sought to be prevented, then the question will arise, whether this is the court to come to for a remedy. If it is, I cannot think that ought to depend on the use of a negative rather than an affirmative form of expression. If, on the other hand, the substance of the thing is such that the remedy ought to be sought elsewhere, then I do not think that the forum ought to be changed by the use of a negative rather than an affirmative."

§ 842. The view thus plainly expressed by Lord Selborne had been indicated in an earlier case before Lord Hatherley, when vice-chancellor. The object of the bill, in that case, was to enforce the specific performance of a contract to employ the plaintiff as a broker, which contained a stipulation that the plaintiff's name should appear in all advertisements of the company. To it the defendant's demurred, and the only point on which the judge entertained any serious question was whether the stipulation as to advertisements did not bring the case within the principle of Lumley v. Wagner;(0) but he determined that it did not, and that as the defendants did not employ the plaintiff as broker, the court could not restrain their issue of advertisements omitting his name. (p)

§ 843. The position of that branch of the law on which Lumley v. Wagner is the leading authority can hardly be said to be very satisfactory. It may, it is conceived, be concluded that the principle of this case will not be extended; that negative stipulations will not be implied except in the cases where the courts have already done so; and that even the presence of an express negative stipulation will not be found a sufficient ground for jurisdiction unless the contract is of a kind of which specific performance can be granted. In other words, it is probable that the court will hereafter, except so far as it may be bound by existing authorities, consider whether the contract in respect of which the injunction is sought is or is not of a kind fit for specific performance; that, if it be, the court will tend to restrain acts inconsistent with it, whether there be negative words or not; that if it be not of a kind fit for specific perform

(0) 1 De G. M. & G., 604.

(p) Brett v. East India and London Shipping Co., Limited, 2 H. & M., 404.

ance, no injunction will be granted, even though negative words may be present.

§ 844. In cases where the contract on which an injunction is sought contains stipulations, some of which the court can, and others which it cannot enforce, and the latter are wholly on the plaintiff's part, no difficulty arises; because, though the court may be unable to enforce them directly, it does so indirectly, inasmuch as the moment the plaintiff fails in performing his part of the contract, the injunction would be dissolved.(q)

§ 845. (7) Where an arrangement come to between two persons is intended to be of a complex character, partly legal and partly honorary, the court will, if there be no other impediment, specifically perform the legal contract, leaving the honorary part of the arrangement to rest, as was intended, on the honor of the parties. So that, where this latter part is malum prohibitum and not malum in se, it will not obstruct the court in its execution of the other part of the arrangement which amounted to contract.(r)

§ 846. (7) Where the contract is in any manner alternative) so that the parts of it are mutually exclusive one of the other, and the plaintiff has a right to ask for the performance of one part, the court may treat this as independent of the other: thus, in a contract to grant a lease with an option to the lessee to purchase this option was held so far independent of the contract for a lease, that a default on the part of the plaintiff in insuring, which would have prevented his suing for a lease, did not prevent his suing on the option to purchase.(s)

§ 847. (9) In one case Lord Romilly, M. R., appears to have expressed the opinion, that where a part of the contract which the court could not perform has been actually performed before suit, the incapacity of the court as to this part would furnish no defense as to the other part. But the doctrine appears to have been rejected by the court of appeal.(t)1

(q) Stocker v. Wedderburn, 3 K. & J., 393, 405.

213.

(r) Carolan v. Brabazon, 2 Jon. & L., 200,

(s) Green v. Low, 22 Beav., 625.

(t) Hope v. Hope, 22 Beav., 351; S. C., 8 De G. M. & G., 731, 746. See, also, Walrond v. Walrond, John., 18.

1 The court must be able to enforce the contract as to all the parties to it.]

"There

is no instance of decreeing a partial performance of articles. The court must

decree all or none. And where some parts have appeared very unreasonable, the courts have said, we will not do that; and, therefore, as we must decree all or none, the bill has been dismissed." Lord Hardwick in Goring v. Nash, 3 Atk., 190; Davenport v. Bishop, 2 Y. & C. C. C., 451; S. C., 1 Phil., 698.

