§ 1270. The court therefore can now give damages in any of the following cases, viz.:

(1) In substitution for specific performance where there is a case for specific performance-under Lord Cairns' act. (2) Where there is no case for specific performanceunder the judicature acts. (i)

(3) In addition to specific performance in whole or in part-under Lord Cairns' act, and probably also under the judicature acts.

§ 1271. Notwithstanding the judicature acts, the observance of the condition mentioned in a previous section(j) is still obligatory upon the court in the exercise of its discretionary jurisdiction under Lord Cairns' act; and damages in addition to or in substitution for specific performance will be given by virtue of that jurisdiction only when the plaintiff had a case for specific performance at the time when he issued his writ. (k)

§ 1272. The court's jurisdiction in damages is an apt and flexible instrument for doing exact justice under the diverse and complicated circumstances of many of the cases upon which the court has from time to time to adjudicate.

§ 1273. For instance, where the plaintiff contracted with the defendant to take a lease of property belonging to the latter, for the purpose, as he knew, of carrying on a business which the plaintiff intended to carry on there, and, owing to the defendant's willful refusal to perform his part of the contract, the plaintiff was for fifteen weeks unable to commence his business; the court, in addition to giving judgment for the specific performance of the contract, awarded £250 to the plaintiff by way of damages, in respect of his loss of profits during the fifteen weeks. (7)

§ 1274. Where the plaintiff was at the time when he filed his bill entitled to specific performance, and also to damages for injury occasioned to him by the defendants' delay of performance, and before the suit could be brought to a hearing the defendants performed the contract; it was held that the plaintiff was nevertheless justified in bringing his suit to a hearing for damages. (m)

(i) See infra, § 1278.

(j) Supra, § 1266.

(k) White v. Boby, 26 W. R, 133.

2), 26 W. R, 368; Wesley v. Walker, 26 W. R., 368. Consider Hyam v. Terry, 25 Sol. Jo., 371. (m) Cory v. The Thames Iron Works and

(7) Jaques v. Miller, 6 Ch. D., 153; S. C. (No. Shipbuilding o.. 11 W. R, 589; cf. S. S. (In

Q. B.) 3 L. R. Q. B., 181.

§ 1275. Sometimes the court can best do justice by enforcing the specific performance of one part of the contract and awarding damages for breach of the remainder. Where, for instance, a man contracted to pull down an old house, to rebuild, and to accept a lease of the new building, and then made default in rebuilding, Lord Hatherley (then Wood, V. C.,) held the intended lessor entitled to have damages for the non-building, and also specific performance of the contract to accept a lease. (n)

§ 1276. Again it may well happen that, though the court has jurisdiction to enforce the specific performance of a contract, the justice of the case will be better met by awarding damages in substitution. Thus where a railway company contracted with a landowner to "erect, set up and construct a station," on land which they had bought from him, but the contract contained no further description of the station, and no stipulation as to the user of it when erected; and the company afterwards refused to erect a station on the agreed site; the court of appeal in chancery, considering that it could not satisfactorily do justice by means of a decree for specific performance, directed that the damage sustained by the landowner by reason of the non-performance of the contract should be ascertained (by an inquiry in chambers) and the amount paid to him by the company.(0)

§ 1277. It may happen that a purchaser finds himself unable to obtain specific performance of a contract owing to some fatal defect in his vendor's title, which was unknown to him (the purchaser) at the time when he had entered into the contract. In such a case damages are the only possible form of relief; and the vendor will not be allowed to escape from liability to pay them by purporting to rescind the contract under a condition entitling the vendor to rescind in the event of the purchaser making any objection or requisition in respect of the title which the vendor is unwilling to comply with: for such a condition does not apply to a case where the vendor has not any title at all. (p)

§ 1278. Where an action is brought for specific per

(n) Soames v. Edge, Johns., 669, followed in Mayor and Corporation of London v. Southgate, 17 W. R., 197. Distinguish Norris v. Jackson, 1 J. & H., 319; and see Samuda v. Lawford, 4 Giff., 42.

(0) Wilson v. Northampton and Banbury Junction Railway Co., L. R. 9 Ch., 279.

(p) Bowman v. Hyland, 8 Ch. D, 588, 590; cf. Oakeley v. Ramsay, 27 L. T., 745. See too supra, Part III. chap. xxiv. § 1028 et seq.

formance, and specific performance is refused on the sole ground of a mistake by the defendant, the court will now consider the question of damages, and give the same damages as would, under the old practice, have been given in an action at law. (7)

$1279. Where there was a case for damages, the Court of Chancery sometimes directed an issue to ascertain the amount.(7) The more usual course was to direct an inquiry in chambers as to the sum to be awarded or allowed: and this is still commonly done. (s) In some recent cases, however, the damages have been assessed by the judge himself at the trial, and, where the plaintiff has not been ready with his evidence as to the amount of damages, the trial has been adjourned to give time for it to be obtained. It seems clearly desirable that the assessment of damages should, wherever practicable, take place at the trial, without any separate inquiry: for otherwise the parties are virtually put to the expense of two trials of the same question.(t)'

(q) Per James and Cotton, L. J. J, in Taioplin v. James, 15 Ch. D., 222, 223.

