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.
Since specific performance is discretionary and may be refused in case great hardship will result to the party against whom the relief is sought, the court may give such relief upon such terms and conditions as will prevent such hardship from resulting.1 Thus an option to sell at a certain price, given when the only money recognized by law as legal tender was gold and silver coin, will be enforced specifically after paper currency has been made a legal tender and has depreciated to one half the value of coin, but only on condition that the purchase money is paid in the stipulated amount of coin.2 So if there is delay in enforcing specific performance of a contract to assign a patent-right, specific performance may be given on condition that the right of accounting be waived.3 So A agreed to sell realty to B. B agreed to resell to C, and A agreed to accept C. Subsequently A, understanding that the deed was to be made to C, executed and delivered such a deed, and C mortgaged to X, a bona fide mortgagee, to raise money to pay to A the unpaid purchase money. B sued for specific performance against A and to have the deed to C set aside. It was held that he could have such relief, but on condition that the mortgage to X was treated as valid.4
5 Birmingham National Bank v. Roden, 97 Ala. 404; 11 So. 883.
6 Cnapman v. H. R., 6 O. S. 119.
7 Mack v. Mcintosh, 181 I11. 633; 54 N. E. 1019; Sternherger v. Mc-Govern, 56 N. Y. 12; Hatch v. Cobb, 4 Johns. Oh. (N. Y.) 559; Cunningham v. Duncan, 4 Wash. 506; 30 Pac. 647.
8 Pratt v. law. 9 Cranch (U. S.) 456; Powell v, Higley, 90 Ala. 103;
7 So. 440; Allen v. Young, 88 Ala. 338; 6 So. 747; Aday v. Echols, 18 Ala. 353; 52 Am. Dec. 225; Mas-son's, etc., Appeal, 70 Pa. St. 26; Hilton v. Duncan, 1 Coldw. (Tenn.) 313.
9 Tyler v. Cate, 29 Or. 515; 45 Pac. 800.
10 Combs v. Scott, 76 Wis. 662; 45 N. W. 532.
* Sec. 1638. Laches as affecting specific performance.
The effect of laches in preventing equitable relief is discussed elsewhere. The duty of one seeking equitable relief to refrain from unreasonable delay is especially clear where specific performance is the relief sought.1 If application to the court for relief is delayed until circumstances so change as to produce special hardship to the adversary party if such relief is granted, specific performance may be denied in cases where it would have been granted had the relief been invoked promptly.2 The duty of acting promptly is especially clear in contracts for the sale of property of fluctuating value, such as corporate stock.3 A delay of five and a half years,4 three years,5 and six months6 have each been held under the peculiar circumstances of each case to be for periods so long as to prevent this relief. If realty contracted for undergoes considerable change in value, a delay in seeking relief may prevent the injured party from obtaining specific performance.7 Thus a delay of six years,8 of five years,9 two years,10 have each beer held to be such delay as prevents the injured party from obtaining specific performance. In other jurisdictions greater latitude of delay is allowed. Thus a delay of fourteen years11 has been held not to be so great as to prevent specific performance. Greater latitude of delay is allowed where the party seeking relief is a vendee in possession of the realty contracted for.12
1 Giddings v. Water Co., 100 Cal. 116; 41 Pac. 788; Brewer v. Peed, 7 J. J. Mar. (Ky.) 230.
2Willard v. Tayloe, 8 Wall. (U. S.) 557.
3 Harrigan v. Smith, 57 N. J. Eq. 635: 42 Atl. 579.
4 Fountain v. Leveque, 108 Mich. 614; 66 N. W. 575.
1 Levy v. Stogdon (1899). 1 Ch. 5; same ease (1898). 1 Ch. 478; Davison v. Davis. 125 U. S. 90: Watts v. Waddle. 6 Pet. (U. S.) 889; Seculovieh v. Morton, 101
Cal. 673; 40 Am. St. Rep. 106; 36 Pac. 387; Hurd v. Hotchkiss, 72 Conn. 472; 45 Atl. 11; Tate v. Development Co., 37 Fla. 439; 53 Am. St. Rep. 251; 20 So. 542; Bennett v. Welch, 25 Ind. 140; 87 Am. Dee. 354; Fuller v. Hovey, 2 All. (Mass.) 324: 79 Am. Dec. 782; Campbell v. Hicks, 19 O. S. 433; Bracken v. Martin, 3 Yerg. (Tenn.) 55; Lowth-er Oil Co. v. Oil Co.. 53 W. Va. 501: 97 Am. St. Rep. 1027; 44 S. E. 433.
2 Holgate v. Eaton, 116 U. S. 33; Holt v. .Rogers, 8 Pet. (U. S.) 420; Mathews v. Davis, 102 Cal. 202; 36 Pac. 358; Smith v. Cansler, 83 Ky. 367; Rogers v. Saunders, 16 Me. 92; 33 Am. Dee. 635; Anderson v. Mining Co., 70 Minn. 23; 72 X. W. 820; Smith v. Christmas, 7 Yerg. (Tenn.) 565; Newberry v. French, 98 Va. 479; 36 S. E. 519; Lowther Oil Co. v. Oil Co., 53 W. Va. 501; 97 Am. St. Rep. 1027; 44 S. E. 433.
3 Davison v. Davis. 125 U. S. 90; Wonson v. Fenno, 129 Mass. 405; Rogers v. Van Nortwick. 87 Wis. 414; 58 N. W. 757.
4 Davison v. Davis, 125 U. S. 90 (the stock having almost doubled in value).
5 Schimpff v. Bank. 208 Pa. St. 380; 57 Atl. 767 (the stock having in the meanwhile become four times as valuable) ; Rogers v. Van Nortwick, 87 Wis. 414; 58 N. W. 757.
6 Wonson v. Fenno, 129 Mass. 410.
7 Johns v. Norris, 22 N. J. Eq. 102; Ruff's Appeal, 117 Pa. St. 310; 11 Atl. 553; Chilhowie Iron Co. v. Gardiner, 79 Va. 305; Combs v. Scott, 76 Wis. 662; 45 N. W. 532.
8 Combs v. Scott, 76 Wis. 662; 45 N. W. 532. (The land having increased in value greatly.)
9 Chilhowie Iron Co. v. Gardiner, 79 Va. 305.
10 Haughwout v. Murphy, 21 N. J. Eq. 118; Merritt v. Brown, 21 N. J. Eq. 401.
11 Parish v. Parish. 32 Beav. 207.
12 Scadden, etc., Co. v. Scadden, 121 Cal. 33; 53 Pac. 440; Tate v. Development Co.. 37 Fla. 439; 53 Am. St. Rep. 251; 20 So. 542; Sheldon v. Dunbar. 200 I11. 490: 65 N. E. 1005: Low v. Low. 173 Mass.
Thus specific performance has been given in such cases after eleven years.13