In this bill the plaintiff sets out a certain agreement in writing entered into by and between him and the defendant on the 5th of June, 1874.
This agreement is conversant, mainly, about three parcels of real estate, situated on different streets in the city of*New Haven, which may be designated, respectively, as the Ridge street, Grand street, and Woolsey street properties. The agreement sets forth that the defendant had caused the Ridge street property to be conveyed to the plaintiff. The plaintiff in the agreement then goes on to stipulate, that in consideration of the transfer of the Ridge street property to him, he will convey the Grand street property to the defendant, provided the defendant will, at the same time, convey to him the Woolsey street property.
*316• The bill alleges a perfect performance of all the requirements and conditions of the agreement by the plaintiff on his part; avers the tender of a good and sufficient -warranty deed to convey to the defendant the Grand street property; and a refusal by the defendant to accept the same, coupled with a refusal to give the plaintiff a deed of the Woolsey street property. The plaintiff asks for a decree to compel the defendant to convey the Woolsey street property to him, the plaintiff, and to accept from the plaintiff a deed of the Grand street property. This, with the performance of certain other things as incidental, fully specified in the agreement, but which it is unnecessary here to enumerate, is regarded by the plaintiff as necessary to a complete specific performance of the contract, which performance the plaintiff seeks to enforce.
• The demurrer to this bill was sustained in the court below, and it was adjudged insufficient. The question comes before us for revision on motion in error.
The language of this agreement is somewhat peculiar. The plaintiff, “ in consideration of the above transfer [of the Ridge street property] having been made, agrees to convey by warranty deed a certain piece of land situated on East Grand street.” * * * “ Provided that said Hill [the defendant] shall, at the time of the conveyance of the above East Grand street property to Hill by Goodale, convey to said Goodale a certain piece of land situated on Woolsey street,” Ac., Ac. “And said Goodale hereby agrees, that in case he shall fail to comply with the above mentioned provisions for finishing and conveying the property above mentioned in East Grand street, on or before Eebruary 1,1875, then the said Goodale will pay, as forfeit for such non-fulfillment of contract, the sum of $1800.”
On the part of the plaintiff it appears therefore that his obligation to convey the Grand street property is dependent on the defendant’s conveying the Woolsey street property. And by paying the sum of $1800, the plaintiff absolves himself, in any event, from all obligation to convey.
So far as the defendant is concerned we fail to discover any stipulation in this agreement which imposes on him any obli*317gation to convey to the plaintiff the Woolsey street property. There are two clauses, only, in the agreement, in which such a conveyance is alluded to. The substantial part of the first has already been quoted: “Provided that said Hill shall, at the time,” &c., “convey to said Goodale a certain piece of land situated on Woolsey street,” &c. This language surely imposes on the defendant no obligation to make the conveyance. That he may do so, and that he may not, is clearly implied, but which he will do remains undecided. He makes no promise; there is no stipulation that he will convey.
The only other clause in the agreement in which this conveyance is mentioned is in these words: “And it is further provided, that in case of failure on the part of said Hill to deliver or convey the Woolsey street property as above stated, then he, the said Hill, shall forfeit any and all claim or rights which, he may or would have in the Ridge street property.”
Here again we find no stipulation, no agreement to convey, but simply a statement of the consequences which it was agreed should follow a failure to convey.
We cannot advise the passing of a decree requiring the defendant to convey this Woolsey street property to the plaintiff, because in the contract before us we do not find that he ever agreed to do so. We cannot make the contract for him.
If this were a case where the defendant had agreed to convey the Woolsey street property to the plaintiff, with a penalty attached to secure its performance, equity might decree the conveyance to be made, and would do so, if justice and good conscience required it. Batten on Spec. Performance of Cont., 270 et seq. But we regard this as a contract in which it was agreed that the defendant should convey the Woolsey street property to the plaintiff, or give up any and all claim or rights he might or would have in the Ridge street property. The defendant had his option as to which he would do. He has made his choice; it is final, and there is no ground for equitable interference.
There is no error in the judgment below.
In this opinion the other judges concurred; except Phelps, J., who did not sit.