tion of equity is not worth while, and yet, when because of impossibility of collecting a judgment at law that substitute is not available, may hold that transfer of the specific thing should be enforced. If the contract is unilateral and defendant has the consideration, as it were, in his pocket, insolvency of the defendant, in the sense that he is proof against execution, may be a strong ground for exercising jurisdiction where ordinarily it would not be exercised.

2. INSTALLMENT CONTRACTS

Dells Paper Co. v. Willow Lumber Co.49 is a good case of this type. The contract was for the sale of logs and pulp wood to a paper mill for a period of twenty-six years and had been performed for seven years. Specific performance was granted. In Davison Chemical Co. v. Baugh Chemical Co.50 the contract called for delivery of sulphuric acid in stated yearly quantities for a period of five years. Specific performance was denied, but the case turns on questions of interpretation and impossibility of performance. The former, and a like decision in New York some years ago,51 should be compared with the refusal of the Privy Council to follow Buxton v. Lister 52 in an unusually strong case, complicated, however, by questions of continuous performance and practical obstacles in the way of specific enforcement.53 In this matter the American courts have taken a less mechanical and more enlightened view, looking to the circumstances of each particular case to see whether the legal remedy is or is not substantially adequate and not trying to lay down a hard and fast rule that all installment contracts are or are not specifically enforceable simply because they call for performance in the future.

3. CONTRACTS FOR THE SALE OF STOCK Three of these cases are clear enough. In Nason v. ership of the stock would carry with it control of a coal company.

Barrett 54 own

51 St. Regis Paper Co. v. Santa Clara Lumber Co., 173 N. Y. 149, 65 N. E. 967

53 Dominion Coal Co. v. Dominion Iron & Steel Co., [1909] A. C. 293, 311, reversing S. C. 43 N. S. 77, 145 (1908).

54 140 Minn. 366, 168 N. W. 581 (1918).

The purchaser could say I have a right to get a controlling interest in this company, not in what someone else may think a venture just as good, and the law gives me no way to get it. In CapeGirardeau-Jackson R. Co. v. Light and Development Co.55 the contract was for sale of the stock and bonds of a railroad company as a whole and amounted to sale of the railroad. In Amsler v. Cavitt 56 the number of shares was limited, the stock was not on the market, and purchaser had an interest in the corporation. Toles v. Duplex Power Co.57 is more doubtful. The contract was for sale of one thousand shares in a manufacturing company of somewhat speculative prospects. Plaintiff alleged that at the time the bill was filed the stock was worth double its par value. The contract called for sale at par. No question was made as to fairness, but the court held the remedy at law adequate, saying:

"He was not attracted to the stock by any desire to become its owner for sentimental reasons. It was with him purely a commercial transaction to which he was moved in a business way by inside information which made the stock attractive as a speculation. We see no reason why the measure of damages for this alleged breach of contract is not as readily ascertainable in an action at law as in chancery."

It is submitted that this does not meet the case. No doubt a court of law could assess damages here; but would it not in substance deprive plaintiff of the benefit of his contract? The theory on which damages are taken to be an adequate remedy is that the plaintiff may take the money and purchase other stock of the same sort or another speculation just as good. But here he could not get this stock on the general market and if the shares had doubled in value since the contract, he might well believe they would go higher still and might properly insist on the bargain he made. The ultimate outcome of the speculation was so conjectural that the legal remedy would not insure him a substitute substantially as good. The remarks of Jessel, M. R., in Fothergill v. Rowland 58 have done harm in these cases, as in cases of installment contracts, by confusing the question whether a jury is in a position to assess damages at all with the different question whether, however

55 210 S. W. (Mo.) 361 (1919).

56 210 S. W. (Tex. Civ. App.) 766 (1919).

57 202 Mich. 224, 168 N. W. 495, 497, 498 (1918).

68 L. R. 17 Eq. 132, 140 (1873).

accurate the legal measure of damage, money damages will secure to the plaintiff what he is legally entitled to or the substantial equivalent thereof.

4. CONTRACTS TO LEND MONEY

Norwood v. Crowder 59 involved a contract to lend plaintiff one thousand dollars upon the security of plaintiff's share in a plantation. The cause turned on the ability of plaintiff to convey a good title, and as defendant made no other objection, a decree for plaintiff was affirmed on the ground that his title was made out. But the court, following the general doctrine, says that such a contract is not specifically enforceable. We may grant that ordinarily the remedy at law would be adequate. A loan could be had elsewhere and the measure of damage would be the increased rate at which plaintiff had to borrow and the loss caused by any delay. But if the borrower has a contract to lend without security or on inadequate or unusual security, or if money is not readily obtainable for the sort of loan to which the contract entitled him, the legal remedy is not adequate. In such a case as Norwood v. Crowder, where one may suspect there was some such situation, the real question is as to mutuality of performance. If the lender is required to advance the money, can the court assure him that he will get back his money years hence when it is due? Where this difficulty is out of the way under the peculiar circumstances of the case,60 or the contract amounts in substance to a purchase of an issue of securities. the courts do not tell us that the legal remedy is adequate.

