$214. Specific Performance. Equity has jurisdiction to enforce performance of a promise to do a thing by a decree ordering its specific performance, and to enforce a promise not to do a thing by an injunction.

Specific performance will not be decreed when the common law remedy of an action for damages is adequate to the loss sustained, and will be more readily granted when the contract relates to the conveyance of land than when it concerns personal property or services. It is a general principle that equity will not decree specific performance of "contracts for the sale of goods and chattels, not, however, because of the nature of the property, the subjectmatter of the contract, but because damages at law, calculated on the market price of the goods bargained for, furnish, in ordinary cases, an adequate redress to the purchaser for the breach of the bargain by the vendor. But there are many exceptions to this general rule, founded principally upon the inadequacy of the remedy at law in the particular case, or the special and peculiar nature and value of the subjectmatter of the contract."1

A contract for the sale and delivery of chattels which are essential in specie to the plaintiff, and which the defendant can supply, while no one else can, will be specifically enforced.2

So a contract to sell shares of stock in an ordinary business corporation will not be specifically enforced, but when the stock is limited in amount and held by few persons, specific performance will be granted.3 Specific performance will be decreed of a contract by the owner of a patent right to furnish articles covered by the patent, which he alone

1 Eq. Gas Co. v. Balto. Coal Tar Co., 63 Md. 299.

2 Buxton v. Lister, 2 Atk. 385; Pomeroy on Specific Performance. § 15. In Eq. Gas Co. v. Balto. Coal Tar Co., 63 Md. 299, a contract to supply plaintiff company with coal tar, which it could not obtain, if defendant refused to fulfill contract, except from distant cities and at great expense, was enforced.

3 Goodwin, etc., Co.'s Appeal, 117 Pa. 514.

can supply, when they can be made without the exercise of any peculiar skill.

The Court will direct a building contract to be specifically performed when the work to be done is clearly defined and the plaintiff can not be adequately compensated by damages.5

A contract made before maturity of a debt by which the creditor agrees to accept a lesser sum in satisfaction and to return certain shares of stock pledged as collateral security may be specifically enforced."

An action for damages for breach of a contract is often an illusory remedy and in some States statutes have been enacted which provide that specific performance of a contract shall not be refused on the mere ground that the party seeking its enforcement has an adequate remedy in damages, unless the defendant shall show to the Court's satisfaction that he has property from which such damages may be made or shall give bond with approved security to perform the contract or to pay all such damages and costs as may be adjudged against him for breach of the contract. Under such a statute it has been held that a contract to saw boards of a certain length and thickness may be specifically enforced, since it does not require the exercise of such special skill as to be for that reason beyond the power of the Court to supervise.

It is another general principle that equity will not decree specific performance of a contract unless it be fair, certain and mutually binding upon the parties.8

When the Court can not enforce a decree for performance by its own supervision, this remedy will not be granted. So

4 Adams v. Messinger, 147 Mass. 485.

5 Wolverhampton v. Emmons [1901], 1 K. B. 515. Cf. Busey v. McCurley, 61 Md. 436; West Boundary Co. v. Bayless, 80 Md. 504. 6 Chicora Fer. Co. v. Dunan, 91 Md. 144; Turner v. Green [1895]. 2 Ch.205.

Neal v. Parker, 98 Md. 254. But cf. Marble Co. v. Ripley, 10 Wallace, 339.

s Dalzell v. Watch Co., 149 U. S. 315; Md. Clay Co. v. Simpers. 96 Md. 1; Engler v. Garrett, 100 Md. 387. As to the specific enforcement of an option to purchase land, see antc, p. 330.

a contract to provide a resident porter for an apartmenthouse will not be specifically enforced, since the constant supervision of the Court would be required. And generally contracts for personal services, such as an agreement to paint a picture, or write a book, or act at a theatre, will not be specifically enforced. 10 It will be seen in the next section, however, that in some cases a party will be restrained by injunction from doing certain things in derogation of a contract of personal services.

It is another principle that the granting of specific performance is not a matter of right, but is within the discre

9 Ryan v. Mutual Tontine Assn. [1893], 1 Ch. 126.

10 The following anecdote from "Gossip of the Century," Vol. 2, p. 40, illustrates the absurdity of decreeing specific performance of such contracts. Rossini had agreed to write an opera for Prince Torlonia, the Roman banker, and deliver it within a certain time to the manager of the Apollo Theater in Rome. "The libretto-the subject of which was Corradino-had been given him; time went by, but the Maestro made no sign; the Prince continued to press him, but without result; Rossini only shrugged his shoulders, and gave his patron to understand that, short of an inspiration, he could produce nothing, adding with grim facetiousness, "An opera can't be turned out like a dish of macaroni." The "inspiration" excuse was allowed for a reasonable time, and then the Prince, exasperated, tried the serious remedy of a legal action. Rossini, summoned before the Tribunal of Commerce, dispensed with the assistance of a lawyer, and pleaded his own cause; notwithstanding his eloquence, however, the Tribunal condemned him to produce the promised work, and deliver it within two months on pain of a heavy fine. The Composer was furious; he went home, shut his doors, and would not be seen for two days; on the third day he presented himself at the Prince's house with bundles of MS. under his arms. "The Court," he said, "condemned me to write an opera in two months, which shows how much such people know about music, and how much more quickly it can be written than they suppose; there is your opera; I have written it in two days!"

