42 Minn. 482 | Minn. | 1890
This action was instituted by the plaintiff to cancel and set aside a contract made and entered into between the parties, and which the plaintiff alleges has been placed on record by the defendant. From a copy which is made a part of the complaint, it appears that the plaintiff sold and agreed to convey to the defendant a leasehold estate in and upon certain described real property, situated in the city of Minneapolis, together with the buildings and improvements thereon, fully completed in accordance with certain specifications ; the title to said estate to be perfect, but subject to leases already executed by plaintiff on part of the premises. In consideration of which, the defendant agreed to pay the sum of $70,000, of which $20,000 was to be in cash, the balance, $50,000, in 5,000 acres of pine lands in the state of Georgia; “also, three hundred and twenty acres of land in Dakota territory, * * * said 320 acres of Dakota lands to be situate within nine miles, at least, of a railroad station, and to be good, tillable land.” There were other stipulations in the contract, relative to taxes, abstracts of title, form of conveyances, and time of performance, which need not be specially mentioned. The complaint sets up, as a reason for the cancellation demanded, fraudulent representations in regard to the pine lands, made by defendant to plaintiff, by and through which he was induced to enter into the contract; and, further, (wholly unnecessarily, if it be
It stands admitted that defendant could not have been adjudged to perform specifically, in the absence of any description of the land in Dakota which he was to convey; but it does not follow that the contract lacked consideration or possessed no binding force; nor, in
This view of the legal aspect of the case leads to a consideration of the question made prominent, — the power of the court to decree specific performance when but one of the parties can invoke that remedy. It has been stated repeatedly, in connection with this subject, that courts of equity act upon the ground that the remedy, if it exists at all, ought to be mutual and reciprocal, as well for the vendor as for the purchaser. The general rule, universally laid down, is that, to entitle either party to specific performance, there must be a mutuality of remedy as well as of obligation. True it is that a mutuality of obligation must exist when the contract is concluded. If it lack this element ab initio, no subsequent act of the party who seeks to enforce it can obviate the objection, and render the contract capable of specific performance. But it is not indispensable that at the conclusion of the agreement there shall be a mutuality of remedy, although it has been so asserted in some of the text-books, and distinctly affirmed in adjudicated cases. It is, however, impossible to determine from the text-books, or by an examination of the eases referred to, upon what equitable principle the proposition rests, or has been placed by those who have announced it. When, from the nature of the contract, it is not in the power of the court to compel a full and complete specific execution by both parties at the time coercion is demanded by one, the reason is obvious why specific performance should not be exacted on one side, and the contract left wholly or partly unperformed on the other. Cases frequently cited in support of the statement that there must be mutuality of remedy as well as of obligation, ab initio, are simply authority for the easily understood proposition before stated, that mutual enforcement of the contract must be practicable when specific performance is to be decreed. The court should then be able to enforce all of the terms of the contract at once, in prcesenti; should have the power to superintend the performance of the conditions of the contract by each of the parties,
The case of Cooper v. Pena, 21 Cal. 403, is a noticeable one, because it has been so frequently put forward as an illustration of the doctrine that there must be mutuality of remedy at the inception, which must appear from the contract itself; that where one has agreed to render personal services, in consideration of which he is to receive a conveyance of certain lands, a court of equity will refuse specific performanee, and decline to compel the execution and delivery of the conveyance, although the services have been wholly performed. An examination of the facts in the case, in connection with the opinion of the court, shows that when the action was brought the services agreed upon had not been wholly rendered. The court refused relief upon the express ground that, so far as the contract remained unperformed, the plaintiff couíd not be compelled to complete it, and hence the element of mutuality was wanting at the very moment the decree was required. It will also be discovered, upon reading the earlier cases, that nothing more was intended by the frequently.repeated statement that mutuality of remedy is necessary, than that it exist at the time the court is asked to protect and enforce the rights of the parties by its decree.
Where a party contracted to perform personal or professional services, in consideration for which it was agreed that he should receive certain real estate, specific performance was decreed in his favor, after he had rendered the services, although at the inception of the contract he could not have been compelled to perform the same. Allen v. Cerro Gordo Co., 40 Iowa, 349. So, where a vendor of real property has no valid title at the time he undertakes in good faith to convey, and is therefore unable to then perform, but subsequently and seasonably acquires title, so that he can satisfy the terms and conditions of his contract, he can enforce the same; and can also be coerced at the suit of the purchaser. Townshend v. Goodfellow, 40 Minn. 312, (41 N. W. Rep. 1056;) Gregory v. Christian, supra, p. 304, (decided at this term;) Pom. Cont. §§ 341, 421.
Order reversed.