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I shall simply enumerate the most familiar and illustrative examples. To the first head-of subject-matter-may be referred all contracts concerning unique and precious articles, heir-looms, rare paintings, old furniture, and the like, in which there is no market price to furnish a criterion, nor any other means of estimating the pretium affectionis, which constitutes the real value to the owner. (1) Also, contracts for the delivery of deeds, other muniments of title, and instruments in writing, whose value to the owner might be priceless, but is clearly beyond the competency of a jury to decide by the application of certain legal rules;(2) and many contracts for the assignment and transfer of certain peculiar things in action, in which the damages for a breach would depend upon contingencies, and be entirely conjectural.(3) To the second head-the special nature of the terms-must be referred a variety of different agreements; among others, contracts in which acts are to be done, or articles delivered, by one party, and payments are to be made by the other, in installments, at stated times, through a number of years, and where, to compel the plaintiff to accept a present sum, by way of damages, for a non-performance, would be forcing him to sell his expected profits for a price wholly conjectural;(4) contracts by artists, actors, singers, and others having special skill, or knowledge, to render personal services involving the use of such skill or knowledge, which are analogous to agreements concerning unique and precious chattels, there being no customary market price, nor other means, of ascertaining certain damages ;(5) and undertakings not to do certain specified acts, such as not to carry on a trade, not to build, or not to build above a fixed height, not to ring a bell except at certain hours, for the breach of which pecuniary compensation would be purely guess-work and assumption;(6) contracts to erect defined structures, for the benefit of the plaintiff, upon land conveyed to the defendant, where the plaintiff would have no means of ascertaining the cost by performing the work himself, and thus fixing upon the actual damages resulting from a breach.(7) The foregoing instances are sufficient to illustrate and establish the doctrine, that equity may interpose and specifically enforce a large

(1) See cases cited, ante, § 12 n. (1)

(2) Cases cited, ante, in § 13, n. (1)

(3) Cases cited, ante, § 20.

(4) See cases cited, ante, § 15.

(5) See ante, § 12.

(6) Ante, § 24.

(7) Ante, § 23. See, also, for another case, where equity has enforced an agreement, because a common-law court cannot, by its form of judgment, do justice to all the parties; Beech v. Ford, 7 Ha. 208.

variety of agreements, where the measure of legal damages is purely conjectural, and the legal remedy of compensation is, therefore, wholly impracticable. These cases have also been, and generally are, cited to show that equity has jurisdiction where damages are inadequate; but the inadequacy here consists in the impossibility of arriving at any definite amount of damages, by means of the fixed and certain rules which govern the common-law methods of administering justice.

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The discretionary character of the remedy.

SECTION 35. Having thus described the intrinsic nature of this equitable remedy as ancillary and supplementary to the ordinary legal relief of debt or damages, I shall next discuss, in a like general manner, the other important attribute mentioned in the introductory chapter—its discretionary character. Even where a contract belongs to a class susceptible of enforcement, the right to its specific performance is not absolute, like the right to recover the legal judgment. The granting this equitable remedy is a matter of discretion; not, indeed, of an arbitrary, capricious discretion, synonymous with the mere pleasure of the judge; but of a sound, judicial discretion, controlled by established principles of equity, and exercised upon a consideration of all the circumstances of each particular case. Where, however, the agreement is in writing, is certain in its terms, is fair and just in all its provisions, is for a valuable consideration, and is capable of being enforced without hardship to either party, it is as much a matter of course for a court of equity to decree its specific performance, as for a court of law to award a judgment of damages upon its breach. This is the ordinary language as repeated by judges and text-writers. I propose to examine it with care, to analyze and compare the decisions, and to ascertain, if possible, the true nature and exact extent of this "discretion," which is constantly attributed to the jurisdiction. As a preliminary, I have collected in the foot-note extracts from the judgments of several able courts, both ancient and modern, which will exhibit the judicial opinion in all its different forms of expression.(1)

(1) Radcliffe v. Warrington, 12 Ves. 332, per Lord ERSKINE: "The jurisdiction is not compulsory upon the court, but the subject of discretion. The question is not what the court must do, but what it may do, under the circumstances, either

SEC. 36. In determining the real force and effect of these judicial opinions, and in ascertaining the exact nature of the so-called “discretion" exercised by the courts, it is necessary, in the first place, to

