, by order for payment of 556 
 
 damages, by way of 557
 
 INDEX. 
 
 779 
 
 EELIEF AFTER JUDGMENT— Contmwed. pasb. 
 
 injuuction, by 558, 559 
 
 necessary, when 555 
 
 payment and delivery of deeds, by order for 556 
 
 receiver, by appointment of 558, 559 
 
 rescission, by order for 556 
 
 sale, by 558 
 
 sequestration, by 556 
 
 stay of proceedings, by 557 
 
 vendor's lien [q. v.), by enforcement of 557 
 
 vesting order, by 559 
 
 writ of assistance, by 559 
 
 REMAINDERMAN : 
 
 leasing power, bound by contract under 216 
 
 PART PERFORMANCE {q. V. ) , when not bound by acts of 287 
 
 prejudiced by contract of tenant for life 189 
 
 suing or sued "^^ 
 
 tenant in tail, not liable on contracts of 73 
 
 REMEDY: 
 
 alternative 25 
 
 COMMON LAW {q. V.) ♦. .• 15 
 
 RENEWAL: 
 
 covenant for, not enforced 469 
 
 ztlira vires 190 
 
 variation of 373 
 
 delay under contract giving right of 527 
 
 ecclesiastical corporation, by 485 
 
 mining lease, of 471 
 
 sub-lessee, to 194 
 
 s^ippressio veri in obtaining 188 
 
 time of 516 
 
 RENT: 
 
 abatement of, by parol 496 
 
 by written contract 499 
 
 account of arrears of 451 
 
 additional, payment of 297 
 
 ai'bitrators, referred to 186 
 
 commencement of, not stated 168 
 
 fee-farm - 611 
 
 mode of reservation of, held essential 484 
 
 occupation 564, 648 
 
 reduced proportionately to deficiency of acreage 589 n. 
 
 RENTS AND PROFITS: 
 
 actually received, vendor is usually charged with 644 
 
 contract silent as to 636 
 
 dispossession of purchaser, in case of 652 
 
 election between, and interest 649 
 
 interest and, mutually exclusive 635, 649 
 
 payment into court of 656
 
 780 INDEX. 
 
 RENTS AND PROFIT S—C&ntiiimd. p^eK. 
 
 possession without receipt of 654 n. 
 
 reserved to vendor by conditions of sale 640 
 
 time from which purchaser takes, where 
 
 contract fixes date for completion 637 
 
 fixes no date for completion 636 
 
 estate sold is reversionary 652 
 
 interest much exceeds rents and delay is owing to vendor 637 
 
 title is made out in chambers 637 
 
 willful default in relation to 644, 646 
 
 who entitled to MS n., 663 n, 
 
 REPAIRS : 
 
 contract to do 39, 40, 412, 447. 461 
 
 (And see Building Contract. ) 
 
 engines and rolling stock 44 
 
 lessor, by 455 
 
 specific performance as to 40 7i. 
 
 who liable for 638 n. 
 
 REPORT ;. • • 628, 631 
 
 {See Certificate.) 
 
 REPRESENTATION : 
 
 accounts, founded on 335 
 
 acts, by 313 
 
 act not done in relianee on 146 n. 
 
 acted on by other party 146 
 
 agency, of 257 
 
 clear and absolute 147 
 
 contract constituted by 148 
 
 founded on 146 
 
 directors, by 323 
 
 discovered to be untrue 341 
 
 distinct effect of 334 
 
 dry-rot, as to 578 
 
 executor, by 1 53 
 
 existing facts, of 146, 153, 319 
 
 ■ false, classified by Stephen J 146 n. 
 
 falsity of 319 
 
 {And see Misrepresentation.) 
 
 future things, of 146, 455 
 
 general statement, not counterveiled by 334 
 
 insurance company, by 322 n. 
 
 intention, of 148, 322 et seq. 
 
 lease, as to existence of 153 
 
 marriage not induced by 150- 
 
 marriage-treaty, on 146, 147, 150 et seq. 
 
 means of verifying 327 et seq. 
 
 notice, as to fact of which there would be implication of 333 
 
 past things, of 146 
 
 plaintiff, by 455 
 
 PLA]5i {q. v.), by 456
 
 INDEX. 781 
 
 REPRE SENT ATION— Continved. page. 
 
 position in life altered on faith of 152 
 
 stranger, by 153 
 
 subsequent settlement silent as to 150 
 
 truth of, obligation to know 322 
 
 vague 147, 325 
 
 vendor, by 455 
 
 KEPUDI ATION: 
 
 after party has disabled himself from making restitution 355 
 
 of contract G59 
 
 REQUISITIONS : 
 
 between vendor and purchaser 614 
 
 inconvenient but legitimate 566 
 
 precluded , 613 
 
 time for sending in 52 1 
 
 Vendor and Purchaser Act, 1874, as to 539 
 
 WAIVER {q. V.) of 617 
 
 RESCISSION: 
 
 act of God, when restitution has been rendered impossible by . . . 355, 357 
 
 action for deceit after loss of right of 357 
 
 acts tending to 357 
 
 agreement, by mutual 492, 605 n. 
 
 with a third person by 500 
 
 alternative claim for 505 
 
 assurance, of contract for 375 
 
 bar to performance, a 492 
 
 before day fixed for transfer of possession 661 
 
 BREACH OF TRUST {q. V.), foi ^ 200 
 
 collateral to the contract, is 494 
 
 concealment, for 338 
 
 condition for 501, -m, 603 
 
 conduct, by 494, 506 
 
 not amounting to - 496 
 
 consent generally requisite to 501 
 
 defect in thing sold, for 425 
 
 delay, for 506 
 
 election prevented by 352 
 
 events prior to the contract, for 443 
 
 executed contracts, of - 319, 337 
 
 false statements believed to be true, for 319 
 
 fishery, of contract for lease of 375 
 
 FRAUD {q.v.),iox 181, 337, 354, 368 n., 505 
 
 fraudulent misconduct, for 506, 507 
 
 use of power of 565 
 
 French law as to 209, 355 
 
 fresh agreement, by 496, 507 
 
 impossibility of performance, for 356 
 
 impossible . . - 352, 858, 356 
 
 inadequacy of consideration (g. v.) as a ground for 204, 210 
 
 inequitable 353
 
 782 INDEX. 
 
 RESCISSION— C(?n<tn«<f<i. page. 
 
 insolvency of other party, upon 506 
 
 instalment, for default in payment "04 
 
 intended lessee, at suit of 1^5 
 
 loss of right of 352, 503 
 
 lunacy of party, for 129 n. 
 
