PART V. Specific performance. Injunction. CHAPTER II. SPECIFIC PERFORMANCE AND INJUNCTION. SECT. I.-JURISDICTION IN SPECIFIC PERFORMANCE. Specific performance-injunction-election to claim specific per- PAGE 792 ... Debts and contracts to pay money-contracts of loan-sale of land 795 Contracts for personal services-contracts for building and other 799 801 803 804 Sale of goodwill of business-contracts of partnership. Foreign contracts THE remedy for a breach of contract by specific performance places the parties so far as possible in the same position in which they would be if the contract had been exactly performed; it is therefore applied where practicable, unless the remedy by pecuniary compensation or damages is adequate to the case. "The court gives specific performance instead of damages only when it can by that means do more perfect and complete justice" (a). The jurisdiction of specific performance was peculiar to the Court of Chancery until the Judicature Act, 1873, s. 24, conferred the same jurisdiction upon all Divisions of the High Court, although assigned to the Chancery Division of the Court by sect. 34 of the Act. And where an action brought in another Division of the Court upon such a contract involves a claim of either party for specific performance of the contract, the cause may be transferred to the Chancery Division (b). Where parties contract in express negative terms that a certain act shall not be done, specific performance takes the form of an (a) Per cur. Wilson v. Northampton & B. Ry., L. R. 9 Ch. 284; 43 L. J. C. 504; Ld. Redesdale, Harnett v. Yielding, 2 Sch. & L. 553. (b) Ord. XLIX. r. 3. See Hillman v. Mayhew, 1 Ex. D. 132; 45 L. J. Ex. 334; Holloway v. York, 2 Ex. D. 333; Storey v. Waddle, 4 Q. B. D. 289. injunction, restraining the party from doing the act (c). And an affirmative contract may be of such a kind that the court, though it cannot enforce affirmatively the performance of the contract, may restrain a breach by injunction (d). If there is a clear breach of contract in doing the act, the court may grant an injunction, without giving the option of paying damages and though the damages are nominal; but unless there is a right of action the court will not enforce the contract indirectly by an injunction (e). CHAP. II. SECT. I. with terms. Accordingly the court will enforce by injunction a covenant in Contracts a lease not to carry on a trade upon the demised premises (f), affirmative though the court cannot specifically enforce an affirmative covenant and negative to carry on a trade (g); a covenant not to build upon land (h); a covenant in a lease of a theatre not to convert it to any other use (i); a covenant for the exclusive right of supplying beer to any public-house erected upon land of the covenantor, by restraining him from obtaining beer elsewhere (); a contract to supply material to a manufacturer and not to supply similar material to any other manufacturer (1); a covenant by a dramatic author not to write for any other theatre than that of the covenantee, though the court could not compel him to write for that theatre (m); a covenant by a dramatic performer to perform at a certain theatre and not to perform at any other (n). So the engagement of an agent to sell a certain patent article upon stated terms was held to import an exclusive agency; and the employer was restrained from selling through another agent upon different terms (o). But where a manager of works contracted with his employer "to give his whole time to the business," without any express negative stipulation, it was held that an injunction could not be granted to restrain (c) Cairns, L. C., Doherty v. Allman, 3 Ap. Ca. 720. (d) Manchester Ship Canal v. Manchester Racecourse Co., (1901) 2 Ch. 37; 69 L. J. C. 468; Met. Electric Supply v. Ginder, (1901) 2 Ch. 799; 70 L. J. C. 862. (e) Manners v. Johnson, 1 C. D. 673; 45 L. J. C. 404; Lloyd v. L. C. & D. Ry., 2 D. & S. 568; 34 L. J. C. 401; Krehl v. Burrell, 11 C. D. 146; 48 L. J. C. 252; De Francesco v. Barnum, 43 C. D. 172; 59 L. J. C. 151. (f) Bramwell v. Lacey, 10 C. D. 691; 48 L. J. C. 339; Rolls v. Miller, 27 C. D. 71; 53 L. J. C. 682; Hobson v. Tulloch, (1898) 1 Ch. 424; 67 L. J. C. 205. (g) Hooper v. Brodrick, 11 Sim. 47; 9 L. J. C. 321. (h) Western v. McDermott, L. R. 2 Ch. 72; 36 L. J. C. 76; Manners v. Johnson, supra; Worsley v. Swann, 51 L. J. C. 576. (i) Leader v. Moody, L. R. 20 Eq. 145; 44 L. J. C. 711. See Holford v. Acton Urban Council, (1898) 2 Ch. 240; 67 L. J. C. 363. (k) Catt v. Tourle, L. R. 4 Ch. 654; 38 L. J. C. 665. (1) Donnell v. Bennett, 22 C. D. 835; (m) Morris v. Colman, 18 Ves. 437. (0) Dietrichsen v. Cabburn, 2 Phill. 