(r) eg. Corey v. The 'hames Iron Works and Shipbuilding Co., 11 W. R, 589; S. C. (in Q. B.) L. R. 3 Q B., 181. Cf. Nelson v. Bridges, 2 Beav., 239, and Ferguson v. Tad

man, 1 Sim., 530; also Ord XXVI. and Ord. XXXVI. rr. 26, 27.

(8) See Seton, 1285. As to the costs of such an inquiry, cf. Slack v. Midland Railway Co., 16 Ch. D., 81.

(t) Jaques v. Millar, 6 Ch. D., 153; Wesley v. Walker, 26 W. R, 368; Seton, 1319.

Where the agreement

1 Agreement to rescind contract, resting in parol only.] to rescind a contract rests only in parol, such rescission must be proved by acts which can leave no doubt of the intent. There must be a cancelling of the contract, or a removal from the possession, or some act which will make the intent positive. Where the agreement is unexecuted, it must be clearly proved, and must be founded on a new consideration. Lauer v See, 42 Pa. S., 165; Pratt v. Morrow, 45 Mo., 404; Washington v. McGee, 7 T. B. Monr, 131; Phelps v. Seely, 22 Gratt., 578.

Example of insufficient proof of rescission of the sale of real property.] For an instructive case, see Pipkin v. Allen, 24 Mo., 520.

Contract rescinded, both parties must consent to renew.] A contract had been rescinded. Held, that it could not be renewed without the mutual consent of both parties. Lassen v. Mitchell, 41 Ill, 101.

Tico parcels of land purchased; rescission, if at all, must be as to both.] A contract was entered into for the purchase of two parcels of land for a definite sum; one was conveyed at the time and the other was to be when both were paid for. Held, that it was an entire purchase, notwithstanding two-thirds of the purchase price was to be applied to one of the parcels, and that if there was a rescission at all it must be as to both parcels. Fay v. Oliver, 20 Vt., 118.

What will amount to an abandonment of an agreement?] An intention to rescind a contract of sale may be shown by circumstances, or it may be shown by such a course of action as establishes clearly that such was the intention of the party. Wheeden v. Fiske, 50 N. H., 125; Green v. Wells, 2 Cal., 584.

What will constitute an abandonment?] Whenever either party so conducts himself that his conduct can be viewed in no other light than that of a relinquishment of the contract, it will be regarded as rescinded. Any act by any of the parties which of necessity prevents the performance of the mutual agree

ment will constitute an abandonment Suber v. Pullin, 1 S. C. (N S.), 273: Wright v. Haskell, 45 Mo., 489; see, also, Tibbatts v. Tibbatts, 6 McLean, 80. Where the vendor sold the land to a third person, this was held to be a rescission of the contract of sale. Little v. Thurston, 58 Me., 86; Warren v. Richmond, 53 Ill., 52. Where ejectment was brought to recover the land in possession of the vendee under a parol contract of sale, this was held to be a rescission of the contract. Hairston v. Jandson, 42 Miss., 3-0. Where the written contract of sale was surrendered, and such act was followed by acts which were inconsistent with its continuance, this was held to be a rescission. Crane v. De Camp, 21 N. J. Eq, 414.

When application of rescission not a rescission?] A party applied for the rescission of a contract and requested the other party to rescind it. Held, that such application did not amount to a rescission, and that it did not imply any breach or abandonment on the part of the applicant. Picot v. Douglass, 46 Mo., 497.

Mere contract of agency.] A railroad corporation employed a party to obtain donations and right of way for an extension of the road; he was to be allowed a large proportion of the amount received for his services Held, that such contract might be revoked whenever the company saw fit. The following is an extract from the opinion. Per curiam: "We can regard the relations between the defendant and the plaintiff, created by the instrument, in no other right than that of principal and agent. It is a familiar principle at law, that an agency is revocable at the will of the principal, unless the power conferred on the agent be given for a valuable consideration or as a security, or is coupled with an interest. It is not claimed that the authority conferred upon the plaintiff was based upon a consideration, or was given as a security. Is it a power coupled with an interest? What was the interest of plaintiff? It was to receive a certain compensation in value and kind of the donations he should receive for defendant. His interest existed in that which should be produced by the exercise of the power conferred upon him. Now. it is plain that the thing in which he had, or rather was to have, an interest could not exist until

the power was exercised The exercise of the power was necessary to bring the thing in which he was to have an interest into existence. In each instance, where a donation was given, the power was exhausted when the donation was received. Hence, the power and the interest were not united. The interest, coupled with a power which gives it an irrevocable character, must be in the thing upon which the power is exercised, and not in that which may be produced by the exercise of the power. Before the exercise of the power conferred by the instrument in question, nothing did or could exist in which plaintiff had an interest. He had a right to a part of the donations which he should procure. He had no interest in a thing, but a right to a thing when it should be created. His power, therefore, was not coupled with an interest, and was revocable at the will of the defendants." Smith v. Cedar Falls and . Minn. R. R. Co., 30 Iowa, 244.

