Galbraith, J.
This is an appeal from a judgment rendered in consequence of an order sustaining a demurrer to the complaint. The action is to compel the specific performance of an alleged contract. The allegations of the complaint are in substance as follows, viz.:
“That on the 3d day of May, 1819, the defendant, Thomas Cruse, was the owner of, and, as such, in the [492] actual possession and occupation of a certain quartz mining claim, situate in Ottowa mining district, in the county of Lewis and Clarke, Montana territory, known as the Pine Tree or Bon Mation lode; a description of the property is given. That the said lode was, by the locator thereof and his successors in interest, deeded to the said defendant, Thomas Cruse, who, on the 3d day of May, 1879, held the legal and equitable title to the same. That on the above 3d day of May, 1879, the defendant Cruse entered into'a certain contract with this plaintiff, whereby, in consideration that this plaintiff would render services to said defendant in and about compromising and settling a certain conflicting claim and matter of controversy then existing between one Larry Walsh and Lamartine C. Trent, and the said Thomas Cruse, concerning the property aforesaid and the title thereto, he would, in the event such dispute and controversy was settled and compromised by said plaintiff, convey to this plaintiff, by a good and sufficient deed, one undivided one-third of the said property so acquired and secured by said settlement or compromise; the said property at that time being undeveloped and of little value, and the said services being a fair and reasonable compensation for the interest so to he acquired. That, in pursuance of said contract, this plaintiff did proceed and compromise and settle the said dispute and controversy, as the agent for said defendant, and did procure and obtain from said parties a perfect and complete title, including the right, title and claim of said parties to all of the said lode claim, save and except a portion thereof described in the complaint, and being three hundred and fifteen linear feet on said Pine Tree lode. That, in pursuance of said settlement and compromise, the said Walsh and Trent executed to said defendant a good and sufficient deed for all the balance of said mining claim embraced in the said Pine Tree and Bon Mation lode claim, by reason whereof he became seized and possessed of the same and the legal [493] title thereto, and let this plaintiff into the occupancy and possession of his said one-third interest thereof, in accordance with the terms of said contract, and still holds, occupies and possesses the same. That since the performance of said coutract by this plaintiff and the acquirement of possession of said property by him, he has, as co-tenant with said defendant, expended in money and labor upon said property and other property held and owned in common by them the sum of $515 upon the faith and strength of his said contract. That, by reason of the said premises, the said plaintiff became and is entitled to a specific performance of said contract, in the conveyance to him of his said one-third interest in said property. That the respondent, Thomas Cruse, although often requested and demanded so to do, has refused, and still continues to refuse, to convey to the appellant the undivided one-third of the said property.”
There are, also, allegations in the complaint, which is an amended and supplemental one, that, long after the said contract was made, and after the plaintiff had entered into the possession of, and while he occupied and possessed his alleged interest in said property, and during "the pendency of this action, the defendants, Thomas Cruse, Duffy and Roberts, with a full knowledge of the rights and equities of the plaintiff, became the purchasers •of, and claim an interest in, the said lode claim of which the plaintiff is entitled to a one-third interest, and that all of said defendants have conspired together to procure a United States patent for said property in their names, so as to defeat any decree rendered in this cause against the said Thomas Cruse.
The complaint is silent as to whether or not the alleged contract was verbal or in' writing; but where, in such a case, there is no objection made by demurrer upon the .ground of ambiguity or uncertainty, the contract will be presumed to he in writing. Sweetland v. Barrett, 4 Mont. 217.
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Galbraith, J.
