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ticular damages or penalties has been made known to the seller, the buyer. is not entitled to recover their amount as a matter of right, though, if reasonable, the jury may assess the indemnity at that amount. Elbinger Co. v. Armstrong, L. R. 9 Q. B. 473; Grebert-Borgnis v. Nugent, 15 Q. B. D. 85 C. A.

a

"It is further submitted that, in order to entitle the buyer to claim exceptional profits arising from sub-sale, express notice of the amount of such profits must have been given to the seller at the time when the contract was made, under circumstances implying that he accepted the contract with the special condition attached to it. British Columbia Saw Mills Co. v. Nettleship, L. R. 3 C. P. 499; Horne v. Midland Ry. Co., L. R. 7 C. P. 583; Booth v. Spuyten Duyvil Rolling Mill Co., 60 N. Y. 487.

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(2) If at the time of the sale neither the sub-contract nor the intention to resell is made known to the seller notice of the sub-contract given to him subsequently will not render him liable for the buyer's loss of profits on such sub-contract; the buyer may either procure the best substitute for the goods as before, and fulfil his sub-contract, charging the seller with the difference in price, or abandon the sub-contract and bring his action for damages, when the ordinary rule will apply, and the jury must estimate, as well as they can, the difference between the contract price and the market value of the goods, although there is no market price in the sense that there is no place where the buyer can readily procure the goods contracted for, Williams v. Reynolds, 6 B. & S. 495; Thol v. Henderson, 8 Q. B. D. 457; but the sub-contract, although not brought to the knowledge of the

seller, may be put in evidence to show the real value of the goods. GrebertBorgnis v. Nugent, 15 Q. B. D. 89.

"(3) In every case the buyer, to entitle him to recover the full amount of damages, must have acted throughout as a reasonable man of business, and done all in his power to mitigate his loss. Dunkirk Colliery Co. v. Lever (1878), 9 Ch. D. 20; Hinde v. Liddell, L. R. 10 Q. B. 265; Warren v. Stoddart, 105 U. S. 224." Benjamin on Sales, § 877.

60. 2 Mechem on Sales, § 1772. For the seller's failure to deliver threshing machine, the buyer was allowed to recover the expense of caring for his grain, and loss by its exposure to the weather. Smeed V. Foord, 1 El. & El. 602. For failure to deliver machines, the buyer recovered losses from not being able to conduct his business. Abbott v. Hapgood, 150 Mass. 248. For failure to supply ice for an ice-chest in which a dealer kept fresh meat for sale, the buyer was allowed to recover loss of meat. Hammer v. Schoenfelder, 47 Wis. 455. For failure to supply water for a boiler used to heat a greenhouse, the buyer was allowed to recover for loss of plants by freezing. Watson v. Needham, 161 Mass. 404. To the same effect are Stock v. Boston, 149 Mass. 410. For failure to deliver furniture for a hotel the buyer recovered loss from inability to rent rooms. Berkey-Gay Furniture Co. v. Hascall, 123 Ind. 502, 8 L. R. A. 165.

61. 2 Mechem on Sales, § 1771.

62. Brigham v. Carlyle, 78 Ala. 243; Connorsville Wagon Co. v. McFarland Carriage Co., 166 Ind. 123, Sherman Center Town Co. v. Leonard, 46 Kan. 354; Fell v. Newberry, 106 Mich. 542; Duvall v. Ferwerda, 146 Mich. 13.

273; Parker v. Garrison, 61 Ill. 250; Clark v. Flint, 39 Mass. (22 Pick.) 231; Gloucester, etc., Co. v. Russia Cement Co., 154 Mass. 92, 12 L. R. A. 563; St. David's Church v. Wood, 24 Ore. 396; Fowler v. Sands, 73 Vt. 236; Stuart v. Pennis, 91 Va. 688; Young v. Porter, 27 Wash. 551; 2 Mechem on Sales, § 1718.

