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CAUTION! The publications of EDWARD THOMPSON COMPANY, THE AMERICAN AND ENGLISH ENCYCLOPAEDIA OF LAW, THE ENCYCLOPAEDIA OF PLEADING AND PRACTICE, are supplied to direct subscribers only. Booksellers or their agents cannot fill out partial sets or supply continuation volumes. to do

Columbia University in the City of thew York.

Columbia University includes both a college and a university in the strict sense of the words. The college is Columbia College, founded in 1754 as King's College. The university consists of the Faculties of Law, Medicine, Philosophy, Political Science, Pure Science, and Applied Science.

The point of contact between the college and the university is the senior year of the college, during which year students in the college pursue iheir studies, with the consent of the college faculty, under one or more of the faculties of the university,

Barnard College, a college for women, is financially a separate corporation ; but, educationally, is a part of the system of Columbia University.

Teachers' College, a professional school for teachers, is also, financially, a separate corporation; and also, educationally, a part of the system of Columbia University.

Each college and school is under the arge of its own faculty, except that the Schools of Mines, Chemistry, Engineering and Architecture are all under the charge of the Faculty of Applied Science.

For the care and advancement of the general interests of the university educational system, as a whole, a Council has been established, which is representative of all the corporations concerned. 1. THE COLLEGES.

1. The SCHOOL OF LAW, established in 1858, Columbia College offers for men a course of

offers a course of three years, in the principles four years, leading to the degree of Bachelor of and practice of private and public law, leading Art. Candidates for admission to the college

to the degree of Bachelor of Laws. must be at least fifteen years of age, and pass an examination on prescribed subjects, the par.

2. The COLLEGE OF PHYSICIANS AND SURticulars concerning which may be found in the

GEONS, founded in 1807, offers a course of four annual Circular of Information,

years, in the principles and practice of medicine Barnard College, founded in 1889, offers for

and surgery, leading to the degree of Doctor of women a course of four years, leading to the

Medicine, degree of Bachelor of Arts. Candidates for admission to the college must be at least fitteen

3. The SCHOOL OF Mines, founded in 1864, years of age, and pass an examination on pre

offers courses of study, each of four years, scribed subjects, the particulars concerning leading to a professional degree, in mining which may be found in the annual Circular of engineering and in metallurgy. Information. II. THE UNIVERSITY.

4. The SCHOOLS OF CHEMISTRY, ENGINEERIn a technical sense, the Faculties of Law

ING, AND ARCHITECTURE, set off from the

School of Mines in 1896, offer respectively, Medicine, Philosophy, Political Science, Pure

courses of study, each of four years, leading to Science, and Applied Science, taken together

an appropriate professional degree, in analytical constitute the university. These faculties offer advanced courses of study and investigation,

and applied chemistry; in civil, sanitary, electrical,

and mechanical engineering; and in architecture. respectively, in (a) private or municipal law, (6) medicine, (c) philosophy, philology, and letters, (d) history, economics, and public law, (e)

5. TEACHERS COLLEGE, founded in 1888 and mathematics and natural science, and ( )applied

chartered in 1889, was included in the university science. Courses of study under all of these

in 1898. It offers the following course of study: faculties are open to members of the senior class

(a) graduate courses leading to the Master's and in Columbia College. Certain courses under

Doctor's diplomas in the several departments of the non-professional faculties are open to women

the College; (6) professional courses, each of two who have taken the first degree. These courses

years, leading to the Bachelor's diploma for lead, through the Bachelor's degree, to the

Secondary Teaching, Elementary Teaching, university degrees of Master of Arts and Doctor

Kindergarten. Domestic Art, Domestic Science, of Philosophy. The degree of Master of Laws

Fine Arts, Music, and Manual Training ; (c) a is also conferred for advanced work in law done

collegiate course of two years, which, if followed ander the Faculties of Law and Political Science

by a two years professional course, leads to the together.

degree of Bachelor of Science. Certain of its

courses may be taken without extra charge, by III. THE PROFESSIONAL SCHOOLS.

students of the University in partial fulfillment The Faculties of Law, Medicine, and Applied of the requirements for the degrees of Bachelor of Science, conduct respectively the professional Arts, Master of Arts, and Doctor of Philosophy. schools of Law, Medicine, and Mines. Chemistry; “ The price of the University catalogue is Engineering, and Architecture, to which students twenty-five cents postpaid. Detailed information are admitied as candidates for professional regarding the work in any department will be degrees on terms prescribed by the faculties con- furnished without charge upon application to cerned. The faculty of Teachers' College the conducts professional courses for teachers, that SECRETARY OF COLUMBIA UNIVERSITY, lead to a diploma of the university.

New York.

COLUMBIA LAW REVIEW.