Nature of the contract, whether divisible or not.] This is to be determined from the nature and subject of agreement. Moore v. Bonnet, 40 Cal., 251; Hacy v. Grinnel, 50 Ill., 179; Southwell v. Beezley, 5 Oregon, 458. An agreement to sell real estate in one lot is not divisible. Raffey v. Shatcross, 2 Bro. C. C, 118(n.); S. C., 4 Mad., 227; Price v. Griffith, 1 De G. M. & G., 80. A contract to grade a railroad for a specific sum, to be paid as the work progresses, is entire. Cox v. West. Pac. R. R. Co., 44 Cal., 18; see, also, Coburn v. City of Hartford, 38 Conn., 290. A lot of coal was contracted for at a given price per ton on board vessels. Held, that none of the coal should be paid for until the delivery was complete. Shrim v. Bodine, 60 Pa. St., 182. Different prices may be paid for different articles, and yet the contract be entire. Parker v. Bergen, 4 Heisk., 590. Lord Alvanley, Ch. J., said in Johnson v. Johnson, 3 Bos. & Pull., 162: "If the question were how far the particular part of which the title has failed formed an essential ingredient of the bargain, the grossest injustice would ensue if a party were suffered in a court of law to say that he would retain all of which the title was good, and recover a proportionable part of the purchase money for the rest. Possibly the part which he retains might not have been sold unless the other part had been taken at the same time, and ought not to be valued in proportion to its extent, but according to the various circumstances connected with it. But a court of equity may inquire into all the circumstances, and may ascertain how far one part of the bargain formed a material ground for the rest, and may award a compensation according to the real state of the transaction. In this case, however, no such question arises; for it appears to me that, although both pieces of ground were bargained for at the same time, we must consider the bargain as consisting of two distinct contracts, and that one part was sold for £300 and the other for £700. It has not been suggested that they were necessary to the occupation of each other."

Example of divisible contracts.] Shaw, C. J., said in Robinson v. Green, 3 Metc., 159: The plaintiff does not claim on an entire contract. The sale of each lot is a distinct contract. The plaintiff's claim for a compensation arises upon each several sale, and is complete on such sale. If there were an express promise to pay him a fixed sum as a compensation for the entire sale, it would have presented a different question. Where an entire promise is made on one entire consideration, and part of that consideration is illegal, it may avoid the entire contract. But here is no evidence of a promise of one entire sum for the whole service. It is the ordinary case of an auctioneer's commission which accrues upon each entire and complete sale. We do not see how the question can be answered which was put in the argument, namely; suppose the plaintiff had stopped, after selling the two lots lying in South Reading, which it was. lawful for him to sell, would he not have been entitled to his commission? If he would, we do not perceive how his claim can be avoided by showing that he did something else on the same day which was not malum in se, but an act prohibited by law on considerations of public policy. The court are of opinion that the plaintiff's claim for a quantum meruit may be apportioned, and that he is entitled to recover for his services in the sale of the two lots." The matter is very fully discussed in McDaniel's v. Whitney, 38 Iowa, 60. On the following questions the court were equally divided: "Proposition made by me to Mr. McDaniels-I hereby agree to give up the banking business in Atlantic to Mr. McDaniels, and the best lot he can pick out in our town, provided he will now build upon the same, and become a permanent resident in our county, and take $16.50 per acre for the farm of 375 acres in sections 33, 34 and 38 of township 77-36 as marked blue on his plat-and give up to said McDaniels my chance of purchasing the two 40-acre lots of which Judge Temple is acting as agent. This proposition is not a standing one, but to be decided within two days from date." Beck, C. J., and Day, J., held that there were two distinct contracts, and that one of them might be specifically enforced without the other.. Miller, J., and Cole J., held that there was one entire contract. Cole, J., said: "The proposition, while single in itself, yet contains an agreement on the part of

