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cannot specifically perform, it is
yet a case in which the Com-t will
restrain the defendants from

breaking the contract I

am not entirely without assistance
from authority, because it appears
to me that this very case has been
put, though only by way of illus-
tration by a ver}'^ great Judge,
Lord Cottenham, in Heathcote v.
North Staffordshire Railway Com-
X>ani], (2 Mac. & G. 112), where he
says : * If A. contract with B. to
deliver goods at a certain time
and place, will equity interfere
to prevent A. from doing anything
w^hich may , or can prevent him
from so delivering the goods ? '
That is the exact case I have to
deal with, because I have decided
that the contract is a contract for
the delivery of goods. Finding
the dictum of Lord Cottenham
express on the subject, and the
plaintiff's counsel not having been
able to produce to me any autho-
rity in which there has been such
an injunction granted on the sale
of goods, or any chattel, in a case
in which specific performance
could not be granted, I think I



856



CUDDEE V. EUTTEE.



shall do right in followmg that
authorit}'; and I say, although I
say it with much regret, that it is
a case in which equity can afford
no relief."

In the following cases, however,
it has been held, that, as damages
at law could not be correctly esti-
mated, or would not furnish a
complete and adequate remedy for
the non-performance of a contract
relative to personal property,
equity ought to decree siiccific
performance. In Taylor v. Ne-
rille, cited in Buxton v. Lister,
3 Atk. 384, specific performance
was decreed of a contract for sale
of 800 tons of ii'on, to be delivered
and paid for in a certain number
of years, and by instalments ; and
the reason given by Lord I lard -
wicke is, "that such sort of con-
tracts differ from those that are
immediately to be executed ; " and
they do differ in this respect, tliat
the profit upon the contract, being
to depend upon future events, can-
not be correctly estimated in da-
mages, where tlie calculation must
proceed upon conjectui'e. In such
a case, to compel a party to accei)t
damages for the non-performance
of his contract, is to compel him
to seU the actual profit which may
arise from it at a conjectural price.
In Ball V. Cocjgs, 1 Bro. P. C. 140,
Toml. ed., specific performance
was decreed, in the House of Lords,
of a contract to pay the plaintiff' a
certain annual sum for his life,
and also a certain other sum for
every himdredweight of brass wire



manufactured by him during bis
life as manager of certEiin mills
belonging to the defendants ; for
damages might be no complete
remedy, being to be calculated
merely by conjecture: and to
compel the plaintiff, in such a
case, to take damages, would be
to compel him to sell the annual
proN-ision during his hfe, for which
he had contracted, at a conjectural
price. In Buxton v. Lister, 3 Atk.
385, Lord Ilarduickc puts the ca.se
of a ship-carijenter purchasing
timber which was peculiarly con-
venient to him by reason of its
vicinity, and also the case of an
owner of land covered with timber
contracting to sell his timber in
order to clear his land ; and
assumes that, as in both those
cases damages would not, by
reason of the special circum-
stances, be a complete remedy,
eipiity would decree specific per-
formance — Per Sir J. Leach, V.C,
1 S. & S. 610. In Thorn v. The
Commissioners of Pithlic M'orhs,
32 Beav. 490, Lord IlomiUi/,
M. H., decreed specific perform-
ance of a contract to pm'cliase the
arch stone, spandrill stone, and
the Bramley Fjill stone contained
in the old Westminster Bridge.
See also Pollard v. Clayton, 1 K.
& J. 462 ; and tlie comments
therein of Sir Tf. Par/c Wood,
V, C, on Taylor v. Xeville, and
Buxton V. Lister, lb. p. 474.

So a contract for the ]nnThase
of articles of unusual beauty,
rarit}', and distinction, such as



CUDDEE V. EUTTER.



857



objects of vii'tu, will be enforced,
as damages would not be an ade-
quate compensation for non-per-
formance — per Kindersley, V. C,
in Falcke v. Gray, 4 Drew. 658.

