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covenants or promises to do or to forbear from some specified act upon the request of the other, and those by which the party making an offer, covenants or promises to do or to omit some act upon the assent or acceptance of the person to whom the offer is addressed, and those in which the party confers an option upon the other.(1) The

(1) Chesterman v. Mann, 9 Hare, 206; Homfray v. Fothergill, L. R. 1 Eq. 567 (a right of pre-emption); Bell v. Howard, 9 Mod. 302, 304; Beatson v. Nicholson, 6 Jur. 620. Bonds to convey, see Jones v. Robbins, 29 Me. 351; Ewins v. Gordon, 49 N. H. 444; Barnard v. Lee, 97 Mass. 92; Corson v. Mulvany, 13 Wright, 98; Gordon v. Calvert, 2 Sim. 253; 4 Russ. 581. Stipulations to lease, renew, or sell and convey upon the option or election of a lessee, see Kerr v. Purdy, 50 Barb. 24; 51 N. Y. 629; Kerr v. Day, 2 Harris, 112; D'Arras v. Keyser, 2 Casey, 249; Napier v. Darlington, 20 P. F. Smith, 64; Mauglin v. Perry, 35 Md. 352; Souffrain v. McDonald, 27 Ind. 269; Willard v. Tayloe, 8 Wall. 557; Moss v. Barton, L. R. 1 Eq. 474; Hersey v. Giblett, 18 Beav. 174; Hawralty v. Warren, 3 C. E. Green, 124. It is perfectly well settled that unilateral contracts, giving options and the like, are enforceable after the proffered conditions have been accepted by the party to whom the offer is made, although he was under no obligation to accept. It does not fall within the scope of this work to discuss, with any fullness, the mutual relations and obligations of the two parties to such a contract after acceptance. Even though the plaintiff is not bound by any express stipulation, an equitable duty certainly rests upon him, and when he seeks performance against the defendant, the court, in its decree, can always provide for a performance on his own part as the prerequisite to any relief. The following are some further illustrations of the doctrine as found in recent American decisions. In Perkins v. Hadsell, 50 Ill. 216, it is held that a written contract giving the vendee an option to buy land, upon the performance by him of certain conditions, namely, entering and making improvements, may be specifically enforced against the vendor, after the performance of such conditions by the vendee; and may also be then assigned in equity, and enforced by the assignee. Schroeder v. Gemeinder, 10 Nev. 355. Unilateral stipulations and covenants giving an option to lease or buy land will be specifically enforced, although the remedy is not mutual, when they are made upon a fair consideration. Hall v. Center, 40 Cal. 63. A covenant in a lease that the lessee shall have the privilege of purchasing the premises for a certain price, on or before the expiration of the term, will be specifically enforced against the lessor, when the lessee has, during the term, signified his acceptance and offered to perform. The defense being the want of mutuality, WALLACE, J., delivering the opinion of the court, said (p. 67), speaking of the general rule requiring mutuality: "But the exceptions to its operation are numerous. Lord REDESDALE, in Lawrenson v. Butler, 1 Sch. & Lef. 13, limits its application to a case 'where nothing has been done in pursuance of the agreement,' by which it is to be understood that though an agreement may, at the time it was entered into, lack the element of mutuality, and for that reason may not then be such an agreement as equity would enforce, yet if the party seeking relief bas subsequently, with the knowledge and the expressed tacit consent of the other, placed himself in such a position that it would be a fraud for that other to refuse to perform, equity will relieve." To the same effect is the case of De Rutte v. Muldrow, 16 Cal. 505, and especially per BALDWIN, J., at page 513; also Laffan v. Naglee, 9 Cal. 662; Maughlin v. Perry, 35 Md. 352, a lessor covenanted with the lessee, his assigns, etc., to convey the premises for a specified

contracts of this kind are, in reality, conditional agreements. Upon the happening of the condition-that is, upon making the request, giving the assent, or declaring the option-they become absolute, and in many instances mutual in their obligation. In the face of such a large number of contracts in constant use which are specifically

