7 Weeghman v. Killifer, 215 Fed. 168, 289, 131 C. C. A. 558. The defendant Killifer was employed by the Philadelphia Ball Club, and his contract contained an option to the Club to reengage him at a salary to be agreed upon. The Club had announced that it exercised the option, but no salary had been agreed upon when the plaintiff, knowing the facts, induced Killifer to enter into a contract to play with a Chicago Club. The court, though admitting the invalidity of the Philadelphia employment denied the plaintiff an injunction, leaving him to his remedy at law. See also infra, Sec. 1429, ad fin.

8 South, etc., R. Co. v. Highland Ave., etc., R. Co., 119 Ala. 105, 24 So. 114; Herzog v. Atchison, etc., R. Co., 153 Cal. 496, 95 Pac. 898, 17 L. R. A. (N. S.) 428; Sanitary Dist. of Chicago v. Martin, 227 111. 260, 81 N. E. 417; Harter v. Morris, (Ind. App. 1916), 123 N. E. 23.

9 Eastern Counties R. Co. o. Hawkes, 5 H. L. Cas. 331; Haywood v. Cope, 25 Beav. 140; Willard v. Tayloe, 8 Wall. 557, 19 L. Ed 501; Franklin Tel. Co. v. Harrison, 145 U. S. 459, 36

L. Ed. 776, 12 Sup. Ct. 900; Walton v. McKinney, 11 Aria. 385, 94 Pac. 1122; Warner v. Marshall, 166 Ind. 88, 75 N. E. 582; Anderson v. Anderson, 251 111. 415, 96 N. E. 265, Ann. Cas. 1912 C. 556; King v. Raab, 123 Iowa, 632, 99 N. W. 306; Lee v. Kirby, 104 Mass. 420, 428; Nims v. Vaughn, 40 Mich. 356; Willard v. Foster, 24 Neb. 205, 38 N. W. 786; Keim v. Lindley (N. J. Eq.), 30 Atl. 1063; Prospect Park Ac. R. Co. v. Coney Island Ac. R. Co., 144 N. Y. 152, 39 N. E. 17, 26 L. R. A. 610; Hainton v. Bescherer, 141 N. Car. 205, 53 8. E. 845; Sylvester v. Born, 132 Pa. 467, 19 Atl. 337; Rausch v. Hanson, 26 S. Dak. 273, 128 N. W. 611; Clark v. Hutsler, 96 Va. 73, 30 S. E. 469; Peterson v. Chase, 115 Wis. 239, 91 N. W. 687.

10Holgate v. Eaton, 116 U. S. 33, 6 S. Ct. 224, 29 L. Ed. 538; Cooper v. Brown, 2 McLean, 495; Schuesaler v. Hatchett, 58 Ala. 181; Swaim v. Beakley, 133 Ark. 406, 202 S. W. 476; Requa v. Snow, 76 Calif. 590, 18 Pac. 862; Tobey v. Foreman, 79 111. 489; Findley v. Koch, 126 Iowa, 131,101 N. W. 766; Niquette v. Green, from such default if the subsequent events though not amounting to such impossibility as would excuse at law are, nevertheless, of a kind which not only greatly change the value of one performance or the other, but also could not reasonably have been anticipated when the contract was made, specific performance has in some cases been denied.11 If such events, however, while producing hardships which makes it inequitable to decree performance of all the terms of the contract, nevertheless do not affect its primary object, equity may enforce it with such modifications as justice requires.12

Sec.1426. Non-Disclosure

Since courts of equity refuse to enforce harsh and unfair bargains, it follows that the boundaries of unfair dealing and of mistake which will defeat the right to specific performance are wider than those which define such fraud or mistake as will prevent the enforcement of contracts at law or justify an injunction or rescission in equity. Not only will innocent misrepresentation of a material fact preclude recovery, a doctrine that has now been generally adopted from courts of equity by courts of law, as a ground for rescission,13 but failure to communicate material facts of which fair dealing demanded the disclosure, will preclude specific performance both of contracts between vendor and purchaser,14 and contracts of other kinds.15 The law of England, however, has gone very far in enforcing specific performance in spite of non-disclosure of material matters,16 though there as elsewhere concealment would deprive the plaintiff of relief.17

81 Kan. 569, 106 Pac. 270; Joffrion v. Gumbel, 123 La. 391, 48 So. 1007; Van Buren v. Stocking, 86 Mich. 246, 49 N. W. 50; Green v. Reder, 199 Mich. 594, 165 N. W. 807; Pome-roy . Fullerton, 141 Mo. 581, 33 8. W. 173; Reddish v. Miller, 27 N. J. Eq. 514; Ruffs Appeal, 117 Pa. 310, 11 Atl. 553; Harper v. Hughes (Tex. Civ. App.), 143 S. W. 7.15; Gish v. Jamison, 96 Va. 312, 31 S E. 521; Newberry v. French, 98 Va. 479, 36 S. E. 519; McAllister v. Harman, 101 Va. 17, 42 S. E. 920.