5. CONSTRUCTION CONTRACTS

Strauss v. Estates of Long Beach 61 was a suit for specific performance of a contract to build a sewer. The circumstances were such that money damages would not enable the plaintiff to get the sewer to which he was entitled because of defendant's control of the locus. Hence the case is clear. But it is of interest to note that defendant relied on Beck v. Allison,62 while the court answered with Jones v. Parker.63 That characteristically sensible and 59 99 S. E. (N. C.) 345 (1919).

GO E. g., Caplin v. Penn Life Ins. Co., 82 App. Div. 269, 169 N. Y. Supp. 756 (1918). 61 176 N. Y. Supp. (App. Div.) 447 (1919).

62 56 N. Y. 366 (1874).

68 163 Mass. 564, 40 N. E. 1044 (1895).

liberal decision is not the least of the many contributions of Mr. Justice Holmes to our law. A question similar to that in Jones v. Parker was involved in New York R. Co. v. Stoneman,64 where a tenant sued for specific performance of the landlord's covenant that "the demised premises shall be heated by the lessors to a proper warmth for office purposes." A ruling that the bill could not be maintained was reversed.

6. CERTAINTY

One of the stock objections in construction contracts is want of sufficient certainty. As this objection was exceptionally well handled in Jones v. Parker, supra, it is convenient to bring together at this point all the cases treating of "certainty" in connection with specific performance. Penney v. Norton 65 involved a contract for the sale of land. No time was fixed for payment. But, as the law would construe the contract to require payment within a reasonable time, it would seem that no difficulty as to certainty was encountered. Yet the objection was made and the court met it by saying that tender of the conveyance had made the time of payment certain. In Wilson v. Beaty 66 a contract for the sale of land fixed the purchase price and the date at which it should all become due, but provided for notes for deferred payments, to be paid in five years, without fixing the number or time of execution of the notes. On objection for want of certainty, the court held properly that these provisions were only an option as to the mode of payment for the benefit of the purchaser, and when not availed of did not prevent specific performance. Feenaughty v. Beall 67 was a suit to enjoin breach of a covenant not to engage in competing business. The covenant read: "We further agree that we will not enter directly or indirectly into any organization or individual connection in the same line of business in or about the city of Portland or this territory whereby the interests of Beall & Co. will be in any measure interfered with." This was held too uncertain for specific enforcement because of the indefiniteness of the word "territory," and because of the uncertainty "from the language of

64 123 N. E. (Mass.) 679 (1919).

65 81 So. (Ala.) 666 (1919).

65 211 S. W. (Tex. Civ. App.) 524 (1919).

67

91 Ore. 654, 178 Pac. 600 (1919). Compare Standard Fashion Co. v. Magrane Houston Co. (C. C. A.), 251 Fed. 559 (1918).

the writing what the parties considered at the time to be an interference with the interests of Beall & Co."

It is worth while to notice how "certainty" came to play so large a part in the law of specific performance. When the chancellor was struggling to establish his jurisdiction with jealous courts of law eying him narrowly, the dignity of the court had to be maintained and it was jeopardized by any order which the chancellor could not be sure of enforcing. Hence he was chary of decrees for affirmative performance of anything beyond a single act, and when he did decree performance of anything involving details, he felt that execution of the details must be supervised. Thus the notion arose that if a court of equity ordered a thing done it was bound to stand over every item and see it done according to the decree. This idea had two consequences. On the one hand it led to a prejudice against enforcement of construction contracts and contracts for continuous performance, since they called for continued supervision, and since the "court cannot by its ordinary means and instrumentalities carry out the decree" where such continued supervision is required.68 It led also to a prejudice against affirmative decrees in any case where more than a single simple act was sought and a preference for negative decrees wherever possible. Though this has died out in England,69 it is still strong with us. On the other hand, since the court ought not to make a contract for the parties but only to enforce it as they made it, it led to a doctrine that every detail of performance ought to be fixed by the agreement so that the court could supervise and exact each detail without departing from or adding to the agreement. Accordingly the older cases were too squeamish about absolute certainty in all details. Jones v. Parker took a step forward in holding that where there was a contract at law, if there was an objective standard, capable of determination and application by experts, there might be specific performance. The court could very well leave the details to the choice of the defendant where the contract did. But the old notion, intrenched in textbooks and encyclopedias, dies hard.

In Feenaughty v. Beall, construing the contract so as to give it effect and validity if we may reasonably do so, consistently with