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.
The ordinary rules that apply to breach and performance at law apply with especial force in equity. To obtain specific performance, there must have been some breach which causes actual damage. Thus specific performance cannot be given of a contract to effect insurance where the suit is brought after the loss, and other insurance on the same property has already been collected exceeding the value of the property insured.1 The rules in force at law as to the necessity of complete performance of all precedent and concurrent conditions by the party seeking relief apply with even greater force if specific performance is sought. The party seeking relief must have performed in full, unless some lawful excuse for non-performance exists.2 Thus a vendee who has agreed to pay cash cannot have specific performance if he has tendered a note and a certificate of deposit instead.3 So a vendor who has agreed either expressly or by implication to furnish a good title, can-, not have specific performance if the title to the realty is defective,4 or is even doubtful.5 Thus he cannot have specific performance if the assent of a third person, which has not been given, is necessary to make perfect title.6 Thus if the realty is contracted for as bounded by a street, and the owner of the land on which such street is to be located refuses to dedicate it, the vendor cannot have specific performance.7 To prevent specific performance, however, there must be a real risk, and not the mere possibility of one.8
2 Baltimore, etc.. Ry. v. Winslow. 188 U. S. 646.
1 See Sec. 717 et seq.
2 See Sec. 1360.
3 Sullings v. Richmond, 5 All.
(Mass.) 187; 81 Am. Dec. 742; Thompson v. Tueker-Osborn, 111 Mich. 470; 69 N. W. 730.
1 lns. Co. v. Schall. 96 Md. 225; 61 L. R. A. 301; 53 Atl. 925.