Bedford, who claimed under Lady Rachel Russell, for an injunction to restrain the defendants, who claimed under Mr. Montagu, from using the land in a way at variance with the covenants of the deed of 1675, Plumer, M. R., and Lord Eldon held that the duke or his predecessors having altered the state of the property in the way mentioned, it would be inequitable, unreasonable and unjust, thus to enforce the covenants specifically, and the plaintiff was left to his remedy at law. (m)' And so, long acquiescence in a variation from the mode of renewal, pointed out by a covenant for that purpose, has been held a reason for not specifically enforcing the covenant in its original terms.(n) § 404. Where the conduct of the plaintiff subsequent to the contract has led the defendant into a trap, though the plaintiff's conduct may have been unintentionally injurious, the court will refuse specific performance. Thus, in one case, the contract for sale of leaseholds liable to a covenant to insure stipulated that the contract should be completed on the 20th July; the insurance expired on the 24th June; one of the vendors renewed for a month only, to the 24th July; the contract in fact was not completed before the 26th August, when the parties met for that purpose, and it was discovered that the insurance had expired and the leaseholds had become liable to forfeiture; and the purchaser refused to complete. Kindersley, V. C., held that the property was at the risk of the purchaser; but as the vendors' conduct had operated as a trap to the purchaser, he refused specific performance. (0) § 405. It would seem that, in considering the hardship which may flow from the execution of a contract, the court will consider whether it is a result obviously flowing from the terms of the contract, so that it must have been present at the time of the contract to the minds of the contracting parties, or whether it arises from something collateral, and so far concealed and latent, as that it might not have been (m) See per Knight Bruce, L J., in Shrews- (n) Davis v. Hone, 2 Sch. & Lef., 341. bury and Birmingham_Railway Co. v stour (0) Dowson v. Solomon, 1 Dr. & Sm., 1. Valley Railway Co., 2 De G. M. & G, 882. Low v. Treadwell, 12 Me., 441; Brashier v. Gratz, 6 Wheat., 528; Me chanics' Bank v. Lynn, 1 Pet., 383; Taylor v. Longworth, 14 id., 173; Willard v. Taylor, 8 Wall., 537; Marble Co. v. Ripley, 10 id., 330. Where the subsequent changed circumstances were caused by the plaintiff's wrongful acts, this will be a ground for refusing specific performance. Stone v. Pratt, 25 Ill., 25. thus present to their minds. (p) It is obvious that a far higher degree of hardship must be present in the former, than in the latter class of cases, for it to operate on the discretion of the court.' § 406. The cases which have been already quoted as showing that the hardship must be judged of at the time of the contract also illustrate another obvious principle, namely, that where the hardship has been brought upon the defendant by himself, it shall not be allowed to furnish any defense against the specific performance of the contract, (q) at least whenever the thing he has contracted to do is "reasonably possible."(r) § 407. It will not constitute a case of hardship that the ultimate object which a party had in view in entering into a contract may have become impossible; the mere failure of the purchaser's speculation will not discharge him from his obligations to the vendor. Thus, where one person contracted with another for the purchase of a piece of land on which he intended to erect a mill, for which the consent of a corporation was requisite, the refusal to give this consent furnished no defense to the purchaser, although he had, in consequence of the object he had in view, given a very high price for the ground. (s) And so also the fact that a mine which the defendant had contracted to take for £1,400 turned out literally worth nothing was held to be no defense to a suit for specific performance of the contract.(t) § 408. In cases against companies, the court will not consider the hardship which may result to the individual members from enforcing a contract made by the whole body; for "the court cannot recognize any party interested in the corporation, but must look to the rights and liabili (p) See e. g cases stated, § 409. (9) See per Lord Hardwicke in Pembroke v. Thorpe, 3 Sw., 443 n (r) Per Knight Bruce, V. C. in Storer v. Great Western Railway Co., 2 Y. & G. C. C., 52. (8) Adams v. Weare, 1 Bro. C C., 567; Morley v. Clavering, 29 Beav, 84; per Turner, V. C, in Webb v. Direct London and Portsmouth Railway Co., 9 Ha., 140; per Lord Romilly, M. R, in Lord James Stuart v. London and North-Western Railway Co., 15 Beav., 523 (as to these last two cases see infra, § 965). Distinguish Bray v. Briggs, 20 W. R., 962. (t) Haywood v. Cope, 25 Beav., 140. 1 The mere naked hardship of a contract is not in itself a valid objection to its enforcement in equity, in a case where the contract is otherwise equitably entitled to be specifically enforced. Morrison v. Pray, 21 Ark., 110; Coke v. Bishop, 3 Swanst., 401; Chubb v. Peckham, 13 N. J. Eq, 207; Corson v. Mulvany, 49 Pa. St., 88; Low v. Treadwell, 12 Me., 441; Eames v. Eames, 16 Mich., 348; Lee v. Kirby, 104 Mass., 420; Addington v. McDonald, 63 N. C., 389; Morgan v. Scott, 26 Pa. St, 51; Nims v. Vaughn, 40 Mich., 356. ties of the corporation itself;"(u) and though, as we have seen, (v) the decision of the case in which this language was used by Lord Cottenham has been disapproved of in the House of Lords, this principle seems to be untouched, and to rest on solid reasoning. § 409. If the execution of the contract would render the defendant liable to a forfeiture, the court will regard this as a circumstance of hardship; so where a man was entitled to a small estate under his father's will, on condition that, if he sold it within twenty-five years, half the purchase money should go to a brother; the owner agreed to sell it, but Lord Hardwicke held that the hardship was sufficient to determine the court not to interfere. (w) So where a lessee sold certain lots of building ground, and agreed to make a road, which it was found he could not do without incurring the risk of forfeiting a piece of leasehold land through which it was to pass, or of being sued by the lessor, the court, granting the purchaser specific performance of the contract for sale, refused to enforce this stipulation, but gave him compensation for the non-performance of it.