1 But not if the purchaser, who was to give a mortgage for a part of the purchase-money and is insolvent, offers to pay the whole in cash, as he is not bound to disclose the fact that he is purchasing for a third person. Hughes v. Young, 4 Stewart, 60. Where a mortgagee agreed at the time of the loan to release his lien on a portion of the premises in case of a sale of such part by the mortgagor, specific performance was enforced, although since the date of the mortgage the land had steadily diminished in value and the mortgagor was irresponsible. Nims v. Vaughn, 40 Mich. 356. - K.

impossible for a court to enforce by its decree his faithful and proper discharge of them, it is not competent to him, on his part, to compel the employer to permit him to perform those services, (s) There are many other cases where the principle, that equity requires mutuality, has received illustration; and it seems to have been invoked sometimes when a more legitimate ground of decision might have been found in some of those more general doctrines, determining the specific enforcement of contracts, which have been treated of in previous portions of this chapter. We have placed, in the note below, a full examination of the cases on this difficult subject (t)1

(s) Pickering v. The Bishop of Ely, 2 Younge &C, Ch. 267.

(t) The meaning of the rule of equity, requiring that contracts mast be mutual, is not very clear; nor is it easy to make a satisfactory classification of the cases in which it has been announced as the ground of decision. By mutuality seems sometimes to be intended mutuality of remedy; in other cases, mutuality of agreement; but in neither sense is the rule of universal application. 1. A difference in the remedy, or power of enforcing the contract, may exist in several cases. One party's conduct may be such as to deprive him of the right which the other possesses of applying for the interposition of the court. South-Eastern Railway Co. v. Knott, 10 Hare, 122, 17 Eng. L. & Eq.' 555. And though no moral imputation rests on him, the defendant cannot set up the existence of an impediment of his own creation to his enforcement or enjoyment of the part of the contract beneficial to himself; in such a case, it is a sufficient reply to him that the contract was mutual when it was made, and if it has since become otherwise, it is his own fault. Lord St. Leonards, Ch., I De G., M. & 6.755. So a . subsequent inequality of obligation occasioned by the act of God, is not of itself a valid ground of objection. Stapilton v. Stapilton, 1 Atk. 10. Another instance appears in the doctrine, denied it seems by Lord Redesdale, Lawenson v. Butler, 1 Sch. & L. 13, but now perfectly established, that a purchaser may compel a conveyance, although the vendor could not have enforced specific performance because of some infirmity in the title. Sutherland v. Briggs, 1 Hare, 34. Ante, § 6, p. * 399. And in cases within the statute of frauds, it is now clear (although a contrary opinion upon this point also was expressed by Lord Redesdale, 1 Sch. & L. 20), that the circumstance that the defendant only signed the agreement, so that he could not have compelled the plaintiff to perform it, constitutes no good ground of objection to the plaintiff's suit. Backhouse v. Mohun, 3 Swanst. 434, n.; Seton v. Slade, 7 Yes. 275; Western v. Russell, 3 Ves. & B. 192; Ormond v. Anderson, 2 Ball & B. 370; Field v. Boland, 1 Drury & W. 49; Clasop v. Baily, 14 Johns. 489; Moses v. McClain. 82 Ala. 370; Hodges v. Rowing, 58 Conn 12; Mastin v. Grimes, 88 Mo. 478; Doctor v. Hillberg, 65 Wis. 415. From an absolute agreement, signed by the party to be charged, must be distinguished a writing which, though signed by one party and bearing the form of an agreement, is really a mere proposal; such a writing is turned into an agreement, and can be enforced in equity, by the other party, upon his acceptance of it by writing; Palmer v. Scott, 1 Russ. & M. 394; or such acceptance may be evidenced and made effectual by the plaintiff's acts of part performance: Dowell v Dew, 1 Vounge & C, Ch. 345. See Norton v. Mascall, 2 Vera. 24, 1 Eq. Cas. Ah 51. Whether the plaintiff's filing a bill for a specific performance is a sufficient assent to remove the objection of a want of mutuality when it would otherwise exist, is not perfectly free from doubt. A trader executed an assignment to trustees in trust to sell, and the trustees made a sale to the defendant. The assignment being an act of bankruptcy, the assignees of the bankrupt might have avoided the subsequent sale; but it was held that, by filing a bill against the defendant to enforce specific performance, they made the contract their own, and were entitled to have it specifically exe1 A valid unilateral contract will be specifically enforced. Frue v. Houghton, 6 Col. 318; Barnard v. Lee, 97 Mass. 92; Ewins v Gordon, 49 N. H. 444.

