Alworth v. Seymour

Mitchell, J. The complaint in this action was evidently framed with reference to compelling specific performance of the contract declared on. The point urged by defendant in support of her demurrer is that the contract is champertous. 1. It is not necessary to determine here whether or not the common law as to champerty is in force in this state, because there are at least two reasons why plaintiff cannot have specific performance in this case: (1) The contract did not create a power “coupled with an interest, ” but a mere naked agency, by which defendant employed plaintiff as her agent to perform certain services, as compensation for which he was to receive a share of the results of the execution of the agency. It is not enough to constitute a “power coupled with an interest” that plaintiff was to have an interest in the proceeds arising from the execution of the agency. There must be an interest in the thing itself which is the subject of the power, and not merely in that which is produced by the exercise of the power. A power “coupled with an interest” is one ingrafted on an estate, or on the thing itself; and the power and the estate must be united and co-exist. This could not be under this contract, for by its terms the plaintiff was only to have an interest in the property recovered through the execution of the agency. It being, therefore, a case of a mere agency or naked power, the defendant had the power (as distinguished from the right) to revoke it at any time. Of course if she revoked it without right, plaintiff would have his action for damages for breach of the contract, if a valid one. Mecham, Ag. §§ 207-209; Hunt v. Rousmanier, 8 Wheat. 174; Gilbert v. Holmes, 64 Ill. 548; Hartley’s Appeal, 53 Pa. St. 212; Barr v. Schroeder, 32 Cal. 609. (2) But, even assuming that the contract created a “power coupled with an interest,” still the court would not decree specific performance, because, from the very nature of the contract, it could not enforce complete performance by both parties. In other words there is no mutuality of remedy. It calls for the personal services of the plaintiff as agent for the defendant. These services are as yet mainly unperformed. The court has no power by its decree to compel him to perform them, much less to direct how he shall perform them; and [529] specific performance will not be decreed unless the court can at the time enforce the contract on both sides, so that the whole agreement will be carried into effect according to its terms. If this cannot be judicially secured on both sides it- ought not to be compelled on one side, and the other party left at liberty to perform or not, or to perform in such a way as suits his own interests. Fry, Spec. Perf. § 440; Pom. Eq. Jur. § 1405, and notes; Pom. Spec. Perf. §§ 165, 166. 2. But, although the complaint does not state a case entitling plaintiff to the relief asked for, viz., specific performance, yet the demurrer was properly overruled, because it states facts entitling him to judgment for $200, the value and amount of his services and disbursements rendered and made or incurred in the execution of his agency. It is well settled by the decisions of this court that, if a complaint states facts constituting a cause of action entitling the. party to any relief, either legal or equitable, it is not demurrable beause it asks for the wrong relief. Canty v. Latterner, 31 Minn. 239, (17 N. W. Rep. 385;) Leuthold v. Young, 32 Minn. 122, (19 N. W. Rep. 652.) There was nothing illegal in the character of the services. contracted for. If there was anything unlawful, it was in the provision as to compensation. But, admitting that the contract was; void, as ehampertous, it does not follow that plaintiff thereby forfeits; his right to compensation for the services he has performed, and the disbursements he has made, for the defendant as her agent. Stearns v. Felker, 28 Wis. 594; Thurston v. Pereival, 1 Pick. 415; Rust v. Larue, 4 Litt. (Ky.) 411; Walsh v. Shumway, 65 Ill. 471. Order affirmed.