charge prin prove that he ratified the agent's act. an agreement, made with him by an agent, against the Contractor agent's principal, whether named in or upon making the seeking to contract or not, the onus lies on him of proving that the cipal must principal authorised or ratified the agent's act (1). And authorised or the principal is not liable upon any contract made by his agent without his authority (m), unless he choose to ratify the agent's act, if it be capable of ratification (»), or represented to the other contractor that the agent was authorised to act on his behalf (o). On the latter ground, where an agent is invested by his principal with an apparent or ostensible authority, the principal is bound by the agent's acts done within the scope of that authority, notwithstanding that he may have secretly limited (p) or revoked it (9). On this principle also, where an agent's authority is revoked by law, as in case of the principal's bankruptcy (r) or insanity (s), the principal or his estate is liable on contracts subsequently made by the agent with a contractor, who had no notice of the revocation of the authority. But this rule has not been applied in the case of revocation by the principal's death (f). Where an agent contracts on behalf of his principal, and the contract is within the terms of (7) Above, pp. 977, 978, 980, 982; Godwin v. Brind, L. R. 5 C. P. 299, n.; Hamer v. Sharp, L. R. 19 Eq. 108; Rosenbaum v. Belson, 1900, 2 Ch. 267, 268; Hambro v. Burnand, 1903, 2 K. B. 399, reversed, 1904, 2 K. B. 10. (m) Above, pp. 979, 981, 984; and previous note. (n) Above, pp. 978, 980, 984. (0) M'Iver v. Humble, 16 East, 169, 174; and see Wms. Pers. Prop. 409, 15th ed.; and cases cited in the two next notes. (p) Maddick v. Marshall, 16 C. B. N. S. 387, 17 C. B. N. S. 829; Edmunds v. Bushell, L. R. 1 Q. B. 97; National Bolivian, &c. Co. v. Wilson, 5 App. Cas. 176, 209; Watteau v. Fenwick, 1893, 1 Q. B. 346; and see W.-II. Montaignac v. Shitta, 15 App. (9) Trueman v. Loder, 11 A. (r) Expte. Me Donnell, Buck, 399; above, p. 619. (8) Drew v. Nunn, 4 Q. B. D. 661; above, p. 649. (1) Blades v. Free, 9 B. & C. 167; Smout v. Ilbery, 10 M. & W. 1, 11; above, p. 619; but see per Brett, L. J., Drew v. Nunn, 4 Q. B. D. €61, 668. In this case the agent would, it seems, be liable under the doctrine of implied warranty of authority; Halbot v. Lens, 1901, 1 Ch. 344, 349; above, p. 979. 21 Agent conwithin his authority but tracting in his own advantage. Authority of Public servant contracting for the use of government. a written authority given to him, the principal is liable on the agreement, notwithstanding that in making the contract the agent was really acting for his own advantage and not in furtherance of his principal's interest; and this is equally the case, although the other contractor did not inquire as to or ask for the production of the agent's authority (u). Here it may be noted that if an owner of land instruct an estate agent to place it on his books and to find a purchaser for him, that does not authorise the agent to enter into an open contract for sale of the land, or indeed to make any firm contract for sale binding the principal (). But definite instructions to sell the land authorise the estate agent to sign, on the principal's behalf, a memorandum of an open contract for sale (y). A servant of the Crown is not personally liable upon contracts made by him, even by deed (~), for the use or on account of the government (a). He cannot therefore be made liable in respect of any such contract under the doctrine of implied warranty of authority (b). If however the contract were made in his own name and were put in writing without any reference in the memorandum to the fact of his agency for government, he could not adduce parol evidence of the fact in order to escape liability (c). (u) Hambro v. Burnand, 1904, (x) Hamer v. Sharp, L. R. 19 (2) Unwin v. Wolseley, 1 T. R. 674; Allen v. Waldegrave, 8 Taunt. 566, 574; cf. above, p. 978. (a) Macbeath v. Haldimand, 1 T. R. 172; Gidley v. Palmerston, 3 Brod. & Bing. 275; Palmer v. Hutchinson, 6 App. Cas. 619. (b) Dunn v. Macdonald, 1897, 1 Q. B. 401, 555. (c) Above, p. 982. § 3.-Of Specific Performance. As has been already mentioned (d), either party to a sale of land may elect to sue for an order that the contract be specifically performed; and this is the most effective way of enforcing the agreement. In a work like the present it would be out of place to attempt any general account of the law of specific performance; for this the reader is referred to Sir Edward Fry's wellknown treatise. We are here concerned only with the subject of specific performance as relating to contracts for the sale of land; and the writer can hardly do more Differences than point out the differences, which exist between the right to recover damages at law for breach of the contract and the right to obtain an order for its specific