 material misdescription, for 570 
 
 misleading particulars, for • 561 
 
 MISREPRESENTATION (q. V.) for 334, 351, 355, 583 
 
 MISTAKE (g. V ), for 355, 505 
 
 of both parties 375 
 
 of law 379 
 
 of one party 369 
 
 non-disclosure for 338. 423 
 
 non-existence of subject-matter, for 442 
 
 NOVATION {q. v.), by 497 
 
 order for, after judgment 556 
 
 other remedies open, notwithstanding loss of right of 355 
 
 parol, by 494 
 
 partnership contract, of 334 
 
 part-performance, where there has been 494 
 
 persistence in objection, on 595 
 
 plaintiff's conduct, precluded by 354, 356 
 
 possession, after taking 355 
 
 power to rescind, by exercise of •' 501 
 
 reception of benefit under the contract, after 354 
 
 refusal of one party to perform, upon 495, 505 
 
 restitutio in integrum a condition of 354 
 
 right of way, for concealment of 331 
 
 SHARES (q. v.), of contract to take 352, 354 
 
 Statute of Frauds, in cases of contracts under 494 
 
 stranger party to action for 86 
 
 suggestio faUi, where 345 
 
 summary of modes of 492 
 
 suppression of material fact, for 338 
 
 third person, when property has passed to 352, 357 
 
 when restitution has been rendered impossible by act of 355, 356 
 
 time for exercise of right of 503 
 
 TITLE (q. v.), for misrepresentation as to 331 
 
 total abandonment, by 495 
 
 variation from description, for 425 
 
 void, where contract is to be in specified event 501 
 
 waiver of right of 503 
 
 winding-up order, after 352, 354 
 
 RESERVE 347, 349. 
 
 {See Sale,) 
 RESTITUTIO IN INTEGRUM 354 
 
 RESTRAINT: 
 
 of trade 611 w. 
 
 RESTRICTIVE STIPULATIONS 611, 625
 
 INDEX. 783^ 
 
 RETRACTATION: pace. 
 
 notwithstanding time for acceptance (q. v.) prescribed 141 
 
 offer of 132 
 
 {And see Proposal, Withdraical.) 
 
 REVERSIONARY INTEREST: 
 
 auction, sold by 213 
 
 burden of proof in actions relating to 811, 213 
 
 inadequacy of consideration in sale of 211 
 
 payment of interest by purchaser of 653 
 
 present interest sold together with 211 
 
 Sales of Reversions Act as to 212 
 
 TIME {q. V. ) in relation to sales of 517, 520 
 
 REVERSIONER : 
 
 covenants, when entitled to enforce 74 
 
 party to suit 74 
 
 REVIVOR : 
 
 by vendor 92 
 
 REVOCABLE CONTRACT: 
 
 performance not decreed of 38 n. 
 
 REVOCATION: 
 
 authority of auctioneek {q. v.) or other agent (q. v.), of 264 
 
 death of principal by 265 
 
 notice of 265 
 
 ROADS : 
 
 contract to make 173 
 
 ROMAN LAW: 
 
 damages only given by 3 
 
 mistake, as to 385 
 
 no specific performance in ... , 3, 6 
 
 novatio 496 
 
 pollicitatio 133 n. 
 
 real contract in 282 
 
 rescission for inadequacy of consideration, as to 210 
 
 sale at price to be fixed by third person, as to 164 
 
 spes snccessionis 677 n. 
 
 RULES OF COURT : 
 
 admission , 615, 634 
 
 allegation of facts 631 
 
 alternative claims 79 
 
 relief 1 48 
 
 ■ amendment 48 
 
 cestui que trust of real estate devised 88 
 
 contract, admission of 275 
 
 allegation of 273 
 
 alternative 273 
 
 contract, denial of 243 
 
 implied 273 
 
 default in pleading '. . . 243 
 
 demurrer 243
 
 '784 INDEX. 
 
 RULES OF COJJRT—Chntinued. page. 
 
 denial 616 
 
 inquiries 624 
 
 misjoinder 71, 113 n. 
 
 PARTIES {q. v.), 79, 80, 440 
 
 representatives made parties 275 
 
 Statute of Frauds (q. v.) 243 
 
 transfer of actions 538 
 
 {And see Judicature Acts, 1873 and 1875, Pleading. ) 
 SALE: 
 
 allotment, of 184 
 
 annuity, of, after death of annuitant 444 
 
 by the court, conditions in 567, 563 
 
 opening biddings after 445 
 
 reversions, of 653 
 
 time at which purchase is comj^lete on 445 
 
 confirmation of 653 
 
 contract for lease, of 170 n. 
 
 distinct lots, in 401 
 
 floating cargo, of 444 
 
 going concern, of 518 
 
 goods, of 159 
 
 when not in possession of vendor 481 
 
 improper, of trust property 190 
 
 improvident 190 
 
 injunction restraining 547 
 
 mortgagee 161 
 
 one lot, in 899 
 
 owners, by 161 
 
 pretended right, of 481 
 
 proprietor, by direction of 161 
 
 public house, of 518 
 
 purchaser's lieu, in enforcement of 662 
 
 railway, of 558 
 
 reservation of right to bid at 349 
 
 reserved price, subject to 349 
 
 share in partnership business, of 179, 184 
 
 SHARES (q. v.), of 664 
 
 ship and freight, of 400 
 
 stock in public house 517 
 
 stranded ship, of 444 
 
 such interest as vendor has, of 611 
 
 trustee for 129 
 
 vendor's lien, in enforcement of 558 
 
 share and interest, of 611 
 
 whole interest, of 169 
 
 with all faults 335, 344, 424 
 
 without reserve 347 
 
 SALE OF LAND BY AUCTION ACT, 1867: 
 
 section 4 5, 151 
 
 section 7 446
 
 INDEX. 785 
 
 PAGX. 
 
 SALE OF REVERSIONS ACT 212, 213 
 
 SCOTCH LAW, 
 
 building contracts enforced by 41 
 
 jua qmasitam tertio recognized by 82 n. 
 
 SECRET : 
 
 guarantee 189 
 
 medicine 35, 682 
 
 purchase 96 
 
 trust 96 
 
 SEPARATE ESTATE 125, 129 
 
 {And see Married Woman.) 
 SEPARATION: 
 
 breach of covenant in deed of, restrained 48 
 
 trifling 470 
 
 contract for future, unenforceable 688 
 
 present, enforceable 688 
 
 effect of the act, 36 Vict., c. 12, upon contracts for 690 
 
 essentials of vaUd contract for 688 
 
 execution of deed of 46, 688 
 
 good consideration in contract for 689 
 
 provisions as to care of children in contracts for 690 
 
 simple contract between husband and wife for 689 
 
 usual clauses in deed of 689 
 
 SEQUESTRATION: 
 
 enforcement of order by • 556 
 
 SERVICE : 
 
 contract for 48, 44, 201, 416 
 
 (And see Hiring and Service.) 
 SET-OFF : 
 
 of amount of deterioration against interest 97, 646 
 
 SETTING ASIDE 492, 507 
 
 (See Rescission. ) 
 SETTLEMENT : 
 
 contract to make ; 64 
 
 SHARES: 
 
 action by vendor against purchaser 28 
 
 agent's fraud in procuring 355 
 
 allotment of, after withdrawal of application 140 
 
 call made on, before contract 673 
 
 calls, contract to accept, in payment of 479 
 
 company, action by, against person taking 28 
 
 contract to sell 27 
 
 conversion of loan-notes into 519 
 
 direction to execute transfer of 664 
 
 election to rescind contract to take 353 
 
 forfeiture of 519 
 
 form of judgment in action on contract for sale of — 664 
 
 FRAUD {q. V.), in inducing contract to take 354 
 
 3 50
 
 786 INDEX. 
 
 SB.AB.es— C(^niimi«d. pa«. 
 
