In a leading English case,28 Lord Westbury said: "A contract for the sale of goods, as, for example, of five hundred chests of tea, is not a contract which would be specifically performed, because it does not relate to any chests of tea: in parr ticular; but a contract to sell five hundred chests of the particular kind of tea which is now in my warehouse in Gloucester, is a contract relating to specific property, and which would be specifically performed. The buyer may maintain ; a suit in equity for the delivery of a specific chattel when it is the subject of a contract, and' for an injunction (if necessary) to restrain the seller from delivering it to any other person." This statement certainly goes far beyond rules of equity as generally understood.29

The enforcement of contracts to mortgage after-acquired property on the theory that the mortgagee acquires an equitable right to the goods described, as soon as they are acquired by the mortgagor, has been the subject of much litigation, and the equitable right has been recognized in many jurisdictions.30 It is, however, a prerequisite that the mortgagee shall actually have advanced his money, no jurisdiction being taken of a contract executory on both sides;31 and it is of course requisite that the contract shall describe the goods with sufficient exactness to enable them to be identified.

78 So. 212, L. R. A. 1918 E. 504; Dowling v. Betjemann, 2 Johns. & H. 544; Ryan v. McLane, 01 Md 175, 46 AtL 340, 50 L. R. A. 501, 80 Am. St. 43a

27 See Ridenbaugh v. Thayer, 10 Ida. 662, 80 Pac. 229; Lfresley v. Johnson, 45 Oreg. 30, 76 Pac. 13, 946, 65 L. R. A. 783, 106 Am. St. Rep. 647; Lnresley v. Heise, 45 Oreg. 148, 76 Pac. 952.

28 Hblroyd v. Marshall, 10 H. L. C. 191, 209.

29 The statement is criticised by

Fry on Specific Performance (5th ed.), {82, and an examination of the cases cited supra, n. 12 and 13, will show that not only where unspecified goods were in question, but also where the subject-matter of the contract was specific, jurisdiction has been made to depend on the unique character of the goods or the special chrcumatances of the case.

30 See 19 Harv. L. Rev. 557..

31 Tailby v. Official Receiver, 13 A. C. 523, 543, 546.

Many jurisdictions either deny or qualify the mortgagee's equitable interest; and unless recording statutes distinguish between the two no reason can be given why a contract to mortgage existing specified goods should be dealt with differently from an agreement to mortgage future goods as soon as they become specified.32

It has been assumed not infrequently that an attempted transfer by way of sale of future goods would give a similar equitable property right to the buyer.33 The analogy between mortgages and sales, however, is imperfect. It is generally recognized that equity will not give specific performance of a contract for the sale of ordinary personal property, and while damages may be an inadequate remedy in case of an agreement to mortgage such property because it is impossible to estimate accurately the amount of the damage, this is not true of a contract to sell it; and there is weighty authority denying the application of any such principle to a contract to sell.34 As in the case of mortgages, it seems impossible to distinguish, so far as the matter under discussion is concerned, a contract to sell future goods which afterwards become identified and a contract to sell existing specified goods.

32 See infra, Sec.1421, authorities sustaining the jurisdiction of equity to enforce a mortgage of the latter kind.

33 It is so stated by Benjamin on Sale and the statement is left unchanged in the latest edition (5th Eng. ed. 134), which has been the subject of careful revision by the editors and in which not a few hasty statements of the author have been corrected. See also Hamilton v. Nat. Loan Bank, 3 Dill. 230; Post v. Corbin, 5 Nat. Bkcy. Reg. 11; Block v. Shaw, 78 Ark. 511, 95 S. W. 806; Close v. Independent Gravel Co., 156 Mo. App. 411, 138 S. W. 81; Godwin v. Murchison Nat. Bank, 145 N. C. 320, 59 S. E. 154; Scammon v. Bowers, 1 Hask. 496.

34 In Belding-Hall Mfg. Co. v. Mercer & Ferdon Lumber Co., 175 Fed. 335, 338, 99 C. C. A. 123, Mr. Justice Lurton of the Supreme Court of the United States, said: "It must be conceded that although the sale included the entire cut of this particular sort of lumber for the season of 1907, and although there had been a payment made on account of the contract of a sum largely in excess of the lumber which had been shipped and nearly equal to the price of the entire cut up to August 31, 1907, the title to the lumber cut to fill this order had not passed prior to August 31st, because the contract provided for delivery free on board cars at Bogardus, the railway station nearest the mill. If before that had been done bankruptcy had ensued, the title would have passed to the bankrupt's trustee, and the buyers remitted to their rights as creditors by reason of this advance payment. So if the lumber had been seised under execution, the execution creditor would have at law the better claim. So, also, if the lumber had been destroyed by fire or flood, the loss would have fallen upon the vendor."

It may be urged that equity has in either case jurisdiction to enforce the agreement of the parties, but that it will refrain from exercising its jurisdiction unless damages are inadequate and that in this event (as in case of insolvency) the jurisdiction will be exercised. Though as appears from the following section insolvency will not be generally a proper ground for specific enforcement, the argument may otherwise be conceded, if the validity of the criticism elsewhere made,*6 of throwing the risk on one who has contracted to buy real estate be accepted. If it be contended that the mere jurisdiction of a court of equity over a contract to buy and sell makes the contracting purchaser owner in equity and subject to the risk of loss, an assertion of such jurisdiction over all contracts to buy and sell specific chattels would be inconsistent with the well-established rule that in the sale of chattel property risk attends title.86 In dealing with the matter now, either in England or in such jurisdictions of the United States as have enacted the Uniform Sales Act, a provision of the latter statute copied from the English Sale of Goods Act must be taken into account. The American statute provides, - " Where the seller has broken a contract to deliver specific or ascertained goods, a court having the powers of a court of equity may, if it thinks fit, on the application of the buyer, by its judgment or decree direct that the contract shall be performed specifically, without giving the seller the option of retaining the goods on payment of damages. The judgment or decree may be unconditional, or upon such terms and conditions as to damages, payment of the price and otherwise, as to the court may seem just.,, 37

35 See supra, Sec.Sec. 923-954.

36 See supra, Sec.Sec. 961-967.

It ia true that cases on this point are in actions at law, but this should not affect the question in any jurisdiction where equitable defences are allowed at law.

37 Section 68. A list of jurisdictions where the Uniform Sales Act has been enacted may be found supra, Sec. 606, n. 2. These sections of the English and American statutes have not hitherto been much relied on by the courts in making decisions but they seem to afford a clear warrant for an extension of previously existing rules. See Jones v. Tankerville, [1909], 2 Ch. 440, 445.