taking the lands had expired. Nine-tenths of the contract, as Knight Bruce, L. J., remarked, had become impracticable by reason of the abandonment of the railway and the Lords Justices, though not deciding the point, evidently inclined to the opinion that the contract was conditional, not only on the passing of the act, but on the making of the railway. (d) And in the subsequent case of Lord James Stuart v. London and North-Western Railway Co., (e) Lord Cranworth, L. J., expressed a similar opinion. These cases have been doubted, (ƒ) but rather on the point of jurisdiction than of the construction of the contracts: and they have certainly received great support from the case of Gage v. Newmarket Railway Co.(g) There the company had covenanted with the plaintiff that, in the event of a bill for extending their powers being passed in the then present session, the company should, before they should enter on any part of the plaintiff's land, pay him £4,900 purchase money for any portion of his land, not exceeding forty-three acres, which the company might require to take, and £7,100 as landlord's compensation for damages arising by the severance thereof. It was held that the covenant was not for the payment of an absolute sum as a consideration for the plaintiff's withdrawing his opposition, but a payment as purchase money and compensation for services, which could not be due when no land was required or taken, and no severance affected for which compensation could arise. In the case of the Scottish North-Eastern Railway Co. v. Stewart(h) the House of Lords arrived at a similar conclusion upon the contract there in question.

§ 966. The performance of conditions precedent may of course be waived by the persons entitled to their performance; (i) but any waiver to be binding must be made intentionally and with a knowledge of the circumstances.(ƒ)'

(d) Webb v. Direct London and Portsmouth Railway Co., 1 De G. M. & G., 521, reversing S. C. 9 Ha, 129.

(e) 1 De G. M. & G, 721. This case in the court below is reported, 15 Beav., 513. See, also, 5 H. L. C., 351.

(f) Hawkes v. Eastern Counties Railway Co., 1 De G. M. & G., 737; S. C. 5 H. L. C., 331.

(g) 18 Q. B., 457. See, also, Edinburgh, Perth and Dundee Railway Co. v. Philip, 2 Macq., 514 382.

(h) 3 Macq,

(i) Beatson v. Nicholson, 6 Jur., 620. (j) Earl of Darnley v. London, Chatham, and Dover Railway Co., L. R 2 H. L. 43 (S. C., 1 De G. J. & S., 204, 3 id. 24.

1 Contract assigned before payment.] The purchaser assigned his contract before payment became due, and the assignee failed to pay before the vendor commenced his action for specific performance. Held, that it was proper for the latter to tender a conveyance to the original purchaser. Corbus v. Leed, 69

Ill., 205.

CHAPTER XXIII.

OF THE INCAPACITY OF THE DEFENDANT TO PERFORM HIS PART OF THE CONTRACT.

§ 967. There are certain cases in which the contract is construed to be conditional, on individual capacity, or on the continued existence of some state of facts or thing. "Contracts for personal service, for matters dependent on personal capacity, as to write a book or paint a picture, are conditional on the continuance of the ability, mental or corporeal, to perform them."(a) So, again, where from the nature of the contract it appears that the parties contracted upon the footing of the existence at the time of performance of some particular specified thing, and there is no express or implied warranty that the thing shall exist, a condition is implied that the party to do the act shall be excused, in case before breach performance becomes impossible by the perishing of the specified thing without the default of the party. This principle has been applied to a contract to let a music hall, which was destroyed by fire before the day arrived ; (b) and to a contract to sell 200 tons of potatoes grown on particular land. (c)

§ 968. All these contracts, being conditional and not positive, are not within the rule that, where there is a positive contract to do a thing not illegal, the contractor must perform it or pay damages for not doing it, though it has become impossible. On such contracts no action can be maintained, whether for damages or specific performance.

§ 969. But in contracts positive and not conditional, the incapacity of the defendant to perform his part of the contract, whilst it furnishes no answer to an action for damages, (d) affords a ground of defense against specific performance. (e) This contention does not, like that in the case

(a) Per Bramwell B., in Hall v. Wright, El. B. & E., 778; Poussard v. Spies, 1 Q. B. D., 410, 414.

(b) Taylor v. Caldwell, 3 B. & S., 826.
(c) Howell v. Coupland, 1 Q. B. D., 258.

