Howard v. Throckmorton

By the Court, Rhodes, J.: The Court found that the plaintiffs and Goold had duly performed the contract of August 21, 1855, made between the plaintiffs and Throckmorton. From the pleadings and judgment the implication is that the Court also found that each of the plaintiffs assigned to Goold one half of the compensation to which he was entitled under that contract, on condition that he (Goold) would render professional services as specified in the contract; that Throckmorton had notice of such assignment, and accepted and availed himself of the professional services of Goold. There was evidence to sustain those findings.

There was not an exact performance of the contract by the plaintiffs and Goold—some services about the matter having been performed by others; but within the doctrine of Ballard v. Carr, ante p. 74, there was a substantial performance.

While it is true, as a general proposition, that a party who has contracted to perform services of the character mentioned in the contract in this case cannot maintain an action for specific performance while the contract remains unperformed on his part, yet if he can show a substantial performance on his part, he is as fully entitled to maintain such action as he would be if the agreement on his part had been for the payment of money. (See Ballard v. Carr, supra.)

[490]It is testified by Throckmorton that at a certain stage in the business he regarded the contract of 'August 21, 1855, as abandoned, but it is by no means clear that Howard & Perley so intended. The finding was against the abandonment, and we see no grounds upon which the finding can be disturbed.

The defendant, Throckmorton, is precluded by the pleadings from raising the point that litigation in respect to the Saucelito Bancho' was pending at the commencement of the action, the answer having addmitted that all the litigation in respect to thé property mentioned in the agreement had ended and terminated.

The fact that the property has greatly enhanced in value since the contract between Throckmorton and Howard & Perley was made, and that such enhancement was in a material degree the result of the labor and money of Throckmorton, presents no valid objection to the decree for specific performance. Howard &.Perley did not undertake to perform the labor which it is alleged was performed by Throckmorton, nor to furnish money to be used for the purpose of removing the encumbrances on the property, or for any other purpose in respect to it. Besides this, the answer contains no averment that Throckmorton performed any services or expended any money upon, or in respect to, the property other or different from what was contemplated by the parties to the contract.