CHAPTER I.

GENERAL NATURE, EXTENT AND LIMITATIONS OF THE RIGHT TO A SPECIFIC PERFORMANCE OF CONTRACTS.

SECTION I.

Is an ancillary and supplementary equitable remedy.

SEC. 6. All contracts may be reduced to three forms. First. Where there is simply a promise to pay money on one side in consideration of a similar payment or promise to pay on the other. Second. Where there is a promise to do or to omit some act or acts on one side, in consideration simply of a promise to pay or a payment of money on the other; and Third. Where there is a promise to do or to omit some act or acts on one side, in consideration of the doing or the undertaking to do certain acts, which may, perhaps, include a money payment on the other. It is very plain that in all contracts falling within the first class, which only call for a pecuniary payment from either party, the legal remedy of a money judgment will always be possible and sufficient, and there will be no occasion for invoking the interposition of equity. Specific performance is confined to agreements of the two other classes. In those which form the second division, it might be supposed from the general principles heretofore stated, that only the party who is to receive the benefit of the acts or omissions promised by the other, could resort to equity and enforce their specific performance according to the terms of the undertaking, while the party who is to receive the benefit of the money payment would be left to his legal remedy-the recovery of a money judgment in a commonlaw action. This supposition, however logical it may appear, is prevented by a well established doctrine of equity, that the right to a specific performance, if it exists at all, is, and necessarily must be, mutual;-in other words, it is and must be held, and be capable of being enjoyed alike by both parties in every agreement to which the jurisdiction extends. (1) As a familiar example, in the simplest form

(1) This doctrine of mutuality will be fully discussed in subsequent sections. It is sufficient now to cite a few cases in which it is recognized and enforced. Adderley v. Dixon, 1 S. & S. 607; Withy v. Cottle, 1 S. & S. 174; Kenney v. Wexham, 6 Mad. 355, 357; Cogent v. Gibson, 33 Beav. 557; Old Colony R. R. v. Evans, 6 Gray, 25; Cook v. Grant, 16 S. & R. 198, 209; Brown v. Haff, 5 Paige, 235; Phillips v. Berger, 8 Barb. 528; Hamblin v. Dinneford, 2 Edw. Ch. 531.

of contract for the sale of land, when the vendor agrees to convey, and the purchaser merely promises to pay a certain sum as the price, since the latter may, by a suit at equity, compel the execution and delivery of the deed, the former may also, by a similar suit, enforce the undertaking of the vendee, although the substantial part of his relief is the recovery of money.(1) On the same principle a person who has agreed to sell certain claims against a debtor, (2) or an annuity, (3) or a patent right, (4) may enforce the purchaser's promise to pay the price in equity, because the purchaser on his part can, by the same means, compel an assignment of the things in action agreed to be sold. It should be observed, however, that in these suits by the vendor, there is generally some other act to be done by the purchaser besides the simple payment of money, the performance of which may be enforced by the decree, and even in those cases when no such act has been undertaken by him in the contract, he may be compelled to accept the deed, or assignment cr other subject-matter as well as to pay the price, so that the decree is not purely one for the recovery of money. In all the contracts composing the third class, there can be no doubt or difficulty; a specific performance is plainly possible in favor of either party against the other. The simplest illustration is an agreement to exchange certain lands made by the two proprietors. SEC. 7. Different reasons for the exercise of the equitable jurisdiction have been given, in former times, by able judges. Thus, Lord HARDWICKE is reported to have said:(5) "In general this court will not entertain a bill for a specific performance of contracts of stock, corn, hops, etc.; for as these are contracts which relate to merchandise, which vary according to different times and circumstances, if a court of equity should admit such bills, it might drive on the parties to the execution of a contract to the ruin of one side, when upon an action (at law) that party might not have paid, perhaps, above a shilling damages. * * As to the cases of contracts for the purchase of lands (1) Old Colony R. R. v. Evans, 6 Gray, 25; Hopper v. Hopper, 1 C. E. Green, 147; Schroeppel v. Hopper, 40 Barb. 425; Springs v. Sanders, Phill. Eq. (N. C.) 67; Clifford v. Turrell, 1 Y. & C. C. C. 138, 150; Walker v. Eastern Counties R'y Co., 6 Ha. 594. But the contrary is held in Massachusetts under the statutory limitations upon the equity jurisdiction in that state. A vendor who has agreed to sell his land for a specified sum of money, cannot maintain a suit in equity for a specific performance, because, as it is said, he can recover the price in an action at law. Jones v. Newhall, 115 Mass. 244.

