SEC. 16. The following are additional instances of special agreements which have been specifically enforced because the remedy of damages would afford no just and adequate compensation: A contract to insure;(1) ante-nuptial agreements containing stipulations concerning personal property; (2) a general covenant to indemnify ;(3) an agreement to compromise a judgment debt, by accepting a promissory note made by a third person for a portion of the amount ;(4) an agreement which had been partly carried out by a creditor to accept and receive such goods of the debtor as he might select in payment of his claim, the court decreed that a master should select and deliver the residue of the goods, in case the creditor refused to make the selection himself; (5) an award dividing the vats and hides, assets of a firm, equally among the partners ;(6) an agreement between A. & B. that A. should furnish a large number of peach trees, and that B. should plant them on his farm, market the fruit, and account for the profits; A. having furnished the trees the contract was specifically enforced for the benefit of A. and his assigns.(7)

SEC. 17. Contracts concerning things in action. The ancillary and supplementary nature of the equitable remedy is exhibited in the clearest light by the course of decisions upon contracts concerning the various species of stocks. It is a settled rule that agreements to

v. Commrs. of Public Works, 32 Beav. 490. See Schotsmans v. Lancashire, etc. R. R. Co., L. R. 2 Ch. 332.

(1) Carpenter v. The M. Ins. Co. 4 Sandf. Ch. 408; Neville v. Merchants', etc. Ins. Co., 19 Ohio, 452; Taylor v. Merchants', etc., Ins. Co., 9 How. U. S. 390.

(2) Tarbill v. Tarbill, 9 Allen, 278; an agreement that the wife should relinquish her dower, in consideration of the transfer of certain shares of stock; Bateman v. Porter, 9 Allen, 231, agreement that real and personal property should be settled to the wife's use, in consideration of her consent to give up all interest in her husband's estate; Gough v. Crane, 3 Md. Ch. 119; 4 Md. 316, where a verbal ante-nuptial agreement concerning the wife's chattels and things in action, void by the statute of frauds, had been part performed.

(3) Chamberlain v. Blue, 6 Blackf. 491, 492. In an able opinion discussing the general principles the court cited approvingly Taylor v. Neville, Buxton v. Lester, and Adderly v. Dixon, and concluded: "Courts of equity will also in many cases decree the specific execution of personal contracts, where injury is apprehended, but not yet sustained." Per contra, see Hoy v. Handsborough, 1 Freem. Ch. 533. (4) Phillips v. Berger, 2 Barb. 609; S. C. on app., 8 id. 527.

(5) Very v. Levy, 13 How. 345. See in connection, infra, cases concerning contracts where valuation is to be made by valuers.

(6) Kirksey v. Fike, 27 Ala. 383.

(7) McKnight v. Robbins, 1 Halsted Ch. 229, 642; and see Ashe v. Johnson, 2 Jones Eq. 149; Sullivan v. Tuck, 1 Md. Ch. 59; Furman v. Clark, 3 Stockt. 305; Steward v. Winters, 4 Sandf. Ch. 587; Hall v. Joiner, 1 Rich. (N. S.) 186; Starnes v. Newsome, 1 Tenn. Ch. 239.

purchase and sell, or deliver shares of government or other public stocks, will not be specifically performed in equity, because such securities are always for sale, their price is known, and the damages awarded at law will enable the injured party to make himself whole by purchasing in the market.(1) On the other hand, it is now equally well established in England that contracts for the purchase, sale, or delivery of railway and other similar shares, will be specifically enforced, at the suit either of the purchaser or the vendor. The reasons of the distinction, as given by the court in a leading case, are as follows: "The only question is whether there has been any decision from whence you can extract a conclusion that the court will not decree a specific performance of an agreement for the sale of such shares. Now I agree that it has been long since decided, that you cannot have a bill for the specific performance of an agreement to transfer a certain quantity of stock. But, in my opinion, there is not any sort of analogy between a quantity of 31. 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 railway shares of a particular description, which railway shares are limited in number, and which, as has been observed, are not always to be had in the market."(2) A contract for the sale of shares in a joint-stock association has been specifically enforced, although there was a provision in the deed of settlement "that no shareholder shall be at liberty to transfer his shares, except in such a manner as the board of directors should approve."(3)

(1) Cud v. Rutter, 1 P. Wms. 570; Cappun v. Harris, Bunnb. 135; Nutbrown v. Thornton, 10 Ves. 161, per Ld. ELDON; Doloret v. Rothschild, 1 S. & S. 590; Shaw v. Fisher, 5 D. G. M. & G. 596.

(2) Duncuft v. Albrecht, 12 Sim. 189, per Sir L. SHADWELL, V. C., afterwards affirmed by the L. C.; Shaw v. Fisher, 2 DeG. & Sm. 11; 5 DeG. M. & G. 596; Wynne . Price, 3 DeG. & Sm. 310; Wilson v. Keating, 7 W. R. (M. R.) 484; Cheale v. Kenward, 3 DeG. & J. 27.

