SEC. 184. The following are some of the particular facts and circumstances most frequently occurring, which, under the operations of this general doctrine, always impart an inequitable taint to agreements, and prevent a specific enforcement. The concealment, suppression, or neglect to disclose any fact during the negotiation, or at the time of the conclusion, which, if known, could have reasonably affected the result, although not amounting to such fraudulent concealment as would furnish the ground for a recision, will induce the court to withhold its equitable remedy.(1) Quite analogous to this case, and indeed a particular instance of it, is that in which one party to the contract

whereby he secured the contract for an inadequate price, and the defendant was not in a situation to insist upon fair and equal terms. Stone v. Pratt, 25 Ill. 25, 34, is an instructive case. The owner of land agreed to sell it for $4,000, and a part of the purchaser's interest was assigned to the plaintiff. The original contract of sale contained some provision by which the vendor's interest was made liable to a forfeiture. By some neglect on his part, the vendor's interest was forfeited, and sold by virtue of certain judicial proceedings to the plaintiff for a very small sum, none of which was received by the vendor. The plaintiff afterwards, as assignee of the vendee, sues for a specific performance, which was refused on the ground that defendant had received no compensation whatever for his land, and the decree would be very unjust and harsh. From the peculiar terms of the contract and the subsequent proceedings, the plaintiff had obtained an unconscionable advantage, and was seeking to perfect title to a valuable tract of land for which he had paid but little, and for which the owner had been paid absolutely nothing. A court of equity would not aid him in his design of making title, but would leave him to his strict legal rights and remedies. See the very able opinion, ante, § 35, note. For cases in which a specific performance was refused because the contract was too hastily and inconsiderately made, see Godwin v. Collins, 4 Houst. 28, and Morganthau v. White, 1 Sweeney, 395.

(1) Fish v. Leser, 69 Ill. 394, which includes several different items of concealment, viz., facts greatly enhancing the value of the property, and the fact that the agent of the vendor was secretly acting for the vendee. (See facts and opinion ante, §§ 35, 182.) In the following instances the concealment was held a ground for refusing the remedy. In making a contract for the sale of an estate, the fact that a wall, in order to protect it from the river Thames, required repairing. Shirley v. Stratton, 1 Bro. C. C. 440. An ignorant owner agreed to sell his land for a half-penny per square yard, which would amount to about 5007, while the property was worth £2,000, and this fact, known by the vendee, was carefully suppressed; this was really a case of fraudulent concealment. Dean v. Rastron, 1 Anst. 64. Where a lessee holding a lease per autre vie, and knowing that the person on whose life it depended was at the point of death, and suppressing the fact which was unknown to the lessor, procured a contract for the surrender of the lease and the renewal of it for another term. Ellard v. Lord Llandaff, 1 Ball & Be. 241; Edwards v. McLeay, Coop. 308; 2 Sw. 287. Where the same attorney acted for both vendor and vendee, but did not disclose to both parties all the facts in reference to his position, and thus make them fully acquainted with their relations to each other through him, a suit for specific performance by the vendee was dismissed. Hesse v. Briant, 6 DeG. M. & G. 623.

has, at the time of its conclusion, full knowledge of any material facts which are involved in the agreement, while the other party is both ignorant of them and has no means of acquiring the information. Under such circumstances, the parties evidently do not stand on an equality; one has an undue advantage over the other; one is dealing concerning a certainty, the other concerning an uncertainty; and if the result is prejudicial to the interests of the ignorant party, a performance of the contract could not be enforced against him.(1) Another extrinsic circumstance which renders an agreement unfair and unfit to be specifically enforced, is the intoxication at the time. when it was made of the party against whom the remedy is asked, even though such intoxication was not accompanied by acts which would be deemed fraudulent, and which would be a sufficient ground for decreeing a recision. (2) The intoxication must be so complete as to suspend the operation of the party's mental faculties, and render him incapable of understanding the nature of the transaction. A condition of mere exhiliration or excitement produced by drink, is not sufficient if the party still comprehends what he is doing.(3)

(1) Falck v. Gray, 4 Drew. 651, and Fish v. Leser, 69 Ill. 394, cases of knowledge and ignorance respecting the value of the property sold. Smith v. Harrison, 26 L. J. Ch. 412.

