B is entitled to a decree directing A to convey the house to him, he paying the purchase-money. In consideration of being released from certain obligations imposed on it by its Act of incorporation, a railway-company contract with Z to make an archway through their railway to connect lands of Z severed by the railway, to construct a road between certain specified points, to pay a certain annual sum towards the maintenance of this road, and also to construct a siding and a wharf as specified in the contract. Z is entitled to have this contract specifically enforced, for his interest in its performance cannot be adequately compensated for by money; and the Court may appoint a proper person to superintend the construction of the archway, road, siding and wharf1. A contracts to sell, and B contracts to buy, a certain number of railway-shares of a particular description. A refuses to complete the sale. B may compel A specifically to perform this agreement, for the shares are limited in number and not always to be had in the market, and their possession carries with it the status of a shareholder, which cannot otherwise be procured 2. A contracts with B to paint a picture for B, who agrees to pay therefor Rs. 1000. The picture is painted. B is entitled to have it delivered to him on payment or tender of the Rs. 1000. of clause (d)—A transfers without endorsement, but for valuable consideration, a promissory note to B. A becomes insolvent, and C is appointed his assignee. B may compel C to endorse the note, for Chas succeeded to A's liabilities, and a decree for pecuniary compensation for not endorsing the note would be fruitless. of which 13. Notwithstanding anything contained in section 56 of Contracts the Indian Contract Act 5, a contract is not wholly impossible the subject of performance because a portion of its subject-matter, exist- has partially ing at its date, has ceased to exist at the time of the per- ceased to formance. Illustrations. (a) A contracts to sell a house to B for a lákh of rupees. The day after the contract is made, the house is destroyed by a cyclone. B may be compelled to perform his part of the contract by paying the purchase-money 1 Storer v. G. W. Ry. Co., 2 Y. & C. N. R. 48, 53. And see Powell v. G. W. Ry. Co., 1 Jur. N. S. 773: Wilson v. Furness Ry. Co., L. R., 9 Eq. 28: Greene v. W. Cheshire Ry. Co., L. R., 13 Eq. 44: Frith v. Midland Ry. Co., L. R., 20 Eq. 100: Dart, 989. This illustration seems to accord with the Scotch practice; Fry, S. P., 989. 2 Duncuft v. Albrecht, 12 Sim. 189. See Fry, §§ 54, 1468-1501. Specific performance has been granted of con exist. Specific perform ance of part of contract (b) In consideration of a sum of money payable by B, A contracts to grant an annuity to B for B's life. The day after the contract has been made, B is thrown from his horse and killed. B's representative may be compelled to pay the purchase-money1. 14. Where a party to a contract is unable to perform the whole of his part of it, but the part which must be left unperformed bears only a small proportion to the whole in where part value, and 2 admits of compensation in money, the Court may, at the suit of either party, direct the specific performance of so much of the contract as can be performed, and award compensation in money for the deficiency3. unperformed is small. Specific performance of part of contract where part unperformed is large. Illustrations. 4 (a) A contracts to sell B a piece of land consisting of 100 bighás. It turns out that 98 bighás of the land belong to A, and the two remaining bighás to a stranger, who refuses to part with them. The two bighás are not necessary for the use or enjoyment of the 98 bighás, nor so important for such use or enjoyment that the loss of them may not be made good in money. A may be directed at the suit of B to convey to B the 98 bighás and to make compensation to him for not conveying the two remaining bighás; or B may be directed, at the suit of A, to pay to A on receiving the conveyance and possession of the land, the stipulated purchase-money, less a sum awarded as compensation for the deficiency. (b) In a contract for the sale and purchase of a house and lands for two lakhs of rupees, it is agreed that part of the furniture should be taken at a valuation. The Court may direct specific performance of the contract notwithstanding the parties are unable to agree as to the valuation of the furniture, and may either have the furniture valued in the suit and include it in the decree for specific performance, or may confine its decree to the house. 15. Where a party to a contract is unable to perform the whole of his part of it, and the part which must be left unperformed forms a considerable portion of the whole, or does not admit of compensation in money, he is not entitled to obtain a decree for specific performance. But the Court may", at the suit of the other party, direct the party in default to 1 Mortimor v. Capper, 1 Bro. C. C. 156. 2 not 'or,' as in sec. 15. 3 Taken from the Law Commissioners' Draft Contract Law, cl. 53. The drafting is not quite accurate. See in England, Dart, 1065, and the Law Quarterly Review, Jan. 1887, p. 54. If they were necessary, specific performance would not be decreed against B; Peers v. Lambart, 7 Beav. 546: Perkins v Ede, 16 Beav. 193. 5 Richardson v. Smith, L. R., 5 Chan. 648. not and,' as in sec. 14. ' in its discretion, sec. 22, II, infra. perform specifically so much of his part of the contract as he can perform, provided that the plaintiff1 relinquishes all claim to further performance, and all right to compensation, either for the deficiency, or for the loss or damage sustained by him through the default of the defendant 2. Illustrations. (a) A contracts to sell to B a piece of land consisting of 100 bighás. It turns out that 50 bighás of the land belong to A, and the other 50 bighás to a stranger, who refuses to part with them. A cannot obtain a decree against B for the specific performance of the contract; but if B is willing to pay the price agreed upon, and to take the 50 bighás which belong to A, waiving all right to compensation either for the deficiency or for loss sustained by him through A's neglect or default, B is entitled to a decree directing A to convey those 50 bighás to him on payment of the purchasemoney. (b) A contracts to sell to B an estate with a house and garden for a lákh of rupees. The garden is important for the enjoyment of the house. It turns out that A is unable to convey the garden. A cannot obtain a decree against B for the specific performance of the contract; but if B is willing to pay the price agreed upon, and to take the estate and house without the garden, waiving all right to compensation either for the deficiency or for loss sustained by him through A's neglect or default, B is entitled to a decree directing A to convey the house to him on payment of the purchase money. 