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Page:Harvard Law Review Volume 1.djvu/376

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will not be conducive to justice. If it appear, therefore, that the plaintiff has overreached the defendant, or has taken advantage of his ignorance or inexperience, or has driven a “hard bargain” with him,—in short, if it appear that he has not exercised entire good faith towards the defendant in obtaining the contract, though he have been guilty of no such fraud as would prevent his recovering at law, yet equity will leave him to such damages as a jury will give him.

Thirdly, equity considers it as unjust for a defendant to be kept in uncertainty and suspense as to whether he will be required to perform the contract or not; as to whether, e. g., he is to keep his estate or convey it to the plaintiff. In particular, equity considers it as unjust for the plaintiff to speculate at the defendant’s expense,—to sue at law or in equity, according as events happening after the breach of the contract render specific performance or damages most for his interest. If, therefore, there is satisfactory evidence that a plaintiff is seeking specific performance only because of events which have happened since the contract was broken, the bill will be dismissed. And, even in the absence of any such evidence, a plaintiff’s bill will be dismissed, on the ground of laches, unless it was filed promptly, and has been prosecuted with diligence.[1] The amount of delay which will constitute laches cannot, indeed, be precisely defined, as it varies according to circumstances; but the only safe course for a plaintiff who desires specific performance is to use as much diligence as is reasonably practicable.

The power of a court of equity to enforce specific performance is of course limited by the defendant’s ability to perform; nor can a defendant be imprisoned for not performing a decree which he is unable to perform, as he is guilty of no contempt. If, therefore, the cooperation of a third person be necessary to the performance of a contract, it is a sufficient excuse for the defendant that such third person refuses to coöperate, even though the defendant expressly bound himself to procure his coöperation; and this rule holds, even though the third person be the defendant’s wife. Mere poverty, however, is not an inability which any court can recognize; and therefore inability is never an excuse for not performing a decree for the payment of money.


  1. If, however, a vendee of land be in possession of the land under the contract, the rule stated in the text will not apply. Mills v. Haywood, 6 Ch. D. 196, 202.