 further assurance of 460' 
 
 indemnity against loss from contract to take 355, 671, 672, 673, 675' 
 
 in respect of calls on 664 
 
 inquiry as to title {g. v.) to 610, 672' 
 
 intermediate parties to sale and purchase of 671 
 
 MISREPRESENTATION {q. t\) inducing purchase of 323^ 
 
 new contract arising out of sale of 668, 670, 672 
 
 assented to, where 672 
 
 non-registration of transfer of 671 
 
 objections to name of ultimate purchaser of 665, 669 
 
 original purchaser of : 
 
 his liability 669, 671, 672 
 
 how discharged 669, 670 ■ 
 
 nominee of, need not be a subvendee 669 
 
 not a guarantor of subvendees' contracts 668 
 
 plaintiff only equitably entitled to 673 
 
 proposal to take allotment of 135 
 
 prospectus, purchased upon faith of 323 
 
 recovery-back of price of 673 
 
 rectification of register of 542 
 
 registered in third person's name 673 
 
 registration of transfer of 664, 665, 668 
 
 guaranteed 671 
 
 purchaser's duty to procure 673, 676 
 
 refused by directors 673, 676 
 
 vendor's obligation as to 673 
 
 winding-up intervening before 675 
 
 rescission of contract to take 354 
 
 Stock Exchange {q. v.), sold on the 665 
 
 subvendees of 668, 669, 671 
 
 third person adopting contract for purchase of 672 
 
 ultimate purchaser of 665 
 
 must be capable of contracting 669 
 
 unobjectionable 669 
 
 must have authorized original purchaser to bind him 669 
 
 time for objecting to name of 665, 668, 669 
 
 winding-up, contracted for after 444 
 
 before 450, 671, 675 
 
 withdrawal of application for 140- 
 
 SHIP: 
 
 alteration of, contract for 405' 
 
 charter, under 414 
 
 contract relating to proceeds of sale of 686 
 
 equities enforceable against owner and mortgagee of 683, 686 
 
 executory contract to transfer 686 
 
 foreign 687 
 
 freight sold with 40O 
 
 injunction against removing 50 
 
 legislation affecting contracts as to 683, 686
 
 INDEX. 787 
 
 SHIP — Continued. page. 
 
 persons qualified to be owners 684 
 
 registration of ownership of 683, 684 
 
 trust of 683 
 
 who may sue on contract relating to 684 
 
 within the principle applied to unique articles 28 
 
 SIDING: 
 
 contract relating to 42, 290, 409 
 
 SIGNATURE : 
 
 actual writing of name, or equivalent act, by 254, 256 
 
 affictevit, in 253 
 
 AGENT {q. V.), by 257, 258 n., 265 n. 
 
 articles of association, of 257 
 
 authentication of entire instrument by 253, 256 
 
 auctioneer 263 n. 
 
 beginning of letter, where name written at 253 
 
 concluded contract at time of 248 
 
 different intent, with 254 
 
 events subsequent to 446 
 
 incidental introduction of name, by 255 
 
 initials, by 254, 296 
 
 intent to sign, how it affects 254 
 
 mark of marksman, by 254 
 
 minute-book, in 256 
 
 one party, by 143, 218, 252 
 
 paper referred to for 267 
 
 pencil, in 254 
 
 printed name regarded as 254 
 
 stamp, by 254 
 
 subscription distinguished from 25S 
 
 suggestion as to the true principle with regard to 257 
 
 telegram, in 254 
 
 witness, as 254 
 
 SILENCE : 
 
 FRAUD {q. c), generally is not 317, 338, 343 
 
 may be 341 
 
 hardship, amounting to 188 
 
 lessee of 346 
 
 misrepresentation, generally does not amount to 316 
 
 mine, as to existence of 343 
 
 mortgagee of 344 
 
 purchaser, of 341 
 
 unfair 346 
 
 vendor, of 317, 338 
 
 SLAVES : 
 
 contracts in regard to sale of 29 n. 
 
 SOLICITOR : 
 
 approval of title by, condition for 248 
 
 biddings by 187
 
 788 INDEX. 
 
 SOLICITOB— Continued. page. 
 
 eale of business of • • • • 36 
 
 Statute of Frauds (q. v.), not agent within 264 
 
 SPECIAL CASE : 
 
 stated in action 539 
 
 title, as to question of ^40 
 
 SPECIFIC PERFORMANCE : 
 
 agent alone defendant to action for 118 
 
 approaches to, at common law 3 
 
 bill of complaint, formerly sought by 538 
 
 bond given before marriage, of contract evidenced by 19 
 
 charter party, of 28 
 
 COMMON LAW (q. V.) remedy, where : 
 
 adequate 23 
 
 inadequate 22 
 
 lost by default of plaintiff 15 
 
 unavailable 16) 19 
 
 wanting 15 
 
 COMPROMISE (q. v.), of , 16 
 
 convey by a particular day, of contract to 18 
 
 covenant for further assurance, of 479 
 
 defined 
 
 distinguished from cases of constructive trust 9 
 
 delivery of chattel in specie 9 
 
 performance of trust 9 
 
 specific relief 10 
 
 ecclesiastical courts, former jurisdiction of , in 6 
 
 farming lease, of covenants in 35 
 
 foreign government, against 48 
 
 former practice of sending parties to law, in connection with 20 
 
 heir, decreed against 18 
 
 incomplete gifts, of, not enforced 203 
 
 INJUNCTION (g. V. ), enforced by 544 
 
 jealousy of common law courts as to 8 
 
 JURISDICTION {q. V.) in : 
 
 defendant not within the jurisdiction, against 50 
 
 discretionary 10 
 
 earliest trace of ' 
 
 extraordinary 9 
 
 leaseholds, of contract to advance on security of 18 
 
 Lord Tliurlow on the doctrine of 15, 572 
 
 money, of agreement to lend or pay 17 
 
 mortgage, of contract to execute 17 
 
 not a matter of right 10 «-., 23 7i. 
 
 ' origin of the jurisdiction in 7 
 
 particular covenant, of 407 
 
 peculiar to English jurisprudence 2 
 
 piecemeal 399, 408 
 
 pre-emption, of right of 16 
 
 promptly sought, must be 527
 
 INDEX. 789 
 
 SPECIFIC PERFORMANCE— Con/m««(i. pash. 
 
 real estate 13 «, 
 
 repairs 40 n. 
 
 rules as to 11 n., 12 n. 
 
 secret guarantee, of 18& 
 
 suhpmna in relation to 7 
 
 trustee in bankruptcy', against 106 
 
 where court ■will interfere in 67 n., 68 n., 13 
 
 will not interfere in 13 
 
 {And see Peiformance.) 
 STAKEHOLDER : 
 
 absconding 658 
 
 deposit, liable to make good 119 
 
 threatening to pay over 119 
 
 when a party 119 
 
 not agent of vendor 120 
 
 STATION: 
 
 breach of contract to erect 603 
 
 STATUTE: 
 
 jurisdiction taken away by 48 
 
 STATUTE OF FRAUDS : 
 
 acceptance in writing, where and where not necessary to satisfy 143 
 
 of goods under seventeenth section of 287 
 
 admission in pleadings an exception to 274 
 
 ante-uuptual agreement 280 n. 
 
