part performance (similar to that in BRACY V. MILLER) and a tender of full performance as being the equivalent of complete performance by the infant. See infra, II. a, 3, (e), the statement of the case of Stevens v. Kittredge (Wash.) as to the effect of the tender by the vendee of the balance of the purchase money into court, upon bringing suit. (d) Effect of filing bill. It is a conclusion following as the necessary inference from the cases cited in subd. II. a, 1, that the act of filing the bill by next friend does not relieve the case of a want of mutuality so as to bind the infant. But we are not wanting in cases expressly holding that the act of filing the bill by his best friend does not operate to bind the infant. Flight v. Bolland (Eng.) supra, the leading case, is an express authority, and has been approved with respect to this point. Ten Eyck v. Manning (N. J.) supra, II. a, 1. On the other hand, the bill will be dismissed and costs may be saddled upon the next friend. Ibid. It is to be noted, however, that there is another possible view to be taken of the matter. It was said, in a case not within the scope of the annotation, that if specific performance be otherwise proper, equity "is no longer deterred from granting its decree because of a so-called lack of mutuality in the remedy. It suffices that defendant's compulsory performance is conditioned upon plaintiff's continued readiness to carry out his obligation." Great Lakes & St. L. Transp. Co. v. Scranton Coal Co. (1917) 152 C. C. A. 437, 239 Fed. 603-citing Montgomery Traction Co. v. Montgomery Light, Water & P. Co. (1916) 144 C. C. A. 82, 229 Fed. 672, and Ames, Lectures on Legal History, p. 376, and referring to Guffey v. Smith (1915) 237 U. S. 101, 59 L. ed. 856, 35 Sup. Ct. Rep. 526. See also, in connection with this question, the discussion in II. b, 3, and III. b. But a decree of specific performance given at the behest of an infant binds him, after losing the privileges attendant upon nonage. Asberry v. Mitchell (1917) 121 121 Va. 276, L.R.A. 1918A, 785, 93 S. E. 638, supra. Otherwise it would not be granted, for courts of equity are not given to the practice of rendering decrees voidable at the option of the party benefited. It is to be noted, however, that the cases cited infra, III. b, which oppose in this respect the reported case (BRACY V. MILLER, ante, 114), hold that the filing of the bill by an adult to enforce his contract, entered into while an infant, relieves the case of the want of mutuality. Reference may be made to Leuschner v. Duff (1908) 7 Cal. App. 721, 95 Pac. 914, as a case not within the scope of the annotation, on the general effect of filing a bill as affecting the want of mutuality. See also on the same subject, Batten, Spec. Perf. of Contr. 1850 Am. ed. p. 57. Under one view, which was taken in Smith v. Smith (1867) 36 Ga. 184, 91 Am. Dec. 761, an agreement for distribution of an ancestor's estate, made by an adult friend on behalf of minor heirs with their adult brother, is specifically enforceable against the latter, there being sufficient mutuality about the contract to support it. In so holding in this case, the court observed that all parties signing the agreement for the division of property were adults, and continued: "Thus, these are unquestionably parties capable of contracting with each other, and who do actually contract. That some of the parties contracting did so in behalf of minors, and to promote their interests, furnishes in equity no just ground for refusing to enforce the agreement. They (the adult friends) are doubly liable by their action" liable to the minors and to their adult brother; the latter liability refuted the idea that there was no mutuality. case In a recent South Carolina (Hammassapoulo v. Hammassapoulo (1926) S. C. 131 S. E. 319), in which the vendors in a contract of sale of realty sought to enforce specific performance on the part of the purchaser, it appears that the contract was entered into by several adult heirs, the administrator of the estate of the former owners of the property, and an adult representative of minor heirs; the minor heirs were made parties defendant, although it seems that their interest was the same as the plaintiff's. With reference to the question whether the contract was enforceable because lacking in mutuality, the court said: "Contracts made by a minor are merely voidable. But the contract cannot be avoided by an adult with whom the minor deals. . Had the minors at the outset come into court for the purpose of making a sale of the real estate, there is not a shadow of doubt but that the court would have ordered a sale and a division of the proceeds. [The court had theretofore said in the opinion that the sale had been made subject to the approval of the court, so far as the interest of the minors was concerned.] In Belton v. Briggs (1814) 4 S. C. Eq. (4 Desauss.) 