Wakeham v. Barker

Fox, J. This is an action for the specific performance of a contract for the sale of real estate. Plaintiff also prays for damages for non-performance; and in case specific performance cannot be had, then for judgment for compensation for the payments already made, with damages for non-performance.

The complaint shows that the plaintiff and defendant entered into an agreement in writing for the sale' by defendant to plaintiff, who also bound himself to buy, a certain tract of land in consideration of fifty dollars paid down, and the further sum of seven hundred dollars, to be thereafter paid in money, in monthly installments of twenty dollars each, with interest on all unpaid balances,payable monthly, at the rate of nine per cent per annum. If the contract had stopped there, there would have been no difficulty in plaintiff, if not himself in default, enforcing specific performance against the defendant. But unfortunately for the enforcement of that remedy, afterward, and on the same day, the parties entered into a supplemental agreement in writing, whereby they modified and entirely changed the original agreement as to the mode, manner, and time of payment. By this second agreement the interest was reduced to six per cent per annum, and the defendant agreed to take his pay, and the plaintiff agreed to pay the said seven hundred dollars and interest, in work and labor, to wit, in painting and graining, at an agreed price per square yard, the defendant to furnish the plaintiff with painting and graining to do at the price so fixed, and to pay him fifty percent of the price so fixed in cash, the remaining fifty per cent to apply on account of the said seven hundred dollars and the interest thereon, until the whole amount thereof was paid, “the entire amount to be taken out within one year from September 1, 1884.”

[49]It is a well-settled rule of law that specific performance will not be enforced against cither party if it cannot be so enforced against the other. It is also well settled that specific performance for personal service cannot be enforced. It follows that the moment this supplemental agreement was made, specific performance could not be enforced against the plaintiff, and consequently, so long as the contract was not fully performed on his part, he could not enforce it against the other. Nevertheless, whenever he shows that without default he has fully performed on his own part, he may compel the other to convey as he has agreed to, or if conveyance cannot be had, may recover in damages for the breach. But his present complaint does not make a sufficient showing for this purpose.