Section 4.36 Damages in Addition to, or in Lieu of, Specific Performance

• Library: Contracts 2016 Supp

2. (§4.36) Damages in Addition to, or in Lieu of, Specific Performance

Frequently, when a plaintiff seeks specific performance of a contract, the plaintiff will have been injured because of the defendant’s delay in performance or other type of breach. Under these circumstances, when specific performance alone will not make the plaintiff whole, courts of equity have traditionally granted both damages and equitable relief. Metro. St. Louis Sewer Dist. v. Zykan, 495 S.W.2d 643 (Mo. 1973). Similarly, courts have granted additional equitable relief when neither specific performance of the contract nor damages alone will make the plaintiff whole. In addition, at least one court has issued a mandatory injunction to compel the defendant to undo what the defendant has done in violation of a contractual provision. Eichelsbach v. Harding, 309 S.W.2d 681 (Mo. App. E.D. 1958).

The more difficult question arises when the court has denied specific performance, and the question is whether the court should retain the case to grant purely legal relief. When the...