(2) Cooke v. Clayworth, 18 Ves. 12; Cragg v. Holme, cited in 18 Ves. 14; Nagle v. Baylor, 3 Dr. & W. 60. A contract obtained from an intoxicated person by fraud will be rescinded. Butler v. Mulvhill, 1 Bli. 137. If a party was simply intoxicated, and there were no other circumstances of fraud, imposition, undue advantage, and the like, courts of equity incline to leave the parties without any help to their legal remedies; while it does not enforce such an agreement against the intoxicated person, it does not aid him by rescinding his contract on the ground of mere intoxication. Story's Eq. Jur. §§ 231, 232; Campbell v. Ketcham, 1 Bibb, 406; Taylor v. Patrick, 1 Bibb, 168; White v. Cox, 3 Hayw. 82; Wigglesworth v. Steers, 1 Hen. & Munf. 70.

(3) Lightfoot v. Heron, 3 Y. & C. Ex. 5S8; see Shaw v. Thackray, 1 Sm. & G. 537. Although intoxication might prevent the enforcement of the contract between the immediate parties, a specific performance might be decreed in favor of the first vendee against a second purchaser who bought with notice of the prior agreement. Shaw v. Thackray, 1 Sm. & Gif. 537. If the plaintiff, by his contrivance, led on the defendant to drink so as to affect his judgment, and then took advantage of this condition to obtain a contract favorable to himself, a specific performance would certainly be refused, and the agreement might even be rescinded at the suit of the injured party. Cook v. Clayworth, 18 Ves. 12; Say v. Barwick, 1 V. & B. 195; Nagle v. Baylor, 3 D. & War. 60; Lightfoot v. Heron, 3 Y. & C. Exch. 586; Lavette v. Sage, 29 Conn. 577; Prentice v. Achorn, 2 Paige, 30; Crane v. Conklin, Saxton, 346; Calloway v. Witherspoon, 5 Ired. Eq. 128; Morrison v. McLeod, 2 Dev. & Bat. Eq. 221; Whitesides v. Greenlee, 2 Dev. Eq. 152; Reynolds v. Waller, 1 Wash. 164; Hotchkiss v. Forston, 7 Yerg. 67. A contract made during a complete intoxication which temporarily suspends all the

SECTION IX.

The remedy of specific performance must not be harsh or oppressive.

SECTION 185. Not only must the agreement be fair and reasonable in its terms and its surrounding circumstances, it is also a well-settled doctrine that its specific execution must not be oppressive-that is, the performance must not be a great hardship to the parties. This rule includes the one treated of in the last section-since every unfair contract is essentially unconscionable and hard-but it is more extensive, since the oppressive nature of the performance may result from the situation or relations of the parties exterior to and unconnected with the terms of the contract itself or the circumstances of its conclusion.(1) The oppression and hardship, therefore, which fall within the scope of the doctrine may result from the unequal, unconscionable provisions of the contract itself, or from external facts, events or cir

ance.

