ways be maintained between the lumber hereby insured and any mill or other manufacturing establishment, or else this policy shall be void," is a reasonable and competent provision to insert or attach to the policy.

5. It is reasonable and competent for insurance companies to provide in their policies that no officer, agent or other representative of the company shall have the power to waive such stipulation of warranty, unless indorsed thereon or added thereto.

6. Where an insurance policy contains such a stipulation of warranty, and provides that no officer, agent or other representative of the company shall have the power to waive any condition or provision of the policy, unless such waiver shall be written upon or attached thereto, such limited grant of authority is the measure of their power.

7. Where such limitation is expressed in the policy, the assured is presumed to have notice and knowledge of such limitation, and is bound thereby.

8. Where the waiver relied on is the act of an agent of the insurance company, it must be shown that the agent had express authority from the company to make the waiver, or that the company subsequently, with knowledge of the facts, ratified the unauthorized action of the agent,

In commenting on the position assumed by the United States Supreme Conrt, Justice Hainer says: "The rule announced by the Supreme Court of the United States in the case of Northern Assur. Co. v. Grand View Bldg. Assn,, supra, where it was declared that, where the waiver relied on is the act of an agent, it must be shown, either that the agent had express authority from the company to make the waiver, or that the company subsequently, with knowledge of the facts, ratified the action of the agent', is not only directly in point, but is decisive of this question. We do not deem it necessary to further review the state decisions, which are in irreconcilable conflict with the latest expression of the Supreme Court of the United States upon this important subject. We think that the decision of the Supreme Court of the United States is the correct and sound rule to adopt, and that the doctrine announced by the later cases of a number of the state courts and some of the federal courts is a wide departure from the true interpretation of valid written contracts, and is violative of the fundamental principles of the law of agency. The rule of law which admits parol testimony to vary or change the terms of a valid written instrument, whose terms are free from doubt or ambiguity, repeals the fundamental principle that the written instrument must control over the verbal negotiations and statements made prior to and contemporaneous with the execution of the instrument. It also contravenes the fundamental doctrine that an agent cannot act beyond the scope of his authoritv. It is also in conflict with the doctrine that a principal has the undoubted authority to limit the

Part I. Origin and Growth of Specific Performance. The remedy of specific performance is not of ancient origin. The Roman law did not offer it, but gave a title to damages as the sole right resulting from non-performance of a contract. In like manner the early common law of England made no attempt actually to enforce the performance of contracts, but gave to the injured party

1 This thesis is an attempt to present in a clear and concise statement the principles governing courts of equity in their control over building coutracts. The writer has examined the case law from the earliest reported decision (1469), down to the present time, in which the question of specific performance of binding contracts was before the court, and while the very early cases are of little aid in determining the rules by which courts of equity take jurisdiction of such cases, yet they are cited, and some commented upon to show the history and growth of this remedy as applied to binding contracts. After an examination of the authorities, the writer deems it best to divide contracts of this character. Part two of this article treats of contracts arising where an owner of land engages another to build on this land, while part three contains a discussion of contracts where an owner of land, or one having a possessory interest in same, agrees to build on that land in consideration of certain benefits or privileges. The writer contends that contracts of the nature discussed in part two should not be specifically enforced at the present day; while contracts embraced in part three, if certain and definite in terms, may be enforced in the discretion of the court of equity.

only the right to satisfaction in damages. Sir Henry Maine, in his work on ancient law, has shown how slow was the introduction into jurisprudence of any provision for the enforcement of contracts, and how that introduction was due to the increase of commercial activity. The same spirit of commerce which led to the enforcement of contracts, also brought in the notion that money is an equivalent of everything, is an universal, common measure, and this, says Frye, probably led to the arrested growth of the remedies for their breach and the confining of such remedies for the most part to the payment of money or the delivery of a chattel.

Definition of Specific Performance. What is specific performance? Frey, in his work, says: "Specific performance of a contract is its actual execution according to its stipulations and terms." Such actual execution is enforced under the equitable jurisdiction vested in the courts by directing the party in default to do the very thing which he contracted to do.

In the very early cases reported in the books, in which the court has decreed specific performance of building contracts, the division or classification which the writer makes in the note which precede the discussion of this subject is not recognized; and in fact, it seems that the fundamental basic principles which have governed the jurisdiction of equity courts from the establishment of that court down to the present time, had been lost sight of. Courts of equity, from an early date down to 1788, had never refused to decree performance of building contracts. The courts did not concern themselves with the question of jurisdiction, as to whether the remedy at law was adequate or not, but took jurisdiction of such cases and decided them as a matter of right in the complaining party, and not as within the discretion of the court. From such cases we can discover no rule or test by which we may determine the jurisdiction of equity in the specific performance of building contracts. To quote from one decision, it would seem that their power was unlimited, which is as follows: "But this cannot be called a hardship, because it will put the defendant to an expense, for it is merely through his own default, and this court only compels him to perform his own agreement which he has entered into for valuable consideration;

and it would be suffering him to take advantage of his own wrong if he were not compelled." However, Sir Lloyd Kenyon, in deciding the case of Errington v. Aynesly, in 1788, laid down the rule that such contracts will not be enforced because the remedy at law is adequate, and he further says that, "B" can do what "A" won't. The chancellor said that no case of specific performance of building contracts appeared in the books, which statement is erroneous, as will be shown later in the discussion of this subject.

