his non-fulfillment of its literal terms, does not prevent his enforcement of the agreement, unless such delay or non-fulfillment produces a substantial loss or injury to the other party beyond compensation, or the equitable modes of compensation.(1)

The foregoing principles enter largely into the rules which have been established touching the enforcement of contracts, which have been properly concluded so as to be binding upon the parties. Two classes of facts may possibly arise and affect the remedial right to a specific performance, viz.: 1. Events which happen without any agency of the parties, independent of their will, and beyond their control; and 2. Acts or omissions of one or the other of the parties connected with, or having reference to the contract. These two classes of facts will be considered in the order just given.

(1) Kerr v. Day, 2 Harris, 112, 114; Siter's Appeal, 2 Casey, 178; Sutter's Heirs v. Ling, 1 Casey, 466; Richter v. Selin, 8 S. & R. 425, 440; Robb v. Mann, 1 Jones, 300; Russell's Appeal, 3 Harris, 319; Bowie v. Berry, 3 Md. Ch. 359; Hunter v. Bates, 25 Ind. 299; Papin v. Massey, 27 Mo. 445, 452; Wright v. Thompson, 14 Tex. 558. The true doctrine of equity with respect to the enforcement of contracts when the plaintiff has not punctually complied with the stipulations on his part concerning the time of his performance, and the distinction between that doctrine and the rule prevailing at law, were briefly but most admirably stated by Lord CAIRNS, in Tilley v. Thomas, L. R. 3 Ch. 61, 67. After giving the meaning and effect of the provision in question (which was a stipulation that the possession of the premises agreed to be sold should be given at a day named), he says: "The legal construction of the contract is such as I have expressed, and the construction is and must be in equity the same as in a court of law. A court of equity will, indeed, relieve against, and enforce specific performance, notwithstanding a failure to keep the dates assigned by the contract for completion or for the steps towards completion, if it can do justice between the parties, and if (as Lord Justice TURNER said in Roberts v. Berry, 3 DeG. M. & G. 284), there is nothing in the 'express stipulations between the parties, the nature of the property, or the surrounding circumstances,' which would make it inequitable to interfere with and modify the legal right. This is what is meant, and is all that is meant, when it is said that in equity time is not of the essence of the contract." In the same case Sir JOHN ROLT, L. J., said (p. 69), after stating that the construction must be the same in the law and in equity: "The rights and remedies consequent on that construction may be different in the two jurisdictions, but the grammatical meaning of the expression is the same in each. And if this be so, time is part of the contract; and if there is a failure to perform within the time, the contract is broken in equity no less than at law. But in equity there may be circumstances which will induce the court to give relief against the breach, and sometimes though occasioned by the neglect of the suitor asking the relief. Not so at law. The legal consequences of the breach must there be allowed strictly to follow. The defendant is entitled to say that the contract is at an end; and it is in this sense that, in such cases it is said that time is of the essence of the contract at law, though not necessarily so in equity." And see Lennon v. Napper, 2 Sch. & Lef. 682, per Lord REDESDALE; Roberts v. Berry, 3 DeG. M. & G. 284, per KNIGHT-BRUCE, L. J.

SECTION I.

Events without the agency of the parties; and herein failure of the subjectmatter or of the consideration.

SECTION 316. Whether a failure or defect or depreciation of the subject-matter, or any other similar extrinsic event, beyond the control of either party-that is, happening without the agency or default of a party-shall affect the right to a specific performance, depends, as a general rule, upon the time when it took place with reference to the conclusion of the contract; or, in other words, upon the fact of its taking place before or after the contract was finally concluded so that the equitable estate would thereby pass to the vendee. It is necessary, therefore, to determine with precision, in the first place, the exact time when an agreement is regarded in equity as concluded— as so concluded that the equitable ownership of the subject-matter vests in the vendee, and of the purchase-price in the vendor. determining this point, contracts must be considered with reference to the following classes, into which they may all be separated: 1. those which are private bargains, whether made by ordinary negotiation or by auction sale; 2. those which are public sales, made by order of a court in the course and as a part of some judicial proceeding; and 3. those belonging to either of the former two classes, which are conditional-the obligation of them depending upon the happening of some condition-in opposition to those which are absolute in their terms.