This is an appeal from a judgment rendered in consequence of an order sustaining a demurrer to the complaint. The action is to compel the specific performance of an alleged contract. The allegations of the complaint are in substance as follows, viz.:
“That on the 3d day of May, 1819, the defendant, Thomas Cruse, was the owner of, and, as such, in the [492] actual possession and occupation of a certain quartz mining claim, situate in Ottowa mining district, in the county of Lewis and Clarke, Montana territory, known as the Pine Tree or Bon Mation lode; a description of the property is given. That the said lode was, by the locator thereof and his successors in interest, deeded to the said defendant, Thomas Cruse, who, on the 3d day of May, 1879, held the legal and equitable title to the same. That on the above 3d day of May, 1879, the defendant Cruse entered into'a certain contract with this plaintiff, whereby, in consideration that this plaintiff would render services to said defendant in and about compromising and settling a certain conflicting claim and matter of controversy then existing between one Larry Walsh and Lamartine C. Trent, and the said Thomas Cruse, concerning the property aforesaid and the title thereto, he would, in the event such dispute and controversy was settled and compromised by said plaintiff, convey to this plaintiff, by a good and sufficient deed, one undivided one-third of the said property so acquired and secured by said settlement or compromise; the said property at that time being undeveloped and of little value, and the said services being a fair and reasonable compensation for the interest so to he acquired. That, in pursuance of said contract, this plaintiff did proceed and compromise and settle the said dispute and controversy, as the agent for said defendant, and did procure and obtain from said parties a perfect and complete title, including the right, title and claim of said parties to all of the said lode claim, save and except a portion thereof described in the complaint, and being three hundred and fifteen linear feet on said Pine Tree lode. That, in pursuance of said settlement and compromise, the said Walsh and Trent executed to said defendant a good and sufficient deed for all the balance of said mining claim embraced in the said Pine Tree and Bon Mation lode claim, by reason whereof he became seized and possessed of the same and the legal [493] title thereto, and let this plaintiff into the occupancy and possession of his said one-third interest thereof, in accordance with the terms of said contract, and still holds, occupies and possesses the same. That since the performance of said coutract by this plaintiff and the acquirement of possession of said property by him, he has, as co-tenant with said defendant, expended in money and labor upon said property and other property held and owned in common by them the sum of $515 upon the faith and strength of his said contract. That, by reason of the said premises, the said plaintiff became and is entitled to a specific performance of said contract, in the conveyance to him of his said one-third interest in said property. That the respondent, Thomas Cruse, although often requested and demanded so to do, has refused, and still continues to refuse, to convey to the appellant the undivided one-third of the said property.”
There are, also, allegations in the complaint, which is an amended and supplemental one, that, long after the said contract was made, and after the plaintiff had entered into the possession of, and while he occupied and possessed his alleged interest in said property, and during "the pendency of this action, the defendants, Thomas Cruse, Duffy and Roberts, with a full knowledge of the rights and equities of the plaintiff, became the purchasers •of, and claim an interest in, the said lode claim of which the plaintiff is entitled to a one-third interest, and that all of said defendants have conspired together to procure a United States patent for said property in their names, so as to defeat any decree rendered in this cause against the said Thomas Cruse.
The complaint is silent as to whether or not the alleged contract was verbal or in' writing; but where, in such a case, there is no objection made by demurrer upon the .ground of ambiguity or uncertainty, the contract will be presumed to he in writing. Sweetland v. Barrett, 4 Mont. 217.
[494] It appears by tbe record that the demurrer was sus^ tained upon the sole ground of the insufficiency of the allegations of consideration, and overruled as to all other matters. The record does not show that the court had obtained jurisdiction over the defendants, Thomas Cruse, Duffy and Eoberts, and however the allegations of facts which occurred pendente lite may affect Thomas Cruse, yet it is apparent that the relief predicated upon them is dependent upon the determination of the main question presented in this case, which relates solely to the sufficiency of the consideration alleged to support a decree for the specific performance of the alleged contract. It appears from the complaint that, at the time of the making of the alleged contract, whereby the appellant agreed to settle the conflicting claim and matter of controversy concerning the property, that the respondent, Thomas Cruse, was the owner of, and, as such, in the actual occupation and possession thereof; and that he, at that time, had the legal and equitable title thereto. This language indicates that the respondent, Thomas Cruse, at that time held the complete title to the property in question. There could, therefore, have been no valid claim or title to this property existing or outstanding in any one else. The character of the claim of Walsh and Trent is in no manner designated. In regard to this the complaint is silent, and whatever it was it must have been without merit and sham and frivolous. It cannot be said that, .by the settlement of such a claim or matter of controversy, that the respondent acquired or secured the said property, or that he thereby procured or obtained from Trent and Walsh, a perfect and complete title to the premises, save and except three hundred and fifteen linear feet thereof; or that by the deed executed by them, he became seized and possessed of the same and the title thereto; for upon the showing of appellant himself, the respondent held the complete and absolute title to the property. It does not, therefore, appear that [495] the settlement of this dispute was in any way beneficial to the respondent. It did not add to the strength of the title which he already held. The appellant will be presumed to have stated the contract as strongly in his own behalf as possible ; especially will this be presumed when it appears that this is an amended and supplemental complaint. The character of the dispute or matter of controversy nowhere appears in the complaint. The court should be fully apprised of this. The contract should not admit of doubt or suspicion; for example, as to its mutuality, as to its being one not opposed to public policy, or one illegal in its nature. The contract should not be ambiguous, or vague or uncertain. The consideration should appear upon its face to be fair, just and reasonable. Can this be said of this consideration, when the appellant fails and refuses; for such refusal will be presumed when, after the sustaining of a demurrer, the party refuses to amend, to set forth fully the nature and character of the consideration. The court, in such a case as this, when called upon to exercise the high power of compelling the execution of a contract in specie, should be informed of the entire nature and character of the contract, so as to determine for itself whether or not it is one which good conscience should enforce, free from objection and fair, just and reasonable, and equal in all its parts. The statement that “the services were a fair and reasonable compensation for the interest so to be acquired ” is the statement of a conclusion of law. The facts showing the character of the consideration should be before the court in this case, before it should be called upon to say that such a contract is fair, just and reasonable in all its parts. We cannot, therefore, say that this consideration is shown to be free from objection, or that it is fair, just and reasonable, and equal in .all its parts. And we are of opinion that, in refusing to grant specific performance of the contract upon this ground, the court exercised a sound judicial discretion. [496] As authorities sustaining this view, reference may be had to Henderson v. Hays, 2 Watts, 148; Graham v. Pencoast, 30 Pa. St. 89; Seymour v. Delancy, 15 Am. Decs. 270; Pomeroy on Specific Performance of Contracts, sec. 35, n. 1; Moak’s Van Sant. Pl. vol. 1, 898; Joseph v. Holt, 37 Cal. 250; Colson v. Thompson, 2 Wheat. 336; People’s Bank v. Adams, 43 Vt. 195; Morrison v. Rossignol, 5 Cal. 65; Johnston v. Glancy, 28 Am. Decs. 45.
