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.
One party to a contract may, by reason of abnormal status, have the right of avoiding the contract, if he sees fit so to do. At law, as we have seen,1 this is a privilege personal to the party of abnormal status, and the defense of incapacity cannot be set up by the party of normal status. The only exception to this may be found in cases where the promise by the person of abnormal status is absolutely a nullity, and not merely voidable at his election.2 There is a conflict of authority in equity, whether the party of abnormal status may have specific performance against a party of abnormal status if the former wishes to enforce the contract. In some states it is held that since the party of abnormal status could have avoided the contract could he have seen fit to do so, equity should not give the relief of specific performance to him as against the adversary party.3 So no specific performance can be given of covenants made in consideration of executory ultra vires promises by a corporation.4 In other jurisdictions in equity it seems to be held that if the party of abnormal status does not seek to avoid the contract, but to enforce it, the defense of his incapacity cannot be set up by the adversary party in equity, since it might not be so set up at law. An additional complication is found in cases of this sort where the party of abnormal status has fully performed all the terms of the contract on his part to be performed. In many jurisdictions performance by him is held to eliminate the question of a want of mutuality, and to make it proper for the court to enforce the contract specifically against the adversary party.5 If a contract is made by an agent in excess of his authority, and his principal subsequently ratifies, the question of his right to enforce specific performance against the adversary party presents a conflict of authority.6
18 Stanton v. Singleton. 126 Cal. 657; 47 L. R. A. 334; 59 Pac. 146; Ducie v. Ford, 8 Mont. 233; 19 Pac. 414.
1 See Sec. 273.
2 Warren v. Costello, 109 Mo. 338; 32 Am. St. Rep. 669; 19 S. W. 29. 1 See Sec. 884 et seq., 900, 907.
2 See Sec. 911, 931, 936.
3 Infancy. Flight v. Bollind. 4