Linden v. Hoshal

12 N.W.2d 385, 307 Mich. 568, 1943 Mich. LEXIS 561

Opinions

North, J.

I concur with Mr. Justice Chandler in affirming the decree insofar as it holds the contract good and requires an accounting for accrued sums by defendant to plaintiff; but note that the instant case is not one to which the remedy of specific performance is appropriate. How can a court decree specific performance of payment of unliquidated sums of money not yet due? And further, mutuality of remedies is not available to both plaintiff and defendant. “There must be ‘a mutuality of remedies as well as of obligations.’ ” Matthews v. Plymouth Community Hotel Co., 265 Mich. 309, citing numerous Michigan decisions.

The decree is affirmed wherein it holds the contract valid and requires an accounting; and the case should be remanded for further proceedings to that end. An amended decree in accord herewith, deleting the words “that said agreement be specifically performed,” should be entered in this Court; but since the irregularity in the trial court’s decree was not prejudicial to appellant, costs of this Court should go to appellee.

Starr, Wiest, Butzel, Bushnell, and Sharpe, JJ., concurred with North, J.