SEC. 298. Second. Where defendant's incapacity is partial.-The incapacity may, by the very terms of the contract, extend to a part of it only, while he is fully able to execute the other part. This condition supposes that the agreement is separable, and is distinguishable from that examined in the two preceding paragraphs, where the inability of the defendant to carry out the agreement according to its exact and literal terms extends to its whole scope, and the whole contract is, therefore, more or less modified in the decree for performance. Under the condition now to be considered, the agreement consists of two or more parts, some of which the defendant is capable of performing, and the other he is incapable. The most important kind of agreements presenting the questions, are those which are framed in the alternative, and which, by the express terms, give the defendant an election which one of these alternatives he will adopt and carry into operation. If the defendant was originally, or subsequently becomes, incapacitated from performing one of these alternatives, the question arises: Is he bound to execute the other, in respect to which there is no such incapacity? It will be noticed, that the only element of the agreement which can occasion any doubt or question as to the liability, is the express right of election originally given to the party; because, if the inability to perform one alternative necessarily forces him to adopt the other, then the power of election is taken away. In answering the question, it will be found that the defendant's liability depends upon the nature of the extrinsic circumstances which made it impossible to perform one of the alternatives. These different circumstances will be considered separately.

SEC. 299. 1. Where one alternative is impossible ab initio.—If the incapacity existed in respect to one of the alternatives from the very beginning at and from the time of concluding the agreementwhether on account of its illegality or other cause, then the right of election is ipso facto destroyed-the bestowal of it is a nullity-and the obligation to perform the other alternative is as single and complete as though it constituted, in form, the entire contract.(1)

SEC. 300. 2. Where an alternative originally possible becomes impossible by the act of God.-If the defendant's incapacity to perform one alter

(1) Wigley v. Blackwal, Cro. Eliz. 780; Com. Dig. Condit. K. 2; Da Costa v. Davis, 1 B. & P. 242, where a bond was conditioned either to pay a sum named, or to do something which was held by the court to be illegal, and the defendant bound to do the other-i. e., pay the sum. Simmonds v. Swaine, 1 Taunt. 549, an award ordered a sum of money to be paid, or to be secured, not specifying the kind or amount of the security. Held, that, although this alternative was void for uncertainty, the other should be performed.

native arises after the conclusion of the agreement from an act of God, it cannot be laid down as a universal rule, that because of his right of election he is absolved from executing the other alternative, although this doctrine has been judicially announced.(1) In the absence of any provision or language of the contract showing a contrary intention, the defendant cannot be forced to adopt and carry out the other alternative, because the election was expressly given to him; he is not in fault, and it would be inequitable to visit on him the entire weight of the providential event. The court, however, will be guided by the intention of the parties as shown in their agreement. If from any provision, or from the whole contract, the intention fairly appears that the other and possible alternative should be performed, notwithstanding the act of God which has cut off all power of election, such intention will be followed, and carried into effect if necessary by a decree for a specific execution.(2)

SEC. 301. 3. Where one alternative originally possible becomes impossible by the act of the plaintiff.-If the defendant, originally capable of performing either alternative, is rendered incapable of performing one of them by the act of the plaintiff, on the plainest principles of justice and equity, he is thereby relieved from all obligation, and is not bound to carry out the other alternative; because the party to be benefited by the contract has himself destroyed the power of election which the agreement expressly gave. Under such circumstances, the defendant's liability is discharged even at law as well as in equity.(3)

(1) In Laughter's Case, 5 Co. Rep. 21, b. ; also, sub. nom. Eaton's Case, Moore, 357; sub. nom. Eaton v. Laughter, Cro. Eliz. 398, it was said by the court, as reported: "Where the condition of a bond consists of two parts in the disjunctive, and both are possible at the time when the bond was made, and afterwards one of them becomes impossible by the act of God, the obligor is not bound to perform the other part." See, also, S. P. in Warner v. White, T. Jon. 95.

