the construction of an extensive line of railway. It is plain that a court of equity can render and put into a proper form a decree ordering the specific execution of this contract, with about the same ease that it can make a decree ordering the execution and delivery of a deed of conveyance with the requisite covenants and other provisions. It is also plain that, by means of a comprehensive and minute scheme of operations, prepared by experts, and by the help of special masters overseeing the work and reporting its progress from time to time, the court might enforce this decree, although months, or even years, should be required for its completion; but to do so would occupy the care, attention, and time of the court, to the exclusion of other matters, and to the manifest detriment of the public business. A judicial tribunal cannot thus sacrifice the interests of other suitors, and even of society, for any benefit which might accrue to individual parties. For this reason, rather than from any inherent and absolute impossibility, equity refuses to exercise its jurisdiction under such circumstances. In some cases, however, of special and exceptional contracts properly belonging to this class, where the inconvenience would be comparatively slight, and where its interference is demanded by wellsettled principles, equity does exercise its jurisdiction and decree a specific performance.(1) The following are the important species of agreements in respect of which the remedy is generally declared to be impracticable.

SEC. 308. 1. A continuing covenant will not be negatively enforced by an injunction restraining its breach, when the acts alleged to be in violation of it are numerous, and each one of them would require a separate judicial examination-perhaps an action at law-in order to ascertain whether it constituted a breach or not, and where the same controversy would arise with respect to every violation of the injunction; as, for example, a covenant not to sell water from a certain well to the plaintiff's injury.(2) In such a case, each alleged breach would require a separate controversy of fact. An injunction, in the very terms of the covenant restraining "sales to the injury of the plaintiff," would not remove the difficulty, because the same question would arise upon every breach of it, viz., whether the plaintiff was in fact injured;.

(1) See ante, §§ 22, 23.

(2) Collins v. Plumb, 16 Ves. 454; and see City of London v. Nash, 3 Atk. 512, 515. This rule was recognized and acted upon in Caswell v. Gibbs, 33 Mich. 331. A contract by defendant “never to tow vessels in competition” with plaintiff, it was held, could not be enforced by injunction; since every instance of alleged breach would require a separate investigation in fact to ascertain whether the defendant's act was really in competition with the plaintiff.

and an injunction restraining all sales would be broader than the covenant. The same obstacles would arise in the way of negatively enforcing every other continuing covenant or agreement of the kind described.

SEC. 309. 2. Contracts for sale at a price to be fixed by valuers.— Wherever it is an essential part of a contract for the sale of property that its price is to be fixed by valuers, whose appointment is also therein stipulated for, a specific performance will not be decreed unless the amount has been determined according to the provision, and in such a final manner as to become a term of the contract. The parties having seen fit to rely upon the judgment of persons selected by them selves, the court has no legitimate means of making the award itself, or of directing it to be made by a master or an expert, for this would be substituting another contract in the place of the one to which the parties had assented. (1) It makes no difference whether the parties, or one of them, fail to appoint the valuers, or whether, on being appointed, they neglect or refuse to make an award, or whether one of the parties refuses to permit his nominee to go on.(2) If, however, the provision for a valuation is not an essential element of the agreement, but is merely collateral or incidental, or auxiliary to its main scope and purpose, the court will specifically execute the contractif otherwise a proper one—and in so doing will, in some manner, fix upon the value. The strong tendency of the recent decisions is towards the construction of contracts so as to admit this latter rule, and to limit the operation of the doctrine as first stated.(3)

SEC. 310. 3. Contracts for personal services.—The instances embraced in the two foregoing subdivisions are rare; those which follow are of constant occurrence. Contracts for personal services, where the acts stipulated for require special knowledge, skill, ability, experience, or the exercise of judgment, discretion, integrity and the like personal qualities, on the part of the employes, or where the services are confidential,-in short, wherever the full performance, according to the spirit of the agreement, rests in the individual will of the contracting party, courts of equity have no direct and efficient means of affirmatively compelling a specific execution; at most, they could only order

(1) Milnes v. Gery, 14 Ves. 400; Wilks v. Davis, 3 Meriv. 507; Collins v. Collins, 26 Beav. 306; Vickers v. Vickers, L. R. 4 Eq. 529; Richardson v. Smith, L. R. 5 Ch. 648; Earl of Darnley v. London, etc., R'y Co., 3 DeG. J. & S. 24; L. R. 2 H. L. 43; Hopkins v. Gilman, 22 Wisc. 476.

(2) Ibid; Vickers v. Vickers, L. R. 5 Eq. 535.

