Stow v. Robinson

Walker, J. This bill proceeds upon the supposition that Rattray, by the agreement, acquired an immediate vested interest in the land itself, and not in the proceeds realized from its sale. And the question whether the court erred in dismissing the bill, depends upon whether that is the true construction to lie given to the contract. If it is, and the agreement is capable of being executed, then a specific performance of the contract may be decreed, otherwise the bill was properly dismissed. The contract expressly stipulates for the performance of labor and the exercise of skill, by Rattray, and for a compensation therefor, by a division of the profits which might be realized over and above the original cost of the land. It contained no agreement for any conveyance of any portion of this land at any time from Robinson to Rattray, or of any interest in it. But by the terms of the agreement, Robinson was to retain the title until the sale should be made and the purchase money paid. Until that occurred, it was the manifest intention of the parties that Robinson should not part with the title, and before he even obligated himself to make a conveyance, Rattray was to make the sale. It is evident, from this agreement, that it was Rattray’s skill and personal services for which Robinson contracted. And were others permitted to render that service in effecting sales, it would be to compel him to receive that for which he made no agreement. A court of equity has the power to execute a contract by compelling the parties to receive what they have con-' tracted for, and to perform all they have agreed to do, but has no power to compel a party to receive something else, or to do other or different acts than those agreed to be performed. The contract for Rattray’s skill and services, was not confined to a sale of a sufficient amount of the property to refund the purchase money, but it extended to a sale of every portion of the premises. And so long as any portion of the property remains unsold by Rattray, his part of the contract has not been executed, and for the want of a full and complete performance by him, when the remaining portion is incapable of being performed, a specific execution of the contract cannot be decreed. The parties have failed to provide, by their contract, for the substitution of the heirs or representatives of Rattray, in case of his death, to execute his part of the agreement, by rendering their skill and labor. And although theirs might be equal or even superior, as it is not that for which the other party contracted, he cannot be required to receive it. But it is insisted that Rattray was prevented, by defendant in error, from executing his part of the agreement by stopping the further sale of lots. If this is true, and Rattray was in no default on his part, an action at law accrued for a breach of the contract for the recovery of all the damages he had thus sustained. Or Rattray might have compelled him by bill, to permit the sale of lots to proceed, and to keep his part of the contract, as he was then able to render the service which Robinson had contracted to receive. If there was such a breach of contract by Robinson as is alleged, the action at law which then accrued, undoubtedly survived to Rattray’s representatives. If there is any remedy in this case, it is at law, and clearly not in equity, and the parties must be left to seek their rights in that court. The decree of the court below is affirmed. Decree affirmed.