the legal remedy under the particular circumstances of the case is clearly inadequate, in recent years some courts at least are disposed to grant relief if possible, though the contract calls for long continued performance, as an instalment contract, 92 or a covenant in a lease to heat and light demised premises.93 A disposition has existed, where the court was prepared to give relief calling for continuous performance to do so by a decree, in form negative, though in effect requiring affirmative action; but since the defendant must act, and not simply forbear there seems no reason why the decrce should not so state.94 tween them that the telegraph company should transmit free messages pertaining to railroad business on lines not located along the railroad up to a certain amount each year, and thereafter should transmit such messages at one-half its regular rates, stated a case for equity; there being no adequate remedy at law. See also cases where contracts involving various forms of public service were enforced. Montgomery L. & P. Co. v. Montgomery Traction Co., 191 Fed. 657; Armour v. Texas R. Co., 258 Fed. 185 (C. C. A.); Mobile Electric Co. v. Mobile (Ala.), 79 So. 39; Dailey v. New York, 170 N. Y. App. D. 267, 156 N. Y. S. 124, aff'd without opinion 218 N. Y. 665, 113 N. E. 1053; Larchmont v. Larchmont Park, 185 N. Y. App. D. 330, 173 N. Y. S. 32; Great Northern R. v. Sheyenne Tel. Co., 27 N. Dak. 256, 145 N. W. 1062. But see Loan Star Salt Co. v. Texas Short Line R. Co., 99 Tex 434, 90 S. W. 663, 3 L. R. A. (N. S.) 828; Oconto Electric Co. v. City, 168 Wis. 91, 169 N. W. 293. 92 St. Regis Paper Co. v. Santa Clara Lumber Co., 173 N. Y. 149, 65 N. E. 967; Dells Paper & Pulp Co. v. Willow Lumber Co. (Wis.), 173 N. W. 317. See also Buxton v. Lister, 3 Atk. 383. But see Fothergill v. Rowland, L. R. 17 Eq. 132; Dominion Coal Co. v. Dominion &c. v. Newdigate, 10 Ves. 192, the plaintiff sought the enforcement of a covenant in a lease by which he was entitled to the unimpaired use of a canal and to have it kept in repair. Lord Eldon enjoined the defendant from impeding the plaintiff in his use of the canal, by continuing to keep it out of repair. Lords Lyndhurst and Brougham in Blakemore v. Glamorganshire Canal Navigation Co., 1 Mylne & K. 154, 184, expressed the opinion that it would be better if the jurisdiction were exercised to do so directly rather than in a "roundabout mode," but it was not until Jackson v. Normanby Brick Co., [1899] 1 Ch. 438, that the change in practice was actually made. See also in support of the direct rather than the roundabout decree, Fortescue v. Lostwithiel R. Co,. [1894] 3 Ch. 621, 640; Brown v. Western R. Co. (W. Va.), 99 S. E. 457. Cf. Keith v. National Tel. Co., [1894] 2 Ch. 147; Prospect Park R. Co. v. Coney Island R. Co., 144 N. Y. 152, 39 N. E. 17, 26 L. R. A. 610. § 1424. The contract must be certain. 96 A court of equity cannot grant specific performance unless a decree can be framed which states with some exactness what the defendant must do. This necessity makes a degree of certainty necessary for equitable enforcement of a contract which is not always requisite for its enforcement at law.95 It is necessary not only that the defendant's duty under the contract shall be certain, but the plaintiff's also, since the decree must provide for that performance as well as the defendant's." But if there is sufficient expressed to make a legally valid contract, a