there existed some inequality or unfairness in the terms, by reason of which injustice would have followed a specific performance. But the same discretion is exercised where the contract is fair in its terms, if its enforcement, from subsequent events, or even from collateral circumstances, would work hardship or injustice to either of the parties. "In the case of the City of London vs. Nash, the defendant, a lessee, had covenanted to rebuild some houses, but instead of this he rebuilt only two of them, and repaired the others. On a bill by the city for a specific performance, Lord Hardwicke held that the covenant was one which the court could specifically enforce; but said, 'the most material objection for the defendant, and which has weight with me, is that the court is not obliged to decree a specific performance, and will not when it would be a hardship, as it would be here upon the defendant to oblige him, after having very largely repaired the houses, to pull them down and rebuild them.' In Faine vs. Brown, similar hardship, flowing from the specific execution of a contract, was made the ground for refusing the decree prayed. In that case the defendant was the owner of a small estate, devised to him on condition that if he sold it within twenty-five years, one-half of the purchasemoney should go to his brother. Having contracted to sell the property, and refusing to carry out the contract under the pretence that he was intoxicated at the time, a bill was filed to enforce its specific execution, but Lord Hardwicke is reported to have said that, without regard to the other circumstances, the hardship alone of losing half the purchase money, if the contract was carried into execution, was sufficient to determine the discretion of the court not to interfere, but to leave the parties to the law. "The discretion which may be exercised in this class of cases is not an arbitrary or capricious one, depending upon the mere pleasure of the court, but one which is controlled by the established doctrines and settled principles of equity. No positive rule can be laid down by which the action of the court can be determined in all cases. In general, it may be said, that the specific relief will be granted when it is apparent, from a view of all the circumstances of the particular case, that it will subserve the ends of justice; and that it will be withheld when, from a like view, it appears that it will produce hardship or injustice to either of the parties. It is not sufficient, as shown by the cases cited, to call forth the equitable interposition of the court, that the legal obligation under the contract to do the specific thing desired may be perfect. It must also appear that the specific enforcement will work no hardship or injustice, for if the result would follow, the court will leave the parties to their remedies at law, unless the granting of the specific relief can be accompanied with conditions which will obviate the result. If that result can be thus obviated, a specific performance will generally in such cases be decreed conditionally. It is the advantage of a court of equity, as observed by Lord Redesdale in Davis vs. Hone, that it can modify the demands of parties according to justice, and where, as in that case, it would be inequitable, from a change of circumstances, to enforce a contract specifically, it may refuse its decree, unless the party will consent to a conscientious modification of the contract, or, what would generally amount to the same thing, take a decree upon condition of doing or relinquishing certain things to the other party." SECTION 89. MISTAKE. There can be no specific performance of contracts entered into, under a mutual mistake of fact.20 20 See Chapter VI, On Mistake. REFORMATION AND CANCELLATION OF SECTION 90. IN GENERAL. The proper forms of equitable relief in the case of written instruments entered into under the influence of fraud or mistake are the reformation or the cancellation of such written instrument. SECTION 91. CANCELLATION. Equity will decree the cancellation of a written instrument in two classes of cases: (a) where the instrument, although absolutely void, is valid on its face; and (b) where it is voidable on the ground of fraud or mistake. If an instrument is void on its face equity will not interfere, as any legal action is unnecessary. This point was discussed by Chief Justice Marshall in the case of Peirsoll vs. Elliot,' as follows: "The court is well satisfied that this would be a proper case for a decree according to the prayer of the bill, if the defectiveness of the conveyance was not apparent on its face, but was to be proved by extrinsic testimony. The doubt respecting the propriety of the interference of a court of equity, is produced by the facts that the deed is void upon its face, and has been declared to be void by this court. It is therefore an unimportant paper, which cannot avail its possessor. The question whether a court 1 6 Peters, 95. of equity ought, in any case, to decree the possessor of such a paper to surrender it, is involved in considerable doubt; and is one on which the chancellors of England seem to have entertained different opinions. Lord Thurlow was rather opposed to the exercise of this jurisdiction (3 Bro., Ch. Rep., 15, 18), and Lord Loughborough appears to have concurred with him (3 Ves., 368), and in Gray vs. Matthias (5 Ves., 286), the court of Exchequer refused to decree that a bond which was void upon its face should be delivered up principally on account of the expense of such a remedy in equity, when the defense at law was unquestionable. In this case Chief Baron M'Donald said that the defendant should have demurred to the action upon that bond. Instead of that, he comes here professing that it is a piece of waste paper. He goes through a whole course of equitable litigation at the expense of two or three hundred pounds. In such a case, though equity may have concurrent jurisdiction, it is not fit in the particular case that equity should entertain the bill. "Lord Eldon inclined to favor the jurisdiction. (7 Ves., 3; 13 Ves., 581.) He thought the power to make vexatious demands upon an instrument as often as the purpose of vexation may urge the party to make them, furnished a reason for decreeing its surrender. "In 1 Johnson's Ch. Reports, 517, Chancellor Kent concludes a very able review of the cases on this subject with observing: 'I am inclined to think that the weight of authority and the reason of the thing, are equally in favor of the jurisdiction of the court, whether the instrument is or is not void at law, and whether it be void from matter appearing |