Upon the ground that the re-
medy ought to be mutual, a court
of equity will, upon a bill filed
by a vendor, enforce specific per-
formance of a contract to pur-
chase debts, although he seeks
only for payment of the purchase-
mone3\ Thus in AddcrUy v.
Dixon, 1 S. & S. 607, the plain-
tiffs, having pm'chased and taken
assignments of certain debts
which had been proved mider
two commissions of bankruptcy,
agreed to sell them to the defend-
ant for 2s. 6d. in the pound. Sii"
JoJni Leach, V. C, compelled a
specific performance of the agree-
ment at the suit of the vendor.
" The present case," observed his
Honor, "being a contract for the
sale of the micertain diA^dends
which may become payable from
the estates of the two bankmpts,
it appears to me, that, upon the
prmciple established by the cases
of Ball V. Coggs, and Taylor
V. Neville, a court of equity will
decree specific performance, be-
cause damages at law cannot
accurately represent the value of
the futm'e dividends ; and to
compel this purchaser to take
such damages would be to compel
him to sell those dividends at a
conjectm'al price. It is true, that
the present bill is not filed by the
purchaser, but by the vendor,



who seeks, not the uncertain
dividends, but the certain sum to
be paid for them. It has, how-
ever, been settled by repeated de-
cisions, that the remedy in equity
must be mutual, and that where a
bill will lie for the purchaser, it
will also lie for the vendor." So,
in Wright v. Bell, 5 Price, 325,
Dan. Ex. Eep. 95, a specific per-
formance of a contract to pur-
chase a debt was enforced.

In Withy v. Cottle, 1 S. & S.
174, a demurrer to a biU filed
by the vendor for the specific per-
formance of an agreement for the
purchase of an annuity j^ayable
out of the dividends of stock stand-
ing in the name of the Accountant-
General of the Court of Chancery,
was overruled by Sir John Leach,
V.-C. " There can be no doubt,"
observed his Honor, " that the
defendant, who is the pm-chaser of
this annuity, might have filed a bill
for the specific performance of the
agreement for sale to him, because
a court of law could not give him
the subject of his contract, and the
remedy here must be mutual for
purchaser and vendor : " and see
Clifford V. Turrell, 1 Y. & C. C. C.
138, 9 Jur. 633.

And a court of equity will, on
behalf of a vendor of life annuities,
enforce specific performance of the
contract, by compelling payment
of the purchase-mone}^ even after
the death of the annuitant : at any
rate, where there are arrears of the
annuity due, sufficient to support
a biU filed by the annuitant. It



858



CUDDEE V. RUTTEK.



is true that a court of equity
entertains a suit for specific per-
formance by a imrchaser in order
to give him the very subject of his
contract; nevertheless, although
the demand of the vendor be
merel}" for a sum of money, it will
entertain a similar suit for him,
upon the prmciple that the reme-
dies ought to be mutual. Kenncy
V. Wexham, 6 Madd. 355, 357.

And where there is a valid con-
tract for the sale of a patent, the
Court will specifically enforce it,
in a suit b}'^ a purchaser against
the vendor, and will make the
latter execute an assignment. The
opposite also is equally true, that
the vendor may come into equity
for the purchase-money : Cugcnt
V. Gibson, 83 Beav. 557.

In contracts relating to com-
modities fluctuating from day to
day in market price, the Court
expects persons to be unusually
vigilant and active in asserting
their right to specific performance,
which it is inequitable to grant
after a delay on the part of the
plaintiff, and when the parties
may be no longer in the same
position. Pollard v. Clayton, 1
K. & J. 462.

