wife die or convey,74 and (3) the view that the vendee shall have no abatement of the agreed purchase price on account of the wife's refusal to relinquish her inchoate dower (on the ground usually that such abatement would serve to put upon the wife unfair coercion to relinquish a right given to her by law).75 A reason sometimes given for the refusal of equity to decree performance where the defendant is unable to perform, is lack of mutuality; the vendor could not have compelled performance, therefore the purchaser cannot.76 If this argument is sound the fact that the vendor's lack of title is remediable, because he can procure a good title by purchase, should afford no reason for a decree of specific performance against the vendor; " but the invalidity of the argument is shown by the numerous decisions which award a purchaser specific performance with compensation,78 and generally where a third person on whose consent the defendant's ability to perform depends, is shown to be willing to give the necessary consent, a decree will not be denied.79 Moreover, a purchaser has been allowed in some cases to take a decree if he so wished which gave him all the vendor had, but left the full right for which he had contracted dependent on a third person's action.80 PePublic Service Corp. v. Hackensack Meadows Co., 72 N. J. Eq. 285, 64 Atl. 976.

77

74 Citing: Springle v. Shields, 17 Ala. 295; Bradford v. Smith, 123 Iowa, 41, 98 N. W. 377.

75 Barbour v. Hickey, 2 App. D. C. 207, 24 L. R. A. 763; Cowan v. Kane, 211 Ill. 572, 71 N. E. 1097; Aiple-Hemmelmann Real Estate Co. v. Spelbrink, 211 Mo. 671, 111 S. W. 480 (overruled by Tebeau v. Ridge, 261 Mo. 547, 170 S. W. 871); McCormick v. Stephany, 57 N. J. Eq. 257, 41 Atl. 840 (unless wife's refusal was fraudulently collusive with husband, in which case the rule in New Jersey is contra); Roos v. Lockwood, 13 N. Y. S. 128; Riesz's Appeal, 73 Pa. St. 485; Graybill v. Brugh, 89 Va. 895, 17 S. E. 558, 21 L. R. A. 133, 37 Am. St. Rep. 894. See also Kuratli v. Jackson, 60 Oreg. 203, 118 Pac. 192, 1013, 38 L. R. A. (N. S.) 1195, and cases cited.

Forrer v. Nash, 35 Beav. 167;

V.

"So held in Public Service Corp. Hackensack Meadows Co., 72 N. J. Eq. 285, 64 Atl. 976. 78 See infra, § 1436.

79 Lyman v. Gedney, 114 Ill. 388, 29 N. E. 282, 55 Am. Rep. 871; Jacobson v. Rechnitz, 46 N. Y. Misc. 135, 93 N. Y. S. 173; Kelsey v. Distler, 141 N. Y. App. D. 78, 125 N. Y. S. 602. See also Roquemore v. Mitchell, 167 Ala. 475, 52 So. 423, 140 Am. St. Rep. 52; Ellis v. Small, 209 Mass. 147, 95 N. E. 79; Arnold v. Hull, 7 Grant Ch. (Can.) 47.

80 Thus the vendor of a liquor license has been required to transfer it subject to the possibility that license commissioners may not issue a license to him. In re Fisher, 98 Fed. 89; Fisher v. Cushman,

cuniary inability of the defendant will not, however, preclude a decree for payment where such a decree is appropriate.81

§ 1423. Equity will not make a decree involving excessive difficulty to execute.

