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that equity should decline to enforce it and this explains some of the decisions; but the mere fact that one party to a contract is given a right which the other is not is no reason for refusing equitable relief. 18 In the numerous cases where injunctions are granted restraining competition, the court enforces a promise of the defendant which has no correlative promise on the part of the plaintiff; and in the common case of an option for which payment has been made there is a promise to buy or sell as the case may be without a corresponding obligation on the other side.19 Such contracts are it is true ordinarily unilateral, but it surely can make no difference in the validity of an option that instead of paying $100 for it the promisee agrees to pay that or any other sum or to do any act. In such a contract the party having the option will in effect have a bargain for the property under option with a right to terminate all liability by paying the agreed price of the option; while the other party will have no corresponding power to terminate his liability. In New York a still further restriction has been placed on the right to enforce specifically terminable contracts. Where each

Holmes, 253; Philadelphia Baseball Club v. Lajoie, 202 Pa. 210, 51 Atl. 973, 58 L. R. A. 227, 90 Am. St. Rep. 627. Also criticisms by Pomeroy in 36 Cyc. 632, and by Schofield in 3 Ill. L. Rev. 43. In McCall Company v. Wright, 198 N. Y. 143, 153, 91 N. E. 516, 31 L. R. A. (N. S.) 249, the court said with reason, though with some lack of consistency with earlier decisions:

"A court of equity does not refuse under otherwise proper circumstances to restrain a continuing violation of a valid subsisting obligation not to injure another, simply because that other has the option to cancel the obligation by terminating the agreement which creates it. It seems to me that no element of mutual obligation is involved. One party has furnished a good consideration for which the other has agreed to refrain from doing certain things, and it is no excuse for a violation

of the agreement while it lasts that the beneficiary may at some time terminate it. A perfectly familiar illustration of this class of actions is the one brought by a vendor of real estate to restrain a violation by the vendee of a restrictive covenant in the deed. There is at the time no mutual obligation resting on the vendor. But the vendee for a good consideration has agreed not to do certain things and I apprehend it would not be a defense to an action to restrain his violation that the vendor might in the future do something which would terminate the obligation."

18 Boonton v. United Water Supply Co., 83 N. J. Eq. 536, 91 Atl. 814. See also Conley Camera Co. v. Multiscope & Film Co., 216 Fed. 892, 133 C. C. A. 96.

19 See Conley Camera Co. v. Multiscope & Film Co., 216 Fed. 892, 133 C. C. A. 96; and supra, § 1441.

party was given a right after three years to terminate an employment for five years, and it was so terminated by the plaintiff, the court refused to enforce a promise of the defendant not to give his services to a competitor of the plaintiff for the full term of five years. 20 It will be noticed that the contract had been wholly performed on both sides, except the negative promise in question, and in substance the situation was exactly like the common provision that for a limited time after the expiration of a contract of employment the employee will not compete with his employer or enter into the service of a competitor. Such contracts are enforced in New York 21 as well as elsewhere unless they are under the particular circumstances harsh, or so unreasonably or unnecessarily in restraint of trade as to be opposed to public policy.

§ 1443. Mutuality as a reason for giving relief where the plaintiff has an adequate remedy at law.

The ordinarily received rule of mutuality 22 is open to objection also when applied as a reason for giving a plaintiff relief which it is possible though not essential for equity to give. In such a case the argument runs that since the defendant would unquestionably be given equitable relief if he were sueing, the plaintiff also must have a right to specific performance. Where promises are mutually binding, justice requires that each promise should be adequately enforced; and further if not only the promises but the performances promised are, as is almost always the case, 23 intended as the price or exchange for each other, that one party should not be required to perform specifically when he will acquire thereby merely a right of action for damages; at least unless the terms of the contract indicate that he assumed that risk, by agreeing to perform at an earlier date than the other party. But if a court of law can effect the desired result on one side as fully as a court of equity,

20 Star Co. v. Press Pub. Co., 162 N. Y. App. D. 486, 147 N. Y. S. 579; See also Winslow v. Mayo, 123 N. Y. App. D. 758, 108 N. Y. S. 640, and criticism by Stone in 16 Columbia L. Rev. 443, 460.

21 Mutual Milk Co. v. Prigge, 112 N. Y. App. D. 652, 98 N. Y. S. 458; Mutual Milk Co. v. Heldt, 120 N. Y. App. D. 795, 105 N. Y. S. 661.

