dissent"> Strum, J.

(dissenting) : In my opinion, a provision for liquidated damages in a contract to convey land, or for *511 the return of the earnest money in ease the vendor is unable or unwilling to convey, does not bar relief by specific performance unless it clearly and unmistakably appears from the contract that payment of the amount fixed is to be an alternative of and equivalent to a conveyance of the land. The contract here involved does not seem to me to clearly manifest such an intention on the part of the parties thereto. The agreement of the vendor defendant herein to return the earnest money in the event he, the vendor, was unable, or refused to keep his bargain is no more than an express statement of what the law would imply under those circumstances. Nor is the additional provision that the earnest money, which was a part of the purchase price, should be forfeited to the vendor in the event the vendee refused to accept a conveyance upon the terms of the contract any more than would be implied by the law under those circumstances. The latter provision would not preclude specific performance at the instance of the vendor in the event the vendee refused to perform. The contract is therefore in that aspect mutual as to remedy. Those provisions of the contract which form the basis of the majority opinion do not indicate to me such a clear intention of the parties to give the vendor the choice between refunding the earnest money or conveying the property according to his promise as to preclude relief by specific performance. Rittenhouse v. Swiecicki, 118 Atl. R. 261; Goldy v. Jaeger, 124 Atl. R. 765; Knisely v. Robinson, 206 Pac. R. 877; Cincinnati, etc. v. Masonic, etc., 272 Fed. R. 637; Pomeroy’s Specif. Perf. (3rd Ed.) Sec. 50.

In Safron v. McBurney, 112 Atl. R. 677, it was expressly stipulated in the contract that “in event of the title not being such as contracted for, the contract shall be void, and any payment herein returned to the party of the *512 second part (the vendee) in lieu of any claim for damages.” The court construed that provision of the contract to mean that if the vendors could not convey what they had contracted to sell, they should be called upon for nothing save the return of the earnest money. The provisions of that contract, however, are essentially different in effect from those of the contract here involved.

It is immaterial that this contract was originally unilateral. The vendee here has accepted and offers to perform. The contract thereupon became bilateral and mutually enforcible. Ewins v. Gordon, 49 N. H. 444.

It seems to me that what is said in the majority opinion is in conflict with what was previously said by this court in Vance v. Roberts, 188 So. R. 205.

In my opinion, the decree appealed from should be affirmed, and I therefore dissent from the order of reversal.

Ellis, J., concurs.

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