At least in the enforcement of affirmative promises a court of equity usually deems it neither wise nor just to enforce one or more of such promises in a contract unless it can enforce all of the contract outstanding at the time of the suit including the promises of the plaintiff as well as those of the defendant's.39
35 See supra, Sec. 312, infra, Sec. 1631.
36 Goodwin v. Fielding, 4 De G. M. & G. 90, 105; Cyrus v. Holbrook, 32 Ky. L. Rep. 466, 106 S. W. 300; Repetto tr. Baylor, 61 N. J. Eq. 601, 48 Atl. 774.
37 "It is said that in no case will the court enforce the specific perform- ' ance of a contract which amounts to a breach of trust, even though the purchaser be without fault. 2 Perry, Trusts, s. 787. However that may be, equity will not compel the specific performance of a contract to convey the legal title to real estate, which equitably belongs to one person, to a third person who has notice of such equity, but will leave the party to his action at law for damages. Spence v. Hogg, 1 Coll.
225; Gonnihan v. Thompson, 111 Mass. 270; Annan v. Merritt, 13 Conn. 478; Green v. Finin, 35 Conn. 178." Abbott v. Baldwin, 61 N. EL 582, 585.
38 Stitt tr. Ward, 142 N. Y. App. Div. 626, 127 N. Y. S. 351; Patterson v. Marts, 8 Watts, 374, 34 'Am. Dec. 474. But see Howe v. Howe & Owen Ball Bearing Co., 154 Fed. 820, 83 C. C. A. 536. See also supra, J 529.
39 "This court cannot specifically perform the contract piecemeal, but it must be performed in its entirety if performed at all." Romilly, M. R. in Merchants' Trading Co. p. Banner, L. R. 12 Eq. 18, 23; Gervais v. Edwards, 2 Dr. & War. 80; Ogden 0. Fossick, 4 De G. F. & J. 426; Nickels v. Hancock, 7 De G. M. A G. 300; Pantages v. Grauman, 191 Fed. 317,
"Courts of equity . . . make it a condition of giving relief to the plaintiff that he shall submit to a decree made against him, also; and, indeed, they treat a plaintiff as so submitting by implication. Accordingly, whenever a decree is made for the performance of a bilateral contract, the two sides of which constitute mutual and concurrent conditions, the court will, if necessary, appoint a time and place for performance, and will require both parties to perform at such time and place concurrently."40 The requirement that the relief given shall be complete not only excludes the jurisdictions of the court, where an entire contract cannot be specifically enforced, but also in order that the exclusion may be kept within as narrow limits as possible, leads the court to take jurisdiction of portions of a contract, which if standing alone would not be the subject of equitable relief. If the whole outstanding portion of a contract be of such a nature that equity can enforce it, and a part of it is of such a nature that equity ought to enforce it, then equity will enforce the whole, not only at the suit of the party who is entitled to come into equity from the nature of the thing for which he has contracted, but at the suit of the other party as well.41 Therefore, equity will give specific performance of a portion of a contract which provides for the sale of personalty of a kind for which damages are ordinarily regarded as a sufficient equivalent, when the remainder of the contract is of such a character as to give equitable jurisdiction.42 It is this desire to give complete relief that leads equity to give specific performance with compensation where the defendant is unable to perform in full, instead of leaving the plaintiff to adjust his damages at law after equity has given him such specific relief as is possible.43 So, as an adjunct to specific performance, the purchaser is ordinarily allowed the rents and profits of the land or its rental value, and the vendor interest on the purchase money during the period between the day fixed by the contract and the day when conveyance is made;44 but where interest exceeds the rents and profits if the delay was due to the vendor's fault, he will be allowed to retain the rents and profits, and allowed no interest.45
112 C. C. A. 61; Tombigbee Valley R. Co. v. Fairford Lumber Co., 155 Ala. 575, 47 So. 88; Fordyce Lumber Co. v. Wallace, 85 Ark. 1, 107 S. W. 160; Deitz v. Stephenson, 51 Ore. 696, 95 Pac. 803; Bannerot v. David wn, 226 Pa. 287, 75 Atl. 417; Northern Texas, etc., Co. v. Lary (Tex. Civ. App.), 136 S. W. 843.
40 Langdell, 1 Hary. L. Rev. 361, quoted with approval in Blanton v. Kentucky Distilleries, etc., Co., 120
Fed. 318, 351. See also Catholic, etc., Soc. 0. Oussano, 215 N. Y. 1, 109 N. £. 80, Ann. Cas. 1917 A. 479.
41A Brief Survey of Equity Jurisdiction (2d ed.), Langdell.
42Nutbrown v. Thornton, 10 Ves. Jr. 159; Brown o. Smith, 109 Fed. 26; Fleishman v. Woods, 135 Cal. 256, 67 Pac. 276; Leach v. Fobes, 11 Gray, 506, 71 Am. Deo. 732; Fowler v. Sands, 73 Vt. 236, 50 Atl. 1067.
For the same reason if a loss has taken place during the pendency of a bill to enforce the issue of a policy of insurance, equity will decree that the plaintiff shall recover the amount of his loss, and will not merely order the issue of a policy on which the plaintiff might bring an action at law.46