One party refusing to execute a substantial part of the contract.] Where one party to an agreement refuses to execute any substantial part of his contract by that act he gives the other party to the mutual agreement the option to rescind the entire contract by offering to restore what he has received and replacing the parties in their original position. This is true, provided the offer is made within a reasonable time, and the parties can be placed in their original position; the offer must, however, be made distinctly and unequivocally. Webb v. Stone, 24 N. H, 282; Allen v. Webb, 24 id., 278; Sumner v. Parker, 36 id., 449; Fay v. Oliver, 20 Vt., 118; Fletcher v. Cole, 23 id., 114.

Application to rescind must be made without delay.] Where a party asks for the rescission of a contract deliberately entered into, he must make his election with all due promptness. Lowber v. Selden, 11 How. Pr., 526; Lawrence v. Dale, 3 John.'s Ch., 23, 41; Wheaton v. Boker, 14 Barb., 594; Bruce v. Davenport, 3 Keyes, 474; Tobey v. Crown, 37 Md., 51; Hunter v. Daniel, 4 Hare, 420.

Agreement to rescind at future time; waiver.] There was an agreement that if certain acts were not performed at a future day that the contract might be rescinded. Held, that either party might, if so disposed, stand with the con

sent of the other, either express or implied, upon the terms of the original contract; he may waive whatever advantages he has under the agreement of waiver. Echols v. Butler, 28 Miss., 114.

Example of fraud discovered too late to rescind.] A purchaser discovered fraud in his contract and raised no objection; afterwards he found other evidence of fraud and did so. Held, that he was too late to rescind the contract. Patterson, J., said: "To entitle him to do so he should, at the time of discovering the fraud, have elected to repudiate the whole transaction. Instead of doing so, he deals with that for which he now says that he never legally contracted. Long after this, as he alleges, he discovers a new incident in the fraud. This can only be considered as strengthening the evidence of the original fraud, and it cannot revive the right of repudiation which has been once waived Campbell v. Fleming, 1 A. & E., 40.

Reference to determine the amount of damages.] A reference is usually made to a master, or commissioner, to ascertain the amount of damages in an action for specific performance. Where a reference has been ordered. the money should be brought into court. Stevenson v. Jackson, 40 Mich., 702. Where it is proper that a jury should assess the damages, the court may either order an assessment, or remit the parties to an action at law. Milkman v. Ordway, 106 Mass., 232. The contract could not be specifically enforced. for the reason that it was not mutual, fair, just and reasonable in all its parts;" the plaintiff had been deprived of the benefit of the contract by the defendant's fraud. Held, that the money paid should be returned with interest, and this was done without ordering an issue quantum damnificatus. Rider v. Gray, 10 Md., 282; See, also, Pratt v. Law, 9 Cranch, 494.

Rule as to measure of damages in specific performance.] Where the title has failed, without the fault of the vendor, the proper measure of damages is the purchase price, together with legal interest. Luckett v. Williamson, 37 Mo., 368. In a case where the vendor has refused, or put it out of his power to make title, the measure of damages is the difference in the value of the estate at the time the agreement ought to have been completed, and what was to have been paid, if that value exceeds the price mentioned in the agreement. Dustin v. Newcomer, 8 Ohio, 49; Hall v. Delaplaine, 5 Wis., 206. Clayton, P. J., said in Burk v. Senill, 80 Pa. St, 413: "The law regulating the damages to be recovered, makes a distinction between the cases where there is a fraudulent breach of contract and those where the breach is occasioned by some unforeseen and unavoidable obstacle. As where one covenants to convey a good title, and it is afterwards discovered that he does not possess, and by no means in his power can procure, such a title, or the wife of the covenanter, without any collusion, persuasion or request, on his part, refuses to join in the deed. In cases of this kind, when the covenanter does all in his power to fulfill his contract, and, without any fault of his, cannot perform it, the damages ⚫ to be recovered against him are only such actual and immediate losses as he may have suffered, such as the money paid with interest thereon, the time lost and expenses incurred in examining the title, conveyancing expenses, and such work or improvements as he may have made upon the land upon the faith of the contract. But where there is a wanton or dishonest refusal to perform the contract, or where the covenanter, by some fraudulent act on his part, renders the performance impossible-as where, by collusion with his wife, or by request on his part, she refuses to sign the deed, or where her refusal is not her own free and uncontrolled act, but made at the implied or actual request of her husband-the law, in such a case, awards full compensatory damages, and permits a recovery for all the party has lost by reason of the default of the other party, including the value of the bargain, and all injury and damage he may have suffered by reason of any act of his made upon the faith of the broken covenant. Hoar, J., said in Woodbury v. Luddy, 14 Allen, 1: "The plaintiff seeks the aid of a court of equity, to compel the specific performance of the defendant's contract to convey land. The defendant is unable to make a perfect title, and the court, at the plaintiff's election, will compel the conveyance of so much as the defendant can convey, and will award compensation in the nature of damages for the deficiency. The defendant has not undertaken to apportion the contract. If he was sued at law, the whole market value of