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.
In many states the doctrine that the remedy of specific performance must be mutual has been abandoned. Where this view is taken the fact that the contract could not have been enforced specifically against the party seeking specific performance does not of itself prevent him from obtaining it.1 So under a contract whereby a husband agrees to convey certain realty to his wife on consideration that she will waive a ground for divorce and live with him, specific performance may be decreed, although the husband has no means of compelling her to live with him always,2 and so if when the contract was made the vendor could not have performed a minor stipulation of his contract specifically, but he has since acquired the property which he had agreed to deliver, and is in a position to perform specifically, and the vendee did not attempt to treat the contract as discharged for that reason.3 Thus it has been held that under a contract by A to convey realty to B in consideration of B's agreement to support A as a member of B's family, B may have specific performance during A's life.4 This principle, too, works both ways, and may be invoked to prevent one party from receiving the specific performance sought, even though the adversary party may have had such remedy.5 Thus A agreed to exchange certain stock for B's yacht. The stock could be bought readily in the open market. It was held that though A might, if he wished, have specific performance against B, B could not have such performance against A.6
8 See Sec. 1630.
9 Bumgardner v. Leavitt, 35 W. Va. 194; 12 L. R. A. 776; 13 S. E. 67. So of the sale of a stock dividend. Withy v. Cottle. 1 Sim. & St. 174.
1 Lamphrey v. Ry., 89 Minn. 187;
94 N. W. 555; Burns v. Smith, 21 Mont. 251; 69 Am. St. Rep. 653; 53 Pae. 742; Hickey v. Dole. 66 N. H. 336; 49 Am. St. Rep. 614; 29 Atl. 792; Northern Central Ry. v. Walworth, 193 Pa. St. 207; 74 Am. St-Rep. 683; 44 Atl. 253.