An important pre-requisite to the granting of the specific performance of a contract is the mutuality of the right to seek such relief. In general, equity will only grant specific performance for one party to a contract, when the other party would have had the right to obtain specific performance against the one bringing the suit. The principal exception to this rule arises in the case of contracts which are required by the statute of frauds, to be in writing. In such cases, the complainant, who has not signed the contract, may enforce a specific performance, although no relief could be obtained against him in respect of the promises made therein on his part.

This question of the necessity for mutuality in a contract was considered by the Supreme Court of Alabama in the case of Iron Age Publishing Co. vs. Western Union Telegraph Co.,13 the decision in which case was as follows:

"Somerville, J. The bill is one in the nature of specific performance, seeking, by the auxiliary force of an injunction, to prevent the breach of an alleged contract by the New York Associated Press selling, as is insisted, to the complainant, the Iron Age Publishing Company, an exclusive right to receive and publish at Birmingham, Alabama, all of the Associated Press dispatches gathered and prepared for the press by the New York company, and transmitted over the telegraph lines of the Western Union Telegraph Company, which body corporate is also made a party defendant to the bill. The breach complained of is averred to be the delivery of these dispatches, for publication, to the Morning Herald Publishing Company, and the News Publishing Company, which companies publish a daily paper in the city of Birmingham, and are also made parties defendant to the present suit.

13 83 Ala., 498.

'The Chancellor sustained a demurrer to the bill, and the complainant brings this appeal. Some of these grounds of demurrer we proceed to discuss.

"There seems to be one feature about the present contract, however, which renders it impracticable to be specifically enforced, with justice to both parties. This is its want of mutuality, both of the obligation, and of the remedy as to one of its features. From the averments of the bill it is made to appear that the contract in question is to remain in force only so long as the complainant shall continue to act as agent and correspondent of the Associated Press at Birmingham. It is not shown whether this duty was assumed forever, for any definite period, or might terminate at will. In either contingency, we are unable to see how the court is to compel performance on the part of the complainant.

"The general rule, to which, it is true, there are many exceptions, seems to be, that contracts, in order to be enforced by specific performance, must be mutual in obligation, as well as in remedy. Mr.

Pomeroy says, and such we think is the general rule, that 'it is a familiar doctrine, that if the right to the specific performance of a contract exists at all, it must be mutual; the remedy must be alike attainable by both parties to the agreement.' With some established exceptions, it may be stated that equity will decline to enforce a contract against a defendant, where the case is of such nature that the court has no power to compel the complainant to perform his part of it. There are many unilateral contracts, which constitute an exception to this rule, including the right to exercise certain options, and cases affected by the Statute of Frauds, to say nothing of others, which stand on peculiar principles. This case is not of that class.

"How, it may be asked, is it practicable for the court to compel the complainant to perform personal services, as agent and correspondent of the Associated Press at Birmingham, which it has contracted to perform from year to year, under this agreement? We have seen that the duty involves the exercise of special skill, judgment and discretion, being intellectual as well as mechanical in its character. These duties are also continuous in their nature, and of indefinite duration. There can be, as we have shown, no specific performance affirmatively of such duties by a court of equity. The most that can be done is to negatively enforce them by injunction prohibiting their breach, and this only on bill filed praying such particular relief.

"It is clear that but one of two decrees can be rendered in this case: (1) We can tie the hands of the Associated Press, and the other defendants by injunction, forbidding the delivery of the press dispatches to any one else than the complainant, as prayed for, and leave the complainant free to terminate the contract at its will without limitation of time or circumstance, or to perform its duties as correspondent as negligently or diligently as discretion may dictate; or (2) to keep the injunction in force so long as the duties imposed by the contract shall be faithfully performed by complainant, which may be for all time to come, in view of the possible perpetuity of complainant's corporate existence. The first decree suggested would be entirely opposed to all equity precedent and practice; the settled rule being that the courts will not interfere by injunction in cases of this kind, if indeed in any case, where defendant cannot be made secure in his rights and remedies for violation of the duties imposed on the complainant by the contract sought to be enforced.

"The second decree above suggested would also be impracticable, not only for the reason that the court cannot compel the performance of the personal services assumed to be undertaken by the complainant, involving as they do the exercise of special skill, judgment and discretion, but it would be out of the question for the court to keep this case open for all time, or even for an indefinite term of years, to superintend the continuous performance of these duties by the complainant. This might involve the frequent necessity on the part of the court of hearing complaints from the defendant, charging the complainant with a breach of its duties, or from the complainant, arraigning the defendant for contempt for a violation of the injunction. There would be thus no end to the number of occasions when the court might be called on, from year to year, to say whether the complainant has performed the duties in question faithfully and efficiently, so as to have kept the injunction in force, or negligently or unskillfully, so as to justify its breach. For these reasons, the rule is that 'equity will not enforce the performance of continuous duties involving personal labor and care of a particular kind which the court cannot superintend.'

"The contract being one which cannot be specifically enforced in a court of equity against the complainant, we deem it inequitable to enforce it against the defendants.

"The demurrer of the bill was properly sustained, and the decree is affirmed."