Damages are frequently a wholly inadequate remedy for breach of a promise to render personal services, but two analogous difficulties stand in the way of specific enforcement. (1) Long and minute supervision might be needed to secure the proper execution of the decree; (2) the proper performance of the services to the best of the defendant's ability is uncertain and difficult to gauge. And any attempt to overcome these difficulties might involve too serious an infringement of personal liberty to be tolerable. Therefore such promises are not enforceable by affirmative decree; 82 and while they are still executory, counter promises for the conveyance of land, or for other performance within the jurisdiction of equity, are equally unenforceable 83 because of lack of mutuality.84 And in contracts besides those ordinarily designated as contracts of service, it is generally true so far as affirmative relief is concerned, that "Equity will not award specific performance where the duty to be enforced is continuous and reaches over a long period of time, requiring constant supervision by the court." 85 There

103 Fed. 860, 43 C. C. A. 381, 51 L. R. A. 292; In re McArdle, 126 Fed. 442; Ellis v. Small, 209 Mass. 147, 95 N. E. 79, 81. An agent who agreed to transfer his agency may be required to do so subject to the consent of the principal to accepting the transferee. Kelsey v. Distler, 141 N. Y. App. D. 78, 125 N. Y. S.

602.

81 Hopper v. Hopper, 16 N. J. Eq. 147.

82 Clarke v. Price, 2 Wils. Ch. 157; Johnson v. Shrewsbury, etc., R. Co., 3 De G. M. & G. 914; Shubert v. Woodward, 167 Fed. 47, 92 C. C. A. 509; Blue Point Oyster Co. v. Haagenson, 209 Fed. 278; Life Preserver Suit Co. v. National Life Preserver Co., 252 Fed. 139, 164 C. C. A. 251; Roque

more v. Mitchell, 167 Ala. 475, 52 So. 423, 140 Am. St. Rep. 52; H. W. Gossard Co. v. Crosby, 132 Ia. 155, 109 N. W. 483, 6 L. R. A. (N. S.) 1115; Sims V. VanMeter Lumber Co., 96 Miss. 449, 51 So. 459. Cf. infra, § 1450.

83 Cooper v. Pena, 21 Cal. 403; Pacific El. R. Co. v. Campbell-Johnston, 153 Cal. 106, 94 Pac. 623; Deitz v. Stephenson, 51 Oreg. 596, 95 Pac. 803.

84 See infra, § 1440.

85 Pantages v. Grauman, 191 Fed. 317, 112 C. C. A. 61. See also Dominion Coal Co. v. Dominion &c. Steel Co., [1909] A. C. 293; Warmack v. Major Stave Co., 132 Ark. 173, 200 S. W. 799; Pacific, etc., R. v. Campbell-Johnson, 153 Cal. 106, 94 Pac.

1986

fore, "There is no doubt that as a general rule the Court will not enforce specific performance of a building contract.' The basis of equity's disinclination to enforce building contracts specifically is the difficulty of enforcing a decree without the expenditure of effort disproportionate to the value of the result. But where the inadequacy of damages is great, and the difficulties not extreme, specific performance will be granted and the tendency in modern times has been increasingly towards granting relief, where under the particular circumstances of the case damages are not an adequate remedy.87 In an Eng623; Rosenkrantz v. Chattahoochee Brick Co., 147 Ga. 730, 95 S. E. 225; Standard Fashion Co. v. Siegel-Cooper Co., 157 N. Y. 60, 51 N. E. 408, 43 L. R. A. 854, 68 Am. St. Rep. 749, and cases in the following notes.

Romer, L. J., in Wolverhampton v. Emmons, [1901] 1 K. B. 515, 524. See also South Wales R. Co. v. Wythes, 1 K. & J. 186; Oregonian R. Co. v. Oregon R., etc., Co., 37 Fed. 733; Bromberg v. Eugenotto Constr. Co., 158 Ala. 323, 48 So. 60, 19 L. R. A. (N. S.) 1175; Pacific Electric R. Co. v. Campbell-Johnson, 153 Cal. 106, 94 Pac. 623; Robinson v. Luther, 134 Ia. 463, 109 N. W. 775; Madison Athletic Assoc. v. Brittin, 60 N. J. Eq. 160, 46 Atl. 652; Beck v. Allison, 56 N. Y. 366, 15 Am. Rep. 430; Cartwright v. Oregon Elec. R. Co., 88 Oreg. 596, 171 Pac. 1055.