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exercising the jurisdiction by granting the specific performance, or abstaining from it." Joynes v. Statham, 3 Atk. 3SS, per Lord HARDWICKE: "The constant doctrine of this court is, that it is in their discretion whether in such a bill they will decree a specific performance, or leave the plaintiff to his remedy at law ;" and in Underwood v. Hitchcox, 1 Ves. Sen. 279, the same chancellor said: 66 The rale of equity in carrying agreements into specific performance is well known, and the court is not obliged to decree every agreement entered into, though for a valuable consideration, in strictness of law, it depending on the circumstances." The subject was carefully considered in the late case of Willard v. Tayloe, 8 Wall. 557. The suit was by the vendor to enforce a contract empowering him to purchase leased property at the expiration of ten years, for a price which was conceded to be perfectly fair and reasonable. The objection raised was that in the meantime the war had changed all the circumstances, the property had very largely increased in value, and the legal tender notes, with which the plaintiff proposed to pay, were very much depreciated, compared with gold. The opinion of the court, per FIELD, J., after holding that the contract was legal, binding in law, and perfectly fair when made, proceeds (p. 565): "When a contract is of this character, it is the usual practice of courts of equity to enforce its specific execution, upon the application of the party who has complied with its stipulations on his part, or has seasonably and in good faith offered, and continues ready to comply with them. But it is not the invariable practice. This form of relief is not a matter of absolute right to either party; it is a matter resting in the discretion of the court to be exercised upon a consideration of all the circumstances of each particular case [citing several leading cases] (p. 566). "It is true the cases cited, in which the discretion of the court is asserted, arose upon contracts in which there existed some inequality or unfairness in the terms, by reason of which injustice would have followed a specific performance. But the same discretion is exercised where the contract is fair in its terms, if its enforcement, from subsequent events, or even from collateral circumstances, would work hardship or injustice to either of the parties," [citing City of London v. Nash, 1 Ves. Sen. 12; Faine v. Brown, cited tn Ramsden v Hylton, 2 Ves. Sen. 306] (p. 567): "The discretion which may be exercised in this class of cases is not an arbitrary or capricious one, depending upon the mere pleasure of the court, but one which is controlled by the established doctrines and settled principles of equity. No positive rule can be laid down by which the action of the court can be determined in each case. In general, it may be said that the specific relief will be granted, when it is apparent, from a view of all the circumstances of the particular case, that it will subserve the ends of justice; and that it will be withheld when, from a like view, it appears that it will bring hardship or injustice to either of the parties. It is not sufficient to call forth the equitable interposition of the court, that the legal obligation under the contract to do the specific thing desired may be perfect. It must, also, appear that the specific enforcement will work no hardship or injustice; for if that result should follow, the court will leave the parties to their remedies at law, unless the granting of the specific relief can be accompanied with conditions that will obviate that result. If that result can be thus obviated, a specific performance will, generally, in such cases, be decreed conditionally. It is the advantage of a court of equity, as

distinguish between those expressions which are purely obiter, and those which are not. Such general language must be tested by and limited to the particular facts of the various cases in which it is

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observed by Lord REDESDALE, in Davis v. Howe, 2 Sch. & Lef. 348, that it can modify the demands of parties according to justice, and when, as in that case, it would be inequitable, from a change of circumstances, to enforce a contract specifically, it may refuse its decree, unless the party will consent to a conscientious modification of the contract, or what would generally amount to the same thing, take a decree upon condition of doing or relinquishing certain things to the other party." Specific performance was, therefore, refused, unless the vendee would pay the price and interest in gold, but decreed on condition that he paid in that manner, It will be seen, therefore, that the discussion on the subject of "discretion" formed a most important part of the ratio decedendi-in fact, was the very ground of the decision. Marble Co. v. Ripley, 10 Wall. 339. In this case specific performance was asked of a peculiar contract, intended to run through many years and perhaps indefinitely, which was fair and equable when made. The relief was objected to, among other grounds, because, by a change in circumstances, the agreement had become one-sided, very advantageous to the party seeking the decree, and very burdensome to the party opposing. On this point the court, per STRONG, J., said (p. 356): "The next question is, whether Ripley was entitled, upon his cross-bill, to a decree against the Marble Company for a specific performance of the contract. The company urge that the contract, though supposed to be fair and equal when made, has in the lapse of time, and by the operation of unforseen causes, arising from changed circumstances, become exceedingly unfair, unreasonable, and unconscionable, so that a decree for its specific performance would tend to their oppression and ruin. * It is by no means clear that a court of equity will refuse to decree the specific performance of a contract fair when it was made, but which has become a hard one by the force of subsequent circumstances, or changing events." Cites Fry, p. 116, ch. 6, that the hardship must be judged of at the time the contract was made. “Judge STORY, indeed, states the rule somewhat differently (§§ 750, 776), and there are some cases that support his statements; but the rule, as stated by Fry, must be applicable to contracts that do not look to completed performance within a defined or reasonable time, but contemplate a continuous performance, extending through an indefinite number of years, or perpetually." The relief prayed for was refused on other grounds, so that these remarks were unnecessary to the decision. On another point he says (p. 357): "There are other objections to a decree for a specific performance in this case, which are more serious. Such a decree is not a matter of right. It rests in the sound discretion of the court, and generally will not be made in favor of a party who has himself been in default. * * * Applying these principles to the case in hand, it would appear that the conduct of the cross-complainant has not been such as to justify the court in decreeing a specific performance at his suit against the Marble Company. Without relying upon his alleged unfounded claims set up from time to time, etc., etc.; his unlawful and unwarranted entry and ouster of the Marble Company was such an invasion of the contract as leaves him no standing as a complainant asking for its specific performance in a court of equity." Lowry v. Buffington, 6 W. Va. 249, 255, per HAYMOND, J.: "Applications to the court to compel specific performance, are addressed to its discretion; but it is not an arbitrary or capricious discretion, but a sound, judicial discretion, regulated by the established principles of

