CHAP. X. JURISDICTION EQUITY. enter into a more formal contract, so as to give the complaining OF COURTS OF Party a more perfect remedy at law; (b) and where a party seeks to be relieved from a penalty of a bond or other contract forfeited by his want of punctual performance of a personal contract, equity will not relieve, except upon the terms of his performing the act cy prês, or paying the actual damage sustained. (c) Cannot at same time proceed at law for damages and in equity for specific performance. Necessity for reference to Injunctions. We have seen, that, notwithstanding the pendency of an action at law to recover damages, a party may apply for and obtain an Injunction. (d) But the rule is otherwise with respect to bills for specific performance, for although a vendor and vendee respectively have the option of proceeding at law or in equity, (e) he cannot do both, and after a decree for a specific performance against a defendant, the plaintiff cannot proceed by action at law on the contract for damages, and such action would be restrained by injunction. (f) But if a purchaser, upon a bill filed for specific performance, pay the purchase money without putting in his answer, and afterwards discover a fraud in the sale, he is not precluded from bringing an action for damages if he come recently after discovering the deception. (g) Before we consider the extensive jurisdiction of Courts of cases relating to Equity in decreeing specific performance of contracts, it is necessary to observe that many of the rules and decisions which we have considered respecting Injunctions against breaches of contract, will equally apply to Bills for specific performance, and must be kept in view, (h) injunctions being granted to prevent active breaches of contract, whilst decrees of specific performance are to compel a contracting party to perform some act pursuant to his contract. Arrangement of the Rules and Practice relat ing to Bills for Specific Performance. For Practical purposes it may be expedient, first, to consider the General Rules, when or not a Court of Equity will decree Specific Performance of contracts; secondly, to examine separately and distinctly the instances of particular Contracts relating to the Person, Personal property and Real property; and thirdly, the Practical Proceedings and Decree, and these under the following heads: (b) Newland on Contr. 92, cites Buxton v. Lister, 3 Atk. 382; Pember v. Mathers, 1 Bro. C. C. 52; and Taylor v. Neville, cited 5 Atk. 384. (c) Newl. on Contr. 307 to 310; 3 Bla. Com. 326, b.; 1 Ch. Cas. 24; Cage v. Russell, 2 Vent. 352; The Earl of Strafford v. Lady Wentworth, 9 Mod. 22; Hill v. Barclay, 18 Ves. 63. (f) Reynolds v. Nelson, 6 Mad. R. 290; Sug. V. & P. 220. (g) Jedwine v. Slade, 2 Esp. R. 257 ; Sug. V. & P. 220. (h) Ante, 695 to 730. I. The General Rules, 825 to 849. First, Each party must have been competent to con tract and mutually bound, 825. Infants, 825. Married Women, 826. Lunatics, 826. Weakness of Intellect, 826. Intoxication, 827. The contract mutually binding, 827, Secondly, The contract itself and its particulars, 828. Price to be fixed by valuation not completed, 828. When referred to Master, 831. Thirdly, The specific performance must be entire 831. Fifthly, Circumstances inducing refusal of Specific Per- Analysis of these, 832. II. Particular Contracts-849 to 862. First, Respecting the Person, 850 to 852. III. The Practical Proceedings and Decree, 862 to 868. CHAP. X. BILLS FOR SPECIFIC PERFORMANCE. As regards contracts in general, a Court of Equity will not I. THE GENEdecree specific performance unless the obligation to perform RAL RULES. First, Each parthe contract was, at the time it was made, mutual and recipro- ty must have cally binding. (i) Thus, if a necessary party to the contract, heen competent at the time of making it, was an infant or a married woman, mutually bound. so as not then to be absolutely bound, the court would not Infancy, when decree specific performance on a bill filed, although at his or an objection. her instance; (k) therefore, where it was discovered and urged that the plaintiff, in a bill for specific performance, was an infant at the time of the contract and also when the bill was filed, such bill was dismissed with costs, to be paid by the next friend; () and the Master of the Rolls said, that no case of a bill filed by an infant, for the specific performance of a contract made with him, has been found in the books, and that it was an admitted general principle of Courts of Equity only to en (i) Ne wl. Contr. 91, 152, 153; 1 Mad. Works, 1 Jac. & W. 358, 370, 373; post, Ch. Pr. 423, 424. 