ciple are not, however, always free from technicality. In the course of centuries, rules of equity tend to become rigid, and like rules of law do not always yield readily when reason makes it desirable. There is, however, a distinct tendency in modern times to extend the remedy where justice requires it. The converse statement, that any contract which is valid at law is also enforceable in equity if its subject-matter is appropriate for that jurisdiction, is generally true, but subject to the exception that equity reserves a discretion in granting its relief; and to one rule that is laid down perhaps too positively, namely, that equity will not grant specific performance of a contract unsupported by valuable consideration even though under seal.'

§ 1419. Specific performance of contracts to buy and sell.

Partly because a specific piece of land is in its nature different from every other piece, and presumably partly because of the overshadowing social and economic importance of land when the doctrines of equity were developed, a contract to convey land is always specifically enforceable by the purchaser whatever may be the form of contract, whether an ordinary contract to purchase, or an agreement to exchange lands, to re-convey on the mortgagor finding a purchaser,' to partition land held in common, or to make a conveyance by way of compromise. 10 A contract to convey any interest in land is as fully enforceable as a contract to convey a fee.11 On the other hand,

which a court of equity can give, it is not in all cases sufficient that there be a remedy at law. The remedy must be plain and adequate, and as certain, prompt, complete and efficient to attain the ends of justice and its prompt administration as the remedy in equity." Dailey v. City of New York, 170 N. Y. App. Div. 267, 274, 156 N. Y. S. 124. citing Texas Co. v. Central Fue, Oil Co., 194 Fed. 1, 114 C. C. A. 21, and cases cited; Walla Walla v. Walla Walla Water Co., 172 U. S. 1, 43 L. Ed. 341, 19 Sup. Ct. 77; Tyler v. Savage, 143 U. S. 79, 36 L. Ed. 82, 12 Sup. Ct. 340; Kilbourn v., Sunder

8

land, 130 U. S. 505, 32 L. Ed. 1005, 9 Sup. Ct. 594; Erie Railroad Co. v. City of Buffalo, 180 N. Y. 192, 73 N. E. 26.

See infra, § 1425.

'Jefferys v. Jefferys, Cr. & Ph. 138; Crandall v. Willig, 166 Ill. 233, 46 N. E. 755. See also supra, § 217.

8 Dixon v. Anderson, 252 Fed. 694, 164 C. C. A. 534; Bowman v. Gork, 106 Mich, 106 Mich. 163, 63 N. W. 998.

Porter v. Farmers' Savings Bank, 143 Iowa, 629, 120 N. W. 633.

10 Fortner v. Wiggins, 121 Ga. 26, 48 S. E. 694; Sumner v. Early, 134 N. C. 233, 46 S. E. 492.

11 Lever v. Koeffir, [1901] 1 Ch.

contracts for the sale of personal property are not generally enforced specifically, and a clear case of the inadequacy of damages is necessary in order to obtain equitable relief.12 Such a case is established, where a chattel which is the subject of the contract is unique, or not purchasable in the market. 13 The modern disposition is to be less technical in the application of this principle and where a special need on the part of the plaintiff, and at least a temporary monopoly on the part of the defendant justify its application, the remedy is allowed for breach of contracts for the sale of personal property for which damages might otherwise be adequate.14 Contracts to sell ships,15

to transfer documents of any kind, 16 as well as the intangible right of the owner of a patent or invention," or copyright, 18 or annuity 19 are also specifically enforced. Many decisions relate to contracts for the sale of stock. Contracts for the sale of government bonds (called stock in England) it is conceded will not be specifically enforced since they are readily bought and sold on the market; 20 and for the same reason American courts deny specific performance to one who has contracted to purchase stock of a kind which can easily be bought in the market, 21 though allowing the remedy if the stock is thus not readily obtainable in the market. 22 Furthermore, where the Menier v. Donald, 98 N. Y. Misc. 684, 165 N. Y. S. 50.

16 Jackson v. Butler, 2 Atk. 306 (deeds); Gibson v. Ingo, 6 Hare, 112 (certificate of ship's registration); Doloret v. Rothschild, 1 Simon & S. 590 (certificate of title to government bond); O'Donnell v. Chamberlin, 36 Col. 395, 91 Pac. 39 (contract); McMullen v. Vanzant, 73 Ill: 190 (promissory note); Pattison v. Skillman, 34 N. J. Eq. 344 (letters important as evidence); Dock v. Dock, 180 Pa. 14, 36 Atl. 411 (letters).

"Printing, etc., Co. v. Sampson, L. R. 19 Eq. 462; Pressed Steel Car Co. v. Hansen, 128 Fed. 444, 137 Fed. 403, 71 C. C. A. 207; Fairchild v. Dement, 164 Fed. 200; Wege v. Safe Cabinet Co., 249 Fed. 696, 161 C. C. A. 606; Blackmer v. Stone, 51 Ark. 489, 11 S. W. 693; Whitney v. Burr, 115 III. 289; Telegraphone Corp. v. Canadian Telegraphone Co., 103 Me. 444, 69 Atl. 767; Adams v. Messinger, 147 Mass. 185, 17 N. E. 491, 9 Am. St. Rep. 679; Detroit Lubricator Co. v. Lavigne, 151 Mich. 650, 115 N. W. 988; Spears v. Willis, 151 N. Y. 443, 45 N. E. 849; Hepworth v. Henshall, 153 Pa. 592, 25 Atl. 1103; McRae v. Smart, 120 Tenn. 413, 114 S. W. 729; Valley Iron Manfg. Co. v. Goodrick, 103 Wis. 436, 78 N. W. 1096.

