cordingly it has been held to be no defense on the part of a railway company for them to show that they had after the contract suffered the time during which, by their statutory powers, they could purchase the lands to expire :(0) if such a defense were sustained, it would be to allow defendants to take advantage of their own neglect. From the time of the execution of the contract being the time to judge of its mutuality it further follows, that the subsequent performance by one party to terms which could not have been enforced by the other will not prevent the objection which would arise from the presence of such terms. (p)

§ 444. The exceptions or apparent exceptions and limitations to the doctrine of mutuality may now be considered.

§ 445. (1) The contract may be of such a nature as to give to the one party a right to the performance which it does not give to the other-as for instance, where a lessor covenants to renew upon the request of his lessee:(7) or where the contract is in the nature of an undertaking. (r) But these are merely cases of conditional contracts: and when the condition has been performed, as for instance, in the case above stated, by a request to renew, the contract becomes absolute and mutual and capable of enforcement alike by either party. (s)

§ 446. In cases arising out of such contracts, the court will exercise its discretion as to specific performance with great care, and, it seems, view even somewhat narrowly the conduct of the party claiming the benefit of his unilateral right to make the contract absolute.(t)

§ 447. (2) Mutuality may be waived by the subsequent conduct of the person against whom the contract could not originally have been enforced: thus, where a purchaser contracts for an estate with a person having no title, or not such as he affects to sell, and the contract, therefore, is not mutual, for want of interest in the vendor-yet, if the pur

(0) Hawkes v. Eastern Counties Railway Co., 1 De G. M. & G., 737, 755; S. C., 5 H. L. C., 331, 365. The observations of Lord Cranworth (then L. J.) in Stuart v. London and North-Western Railway Co., 1 De G. M. & G., 721, to the contrary, may probably be taken to be overruled by his lordship's concurrence in Hawkes' Case In the House of Lords See, also, Scottish North-Eastern Railway Co. v. Stewart, 3 Macq., 382, where, however, the point really determined was one of construction.

(p) Hope v. Hope, 8 De G. M. & G.. 731, 746, overruling the observations of Lord Romilly, M. R., in S. C., 22 Beav., 364.

(9) Chesterman v. Mann, 9 Ha, 206. See Bell v. Howard, 9 Mod., 302, 304.

(r) Palmer v. Scott, 1 R & My., 391. (8) Cf. Weeding v. Weeding, 1 J. & H., 424, where a conditional contract had become absolute by the exercise of an option of purchase. Consider Alderson v. Maddison, 5 Ex. D., 293, 306 (reversed W. N., 1881, p. 68). (t) Chesterman v. Mann, 9 Ha., 206.

chaser investigate the title and make requisitions or concur in proceedings for the purpose of remedying the defect, he is afterwards precluded from setting up the original want of mutuality in the contract. (u)

§ 448. And so where, from the relation of the parties to one another, the contract is originally binding on the one and not on the other, the latter may by action waive that want of mutuality, and enforce the specific performance of the contract; as in the case of an action by a cestui que trust against his trustee for the performance of a contract for sale, such a contract being originally binding on the trustee, and not on the beneficiary. (v) The case of a contract for sale by a voluntary settler is similar, for though he is incapable of enforcing the contract against an unwilling purchaser, (2) the purchaser may waive the want of mutuality and enforce it against him.(x)

§ 449. (3) Another apparent exception to the principle in question is afforded by the doctrine which was established very soon after the passing of the Statute of Frauds, that in case of contracts which by that statute are required to be in writing, a party who has not signed the contract may enforce it against one who has. (y)'

§ 450. It has been alleged in support of this doctrine, in the first place, that the statute only requires the contract to be signed by the party to be charged therewith or his agent, and is silent as to the signature of the other party.(z) But this reasoning seems inconclusive; because the doctrine of mutuality is independent of the statute, and where one party has signed and the other has not, the rights of the

(u) Salisbury v. Hatcher, 2 Y. & C. C. C., 54; Hoggart v. Scott, 1 R & My., 293.

