BELONG TO CONTRACTS IN ORDER THAT THEY MAY BE SPECIFI- SECTION 51. I purpose, in the present chapter, to examine, in an exhaustive manner, those elements inhering in the very contract itself, and those incidents connected with its formation, all of which, taken together, determine whether the remedy of specific performance can be granted. This discussion does not embrace the acts or omissions of the parties subsequent to entering into the agreement which affect the right to relief, such as the performance or non-performance of conditions precedent, delay when time is or is not of the essence, and the like, nor the proceedings connected with the suit and the settling the decree; but the inquiry is confined to the essential features of the contract, and to the acts and omissions of the parties during the preliminary negotiations, or during the process of formulating their mutual assent, which may impart a special character to the resulting compact. Upon these essential features and this preliminary conduct depends the right to the equitable remedy. The examination of these elements and incidents will be facilitated by arranging them, according to a natural division, into four (4) distinct classes, namely: First. Those which pertain to the external form of the agreement, and the manner of expressing its various terms, and which, in analogy to the common-law requisites, relate to the very existence of a binding contract. Second. Those which do not involve the validity of the contract, but directly affect the equitable remedy on the principle that he who seeks equity must do equity. Third. Incidents connected with the preliminary conduct of the parties, which involve the validity of the contract in equity. and, therefore, affect the equitable remedy. Fourth. Those features and incidents waich relate to the actual enforcement of the decree, and require that a specific performance should be practicable. FIRST. Those features which pertain to the external form of the agreement, and the manner of expressing its various terms, and which, in analogy to the common-law requisites, relate to the very existence of a binding contract. SECTION 52. As the very basis of the remedy of specific performance, there must, in general, be a valid and binding contract. Even those special instances where equity will give relief, although no action at law can be maintained, are not, in substance, departures from the principle. In the case of verbal contracts, remediless at law under the statute of frauds, but which equity will enforce when sufficiently part performed, there must still be a perfect and certain agreement; a complete assent of the parties, which would be binding, were it not for the statute. In the cases where an action at law would fail because the plaintiff has not fully performed all of the terms on his part, but where equity, regarding these terms as not of the essence, will grant its remedy, there must originally have been a contract legally valid. And even in those very rare and exceptional cases, where no legal action can be maintained because the stipulations are provisional, and contemplate some further undertakings in order to completely express and carry out the intentions of the parties, equity interferes to execute the agreement only when its terms are so explicit, clear, and certain that a refusal to perform them would be unconscientious. The particular matters, therefore, embraced under the foregoing division, belong rather to the general doctrine of contracts than to the special subject of specific performance; they directly answer the question: What is a valid and binding contract which may be enforced by any remedy, legal or equitable? And only indirectly the inquiry: What are the contracts to which the equitable remedy is confined? Some of the matters relate so closely to the validity of all contracts, that I shall treat of them in a very brief and cursory manner, referring the reader to the treatises upon contracts at large; others have so practical and intimate a connection with the remedy of specific performance, that their discussion will be thorough and exhaustive. The features of the contract included within the first class, as above mentioned, are: The capacity of the parties to contract; the consideration; the conclusion of the contract; its completeness; its certainty; its mutuality. SECTION I. The parties must have the capacity to contract. SECTION 53. Both the parties must have the legal capacity to contract. The defendant may always set up his own want of such capacity as a defense; and by virtue of the doctrine that the remedial right must be mutual-which will be discussed in a subsequent section-he may, also, rely upon the want of the capacity in the plaintiff. Capacity is not a right, for a right must necessarily be held by one person relatively to another person or persons, and always implies corresponding duties resting upon that person or collection of persons. Capacity is not thus, in its essential nature, relative, and does not involve the existence of corresponding duties. Legal capacity is the power residing in a person of acquiring, holding, and transferring legal rights, or of becoming subjected to legal duties. Capacity to contract is, therefore, the legal power residing in a person of acquiring rights, or of becoming subjected to duties, by means of a contract to which he is one of the parties. The existence of such capacity is the general rule, and the cases where incapacity is complete and absolute are plainly few and infrequent. The common-law disabilities of married women, modified in the first place by courts of equity, have been, to a much greater extent, removed by modern legislation in most of the American states. The incapacity of infants is partial only, while that of lunatics and persons of unsound mind depends upon the mental condition, and disappears entirely during lucid intervals. The incapacity to contract should be carefully distinguished from what is" often, but most improperly, called the incapacity to execute a contract. In the condition indicated by the latter expression, there is no incapacity, but only an inability or impossibility, arising from the special circumstances. When a person has agreed to sell a certain farm which he does not own, or which he has conveyed to another person in good faith, he cannot perform his contract, not because of any incapacity residing in him to convey land, but because of his inability to convey that particular land resulting from his want of title. The capacity