price, at any time during the term; the filing a bill for a specific performance, with an offer to pay the stipulated price by an assignee of the lessee, was held to be a sufficient compliance with the terms of the covenant, and the covenant itself would be specifically enforced. Ewins v. Gordon, 49 N. H. 444, a bond to convey, signed alone by the vendor, and containing a penalty, is an agreement to convey which will be specifically enforced against him, although the vendee is not bound, or has not performed, provided he offers performance, the performance on his part can be secured in the decree. Smith v. Fleekl's appeal, 69 Pa. St. 474. A contract signed by the vendor alone, binding him to sell, but giving the vendee a specified period of time within which to accept or to refuse, will, after a timely acceptance by the purchaser, be specifically enforced at his suit; to the same effect is Vassault v. Edwards, 43 Cal. 458, which arose upon a similar contract, signed alone by the vendor, and binding himself to sell, but giving the vendee twenty days within which to accept or to refuse. See especially the observations of RHODES, J., pp. 464-466. In Cooper v. Pena, 21 Cal. 404, defendant made a written contract, in consideration of personal services to be rendered by the plaintiff, to convey to the plaintiff certain lands; the services were performed, and the plaintiff brought an action to compel a conveyance, but the relief was refused on the ground that the remedy must be mutual; that the mutuality is to be determined in general by the terms of the contract at its inception, and that the defendant could not have compelled a performance by the plaintiff. The whole doctrine is discussed at length by COPE, J., pp. 411-413; but compare Allen v. Cerro Gordo Co., 40 Iowa, 349. The effect of the general rule respecting mutuality, either of obligation or of remedy, is considered in the following cases; and I think it very clear, that the rule was applied with much more strictness and severity in the older than in the later decisions; indeed, the rule, so far as it relates to the mutuality of the remedy alone, is evidently based upon no principles of abstract right and justice, but, at most, upon notions of expediency; and the arguments in its support are often mere repetitions of time-honored verbal formulas, which, when closely analyzed, are found to have little or no real force and meaning. Williston v. Williston, 41 Barb. 635; White v. Schuyler, 1 Abb. Pr. 301; Woodward v. Aspinwall, 3 Sandf. 272; Woodward v. Harris, 2 Barb. 439; Phillips v. Berger, 8 Barb. 527; German v. Machin, 6 Paige, 288; Matter of Jane Hunter, 1 Edw. Ch. 1; Parkhurst v. Van Cortlandt, 1 Johns. Ch. 263; 14 Johns. 15; Clason v. Bailey, 14 Johns. 484; Hooker v. Pynchon, 8 Gray, 550; Old Colony R. R. v. Evans, 6 Gray, 25, 31; Dooley v. Watson, 1 Gray, 414; Parker v. Perkins, 8 Cush. 318; Murphy v. Marland, 8 Cush. 575; Plunkett v. Methodist Epis. Soc., 3 Cush. 561; Western R. R. v. Babcock, 6 Met. 346, 353; Ives v. Hazard, 4 R. I. 25, 27; City of Providence v. St. John's Lodge, 2 R. I. 46, 59; Rogers v. Saunders, 16 Me. 92, 97, 101; Getchell v. Jewett, 4 Greenl. 350, 366; Telfair v. Telfair, 2 Dessaus. Ch. 271; Tyson v. Watts, 1 Md. Ch. 13; Duvall v. Myers, 2 Md. Ch. 401; Geiger v. Green, 4 Gill, 472; Cabeen v Gordon, 1 Hill Ch. 51; Moore v. Fitz Randolph, 6 Leigh, 175; Boucher v. Van Buskirk, 2 A. K. Marsh. 346; Hawley v. Sheldon, Harring. Ch. 420; Bodine v. Glading, 21 Pa. St. 50; Bronson v. Cahill, 4 McLean, 19;