(3) Dinham v. Bradford, L. R. 5 Ch. 519; Jackson v. Jackson, 1 Sm. & Gif. 184; Richardson v. Smith, L. R. 5 Ch. 648; Smith v. Peters, L. R. 20 Eq. 511.

the acts to be done and punish the defendant refusing by fine or imprisonment.(1) Such contracts may, however, according to the doctrine now universally established in the English equity courts, be negatively enforced by injunction whether they contain express negative stipulations or not; that is, whether the defendant specially agrees not to do certain acts, or only affirmatively undertakes to do certain other acts. (2) The rule was at one time settled in England, as well as in this country, that in agreements for purely personal services, such as described above, where the court could not decree an affirmative performance of the positive stipulation, it would not interfere to accomplish the same object in an indirect manner, and enforce the negative stipulation by means of an injunction; and a fortiori would not indirectly enforce the positive stipulations by enjoining their breach when there were no negative stipulations. (3) This doctrine, however, was subject to certain limitations, especially when the contract grew out of or involved the relation of partnership between the parties, or the parties stood to each other, in respect to the matters contracted for, as partners, the court would negatively enforce it by restraining a breach, although it could not compel affirmatively the performance of any stipulation.(4) And the court would not, in pursuance of this doctrine, refuse to restrain a breach of a contract because it contained some stipulation which, it might afterwards appear, could not be affirmatively enforced. (5)

(1) Johnson v. Shrewsbury, etc., R'y. Co., 3 DeG. M. & G. 914, 926; Pickering v. Bp. of Ely, 2 Y. & C. C. C. 249; Stocker v. Brockelbank, 3 McN. & G. 250; Horne v. London & N. W. R'y Co., 10 W. R. 170; Brett v. East India, etc., Co., 12 W. R. 596; Mair v. Himalaya Tea Co., L. R. 1 Eq. 411; Chinnock v. Sainsbury, 30 L. J. (N. S.) Ch. 409; Palmer v. Scott, 1 R. & My. 391; De Rivafinoli v. Corsetti, 4 Paige, 264; Hamblin v. Dinneford, 2 Edw. Ch. 529; Sanquirico v. Benedetti, 1 Barb. 315; Haight v. Badgeley, 15 Barb. 501; Marble Co. v. Ripley, 10 Wall. 339; Randall v. Latham, 36 Conn. 48 (an agreement to construct a spout in a water-course); Richmond v. Dubuque, etc., R. R., 33 Iowa, 422; Cooper v. Pena, 21 Cal. 404, 411; Ford v. Jermon, 6 Phila. 6 (contract of an actor).

(2) See ante, §§ 24, 25.

(3) An actor agreed to perform at a certain theatre for a certain term, the court would not compel obedience by restraining him from performing at any other place. Kemble v. Kean, 6 Sim. 333. And defendant having agreed to furnish drawings for maps to the plaintiffs exclusively, which the plaintiffs were exclusively to sell, as the court could not compel defendant to furnish the drawings, it would not restrain him from selling the maps himself. Baldwin v. Soc. for Diff. of Useful Knowledge, 9 Sim. 393. And see Kimberley v. Jennings, 6 Sim. 340; Clarke v. Price, 2 J. Wils. 157.

(4) Morris v. Coleman, 18 Ves. 437; 6 Sim. 335; Kemble v. Kean, 6 Sim. 333; De Rivafinoli v. Corsetti, 4 Page, 264.

(5) Whittaker v. Howe, 3 Beav. 383, 395.

SEC. 311. The doctrine has, however, been completely overthrown or abandoned in the English courts. As stated in a former section(1), it was first held that when the agreement for purely personal services contains positive and negative clauses, and a specific performance of the former cannot be affirmatively decreed, the court will still restrain a breach of the latter, although a specific execution of the whole contract is thus indirectly secured. (2) This new rule was soon carried further, and it was held that the breach of a contract for personal services would be enjoined, although it contains no express negative stipulations.(3) If the stipulations which cannot be specifically enforced are wholly on the part of the plaintiff, they would present no obstacle to an injunction restraining the defendant from violating the contract on his part; the plaintiff's performance of his own stipulations would be indirectly compelled by the injunction, since his failure would at once cause a dissolution of the injunction.(4)

SEC. 312. 4. Contracts whose performance would be continuous.-Finally, contracts which by their terms stipulate for a succession of acts, whose performance cannot be consummated by one transaction, but will be continuous, and require protracted supervision and direction, with the exercise of special knowledge, skill or judgment in such oversightsuch as agreements to repair or to build, to construct works, to build or carry on railways, mines, quarries, and other analogous undertakings-are not, as a general rule, specifically enforced.(5)

(1) Ante, §§ 24, 25.

(2) Lumley v. Wagner, 1 DeG. M. & G. 604. And see Dietricksen v. Cabburn, 2 Ph. 52; Great Northern Ry. Co. v. Manchester, etc., Ry. Co., 5 DeG. & Sm. 138; Hills v. Croll, 1 DeG. M. & G. 627, n. ; 2 Phil. 60.

(3) Webster v. Dillon, 3 Jur. (N. S.)432.