827, 828. (k) Flight v. Bolland, 4 Russ. R. 298; Harnett v. Yielding, 2 Scho. & Lef. 549; and sce Weale v. West Middlesex Water (1) Id. ibid.; but see 1 Mad. Ch. Pr. 423, note (m). BILLS FOR SPECIFIC PER CHAP. X., force specific performance when the remedy is mutual. (m) He then adverted to the exception to that rule under the statute FORMANCE. against frauds, and which establishes, that although a party filing a bill for specific performance had not himself signed the contract, yet he might sustain the bill against the party who had, (an exception, the propriety of which had been questioned by Lord Redesdale, on the ground of want of mutuality, but was supported, because the statute against frauds only requires the agreement to be signed by the party to be charged, and also because the plaintiff, by the act of filing the bill, had adopted the contract and made the remedy mutual,) (n) but that those reasons did not apply to the case of an infant. But perhaps if an infant purchaser, after he has attained twenty-one, and whilst the contract is open, and before the vendor has expressed any dissent, should affirm the contract, or even file his bill, (which might of itself be deemed such affirmance,) then his bill might be sustained. (o) In the first case, at all events, the remedy on behalf of the infant is only at law, where it has been held that infancy is merely a personal protection, that can be taken advantage of only by the infant himself. (p) Marriage, when an objection. Lunacy. Weakness of Intellects, when As to Married women it is clear, that if a husband should contract for the sale of his wife's real estate, a Court of Equity will not decree him to procure her to join in a conveyance; (q) and it should seem, on the other hand, that unless the vendorhusband has, whilst the contract is open, and before filing his bill for specific performance, procured his wife to concur and execute the conveyance, and levy a fine when necessary, he could not sustain his bill against the purchaser. (r) But when an estate has been settled upon a married woman for her separate use, or when the legal estate is in trustees, specific performance might probably be enforced. (s) At law Lunacy is not in general any defence to an action on a contract; (t) but it would be otherwise in equity, especially if circumstances of fraud were practised by the claimant.(u) And though Courts of Equity will not, as has been figuraan objection. tively expressed, measure the size of people's understandings or (q) Decided in Martin v. Mitchell, 2 Jac. & W. 425; admitted in Flight v. Bolland, 4 Russ. 299; and see Sugd. V. & P. 8 ed. 187 to 189; Newl. Contr. 103. (r) Semble, id. and page S01. (s) Sugd. V. & P. 8 ed. 187 to 191. (t) Baxter v. Earl Portsmouth, 5 Bar. & Cres. 179; 2 Car. & P. 178, S. C.; but see Sentence v. Poole, 3 Car. & P. 1. (u) Newl. Contr. 363; and post, 827, (d). CHAP. X. SPECIFIC PER BILLS FOR capacites, there being no such a thing as an equitable incapacity when there is a legal capacity, (x) yet great weakness of understanding, although not amounting to insanity, is always con- FORMANCE. sidered, when connected with circumstances of fraud or surprise, as forming a strong feature in the case; (y) and in these cases Courts of Equity will not only refuse specific performance, but also will, under circumstances, decree the contract to be delivered up to be cancelled. (z) As where a weak man, easily imposed upon, and seventy-two years old, conveyed an estate worth £40 a year to two persons in fee, in consideration of an annuity of £20 a year. (a) But great age and imbecility will not induce a Court of Equity to cancel even a voluntary deed, if it were well explained to the party, and he understood its terms. (b) If a contract be obtained from a man in a complete state of Intoxication. Intoxication, although that circumstance alone would not invalidate, yet slight evidence of circumvention or fraud would induce equity to set the same aside, or at least to refuse specific performance; (c) as if the party to an agreement were drawn in to drink, by the management of the person in whose favour it was signed. (d) There must contract binding each party to future per have been a But besides the necessity for each party being reciprocally bound in respect of competency, it is also a rule that the contract itself must have been so framed as to be reciprocally and mutually binding. It was partly on this ground that the formance. case of Wealer v. The West Middlesex Water Works Company was decided.