(v) Ex parte Lacey, 6 Ves., 625. (w) Smith v. Garland, 2 Mer., 123; Johnson v. Legard, T. & R., 281; Clarke v. Willott, L. R. 7 Ex., 313. In Peter v. Nicolls, L. R. 11 Eq., 391, Stuart, V. C., held that the rule established by Smith v. Garland did not apply to a purchaser who admitted that he was a willing purchaser, but objected to the title. See supra. § 387, and note there.

(x) Buckle v. Mitchell, 18 Ves., 100; and see Rosher v. Williams, L. R. 20 Eq., 210.

(y) Hatton v. Grey, 5 Vin. Abr., 525, pl. 4, in 36 Car. ii; S. C., 2 Cas. in Ch., 164; Buckhouse v. Crosby, 2 Eq Ca. Ab., 32, pl. 44; and see, as to the Interest of the party who has not signed, Morgan v. Holford, 1 Sm. & Giff., 101. See, too, infra, § 497.

(z) Coleman v. Upcot, 5 Vin. Abr, 527, pl. 17; Child v Comber. 3 Sw., 423 n.; Back. house v. Mohun, id., 434 n.; Seton v. Slade, 7 Ves, 265; Lord Ormond v. Anderson, 2 Ball & B., 363.

1 In support of this exception, see Seton v. Slade, 7 Ves., 275; Fowle v. Freeman, 9 id., 357; Clason v. Bailey, 14 John. Rep., 184; McCrea v. Purdy, 16 Wend., 406; Woodward v. Aspinwall, 3 Sandf. S. C. R, 272; Sutherland v. Briggs, 1 Hare, 34. But see the comments of Lord Redesdale in Lawrence v. Butler, 1 Sch. & Lef., 13; and of Verplanck, senator, in Davids v. Shields, 26 Wend., 362.

parties, which before the statute were mutual, have by force of it ceased to be such. (a) A more satisfactory reason is that, by instituting proceedings, the plaintiff has waived the original want of mutuality, and rendered the remedy mutual.(b)

§ 451. On the same ground, a contract contained in a deed-poll was enforced, notwithstanding an objection taken from the unilateral nature of the instrument. (c)

§ 452. (4) Where the vendor has not substantially the whole interest which he contracted to sell, he cannot enforce the contract against the purchaser, and yet the purchaser can generally enforce it against him by compelling him to convey what he can, with an abatement of the purchasemoney as compensation for the deficiency. This subject will be found discussed in a subsequent chapter. (d)

§ 453. In two Irish cases decided by Lord Redesdale, in each of which the party seeking to enforce the contract was at the time when he entered into it aware of the defect in the other party's title, (e) the principle stated in the last preceding section was held not to apply.

§ 454. In one of these cases, a tenant for life entered into a contract with the plaintiff to grant a lease, which he could not do without the consent of trustees:(f)' the consent was refused, the contract being in fact intended to give a fine to the tenant for life in fraud of the power: the intended lessee filed his bill against the tenant for life, and contended that he was at least entitled to such a lease as the tenant for life could grant out of his estate. But Lord Redesdale dismissed the bill for want of mutuality. "No man," he said, "signs an agreement but under a supposition that the other party is bound as well as himself: and, therefore, if the other party is not bound, he signs it under a mistake;"(g)

(a) See per Leach, V. C., in Boys v. Ayerst, 6 Mad.. 323.

(b) Child v. Comber, 3 Sw., 423 n.; Seton v. Slade, 7 Ves., 265; Fowle v. Freeman, 9 id, 351; per Grant, M. R., in Western v. Russell, 3 V. & B., 192; Martin v. Mitchell, 2 J. & W., 413; Flight v. Bolland, 4 Russ., 298.

(c) Otway v. Braithwaite, Finch, 405. So, also, of a bond, Butler v. Powis, 2 Coll., 156. (d) Part IV, chap. fi, § 1222 et seq. (e) That this circumstance is not necessarily fatal to relief, see infra, § 1232; Barker v. Cox, 4 Ch. D., 464.

(f) Lawrenson v. Butler, 1 Sch. & Lef, 13. (g) 1 Sch. & Lef., 21.

