Difficulty of assess ment must jury. A manufacturer was in the habit of sending specimens of his goods for exhibition to agricultural shows, and be met by he made a profit by the practice. He entrusted some such goods to a railway company, who promised the plaintiff, under circumstances which should have brought his object to their notice, to deliver the goods at a certain town on a fixed day. The goods were not delivered at the time fixed, and consequently were late for a show at which they would have been exhibited. It was held that though the ascertainment of damages was difficult Railway Co., and speculative, the difficulty was no reason for not giving any damages at all. Simpson v. 1 Q. B. D. 274. Roper v. And further, the plaintiff is entitled to recover for prospective loss arising from a refusal by the defendant to perform a contract by which the plaintiff would have profited. Thus where a contract was made for the supply of coal by the defendants to the plaintiff by monthly instalments, and breach occurred and action was brought before the last instalment fell due, it was held that the damages must be calculated to be the difference between the contract price and the market price at the date when each instalment should have been delivered, and that the loss arising from the non-delivery of the last instalment must be calculated upon that basis, although L. R. SC. P. the time for its delivery had not arrived. 167. (ii) Spe Specific performance and injunction. Under certain circumstances a promise to do a thing may be enforced by a decree for specific performance, and injunc- and an express or implied promise to forbear by an cific performance tion. (a) Spe cific performance. injunction. These remedies were once exclusively administered by County, 28 Iowa, 253, As to the duty of the injured party to use reasonable care not to Clark v. Marsiglia, 1 of grace. the chancery. They supplemented the remedy in dam- A matter ages offered by the common law, and were granted at the discretion of the chancellor acting as the administrator of the king's grace. [*312] refused. *It will be enough here to illustrate the two main When characteristics of these remedies-that they are supplementary that they are discretionary. (1) Where damages are an adequate remedy, specific performance will not be granted. The remedy by specific performance was invented, and has been cautiously applied, in order to meet cases where the ordinary remedy by an action for damages is not an adequate compensation for breach of contract. The jurisdiction to compel specific performance has always been treated as discretionary and confined within well-known rules.' Damages may be a very insufficient remedy for the breach of a contract to convey a plot of land: the choice of the intending purchaser may have been determined by considerations of profit, health, convenience, or neighbourhood: but damages can usually be adjusted so as to compensate for a failure to supply goods. In the latter case, therefore, the chancery would decree the specific performance only in the case of chattels possessing a special beauty, rarity, or interest.1 Ryan y Tontine Association, Mutual [1893] 1 Ch. at p. 126. It is only by statute, and in the case of a breach of contract to deliver specific goods, that the court may direct the contract to be performed specifically without 56 & 57 Viet, allowing the seller an option to retain the goods and pay damages. (2) Where the court cannot supervise the execution of the contract specific performance will not be granted. If the court endeavoured to enforce a contract of 1 Adams v. Messinger, 147 Mass. 185, H. & W. 613; Johnson v. Brooks, 93 N. Y. 337; Rotholz v. Schwartz, 46 N. J. Eq. 477; Gottschalk v. Stein, 69 Md. 51; Singer v. Carpenter, 125 Ill. 117. c. 71. § 52. Wolverhampton Railway Co. v. L. & N. W. Railway Co., L. R. 16 Webster v. Cecil, 30 Kekewich v. Manning, employment, or a contract for the supply of goods to be delivered by instalments, it is plain that a series of orders and a general superintendence would be required which could not conveniently be undertaken by any court of justice,' and 'the court acts only where it can perform the very thing in the terms specifically agreed upon.' 6 (3) Unless the contract is certain, fair, and just,' specific performance will not be granted. It is here that the discretionary character of the remedy is most strongly marked. It does not follow that specific *performance will be granted although there may be [*313] a contract actionable at common law, and although damages may be no adequate compensation. The court will consider the general fairness of the transaction and refuse the remedy if there is any suspicion of sharp practice on the part of the suitor. Akin to this principle is the requirement that there must be mutuality between the parties. This means that at the 1D. M. & G. time of making the contract there must have been consideration on both sides or promises mutually enforceable by In re Lucan, the parties. Hence specific performance of a gratuitous at p. 188. 