Robinson, 134 N. C. 503, 47 S. E 19, 65 L. R. A. 682, 101 Am. St. Rep 877; Brown v. Eaton, 21 Minn. 409. And so it is distinctly held by the Supreme Court of Appeals of Virginia in Steadman v. Handy, 102 Va. 382, 46 S. E. 380."

72 Tebeau v. Ridge, 261 Mo. 547, 568, 170 S. W. 871, L. R. A. 1915 C. 367.

The authorities on the right of the purchaser against a vendor who is unable to obtain a release of inchoate dower are thus summarized in a decision of the Supreme Court of Missouri.72 "The cases are in much confusion and irreconcilable contrariety. Three views prevail: (1) the purchaser is entitled as against inchoate dower to have the purchase price diminished by such sum as represents the present value of the wife's contingent interest, estimated by the tables of mortality and by the statute of present values of estates less than a fee; 73 (2) the view that the decree of the court may permit the vendee to retain one-third of the purchase price as an indemnity until the 413, 425; Frederick v. Coxwell, 3 Y. & J. 514, 517; Barbour v. Hickey, 2 App. Cas. D. C. 207, 213; Richmond v. Robinson, 12 Mich. 193; Tebeau v. Ridge, 261 Mo. 547, 568, 170 S. W. 871, L. R. A. 1915 C. 367; Peeler v. Levy, 26 N. J. Eq. 330; Martin v. Dwelly, 6 Wend. 9, 15, 21 Am. Dec. 245; Clark v. Seirer, 7 Watts, 107, 32 Am. Dec. 745; Riez's App., 73 Pa. 485. See also Kuratli v. Jackson, 60 Oreg. 203, 118 Pac. 192, 1013, 38 L. R. A. (N. S.) 1195, Ann. Cas. 1914 A. 203. In Ferrell v. Bork, 79 Atl. 897 (decision without opinion in 76 N. J. Eq. 615), the court being convinced that the refusal of the wife was induced by the husband ordered him to give a bond to protect the purchaser from the enforcement of the wife's interest; and in Dixon v. Anderson, 252 Fed. 694, 696, 164 C. C. A. 534, the court said: "The wife is not a necessary party, and her willingness to join in the conveyance need not be affirmatively shown. Campbell v. Beard, 57 W. Va. 501, 50 S. E. 747. In a case like this the law presumes that the wife will be willing to unite with her husband in conveying the land which he has agreed to sell. If the fact turns out otherwise by answer and proof, the court may, nevertheless, require the husband to execute a deed in accordance with his contract. Rodman v.

73 Citing: Springle v. Shields, 17 Ala. 295; Martin v. Merritt, 57 Ind. 34, 26 Am. Rep. 45; Næcker v. Wallingford, 133 Iowa, 605, 111 N. W. 37; Davis v. Parker, 14 Allen, 94; Woodbury v. Luddy, 96 Mass. 1, 92 Am. Dec. 731; Walker v. Kelly, 91 Mich. 212, 51 N. W. 934; Sanborn v. Nockin, 20 Minn. 178; Bostwick v. Beach, 103 N. Y. 414, 9 N. E. 41; Wannamaker v. Brown, 77 S. C. 64, 57 S. E. 665; Wright v. Young, 6 Wis. 127, 70 Am. Dec. 453. Tebeau v. Ridge, 261 Mo. 547, 170 S. W. 871, L. R. A. 1915 C. 367 itself adopts this rule. The right of the purchaser to such a decree is often made to depend on his ignorance when the contract was made, of the fact that the vendor was married. See infra, § 1436, n. 88 If aware of the fact it is said that purchaser should have required the signature of the wife to the contract. This is the rule in New Jersey when refusal of the wife to convey is fraudulently brought about. Young v. Paul, 10 N. J. Eq. 401, 64 Am. Dec. 456.

