and that subsequent events and changing circumstances may so effect the equity of a contract as to prevent its judicial enforcement.(1)

(1) Judge STORY maintains this opinion. Eq. Jur., §§ 750, 776; Willard v. Tayloe, 8 Wall. 557; and see Stone v. Pratt, 25 Ill. 25; Hale v. Wilkinson, 21 Gratt. 75. There is a very curious disagreement in two recent decisions by the United States supreme court. In Willard v. Tayloe, supra, the question was directly presented, and made the very ratio decidendi. A contract for the leasing of a hotel, in Washington, with power to the lessee of buying it after ten years, at a specified price. It was conceded that the contract was perfectly fair in every respect, the price ample, etc. Before the time for buying the war began, the property rose vastly in value, much more than was expected, and at same time legal-tender notes were greatly depreciated. The vendor refusing to convey for the price tendered in legal-tender notes, the vendee brought suit for a specific performance. Held, that although the contract was perfectly fair in its inception, yet as its enforcement had become inequitable by subsequent and unexpected events, which could not have been contemplated by the parties, the court would not enforce it without imposing conditions on the plaintiff. A specific performance was, therefore, refused unless the plaintiff would pay the price in gold. In support of the position that subsequent events might thus effect the remedy, the court cited City of London v. Nash, 1 Ves. Sen. 12; Faine v. Brown, cited in Ramsden v. Hylton, 2 Ves. Sen. 306. (See the extract from the opinion ante, in § 35.) The court, except two judges, united in this opinion, so that it was a decision directly necessary to sustain the judgment which the court pronounced. Shortly after the case of Marble Co. v. Ripley, 10 Wall. 339, came before the same court. A contract was sought to be enforced, and it was objected that, though fair in the inception, a change of circumstances had made it very one-sided and unfair as against the party opposing the relief. The opinion was given by STRONG, J. (the former one by FIELD, J.), and after stating the claim and the defense, he says, page 356: "It is by no means clear that a court of equity will refuse to decree the specific performance of a contract, fair when it was made, but which had become a hard one by the force of subsequent circumstances or changing events." (Citing Fry, ubi. sup.) “Judge STORY, indeed, states the rule somewhat differently (§§ 750, 776), and there are some cases that support his statement; but the rule, as stated by Fry, must be applicable to contracts that do not look to a completed performance within a defined and reasonable time, but contemplate a continuous performance extending through an indefinite number of years or perpetually." The case, however, was decided on entirely other grounds; the relief was refused for different reasons, so that these observations were entirely obiter. Although there is no conflict between the conclusion to which Judge STRONG finally comes-the class of contracts to which he limits the rule-and the prior decision in Willard v. Tayloe, yet it is very remarkable that not the slightest reference is made to a case, decided by the same court so short a time before, in which the general doctrine was expressly laid down contrary to the position maintained by Mr. Fry. In Stone v. Pratt, 25 Ill. 25, the specific performance of a contract of sale was refused, because on account of circumstances and transactions happening after its execution, which, however, had been all done or caused by the plaintiff's conduct, the enforcement would work great hardship to the defendant. The opinion does not advert to the question now under discussion, and the fact that the hardship was caused by the plaintiff's inequitable acts distinguishes the case, and prevents it from being an illustration of or an authority upon the general rule. (See case and opinion, ante, § 35.)

SEC. 178. The general proposition that if contracts are fair, equal and equitable in their inception, no unfairness, inequality or hardship arising from subsequent events however unforseen, or change in circumstances however unexpected, can avail to prevent a specific performance, must, as appears clear from a comparison of the authorities, be modified by adding certain limitations and exceptions. It is clear that if the subsequent events and changed circumstances which produce the unfairness or hardship in the contract, or in its enforcement, as against the defendant, are caused by the plaintiff's own wrongful or inequitable acts or omissions, a sufficient ground is thereby furnished for refusing to decree a specific execution.(1) The general rule above stated, that the element of fairness must be referred to the inception of the agreement, is certainly applicable to all contracts that by their provisions do not look to a completed performance within a defined or reasonable time, but contemplate a continuous performance extending through an indefinite number of years, or perpetually. For in such agreements the parties must be assumed to have provided against all possible contingencies.(2) This rule is also applicable to all compromises, and especially to those made for the purpose of arranging and settling family disputes, controversies, and claims. Such agreements always assume some existing uncertainty, which it is their object to determine, and this uncertainty may consist either in some future and therefore necessarily contingent event, or in the present ignorance as to some event which has happened, but the nature of which is to be ascertained in the future.(3) When such agreements are fairly and deliberately made by parties who have equal knowledge and means of obtaining knowledge of the material facts, and who intend thereby to fairly and finally settle their respective rights and claims, they will be sustained and enforced, although the subsequent development of the uncertain facts and events should be different from what the parties had anticipated.(4)

(1) See Stone v. Pratt, 25 III. 25. (Ante, § 35.)

