Sturgis v. Galindo

ROSS, J.: This is a suit for the specific performance of an alleged [31]contract for the sale of real estate, and, therefore, is addressed to the sound discretion of the Court. The discretion to be exercised is not, it is true, an arbitrary or capricious one, depending upon the mere pleasure of the Court, but is one to be exercised and controlled by the established doctrines of equity, applied to the circumstances of the particular case.

“ Unless the Court is satisfied,” said Chancellor Kent, “ that the contract is fair and just, and equal in all its parts, and founded on an adequate consideration, it will not, by the interposition of its extraordinary power, order it to be executed.”

If an agreement be deficient in either fairness, justice, or certainty, its specific execution will not be decreed. (2 Story’s Eq., §§ 769, 770.)

And in addition to the elements of fairness, justice, and certainty, agreements of the character of that now before us must be mutual before the power of the Court to order specific performance can be successfully invoked. (Cooper v. Peña, 21 Cal. 403; Vassault v. Edwards, 43 id. 465; Marble Co. v. Ripley, 10 Wall. 339; Fry on Spec. Per., § 286.)

Applying these principles to the agreement in question, we are of the opinion that the action can not be maintained. The agreement was made on the 14th day of December, 1865, between Sal vio Pacheco of the first part, and John L. Bromley and Benjamin Jones of the second part. At the time of the execution of the contract Pacheco was the owner of the land in question, and Bromley and Jones were familiar with the business of prospecting for coal. By the contract, Pacheco, in consideration of one dollar and of the covenants on the part of Bromley and Jones hereinafter mentioned, agreed to execute to them a deed for the land on or before December 14th, 1867, provided they, Bromley and Jones, should on or before that day have fully complied with their covenants. Bromley and Jones covenanted to pay Pacheco, on or before the said 14th of December, 1867, five dollars per acre for the land; and further, that they would, on or before said 14th of December, prospect the said land for coal and coal veins, and in the event coal or coal veins were found sufficient, in their opinion, to warrant it, they would organize, under the laws of the State, a coal mining company, to be known as the Pacheco Coal Mining Company, and would cause stock to be [32]