SEC. 21. Awards.-The specific enforcement of awards is governed by exactly the same principles which regulate the equitable jurisdiction in its application to contracts. If the provisions of the award are of such a nature that, had they constituted an agreement between the parties, it would have been enforced by a court of equity, then a specific performance of the award itself will be decreed; otherwise it will not be decreed. Considered in respect to its capability of being specifically enforced, an award is not looked upon as a decision emanating from the arbitrators, but rather as a continuation and consummation of the contract by which the parties submitted their matters in controversy to arbitration, and, impliedly at least, undertook to abide by the result.(1) In pursuance of these principles, an award, like a contract, which directs the doing of anything in specie, within the power of the court to enforce-as, for example, the conveyance of land, or the assignment of things in action, may be specifically performed;(2) or where it directs the delivery of certain specific chattels, and no adequate remedy could be had by a recovery of damages.(3) But an award, which simply orders a payment of money, will not, it seems, be specifically enforced in equity.(4)

SEC. 22. Contracts for Personal Acts.—In all the species of contracts to which reference has, thus far, been made, the subject-matter has

(1) Blackett v. Bates, L. R. 1 Ch. 117, reversing S. C., 2 H. & M. 270, per Ld. Ch. CRANWORTH: "The rights of the parties, in respect of specific performance, are the same as if the award had been simply an agreement between them. Had it been an agreement, would there have been a case for specific performance? I think not, and for this short and simple reason, that the court does not grant specific performance unless it can give full relief to both parties." In Wood v. Griffith, 1 Sw. 54, Ld. ELDON said, the court exercises jurisdiction, "because the award supposes an agreement between the parties, and contains no more than the terms of that agreement ascertained by a third person." See Nickels v. Hancock, 7 DeG. M. & G. 300.

(2) Norton v. Mascall, 2 Vern. 24; Hall v. Hardy, 3 P. Wms. 187; and see McNeil v. Magee, 5 Mas. 245; Jones v. Boston Mill Corpn., 4 Peck, 507; Davis v. Havard, 15 S. & R. 165, 171; Somerville v. Truman, 4 Har. & McH. 43; Wood v. Shepherd, 2 Patton & Heath, 442 (Va.); Cook v. Vick, 2 How. (Miss.) 882. Equity will specifically enforce an award concerning land, or an agreement for the purchase or sale of land, although the enforcement of an award for the payment of money is also involved in the relief. Memphis, etc., R. R. v. Scruggs, 50 Miss. 284. See, also, Overby v. Thrasher, 47 Geo. 10.

(3) Story v. Norwich, etc., R. R., 24 Conn. 94; Kirksey v. Fike, 27 Ala. 383. (4) Hall v. Hardy, 3 P. Wms. 187; and see Story v. Norwich, etc., R. R. 24 Conn. 94; Bubier v. Bubier, 24 Me. 42; Turpin v. Banton, Hardin, 312. As to the enforcement, in equity, of awards legally invalid, see Viele v. Troy & Bost. R. R., 21 Barb. 381; Bouck v. Wilber, 4 Johns. Ch. 405; Buys v. Eberhardt, 3 Mich. 524; Cook v. Vick, 2 How. (Miss.) 882.

