In some cases specific performance may be obtained, where there is no right to damages.

(l) See above, p. 78, n. (k).

(m) Buxton v. Lister, 3 Atk. 383, 384.

(n) Above, pp. 958 sq.

(o )Harnett v. Yielding, 2 Sch. & Lef. 549, 553; Kenney v. Wex-ham, G Madd. 355, 357; Adderley v. Dixon, 1 S. & S. Got, 610; Falcke v. Gray, 4 Drew. 651, 657; Hi tier v. Pearce, 1900, 1 Ch. 341, 346; Fry, Sp. Perf. Sec. 62, 72, 3rd ed.

(p) Above, p. 31; Hexter v. Pearce, 1900, 1 Ch. 341, 346; Sudd v. Lascelles, ib. 815, 817.

(q) Above, pp. 31, 32, 157 -160, 165 - 168, 685, 693, 694, n. (u), 695, n. (z), 743.

(r) Above, pp. 933 - 935, 946, 973 - 975.

(s) Above, p. 946.

(f) Above, p. 11, n. (b).

Denial of the formation of the contract.

(u) Above, pp. 36, 634, 635, G79, 680.

(v) Above, pp. 47 - 49, 506 -508, 726, 973-975.

(w) Above, pp. 1, 2, 665, 784.

(x) Above, p. 94G.

(y) Above, pp. 973 - 975.

(s) See above, pp. 5 - 17; Fry, Sp. Perf. Sec. 277, 3rd ed. And note that the defence mentioned by Sir E. Fry of the incompleteness of the contract really amounts to a denial either of the formation or of the enforceability of the contract: Fry, Sp. Perf. Sec. 337 sq., 3rd ed. It is true that under this head (Sec. 355 sq.) the learned author discusses the case of a contract to sell at a price to be fixed by some valuer, or two valuers or their umpire; when as a rule the contract is not enforceable unless the price has first been so fixed; above, pp. 50, 51. But in this case the contract to sell is made subject to the condition precedent that the price shall be so fixed, and the condition is such that from its very nature the Court cannot enforce its specific performance; see above, p. 913, below, p. 991, n. {u). It should be noted that if the Court consider that the stipulation as to the manner of ascertaining the price is not essential, and that the real agreement is to sell at the fair value, it will direct a reference to ascertain the price; Milnes v. Gery, 14 Ves. 400, 407; Gregory v. Mighell, 18 Ves. 328, 333; Gourlay v. Somerset, 19 Ves. 429,431; above, p. 51. And the Court has arrived at this result where the main contract has been to buy some land at a fixed price, and there has been a subsidiary agreement to purchase fixtures at a valuation; Jackson v. Jackson, 1 Sm. & Gr. 184; cf. Darbey v. Whitaker, 4 Drew. 134; and see Richardson v. Smith, L. R. 5 Ch. 648, 652, 654.

Denial of its enforceability-.

Denial of its validity.

Discharge from the contrast.

(a) Seagood v. Meale, Prec. Ch. 560; above, pp. 3 - 9; Fry, Sp. Perf. Sec. 498 sq., 3rd ed.

(b) Above, pp. 9 - 11,988; Fry, Sp. Perf. Sec. 561 sq., 3rd ed.

(c) Above, p. 946; Fry, Sp. Perf. Sec. 1071 sq., 3rd ed.

(d) Above, p. 974.

(e) Above, pp. 689, 695.

(f) Above, p. 777; Fry, Sp. Perf. Sec.477 sq., 3rd ed.

(q) Above, p. 782; Fry, Sp.

Perf. Sec. 477, 3rd ed.

(h) Above, pp. 728, 730 sq.

(i) Above, pp. 756 sq.

(k) Fry, Sp. Perf. Sec. 1020, 1059, 3rd ed.

(l) Above, pp. 784 sq.; Fry, Sp. Perf. Sec. 270 sq., 487 sq., 3rd ed.

(hi) Above, pp. 874 sq.

(n) Above, pp. 907 sq., 975.

(o) Above, pp. 478, 4 79, 483, 921, 922, 942.

Denial of the breach.

"We will now consider what defences may be set up against a claim for specific performance of the agreement which would not be available to bar an action for breach of the contract at law.

Defences to a claim for specific performance which would not be available at law.