(2) See per STRONG, J., in Marble Co. v. Ripley, 10 Wall. 339, 356.

(3) As illustrations of the latter kind, is the disputed question whether a certain son is legitimate or not, which might form the subject of a family compromise (Stapilton v. Stapilton, 1 Atk. 2); and the question whether an uncle had made a particular disposition of his property by will, which also may be the basis of compromise. Heap v. Tonge, 9 Ha. 90.

(4) This doctrine was well expressed by Lord LANGDALE, in Pickering v. Pickering, 2 Beav. 31, 56, as follows: "When parties whose rights are questionable have equal knowlege of facts, and equal means of ascertaining what their rights really are, and they fairly endeavor to settle their respective rights among them

The same rule, also, applies to all agreements which are in reality settlements of uncertainties or contingencies, when made fairly by parties having equal opportunity of knowing and judging.(1) But it is an indispensable condition, in such contracts, that the event or act on which the agreement is predicated, be at the time of its conclusion really uncertain and equally unknown to both the parties. If, therefore, a contract purporting to be of this aleatory nature, is made between one who has knowledge of the event, act, or fact assumed in the negotiation to be uncertain, and one who has not-although its provisions may be so drawn as to expressly throw the risk upon the ignorant party-it will not be enforced by a court of equity at the suit of the one who possessed the knowledge, and would acquire an advan

selves, every court must feel disposed to support the conclusions or agreements to which they may fairly come at the time, and that notwithstanding the subsequent discovery of some common error." Such an agreement will be held binding and enforced, although a judicial decision should afterwards be made, showing that the rights of the parties were different from what they had been supposed to be, or showing that one of them really had no right at all, and so nothing to forego. Lawton v. Campion, 18 Beav. 87; Frank v, Frank, 1 Cas. in Ch. 84.

(1) The following are some examples. In Parker v. Palmer, 1 Cas. in Ch. 42, Parker, while the king was overthrown, had sold a lease, which he held for three lives from a dean and chapter, to Palmer, the price being £4320. Subsequently, Palmer agreed that if the vendor would abate 4207, he would reconvey the lease whenever the king and the dean and chapter should be restored. The abatement was made, and after the restoration, which happened soon after, the vendee was compelled to reconvey. Here the vendee made his bargain with his eyes open, assuming all the risk of the contingency, and, of course, having great confidence that the restoration never would happen. This mistake in his judgment was no reason for discharging him from his agreement. In Anon, cited in Cooth v. Jackson, 6 Ves. 24, a person was expecting an allotment to be made under an inclosure act, and he agreed to sell it for £20. When made, it turned out to be worth 2007, and he was compelled to perform. Here the value of the future allotment was wholly uncertain--the parties acted with equal knowledge--it was an aleatory agreement. If there had been any fraud--if the vendee had known the value of the expected allotment and concealed it--of course the decision would have been different. Again, in Ex parte Peak, 1 Mad. 346, 355, a contract between two partners, made without fraud or concealment, whereby one agreed to pay the other 2,000 for his share, although both knew the firm was insolvent, was enforced. Sir JOHN LEACH, putting it on the ground that the purchaser was fairly and deliberately buying a chance: "Supposing a trade attended with great risk, one partner despairing, 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?" See Haywood v. Cope, 4 Jur. (N. S.) 227. Under the same class are those contracts in which a vendor agrees to sell something which is described in general terms, the extent and value of it being uncertain, as a manor. Baxendale v. Seale, 19 Beav. 601; and those in which the vendor sells whatever interest he has, which may afterwards be found different from what was expected at the time.

tage by means of it.(1) It is also necessary that the uncertainty in respect of which the contract is made, should be understood and intended by both parties as attaching to the very same event or act which, being then unknown but anticipated, afterwards happens. If, therefore, the parties contract with reference to a certain contingent or doubtful event, and some other unknown fact, to which the parties had not referred, and in respect of which they had not contracted subsequently arises, materially altering their relations, and rendering an execution of their agreement inequitable, its enforcement may, under such circumstances, be denied. (2) To recapitulate, subsequent events or change of circumstances will not interfere with the enforcement of a contract fair in its inception; 1, if it was intended by its terms to continue in force for an indefinite time or perpetually; 2, if it was based upon and intended to settle some uncertainty, including compromises, family arrangements, sales of uncertain or

