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to an accompanying plan, and on the plan several roads were marked out so as to provide frontages for all the lots, and the lines of roads were marked out on the land itself in accordance with the plan: Knight Bruce,. V. C., held, that in the absence of any clause in the particulars or conditions of sale providing for any rights of way beyond a road leading into the nearest highway, such road was all that the purchaser was entitled to. (n)

§ 914. Where the sale plan, instead of, as in the previous. cases, representing an intended and future state of the property, accurately represents it in its actual and present state, it has been held that it will not carry the case higher than a view of the property. Therefore, where a plan represented a well on lot 4 communicating with a reservoir on lot 2, and that communicating with the inn which was on lot 1, which the plaintiff purchased, and the vendor conveyed lots 2 and 4 without any reservation to the plaintiff of a right to a flow of water from the well, the plaintiff's demand for compensation for the loss of the water was refused. (0) St. Leonards, however, considered this caseopen to observation.(p)

§ 915. (4) In the averment of performance by the plaintiff, equity, as already stated, discriminates between the essential and the non-essential terms of a contract; and to furnish the defendant with a ground for resisting the action, the non-performance of the plaintiff must be a term important and considerable. (2) The Court of Chancery frequently interfered at the instance of a party who might have been debarred from relief at Common Law, becauseunable to allege performance in the very terms of the contract, which is by the Common Law essential.(r) Thus, for example, where A. contracted to sell property to B., and by the same contract it was also stipulated that A. should continue tenant from year to year of the land, and it happened from embarrased circumstances he was unable to fill the tenancy, this was, from the determinable nature of the holding, held to be a matter of consideration, and so not a

(n) Randall v. Hall, 4 De G. & Sm., 343 (0) Fewster v. Turner, 11 L. J. Ch., 161. (p) St. Leon. Vend., 20.

(9) Modlen v. Snowball, 31 L. J. Ch. 44; 10 W. R. 24, affirming S. C. 29; Beav., 641;

Reeves v. The Greenwich Tanning Co. Limited. 2 H & M., 54.

(r) See per Lord Redesdale in Davis v.. Hone, 2 Sch. & Lef 347; supra, § 29.

bar to specific performance of the contract for sale. (s) And all the cases in which the court grants a vendor asking for specific performance indulgence in the making out of his title, (t) or allows him to enforce the contract with compensation, (u) are, of course, illustrative of the principle now before us.

§ 916. In a case before the Privy Council, the judgment may at first sight appear to go so far as to assert that no default of performance on the part of the plaintiff short of that which goes to the whole consideration for the promise sued on, is available as a defense against specific performance.() But probably such reading is incorrect and the intention of their lordships was to draw the distinction between essential and non-essential terms.

§ 917. (5) Where that, on the non-performance of which by the plaintiff the defendant relies, is in its nature a collateral and separate contract, or is part of or referable to such a contract, though between the same parties and entered into at the same time, and having relation to the same subject-matter as the contract which the plaintiff seeks to enforce, the court will not consider the default by the plaintiff in respect of the one contract as any bar to the specific performance of the other, though such default may give the defendant a cross right of action on legal or equitable grounds. (w)'

(s) Lord v. Stephens, 1 Y. &. C. Ex., 222. (t) See infra, § 1339 et seq.

(u) See intra, § 1178 et. seq.

(v) Oxford v. Provand, L. R., 2 P. C., 135; cf. Lamare v. Dixon, L. R., 6 H. L., 414. (w) Phipps v. Child, 3 Drew, 709.