* It may happen that the plaintiff has performed a material part of what he was bound by the agreement to cuted. Goodwin p. Lightbody, Daniell, 153. So if a contract be modified by the defendant, and the plaintiff bring a suit to obtain specific performance of it with the modification, the filing of the bill is, it seems, a sufficient assent by the plaintiff to the modified contract. Lord Plun-ket, Ch., Field v. Borland, 1 Drury & W. 46. See also Milliken v. Milliken, 8 Irish Eq. 16, cited infra; Martin v. Mitchell, 2 Jacob & W. 426; Agar v. Biden, 2 Law J. (n. s.) c 3. But see Gaskarth v. Lowther, 12 Ves. 114. It has been intimated, that if husband and wife, seised in fee in the wife's right, contract to sell, they may, by bill in equity, enforce a performance of the contract against the purchaser, although he could not, in like manner, have compelled a conveyance of the land. Knight Bruce, V. C, Salisbury v. Hatcher, 2 Younge & C, Ch. 62. The principal instances of the denial at this day of relief in equity to one party, because a corresponding remedy would not be open to the other, are those mentioned in the text: namely, where the plaintiff is insolvent, or an infant, or a servant employed to perform services of trust; to which is to be added, according to a doctrine recently established, the case where the contract contains an agreement, on the plaintiff's part, to give at a time future, with respect to the suit in court, some yet unascertained thing, or to perform a series of acts that must necessarily extend over a future period; the execution of which agreement, therefore, the court cannot, by a present decree, insure to the defendant. Gervais r. Edwards, 2 Drury & W. 80; Hills v. Croll, I Coop. Cas. temp. Cott. 85; Lord St. Leonards, Ch , 1 De G., M. & G. 627. But see Ball v Coggs, 1 Bro. P. C. 296. 2. From the class of cases presenting the question of a want of mutuality in the agreement itself, it is difficult to extract any clear principle. It would be convenient, if it could be laid down, that where an undertaking, on the plaintiff's part, is requisite to constitute a consideration for the defendant's agreement, such undertaking must exist as a component part of the contract, and that where, on the other hand, there is a sufficient equitable consideration for the defendant's agreement, independent of something which the plaintiff by the terms of the contract may at his election do, but is not bound to do, there the defendant may be compelled to perform, notwithstanding the plaintiff's freedom with respect to such further acts on his side. And this distinction finds considerable support in authority. It resolves the question of mutuality into the broader one of consideration, and hence brings up the difficulty, that the courts have so frequently treated the objection of want of mutuality as distinct from that of want of consideration. This difficulty is, however, in some measure removed by noticing that there may be a defect in the consideration, either because there is no valid promise on the plaintiff's part, or because that which is promised is a thing of no value; now the latter form of defect is what is called, in the cases alluded to, a want of consideration, while the former, though, to say the least, quite as much a want of consideration, is described by the phrase, "want of mutuality." It will be useful to observe the circumstances which have been held to constitute a want of mutuality. An agreement that the plaintiff should have a certain estate for £1,500 less than any other purchaser would give for it, was held objectionable on this ground, inasmuch as the plaintiff was not bound to take it at any price. Bromley v. Jeffries, 2 Vera. 415. See also Maynard v. Brown, 41 Mich. 298. The plaintiff, an attorney, had promised to give up his business to the defendant, who agreed to