performance. performance. between the damages and that to specific right to In the first place, the jurisdiction of the Court to The remedy is purely decree the specific performance of a contract is entirely equitable. of equitable origin (e); and the nature of the remedy is fundamentally different from that of the right of action at law (f). The legal remedy is to recover compensation from the party who does not carry out the agreement; so that a breach of the contract is a condition precedent to the right to sue (g). In the equitable proceeding it is pronounced that the contract ought to be and shall be carried out as intended (h). A breach of the contract is therefore not necessarily a condition precedent to obtaining this relief, though it is usually requisite to induce the Court to interfere (i). Then the remedy in question is not attendant upon every kind of contract (); but it has always been considered as un (d) Above, pp. 31, 946, 947, 969. (e) See Wms. Real Prop. 161, 162, and n. (e), 19th ed. (f) Fry, Sp. Perf. § 3, 3rd ed. (g) Above, pp. 933-935, 946. (h) Seton on Judgments, 2206, 6th ed. (i) Above, p. 946. (k) Fry, Sp. Perf. §§ 61-89, 3rd ed. Lies in the judicial discretion of the Court. Court may have regard to considera tions not attended to at law. In some cases specific performance may be obtained, where there is no right to damages. questionably appropriate to contracts for the sale or leasing () of land (m); for the damages recoverable at law for breach of such contracts (") are not in general an adequate compensation to the party injured (0). Next, it lies in the judicial discretion of the Court to grant or to withhold the relief in question; though in unobjectionable cases it will be accorded as a matter of course (p). And the Court, in exercising this discretion, may have regard to considerations, which do not affect the right to enforce the contract at law, and especially to the parties' conduct (2). It follows that the remedy in question is not necessarily to be obtained on mere proof of the facts that an unimpeachable contract was concluded and was broken; facts which would establish the right to recover damages (); for there are several defences to an action for specific performance which are not available in an action on the contract at law. Conversely, there are some cases in which the remedy by specific performance is available to a contractor who has no right to recover damages for breach of the contract (s). Thus we have seen that a parol contract partly performed may be ordered to be carried out specifically, although it would be unenforceable at law (f). So, if the vendor had made an insubstantial error in the description of the property sold, the resulting deficiency of area or estate would preclude him from enforcing the contract at law; but he might, neverthe 3rd ed. (p) Above, p. 31; Hexter v. Pearce, 1900, 1 Ch. 341, 346; Rudd v. Lascelles, ib. 815, 817. (2) Above, pp. 31, 32, 157160, 165-168, 685, 693, 694, n. (u), 695, n. (z), 743. () Above, pp. 933-935, 946, 973-975. (s) Above, p. 946. less, obtain an order for its specific performance with compensation (). And before the Judicature Acts, when the rule as to time not being essential applied in equity only, a contractor, who was out of time with his own performance of the contract, and therefore precluded at law from enforcing the other party's obligation, might still succeed as plaintiff in equity in enforcing the specific performance of the contract (r). These cases, however, are exceptional. As a general rule, a plaintiff suing for the specific performance of an agreement to sell land must prove that there is an unimpeachable contract (c) existing between himself and the defendant, and that the defendant has failed or refuses to carry it out (r). It follows that any defence which could be set up in bar of an action upon the contract at law (y), will in general defeat an application for its specific performance. Thus proof that no contract was Denial of ever concluded as alleged is, of course, a good defence to an action for specific performance (~). As to deny- contract. (u) Above, pp. 36, 634, 635, 679, 680. (v) Above, pp. 47-49, 506508, 726, 973-975. (w) Above, pp. 1, 2, 665, 781. (a) Above, p. 946. And (y) Above, pp. 973-975. (-) See above, pp. 5-17; Fry, Sp. Perf. § 277, 3rd ed. note that the defence mentioned by Sir E. Fry of the incompleteness of the contract really amounts to a denial either of the formation or of the enforceability of the contract: Fry, Sp. Perf. §§ 337 sq., 3rd ed. It is true that under this head (§§ 355 sq.) the learned author discusses the case of a contract to sell at a price to be fixed by some valuer, or two valuers or their umpire; when as a rule the contract is not enforceable unless the price has first been so fixed; above, pp. 50, 51. But in this case the contract to sell is made subject to the condition precedent that the price shall be the formation of the |