But, if we had any doubt as to the correctness of the view as above stated, the record discloses another, and we think an insuperable objection to the grant of the relief demanded. It does not appear that the appellant has performed his portion of the contract set forth in the complaint; nor is there any averment of an offer to do, or of a readiness and willingness to do, all the material acts required of him by the contract. The contract was, that, in consideration that the appellant “would render services to said defendant in and about compromising and settling a certain conflicting claim and matter •of 'controversy then existing between one Larry Walsh and Lamartine 0. Trent and the said Thomas Cruse, concerning the property aforesaid and the title thereto, he would, in the event such dispute and controversy was settled and compromised by said plaintiff, convey to this ■plaintiff, by a good and sufficient deed, an undivided one-third of said property so acquired and secured by said settlement or compromise.” The .consideration, therefore, proceeding from the respondent was, that this dispute and controversy in relation to the whole of the property should be settled and compromised before he •should be entitled to a deed for a one-third interest therein; whereas, it appears that such settlement was had only as to about two-thirds thereof. The language, “so acquired and secured by said settlement and compromise,” in the above connection, will not be so construed as to mean that, if a part only was so acquired, ■that there should be a deed given for the appellant’s [497] alleged interest, pro tanto. If such a construction was intended by the appellant to be placed upon it, so important an allegation should have been pleaded by direct averment, and not by recital. Therefore, even if the title of the respondent had been jeopardized by the claim of Walsh and Trent, nevertheless, the consideration being an entire one, the appellant must have fully complied with the terms of the contract upon his part before a court of equity would decree a specific performance. In this case, such performance was a condition precedent to his remedial right. Pomeroy on Specific Performance of Contracts, sec. 323; Agard v. Valencia, 39 Cal. 292; Denniston v. Coquillard, 5 McLean, 253; Adams’ Equity, 82; Vincent v. Lessee of Huff, 4 Serg. & R. 297; Ryan v. Dunphy, 4 Mont. 342. From what has been already said, it is plain that it does not appear from the complaint whether or not the consideration is one which a court of equity ought to enforce, or whether it is one which it could enforce against the appellant. The remedial rights to specific performance of the contract should be mutual, ah initio.
“ It is a familiar doctrine that if the right to the specific performance of a contract exists at all, it must be mutual; the remedy must be alike attainable by both parties to the agreement.” Pom. on Specific Performance of Contracts, sec. 164. “The right to a specific execution of a contract, so far as the question of mutuality is concerned, depends upon whether the agreement itself is obligatory upon both parties, so that upon the application of either against the other, the court would coerce a specific performance. A party, not bound by the agreement itself, has no right to call upon the court to enforce performance against the other contracting party by expressing his willingness, in his bill, to perform his part of the agreement. His right to the aid of the court does not depend upon his subsequent offer to perform the contract on his part, but upon its originally [498] obligatory character.” Pom. Cont., supra, sec. 163, n. 1. Where there is a failure, as in the case before us, to indicate the nature and character of the consideration, how can the court determine whether or not the remedy and obligation under the contract are mutual?
It appears both from the record before us and the argument of the appellant that the only question raised, either here or in the court below, was in relation to the sufficiency of the consideration to' sustain the decree for specific performance. The averments in relation to the appellant being let into possession, and outlay of money upon the faith of the contract, are not relied upon. For the foregoing reasons, the ruling of the court upon the demurrer in relation to the sufficiency of the consideration was, in our opinion, correct. In such a case as this the court does not necessarily declare the contract void, but will leave the party to his remedy at law.
The judgment is affirmed, with costs.