in his will, to be settled on her and her children, the disposition of which, supposing she had no children, to be prescribed by the will of her father." This was held to create an obligation. These proposals were made subject to revision; but it was held that that power was determined by their acceptance by the intended husband, and the marriage with the father's consent. This decision of Lord Langdale, M. R., was affirmed by Lord Cottenham, (k) and afterwards by the House of Lords. (7)

§ 313. In Montgomery v. Reilly, (m) the eldest son came into estates, subject to a jointure to his mother and portions to his brothers and sisters, and carried on a correspondence with a friend of the family with a view to the increase of these charges, and ordered the payment of the increased jointure and interest on the increased portions. On the faith of a representation made on the strength of these acts by the family friend, a daughter married; the interest on the increased portion was continued to be paid to the daughter, and the agent's accounts in which these payments were stated passed; and the eldest son took possession of some property under the arrangement with his brothers and sisters, to which he would not otherwise have been entitled. The House of Lords decided that there was a contract binding on the eldest brother, and specifically enforced it.

§ 314. In Prole v. Soady, (n) the court, notwithstanding a considerable conflict of evidence, came to the ccnclusion that previously to and in contemplation of the marriage of the plaintiff's father and mother, the natural father of the lady had represented to the intended husband and to other persons that a certain estate of his in Scotland and a sum of 105,000 sicca rupees were settled by him as a provision for his daughter and her children, and that the marriage was contracted in a confidence in that representation. It was part of the defendant's case that at the date of the marriage there was an existing testamentary settlement of the property in question in favor of the lady; but the court held that such an instrument, if it existed, was made irrevocable by the representations of the father, and it gave the plaintiff relief on the ground of the representation made.

(k) 12 Cl. & Fin., 61, n.

(7) 12 Cl. & Fin.; 46 sub nom. Hammersley v. 62. De Biel.

(m) 1 Bli. (N. S.), 364; S. C., 1 Dow (N. S.), (n) 2 Giff., 1.

And in a later case the same judge (Stuart, V. C.) held that a gift made by a codicil in pursuance of a promise by an uncle to his niece, on the faith of which she altered her position in life and continued to act as his caretaker, became irrevocable by force of the promise and conduct. (0) In Coverdale v. Eastwood (p) the contract was contained in letters, and the only serious question was one of construction.

$315. The representations need not be made by the persons most immediately interested in the marriage treaty. In one case a legatee on his marriage assigned part of his legacy to the trustees of his settlement, and covenanted to pay the amount by installments. It was proved that the marriage was contracted, and the settlement made on the faith of representations by the executor that the legacy was substantial and safe and would be paid though at a future time. The estate of the testator proving insufficient to pay the legacies, it was held that, by force of the representations, the estate of the executor was liable for the amount of the legacy.(q).

§ 316. The doctrine in question seems to have been carried to its fullest limits in the case of Piggott v. Stratton. (r) The defendant Stratton was lessee for a long term of plots A, B, and C. The lease contained a covenant that any new houses should be detached and separated from one another by an open space of not less than thirty feet. Plot C lay between B and the sea. The defendant Harbour, under whom the plaintiff claimed as assign, negotiated with Stratton for an under-lease of part of B, and Stratton in answer to a question stated that he could not build closer than thirty feet because the lease forbad him, and Harbour swore that thereupon he was induced to take the land, and further that in order to satisfy himself he asked for and was shown a draft of the lease. An under-lease was executed containing covenants referring to the original lease. The original lease was surrendered, and a new lease granted with different covenants, and Stratton the lessee proposed to build so as not to leave the thirty feet space. Lord Hatherley (then Wood, V. C.) held that the covenants in the under-lease did

(0) Loffus v. Maw, 3 Giff., 592; see Alderson v. Maddison, 5 Ex. D., 293, 300; reversed in C. A., W. N., 1881, p. 68.

(p) L. R. 15 Eq., 121.

(9) Hutton v. Rossiter, 7 De G. M. & G., 9. (r) Johns., 814; S. C., i De G. F. & J., 33.

not restrain this conduct, but that the representation did. He held it equivalent to a representation that the lease was an instrument by which the property was secured to the purchaser in a course of enjoyment, and that to permit him to alter that course would be to permit him to derogate from his own grant. Lord Campbell and Turner, L. J., held that the defendant was bound both by his covenants in his under-lease and by his representation. Knight Bruce, L. J., held that he was bound by his covenants, but declined to give any opinion on the other point. It will not escape notice that in this case the only representation made was one of an existing fact, viz.: the existence of the lease, that there was no statement that the state of things should continue, or that the lease should not be surrendered or allowed to drop, and that to infer from the existence of a lease that it should never be surrendered, seems, in the absence of express contract, a somewhat strong inference. The case is, however, one of the highest authority.

CHAPTER III.

OF THE INCOMPLETENESS OF THE CONTRACT.