"Where the vendor has contracted to convey a tract of land, the title to a part of which fails, the vendee may claim a specific performance of the contract as to the residue of the land, with a compensation in damages in relation to which the vendor is unable to give a good title." Morss v. Elmendorf, 11 Paige, 287.

and his lordship considered that the principle above stated only applies where, on the faith of a contract, one party has put himself in a situation from which he cannot extricate himself, and is, therefore, willing to forego part of his contract—where an injury would be sustained by the plaintiff, unless he were to get such an execution of the contract as the defendant could give. In the other case, Lord Redesdale further observed upon the specific performance of contracts by a tenant for life exceeding his power. (h) "I think," said his lordship, "courts of equity should never enforce such contracts, whether with a view to the party himself or to the person entitled in remainder. In the first place, it is unconscionable in the tenant for life to execute such a lease, because it brings an incumbrance on the estate of the remainderman, and puts him to litigation to get rid of it and as to the tenant for life himself, it is compelling him to do what is to be the foundation of a future action for damages, if he die before the twenty-one years. The court will never do this, but will leave the party at once to bring his action for damages. And I also conceive that this sort of contract, obtained by a person who knew at the time the nature of the title, is unconscionable in him, as he makes himself a party knowingly to that which is a fraud on the remainderman; and, under such circumstances, he has no claim to the assistance of a court of equity."(i)

§ 455. This view of the jurisdiction is certainly narrower than that entertained by previous judges: it has been remarked to be such by Lord Langdale, M. R.,(j) and has been disapproved of by Lord St. Leonards. "I doubt," said his lordship, speaking of Lord Redesdale's dismissal of the bill in the first of the cases above alluded to, "whether that can be maintained as the law of the court where there is no fraud in the transaction. If there be a bona fide intention to execute the power, and the contract cannot be carried into effect, I do not see why the interest of the tenant for life should not be bound to the extent he is able to bind it, unless there be some inconvenience."(k) And the principle

(h) Harnett v. Yielding, 2 Sch. & Lef., 549; contra, Neale v. Mackenzie, 1 Ke., 474. (i) 2 Sch. & Lef., 559. See, also, 553.

(j) In Thomas v. Dering, 1 Ke., 746.
(k) Dyas v. Cruise, 2 J. & Lat., 460, 487.

thus stated is now firmly established, notwithstanding the objection for want of mutuality.(7)'

(1) See infra, Part IV, chap. 11, § 1222 et seq.

"It is also perfectly evident," it is added by Walworth, Chancellor, in Morss v. Elmendorff, 11 Paige, 288, "in this case, that the complainant, at the time he filed his bill, was aware that the supposed gore had no existence, and that no specific performance of the agreement could be obtained in this court. And in a case of that kind, Chancellor Kent correctly decided that this court ought not to entertain the suit merely for the assessment of damages. Hatch v. Cobb, 4 John. Ch., 559; Kempshall v. Stone, 5 id., 193. But where the defendant deprives himself of the power to perform the contract specifically, during the pendency of a suit to compel such performance, this court may very properly retain the suit, and award the complainant a compensation in damages, to prevent a multiplicity of suits. And I am not prepared to say that such a decree might not be proper, where the defendant had deprived himself of the power to perform the contract prior to the filing of the bill, but without the knowledge of the complainant; or even where he had never had the power to perform, if the complainant had filed his bill in good faith, supposing at the time he instituted his suit here that a specific performance of the contract could be obtained under the decree of this court. But this court does not entertain jurisdiction where the sole object of the bill is to obtain a compensation in damages for the breach of a contract, except where the contract is of equitable cognizance merely. Nor can a complainant entitle himself to the interference of this court, to give him a compensation in damages for the non-performance of a contract, by neglecting to state in his bill, that the defendant is unable to perform the contract specifically; where that fact is known to him at the time of filing his bill in this court. For if the facts which were then known to him had been fully stated in his bill, the defendant might have demurred, upon the ground that the complainant's remedy, if any he had, was at law and not in equity. Or he might have raised that objection in his answer. In this case, therefore, the complainant's bill cannot be retained for the purpose of obtaining a compensation in damages merely, when he knew that he could expect nothing more than such a compensation in damages at the time of filing his bill. And the complainant having made a case, by his bill, apparently entitling him to a specific performance, he cannot now insist that the defendant has waived the objection, that the remedy of the complainant was at law; because he did not demur to the bill, or state that objection in his answer."