1 Condition precedent or subsequent.] In a conditional contract one party may fail to perform the condition. The contract becomes absolute as soon as the condition has been performed, but until it is performed it cannot be specifically enforced. Where it is a condition precedent the estate is avoided by not permitting it to rest until the condition is literally performed. Where it is a condition subsequent, its non-performance defeats the estate by divesting the party of his title. It is very material to notice this distinction for the reason that a court of equity "can, upon principle, interfere with and control the effect of one species of condition and not of the other. A man enters into a contract, or makes a deed, or settlement, or a will, and he agrees to grant or devise an estate upon a condition which he declares must be performed before the person to be benefited can take it. No court of law or equity can have a right to say that the condition which is lawful in itself, and one the party had a right to impose, shall be dispensed with. In order to do this, the contract or act of the party himself must be annulled, and one, created by the court, put in its place. The principle whereon the court is to act in relation to conditions subsequent is widely different. In cases of this sort, if a breach or nonperformance happens, the effect of which is to work a forfeiture, or divest an estate, the court, acting upon the principle of compensation to the party for the injury sustained by the breach, will interpose and prevent the forfeiture. On account of the nature of conditions subsequent, they are said to fall within the

§ 918. Thus where A. contracted with B., the owner of a plot of land, to erect a villa on it, and to keep it insured in the joint names of A. and B. in the county fire office, and B. agreed as soon as the house should be completed, to grant a lease of the plot to A., and that if A. should not perform his part, the contract for the lease should be void; and the contract also stipulated that A. should have the option of purchasing the fee within two years; A erected the villa, but insured in the wrong office, and in his own name alone, and then brought his bill for a sale under the option to purchase; and it was held by Lord Romilly, M. R., that this option was independent of the right to a lease, and that notwithstanding the plaintiff's default in respect of the latter right, the former subsisted, and he accordingly decreed a specific performance.(x)1

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

lenient principle by which equity relieves against penalties; and the court will only give relief where compensation could be made in damages. There may even be cases of conditions subsequent unperformed, in which the court will not relieve from forfeiture on account of the difficulty of ascertaining with any degree of certainty the amount or adequately of compensation to be allowed.” McCoun, V. C., in Wells v. Smith, 2 Edw. Čh., 78.

The cases at law, concerning dependent and independent covenants, proceed upon the same principle and are in close analogy with those of equity. Manning v. Brown, 1 Fairf., 49, is an authority of this kind. A., there, covenanted to convey to B. a certain lot of land, if certain notes of hand, given at the same time, payable at a future day, should be paid at maturity by B.; and it was further agreed that, in failure of payment of said notes by B., the agreement was to be void, B. to be liable to pay all damages that should have occurred to A., and to forfeit all that should previously have been paid. In a suit on one of the notes, it was held that the promise on the notes, and the covenant to convey were independent, and that a suit on the former might well be maintained, without showing a conveyance or an offer to convey. Leftwich v. Coleman, 3 How. Miss., 167; and Rector v. Price, 6 Ala., 321, are decisions to the effect, that an action will lie upon a note, given for the purchase money of land, payable on a day certain, where there is an agreement to to convey by deed upon the payment of the note, the agreement being independent. And where, on an agreement for the sale of land, the vendee gave his note for the purchase money, payable at the end of twelve months, and took the vendor's penal bond to make him a "lawful title, or cause it to be made," within the same period, it was held, that the note and the bond being wholly separate and disconnected with each other, the performance on the one side was not a condition precedent to the performance on the other, and unless there had been some stipulation to the effect, the agreements were entirely independent. Martin v. Bobo, 1 Speers, 26. Nor yet are mutual contracts mutual conditions, when each goes only to a part of the consideration of the other, and a breach of either may be compensated in damages. And, therefore, where the defendants hired of the plaintiff two slaves at certain monthly wages, and the plaintiff agreed to permit the defendants to transport his cotton to market, at a certain stipulated rate per bale, in payment of the wages of the slaves, it was held that the stipulations of each party were independent, and that the plaintiff might recover the wages of the slaves, without averring that he had tendered his cotton to be transported to market by the defendants. Rice v. Sims, 2 Bailey, 82.