*

(2) Adderley v. Dixon, 1 S. & S. 607

(3) Withy v. Cottle, 1 S. & S. 174; Kenney v. Wexham, 6 Mad. 355, 357. (4) Cogent v. Gibson, 33 Beav. 557.

(5) Buxton v. Lister, 3 Atk. 384.

or things that relate to realties, those are of a permanent nature; and if a person agrees to purchase them, it is on a particular liking to the land, and is quite a different thing from matters in the way of trade." If, as Lord HARDWICKE here says, the fluctuating value of certain commodities is the reason why contracts concerning them are not to be specifically enforced, it is plain that the same objection must also apply to contracts for the sale of land, in those cases where its market value is not permanent, or at least confined in its variation between any narrow limits.(1) The grounds of the jurisdiction have been more accurately and comprehensively stated by Sir JOHN LEACH, (2) as follows: "Courts of Equity decree the specific performance of contracts, not upon any distinction between reality and personalty, but because damages at law may not, in the particular case, afford a complete remedy. Thus a court of equity decrees performance of a contract for land, not because of the real nature of the land, but because damages at law, which must be calculated upon the general money value of the land, may not be a complete remedy to the purchaser, to whom the land may have a peculiar and special value. So a court of equity will not generally decree performance of a contract for the sale of stock or goods, not because of their personal nature, but because damages at law, calculated upon the market price of the stock or goods, are as complete a remedy to the purchaser as the delivery of the stock or goods contracted for; inasmuch as with the damages he may purchase the same quantity of the like stock or goods."(3)

SEC. 8. The foregoing language of Sir JOHN LEACH is a very clear and correct statement of the doctrine in its most general terms, but is not exhaustive; it gives no rules by which we may finally determine for all cases, where the legal relief of damages will be considered

(1) See remarks of RICHARDS, C.B., in Wright v. Bell, 5 Price, 328, 329. In this country, where the price of land is extremely fluctuating, the reasons of Lord HARDWICKE, Would, if logically carried out, defeat the specific performance of most land contracts.

(2) Adderly v. Dixon, 1 S. & S. 610.

(3) See Ord v. Johnston, 1 Jur. N. S. 1063, 1064, per V. C. STUART. "The jurisdiction of specific performance is one which is always said to be discretionary in the court. It is a jurisdiction assumed by this court for the more perfect administration of justice, for giving to persons. having a right under an agreement, the very specific thing according to the provisions of the agreement, and is intended to give more effectual relief in the case to which it applies-because according to proceedings of courts of law upon the breach of an agreement, what a court of law does is to give compensation in money which shall amount to an equivalent to that which the agreement had stipulated should be performed."

insufficient, so that a resort may be had to the equitable remedy. From a comparison of the authorities, ancient and modern, the cases of insufficiency of damages, which admit a recourse to equity for a specific enforcement of the contract, are reducible to two distinct classes or, in other words, the insufficiency of damages as a remedy may be referred to two distinct grounds connected with the contract. 1. The first is where the subject-matter of the contract is of such a special nature, or of such a peculiar value, that the damages, when ascertained according to legal rules, would not be a just and reasonable substitute for or representation of that subject-matter in the hands of the party who is entitled to its benefit-or, in brief, where the damages are inadequate. 2. The second is where from some special and practical features or incidents of the contract inhering either in its subject-matter, in its terms, or in the relations of the parties, it is impossible to arrive at a legal measure of damages at all, or at least with any sufficient degree of certainty, so that no real compensation can be obtained by means of an action at law-or, in brief, where damages are impracticable. All the particular instances in which a specific performance is decreed may be referred to one or the other of these two causes, and it will not unfrequently happen that both are involved in the facts of one and the same case. I shall now proceed to illustrate these two propositions, and in this manner exhibit more clearly the ancillary and supplementary character of the remedy.