22 Supra, § 1433.

23 See supra, §§ 813, 888.

and an equitable remedy is necessary for the enforcement of the promise on the other side, there seems no reason why a court of equity should give a remedy to each party; 24 and in fact though a vendor of land may specifically enforce the contract against the purchaser while the contract is still unperformed on his part,25 if the vendor has fully performed so that nothing remains to be done by the purchaser but to pay the price (and probably if the price or an instalment of it is payable before and independently of the conveyance, the time for making which has not arrived), so that the vendor would recover at law the same amount that he would be given in equity, there is an adequate remedy at law, and there seems no reason why equity should take jurisdiction. 26 It has been suggested as a better justification for allowing a suit by the vendor than the necessity of mutuality which is the usual explanation, that the vendor holds the legal title to his property, subject to equitable rights in the purchaser, who is therefore entitled to the aid of the court of equity to adjust their rights.27 It is true that if similar relief were obtainable at law, the vendor's right to come into equity would be doubtful. The vendor under an executory contract to sell chattels of unique or special character 28 may

24 Eckstein v. Downing, 64 N. H. 248, 9 Atl. 626, 10 Am. St. Rep. 404; Northern Central R. v. Walworth, 193 Pa. 207, 213, 44 Atl. 253, 74 Am. St. Rep. 683.

"Lewis v. Lechmere, 10 Mod. 503. Of the numerous modern decisions, see, e. g., Eastern Countries R. Co. . Hawkes, 5 H. L. Cas. 331; Cathart v. Robinson, 5 Pet. 264, 8 L. Ed. 120; David v. McRae, 183 Fed. 812; Morgan v. Eaton, 59 Fla. 562, 52 So. 305, 138 Am. St. 167; Robinson . Appleton, 124 Ill. 276, 15 N. E. 761; Migatz v. Stieglitz, 166 Ind. 361, 77 N. E. 400; Staples v. Mullen, 196 Mass. 132, 81 N. E. 877; Abbott v. Moldestad, 74 Minn. 293, 77 N. W. 227, 73 Am. St. 348; Moore v. Baker, 62 N. J. Eq. 208, 49 Atl. 836; Rindge . Baker, 57 N. Y. 209, 15 Am. Rep. 475; Curtis Land, etc., Co. v. Interior

Land Co., 137 Wis. 341, 118 N. W. 853, 129 Am. St. Rep. 1068.

26 Jurisdiction was denied in a suit for a preliminary instalment of the price in Jones v. Newhall, 115 Mass. 244, 15 Am. Rep. 97, and in support of this decision Mr. Ames says (Lectures on Legal History, page 380): "a lessee, to put another illustration, may compel an execution of a lease, but will any one maintain that a lessor, who has executed a lease may collect the rent by a bill in equity? We may dismiss this phrase of the doctrine of mutuality from our minds."

27 Ames, Lectures Legal Hist., p. 380; Stone, 16 Columbia L. Rev. 451; Cook, 6 Am. Law. & Proc. 183.

28 Young v. Collier, 31 N. J. Eq. 444; Eckstein v. Downing, 64 N. H. 248, 9 Atl. 626, 10 Am. St. Rep. 404;

therefore enforce specifically his contract with the purchaser; but it may be questioned whether corresponding relief should be given the purchaser in a jurisdiction where a court of law allows recovery of the full contract price in an action at law on an executory contract.29

All of these results would be sufficiently explained by saying that where the legal remedy secured not only adequate redress, but practically identical redress with that which could be given by equity, equity will decline jurisdiction. It must be admitted, however unsatisfactory the reason may be for the vendor's right specifically to enforce the contract that it is in order to give him a mutual remedy, that nevertheless historically this idea of mutuality is the basis of his right; and the new explanation is somewhat inadequate because, for instance, if on account of fraud or other reason the purchaser could not enforce the contract it cannot be doubted that the vendor might do so although the purchaser had no equitable right of which enforcement was necessary.30

§ 1444. Damages as alternative relief.

If the subject-matter of a contract is suitable for specific performance and the plaintiff was ignorant when he brought his bill that specific performance was impossible, the bill will not be dismissed, but in order to give complete relief and thereby prevent unnecessary litigation the plaintiff will be awarded damages without being compelled to resort to a court of law.31 A fortiori this relief will be granted where the defendant's inability to perform supervenes during the pendency of the bill. 32 "This practice is not confined to cases where the relief sought

Cogent v. Gibson, 33 Beav. 557;
Perin v. Megibben, 53 Fed. 86, 3
C. C. A. 443; Hills v. McMunn, 232
Ill. 488, 83 N. E. 963; Law v. Smith,
68 N. J. Eq. 81, 59 Atl. 327.

