The daily phoenix. [volume] (Columbia, S.C.) 1865-1878, 1873-09-26


conclusions at which + have arrived tc
determine whether or not the present
action is primarily and charaoteristicall5
one for specific performance, since,
under either view, find no greater diff
heulty in reaching my conclusion. I,
may be remarked. in passing, that re.
garding the present action as one 10,
specific performsnce, the chief argu.
ment relied on by the defendants coun.
Rel-want OF m1tuality-iB thus defined
"a contract suoh that it might, at the
time it was entered into. have been en-
forced by either Of the parties against
the other. OF them" Fry on Specific
Performance, 1926. II, in the present
case, there was an original want of mu-
tuality On the contract, aud il the con-
tract we're nov unpe:sormed by the
party seeking specific performance, the
objection OF want OF mutuality might be
tmnettent, But il the party seeking
relief has fully performed his part Of the
contract, with the permission and 40.
quiescence, and literally in the presence
OF the other party, it is now plainly too
late to interpose the objection of q want
of mutuality at the time che contract
was. entered into. Proceeding now to
examine the first of the main issues
presented, i fnd that the first objection
on the part OF the defendant to the
PLAINTIFF rights, as assignees Ut the ORR
ginal contract, to maintain this action,
is,that the complaint does not correctly
state the contracting parties; that It
states lin par. y that the contract was
made by Samuel a. Pearce, Jr., and
William Sprsgue; whereas, in fact, ii
was made ny Samuel A. -Pearce, Jr., for
nlmselt ana as trustee OF William
oprague. Cnder the former system Of
Pteaoing' THIS objection might have
avalied as Q, Variance between the oon-
1ract alleged and the contract proved.
but In equity 1t would not have so
aVsiieSi, unless 1t operated to the de-
den9ants prejudice. BY our Code,
si92, the equity rule has been practically
ADOPTED. NO Tarsance between the allie
gation ma apleading and the proof shall
pc deemed material. pnless it have
actually misled the adverse party to his
preIuaice; IN maintaining his action or
oe1ence upon the merits. BY the an
swer, The defendant admits the execu-
ZION OF the contract and states the par
sies correctiy, TINS showing that the
defendant was not misled. No preiu-
dlce is alleged. and 1t is evidente that
none mas arisen.
The second objsction urged by the
defendants is, that the contract has, in
iact, not been assigned, which objection
means that tho contract was made with
Samuel a: Ped''ce, Jr., and Samuel A.
Pearce, Jr:, as trustee OF William
Spragne, while the assignment to the
plaintiffs is made By Samuel A. Pedrce.
Jr., and WtUid1n Sprague. But it is to
me novel objection to an instrument
intended to convey the interest of q cestui
que trust, that it is signed both
BY the trustees and the cestui que
trust II 1t were not signed by the lat
Ter. the objection would have possible
force; bnt certainly it has none, because
IT'S 80 signed. The sssignmentis made
by the parties, and the only parties. who
nave any known or alleged interest in
she thlng assigned. 1t purports to be
an assignment OF the entire contract,
and operates to convey, not alone the
interest OF Pearce, but the interest Of
tearce, as trustee. His signature avails
10 carry DOTH OF their interests, and the
signature OF Spragoe himself carries the
Interest," oi the Gessn, que trust. What the
Term 'trustee; IN the contract imputes.
does cot clearly appear: Ooione! Pearce
n n (St1 a