Opinion
Rehearing Denied April 7, 1930
Hearing Granted by Supreme Court May 15, 1930
Appeal from Superior Court, Ventura County; G.R. Freeman, Judge.
Action by Anton Relovich against S.L. Stuart and others. Judgment for defendants, and plaintiff appeals.
Affirmed.
COUNSEL
J.L. Murphey, of Los Angeles, for appellant.
Clarke & Bowker, of Los Angeles, and James C. Hollingsworth, of Ventura, for respondent Mary Perkins Raymond.
OPINION
HOUSER, J.
Defendant Stuart was the owner of about 130 acres of land upon which he had developed water. He sold to plaintiff, Relovich, 20 acres of such land. Contemporaneously with the delivery of the deed thereto Stuart gave to Relovich an instrument in writing, signed by Stuart alone, by which he agreed to furnish to Relovich, for the price of 20 cents for each 1,000 gallons, water to be used by him upon the land described in the deed. The "agreement" contained the further provision that water to be furnished was to be supplied from the water system owned by Stuart, but that Relovich was to pay the expense of "making the connection to and with said system of pipes and conducting said water to said land." During each of several succeeding years Relovich improved portions of the land purchased by him from Stuart, and in so doing used water which was furnished to him in accordance with the terms of the "agreement." Thereafter Stuart sold his remaining interest in the original 130 acres, together with the water rights therein. After such land and such water rights had passed into the ownership of several successive purchasers thereof, the title thereto finally vested in the defendant Raymond, who thereupon broke and disconnected the pipe theretofore installed by Relovich at its connection with the water system theretofore maintained by Stuart and the several succeeding owners thereof, and thereafter refused to furnish Relovich with any water. Thereupon Relovich instituted a suit by which he sought an injunction to compel Raymond to again connect the water system owned by Raymond with the pipe installed by Relovich in connection with said water system, and thereafter to furnish water to Relovich as provided in the agreement to which reference has been had. By his action Relovich also demanded compensation from Raymond for damages caused by her refusal to furnish water in pursuance of the provisions of said agreement. By order of the lower court a demurrer interposed by the defendants to the complaint in the action was sustained without leave to amend. It is from the ensuing judgment that this appeal is taken.
From a consideration of the foregoing statement of facts it becomes apparent that the right, if any, in the plaintiff to the relief demanded by him primarily depended upon whether the "agreement" was capable of either legal or equitable enforcement. Speaking generally, it is well established by numerous authorities that, where by the terms of a writing but one of the parties purportedly interested therein is bound by its terms, the instrument cannot be enforced as a contract, either specifically or by way of compensation to be awarded as damages to one of the parties to the quasi contract on account of its supposed breach or the nonperformance of its apparent requirements by the other party thereto. As in substance is stated in 6 California Jurisprudence, 211, if no definite obligation is created as to one of the parties, the contract lacks mutuality, and is binding upon neither of the parties. And in 9 Cyc. L. & P. 618, the same thought, with an illustration thereof, appears in the following language: "*** One who promises to do a thing only if it pleases him to do it, is not bound to perform it at all. *** So where a person agrees to furnish lumber in such quantities as he may ‘deem fit and advisable,’ it has been held that he may cease furnishing the lumber whenever he pleases." In the case of Doe v. Culverwell, 35 Cal. 291, it is held that, in order that a writing between two persons may have binding force, it is essential that it contain obligations which are reciprocal as to each of the parties thereto. That equity will not decree the specific performance of an act agreed to be performed by one of the parties to a purported contract, unless by its terms a reciprocal obligation is created as to the other party thereto, is held in Archer v. Miller, 73 Cal.App. 678, 239 P. 92. And in volume 23, page 445, of California Jurisprudence, where many authorities are cited in its support, the rule is thus stated: "A contract will not be specifically enforced unless it has such mutuality that it may be so enforced by either party; and this mutuality must exist at the time the action is commenced. It results 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." And by section 3386 of the Civil Code, in part and in substance, it is provided that neither party to an obligation can be compelled specifically to perform it, unless the other party is compellable specifically to perform it.
Adverting to the "agreement" here under consideration, it will be remembered that it was signed by Stuart only, and that he agreed to furnish water to Relovich at a stated rate, but that there was no agreement either as to the total quantity of water which would be furnished, nor the time during which any flow (however uncertain as to quantity or volume) of water should continue. For example: As far as the language of the "agreement" is concerned, the 1,000 gallons mentioned therein might be so furnished that it would come as a mere trickle and possibly take many hours to accumulate; or, again, the 1,000 gallons might be supplied in a comparatively large volume and require the space of one minute or less; and the flow of water last suggested might be continuous; or it might be intermittent, and thus the several flows thereof separated by days, weeks, or months. But of greater importance, as far as the binding force of the agreement was concerned, was the fact that the agreement contained no covenant on the part of Relovich that he would ever require, or take, or purchase, from Stuart any water whatsoever. It is therefore clear that the "agreement" was lacking in mutuality, in that, although, apparently, it obligated Stuart to the performance of an act (however uncertain), in no wise did it impose any reciprocal or other duty on Relovich.
In the case of Schimmel v. Martin, 190 Cal. 429, 213 P. 33, 34, it appeared that Martin, who was the owner of "150 inches of water," agreed with one Uzzell to let him "have this water continuously at 1½ ¢ per inch," to be delivered on certain land. Later, the rights of Uzzell in the contract were assigned to Schimmel and one Anderson, and immediately thereafter Martin refused to furnish any water to either of them. In an action for damages resulting from such refusal, judgment was rendered against the defendant. On appeal to the Supreme Court it was held that the contract was void because it was lacking in mutuality, in that it contained no covenant on the part of the proposed user to buy the water offered for sale by its owner; also that a contract to allow the use of water where no time was specified during which an agreed rate was applied was void for uncertainty. In part the court said:
"The contract is lacking in mutuality. Considered as a contract for the sale of personal property, as the parties to the action treated and considered it, and as the trial court in effect found it to be, there is clearly no mutuality in the absence of an agreement by the plaintiffs to buy the water offered for sale by the contract. *** But in the instant case we are unable to find in the contract any obligation or promise on the part of the plaintiffs or their predecessors in interest to take or purchase any water at all.
"The lack of mutuality in the contract is the principal point made in support of the appeal. Incidentally, however, it is contended that the contract was void for uncertainty. This point, even though it be indifferently made, is well taken." And the court then took pains to point out in what respect the uncertainty existed, and reversed the judgment.
That case and the instant case are very similar. It is clear that, if no recovery of damages could be had in the cited case, none should be recovered in this case; and since by general authority, to which reference heretofore has been had herein, it is manifest that, before specific performance of a contract of the nature of that here under consideration will be decreed, it must appear that by the covenants therein a mutuality of remedy for its breach exists in favor of each of its parties, it follows that the judgment rendered herein by the lower court should be affirmed. It is so ordered.
We concur: CONREY, P.J.; ELLIOT CRAIG, Justice pro tem.