be delivered by instalments. Mr. Austin, too, has expressed his inability to understand on what principle the case proceeded,' and a like inability is here confessed." $ 1727. Contracts for sale of corporate stocks and bonds. The same general principles apply to contracts for the sale of corporate stocks and bonds. If like securities are readily obtainable in the market so that the buyer may thus procure them; if their value is certain and the buyer has in them no other than a mere pecuniary interest, so that an award of damages will adequately compensate him,' the court will usually refuse to decree specific performance. But if they cannot elsewhere be obtained, and the buyer has some lawful and peculiar interest in them which cannot be adequately protected by an award of damages; or if their value is uncertain or there is other reason why the award of the law court will not 1 Jurisprudence, 808. 2 Todd v. Diamond State Iron Co. (1889), 8 Houst. (Del.) 372, 14 Atl. R. 27; Cohn v. Mitchell (1885), 115 Ill. 124. 3 N. E. R. 420; Ryan v. McLane (1900), 91 Md. 175, 46 Atl. R. 340, 50 L. R. A. 501 and exhaustive note. 3 Thus where there was a sale of a yacht, and the defendant [buyer] agreed to pay therefor a certain number of shares of the stock of a certain corporation, but there was no evidence tending to show that the plaintiff had any wish or reason to become the owner of the stock rather than of any other stock of equal value, or that he would not have agreed to take any other stock of equal value in payment of the yacht, or a sum of money equal to that value, specific performance was denied. Eckstein v. Downing (1886), 64 N. H. 248, 9 Atl. R. 626, 10 Am. St. R. 404. And, generally, where no fiduciary relations are involved and the stocks have no peculiar value, and compensation in money would be adequate. Treasurer v. Commercial Coal Mining Co. (1863), 23 Cal. 390; Avery v. Ryan (1889), 74 Wis. 591, 43 N. W. R. 317. 4 Equity will decree specific performance if like stocks cannot be procured elsewhere, or if the legal remedy is doubtful or uncertain, and an award of damages will not be adequate (Manton v. Ray (1894), 18 R. I. 672, 29 Atl. R. 998, 49 Am. St. R. 811; s. c. again, 19 R. I. 423, 36 Atl. R. 1125; Brady v. Yost (1898), —— Idaho, 55 Pac. R. 542; Northern Central Ry. Co. v. Walworth (1899), 193 Pa. St. 207, 44 Atl. R. 253: 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; 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); or where the stock has some unique and special value to the plaintiff (Bumgardner v. Leavitt (1891), 35 W. Va. 194). A pledgor of shares of stock is en do full justice to the buyer,' especially if fiduciary or trust relations are involved, then the court may decree that the contract for their sale and delivery shall be specifically performed. $1728. Even here, however, there is room for the exercise of sound discretion and the furtherance of public policy; and if the execution of specific performance would operate harshly, unjustly or inequitably,' or would promote objects opposed to public policy, relief will be denied. titled to specific performance when not be entertained to decree a spethe stock has no market or ascertain able value, and the pledgor bought it for investment with a view to its increase in value, and he cannot buy more because no holder will sell. Krouse v. Woodward (1895), 110 Cal. 638, 42 Pac. R. 1084. A promise by a corporation to transfer some of its bonds may be specifically enforced where it appears that the corporation is insolvent and the bonds have no market value, such value being dependent upon questions relating to title to real estate which can be determined only by a court of equity. Ames v. Witbeck (1899), 179 Ill. 458, 53 N. E. R. 969. Specific performance of a contract relating to stocks cannot be demanded as a right. But a court of equity will grant it at its discretion when it appears that damages would not be adequate owing to the fact that the matter was in the nature of an experiment, so that the result .could not be known. Williams v. Montgomery (1896), 148 N. Y. 519, 43 N. E. R. 57 [citing Matter of Argus Co., 138 N. Y. 557; Johnson v. Brooks, 93 N. Y. 337]. 1 Thus, in Steinmeyer v. Siebert (1899), 190 Pa. St. 471, 42 Atl. R. 880, 70 Am. St. R. 641, it is said: "The rule that jurisdiction in equity will cific performance respecting goods, chattels, stocks and other things of a merely personal nature is limited to cases where a compensation in damages will furnish a complete remedy. Where the wrong is a betrayal of confidence, equity will decree restitution, which may be enforced specifically against the wrong-doer. In McGowin v. Remington, 12 Pa. St. 56, 51 Am. Dec. 584, a clerk was compelled to surrender drafts, maps, plans, etc., which he had withheld from his employer; in Abbott v. Reeves, 49 Pa. St. 494, 88 Am. Dec. 510, persons who had borrowed stocks and bonds from an executor were required to make restitution; in Pennsylvania Co. V. Franklin Fire Ins. Co., 181 Pa. St. 40, the defendant was required to issue new certificates of stock to an owner whose certificates had been transferred under forged powers of attorney." 2 Where trust or fiduciary relations are involved, the relief may be granted. Goodwin's Appeal (1888), 117 Pa. St. 514; Cowles v. Whitman (1834), 10 Conn. 121, 25 Am. Dec. 60; Krohn v. Williamson (1894), 62 Fed. R. 869. 3 Rigg v. Railway Co. (1899), 191 Pa. St. 298, 43 Atl. R. 212. 