I concur in the opinion by Smith, P.J.
In addition to the views therein stated it appears to my satisfaction that the record in this appeal brings before us a question respecting the power and authority of the trial court to require specific performance of the agreement as found to have been entered into by the parties litigant. Whether appellant's assignments of error are sufficiently specific to raise the point is a question which need not be debated. The point is one of law and especially relates to the cause of action upon which defendant relied and is therefore inherent in the case.
Although not argued at length by appellant's counsel, it is set forth in his brief that the only consideration plaintiff Crawford could expect to receive for his property, as a result of his understanding with defendant Carter, was a convenience or accommodation which would follow as a matter of course from the fact that the repair shop and service station defendant was to erect and operate would be within ready reach and thus spare plaintiff some work and running around he hoped to avoid.
It does not appear from the testimony of the parties, or either of them, that plaintiff was to receive any service or supplies from defendant free of charge. The findings of the court reflect no agreement on defendant's part that as a consideration for plaintiff's undertaking to convey a valuable part of his farm to defendant the latter was obliged to keep in repair plaintiff's truck and tractor or either of them. Nor is there any evidence from which the court could have found that the convenience or accommodation anticipated by plaintiff was to continue for a week or for a longer period. Defendant did not agree to render to plaintiff any specific service whatsoever.
Altogether consistent with the understanding of the parties as related by defendant, and in accord also with the view that defendant was under no obligation to accommodate the plaintiff, defendant testified in substance that until *Page 525 September 23, 1946, a few days after he had completed the business establishment, he had been willing to do repair work for plaintiff but that after said date he would do nothing for plaintiff unless in case of an emergency or as an errand of mercy. He further testified that he regarded his obligation as fulfilled when plaintiff could see that defendant was intending to operate there. Although it is reasonable to assume that both parties entertained the idea, when they entered into the agreement as found by the court, that business relations would be carried on between them at the new place after the fashion they had previously established, it cannot be said that the parties by their agreement reached an understanding whereunder defendant became obliged to render a certain service to plaintiff for a definite period of time. In the absence of an agreement about the matter plaintiff was left with but an appeal to the conscience of defendant for the realization of the convenience he anticipated when he granted to defendant permission to move onto his property.
Codifying rules long applying to the equitable remedy of specific performance are the provisions of SDC 37.4603. It is therein provided: "Specific performance cannot be enforced against a party to a contract in any of the following cases: (1) If he has not received an adequate consideration for the contract; (2) If it is not, as to him, just and reasonable; * * *". A few other states have similar statutory provisions. See Vol. V, Williston on Contracts, Revised Edition, page 4000, note 6, 49 Am. Jur., Specific Performance, § 65, and 58 C.J., Specific Performance, § 123. Notes treating the question of inadequacy of consideration are found in 14 L.R.A., N.S., 317 and 65 A.L.R. 86. The annotator of the later note places our state under what he defines as the minority rule and cites, together with similar rulings in a number of other states having statutes corresponding with ours, the case of Phelan v. Neary, 22 S.D. 265, 117 N.W. 142. In the cited case the code provisions quoted above were held to apply against one who sought specific performance of an alleged contract under which he claimed the right to purchase real property at about one-third *Page 526 of its fair value. It was therein held that the enforcement of such a contract would not be as to the defendant, the landowner, either just, equitable or reasonable.
In the instant case it is the position of defendant that under his arrangement with plaintiff all he was required to do was to appropriate plaintiff's property to his own use as a place of business and homesite, and then receive a deed for the same. It is clearly evident from the testimony that these parties failed to agree upon the matter of consideration to plaintiff for the right to take his property. There was no meeting of the minds of the parties respecting this essential element of the agreement upon which defendant relied and which the trial court undertook to enforce.