(3) Poole v. Middleton, 29 Beav. 646, per Ld. ROMILLY, M. R. In Doloret v. Rothschild, 1 S. & S. 590, Sir John LEACH held that a contract for the purchase of Napolitan stock should be specifically enforced, when the bill prayed for the delivery of the certificates which would constitute the plaintiff proprietor of a certain quantity of the stock, for the reasons, as he said, that "a court of law could not give the property, but could only give a remedy in damages, the beneficial effect of which must depend upon the personal responsibility of the party. I consider, also, that the plaintiff, not being the original holder of the scrip, but merely the bearer, may not be able to maintain any action at law upon the contract, and that if he has any title, it must be in equity." See, also, Colt v. Netterville, 2 P.Wms. 304. A specific performance of contracts for sale and purchase or delivery of such shares is now a matter of every-day occurrence in England, complicated,

SEC. 18. These reasons, which have led the English courts to draw so sharp a distinction between government and other public stocks and shares in companies, do not apply with all their force in this country. The English companies are not, in general, corporations, but are joint-stock associations, or modified partnerships. Although organized under statute, their powers are largely derived from, and regulated by, the articles of association or deed of settlement entered into by the members of each company by itself. Although their shares are bought and sold in the market, yet the modes of the transfer are always cumbrous, and often very much restricted by the regulations of the settlement deed. In this country, the companies issuing stock are, with very few exceptions, corporations, their charters either being special acts of the legislature, or formed in pursuance of general statutes. By the universal customs of the stock market and of business men, certificates of stock are transferred by delivery, and this method is recognized by the law as conferring a complete beneficial title upon the assignee. In short, the shares of stock corporations in this country are regulated, bought, sold, and transferred with as much ease and publicity as the national or state governmental securities, or the public debt of England. The same is true of the coupon bonds issued by our great business and municipal corporations, which are transferred by delivery, like negotiable notes payable to bearer, and which are constantly bought and sold in all the financial markets of the country to an enormous extent. These facts make it very clear that the reasons upon which the English judges have based their recent decisions, above cited, concerning contracts for the sale or delivery of shares, have little or no force when applied to similar agreements in the United States, and the American courts might well refuse to adopt those reasons and follow those decisions, without

however, by the varying and often minute provisions respecting the mode of transfer found in the articles of different companies, and by the customs of the London Stock Exchange. The following are recent cases on the subject: Bermingham v. Sheridan, 33 Beav. 660, 665; Robinson v. The Chartered Bank, Law Rep. 1 Eq. 32; Cheale v. Kenward, 3 DeG. & Jo. 27; Jackson v. Cocker, 4 Beav. 59; New Brunswick, etc., Co. v. Muggeridge, 4 Drew. 683; Oriental Inland Steam Co. v. Briggs, 2 J. & H. 625; Sheffield Gas, etc., Co. v. Harrison, 17 Beav. 294; Harris v. North Devon Railway Co. 20 Beav. 384; Hawkins v. Maltby, L. R. 3 Ch. 188; L. R. 4 Ch. 200; L. R. 6 Eq. 505; Emmerson's Case, L. R. 1 Ch. 433; Coles v. Bristowe, L. R. 4 Ch. 3; L. R. 6 Eq. 149; Cruse v. Paine, L. R. 4 Ch. 441; L. R. 6 Eq. 641; Merry v. Nickalls, 20 W. R. (L. J.) 929; 27 L. T. (N. S.) 12; 20 W. R. 531; 26 L. T. (N. S.) 496; Rennie v. Morris, L. R. 13 Eq. 203; Paine v. Hutchinson, L. R. 3 Ch. 388; L. R. 3 Eq. 257; Hodgkinson v. Kelly, L. R. 6 Eq. 496; Evans v. Wood, L. R. 5 Eq. 9; Shepherd v. Gillespie, L. R. 5 Eq. 293.

infringing, in the slightest degree, upon the equitable doctrines relating to specific performance, which the tribunals of both nations. equally recognize and administer by their judgments.

SEC. 19. The decisions by the courts of this country are, as might be expected, conflicting. In some cases it has been held, following the English doctrine implicitly, that shares in a railroad or other similar company, differ from government securities, that they do not have a specific value, and are not always to be found in the market, and that contracts for their purchase, sale, or delivery will be specifically enforced.(1) Other cases simply hold that the specific performance of a contract for the transfer or delivery of stocks may be decreed where there is no adequate legal remedy.(2) The weight of American authority, however, seems to be in favor of the rule that stocks of business corporations, at all events when they are commonly sold in the market, stand upon the same footing as public, governmental securities, and that the legal remedy of damages for the breach of a contract is as adequate a remedy in the one case as in the other. Certainly, there can be no valid distinction, in this respect, between shares of stock in banks, insurance companies, railway companies, manufacturing corporations, and the like, if they are all customarily for sale in the public market, and many of the decisions do not insist on or even allude to this limitation as necessary.(3)

