If a contract is illegal or opposed to public policy, specific performance is obviously improper, and it is possible that specific performance may be opposed to public policy, though a recovery of damages at law would not be. A plaintiff who is ignorant of the facts on which illegality is based, may frequently recover at law on an illegal contract.33 But specific performance of such a contract is another matter and though even this has been granted where public necessity required it,34 such an instance is exceptional. On the other hand, in some cases contracts which might not be thought illegal at law will, nevertheless, be denied specific enforcement. The contract of a fiduciary to convey or otherwise deal in violation of his trust with property to which that trust relates, may impose a personal liability upon him,*5 which could he enforced by the other party to the contract if he was ignorant of the circumstances rendering the contract fraudulent, but specific performance could not be allowed.36 And generally, equity will not enforce specifically a contract which involves a breach of duty to a third person, and will certainly never do so where the plaintiff was chargeable at the time he entered into the contract with notice of the defendant's fiduciary duty; or if the equity of the third person is equal or superior to that of the plaintiff.37 Even though a prior contract of the defendant with a third person was oral and unenforceable because of the Statute of Frauds, equity will not aid a plaintiff who subsequently entered into a written contract with the defendant, the performance of which would involve breach of the prior oral agreement.38


32 See, e. g.t Marks v. Gates, 154 Fed. 481, 83 C. C. A. 321, 14 L. R. A. (N. S.) 317; Koch v. Streuter, 232 111. 495, 83 N. E. 1072; Oliver v. Johnson, 238 Mo. 359, 142 S. W. 274; Spotts v. Eisenhauer, 31 Fa. Super. Ct. 89.

33 See infra, Sec.1631.

34 In Seattle Electric Go. v. Snoqual-mie Falls Power Co., 40 Wash. 380, 82 Pac. 713, 1L.R.A. (N. S.) 1032, the court for a brief period specifically enforced a contract which was held illegal as designed to create a monopoly. A refusal to enforce the con-tact would have involved the sudden cutting off of the supply of electricity upon which the transportation and lighting systems of the city of Seattle were dependent. The court held that the public interest required that the contract be performed until such time as an adequate supply of electricity could be otherwise procured. At law, the primary question is whether the plaintiff's part in the contract in question is so blameworthy that he should be denied recovery. (Infra, Sec. 1630). In equity when specific performance is sought, there must be the further inquiry whether it is against public policy to have the contract performed.