Cooper v. Pena
Before: Cope
Synopsis
Equity will not enforce the specific performance of a contract where the party-asking its enforcement cannot, from the nature of the contract, be compelled to perform, it specifically on his part.
In order that a specific performance of a contract may be compelled, the remedy as well as the obligation must be mutual, and as a general rule the question of mutuality is to be determined by the contract itself, and is not affected by circumstances arising after the contract is made and the rights of the parties fixed.
The cases in which a want of mutuality at the time the contract has been entered into has been held not to be sufficient reason for refusing to enforce it—as in contracts with infants, those between lessor and lessee, trustee and cestui que trust, voluntary settlements, and the like—are exceptional cases in which peculiar considerations have been allowed to override the principle of mutuality, and they do not contravene the general rule as above stated.
The specific performance of a contract is not a matter of course, but rests in the sound discretion of the Court upon a view of all the circumstances, and before the Court will act it must be satisfied that the contract is reasonable and equal in its operation.
Equity will not enforce specifically a contract for personal services—especially where they are confidential in their nature and involve in their performance the exercise of discretionary authority—but will leave the party to his remedy at law.
Eor the purpose of enforcing specific performance of stipulations, the consideration for which was an agreement by the plaintiff to perform personal services, an offer to perform these services is not equivalent to an actual performance. The rejection of the offer by the defendant excuses the performance as a condition precedent, but does not release the plaintiff from his obligation to perform so long as he insists upon the agreement.
Cope, J. delivered the opinion of the Court Field, C. J. and Norton, J. concurring.
This is an action to compel the defendant to convey to the plaintiff a tract of land in the county of Solano. The action is based upon [410]a bond given in 1850, by which the defendant bound himself, in consideration of one dollar, and of certain services to be rendered by the plaintiff, to convey to him the land. It appears that the defendant and one Vaca were joint owners of a grant of land from the Government of Mexico, and that they were desirous of having a partition and division of the land between them. The defendant employed the plaintiff to represent him in the matter, and for the services to be rendered agreed to convey to the plaintiff three hundred and twenty acres of his share of the land. The bond was given to secure the performance of this agreement, vesting in the plaintiff the right of selection, and binding the defendant to convey as soon as the selection should be made. The partition was partially effected in 1850, but difficulties arose in the way of completing it, and the parties agreed to postpone the completion until the boundaries of the grant should be fixed by the proper authorities. This was not done until 1857, when the plaintiff offered to go on and complete the partition, but the defendant refused to allow him to do so, whereupon he made a selection, and demanded a conveyance. The Court below rendered a judgment in his favor, and the appeal is from an order setting the judgment aside, and granting a new trial.
The plaintiff contends that the judgment was correct, and that the Court erred in setting it aside. Various grounds are urged by the defendant in support of the order, the principal one of which is the want of mutuality in the agreement. So far as the agreement is unperformed, the plaintiff cannot be compelled to perform it on his part, for equity will not enforce a contract for personal services, but leave the party to his remedy at law. In respect to the remedy, therefore, there is no mutuality, and it is universally admitted that equity will not enforce a contract, where the party asking its enforcement cannot himself be compelled to perform it. The contract must be just and equal in its provisions, and the subject matter must be such that equity can take jurisdiction of it, and compel performance by both of the parties. The remedy must be mutual as well as the obligation, and where the contract is of such a nature that it cannot be specifically enforced as to one of the parties, equity will not enforce it against the other. As a general rule,
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