Opinion by
1. This suit, it seems, was brought upon the theory that, by the legal effect of the contract, plaintiff had bought from defendant Stephenson a one-fourth interest in the furniture, fixtures, and business of the Hotel Scott, in the City of Portland, and that Stephenson was the owner of the remaining three-fourths; that having been invested by the latter with the possession thereof, as manager, and afterwards deprived of that possession by him, in violation of the contract, plaintiff is entitled in equity to be restored to that possession, and to be protected in the management of the business against any interference therewith by Stephenson or the corporation, to that extent specifically enforcing the contract, and thereby enabling plaintiff to perform his part of the contract, and by his labor pay for the property he bought. This could not possibly be done except upon the allegation and proof
The lower court declined to enforce specifically the contract to the extent of restoring plaintiff to the possession and management of the hotel, or to enjoin defendants from interfering therewith because of the impracticability of enforcing such a decree, and in any event this conclusion was correct; but it did decree a transfer and delivery of one-half of the capital stock by Stephenson upon certain express terms and conditions. The only question, then, to be determined is whether Stephenson
2. As to the one-fourth first purchased, it was to be delivered only in the event that Stephenson “gets control of all the stock of said corporation,” and upon “completion of the payment of the $4,000 herein specified for”; that is, by taking charge of the hotel, managing it, and applying $65 per month of the salary of himself upon the balance of the purchase price due. This is a conditional contract, and the rule is well settled that specific performance will not be decreed unless such condition has occurred or has been performed: 25 Am. & Eng. Ency. of Law (2 ed.), 41. The first of these' conditions is admitted to have been accomplished.
3. That a contract for the sale of shares of private corporation may, under certain circumstances, be the subject of equitable jurisdiction for its specific performance, is well established. This- occurs where the value of the stock is not easily ascertainable, or the stock is not to be obtained readily elsewhere, or there is some particular and reasonable cause for the vendees requiring the stock contracted to be delivered; but if the stock contracted to be sold is easily obtained in the market, and there are no particular reasons why the vendee should have the particular stock contracted for, he is left to his action for damages: 1 Cook, Stock & Stockholders, § 338.
4. And in order that specific performance of an agreement to take or deliver shares of stock in a company may be decreed, it is necessary that the agreement should not involve any breach of trust (Frye, Specific Perf. [2 Am. ed.] § 388), nor include the performance by either party of obligations, the performance of which a court cannot practically enforce: 1 Cook, Stock & Stockholders, 462, note.
5. It was held, in Ross v. Union Pac. Ry. Co. 1 Wool. 26 (Fed. Cas. No. 12,080), by Mr. Justice Miller, that unless the court can decree specific performance of the
6. Here it is urged by the defense that the part performance by plaintiff involves a breach of trust and confidence by him, and, if so, that would destroy any right in the plaintiff to have specific performance, if any ever existed, by the defendant. Most of the testimony in the record was taken on this issue, but it is not necessary that we should examine into it to determine the issue on that point, for, assuming that a specific performance of the contract might be decréed by a court of equity, if this contract called for only the sale of shares of stock for a money consideration, yet we find that there is joined with that an obligation on the part of plaintiff to furnish the personal services of himself and wife in the management of the hotel at a salary of $125 per month, of which $65 was to be applied on the purchase price of the stock. This obligation necessarily involves a correlative one resting on the latter to employ, or to secure, plaintiff and his wife employment by the corporation in that capacity for at least a sufficient length of time to enable plaintiff to liquidáte his liability for this balance of the purcahse price of this stock. Here is mutuality of obligation, but is there also mutuality of remedy? Specific performance will not be enforced against one party if it cannot be so enforced by the other. The remedy must be mutual: Whiteaker v. Vanschoiack, 5 Or. 113; Barrett v. Schleich, 37 Or. 613 (62 Pac. 792); 2 Beach, Mod. Eq. Jur. 585; Pomeroy, Specific Perf. §§ 162-3. But “contracts for personal services, where the acts stipulated for require special knowledge, skill, ability, experience, or the exercise of judgment, discretion, integrity, and the like personal
7. By agreement of the parties the contractual obligation of the plaintiff that “he and his wife are to take charge of the hotel” means to personally supervise and manage it. This requires the possession of experience, personal skill, and the exercise of judgment, and involves integrity and the relationship of trust and confidence. And it is not susceptible of specific enforcement by a court of equity. It has been alleged by defendant Stephenson, and established by his testimony, that the controlling cause on his part for entering into the contract was the necessity of securing a competent, experienced, and honest manager to conduct the hotel, and was not merely a desire on his part to dispose of his stock. This becomes, then, a material consideration of the sale, and having no power to compel-plaintiff to specifically perform that part of his contract according to the intent of the parties, in favor of defendant, a court of equity should not enforce it in other respects against the latter. Nor is the mere offer to perform or tender of performance of personal services, the performance of which could not be compelled in equity, sufficient to relieve the case of the lack of mutuality as to remedy: Cooper v. Pena, 21 Cal. 403; Alworth v. Seymour, 42 Minn. 526 (44 N. W. 1030); Anson v. Townsend, 73 Cal. 415 (15 Pac. 49); Los Angeles Co. v. Occidental Oil Co. 144 Cal. 528 (78 Pac. 25).
8. As to the second one-fourth of the stock agreed to be sold by Stephenson for $4,000, plaintiff is not bound to purchase at all by the contract, but had an option to take within 60 days (which he says was extended) upon payment of $2,000, and the balance on or -before six
9. It seems that because the contract included a provision that, in case the hotel makes a profit, the second party would be entitled to one-fourth thereof to be credited, together with $65 per month of plaintiff’s salary, upon the balance due on the stock, the court assumed that there may have been profits, together with damages which plaintiff was supposed to have suffered by his dismissal, sufficient to liquidate his indebtedness to defendant, and on that basis the decree provided for the appointment of a referee, to take an accounting of damages and of the earnings and profits of the hotel, and if any such were found to be applied on this stock purchase, and the balance, if any, to be paid by plaintiff in 40 days. But all this is mere speculation. There is no basis for it in the pleadings. There is no allegation that any profits have accrued or are due, nor is there any claim made therein for damages, and, if there were, plaintiff makes no tender of performance in his complaint by alleging his willingness and ability to pay any balance that may be found due after applying profits to the liquidation of his debt. The record contains no issues in the pleadings or facts to sustain the decree: Clarno v. Grayson, 30 Or. 111-143 (46 Pac. 426.)
For these reasons the decree should be reversed, and the- suit dismissed. Beversed : Suit Dismissed.