63 So. 951 | Ala. | 1913
— In order for a complainant to procure the specific performance of a contract through a court of equity, he must show a contract that is specific, certain and complete. He cannot set up one contract and then procure the performance of another. ' If he contends for a certain contract as having been made between the parties, but which was not complied with by the respondent, he cannot procure the court to make a new or different contract from the one contended for by him, in order to get a specific performance of some contract, regardless of whether or not it was the one contended for by him as the real contract. In other words, the appellant contended for and presented a certain lease as the embodiment of the true and real contract between the parties, but which was not such a lease as would be approved by Kilborn, and it did not have the right to change the contract from the one originally made so as to bring it within the approval of said Kilborn, and then procure a specific performance by the respondent of a lease different from the one contended for and demanded by the said complainant.—
The receipt in question provides that “the lease” was to he approved by Kilborn, who was the agent of the respondent’s vendor, and who had considerable interest in the subject-matter. This meant, not only a consent to lease, but that Kilborn would approve the document evidencing the lease. The proof shows that Kilborn would not, under any circumstances, approve the lease as contended for by the appellants as the real contract, and the execution of which was demanded of the respondent Buhlig. It may be true that Kilborn testified that he might or would approve a certain kind of lease under certain conditions, but he is positive and emphatic that he would not approve such a lease as the complainant contends was the real contract, and which was presented for execution. Where defendant cannot perform a contract without obtaining the consent of a third person, who is free to withhold his consent, and does withhold it, the decree will not be made. But it is no objection to the specific enforcement of a contract that consent of a third person is necessary to its performance, where it appears that he does or will consent. — 36 Cyc. 573; Roquemore v. Mitchell, 167 Ala. 475, 52 South. 423; 140 Am. St. Rep. 52; Hurlhurt v. Kantzler, 112 Ill. 482; Lyon v. Hardin, 129 Ala. 643, 29 South. 777. The evidence in this case shows that the contract as contended for by the complainant as the real contract, and which was presented for execution, would not be approved by Kilborn, and as the lease was to meet with his approval, under the terms of the receipt (which will be set out by the reporter), a court of equity is powerless to make said Kilborn approve the same, or to decree the specific performance of same by this respondent. While we have treated this
The decree of the chancery court is affirmed.