enforced, and yet in respect to which there is no mutuality in this remedy, it might, perhaps, be correct to state the general doctrine in the following form: Whenever a contract is of such a form and nature that it contains mutual executory promises, or whenever it is intended that it should require future acts or omissions from each of the parties, and that each should be bound to such acts or omissions by express undertakings, then, in all such agreements, there must be both the mutuality of obligation and of remedy; but when it was intended that the contract should, in its express terms, be binding upon one of the parties alone, it may be specifically enforced against that party, although the remedy cannot be granted to him against the promisee. SEC. 170. The second general exception to the requirement of mutuality includes all those agreements which, by the provisions of the statute of frauds, must be in writing, and which, in conformity with the overwhelming weight of judicial authority, need only to be signed by the party to be charged-that is, by the defendant in the suit brought upon the contract. It follows, therefore, that the plaintiff, who has not signed the memorandum, may enforce a specific performance, although no relief could be obtained against him in respect of the promises made therein on his part. (1) This doctrine is firmly settled, but the reasons given for it are not very convincing. Some cases have explained it by saying that the statute of frauds requires a signature by one party only. (2) This is undoubtedly true as a fact, but it wholly fails to account for the rule under consideration. It does not show why a mere compliance with a requirement of this statute should override a general principle of the law of contracts which is

Watts . Waddle, 6 Peters, 392. Cases in which the remedy was refused for special reasons. Buckmaster v. Thompson, 36 N. Y. 558 (uncertainty); Hawralty v. Warren, 3 C. E. Green, 124 (refusal of vendor's wife to join); Parry v. Tobacco Ins. Co., 1 Cinn. Supr. Ct. 251 (default of party holding the option); Philips v. Mining, etc., Co., 7 Phila. 619.

(1) Hatton v. Gray, 2 Cas. in Ch. 164; Backhouse v. Crosby, 2 Eq. Cas. Abr. 32, pl. 44; Morgan v. Holford, 1 Sm. & Gif 101, and additional cases cited ante, § 75. In New York and some of the other states it is expressly provided, that in contracts for the sale of any interest in land, the memorandum need be signed only by the vendor, and in these states a suit can be maintained against the vendee, although he has not signed, provided the vendor has; while no suit can be maintained against the vendee who has signed, unless the vendor has also signed. In other words, the validity of the contract depends upon the vendor's subscription alone; that made, the obligation and remedy are mutual. See cases cited ante, § 75.

(2) See Coleman v. Upcot, 5 Vin. Abr. 527, pl. 17; Child v. Comber, 3 Sw. 423, n.; Backhouse v. Mohun, 3 Sw. 434, n; Seton v. Slade, 7 Ves. 265; Lord Ormond v. Anderson, 2 Ball & B 363.

completely outside of that enactment, since the statute of frauds has no necessary connection with the element of mutuality.(1) The reason commonly given, however, is that the plaintiff, who has not signed the memorandum, by commencing a suit upon it waives all objection to the absence of mutuality, makes himself liable on the contract, and thus, in fact, renders the remedy mutual.(2) This reason does not seem to be entirely satisfactory. As a practical result from the statute of frauds, the contract, which must be written and which is subscribed or signed by one party only, lacks the mutuality of obligation; and this is even literally true in all those states whose statutes pronounce such contracts void; and the objection arising from the absence of this essential feature, at the very time of entering into an agreement, cannot, as a general proposition, be waived by the subsequent consent or act of the party who is not bound. It is, on the whole, best to concede that the doctrine rests upon no basis of principle; that it was arbitrarily laid down by the earlier decisions which interpreted the statute, and has been followed by the great majority of subsequent cases; and that it is useless to account for, or explain it by reasons which conflict with other well-settled rules.(3)

SEC. 171. The third class contains all those contracts in which the party who, for some reason, is not originally bound by their stipulations, or against whom the equitable remedy cannot be obtained, may, by his subsequent acts, omissions, or assent, waive the objection arising from this want of mutuality, and may thereupon enforce them against the other party. The cases where such waiver has been permitted are quite unlike in their features; but after illustrating them by examples, it may be possible to extract a principle from the decisions to which they shall all conform. 1. Where a vendor has no estate in the land, or where his title is imperfect, the purchaser has, of course, a perfect defense to a suit for a specific performance on behalf of the

(1) See, on this subject, Boys v. Ayerst, 6 Mad. 323, per Sir JOHN LEACH, M. R. (2) Child v. Comber, 3 Sw. 423, n. ; Seton v. Slade, 7 Ves. 265; Fowle v. Freeman, 9 Ves. 351; Western v. Russell, 3 V. & B. 192, per Sir WM. GRANT; Martin v. Mitchell, 2 J. & W. 413; Flight v. Bolland, 4 Russ. 298. The contract must be signed by all the defendants against whom its enforcement is asked. McIntire v. Bowden, 61 Me. 153.