or incapacity of a party to contract must be referred to the act of making the agreement, and be judged of at that time; the inability of a party to perform must be referred to the time of execution. SEC. 54. The ordinary instances of legal incapacity to contract arising from marriage, infancy, lunacy, unsoundness of mind, and the like, have no peculiar effect upon the equitable remedy different from that produced upon the legal action for a pecuniary judgment. Their discussion properly belongs to a treatise upon the Law of Contracts, and will be entirely omitted in the present work. I shall confine myself to the capacity of married women, conferred by recent legislation, to contract with reference to their separate estates; and to the incapacity of corporations with reference to contracts ultra vires. SEC. 55. The existing statutes of the several states concerning married women, so far as they have abolished the common-law rules and disabilities, are of two distinct types. The general intent of the first class is to place the wife, with respect to her own property, in exactly the same legal position which a single woman or a married man occupies. All the real and personal property which she owned before marriage, and all that she acquires during the marriage by gift, grant, purchase, devise, etc.-and, in most of the states, all that she obtains. as earnings or by her services-is her own separate property, free from all right and interest of her husband; she possesses the sole power to manage it; may sell or convey it, or any part of it, without the consent or joinder of her husband; and may make any contracts in relation to it in the same manner, and to the same extent, and with like effect, as though she were single; or, as it is expressed in several states, "as a married man may in relation to his real and personal property."(1) In some of the statutes, however, which fairly belong to this class, since they permit the wife to "sell and convey" her property without the consent or joinder of her husband, the provision empowering her to make all contracts in relation to her property, is omitted. (2) In the second class, the property of a married woman is, also, declared to be her separate property, free from any interest or control of her husband, and not liable for his debts, but the statutes contain no provision expressly empowering her to make contracts, and (1) Laws of New York, 1860, ch. 90, §§ 1-3, 7, 8; ib. 1862, ch. 172, §§ 1-4. California-Civ. Code, §§ 162, et seq. Illinois-Gen. Stat. (Gross), v. 3, p. 229, §§ 6, 9 (passed in 1874); ib. v. 1, p. 439, § 2. Iowa-Rev. Code (1873), p. 396, § 2202; p. 398, § 2213. Kansas-Gen. Stat. (1868), p. 563, § 2. Massachusetts— R. S. (1873), p. 537, §§ 1, 3, 5; also Laws of 1874, ch. 184, § 1 (Supp. to R. S., v. 2, p. 132). Michigan-Comp. Laws (1871), v. 2, p. 1477, § 1. Nebraska-Gen. Stat. (1873), p. 465, §§ 1, 4; p. 880, § 42. New Hampshire-Gen. Stat. (1867), p. 337, § 1; p. 338, §§ 5, 13. (No express power is given to the wife to convey her real estate, but she has the same rights and remedies, may sue and be sued in law and equity upon any contract made by her, as though she were single; wives of aliens, etc., living apart from their husbands, may contract, convey, etc.). Wisconsin-R. S. (1871), p. 1195, §§ 1-3. (2) Maine-R. S. (1871), p. 491, § 1. Wisconsin-R. S. (1871), p. 1195, §§ 1-3. the husband must join in all contracts relating to or conveyances of her land, or give his assent thereto. In several of the states, whose legislation belongs to this class, the wife is clothed with the full power of a single woman while she is living separate from her husband, or while he is insane, or imprisoned in a state prison.(1) SEC. 56. Contracts ultra vires of corporations.-Analogous to the legal capacity of natural persons to make valid agreements is the legal power of corporations-often called artificial persons-to enter into contracts which shall create rights and duties enforceable at law or in equity. Any discussion of the powers of corporations is, of course, wholly beyond the scope of this treatise; and I shall simply state the general principles which determine the validity and govern the enforcement of corporate contracts. The fundamental doctrine is now settled, both in Great Britain and in the United States, that all civil corporations, private or municipal, are capable of binding themselves by any contract, except when the statutes by which they are created or regulated expressly, or by necessary implication, prohibit such contract. Or, to state the same proposition in an affirmative manner, corporations possess all those powers which are expressly conferred upon them by the acts of incorporation, and all those additional powers (sometimes denominated incidental), which are reasonably necessary for the purpose of carrying into effect the powers expressly granted, and of thus attaining the objects of their creation, and they possess no others. (2) The same fundamental principle con (1) Alabama-Code (1867), § 2373. Florida-Bush's Dig., p. 580, § 4. Kentucky-R. S. (Stanton's), v. 2, p. 12, § 14 (if husband abandons his wife or is imprisoned more than a year, she may make contracts, etc.). Maryland-Code, v. 1, p. 325, § 1, p. 326 (her earnings she can sell, invest, and dispose of as a single woman). Minnesota-Stat. at Large (1873), v. 1, p. 702, §§ 47, 48. New Jersey-Nixon's Dig. (4th ed.), p. 548, § 12; p. 549, § 18 (when husband is lunatic, etc., or imprisoned, or they are living separate under a judicial decree, wife can contract or convey, but even then cannot cut off any interest which he may have). Oregon-Gen. Laws (1872), pp. 25, 663. Ohio-R. S. Supp., pp. 389-391. Pennsylvania-Brightley's Purdon's Dig., v. 2, p. 1005, § 13. Rhode Island-Gen. Stat. (1872), p. 329, §§ 1, 7; R. S., p. 314, §§ 1, 3 (wife living apart from her husband may sell, convey, etc.). Tennessee-Stat. (1871), §§ 2486a-2486f (when wife lives apart, or husband is insane, etc., she can dispose or convey as a feme sole). Vermont-Gen. Stat. (1862), p. 471, § 18. (2) Colman v. Easton Counties R'y Co., 10 Beav. 1, per Lord LANGDALE; Bagshaw v. Eastern Union R'y Co., 7 Har. 114, per WIGRAM, V. C.; Shrewsbury, etc., R'y Co. v. London, etc., R'y Co., 22 L. J. Ch. 682, per TURNER, L. J.; South Yorkshire, etc., Co. v. Great Northern R'y Co., 9 Exch. 55, 84, per PARKE, B.; East Anglian R'y Co. v. Eastern Co. R'y Co., 11 C. B. 775, per JERVIS, C. J. Eastern Co. R'y Co. v. Hawkes, 5 H. L. Cas. 348, per Lord CRANWORTH; Scottish ; |