 benefit of, how claimed 243 
 
 case taken out of, by admission 275 
 
 fraud 275, 279 
 
 mistake 388 
 
 part-performance 273, 281 
 
 sale by the court 273 
 
 contract within, how pleaded 272 
 
 how to make a, binding under 240 n. 
 
 all terms of, must be assented to 252 n, 
 
 where parol 266 n. 
 
 defense of : 
 
 answer, by 242 
 
 demurrer, by 242, 243 
 
 plea alone, by 242 
 
 plea and answer, by 242 
 
 present practice, under 243, 244 
 
 defendant's situation not affected by 276 n., 361 
 
 enacted in many states 241 n. 
 
 foreign contracts affected by 340 
 
 formal contract intended, where 249 
 
 formality not required by 245 
 
 fourth section of, affects not the contract, but the right to sue 240 
 
 quoted 240 
 
 refers not to the solemnities, but to the procedure 240 
 
 FRAUD (q. V.) an exception to 275
 
 790 INDEX. 
 
 STATUTE OF FR ^.rDS—Contiymsd. pags. 
 
 improvements on real estate by vendee 289 n. 
 
 implied trust 27C n. 
 
 marriage, Tvhere written memorandum of contract after 271 
 
 marriage contracts are within 280, 298, 29b' n, 
 
 memorandum within, must be evidence of concluded contract 245 
 
 leave nothing open 244 
 
 mere agreement to lend or pay money, does not apply to 17, 388 
 
 MISTAKE (q. V.) an exception to 362 
 
 nature of document immaterial with regard to 245 
 
 not a mere i"ule of evidence 241 n. 
 
 object of .- 244 
 
 one paper, does not require contract to be contained in 266 
 
 PAKT-PAYMENT 296 7?. 
 
 PART-PERFORMANCE (q. V ) an exception to 281, 281 n., et seq. 
 
 marriage as 299 n. 
 
 plea of 3^6 
 
 pleadings in action 272 n. 
 
 RATIFICATION (q. V.) taking contract out of 259 
 
 sale by the court an exception to 273 
 
 public auction does not take case out of 274 
 
 satisfied, how 244 
 
 siGNATrRE ig. v.), what required by 131, 218, 253 
 
 subsequent parol contract, a bar to performance of 386 
 
 treaty, in regard to 249 
 
 weapon of defense, a • 255 
 
 where possession has been taken • 289 n. 
 
 wills, as to 281 
 
 writing, what it must contain, to satisfy 244 n., 245 n. 
 
 (And see Incompleteness.) 
 
 STATUTE OF LIMITATIONS: 
 
 interest, as to ^58 
 
 STATUTES: 
 
 Appellate Jurisdiction Act, 1876 (39 and 40 Vict., c. 59), s. 17 555 n. 
 
 Bankrupt Law Consolidation Act, 1849(12 and 13 Vict., c. 106), s. 146, 464 
 
 Bankruptcy Act, 1869 (32 and 33 Vict., c. 71), s. 23 464 
 
 Bill of Bracery and Buying of Titles (32 Hen. VIII, c. 9) 99, 481 
 
 Chancery Procedure Act, 1852 (15 and 16 Vict., c. 86), s. 42 SS n. 
 
 Chancery Procedure Act, 1853 (15 an.d 16 Vict., c. 86), s. 49. . . . 71, 113 n. 
 Common Law Procedure Act, 1854 (17 and 18 Vict., c. 124), s. 11. . . . 700 
 
 Common Law Procedure Act, 1854 (17 and 18 Vict., c 124), s. 12 164 
 
 Common Law Procedure Act, 1854 (17 and 18 Vict., c, 124), ss. 79, 81, 82, 551 
 
 Companies Act, 1862 (25 and 26 Vict., c. 89), s. 35 542 
 
 Companies Act, 1862 (25 and 26 Vict., c. 89), ss. 131, 153 676 
 
 Companies Act, 1867 (30 and 31 Vict., c 131), s. 37 310 
 
 Companies Act, 1867 (30 and 31 Vict., c. 131), s. 38 342 
 
 Companies Clauses Consolidation Act, 1845 (8 and 9 Vict., c. 16), 6. 97, 309 
 
 County Courts Act, 1865 (28 and 29 Vict. , c 99,, s. 1 539 
 
 County Courts Act, 1865 (28 and 29 Vict., c. 99\ ss. 3, 8, 9, 10, 11, 
 18, 19 -^40
 
 IJTDEX. 791 
 
 '.STATUTES— Con^mw^d. page. 
 
 County Courts Act, 1867 (30 and 31 Vict., c. 145), ss. 1, 8. 9 540 
 
 Custody of Infants Act, 1873 (36 Vict., c. 12), s. 2 690 
 
 Debtors' Act, 1869 (32 and 33 Vict., c. 62), s. 6 553 
 
 Debtors' Act. 1869 (32 and 33 Vict., c. 62), s. 8 557 n. 
 
 Fines and Recoveries Abolition Act (3 and 4 "Will. I J', c 74) 48 
 
 Further Encouragement of British Mariners [1794] (34 Geo. Ill, c 
 
 68), s. 14 685 
 
 Further Increase and Encouragement of shipping and Navigation 
 
 [1876 (25 Geo. Ill, c. 60), 8. 17^ 685 
 
 Grantees of Reversions (32 Hen. VIII, c. 34) 74 
 
 Judicature Act, 1873 (36 and 37 Vict. , c. 66), s. 16 601 
 
 Judicature Act, 1873 (36 and 37 Vict., c. 66), s. 24 (5) 550, 555 n. 
 
 Judicature Act, 1873 (36 and 37 Vict., c. 66), s. 24 (7), 395. 555 n., 601, 694 
 
 Judicature Act, 1873 (36 and 37 Vict., c. 66). s. 24 (8) 551 
 
 Judicature Act. 1873 (36 and 37 Vict., c. 66), s. 25 (7) 511 
 
 Judicature Act, 1873 (36 and 37 Vict., c. 66), ss. 33, 34 538 
 
 Judicature Act, 1873 (36 and 37 Vict., c. 60), ss. 45, 90 540 
 
 Judicature Act, 1873 (36 and 37 Vict., c. 66), s. 76 ". 555 n., 601 
 
 Judicature Act, 1875 (88 and 39 Vict., c. 77), s. 10 511 
 
 Judicature Act, 1875 (38 and 39 Vic. , c. 77), s. 11 538 
 
 Lands Clauses Consolidation Act, 1845 (8 and 9 Vict., c. 18). . 47, 51, 
 
 53, 157, 652 
 
 Land Transfer Act,' 1875 (38 and 39 Vict., c. 87). s. 93 81, 87, 541 
 
 Land Transfer Act. 1875 (38 and 39 Vict., c. 87), s. 94 541 
 
 Lord Cairns' Act (21 and 22 Vict., c. 27), s. 2 41, 156, 411, 599 et seq- 
 
 Lunacy Regulation Act, 1853 (16 and 17 Vict., c. 70), s. 122 130 
 
 Married Women's Proi>erty Act, 1870 (33 and 34 Vict., c. 93), s. 11, 127 n. 
 
