cherry stone, Masonic regalia,10 trusted slaves, heirlooms, 12 family portraits, 13 maps, drawings and documents.14

Chattels of peculiar importance to the plaintiff, as articles necessary to the conduct of his particular business,16 or goods indispensable to his business and not elsewhere obtainable," as a supply of ship timber to a ship builder,18 or the stock of an estate

'demised with the stock under an entire contract,19 or that the goods are closely connected with some interest in realty."

20

So the specific performance of a contract to sell growing trees has been enforced." The delivery of iron to the bearer of a written instrument made by the vendor and acknowledging payment, on which the buyer has obtained a loan, has been specifically enforced;22 so also grain in the hands of an insolvent defendant or his assignees who have been paid therefor.23 It has been said that this remedy would be applied where the delivery of the goods was to be made by instalments, but the proposition is doubted.25 A court of equity will enforce specific performance of a contract to mortgage or pledge specific chattels.26 It seems that if the parties. have put a price upon unique chattels, it is an admission that a money payment in damages is adequate relief, and specific performance will not be decreed.27

24

DAMAGES.—In an application for the specific performance of a contract for the sale or delivery of specific chattels, the court may decree that the defendant pay the plaintiff damages in lieu

462, 472; Fothergill v. Rowland, L. R. 17 Eq. 132; 2 Mechem on Sales, § 1722.

A ship is probably within this principle. Clark v. Flint, 39 Mass. (22 Pick.) 231; Peer v. Kean, 14 Mich. 354 (1 (undivided half interest in a steamboat); Lynn v. Chaters, Ky. 521; Claringbould v. Curtis, 21 L. J. Ch. 521, 541; De Mattos v. Gibson, 4 DeG. & J. 276. See Cutting v. Dana, 25 N. J. Eq. (10 C. E. Green) 265, 271; Graham v. Cook, 48 Ala. 103; Hart v. Herwig, L. R. 8 Ch. 860.

19. Perin v. Megibben, 53 Fed. 86; Leach v. Fobes, 77 Mass. (11 Gray) 506; Nutbrown v. Thornton, 10 Ves. 159; 2 Mechem on Sales, § 1725.

20. Specific performance of contracts to sell chattels may be enforced on the ground that they are closely connected with some interest in realty. Bomer v. Canady, 79 Miss. 222, 55 L. R. A. 328 (contract to cut trees); St. Regis Paper Co. v. Lumber Co., 173 N. Y. 149; Fowler v. Sands, 73 Vt. 236 (sale of a furnished house by an entire contract).

21. Stuart v. Pennis, 91 Va. 688; 2 Mechem on Sales, § 1731.

22. Pooley v. Budd, 14 Beav. 34; see Parker v. Garrison, 61 Ill. 250; Clark v. Flint, 39 Mass. (22 Pick.) 231.

23. Parker v. Garrison, 61 Ill. 250; Sullivan v. Tuck, 1 Md. 59.

24. Taylor v. Neville, 3 Atk. 384; Cf. Nives v. Nives, 15 Ch. D. 649; Furman v. Clark, 11 N. J. Eq. (3 Stockt.) 306, 311 (sale of clay); St. Regis Paper Co. v. Lumber Co., 173 N. Y. 149; 2 Mechem on Sales, § 1725.

25. Pollard v. Clayton, 1 K. & J. 462, 472; 2 Mechem on Sales, § 1726.

26. Sullivan v. Tuck, 1 Md. Ch. 59; Alexander V. Ghiselin. 5 Gill. (Md.) 138; Triebert v. Burgess, 11 Md. 455, 464; Sporer v. McDermott (1903), Neb. 96 N. W. 233, 659 (growing crops); Ryan v. Donley, 69 Neb. 623, 96 N. W. 234. Contra: Johnson v. Hoover, 72 Ind. 395.

27. Dowling V. Betjemann, 2 Johns, & Hem. 544; 2 Mechem on Sales, 1723.

of, or in addition to, the specific performance of the contract, in order to do full and complete equity between the parties.28

CONDITIONS.-In such a suit the court may impose any other terms or conditions upon either of the parties which in its discretion may seem to be required to effect full and complete justice between them.29 Where the contract provides for conditions subsequent to be performed by the vendee, the decree of the court may provide for the performance of them30 and will be erroneous otherwise. If the plaintiff is unable to perform his obligations, specific performance will not be decreed.32

Section 69. Remedies for breach of warranty.-(1.) Where there is a breach of warranty by the seller, the buyer may, at his election:

28. Damages in lieu of performance.-Pratt v. Law, 13 U. S. (9 Cranch) 456; Kelly v. Allen, 34 Ala. 663; Hooper v. Savannah, etc., Ry. Co., 69 Ala. 529; Eastman v. Reid, 101 Ala. 320; Thresher v. Stonington Savings Bank, 68 Conn. 201; Greer v. Sellers, 64 Ill. App. 505; Cornell v. Rodabaugh, 117 Ia. 287; Burton v. Shotwell, 76 Ky. (13 Bush) 271; Eastman v. Simpson, 139 Mass. 348; Margraff v. Muir, 57 N. Y. 155, 159; Miles v. Dover Furnace Iron Co., 125 N. Y. 294; Ray v. Wilcoxon, 107 N. C. 514; Columbus, etc., Ry. v. Steinfeld, 49 Ohio St. 449; James v. Cutler, 54 Wis. 172, 178.