3. 2 Mechem on Sales, § 1718. 4. Southern Express Co. v. Western North Carolina Ry. Co., 99 U. S. 191; Treasurer v. Commercial Coal Mining Co., 23 Cal. 393; Brady v. Yost, 6 Idaho, 273; Parker v. Garrison, 61 Ill. 250, 253; Friebert v. Burgess, 11 Md. 452, 464; Clark v. Flint, 39 Mass. (22 Pick.) 231; Adams v. Messinger, 147 Mass. 185; Peer v. Kean, 14 Mich. 354; Furman v. Clark, 11 N. J. Eq. (3 Stockt.) 306, 311 (sale of clay); Stevens v. Wilson, 18 N. J. Eq. 447; Deen v. Milne, 113 N. Y. 303; St. David's Church v. Wood, 24 Ore. 396; Livesley v. Johnson, 45 Ore. 30; Livesley V. Hise, 45 Ore. 148; Smaltz's Appeal, 99 Pa. St. 310, 312; Goodwin Gas Stove & Meter Company App., 117 Pa. St. 514; Fowler v. Sands, 73 Vt. 236; Stuart v. Pennis, 91 Va. 688; Young v. Porter, 27 Wash. 551; Pooley v. Budd, 14 Beav. 34; Buxton v. Lister, 3 Atk. 383; 2 Mechem on Sales, § 1724; Benjamin on Sales, § 884; 3 Page on Contracts, § 1629.

"The ground of the jurisdiction of a court of equity in this class of cases, is that a court of law is inadequate to decree a specific performance, and can relieve the injured party only by a compensation in damages, which, in many cases, would fall far short of the redress which his situation might require. Whenever, therefore, the party wants a thing in specie, and he cannot otherwise be fully compensated, courts of

equity will grant him a specific performance. They will decree the specific performance of a contract for the sale of lands not because of the peculiar nature of land, but because a party cannot be adequately compensated in damages. So in respect to personal estate; the general rule that courts of equity will not entertain jurisdiction for a specific performance of agreements respecting goods, chattels, stocks, choses in action, and other things of a merely personal nature, is limited to cases where a compensation in damages furnishes a complete and satisfactory remedy. 2 Story's Eq. Jur., §§ 717, 718.

"The jurisdiction, therefore, of a court of equity does not proceed upon any distinction between real estate and personal estate, but upon the ground that damages at law may not, in the particular case, afford a complete remedy. 1 Story's Eq. Jur., §§ 716, 717, 718, and cases there cited. Clark v. Flint, 22 Pick. 231. When the remedy at law is not full and complete, and when the effect of the breach cannot be known with an exactness, either because the effect will show itself only after a long time, or for any other reason, courts of equity will enforce contracts in relation to

personalty." Corbin v. Tracy, 34 Conn. 316, 325, 327, 328.

"It is contended that a bill will not lie for the specific execution of a contract relating to personal chattels merely, because there is an adequate remedy at law; and for this position several cases are cited, and many more might be cited. As a general rule, it is true. As contracts for the delivery of corn, flour, stock in banks or in the funds, and the like, may be compensated by damages, courts of equity will leave the parties to their remedy at law. Buxton v. Lister, 3 Atk. 383; 2 Swift's Dig. 17. There

can be no difference between these five shares of bank stock and any other like number." Cowles v. Whitman, 10 Conn. 121, 124.

"Courts of equity will not, in general, decree performance of a contract for the sale of stock or goods, inasmuch as with the same money, either not paid, as in agreements to deliver goods on receiving the price agreed on, where the party agreeing to deliver fails to do so on tender of the money, or recovered in damages where the money has been paid, the same quantity of the stock or goods may ordinarily be purchased. But there are exceptions to the rule, and the Supreme Court of the United States seem inclined to give relief in equity by specific performance on contracts respecting personalty to a greater extent than that to which the Court of Chancery in England has yet gone." Kimball v. Morton, 5 N. J. Eq. 26, 29. Citing Mechanics' Bank v. Seton, 26 U. S. (1 Pet.) 299, 305; Cowles v. Whitman, 10 Conn. 121, 125.

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"There are many cases to be found where specific performance of contracts relating to personalty, have been enforced in chancery; and courts will only weigh with greater nicety contracts of this description, than such as relate to lands." Mechanics' Bank v. Seton, 26 U. S. (1 Pet.) 299, 305. Notwithstanding this general distinction between personal contracts for goods and contracts for lands, in some cases contracts for personal property are enforceable in equity, but the court will weigh such cases with greater nicety than those which relate to real property." Cutting v. Dana, 25 N. J. Eq. (10 C. E. Green) 265, 270.

"The jurisdiction of this court, to decree specific performance of contracts for sale of chattels, is as well settled as it is for those of the sale of realty, and is based upon the

same grounds, namely, the inability of the courts of law to give such remedy. And so the question, whether the court will, in a particular case, exercise its jurisdiction, is to be determined upon the same considerations in both cases, the most important being the question whether there is a full, complete and adequate remedy at law. And the reason why the jurisdiction is seldom exercised over sales of chattels is, that the remedy at law, in such cases, is usually adequate and satisfactory. Cutting v. Dana, 25 N. J. Eq. (10 C. E. Green) 265." Rothholz v. Schwartz, 46 N. J. Eq. 477, 481.