 Merchant Shipping Act, 1854 (17 and 18 Vict., c. 104), s. 18 686 
 
 Merchant Shipping Act, 1854 (17 and 18 Vict., c. 104), ss. 55-57, 683, 686 
 Merchant shipping Amendment Act, 1855 (18 and 19 Vict., c. 91), 
 
 s. 11 683 
 
 Merchant Shipping Amendment Act, 1862 (25 and 26 Vict., c. 63), 
 
 s. 3 683, 686 
 
 Promissory Oaths Act, 1868 (31 and 32 Vict., c. 72), s. 14 (8) 684 n: 
 
 Registering of British Vessels [1825] (6 Geo. IV, c. 110, s. 31) 685 
 
 Registering of British Vessels [1833] (3 and 4 Will. IV, c. 55), s. 31. . . 685 
 Registering of British Vessels [1845] (8 and 9 Vict., c. 89), ss. 34, 37. . 685 
 
 Registering of Vessels [1823] (4 Geo. IV, c. 41), s. 29 685 
 
 Sale of Land by Auction Act, 1867 (30 and 31 Vict , c. 48), ss. 4-6. . . 349 
 
 Sale of Land by Auction Act, 1867 (30 and 31 Vict., c. 48). s. 7 446 
 
 Sales of Reversions Act (81 Vict. , c. 4) 212 
 
 Sir George Turner's Act (13 and 14 Vict., c. 35) 440 «. 
 
 Statute of Frauds (29 Cha. II, c. 8). ss. 4, 17 143, 240 
 
 Statute of Limitations (3 and 4 Will. IV, c. 27), s. 42 658 
 
 Trade Union Act, 1871 (84 and 35 Vict., c. 31) 230 
 
 Trustee Act, 1850 (13 and 14 Vict., c. 60), ss. 3, 4 130 
 
 Trustee Act, 1860 (13 and 14 Vict., c. 60), 8. 7 90 
 
 Trustee Act, 18.50 (13 and 14 Vict., c. 60), s. 30 90, 559/1. 
 
 Trustee Extension Act, 1852 (15 and 16 Vict., c. 55), ss. 10, 11 130
 
 792 INDEX. 
 
 STATUTES— Continued. r^e,. 
 
 Vendor and Purchaser Act, 1874 (37 and 38 Vict., c 78), s. 2 
 
 170, 560, 614, 620 
 Vendor and Purchaser Act, 1874 (37 and 38 Vict., c. 78), s. 9. . . . 539, 627 
 
 STAY OF EXECUTION 31 n. 
 
 STAY OF PPtOCEEDINGS 550, 556, 694, 700 
 
 STEWARD : 
 
 made a party 68 
 
 STOCK : 
 
 government 26 
 
 life-interest in, contract to sell 26 
 
 Neapolitan 26 
 
 purchase of, contract for 19 
 
 South Sea 26 
 
 transfer of, contract for 13 n., 26, 27 n., 27 
 
 York Bijilding 27 
 
 STOCK EXCHANGE : 
 
 account (or settling) day on the 665- 
 
 brokers on the 665 
 
 contracts on the : 
 
 for cash 665 
 
 for the account 665 
 
 customs of the 664 
 
 jobbers on the 665 
 
 MISREPRESENTATION (q. V.), to the secretary of the 623 
 
 name day on the 72, 665 
 
 novation in sales on the 72, 668 
 
 peculiarity of contracts on the 668 
 
 registration of transfer of shares sold on the 674, 676 
 
 statement of the practice on the 665 
 
 (And see SJiares.) 
 STRANGER: 
 
 agency, in cases of 83^ 
 
 assignee under insolvency 77 
 
 cestui que trust of contractor 83 
 
 change of condition in life, "where 85 
 
 claiming adversely to contractors 77 
 
 claiming benefit resulting from the contract 86 
 
 conscience of, affected by notice 87 
 
 executed contracts, in cases of 84 
 
 FRAUD (q. V.) by 350 
 
 generally cannot be sued for performance 86 
 
 sue for performance 82 
 
 Land Transfer Act, 1875, as to 87 
 
 marriage contract, pei'son claiming under 84 
 
 near relationship, in cases of 84 
 
 person in actual possession affected by relief claimed 87 
 
 possessed of subject-matter of contract with notice 86 
 
 representations by 158
 
 INDEX. 
 
 793 
 
 STRA.^GER— Continued. p^eB. 
 
 Scotch law as to ^•^ 
 
 solicitor °* 
 
 sued for performance 86, 87 
 
 suing for performance ^~> ^^ 
 
 taking benefit under contract 82 
 
 SUBJECT-MATTER : 
 
 ascertainable, though not ascertained 159 
 
 connected with claim, must be 159 
 
 daily variation, exposed to 517, 518 
 
 DESCRIPTION {q. V.) of 1" 
 
 different contracts relating to same 1 ' ~ 
 
 ELECTION ('-I- v.), ascertained by 160 
 
 event prior to contract, destroyed by 443 
 
 materially affected by '^'^^ 
 
 subsequent to contract, destroyed by * 446, 675 
 
 extrinsic evidence {q. v.) as to 157 
 
 lapse of time, extinguished by 450 
 
 misstatement of '^^^ 
 
 non-existent at date of contract 18o 
 
 not originally within the jurisdiction 48 
 
 question as to existence of, precluded by contract 445 
 
 TIME (q. V.) essential from nature of 518 n. , 519 
 
 UNCERTAINTY (5. f.) aS tO 185^ 
 
 SUBMISSION 696, 697 
 
 {See A'tcard.) 
 SUB-MORTGAGEE: 
 
 plaintiff ^5' 
 
 SUBPCENA ; 
 
 remedy by ' 
 
 SUB-PURCHASER : 
 
 lien of. 
 
 83 n. 
 
 660^ 
 
 suit by ' 
 
 SUBSCRIBER: 
 
 action against 
 
 to the erection of public buildings 61 1 
 
 SUBSEQUENT EVENTS: 
 
 when a ground for resisting performance 446, 448 
 
 when not a ground for resisting performance 448 
 
 SUCCESSION : 
 
 contract concerning hope of 16- ^77 
 
 (And see Expectancy ) 
 SUGGESTIO FALSI 338, 345 
 
 SUPPLEMENTAL: 
 
 bill 
 
 69.3 
 601 
 
 decree 
 
 SUPPRESSIO VERI 338 
 
 renewal of lease, in obtaining 188
 
 794 INDEX. 
 
 SURPRISE: P^"- 
 
 where there are circumstances of 187 
 
 SURRENDER: 
 
 contract to procure ^''^ 
 
 TELEGRAM: 
 
 contract made by 1'*^ "■• 
 
 TENANCY: 
 
 contract for j'earlj' ** 
 
 misrepresentation as to ^°^ 
 
 substituted ^^' 
 
 TENANT FOR LIFE: 
 
 compensation, decreed to maliC 584 
 
 contract by, for sale of fee ^88 
 
 excess of power, contracting for lease in 589 
 
 leasing power, contracting under 216 
 
 Lord Redesdale on contracts by 219 
 
 mining lease, decreed to execute contract for 200 
 
 mistake of 366 
 
 remainderman, contracting prejudicially to 189, 219, 588 
 
 reversioner, concurring with 211 
 
 trustee, purchasing from 639 n. 
 