52. PART V. Mandatory injunction. Election to claim specific performance or damages. a breach of the contract in undertaking other business (p). Upon the above principle, though the court cannot decree specific performance of the charter-party of a ship, it will grant an injunction restraining the owner of the ship from using it for any other purpose (7). But upon a contract for the sale and delivery of goods the court will not interfere by injunction to restrain the seller from otherwise disposing of the goods, where the breach of contract may be fully compensated by the market price of the goods at the time of delivery (). In all such cases as above the court, though unable to give specific performance, requires complete performance by the other party as a necessary condition of granting and continuing the injunction (s).—The court formerly enforced indirectly the affirmative terms of a contract, of which it could not directly enforce specific performance, by means of a "mandatory injunction against the contrary state of things (1). But according to the more modern practice, it is usual to direct the act to be done in affirmative form, e.g., to order the defendant to pull down buildings and not merely to restrain him from permitting them to remain on the land (u). Prior to the Judicature Act, 1873, the court would put the plaintiff to his election, if he sued for specific performance and brought an action at law for the same matter, which remedy he would pursue (x); and in a vendor's action for specific performance would restrain proceedings by the purchaser to recover the deposit at law (y). Under the Judicature Acts, Ord. XX. r. 6, the plaintiff may claim the relief either simply or in the alternative; and it is not necessary to ask for general or other relief, which may always be given as the court may think just to the same extent as if it had been asked for. Where a plaintiff claims specific performance with an alternative claim for damages, the latter claim is restricted to the case of specific performance being an inappropriate remedy, and it cannot be used as a substantive (p) Whitwood Co. v. Hardman, (1891) 2 Ch. 416; 60 L. J. C. 428. (q) De Mattos v. Gibson, 4 D. & J. 276; 28 L. J. C. 498; Le Blanch v. Granger, 35 Beav. 187. (r) Fothergill v. Rowland, L. R. 17 Eq. 132: 43 L. J. C. 252. See Donnell v. Bennett, supa; Keith, Prowse & Co. v. National Telephone Co., (1894) 2 Ch. 147; 63 L. J. C. 373. (s) Wood, V.-C., Stocker v. Wedderburn, 3 K. & J. 405; 26 L. J. C. 717. (t) Lane v. Newdigate, 10 Ves. 192; Rankin v. Huskisson, 4 Sim. 13; Gaskin v. Balls, 13 C. D. 324: Manners v. Johnson, 1 C. D. 673; 45 L. J. C. 404; Strelley v. Pearson, 15 C. D. 113; 49 L. J. C. 406. (u) Jackson v. Normanby Brick Co., (1899) 1 Ch. 438; 68 L. J. C. 407. (x) See Fennings v. Humphery, 4 Beav. 1; 10 L. J. C. 251. (y) Beaufort v. Glynn, 3 Sm. & G. 213; Kell v. Nokes, 32 L. J. C. 785. SECT. I. with cause of action upon an essential failure of the claim to specific CHAP. II. performance (). The jurisdiction of the court to enforce the specific performance of a contract for an interest in land where possession has already been given, but no action can be brought by reason of the Statute of Frauds, does not enable the court to give damages as in an action upon the contract, instead of specific performance (a). Where a plaintiff has recovered liquidated damages as the value of the whole contract, he is precluded from afterwards applying for specific performance or an injunction against a further breach (b).