performance

[N]othing in the act circumscribes the meaning to be attributed to the term 'performance,' or prevents a single rendition of a copyrighted selection from resulting in more than one public performance for profit.

Such a fulfillment of an obligation as puts an end thereto by leaving nothing more to be done. PERICULOSUM EST RES NOVAS ET INusitatas inducere. It is dangerous to introduce new and unaccustomed things. Co. Litt. 379. PERICULOSUM EXISTIMO QUOD BOnorum vivcrum non comprobatur exemplo. I think that dangerous which is not warranted by the example of good men. 9 Coke, 97. PERICULOSUS (Lat.) Dangerous. PERICULUM (Lat.)

In the civil law. Peril; danger; hazard; risk.

The fulfillment or accomplishment of a promise, contract or other obligation according to its terms.

— Part performance. The doing some portion, yet not the whole, of what either party to a contract has agreed to do. Borrow v. Borrow, 34 Wash. 684, 76 Pac. 305.

— Specific performance. Performance of a contract in the specific form in which it was made, or according to the precise terms agreed upon. This is frequently compelled by a bill in equity filed for the purpose. 2 Story, Eq. Pi. § 712, et seq. The doctrine of specific performance is that, where damages would be an inadequate compensation for the breach of an agreement, the contractor will be compelled to perform specifically what he has agreed to do. Sweet.

Accomplishment; consummation; such a fulfillment of a duty as puts an end to the obligation by leaving nothing more to bo done. v. Part performance; Specific performance.