16. When a part of a contract which, taken by itself, can Specific and ought to be specifically performed, stands on a separate ance of inperformand independent footing from another part of the same contract dependent which cannot 3 or ought not to be specifically performed, the contract. Court may direct specific performance of the former part. 17. The Court shall not direct the specific performance of a part of a contract except in cases coming under one or other of the three last preceding sections". 1 being the buyer. Taken from the Law Commissioners' Draft Contract Law, cl. 54. Other illustrations are, Earl of Durham v. Legard, 34 L. J., Ch. 589, where the estate was supposed to contain 21,750 acres, but in fact contained only 11,814; and Maw v. Topham, 19 Beav. 576, where the vendors were only entitled to three-fourths. The Act does not empower a vendor in case of essential misdescription, part of Bar in other cases of specific performance of where compensation cannot be as. part. 3i.e. which becomes impossible. Law Commissioners' Draft Contract Pur chaser's rights against vendor with imperfect title. Power to award compensation in certain cases. 18. Where a person contracts to sell or let certain property 1, having only an imperfect title thereto, the purchaser or lessee (except as otherwise provided by this chapter) has the following rights : (a) if the vendor or lessor 2 has subsequently to the sale or lease acquired any interest in the property, the purchaser or lessee may compel him to make good the contract out of such interest 3; (6) where the concurrence of other persons is necessary to validate the title, and they are bound to convey at the vendor's or lessor's request, the purchaser or lessee may compel him to procure such concurrence; 5 (c) where the vendor professes to sell unincumbered property, but the property is mortgaged for an amount not exceeding the purchase-money, and the vendor has in fact only a right to redeem it, the purchaser may compel him to redeem the mortgage and to obtain a conveyance from the mortgagee *; (d) where the vendor or lessor sues for specific performance of the contract and the suit is dismissed on the ground of his imperfect title, the defendant has a right to a return of his deposit (if any) with interest thereon, to his costs of the suit, and to a lien for such deposit, interest and costs on the interest of the vendor or lessor in the property agreed to be sold or let 7. 19. Any person suing for the specific performance of a contract, may also ask for compensation for its breach, either in addition to, or in substitution for, such performance 8. 38 Cal. 144: the subsequently acquired interest feeds (as English lawyers say) the estoppel, Ascough v. Johnson, 2 Vern. 66. For the converse case, see Murrell v. Goodyear, I D. F. & J. 432. i. e. under a legal obligation. 5 i. e. represents, either expressly or by implication. See Averall v. Wade, Lloyd & G., temp. Sug. 261. 6 of such interest as he has under the mortgage. 7 Turner v. Marriott, L. R., 3 Eq. 744: Middleton v. Magnay, 2 Hem. & M. 233 21 & 22 Vic. c. 27: 8 Cal. 963. If in any such suit the Court decides that specific performance ought not to be granted, but that there is a contract between the parties which has been broken by the defendant and that the plaintiff is entitled to compensation for that breach, it shall award him compensation accordingly. If in any such suit the Court decides that specific performance ought to be granted, but that it is not sufficient to satisfy the justice of the case, and that some compensation for breach of the contract should also be made to the plaintiff, it shall award him such compensation 1 accordingly. 1 Compensation awarded under this section may be assessed in such manner as the Court may direct 2. 3 Explanation. The circumstance that the contract has become incapable of specific performance does not preclude the Court from exercising the jurisdiction section. Illustrations conferred by this of the second paragraph :-A contracts to sell a hundred maunds of rice to B. B brings a suit to compel A to perform the contract or to pay compensation. The Court is of opinion that A has made a valid contract and has broken it, without excuse, to the injury of B, but that specific performance is not the proper remedy 5. It shall award to B such compensation as it deems just. of the third paragraph:-A contracts with B to sell him a house for Rs. 1000, the price to be paid and the possession given on the 1st January 1877. A fails to perform his part of the contract, and B brings his suit for specific performance and compensation, which is decided in his favour on the 1st January 1878. The decree may, besides ordering specific performance, award to B compensation for any loss which he has sustained by A's refusal ®. Sec. 19 must be read in connexion with sec. 29 infra. In England the right to damages may be forfeited by the plaintiff's laches, 8 Jur. N. S. 873 but not an indemnity. 2 i. e. by taking an account, issuing a commission (Code of Civ. P. sec. 392), or directing an inquiry. Cf. 21 & 22 Vic. c. 27, 88. 3, 6. In India, as in England (Ord. 36, R. 58), in respect of any continuing cause of action, the damages should be assessed down to the time of the assessment. As to the measure of damages, the Court of course is bound by the rules applicable to the contract in question, and section 19 (like Lord Cairns' Act, 21 & 22 Vic. c. 27, on which it is founded) gives no right to damages where they could not have been previously recovered, The Rock Portland Cement Co. v. Wilson, 52 L. J., Ch. 214. 3 from the default of either party, as where the vendor has since the date of the contract for sale sold the property to another for value without notice. to award compensation. The proper remedy is a suit for damages, sec. 21, cl. a. Taken from the Law Commis |