wife die or convey,74 and (3) the view that the vendee shall have no abatement of the agreed purchase price on account of the wife's refusal to relinquish her inchoate dower (on the ground usually that such abatement would serve to put upon the wife unfair coercion to relinquish a right given to her by law).75 A reason sometimes given for the refusal of equity to decree performance where the defendant is unable to perform, is lack of mutuality; the vendor could not have compelled performance, therefore the purchaser cannot.76 If this argument is sound the fact that the vendor's lack of title is remediable, because he can procure a good title by purchase, should afford no reason for a decree of specific performance against the vendor; " but the invalidity of the argument is shown by the numerous decisions which award a purchaser specific performance with compensation,78 and generally where a third person on whose consent the defendant's ability to perform depends, is shown to be willing to give the necessary consent, a decree will not be denied.79 Moreover, a purchaser has been allowed in some cases to take a decree if he so wished which gave him all the vendor had, but left the full right for which he had contracted dependent on a third person's action.80 Pe74 Citing: Springle v. Shields, 17 Ala. 295; Bradford v. Smith, 123 Iowa, 41, 98 N. W. 377.

"Barbour v. Hickey, 2 App. D. C. 207, 24 L. R. A. 763; Cowan v. Kane, 211 Ill. 572, 71 N. E. 1097; Aiple-Hemmelmann Real Estate Co. 1. Spelbrink, 211 Mo. 671, 111 S. W. 480 (overruled by Tebeau v. Ridge, 261 Mo. 547, 170 S. W. 871); McCormick v. Stephany, 57 N. J. Eq. 257, 41 Atl. 840 (unless wife's refusal was fraudulently collusive with husband, in which case the rule in New Jersey is contra); Roos v. Lockwood, 13 N. Y. S. 128; Riesz's Appeal, 73 Pa. St. 485; Graybill v. Brugh, 89 Va. 895, 17 S. E. 558, 21 L. R. A. 133, 37 Am. St. Rep. 894. See also Kuratli v. Jackson, 60 Oreg. 203, 118 Pac. 192, 1013, 38 L. R. A. (N. S.) 1195, and cases cited.

Forrer v. Nash, 35 Beav. 167;

Public Service Corp. v. Hackensack
Meadows Co., 72 N. J. Eq. 285, 64
Atl. 976.

77 So held in Public Service Corp. Hackensack Meadows Co., 72 N. J. Eq. 285, 64 Atl. 976.

V.

78 See infra, § 1436.

79 Lyman v. Gedney, 114 Ill. 388, 29 N. E. 282, 55 Am. Rep. 871; Jacobson v. Rechnitz, 46 N. Y. Misc. 135, 93 N. Y. S. 173; Kelsey v. Distler, 141 N. Y. App. D. 78, 125 N. Y. S. 602. See also Roquemore v. Mitchell, 167 Ala. 475, 52 So. 423, 140 Am. St. Rep. 52; Ellis v. Small, 209 Mass. 147, 95 N. E. 79; Arnold v. Hull, 7 Grant Ch. (Can.) 47.

80 Thus the vendor of a liquor license has been required to transfer it subject to the possibility that license commissioners may not issue a license to him. In re Fisher, 98 Fed. 89; Fisher v. Cushman,

cuniary inability of the defendant will not, however, preclude a decree for payment where such a decree is appropriate.81

§ 1423. Equity will not make a decree involving excessive difficulty to execute.

Damages are frequently a wholly inadequate remedy for breach of a promise to render personal services, but two analogous difficulties stand in the way of specific enforcement. (1) Long and minute supervision might be needed to secure the proper execution of the decree; (2) the proper performance of the services to the best of the defendant's ability is uncertain and difficult to gauge. And any attempt to overcome these difficulties might involve too serious an infringement of personal liberty to be tolerable. Therefore such promises are not enforceable by affirmative decree; 82 and while they are still executory, counter promises for the conveyance of land, or for other performance within the jurisdiction of equity, are equally unenforceable 83 because of lack of mutuality.84 And in contracts besides those ordinarily designated as contracts of service, it is generally true so far as affirmative relief is concerned, that "Equity will not award specific performance where the duty to be enforced is continuous and reaches over a long period of time, requiring constant supervision by the court." 85 There

103 Fed. 860, 43 C. C. A. 381, 51 L. R. A. 292; In re McArdle, 126 Fed. 442; Ellis v. Small, 209 Mass. 147, 95 N. E. 79, 81. An agent who agreed to transfer his agency may be required to do so subject to the consent of the principal to accepting the transferee. Kelsey v. Distler, 141 N. Y. App. D. 78, 125 N. Y. S. 602.

