the bill is admitted, and the statute is not relied on as a bar.1 § 2615. Delay and Laches.-The plaintiff may lose his right to ask specific performance by unnecessary delay on his part.2 The rule is, that if a party seeking a specific execution has been guilty of gross laches, or has been inexcusably negligent in performing the contract on his part, or if in the intermediate period there has arisen a material change of circumstances, affecting the rights, interests, and obligations of the parties, a court of equity will refuse to decree a specific performance. The rule is the same, whether the party seeking the aid of the court has been guilty of great delay in performing it, or in filing his bill, or in prosecuting his suit after the bill is filed.* Thus specific performance has been refused in the following, among other cases: Where the complainant, seeking to have enforced an agreement to execute a mortgage, has slept upon his rights for three years before the mortgagor's death, and for eight years afterwards; where a party suffered more than twenty years to elapse before bringing a suit on an agreement for land; where a bill was filed for specific performance of a contract thirty-seven years after it was alleged to have been made, no effort having been made in the mean time to enforce it, and the rights of subsequent bona fide purchasers without notice had 1 Baker v. Hollobaugh, 15 Ark. 322; Woods v. Dille, 11 Ohio, 455; Houser v. Lamont, 55 Pa. St. 311; 93 Am. Dec. 755. 2 Boston etc. R. R. Co. v. Bartlett, 10 Gray, 384; Green v. Covillaud, 10 Cal. 317; 70 Am. Dec. 725; Rogers v. Saunders, 16 Me. 92; 33 Am. Dec. 635; Patterson v. Martz, 8 Watts, 374; 34 Am. Dec. 474; Johnson v. Somerville, 33 N. J. Eq. 152; Watts v. Waddle, 6 Pet. 389; Preston v. Preston, 95 U. S. 200; Smith v. Hampton, 13 Tex. 459; Campbell v. Hicks, 19 Ohio St. 433; Dubois v. Baum, 46 Pa. St. 537; Hubbell v. Shoening, 58 Barb. 498; Bracken v. Martin, 3 Yerg. 55; Hen derson v. Hicks, 58 Cal. 364; Marshall v. Perry, 90 Ill. 289; De Cordova v. Smith, 9 Tex. 129; 58 Am. Dec. 136; Young v. McNutt, 16 Tex. 13; McAusland v. Pundt, 1 Neb. 21; 83 Am. Dec. 358. 3 Callen v. Ferguson, 29 Pa. St. 247; Madox v. McQuean, 3 A. K. Marsh. 400; Miller v. Henlan, 51 Pa. St. 265; Childress v. Holland, 3 Hayw. (Tenn.) 274. Alexander v. Hoffman, 70 Ill. 114; Hedenberg v. Jones, 73 Ill. 149; Fitch v. Willard, 73 Ill. 92. 5 Nelson v. Bank, 27 Md. 51. 580. 3 intervened; where the purchaser has never taken possession or expended anything on the premises, but has waited for several years after the payments were due, and until there has been a rise in value;2 where for seventeen months the complainant had done nothing to perform her part of the contract, although she had previous to that paid money on the contract, and she had not before suit tendered herself ready to perform, and demanded performance of the contract; where a purchaser of land failed to make any payments therefor, and for thirty years allowed others to make costly improvements thereon without objection, asked no rent from the occupants, asserted no legal right, and paid no taxes nor assessments; where a vendor of land brought an action for specific performance three years and a half after the time fixed for performance, without having given any notice in the interim of his intention to insist on a performance of the contract; where the complainant neglected for twenty years to call on a railroad company to perform a stipulation in a deed to erect a bridge across the granted premises; where twentythree years elapsed from the date of a contract for the purchase of real estate, during thirteen years of which no payments were made by the purchaser; where a married woman for two years repudiated and refused to perform an agreement for the sale of land made in her behalf by her husband, the property, during the time, having depreciated in value; where there was an acquiescence for five years in the non-performance of a building contract; where the vendee had failed to pay any part of the purchase price of land except a portion of the interest for a period of over six years from the execution of the contract.10 8 1 Ewing v. Beauchamp, 6 B. Mon. 422. 2 O'Fallon v. Kennerly, 45 Mo. 124. 3 Bullock v. Adams, 20 N. J. Eq. 367. Warder v. Cornell, 105 Ill. 169. Williams v. Hart, 116 Mass. 513. 7 Bennett v. Welch, 25 Ind. 140; 87 Am. Dec. 354. 8 Holgate v. Eaton, 116 U. S. 33. Davison v. Jersey Company Associates, 71 N. Y. 333. 10 Henderson v. Hicks, 58 Cal. 364. 3 Lapse of time will not defeat specific performance, if it arose from the state of the vendor's title, and the delay was consented to by both parties, or when the vendee was insane; or where there has been continued acquiescence on both sides; or where the negligence was owing to a mistake of legal rights; or where the defendant has prevented, by his representations, the bringing of a suit for specific performance; or where it appears that the complainant has been in no default, and has been reasonably active during the whole time in asserting his rights under it, and attempting to enforce its performance. One who seeks specific performance must have done all in his power to fulfill the contract on his part. A court of equity will not specifically enforce a contract at the instance of one of the parties who has repeatedly broken it, even if the other party has been guilty of the first breach.' ILLUSTRATIONS.