465, a joint estate was held in land by several brothers, one of whom was a minor, and the other parties interested, with the knowledge and approbation of the infant, joined in the sale of the land, covenanting that, when the infant became of age, he would confirm the sale. It was held that the contract being for the infant's benefit, his action and acquiescence in the transaction for several years after he became of age, and in joining in a conveyance of the land, paid for with the proceeds of the sale of the first contract and substituted for it, had confirmed the sale or substitution, and that he was bound to make title to the purchaser. The grandmother of the infants acted in their behalf, and the court held that if what was done for the said infants is for the benefit of their said estate, it will be approved." Having stated the case of Sarter v. Gordon (1834) 11 S. C. Eq. (2 Hill) 121, the court continued: "So it is clear that the lower court was right in holding that there was an enforceable contract, and that there was no such lack of mutuality as to make the contract nugatory." So often has the rule been reiterated by the courts it is safe to assume the soundness of the principle that generally there should be a mutuality and obligation of remedy to entitle a party to specific enforcement of a contract. As to the necessity of a mutuality of obligation or remedy, it may be observed that it has not been carried to its logical extreme in all cases turning on the point. A difference of opinion has also been observed as to the effect of the want of mutuality where other circumstances appear. Exemplary of such cases is one particularly to be contrasted with the principle of decision in the reported case (BRACY v. MILLER, ante, 114). The Washington court held in one case that a contract was not rendered unenforceable by reason of the fact that the purchaser was not bound by the agreement to pay the price of the land, because of want of mutuality, where the vendee had paid part of the price (as in the MILLER CASE), and repeatedly shown his readiness to pay the balance (also a point of identity), and tendered the same into court when bringing suit. Stevens v. Kittredge (1906) 44 Wash. 347, 87 Pac. 484, citing Western Timber Co. v. Kalama River Lumber Co. (1906) 42 Wash. 620, 6 L.R.A. (N.S.) 397, 114 Am. St. Rep. 137, 85 Pac. 338, 7 Ann. Cas. 667, and another case. There is, however, this distinction between the two cases contrasted. In the MILLER CASE the minor could, after having made the payment, have repudiated the agreement and recovered back the amount paid, while in the Kittredge Case (Wash.) supra, the buyer had no such right. It seems clear that there is no necessity of a "mutuality of obligation" except where the contract is executory. See Batten, Spec. Perf. of Contr. 1850 Am. ed. pp. 56–59. And, unless the view is accepted that mutuality of remedy at the inception of the contract is necessary to get specific performance of it,-a view strange in equity,-where can there be any want of mutuality of remedy as to a party seeking specific performance, where he himself has fully performed his agreement? A reliable English text-writer stated the rule thus: "It is always an answer to a bill for specific performance of an agreement by one party that, if the defendant were to seek performance of the same agreement against the plaintiff, he could not obtain it; both parties must be bound, otherwise there can be no valid agreement. Batten, Spec. Perf. of Contr. 1850 Am. ed. p. 57. But, following this, Dowell v. Dew (1842) Younge & C. Ch. Cas. 352, 62 Eng. Reprint, 921, is cited to this statement: It is not, however, considered requisite that an agreement should at the time be binding on both parties; it is sufficient if an agreement, signed by one party, be afterwards accepted and acted on by the other. Further in explanation of the rule the same author continued: "It is now clearly settled that a plaintiff may obtain a decree for specific performance of an agreement signed by the defendant alone. Lord Redesdale seriously questioned the rule, upon the ground of want of mutuality; but to this it has been answered that the party who has not signed the agreement, by filing the bill, gives the court jurisdiction to bind him by the agreement, and from that moment there is mutuality of remedy. . The court does not insist that the mutuality should have existed at the time of the contract being entered into; it is sufficient if it exists when the case is brought before it for decision; on this ground, if a party contracting to sell can acquire a title before the hearing, it is sufficient." 43 A.L.R.