The doctrine, whether in its broadest or most restricted form, at first sight strikes most legal theorists as both anomalous and erroneous. It is sometimes condemned by text-writers.64 But the rule in its more limited form should be approved. The very fact of the wide adoption of a doctrine which is, and is known to be, contrary to the rule previously prevailing shows that the new doctrine must commend itself to the sense of justice of the courts, and if the matter be looked at broadly as one of justice rather than one of technical remedies permitted by the law, it will be hard to find a reason why the seller of land should be allowed to force the buyer to take it and pay the price while the manufacturer of goods for a special and peculiar order should not be. In such a case the seller may urge the very reason which courts of equity have habitually given for allowing specific performance of contracts in regard to sales of land, the inadequacy of damages. It is true the remedy is not mutual. The buyer is without specific redress if the seller refuses to make the goods, or refuses to give them up when he has made them. But the buyer is much less in need of the remedy of specific performance in this kind of case than the seller. If the seller does not manufacture the goods, the buyer can ordinarily do better by getting some one else to manufacture them than he could do by trying to force the seller to manufacture against his will. If the goods are already manufactured, the seller will rarely be disposed to withhold them from the buyer. The very fact that the goods are of a special kind and have no general market value will preclude the seller from making any other disposition of them. Doubtless cases could be put, however, where the buyer is in need of specific performance, but the fact that he is allowed no such right either at law or in equity ought not to debar the seller from specific redress. The requirement of mutuality of remedy has perhaps been pushed to the extreme of a technicality in equity.65
Decisions under this section are: Illustretod Foetal Card Go. v. Holt,.
85 Conn. 140, 81 AtL 1061; Urbanaky v. Kutinaky, 86 Conn, 22, 84 AtL 317; Home Pattern Go. v. Merts Ac Co.,
86 Conn. 494, 86 Atl. 19, 88 Conn. 22, 90 Atl. 33; Rylance v. James Walker Co., 129 Md. 476, 99 AtL 697; Friedner v. Schneck, 163 N. Y. S. 160; Gourd p. Healy, 176 N. Y. App. D.
461, 163 N. Y. S. 637; Mosler Safe Co. v. Brenner, 100 N. Y. Misc. 107, 165 N. Y. S. 336; Michael v. Floridine Co., 167 N. Y. S. 244; E. H. Gallagher Trucking Go. v. Hudford Go., 169 N. Y. S. 83.
64 Mechem, Sales, Sec.1694; Burdick, Sales (2d ed.), J 364; Tiffany, Sales (1st ed.), Sec.103 (compare 2d ed., Sec. 112). Benjamin does not refer to the doctrine.