Specific performance when granted. Conveyancing Act, 1881. let us consider the various cases in which specific performance of contracts will be granted or refused. The following are the principal cases in which specific performance is granted :— (1) Where the contract is for the sale or lease of land, judgment for specific performance is given as a matter of course, unless the judgment would be useless, as when a lease if granted might be forfeited at once or when the term has expired before the hearing of the action. The reason why contracts with respect to land are so enforced is because land has often a peculiar and special value to a purchaser; and as Lord Hardwicke said, when a person agrees to purchase land it is generally on a particular liking to the land (1): "One sovereign or one shilling is to all intents and purposes as good as any other sovereign or shilling, but one landed estate, though of precisely the same market value as another, may be vastly different in every other circumstance that makes it an object of desire" (2). The Conveyancing Act, 1881, provides that where at the death of any person there is subsisting a contract enforceable against his heir or devisee, for the sale of the fee simple, or other freehold interest, descendible to his heirs general, in any land, his personal representatives shall, by virtue of the Act, have power to convey the land for all the estate and interest vested in him at his death, in any manner proper for giving effect to the contract (3). (2) For the sale of shares in companies, i.e. if any shares remain available, and unless the directors having power to refuse, decline to give their assent (4). (3) To execute a mortgage. In a case which came before the Court in 1874 (5), some doubt was expressed whether such a contract could be specifically enforced; but in a subsequent case (6), Lord Selborne, sitting as Master of the Rolls, said that he had no doubt of the propriety of ordering specific performance of an agreement for the execution of a mortgage with an immediate power of sale, unless the defendant was prepared to pay off the advance at once. (4) For the execution of deeds for present separation. The (1) Buxton v. Lister, 3 Atk. 384. (3) 44 & 45 Vict. c. 41, s. 4. () See Fry on Specific Perform ance, p. 620, et seq., for an elaborate consideration of this subject. (5) Ashton v. Corrigan, 13 Eq. 76. (6) Hermann v. Hodges, 16 Eq. 18. ance when general principle of the law on the subject was settled by the Specific celebrated case of Wilson v. Wilson (1) decided by the House of performLords in 1848, when it was laid down that a "now long train of granted. authorities had established that such a contract ought to be enforced" (2). A contract for future separation is regarded as contrary to the policy of the law and will not be specifically enforced. (See, as to Separation Deeds, post, p. 1038.) (5) For the sale of goodwill if connected with business premises but not otherwise (3). (6) To execute disentailing deed (4). (7) For the purchase of articles of unusual beauty, rarity, and distinction, such as objects of vertu (5). Thus in an oft-quoted case where a contract had been entered into for the purchase of two china jars, the Court, while it refused specific performance on the ground that the parties were not on an equal footing, the purchaser knowing and the vendor being ignorant of the value of the thing sold, said that in the absence of such objection it would have no hesitation in enforcing specific performance. In another case specific performance was enforced of a contract to purchase the arch-stone, spandrel-stone, and the Bramleyfall stone, contained in the Old Westminster Bridge (6). (8) To enforce a compromise, but in such an action the plaintiff will not be allowed to contest over again the dispute which it was the object of the parties to settle for ever by their compromise (7). On the other hand, specific performance has been refused of contracts for the purchase of ordinary chattels, e.g. stock, corn, hops, &c., for here it was considered that damages was sufficient compensation (8). Specific performance has also been refused of contracts to do work, as to build, or repair, unless incidental to other part of contract. The Court, however, will assume such jurisdiction when the following three circumstances concur:-First, that the work to be done is defined; secondly, that the plaintiff has a material interest in its execution, which cannot adequately be (1) 1 H. L. C. 538. a compromise in the Divorce Court. (3) Bozon v. Farlow, 1 M. 459. (3) The law on this subject was recently made the subject of careful consideration in Hart v. Hart, 18 Ch. D. 670 (where the previous authorities were reviewed), in which case the Court granted specific performance of an agreement for a separation deed which had been signed by both (*) Per Lord Hardwicke in Buxton parties, and was entered into upon v. Lister, 3 Atk. 384. (1) Knowles v. Roberts, 38 Ch. D. 263. Specific perform ance when refused. Specific performance when refused. tion. compensated for by damages; and, thirdly, that the defendants have by the contract obtained from the plaintiff possession of the land on which the work is to be done (1). Where the contract was for all the get of coals from a colliery, at a fixed price for five years (2), Jessel, M.R., declined to order specific performance or even to grant an injunction to restrain the breach of the contract. The principle of this case was considered in a subsequent case (3). There there was an agreement between Donnell and Cormack, a fish curer and fish smoker, that Cormack should sell and Donnell buy all parts of fish not used by Cormack in his business, and Cormack agreed that for the space of two years he should not sell any fish or parts of fish to any other manufacturer whatever, and the plaintiff further agreed to take all fish supplied him by Cormack at a named price. Here the Court, though it considered that there was no case for specific performance, granted an injunction against selling to any one else. Another and difficult class of cases in which specific performance is enforced by the Court is, where there is a clear and Representa absolute representation made for a particular