4 As where the stock is sought in § 1729. Contracts for the sale of inventions, patents or patented articles. So, on the same ground that an award of damages would usually be an inadequate remedy, performance of a contract for the sale and assignment of a patent or invention may be specifically enforced. "The principal footing of such jurisdiction," it is said,' "is the obvious inadequacy of the redress which an ordinary action at law for damages would afford, as applied to such property, in event of refusal to comply with an agreement for its sale. Rights acquired under letters patent for inventions are of such peculiar nature that they are justly considered proper subject-matter for suits for specific performance." For like reasons an agreement to supply articles which the seller alone can supply, because he controls the patent upon them, may be thus enforced.2 § 1730. Contracts for sale of debts, notes, etc.-So also contracts for the sale of a specific debt,3 or the sale of specific notes bought for a specific purpose known to the seller, may be enforced, as the identical thing is the thing desired and damages would not be an adequate remedy. § 1731. Contracts for the sale of growing trees.-So, further, because of the inadequacy of the remedy at law, it was held in a recent case that, if a contract for the sale of growing order to obtain control of the corpo- Somerby v. Buntin (1875), 118 Mass. 279: Blackmer v. Stone (1889), 51 Ark. 489, 11 S. W. R. 693 [citing Somerby v. Buntin, supra; Burr v. De La Vergne. 102 N. Y. 415; Blakeney v. Goode. 30 Ohio St. 350; Littlefield v. Perry, 21 Wall. 205]. But see Anderson v. Olsen (1900), 188 Ill. 502, 59 N. E. R. 239. 2 Adams v. Messinger (1888), 147 Mass. 185, 17 N. E. R. 491, 9 Am. St. R. 679 [citing Hapgood v. Rosenstock, supra]. 3 Wright v. Bell, 5 Price, 325. 4 Gottschalk v. Stein (1888), 69 Md. 51, 13 Atl. R. 625. trees was to be regarded as relating to a chattel, it would be specifically enforced; if it were held to relate to real estate, it would be a "matter of course to enforce it.1 So. § 1732. Specific performance not to be made substitute for award of damages. But the remedy of specific performance is not to be made a substitute for the ordinary action for damages in cases to which that action is appropriate. Thus, in a late case, it appeared that the plaintiff, who desired to buy a standard-bred Jersey calf, had inquired of the defendant, who had such calves for sale, concerning a certain one, which was so bred but which the defendant fraudulently denied to be The defendant thereupon directed plaintiff's attention to another calf, which the defendant fraudulently represented to be of the quality desired but which in fact was not. Plaintiff thereupon bought the latter rather than the former. Later, on discovering the fraud, the plaintiff sought by an action for "specific performance" to compel the defendant to take back the calf which plaintiff so bought and deliver to him in its stead the one which he would have purchased but for the defendant's false representations. His right to this relief, however, was denied, "his attempt thus to obtain it" being characterized by the court as "absolutely absurd and untenable."2 § 1733. Will not be granted where contract ambiguous, uncertain or unfair.— And finally, not to go too far into the general subject of specific performance, it is to be observed that this relief is not a matter of course; it will not be granted where the contract is ambiguous, indefinite or uncertain,3 or the article unidentified and unascertained, nor where the granting of the relief prayed for would work results inequitable, unfair and unconscionable." 1 Stuart v. Pennis (1895), 91 Va. 688, State Iron Co. (1889), 8 Houst. (Del.) 22 S. E. R. 509. 372, 14 Atl. R. 27. 2 Millirons v. Dillon (1897), 100 Ga. 656. 28 S. E. R. 385. 3 See Fry on Specific Performance, ubi supra, § 334; Todd v. Diamond 4 Lighthouse v. Third Nat. Bank (1900), 162 N. Y. 336, 56 N. E. R. 738. 5 See Fry on Specific Performance, § 334; Rigg v. Railway Co. (1899), 191 Pa. St. 298, 43 Atl. R. 212. § 1734. Action at law for damages the usual remedy.— In the cases in which specific performance cannot be enforced, the remedy of the buyer for the seller's breach of his agreement to sell and convey must be sought at law. The buyer in the contingency now being considered-breach before the transfer of title can obviously not recover the goods, for, by the hypothesis, the title has not vested in him. He must therefore have recourse to an action for damages for the breach of contract. If he has not paid the price in advance, he will still have his money and may go into the market and buy the goods. If he can buy them for not more than the contract price, he obviously has suffered no more than a nominal injury; if he is compelled to pay more than the contract price, that excess usually measures the extent of his loss. If, however, he has paid the price in advance, he is clearly entitled to a recovery of the sum so paid in addition to compensation for any other loss sustained by reason of the excess of the market over the contract price. § 1735. Where the goods have a market value, that value must ordinarily control. If, however, they have no market value, the buyer has still lost any excess which there might be between the price he was to pay and the actual value of the goods he was to receive; and their actual value may then be shown by other evidence. The buyer was entitled to the goods at the time and place fixed by the contract; and values at that time and place must therefore govern the allowance. From the time at which he thus became entitled to some specific sum as compensation for the breach of contract, he should have interest on that amount. These considerations will suggest the rules which must apply to the ordinary case. § 1736. Measure of damages usually difference between the contract price and value of goods at time and place of delivery, with interest. For the breach of the seller's agreement to sell and convey, therefore, the measure of the buyer's |
