ant was to do certain specified works, and "other works upon the property, at a total estimated cost of about £150, and the specified work were such as would evidently cost nearly that sum, the court considered the "other works" to be of such a trifling description that their being left undefined was not a ground for refusing specific performance.(j)

§ 364. On the ground of uncertainty, the court has refused specifically to perform marriage articles prepared by a Jewish rabbi in an obscure form, said to prevail amongst German Jews; (k) also, a contract for the sale of land, where there was a doubt as to the identification of a plan to be incorporated into the contract. (2) In another case the court refused to interfere in respect of an engagement by the defendant, Mr. Kean, to perform at a theatre. (m) "Independently of the difficulty of compelling a man to act," said Shadwell, V. C., "there is no time stated, and it is not stated in what character he shall act; and the thing is altogether so loose that it is perfectly impossible for the court to determine upon what scheme of things Mr. Kean shall perform his agreement."(n)' And where a vendor had agreed to sell an estate with a reservation of "the necessary land for making a railway through the estate to Prince Town," Jessel, M. R., held that the contract could not be enforced by the purchaser. (0)

§ 365. So, again, where the contract is discrepant with itself, or there are two different contracts relating to the same subject-matter, the court will generally refuse specific performance.(p) In a case, (q) where an offer was made to

See Sanquirico v. Benedetti, 1 Barb. Sup. Ct. Rep., 315. In Hamblin v. Dinneford, 2 Edw. Ch., 529, where a theatrical performer had contracted to perform at one theatre, and at no other, the court refused to restrain him from performing at another theatre in violation of his agreement. Cases of this nature come strictly under the head of contracts to do personal acts; and although no line of distinction between contracts relating to property and agreements for personal services can be established to be of general utility, yet, where the contract has been strictly one to perform acts alone, there are but few cases in which they have been actively enforced. See Kemble v. Kean, 6 Sim., 333. In Sanquirico v. Benedetti, 1 Barb. Sup. Ct. Rep., 315, Edwards, J.,

take a house for a specific term and at a certain rent, if put into thorough repair, and stating also that the drawing rooms would be required to be handsomely decorated according to the present style, and making some further requirements as to painting, and the offer was accepted, the court of appeal in chancery, reversing the decision of Lord Romilly, M. R., dismissed the bill on the ground of the uncertainty imported into the contract by the expressions in the offer as to repairs. Where a contract was for the purchase of "the land required" for the construction of a railway, at so much per acre, and the contract contained provisions agreed on between the land agents of the company and the vendor as to roads, culverts, etc., etc., Lord Romilly, M. R. (following the decision of Turner, V. C., in Webb v. Direct London and Portsmouth Railway Co.,[r] then unreversed), held that a surveyor going upon the ground, and having the contract in his hand, could accurately ascertain the land to be taken, and that the terms of

(r) 9 Ha., 129; 1 De G. M. & G., 521.

said, "Although there may be cases in which a court of equity will deeree specific performance of a contract for personal services, still this is not one of that character. The difficulty, if not the utter impracticability, of compelling a specific performance of the contract set forth in the bill, is a conclusive reason why this court should refuse its interference." Walworth, Ch., in De Rivafinoli v. Corsetti, 4 Paige, 270, in representing the difficulties attendant upon the enforcing of contracts of this nature, says, "I am not aware that any officer of this court has that perfect knowledge of the Italian language, or possesses that exquisite sensibility in the auricular nerve which is necessary to understand, and to enjoy with a proper zest, the peculiar beauties of the Italian opera, so fascinating to the fashionable world. There might be some difficulty, therefore, even if the defendant was compelled to sing under the direction and in the presence of a master in chancery, in ascertaining whether he performed his engagement according to the spirit and intent. It would also be very difficult for the master to determine what effect coercion might produce upon the defendant's singing, especially in the livelier airs; although the fear of imprisonment would unquestionably deepen his seriousnessness in the graver parts of the drama. There are cases, however, where the court has interfered negatively, but they have been in the nature of a partnership. Thus, in the case of a theatre considered as a partnership, a contract with the proprietors not to write dramatic pieces for any other theatre is valid, and a violation of it will be restrained by injunction. As was intimated by Lord Eldon in that case, it is not unreasonable that an actor and a writer for the stage should engage for the talents of each other; and that neither should write or act but for the theatre in which they are jointly interested." Willard's Eq. Jur., 277. But this partnership must exist between the parties; and, if there be none, "and the defendant has violated his engagement to one theatre, and formed a conflicting engagement with another, a court of equity will not interfere either actively, to compel performance of one contract, or negatively, to prevent the performance of the other." See the cases of Morris v. Coleman, 18 Ves., 437; Clark v. Price, 2 Wilson, 157; Waters v. Taylor, 15 Ves., 10; Ex parte Forde, 7 id., 617; Ex parte O'Reilly, 1 id., 112; Kemble v. Kean, 6 Sim., 333.

the contract were, therefore, sufficiently explicit; but this decision was overruled on appeal, and Knight Bruce, L. J., held the language "too vague, too uncertain, too obscure to enable this court to act with safety or propriety." (s) A contract to take the mines under lands of A. at B., B. being neither a township nor a parish, has also been held uncertain. (t)