person's faculties, is voidable, and as a matter of course will not be enforced in equity. Prentice v. Achorn, 2 Paige, 30; Clifton v. Davis, 1 Pars. Eq. Cas. 31: Donelson v. Posey, 13 Ala. 752. There are, however, dicta to be found in some cases to the effect that mere intoxication, without other incidents of wrong doing on the plaintiff's part, is not a sufficient ground for denying a specific performSee Rodman v. Zilley, Saxton, 320; Pittenger v. Pittenger, 2 Green, Ch. 156. In the latter case, especially, there are general dicta, which conflict with the rules stated in the text, and which should be restricted to the very facts and circumstances then before the court. A court of equity is always cautious in admitting the defense of intoxication, and especially in rescinding contracts on its account. A man may be quite under the effect of liquor, and still be shrewd, hard in driving a bargain, and every way competent to manage his business; and it is always difficult to ascertain how much a party was really affected by his intoxication. See Cooke v. Clayworth, 18 Ves. 12; Shaw v. Thackray, 1 Sm. & Gif. 537. For cases in which the effect of weakness of mind was considered, see Graham v. Pancoast, 6 Casey, 89; Nace v. Boyer, 6 Casey, 93 ; Green v. Green, 9 Gratt. 330; Thomas v. Sheppard, 2 McCord Eq. 36.

(1) Gould v. Kemp, 2 My. & K. 308, per Lord BROUGHAM; Kimberly v. Jennings, 6 Sim. 340; Willard v. Tayloe, 8 Wall. 557; Margraf v. Muir, 57 N. Y. 155; Weise's Appeal, 72 Pa. St. 351; Marble Co. v. Ripley, 10 Wall. 339; Stone v. Pratt, 25 Ill. 25; Cathcart v. Robinson, 5 Peters, 263; Tobey v. County of Bristol, 3 Story, 800; Seymour v. Delancey, 3 Cow. 445; Ohio v. Baum, 6 Ham. 383; Cannaday v. Shepard, 2 Jones Eq. 224; Barnett v. Spratt, 4 Ired. Eq. 171; in Clarke v. Rochester, etc., R. R.. 18 Barb. 350, the railroad had built an embankment on land conveyed to them by the plaintiff, and by means thereof had cut off access to another portion of his land, and under such circumstances the statute required them to construct farm crossings; but as the value of the plaintiff's land thus cut off was slight, and as the cost of constructing the crossing would be out of all proportion to the value of such land, the court refused to compel a

cumstances which control or affect the situation and relations of the defendant with respect to the performance. In either case the resulting hardship may constitute a sufficient ground for a court of equity to withhold its peculiar relief, and to leave the plaintiff to his legal remedy.(1) The general doctrine also extends to the agreements of corporations, as well as to those of private persons.(2)

specific performance of the statutory duty, and left the plaintiff to his remedy by an action at law for damages. In Wedgwood v. Adams, 6 Beav. 600; 8 Beav. 103, the doctrine was carried to its utmost limit. Trustees joined in a contract of sale, and personally bound themselves to free the estate from incumbrances. These were large, and it did not appear whether the purchase-money would be enough to pay them all off, nor what would be the amount of the deficiency. Lord LANGDALE refused a specific performance against the trustees in respect to this stipulation, leaving the vendee to his legal action. He said: "I conceive the doctrine of the court to be this; that the court exercises a discretion in cases of specific performance, and directs a specific performance unless it should be what is called highly unreasonable so to do. What is more or less reasonable is not a thing that you can define; it must depend upon the circumstances of each particular case. The court must, therefore, always have regard to the circumstances of each case, and see whether it is reasonable that it should, by its extraordinary jurisdiction, interfere to order a specific performance, knowing at the time that if it abstains from so doing, a measure of damage may be found and awarded in another court. Though you cannot define what may be considered unreasonable, by way of a general rule, you may very well in a particular case come to a balance of inconvenience, and determine the propriety of leaving the plaintiff to his legal remedy by recovery of damages." * * * "After consideration, I think I cannot order a sepcific performance of the agreement; and with regard to its being a mere money objection, I could not, when this case was argued, call distinctly to mind a case of that sort of which I had some recollection, and which came before Lord HARDWICKE. I think that comes very nearly to a case of merely pecuniary objection." See, also, Pope v. Harris, cited Lofft, 791; Costigan v. Hastler, 2 Sch. & Lef. 160; Howell v. George, 1 Madd. 1; White's Case, 3 Sw. 108, n.; Coote v. Coote, 1 Sauss. & Scui. 393; Kimberly v. Jennings, 6 Sim. 340; Talbot v. Ford, 13 Sim. 173; Ryan v. Danial, 1 Y. & C. C. C. 60; Webb v. Direct London, etc., Ry. Co., 1 DeG. M. & G. 521; 9 Hare, 129; Watson v. Marston, 4 DeG. M. & G. 230, 239; Browne v. Coppinger, 4 Irish Ch. Rep. 72; Williamson v. Wootton, 3 Drew. 210; Tildesley v. Clarkson, 30 Beav. 419; Oxford v. Provand, L. R. 2 P. C. 135. But the court will not, on this ground, refuse to compel a person who was merely an agent to specifically perform his contract of purchase. Saxon v. Blake, 29 Beav. 438, and see Chadwick v. Maden, 9 Hare, 188.