SEC. 20. Analogous to the case of shares, under the English rule, is that of things in action. Contracts for the purchase, sale, or assignment of things in action, will often be enforced at the suit of the purchaser, by compelling the vendor to transfer and deliver, where the legal damages might be too uncertain and conjectural to constitute an adequate compensation. And, as the remedy must be mutual, the vendor may also maintain his action for a specific performance, and

(1) Ashe v. Johnson, 2 Jones Eq. 149. See Baldwin v. Commonwealth, 11 Bush. 417, in respect to a sale of turnpike stock made by state commissioners. (2) Todd v. Taft, 7 Allen, 371; Leach v. Fobes, 11 Gray, 503; Treasurer v. Commercial, etc., Co. 23 Cal. 390.

(3) Cowles v. Whitman, 10 Conn. 121, 124; Brown v. Gilliland, 3 Dessau. 539, 541; Bissell v. Farm. & Mech. Bank of Mich. 5 McLean, 495; Ferguson v. Paschall, 11 Mo. 267; Austin v. Gillespie, 1 Jones Eq. 261; Strasbourg R. R. Co. v. Echternact, 21 Pa. St. 220; Gram v. Stebbins, 6 Paige, 124. Cowles v. Whitman, supra, related to bank stock. A contract to deliver government bonds or marketable railway shares will not be specifically enforced, per DILLON, J., in Fallon v. R. R. Co. 1 Dill. 121; Ross v. Union Pac. R. R. 1 Woolw. 26, 36; Carpenter v. Ins. Co, 4 Sandf. Ch. 408; Lowry v. Muldrow, 8 Rich. Eq. 241; McGowin v. Remington, 12 Pa. St. 56; Sullivan v. Tuck, 1 Md. Ch. 59: Waters v. Howard, 1 Md. Ch. 112.

compel payment of the purchase-money. The following are illustrations: An agreement, by the assignee of certain debts, which had been proved, under a commission of bankruptcy, against the debtor, agreed to sell them to a third person for 2s. 6d. on the pound. A specific performance was decreed in a suit brought by the vendor.(1) An agreement for the purchase of an annuity, payable out of certain funds standing in the court of chancery, has also been enforced at suit of the vendor, (2) and also an agreement for the purchase of a life annuity;(3) and a contract to purchase a debt.(4) On the same principle, because its value is uncertain and conjectural, and there is no accurate measure of damages, a contract for the sale of a patent right will be specifically enforced against the vendor, by compelling him to execute and deliver an assignment; and consequently the vendor may, by a suit of the same sort, compel the purchaser to accept the transfer and pay the purchase price.(5)

(1) Adderley v. Dixon, 1 S. & S. 607, per Sir JOHN LEECH: "The present case being a contract for the sale of the uncertain dividends, which may become payable from the estate of a bankrupt, it appears to me that, upon the principles established by the cases of Ball v. Coggs, and Taylor v. Neville, a court of equity will decree specific performance, because damages at law cannot accurately represent the value of future dividends; and to compel this purchaser to take such damages would be to compel him to sell those dividends at a conjectural price It is true that the present bill is not filed by the purchaser, but by the vendor, who seeks not the uncertain dividends, but the certain sum to be paid for them. It has, however, been settled by repeated decisions, that the remedy in equity must be mutual, and that where a bill will lie for the purchaser, it will also lie for the vendor." And see Cutting v. Dana, 25 N. J. Eq. 265.

(2) Withy v. Cottle. 1 S. & S. 174, per Sir JOHN LEACH, "There can be no doubt that the defendant, who is the purchaser of this annuity, might have filed a bill for the specific performance of the agreement for sale to him, because a court of law could not give him the subject of his contract, and the remedy here must be mutual for purchaser and vender." See Clifford v. Turrell, 1 Y. & C. C. C. 138; 9 Jur. 633.

(3) Kenney v. Wexham, 6 Mad. 355, 357.

(4) Wright v. Bell, 5 Price, 325. In Cutting v. Dana, 25 N. J. Eq. 265, it was held that a contract for the sale of a debt would be specifically enforced in equity, where there was no adequate remedy at law, or where some other equitable feature was present; for example, where the creditors of an insolvent firm agreed to sell their claims against it to one of their number, at twenty-five cents on the dollar. A contract to deliver a paid-up life insurance policy, for a certain sum, has been specifically enforced against the insurance company. Hughes v. Piedmont, etc., Life Ins, Co. 55 Geo. 111; and also a contract, by the holder of notes, to deliver them up to the maker to be canceled. Tuttle v. Moore, 16 Minn. 123; an agreement to assign a contract between defendant and a third person. Woodward v. Aspinwall, 3 Sandf. 272.

(5) Cogent v. Gibson, 33 Beav. 557; Corbin v. Tracy, 34 Conn. 325; Somerby v. Buntin, 118 Mass. 279; Binney v. Annan, 107 Mass. 94; Ely v. McKay, 12 Allen, 323.