See, also, Appleby v. Myers, L. R. 2 C. P. 651.

(d) Hall v. Wright, El. B. & E., 746; Brown v. Royal Insurance Co., 1 El. & El., 853. (e) Per Lord Hardwicke in Green v. Smith, 1 Atk., 573.

of conditional contracts, rest upon the nature or terms of the contracts, nor, like that grounded on the incapacity of the plaintiff to perform his part, rest upon any principle of justice that operates in favor of the defendant, but is based upon the necessity of the case arising out of the nature of the relief sought.'

§ 970. Where a bill was filed against the provisional committee of a projected railway company for the specific performance of a contract to deliver to the plaintiff a certain number of scrip certificates; there being no allegation that the defendants had any scrip which they could deliver, but a statement from which the contrary might rather be inferred, a demurrer was allowed on the ground that the bill did not show any capacity in the defendants to perform the contract. (f) So where a defendant showed that he had sold the property in question for a valuable consideration to a third party, no performance could be enforced :(g) and so again, assuming that a covenant to produce deeds can be obtained by way of specific performance of a covenant for further assurance, it seems that the court will not attempt so to carry it into effect where the deeds are not in the proposed covenantor's power.(h) So again a contract by

(ƒ) Columbine v. Chichester, 2 Ph.; 27; Ferguson v. Wilson, L. R. 2 Ch., 77.

(g) Denton v. Stewart, 1 Cox, 258, 17 Ves., 276 n. (h) Hallett v. Middleton, 1 Russ, 243.

1 Courts of equity never enforce the specific performance of an agreement where the decree would be a vain or imperfect one. Tobey v. The County of Bristol, 3 Story, 800. But although the incapacity of the defendant will defeat a decree for specific performance, yet, where a party has put it out of his power to perform specifically, a bill filed for that purpose will be retained, and an equivalent in damages awarded, to be assessed on reference to a master, or to a jury upon an issue of quantum damnificatus, according to circumstances. Woodcock v. Bennett, 1 Cow., 711.

Who must prepare the deed; abstract of title.] In many of the States the vendor must cause the deed to be ready for delivery. This has been expressly held to be the rule in California, Morgan v. Stearns, 40 Cal., 434; Illinois, Buckmaster v. Grundy, 1 Seam., 310; Iowa, Carson v. Lucore, 1 Greene (Iowa), 33; Powers v. Bridges, 2 id., 235; Young v. Daniels, 2 Iowa, 126; Maine, Hill v. Hobert, 16 Me., 164; Massachusetts, Tinney v. Ashley, 15 Pick., 546; Dana v. King, 2 id., 155; Hunt v. Livermore, 5 id., 395; Brown v. Bellows, 4 id., 179; Minnesota, St. Paul Division v. Brown, 9 Minn., 157; Mississippi, Standifer v. Davis, 13 Sm. & Marsh., 48; New Hampshire, Fairbanks v. Dow, 6 N. H., 266; New York, in an executory contract, the vendor of real property must cause a sufficient deed to be prepared, which must be tendered to the vendee, before such vendor can apply to a court either for a rescission or specific performance; McWilliams v. Long, 32 Barb., 194; Caup v. Morse, 5 Den., 161; Wells v. Smith, 2 Edw., 78; Green v. Reynolds, 2 John., 207; Northrup v. Northrup, 6 Cow., 296; Hudson v. Swift, 20 John., 27; Parker v. Parmlee, 20 id., 130; Slocum v. Despard, 8 Wend., 615; Johnson v. Wygant, 11 id., 48;

directors to accept shares in payment of calls being legally impossible of performance cannot be enforced. (i) And where a charitable corporation, which had no power of selling except under the land clauses act, contracted to sell land without having the price settled in the manner prescribed by the act, the court refused to decree specific performance.(j)

§ 971. It is immaterial for this purpose that the defendant is the author of his own incapacity. "Put the extreme case, ," said Kindersley, V. C., "of a vendor burning a title deed the court could not make a decree that he should deliver it up, and be imprisoned if he does not."(k)