 TENANT IN COMMON: 
 
 in tail, contract for sale by 483, 656 n. 
 
 possession as, with vendor "5o 
 
 TENANT IN TAIL: 
 
 disposition of land by '^8, to 
 
 issue in tail not bound by contract of 483 
 
 tenant for life's contract, cannot enforce 215 
 
 (A7id see Mutuality, Remainderman.) 
 
 TENDER 474 n. , 507 n. , 536 n. 
 
 by payment into court 658 7i. 
 
 waiver of ""'I ^^* 
 
 TENURE: 
 
 ascertainment of 1"*^ 
 
 compensation for difference of 579, 580 
 
 TERM: 
 
 IMPLIED (q.V.) 169, 171, 455 
 
 supplied, by construction, expression, or inference 171 
 
 years, of, commencement of 171 
 
 (And see Lease, Performance.) 
 THEATRE : 
 
 contract to let box in 1^^ 
 
 perform at 41~/ 
 
 TIMBER: 
 
 future time, to be cut down at 410 
 
 injunction against cutting 546 
 
 installments, to be paid for by 410 
 
 purchase of, contract for 19 
 
 supply of particular, contract for 33
 
 INDEX. '795 
 
 TIME: PA«B. 
 
 abstract, for delivery of 516, 643 
 
 allowed for completion of title 626 
 
 annuities on lives, in contract for granting 517 
 
 chapter, in purchase by 521 
 
 coal, in contract for supply of 516 
 
 commercial enterprise, where object of contract is 518 
 
 common law, at 510, 515 n. 
 
 COMPLETION [q. v.), Specified for 513 n., 516, 637 
 
 condition as to, must be clear 516 
 
 contract substantially executed, where 530 
 
 crossings, for directing the making of 528 
 
 daily variation, where subject-matter is exposed to 517 
 
 delivery of objectioiFs, for 584, 565 
 
 deposit, for payment of 514 
 
 election between payment into court and giving up possession, for. . . 654 
 
 to rescind, for exercise of 353 
 
 equitable title, where plaintiff is relying on 530 
 
 equity, how regarded in 510, 515 n., 512 
 
 essentiality of 510^ 
 
 conditions, by the 51S, 576 
 
 implied 517 
 
 intention of the parties, by - 516 
 
 original 512 
 
 some of the conditions, as to 521 
 
 subject-matter, from nature of 517, 519 
 
 surrounding circumstances, from 521 
 
 waived 5oo, ooo 
 
 without delay, to be insisted on 512 
 
 express condition as to 514 
 
 extension or giving of 535, 5o6 n . 
 
 going concern, in contract relating to 518 
 
 government stock, on purchases of 517 
 
 hardship resulting from disregard of 521 
 
 Judicature Act, 1873, as to 511 
 
 laches, in relation to = 5-4 
 
 lapse of, a defense 510, 531 n. 
 
 letters-patent, in contract relating to 518 
 
 mere claim or protest, in cases of 533 
 
 mills, where land purchased for erection of 518 
 
 MINES (g. ■».), in contracts relating to 518 
 
 negotiation, pending 531 
 
 no general right to limit 5,v 
 
 non-essential 516, o<,0 
 
 not designated ^""^ ^■ 
 
 not allowed for completion of thle 626 
 
 notice limiting 5^^' ^'~ 
 
 parol ^-* 
 
 previous refusal to remove objection, after 523 
 
 reasonableness of 519, 522, 523
 
 796 
 
 INDEX. 
 
 TIME — Continued. pagb. 
 
 unequivocal 504 
 
 unreasonable 522 
 
 option in contract giving 519, 520, 537 ra., 528 
 
 part-performance, in cases of 294 
 
 payment for ,534 
 
 possession, after default as to taking 535 
 
 where stipulation for taking 519 
 
 wliere tenant is in 530 
 
 possibility of postponement contemplated, where 520 
 
 prima facie non-essential 510 
 
 public-house, in contract relating to 518 
 
 purchase-money, for payment of 516 
 
 Railway Act, where land taken under 533 
 
 reasonable, performance within 510 
 
 reference-back of certificate, in cases of 629 
 
 renewal, in respect of covenants for 514 
 
 requisitions, for sending in 521 
 
 reversionary interests, in sales of 517, 520 
 
 right to rescind, for exercise of 503 
 
 shares, in contracts relating to 519 
 
 stipulation as to 513 n. 
 
 waiver of 533 
 
 distinguished from waiver of act 585 
 
 where it does not run 530 
 
 works, in contracts relating to 518 
 
 (And see Delay ) 
 TITHE; 
 
 compensation for 574^ 592, 599 
 
 contract for sale of 577 
 
 estate sold as free from 574, 577, 599 
 
 TITLE : 
 
 acceptance of, worked by acts op ownership (5 v) 618 
 
 accepted under common mistake 612 
 
 need not be if doubtful 432 n., 439 n. 
 
 accordance with conditions, in 614 
 
 acquired subsequently to the sale 627 
 
 acts of purchaser before knowledge of objection to 616, 618 
 
 with knowledge of curable objection to 616 
 
 incurable objection to 616 
 
 administrator's sale at 45I n, 
 
 admission of 615, 653 
 
 CERTIFICATE (q. v.) agaiust or for 028 
 
 claim for compensation {q. v.) involving objection to 596 
 
 costs, purchaser ordered to pay, after decision in favor 439 
 
 crown grant, cured by. 626 
 
 cured by purchaser's own act 621 
 
 dealing about, after day for completion 533 
 
 decision of inferior or other court as to 430 
 
 defense, inability to obtain a good title a 440 ?i.
 
 INDEX. 797 
 
 TITLE— Continued. p^ge 
 
 defect of, discovered by purchaser aliunde G14 
 
 disclosed bj' vendor himself 614 
 
 delay in accepting 527 
 
 different subject-matter from that contracted for, relating to 421 
 
 dismissal of action at the trial for want of 437, 609 
 
 doubtful, amount of doubt required by the rule as to 430 
 
 arguments for and against the rule as to 429 
 
 former and present tendencies of the court in cases of 430 
 
 nature of the doubt in cases of 432 
 
 origin of the rule as to 428 
 
 where court would consider title to be 432 
 
 not to be 435 
 
 dower, right of, an incumbrance 432 
 
 good 560, 630 
 
 good holding 615 
 
 implied condition for 170, 611 
 
 inquiry as to 609, 672 
 
 into, excluded GIO, 613 
 
 limited 613, 625 
 
 precluded 618 
 
 iron works, to share in 617 
 
 legal right of purchaser as to 560 
 
 lessor of 170, 012, 614 
 
 making and showing, distinction between 632 
 
 marketable 430 
 
 matters connected with 624 
 
 of 632 
 
 MISREPRESENTATION {q. V ) aS tO 331 
 
 misstatement not amounting to an objection to 595 
 
 necessarj^ pa-rty to, not under vendor's control 631 
 
 new 626 
 
 obligation to disclose 343 
 
 old practice of court of chancery in disputes as to 428 
 
 particular objection to 616 
 
 pleading facts constituting 615 
 
 possibility of fraud in extrinsic facts, where there is 435 
 
 presumption, depending on 432 
 
 questions of, are mixed questions of law and fact 331 
 
 defects in subject-matter are not 421 
 
 defined 623 
 
 distinguished from questions of conveyance 630, 631 
 
 evidence 632 
 
 right to rescind for 503 
 
 REFERENCE OF (q. V.) 609 
 
 restrictive stipulations as to , 611 
 
 shares, to ' 610, 672 
 
 special case on question of 440 
 
 suspicious circumstances, in cases of 435 
 
 time for completion of, when and when not allowed 626
 
 798 INDEX. 
 
 TITLE— Co7itinued. rxat. 
 