employed, and the judgments actually pronounced in those cases. Many of the passages quoted in the foot note had no relevancy whatever to the matters in issue, or to the decisions finally made. I shall

the court." This was a mere dictum, as the relief was granted, and the only question in the case was one of fact, whether the alleged contract had been made. Fish v. Lightner, 44 Mo. 268, 272, per Currier, J.: “Petitions for a specific performance of contracts are addressed to the sound and reasonable discretion of the court, which withholds or grants relief according to the circumstances of each particular case, when general rules and principles fail to furnish any exact measure of justice between the parties." Fish v. Leser, 69 Ill. 394. Defendant, a weak-minded man, ignorant of business, just after the great Chicago fire, while he was much frightened thereby, was induced, by repeated solicitations of a person, to sign a writing authorizing that person, as his agent, to sell certain lots in Chicago for $21,000; they were worth $30,000. and were rapidly increasing in value; extensive improvements were about to be commenced on adjoining lots, which would improve the value of the property. All these facts were well known to business men, but not to defendant, and he was not informed of them by the person who got the authority to sell, who was also agent for the buyers throughout the whole transaction. A specific performance against the vendor was refused. The court, per CRAIG, J. (p. 395), said: “Courts of equity will not always enforce the specific performance of a contract. Such applications are addressed to the sound, legal discretion of the court, and the court must be governed, to a great extent, by the facts of each case as it is presented. Specific performance will not be decreed unless the agreement has been entered into with proper fairness, and without misapprehension, misrepresentation, or oppression. The contract must be fair, equitable, and just, and the complainant should be prepared to show that it will not be unjust or oppressive on the defendant to have the contract enforced." The court did not, in fact, decide this case upon any discretion, for they subsequently held that the contract could be set aside as fraudulent against the vendor, because his agent was also the secret agent of the purchaser. Stone v. Pratt, 25 Ill. 25. This was a suit by an assignee of a part of a land contract against the vendor. The court, per CATON, Ch. J. (p. 34), said: "This is a bill for the specific performance of an agreement by one who at law has no claims whatever upon the defendant-at least in his own name. Such a bill is always addressed to the sound discretion of the court, which must be governed by the circumstances of each case as it is presented. In Lear v. Chouteau, 23 Ill. 39, this court said: "In order to induce a court of equity to enforce specifically a contract, it must be founded on a good consideration; it must be reasonable, fair, and just. If its terms are such as our sense of justice revolts at, this court will not enforce it, though admitted to be binding at law." It may be added, that the complainant must show no oppression or unconscionable advantage, when he comes into a court of conscience asking for a remedy beyond the letter of his strict rights. He must not ask for a favor beyond his technical legal rights when he bases his claim to that favor upon a hard, oppressive, technical advantage. He must stand before the court prepared. to meet its scrutiny without a blush, relying upon the advocacy of a well-regulated conscience in his favor., Such must not only be his own position, but he must show that it is not unjust or oppressive to the defendant to compel him to perform specifically. Let us examine the position of these parties. Waiving the question of the division of the contract, the complainant, before he could call on the defendant to convey to him this land,

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