-9. There appears to be at least one general exception to the rule stated in II. a, 1. If at the time of the institution of the suit the infant has fully performed his obligations under the contract of which he seeks performance, there is no want of mutuality of obligation and remedy, and the decree sought should issue. (As to the effect of tender of performance, see II. a, 3, (c), supra.) It has been said that despite the general rule as to mutuality of remedy as affecting the right to specific performance (see II. a, 2, supra), it will be generally admitted that a plaintiff who has performed his part of the contract, although he could not have been compelled in equity to do so, may enforce specific performance. by the defendant. Professor J. B. Ames, in 3 Columbia L. Rev. 1. See II. a, 3, (a), supra, the statement from Freeman V. Fishman (1923) 245 Mass. 222, 139 N. E. 846, which indicates that the court regarded performance by the infant as calling for a decree for performance by the adult. An infant was held, in a well-considered case in Virginia, entitled to specific performance of a contract (made with an adult) for the sale of land, based on the consideration that the infant should pay all expenses of the adult at a hospital and maintain him during his natural life, where the infant at the time of suit had fully performed his part of the agreement. Asberry v. Mitchell (1917) 121 Va. 276, L.R.A.1918A, 785, 93 S. E. 638. The Virginia court of appeals in the Mitchell Case (Va.) supra, approved the holding of the Colorado court in Seaton v. Tohil (Colo.) infra, II. b, 1, which was based alternately upon the same ground as the Mitchell Case. The principle of decision in the Mitchell Case (Va.) supra, and others going to the same point, i. e., that the rule as to mutuality is properly applicable only where the want of mutuality still exists at the time the decree is sought, is identically the same one as that of the cases which will be found in III. b, to oppose the decision in the reported case (BRACY V. MILLER, ante, 114). It goes without saying that if an infant is granted specific enforcement, the decree will bind him after he becomes an adult. Asberry v. Mitchell (Va.) supra. The inapplicability of the rule of want of mutuality where the party in respect of whom the mutuality was wanting has performed, has been made controlling in other classes of cases than those where the disabled party was an infant (e. g., Putnam v. Grace (1894) 161 Mass. 237, 37 N. E. 166). Thus, where a contract originally unenforceable against a married woman had been performed by her, the Florida court decreed performance in her favor. Le Noir v. McDaniel (1920) 80 Fla. 500, 86 So. 435. In this case the court refers to the article on "Specific Performance" in R. C. L., where it is said: "The rule has been broadly laid down that the mutuality of a contract is to be ascertained as of the time when it is made. But while this is true to the extent that if, when the contract is executed, it is mutual, it is immaterial that subsequent events have produced want of mutuality, the better opinion is that it is not essential that the mutuality of remedy shall exist at the inception of the contract, and that where the contract was originally lacking in mutuality this element may be supplied by voluntary performance on the part of the party seeking specific performance. Hence, the fact that when executed the contract was unilateral, or was not specifically enforceable by both parties at its inception, is not conclusive of the right of one of them subsequently to have specific performance. The necessity of mutuality is one which applied primarily to executory contracts, and not to contracts in which the provisions which could not be enforced specifically have been fully performed. Therefore, the doctrine that a contract wanting in mutuality will not be specifically enforced has no application if the contract has been performed by the plaintiff. For example, the lack of mutuality cannot be set up as a de fense in a suit for the specific performance of a contract to convey land, where the plaintiff fully performed the contract on his part. The practical effect of this distinction is that, while contracts which lack mutuality may not be specifically enforced as long as they are executory on both sides, when the plaintiff has fully executed his obligations he may be entitled to specific performance. Full performance on the part of the plaintiff is not in all cases necessary, for if he has performed a valuable part of an agreement, and is in no default as to the residue, the courts may direct the specific execution of the other part of the contract." 25 R. C. L. pp. 234 and 235. b. Minority rule. 1. Stated. In a few cases found, the fact that the person seeking to enforce specifically a contract made by him was still an infant was held not to affect his right to the remedy. Seaton v. Tohill (1898) 11 Colo. App. 211, 53 Pac. 170; Smith v. Smith (1867) 36 Ga. 184, 91 Am. Dec. 761. And see Johnson v. Rockwell (1859) 12 Ind. 76. See also infra, II. b, 2, Sarter v. Gordon (S. C.). The rationale of the case of Lafollett v. Kyle (1875) 51 Ind. 446, infra, III. b (which see), seems also to support the cases above. 