SEC. 317. Private, absolute sales.—In case of private contracts for the sale or leasing of land, or of any estate therein, the time of their conclusion, at which the equitable interests of the parties are fixed, is that of signing the agreement, or the note, or memorandum thereof in writing, provided the vendor's or lessor's title is good, although such title is not made out and shown until afterwards. The contract then becomes binding, and the subsequent exhibition of his title by the vendor relates back to the date of the execution. (1) It can make no

(1) Harford v. Purrier, 1 Mad. 538, per Sir THOMAS PLUMER: "It is the established doctrine of equity that, if a contract of purchase is to be completed at a given period, and the title is finally made out, the parties continuing in treaty, and the purchaser not by any acts released from his bargain, the estate is considered as belonging to the purchaser from the date of the contract, and the money as from that time belonging to the vendor." Pierce v. Nichols, 1 Paige, 244; Baldwin v Salter, 8 Paige, 473; 7 Paige, 78; Seymour v. Delancey, 3 Cow. 446; Richter v. Selin, 8 Serg. & R. 425, 440; Robb v. Mann, 1 Jones, 300, per ROGERS, J.

difference whether such sale is the result of an ordinary negotiation, or is made at auction. In the latter case, the contract may be completed by the signing of the memorandum by the auctioneer or his clerk, as the agent of both parties. There are, however, a few older authorities which seem to hold that the time which thus fixes the rights of the parties, is not the date of executing the contract, but that of accepting the title by the purchaser-in other words, that the contract does not become binding and operative, so as to pass the equitable estate, until the title has been thus accepted. (1) This rule is, however, plainly erroneous. Of course, the contract fails-or, to speak more accurately, this contract never was really made-if it turns out that the vendor had no title; but if he has a title, the establishment of this fact, and the acceptance thereof by the vendee, relate back, and the interests of the two parties are fixed as from the date of the instrument.

SEC. 318. Sales by order of court.-By the equity practice an interval is allowed after the sale and before it is finally confirmed, during which the bidding may be reopened and a resale directed for various causes. The question is thus presented: Whether the fixing the rights and interests of the parties dates from the sale itself or from the order of confirmation, or whatever other act the practice has substituted in place of such order? The rule which seems to be sustained by the weight of authority, pronounces the rights and estate of the parties to be settled at the date of the sale, subject, of course, to be defeated by an order for opening the bids and reselling the subject-matter; the confirmation thus relates back to that time.(2) According to some authorities, or at least dicta, the time at which the equitable interests of the parties are established, and when the purchaser is to be considered as owner of the estate, is the date of the order confirming the

(1) Wyvill v. Bishop of Exeter, 1 Price, 292, 295, n.; Paine v. Meller, 6 Vesey, 349.

(2) By this rule the sale is the point of division between events before and events after the contract, although the vendee can do nothing with the property until such sale has been confirmed. Vesey v. Elwood, 3 Dr. & War. 74, per Lord ST. LEONARDS; Anson v. Towgood, 1 J. & W. 637, per Lord ELDON. In Robb v. Mann, 1 Jones, 300, the question was directly presented. (See facts and opinion, ante.) ROGERS, J., said: "The question is to whom the property belonged in the intermediate time between the sale and its confirmation by the court ;" and it was decided that it belonged to the vendee, and that the loss then occurring fell on him, although he had no power to prevent the wrong done-the tortious acts by the trespassers. See, also, Stoever v. Rice, 3 Whart. 25; Bashore v. Whisler, 3 Watts, 494; Morrison v. Wurtz, 7 Watts, 437; Andrews v. Scotton, 2 Bland (Md.), 629.

order of sale, or of whatever other judicial act the practice substitutes in place of such order.(1)

SEC. 319. Conditional contracts.-The rule is different in the case of a contract conditional in its very nature. The equitable interests or estates of the parties are not fixed at the conclusion of the agreement, but by the happening of the condition which renders the contract absolute. Until the contract is thus changed from a conditional into an absolute one, the estate in the subject-matter does not pass to the vendee, but remains in the vendor, and the subject-matter itself continues to be at his risk.(2)