And a court of equity will not
only entertam suits for specific
performances of contracts by
vendors in ordinary cases where
the price is named, but also
where land has been taken by a
railway company, and the price
ascertained by a jury. See Doherty
V. Watcrfoni and Limerick Rail-



ivay Company, 13 Ir. Eq. Rep.
538. "A legal remedy," said Lord
Chancellor Brady, exists to re-
cover the money ; but it is a
fallacy to say that, because the
plaintiff insists upon the specific
pei'formance of the contract — and
that is the decree the Court is
called on to make — the parties
should go to law. There must
exist mutuality ; the company could
tile a bill to compel the transfer,
and the plaintifl' accordingly has
the right to insist upon this spe-
cific perfonnance of the contract."
And where a railway company
has given notice to treat for land
to the landowner, and the price
of the land lias been fixed by the
landuwiK-r and the company {Ex
parte Hawkins, 13 Sim. 569) or
by arbitrators under the Lands
Clauses ConsoHdatiou Act, the
railway company is in the same
position with regard to the land-
owner as an ordinary pmchaser,
and will be compelled by a court
of equity to complete the purchase
{Ilarrcy v. Mctropulitan liailuay
Company, 7 L. R. Ch. App. 154.
"\Vhei»e a railway company, after
having given notice to treat, has
paid the purchase-money for lease-
holds, and has, with the consent
of the lessee, been admitted into
possession, it will at the suit of the
lessee withm a reasonable time, be
compelled to accejit an assignment
containing the usual covenants.
Ih. See also Harding v. The
Metropolitan Railnay Company,
20 W. R. (L. C.) 32L



CUDDEE V. RUTTER.



859



Interest at 4 per cent, is pa3'able
by a railway company ui)on the
purchase or compensation money
from the time of their taking
possession of the land under their
statutory powers, and not merely
from the subsequent period of
ascertaining the price by the
verdict of a jury. The reason for
this rule is, that from the time
when the railway company exer-
cised their statutory rights and
took possession of the laud which
belonged to the plaintiffs, they
became the owners of the land,
and from that day the plaintiffs
became the owners of the price
jjayable for the land. Hhys v.
Dare Valley Railway Comjyany,
19 L. R. Eq. 93, 95.

When a railway company has
given notice to a landowner to treat
for a portion of a piece of land,
and the latter has given notice to
the company to take the whole, if
on a bill filed by the landowner for
a declaration made in accordance
with his notice, such declaration is
made reserving further considera-
tion, and upon inquiry the title is
found to be good, the Court has
made an order compelling the
company to take the necessar}^
steps for ascertaining the value of
the whole of the land, for pay-
ment of the value so ascer-
tained, and for the execution of
a conve3'ance to the company
{Marson v. The London, Chatham,
and Dover Railway Company,
7 L. R. Eq. 546, 6 L. R. Eq.
101) ; but if the railway company,



after a bill has been filed by the
landowner for a declaration that
the}^ should not take a part witliout
taking the whole of his land, give
notice of their intention to with-
draw from the notice to treat, even
although they may, previous to the
filing of the bill, have given notice
of their intention to apply for the
appointment of a surveyor to
ascertain the value of the whole
of the land, the Court will not
decree specific performance, inas-
much as a mere notice of inten-
tion to apply for the appointment
of a surveyor did not amount to a
binding contract by them to take
the propert}', and that they were
therefore at liberty to withdraw
their notice to treat. Grierson v.
Cheshire Lines Committee, 19 L. R.
Eq. 83.

Although courts of equity,
as we have seen, will not ordi-
narily decree specific performance
of contracts to purchase chattels,
if damages at law will be an ade-
quate compensation; nevertheless,
if a trust be created, the circum-
stance that the subject matter to
which the trust is attached is a per-
sonal chattel, will not prevent the
Court from enforcing the due exe-
cution of that trust, not only
against the trustees themselves, but
against all persons who obtain pos-
session of the property affected by
the trust, provided they had notice
of the trust. Pooley v. Budd, 14
Beav.84, 43,44, per Sir J. Romilly,
M. R. "For instance, if a
man about to contract marriage,