"We take it to be well settled that where there is an agreement to buy a specific chattel for a specific purpose and this purpose can only be answered by the delivery of the chattel itself; or where from the nature of the subject matter of the agreement the measure of damages must necessarily be uncertain; or where damages will not be as beneficial to the purchaser as the performance of the contract, equity will interfere and decree the specific performance of the contract, because in such cases an action at law for a breach of the contract will not afford the purchaser a complete and adequate remedy." Gottschalk v. Stein, 69 Md. 51. To the same effect are Frue v. Houghton, 6 Colo. 318; Brady v. Yost (1898), 6 Idaho, 273, 55 Pac. 542; Clark v. Flint, 39 Mass. (22 Pick.) 231; Cushman v. Thayer Mfg. Co., 76 N. Y. 365; Johnson v. Brooks, 93 N. Y. 337; Williams v. Montgomery, 148 N. Y. 519.

"The specific execution of a contract is not a matter of right. The application for that purpose is addressed to the discretion of the court, not, indeed. to be exercised in an arbitrary or capricious manner, but in conformity with the established rules of equity. A court will not in

terfere in this manner, unless the legal remedy is inadequate or defective." Meeker v. Meeker, 16 Conn. 403, 408. To the same effect are Williams v. Montgomery, 148 N. Y. 519; In re Argus Co., 138 N. Y. 57; Johnson v. Brooks, 93 N. Y. 337; Falcke v. Gray, 4 Drew, 658; Donnell v. Bennett, 22 Ch. D. 835.

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Applications of this character are addressed to the discretion of the court and will not be granted unless the contract is made according to the requirements of the law, and is fair, equitable, reasonable, certain, mutual, on good consideration. consistent with policy, and free from fraud, surprise, or mistake." Patterson v. Bloomer, 35 Conn. 57, 63.

In Scotland specific performance, or, as it is called, specific implement, is not an extraordinary, but an ordinary remedy of right, and may be demanded whenever applicable. Stewart v. Kennedy (1890), 15 App. Cas. 102, 105 H. L.

"It is a rule in equity that the court will not decree specific performance where it has no power to enforce the decree." Morris v. Peckham, 51 Conn. 128, 133.

Insolvency is not in itself a sufficient reason for decreeing specific performance, but it may be a persuasive factor in deciding the court to act. Livesley v. Johnson, 45 Ore. 30.

5. Savery v. Spence, 13 Ala. 561; Henderson v. Touchstone, 22 Ga. 1; Cohn v. Mitchell, 115 Ill. 124; Williams v. Howard, 7 N. C. (3 Murph.) 74; Saville v. Tankred, 1 Ves. Sr. 101; Fells v. Read, 3 Ves. Jr. 70; Lloyd v. Loaring, 6 Ves. Jr. 773; Lowther v. Lowther, 13 Ves. Jr. 95; 2 Mechem on Sales, § 1119.

"Where articles of personal

property are also peculiar and individual in their character, or have an especial value on account of the associations connected with them, as pictures, curiosities, family furniture, or heirlooms, specific performance of a contract in relation to them will be decreed." Adams v. Messinger, 147 Mass. 188. Citing Lloyd v. Loaring, 6 Ves. Jr. 773; Fells v. Read, 3 Ves. Jr. 70; Lowther v. Lowther, 13 Ves. Jr. 95; Williams v. Howard, 7 N. C. (3 Murph.) 74.

"This court (of chancery) has jurisdiction to enforce the restitution or delivery of a specific chattel which has a peculiar artificial value, and for which, therefore. adequate compensation cannot be obtained at law; and that, too, whether possession has been got by the wrongdoer through a trust or not. Storey's Eq. Jur., § 709; Wood v. Rowcliffe, 2 Phillips, 382. It was held that the jurisdiction is not confined to such cases, but extends to those where the party has obtained possession of chattels through an alleged abuse of power on the part of one standing in a fiduciary relation to the complainant.” Pattison v. Skillman, 34 N. J. Eq. (7 Stew.) 344, 347.

Complainant's furniture taken by sheriff and after payment of judg ment left in sheriff's possession until his death. Edwards v. Clay, 28 Beav. 145.

Furniture in mortgagee's hands. City Council v. Page, Spear's Ch. (S. C.) 159.

6. Pusey v. Pusey, 1 Vern. 273. See Nutbrown v. Thornton, 10 Ves. 163.

7. Duke of Somerset v. Cookson, 3 P. Wms. 389, 390.

8. Fells v. Read. 3 Ves. Jr. 70.