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 discretionary power of the chancellor in granting or denying specific performance is illustrated by the principle that if specific performance will work great hardship to the party against whom such relief is sought, it will be denied even if the other circumstances are such that it would ordinarily be granted.1 Thus specific performance of a land contract was denied where the vendee was to survey the land at his own expense and pay a certain sum per acre therefor, and his surveyors bad been stopped forcibly and bis own life threatened.2 Specific performance is more certainly refused wbere to grant it would be to work great hardsbip on an innocent third person.3 Tbus A agreed to transfer a patent to B. Subsequently, before such transfer was made, and while A's experiments were in progress, A agreed to transfer an interest therein to X in consideration of X's furnishing ten thousand dollars to com-plete tbe patent. It was held that B could not have specific performance so as to defeat X's rights.4 On this principle equity denies specific performance as against a bona fide purchaser of tbe property contracted for. Facts which were considered by the parties when the contract was made cannot be invoked to establish hardship. The fact that the value of realty on which an option for valuable consideration has been given has increased greatly does not prevent specific performance, where the option fixed the purchase price, if exercised in ten years, at some fifty per cent more than the value of the property when it was given, thus showing that the chance of an increase in value was contemplated by the parties.5
Rep. 672; 25 Atl. 577; Davenport v. Latimer, 53 S. C. 563; 31 S. E. 630; Cocke v. Evans, 9 Yerg. (Tenn.) 287; Dewey v. Land Co., 98 Wis. 83; 73 N. W. 565. "This discretion, of course, is not an unlimited discretion, to be exercised without regard to those principles of equity by which the rights of the parties are to be determined, and a decree is not to be given or with« held arbitrarily and capriciously at the mere will of the judge who may be presiding in the cause; but it is a judicial discretion, to be controlled and governed by the principles and rules of equity." Hoctor-Johnson Co. v. Billings, 65 Neb. 214, 218; 91 N. W. 183.
4 McCabe v. Matthews, 155 U. S. 550, 553; citing Hennessy v. Wool-worth, 128 U. S. 438; Willard v. Tayloe, 8 Wall. (U. S.) 557; Holt v. Rogers, 8 Pet. (U. S.) 420; Pratt v. Carroll, 8 Cranch (U. S.) 471.
1 Federal Oil Co. v. Oil Co., 121 Fed. 674; 57 C. C. A. 428; affirming, 112 Fed. 373; Hapwood v. McCaus-land, 120 la. 218; 94 N. W. 469.