(x)' § 410. But the court will give no effect to this defense unless it clearly appear that the forfeiture will follow on the judgment for specific performance. The mere apprehension of such a result is not enough. Nor will the court give much, if any, consideration to this defense where the forfeiture is the result of other acts of the defendant himself. So where a lessee of a theatre, having, by his lease, power to lease forty-one boxes, agreed to let a box to the plaintiff, and in defense alleged that he had already let forty-one boxes, so that to perform his contract with the plaintiff would work a forfeiture, his defense failed. (y) (u) Per Lord Cottenham in Edwards v. Grand Junction Railway Co, 1 My & Cr., 674; Hawkes v. Eastern Counties Railway Co., 1 De G. M. & G., 737, 754; ct. supra, $394. (v) See supra, § 234. 307. (w) Faine v. Brown, cited 2 Ves Sen, Forfeiture.] A contract of sale provided that if the vendee failed to make his payments at the time agreed upon, "strictly and literally, without any default, the contract shall become void, and the rights and interests thereby created cease and determine, and the property revert to, and revest in, the vendor, without any declaration of forfeiture or act of re-entry, or without any right on the part of the vendee of reclamation or compensation. Held, that where the notes given for the purchase money were not paid, it was competent for the vendor to declare a forfeiture without offering to return the notes. Phelps v. Illinois Cent. R. R. Co., 63 Ill., 463. § 411. To this head of hardship we may, perhaps, best refer the cases which establish that, where the vendor is liable to certain covenants, and has not expressly stipulated that the purchaser shall indemnify him against them, yet the purchaser, so soon as he has notice of them, whether by the particulars of sale (z) or subsequently to the contract, (a) is bound to elect either to rescind the contract or to execute an indemnity to the vendor; for otherwise the vendor would lose his land but retain his liability in respect of it. In the earlier of the cases cited, it was only decided that the purchaser as plaintiff could not enforce specific performance without entering into such indemnity; but, in the latter, that the vendor as plaintiff might put the purchaser to his election. § 412. In one case where trustees had joined their cestuis que trust in a contract for sale, and had personally agreed to exonerate the estate from the incumbrances, and it did not appear whether the purchase-money would be sufficient to discharge them, or what would be the extent of the deficiency, the court refused specific performance on the ground of hardship, although the plaintiff had had possession of the estate, and could not be deprived of the benefit of his contract without great inconvenience. (b) In another case a mortgagee with power of sale had obtained a foreclosure decree, and, intending to sell as absolute owner, entered into a contract for sale to the plaintiff. In the contract there was copied, by inadvertence, from conditions of sale of other parts of the estate drawn up some time before, a clause stating the vendor to be a mortgagee with power of sale; the vendor offered to convey as owner under the foreclosure decree; the purchaser insisted on a title under the power of sale; but the court held that, to impose on the vendor the risk of opening the foreclosure decree by such a sale, was a hardship which it would not put on him, and accordingly dismissed the bill unless the plaintiff would accept the conveyance which the defendant was ready to execute.(c) § 413. But where a tenant for life had agreed to grant a (z) Moxhay v. Inderwick, 1 De G. & Sm., 708. (a) Lukey v. Higgs, 24 L. J. Ch., 495 (Kindersley, V. C.). (b) Wedgwood v. Adams, 6 Beav, 600. mining lease, and to a bill by the intended lessee he objected that he was only tenant for life, and that he could not grant the lease in question under his power, and that he should be accountable for waste, Lord Nottingham appears to have considered this to be no defense, and he decreed the defendant to execute the contract so far as he was capable of doing. (d) § 414. In one case Lord Hardwicke, on the ground of hardship, refused specific performance of a covenant to leave buildings in repair contained in an ecclesiastical lease, the fact of the description of the buildings being continued from lease to lease without variation showing that the buildings in question might not have been in being at the time of the making of the lease. (e) And where a lessee of mines covenanted that if at any time before the expiration of the lease, the lessor should give notice of his desire to take the machinery and stock about the mines, the lessee would at the expiration of the lease deliver the articles specified in the notice to the lessor, on his paying the value, to be ascertained by valuation, the court held the covenant thus framed. to be so injurious and oppressive to the lessee that it refused specific performance, and would not interfere to prevent a breach by injunction. (f) Again, where A., in consideration of B.'s not joining in barring an entail, agreed to convey to him, his heirs or assigns, the fee of such parts of the estates, which were situate in three counties, as he or they should choose, to the yearly value of £200; the inconvenience and hardship to which such an option might expose the party who had granted it was one ground on which specific performance was refused by the House of Lords. (g) In another case the court refused to enforce a contract for service by which a young man placed himself almost entirely in the power of certain great traders, by whom he was employed as traveler and clerk.() § 415. Where a contract, if enforced, would make a man buy what he could not enjoy, the court will, on the ground of hardship, refuse to interfere, as in the case of a contract (d) Cleaton v. Gower, Finch, 164; but see the cases stated supra, § 385 et seq. (e) Dean of Ely v. Stewart, 2 Atk, 44. (f) Talbot v. Ford, 13 Sim., 173. (g) Hamilton v. Grant, 3 Dow, 33, 47. (h) Kimberley v. Jennings, 6 Sim., 340; this case has been overruled, but on another point, by Lumley v. Wagner, 1 De G. M. & G., 604. |