to do so when the contract was made, this is immaterial ante. parties 3391. Specific performance cannot be enforced What against a party to a contract in any of the following cases: 1. If he has not received an adequate consideration for the contract; 2. If it is not, as to him, just and reasonable; 3. If his assent was obtained by the misrepresentation, concealment, circumvention, or unfair practices of any party to whom performance would become due under the contract, or by any promise of such party which has not been substantially fulfilled; or; 4. If his assent was given under the influence of mistake, misapprehension, or surprise, except that cannot be compelled to perform. Same. where the contract provides for compensation in case of mistake, a mistake within the scope of such provi sion may be compensated for, and the contract specifically enforced in other respects, if proper to be so enforced. NOTE.-Subd. 1.-This rule was expressly adjudged, upon full consideration, by Chancellor Kent, in Seymour vs. De Lancey, 6 Johns. Ch., p. 222, and sustained by Savage, C. J., and nine Senators, on appeal (3 Cow., p. 445), on a point to which such a decision was essential, while it was admitted by the Senator who delivered the opinion of the fourteen who voted for reversal. It was also reaffirmed in Slocum vs. Closson, 1 How. App. Cas., pp. 705, 751, 758; and is expressly adjudged in Falcke vs. Gray, 4 Drewry, p. 651. To the same effect are Clitherall vs. Ogilvie, 1 Dess. Eq., p. 257; Day vs. Newman, 2 Cox Ch., p. 77; White vs. Damon, 7 Ves., p. 30; Heathcote vs. Paignon, 2 Bro. C. C., p. 167. But compare Callaghan vs. Callaghan, 8 Cl. & F., pp. 374, 401; 4 Ir. Eq., p. 441; Prebble vs. Boghurst, 1 Swanst., p. 329; Coles vs. Trecothick, 9 Ves., p. 246; Collier vs. Brown, 1 Cox Ch., p. 428. There is no doubt that the contract must have at least a meritorious consideration.-Minturn vs. Seymour, 4 Johns. Ch., p. 497; Woodcock vs. Bennet, 1 Cow., p. 711; Acker vs. Phoenix, 4 Paige, p. 205; Hayes vs. Kershow, 1 Sandf. Ch., p. 258. There is a late case directly in point-decision by Wallace. Subd. 2.-Seymour vs. De Lancey, 3 Cow., p. 445; 6 Johns, Ch., p. 222; Slocum vs. Closson, 1 How. App. Cas., pp. 705, 751; Brashier vs. Gratz, 6 Wheat., p. 528; Harnet vs. Yeilding, 2 Sch. & Lef., p. 549; Lynch vs. Bischoff, 15 Abb. Pr., p. 357 n.; see Denne vs. Light, 8 De G., M. & G., p. 774. There is no reason for refusing a specific performance in favor of the party as to whom the contract is oppressive. Subd. 3.-"Misrepresentation." An innocent misrepresentation is good cause for refusing a specific performance (Best vs. Stow, 2 Sandf. Ch., p. 298; Clermont vs. Tasburgh, 1 Jac. & W., p. 112; Cadman vs. Horner, 18 Ves., p. 10; see Drysdale vs. Mace, 5 De G., M. & G., p. 103); much more a representation known to be false, though not made with a fraudulent intent.-Price vs. Macaulay, 2 De G., M. & G., p. 139. "Concealment."-Shirley vs. Stratton, 1 Bro. C. C., p. 440. "Circumvention."-Phillips vs. Duke of Bucks, 1 Vern., p. 227. "Unfair practices."-O'Rourke vs. Percival, 2 Ball & B., p. 62; see Mason vs. Armitage, 66 VS. Subd. 4.-" Assent under mistake."-Coles Bowne, 10 Paige, p. 526; Schmidt vs. Livingston, 3 Edw., p. 213; Malins vs. Freeman, 2 Keen, p. 25; Webster vs. Cecil, 30 Beav., p. 62; compare Swaisland vs. Dearsley, 29 Beav., p. 430. "Misapprehension."-Hamilton vs. Grant, 1 Bligh (N. S.), p. 594; 3 Dow, p. 33; Ricketts vs. Bell, 1 De Gex & S., p. 346. "Surprise."-See Seymour vs. DeLancey, 3 Cow., p. 445; Mathews vs. Terwilliger, 3 Barb., p. 50; see note to Sec. 3384, ante. parties have specific ance in 3392. Specific performance cannot be enforced in What favor of a party who has not fully and fairly performed cannot all the conditions precedent on his part to the obliga- performtion of the other party, except where his failure to their favor. perform is only partial, and either entirely immaterial, or capable of being fully compensated, in which case specific performance may be compelled, upon full compensation being made for the default. NOTE.-Story Eq. Jur., Secs. 736, 771; Watt vs. Rogers, 2 Abb. Pr., p. 261; Jones vs. Lynds, 7 Paige, p. 301; Haight vs. Child, 34 Barb., p. 186. Thus the existence of a peppercorn rent on land sold as clear of incumbrance (Winne vs. Reynolds, 6 Paige, p. 407; see Ten Broeck vs. Livingston, 1 Johns. Ch., p. 357), or the liability of an estate to let in future children of a person who could not possibly give birth to a child (Miller vs. Macomb, 26 Wend., p. 229; 9 Paige, p. 265), may be disregarded.