Opinion of the court by
Pancoast, J.:
The first five errors assigned depend upon the correctness of the ruling of the court below in sustaining the objection to the introduction of evidence, and may be conveniently considered together. It will be noted from the foregoing statement of facts that no demurrer was filed to the amended petition, nor was any attempt made by answer to take advantage of any defect in the petition, the question of the sufficiency of the averment of the petition being raised by objection to the introduction of evidence. When the only objection made to a petition is as in the case at bar, by objecting to the introduction of evidence at the trial, the court will look to determine only whether or not the petition states a cause of action in equity, and if the facts pleaded are sufficient and in their nature properly cognizable by courts of equitable jurisdiction, the objection ordinarily (will be overruled.
In the investigation of a pleading, in such case, it is well to bear in mind certain settled principles touching the relief sought. It is the well settled doctrine that specific performance is never demandable as a matter of absolute right, and the proof or pleading of a valid legal contract is not of itself enough to entitle one to a decree, for it lies within the sound discretion of a court of equity to grant or refuse to specifically enforce a contract, which is good at law, according to the facts of each particular case.
Fisher v.
Leaser, 69 Ill. 394,
King v. Hamilton,
4 Pet. (U. S.) 328;
Heniessey v. Wool
worth, 128 U. S. 438.
It is an essential consideration that the one insisting on specific performance make out a complete equity on his part, and to that end, he must show that the contract sued upon is one which, in all its features, appeals to the judicial discretion as being fit to be specifically enforced.
Bruck v. Tucker,
42 Cal. 347;
Chapman v. Morgan, 55
Mich. 124.
And where, as in the case at bar, it is disclosed by the applicant himself in his petition that the contract upon which the action is based is unreasonable in its provisions, if not unconscionable, and void under the Statute of Frauds, and that the acts done and relied upon to warrant a decree on the ground of part performance are not of such a nature that damages would not be an adequate relief, but, on the contrary, that he has within his immediate control money and property more than sufficient to compensate him for any loss sustained, a case for equitable intervention is not shown, and upon such state of facts, a court of equity is justified in refusing specific performance.
It is unnecessary that this court discuss the proposition of whether all oral contracts relating to the sale of real estate are or are not absolutely inhibited by the Statute of Frauds in force in this territory, as the question presented under this head, is, whether or not, upon the allegations of the petition in question, the relief sought should have been accorded or denied. Apart from the consideration of any question arising out of the Statutes of Frauds, from a careful scrutiny of the contract before us, as shown by the petition, it would seem the trial court was fully warranted in refusing to require it to be specifically performed. The petition shows that the total purchase price for the real estate was to be $2900.00; that as a part of the same contract the defendant in error sold to the plaintiff in error wheat and oats to the value of $920.00; and that but $50.20 was paid on the purchase price. It also appear^ that the plaintiff in error was to pay $1020.00 on or before the 1st day of January, 1902, which was the January following the date of the contract, leaving him to pay but $100.00 in cash out of his own resources, over and above the proceeds of the wheat and oats above mentioned. For this $100.00 he was to go into possession, and have the use of the farm, of the value of $2900.00, and was to have ten years in which to pay the balance of the purchase price, at 5 per cent interest, the interest not being payable until the expiration of the ten year period. It is true there is a provision in the contract by which the plaintiff below agreed to pay upon the remainder of the purchase price the net profits, arising from the farm, but what method had Dobrinski, the defendant below, of enforcing this one-sided provision, and wherein was Haffner
obligated to pay this profit until the ten years had expired? 'The practical operation of the contract is that upon paying but $150.20 upon the purchase price in addition to the value of the wheat and oats turned over to him, he obtains the use of the farm for a period of ten years, at 5 per cent interest, neither the interest nor the net profits to be paid over until the expiration of the ten year period.
As was well said by counsel fon, defendant in error in his brief, the contract wants mutuality, both as to these obligations and as to the equitable remedy of specific performance. No obligations are imposed by it upon the purchaser; he is not bound to cultivate the farm, nor refrain from turning it over to any irresponsible or incapable person he chooses.
There is no way by which the court or anyone else can determine the amount expended by the purchaser for help under the contract, but it lies wholly within his control to render the net profits of the farm little or nothing, by the employment of any number of persons his fancy may dictate, at whatever wages he may see fit to give, with no right in the defendant in error, under his contract, to say aught upon that point. It is a fundamental principle of specific performances that the right thereto must be mutual, and where the contract is, as here, not practically enforceable by the court as to both parties, equity will not enforce it unjustly against one alone.
Bulk v. Smith,
29 Mich. 166;
Iron Age Pub. Co. v. Western Union T. Co.,
3 Am. St. R. 758: Pomeroy on Contracts, secs. 162-165;
O’Brien v. Perry,
62 Pac. 927;
Blanchard v. Detroit R. R. Co., 31
Mich. 43.