been things-land, chattels, or things in action. The particular rules which have been established in reference to the specific execution of agreements stipulating merely for personal acts or omissions, also exhibit, in the most striking manner, the ancillary and supplementary nature of the remedy. As a general proposition, contracts which provide for the personal affirmative acts, or personal services of the parties, are not specifically enforced in equity, not because the legal remedy of damages is always sufficiently certain and adequate, but because the courts do not possess the means and ability of enforcing their decrees, which would necessarily be very special, and of compelling the performance which constitutes the equitable remedy. Wherever, from the nature of the agreement, the difficulty in the way of granting relief does not exist, or can be obviated, the principles and rules of specific performance apply to contracts which stipulate for personal acts or omissions, as well as to those whose subject-matter is real or personal property. A few examples of such application will suffice as illustrations. Agreements for a separation between husband and wife, if valid in form, made upon a sufficient consideration, and executed by parties legally able to contract, will be specifically enforced, by decreeing the execution and delivery of the proper deed, and by restraining the husband, if necessary, from personally interfering with, and molesting his wife, in violation of his covenant.(1) Such contracts, in order to be enforced, must be based upon a valuable consideration, accruing to the benefit of the husband ;(2) and in England, a third person, other than the wife, must intervene as the contracting party on her behalf, although she generally executes the agreement, in order to show her assent. (3) It is plain that, for the breach of these agreements, damages would be wholly inadequate, and it would seem that no legal measure of damages is possible-i. e., any thing but a mere conjecture.

(1) Wilson v. Wilson, 1 H. L. Cas. 538; 5 H. L. Cas. 40; 14 Sim. 405; Fletcher v. Fletcher, 2 Cox, 99; Sanders v. Rodway, 22 L. J. Ch. (N. S.) 230; McCrocklin v. McCrocklin, 2 B. Mon. 370; Gibbs v. Harding, L. R. 5 Ch. 336; S. C., L. R. S Eq. 490.

(2) Wilson v. Wilson, supra; Wellesley v. Wellesley, 10 Sim. 256; Stephens v. Olive, 2 Bro. C. C. 90; Earl of Westmeath v. Countess of Westmeath, Jac. 126, 141; Elworthy v. Bird, 2 S. & S. 372; Hobbs v Hull, 1 Cox, 445.

(3) Hope v. Hope, 26 L. J. Ch. 417; Wilkes v. Wilkes, 2 Dick. 791; compare Vansittart v. Vansittart, 4 K. & J. 62. Query. Whether such third person would be necessary in those states of this country, which have so greatly enlarged the wife's power to contract, especially if the agreement related, in any way, to her own separate property.

SEC. 23. Contracts for building and construction. The general rule is now well settled that, on account of the great difficulty and often impossibility attending a judicial superintendence and execution of the performance, contracts for the erection or repair of buildings, the construction of works, and the conduct of operations requiring time, special knowledge, skill, and personal eversight, will not be specifically enforced.(1) Notwithstanding this general rule and the cogent reason which supports it, there are certain exceptions; and contracts for building or for the construction of works, and the like, falling within them, may be specifically enforced. 1. It has been said that if an agreement for erecting a building is in its nature defined, there is no difficulty in entertaining a suit for its specific performance.(2) But a contract to build a house of a certain value merely, does not come within this description of an agreement sufficiently defined, and will not be enforced. (3) 2. Whether or not the opinion of Ld. RossLYN is to be regarded as a correct statement of the law, it is settled by the recent English decisions, that where the defendant has contracted to construct some work which is defined on his own land, and where the plaintiff has a material interest in the execution thereof, which is not susceptible of adequate compensation in damages, a specific performance of the undertaking will be compelled.(4) 3. Where the

(1) Paxton v. Newton, 2 Sm. & Giff. 437; Errington v. Aynesley, 2 Bro. C. C. 341; 2 Dick. 692; Lucas v. Commerford, 3 Bro. C. C. 166; Mosely v. Virgin, 3 Ves. 184; e. g., to make good a gravel pit, Flint v. Branton, 8 Ves. 159; the construction of a branch railway, So. Wales R'y Co. v. Wythes, 1 K. & J. 183 ; 5 DeG. M. & G. 880; an agreement between two railroad companies, by which one agreed to construct the road and the other run it, Port Clinton R. R. v. Cleveland & Toledo R. R. 13 Ohio St. 544; and see Fallon v. R. R. Co. 1 Dillon, 121; Reese v. Union Pacific R. R. 1 Woolworth, 26; to work quarries, Booth v. Pollard, 4 Y. & C. Ex. 61; to work a quarry and deliver marble in certain kinds and quantities, Marble Co. v. Ripley, 10 Wall. 339; to work coal mines, Pollard v. Clayton, 1 K. & J. 462. There were early decisions or opinions contra, see Buxton v. Lister, 3 Atk. 385, per Lord HARDWICKE; City of London v. Nash, 3 Atk. 512; 1 Ves. Sen. 12. It is settled that a covenant to repair will not be specifically enforced, Rayner v. Stone, 2 Eden. 128, 130 (n.); Hill v. Barclay, 16 Ves. 402, 405. (2) Mosely v. Virgin, 3 Ves. 185, per Ld. ROSSLYN; Cubitt v. Smith, 10 Jur. (N. S.) 1123; Flint v. Brandon, 8 Ves. 159, 164; Phillips v. Soule, 9 Gray, 233; Moore v. Greg, 12 Jur. 952.

