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Page:Harvard Law Review Volume 1.djvu/228

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a demand is not to impose on the defendant, as is necessarily true at law, a bill of costs in a case where, if his attention had been first called to the matter, an action could have been avoided. Waiving the technical difficulties, which seem to be as great in equity as at law, and the objections of public policy, which would seem to dictate that a Court should not encourage a course which would be productive of unnecessary litigation, the argument of hardship, which is so strong at law, does not prevail in equity. A precedent for allowing the bill to be filed without first making a demand is found in those cases where a contract has been made for the sale of real estate in which there are mutual and concurrent conditions, and where, if either party desires to bring an action at law, he must aver in his declaration and prove on the trial a conditional tender on his part, or a waiver by defendant of such tender. It has been held[1] in such cases that the plaintiff can file his bill in equity for specific performance without first making a demand, with the consequence that, although equity gives him a decree, it awards costs to the defendant. Now, in such a case, it seems as impossible to predicate a breach of contract by the defendant, as it is impossible to predicate of a defendant to whom money has been paid under mistake, an unjust enrichment before a conscious detention thereof. And, unless Courts of equity are willing to recognize the rule in regard to enforcing specific performance without a demand as an anomaly, it would seem difficult to do otherwise than apply the same rules to the case under discussion. The plaintiff’s claim being simply an equitable one, the rule that an equity cannot be enforced against a purchaser for value without notice can be invoked by a defendant who has innocently received money paid under a mistake.[2] Although it is beyond the scope of the present article to enter at length upon the question of what constitutes value, it may not be out of place to refer, in this connection, to the case of Newall v. Tomlinson,[3] especially as it is necessary to refer to the case on another point. In that case A and B, each acting for an undisclosed principal, but dealing with each other as principals, entered into a contract whereby A contracted to buy, and B contracted to sell, certain cotton. Weight-lists were furnished by


  1. Pomeroy’s Specific Performance of Contracts, § 363.
  2. See Ins. Co. v. Abbott, 131 Mass. 397; Southwick v. First National Bank, 84 N. Y. 420; Edgerton v. Youmans, 16 Hun, 28.
  3. L. R. 6 C. P., p. 405.