Page:Harvard Law Review Volume 2.djvu/172

 154

HAR VARD LA W RE VIE W.

Sir Joseph Jekyll decreed specific performance of a contract for the sale of South Sea stock, and Lord Chancellor Parker overruled the decree, his chief reason being, " Because there is no difference between this ;^i,ooo South Sea stock and ;^i,ooo stock which the plaintiff might have bought of any other person upon the very day/'i

There is nothing to indicate that any distinction was supposed to exist between South Sea stock, which was government stock with certain additional rights, and shares in ordinary companies. Moreover, two years later Lord Macclesfield dismissed a bill for specific performance of a contract for the sale of ;^i,ooo stock in the York Buildings Company, which was an ordinary joint-stock corporation, on the ground that the proper remedy was at law.^

The only foundation afforded before the year i8cx> for the view now prevailing in England,^ that contracts for the sale of shares, as distinguished from government ^ock, will be specifically per- formed, is the case of Colt v. Netterville,* a bill for specific per- formance of a contract for the transfer of York Buildings stock, which was demurred to. Lord King overruled the demurrer, say- ing that the case might be "attended with such circumstances that may make it just to decree the defendant either to transfer the stock according to the express agreement, or at least to pay the difference." This, however, is altogether too indefinite to be re- garded as disapproval of the previous cases, and it may be con- fidently stated that the former rule on this point in England was the same as that now prevailing in this country ;^ that is, in the absence of special circumstances, such contracts will not be spe- cifically enforced.^

Though the corporation was looked upon as a trustee and the shareholders as cestuis que trusty it was of course perfectly well

1 See also, to the same effect, Cappur v. Harrison, Bunb. 135; Nutbrown v. Thornton. 10 Ves. 159.

2 Dorison v, Westbrook, 5 Vin. Abr. 540, pi. 22.

• See Fry on Spec. Perf., part vi. ch. I.

• 2 P. Wms. 304. * Moraw Corp. (2d ed.) § 218.

• It was, indeed, said by Lord Eldon in Nutbrown v, Thornton, 10 Ves. 159, after he had remarked that it was perfectly settled that the court would not decree specific per- formance of an agreement to transfer stock, " In a book I have of Mr. Brown's, I see Lord Hardwicke did that;" but there is no record of any such decision by Lord Hard- wicke, and further, there is an express dictum by him to the contrary in Buxton v. Lister, 3 Atk. 383.