(1) See cases in last note: Clarke v. Rochester, etc., R. R., supra, is an excellent illustration of hardship arising outside of the contract and the obligation imposed by its terms.

(2) Shrewsbury & Birmingham Ry. Co. v. London & North Western Ry. Co., 4 DeG. M. & G. 115; 6 H. L. Cas. 113; where a contract between two railway companies for sharing their business, if carried out, would necessarily divert a considerable part of the business and profits from their legitimate channel on the road of one company, and give them to the other without any corresponding busi

SEC. 186. The time to which the hardship must be referred.-The rule in regard to the time in the progress of the contract at which the element of hardship must first exist, in order that it may be a sufficient ground for denying the equitable remedy, is the same as that in regard to the analogous element of fairness, and it is clear that both rest upon one principle. The statement of the rule and of its various applications and limitations, given in the preceding section, need not, therefore, be repeated. (1) It is true the doctrine has been laid down, as though universal, that if a contract is fair and just when made, no hardship in the performance arising from subsequent events or change of circumstances will influence the judicial discretion of the court in awarding or withholding the relief of specific execution.(2) If this proposition were true, it would necessarily follow that no oppression or hardship in the performance would avail as a defense, unless it inhered in and resulted from the very terms of the contract itself, or the circumstances attending its creation; but the contrary is well settled, and is illustrated by numerous cases in which the objection to enforcing performance arose from the situation or relations of the defendant wholly independent of the contract itself. (3) In certain kinds of agreements, as described in the last Section, a specific performance will not be denied because a change of circumstances, or unforeseen development of events, has rendered it onerous; and a few additional examples are given in the foot-note.(4) In respect to other contracts,

ness and profits allotted by the second company for the benefit of the former, a specific performance was refused, independently of the objection that such a contract was ultra vires.

(1) See ante, §§ 177, 178.

(2) Lawder v. Blachford, Beat. 522; Webb v. Direct London & Portsmouth R'y Co., 9 Ha. 129.

(3) See ante, § 178.

(4) Where a lessee of renewable leaseholds covenants with his sub-lessee to renew without fine on every renewal to himself, and subsequently a renewal is made to him, but on far less favorable terms than had been the custom before and at the time he made his covenant--he having, in fact, made his covenant in the expectation that the former practice would be continued in the renewals to himself--he was held bound to renew to his sub-lessee without exacting any payment by way of contribution towards the increased fine which he himself had been obliged to pay. Evans v. Walshe, 2 Sch. & Lef. 519; Revell v. Hussey, 2 Ball & B. 280; Lawder v. Blachford, Beat. 522; Thomas v. Burne, 1 Dr. & Wal. 657; Haywood v. Cope, 4 Jur. (N. S.) 227. These cases are of very little practical importance in this country, and are cited solely because they belong to and serve to illustrate the species of contracts mentioned in the preceding Section, which, by their terms, contemplate that their operation is to last for an indefinite period. The lessee covenants to renew to his sub-lessee as often as the lease is renewed to himself, and this must continue indefinitely. Again, when railway companies in