-Viele vs. Troy and Boston R. R. Co., 20 N. Y., p. 184; King vs. Bardeau, 6 Johns. Ch., p. 38; Winne vs. Reynolds, 6 Paige, p. 407; Guynet vs. Mantel, 4 Duer, p. 86; Clute vs. Robinson, 2 Johns., pp. 595, 614. Failure of title to two hundred and nine acres out of six hundred and ninety-eight, was held too great to be compensated.-Jackson vs. Ligon, 3 Leigh, p. 161. And in general the defect of 55-vol. ii. 8pecific perform ance not required performance must not be gross.-Shackleton vs. Sut- 3393. Specific performance cannot be compelled when it would operate more harshly upon the party ppressive. required to perform than its refusal would operate upon the party seeking it. when Agreement to sell property NOTE.-Webb vs. London and Portsmouth Railw. Co., 3 De G., M. & G., p. 521; rev'g S. C., 9 Hare, p. 129; Wedgwood vs. Adams, 6 Beav., p. 600. Thus, except under special circumstances, a party will not be compelled to do an act subjecting him to a forfeiture.-Peacock vs. Penson, 11 Beav., p. 355. 3394. An agreement for the sale of property cannot be specifically enforced in favor of a seller who has no title. cannot give to the buyer a title free from reasonable by one who Relief against parties claiming under person bound to perform. doubt. NOTE.-Sykes vs. Sheard, 9 Jur. (N. S.), p. 1262; Stapleton vs. Scott, 16 Ves., p. 272. 3395. Whenever an obligation in respect to real property would be specifically enforced against a particular person, it may be in like manner enforced against any other person claiming under him by a title created subsequently to the obligation, except a purchaser or incumbrancer in good faith and for value, and except, also, that any such person may exonerate himself by conveying all his estate to the person entitled to enforce the obligation. NOTE.-Story Eq. Jur., Sec. 788; Champion vs. Brown, 6 Johns. Ch., p. 398; Daniels vs. Davison, 16 Ves., p. 249; 17 id., p. 433; Taylor vs. Stibbert, 2 id., p. 437; Atcherly vs. Vernon, 10 Mod., p. 518. ARTICLE IV. REVISION OF CONTRACTS. SECTION 3399. When contract may be revised. 3400. Presumption as to intent of parties. 3402. Enforcement of revised contract. 3399. When, through fraud or a mutual mistake of the parties, or a mistake of one party, which the other at the time knew or suspected, a written contract does not truly express the intention of the parties, it may be revised on the application of a party aggrieved, so as to express that intention, so far as it can be done without prejudice to rights acquired by third persons, in good faith and for value. NOTE." Revision" is here used for the word "reformation" in our decisions. "When for fraud." De Peyster vs. Hasbrouck, 11 N. Y., p. 582; Wiswall vs. Hall, 3 Paige, p. 313. "Mutual mistake."-Johnson vs. Taber, 10 N. Y., p. 319; Bartlett vs. Judd, 21 id., p. 200; Haire vs. Baker, 5 id., p. 357; Gillespie vs. Moon, 2 Johns. Ch., p. 585; Keisselbrack vs. Livingston, 4 id., p. 144; Voorhees vs. De Meyer, 2 Barb., p. 37; Newcomb vs. Keteltas, 19 id., p. 608; Many vs. Beekman Iron Co., 9 Paige, p. 188; see N. Y. Ice Co. vs. Northwestern Ins. Co., 23 N. Y., p. 357; 12 Abb. Pr., p. 414; Gates vs. Green, 4 Paige, p. 355; De Riemer vs. Cantillon, 4 Johns. Ch., p. 85; Townshend vs. Stangroom, 6 Ves., p. 332; Henkle vs. Royal Assur. Co., 1 id., p. 317; Bradford vs. Union Bank, 13 How. (U. S.), p. 66; Story Eq. Jur., Sec. 155 to 161. The misapprehension of one party to a contract, if neither known nor suspected by the other, is not sufficient to warrant a revision of the contract.-Wright vs. Goff, 22 Beav, p. 207; Metropolitan Co. So. vs. Brown, 26 id., p. 454; Bradford vs. Romney, 30 id., p. 431; Mortimer vs. Shortall, 2 Dr. & War., p. 363; 1 Con. & L., p. 417; Diman vs. Providence, etc., R. R. Co., 5 R. I., p. 130. If the instrument expresses the "intention of the parties," it cannot be altered, even though that intention cannot be carried into effect.Leavitt vs. Palmer, 3 N. Y., p. 19. But an instrument which was drawn up under a mistake as to its legal effect, has been revised.-Walker vs. Armstrong, 8 When contract may be revised. |