court of equity can make certain by its decree, within reasonable limits, subordinate details of performance which the contract itself did not state. Thus where no time of performance is stated in the contract, the court may by its decree fix a reasonable time.97 In cases where specific performance of only part of an agreement is in question, it should also be observed that such uncertainty in another portion of the contract as would preclude specific performance of the latter portion will not destroy the plaintiff's claim for specific performance 5 For the degree of certainty necessary for the creation of a contract at law, see supra, §§ 37 et seq. For statements of the equitable doctrine see Minnesota Tribune Co. V. Associated Press. 83 Fed. 350, 27 C. C. A. 542; Rushton v. McKee, (Ala. 1917), 77 So. 343; Stanton v. Singleton, 126 Cal. 657, 59 Pac. 146, 47 L. R. A. 334; Winter v. Goebner, 21 Colo. 279, 40 Pac. 570; Barnes #. Cowan, 147 Ga. 478, 94 S. E. 564; Dreiske v. Eisendrath Co., 214 Ill. 199, 73 N. E. 379; Waite v. Consigny, 183 Iowa, 259, 167 N. W. 200; Jones #. Wells, 31 Mich. 170; Gates v. McLaulin, 199 Mich. 438, 165 N. W. 614; Heinisch v. Pennington, 73 N. J. Eq. 456, 68 Atl. 233; Davila . United Fruit Co., 88 N. J. Eq. 602, 103 Atl. 519; H. M. Weill Co. v. Creveling, 181 N. Y. App. D. 282, 168 N. Y. S. 385, affd. 223 N. Y. 672, 119 N. E. 1048; Soloman v. Wilmington Sewerage Co, 142 N. C. 439, 55, S. E. 300, 6 L. R. A. (N. S.) 391; Feenaughty v. Beall, 91 Oreg. 654, 178 Pac. 600; Anthony v. Eve, (S. Car.) 95 S. E. 513; Hoster's Committee v. Zollman, 122 Va. 41, 94 S. E. 164. 96 Burke v. Mead, 159 Ind. 252, 64 N. E. 880. 97 Inglis v. Fohey, 136 Wis. 28, 116 N. W. 857. See also Penney v. Norton (Ala.), 81 So. 616. So a provision in a contract for a deed in the "usual" form may be enforced if from parol evidence it appears that the main provisions of a conveyance are usually in substance the same in the locality in question. Hebert v. Mutual L. Ins. Co., 12 Fed. 807; Cochrane v. Justice Min. Co., 16 Colo. 415, 26 Pac. 780; Scannell v. American Soda Fountain Co., 161 Mo. 606, 61 S. W. 889. See also Noyes v. Bragg, 220 Mass. 106, 107 N. E. 669. of the former part, if partial enforcement is otherwise allowable.98 It seems probable that the difficulty regarding uncertainty has been overemphasized.99 It should not be allowed to hamper equitable relief further than necessity requires.1 § 1425. Discretionary character of the remedy. As has been said, wherever a contract is unenforceable at law, ordinarily it is unenforceable in equity. Such defences, as fraud, duress, mistake, illegality, which would be ground for a defence, either legal or equitable, to an action at law are a fortiori ground for refusing the equitable relief of specific performance. But conversely there are some contracts which though they may be enforceable at law, and may relate to a subject-matter of which equity ordinarily takes jurisdiction are denied equitable relief. For this reason the jurisdiction of equity is generally called discretionary.3 More exactly it may be said that wherever a contract though legally valid is grossly unfair, or its enforcement opposed to good policy for any reason, equity will refuse to enforce it, and though certain kinds of unfairness may be classified, equity declines to make an exact inventory of what amounts to such unfairness or impropriety as will preclude relief, but leaves a borderland where the court can consider the particular facts of each case and deal with it on its 98 Price v. McKay, 53 N. J. Eq. 588, 32 Atl. 130. 