 validity of purchase by solicitor from client, depending on 435 
 
 Vendor x^d Purchaser Act, 1874 {q v.), under 170, 560 
 
 vendor showing no 502 
 
 vendor's obliijation to show 170 n., 634 
 
 voluntary settlement, depending on invalidity of 432 
 
 want of good 427 n., UO n. 
 
 WAi\'ER (7. r.) of 170 
 
 will, depending on validity of 439 
 
 TITLE DEEDS: 
 
 deposit of, as indemnity 18 
 
 {Ajid see Deed ) 
 TRADE : 
 
 covenant not to carry on 58 
 
 unions 280 
 
 TRADE UNION ACT, 1871 230 
 
 TRANSFER : 
 
 of SHARES {q. V.) 664 
 
 of SHIP (q. V.) 683 
 
 TRANSFER OF ACTION: 
 
 chancery division, to 538 
 
 counterclaim, upon 538 
 
 COUNTY COURTS (q. 'V.), to aud from 540 
 
 TREATY 131, 136. 249 
 
 {See Xegotiaiion.) 
 
 TRUST : 
 
 chattels, respecting 34 
 
 contract, contrasted with 9 
 
 created under contract 404 n, 
 
 designed to give effect to unenforceable contract 228 
 
 equity will enforce a parol 279 n. 
 
 performance of, distinguished from specific performance 9 
 
 raised on property devised or bequeathed 281 
 
 secret 98 
 
 TRUSTEE: 
 
 BANKRUPTCY [q. V.) iu, enforcement of specific performance against. . 
 
 106, 464 
 
 cest'ii que trust, sued for performance by ' 218 
 
 contract by, amounting to breach of trust {q. r.) 190 
 
 in excess of power 190 
 
 covenants by 463, 464 
 
 disclaimer by 464 
 
 entering into contract ultra vires 190 
 
 illegality {q. V.) of trust, setting up 229 
 
 improvident sale by ' 190 
 
 incapable of contracting with cestuis que trust 180 
 
 injurious contracts by, generally not enforced 191 
 
 insolvent lessee, for 96 
 
 liquidation, in 106, 464
 
 INDEX. 799' 
 
 TWUSTEE— Continued. pase. 
 
 man of straw 671 
 
 married woman 1-9) 215 
 
 misrepresenting value of property sold 191 
 
 {Arid see Misrepresentation.) 
 
 party to action, when 76 
 
 purchaser constructively a 634 
 
 real purchaser, for 278 
 
 sale, for- ••••• 120, 161, 191 
 
 secret 96, 97 
 
 separate estate, of • - • 127 
 
 unbusinesslike contract by 192 
 
 vendor constructively a 634, 646 
 
 is after payment of purchase-money 659 
 
 TRUSTEE ACT, 1850: 
 
 party to action declared trustee by virtue of 90 
 
 vesting order under . 90, 559 
 
 ULTRA VIRES: 
 
 acquiescence in act which is 235 
 
 agents of corporations, in acts of 235 
 
 COMPANY {q. V.) and stranger, where question between 236 
 
 where contract is 233 n . 
 
 CORPORATION (q. V.), in contracts by 232 
 
 covenant for renewal, in 190 
 
 directors and members of company, where question between 237 
 
 promoters, in cases of contracts by HO 
 
 purchase of assurance company's business held void as 383 
 
 ratification of act which is • ■ • 235 
 
 UNCERTAINTY : 
 
 AWARD (g. v.), of 698 
 
 compromise rendered fair by 183 
 
 contingency, where contract involves 184, 185 
 
 DESCRIPTION (5. V.) of subject-matter, in 159, 424 
 
 ELECTION (q. v.), removed by • • 160 
 
 FRAUD {q. v.), in cases of 180 
 
 instances 1^''^ 
 
 marriage articles, of l"*"^ 
 
 mining contract, of 185 
 
 reduced to certainty (q. v.) 159 
 
 removed by user and course of dealing 176 
 
 stibject-matter iq. v.) asio 185 
 
 terms of contract 173 ??. 
 
 theatrical engagement, in 177 
 
 UNDERLEASE: 
 
 contract for •. 170 
 
 duration of, not specified 172 
 
 sold as lease 580, 582 
 
 UNDERTAKING: 
 
 contract in nature of 217
 
 800 INDEX. 
 
 #AGE. 
 
 UNDERVALUATION 210 
 
 (And see Value?'.) 
 UNDERWRITER'S SLIP: 
 
 does not constitute a contract 377 
 
 UNFAIRNESS : 
 
 BREACH OF TRUST (q. v.). of Contract necessitating 190 
 
 cestui que trust, to 191 
 
 extrinsic matters, in 182 
 
 intentional, need not be 188 
 
 intoxication, in cases of 188 
 
 misstatements, arising from 188 
 
 {See Misrepresentation.) 
 particulars, in 561 
 
 SILENCE {q. v.), by 188 
 
 submission, in contract for 195 
 
 suppression of a fact, by 188 
 
 {See Fraud.) 
 
 terms of contract in 188 
 
 third persons, to 189 
 
 {And see Fairness.) 
 
 UNILATERAL CONTRACTS: 
 
 DELAY {q. V.) in cases of 527 
 
 discretion of court in cases of 217 
 
 MUTUALITY (g. v.), excepted from doctrine of 217 
 
 UNREASONABLE CONTRACT 196 n. 
 
 VALUATION: 
 
 contract to sell at a 696 n., 699 
 
 inaccurate 186 
 
 incapable of being acted on 162 
 
 incidental matters, of 166 
 
 partnership, at expiration of 166 
 
 subsidiary stipulation for 166 
 
 unfairness in 183, 186 
 
 vendor obstructing 165, 699 
 
 VALUER : 
 
 arbitrator, distinguished from 164 
 
 Common Law Procedure Act, 1854, not applicable to 164 
 
 duty of 186 
 
 impropriety on part of 162, 186, 698 
 
 injunction against obstructing 548 
 
 PRICE {q. v.), for ascertainment of , 168, 699 
 
 refusing to proceed 165 
 
 under-valuation by 210 
 
 unfairness of 186 
 
 VARIANCE; 
 
 between land sold and real quantity 421 n. 
 
