The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1905-10-30

sold any routes or received any part
of the consideration for THE sales of
the same, and had nothing to do with
the sales except to insist that the
character of the purchasers should be
satisfactory to him.
It is also admitted that plaintiffs
never made any reports of collections
to defendant, and that they bore all
losses by reason of failure to collect.
Does this state of facts entitle plain
tiffs to the relief sought2 PLAINTIFFS
do not claim an express contract with
defendant but claim that from
course of action the law will imply a
contract whereby defendant is bound
to sell them the papers on the same
terms as formerly.
To define the issues in this case will
prevent confusion The question here
is not whether the contract if any, is
absolutely void for all purposes and
not binding upon anybody under any
circumstances: nor is the question
here whether defendant was justified
IN violating the alleged contract: but
the question here is whether this PEE
tition for the equitable relief sought.
can be sustained
The sufficiency of the petition is
challenged upon two principal grounds:
I'D The want of mutually of the
alleged contract. (2) That the eons
tract is too indefinite.
Want of RIutuality.
BY mutuality of contract is meant
mutuality of obligations under it, and
in cases of this character, 1t is, as a
general rule, held to extend alike to the
obligation and the remedy; and as a
general rule specific performance viii
not be decreed in favor OF one party
unless it could be decreed in favor of
the other. This is the general rule laid
down by all the authorities on the sub
Ject. It is so stated by Pomeroy on
Specific Performance, by Waterman on
Specific Performance, by Beach on the
Modern Law of Contracts and in all the
encyclopedias. Tt is so held by the SUI
preIne court of the United States in Rut-
land Marble Co. VS.. Ripley, 10 Wallace,
and Railway VS.. BagIeys so Kas
Let us apply the rule to this case.
Would defendant, if plaintiffs should
refuse to purchase and deliver any more
papers be entitled to specific perform
ance against them? Could a court of
equity, under such circumstances, com
pei plaintiffs to purchase papers of de-
fendant or deliver them on any terms
do not understand it is seriously con-
tended by the plaintiffs that it could.
They do not promise or agree to do any
thing. There is no obligation on their
part alleged and no facts by which they
are bound to do anything.
But plaintiffs say they have perform
ed their part of the contract and there
fore the case comes under an exception
to the general rule. It is true that in a
certain class of cases where one party
has fully performed his part of the con-
tract specific performance will be de-
creed him, although it would in the first
instance have been denied the other
party. These are cases where the con-
sideration has been fully performed by
/ one party But this is not that kind of
| a case. This, if anything, is an execu-
tory contract. It contemplates mutual
performances in the future; and accord
ing to the following rule laid down by
Pomeroy on Specific Performance, both
the obligation and the remedy must be
mutual
Whenever a contract is of such a
| form and nature that it contains mutual
executory promises, or whenever it is in
tended that it should require future acts
or omissions from each of the parties
acts or omissions by express undertak-
t3ngs, then, in all such agreements there
must be both the mutuality of obliga-
tion and of remedy
But plaintiffs say that if defendant
would not be entitled to specific per-
formanee as against plaintiffs, he could
sue at law for damages. But viii q
court of equity compel performance by
one party when under the contract that
party must seek relief in an action at
law for damages? doubt it very much.
Plaintiffs also cite a class Of cases
known as option contracts which con-
stitute another exception to the general
rule, but this exception applies to but
a very limited class Of cases, such as
options on real estate, stocks, bonds and
the like.
Defendant contends that the court
should not decree specific performance
I because the alleged contract is too in
: a.
Time is one of the necessary elements
! of any contract, especially where labor
! or service is to be rendered; and "there
must be q complete contract establish ed
or performance cannot be decreed. :.
! This is the rule laid down in all the
books. What limit shall be fixed in the
decree in this case? Should the court
! decree performance by defendant for
/ five or twenty years2 "a contract will
not. as a rule, be specifically enforced
when it cannot be determined how long
it was to continue" A. & E. Enc. Law.
The adjudicated cases support this doc
trsne.
PLAINTIFFS further insist that. although
the affirmative specific performance of
the contract be beyond the power of a
court of equity. its performance will be
mega lively enforced by enjoining its
breach, sometimes called prohihItive
injunction. This rule has been applied
to a limited number of cases but they
are found to be cases in which. ~
Want of mutually of obligation was
not raised (2) the contracts were for >
definite time. C3) the contracts were for
personal services which REQUIRE and
presuppose special skill. But it viii be
found that the ground for Injunction
in that limited class of cases is the fact
of a negative convenant not to perform
such services for others for a certain
period. The case OF Welty VS.. Jacobs
was suit by Weltv on a. contract
wherein he was to play his company in
Jacobs opera house for one week. Ja-
cobs was to furnish the house. etc. It
being claimed that Jacobs had violated
the contract. Weltv brought suit to en-
join Jacobs from opening his house for
another show during the week covered
by the contract. The court denied the
writ on the ground of want of mutuali-
ty of obligation in the contract in that