of his agreement to transfer the title and surrender the possession to the buyer.

Specific performance, however, as will be seen, is not always practicable nor usually necessary. If the buyer has paid the price in advance, there may be often strong reasons for such a remedy; but if the buyer has not paid in advance and still has the money in his pocket, he may usually go into the market and supply himself with like goods, perhaps with no loss, and usually with but little. In such a case a recovery of damages adequate to compensate for such a loss would furnish a complete and satisfactory remedy. There may, on the contrary, be cases in which like goods cannot be procured in the market, and in such event the recovery of damages does not furnish so satisfactory a remedy.

§ 1718. Specific performance not usually the remedy.— As has been intimated above, specific performance of the contract to sell and convey a chattel will not usually be decreed.1 As is said by Lord Justice Fry: "The court for the most part refuses to interfere in respect of chattels, both because damages are a sufficient remedy and because the price of such articles, especially of merchandise, varies so as often to render the specific

1 See Moulton v. Warren Mfg. Co. (1900), Minn. —, 83 N. W. R. 1082; Northern Trust Co. v. Markell (1895), 61 Minn. 271, 63 N. W. R. 735: Steinmeyer v. Siebert (1899), 190 Pa. St. 471, 42 Atl. R. 880, 70 Am. St. R. 641; Hissam v. Parrish (1896), 41 W. Va. 686, 24 S. E. R. 600, 56 Am. St. R. 892; Manton v. Ray (1894), 18 R. I. 672, 29 Atl. R. 998, 49 Am. St. R. 811; Eckstein v. Downing (1886), 64 N. H. 248, 9 Atl. R. 626, 10 Am. St. R. 404; New England Trust Co. v. Abbott (1894), 162 Mass. 148, 38 N. E. R. 432, 27 L. R. A. 271; Williams v. Montgomery (1896), 148 N. Y. 519, 43 N. E. R. 57; Todd v. Diamond State Iron Co, (1889), 8 Houst. (Del.) 372, 14 Atl. R. 27; Clark v. Truitt (1899), 183 Ill. 239,

55 N. E. R. 683; Ames v. Witbeck (1899), 179 Ill. 458, 53 N. E. R. 969; Anderson v. Olsen (1900), 188 Ill. 502. 59 N. E. R. 239; Carolee v. Handelis (1897), 103 Ga. 299, 29 S. E. R. 935; Millirons v. Dillon (1897), 100 Ga. 656, 28 S. E. R. 385; Krouse v. Woodward (1895), 110 Cal. 638, 42 Pac. R. 1084; Stuart v. Pennis (1895), 91 Va. 688, 22 S. E. R. 509; Electric Service Co. v. Gill-Alexander Co. (1894), 125 Mo. 140, 28 S. W. R. 486; Rigg v. Reading, etc. St. Ry. Co. (1899), 191 Pa. St. 298, 43 Atl. R. 212; Lining v. Geddes (1826), 1 McCord (S. C.), Eq. 304, 16 Am. Dec. 606.

2 Fry on Specific Performance (3d Eng. ed., 1892), § 78.

execution of contracts for their sale and delivery an act of injustice, entailing perhaps ruin on one side, when upon an action that party might not have paid perhaps above a shilling damages. As these principles, however, do not apply to all cases of chattels, exceptions arise, which we shall now consider."

§ 1719.

Where chattel is unique.-"When the chattel in question is unique," continues the same authority," when there is, over and above the market value, that which has been called the pretium affectionis, the court, whether the plaintiff's right has arisen from contract or not, has interfered and not left him to his common-law remedy. The leading case in this branch of the law is Pusey v. Pusey, in which the heir of the family of Pusey recovered possession by a bill in equity of the celebrated Pusey horn: the grounds of the decision are insufficiently reported, but the case 'turned,' to quote Lord Eldon's language in respect of it,3 upon the pretium affectionis independent of the circumstance as to tenure, which could not be estimated in damages.' This has been followed by other similar cases, one having relation to an ancient silver altarpiece, remarkable for a Greek inscription and dedication to Hercules;' another to a tobacco-box of a remarkable and peculiar kind; another to masonic dresses and ornaments; and another to a very finely engraved cherry stone. These particular cases were suits grounded on tort or trust: but the same principle applies to cases of contract relating to chattels."

1 Fry on Specific Performance, ubi Lowther, 13 Ves. 95. A ship is probsupra, SS 79, 80. ably within this principle. See Lynn v. Chaters, 2 Ke. 521, and Claring

21 Vern. 273.

3 In Nutbrown v. Thornton, 10 Ves. bould v. Curtis, 21 L. J. Ch. 541: De

163.

4 Duke of Somerset v. Cookson, 3 P. Wms. 390.

5 Fells v. Read, 3 Ves. 70.

6" Lloyd v. Loaring, 6 Ves. 773. See also Saville v. Tankred, 1 Ves. Sr. 101; s. C., 3 Sw. 141, n.; Lady Arundell v. Phipps, 10 Ves. 139; Lowther v. Lord

Mattos v. Gibson, 4 De G. & J. 276"

7" Per Lord Hardwicke in Pearne v. Lisle, Ambl. 75, in which case a specific delivery of negroes was prayed, but that is not necessary,' said his lordship; 'others are as good."" But in Young v. Burton (1841), 1 McMul. (S. C.) Eq. 255, this

$1720. -Chattels of peculiar importance.- Continuing in a later section,1 Lord Justice Fry further says: "Hitherto unique chattels have been spoken of; but it appears that such jurisdiction as the court exercises in the case of unique chattels it may also exercise in the case of chattels which, though not unique, possess a special and peculiar value to the plaintiff. Thus in North v. The Great Northern Ry. Co., the court upheld its jurisdiction to interfere to prevent the sale of certain wagons belonging to the plaintiff, which had been used by the plaintiff in his business of a colliery owner, and which the defendants asserted that they had a right to detain and sell. 'Where specific things,' said Stuart, V. C.,3 'necessary for conducting a particular business are in the possession of persons who claim a lien upon them, and threaten an immediate sale, this court has undoubted jurisdiction to interfere by injunction and prevent irreparable injury to the debtor, by giving him an opportunity of redeeming assets.""