29 See supra, § 1365; Northern Central R. v. Walworth, 193 Pa. 207, 213, 44 Atl. 253, 74 Am. St. Rep. 683. 30 G. L. Clark, 31 Harv. L. Rev. 274.

31 Milkman v. Ordway, 106 Mass. 232 (discussing the authorities). But

see Van Allen v. New York &c. R. Co., 144 N. Y. 174, 179, 38 N. E. 997.

32 Graves v. Ashburn, 215 U. S. 331, 335, 54 L. Ed. 217, 30 Sup. Ct. 108; Altoona, etc., Co. v. Kittanning, etc., R. Co., 126 Fed. 559; Fleming v. Ellison, 124 Wis. 36, 102 N. W. 398. See also Wingert v. First Nat. Bank, 223 U. S. 670, 672, 32 Sup. Ct. 391, 56 L. Ed. 605; Lewis v. North Kingstown, 16 R. I. 15, 11 Atl. 173, 27 Am. St. Rep. 724.

is prevented by act of the defendant. 33 In many instances the change of circumstances arising from the lapse of time, renders the specific relief unsuitable or inequitable.” 34 But if the plaintiff when he files his bill knew, or should have known that specific performance was impossible, the plaintiff must by amendment or new proceedings seek relief in an action at law. 35

§ 1445. An injunction as a means of specific performance.

A court may order specific performance of a negative promise by enjoining breach of it; and if a contract consisted wholly of negative stipulations complete specific performance could be granted in that way-more complete in fact than is ordinarily possible with affirmative promises; for while equity rarely grants an affirmative decree for the enforcement of a contract until it has been broken, it frequently grants an injunction to restrain a threatened breach.36 The fundamental basis for granting relief by injunction is the same as for granting affirmative relief; namely, the inadequacy of damages. If the breach of a negative stipulation cannot be adequately compensated in damages the general basis for relief is established. The enforcement by an injunction of a negative promise does not present the difficulties of procedure which limit the enforcement of affirmative. It is always possible for the defendant to refrain from doing anything, and it involves no strain"Rosen v. Mayer, 224 Mass. 494, 495, 113 N. E. 217, citing Stewart v. Joyce, 201 Mass. 301, 87 N. E. 613, "Ibid., citing Brande v. Grace. 154 Mass. 210, 31 N. E. 633; Case v. Minot, 158 Mass. 577, 33 N. E. 700, 22 L. R. A. 536; Lexington Print Works v. Canton, 171 Mass. 414, 50 N. E. 931; DeMinico v. Craig, 207 Mass. 593, 94 N. E. 317, 42 L. R. A. (N. S.) 1048; Wentworth v. Manhattan Market Co., 216 Mass. 374, 103 N. E. 1105. See also McCormick v. Oklahoma City, 203 Fed. 921, 122 C. C. A. 215.

35 Clark v. Rosario &c. Co., 176 Fed. 180, 99 C. C. A. 534; Bromberg . Eugenotto Constr. Co., 158 Ala. 323, 48 So. 60, 19 L. R. A. (N. S.)

1175; Farson v. Fogg, 205 Ill. 326, 68 N. E. 755; Eggert v. Pratt, 126 Iowa, 727, 102 N. W. 786; Van Keuren v. Siedler, 73 N. J. Eq. 239, 66 Atl. 920; Knudston v. Robinson, 18 N. D. 12, 118 N. W. 1051; Kerlin v. Knipp, 207 Pa. St. 649, 57 Atl. 34.

36 Star Chronicle Pub. Co. v. New York Evening Post, 256 Fed. 435, 167 C. C. A. 563; Jackson v. Stevenson, 156 Mass. 496, 31 N. E. 691, 32 Am. St. Rep. 476; Kearny v. Mayor, (N. J. Eq. 1919), 107 Atl. 169; Lattimer v. Livermore, 72 N. Y. 174; Dailey v. New York, 170 N. Y. App. D. 267, 156 N. Y. S. 124, affd. without opinion, 218 N. Y. 665, 113 N. E. 1053. See also 42 N. J. Law Jl. 102.

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