VOL. III

JANUARY, 1903

No. 1

MUTUALITY IN SPECIFIC PERFORMANCE. 1

The doctrine of mutuality is stated as follows in Lord Justice Fry's Treatise on Specific Performance ::

· A contract to be specifically enforced by the Court must, as a genera} rule, be matual,—that is to say, such that it might, at the time it was entered into, have been enforced by either of the parties against the other of them. Whenever, therefore, whether from personal incapacity to contract, or the nature of the contract, or any other cause, the contract is incapable of being enforced against one party, that party is equally incapable of enforcing it against the other, though its execution in the latter way might in itself be free from the difficulty attending its execution in the former."

And yet the truth of the following eight propositions, each one of which is at variance with the statement just quoted, will be generally admitted :

(1) A bilateral contract between a fiduciary and his principal is often enforced in favor of the principal, although not enforceable against him.

(2) A similar contract procured by the fraud or misrepresentation of one of the parties may be enforced against him, although not by him.

· The historical development of the doctrine of mutuality is worked out with much ability by Professor Lewis in a series of essays in the American Law Register, 49 A. L. R., 270, 382, 445, 507, 559 and 50 A. L. R., 65, 251, 329, 523. The learned reader will find in these articles an exhaustive citation of authorities and much valuable discussion of particular cases.

2 Fry, Sp. Perf. (3d ed.) 215. See a similar statement in Pomeroy, Sp. Perf. (2d ed.) 229.

(3) In England, one who, after making a voluntary settlement, has entered into a contract to sell the settled property, may be compelled to convey, although he cannot force the buyer to accept a conveyance.

(4) A vendor, whose inability to make a perfect title debars him from obtaining a decree against the buyer, may in many cases be forced by the buyer to convey with compensation.

(5) Notwithstanding the opinions of Lord Redesdale and Chancellor Kent to the contrary, a party to a bilateral contract, who has signed a memorandum of it, may be compelled to perform it specifically, although he could not maintain a bill against the other party who had not signed such a memorandum.

(6) A contract between an infant and an adult may be enforced against the adult after the infant comes of age, although no decree could be made against the plaintiff.

(7) A plaintiff who has performed his part of the contract, although he could not have been compelled in equity to do so, may enforce specific performance by the defendant.

(8) One who has contracted to sell land not owned by him, and who, therefore, could not be cast in a decree, may, in many cases, by acquiring title before the time fixed for conveyance, compel the execution of the contract by the buyer.

Several of these propositions are treated by the learned author as exceptions to the general rule. But a rule so overloaded with exceptions is fairly open to this severe criticism by Professor Langdell:

“ The rule as to mutuality of remedy is obscure in principle and in extent, artificial, and difficult to understand and to remember."

If, however, we examine the actual cases in which a plaintiff failed to obtain specific performance of a contract solely on the ground that equity could not force him to perform his own counter-promise, we shall find that the underlying principle of the decisions is simple and just, easy to grasp and to carry in the mind, and one that may be expressed in few words without qualifying exceptions. This principle may be stated as follows: Equity will not

11 Harv. L. Rev. 104.

compel specific performance by a defendant if, after performance, the common law remedy of damages would be his sole security for the performance of the plaintiff's side of the contract.

Let us test this principle, first by the groups of cases in which a plaintiff has failed to obtain specific performance, v because no equitable relief could be obtained against him, and then by the groups of cases in which the plaintiff obtained a decree, although the defendant could not have got a decree against him.

A typical instance of the refusal of relief to the plaintiff, because of the defendant's inability to obtain the subsequent performance of the plaintiff's promise is furnished by the case of Chadwick v. Chadwick. 1 A mother agreed to convey certain land to her son, the latter agreeing to care for and support her in his home. A bill filed by the son praying for specific performance of the mother's agreement was dismissed, because the mother, after making the conveyance, could not obtain equitable relief against the son, contracts for personal service and the like not being enforceable in equity. As the Court said of this contract :

To compel its observance by one when its benefits could not be secured to (from) the other would be alike unequal and inequitable.”

Vice-Chancellor Wigram stated the principle very clearly in Waring v. Manchester Co.:2

“ The Court does not give relief to a plaintiff, although he be otherwise entitled to it, unless he will, on his part, do all that the defendant may be entitled to ask from him; and if that which the defendant is entitled to, be something which the Court cannot give him, it certainly has been the generally understood rule that that is a case in which the Court will not interfere."

But relief may be denied to a plaintiff, not only in cases in which the performance promised by him was to be subsequent to that of the defendant, but sometimes in cases

*(1898) 121 Ala. 580. See to the same effect O'Brien v. Perry, (1900) 130 Cal. 526; Ikerd v. Beavers, (1885) 106 Ind. 483.

? (1849) 7 Hare, 482, 492. The same idea is expressed by Wood, V. C. in Stocker v. Wedderburn, (1857) 3 K. & J. 393, 404 and by Lord Cranworth in Blackett v. Bates, (1865) i Ch. Ap., 117, 124, and in several of the cases cited in i Ames Cas. in Eq. Jur. 428, n. 2.

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