As a rule, where some stipulation which the Court cannot specifically enforce forms an integral part of an executory (d) contract, the Court will not decree specific performance of the rest of the agreement; for unless the Court can so enforce the entire contract, it will not grant this relief (e). And this is equally the case valuer or two valuers or their umpire; above, pp. 50, 51, 913, 989, n. (z). The fourth ground is the reason alleged for the rule that the Court will not specifically enforce a building or repairing contractor a contract to do continuous acts, as to work mines. On the fifth ground the Court will not order specific performance of a positive contract of service or employment. See Fry, Sp. Perf. Sec. 47 sq., 3rd ed. Sir Edward Fry also mentions among the limits of the jurisdiction the cases where the plaintiff has elected to pursue some other remedy (see above, pp. 969 - 971), and where the jurisdiction has been taken away by statute; but these are not grounds on which the Court has never assumed the jurisdiction; they are reasons why an assumed jurisdiction should not be exercised.

As a rule the Court will not order specific performance unless the entire contract can be so enforced.

(x) Above, pp. 987, 988.

(y) Above, pp. 1, 277, 369, n. (i).

(z) Pickering v. Bishop of Ely, 2 V. & C. C. 249, 267, 268; Stocker v. Brockelbank, 3 Mac. & G. 250, 2GG; Johnson v. Shrewsburn, etc. Ry. Co., 3 De G. M. & G. 914; Whitwood Chemical Co. v. Hardman, 1891, 2 Ch. 416, 426, 432; Fry, Sp. Perf. Sec.110 - 115, 3rd ed.

(a) Kay v. Johnson, 2 H. & M. 118, 124; Ryan v. Mutual Tontine, etc. Assn., 1893, 1 Ch. 116, 128; Wolverhampton Corpn. v. Emmons, 1901, 1 K. B. 515, 523, 524; Fry, Sp. Perf. Sec. 98, 3rd ed.

(b) Flint v. Brandon, 8 Ves. 159; Paxton v. Newton, 2 Sm. & G. 437, 440.

(c) Booth v. Bollard, 4 Y. & C. Ex. 61; Bollard v. Clayton, 1 K. & J. 462; Blackett v. Bates, L. R. 1 Ch. 117; Powell, etc. Co. v. Taff Vale By. Co., L. R. 9 Ch. 331; Fry, Sp. Perf. Sec. 99, 3rd ed.

(d) This rule has no application where an injunction is sought to restrain a breach of some stipulation contained in an executed contract; Wolverhampton, etc. By. Co. v. London and North Western By. Co., L. R. 16 Eq. 433, 439; Fry, Sp. Perf. Sec. 841 - 844, 3rd ed.

(e) Gervais v. Edwards, 2 Dr. & War. 80; Nickels v. Hancock, 7 De G. M. & G. 300, 327; Stocker v. Wedderbum, 3 K. & J. 393;

Where the stipulation is severable from the rest of the contract.

Where the stipulation is to covenant to do some act.

Where the stipulation is for the plaintiff's benefit, and is unperformed through the defendant's default.

Ogden v. Fossick, 4 De G. F. & J. 426; Merchants' Trading Co. v. Banner, L. R. 12 Eq. 18, 23; Fry, Sp. Perf. Sec. 821, 830 - 835, 3rd ed.

(f) Stocker v. Wedderburn; Ogden v. Fossick, ubi sup.; Fry, Sp. Perf. Sec. 834, 3rd ed. But if the stipulation is to be performed by the defendant, the plaintiff may waive its performance, and so obtain an order for the specific performance of the rest of the contract; Soames v. Edge, John.

669, 672, 673

(g) Above, p. 922.

(h) Croome v. Lediard, 2 My. & K. 251; Richardson v. Smith, L. R. 5 Ch. 648; Odessa Tramways Co. v. Mendel, 8 Ch. D. 235; Fry, Sp. Perf. Sec. 822.

(i) Granville v. Betts, 18 L. J. N. S. Ch. 32; Wilson v. West Hartlepool Ry. Co., 2 De G. J. & S. 475, 488, 495.

(k) Above, n. (f).

(I) Stat. 21 & 22 Vict. c. 27, which gave to the Court of Chancery jurisdiction to award damages in addition to or substitution for specific performance; see Lewers v. Shaftesbury, L. R. 2 Eq. 270. This Act was repealed by stat. 46 & 47 Vict. c. 49, but saving the jurisdiction thereby established; see Sayers v. Collyer, 28 Ch. D. 103, 107, 108.

Conditions in which a building contract will be specifically enforced.

(m) Soames v. Edge, John. 669; Samuda v. Lawford, 4 Gift'. 42; Kay v. Johnson, 2 H. & M. 118; Middleton v. Greenwood, 2 De G. J. & S. 142; London Corpn. v. South gate, 38 L. J. Ch. 141; Fry, Sp. Perf. Sec. 849, 850, 3rd ed.

(n) Above, p. 992.

(o) Wolverhampton Corpn. v. Emmons, 1901, 1 K. B. 515, 525, adopting the rule stated in Fry, Sp. Perf. Sec. 103, p. 46, 3rd ed., and based on Storer v. Great Western Ry. Co., 2 Y. & C. C. C. 48; Sanderson v. Cockermouth, etc. Ry. Co., 11 Beav. 497; Lytton v. Great Northern Ry. Co., 2 K. & J. 394; Wilson v. Furness Ry. Co., L. R. 9 Eq. 28.

(p) Above, pp. 427, 596.

(q) See Mosely v. Virgin, 3 Ves. 184, 186; Wilson v. Northampton, etc. Ry. Co., L. R. 9 Ch. 279.

(r) Above, pp. 595, 596; consider Mosely v. Virgin, 3 Ves. 184, where, however, specific performance was refused on the ground of uncertainty; Soames v. Edge, John. 669; London Corpn. v. Southgate, 38 L. J. Ch. 141; Cubitt v. Smith, 10 Jur. N. S. 1123.

It may be observed that the Court does not consider an agreement to pay a fixed sum, in case of a breach of contract (a), whether as a penalty or as liquidated damages, to be a good ground for ousting its jurisdiction to enforce specific performance (b). To effect this it is necessary that the agreement shall really be to do some act or else to pay a sum of money instead, so that it shall be in the election of the contractor to pay the money as a performance of the contract, and not as a penalty or as damages for its non-performance (c).

Agreement to pay a fixed sum as a penalty or as liquidated damages for breach of

(s) Price v. Penzance Corpn., 4 Hare, 506; and cases cited in n. (o), above.

(t) Consider Wells v. Maxwell, 32 Beav. 408, 9 Jur. N. S. 565, 1021.

(n) Above, p. 992, n. (u).

(x) See Collins, L. J., Wolverhampton Corpn. v. Emmons, 1901, 1 Q. B. 515, 524.

(y) Mosely v. Virgin, 3 Ves. 184, 185; Hepburn v. Leather, 50 L. T. 660. In the latter case Bacon, V.-C, decreed specific performance of a covenant by a purchaser contained in the conveyance to him to erect buildings on adjoining land of the vendor. It is submitted, however, that in this case damages would have been an adequate compensation to the vendor, who, on receiving the cost of the works, might have executed them on his own land without any loss to himself.