(3) Brace v. Wehnert, 25 Beav. 348. The operative part of the contract was to build a house, worth 14007. at least, and no plan was adopted. See, also, Norris v. Jackson, 1 J. & H. 319.

(4) Storer v. Great Western R'y Co. 2 Y. & C., C. C. 48; Sanderson v. Cockermouth, etc., R'y Co. 11 Beav. 497. In these cases the railway companies were directed to fulfill their agreements by making and maintaining arch-ways under their tracks, so that plaintiff might have access with teams from one part of his

defendant has undertaken to construct certain works upon land acquired by conveyance from the plaintiff, so that the plaintiff, having parted with his land, cannot erect the stipulated structures thereon at his own cost, and thus ascertain the amount which he should be entitled to recover from defendant as damages for the breach of the

land to another, which were separated by the road. Greene v. West Cheshire R'y Co., L. R. 13 Eq. 44; Wilson v. Furness R'y Co., L. R. 9 Eq. 28; AttorneyGeneral v. Mid. Kent R'y Co. and So. Eastern R'y Co., L. R. 3 Ch. 100; Lytton v. Great Northern R'y Co. 2 K. & J. 394. In Franklin v. Tuton, 5 Madd. 469, Sir JOHN LEACH compelled the defendant to alter the elevation of the house, which he had built on land leased from the plaintiff, pursuant to his covenant to erect the house of a certain height, which he had not done. In Lane v. Newdigate, 10 Ves. 192, Ld. ELDON, by a mandatory injunction, compelled the defendant to repair a canal, in pursuance of his covenant, for plaintiff's benefit. In Middleton v. Greenwood, 2 DeG. J. & S. 142, defendant agreed to grant the plaintiff a lease of a public house," and to make and form a spirit vault, and put in plate-glass windows, and do everything therewith necessary at his own expense, and paint new the outside of all the woodwork, as well as put the slates, chimney pots, and roofing in thorough repair." Held, that a specific performance of the agreement to give a lease should be decreed, and they having jurisdiction, the court would, under Sir HUGH CAIRNS act (21 & 22 Vict., Ch. 27, § 2), direct an inquiry as to the damages for non-performance of the rest of the contract to be paid by the defendant. "These matters are mere incidents of the agreement, not affecting the substance," p. 145, per L. J. TURNER.