§ 317. "Nothing is more established in this court," said Lord Hardwicke, (a) speaking of contracts which the court will enforce, "than that every agreement of this kind ought to be certain, fair and just in all its parts. If any of those ingredients are wanting in the case, this court will not decree a specific performance.' "I lay it down as a general proposition," said Lord Rosslyn, (b) "to which I know no limitation, that all agreements, in order to be executed in this court, must be certain and defined; secondly, they must be equal and fair; for this court, unless they are fair, will not execute them; and thirdly, they must be proved in such manner as the law requires.'

991

§ 318. In regard to objections founded on the want of any of these qualities in the contract, or on the incapacity of the court to perform the contract, or its illegality, the court is, from obvious motives of justice, somewhat unwilling to entertain the objection, when it is made after part performance, from which the defendant has derived benefits, and the plaintiff cannot be fully recompensed except by the performance of the contract in specie.(c) When a contract has been partly executed by possession having been taken under it, the court, it has been said, "will strain its power to enforce a complete performance."(d)'

(a) In Buxton v. Lister, 3 Atk., 386. See infra, § 488

(b) In Lord Walpole v. Lord Orford, 3 Ves., 420; accordingly, Underwood v. Hithcox, 1

Ves. Sen., 279; Franks v. Martin, 1 Eden, 309. (c) See §§ 83, 459.

(d) Parker v. Taswell, 2 De G. & J., 559, 571.

1 Upon an application to a court of chancery for a decree of specific performance, in order to merit the interposition of its powers, the agreement must be found to be fair and equitable, certain and consistent with public policy, free from fraud or surprise, not voluntary, and just in all its parts, or at least tend to produce a just end. Griffith v. Frederick County Bank, 6. Gill & J., 424; Seymour v. Delancey, 3 Cow., 445; Modisett v. Johnson, 2 Blackf., 431; Millard v. Ramsdell, Harring. Ch., 373; Ohio v. Baum, 6 Ham., 383. Unless the evidence offered in support of a contract be fully sufficient and ample, a court of equity will not exercise its jurisdiction to enforce it. Colson v. Thompson, 2 Wheat., 336.

• Negotiation.] When any part of an agreement remains to be settled by

§ 319. The qualities of completeness, certainty and fairness, which will be now considered, will in great part be best explained by showing cases in which they have been considered as being wanting. The qualities of completeness and certainty are not perhaps truly separable; but under the former those cases will be rather considered where there is the absolute want of some term in the contract; under the latter head of certainty, those where it is not the entire want of the term, but the want of sufficient exactitude in it, which has furnished a defense to a specific performance. (e)1

§ 320. It is evident that incompleteness may be in the contract itself-in which case there is properly speaking no contract, or in the evidence-in which case there is no sufficient memorandum. But nevertheless it seems not inconvenient to consider these defects together.

§ 321. The time at which the completeness of the contract is to be ascertained was the filing of the bill, and is now the commencement of the action; so that it was not sufficient for the purpose of obtaining an immediate decree, to prove that the consent of a tenant for life, which was essential to the contract, was given before the hearing. (f) It is an obvious principle of justice, that the adoption of a contract by a third party shall not so relate back as to subject a party to legal proceedings in respect of its non-performance, the non-performance having at the time been justifiable.(g)

§ 322. To this principle there are some exceptions, or

(e) See, also, the cases stated infra, § 488.
(f) Adams v. Brooks, 1 Y. & C. C. C., 627.
(9) Right v. Cuthell, 5 East, 491; Doe d.

Mann v. Waiters, 10 B. & C., 626; Doe d'
Lyster v. Goldwin, 2 Q. B., 143.

negotiation, it is incomplete. Potts v. Whitehead, 20 N. J. Eq., 55; Myers v. Forbes, 24 Md., 598.

Incomplete contract.] Where a contract is incomplete, specific performance of it will not be decreed if that objection is raised. Hopkins v. Gilman, 22 Wis., 476; Madox v. McQueen, 3 A. K. Marsh., 400; Ohio v. Baum, 6 Ohio, 383; Southern Ins. Co. v. Cole, 4 Fla., 359; Hammer v. Eldowny, 46 Pa. St., 334; McKibbin v. Brown, 14 N. J. Eq., 13; Neville v. Merchants' Ins. Co., 19 Ohio, 452; Johnson v. Johnson, 16 Minn., 512.

Contract incomplete as to time.] Where the contract does not specify the time when it is to be performed, or fix the same, it is too incomplete to be enforced at equity. Time being included in the terms, may become of the essence of the contract. Potts v. Whitehead, 20 N. J. Eq., 55; Williams v. Stewart, 25 Minn., 516; Baker v. Glass, 6 Munf., 212; Hoff v. Shepherd, 58 Mo., 242; Wiley v. Roberts, 31 id., 212; see, however, Friebert v. Burgess, 11 Md., 452. 1 Contract must be completely determined.] In order that a party shall be entitled to a decree for the specific performance of a contract, such contract must have been completely determined, and its terms definitely ascertained. Brown v. Brown, 33 N. J. Eq., 650.