18 Thombleson v. Black, 1 Jur. 198. "Withy v. Cottle, 1 Sim. & St. 174.

20 Cud v. Rutter, 1 Peere. Wil. 570; Nutbrown v. Thornton, 10 Ves. 159, 161; Rollins Investment Co. v. George, 48 Fed. 776; Frue v. Houghton, 6 Colo. 318, 320; Paddock v. Davenport, 107 N. C. 710, 717, 12 S. E. 464; Goodwin's App., 117 Pa. 514, 534, 12 Atl. 736.

21 Hyer v. Richmond Traction Co., 168 U. S. 471, 488, 42 L. Ed. 547, 18 Sup. Ct. 114; Berimer v. GriscomSpencer Co., 161 Fed. 438; Eckley v. Daniel, 193 Fed. 279; Graham v. Herlong, 50 Fla. 521, 39 So. 111; Ryan v. McLane, 91 Md. 175, 46 Atl. 340, 80 Am. St. Rep. 438; Toles v. Duplex Power Co., 202 Mich. 224, 168 N. W. 495; Harle v. Brenning, 131 N. Y. App. Div. 742, 116 N. Y. S. 51; Kennedy v. Thompson, 97 N. Y. App. Div. 296, 89 N. Y. S. 963; Rawll v. Baker Vawter Co., 187 N. Y. App. D. 330, 176 N. Y. S. 189; Deitz v. Stephenson, 51 Or. 596, 95 Pac. 803; Avery v. Ryan, 74 Wis. 591, 43 N. W. 317.

22 Hyer v. Richmond Traction Co., 168 U. S. 471, 488, 42 L. Ed. 547, 18 Sup. Ct. 114; Newton v. Wooley, 105 Fed. 541; Altoona, etc., Co. v. Kittanning, etc., Co., 126 Fed. 559; Mutual Oil Co. v. Hills, 248 Fed. 257, 160 C. C. A. 335; Fleishman v. Woods, 135 Cal. 256, 67 Pac. 276; Wait v. Kern River Min., etc., Co., 157 Cal. 161, 106 Pac. 98; Gilfallan v. Gilfallan, 168 Cal. 23,

plaintiff desires the stock contracted for in order to obtain control of a corporation, specific performance has been allowed, 23 unless the court deems the plaintiff's desire for control opposed to public policy. 24 In England, although shares of the stock in question may be obtainable on the market, specific performance nevertheless is allowed of a contract to buy them.25 Where the plaintiff has agreed to resell for a stated price the subjectmatter of his contract with the defendant, damages will be held to afford him adequate relief though the contract would otherwise have been specifically enforced. 26 Probably the fu

ture tendency of courts will be towards a freer allowance of the remedy in the case of contracts to sell personalty than might be inferred from the earlier precedents.27

§ 1419a. Specified and unspecified goods.

In a leading English case, 28 Lord Westbury said: "A contract for the sale of goods, as, for example, of five hundred chests of tea, is not a contract which would be specifically performed, because it does not relate to any chests of tea in particular; but a contract to sell five hundred chests of the particular kind of tea which is now in my warehouse in Gloucester, is a contract relating to specific property, and which would be specifically performed. The buyer may maintain a suit in equity for the delivery of a specific chattel when it is the subject of a contract, and for an injunction (if necessary) to restrain the seller from delivering it to any other person." This statement certainly goes far beyond rules of equity as generally understood.29

The enforcement of contracts to mortgage after-acquired property on the theory that the mortgagee acquires an equitable right to the goods described, as soon as they are acquired by the mortgagor, has been the subject of much litigation, and the equitable right has been recognized in many jurisdictions. 30 It is, however, a prerequisite that the mortgagee shall actually have advanced his money, no jurisdiction being taken of a contract executory on both sides; 31 and it is of course requisite that the contract shall describe the goods with sufficient exactness to enable them to be identified.

78 So. 212, L. R. A. 1918 E. 594; Dowling v. Betjemann, 2 Johns. & H. 544; Ryan v. McLane, 91 Md 175, 46 Atl. 340, 50 L. R. A. 501, 80 Am. St. 438.

"See Ridenbaugh v. Thayer, 10 Ida. 662, 80 Pac. 229; Livesley v. Johnson, 45 Oreg. 30, 76 Pac. 13, 946, 65 L. R. A. 783, 106 Am. St. Rep. 647; Livesley v. Heise, 45 Oreg. 148, 76 Pac. 952.

"Holroyd v. Marshall, 10 H. L. C. 191, 209.

"The statement is criticised by

Fry on Specific Performance (5th ed.), 82, and an examination of the cases cited supra, n. 12 and 13, will show that not only where unspecified goods were in question, but also where the subject-matter of the contract was specific, jurisdiction has been made to depend on the unique character of the goods or the special circumstances of the case.

30 See 19 Harv. L. Rev. 557.

31 Tailby v. Official Receiver, 13 A. C. 523, 543, 546.