The ordinarily received rule of mutuality 22 is open to objection also when applied as a reason for giving a plaintiff relief which it is possible though not essential for equity to give In such a case the argument runs that since the defendant would unquestionably be given equitable relief if he were sue-ing, the plaintiff also must have a right to specific performance. Where promises are mutually binding, justice requires that each promise should be adequately enforced; and further if not only the promises but the performances promised are, as is almost always the case,23 intended as the price or exchange for each other, that one party should not be required to perform specifically when he will acquire thereby merely a right of action for damages; at least unless the terms of the contract indicate that he assumed that risk, by agreeing to perform at an earlier date than the other party. But if a court of law can effect the desired result on one side as fully as a court of equity,
20 Star Co. v. Press Pub. Co., 162 N. Y. App. D. 486, 147 N. Y. S. 579; See also Window v. Mayo, 123 N. Y. App. D. 758, 108 N. Y. S. 640, and criticism by Stone in 16 Columbia L. Rev. 443, 460.
21 Mutual Milk Co. v. Prigge, 112 N. Y. App. D. 652, 98 N. Y. S. 458; Mutual Milk Co. v. Heldt, 120 N. Y. App. D. 795, 105 N. Y. S. 661,
22 Supra, Sec.1433.
23 See supra, Sec.$813, 888.
and an equitable remedy is necessary for the enforcement of the promise on the other side, there seems no reason why a court of equity should give a remedy to each party;24 and in fact though a vendor of land may specifically enforce the contract against the purchaser while the contract is still unperformed on his part,25 if the vendor has fully performed so that nothing remains to be done by the purchaser but to pay the price (and probably if the price or an instalment of it is payable before and independently of the conveyance, the time for making which has not arrived), so that the vendor would recover at law the same amount that he would be given in equity, there is an adequate remedy at law, and there seems no reason why equity should take jurisdiction.26 It has been suggested as a better justification for allowing a suit by the vendor than the necessity of mutuality which is the usual explanation, that the vendor holds the legal title to his property, subject to equitable rights in the purchaser, who is therefore entitled to the aid of the court of equity to adjust their rights.27 It is true that if similar relief were obtainable at law, the vendor's right to come into equity would be doubtful. The vendor under an executory contract to sell chattels of unique or special character 28 may
24 Eckstein 9. Downing, 64 N. H. 248, 9 AtL 626, 10 Am. St. Rep. 404; Northern Central R. v. Walworth, 193 Fa. 207, 213, 44 Atl. 253, 74 Am. St. Rep. 683.
25 Lewis v. Lechmere, 10 Mod. 503. Of the numerous modern decisions, see, e. g., Eastern Countries R. Co. v. Hawkes, 5 H. L. Cas. 331; Cath-art v. Robinson, 5 Pet. 264, 8 L. Ed. 120; David 0. McRe, 183 Fed. 812; Morgan v. Eaton, 59 Fla. 562, 52 So. 305, 138 Am. St. 167; Robinson v. Appleton, 124 111. 276, 15 N. E. 761; MigatB v. Stieglits, 166 Ind. 361, 77 N. E. 400; Staples v. Mullen, 196 Mass. 132, 81 N. E. 877; Abbott v. MoMestad, 74 Minn. 203, 77 N. W. 227, 73 Am. St. 348; Moore v. Baker, 62 N. J. Eq. 208, 49 AtL 836; Rindge v. Baker, 57 N. Y. 209, 15 Am. Rep. 475; Curtis Land, etc., Co. v. Interior
Land Co., 137 Wis. 341, 118 N. W. 853,129 Am. St.'Rep. 1068.
26 Jurisdiction was denied in a suit for a preliminary instalment of the price in Jones v. Newhall, 115 Mass. 244, 15 Am. Rep. 97, and in support of this decision Mr. Ames says (Lectures on Legal History, page 380): "a lessee, to put another illustration, may compel an execution of a lease, but will any one maintain that a lessor, who has executed a lease may collect the rent by a bill in equity? We may dismiss this phrase of the doctrine of mutuality from our minds."
27 Ames, Lectures Legal Hist., p. 380; Stone, 16 Columbia L. Rev. 451; Cook, 6 Am. Law. & Proc. 183.
28 Young v. Collier, 31 N. J. Eq. 444; Eckstein v. Downing, 64 N. H. 248, 9 Atl. 626, 10 Am. St. Rep. 404; is prevented by act of the defendant.33 In many instances the change of circumstances arising from the lapse of time, renders the specific relief unsuitable or inequitable"34 But if the plaintiff when he files his bill knew, or should have known that specific performance was impossible, the plaintiff must by amendment or new proceedings seek relief in an action at law.35