11 King v. Raab, 123 Iowa, 632, 99 N. W. 306; Bartfey v. Iindabury, 89 N. J. Eq. 8, 104 Atl. 333; Gott-helf v. Stranahan, 138 N. Y. 345, & N. E. 286, 20 L. R. A. 455; Wadick v. Mace, 191 N. Y. 1, 83 N. E. 571;

Huntington v. Titus, 50 N. Y. App. Div. 468, 64 N. Y. S. 58. If the principle is sound that the risk of accidental destruction of the property is on the purchaser from the signing of the contract (see supra, Sec.Sec. 927 et seq.) there can be no propriety in any case in relieving him from performance because of supervening hardship.

12 Wright v. Vocation Organ Co., 148 Fed. 209, 79 C. C. A. 183; La Follette v La Follette Water Ac. Co., 252 Fed. 762, 164 C. C. A. 602; King v. Raab, 123 la. 632, 99 N. W. 306; cf. Franklin Tel. Co. v. Harrison, 145 U. S. 459, 36 L. Ed. 776, 12 Sup. Ct. Rep. 900; Clark v. Hurler, 96 Va. 73, 30 S. E. 469.

13 See irtfra, Sec.1500.

14 Byare v. Stubbe, 85 Ala. 256, 4 So. 756; Shoop v. Burnside, 78 Kans. 871, 08 Pac. 202; Bowman v. Iorns, 2 Bibb, 78, 4 Am. Dec. 686; Woollums v. Horeley, 93 Ky. 582, 20 S. W. 781; Wolford v. Steele, 27 Ky. Law. Rep. 1177, 87 S. W. 1071, 27 Ky. L. Rep. 88,84 S. W. 327; Banaghan v. Malaney, 200 Mass. 46,85 N. . 839,19 L. R. A. (N. S.) 871, 128 Am. St. Rep. 378; Bean v. Valle, 2 Mo. 103; Corby v. Drew, 55 N. J. Eq. 387, 36 Atl. 827; Margraf v. Muir, 57 N. Y. 155.

15 Cowan v. Sapp, 81 Ala. 525, 8 So. 212; Hetfield v. Willey, 105 111. 286; Shea v. Evans, 109 Md. 229, 72 Atl. 600; Dodd v. Home Mutual Ins. Co., 22 Oreg. 3, 28 Pac. 881, 29 Pac. 3.

16 Turner v. Green, [1895] 2 Ch. 205; GTeenhalgh v. Brindley, [1901] 2 Ch. 324.

17"The distinction between suppression of a fact and mere silence is a very old one, and is to be found in a passage from Cicero (De Off, lib. iii. c. 13), which is cited by Sir Edward Fry in his book (3d. Ed. p. 329) 'Aliud est celare, aliud tacere; negus enim id est celare qutcquid reticeas.' The obligation to speak is at the root of this proposition." Turner v. Green, [1895] 2 Ch. 205. So in FothergUl v. Phillips, L. R. 6 Ch. 770, a suit for the enforcement of an agreement to sell a farm from which unknown to the defendants the plaintiffs had by trespass taken coal, Lord Hatherley said: "The observations of the Vice-Chancellor, as to the purchasers knowing more of the value than the vendors did, would, if I may venture to say so, have been erroneous if made without reference to the special circumstances of the case. I apprehend it would be an error to say generally that you cannot enforce a contract in this court where the one party knows more of the value than the other does. It happens frequently in the purchase of pictures, for instance, that one party knows a great deal more of the value than the other, and yet the bargain is perfectly good. But I apprehend that the Vice-Chancellor meant his observations to be understood with reference to the circumstances of the particular case, and that when he Bays the vendors did not know the subject-matter of the contract, he meant that they did not know that coal had been taken to the extent of 2000 tons, and that in that state of circumstances they could not be held to the bargain. If, indeed, undervalue were shown, this observation would naturally suggest itself; the case is not merely that the purchasers, being more experienced men, knew the value of the coal better than the vendors, but that the vendors being unable to gain access to the coal, the purchasers took advantage of an unlawful access to it in order to test its value, and did not communicate to the vendors the result. I apprehend that in such a case the court, whatever it might do aa to cancelling the contract, certainly would decline to enforce it." In Falcke v. Gray, 29 L. J. Ch. 28, 31, Kindersley, V. C., said: "Lord Thur-low went so far as to Bay, that if a man went to purchase an estate, and

