obstinately refuse to avail themselves of the opportunity to have all that the contract calls for, by remaining idle when enjoined from breaking the negative covenant, they ought not to be heard to complain. Great hardship upon the plaintiff,75 may properly move the court to attach little weight to the possibility that the defendant, by doing nothing, may perform part of the contract with no equivalent."

§ 1451. Mutuality in negative contracts.

There can be no doubt that Lumley v. Wagner 76 and similar decisions violate the rule of mutuality as ordinarily applied to affirmative contracts, and it is important to fix the limits of the exception. It may be supposed, (1) that the negative performance of the defendant, by the terms of the contract is to precede the performance of the plaintiff, (2) that it is to continue pari passu with it or (3) that it is to follow the plaintiff's performance. A fourth case may also be supposed, which partakes partly of the nature of each of the others. The defendant's negative obligation may continue over a considerable period of time. It may be supposed that the plaintiff's performance can be rendered at a single moment, and is due at some time within the period over which the defendant's obligation extends. In every case the plaintiff's application for an injunction must be deemed an election to go on with the contract. Therefore if the plaintiff has already so far broken the contract that he will be unable to perform it substantially or if it appears to the court that for any reason he will not perform in the future on his part, an injunction should not be granted." An exception to this principle, however, exists where the defendant's negative stipulation relates to a part of the plaintiff's performance only, and is designed to secure him the enjoyment of the agreed exchange for that part which has been rendered.78

75 Citing for example Tribune Assoc. v. Simonds, (N. J. Eq. 1918), 104 Atl. 386.

76 1 De G. M. & G. 604.

77 Rice v. D'Arville, 162 Mass. 559, 39 N. E. 180.

78 In Rolfe v. Rolfe, 15 Sim. 88, A, B, and C were partners as tailors.

A and B went out of the trade in consideration of receiving £ 1000 each, and C was to continue the business on his own account. A entered into a covenant that he would not carry on, within certain limits, any business like that which he had just sold, and C entered into a covenant that

If the performance of the plaintiff was to proceed pari passu with the performance of the defendant's negative duty, the court can mold the form of the original injunction so that it shall apply only so long as the plaintiff performs on his part.79 The case, however, remains where the negative performance of the defendant must precede the performance of the plaintiff. There seems little suggestion from the courts which follow Lumly v. Wagner that the injunction would be denied on this ground. The defence of allowing the injunction must therefore be, that its allowance will probably result in the full performance of the contract, and that as the defendant, when he made the contract, was willing to run the risk of negative performance on his part, before the plaintiff's performance was due, he cannot fairly complain if equity compels him to take that risk.80

§ 1452. Modification of the rule of mutuality.

In view of the negative contracts under consideration it is obvious that the rule of mutuality, suggested by Ames 81 must be modified, and Professor Gilbert has suggested two possible modifications, which seem to reconcile the decisions.

"Equity will not compel specific performance by a defendant if after performance the common-law remedy of damages would be his sole security for the performance of the plaintiff's side of the contract, excepting in the case of the enforcement of negative covenants in personal service contracts where affirmative performance by the defendant would be continuous, synchro

he would employ A as cutter at a certain allowance. The bill was filed simply for an injunction to prevent A from setting up as a tailor within the prescribed limits, and the ViceChancellor granted that injunction. It was objected that the court could not grant the injunction when there was something remaining to be performed, and that A had a right to be employed as a cutter, which right this court would not even attempt to deal with or enforce as against C. The injunction was however granted, and properly, since it was necessary

to insure to the plaintiff the return for the sum of money, which he had already paid for the business.

79 Stocker v. Wedderburn, 3 K. & J. 393; Cincinnati Exhibition Co. v. Maroans, 216 Fed. 269.

80 See, however, Welty v. Jacobs, 171 Ill. 624, 49 N. E. 723; Bartholomæ, etc., Co. v. Modzelewski, 269 Ill. 539, 109 N. E. 1058. Cf. Southern, etc., Co. v. Garden City Sand Co., 223 Ill. 616, 79 N. E. 313, 9 L. R. A. (N. S.) 446.