2. Explained. The cases cited in II. b, 1, generally proceed upon the theory that an adult party to a contract should not be permitted to avail himself of the infancy of the plaintiff. In a case in which the infant who made the contract specific performance of which was decreed had become an adult before suit was brought, we find this statement in the opinion: "Again, it is argued that the plaintiff was a minor, and that, as the contract was not binding on the son, neither was it obligatory on the father. There is nothing in this objection. It is well settled that in contracts between an adult and an infant the former may be bound by the contract, although the latter is not." Lafollett v. Kyle (1875) 51 Ind. 446. One of the reasons assigned as sufficient for denying the defendant's plea of the plaintiff's infancy in Seaton v. Tohill (1898) 11 Colo. App. 211, 53 Pac. 170, supra, was stated as follows: "Infants are considered in law as not being capable of adequately protecting their own interests in the making of contracts, by reason of the inexperience, want of discretion, and immaturity of judgment incident to youth. The law, therefore, seeks to protect them from their own imprudence and from the imposition of others, by according to them the privilege of avoiding any contract to which they may be a party, not manifestly to their advantage and interest. This right and prerogative is personal, however, and attaches to the infant alone. Under no circumstances can it be available to, or be taken advantage of by, the other party to the contract. The adult who deals with an infant does so at his own risk, and with full knowledge of the fact that the latter is one for whom the law has a jealous watchfulness-about whose acts it throws its protecting shield. These principles are elementary in the law of contracts, and are so universally recognized that they need no argument nor citation of authorities in their support. Tyler, Infancy & Coverture, § 20; Bishop, Contr. §§ 905-946; Davies v. Turton (1860) 13 Wis. 185. Tested by these rules, we think it clear that the trial court erred in its conclusions as to the force and effect to be given to the so-called plea of infancy in the replication of plaintiff, and hence erred in its judgment. Its finding and judgment of dismissal was expressly based upon the ground that, as plaintiff by reason of his minority could not be compelled to perform the contract on his part, 'he cannot compel the other party to so perform.' This, as we have seen, was an erroneous conclusion of law. It was permitting the adult party to directly reap the advantage and benefit from the infancy of the other contracting party. This was a suit instituted by the infant, and its sole aim and object was to compel the adult defendant to specifically perform her agreements in a contract which it was manifestly to the benefit and interest of plaintiff to have performed. Moreover, it was apparent from the allegations in the complaint that a failure to enforce the contract would result in serious pecuniary loss to the infant. The defendant alone was seeking to evade the contract and was allowed to do so by reason of the nonage of the plaintiff. According to every rule of law applicable to infancy, this was a case which called for the interposition of the court in its favor." In an early Georgia case a general demurrer was sustained by the trial court on the sole ground that there was a want of mutuality in the contract sought to be specifically enforced, but, in holding this error, the supreme court of the state made a statement substantially as follows: All the parties signing the agreement for the division of the property are adults. So, these are unquestionably parties capable of contracting with each other, and who do actually contract; that some of the parties contracting did so in behalf of minors, and to promote their interest, furnishes in equity no just ground for refusing to enforce the agreement. They are doubly liable by their actionthey are liable to defendants, and they are liable to the minors; and this liability to defendants is of itself a refutation of the idea that there is no mutuality. But had the facts been that the agreement was made with the minors by the defendant, the court did not perceive "how that would affect the mutuality of the contract, though it might affect the mutuality of remedy." To say in such a case that there is no mutuality of contract because it was made with minors is to assert that the contract is absolutely void, the court said, but the agreement involved was clearly voidable only. by them. The adult who has made a contract with minors continues bound during the interval between the time when the contract was made and the time at which they attained their majority, the court said, and, it having been his voluntary act, there should be no escape for him, he having treat |