As remarked by Chancellor Edward Sugden in an English case:
“The court acts onfy on the principle of executing the contract in specie, and in the very terms in which it has been made. Therefore, when you come to the specific execution of a contract containing many parts, you must see that it is possible to execute it effectively. The court cannot say that when an event arises hereafter it will then execute it.”
As in that case, the court in this action could only require the execution of a portion of the contract, whereas it is bound in law to require the execution of all. A decree now would not be a specific execution of the contract, but only a declaration that there ought to be a specific execution of it hereafter.
Not only that, but when, as here, part performance is relied upon to take the contract out of the statute of frauds, the nature of the acts constituting such part performance must be looked to in determining whether or not equity will intervene.
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Opinion of the court by
Pancoast, J.:
The first five errors assigned depend upon the correctness of the ruling of the court below in sustaining the objection to the introduction of evidence, and may be conveniently considered together. It will be noted from the foregoing statement of facts that no demurrer was filed to the amended petition, nor was any attempt made by answer to take advantage of any defect in the petition, the question of the sufficiency of the averment of the petition being raised by objection to the introduction of evidence. When the only objection made to a petition is as in the case at bar, by objecting to the introduction of evidence at the trial, the court will look to determine only whether or not the petition states a cause of action in equity, and if the facts pleaded are sufficient and in their nature properly cognizable by courts of equitable jurisdiction, the objection ordinarily (will be overruled.
In the investigation of a pleading, in such case, it is well to bear in mind certain settled principles touching the relief sought. It is the well settled doctrine that specific performance is never demandable as a matter of absolute right, and the proof or pleading of a valid legal contract is not of itself enough to entitle one to a decree, for it lies within the sound discretion of a court of equity to grant or refuse to specifically enforce a contract, which is good at law, according to the facts of each particular case.
Fisher v.
Leaser, 69 Ill. 394,
King v. Hamilton,
4 Pet. (U. S.) 328;
Heniessey v. Wool
worth, 128 U. S. 438.
It is an essential consideration that the one insisting on specific performance make out a complete equity on his part, and to that end, he must show that the contract sued upon is one which, in all its features, appeals to the judicial discretion as being fit to be specifically enforced.
Bruck v. Tucker,
42 Cal. 347;
Chapman v. Morgan, 55
Mich. 124.
And where, as in the case at bar, it is disclosed by the applicant himself in his petition that the contract upon which the action is based is unreasonable in its provisions, if not unconscionable, and void under the Statute of Frauds, and that the acts done and relied upon to warrant a decree on the ground of part performance are not of such a nature that damages would not be an adequate relief, but, on the contrary, that he has within his immediate control money and property more than sufficient to compensate him for any loss sustained, a case for equitable intervention is not shown, and upon such state of facts, a court of equity is justified in refusing specific performance.
It is unnecessary that this court discuss the proposition of whether all oral contracts relating to the sale of real estate are or are not absolutely inhibited by the Statute of Frauds in force in this territory, as the question presented under this head, is, whether or not, upon the allegations of the petition in question, the relief sought should have been accorded or denied. Apart from the consideration of any question arising out of the Statutes of Frauds, from a careful scrutiny of the contract before us, as shown by the petition, it would seem the trial court was fully warranted in refusing to require it to be specifically performed. The petition shows that the total purchase price for the real estate was to be $2900.00; that as a part of the same contract the defendant in error sold to the plaintiff in error wheat and oats to the value of $920.00; and that but $50.20 was paid on the purchase price. It also appear^ that the plaintiff in error was to pay $1020.00 on or before the 1st day of January, 1902, which was the January following the date of the contract, leaving him to pay but $100.00 in cash out of his own resources, over and above the proceeds of the wheat and oats above mentioned. For this $100.00 he was to go into possession, and have the use of the farm, of the value of $2900.00, and was to have ten years in which to pay the balance of the purchase price, at 5 per cent interest, the interest not being payable until the expiration of the ten year period. It is true there is a provision in the contract by which the plaintiff below agreed to pay upon the remainder of the purchase price the net profits, arising from the farm, but what method had Dobrinski, the defendant below, of enforcing this one-sided provision, and wherein was Haffner
obligated to pay this profit until the ten years had expired? 'The practical operation of the contract is that upon paying but $150.20 upon the purchase price in addition to the value of the wheat and oats turned over to him, he obtains the use of the farm for a period of ten years, at 5 per cent interest, neither the interest nor the net profits to be paid over until the expiration of the ten year period.
As was well said by counsel fon, defendant in error in his brief, the contract wants mutuality, both as to these obligations and as to the equitable remedy of specific performance. No obligations are imposed by it upon the purchaser; he is not bound to cultivate the farm, nor refrain from turning it over to any irresponsible or incapable person he chooses.