1721. In accordance with this rule, it was held that, where one party had agreed to supply to the other certain goods indispensable to the business of the latter and which could not be elsewhere obtained, specific performance of the agreement would be enforced. The court approved "as a well-settled principle in the doctrine of specific performance" the rule "that a contract for the sale and delivery of chattels which are essential in specie to the plaintiff, and which the defendant can supply, while no one else can, will be specifically enforced. In such cases the plaintiff could not be indemnified by any such amount of damages as he could recover at law."

doctrine as to slaves was denied. See also Bryan v. Robert (1846), 1 Strob. (S. C.) Eq. 334; Butler v. Hicks (1848), 11 Sm. & M. (Miss.) 78; Savery v. Spence (1848), 13 Ala. 561; Dudley v. Mallery (1848), 4 Ga. 52.

22 Giff. 64.

3 p. 69.

4 Equitable Gas L. Co. v. Baltimore Coal Tar & Mfg. Co. (1884), 63 Md. 285. See also Conemaugh Gas Co. v. Jackson Farm Gas Co. (1898), 186 Pa.

1 Fry on Specific Performance, ubi St. 443, 40 Atl. R. 1000. supra, § 85.

§ 1722. "So, too," says Lord Justice Fry further; "there is the high authority of Lord Hardwicke for suggesting that specific performance might be maintained by a shipbuilder if he were to contract with a land-owner for the supply of timber from an adjoining estate, the ship-builder being under contract to complete a ship by a given time, for which the supply of such timber by the defendant was essential. But this seems open to doubt; and certainly the doctrine will not be extended to mere cases of convenience, as the supply of coal from an adjoining colliery when plenty of other coal can be procured in the neighborhood."2

§ 1723.. A limitation, however, has been put upon the jurisdiction over articles unique or of special value. For, says Lord Justice Fry,3 "it also appears that if the chattel be of a peculiar value, but by contract between the parties a price has been put upon the chattel, that circumstance has been treated as precluding the jurisdiction; for it is an admission that by a money payment full relief can be had."4

§ 1724.

Inadequate remedy at law. Many cases state the rule still more broadly. Thus it is said in Maryland: 5 "We take it to be well settled that where there is an agreement to buy a specific chattel for a specific purpose, and this purpose can only be answered by the delivery of the chattel

Fry on Specific Performance, ubi gomery (1896), 148 N. Y. 519, 43 N. E. supra, § 86. R. 57; Cushman v. Thayer Mfg. Co. (1879), 76 N. Y. 365; Johnson v. Brooks (1883), 93 N. Y. 337; Frue v. Houghton (1882), 6 Colo. 318. In Brady v. Yost (Idaho, 1898), 55 Pac. R. 542, it is held that a contract for

2" Per Lord Hardwicke in Buxton v. Lister, 3 Atk. 383, compared with Pollard v. Clayton, 1 K. & J. 462. And cf. Fothergill v. Rowland, L. R. 17 Eq. 132."

3 Fry on Specific Performance, ubi the sale by the defendant to the supra, § 84.

plaintiff of a newspaper business,

4 Citing Dowling v. Betjemann, 2 printing plant and material used in Johns. & Hem. 544.

5 Gottschalk v. Stein (1888), 69 Md. 51, 13 Atl. R. 625. See also Clark v. Flint (1839), 22 Pick. (Mass.) 231, 33 Am. Dec. 733; Williams v. Mont

the business, with the purpose of continuing it, will be specifically enforced in equity, on the ground that there is no adequate remedy at law.

itself; or where, from the nature of the subject-matter of the agreement, the measure of damages must necessarily be uncertain; or where damages will not be as beneficial to the purchaser as the performance of the contract, equity will interfere, and decree the specific performance of the contract, because, in such cases, an action at law for a breach of the contract will not afford the purchaser a complete and adequate remedy."

§ 1725. Chattels connected with enjoyment of estate.— "Cases might probably arise," continues Lord Justice Fry,' "in which the court would interfere in respect of chattels connected with the enjoyment of an estate, where but for such connection it would not exercise jurisdiction. In one case Lord Eldon made an order specifically to restore to a tenant the stock on a farm, which had been seized by the landlord under a distress and bill of sale; his lordship holding that, under the circumstances of that case, there was an entire contract by which the landlord agreed to let the tenant have both the estate and the chattels, the enjoyment of the chattels being requisite for the enjoyment of the estate.”2

§ 1726. Contracts for sale and delivery in instalments.-"Lord Hardwicke seems to have entertained the view," remarks further the same author,3" that where the contract was for the delivery of chattels by instalments and for payment in a like method, the court would entertain jurisdiction. In a case cited by his lordship, articles for the sale of eight hundred tons of iron, to be paid for by instalments, at periods running through some years, were specifically enforced.a The case appears to have been, as already stated, approved by his lordship, but it was doubted by Lord Hatherley (when V. C.), who remarked on the absence of any case for the sale of mere goods being supported on the ground of their being to 1 Fry on Specific Performance, ubi supra, § 87.

2 Nutbrown v. Thornton, 10 Ves. 159. 3 Fry on Specific Performance, ubi supra, § 89.

4 Taylor v. Neville, cited 3 Atk. 384. Distinguish Nives v. Nives, 15 Ch. Div. 649.

Pollard v. Clayton, 1 K. & J. 462.