There is nothing in the law of specific performance which has given rise to so much confusion as the rule requiring mutuality in order that the plaintiff shall be entitled to specific performance. The rule has been stated as follows:
"A contract to be specifically enforced by the court must, as a general rule, be mutual, - that is to say, such that it might at the time it was entered into, have been enforced by either of the parties against the other of them. Whenever, therefore, whether from personal incapacity to contract, or the nature of the contract, or any other cause, the contract is incapable of befog enforced against one party, that party is generally incapable of enforcing it against the other, though its execution in the latter way might in itself be free from the difficulty attending its execution in the former."57 Understanding the word "enforced" in this passage to mean specifically enforced, the reader will see that as thus stated, the rule not only requires the existence of a valid contract but "mutuality" of remedy.58 Of the attempts to apply the rule it has be6n said: "The rule as to mutuality of remedy is obscure in principle and in extent, artificial, and difficult to understand and to remember." 59 It is impossible to attempt here to collect and differentiate all the decisions which have dealt with the matter.60 As the rule, if taken literally, is in conflict with numerous decisions, and its broader statements are falling into some discredit,61 this is the less essential. In the discussion of the cases
55 Fry on Specific Performance (5th ed.), Sec. 835; Langdell, Brief Survey of Eq. Jur. 50; Roquemore v. Mitchell, 167 Ala. 475, 480, 52 So. 423, 140 Am. St. Rep. 52.
56 In Noyes v. Bragg, 220 Mass. 106, 107 N. £. 669, the plaintiff had contracted to buy a farm of the defendant for eleven hundred dollars in instalments of twenty-five dollars a month with interest on the unpaid purchase money. The plaintiff was given possession. After part payment by the plaintiff the defendant repudiated the contract and conveyed the premises to a third person who had notice of the plaintiff's rights. The plaintiff was granted a decree for a conveyance upon his completing payment in full of the price at the agreed rate and times; while the decree also provided that he should pay past over-due instalments with interest and future instalments when due. See also the cases where continuous performance was decreed, supra, Sec.1423.
57 Fry, Specific Performance (5th ed.), Sec. 460.
58 See to the same effect, Pomeroy, Specific Performance, Sec. 165.
59 Professor Langdell in 1 Harv. L. Rev. 104. It is criticised with equal severity by Pomeroy, Eq. Jur, Sec.769; Spec. Perf., (160.
60 They are collected and discussed by Professor William Draper Lewis in 49 Amer. L. Rev. 270, 382, 445, 507, 550, 50 Amer. L. Reg. 65, 251, 329, 523. Recent decisions stating the requirement in various terms, but on their facts generally reducible to the principle stated, infra, Sec.1440, are: Taussig v. Corbin, 142 Fed. 660, 73 C. C. A. 656; Shubert v.Woodward, 167 Fed. 47, 92 C. C. A. 509; P&atages v. Grauman, 191 Fed. 317, 112 C. C. A. 61; Black Diamond Coal Min. Go. v. Jones Coal Co., (Ala. 1917), 76 So. 42; Pacific, etc., R. v. Cwnpbell-Johnston, 153 Cal. 106, 94 Pac 623; Welty v. Jacobs, 171
11I. 624, 49 N. E. 723, 40 L. R. A. 98; Oswald v. Nehls, 233 111. 438, 84 N. £. 619; BartholomsB, etc., Co. v. Modzelewski, 269 111. 539, 109 N. E. 1058; Parker v. Sargent, 201 111. App. 574; Kansas Const. Co. v. Topeka, etc., R., 135 Mass. 34, 46 Am. Rep. 439; Carney v. Pendleton, 139 N. Y. App. D. 152, 123 N. Y. S. 738; Stokes v. Stokes, 148 N. Y. 708, 43 N. E. 211; Wadick v. Mace, 191 N. Y. 1, 83 N. E. 571; Levin v. Diets, 194 N. Y. 376, 87 N. E. 454, 20 L. R. A. (N. S.) 251; Asberry v. Mitchell, 121 Va. 276, 93 S. E. 638; Hostess Committee v. Zollman, 122 Va. 41, 94 S. E. 164.
61 In Javierre v. Central Alta-gracia, 217 U. S. 502, 506, 54 L. Ed. 859, 30 Sup. Ct. 598. Holmes, J., said: "There is too a want of mutuality in the remedy, whatever that objection may amount to." In Lamprey v. St. Paul, etc., R., 89 Minn. 187, 192, 94 N. W. 555, Start, C. J., mutuality of obligation as well as of remedy is often brought up; but the requirement of mutuality of obligation is simply the requirement of a valid contract, an obvious necessity, but better expressed in other language.62