Part II. Contracts Arising Where an Owner of Land Engages Another to Build Upon His Land-Discussion of Early Important English Cases.-Returning to the discussion, we will investigate the authorities under our first proposition, that is, where B contracts to build on A's land, and for an independent consideration moving from A to B. The earliest trace of this jurisdiction in the specific performance of building contracts, which the industry of legal antiquaries has discovered, is found in the year book of VIII. Edw. IV. in which the court, without hesitation, decreed specific performance of a building contract. We find no record of such a case coming before the court again until 1694, when Holt vs Holt,2 was decided. Here an agreement was entered into whereby the defendant agreed to build a house, merely a house, with no further description, and the court granted a decree enforcing the contract, making no distinction between this case and one for the performance of a contract to convey land. The next case in point of time is that of Allen v. Harding. "A" covenanted with "B" to build a house upon the glebe land, and "B" brought his bill for specific performance. Defense in this case insisted that the contract was too loose and uncertain both as to time and value, for it was neither mentioned when the house was to be built, nor what sort of a house it was to be; but the lord chancellor brushed all such defense aside, and decided that such a contract would be enforced because it was to be built for the benefit of the church. This case is a fair sample of the earlier decisions before the jurisdiction of the equity courts was clearly defined. In 1747, Lord Hardwicke, in deciding City of London

3

2 Vernon's Ch. 322.

8 1708 or 1709, 7 Anne, 2 Eq. Cases Abr., 17.

as

Prior to the decision of Errington v. Aynesly, in 1788, no court questioned the right of the equity court to take jurisdiction of such cases, and no test or rule is followed in their decisions. We will not attempt to reconcile such cases with the later ones, the fundamental, well-grounded principles of equitable jurisdiction are ignored, and such decisions can hardly be considered as authority for either side of the contention. In Errington v. Aynesly, however, the court speaks for the first time of the inadequacy of a remedy at law, and lays down the familiar principle that courts of equity will not assume to enforce contracts in specie whenever the remedy at law is full, adequate and complete. This decision is followed two years later by Lord Thurlow in Lucas v. Commerford, in which a contract to build a house was attempted to be enforced, but Lord Thurlow said: "The court could not undertake the building of a house, and the party must go to the legal side of the court." This decision is recognized by both judge and text-writer as the first great decision upon this subject, and it will be found cited in nearly every case subsequent to this time. It is interesting to note, however, the decision rendered in Mosely v. Virgin, only six years latter, in which Lord Loughborough lays down the rule that if the contract is definite in terms, not loose and vague, "perhaps there would not be much difficulty to decree specific performance." He attempts to reconcile his views with those of Lord Thurlow, in Lucas v. Commerford, and says that Thurlow "appears to have added that he did not see how it could be made upon a covenant to build, being equally uncertain." And Lord Loughborough, reasoning from this, concludes that if it were in its nature defined and certain, it would be enforced according to Lucas v. Commerford; but in a thorough examination of the reports of this decision, we find no such statement as alluded to by

41 Ves. Sr. 12, 3 Atkyn's Ch. Rep. 512.

52 Bro. C. C. 341.

61 Ves. Jr. 235.

73 Ves. Jr. 184.

Lord Loughborough. However, the case is cited as authority for the proposition that contracts, if in their nature defined, will be enforced, but after a study of each case which relies upon Mosely v. Virgin, as authority, we find that in each case the remedy at law is inadequate, and the party is forced into the equity court to obtain complete relief. Justice Miller, in a review of the authorities, in Ross v. U. P. Ry. Co., does not attempt to reconcile the two decisions, but he does speak of the attempt of Lord Loughborough to reconcile his views with those expressed by Lord Thurlow, and he says that surely Loughborough was mistaken as to the decision of Lucas v. Commerford.