(2) The doctrine quoted in the last note is now held to be incorrect, if stated as a universal rule. It was a mere dictum; the case called for no such decision, for both alternatives were, in fact, impossible. See Barkworth v. Young, 4 Drew. 1, 24, and also the report of the case in Cro. Eliz. 398. That the liability of the defendant to perform or not the second alternative depends upon the intent of the parties, as gathered from the whole agreement, is fully settled by subsequent See Studholme v. Mandell, 1 Ld. Raym. 279; Anon. 1 Salk. 170; Drummond v. Duke of Bolton, Say. 243; More v. Morecomb, Cro. Eliz. 864. The principle which underlies this question was fully discussed and most clearly stated in Barkworth v. Young, 4 Drew. 1, 25, by KINDERSLEY, V. C. But see Jones v. How, 7 Hare. 267; 9 C. B. 1.

cases.

(3) Grenningham v. Ewer, Cro. Eliz. 396, 539, which held that where an obligor is bound by his bond to do one or the other of two things, and the obligee disables him from performing one of them, the law discharges him from the other. Basset v. Basset, 1 Mod. 265; 2 Mod. 200; Com. Dig. Condition, K. 2.

If, however, the incapacity to perform one alternative has resulted from the defendant's own act, omission, or default, it is equally clear that he can be compelled to execute the other. His own conduct in rendering one alternative impossible is a virtual election to adopt the other, and he cannot be heard to plead an incapacity which he himself has caused, while there is another way open for him to fulfill his engagement. It is only when defendant has deprived himself of all power to carry out his agreement, in any manner, that a court of equity withholds its own remedy of specific enforcement and leaves the defendant to his legal liability for damages.

SEC. 302. 4. Where one alternative originally possible becomes impossible by the subsequent act of a stranger.-If the defendant's incapacity to perform one of the alternatives is thus caused by the subsequent act of a third person, without the aid or procurement or consent of the plaintiff, then, as it seems, he remains bound to carry out his contract by performing the other alternative. The case is the same in its result, and perhaps in its principle, as that in which one of the alternatives is impossible from the beginning.(1)

SECTION XVIII.

Incapacity of the court to enforce a performance.

SECTION 303. This species of impracticability in granting the equitable remedy, which is much more important and extensive in its application than either of those described in the two foregoing sections, assumes that the contract is valid, and that the defendant is able to do what he has undertaken to do, but that, through the want of the appropriate means and instruments, the court is unable, while pursuing its ordinary methods of administering justice, either to render a decree or to enforce the decree which it should make, and thus compel a specific performance of his agreement by the defendant. With respect to the nature or cause of the impossibility, these contracts are, therefore, divisible into two groups, or classes, namely, those having such provisions and terms that a court is unable to render

(1) See a case quoted in Grenningham v. Ewer, Cro. Eliz. 397, which held that if a person is obliged to convey certain lands, or to marry A. S. before a specified day, and before the day arrives a stranger marries A. S., then the obligor must convey the lands; but otherwise, if the obligee married A. S., for then the obligor would be freed from all liability.

a decree ordering their performance, and those having such provisions and terms that the court is unable to carry into effect the decree for a performance which it might make.

SEC. 304. I. Those having such terms and provisions that the court is unable to render a decree ordering their performance.-In all the cases which constitute this group, the difficulty lies in the subject-matter which is something which the court cannot ascertain by judicial proof, or cannot lay hold of, so as to define and establish the rights concerning it. If it were possible to accomplish this fundamental part of the decree, there would be no insurmountable obstacle to a specific execution. It may, therefore, be laid down as a general proposition, that when the subject-matter of a contract-that concerning which the stipulations are made-is of such a nature that the court of equity cannot, consistently with the contract itself, ascertain the rights of the parties by means of a judicial inquiry, or cannot define and establish these rights by its decree, a specific performance of the agreement will be withheld. The cases to which this principle has been applied are few; but it would necessarily be extended to all new cases which should present the same inherent features. The following are certain species of agreements which have been passed upon, and which plainly fall under this general class.