Wilson v. West Hartlepool R'y Co. 2 DeG. J. & S. 475. The company agreed to sell to plaintiff a piece of land. Contract provided that the company should lay down a branch railway to the land, and that plaintiff, who was to erect iron works on the land, should use the company's railway in preference to any others— use it whenever reasonably practicable, and for the longest distance it was reasonably capable of use; company made the branch; plaintiff took possession of the land, and his machinery was brought and deposited there. The defendant then refused to complete. Held, affirming decision of the M. R., that the provision as to plaintiff's use of defendant's road did not prevent a specific performance. The whole contract would be specifically performed; that clause of it by inserting a proper covenant in the deed binding plaintiff to use the road; see per L. J. TURNER, pp. 494, 495. In Lillie v. Legh, 3 DeG. & J. 204, defendant had agreed to lease a farm to plaintiff, and to furnish or pay for materials wherewith plaintiff was to repair and alter the farm buildings. Court decreed a specific performance of the agreement to give the lease, and held, that though the claim for materials was a mere money demand, yet the court had jurisdiction to award damages as an incident to the general relief, p. 208, per L. J. KNIGHT-BRUCE; p. 210, per L. J. TURNER. Wilson v. Northampton & Banbury Junction R'y Co., L. R. 9 Ch. 279. Defendant having bought of plaintiff, agreed to erect, construct, and fit up a station thereon. There was no further description of the station, nor even any stipulations as to its use. A specific performance of this agreement was refused, on the sole ground that it was too indefinite. BACON, V. C., said that it never had been expressly held that a contract to erect a building will never be specifically enforced. "I should require very distinct authority before I said that the court had no jurisdiction to compel the erection of buildings." p. 281.

contract, a court of equity will, if possible, decree a specific performance by the defendant of his agreement. The relation of the parties and the situation of the subject-matter would render the damages, in such a case, almost wholly conjectural.(1) 4. Finally, where there has been a part performance of such a contract, so that the defendant has received and is enjoying the benefits of it in specie, the court may compel its specific execution, when, without such part performance, it might not have interfered, but left the plaintiff to his legal remedy.(2) It has been recently held in England that where a private individual is entitled to the specific performance of a contract to make certain works, by a railway company, which would require a reconstruction of its track, the temporary interruption of its business, and consequent inconvenience to the public, are not such obstacles as will prevent the court from granting the relief.(3) The cases on this subject in the

(1) So. Wales R'y Co. v. Wythes, 1 K. & J. 200, per PAGE WOOD, V. C.; Storer v. Great Western R'y Co. 2 Y. & C., C. C. 48; Price v. Corporation of Penzance, 4 Ha. 506; Soames v. Edge, Johns. 669; Wilson v. Furness R'y Co., L. R. 9 Eq. 28; Hood v. North Eastern R'y Co., L. R. 5 Ch. 525; 8 Eq. 666. In 1838, the company purchased land from plaintiff, and agreed that a part of it should be forever used as "a first-class station," no other description being given in the contract. A station was erected in 1842, and has since been used. Plaintiff filed this bill to compel the company to build a larger station, alleging that this one was not "first-class." Held, that as the present station was not objected to when built, and had remained as it is so many years, the court would not compel the company to make a larger one; also, that the terms of the contract were so indefinite that the court could not enforce it. Firth v. Midland R'y Co., L. R. 20 Eq. 100. The company bought land from the owner and agreed to pay a certain price therefor, and to erect certain bridges thereon for his convenience. It took possession, made its line, but did not construct the stipulated works in any manner. Three or four years after the parties made a substituted agreement, which became nugatory by the death of the person who was appointed by it to award damages, which were to be accepted by the plaintiff. Held, the original contract was revived, and it was enforced against the company. Green v. West Cheshire R'y Co., L. R. 13 Eq. 44. The company had taken land, and, for a valuable consideration, had agreed to construct, and forever maintain, a "side track" of a specified length, on certain lands of the vendor alongside of the main track, for the vendor's accommodation. Held, that the contract could be specifically enforced, and the court would not refuse that relief, although the plaintiff might have a concurrent remedy of damages, or may have entered into a negotiation for a money compensation, which had failed.

(2) Price v. Corpn. of Penzance, 4 Ha. 506, 509. Plaintiff conveyed land to defendants, they covenanting to forthwith make a road and erect a market house. They took possession and made the road, but neglected to erect the market. WIGRAM, V. C., said that the defendants having had the benefit of the contract in specie, the court would go to any length that it could to compel them to specifically perform the contract on their part.

(3) Raphael v. Thames Valley R'y Co., L. R. 2 Ch. 147, reversing L. R. 2 Eq. 37.