This is a suit for the specific performance of an alleged *31contract for the sale of real estate, and, therefore, is addressed to the sound discretion of the Court. The discretion to be exercised is not, it is true, an arbitrary or capricious one, depending upon the mere pleasure of the Court, but is one to be exercised and controlled by the established doctrines of equity, applied to the circumstances of the particular case.
“ Unless the Court is satisfied,” said Chancellor Kent, “ that the contract is fair and just, and equal in all its parts, and founded on an adequate consideration, it will not, by the interposition of its extraordinary power, order it to be executed.”
If an agreement be deficient in either fairness, justice, or certainty, its specific execution will not be decreed. (2 Story’s Eq., §§ 769, 770.)
And in addition to the elements of fairness, justice, and certainty, agreements of the character of that now before us must be mutual before the power of the Court to order specific performance can be successfully invoked. (Cooper v. Peña, 21 Cal. 403; Vassault v. Edwards, 43 id. 465; Marble Co. v. Ripley, 10 Wall. 339; Fry on Spec. Per., § 286.)
Applying these principles to the agreement in question, we are of the opinion that the action can not be maintained. The agreement was made on the 14th day of December, 1865, between Sal vio Pacheco of the first part, and John L. Bromley and Benjamin Jones of the second part. At the time of the execution of the contract Pacheco was the owner of the land in question, and Bromley and Jones were familiar with the business of prospecting for coal. By the contract, Pacheco, in consideration of one dollar and of the covenants on the part of Bromley and Jones hereinafter mentioned, agreed to execute to them a deed for the land on or before December 14th, 1867, provided they, Bromley and Jones, should on or before that day have fully complied with their covenants. Bromley and Jones covenanted to pay Pacheco, on or before the said 14th of December, 1867, five dollars per acre for the land; and further, that they would, on or before said 14th of December, prospect the said land for coal and coal veins, and in the event coal or coal veins were found sufficient, in their opinion, to warrant it, they would organize, under the laws of the State, a coal mining company, to be known as the Pacheco Coal Mining Company, and would cause stock to be *32issued representing the capital of the company, one sixteenth of which they would deliver to Pacheco, free of cost to him, and which stock should remain forever unassessable. The agreement contained the further covenant, that if Bromley and Jones “should at any time before the expiration of the time hereinbefore fixed for the completion of this contract, to wit, the Ifth day of December, A. B. 1867, become satisfied that it was useless to further prospect said lands agreed to be conveyed for coal, then upon giving thirty days’ notice to said party of the first part, in writing, of their intention to abandon said contract, then and thereafter this agreement shall be void, and of no binding force or effect between the said parties or either of them. It is also agreed, that between the date of the making of this agreement, and until the date of its completion or abandonment, the said parties of the second part (Bromley and Jones) may have free ingress and egress into said lands, and use and occupy the same for the purposes of mining as aforesaid.”
The contract is not free from uncertainty. It is clear enough, however, that it called for the exercise of personal skill on the part of Bromley and Jones, and that it was the intention of all of the parties to it that they should continue the work of prospecting until the 14th day of December, 1867, ■unless they should sooner become satisfied that it wns useless to prospect further and abandon the contract as herein provided for. Instead of doing one or the other of these things, Bromley and Jones, in April, 1866, conveyed to one Pons one third of their interest in the contract, and in the months of September and October, 1867, conveyed the remainder of their interest to the plaintiff, who, about the same time, also acquired the interest of Pons. Bromley and Jones not only did not perform their covenants, but by the assignments (assuming them to be valid) put it out of their power to perform. It is, moreover, perfectly clear that a specific performance of the contract could not have been performed at the suit of Pacheco; for besides the difficulty of enforcing the performance of personal services, the agreement contained the express stipulation that if, at any time prior to the period fixed for the completion of the contract, Bromley and Jones should become satisfied that it was useless further to prospect the land, *33they should have the right, upon giving thirty days’ notice to Pacheco of their intention so to do, to abandon the contract.
“ It is a general principle,” says Mr. Fry at section 286 of his work on Specific Performance, “ that when, from personal incapacity, the nature of the contract, or any other cause, a contract is incapable of being enforced against one party, that party is equally incapable of enforcing it specifically against the other, though its execution in the latter way might, in itself, be free from difficulty attending its execution in the former.”
We may add, in conclusion, that it is by no means clear but that the true interpretation of the contract is that it was not the intention of any of the parties to it that Pacheco should convey the land unless Bromley and Jones should find sufficient coal therein to warrant them in organizing the Mining Company, and should pay Pacheco, as the consideration of the conveyance, not only five dollars per acre in money, but also one sixteenth of unassessable stock of the company. But, however that may be, we are of the opinion that the case presented is not a proper one for the exercise of the extraordinary power successfully invoked in the Court below.
Judgment and order reversed and cause remanded.
MoKinstry, J., and McKee, J., concurred.