This section is from the book "The Law Of Contracts", by William Herbert Page. Also available from Amazon: Commercial Contracts: A Practical Guide to Deals, Contracts, Agreements and Promises.
Thus if no offer and acceptance exist,1 as where the parties have never even in outward form come to an agreement,2 as for example where there is no acceptance,3 or no acceptance is made until after the offer has lapsed,4 or the attempted acceptance is in terms different from the offer,5 or where there is an apparent offer and acceptance which is really lacking in some essential element, as where there is a mistake in the execution of a written contract,0 or misrepresentation,7 or fraud, specific performance will be refused. Mistake as to a collateral matter, induced by false statements of a third person not connected with either party to the contract is no more reason for refusing specific performance8 than it would be for refusing to enforce the contract at law.9 Equity may, however, refuse relief where circumstances of unfairness or oppression exist, even if the law would not recognize such facts as grounds for avoiding the contract. If the party seeking relief did not intend to perform the terms of the contract on his part to be performed, when he entered into the contract, the court does not abuse its judicial discretion by refusing specific performance.10 The partial adoption by the law of equitable doctrines in cases of constructive fraud and undue influence is gradually eliminating this distinction, once so clearly marked. Want of offer and acceptance is also involved in the subject of mutuality.11
10 "In the increasing complexities of modern business relations, equitable remedies have necessarily and steadily been expanded and no inflexible rule has been permitted to circumscribe them." Union Pacific Ry. v. Ry., 163 U. S. 564, 600.
1 Buettgenbach v. Gerbig (Neb.), 90 N. W. 654.
1 Rushton v. Thompson, 35 Fed. 635; Suydam v. Ins. Co.. 18 Ohio 459; Rose v. Oliver, 32 Or. 447; 52 Pac. 176.
2 Pacific Rolling Mill Co. v. Ry., 90 Cal. 627; 27 Pac. 525; Clipson v. Villars, 151 111. 165; 37 N. E. 695; Wardell v. Williams, 62 Mich. 50; 4 Am. St. Rep. 814; 28 N. W. 796.
3 Clipson v. Villars, 151 111. 165; 37 N. E. 695; Parker v. Stephens, 3 A. K. Mar. (Ky.) 197.
4 Childs v. Gillespie, 147 Pa. St 173; 23 Atl. 312.
5 Bentz v. Eubanks, 41 Kan. 28; 20 Pac. 505.