"Torlonia was enchanted; but his satisfaction was not very longlived, for when he handed the score to the conductor of the orchestra, a rapid glance sufficed to reveal to the professional expert the trick played off by the unwilling composer. "Impossible," said he, "to play that! There is not a bar of new music in it; it is neither more nor less than a 'potpourri, consisting of melodies by Rossini well known and already popular." Of course, this opera was never put on the stage."

tion of the Court.11 The meaning of this principle is "not that the Court may arbitrarily or capriciously perform one contract and refuse to perform another, but that the Court has regard to the conduct of the plaintiff, and to circumstances outside of the contract itself, and that the mere fact of the existence of a valid contract is not conclusive in the plaintiff's favor."12

§ 215 Injunction. The Court is sometimes asked, not to enforce a promise to do a thing by a decree for specific performance, but to restrain the defendant by an injunction. from such dealings with other parties as would be a breach of his contract with the plaintiff.

Where the contract between the owner of a department store and the manufacturer of patterns for garments provided that the former should supply floor space for the latter and not sell or allow to be sold on its premises any other patterns, an injunction was granted to restrain such sale.1

The violation of a contract not to carry on a certain business in a given locality will be restrained."

When an innkeeper has agreed to buy beer exclusively from the plaintiff he will be enjoined from buying beer from others.3

11 Hennessey v. Woolworth, 128 U. S. 438; Pope Mfg. Co. v. Gormally, 144 U. S. 224.

12 Fry on Specific Performance, § 44; Bamberger v. Johnson, 86 Md. 41.

1 Standard Fashion Co. v. Siegel-Cooper Co., 157 N. Y. 60; 43 L. R. A. 854. Cf. St. Regis Paper Co. v. Santa Clara Lumber Co., 173 N. Y. 160; Donnell v. Bennett, L. R. 22 Ch. D. 835.

2 Guerand v. Dandelet, 32 Md. 570; McClurg's Appeal, 58 Pa. 51; Harkinson's Appeal, 78 Pa. 196.

3 Catt v. Tourle, L. R. 4 Ch. 654; Clegg v. Hands, L. R. 44 Ch. D. 503. "In Martin v. Nutkin, 1 P. Williams, 266 (1724), certain churchwardens who represented the parish had agreed with the plaintiffs to suspend the ringing of a bell at 5 o'clock in the morning of each day, in consideration of money paid by the plaintiffs for the erection of a clock and cupola. Lord Macclesfield in the first instarce and subsequently the Lords Commissioners granted an injunction to restrain the ringing of the bell during the lives of the plaintiffs."

If a party agrees to take all the electrical energy he may require on his premises from a certain company he will be enjoined from taking electricity from others.*

An injunction was held to be the proper remedy to restrain violation of this contract: "We, the undersigned, merchants of Russellville, do hereby agree and obligate ourselves to close our places of business at 6.30 o'clock beginning May 15, 1895, and lasting till 1st September."5

When personal services are contracted for the doctrine of some Courts is that when the contract is merely affirmative in its provisions, as, for example, the contract of an actor to perform at a particular theatre, the Court will not imply a negative promise not to act elsewhere and enjoin the actor from performing elsewhere, when the contract is not such an one as could be specifically enforced. But when the contract is of a nature proper to be specifically enforced, the Court will interfere by injunction, although the negative obligation may be only implied from the positive terms of the agreement.7

In Lumley v. Wagner, the defendant agreed to sing at the plaintiff's theatre during a certain time and to sing nowhere else. An injunction was granted to restrain the defendant from singing at another theatre, although the positive promise to sing at the plaintiff's theatre could not be specifically enforced. The Lord Chancellor said that he would not have interfered but for the negative clause.

4 Metropolitan Elec. Co. v. Ginder [1901], 2 Ch. 799.

5Stovall v. McCutcheon, 107 Ky. 577. In Welty v. Jacobs, 171 Ill. 624, where there was a contract to furnish a theatre with light, music, ushers, etc., for a certain time, the Court refused to enjoin the proprietor from renting the theatre to others.

6 Burton v. Marshall, 4 Gill, 487. See 3 Pomeroy Eq. Jur. § 1343. 7 Eq. Gas Co. v. Balto. Coal Tar Co., 63 Md. 300.

81 D. M. & G. 504. The Courts are disinclined to restrain the breach of a contract for personal services, but leave the parties to the remedy at law. Whitwood Chem. Co. v. Hardman [1891], 2 Ch. 428; Ehrman v. Bartholomew [1898], 1 Ch. 671; Fothergill v. Rowland, L. R. 17 Eq. 132. Sometimes an employee whose service was of a confidential nature is restrained from entering a rival business in violation of his contract. Robinson v. Heuer [1898], 2 Ch. 451; McCall Co. v. Wright, 198 N. Y. 143; 31 L. R. A. (N. S.) 249.