SEC. 9. First. Inadequacy of the damages. Contracts concerning land. The law in estimating the damages for the breach of any contract, bases them upon the general value of the subject-matter, its value to persons generally, and makes no account of any special value which it may have for the contracting party, or of any relations which may exist between it and him. If, therefore, he enters into the agreement from some motives of personal gratification, or with the design of making some particular use of the subject-matter, or for some special object which cannot be represented by money, it is plain that with respect to these features and incidents of the contract, the law does not assume to give him a remedy. His interests can only be satisfied by an actual fulfillment of the stipulations which have been made for his benefit; for example, by an actual conveyance of the land or chattel which he has purchased.(1) If money were in all

(1) Harnitt v. Yielding, 2 Sch. & Lef. 549, 553, 554; Adderley v. Dixon, 1 S. & S. 607; Cud v. Rutter, 1 P. Wms. 570, 571; Hollis v. Edwards, 1 Vern. 159; Duff v. Fisher, 15 Cal. 375; McGarvey v. Hall, 23 Cal. 140; Kirksey v. Fike, 27 Ala.

cases a measure of the injury done by the non-fulfillment of a contract, it is evident that an exact equivalent for the wrong might always be rendered by means of damages. But money is an exact equivalent only where by money the loss sustained through the breach can be fully restored. As in a contract for the purchase of merchandise, where there is nothing to impress a peculiar value upon the identical articles, the purchaser can, with the damages which he has recovered, go into the market and buy other goods of exactly the same quality, kind and amount, and so his loss is fully compensated. In many cases, however, the ability of money to purchase an exact equivalent does not exist. One landed estate, though of precisely the same market value as another, may be entirely different in every other circumstance that makes it an object of desire. The vendee in a land contract may recover back the purchase money which he has paid, and with the damages which he thus receives he may purchase another

383; Neville v. Merchants Ins. Co., 19 Ohio, 452; Barnes v. Barnes, 65 N. C. 261; Willard v. Tayloe, 8 Wall. 557; Richmond v. Dubuque, etc. R. R., 33 Iowa, 422; Somerby v. Buntin, 118 Mass. 279; Bogan v. Daughdrill, 51 Ala. 312; Blanchard v. Detroit, etc. R. R., 31 Mich. 44. Among the contracts concerning land which are constantly enforced in equity by a decree of specific performance, are agreements to give or to renew a lease. Furnival v. Crew, 3 Atk. 83, 87; Tritton v. Foote, 2 Bro. Ch. 636; 2 Cox, 174; Burke v. Smyth, 3 Jon. & Lat. 193; Moss v. Barton, L. R. 1 Eq. 474; Buckland v. Papillon, L. R. 2 Ch. 67. But the agreement must be certain and complete. Robinson v. Kettletas. 4 Edw. Ch. 67; Whitlock v. Duffield, 1 Hoff. Ch. 110. For cases where the specific enforcement of such agreements has been refused for different reasons, see Myers v. Forbes, 24 Md. 598; Gelston v. Sigmund, 27 Md. 334; McKibbin v. Brown, 1 McCarter, 13; Hopkins v. Gilman, 22 Wisc. 476. In relation to the enforcement of contracts for mortgages, see DePierres v. Thorn, 4 Bosw. 266; City, etc., Ins. Co. v. Olmsted, 33 Conn. 476; St. Paul Division v. Brown, 11 Minn. 356; McClintock v. Laing, 22 Mich. 212; Ashton v. Corrigan, L. R. 13 Eq. 76; Hermann v. Hodges, L. R. 16 Eq. 18. If the party defendant is within the jurisdiction, so as to be reached by process, a court of equity will decree the specific performance of a contract concerning land situated in andther country or state, since the decree is in personam and not in rem. Earl of Athol v. Earl Derby, 1 Ch. Cas. 221; Toller v. Carteret, 2 Vern. 495; Penn v. Lord Baltimore, 1 Ves. Sen. 444; Portlarlington v. Soulby, 3 Myl. & K. 104; Archer v. Preston, 1 Eq. Cas. Abr. 133; 1 Vern. 77; Massie v. Watts, 6 Cranch, 148, 158; Sutphen v. Fowler, 9 Paige, 280; Myres v. DeMier, 4 Daly, 343; DeKyln v. Watkins, 3 Sandf. Ch. 185; Shattuck v. Cassidy, 3 Edw. Ch. 152; Mead v. Merritt, 2 Paige, 402; Pingree v. Coffin, 12 Gray, 288; Brown v. Desmond, 100 Mass. 269; Davis v. Parker, 14 Allen, 94; Guerrant v. Fowler, 1 Hen. & Munf. 4. For certain limitations upon this doctrine, see Morris v. Remington, 1 Parsons Eq. 387; Blount v. Blount, 1 Hawks, 365; Penn v. Hayward, 14 Ohio St. 302; Waterhouse v. Stansfield, 9 Hare, 234. Specific performance .may be decreed and title vested where the land is within the state, although the vendor is out of the jurisdiction. Rourke v. McLaughlin, 38 Cal. 196; Matteson v. Scofield, 27 Wisc. 671.