SEC. 320. As the time when the equitable estate vests in the purchaser is that which fixes the rights of the parties under the contract, all events which affect the subject-matter, and which may modify the interests and obligations of the parties, must be referred to this point of time, as occurring either before or after it. Events happening before this point of time, which either destroy the subject-matter or materially injure it, which defeat or materially lessen the estate agreed to be transferred, will, as has already been shown, defeat a specific performance, since their real effect is to prevent a valid contract, in its very inception, from being made. If these prior events affect the subject-matter, or the estate to be transferred, but not substantially or materially, they may not, as has been shown in previous sections, constitute a complete defense to a specific enforcement of the contract, but may only furnish ground for a compensation. (3) The general rule has been applied to a contract for the sale of a remainder in fee after an estate tail, where it turned out that the tenant in tail had suffered a recovery, and thus cut off the remainder; (4) and to contracts concerning chattels or personal property which, even at law,

(1) Robertson v. Skelton, 12 Beav. 260, 265, per Lord LANGDALE; and see, also, Paramore v. Greenslade, 1 Sm. & Gif. 541; Busey v. Hardin, 2 B. Monr. 407; Owen v. Owen, 5 Humph. 352.

(2) Counter v. McPherson, 5 Moo. P. C. C. 83. Owners agreed to lease for five years from April 1, 1840, they stipulating to erect a new warehouse on the ground and to repair the old one before that date, the rent to depend upon the amount thus expended. April 1st arrived and the improvements had not been made, but the intended lessees did not object, but continued to occupy a part of the premises under an old contract. Shortly after all the buildings were destroyed by fire. The owners sued for a specific performance, and it was held by the P. C. that the contract was conditional; the agreement was to sell or lease upon the completion of the buildings, and until they were completed the risk was upon the vendor.

require that the thing should be in existence at the time the agreement is made, so that if the article or property has ceased to exist, no valid agreement arises.(1)

SEC. 321. This doctrine, as to the effect of a failure in the subject-matter, applies, under some circumstances, to a failure of the consideration, but it is important to observe with accuracy the extent and limits of such application. Whenever the consideration is money, or a promise to pay money, there cannot, by any possibility, be a failure of the consideration, in the sense in which the subject-matter fails; because, although the money may not be paid according to the stipulation, the liability to pay it always remains, and constitutes a consideration. It is true that a purchaser who has not paid, or tendered or offered to pay the price, as stipulated, may not be able to enforce the contract against the vendor, but his inability in such case would not result from any "failure" of the consideration, but from his neglect to perform what was to be done on his part as a condition precedent to his obtaining relief against the vendor. It is possible, however, that there should be a true failure of consideration, although even then the failure will be in the "subject-matter" of the agreement, as made by one of the parties. If the consideration of A.'s promise to convey or to do some other act, was a promise by B. to convey land, or a designated estate in land, or certain personal property, and it should turn out that at the time of making the contract the land or the personal property which B. undertook to convey had no existence, or he had no estate in it which he could transfer, then, regarding the agreement as a promise made by A., the consideration would have failed; but regarding it as a promise made by B., the subject-matter would have failed, and in either mode of looking upon it, the failure would prevent B. from obtaining its specific enforcement. To this extent, and no further, a failure of the consideration being identical with a failure of the subject-matter, will prevent the specific execution of a contract, because in reality it prevents the contract from having any valid inception. If such a failure of the consideration, or inability of one party to do the acts which formed the considera

(1) It is, of course, assumed that the contract purports to operate in praesenti, and with reference to an existing chattel or thing in action. The rule does not apply to agreements which purport to operate in futuro, and with reference to things not in esse but in posse--as, for example, an expected crop of grain. In illustration of the rule stated in the text, see Strickland v. Turner, 7 Exch. 208 (sale of a life annuity, the person on whose life it depended having died); Couturier v. Hastie, 9 Exch. 102; 5 H. L. Cas. 673 (sale of a cargo afloat, which had been lost).