(1) Smith v. Harrison, 26 L. J. Ch. 412, per PAGE WOOD, V. C., is a very instructive illustration of this rule. A written contract purported to sell "the interest, if any," of F. N. in certain stock in trade and in a lease; it stated that there was a lien of 1007 on the lease, and added, that if it should turn out that F. N. had no interest, the purchaser should have no claim against the vendor for a refunding of the purchase-price. As a matter of fact, by reason of the partnership accounts of the firm of which F. N. was a member, the interest of F. N. sold was nothinghad no value whatever, and the sale was made solely as a preliminary to proceedings against F. N.'s separate estate. This condition of the accounts was known at the time of the contract to the vendor, but the vendee had no knowledge of it, and no means of obtaining any. The vendor made no representations as to the value, but the vendee paid him the purchase-price. This contract was set aside, with costs, at the suit of the purchaser, because the parties did not stand on the same footing; the purchaser, from ignorance, was buying what might perhaps be worth nothing or something; the vendor was selling what was actually worth nothing, and what he knew to be worth nothing.

(2) As in Baxendale v. Seale, 19 Beav. 601. The vendor contracted to sell a manor, stipulating that he should not be obliged to define its boundary. [Here, therefore, the parties understood that the uncertainty, with respect to which they contracted, was confined to the matter of boundary.] The manor turned out to comprise a valuable property, which neither party before knew to be a part of it. The vendee, who had sought to get rid of the contract, then sued for a specific performance. Sir JOHN ROMILLY, M. R., held that the parties did not contemplate the buying and selling a mere doubtful matter (the uncertainty as to the boundary being only an ir cidental matter), and that both parties made the contract understanding that it included something materially different from what it would be made to include, and what would be conveyed to the plaintiff, by a specific performance as demanded by the plaintiff. In other words, neither party understood that the contract embraced this valuable property, which was utterly unknown when the contract was made, and which could not be covered by the uncertainty in respect to the boundary. A performance was, therefore, denied, but without costs, which showed that the plaintiff was not in fault in suing.

contingent interests, or of unknown amounts, and the like. But in the latter class, the subsequent happening of an unknown event, or matter not included in the uncertainty referred to by the parties, may be a cause for refusing to grant the relief of specific performance. With respect to other kinds of agreements, although fair and just when made, it would seem from many decisions, both ancient and modern, that their enforcement may be interfered with and prevented by subsequent unforeseen events, which introduce a sufficient element of inequality, unfairness, or hardship.(1) It must be said, however, that this proposition is not universally admitted.

SEC. 179. II. Incidents which aid in determining the fairness of the contract itself.-Returning to the main subject of discussion-the fairness of the contract in its very provisions and stipulations. This is, of course, to be finally determined by an examination of the terms themselves; but in construing and interpreting the agreement and judging of its nature and effect, the court may be incidentally aided by a knowledge of all the circumstances attending its inception. It should be carefully noticed that this use of the surrounding circumstances, is entirely different from that to be subsequently considered, where the circumstances themselves constitute the substantial features of unfairness which prevent the granting of equitable relief. These facts, although not of themselves sufficient to impeach the contract, and even though wholly free from wrong or blame, may furnish a clue for the right understanding of the agreement, a light in which its provisions must be read. Among these attending facts, which ordinarily aid the court in testing the fairness of the contract, and which may, therefore, be shown by extrinsic evidence, are the mental feebleness of a party, although not amounting to a legal incapacity; (2) the age, poverty or ignorance of the parties; (3) the manner of entering into the contract; the want of advice; the inadequacy of the price, and many other analogous circumstances. (4) The following are some of the most common incidents which necessarily cast a doubt upon the fairness of a contract, which lead a court to examine its terms with the utmost care, and to refuse a specific performance unless all doubt is removed by the clearest demonstration of its fairness. Where the defendant against whom the remedy is sought, was, at the time

(1) See Willard v. Tayloe, 8 Wall. 557.

(2) Clarkson v. Hanway, 2 P. Wms. 203; Gartside v. Isherwood, 1 Bro. C. C. 558. (3) Fish v. Leser, 69 Ill. 394.

(4) Fish v. Leser, 69 Ill. 394; Bell v. Howard, 9 Mod. 302; Martin v. Mitchell, 2 J. & W. 413, 423; Stauley v. Robinson, 1 R. & My. 527.