Hardship.

(p) (1852) 1 D. M. &G. 622.

(q) Catt v. Tourle, (1869) 4 Ch. 654 ; Webster v. Billon, (1857) 5 W. R. 867 ; Fechter v. Montgomery, (1863) 33 Beav. 22 ; Montague v. Flockton, (1873) 16 Eq. 189 ; 42 L. J. Ch. 677 ; Sevin v. Deslandes, (1860) 9 W. R. 218 ; 30 L. J. Ch. 457. See Fry, 4th ed., 367 et seq.

(r) Fry, 4th ed., 367 et seq. ; Heathcote v. N. Staff. R. Co., (1850) 2 M. & G. 100, 112; Fothergill v. Rowland, (1873) 17 Eq. 132 ; 43 L. J. Ch. 252.

(s) Donnell v. Bennett, (1883) 22 Ch. D. 835; 52 L. J. Ch. 414.

(t) Re Hare and O'More, 1901, 1 Ch. 93 ; 70 L. J. Ch. 45.

(u) Faine v. Brown, (1750) cited 2 Ves. sen. 307.

(x) Peacock v. Fenson, (1848) 11 Beav. 355; 18 L. J. Ch. 57; cf. Helling v. Lumley, (1858) 3 D. & J. 493 ; 28 L. J. Ch. 255.

(y) Willmott v. Barter, (1880) 15 Ch. D. 9G.

(z) Helling v. Lumley, (1858) 3 D.

& J. 493, 498; 28 L. J. Ch. 255.

(a) Per Turner, L. J., in Helling v. Lumley, 3 D. & J. 499.

(b) Costif/ttn v. Hastier, (1804) 2 Suli. & L. 160. But damages might in such a case he awarded under Lord Cairns' Act; see Howe v. Hunt, (18G2) 31 Beav. 420 ; 32 L. J. Ch. 36.

So, where a tenant for life, who, upon the settlement by him of lands of equal value, would have been absolutely entitled to the settled estates, contracted to sell them, the Court would not order him to procure and settle other lands, and so acquire a title (f) ; so, where the vendor entered into the contract in the belief that he was the absolute owner, and it subsequently turned out that he had only a power of sale and exchange, and was bound to re-invest the purchase-money, specific performance was refused (g).

So, where the completion of the contract would involve a breach of trust, the Court will, partly, as we have seen (h), on the ground of the impolicy, or quasi-illegality of the transaction, and partly on the ground of hardship, decline to interfere. Thus, where a sale by trustees under a power was so disadvantageous as to be a breach of trust, the Court refused to enforce the contract (i) ; so, where the trustees of an estate joined, especially in that capacity, with the beneficial owners in a contract for sale, and all agreed to exonerate the estate from any incumbrances which might affect it, the Court refused to enforce this agreement against the trustees, when it seemed probable that the incumbrances might, perhaps materially, exceed the amount of purchase-money (k). The validity of this defence is not confined to cases where an express trust would be violated if the contract were enforced, but applies to every case where its enforcement would involve a breach of confidence (/).

Breach of trust, where a defence on ground of hardship.

(c) Watson v. Marston, (1853) 4 D. M. & G. 230.

(d) Franklimki v. Ball, (1864) 33 Beav. 560. See now Conv. Act, 1881, s. 18.

(e) Re G. N. It. Co. and Sanderson, (1884) 25 Ch. D. 788 ; 53 L. J. Ch.

445

(/) Howellv. George, (1815) 1 Mad. 1 ; and see Southwell v. Nicholas, (1732) cited ib. 9, n.

(g) Hood v. Oglander, (1865) 34 Beav. 513, 518, 519.

(A) See sup. p. 1055.

So, where the contract was intended by both parties to be the means of forwarding a common object which had utterly failed before the bill was filed, the Court refused to interfere (m). So, in case of mutual, though distinct, agreements, the subject-matter of the one may be so connected with that of the other, that the Court will enforce both or neither (n). Where, however, the contracts, though contained in the same instrument, are really independent, the breach of one is no defence to an action for specific performance of the other (o).

Failure of one of two interdependent contracts.

But where a solicitor contracted in his own name for the purchase of an estate, the fact of his having purchased for an undisclosed client, was held to be an insufficient defence on the ground of hardship (p) ; so, also, where a person contracted for the lease of a mine, his ignorance of mining matters, and the fact of the mine having proved worthless, were held an insufficient defence (q).

Hardship when not available as a defence.

(i) Mortlock v. Puller, (1804) 10 Ves. 202, 313, and see other cases cited in note (h) sup. p. 1055.

(k) Wedgwood v. Adams, (1843) G Beav. 600 ; (1844) 8 Beav. 103 ; and see as to hardship, Talbot v. Ford, (1842) 13 Si. 173 ; Hemingway v. Fernandes, (1842) ib. at p. 243 ; 12 L. J. N. S. Ch. 130; Kimberley v. Jennings, (1836) 6 Si. 340 ; and Webb v. London and Portsmouth R, Co., (1851) 9 Ha. 129 ; 21 L. J. Ch. 337.

(/) See Mortlock v. Butter, (1804) 10 Ves. 292, 313; Shrewsbury and Birmingham R. Co. v. L. & N. W. R. Co., (1854)4 D. M. & G. 115; 6 H. L.

C. 113 ; 20 L. J. Ch. 482 ; and see Fry, 4th ed. 178, 179.

(m) Padwick v. Hanslip, (1850) 14 L. T. O. S. 543. Sed alitor, if there was no such community of purpose : see Webb v. London and Portsmouth R. Co., (1851) 9 Ha. 129 ; 21 L. J. Ch. 337.

(n) Croome v. Lediard, (1834) 2 M. & K. at p. 260; 3 L. J. N. S. 98; and see Merchants' Trading Co. v. Banner, (1871) 12 Eq. 18 ; 40 L. J. Ch. 515 ; and see sup. p. 1052.

(o) Green v. Low, (1856) 22 Beav. G25.

And in cases against public companies, the Court will not consider the hardship inflicted upon individual members, if the contract be enforced, but will look to the rights and liabilities of the corporation itself (r).

Hardship on members of a corporation.

Hardship, in order to constitute a sufficient defence, must, as a general rule, be proved to have existed at the date of the contract (s) ; unless, perhaps, it has been occasioned by the subsequent acts of the party seeking specific performance.

Hardship when ascertained.

Equity will refuse to enforce a contract procured by fraud (t), or duress, or one entered into under a common mistake (u), or, in many cases, a mistake only by the defendant (r) ; or under the influence of surprise (y); or one