Norris v. Fox

45 F. 406, 1891 U.S. App. LEXIS 1765

Opinion

Thayer, J.,

(after stating the facts as above.) Specific performance cannot be enforced in this instance for want of mutuality in the contract, so far as the remedy for its enforcement is concerned. The rule is fundamental that a contract will not he specifically enforced unless it is obligatory on both parties, nor unless both parties at the time it is executed have the right to resort to equity for its specific enforcement. Marble Co. v. Ripley, 10 Wall. 340; Bodine v. Glading, 21 Pa. St. 50; Duvall v. Myers, 2 Md. Ch. 401; German v. Machín, 6 Paige, 288; Boucher v. Vanbuskirk, 2 A. K. Marsh. 345; Duff v. Hopkins, 33 Fed. Rep. 599-608. And where a contract when executed is not specifically enforceable against one of the parties, he cannot, by subsequent performance of those conditions that could not be specifically enforced, put himself in a position to demand specific enforcement against the other party. Hope v. Hope, 8 De Gex, M. & G. 731-786; Fry, Spec. Perf. (3d Ed., Amer. Notes,) § 443. In the case at bar the agreement of Norris to procure a warranty deed of land at the time belonging to another, was of that nature that only an action at law would lie for a breach of the agreement. As Fox could not compel specific performance of the contract when made, and only had his remedy at law by a suit for damages, the complainant must resort to the same remedy.

The bill is dismissed, without prejudice to the complainant’s right to sue at law.