(3) The whole doctrine that a memorandum signed by the defendant--under that form of the statute which adopts or follows the terms of the English act--is sufficient, and may be enforced by a plaintiff who has not signed, has been severely criticised by able judges and courts, upon the ground that it overrides the general requisite of a mutuality in the obligation. See Lawrence v. Butler, 1 Sch. & Lef. 13, per Lord REDESDALE; Davis v. Shields, 26 Wend. 362, per VERPLANCK, Senator, and cases cited ante, § 75

seller; he will not be forced to accept a conveyance of a title or interest other than that which he contracted to buy. But if the vendee in such a case investigates the title, takes the usual steps concerning it, and joins in proceedings by the vendor to perfect his title and to acquire the full estate, he will be compelled to accept a conveyance after the vendor has succeeded in completing his title, and obtaining the estate which was intended by their agreement; he cannot then prevent a decree by setting up the original lack of mutuality.(1) It should be carefully observed that the mutuality which is wanting in such contracts is not that of obligation, for the vendor is fully bound by his stipulation to sell and convey the very interest described, and the vendee is equally bound to accept it. The mutuality which is here absent is entirely that of the remedy, since it is physically impossible to obtain a specific performance by compelling the vendor to convey an estate which he does not at the time hold, although he is liable from the outset to the legal remedy of damages for a breach of his agreement.

SEC. 172. 2. The second case of waiver includes those contracts

(1) Salisbury v. Hatcher, 2 Y. & C. C. C. 54; Hoggart v. Scott, 1 R. & My. 293. This case is the exact converse of the one to be subsequently mentioned, in which the vendee enforces the contract against a vendor who cannot fully perform. In Murrell v. Goodyear, 1 DeG. F. & J. 432, it is held that if the purchaser is entitled at all to insist that the vendor's having only a partial interest makes the contract void, he must insist upon the objection at once, and cannot avail himself of it after having treated the contract as good, and required the concurrence of the persons who can complete the title. See the case for acts of the vendee which shut him off from objecting. To the same effect, see, also, Westall v. Austin, 5 Ired. Eq. 1; Kindley v. Gray, 6 Ired. Eq. 445. Same case holds that a vendor, who bona fide sells his property, believing himself absolute owner, when he has in fact only a partial interest, is entitled to enforce the contract if he can perfect his title. Murrell v. Goodyear, supra; Dresel v. Jordan, 104 Mass. 415, says: "The equitable rule is established by numerous authorities, that where time is not of the essence of the contract, and is not made material by an offer to fulfill by the purchaser, and a request for a conveyance, the seller will be allowed reasonable time and opportunity to perfect his title, however defective it may have been at the time of the agreement. And in all cases it is sufficient for the seller, upon a contract made in good faith, if he is able to make the stipulated title at the time when, by the terms of the agreement, or by the equities of the particular case, he is required to make the conveyance in order to entitle himself to the consideration." See Richmond v. Gray, 3 Allen, 25; Barnard v. Lee, 97 Mass. 92; More v. Smedburgh, 8 Paige, 600; Purcell v. McCleary, 10 Gratt. 246; Reeves v. Dickey, 10 Gratt. 1:8; Jones v. Taylor, 7 Tex. 240; Tison v. Smith, 8 Tex. 147. And where the vendor has the right to complete his title, the vendee gains nothing by anticipating him and perfecting it for himself. Westall v. Austin, 5 Ired. Eq. 1; Kindley v. Gray, 6 Ired. Eq. 445. See this subject discussed at large in subsequent sections upon performance by the plaintiff.

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