Sec.1427. Mistake

Because of the discretionary character of the remedy, in some cases a mistake by the defendant though not sufficient to prevent the formation of a contract or to give equitable ground for its reformation or rescission will, nevertheless, excuse him from liability in a suit for specific performance. Unilateral mistake has not infrequently been thus held an excuse.18 But this principle is ordinarily limited to cases where the enforcement of the contract, as made, would be harsh.19 And if the defendant was guilty of gross carelessness in making a mistake, his negligence will dispose the court not to exercise its discretion in his favor.20

Mistake of law, though not generally ground for rescinding or reforming a contract,21 may afford a reason for denying specific enforcement thereof, especially if its terms are unfair.22 And a degree of mental weakness in a spendthrift,23 intoxicated person,24 or aged or infirm person,25 or person igthere was a valuable mine under it, of which the purchaser knew, but the vendor did not, the court would not set the contract aside; yet no one can doubt that the court would not enforce specific performance of such a purchase." See in accord Byara p. Stubbs, 86 Ala. 256, 4 So. 756; Bean tr. Valle, 2 Mo. 103. But tee contra Caplea v. Steel, 7 Or. 491. See further, infra, Sec.Sec. 1497-1499.

18 Webster v. Cecil, 90 Beav. 62;

Day p. Welle, 30 Beav. 220; Rushton v. Thompson, 35 Fed. 635; Clowes

9. Miller, 74 Conn. 287, 295, 50 Atl.

728; Coppage v. Equitable Ac. Trust

Co. (Del. Ch. 1917), 102 Atl. 788;

Mansfield v. Sherman, 81 Me. 365,

17 Atl. 300; Kelley v. York Cliffs

Imp. Co., 94 Me. 374, 47 Atl. 898;

Samerville v. Coppage, 101 Md. 519,

61 AtL 318; Bowman v. McClenahan,

19 N. Y. Misc. 438, 44 N. Y. S. 482

(affd. in 20 N. Y. App. Div. 346, 46

N. Y. S. 946).

19 Stewart v. Kennedy, 15 A. C. 75, 105; Preston v. Luck, 27 Ch. Div.

497; Dewey v, Whitney, 93 Fed. 533, 35 C. C. A. 414; Heyward v. Bradley, 179 Fed. 325, 102 C. C. A. 509; Western R. Corp. v. Babcock, 6 Mete. 346; Mansfield v. Hodgdon, 147 Mass. 304, 17 N. E. 544; Lacroiz v. Longtin, 22 Ont. L. R. 506.

20 Tamplin v. James, 15 Ch. D. 215; Van Praagh v. Everidge [1902] 2 Ch. 266; Heyward v. Bradley, 179 Fed. 325, 102 C. C. A. 509; Krah v. Wass- ' mer, 75 N. J. Eq. 109, 71 Atl. 404; Cape Fear Lumber Co. v. Matheson, 69 S. C. 87, 48 S. E. 111. See infra, Sec.1596.

21 Infra, Sec.Sec. 1581 et aeq.

22 Higgins v. Butler, 78 Me. 520, 7 Atl. 276; Trigg v. Read, 5 Humph. 529, 42 Am. Dec. 447.

23 Henderson v. Hays, 2 Watts, 148.

24 Nagle v. Baylor, 3 Dr. & War. 60; Mcetsel v. Koch, 122 Iowa, 196, 97 N. W. 1079; Henderson v. Hays, 2 Watts, 148.

25 Banaghan v. Malaney, 200 Mass. 46, 85 N. E. 839, 19 L. R. A. (N. S.) 871, 128 Am. St. Rep. 378; Cuff p.

norant of the language,26 which would not amount to the insanity or imbecility necessary to produce legal incapacity to contract,27 will afford ground for refusing specific performance, especially if the bargain is not a fair one.