We must first notice the defence that the contract is not of that kind which the Court will order to be specifically performed (t) - in other words, that the Court has no jurisdiction so to enforce it (u). We have seen (x) that this plea is inapplicable to a simple sale (y) of land. But an agreement partly in the nature of a sale of land may contain some stipulation which by itself alone the Court will not enforce specifically, as an agreement of personal service or employment (z), or to build [a), or to repair (b), or to do continuous acts, as to work mines (c); and it must be considered how far this defence is available where an agreement of this kind is incorporated in a sale of land.

Defence that the Court has no jurisdiction to grant specific performance.

(p) Above, p. 975; Fry, Sp. Perf. Sec. 922 sq., 3rd ed.

(q) Above, pp. 988, 989; Fry, Sp. Perf. Sec. 50, 51, 3rd ed.

(r) Above, pp. 933, 975.

(s) Above, pp. 946, 987.

(t) See Fry, Sp. Perf. Chap. II. Sec. 47 sq., 3rd ed.

(u) The following are the grounds on which the Court has refused to assume jurisdiction so to interfere: (1) that the common law remedy exists and is adequate; (2) that the contract is from its nature such as the Court cannot perform; (3) that it would be useless to enforce specific performance; (4) that the Court would be unable to enforce its own judgment; (5) that the enforced performance of the contract would be worse than its non-performance; and (6) that the agreement, though made by deed, is voluntary. On the first ground, the Court declined to assume the jurisdiction in the case of ordinary mercantile contracts for the sale of goods, or contracts for the sale of Government stock: but jurisdiction to order the specific performance of a sale of goods was conferred by the Sale of Goods Act, 1893 (stat. 56 & 57 Vict. c. 71), s. 52. The second ground appears to comprehend the case of a sale of land at a price to be named by a single not specifically enforceable.

Contract for sale of land comprising a stipulation whether the stipulation is to bo performed by the plaintiff or the defendant; for though the plaintiff might submit to perform it, the Court could not enforce it specifically, if he failed to observe his submission (f). Thus, if part of the consideration for a contract to convey land be an agreement of personal service or employment, or to do continuous acts, as to work mines, the Court will not order the contract to be specifically performed (g). If, however, a contract contain an agreement to sell land, together with other stipulations, and be made in such terms that the contract for the sale of the land is complete in itself and severable from the rest of the agreement, the sale alone may be specifically enforced (h). In such cases the question, whether the sale is complete in itself and severable from the rest of the agreement, is, of course, a question of the parties' intention, to be gathered from the terms of the agreement (h). And where the stipulation really is, not that the contractor shall do acts which the Court would not enforce specifically, but that he shall covenant to do such acts, the rule does not apply, as the Court will oblige him to execute a deed of covenant (i). Where the stipulation is for the plaintiff's benefit, so that he might have waived it and then enforced the contract specifically (k), and it is not performed owing to the defendant's default, the Court may, since Lord Cairns' Act (l), order specific performance of the rest of the contract, and give damages for breach of the stipulation (m). The rule regarding building contracts (n) is subject to the exception that the Court will specifically enforce an agreement to erect buildings or execute other works on land where these conditions are satisfied: (1) that the works to be carried out be sufficiently ascertained; (2) that the plaintiff's interest in their completion be such that damages would be no adequate compensation for non-performance of the agreement; and (3) that the defendant be in possession of the land on which the works are to be done (o). If, therefore, a stipulation be made on the sale of land that the purchaser shall erect a house or other buildings, or make a road, on the land sold (p), and the land be conveyed or possession thereof be given to him pursuant to the contract, the agreement to build may be specifically enforced against him, provided it be sufficiently certain and the vendor's interest in its performance would not be adequately satisfied by payment of damages (q). This would be the case where the sale was made in consideration of a rentcharge to be reserved to the vendor (r), or where he would have an interest in the use or maintenance of the buildings, works, or road, either by way of reservation or as an adjoining landowner, or as one of the public (s). On the same principle, where it is part of an agreement to sell land that the vendor shall execute works on adjoining land of his own, the agreement may be specifically enforced against him (t). It may be observed that the exception thus established seems to do away with the alleged ground of the rule (u) as to the non-enforcement of building contracts, viz., that the Court could not carry out its judgment (x); and there is some authority to the effect that the Court has jurisdiction to order specific performance of a building contract if sufficiently certain (y). But in the latest case upon the subject the rule was affirmed by the Court of Appeal, and the exception defined as above stated (z).