Damages in addition to performance.-Clark v. White, 37 U. S. (12 Pet.) 178; Davis v. Parker, 96 Mass. (14 Allen) 94; Low v. Low, 177 Mass. 306; Melick v. Cross, 62 N. J. Eq. 545; Lyle v. Addicks, 62 N. J. Eq. 123.

Many of the foregoing cases relate to real estate, but the same principle applies to contracts for the sale of personalty.

29. Willard v. Tayloe, 75 U. S. (8 Wall.) 557, 559; Preble v. Abrahams, 88 Cal. 245; Gilpin v. Watts, 1 Col. 479; Annan v. Merritt, 13 Conn.

478; Kirkland v. Downing, 106 Ga. 530; Price v. Blackmore, 65 Ill. 386; Worden v. Crist, 106 Ill. 326; Martin v. Merritt, 57 Ind. 34; Troutman v. Gowing, 16 Ia. 415; Crawford v. Schneider, 106 Mich. 199; Fountaine v. Leveque, 108 Mich. 614; Van Scoten v. Albright, 5 N. J. Eq. 467 (performance decreed on condition that vendee give mortgage to secure balance of purchase price); Hulmes v. Thorpe, 5 N. J. Eq. 415; Keim v. Lindley, N. J. Eq. (1895); Miller v. Miller, 25 N. J. Eq. 354. 355; McPherson v. Walton, 42 N. J. Eq. 282; Harrigan v. Smith, 57 N. J. Eq. 635; Matteson V. Scofield, 27 Wis. 671.

30. Pomeroy v. Fullerton, 113 Mo. 440; Van Scoten v. Albright, 5 N. J. Eq. 467; Heavner v. Morgan, 30 W. Va. 335; McCully v. McLean, 48 W. Va. 625, 628.

31. Baxter v. Brand, 36 Ky. (6 Dana) 296; Clark v. Gordon, 35 W. Va. 735.

32. Sims v. McEwan, 27 Ala. 184; Carter v. Phillips, 144 Mass. 100; Rice v. D'Arville, 162 Mass. 559; Bird v. Bradburn, 127 N. C. 411; Franklin v. Brownlow, 14 Ves. Jr. 550.

(a.) Accept or keep the goods and set up against the seller the breach of warranty by way of recoupment in diminution or extinction of the price;

(b.) Accept or keep the goods and maintain an action against the seller for damages for the breach of warranty;

(c.) Refuse to accept the goods, if the property therein has not passed, and maintain an action against the seller for damages for the breach of warranty;

(d.) Rescind the contract to sell or the sale and refuse to receive the goods, or, if the goods have already been received, return or offer to return them to the seller and recover the price or any part thereof which has been paid.

(2.) When the buyer has claimed and been granted a remedy in any one of said ways, no other remedy can thereafter be granted.

(3.) Where the goods have been delivered to the buyer, he can not rescind the sale if he knew of the breach of warranty when he accepted the goods, or if he fails to notify the seller, within a reasonable time, of the election to rescind, or if he fails to return or to offer to return the goods to the seller in substantially as good condition as they were in at the time the property was transferred to the buyer: Provided, however, that if deterioration or injury of the goods is due to the breach of warranty, such deterioration or injury shall not prevent the buyer from returning or offering to return the goods to the seller and rescinding the sale.

(4.) Where the buyer is entitled to rescind the sale and elects to do so, the buyer shall cease to be liable for the price upon returning or offering to return the goods. If the price, or any part thereof, has already been paid, the seller shall be liable to repay so much thereof as has been paid, concurrently with the return of the goods, or immediately after an offer to return the goods in exchange for repayment of the price.

(5.) Where the buyer is entitled to rescind the sale and elects to do so, if the seller refuses to accept an offer of the buyer to return the goods, the buyer shall thereafter be deemed to hold the goods as bailee for the seller, but subject to a lien to secure the repayment of any portion of the price which has been paid, and with the remedies for the enforcement of such lien allowed to an unpaid seller by section fifty-three.

(6.) The measure of damages for breach of warranty is the

loss directly and naturally resulting, in the ordinary course of events, from the breach of warranty.

(7.) In the case of breach of warranty of quality, such loss, in the absence of special circumstances showing proximate damage of a greater amount, is the difference between the value of the goods at the time of delivery to the buyer and the value they would have had if they had answered to the warranty.

CAVEAT EMPTOR.-In the present sale of specific ascertained chattels, there is no implied warranty of quality,' and in the absence of fraud or express warranty the buyer has no remedy, and the provisions of this section do not apply. The buyer may, however, exact an express warranty in such sales.2

CONTRACT REMEDIES.-The parties by the terms of the contract may expressly or impliedly provide remedies in addition to those provided by law or in exclusion of all other remedies as that the buyer may return the goods if defective and take others in their stead, as the sole remedy, or rescind the contract, or have the