99 See the comments of Professor Pound in 33 Harv. Law Rev. 433. do not doubt that an expert would Hess v. Bowen, 241 Fed. 659, In Jones v. Parker, 163 Mass. 564, 40 N. E. 1044, 47 Am. St. Rep. 485, the obligation enforced was to heat and light certain premises. This involved the installation of proper apparatus and a determination of what was suitable. Holmes, J. met the objection of lack of certainty by saying "If the plaintiff were left to an action at law, a jury would have to determine whether what was done amounted to a reasonable heating and lighting. A judge sitting without a jury would find no difficulty in deciding the same question. We notes. merits. Specific performance will be denied if opposed to public policy, though the contract may not be so clearly illegal that a remedy at law would be denied. So if the contract is unconscionable in its terms, equity will not enforce it.5 4 A contract by which the defendant contracts to part with his future means of livelihood is looked upon with disfavor and will not be specifically enforced. Not only where performance of the plaintiff's contract would involve a breach by the defendant of a contract with a third person, as the plaintiff was aware when he entered into the contract, but even where the 'Beasley v. Texas & Pacific R. Co., 191 U. S. 492, 48 L. Ed. 274, 24 Sup. Ct. Rep. 164. 'Chesterfield v. Jansen, 2 Ves. Sr. 125; Mississippi, etc., R. Co. v. Cromwell, 91 U. S. 643, 23 L. Ed. 367; Randolph's Ex'r v. Quidnick Co., 135 U. S. 457, 34 L. Ed. 200, 10 Sup. Ct. Rep. 655; Dalzell V. Dueber Watch Case Mfg. Co., 149 U. S. 315, 323, 37 L. Ed. 749, 13 Sup. Ct. 886; Nevada Nickel Syndicate v. National Nickel Co., 96 Fed. 133; Marks v. Gates, 154 Fed. 481, 83 C. C. A. 321, 14 L. R. A. (N. S.) 317; Clark v. Rosario &c. Co., 176 Fed. 180, 99 C. C. A. 534; Alabama Central R. Co. v. Long, 158 Ala. 301, 48 So. 363; Agard v. Valencia, 39 Cal. 292, 302; White v. Sage, 149 Cal. 613, 87 Pac. 193; Godwin v. Springer, 233 Ill. 229, 84 N. E. 234; Shoop v. Burnside, 78 Kans. 871, 98 Pac. 202; Jones v. Prewitt, 128 Ky. 496, 108 S. W. 867, 33 Ken. L. Rep. 358; Banaghan v. Malaney, 200 Mass. 46, 85 N. E. 839, 19 L. R. A. (N. S.) 871, 128 Am. St. Rep. 378; Van Norsdall v. Smith, 141 Mich. 355, 104 N. W. 660; Aiple-Hemmelmann Real Estate Co. v. Spelbrink, 211 Mo. 671, 111 S. W. 480; Bartley #. Lindabury, 89 N. J. Eq. 8, 104 Atl. 333; Melton v. Cherokee Oil & Gas Co., (Okl. 1917), 170 Pac. 691, cert. denied 247 U. S. 507, 38 S. Ct. 427. In Weegham v. Killefer, 215 Fed. 168, 171 (aff'd sub nom. Weeghman v. Killifer, 215 Fed. 289, 131 C. C. A. 558), the court quoted with approval the following extracts: "In Deweese v. Reinhard, 165 U. S. 386, 17 Sup. Ct. 340, 41 L. Ed. 757, Mr. Justice Brewer, speaking for the court, said: 'A court of equity acts only when and as conscience commands, and if the conduct of the plaintiff be offensive to the dictates of natural justice, then, whatever may be the rights he possesses and whatever use he may make of them in a court of law, he will be held remediless in a court of equity.' In Larscheid v. Kittell, 142 Wis. 172, 175, 125 N. W. 442, 443 (20 Ann. Cas. 576) the Supreme Court of Wisconsin said: "The exclusion of a plaintiff from the peculiar favors of courts of equity results equally where his conduct has been unconscionable by reason of a bad motive, or where the result in any degree induced by his conduct will be unconscionable either in the benefit to himself or the injury to others.'' Marks v. Gates, 154 Fed. 481, 83 C. C. A. 321, 14 L. R. A. (N. S.) 317; Marks v. Gates, 2 Alaska, 519; Bates Mach. Co. v. Bates, 87 Ill. App. 225; Mahaney v. Carr, 175 N. Y. 454, 67 N. E. 903; Ferguson v. Blackwell, 8 Okla. 489, 58 Pac. 647. See also McCarty v. Kyle, 4 Coldw. 