§ 919. So, where in a deed for the dissolution of partnership, one partner assigned to another certain foreign shares, and covenanted for further assurance; and the other partner covenanted with the former for indemnity against certain liabilities: a further assurance of the shares became necessary, and on a bill filed to enforce specific performance of the covenant to that effect, it was held by Knight Bruce and Turner, L. J. J., overruling Lord Romilly, M. R., that a breach of the covenant to indemnify which the plaintiff had entered into with the defendant was no defense to the suit. The two covenants were independent, so that the performance of the one was not to be resisted by reason of the non-performance of the other. (y)

§ 920. (6) A defendant who has waived the performance by the plaintiff of that was on his part to be performed cannot, of course, use the non-performance as a defense; but the burthen of proving this waiver of course rests on the plaintiff.(z)

§ 921. Still more clearly, if possible, is non-performance by the plaintiff excused when that has resulted from the neglect of default of the defendant. (a) So where the purchaser prevents the vendor from completing his title, he will be compelled to forego an objection he may raise on the score of that incompleteness. (b)

§ 922. With regard to infancy, an infant heir cannot avail himself of his disability to excuse the non-assertion of his right under an executory contract made with his ancestor, when the immediate performance of his part of the contract is essential to the interest of the other party; as, for example, of a contract to lay out money in building within three years. (c)

§ 923. (7) We shall now consider how far the impossibility of performing the plaintiff's part arising without any fault or default on his part furnishes an excuse for non-performance. In those cases in which all that was to have been performed by the plaintiff has become entirely inca

(y) Gibson v Goldsmid, 5 De G. M. & G., 757; reversing S. C., 18 Beav., 584.

(2) Lamare v. Dixon, L. R, 6 H. L, 414.
(a) Hotham v. East India Co., 1 T. R., 638

(b) Murrell v. Goodyear, 1 De G. F. & J., 432 (S. C.. before Stuart, V. C.. 2 Giff. 51). (c) Griffin v. Griffin, 1 Sch. & Lef., 352.

I See Stewart v. Raymond Rail Road Co., 7 S. & M., 568; Tyler v. McCardle,.

9 id., 230; Kirby v. Harrison, 2 Ohio (N. S.), 326.

pable of being executed, the plaintiff cannot demand the performance by the other party, because his non-performance is a total failure of the consideration which was to have moved from him.

But where the impossibility refers not to the substantial, but only to the exact and literal performance of the contract, the court will struggle with matters of form in order to do complete justice between the parties; but it will carefully avoid going so far as to make a new contract between them. (d) Hence arise the cases on compensation. (e)

§ 924. As to the cases in which the plaintiff has performed a substantial part of his contract, and then the remaining part has become impossible by reason of circumstances not dependent upon him and without his fault, a distinction has been drawn between those cases in which the plaintiff has not, by performing that part of the contract which he has performed, altered his position, and those cases in which he has so altered his position by his part performance of the contract by the other party in the former case, and enforcing it in the latter.

§ 925. This distinction rests almost entirely on the authority of Gilbert, C. B., in a passage in his "Lex Prætoria,”(ƒ) but has been approved by subsequent writers, (g) and seems worthy of attentive consideration. "Here," says his Lordship in the passage in question, "it is to be noted that the plaintiff that exhibited his bill upon the foot of performing the bargain on his part, ought to show that he has performed all that is to be done on his part, or is ready to do it; for where any part (which he should have performed) is become impossible to be performed at the time of exhibiting his bill, then he can have no specific execution, because he cannot specifically execute on his own part: as in the case of my Lord Feversham, which was on a marriage agreement, whereby he contracted to settle the manor of Holmly on his wife and the heirs of their bodies, and clear it of incumbrances, and settle a certain maintenance on his wife, and likewise sell some pensions in order to make a further provision for his wife and the issue of that marriage; and Sir George Sandys the father-in-law, agreed to settle £3,000

(d) Counter v. Macpherson, 5 Moo. P. C. C., 83. 108.

(e) See infra, Part IV., chap. ii., § 1.174 et seq.; also Norris v. Jackson, 3 Giff, 396.

(S) pp. 240-2.

(g) 1 Fonbl. Eq. Book I., c. 6, s. 3; Story, Eq. Jur., s. 772.

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