860



CUDDEE V. EUTTEE.



and iDOSsessecT of a large and
valuable quantity of iron, lead, or
copper ore, assigned that ore to
the trustees of the settlement, in
trust to sell and invest the pro-
ceeds, and hold the proceeds when
invested, upon the trusts of the
settlement, there can be no ques-
tion but that this Court would,
before the sale, compel the posses-
sor of the ore and the trastees of the
settlement to fulfil every part of the
tnist which one had undertaken
to constitute, and the other had
midertakento execute." Ih. p. 43.
So where a person had by agi-ee-
ment declared himself to be the
trustee of stock f(U' another per-
son, with whose money it had
been purchased, it was held, that
tlie doctrine acted upon in the
principal case was not applicable,
and a transfer was compelled to
the person beneficially entitled.
Stanton v. Percival, 5 H. L. Cas.
257, 268.

In the case of Dolorct v. Eotlis-
child, 1 S. & S. 590, it was held
by Su' John Leach, V. C, that a
bill would lie for the specific per-
formance of a contract for the pur-
chase of Neapolitan stock, where
it prayed for the delivery of the
certificates which would constitute
the plaintiif proprietor of a certain
quantit}^ of stock ; '* because," said
his Honor, " a couii of law could
not give the property, biit could
only give a remedy in damages,
the beneficial effect of which must
depend upon the personal respon-
sibility of the party. I consider,



also, that the plaintiff, not being
the original holder of the scrip,
but merely the bearer, may not be
able to maintain any action at law
upon the contract, and that if he
has any title, it must be in
equity."

In Dunaift v. Albrccht, 12 Sim.
189, specific performance of a
l^arol agi'eement for the sale of
some railway shares was decreed
by Sii' L. ShadweU, Y. C. "The
only question," obseiTed his
Honor, " is, whether there has
been any decision from whence
you can extract a conclusion that
the Court will not decree a spe-
cific performance of an agreement
for the sale of such shares. Now,
I agree that it has been long
since decided, that j'ou cannot
have a bill for the specific per-
fuimance of an agreement to
transfer a certain quantity of
stock. But, in my opinion, there
is not any sort of analogy between
a quantity of 3/. per Cents, or any
other stock of that description
(which is always to be had by any
person who chooses to apply for it
in the market), and a certain num-
ber of railway shares of a parti-
ticular description, which railway
shares are limited in nimiber, and
which, as has been observed, are
not always to be liad in the
market." This decision was, on
the 23rd of July, 1841, afiirmed
by the Lord Chancellor. And see
Shair V. Fi>ihrr, 2 Do G. & Sm.
11 ; IVihon v. Kcatin<], 7 W. R.
(M. R.) 484.



CUDDEE V. RUTTER.



8G1



And specific performance has
been decreed of a contract for the
sale of shares in a joint stock
company, althouf^h there was a
provision in the deed of settle-
ment " that no shareholder should
be at liberty to transfer his shares
except in such manner as a board
of directors should approve." See
Poole V. Middleton, 29 Beav. 646,
where the Master of the Rolls
said that he did not say whether
the plaintiff would become a share-
holder unless the board of direc-
tors approved of the manner in
which the transfer was made.
That the mode of transfer must
be approved by the board, who
could not exercise an arbitrary
and unreasonable will on such
an occasion, or reject the mode
of the transfer, in that instance,
which they approved and allowed
in other cases.