348. agreement of the defendant with the third person was invalid as a contract both at law and in equity for uncertainty, equity has refused to aid the plaintiff because his conduct violated good morals." Specific performance may be denied also if the hardship to the defendant of performing will be out of all proportion to the value of the performance to the plaintiff. Appreciation or depreciation in value or other events subsequent to the formation of the contract will not ordinarily afford ground for refusing enforcement by equity even though they make the performance of the two parties unequal. But if the plaintiff was in default or guilty of gross laches, and the value of the property has materially changed, specific performance may be denied, since otherwise a plaintiff might endeavor to take a speculative advantage of the changes in value.10 Even apart 7 Weeghman v. Killifer, 215 Fed. 168, 289, 131 C. C. A. 558. The defendant Killifer was employed by the Philadelphia Ball Club, and his contract contained an option to the Club to reëngage him at a salary to be agreed upon. The Club had announced that it exercised the option, but no salary had been agreed upon when the plaintiff, knowing the facts, induced Killifer to enter into a contract to play with a Chicago Club. The court, though admitting the invalidity of the Philadelphia employment denied the plaintiff an injunction, leaving him to his remedy at law. See also infra, § 1429, ad fin. 8 South, etc., R. Co. v. Highland Ave., etc., R. Co., 119 Ala. 105, 24 So. 114; Herzog v. Atchison, etc., R. Co., 153 Cal. 496, 95 Pac. 898, 17 L. R. A. (N. S.) 428; Sanitary Dist. of Chicago v. Martin, 227 Ill. 260, 81 N. E. 417; Harter v. Morris, (Ind. App. 1916), 123 N. E. 23. • Eastern Counties R. Co. v. Hawkes, 5 H. L. Cas. 331; Haywood v. Cope, 25 Beav. 140; Willard v. Tayloe, 8 Wall. 557, 19 L. Ed 501; Franklin Tel. Co. v. Harrison, 145 U. S. 459, 36 L. Ed. 776, 12 Sup. Ct. 900; Walton v. McKinney, 11 Ariz. 385, 94 Pac. 1122; Warner v. Marshall, 166 Ind. 88, 75 N. E. 582; Anderson v. Anderson, 251 Ill. 415, 96 N. E. 265, Ann. Cas. 1912 C. 556; King v. Raab, 123 Iowa, 632, 99 N. W. 306; Lee v. Kirby, 104 Mass. 420, 428; Nims v. Vaughn, 40 Mich. 356; Willard v. Foster, 24 Neb. 205, 38 N. W. 786; Keim v. Lindley (N. J. Eq.), 30 Atl. 1063; Prospect Park &c. R. Co. v. Coney Island &c. R. Co., 144 N. Y. 152, 39 N. E. 17, 26 L. R. A. 610; Hairston v. Bescherer, 141 N. Car. 205, 53 S. E. 845; Sylvester v. Born, 132 Pa. 467, 19 Atl. 337; Rausch v. Hanson, 26 S. Dak. 273, 128 N. W. 611; Clark v. Hutzler, 96 Va. 73, 30 S. E. 469; Peterson v. Chase, 115 Wis. 239, 91 N. W. 687. 10 Holgate v. Eaton, 116 U. S. 33, 6 S. Ct. 224, 29 L. Ed. 538; Cooper v. Brown, 2 McLean, 495; Schuessler v. Hatchett, 58 Ala. 181; Swaim v. Beakley, 133 Ark. 406, 202 S. W. 476; Requa v. Snow, 76 Calif. 590, 18 Pac. 862; Tobey v. Foreman, 79 Ill. 489; Findley v. Koch, 126 Iowa, 131, 101 N. W. 766; Niquette v. Green, |