In the following cases specific performance was granted: Storer v. Great Western Ry. Co., 2 Y. & C. (C. C.) 48 (building and maintaining an archway); Sanderson v. Cockermouth Co., 11 Beav. 497 (making roads and accommodations for cattle); Wolverhampton v. Emmons, [1901] 1 K. B. 515. (building structures on land owned by the defendant of a certain height in consideration of a conveyance which had been made by the plaintiff); American Smelting &c. Co. v. Bunker Hill &c. Min. Co., 248 Fed. 172 (disposing of ore which

required operation of mines); Wheeling Traction Co. v. Board of Commissioners, 248 Fed. 205, 160 C. C. A. 283 (paving streets); Hooker v. Savannah, etc., R. Co., 69 Ala. 529 (grading streets); Ross v. Purse, 17 Col. 24, 28 Pac. 473 digging a well); Flege v. Covington, etc., Railroad Co., 122 Ky. 348, 91 S. W. 738, 121 Amer. St. Rep. 463 (building a retaining wall); Jones v. Parker, 163 Mass. 564, 40 N. E. 1044, 47 Am. St. Rep. 485 (installing apparatus for heating and lighting leased premises); Hubbard v. Kansas City, etc., R. Co., 63 Mo. 68 (building a depot); Gregory v. Ingwersen, 32 N. J. Eq. 199 (building steps); Post v. West Shore Co., 123 N. Y. 580, 26 N. E. 7 (building a road. Cf. Conger v. New York, etc., Co., 120 N. Y. 29, 23 N. E. 983); Strauss v. Estates of Long Beach, 187 N. Y. App. D. 876, 176 N. Y. S. 447 (constructing a sewer, where defendant controlled the land on which it was contracted to be built, Chambersburg v. Chambersburg &c. R. 258 Pa. 57, 101 Atl. 922 (repairing road); Grubb v. Starkey, 90 Va. 831, 20 S. E. 784 (laying a water pipe). But see the following cases where equitable relief was denied: Robinson v. Luther, 134 Ia. 463, 107 N. W. 775 (building a drain); Cincinnati, etc., R. Co. v. Washburn, 25 Ind. 259 (fencing a railroad); Columbus, etc., R. Co. v. Watson, 26 Ind. 50 ((fencing a railroad); McCarter

lish case the requirements for specific performance of such contracts have been thus stated: "The first is that the building work, of which [the plaintiff] seeks to enforce the performance, is defined by the contract; that is to say, that the particulars of the work are so far definitely ascertained that the Court can sufficiently see what is the exact nature of the work of which it is asked to order the performance. The second is that the plaintiff has a substantial interest in having the contract performed, which is of such a nature that he cannot adequately be compensated for breach of the contract by damages. The third is that the defendant has by the contract obtained possession of land on which the work is contracted to be done.88 But not all American decisions where relief has been granted fulfil the third requisite, which seems merely one illustration of a situation where the second requisite is fulfilled. The indisposition of equity to grant specific performance of acts which require time for their performance, such as building contracts, is increased where a continuous series of acts must be performed according to the terms of the contract for an indefinite period of time. Thus contracts which call for the operation of a railroad in a particular way for a considerable or indefinite time have not generally been enforced.89 But con

experienced could have been found in describing accurately, and even minutely, the articles to be furnished. Nor are there found in the case at bar any continuous duties to be done, or work to be performed, requiring any permanent supervision, which, as it could not be concluded within a definite and reasonable time, has sometimes been held an obstacle to the enforcement of a contract by the court."

88 Romer, L. J., in Wolverhampton v. Emmons, [1901] 1 K. B. 515, 525, paraphrasing Fry on Specific Performance (3d ed.), 44, 45. Substantially the same statement is made in Wheeling Traction Co. v. Board of Commissioners, 248 Fed. 205, 212, 160 C. C. A. 283.