§ 366. In another case, where there was a contract in general terms for the construction of a railway according to the terms of a specification to be prepared by the engineer of the company for the time being, it was held too vague, obscure and uncertain to be enforced ;(u) the like was held in the case of a contract to give the plaintiffs accommodation for the sale of their articles in the refreshment-rooms of the defendants, and to furnish them with the necessary appliances. (v) The like was again held where one partner proposed to sell to the other his share in the business, and that a large portion of his capital should remain in the business, but the writing did not state how much, for how long, or at what interest, and this proposal was accepted. (w) And again, where on the sale of a piece of land there were stipulations that, in the event of there being any coals or ironstone under the land, a royalty of so much per ton should be paid thereon by the purchaser to the vendor, and also that any mines required to be left by a certain railway company were to be paid for, as if the same had been gotten, out of the money to be received from the railway company; it was held, with regard to the latter stipulation, that it was incapable of being worked out, inasmuch as if the company bought the mines, the contingency whether there was any coal or ironstone under the land would remain undecided; and as to the former stipulation, that the parties seemed to have intended to work it out by a reservation of mines to the vendor, and a lease of them by the vendor to the purchaser, but that there was nothing to guide the court as to the stipulations to be included in such

(8) Lord James Stuart v. London and North Western Railway Co., 15 Beav., 513; S. C., 1 De G. M & G., 721. Cf. Bellaney v. Knight, 10 W. R, 289.

(t) Lancaster v. De Trafford, 31 L. J. Ch, 551.

(u) South Wales Railway Co. v. Wythes, 5 De G. M. & J., 880.

(v) Paris Chocolate Co. v. Crystal Palace Co., 3 Sm. & Gif., 119.

(w) Cooper v. Hood, 26 Beav., 293.

a lease, except the rates of royalty: and the court accordingly declined to enforce the contract for sale. (x)

§ 367. The same certainty will not be required in cases where there is any element of fraud as in simple cases of specific performance of a contract. Thus where A. agreed with B. in effect that if B. would not try to buy a certain estate, A. would try to buy, and in case of success would cede a portion of the estate to B. at a certain price; and B. acted on his bargain and allowed A. to purchase; and A. having purchased refused to perform his part and set up the uncertainty of the part to be ceded; the court held that the defense could not avail and directed an inquiry to ascertain the portion to be given up and the price. It seems that if this could not have been ascertained, B. might have claimed the whole estate. (y)

(x) Williamson v. Wootton, 3 Drew., 210. See further as to uncertainty, Harnett v. Yielding, 2 Sch. & Lef., 549; Tatham v. Platt, 9 Ha, 660; Taylor v. Gilbertson, 2 Drew., 391; Holmes v. Eastern Counties Railway

Co., 3 K. & J., 675; Sturge v. Midland Railway Co., 6 W. R., 233; Jeffery v Stephens, id., 427; Firth v. Ridley, 33 Beav., 516, supra, § 71.

8

(y) Chattock v. Muller, 8 Ch. D, 177.

CHAPTER V.

OF THE WANT OF FAIRNESS IN THE CONTRACT.

§ 368. There are many instances in which, though there is nothing that actually amounts to fraud, there is nevertheless a want of that equality(a) and fairness in the contract which, as we have seen, are essential in order that the court may exercise its extraordinary jurisdiction in specific performance. In cases of fraud(b) the court will not only not perform a contract, but will rescind it; but there are many

(a) As to the equality which natural justice requires to find place in contract see Grotious, De Jure Belli ac Pacis, lib. ii, cap. 12, § 8, et. seq.

(b) The jurisdiction to rescind is, of course, not co fined to cases of actual fraud. See per James, L. J., in Torrance v. Bolton, L. R. 8 Ch., 124.

No rule in equity is more clearly established than that upon an application for a specific performance of a contract, the court must be satisfied that the claim is reasonable and just, and the contract equal in all its parts; if these points be not established by the complainant, he will be left to his remedy at law. Modisett v. Johnson, 2 Black., 431; Seymour v Delancey, 3 Cow., 445; Cabeen v. Gordon, 1 Hill. Ch., 51.

Agreements will also be decreed to be delivered up for cancellation upon the ground of surprise. Thus, in Willan v. Willan, 16 Ves., 72, which was a case concerning a lease with a covenant for perpetual renewal, at a fixed rent, of premises under a church, renewable upon fines continually increasing, neither party understanding the effect of their contract, the agreement was ordered to be canceled. Twining v. Morrice, 2 Bro. C C., 326, a case to the same effect, was quoted by Lord Elden, with approbation. And in America the principle there established has been received and acted upon Gillespie v. Moon, 2 John. Ch., 598; Seymour v. Delancey, 3 Cow., 445. There appears to have been a difference of opinion concerning the meaning which courts of equity attach to the word surprise, which we have just mentioned, as affording a ground of relief. See Eden, Injunc. (2d Am. ed ), 21 and 27, notes. Mr. Jeremy (2 Eq. Jur., ch. 2, p. 366) seems to suppose that there is something technical in its meaning Surprise, he says, it seems is a term for the immediate result of a certain species of mistake, upon which this court will relieve." He also says that surprise is often used as synonymous with fraud; but that "they may, perhaps, be distinguished by the circumstance, that in instances to which the term fraud is applied, an unjust design is presupposed; but that in those to which surprise is assigned, no fraudulent intention is to be presumed In the former case, one of the parties seeks to injure the other; in the latter, both of them act under an actual misconception of the law." Mr. Justice Story seems to be of the opinion, that this explanation does not render the definition of Mr. Jeremy any clearer than it was before; and he proceeds to say, that, "there does not seem anything technical or peculiar in the word surprise, as used in courts of equity. The common definition of Johnson sufficiently explains its sense. He defines it to be the act of taking unawares; the state of being taken unawares; sudden confusion or perplexity. When a court of equity relieves on the ground of surprise, it does so upon the ground that the party has been taken unawares, that he has acted without due deliberation, and under con