Courts of law can give no other remedy for breach of contract than damages. The action of detinue is disused, and, under the rules of law, would not be effectual even in the few cases to which it could ever have applied. But courts of equity give another remedy for a breach of a contract: they compel the party in fault to a specific performance of his undertaking, and the remedy in equity is the more natural of the two, and better fulfils the great object of law, which is the maintenance of the obligation of contracts. For, as it has been well said, in contracts respect is first to be had to the things expressed in the agreement, if they may possibly be obtained; and only for default of the things themselves is a sufficient equivalent to be given, (a)
This power was claimed and exercised by courts of equity, as all their powers were to enable them to supply a manifest insufficiency of the law; and the common principle of equity that it will not give relief where the plaintiff has an adequate remedy at law, is applied to specific performance, (aa) But as it would be obviously and extremely inexpedient to have two independent jurisdictions, one antagonistic to the other in its principles and its operation, equity has always preferred and professed to "follow the law."(b) * Nor was this profession insincere, or disregarded in practice; but the application of it has been attended with much difficulty. To "follow the law," meaning thereby to go only where that went, and do only what that did, would destroy the peculiar ability of the court of equity. To oppose and set aside, with direct contradiction, the rules and decisions of the law, would be open to still graver objection. And to avoid these extremes, - not to violate the law but to fulfil its purposes, - and to supply those wants which render its administration of its own principles imperfect, is the true purpose of equity; and it is equally important and difficult.
(a) Treatise on Equity, ch. 1, § 4. The jurisdiction to decree specific performance of contracts, unlike most other branches of equity, is said not to have had its origin in the Roman law, but to be purely the invention of the English clerical chancellors. 1 Spence, Eq. Jur. 220, note (f). And to its exercise by the Court of Chancery in England, one of her most distinguished chancellors, Lord St. Leonards, has attributed that good faith which prevails among the English people in a degree not found in many other countries. See Lumley v. Wagner,1 De G. M. & G. 604, 619,13 Eng. L. & Eq. 557. He had made a similar observation when Lord Chancellor of Ireland. French v. Macale, 2 Drury ft W. 273.
(aa) Pennsylvania, etc. Co. v. Delaware, etc. Co. 31 N. Y. 91; Scott v. Billgerry, 40 Miss. 119; Columbus, etc R. R. Co. v. Watson, 26 Ind. 50; Jones v. Newhall, 115 Mass. 244.
(b) Equity in decreeing specific performance does, as a learned writer has remarked, but carry out the principles of the common law; giving that remedy which the courts of common-law would give if their mode of administering jus-See were adapted to the case. Mitf. PI.
To no part of the jurisdiction of equity do these remarks apply more directly than to a decree for specific performance. Such is the apparent inconsistency between the decisions on this subject, and so entire the want of uniformity and harmony in the reasons given for them, that they have been said to be governed merely by the caprices of the court, (c) But this is certainly untrue and unjust in reference to the general course of equity jurisprudence, (d)
One reason for the apparent conflict of authority is, that specific performance is not a matter of mere right, but is, peculiarly, one of discretion, (e) It is always the duty of the court to inquire into the peculiar facts and the peculiar merits of each case, and to decide it as they may direct, (f) Hence, there is,
118. And see Alley v. Deschamps, 13 Ves. 228. What is aimed at is the exact accomplishment of the intention of the parties. French v. Macale, 2 Drury & W. 272.
(c) See 2 Story, Eq Jur. § 724, n. 1.
(d) Lord Eldon, Ch., in White v. Damon, 7 Ves. 35 The conditions which should be fulfilled to entitle the plaintiff to a specific performance are stated very comprehensively and clearly by Lord Redesdale, Hernett v Yeilding, 2 Sch & L. 653-555. And the whole subject is fully considered in Willard v. Tayloe, 8 Wall. 557.
(e) Watson v. Marston, 4 De G. M. & G 230, 31 Eng. L & Eq. 167; Mortlock v. Buller, 10 Ves. 308, 1 Fonbl. Eq. B. 1, § 9, note (i); King v. Hamilton, 4 Pet 311; Waters v Howard, 1 Md. Ch Dec 112, 8 Gill, 262; Hennessy v. Wool worth, 128 U. S. 440; Blake v. Flatlev, 44 N. J. Eq. 228. The discretion exercised by a court of equity, when it refrains from executing a contract, is certainly not an arbitrary, but a judicial discretion. If it is a case proper for a specific performance, the court is not at liberty to refuse to grant it. This is what appears to have been the meaning of Sir William Grant, when he said: "Supposing the contract to have been entered into by a competent party, and to be, in the nature and circumstances of it, unobjectionable, it is as much of course in this court to decree a specific performance, as it is to give damages at law." Hall v. Warren, 9 Ves. 608. And see Bennett v. Smith, 10 Eng. L. & Eq. 274, 16 Jur. 422, per Turner, V. C.; Daniel v. Frazer, 40 Miss. 507.
(f) In Wedgwood v, Adams, 6 Bear. 605, Lord Longdate, M. R., said: " I conceive the doctrine of the court to be this, that the court exercises a discretion in cases of specific performance, and directs a specific performance unless it should be what is called highly unreasonable to do so. What is more or less reasonable is not a thing that you can define; it must depend upon the circumstances of each particular case The court, therefore, must always have regard to the circumstances of each case, and see whether it is reasonable that it should, by its extraordinary jurisdiction, interfere and order a specific performance; knowing at the time that, if it abstains from so doing, a measure of damages may be found and awarded in another court. Though you cannot define what may be considered