THE PERFORMANCE OF CONTRACTS

1. What meant by, and ground of.—Specific performance, as applied to contracts, has been defined, “The actual accomplishment of a contract by the party bound to fulfill it."

Performance of a contract in the precise terms agreed upon; strict performance."" But as the exact fulfillment of an agreement, according to its. letter, by the party, is not always practicable, the phrase may mean, in a given case, not literal, but substantial performance ; or such a performance as will do justice between the parties under the circumstances, with compensation to the other party when that is required.' A main ground of the jurisdiction of courts of equity in specific performance, is that they are capable of affording relief not obtainable at law;

The latter requiring the plaintiff to show precision, on his part, in complying with all the terms of the agreement ; while the former sometimes relieve, notwithstanding defects or failure to perform at the day. So a court of equity, having regard to the substance of the agreement and the object and intention of the parties, will not permit terms that are not essential to be set up as a reason for refusing to fulfill. And although the legal remedy may have been lost by the default of the plaintiff, yet a court of equity will enforce the agreement if it is conscientious that it should be performed:—as where the plaintiff has fulfilled on his part substantially, but not so completely as to be in a position to claim performance at law.' On the other hand, if the party seeking relief has already obtained substantially what he intended to get under the agreement, equity will not only not compel a formal performance, but will restrain an attempt to recover damages at law for non-performance.