81 Hopper v. Hopper, 16 N. J. Eq. 147.

82 Clarke v. Price, 2 Wils. Ch. 157; Johnson v. Shrewsbury, etc., R. Co., 3 De G. M. & G. 914; Shubert v. Woodward, 167 Fed. 47, 92 C. C. A. 509; Blue Point Oyster Co. v. Haagenson, 209 Fed. 278; Life Preserver Suit Co. v. National Life Preserver Co., 252 Fed. 139, 164 C. C. A. 251; Roque

more v. Mitchell, 167 Ala. 475, 52 So. 423, 140 Am. St. Rep. 52; H. W. Gossard Co. v. Crosby, 132 Ia. 155, 109 N. W. 483, 6 L. R. A. (N. S.) 1115; Sims v. VanMeter Lumber Co., 96 Miss. 449, 51 So. 459. Cf. infra, § 1450.

83 Cooper v. Pena, 21 Cal. 403; Pacific El. R. Co. v. Campbell-Johnston, 153 Cal. 106, 94 Pac. 623; Deitz v. Stephenson, 51 Oreg. 596, 95 Pac. 803.

84 See infra, § 1440.

85 Pantages v. Grauman, 191 Fed. 317, 112 C. C. A. 61. See also Dominion Coal Co. v. Dominion &c. Steel Co., [1909] A. C. 293; Warmack v. Major Stave Co., 132 Ark. 173, 200 S. W. 799; Pacific, etc., R. v. Campbell-Johnson, 153 Cal. 106, 94 Pac.

fore, "There is no doubt that as a general rule the Court will not enforce specific performance of a building contract." 86 The basis of equity's disinclination to enforce building contracts specifically is the difficulty of enforcing a decree without the expenditure of effort disproportionate to the value of the result. But where the inadequacy of damages is great, and the difficulties not extreme, specific performance will be granted and the tendency in modern times has been increasingly towards granting relief, where under the particular circumstances of the case damages are not an adequate remedy.87 In an Eng

lish case the requirements for specific performance of such contracts have been thus stated: "The first is that the building work, of which [the plaintiff] seeks to enforce the performance, is defined by the contract; that is to say, that the particulars of the work are so far definitely ascertained that the Court can sufficiently see what is the exact nature of the work of which it is asked to order the performance. The second is that the plaintiff has a substantial interest in having the contract performed, which is of such a nature that he cannot adequately be compensated for breach of the contract by damages. The third is that the defendant has by the contract obtained possession of land on which the work is contracted to be done. But not all American decisions where relief has been granted fulfil the third requisite, which seems merely one illustration of a situation where the second requisite is fulfilled. The indisposition of equity to grant specific performance of acts which require time for their performance, such as building contracts, is increased where a continuous series of acts must be performed according to the terms of the contract for an indefinite period of time. Thus contracts which call for the operation of a railroad in a particular way for a considerable or indefinite time have not generally been enforced.89 But con

v. Armstrong, 32 S. C. 203, 601, 10 S. E. 953, 11 S. E. 634, 8 L. R. A. 625 (building and maintaining a drain).

In Adams v. Messinger, 147 Mass. 185, 17 N. E. 491, 9 Am. St. Rep. 679, the court enforced specifically a contract by which the defendant had agreed to furnish and deliver certain patented injectors. It was assumed that they were yet to be made when the contract was entered into but that no skill peculiar to the defendant was required to construct them, and that they could be made by any intelligent artificer in the metals of which they were composed. The court said: "The details of their manufacture are given by reference to the patents which are referred to in the agreement, so that no difficulty such as has sometimes been

experienced could have been found in describing accurately, and even minutely, the articles to be furnished. Nor are there found in the case at bar any continuous duties to be done, or work to be performed, requiring any permanent supervision, which, as it could not be concluded within a definite and reasonable time, has sometimes been held an obstacle to the enforcement of a contract by the court."

88 Romer, L. J., in Wolverhampton v. Emmons, [1901] 1 K. B. 515, 525, paraphrasing Fry on Specific Performance (3d ed.), 44, 45. Substantially the same statement is made in Wheeling Traction Co. v. Board of Commissioners, 248 Fed. 205, 212, 160 C. C. A. 283.

89 Blackett v. Bates, L. R. 1 Ch.