io 1. Accomplishment, fulfillment, consummation, discharge. Specifically, doing as one has agreed; also, the thing itself as done; and, also, discharge of the obligation. Opposed non-performance. ^ L. per-cipere, capere, to take wholly or entirely. = Kountze v. Omaha Hotel Co., lOT U. S. 393 (1882), Bradley; J.; 8 Bl, Com. 163. = Hosier v. Caldwell, 7 Nev. 367 (1872). ^ Per'-emp-tory.' L. peremptori Tis, decisive; perimere, to take away entirely, cut off, destroy. * [Furman v. Applegate, 23 N. J. L. 89 (1850). «3 Bl. Com. 291. ' [Aycock V. Martin, 37 Ga. 128(1867): Vattel, Law of Nations, § 17. " Warner v. Middlesex Mut. Assur. Co., 21 Conn. *449 (1852). ' American Hide, &c. Splitting, &c. Machine Co. v. American Tool, &o. Co., 4 Fish. 298-99 (1870), Shepley, J. Such a thorough fulfillment of a duty as puts an end to Obligations by leaving nothing more to be done.' " Perform " is synonymous with " fulfill." ' In the Statute of Frauds, " performed " means completely consummated.' • "Performance" of a contract means performance in specie of the agreement; "satisfaction" occurs where the contracting party does something in lieu of the thing contracted for.* Part performance. Such an act done in performance of a contract that non-enforcement of the contract would be a fraud.5 The Statute of Frauds requires that a contract concerning realty shall be in writing. Courts of equity have relaxed the rigidity of the rule, holding that a part performance of an oral contract removes the bar of the statute, on the ground that it would be a fraud for a vendor to take advantage from the absence of a written instrument when he has permitted the contract to be partly executed; especially so, where valuable improvements have been made by the vendee.* Nothing is to be considered as a part performance which does not put the party in a situation which is a fraud upon him unless the agreement is performed..» The acts should clearly appear to be done solely with a view to the agreement being performed... On this account, acts which are merely introductory or ancillary to' an agreement are not considered as a part performance thereof, although attended with expense.' The existence of the parol contract and its terms must be shown by full, complete, satisfactory, and indubitable proof. The evidence must define the boundaries and fix the consideration; exclusive and notorious possession must have been taken under it, and continuously maintained; and the contract must have been so far in part performed that compensation in damages would be inadequate and rescission inequitable and unjust.8 Specific performance. Doing as one has agreed to do. That branch of equity jurisprudence which compels a party to perform his contract in specie. ' Hare, Contracts, 569 (1887). = v Etna Ins. Co. v. Kittles, 81 Ind. 97 (1881). 5 Boydell v. Drummond, 11 East, 85 (1809). On substantial performance, see 19 Cent. Law j. 443-46 (1884), cases. Time, as affecting performance, 26 id. 283-86 (1888), cases. ■• [Johnson v. Collins, 20 Ala. 441 (1852). * [Armstrong v. Kattenhom, 11 Ohio, 271 (1842); 16 id. 248. • Neale v. Neales, 9 Wall. 9 (1669): Purcell v. Miner, 4 id. 517 0866). ' 1 Story, Eq. §§ 761-62; Plymale v. Comstock, 9 Oreg. 318 (1881); Dudley v. Hay ward, 11 F. R. 543 (1882); Warren V. Warren, 105 111. 576 (1883). ^Brinser v. Anderson, Sup. Ct. Pa. (1888); Brown v. Hoag,36Minn. 375-76 (1886); Burns v. Daggett, 141 Mass. An equitable remedy, for it gives more than damages for non- performance, which only are recoverable at law. The conti'act constitutes the right. The object is to place the complainant, as nearly as possible, in the situation in which the defendant had agreed he should be placed. ^ A court of law is inadequate [not competent] to de-' cree a specific performance, and can relieve the injured party only by a compensation in damages, which, in many cases, would fall far short of the redress which his situation would require. Wherever, therefore, the party wants the thing in specie, and he cannot otherwise be fully compensated, a court of equity will grant him a specific performance.* Specific relief, execution, performance or enforcement of contract will be granted when it is apparent, from a view of all the circumstances of the case, that it will subserve the ends of justice; and it will be withheld when it appears it will produce hardship or injustice to either party. When specific execution, which would work a hardship were it unconditionally performed, will work equity when decreed on conditions, it will be decreed conditionally. Not a matter of right in either party; but a matter resting in the discretion of the court, to be exercised upon a consideration of all the circumstances of each case.^ Not decreed in favor of a party who has disregarded his own reciprocal obligationj'nor where duties to be fulfilled (as, by a grantee) are continuous, and involve the exercise of skill, personal labor, and cultivated judgment; nor where there is want of mutuality; nor where there is a complete remedy at law.' A contract for personal services, involving the labor, s Mll, and inventive genius of the person in default, cannot be specifically enforced.' The original and sole equity of the jurisdiction is, that an award of damages at law will not afford adequate compensation — willnotput the complainant in a situation as beneficial to him as if the agreement were specifically performed " A court of equity may decree specific performance of a contract concerning a chattel, and, while generally it will not exercise it, it is proper so to do where the plaintiff's case is good, his right clear, and the remedy at law inadequate or its enforcement attended with doubt or diflflculty.' While itis a rule that specific performance of a conti-aet respecting personalty wlU not be decreed, because compensation is ordinarily sufficient, in cases 1 Tasker v. Small, 3 My. & C. '69 (1837), Cottenham, Lord Chancellor. ' 1 Story, Eq. § 716; Satterthwait v. Marshall, 4 Del. C!h. 338 (1872). » Willard v. Tayloe, 8 Wall. 565-67 (1869), cases, Field, J.; Nickerson v. Nickerson, 127 U S. 675 (1888), cases. * Rutland Marble Co. v. Bipley, 10 Wall. 337-59 (1870), cases, Strong, J. » Wollensak v. Briggs, 119 111. 453 (1887), cases. ' Comer v. Bankhead, 70 Ala. 496 (1881): Lead. Cas. Eq., 4 Am. ed., 1093; Harnett v. Yielding, 8 Sch. & where the circumstances are extraordinary, as respects either the property or the situation of the purties, and an action for damages would not afford an adequate remedy, equity may be invoked for specific performance. Letters patent and copyrights fall within the exception.' ■He who seeks specific performance must show the facts which make such a decree equitable.^ The question, as already stated, is always one of sound judicial discretion. The contract must be definite in its terms, and be clearly proved. ^ The plaintiff must come into court with clean hands. Omission or mistake in the agreement, or that it is imconscionable or unreasonable, or that there has been concealment, misrepresentation or any unfairness, are some of the causes which induce the court to refuse its aid. If the jurisdiction attaches, the court will go on to do complete justice, although in its progress it may decree on a matter cognizable at law.' See Condition; Contract: Covenant; Laches. 2. An exhibition, entertainment, qq. v. F!E!BIIi. The risk, contingency, event, or cause of loss insured against, in a policy of marine insurance. The old phrases " perils of the sea," " perils of navigation," and " perils of the river," are interchanged. " Perils of the sea " are all those natural perils and operations of the elements which occur without the intervention of human agency, and which the prudence of man could not foresee, nor his strength resist.* While the phrase " perils of the sea " does not cover all losses that happen on the sea, there is a principle of constinictipn which gives it as extended a meaning as can be reasonably done. All navigation is perilous, and the rule that the insurer is liable only for losses occun'ing from extraordinary causes means nothing more than that a seaworthy vessel will endure all ordinary perils. The phrase is only used to describe those abnormal circumstances of dangerous navigation under which the loss occurs, be they what they maj'. Because the "peril" cannot be located it does not follow that there was none." See further Dangers; Risk; Salvage.