There is no way by which the court or anyone else can determine the amount expended by the purchaser for help under the contract, but it lies wholly within his control to render the net profits of the farm little or nothing, by the employment of any number of persons his fancy may dictate, at whatever wages he may see fit to give, with no right in the defendant in error, under his contract, to say aught upon that point. It is a fundamental principle of specific performances that the right thereto must be mutual, and where the contract is, as here, not practically enforceable by the court as to both parties, equity will not enforce it unjustly against one alone.
Bulk v. Smith,
29 Mich. 166;
Iron Age Pub. Co. v. Western Union T. Co.,
3 Am. St. R. 758: Pomeroy on Contracts, secs. 162-165;
O’Brien v. Perry,
62 Pac. 927;
Blanchard v. Detroit R. R. Co., 31
Mich. 43.
As remarked by Chancellor Edward Sugden in an English case:
“The court acts onfy on the principle of executing the contract in specie, and in the very terms in which it has been made. Therefore, when you come to the specific execution of a contract containing many parts, you must see that it is possible to execute it effectively. The court cannot say that when an event arises hereafter it will then execute it.”
As in that case, the court in this action could only require the execution of a portion of the contract, whereas it is bound in law to require the execution of all. A decree now would not be a specific execution of the contract, but only a declaration that there ought to be a specific execution of it hereafter.
Not only that, but when, as here, part performance is relied upon to take the contract out of the statute of frauds, the nature of the acts constituting such part performance must be looked to in determining whether or not equity will intervene. Ordinarily, when there has been a part performance of an oral contract for the sale of real estate, it may be enforced in equity where the acts done in part performance are difficult to compensate in damages. But, according to the better doctrine, in order that specific performance may be decreed on this ground, the acts done by the one seeking relief and relied on the warrant a decree, must be of such a nature that damages would not be an adequate relief.
Williams v.
Morris, 95 U. S. 444;
Baldwin v. Squier,
31 Kans. 283;
Brown v.
Hoag, 35 Minn. 373.
But what are the acts pleaded in the petition by way of part performance, in this case? None, save that the purchaser paid the mere nominal sum of $50.20 upon the purchase price, entered into possession of the property, did those small acts of repairing common to all farmers, expended but
sixty dollars in improvement, and prepared one hundred and ten acres for crop, all acts of such a nature that it would seem the money he pleads he has in his possession belonging to the defendant in error must be adequate to cover them many times over. As the plaintiff below alleges in his petition, he has in his own control the $920.00 realized from the sale of the wheat and oats, and in addition thereto, the sum of $458.76, the first year’s returns from the farm above the cost of obtaining it, while, as before stated the only damages he could possibly sustain, under the conditions shown, are the small amounts, if any, expended for planting of trees and other minor improvements, and the time he has lost. By his own statements, he has within his own control adequate compensation for whatever loss he has sustained by reason of .Dobrinski’s noncompliance with the contract. He is not the one entitled to relief; by his own words, it seems he has lived on the farm free for over a year ; has almost $1400.00 of the other’s money in his hands, and now complains in equity that fraud will be perpetrated upon him if the court does not enforce a contract which will allow him to remain nine years longer in possession of the land, free from any obligations with which the defendant in error can force him to comply, until the expiration of that time. It is not a condition that appeals to equitable consideration, so far as the plaintiff in error is concerned; and under the allegations of the petition, we think the trial court was amply justified in sustaining the objection to the introduction of any evidence.
The remaining assignments of error go to the granting of an injunction by the court. It appears from the record that after this action was brought in the district court of
Kingfisher county, the defendant -below, Dobrinski, commenced certain actions against the plaintiff in error, Haffner, in the probate court, for forcible entry and detainer. The court restrained the plaintiff in those suits from prosecuting them further, but required the defendant, Haffner, to give bond, and later refused to make the injunction perpetual. It is urged by counsel for the plaintiff in error that the injunction should have been made perpetual, and this, too. without bond on the part of Haffner.
We
see no merit, however, in these contentions, as by sec. 4429, 'Wilson’s Stat. 1903, it is provided that “No injunction shall operate until the party obtaining the same shall give an undertaking in an amount fixed by the court or judge allowing the same, to secure to the party the damages he may sustain if it be finally decided that the injunction ought not to have been granted.” And as to the refusal of the court to make the injunction perpetual, that question cannot be considered here. Time was given within which to appeal from the order refusing to make the injunction perpetual, and no appeal having been taken from that order within the time allowed, the action of the trial court in that respect cannot be reviewed.
For the reasons herein given, the judgment of the court below is affirmed.
Irwin, J., who presided in the court below, not sitting; all the other Justices concurring.