-But a plaintiff may claim damages Specific for breaches up to the time of action brought, together with performance specific performance in the future; and a plaintiff may claim damages. specific performance of such stipulations of a contract as admit of that remedy, and at the same time damages in respect of such stipulations as do not (c). Thus under a contract to take a lease for a certain term at a fixed rent, and upon the terms of the lessee pulling down a house upon the premises and building a new one upon the site, the lessor was given specific performance as to the lease, with damages for not building the house, as to which the court could not give specific performance (d). In electing to sue for damages the plaintiff converts his right to performance of the contract into compensation for non-performance; and the measure of damages is not the cost to the defendant of performance of the contract, but the value to the plaintiff if performed (e). claims. The jurisdiction to give specific performance is necessarily limited to what is practicable and expedient for the court to execute with contracts that result in a mere debt, or money claim, Debts and specific performance by payment of the money is substantially the money same thing as damages for the detention of the money, the latter being merely the sum detained; and the ordinary remedy by action for the debt is sufficient both in law and in equity (ƒ). The mere inability to enforce a debt at law, through a defect in the contract or in the proof of it, as the want of written evidence where (z) Hipgrave v. Case, 28 C. D. 356; 54 L. J. C. 399. (a) Lavery v. Pursell, 39 C. D. 508; 57 L. J. C. 570. (b) Sainter v. Ferguson, 1 Mac. & G. 286; 19 L. J. C. 170. See General Accident Ass. v. Noel, (1902) 1 K. B. 377; 71 L. J. K. B. 236. (c) Fennings v. Humphery, 4 Beav. 1; 10 L. J. C. 251. (d) Soames v. Edge, Johns. 669; London (Corp.) v. Southgate, 38 L. J. C. 141. (e) Wigsell v. Blind School, 8 Q. B. D. 357; 51 L. J. Q. B. 330; Re Chifferiel, 40 C. D. 45; 58 L. J. C. 263. (f) Brough v. Oddy, 1 Russ. & M. 55; Taml. 215; Crampton v. Varna Ry., L. R. 7 Ch. 562; 41 L. J. C. 817. PART V. Contracts of loan. Sale of land. required by law, or of a contract under seal, affords no ground of equity for claiming specific performance (g). And where a contract stipulates for the payment of liquidated damages for a certain act, giving the party the option of paying such damages instead of performance, the court has no jurisdiction to give specific performance; but the court has jurisdiction to give specific performance of contracts which are secured by penalties, unless an option of payment instead of performance is given ().-Upon the same principle upon a contract to borrow money, or to lend money, the only remedy is pecuniary damages for the loss of the loan; which are merely nominal, if the loan can be made elsewhere (). But the court will specifically enforce an agreement to give security for a debt; as an agreement to execute a mortgage deed, notwithstanding it would contain a power of sale that might be exercised immediately, and in a proper case by the same decree to grant foreclosure (4). And the court will decree specific performance of an agreement to grant an annuity, and to charge it upon land, or other specific property (7). "A court of equity decrees performance of a contract for land, because damages at law, which must be calculated upon the general money value of land, may not be a complete remedy to the purchaser, to whom the land may have a peculiar and special value." "And although the demand of the vendor be merely for a sum of money, it will entertain a similar suit for him, upon the principle that the remedies ought to be mutual" (m). The court will require a purchaser in possession by an interlocutory order to pay the purchase-money into court, with the option of giving up possession instead of paying; and if he has depreciated the property so as to diminish the security of the vendor, will compel him to pay the money into court without such option (n). Upon the same principles specific performance applies to a contract to grant a lease, or to renew a lease, or for the perpetual renewal of a (1) Lyde v. Mynn, 1 M. & K. 683; Wellesley v. Wellesley, 4 M. & Cr. 561; 9 L. J. C. 21; Matthews v. Goodday, 31 L. J. C. 282. (m) Leach, V.-C., Adderley v. Dixon, 1 S. & S. 610; Eastern Counties Ry. v. Hawkes, 5 H. L. C. 331; 24 L. J. C. 601; 10 E. R. 928. (n) Lewis v. James, 32 C. D. 326; 56 L. J. C. 163; Greenwood v. Turner, (1891) 2 Ch. 144; 60 L. J. C. 351. |