of making the contract, within the power of the plaintiff, so that an independent action and free exercise of judgment on his part would be virtually impossible or even difficult,(1) or where it appears that the defendant was, at that time, in a condition of great pecuniary distress or trouble, so that he would be likely to make an undue sacrifice.(2) Where such defendant was illiterate, or ignorant of the facts involved in the contract, or being so acted without advice, or was subjected to undue solicitation and pressure by the other party, and yielded thereto without full knowledge and without consultation; or where there was circumstances of haste, surprise and an undue advantage obtained, or any other fact showing the want of an intelligent, free, and full consent. (3) Courts of equity have not, however, in England, much less in this country, adopted a rule that a contract cannot be made without the aid of professional advice; (4) nor that a man, when in an insolvent condition, or when confined in prison, is necessarily unable to enter into a valid agreement for the sale of his property. Contracts made without professional advice, or by insolvents or prisoners, are most carefully scrutinized; but if they pass the judicial ordeal without disclosing any unfairness or other equitable defect, their specific execution is decreed.(5)

SEC. 180. III. What contracts are unfair in their terms.—What provisions of a contract are so unfair, one-sided, unequal, harsh, inequitable that a specific performance of them will be refused, must, of course, depend upon the circumstances of each individual case, so that it is impracticable to lay down any general rules which shall serve either as a test for decision, or a guide for the classification of cases. There are, however, certain species of agreements which are, in their

(1) Blackwilder v. Loveless, 21 Aia. 371.

(2) Johnson v. Nott, 1 Vern. 271; Kemeys v. Hansard, Coop. 125.

(3) Fish v. Leser, 69 Ill. 394; Gasque v. Small, 2 Strobb. Eq. 72; Stanley v Robinson, 1 R. & My. 527; Helsham v. Langley, 1 Y. & C. C. C. 175; Gasque v. Small, supra, well illustrates several of these particulars. A young man, just twenty-one, agreed to purchase land for a price more than its worth, after an examination wholly insufficient to ascertain its value. From his lack of experience, knowledge, sagacity and advice, he was very unfit to carry on a negotiation with the vendor, who greatly exaggrated the advantages of the purchase, without, however, being guilty of any actually false representations or fraudulent concealments. Although there was no incapacity on his part, and no fraud on the part of the vendor, a specific performance was refused.

(4) In the forcible language of some of the cases, "without a solicitor at the parties" elbow." Lightfoot v. Heron, 3 Y. & C. Ex. 586; Haberdashers' Co. v. Isaac, 3 Jur. (N. S.) 611.

(5) Brinkley v. Hann, Drury, 175.

nature, essentially, unfair, and unfit to be enforced. These will be described, and some examples will be added of other contracts which admit of no general classification. 1. Breaches of trust, etc. Contracts whose provisions, if carried into operation, would constitute or require a breach of trust by the party performing, or would compel him to do an illegal or an unlawful act, will never be specifically enforced by a court of equity.(1) The reason of such refusal is found in the plainest principles of equity, since the agreement itself is essentially unfair, and it would be oppressive on the defendant to force the performance of an act which would inevitably subject him to some penal consequences, either to an action for damages, or perhaps even to a criminal prosecution. Examples of this rule may be found in the foot note.(2) If the agreement does not involve any

(1) Harnett v. Yeilding, 2 Sch. & Lef. 553, per Lord REDESDALE: "The plaintiff must also show that, in seeking the performance, he does not call upon the other party to do an act which he is not lawfully competent to do; for if he 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."

(2) If trustees acting under a power agree to sell, but in so disadvantageous a manner for the interest of their cestuis que trustent that it amounts to a breach of trust, specific performance of the agreement is refused. Mortlock v. Buller 10 Ves. 292; Bridger v. Rice, 1 J. & W. 74; Wood v. Richardson, 4 Beav. 174; Maw v. Topham, 19 Beav. 576; Hill v. Buckley, 17 Ves. 394; Neale v. Mackenzie, 1 Ke. 474. Assignees for the benefit of creditors sold an estate at auction in a manner very improvident, showing a want of ordinary business judgment, and prejudicial to the assignor, for the sake merely of obtaining money at once with which to pay creditors, and a specific execution of the agreement was refused. Ord v. Noel, 5 Mad. 438. A trustee agreed to sell trust property, and stipulated that the purchaser might retain out of the price a private debt due him by the trustee; a specific performance at the suit of the trustee was refused. Thompson v. Blackstone, 6 Beav. 470. Trustees agreed to give a lease which was beyond their power, and the court refused to enforce. Harnett v. Yielding, 2 Sch. & Lef. 549; Byrne v. Acton, 1 Bro. P. C. 186. Trustees made a covenant for the renewal of a lease, which exceeded their authority, with the same result. Bellringer v. Blagrave, 1 DeG. & Sm. 63. Where trustees having power to sell made a contract of sale, but misrepresented the value of the property, although they had the means in their power of stating it correctly, and the contract stipulated for compensation on either side, in case of any failure, etc., the House of Lords reversed a decree which had awarded compensation against them for this their misrepresentation, and held that a court of equity would not enforce a provision which would injure the cestuis que trustent, by reason of the negligence of the trustees in making the misdescription. White v. Cuddon, 8 Cl. & Fin. 766, overruling Cuddon v. Cartwright, 4 Y. & C. Ex. 25. Specific performance of a contract for the sale of leaseholds made by one of two executors was refused, on the ground that under the circumstances it would be an injury to ths cestuis que trustent, and expose the executor to extraordinary risk from them, and that either of these reasons was sufficient to prevent an enforcement. Sneesby v. Thorne, 1 Jur. N.