But the Com't will not ordina-
rily compel specific performance
of a contract to sell shares, where
the assent of the directors is
necessary in order that the pur-
chaser's name be placed upon the
register, and they refuse to give it
{Bermingham v. Sheridan, 33 Beav.
660 ; Re Gresham Life Assurance
Society, 8 L.R. Ch. App. 446), but
if the du'ectors wantonly or for
some idle and foohsh reason re-
fused to admit a pm'chaser, the
Court might compel them to do so,
and compel specific performance of
the contract : 33 Beav. 665, and see
Robinson v. The Chartered Bank,
1 L. R. Eq. 32. Again a contract



of this nature might exist : — A
purchaser might say to a vendor,
" I will buy 3'our 1000 shares
in this company ; if the directors
do not chose to assent to my
being put on the list of share-
holders, we cannot compel them
to do so ; nevertheless, as be-
tween ourselves, there shall be
this contract : — we will act exactly
as if the shares had been sold
to me, and I had been accepted
as a shareholder. You shall pay
me all the future dividends, and
I will pay every future call, and
indemnify you from every li-
ability : " per Sir John Romilly, M.
R., 33 Beav. 665.

An agreement to accept a trans-
fer of railway shares on which
nothing has been paid, may be
enforced as an agreement for
valuable consideration, in conse-
quence of the liabilities to which
the pm'chaser is subjected, and
from which the vendor is relieved
upon the transfer : Cheale v. Ken-
tvard, 3 De G. & Jo. 27.

And where specific performance
has been decreed of a contract to
purchase railway shares, the Court
will order the purchaser to pay the
calls that have been made since
the sale, to indemnify the vendor
against all future calls m respect
of the shares, and to take proper
measures to procure himself to be
registered : Wynne v. Price, 3 De
G. & Sm. 310 ; Shaw v. Fisher, 5
De G. M. & G. 596.

Where, however, a person pre-
vious to the passing of the Act of



862



CUDDEE r. EUTTEE.



Parliament authorising a proposed
railway, purchased some " scrip
certificates,'' and upon payment
of the purchase-money received
and returned the certificates,
though no particular contract was
entered into upon the occasion, it
was held by Lord Langdale, M. R.,
that after the Act had passed, the
purchaser was not bound to take
a transfer of the con-esponding
shares from the vendor, or to in-
demnify him from the amount of
calls subsequently made. " This,"
said his Lordship, "is called a
purchase of shares, when it is a
purchase of mere certificates, and
the question is, whether there is
a contract on the part of the de-
fendant to become a proprietor at
all events ? I cannot find it ex-
pressed, and I cannot raise it by
implication of law. There is not,
in my opinion, any evidence of
such an agreement as the plaintiff
seeks to have specifically per-
formed : and the bill must there-
fore be dismissed with costs."
Jackson v. Cocker, 4 Beav. G6.

An agreement to accept shares
in a joint stock company by a de-
fendant who fills up and signs a
form to that effect, will be speci-
fically performed against him in
equity {The Neiv Brunsivick and
Canada Railway and Land Com-
pany (Limited) v. Mmigc ridge, 4
Drew. 686) ; but to entitle the di-
rectors to relief, their proceedings
must be prompt {The Oriental In-
land Steam Comjmny {Limited) v.
Briggs, 2 J. & H. 625) ; and it



seems that specific performance
will not be decreed to take shares
where the partnership might be
immediately put an end to : The
Sheffield Gas Consumers^ Company
(Registered) v. Harrison, 17 Beav.
294, but see the observations on
this case in The Neiv Brunsuick
and Canada Railiiay and Land
Company (Limited) v. Muggeridge,
4 Drew. 686.

It is no objection to specific
performance, that a call may have
been made by the company upon
shareholders, of which call the
purchaser had no notice, at any
rate where there was no decep-
tion practised by tlie vendor :
Hawkins v. Malthy, 3 L. R. Ch.
App. 188, 4 L. R. Ch. App.
202.

AVhere, however, a person has
agreed to purchase shares, or even
if he has paid the purchase-
money and executed the transfer,
if he did so in ignorance tliat a
petition for winding up the com-
pany had been presented, a court
of equity would not decree specific
performance of the contract, or
render him liable as a contribu-
tory by directing his name to be
put upon the register: Emmerson's
Case, 1 L. R. Ch. App. 433.