-A contracted with the proprietors of the town of B for the purchase of a lot in said town, binding himself to build a house on the same within two years; otherwise the agreement to be void, and the lot to revert to the proprietors. A failed to build the house. Held, that after a lapse of eleven years, specific performance should not be decreed: Broaddus v. Ward, 8 Mo. 217. By a contract for the sale of land the vendor was to convey at a time specified, and the vendee was "at the same time" to secure the purchase-money. The vendee took possession under the contract, but no conveyance was executed, and the purchase-money was not paid for fifteen years. Held, that the lapse of time was no objection to a decree for specific performance at the suit of the vendee: Waters v. Travis, 9 Johns. 450. A agreed to buy land and to pay therefor in a week. Held, that his inability to get the title examined within that time justified him in requiring a further delay, and that a month after the agreement was made he could maintain a suit for specific performance: Willis v. Dawson, 34 Hun, 492. 1 Craig v. Leiper, 2 Yerg. 193; 24 Am. Dec. 479. Welch v. Whelpley, 62 Mich. 15; 4 Am. St. Rep. 810. Estes v. Browning, 11 Tex. 237; 60 Am. Dec. 238. Belt v. Ins. Co., 12 Mo. App. 100. 5 Coulson v. Walton, 9 Pet. 62. 6 Vawter v. Bacon, 89 Ind. 565. Ohio Steel Barb Fence Co. v. Washburn and Moen Mfg. Co., 26 Fed. Rep. 702. CHAPTER CXXV. DAMAGES. § 2616. General damages defined. § 2617. Special damages defined. Measure of damages ordinarily on breach of contract. § 2618. § 2624. Assessment of damages conclusive - Subsequent damages for same cause not recoverable. § 2628. Damages on contract for sale of goods — Against buyer for not paying price. § 2634. § 2635. Against carrier for default or delay in carriage of goods. § 2636. Contracts for sale of land - Damages in action by seller. § 2638. § 2639. Measure of damages in other cases of breach of contract. § 2640. Penalties on contracts. § 2641. § 2642. Damage on bonds restricted to amount of penalty. § 2643. Liquidated damages or penalty - Construction of instruments as to. § 2616. General Damages Defined. - General damages. are the consequence of the breach of contract, or other injurious act, irrespective of any special circumstances; as the loss of money caused by the non-payment of a debt, or the deprivation of goods caused by a failure to deliver under a contract of sale.1 1 Vanderslice v. Newton, 4 N. Y. 130. § 2617. Special Damages Defined. - Special damages are the further consequence caused by the breach of contract happening under special circumstances, as where goods are contracted to be delivered for a special purpose, which fails by reason of the default in delivery.1 § 2618. Measure of Damages Ordinarily on Breach of Contract. — Damages are ordinarily to be assessed at the pecuniary amount of the difference between the state of the plaintiff upon the breach of the contract, and what it would have been if the contract had been performed; that is to say, the measure of damages is the benefit that the plaintiff would have received if the contract had been performed, and his pecuniary loss resulting from the breach. The measure of damages where property is in question is the value of the article as nearly as it can be ascertained, and from this rule the jury are not at liberty to depart.3 In an action on a written contract for a sum certain, the contract itself furnishes the rule of damages. But if an agreement be unconscionable, the court will render such damages as may appear reasonable, without being bound by the terms of the contract.5 In an action for damages on a contract, which plaintiff was prevented from completing through the fault of defendant, the measure of damages is not the price agreed to be paid in full performance, but recompense for the part performed, together with indemnity for the loss to plaintiff in respect to the part unperformed. Where a part 4 only of a contract has been executed, the contract price shall govern the measure of compensation, wherever it 1 Leake on Contracts, 1043; Smith v. Sherman, 4 Cush. 408. 2 Robinson v. Harman, 1 Ex. 855; Eckel v. Murphy, 15 Pa. St. 488; 53 Am. Dec. 607; Jones v. Van Patten, 3 Ind. 107; Royalton v. Tp. Co., 14 Vt. 311; Kaiser v. New Orleans, 17 La. Ann. 178: Osborne v. Slassen, 25 Kan. 736; King v. Gilson, 32 Ill. 348; 83 Am. Dec. 269. 3 Hillebrant v. Brewer, 6 Tex. 45; 55 Am. Dec. 757. Tyler v. Marsh, 1 Day, 1. 5 Cutler v. How, 8 Mass. 257; Baxter v. Wales, 12 Mass. 365. Friedlander v. Pugh, 43 Miss. 111. |