209 Ill. 120 | Ill. | 1904
delivered the opinion of the court:
This is a contract between Norman P. Cummings and Henry H. Gage, and provides for the conveyance of real estate by each. Mary B. Gage is not a party to the agreement, and it contains no recital to indicate any purpose that she should be a party thereto. It is not a unilateral or option contract, but provides absolutely for the conveyance of all the real estate therein described. The title to a part of the real estate which Gage agreed to convey was vested in Mary B. Gage. It is apparent that as the rights of the parties existed when that contract was concluded, Cummings would have had no right, at any time, to enforce specific performance thereof because Mary B. Gage was not bound thereby, while it is apparent from the contract that the purpose was that the owner of all the real estate therein described'should, upon the execution of the contract, be bound to convey, and not that Mary B. Gage, the owner of a part of that which Gage had agreed to convey, should have an option whether or not she would accept the contract. As the rights of the parties were fixed by that contract, barring the question of a lack of mutuality, Gage, at its maturity, would have had a right to enforce specific performance thereof against Cummings, while Cummings could not enforce specific performance against Gage, for the reason that Gage was not the owner of all the real estate which he had agreed to convey.
“A contract to be specifically enforced by the court must be mutual, that is to say, such that it might, at the time it was entered into, have been enforced by either of the parties against the other of them. Whenever, therefore, whether from personal incapacity, the nature of the contract or any other cause, the contract is incapable of being enforced against one party, that party is equally incapable of enforcing it against the other, though its execution in the latter way might in itself be free from the difficulty attending its execution in the former.” Fry on Specific Performance, sec. 286; Waterman on Specific Performance, sec. 196; 2 Beach on Modern Law of Contracts, sec. 885; Pomeroy on Contracts, (2d ed.) sec. 166; Tryce v. Dittus, 199 Ill. 189; Beard v. Linthicum, 1 Md. Ch. 345; Duvall v. Myers, 2 id. 401; Luse v. Deitz, 46 Iowa, 205.
Applying this test to the contract before us, it is apparent that the decree of the court below is correct, for the reason that under the contract as executed Cummings could not have specifically enforced the same against the owners of the real estate which Gage agreed to convey.
It is urged, however, that Mary B. Gage, within the time limited by the contract for the conveyance of the real estate by Henry H. Gage, executed her deed and placed it in the hands of a trustee, to be delivered to Cummings whenever he complied with the contract on his part, and that this was an acceptance of the contract on her part, and that thereafter it could have been specifically enforced by either party thereto. This contract was not one made subject to the acceptance or approval of Mary B. Gage, and therein it is distinguishable from a so-called option contract, which, in accordance with its terms, becomes binding as a contract for the purchase and sale of real estate between the parties only when the person entitled to exercise the option accepts, while the contract before us is one which, if binding upon the owners of the real estate as a contract of purchase and sale at all, must have been binding at the moment of its execution.
Appellants rely upon the case of Dresel v. Jordan, 104 Mass. 407. In so far as that case expresses views at variance with those hereinabove set forth, we deem it opposed to the great current of authority and to the better reason. Moreover, it is distinguishable in some respects from the case at bar, while Luse v. Deitz, supra, is exactly in point.
The decree of the superior court will be affirmed.
Decree affirmed.