§ 972. It is not necessary to the specific performance of a contract, that it should be one which the parties at the time of entering into it had the power of carrying into effect, nor one with regard to which it depends on themselves alone whether they would ever be able to perform it. For where a party enters into a contract without at the time having the power of performing it and afterwards acquires that power, he is bound to perform the contract he entered into. (7) Therefore a defendant cannot object at an early stage of an action for specific performance that he he has not the interest he has contracted to sell, as he cannot be permitted to say that he did not mean to acquire that interest.(m)' And so where a defendant had contracted to give a certain indemnity to be secured on real estate, and alleged that he had not real estate of sufficient value, and contended that the plaintiff ought to accept a personal indemnity, it was held that he was bound to purchase real estate of sufficient value. (n)

See,

(i) Ellis v. Colman, 25 Beav, 662. also, Seawell v. Webster, 29 L. J. Ch., 71. (j) Wycombe Railway Co. v. Donnington Hospital, L. R. 1 Ch., 268.

(k) In Seawall v. Webster, 29 L. J. Ch., 73.

(1) Holroyd v. Marshall, 10 H. L. C, 191, 211; Crane v. Mitchell, 15 L. J. Ch., 287. (m) Per Lord Eldon in Browne v. Warner, 14 Ves, 412. (n) Walker v. Barnes, 3 Mad., 247.

Fuller v. Hubbard, 6 Cow., 13; Connelly v. Pierce, 7 Wend., 129; Pennsylvania, Switzer v. Hammel, 3 Serg. & Rawle, 228; South Carolina, Prothro v. Smith, 6 Rich.'s Eq., 324. In Arkansas the vendee must cause the deed to be prepared and must tender it to the vendor. This is the rule in England Byers v. Aiken, 5 Pike, 419. In Alabama the rule is the same as in England and Arkansas, and in this State the vendor, when required, must furnish an abstract of his title. Chapman v. Lee, 55 Ala., 616.

See the cases of Collins v. Carr, Freem., 5; Greenaway v. Adams, 12 Ves., 401; Coffin v. Cooper, 14 id., 205; and Hull v. Vaughan, 6 Price, 163, in support of the rule.

§ 973. The same principle is exemplified in a case which was decided in the 34th year of Charles II. During the civil wars, the then Duke of Newcastle had gone abroad, and whilst he was thus absent, the defendant, who was his heir apparent, without authority from the then Duke, sold and conveyed to the plaintiff certain estates of the Duke, and received the purchase money, and applied it for the benefit of the family. The defendant having subsequently succeeded to the dukedom and the estates in question as heir, was, by Lord Nottingham, held bound to make good his sale, and was decreed to do so accordingly.(0) At the time of the contract, specific performance would have been impossible on the part of the defendant, but it had subsequently become possible by the devolution of the estate contracted to be sold.

§ 974. On the same principle, the court will not in all cases consider as void, contracts, whether by private persons or companies, which require the interposition of the legislature before they can be carried into effect, and accordingly will in the meanwhile protect the property in issue.(p)

§ 975. With regard to real estate, the statute 32 Hen. VIII., c. 9, prevents the sale of a pretended right to land by a person out of possession; but if a person, instead of selling a pretended right, contracts on a certain future day to convey an estate, and he is on the day possessed of it, the contract appears not to be within the operation of the statute, and to be binding on both parties. (q)

§ 976. And so also with regard to goods, the legality of contracts for the sale of such property not at the time in the possession of the vendor is now well established ;(r) so that, notwithstanding an opposite decision of Lord Macclesfield, (s) such a contract would now probably be enforced, if in other respects it fell under the jurisdiction of the court. (†) § 977. As the consent of a third party is, or may be, a thing impossible to procure, a defendant who has entered

(0) Clayton v. Duke of Newcastle, 2 Cas. in Ch., 112. (p) Great Western Railway Co. v. Birmingham and Oxford Junction Railway Co., 2 Ph., 597; per Lord St. Leonards in Hawkes v. Eastern Counties Railway Co., 1 De G M. & G., 756; Devenish v. Brown, 26 L. J. Ch., 23; 4 W. R., 783 (Wood, V. C.); Frederick v. Coxwell, 3 Y. & J., 514. As to contracts requiring proposed legislation to render them