Whitney to do four things, each of which is separated from the preceding only by a comma, and is connected with the preceding by the copulative conjunction and. Mr. Whitney, by his proposition, says: I hereby agree to give up the banking business in Atlanta to Mr McDaniels, and the best lot he can pick out in our town, and take $16.50 per acre for the farm of 375 acres, and give up to said McDaniels my chance of purchasing the two 40-acre lots. There is no division of this proposition into sentences, nor any specification of the consideration the proposer is to receive for each of the four things he proposes to do. The price per acre for the land is specified. But whether such price is above or below its real or market value does not appear, either in the proposition itself, or in the evidence in the case. It may have been much above its value, and, in the contemplation of the parties, equalized by the chance of getting the two 40-acre tracts. Or, it may have been much below its value, and, in the estimation of the parties, compensated for by taking the banking business with its burdens of doubtful securities. At all events, there is nothing in the proposition itself, which specifies the consideration to be paid to the proposer for each of the four things he agrees to do, nor for any one of them. The proposition further shows that it was not binding at once, and, in any event, upon the proposer Whitney. But it was to be, and would become, binding upon him only when it should be accepted by McDaniels. What was McDaniels to do in order to accept it, and make it binding upon Whitney? He was to pick the best lot, and to build upon it, and take the banking business, and become a permanent resident of the county, and pay $16.50 per acre for the farm, and take the chance of purchasing the two 40-acre lots. He was to do all of these things before Whitney would become bound to him to do what he had proposed. McDaniels could not elect to take the banking business alone, and require Whitney to give it up. This is too clear to require demonstration, and, if he could not do this, it is just as clear that he could not require Whitney to do any other one of the several things proposed, without himself doing all that he was required to do by the proposition. and from this it must appear that the contract is no more divisible into two parts than into four.

CHAPTER XVII.

OF DEFECT IN THE SUBJECT MATTER OF THE CONTRACT.

§ 848. Another ground on which the specific performance of a contract may be resisted is the existence of some essential defect in the subject matter of it, or some variation from the description contained in the contract. This is, of course, not a question of title; the acceptance of the title will not prevent the defendant from setting up the defense that the title relates to a different subject matter from that which he contracted for. (a) The cases in which this variation arises between the thing and some representation made in respect of it are considered under the head of misrepresentation. (b) The cases in which no such representation has been made it is now proposed briefly to consider.'

(a) Bentley v. Craven, 17 Beav., 204.

(b) Supra, § 624 et seq.

1 Substantial defect in the contract is a good defense in equity.] The vendor of land received a bond for title, and gave a note therefor, which showed upon its face that it had been so given. Held, that an assignee holder of the note, in case of a deficiency, cannot recover on such note, notwithstanding he received it previous to its becoming due. Howard v. Kimball, 65 N. C., 175.

Variance between the amount of land sold and the real quantity.] Grant, J., said in Deem v. Corp., etc., 9 Ves., 368: "There was no instance of compelling a man who had contracted for a freehold, to take a leasehold estate; that where a party gets substantially that for what he contracts, any small difference may be remedied by compensation; but not where it extends to the whole estate. See, also, Holmes v. Thorp, 1 Halst 's Ch., 415; Winne v. Reynolds, 6 Paige's Ch. 407: Howard v. Kimble, 65 N. C., 175; Weems v. Bremer, 2 Har. & Gill., 390; Shaw v. Vincent, 64 N. C., 690. In Wilcoxon v. Calloway, 67 N. C., 463, it was held that, where the quantity of land sold was deficient one-third, the purchaser might rescind the agreement, or demand a ratable abatement of the price. See, also, Leigh v. Crump, 1 Ired.'s Eq., 299; Gentley v. Hamilton, 3 id., 376; Jacob v. Locke, 2 id., 86; Calcraft v. Roebuck, 1 Ves., Jr, 221. Gray, J., said in Noble v. Googins, 99 Mass., 231: "The American courts have shown more willingness than the English to encourage litigation about the amount of the price, by reason of a variation in the quantity of land agreed to be conveyed, without clear evidence that the quantity was made an essential element of the bargain." See, also, Mann v. Pierson, 2 Johns., 37. "It is unnecessary for a man who has contracted to purchase one thing, to explain why he refuses to accept another." Ayles v. Cox, 16 Beav., 23; Bogan v. Daughdrill, 51 Ala., 312; Morse v. Elmendorf, 11 Paige's Ch., 288: White v. Dobson, 17 Gratt., 262; Napier v. Darlington, 70 Pa. St., 64; Lehiffer v. Pruden, 64 N. Y., 47.

Encroachment.] Where real estate is sold free of incumbrance, and the same is encroached upon by an adjoining owner, the sale may be rescinded. King v. Knapp, 59 N. Y., 462; Ring v. Bardean, 6 John's Ch., 38.