In many cases, and in varying forms, the courts have said that specific performance will be denied in contracts where mutuality is lacking.1 The term "mutuality," however, is a vague term, of more than one meaning, and covering a group of more or less vague ideas. The accurate statement of the meaning of this rule presents therefore two difficulties: (1) the difficulty of determining exactly what the term "mutuality" includes; and, (2) the conflict of authority as to whether in order to defeat specific performance mutuality must be lacking when the contract is entered into, or when the suit for specific performance is brought. Cases involving questions of mutuality may with some accuracy be distributed under two heads: those involving mutuality of obligation of the contract, and those involving mutuality of remedy. In order to have specific performance, the contract sued on must have mutuality of obligation, that is, the contract must be binding on both parties.2 According to the weight of authority mutuality may arise after the contract is made.3 No objection which has been eliminated before the action was brought can prevent specific performance.4 It will be noted, however, in the following sections, that some courts repudiate this view and hold that the facts existing when the contract is entered into must be relied upon to determine specific performance. Performance may, as at law, be excused by the fact that the party against whom relief is sought has repudiated the contract.5 So on repudiation by the vendor, specific performance may be decreed against him before the time fixed by the contract for performance.6 On the other hand, a vendee who has announcecd that he would not perform, cannot subsequently have specific performance against the vendor who has acquiesced in such breach and has made improvements on the property and has leased it to others.7

2 Boone v. Iron Co., 17 How. (U. S.) 340; Wescott v. Mulvane, 58 Fed. 305; 7 C. C. A. 242; Costello v. Friedman, - Ariz. - ; 71 Pae. 935; Work v. Welsh. 160 111. 468; 43 X. E. 719; Colin v. Mitchell. 115 111. 124; 3 N. E. 420; Wilkin v. Voss, 120 la. 500: 04 N. W. 1123: Williams v. Hart. 116 Mass. 513; Kallmann v. Conlon. 143 Mo. 369: 45 S. W. 275; Fisher v. Buchanan, 2 Neb. Unofficial 158; 96 N. W. 339; English v. Milligan, 27 Neb. 326; 43 N. W. 120; Ocean City Association v. Headley, 62 N. J. Eq. 322; 50 Atl. 78; Kirby v. Harrison, 2 O. S. 326; 59 Am. Dee. 677; Bodwell v. Bod-well. 66 Vt. 101: 28 Atl. 870. 154

3 Wilkin v. Voss, 120 la. 500; 94 N. W. 1123.

4 Meshew v. South worth, - Mich. -; 94 N. W. 1047.

5 Richards v. Knight. 64 N. J. Eq. 196: 53 Atl. 452; Zane v. Weintz,

- N. J. Eq. -; 55 Atl. 641.

6 Cleveland v. Improvement Co.,

- N. J. Eq. -; 55 Atl. 117.

7 Cleveland v. Improvement Co..

- N. J. Eq. - : 55 Atl. 117.

8 Crasser v. Blank. 110 La. 493; 34 So. 648.

1 Marble Co. v. Ripley. 10 Wall. (U. S.) 339; Rogers v. Saunders, 10 Me. 92; 33 Am. Dec. 635; Glass v. Roue. 103 Mo. 513: 15 S. W. 334: Bodine v. Glading, 21 Pa. St.

50; 59 Am. Dec. 749; De Cordova v. Smith. 9 Tex. 129; 58 Am. Dec. 136; Moore v. Fitz Randolph. 6 Leigh (Va.) 175; 29 Am. Dec. 208.

2 Robinson v. Appleton, 124 111. 276; 15 N. E. 761.

3Thurber v. Meves, 119 Cal. 35; 50 Pac. 1063: 51 Pac. 536; Hall v. Center, 40 Cal. 63; Topeka Water-Supply Co. v. Root, 56 Kan. 187: 42 Pac. 715.

4 Rank v. Garvey, - Neb. -; 92 N. W. 1025.

5 Cheney v. Libby. 134 U. S. 68; Blanton v. Warehouse Co.. 120 Fed. 318; Scott v. Beach, 172 111. 273; 50 N. E. 196; Veeder v. McMurray, 70 la. 118; 29 N. W. 818; Tyler v. Onzte, 93 Ky. 331; 20 S. W. 256; Tobin v. Larkin. 183 Mass. 389; 67 N. E. 340; McCormick v. Hickey. 56 N. J. Eq. 848; 42 Atl. 1019; Mc-Pherson v. Fargo, 10 S. D. 611: 66 Am. St. Rep. 723: 74 N. W. 1057

6 Payne v. Melton, 67 S. C. 233; 45 S. E. 154.