(4) Stocker v. Wedderburn, 3 K. & J. 393, 405.

(5) Errington v. Aynesly, 2 Bro. C. C. 343; 2 Dick. 692; Lucas v. Commerford, 3. Bro. C. C. 166; Mosely v. Virgin, 3 Ves. 184; Flint v. Brandon, 8 Ves. 159; Paxton v. Newton, 2 Sm. & Gif. 437; South Wales Ry. Co. v. Wythes, 1 K. & J. 186; 5 DeG. M. &. G. 880; Booth v. Pollard, 4 Y. & C. Ex. 61; Pollard v. Clayton, 1 K. & J. 462; Garrett v. Banstead, etc., Ry. Co., 4 DeG. J.& S. 462, 465, 467; Munro v. Wivenhoe, etc., Ry. Co., 4 De G. J. & S. 729, 732, per KNIGHT BRUCE, L. J.; Gervais v. Edwards, 2 Dru. & W. 80; Counter v. Macpherson, 5 Moo. P. C. S3; Ford v. Stuart, 15 Beav. 493; Peto v. Brighton, etc., Ry. Co., 1 H. & M. 468; Heathcote v. North Staffordshire Ry. Co., 20 L. J. (N. S.) 82; Hamilton v. Dunsford, 6 Ir. Ch. Rep, 412; Morrison v. Barrow, 1 DeG. F. & J. 633; Powell Duffryn Steam Coal Co. v. Taff Vale Ry. Co., L. R. 9 Ch. 331; Blackett v. Bates, L. R. 1 Ch. 117, reversing 2 H. & M. 270; Fothergill v. Rowland, L. R. 17 Eq. 132; DeMattos v. Gibson, 4 DeG. & J. 276, 297, per Ld. CHELMSFORD; Mann v. Stephens, 15 Sim. 379; Bernard v. Meara, 12 Ir. Ch. 389; Armstrong v. Courteney, 15 Ir. Ch. 138; Merchants' Trading Co. v. Banner, L. R. 12 Eq. 18; Wheatley v. Westminster Brymbo Coal Co., L. R. 9 Eq. 538; Marble Co. v. Ripley, 10 Wall. 340; Port Clinton R. R. v. Cleve

CHAPTER III.

ACTS OR OMISSIONS OF THE PARTIES, AND OTHER FACTS DONE OR OCCURRING SUBSEQUENTLY TO THE CONCLUSION OF THE CONTRACT, WHICH AFFECT THE RIGHT TO A SPECIFIC PERFORMANCE.

SECTION 313. In the first chapter I discussed the nature of the remedy, the extent of the equitable jurisdiction in awarding it, the grounds upon which it rests, and the occasions which admit of its employment. In the second chapter I described the nature and kinds of contracts to which the remedy can be applied, and the various features and incidents of such contracts, which are the necessary prerequisites to their specific enforcement. In the present chapter it is assumed that the contract falls within the equitable jurisdiction; that, on being concluded, it possesses all the features, elements, and incidents belonging to itself, which are essential to its specific execution; and I purpose to inquire what acts or defaults of the parties, and what facts or events independent of the parties, done or happening subsequent to the time of its conclusion, will affect the right to its specific performance-that is, what subsequent acts of the parties are essential to a decree granting the relief, and what subsequent acts, omissions, or events will wholly or partially defeat the remedy. The discussions of this chapter, however, will be confined to matters directly connected with the agreement itself and its subject-matter, including the performance, by either party, of the provisions to be performed on his part, as a condition to obtaining relief against the other; the element

land & Toledo R. R., 13 Ohio St. 544; Fallon v. R. R. Co., 1 Dillon, 121; Ross v. Union Pacific R. R., 1 Woolw. 26; Green v. Smith, 1 Atk. 573; Waring v. Manchester, etc., Ry. Co., 7 Ha. 492. As examples, contracts for erecting or repairing buildings, Beck v. Allison, 56 N. Y. 367; Mastin v. Halley, 61 Mo. 196; a contract to cultivate, cut, cure and deliver a certain crop in a prescribed manner, Starnes v. Newsom, 1 Tenn. Ch. 239; a contract to construct a spout in a watercourse, Randall v. Latham, 36 Conn. 48. But in Columbia Water, etc., Co. v. Columbia, 5 S. C. 235, a contract between the company and the city by which the former were to construct certain extensive water-works for the city, was specifically enforced against the city by compelling it to accept them, etc., after the works had been constructed by the plaintiff. The doctrine of the text was also applied in the cases of a contract to transport all of the plaintiff's freight, Atlanta, etc., R. R. v. Speer, 32 Geo. 550 ; an agreement to construct a fence, Cincinnati, etc., R. R. v. Washburn, 25 Ind. 259; an agreement to keep cattle-guards in repair, Columbus, etc., R. R. v. Watson, 26 Ind. 50.