45 Ch. D. 470. Flight v. Bolland, 4 (b) Injunction, promise under seal will not be granted; nor can an infant enforce a contract by this remedy. His promise is not enforceable against himself, though he might bring action upon it in the Queen's Bench Division of the High Court, and it is a general principle of courts of equity to interfere only where the remedy is mutual.'1 An injunction may be used as a means of enforcing a simple covenant or promise to forbear. Such would be ante, p. 251. the case of building covenants described earlier, restrain 1 But if a donee of lands goes into possession and makes valuable improvements in reliance upon the promise, equity will specifically enforce it. Freeman v. Freeman, 43 N. Y. 34; Irwin v. Dyke, 114 Ill. 302; Manly v. Howlett, 55 Calif. 94; Smith v. Smith, 125 N. Y. ing the use of property otherwise than in certain specified manner. Clegg v. Hands, 44 Ch. D. 503. Or it may be the only means of enforcing the specific when granted, performance of a covenant where damages would be an inadequate remedy, while to enforce performance of the covenant would involve a general superintendence such as the court could not undertake. Thus a hotel keeper who obtained a lease of premises with a covenant that he would buy beer exclusively of the lessor and his assigns was compelled to carry out his covenant by an injunction restraining him from buying beer elsewhere. 604. Lumley v. Wagner is an extreme illustration of the 1D. M. & G. principle. Miss Wagner agreed to sing at Lumley's theatre, and during a certain period to sing nowhere else. Afterwards she made a contract with another person to sing at another theatre, and refused to perform her contract with Lumley. The court *refused to enforce Miss Wagner's positive engagement to sing at Lumley's theatre, but compelled performance of her promise not to sing elsewhere by an injunction. [*314] Here there was an express negative promise which the or refused. court could enforce, and it has been argued that an express positive promise gives rise to a negative undertaking not to do anything which should interfere with the performance of this promise. But the court is apparently disinclined to carry any further the principle of Lumley v. Wagner. The case has been said to be an anomaly to be followed in cases like it, but an anomaly which it would be very dangerous to extend.'1 Where a person employed by a company as manager agreed to give the whole of his time to the company's business,' and afterwards gave some of his time to another, 1 Daly v. Smith, 49 How. Pr. (N. Y.) 150. Cf. Cort v. Lassard, 18 Ore. 221, H. & W. 619. Fry, Specific Perform ance, $$ 860, 862 (ed. 8). Whitwood Co. v. Hard man, [1991] 2 Ch. (C. A.) 428. Davis v. 654. Effect of Acts. 36 & 37 Vict. c. 66. § 34. sub-§ 3. and a rival, company, an injunction to restrain him from so doing was refused. 'I think,' said Lindley, L. J., the court will generally do much more harm by attempting to decree specific performance in cases of personal service than by leaving them alone: and whether it is attempted to enforce these contracts directly by a decree for specific performance or indirectly by an injunction, appears to me to be immaterial. It is on the ground that mischief will be done at all events to one of the parties, that the court declines in cases of this kind to grant an injunction, and leaves the party aggrieved to such remedy as he may have apart from the extraordinary remedy of injunction.' And this principle will be acted upon although a stipulation, affirmative in substance, is couched in a negative form. An employer stipulated with his manager that he would not require him to leave the employment except under certain circumstances. It was held that such an undertaking could not be enforced by an injunction to restrain the employer from dismissing the manager. [*315] Though an equitable claim or counter-claim may be asJudicature serted in any Division of the High Court of Justice, there is assigned to the Chancery Division, as a special department of its *business, suits for 'specific performance of contracts between vendors and purchasers of real estate, including contracts for leases.' A suit for specific performance, if brought in any other than the Chancery Division, would be transferred to that Division by an order of the Court. (4) Discharge of right of action. § 4. Discharge of right of action arising from breach of contract. The right of action arising from a breach of contract can only be discharged in one of three ways: (i) By the consent of the parties. : (ii) By the judgment of a court of competent jurisdiction. (iii) By lapse of time. |