actual breach of trust, still a court of equity is always reluctant to enforce an agreement against trustees which may injuriously affect their interests or those of their beneficiaries. A contract of sale, therefore, made by trustees in an unbusiness-like manner, or contrary to the methods of an ordinarily prudent business man, will not ordinarily be enforced, unless it is clearly established that the price was fully adequate.(1) The general doctrine in regard to contracts requiring a breach of trust or an unlawful act, applies not only to technical trustees, but to all persons occupying a definite fiduciary relation or position of confidence towards others, and therefore extends to such agreements made by agents, (2) directors of corporations, (3) assignees in bankruptcy,(4) and the like.

SEC. 181. 2. Injuring third persons.-A second species of contracts which will not be enforced on account of this inherent inequity, are

S. 536, per PAGE WOOD, V. C., affirmed on appeal, 7 DeG. M. & G. 399; Magrane v. Archbold, 1 Dow. 107. Per contra, in Barret v. Ring, 2 Sm. & Gif. 43, the trustees of a road had made a contract for sale in forgetfulness of a certain statutory right of pre-emption, which therefore made them liable to an action for damages if it should be brought against them--they were compelled by STUART, V. C., to complete it. Helling v. Lumley, 3 DeG. & J. 493, decided on the very special circumstances of the case, does not conflict with the rule stated in the text, which was fully approved in the opinion. The defendant was a lessee of a theatre, and one condition in his lease forbade him to let more than 150 boxes for over a year. At the time when all these boxes were open to him to let, he made a contract with plaintiff, whereby he covenanted to lease him a specified box (say box A.) for a term of years. He afterwards contracted and let out 150 other boxes, the full number he was allowed by his lease. Refusing to complete with plaintiff, the latter sued to compel a specific performance. Defendant set up in defense that if he should lease the box A. to plaintiff, he would violate his condition and forfeit his lease. Held, that, under the special circumstances, the defense could not be admitted. He had it in his power to comply with plaintiff's agreement when it was made. Nothing in the agreement exposed him to any penalty. He might have let box A. and counted it one of the 150. But, with full knowledge of all this, he chose to let out all the 150 to other parties, and thus, by his own act, brought himself in the predicament. Specific performance was decreed. (1) Goodwin v. Fielding, 4 De G. M. & G. 90; Wormley v. Wormley, 8 Wheat. 421.

(2) If a contract was the result of a breach of trust by an agent towards his principal, it would not be enforced. Mortlock v. Buller, 10 Ves. 292, 313.

(3) As, for example, directors of railways being trustees for the stockholders, a contract made by them which would operate as a breach of trust towards some or all of the stockholders, will not be enforced at the suit of a plaintiff having knowledge of the facts. Shrewsbury & Birmingham Ry. Co. v. London & North Western Ry. Co., 4 DeG. M. & G. 115; 6 H. L. Cas. 113. See, on the general doctrine, Law v. Urlwin, 16 Sim. 377; Rede v. Oakes, 13 W. R. 303; Ingle v. Richards, 28 Beav. 361, 365.

(4) Turner v. Harvey, Jac. 169.

those whose provisions, when carried into operation, would defeat or materially injure the rights of third persons who have vested interests in the property as successive owners, remaindermen, reversioners, and the like.(1) Practically, this species of agreements is confined to England and Ireland as an incident of their system of family settlements, and could hardly be possible under our more simple and natural rules of real estate law and practices of land owners.