After the decisions of Errington v. Aynesly, Lucas v. Commerford, and Mosely v. Virgin, we find but few courts which hold that contracts of the first division will be specifically enforced, while the great weight of authority promulgates the rule that equity has no jurisdiction over such cases, and bases it upon the ground that there is a remedy for complete relief in law. Many cases are cited in the notes as authority supporting this contention. 8

Dicussion of Conflicting Cases. - The case

of Paxton v. Newton is sometimes cited as authority for enforcing building contracts specifically, but we find such case to be one for repairs and not for building. Cooper v. Jarman, 10 is often spoken of as being against the contention of this article, but a review of the facts will clear up the apparent conflict. "A" engaged "B" to build a house for him, but before the completion of it "A" died, and the house was finished after his death, and the heir-at-law, who was the plaintiff in the suit and who had been appointed administrator of the estate, paid "B" for his work out of the personal estate of the deceased "A". The question raised was, whether the plaintiff was to be allowed such payment, as he was the heir

8 Errington v. Aynesly, 1788, 2 Dicken, 692: Lucas v. Cummerford, 1790, 1 Ves. Jr. 235; The So. Wales, etc., Ry. Co. v. Wythes, 1854, 1 Kay & Jno. 186; Whitney v. City of New Haven, 1855, 23 Conn. 624; Ross v. Union Pac. Ry. Co., 1863, 1 Walworth, 26; Fallon v. Ry. Co., 1871, 1 Dillon, 121; Middleton v. Greenwood, 1864, 2 De Gex J. & S. 142; Raphael v. Thames, etc. Ry. Co., 1866, Law R. 2 Eq. 37; The Mayor etc. v. Southgate, 1869, 17 W. R. 197; Mastin v. Halley, 1875, 61 Mo. 196; Greenhill v. Isle of Wight, 1871, 19 W. R. 345; Oregonian Ry. Co. v. Ore., etc. Co., 1885, 37 Fed. Rep. 733. 92 Smale & Gif. 1854, 437.

10 1866, Law R. 3 Eq. 100.

at-law. The court held that the heir-at-law was entitled to have the house finished at the expense of the personal estate of the intestate, and the question that we are now concerned with did not come directly before the court. Beck v. Allison11 is not authority for enforcing building contracts, as there the agreement was to repair, and we do not concern ourselves with such contracts, as different questions arise and different rules are applicable. The next case which appears to conflict with the contention laid down in Lucas v. Commerford, and which is the latest case found reported that bears directly upon this division of the subject, is Jones v. Parker.12 A bill in equity was brought by a lessee upon a lease purporting to begin on September 1, 1893, and to demise part of a basement in a building not yet erected. The lessor covenanted to deliver possession to the lessee upon completion of said building, and, thereafter, during the term of this lease, reasonably to heat and light the premises. Plaintiff alleged that the building had been completed, but that the defendant, who was lessor, refused to complete the premises with apparatus sufficient to heat and light the same, and to deliver the same to plaintiff. The prayer was for specific performance. Judge Holmes, in delivering the opinion, recognizes the doubt as to the jurisdiction of equity courts in enforcing building contracts, and cites Frye & Pomeroy on Spec. Perform., and the cases of Lucas v. Commerford, and Ross v. U. P. R. R., cited above. He speaks of the uncertainty of the agreement, etc., but concludes that specific performance should be decreed. The court cites no authority for decreeing specific performance of building contracts, and fails, as it seems to us, to apply the well grounded principles which govern the jurisdiction of the equity court. This is the only modern decision which seems to militate against the proposition that contracts of the first division will not be enforced.

Conclusion. With this review of the authorities, we conclude that contracts to build of the ordinary class, such as fall within the first division, according to the great weight of authority, will not be enforced specifically, in equity, as the remedy of damages is adequate, and, as has been said by

11 1873, 4 Dailey N. Y. 121. 12 1895, 163 Mass. 564.

various courts, "B" can be hired to do what "A" won't.

Part III. Contracts Where Owner of Land Agrees to Build Thereon in Consideration of Certain Benefits or Privileges-Distinguishing Features of This Class of Contracts.-We now wish to consider the authorities upon cases of specific performance arising when "B" contracts to build on his own land, or land in which he has a possessory interest, with "A," who is to be benefited materially by such building, or is to receive some privilege by reason of the building, and such benefit or privilege is a part of the consideration for the contract. Cases involving the above state of facts are not found in the very early reports, at least not so often as those of the ordinary kind, such as have been treated under our first division of the subject. But since 1740, when the first case involving these facts came before the courts, the question has been raised a great many times. We find that a majority of the modern cases of specific performance of building contracts are to be found grouped under the second rather than the first division of our classification. As we proceed to consider the authorities, and to call especial attention to some of the leading cases, we will find that the preponderance of authorities is in favor of enforcing such contracts. While we may find decisions in which specific performance is denied, we will also discover wherein the case before the court was peculiar in its nature and could be distinguished from the ordinary case, or the point of "specific performance" was not passed upon directly by the court, but was decided upon some technicality of pleading, or for other reasons. We also find cases which are in conflict with our position and cannot be reconciled, but these are few in number.

