Reply. 1. The plaintiff joins issue upon the defence. 2. As to the 2nd and 3rd paragraphs the plaintiff says that at the time the defendant applied for the said sum of £30, he had in his possession a sum of £35 which the plaintiff had given him a week before upon the express agreement that it was to cover all the necessary disbursements in the said cause, and to provide for counsel's fees and the subpoenaing of witnesses. 3. The plaintiff denies that he is indebted to the defendant in the sum of £55 13s. 4d., or any other sum for professional services. Rejoinder. The defendant joins issue upon the reply. 5. Claim against a Solicitor for detaining Deeds from a Client. The defendant detains from the plaintiff the plaintiff's goods and chattels, that is to say, a large number of deeds and other writings contained in a schedule which was served on the defendant on the day of , accompanied by a demand for the return of the said deeds and writings mentioned therein. The plaintiff claims a return of the said deeds and writings or their value and £100 damages for their detention. Defence and Counter-claim. 1. The defendant is a solicitor, and the deeds and writings referred to in the statement of claim are certain documents delivered by the plaintiff to the defendant to enable him to investigate the title to an estate called "B." which the plaintiff had contracted to purchase. 2. The professional charges of the defendant in connection with the investigation of the said title amount to £60, of which the plaintiff has only paid £20. 3. The defendant holds the said deeds and writings under his lien as a solicitor for the balance of said costs and charges. Counter-claim. 1. The defendant repeats the allegations in paragraphs 1 and 2 hereof. Particulars of the said costs and charges were delivered in a signed bill of costs one month before the delivery of the defence herein. The defendant counterclaims £40. Reply. 1. The plaintiff joins issue upon the defence. 2. He further says that the defendant expressly agreed with him in writing to investigate the title to the property mentioned for the sum of £20, which sum the plaintiff has paid. Rejoinder The defendant joins issue upon the reply. Specific performance in the discretion of the Court. Specific Performance (a). Action by Vendor against Purchaser. 1. By an agreement [or letters] dated [or made verbally at interviews on or about] the day of, the plaintiff (a) The interference of the Court of Chancery to compel specific performance of a contract being a matter within the discretion of the Court, specific performances will be refused in many cases. It has been said that a hard bargain will not be enforced, but the plaintiff left to his remedy at law. At all events the Court would not enforce a contract entered into by mistake, or obtained by fraud, or unconscionable means, or tainted with illegality, or immorality (Thomson v. Thomson, 7 Ves. 470); or a voluntary contract, as where A. covenanted to surrender copyholds in trust for B. his child (Jeffreys v. Jeffreys, Cr. & Ph. 141); or a revocable contract; and if there be no mutuality, specific performance will be refused. Therefore, as there can be no decree for specific performance made against an infant, an infant cannot obtain a decree for specific performance against another person. (Flight v. Bolland, 4 Russ. 301.) But it is no defence to an action for specific performance that, by reason of the Statute of Frauds, specific performance could not be decreed against the plaintiff. Specific performance of contracts which require personal skill will not be decreed, as, for instance, a contract to build a house or to sing at a concert. South Wales Rail. Co. v. Wythes, 1 K. & J, 186; Martin v. Nuthin, 2 P. Wms. 266. In a recent case in which the plaintiffs claimed the specific performance of an agreement for the composition of a literary work by the agreed to sell to the defendant the "Home Farm," Kent, for The sale was to be completed on the [If the agreement was verbal, add —.] day of 2. The agreement so entered into has been part performed as follows: [state how]. defendant, alleging that the agreement was contained in three documents, the plaintiffs proved the first and third documents, but not the second, and it was held that the plaintiffs could neither have specific performance of the agreement contained in the first and third documents, nor damages for the breach of it. (Port v. Marsh, 16 Ch. Div. 395; 50 L. J. Ch. 287.) In the same case the plaintiffs claimed that it had been agreed, that the title page should state that the book had been edited by K. (which was not the case). K. did not object, but it was held that this savoured of fraud upon the public, and on that ground also specific performance was refused. The Chancery Division has jurisdiction to enforce specifically an agreement for a separation and for the compromise of a divorce suit. (Hart v. Hart, 18 Ch. Div. 670; 50 L. J. Ch. 697.) It is no answer to a suit for specific performance for the defendant to say that though he understood what the words of the agreement were, he was under a mistake as to their legal effect. The Court is reluctant to decree specific performance of an ambiguous agreement, and although, where an agreement is clear, the Court must act upon its own view of the construction, without regard to the view entertained by the parties, yet where a party has throughout insisted on one construction of an obscure agreement, he cannot get specific performance on the footing of the opposite construction. (Marshall v. Berridge, 19 Ch. Div. 233.) A contract for the sale of chattels to the plaintiff contained an express negative stipulation not to sell to any other manufacturer. Upon this, the Court granted an injunction to restrain the breach of the negative stipulation, although the contract was one of which specific performance would not have been granted. (Donnell v. Bennett, 22 Ch. Div, 835; Cf. Wolverhampton J., Co., v. L. & N. W. Rail. Co., L. R. 16 Eq. 433.) Whether the Court can enforce specific performance of an agreement to sell a medical practice, quære. (May v. Thomson, 20 Ch. Div. 705.) There is an important distinction between seeking and resisting specific performance as to the admission of evidence, for though a defendant resisting specific performance may go into parol evidence to show that by fraud or mistake the written agreement