1. Where an equitable petition is brought against several defendants, the plaintiff certainly has a right to dismiss his action as to one and proceed against the others. *193Such an amendment neither adds new and distinct parties, nor a new and distinct cause of action. The fact that the relief prayed against the remaining defendants is not as full and complete as was originally asked in the petition- against all the defendants does not render the cause of action set forth in the amendment a separate and distinct one from what was claimed in the original petition. If on the trial of an action for specific performance it should be developed that, without fault of the plaintiff but on account of the defendant himself, a specific performance of the contract is impossible, the court may proceed to assess damages for a breach of the contract. An amendment praying for such damages would not, in contemplation of law, make a new cause of action; for the statute expressly authorizes the granting of such relief even when not contemplated by the original suit. Civil Code, § 4042. Under the preceding section (§ 4041), it is declared that “ a want of title, or other inability as to part, will not be a good answer to the vendee seeking performance, who is willing to accept title to the part, receiving compensation for the other.” It appears from the record in the case, that the defendants against whom a recovery was had still had some interest in the property, namely, an equity of redemption. We think the plaintiff clearly had a right, under his pleadings, to ask a conveyance of this interest, and, under the section of the code cited, he might have gone still further and asked for damages growing out of the wrong that had been done him by the conveyance of the property to secure a loan. The amendment, however, does not go to this extent, but only seeks a recovery of such interest as still remained in the defendants. The position of plaintiffs in error is tantamount to saying to their adversary, “We have by our wrongful conduct placed you where you can not obtain the entire relief you originally sought, and, therefore, you should have no relief at all. We have placed a portion of the property, or a certain interest therein, where you can not recover it, and, therefore, we have a right to keep what remains.” Equity will not tolerate such a defense.
2. Plaintiff’s cause of action in this case is not founded upon . a mere voluntary agreement or gratuitous promise on the part of *194his father. He was induced by a promise of a gift of the land to leave his business in a remote county, and move upon the land in question; and, upon the faith of the gift, he erected thereon valuable and permanent improvements. Under § 4039 of the Civil Code equity will decree the performance of such an agreement. It is true that this action was not brought until after the father’s death; but it is alleged that the defendants, who were the wife and son of the father, knew of the contract entered into between the plaintiff and his father, were fully aware of the plaintiff’s right to the property, and an understanding and agreement was had that the property should be sold by the mother as administratrix, for the purpose of' putting it in such shape that title could be conveyed to plaintiff. The administratrix, after the s&le, deeded the property to the other defendant, who, instead of conveying it to the original owner according to agreement, borrowed money upon the land, and conveyed title thereto to secure the loan. There was no demurrer filed to the petition, and it is not claimed that it does not set forth an equitable cause of action which entitles the plaintiff to the relief that he sought. The evidence in behalf of the plaintiff sustains all the material allegations in his petition. The charge of the court was fair, and fully covered the issues of fact involved; and we think, after considering the entire charge, the errors assigned on the portions of it complained of, and on the omission of the court to give certain instructions to the jury upon the weight of evidence and the credibility of witnesses, etc., are without sufficient merit to require any further attention, or any special ruling thereon.