 VARIATION: 
 
 acquiescence a ground of 372
 
 INDEX. 
 
 801 
 
 YABIA.TIO'^— Continued. pabb. 
 
 alleged and proved contracts between 304 
 
 covenant for renewal, of 372 
 
 description in contract, from 421, 425 
 
 excess, in the nature of 424 
 
 immaterial, in cases of part-performance 305 
 
 nugatory, in acceptance 138 
 
 omission of term in plaintiff's favor, by 305 
 
 PAROL iq. V.) 308, 308 
 
 partnership, in terms of 498 
 
 VENDEE: 
 
 abandonment of contract by 537 n. 
 
 equitable estate in 633 n. 
 
 VENDOR: 
 
 chattel of, action by 33 
 
 commendation by "'-' ' 
 
 constructive trusteeship of., 634, 646 
 
 enforcement of contract to extent of interest of 5S6 
 
 { See Compensation. ) 
 
 obligations of 634, 648, 673 
 
 of land, damages not complete remedy to 25 
 
 responsible for description of thing sold 571 
 
 right of, to sue 25 
 
 suing, must show ability to perform his part 571 
 
 VENDOR AND PURCHASER ACT, 1874: 
 
 action brought after proceedings under 539 
 
 position of parties to application under 539, 627 
 
 summons under s. 9 of 53 J 
 
 title to the freehold, as to I'^O, 620 
 
 VENDOR'S LIEN: 
 
 acts diminishing value of 656 
 
 declaration of 55*\ 558 
 
 enforcement of 55 / , 655 
 
 railway companies, against 558, 655 
 
 results from non-performance of contract 635 
 
 when it will and will not prevail 557 
 
 {And see Lien.) 
 
 VERBAL CONTRACT 143,277,279,299,308, 372 
 
 {See Parol.) 
 
 VESTING ORDER 90, 559 
 
 VOID: 
 
 stipulation that contract is to be, in specified event 501 
 
 VOLUNTARY : 
 
 contract 
 
 45 
 
 settlement ^^2' "^^ 
 
 settlor, contract enforced against 218 
 
 not assisted to override settlement 190, 432 
 
 willing purchaser from 190, 218 
 
 51
 
 802 INDEX. 
 
 VOLUNTEER : paob. 
 
 limitatious in favor of '4*^' 
 
 WAGER CONTRACTS: 
 
 unlawful 224 n.. 225 n., 230 v. 
 
 WAIVER: 
 
 abstract, by retaining 61^ 
 
 act of, distinguished from waiver of time •'^3o 
 
 acts before knowledge of objection, by 618 
 
 not amounting to 618 
 
 ACTS OF OWNERSHIP {q. v.),hy 618 
 
 assignment, of proviso against 99 
 
 award, of claims under 698 
 
 breaches of covenant, of 469 
 
 clear evidence of, required 495 
 
 conditions for benefit of purchaser, of 170, 411 
 
 precedent, of 47 < 
 
 conditional, of notice 523 
 
 stipulation as to day of payment 535 
 
 conduct, by 494, 620 
 
 contract not enforced notwithstanding, of right to investigate title. . . 521 
 
 defect, of 578 
 
 DELAY (g. v.), of 533 
 
 essentials of - 477 
 
 forfeiture, of • 534 
 
 form of declaration as to 520 n. 
 
 FRAUD [q v.), of 349 
 
 granting lease, by 616 
 
 intention and knowledge requisite to 534 
 
 lessor's title, of 620 
 
 misdescription, of objection on the ground of 616 
 
 mutual parol agreement, by 494 
 
 MUTUALITY {q. V.), of Want of 217, 627 
 
 objections to title, of 610 
 
 partial 495 
 
 particular objection to title, of 616 
 
 performance by plaintiff, of 460 
 
 personal bar to relief, of right to insist on 357 
 
 pleaded, how 621 
 
 possession, by continuing in 617 
 
 by giving 535 
 
 by taking 616, 617, 535 
 
 question of evidence, a 536 n., 535 
 
 receipt of rent, by 469 
 
 royalty at reduced rate, by 503 
 
 subsequent instalment, by 503 
 
 REFERENCE OF TITLE (g. V.), Of right tO 615 
 
 requisition, of 6is 
 
 right to rescind, of 503 
 
 separate breaches, in cases of 504 
 
 silence of subsequent contract, by 619
 
 INDEX. 803 
 
 WAIVER — C<mtinu6d. paob. 
 
 suing on contract, by 349 
 
 TIME {q. v.), of 447, 533 
 
 TITLE (q. v.), oi 615 
 
 trial, adjudicated on at the 535, 609 
 
 voluntarily curing defect, by 570 
 
 WARRANTY : 
 
 apparent defects not included in 332, 333 n,, 422, 580 
 
 condition, as to 444 
 
 existence of specified thing, of 478 
 
 real estate conveyed without 452 
 
 WASTE 408 
 
 WAY, RIGHT OF : 
 
 COMPENSATION {q. V.), not a subject for 580 
 
 concealment of 331 
 
 not expressly provided for 456 
 
 sale of land without 201 
 
 WAYLEAVE : 
 
 contract to grant 25 
 
 WIDOW : 
 
 of vendor when a party 90 
 
 WIFE: 
 
 capacity of, to contract with husband 688 
 
 compensation for interest of 586 
 
 consent of 482, 482 n. 
 
 contract to sell estate of 482, 588 
 
 expectancy of 679 
 
 (And see Husband and Wife, Married Woman.) 
 
 WILLFUL DEFAULT: 
 
 bailiff accountable on footing of 645 
 
 DETERIORATION ((?. V.) arising from 592 
 
 disentitling vendor to benefit of stipulation for interest 643 
 
 vendor charged with rents on footing of 644, 646 
 
 WILL: 
 
 contract to divide or charge what shall be left by 678, 679 
 
 to make 105, 105 n. 
 
 obtained by promise to dispose of property in a particular way 281 
 
 title depending on validity of 439 
 
 WINDING-UP: 
 
 before completion of contract relating to shares 450, 671, 675 
 
 transfers after commencement of 676 
 
 WINE VAULTS: 
 
 contract to take lease of 532 
 
 WITHDRAWAL: 
 
 application for shares, of 140 
 
 auction, at 140 n. 
 
 express notice of, not needful 141 
 
 notice to treat, of 141 
 
 offer, of 133, 140, 141 ?i.
 
 804 INDEX. 
 
 PAGE. 
 
 WITHOUT RESERVE 347 
 
 {See Sale.) 
 
 WORKS : 
 
 accommodaliou 41 
 
 contract to make or do 406, 409 
 
 complete * •. 409 
 
 third person's direction, to be done according to 169 
 
 time essential in relation to •'ilB 
 
 {And see Building Contract.) 
 
 WRIT : 
 
 assistance, of 559 
 
 attachment, of 556 
 
 covenant, of 6 
 
 ex communicato capiendo 6 
 
 form of indorsement of 538 
 
 ."MAXDAMTTS (g. V.), of 4 
 
 ne exeat, of 553 
 
 sequestration, of 556 
 
 YEARLY TENANCY: 
 
 dutj^ of vendor to re-let farm subject to 646
 
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