PREFACE. THIS Volume contains a large amount of matter derived from both English and American decisions. The object of the work is correctly described by its title. Its discussions are confined to those equitable doctrines which relate directly to the specific performance of contracts; the specific enforcement of trusts, either express or implied, does not come within the purpose and scope of the book. The author has endeavored to prepare a treatise suited to the needs of the American lawyer, and representing the equitable doctrines concerning specific performance as they have been established, and are administered by the American courts, partly from the simplicity of our real estate law, and partly from the habits, customs, and modes of dealing of our landed proprietors, there has grown up in this country a system of doctrines and rules relating to the specific enforcement of contracts quite different in many important respects from that which exists in England, and which is recognized by the English courts and text-writers. A treatise which should present and illustrate this American system, and which should describe all those features which distinguish it from the English, seemed to be needed; and such a book the author has endeavored to write. While no claim is made that all the cases in the reports have been cited, it is believed that cases of authority are cited bearing upon, and sustaining, every principle, doctrine, and rule which belongs to the general subject of specific performance, and which has received a judicial sanction. Every particular instance, in which a contract has been specifically enforced may not have been mentioned, but the principles are stated and explained to which every instance may be referred, and by which it must be determined. Much labor and care have been given to the preparation of the notes, which contain a very full commentary on an illustration of the text, and furnish numerous statements of decided cases and quotations from judicial opinions, which the author trusts will be found convenient to those members of the profession who do not have ready access to extensive libraries. JOHN NORTON POMEROY. Contracts concerning delivery of deeds, etc......................... Contracts concerning chattels where there is a trust.............. The discretionary character of the remedy. Sections. ... Doctrine as ordinarily stated, with abstract of decisions in note... 36-46 THE NATURE, ELEMENTS, FEATURES AND INCIDENTS WHICH MUST BELONG TO CONTRACTS IN ORDER THAT THEY MAY BE SPECIFICALLY ENFORCED. These features and incidents of contracts classified and described............ 51, 52 FIRST GROUP. Those features which pertain to the external form of the agreement, and the manner of expressing its various terms, and which, in analogy to the common-law requisites, relate to the very existence of a binding contract. Capacity in general........ Capacity of married women under recent statutes............. The contract must be upon a valuable consideration. Consideration always necessary; effect of a seal in equity......... A contract must be actually concluded between the parties with the requisite formalities; there must be an "aggregatio mentium" upon the same General rule; how contracts are concluded.......... 1. Offer and acceptance.................... 2. Promise to do something on demand................................ 69 Abstract of American statutes (in note).... I. How memorandum must be executed........ First. Kinds and classes of contracts to which the doctrine of part-performance Secmd. Equitable basis and principles of the doctrine........ I. Fraud, the foundation............................................. II. Nature of the acts of part-performance; must be in pursuance of Fourth. Nature of the evidence by which the contract must be proved.... 136-139 Verbal contract when admitted by defendant's answer, effect of, 140, 141 When compliance with the statute is prevented by actual fraud, 142, 143 |
