SPECIFIC PERFORMANCE. The actual performance of a contract by the party bound to fulfil it. As the exact fulfilment of an agreement is not always practicable, the phrase may mean, in a given case, not liter al, but substantial performance ; Waterm. Spec. Pert § 1.
Many contracts are entered into by parties to fulfil certain things, and then the con tracting parties neglect or refuse to fulfil their engagements. In such cases the party aggrieved has generally a remedy at law, and may recover damages for the breach of the contract ; but in many cases the recovery of damages is an inadequate remedy, and the party seeks to recover a specific performance of the agreement.
It is a general rule that courts of equity will entertain jurisdiction for a specific per formance of agreements, whenever courts of law can give but an inadequate remedy; and it is immaterial whether the subject relate to real or personal estate ; 2 Story, Eq. § 717; Porn. Contr. 28; 1 S. & S. 607; 1 P. Wms. 570; Porter v. Water Co., 84 Me. 195, 24 Al. 814. But the rule is confined to cas es where courts of law cannot give an ade quate remedy ; Finley v. Aiken, 1 Grant Cas. (Pa.) 83; Justices of Inferior Court of Dough erty Co. v. Croft, 18 Ga. 473; 2 Story, Eq. Sur. § 718; if there is an adequate legal rem edy, the court will refuse specific perform ance, unless under all .the circumstances it would be inequitable and unjust to do so; Simon v. Wildt, 84 Ky. 157; Knott v. Mfg. Co., 30 W. Va. 790, 5 S. E. 266.
Specific performance is not of absolute right, but one which rests entirely in judicial discretion ; exercised according to the settled principles of equity and with reference to the facts of the particular case, and not arbitrarily or capriciously ; Wesley v. Eells, 177 U. S. 370, 20 Sup. Ct. 661, 44 L. Ed. 810 ; Hennessy v. Woolworth, 128 U. S. 438, 9 Sup. Ct. 109, 32 L. Ed. 500; Barrett v. Forney, 82 Va. 269; Ramsay v. Gheen, 99 N. C. 215, 6 S. E. 75 ; King v. Gsantner, 23 Neb. 795, 37 N. W. 654 ; it rests in judicial discretion, based upon settled principles of equity, and with reference to the particular facts. If based on part performance, the acts done must be such that damages would not be adequate relief ; Haffner v. Dobrinski, 215 U. S. 446, 30 Sup. Ct. 172, 54 L. Ed. 277.
A vendor of real estate may either sue at law for the purchase-money or resort to equi ty for specific performance ; Raymond v. Land & Water Co., 53 Fed. 883, 4 C. C. A. 89, 10 U. S. App. 601. An action at law for breach of contract to convey real estate is not an adequate remedy, and the existence of the right to it does not forbid mainte nance of a suit for specific performance; Wilhite v. Skelton, 149 Fed. 67, 78 C. C. A. 635; nor is it an adequate remedy for a failure to execute a trust; Rogers v. Mining Co., 154 Fed. 606, 83 C. C. A. 380. Equity will take jurisdiction for specific perform ance to avoid multiplicity of suits ; Grand Trunk W. Ry. Co. v. R. Co., 141 Fed. 785, 73 C. C. A. 43 ; where damages are not suscepti ble of proof; American Fisheries' Co. v. Len nen, 118 Fed. 869 ; to enforce a compromise agreement between heirs where there is al ready a right of action in the probate court; Blount v. Wheeler, 199 Mass. 330, 85 N. E. 477, 17 L. R. A. (N. S.) 1036; or a contract for the purchase of waterworks by a city, where the remedy at law is clearly inade quate; Castle Creek Water Co. v. Aspen, 146 Fed. 8, 76 C. C. A. 516, 8 Ann. Cas. 660 ; the objection of an adequate remedy at law may be raised at any stage of the proceedings ei ther by the parties or the court; Marthin son v. King, 150 Fed. 48, 82 C. C. A. 360; Kane v. Luckman, 131 Fed. 609.
As the doctrine of a specific performance in equity arises from the occasional in adequacy of the remedy at law upon a vio lated contract, it follows that the contract must be such a one as is binding at law; Evans v. Kittrell, 33 Ala. 449; Kleinhaus v. Jones, 68 Fed. 742, 15 C. C. A. 644, 37 U. S. App. 185 ; and where the existence of a con tract is in doubt, equity will not, as a rule, decree specific performance, especially when it appears that the property in question was rapidly rising in value; De Sollar v. Hans come, 158 U. S. 216, 15 Sup. Ct. 816, 39 L. Ed. 956 but a mere denial of the contract will not prevent its specific performance ; Sprague v. Jessup, 48 Or. 211, 83 Pac. 145, 84 Pac. 802, 4 L. R. A. [N. S.] 410); and it must be executory, certain in its terms, and fair in all its parts.