(e) That company was established by a statute for supplying the inhabitants of several districts with water at such terms as they should mutually agree upon; and a subsequent act provided, that the company should only demand reasonable sums, and it was determined that neither a bill for a specific performance of a supply of water, nor an injunction for interrupting an inhabitant's supply of water could be sustained, because there had been no mutually binding contract between (2) 1 Mad. Ch. Pr. 280; Newl. Contr, 362; Blackford v. Christian, Knapp's R. 77; Diamid v. Diamid, 3 Wils. & Shaw, 37, S. P.; 3 Bligh, N. S., 374, S. C.; Milnes v. Cowley, 8 Price, 620. (y) Griffin v. Deveuille, 3 P. W. 130; and other cases Newl. Contr. 363; 1 Mad. Ch. Pr. 280, 283; Ball v. Munnins, 3 Bligh, N. S. 1; Blakeney v. Bagot, Id. 237, 253; Diamid v. Diamid, Id. 374; 3 Wils. & Sh. 37. (z) Id. ibid.; and ante, 709, 710. (a) Clarkson v. Harvey, 2 P. Wms. 203; Newl. Contr. 365; 1 Mad. Ch.. Pr. 283; Martin v. Mitchell, 2 Jac. & W. 413; and see Blackford v. Christian, Knapp's Rep. 73; Diamid v. Diamid, (b) Pratt v. Barker, 1 Simon's R. 1. (c) Craigh v. Holme, 18 Ves. 14; Say v. Barwick, 1 Ves. & B. 95; Johnson v. Medlicott, 3 P. W. 130, note (a); Northam v.Latouche, 4 Car. & P. 140; Pitt v. Smith, 3 Campb. 33; Fenton v. Holloway, 1 Stark. R. 126; Gregory v.Fraser, 3 Campb. 454: Newl. Contr. 365. (d) Johnson v. Medlicott, 3 P. W. 130, note (o); Cory v. Cory, 1 Ves. 19; Cook v. Clayworth, 18 Ves. 12. (e) Wealer v. West Middlesex Water Works, 1 Jac. & W. 358, 370, 371, 373. CHAP. X. the company and the inhabitant for a supply of water at a fixed BILLS FOR SPECIFIC PER- price, and consequently neither the company was bound to supply, nor the inhabitant bound to take or pay for any water. FORMANCE. Secondly, The Contract itself, and requisites. Uncertainty in terms. With respect to the Contract itself, the rule is, that a party who seeks specific performance by decree of a Court of Equity must establish that there has been a certain contract, clear in all its material terms, (ƒ) and valid as well at common law (g) as under the provisions of the statute against frauds, (h) or that the defendant is precluded from objecting, on account of informality, by the circumstance of a material part performance of some part of the contract. (i) In contracts for the payment of a sum of money, whether as the price of real property or otherwise, a specific fixed price is in general of the essence of the contract. (4) And if it appear even by parol evidence that one term of the actual agreement was omitted, specific performance will be refused; (4) and neither at law nor in equity will any material stipulation not expressed be supplied; (m) nor has a Court of Equity power to alter the contracts of parties from an eventual change not contemplated at the time; (m) and where a material ingredient in the terms of a contract has been omitted, equity considers it as only resting in treaty, and will not decree a specific execution. (n) So in contracts of sale, if there be uncertainty as to the description or quantity of the lands proposed to be conveyed, the court will not decree specific performance; (o) unless, perhaps, in some cases, where the party who refuses to perform, himself drew the agreement, and occasioned the objected uncertainty.(p) And although in equity, where a written agreement expressly refers to a plan as an existing document forming a term in a contract, parol evidence is admissible for the purpose of identifying the plan, yet, unless the evidence of identity be clear and satisfac (f) As to the necessity for certainty in general as regards suits for Specific Performance, see Whaley v. Bagnall, 6 Bro, P. C. 48; Moseley v. Firgin, 3 Ves. 184; 1 Fonbl. Eq. 170; 1 Madd. Ch. Pr. 426. (g) See the requisites of contracts in general, ante, 112 to 126; as respects contracts of sale or demise of real property, ante, 292 to 305. (h) 29 Car. 2, c. 3, s. 1 & 4; ante, 292, 293. (i) See post, 832, as to part perform ance. (k) See in general Newl. on Contr. 151; and admitted in Agar v. Macklew, 2 Sim. & Stu. 422; Emery v. Wase, 5 Ves. 846; 8 Ves. 505; Holcraft v. Hickman, 2 Sim. & Stu. 134; Lyndsey v. Lynch, 2 Scho. & Lef. 7. The same point was decided at law, in K. B., A. D. 1821. See also Wealer v. West Middlesex Water Works, ante, 827, note (e); and 3 Chitty's Comm. L. 103, n. 2. (1) Garran v. Grimly, 2 Swanst. 244; Bayley v.Tyrrell, 2 Ball & B. 363; Hosier v. Read, 9 Mod. 86. When otherwise, Omerod v. Hardman, 5 Ves. 750; Whaley v. Bagnel, 6 Bro. P. C. 45. (m) Ormond. Anderson, 2 Ball & B. 369; 1 Mad. Ch. Pr. 426, 427. (n) Bayley v. Tyrrell 2 Ball & B. 365. (0) Bromley v. Jefferies, 2 Vern. 415; Newl. Contr. 151; but see id. 152, other cases contrá. (p) Clermont v. Tasburgh, 1 Jac. & W. 115. |