Discussion of Early Important English Cases. The first English case before the courts was Pembroke v. Thorpe.1 13 "A," owner of land, leased it to "B" for a number of years for a consideration, and part of that consideration was that "B" was to pull down some old buildings then standing on the land and build new ones. "B" entered on the premises, but failed and refused to build the houses as per contract, and this bill was brought asking the court to enforce the agreement. Other questions arose, but which had 13 3 Swanton's Rep. 437.

no bearing on this point. The defendant insisted that the proper remedy was in law and not in equity, but Lord Hardwick met this by saying that the plaintiff had no remedy at law at all, as the contract was not in writing, and the part performance of the contract would not help him there, because that is a rule in the consideration only of the equity court, and as there was partial performance of this contract the court would not suffer the parties to take the benefit of the statute; but he is bound in conscience and in equity to perform the whole. Another of the leading English cases is Storer v. The Gr't. W. Ry. Co.,14 "A," a railroad, in consideration of a transfer of land to it by "B," over which a proposed railway was to pass, covenanted to build and maintain a neat archway over a crossing over such railroad. "A" refused to comply with the terms, and specific performance was asked, and the court, through Bruce, V. C., held that the court will interfere for the purpose of directing the specific performance of a contract by defendants to do defined work on their own property in the performance of which the plaintiff, with whom they have covenanted, has an interest so material that the non-performance cannot be adequately compensated by damages at law. Two years later, in 1844, the celebrated case of Price v. Mayor, etc., of Penzance, was decided. In this case, Price conveyed certain lands to the defendant city, in consideration of which the city covenanted to build a fish market upon the lands conveyed. Although the right to compel performance was not exercised in this case, as the defendants built the market before the case was finally decided, the court recognized the right, and said: "Under this contract, the corporation has taken possession of the land and converted it; and having had the benefit of the contract in specie, as far as they are concerned, I need not say that the court will go to any length which it can to compel them to perform the contract in specie." The case of Sanderson v. Cockermouth, etc. Ry., Co.,1 is considered a leading case, and a short review may be beneficial. Plaintiff in this case conveyed land to defendant, a railway corporation, which was to build a railroad on these

14 1842, 3 Ry. Cases, 106.

15 4 Hare 506.

16 1849, in 11 Beavan, 497.

16

15

premises, and part of the consideration for such conveyance was an agreement on the part of the defendant to build certain defined crossings as "may be necessary. "Defendant made the crossings, but not according to agreement and the court decreed performance of the contract regarding the crossings, and the crossings were to be such as were reasonably necessary. The court recognized the fact that such decrees of the court were difficult to properly enforce, but where the equity is so plain, and justice could be obtained in no other way, it could be referred to a master to ascertain what was reasonable.

Discussion of Important Amercian Authorities.-In Rindge v. Baker, 17 an agreement was entered into to build a party wall and one failing to build his part, the other built it, and sued for the cost of the building. The court, in awarding damages, said that plaintiff could have come into court and compelled the defendant to specifically perform. Another leading case is to be found in Gregory v. Ingwersen. 18 Here the plaintiff transferred the title of a five foot-strip of land to defendant in consideration of his (the defendant's) building a stairway of certain dimensions, and this stairway was to be built on the strip of land conveyed. The stairway was built, but not as contracted for, and plaintiff asks for specific performance. The court, in granting the decree, speaks of the principle governing equity jurisdiction, i. e., was there an adequate remedy at law? The court answered there was none, as the land was conveyed and was Low in defendant's possession, and plaintiff's only remedy would be in equity.

Rule Sustained by Weight of Authority.With this review of the leading cases we believe it is made plain that by the great weight of authority, both in this country and England, courts of equity will enforce contracts of the second class. These cases are recognized by both bench and bar as authority, and supported by the following authorities.1

17 1874, 57 N. Y. 209. 18 1880, 32 N. J. Eq. 199.

19

19 Birchett v. Bolling, 1817, 5′ Mumford's Va. 442; Warring v. Manchester Ry. Co., 1849, 7 Hare, 482; Sir Edward Bulyer Lytton v. Great Nor. Ry. Co., 1856, 2 K. & J. 394; Aikin v. Albany R. R. Co., 1857, 26 Barb. 289; Wells v. Maxwell, 1863, 32 Beavan, 408; Cubit v. Smith, 1864, 10 Jurist (N. S.), 1123; Hood v. North E. Ry. Co., 1869, Law R. 8 Eq. 666; Wilson v. Furness, R. R. Co., 1869, L. R. 9 Eq. 28; Randall v. Latham, 1869, 36 Conn. 48; Greene v. W. Cheshire R. R. Co., 1871, 25