So, where it is imjiossible that a
purchaser's name can be put upon
the register, the contract cannot be
carried into execution, because
part of the contract is, that the
name of the i>urchaser should be
put upon the register, and lliat
part cannot be performed. See



CUDDEE V. RUTTER.



863



Bermimjliam v. Sheridan, 33 Beav.
660.

The discretion of directors to
forfeit shares for non-payment of
calls is a trust to be exercised for
the benefit of all the shareholders ;
an agreement, therefore, on the
part of directors with a shareholder
to relieve him from further lia-
bility on his consenting to an ab-
solute forfeiture, will not be en-
forced if it appears not to have
been a proper exercise of the dis-
cretion on the part of the direc-
tors : Harris v. The North Devon
Railway Company, 20 Beav. 384.

It may be here mentioned, that
all contracts after the 1st of Jul}",
1867, for the sale of shares and
stock in joint stock banking
companies ai'e void, imless the
numbers by which such shares are
distinguished are set forth in such
contracts. 30 & 31 Vict. c. 29, s. 1.
An error in the distinguishing
numbers of shares in a transfer is
immaterial, as it may be afterwards
rectified. In re International
Contract Company, Ind's Case,
7 L. R. Ch. App. 485.

Much discussion has of late
taken place with reference to the
liability of stock -jobbers, or
buyers from them, towards the
vendors of shares.

It is now, however, finally
settled, after some conflict of de-
cisions, that the contract of a
jobber who purchases shares is,
that at the settling-day he will
either take the shares himseK, in
which case he would be bound to



accept and register a transfer and
to indemnify the vendor, or that
he will give him the names of one
or more transferees — names to
which no reasonable objection can
be made, — who will accept and pay
for the shares : Coles v. Bristoiue,
4 L. R. Ch. App. 11, per Lord
Cairns, L. C.

Not only will the jobber be
liable where he has not fur-
nished the names of proper trans-
ferees who accept the shares, but
also where other terms are added
to the original contract, which he
does not fulfil, by a complete
novation, or a substitution of
another contract for the original
contract, his Uability as principal
will remain. See Cruse v. Paine,
4 L. R. Ch. App. 441. There the
plaintiff, through his brokers,
agreed to sell to the defendants,
who were stock-jobbers, 100 shares
in a company. The sale note was
in the usual form, with the addi-
tion of the words ** with registra-
tion guaranteed." The defendants
before the da}" sent to the plaintiff's
brokers the name of a transferee
who duly paid the purchase-
money. The seller executed the
deed of transfer, and delivered it
to the transferee. The transferee
never registered the transfer, and
calls were made upon the seller.
Upon a bni being filed against
the stock-jobbers, for specific per-
formance and indemnity, it was
held by the Lord Chancellor (Lord
Hatherley), affirming the decision
of Sir G. M. Giffard, V. C. (6 L.



8G4



CUDDEE V. RUTTER.



E. Eq. 641), that the plamtiff was
entitled to a decree, inasmuch as
there was no novation or substitu-
tion of another contract for the
original contract. See also Maxted
V. Paine, 4 L. K. Ex. 203;
Grissell v. Bristowe, 4 L. R. C. P.
3G ; reversing S. C, 3 L. R. C. P.
112 ; Davis v. Haycock, 4 L. Pi.
Ex. 373.

Where, however, the jobber, in-
stead of taking the shares himself,
elects to perform the other alterna-
tive, and sends in names which are
accepted, and to which transfers
are taken and paid for by the
transferees or then' brokei's ; the
jobber is then and at that stage
reheved from fm-ther habHit)', and
the Hability to register and in-
demnify is shifted to the trans-
ferees. See Coles v. Bristoirc, 4 L.
Pt. Ch. App. 3 ; there the plaintiff,
a holder of 200 shares in a com-
pany, by his brokers contracted on
the Stock Exchange for the sale
of that number of shares to the
defendants, who were jobbers, for
a future day called settling-da}'.



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