SEC. 182. 3. Miscellaneous cases.-The owner of certain lots in Chicago, a weak-minded man, ignorant of their value and of business, and unable to speak or understand English well, was induced, by the importunities of a land agent, during the excitement just following the fire, to agree to sell them for $21,000. Their value at the time was at least $30,000, and was rapidly increasing. Persons of large property had just made arrangements to build on adjoining lots, which would have greatly increased the value of these lots. All these facts were well known to business men generally, but not to the vendor, and were not told to him. The person who importuned him to sell, and who was made his agent to effect the sale, appeared to be acting also for the purchasers, and this fact was also concealed. A specific performance prayed by the vendee was refused.(2) This case presents every element of unfairness. The terms of the contract were unequal; the surrounding circumstances were of themselves a reason to defeat any relief, and many of these circumstances throw great light upon the provisions of the agreement. In a recent English case the defendant, an elderly lady, being ignorant of their real worth, agreed to sell two very valuable jars-articles of virtu-to the plaintiff, who was an expert and knew their nature and value. Although there was no actual fraud, yet, as the parties did not contract upon an equal footing, and the price was insufficient, a specific execution was refused.(3)

(1) Thomas v. Dering, 1 Ke. 729. The rights of persons not parties to the contract, and even when vesting after it was made, are proper equitable considerations to be taken into account in determining whether the contract should be specifically enforced. Curran v. Holyoke Water Co., 116 Mass. 90. Where an owner has made a voluntary settlement of his estate, and afterwards enters into a contract for a sale of the land, he will not be permitted to enforce performance, and thus cut off the rights of the persons claiming under it. Johnson v. Legard, T. & R. 281; Smith v. Garland, 2 Meriv. 123.

(2) Fish v. Leser, 69 Ill. 394, 395. In the absence, however, of fraud, or other features of actual wrong dealing, the mere fact that the plaintiff has made an advantageous bargain in the transaction, will not prevent his enforcement of the contract. Union Coal Mining Co. v. McAdam, 38 Iowa, 663.

(3) Falcke v. Gray, 4 Drew. 651.

SEC. 183. Second. Extrinsic circumstances rendering the contract unfair.-Although the very terms of an agreement, taken by themselves, may be unobjectionable, the circumstances immediately preceding or accompanying, or succeeding its conclusion, the relations of the parties, the acts or omissions of the plaintiff during the negotiation, or even after the time of its being entered into, may be such as to stamp a character of inequity upon the agreement and to furnish an ample reason for withholding the equitable remedy. It may be laid down. as a general proposition, that if there is any circumstance or fact connected with the preliminary negotiation or subsequent operation, with the relations of the parties, or conduct of the plaintiff, which renders its enforcement unfair, harsh, or inequitable upon the defendant, such specific performance will be refused; and to produce such a result, there need have been no intentional dishonesty or unfairness, although, in the great majority of instances, the design to overreach or obtain an undue advantage will of course be present.(1)

(1) Mortlock v. Buller, 10 Ves. 292, 305; Twining v. Morrice, 2 Bro. C. C. 326. A suit for a specific performance by a vendee against the vendor. The sale was at auction, and a solicitor, who was the well-known agent of the owner, made some biddings for the vendee, the plaintiff, at his request. As the attorney was known to be, in general, acting for the vendor, these biddings were supposed, by the by-standers, to be in fact those of a puffer employed by the vendor, and they restrained other persons from bidding. The attorney really acted without any design and thoughtlessly, so there was no intentional fraud; but as he acted by the direction of the plaintiff, and the natural effect of puffers' biddings was produced, a specific performance was refused by Lord KENYON, M. R. In Marble Co. v. Ripley, 10 Wall. 339, 357, the plaintiff, asking a specific performance, had taken very unfair advantage of a provision in the contract, which gave him a right of entry upon the happening of a certain contingency. By underhanded means and deception, he had procured a technical breach of the condition, imposing on defendant, and in fact inducing him not to take steps to prevent the breach, and then had secretly entered, etc. The court held that there was no real breach; that what took place was by the plaintiff's procurement, and then added: "The conduct of the complainant has not been such as to justify the court in decreeing a specific performance at his suit. Without relying upon his alleged unfounded claims set up from time to time, his unlawful and unwarranted entry and ouster of the marble company, was such an invasion of the contract as leaves him no standing as a plaintiff asking for its specific performance in a court of equity." In Blackwilder v. Loveless, 21 Ala. 371, defendant being in possession of land under claim of title, plaintiff obtained a recovery against him in proceedings for a forcible entry and detainer, which do not, however, decide any question of title. While he held a warrant for removal, defendant, who had growing crops on the land, made a written agreement whereby for $30 he promised to convey the title, by a deed, and give up possession at the end of a year. The land was worth several hundred dollars. The court refused a specific performance because, although there was no fraud, mistake or technical duress, the parties did not deal on equal terms; the plaintiff occupied a position of unfair advantage