purpose by one person and followed by conduct of another. In such a case the Court proceeds upon the principle that the person making those representations shall, so far as the powers of a Court of Equity extend, be treated as if the representations were true, and shall be compelled to make them good. But the representations must be representations concerning existing facts, and not of mere intention (4). Voluntary settlements. Attention has already been directed (ante, p. 142) to the subject of voluntary settlements. Suppose now that a man has made a voluntary settlement of land, and subsequently enters into a contract to sell it. The principle upon which the Court proceeds is, that in such a case it will remain neutral. It will neither impede nor assist the vendor. In Lord Eldon's words the Court will not restrain a man who has previously made a voluntary settlement of real property from selling it to a purchaser; nor, on the other hand, will it in general help him to frustrate his own deed (5). In certain cases the Court will order specific performance of a tion. contract with compensation, i.e. with an abatement of the con- Specific performsideration. It may be shortly stated as the result of the ance with decisions upon this subject, that where the vendor is able substan- compensatially to perform the contract, and there is a difference capable of being ascertained between what is promised and what can be performed, the Court may measure the difference and give judgment for specific performance with compensation. The purchaser may also, as a general rule, insist on taking what the vendor can give him with compensation for the amount (1). The Court, however, will not order specific performance at the suit of the vendor, if the result would be to put upon the purchaser something essentially different from that for which he bargained. This may be illustrated by the well-known case of Peers v. Lambert (2), where the contract was for sale of a wharf with a jetty, and, as it turned out that the jetty was removable by the Corporation of London and essential to the enjoyment of the property, specific performance was refused. A man who had contracted to purchase freehold was not forced to take copyhold (3), and in another case where a man had bargained for a lease, he was not compelled to accept an underlease (4). A variation which is merely trifling, or a mere expression of courtesy, such as "we hope to give you possession on 1st Nov.," is not regarded as a variation in the contract. In a recent case an action was brought for specific performance of a scheme of arrangement. The trustees in the bankruptcy had entered into a written agreement with the defendants, under which it was agreed that the defendants were to purchase the assets of the bankrupt, "who was their brother-in-law," on certain terms, and that on the approval of the scheme by the Court, the bankruptcy should be annulled. The creditors duly passed a resolution agreeing to the scheme; but added a clause that a bond should be given by the defendants for payment of the money. The Court subsequently approved the agreement and annulled the bankruptcy; but it was held by the Court that, as the scheme had not been accepted by the creditors or approved by the Court as originally agreed by the defendants, specific performance could not be enforced (5). The general principle on which the Court proceeds in granting or refusing specific performance of contracts, where there is (1) See Seton on Decrees, 4th ed. p. 1315, et seq, where the authorities are collected. (*) 7 Beav. 546. (3) Ayles v. Cox, 16 Beav. 23. . (5) Lucas v. Martin, 37 Ch. D. 597. Mistake. Damages. a mistake, is as follows:-The broad rule is contained in the maxim of the Roman law, "non videntur consentire qui errant.” In applying this principle in practice the Court proceeds on the following line, "If it appears upon the evidence that there was in the description of the property a matter on which a person might bona fide make a mistake, and he swears positively that he did make such mistake, and his evidence is not disproved, this Court cannot enforce specific performance against him. If there appears on the particulars no ground for the mistake, if no man with his senses about him could have misapprehended the character of the parcel, then I do not think it is sufficient for the purchaser to swear that he made a mistake, or that he did not understand what he was about" (1). "The general rule of Equity," said Lord St. Leonards, “is, that if a thing be agreed upon to be done, though there is a penalty annexed to secure its performance, yet the very thing itself must be done. If a man, for instance, agree to settle an estate and execute his bond for £600 as a security for the performance of his contract, he will not be allowed to pay the forfeit of his bond and avoid his agreement, but he will be compelled to settle the estate in specific performance of his agreement. So if a man covenant to abstain from doing a certain act and agree that if he do it he will pay a sum of money, it would seem that he would be compelled to abstain from doing that act, and just as in the converse case, he cannot elect to break his engagement by paying for his violation of the contract" (2). The rule as to the damages which may be recovered for breach of a contract for the sale of land, forms an exception from the ordinary rule as to damages for breach of contract. In the case of non-delivery of goods contracted to be sold, the purchaser is entitled to recover either such damages as may fairly be considered to have been the natural result of the breach of the contract, or such as may reasonably be supposed to have been contemplated by both parties, at the time when they entered into the contract, as the probable result of a breach. This principle, which was established by the leading case of Hadley v. Baxendale (ante, p. 422), has since been repeatedly followed as regulating the amount of damage to be given in cases of breach of contract in respect of personal property. The rule with regard to contracts for sale of land as settled by a (1) Swaisland v. Dearsley, 29 Beav. 430, approved of in Tamplin v. James, 15 Ch. D. 217. (2) French v. Macale, 2 Dr. & W. 269. |