I concur in the judgment of affirmance, but upon grounds to a great extent distinct from those stated in the opinion of Justice McFarland.
It is conceded that a contract will not be specifically enforced unless the remedy is mutual. It is also conceded that the contract here in question does not by its terms bind the plaintiff to do anything, and that to impart to it the element *Page 668 of mutuality the plaintiff must have made a binding offer to perform on his part, and this offer must have been free from any conditions which the defendants on their part were not bound to perform. (Civ. Code. sec. 1494.) It does not appear that any such offer to perform has ever been made by the plaintiff at any time, and certainly he does not make it by this complaint. He alleges, it is true, "that immediately after the execution of said contract plaintiff notified defendants that he elected to perform his part of said contract and to thereby acquire the undivided one-half interest in and to said mining claims as in said contract mentioned, and then and there proceeded to, and did thereafter, expend the sum of about two thousand dollars hereinbefore mentioned in pursuance of said contract." But this allegation is to be construed in connection with other parts of the complaint, which show that, according to plaintiff's construction of the contract, he was to become the owner of a half-interest in the mines as soon as he had expended ten thousand dollars in their development and erected a ten-stamp mill. All, therefore, that he ever offered to do at any time so far as can be gathered from the complaint, was to expend ten thousand dollars and build a mill, upon condition that he should thereupon become the owner and have a conveyance of a one-half interest in the property. And that, indeed, is the condition upon which he offers to perform in the complaint filed herein, the prayer of which reads as follows: "That plaintiff be let into possession of the said premises for the purpose of performing the labor provided for in said contract and for the erection of the said ten-stamp quartz-mill, and to otherwise perform and carry out the covenants of said contract, and that said defendants, their servants, agents and employes, be restrained by this court from interfering with the work of plaintiff upon said mining claims, and that upon the completion of said labor and the expenditure of said money and the erection of said ten-stamp quartz-mill that plaintiff be decreed to be the owner of one-half interest in and to the premises set forth in the complaint, and that the defendants cause to be executed and delivered to plaintiff herein a good and sufficient deed conveying to said plaintiff an undivided one-half interest *Page 669 in and to said premises." But the contract, which is annexed to the complaint as an exhibit, does not bear the construction which the plaintiff has placed upon it. The terms of this instrument are so obscure and ambiguous that no one can assert with much confidence that he has discovered the real and exact intention of the parties, but I think Justice Harrison, in his opinion delivered in Department (54 Pac. Rep. 587), correctly held that the plaintiff, by expending ten thousand dollars and building a mill, would only have secured an option to purchase a half interest for five hundred thousand dollars. Plaintiff, therefore, has never offered to perform the contract according to its true construction and subject to its stipulated conditions, but only according to his erroneous construction and subject to conditions which he had no right to impose, and, such being the case, it cannot be said that the remedy of specific performance ever became mutual.
Another ground of my concurrence is, that the defendants Singleton and Mooers never agreed to do what the court is asked to compel them to do, and what the plaintiff makes another condition of his offer to perform. They never agreed to convey to plaintiff a half interest in the mines out of their two-thirds. They merely executed for themselves a contract which, if it had been completed, would have bound them in conjunction with their cotenant, Burcham, to convey a half interest in the whole; in other words, each of the defendants was a part with one-sixth, and not with the one-fourth, which the plaintiff demands. The failure of Burcham to execute the contract left it incomplete, and the defect is not cured by the fact that defendants represented that they had authority to act for him. Whatever authority to act for Burcham they may have had, or claimed, it is very certain that they neither acted, nor pretended to act, for him in the only way they could have done so effectively, i.e., by executing the contract in his name and as his attorneys in fact. If plaintiff was relying upon their asserted authority to act for Burcham, why did he not require them to execute the contract in Burcham's behalf? If he had done so, Burcham would have been bound, if they had authority, and, if they did not have authority, they themselves would have been bound to perform what they had promised in his name. But in the incomplete *Page 670 condition in which the contract was delivered (assuming that the complaint shows it was delivered), neither defendants nor Burcham were bound to convey the one-sixth interest which, upon a fair construction of the written terms, was to be contributed from Burcham's third. Plaintiff nevertheless offers to perform only upon condition that he shall become the owner of that sixth interest, and that it be transferred to him by parties who never contracted to transfer it.
Rehearing denied.