does not express the real terms, a plaintiff cannot do so for the purpose of obtaining a specific performance with a variation. (Woollans v. Hearn, 2 Wh. & T. L. Cas. 468.) Where, however, a parol variation has been in part performed, a specific performance of the written agreement with the parol variation will be decreed. (Legat v. Miller, 2 Ves. 299.) The doctrine of part performance, however, only applies to contracts relating to land. As a defence, parol evidence on the ground of surprise, fraud, accident, or mistake, is admissible, not only as collateral to, and independent of, the written agreement, but in contradiction to it. (Ramsbottom v. Gordon, 1 V. & B. 165.) And it may be said, in short, that unless the plaintiff comes with perfect propriety of conduct, clear from all circumvention and deceit, and the agreement is certain, fair, and just, in all its parts, or if the conditions of sale be misleading, or erroneous, specific performance will not be decreed. (Hamett v. Bahn, L. R. 20 Eq. 50: 2 Wh. & T. L. Cas. 489.) And where specific performance may injure a third person by Effect of a negative stipulation. Admissibility of parol evidence to vary written con tract. Contracts The plaintiff claims specific performance of the above agreement, and that the defendant may be ordered to pay the purchase-money and to accept a proper conveyance of the premises. Action by Vendor against Purchaser's Erecutor for Specific 1. By an agreement in writing, dated the 20th day of August, 1883, the plaintiff agreed to sell to A. B. the house No. 75, High Street, Southwark, for £1,000. The sale was to be completed on the 29th of September, 1883. 2. On August 29th, 1883, A. B. died. The defendant is his executor, and has proved his will. possibly creating a title with which he might have to contend, specific performance may be refused. (Hamett v. Fielding, 2 Sch. & Lef. 554.) As a rule the Court will not decree specific performance of a contract regarding choses in action or personal chattels. But there are a few exceptions to the rule. If the contract relate to an article of peculiar relating to distinction, or one sui generis, specific performance may be decreed, as personalty. for instance, a picture of high artistic merit, or the Pusey horn, or the patera of the Duke of Somerset. Damages would obviously be an inadequate remedy for breach of a contract to sell and deliver the Venus of Milo. (Somerset v. Cookson, 1 Wh. & T. L. Cas. 821.) It will be remembered that in detinue the Court may enforce the return of the specific chattel. Specific performance may also be decreed of a contract relating to personalty where a fiduciary relationship exists between the parties, as broker and customer, or principal and agent. (Wood v. Rowcliffe, 3 Hare, 304.) And there are cases in which it has been decreed, when the subject matter of the contract was railway shares (herein differing from stock). (Duncroft v. Albrecht, 12 Sim. 199.) And debts due from a bankrupt estate. (Adderley v. Dixon, 1 Sim. & Stu. 607.) Acts of part perform ance. In practice, however, the jurisdiction is usually invoked to enforce contracts relating to real property. Where part performance is relied upon by the plaintiff to supply the want of compliance with the Statute of Frauds, the acts of part performance relied upon, must be such as can only be referable to the alleged agreement. Acts merely auxiliary to the agreement are not sufficient, e. g., delivering an abstract of title. Taking possession may or may not be sufficient, according to circumstances. (Lester v. Foxcroft, 1 Wh. & T. L. Cas. 788.) Payment of the purchase-money will not take the case out of the statute. (Bayless v. Morris, 2 De G. M. & G. 349.) Nor is marriage where the contract is in consideration of marriage. (Caton v. Caton, L. R. 2 H. L. 129.) As to the effect of promises to leave money by will, see Maddison v. Alderson, 8 App. Cas. The statute will be no defence if the fact be that the contract was not reduced into writing, owing to the fraud of the defendant. In cases where there has been a mis-description of the property sold, the Court may decree specific performance, giving compensation to the party aggrieved by the mis-description, or if the mis-description be substantial, it may refuse specific performance altogether. The following The plaintiff claims specific performance of the above agreement, and that the defendant may be ordered to pay the purchase-money, and to accept a proper conveyance of the premises from the plaintiff [stating in each case what the defendant is required specifically to do]. Examples of Defences to Actions for Specific Performance. 1. The defendant did not enter into the agreement. 2. A. B. was not the agent of the defendant [if alleged by the plaintiff]. 3. The plaintiff has not performed the following conditions. [conditions]. 4. The plaintiff did not [alleged acts of part performance]. 5. The plaintiff's title to the property agreed to be sold is not such as the defendant is bound to accept by reason of the following matters: [state why]. 6. The Statute of Frauds has not been complied with. 7. The agreement is uncertain in the following respects [state them]. 8. [Or,] The defendant has been guilty of delay. 9. [Or,] The defendant has been guilty of fraud [or misrepresentation]. 10. [Or,] The agreement is unfair. 11. [Or,] The agreement was entered into by mistake. The following are particulars of (8), (9), (10), (11), [or as the case may be]. 12. The agreement was rescinded under Conditions of Sale No. 11 [or by mutual agreement]. In cases where damages are claimed and the defendant disputes his liability he must deny the agreement or the alleged breaches, or show whatever other ground of defence he intends to rely on, Statute of Limitations, Accord and Satisfaction, Release, Fraud, &c. are examples of the latter class of cases, viz., where the vendor was seeking specific performance of a sale of copyholds sold as freeholds. (Ayles v. Cor, 16 Beav. 23.) Where an underlease was sold as a lease. (Maddaley Compensav. Booth, 2 De G. & Sim. 718.) Where there has been fraud or the tion where amount of compensation cannot be estimated. Generally the purchaser given. can insist on specific performance with an abatement for the misdescription. As to the limits of this doctrine, see Durham v. Layard, 34 L. J. Ch. 589, and Jolliffe v. Baker, 11 Q. B. D. 255. |