This section is from the book "The Law Of Contracts", by William Herbert Page. Also available from Amazon: Commercial Contracts: A Practical Guide to Deals, Contracts, Agreements and Promises.
The original rule seems to have been that to allow specific performance there must be mutuality both of obligation and of remedy, as long as the contract was executory on both sides.1 This rule is often repeated by modern courts.2 It has been said that lack of " mutuality of remedy,"3 " no matter from what cause,"4 will defeat specific performance. In many of these cases, however, the remedy has been lacking either because the obligation of the contract is voidable at the election of one party, or because the obligation has been entirely lacking. In either of these cases the real lack of mutuality has been in the obligation. Still in some of the cases the obligation is undoubtedly mutual, and specific performance is refused only because the remedy of specific performance is not mutually available. Thus a railway company contracted with a construction company to deliver certain stock certificates to the latter, in consideration whereof the latter was to build a railway line for the former in another state. It was held that as specific performance against the construction company would be impracticable, such company could not have specific performance against the railway.5 So where A agreed to lease his theatre to B for the production therein by B of a spectacular play, the receipts from admissions to be divided, it was held that as B could not be compelled to perform specifically, he could not have this remedy against A.6 So as a contract to support one as a member of. one's family cannot be enforced specifically against the promisor, it has been held that the promisor cannot have specific performance against the adversary party of a contract to make a conveyance in consideration of such support.7 The rule that mutuality of remedy is necessary works both ways. In the cases thus far discussed the inability of one party to obtain the remedy lias caused it to be denied to the adversary party. This rule is, however, sometimes invoked to give the remedy of specific performance of terms of a contract which by themselves would not justify specific performance because specific performance of the agreement of the adversary party which forms the consideration for such term sought to be enforced would be granted. Thus in most of the cases discussed under contracts for the sale of stock8 the vendee is seeking specific performance. Whether in cases where the vendee might have specific performance, the doctrine of mutuality requires equity to grant the same relief to the vendor on his application, is a question on which there is some conflict of authority. In some cases it is held that even if the vendor can be compensated fully for the loss occasioned by the vendee's breach, by money damages given in an action at law, nevertheless the fact that the vendee could have specific performance requires equity to grant the same relief to the vendee.9 So it is very generally assumed that under a contract for the sale of realty the vendor may have specific performance.
1 Ide v. Leiser, 10 Mont. 5; 24 Am. St. Rep. 17; 24 Pac. 695; Hick-ey v. Dole, 66 N. H. 336; 49 Am. St. Hep. 614; 21 Atl. 792; Ives v. Hazard, 4 R. I. 14; 67 Am. Dee. 500; MePherson v. Fargo. 10 S. D. 611; 65 Am. St. Rep. 723; 74 N. W. 1057.
2 Cobban v. Hecklen, 27 Mont. 245; 70 Pac. 805.
1 Smith v. McVeigh, 11 N. J. Eq. 239; Parkhurst v. Van Cortlandt. 1 Johns. Ch. (N. Y.) 274; 7 Am. Dec. 427; Benedict v. Lynch. 1 Johns. Ch. (N. Y.) 370; 7 Am. Dec. 484.
2 Chadwick v. Chadwick, 121 Ala.
580; 25 So. 631; Iron Age Publishing Co. v. Telegraph Co., 83 Ala. 498; 3 Am. St. Rep. 758; 3 So. 449; Irwin v. Bailey. 72 Ala. 467: Welty v. Jacobs, 171 111. 624; 40 L. R. A. 98; 49 X. E. 723; Kansas, etc.. Co. v. Ry., 135 Mass. 34; 46 Am. Rep. 439; Ballou v. March, 133 Pa. St. 64; 19 Atl. 304; Hissam v. Parrish, 41 W. Va. 686; 56 Am. St. Rep. 892; 24 S. E. 600. "It is settled law that a contract will not be specifically enforced unless its character be such that either party to it. could have it specifically enforced as against the other." Stanton v.
Singleton, 126 Cal. 657, 663; 47 L, R. A. 334; 59 Pac. 146; Banbury v. Arnold, 91 Cal. 606; 27 Pac. 934; Wakeham v. Baker, 82 Cal. 46; Anson v. Townsend, 73 Cal. 415; 15 Pac. 49. " The doctrine is well established as applicable to suits for specific performance, that though no difficulty attend the execution of the contract on the part of the defendant, yet, unless there be mutuality as to the remedy as well as the obligation, so that the complainant in case of his defection could be compelled to perform, the parties will be left to other remedies." Chad-wick v. Chadwick, 121 Ala. 580, 583; 25 So. 631.
3 Cooper v. Pena, 21 Cal. 404.
4 Stanton v. Singleton, 126 Cal. 657, 663; 59 Pac. 146.
5 Kansas, etc., Co. v. Ry., 135 Mass. 34; 46 Am. Rep. 439.
6Welty v. Jacobs, 171 111. 624; 40 L. R. A. 98; 49 N. E. 723.
7 Chadwick v. Chadwick, 121 Ala. 580; 25 So. 631.