SEC. 305. 1. Contracts relating to the manufacture or sale of secret medicines, and of all other commodities or processes whose composition. or nature is a secret, where the agreement recognizes the secret and expressly or impliedly stipulates that it shall not be divulged or publicly exposed. The process being secret, and the agreement providing for its preservation, the court could not inquire into the process, or ascertain by evidence whether the terms had been violated, or define and establish the rights and duties of the parties, without defeating the main purpose, or one of the main purposes, of the contract. Such a contract will not, therefore, be affirmatively enforced, nor will its performance be negatively compelled by means of an injunction restraining its breach. (1)

SEC. 306. 2. Contracts concerning a good-will.-Contracts relating to a good-will alone-as for its sale or transfer-unconnected with the business and premises of which it is an incident, cannot be specifically enforced. A good-will is a mere advantage and not a right; it is the tendency, from habit, of customers to resort to the same particular place where they have been accustomed to trade; it is, therefore, entirely intangible and speculative, and is something which the court

(1) Newberry v. James, 2 Meriv. 446; Williams v. Williams, 3 Meriv. 157.

cannot lay hold of and control by its decree.(1) But where a transfer of the good-will is included with the sale of a business and premises to which it is incident, the whole contract will be affirmatively enforced, and the special stipulations of the vendor for the preservation and assignment of the good-will will be negatively executed by means of an injunction restraining him from setting up a new business at or near the place, or from designedly drawing off the customers in any other manner.(2) As an example of this rule, agreements for the sale of an attorney's business and good-will have been specifically enforced in equity ;(3) although their validity has been doubted by eminent judges.(4) It has been doubted in England whether the court of equity can decree a specific performance of the covenants contained in a "farming lease," because, as these stipulations relate to the mode of using and tilling the soil in a proper manner, the court is unable to decide the questions as to "good husbandry," which are thus raised.(5) There does not seem, however, to be a greater difficulty in such a case than is presented by any other, the decision of which turns upon questions of knowledge and skill, and must be largely based upon the testimony of experts.

SEC. 307. II. Contracts having such terms and provisions that the court is unable to carry into effect its decree for a specific performance.-In this class of agreements, which is by far the most numerous and important, the jurisdiction is declined, not because it is impossible to formulate a decree which shall order everything necessary for a complete performance, nor even because a compulsory execution of such decree is absolutely, and in the nature of things impossible, but because the enforcement of the decree would unreasonably tax the time, attention, and resources of the court, and thereby interfere too much with its public duties towards other suitors, and in the general administration of justice. Take the case, which is the extreme one, of a contract for

(1) Bozon v. Farlow, 1 Mer. 459; Baxter v. Connolly, 1 J. & W. 576; Coslake v. Till, 1 Russ. 376.

(2) Darby v. Whittaker, 4 Drew. 134, 139, 140; Cruttwell v. Lye, 17 Ves. 335; Chissum v. Dewes, 5 Russ. 29; Shackle v. Baker, 14 Ves. 468, and see cases cited ante, §§ 24, 25.

(3) Whittaker v. Howe, 3 Beav. 383; Aubin v. Holt, 2 K. & J. 66.

(4) Candler v. Candler, Jac. 231, per Lord ELDON; Bozon v. Farlow, 1 Mer, 459, per Sir WILLIAM GRANT; Thornbury v. Bevills, 1 Y. & C. C. C. 554, per KNIGHTBRUCE, V. C.; Gilfillan v. Henderson, 2 Cl. & Fin. 1.

(5) Rayner v. Stone, 2 Eden, 128, per Lord NORTHINGTON; and for an analogous case, see Starens v. Newsome, 1 Tenn. Ch. 239, in which a contract to cultivate a certain crop in a particular manner, and to cut, cure, and deliver it in a prescribed mode, was held impossible to be specifically enforced.