majority">Day, Oh. J.

1. contract: formalíce1:'31" mutuality: We need not determine whether the state of the record is such that we can try this cause de novo. From a careful examination of the original and amended abstracts, we are satisfied that the facts are as found by the referee. There is one insurmountable obstacle in the way of decreeing a specific performance in this case. At the time the written agreement was made, Luse was not the owner of the brewery property which he agreed to convey to Deitz. The wife of Luse was the owner of said property by recorded title. She was not a party to the contract, and was in no way bound by it. -It is very clear that Deitz could have had no specific performance against Luse. He must have been content simply with an action at law for damages for breach of contract. In Fry on Specific Performance of Contracts, Sec. 286, it is said: “A contract, to be specifically enforced by the court, must be mutual — that is to say, such that it might, at the time it was entered into, have been enforced by either of the parties against the other of them. Whenever, therefore, whether from personal incapacity, the nature of the contract, or any other cause, the contract is incapable of being enforced against one party, that party is equally incapable of enforcing it against the other, though its execution in the latter way might in itself be free from the difficulty attending its execution in the former.”

This proposition, so manifestly right in principle, is abundantly sustained by authority. See Jarman v. Davis, 4 Monroe, 115; Benedict v. Lynch, 1 Johnson, Ch. 370; Tyson v. Watts, 1 Md. Ch. 13; Bromly v. Jeffries, 2 Verm., 415; Law*207renson v. Butler, 1 Schoale & Lefroy, 15; Richmond v. Dubuque & Sioux City R. R. Co., 33 Iowa, 422 (486).

The fact that Luse tendered to Deitz a deed in due form executed by himself and wife does not affect the case. The objection still exists that Deitz could not have enforced performance against Luse if Luse or his wife had been unwilling to convey. If a party who is not bound to specific performance may, by tendering performance, enforce a specific performance against the other party, he may, at his option, enforce the specific performance of any contract, though not bound to like performance himself. The judgment is

Affirmed.

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