81 See supra, § 1440.

nous with, and dependent upon performance by the plaintiff; and in this case equity will enjoin a breach of the negative covenant so long as the plaintiff is not guilty of a breach of his side of the contract. The alternative is the following:

"Equity will not compel specific performance by a defendant if after performance by the defendant it is either certain or probable that the defendant will have to resort to the commonlaw remedy of damages to secure performance of the plaintiff's side of the contract." 82 The latter form seems preferable, There is no reason why the principle embodied in the decision of Lumley v. Wagner 83 should be confined to contracts of personal service.84

§ 1453. Against whom specific performance may be sought. Strictly a contract can be enforced either in law or in equity only against the party who entered into it. Only a promisor can be required to keep a promise; but where a promise relates to property equity fastens an obligation upon any one who receives the property either with knowledge of a duty owing by his grantor in regard to it or without consideration. The enforcement of an obligation against one who has obtained a conveyance of property which his grantor had contracted to sell to another, if the grantee is not a bona fide purchaser for value, illustrates this. On this principle equity is enabled to enforce contracts to leave property by will. Though such contracts cannot be strictly enforced after the death of the promisor, those who receive his property as heirs, personal representatives, devisees, or legatees if merely volunteers, can be compelled to convey it to the promisee.85 But the consideration of such exercise of equitable powers belongs rather to a treatise on the law of trusts than to one on the law of contracts.

The cases of imposition of an equitable obligation analogous to a contract are not, however, confined to cases of trusts. Though cases are not frequent where direct enforcement of a positive contractual obligation can be given against one who has not entered into a contract unless a res is concerned to

82 Enforcement of Negative Covenants, 4 Cal. Law Review, 114, 130.

83 1 De G. M. & G. 604.

84 See supra, § 1450.

85 See supra, § 1421.

P

which equity can attach the character of a trust, or something analogous, negative stipulations of such a character that they would be enforced by injunction against the promisor may also be enforced by injunction against one who by his dealings with the promisor is inducing or forcing the latter to break them.86 So where one has contracted not to engage in a certain business, others may be enjoined from employing him in that business or associating themselves in it with him.87 And other illustrations of this jurisdictions of equity may be found.88 These cases may, however, be regarded as illustrative of that principle of the law of torts, which prohibits unwarranted interference with the contracts of others.89

In De Mattos v. Gibson, 4 De G. & J. 276, one C had agreed that his vessel should carry a cargo to Suez, but later mortgaged the vessel to G, who had knowledge of the charter. The court held that though it could not specifically enforce a contract to make the agreed voyage, it could restrain the employment of the vessel in a different manner. Though the court declined to issue an injunction against G, under the particular facts of the case, it intimated that the conduct of the mortgagee, in interfering with the charter, might be

such as to justify an injunction against him. See also Messageries Imperiales Co. v. Baines, 7 L. T. Rep. 763.

87 Fleckenstein Bros. Co. v. Fleckenstein, 66 N. J. Eq. 252, 57 Atl. 1025; Booth v. Seibold, 37 N. Y. Misc. 101, 74 N. Y. S. 776.

88 See "Equitable Rights and Liabilities of Strangers to a Contract" by Harlan F. Stone, 18 Columbia L. Rev. 291.

89 See Posner Co. v. Jackson, 223 N. Y. 325, 332, 119 N. E. 573, and cases cited.

Recovery for labor and materials by party in default.

1475

Rescission and restitution where there is no liability on the contract.

1479

Effect of the contract price on quasi-contractual recovery .

1485

§ 1454. Scope of the remedy.

The normal redress for breach of contract is to give the injured party what will put him in as good a position as if the contract had been performed. The normal redress for a tort is to give what will restore the injured party to as good a position as