There are some exceptions to the general rule that the decree must completely dispose of the contract between the parties. Cases where specific performance of part of a contract is given with damages or abatement of the price,47 though opposed to the doctrine of mutuality as it is often stated,48 are not at variance with the rule requiring a complete disposition of the controversy. Nor are cases where the parties have contracted with one another for the purchase of several lots. The question in that case is whether there is one contract or several and this problem is the same where specific performance is involved as in an action at law.49 The mere fact that a single contract is divisible into several performances with a price fixed for each affords in itself no ground for a partial decree, for there is no reason to suppose contemporaneous performance of all the promises was not intended; but if the contract originally contemplated piecemeal performance, as if part of a lot was to be transferred for part of the total price at a time before the remainder of the lot was agreed to be conveyed, there is no reason for denying specific enforcement of the earlier portion of the contract if the remaining performance has not become impossible, and if it is not yet due.50 But the most frequent occasion for partial decrees is where the plaintiff has wholly or partly performed the consideration on his side and a decree of part of the performance promised by the defendant is necessary to protect the plaintiff's right to the performance promised in return for his own. In a strictly divisible contract if the plaintiff has performed a division of the contract, it is obvious that if the corresponding performance due from the defendant is land or some other.matter of which equity takes jurisdiction, the plaintiff should have specific performance, whether the remaining performance under the contract is likely to be rendered or not. The defendant has come under an absolute and indefeasible duty to give the return agreed upon, for what the plaintiff has already done. Courts have, however, and with reason gone farther than this. In many cases of partly executed contracts, particular portions of the contract independent in their character have been specifically enforced,51 especially by injunction, though the whole contract could not be.52 This has been done in case of a particular covenant of a lease 53 or of a partnership agreement.54
43 See infra, Sec. 1436.
44 See Sweeney v. Brow, 40 R. I. 281, 100 Atl. 593.
45 Esdaille v. Stevenson, 1 Sim. & Stu. 122; Jones v. Mudd, 4 Ruas. 118. See also Worrall v. Munn, 38 N. Y. 137.
46 Tayloe v. Merchants' Fire Ins. Co., 9 How. 390, 13 L. Ed. 187.
47 See supra, Sec. 844, infra, Sec. 1436.
48 See Sec.1433.
49 See for a discussion of it, supra, Sec.863. See also Croome v. Lediard, 2 Myl. & K. 51; Odessa Tramways Co. v. Mendel, 8 Ch. D. 235.
Two difficulties in giving specific performance are often presented by the same case and are sometimes confused together. (1) The impossibility of making a decree which can be immediately completely executed and, (2), the fact that the terms of the contract require one side or the other to perform a series of acts, or to make a continuous performance, enforcement of which would involve an extended supervision which equity is reluctant to exercise. Though the second difficulty involves the first, the first does not necessarily involve the second. In the typical case of a contract for the sale of land, the performance on one side or the other, though of a character such as equity most often enforces, may not be due until after the time when a decree should be rendered. It is often said, indeed, that a court of equity can grant specific performance only of matters which it can dispose of by a decree capable of present performance; " and undoubtedly the typical affirmative decree is one which can be presently executed on both sides If the necessities of the case require it, however, an affirmative decree will be made which requires future action.56 Specific performance of negative promises by means of injunction extending over a considerable period of time is common; and there seems no occasion to limit the capacity of equity in making affirmative decrees to any greater extent than the necessity and convenience of particular cases require.
50 See Wilkinson v. Clements, L. R. 8 Ch. 96; Odessa Tramways Co. v. Mendel, 8 Ch. D. 235,244.
51 Mutual OH Co. v. Hills, 248 Fed. 257, 160 C. C. A. 335.
52 See infra, Sec.1450.
53 Rigby v. Gt. Western R., 15 L. J. Ch. 266, 2 Phillips, 44; Jones v. Parker, 163 Mass. 564, 40 N. E.
1044, 47 Am. St. Rep. 485. See also Lytton v. Gt. Northern R., 2 K. & J. 394; Wolverhampton Ac. R. v. London Ac. R., L. R. 16 Eq. 433.
54 Kemble v. Kean, 6 Sim. 333; Waring v. Manchester Ac. R. 7 Hare, 482, 496. See also Rolfe v. Rolfe, 15 Sim. 88.