89 Blackett v. Bates, L. R. 1 Ch.

tracts involving such oversight by equity will be enforced if justice makes it imperative. Therefore where the plaintiff has conveyed land or parted with valuable consideration in return for the promise of a railroad to maintain stations or switching tracks or to stop trains, such contracts have been enforced.90 And in recent years a recognition by the courts of the interests of the public in the performance by public service companies of some of their obligations, has established the principle that where public interests require, equity will decree specific performance of contracts, though they involve a long continued series of acts. Even though no public interest is involved, if 117 (furnishing power to draw cars for a period which might extend to twenty-one years); Powell, etc., Coal Co. v. Taffvale Ry. Co., L. R. 9 Ch. 331 (moving switches and signals necessary to enable the plaintiff to run its cars); Texas & P. R. Co. v. Marshall, etc., Co., 136 U. S. 393, 34 L. Ed. 385, 10 Sup. Ct. 846 (maintaining permanently railway offices as agreed. Cf. Tyler v. St. Louis, etc., Ry. Co., 99 Tex. 491, 91 S. W. 1); Louisville, etc., Ry. Co. v. Bodenschatz-Bedford Stone Co., 141 Ind. 251, 39 N. E. 703 (furnishing shipping facilities); Richmond v. Dubuque & Sioux City, etc., R. Co., 33 Ia. 422 (giving the handling of all through grain); Jones v. Mississippi Farms Co., 116 Miss. 295, 76 So. 880 (operating a railroad); Fort Clinton R. Co. v. Cleveland, etc., R. Co., 13 Oh. St. 544 (operating a railroad). "Phillips v. Great Western R. Co., L. R. 7 Ch. 409; Taylor v. Florida East Coast R. Co., 54 Fla. 635, 45 So. 574, 16 L. R. A. (N. S.) 307, 127 Am. St. Rep. 155; Brown v. Western Maryland Ry. Co', (W. Va. 1919), 99 S. E. 457.

"The leading case is Joy v. St. Louis, 138 U. S. 1, 34 L. Ed. 843, 11 Sup. Ct. 243. See also the following cases where the operation of railroads was enforced: Union Pac. R. Co. v. Chicago, etc. R. Co., 163

U. S. 564, 16 Sup. Ct. 1173, 41 L. Ed. 265 [affirming 51 Fed. 309, 2 C. C. A. 174, 47 Fed. 15]; In re Lennon, 166 U. S. 548, 41 L. Ed. 1110, 17 Sup. Ct. 658; Donovan v. Pennsylvania R., 199 U. S. 279, 26 Sup. Ct. 91, 50 L. Ed. 192; Grand Trunk Western R. Co. v. Chicago, etc., R. Co., 141 Fed. 785, 73 C. C. A. 43; Schmidt v. Louisville, etc., R. Co., 101. Ky. 441, 41 S. W. 1015, 19 Ky. L. Rep. 666, 38 L. R. A. 809; Prospect Park, etc., R. Co. v. Coney Island, etc., R. Co., 144 N. Y. 152, 39 N. E. 17, 26 L. R. A. 610; Cumberland Valley R. Co. v. Gettysburg, etc., R. Co., 177 Pa. St. 519, 35 Atl. 952; Southern R. Co. v. Franklin, etc., R. Co., 96 Va. 693, 32 S. E. 485, 44 L. R. A. 297. In La Follette v. La Follette Water Co., 252 Fed. 762, 164 C. C. A. 602, a contract for furnishing the water supply of a city was specifically enforced at suit of the water company, though it had a number of years to run. In Chambersburg v. Chambersburg &c. R. Co., 258 Pa. 57, 101 Atl. 922, the obligation of a street railway to keep a portion of the highway in repair was specifically enforced. In Baltimore & O. R. Co. v. Western Union Telegraph Co., 241 Fed. 162, it was held that a complaint by a railroad company against a telegraph company for the specific performance of a provision of a contract be