Ves. 265; Fowle v. Freeman 9 Ves. 351; Clason v. Bailey 14 Johns. 484; In re Hunter 1 Edw. Ch. 1; Hawralty v. Warren 18 N. J. Eq. 124; Hall v. Center 40 Cal. 63; Clark v. Clark 49 Cal. 586; Schroeder v. Gemeinder 10 Nev. 355; a contract for the sale of real estate, at the vendee's option, but upon election and notice, may not only be specifically enforced, but the vendor's refusal to accept the purchase money will not destroy the mutuality though the vendee could thereupon withdraw his election: Corson v. Mulvany 49 Penn. St. 88; Bost. & Me. R. R. v. Barlett 3 Cush. 224; the mutuality and consideration consist in the vendee's having done, on the vendor's promise, what he required, whether he previously undertook to, or not: Perkins v. Hadsell 50 Ill. 216; Kerr v. Purdy 50 Barb. 24: 51 N. Y. 629; Kerr v. Day 14 Penn. St. 112; Willard v. Tayloe 8 Wall. 557; Napier v. Darlington 70 Penn. St. 64; Farwell v. Lowther 78 Ill. 252; Esmay v. Groton 18 Ill. 484.

Albert Crane for defendant Conrad. Parties to a contract cannot invoke the jurisdiction of the court to compel its specific performance if they are not bound by it themselves: Bromley v. Jefferies (1700) 2 Vern. 415; Lawrenson v. Butler (1802) 1 Sch. & Lef. 13; Boucher v. Van Buskirk (1820) 2 A. K. Marsh. 343; McMurtrie v. Bennette (1839) 1 Harr. Ch. 124; Hawley v. Sheldon (1840) id. 420; Geiger v. Green (1846) 4 Gill 472; Tyson v. Watts (1848) 7 Gill 124; Duvall v. Myers (1850) 2 Md. Ch. 401; Rider v. Gray (1855) 10 Md. 282; Gelston v. Sigmund (1867) 27 Md. 334; Chambers v. Livermore (1867) 15 Mich. 381: Richmond v. Dubuque etc. R. R. (1871) 33 Ia. 422; Luse v. Deitz (1877) 46 Ia. 205; Maynard v. Brown (1879) 41 Mich. 298; nor if it permits them to revoke it: Marble Co. v. Ripley (1870) 10 Wall. 339.

COOLEY, J. This is a bill for the specific performance of what is called in the mining districts a contract of option.

The contract bears date July 1, 1880, and is given in full in the margin.*

David W. Rust, one of the contracting parties, died intestate October 4, 1880, and when administrators were appointed they united with the heirs-at-law in transferring the interest of the estate to John F. Rust, Ezra Rust and George M. Stevens, and the assignees join with John J. McTavish, Myron E. David and Orrin J. David in filing the bill. The complainants allege the full performance on their part of all that was required to entitle them to exercise their option and demand a lease, and they also aver that they elected to take a lease, and demanded it December 3, 1880.

*This memorandum of agreement, made and entered into this first day of July, A. D. 1880, between Charles F. Conrad, Arnold McIntire, and P. Parsons Chase, of Washtenaw county, and Myron E. David and Orrin J. David, of the county of Wayne, and all of the State of Michigan, parties of the first part, and a copartnership known as David W. Rust & Company, composed of David W. Rust, George Rust, John J. McTavish, of the county of Saginaw, and Myron E. David and Orrin J. David, of the county of Wayne, and all of the state of Michigan, parties of the second part:

Witnesseth, that whereas said parties of the second part are desirous of exploring for iron ore on the north-east quarter of section three, and the south-east quarter of south-west quarter of section seven, and the north-east quarter of north-west quarter of section eighteen, in town forty-seven (47) north, of range twenty-eight (28) west:

Now, therefore, said first parties, for and in consideration of said explorations to be done by said second parties, hereby grant and give to said second parties the right of entering upon said lands and exploring for iron ore until the first day of January, 1881, if work exploring said lands shall be continued to that time; and if ore of quality and quantity is found on said lands sufficient for mining, then on or before the expiration of this agreement, at the request of said second parties, said first parties, their heirs or assigns, agree to execute a lease of said lands to said second parties, their heirs and assigns, for mining purposes. Said lease, if given, shall be substantially as follows:

First. Said lease shall be for twenty years from and after the first day of July 1880, and drawn so as to give David W. Rust two-fifths, () George Rust one-fifth, () John J. McTavish one-fifth () and Myron E. David and Orrin J. David one-tenth (6) each interest in said lands.

Second. Royalty to be paid by second parties to first parties shall be thirty-five cents (35c.) per ton (of 2240 pounds) for all hard ore mined and shipped, and twenty-five cents (25c.) per ton for all soft hematite ore mined and shipped from said lands.

Third. Second parties to pay all taxes upon said lands, both general and specific, during the life of this lease.

Fourth. Railroad reports of the road over which ore shall be shipped shall be prima facie evidence of the number of tons shipped by second parties.

Fifth. Payments of royalty for ore so mined and shipped shall be due and payable on the first days of July and January in each year..

The defendants admit the making of the contract and the demand of the lease, but they deny the performance by complainants of the conditions precedent. They also rely upon two principles of law as constituting a complete bar to the relief claimed. These principles may be stated as follows:

1. The contract of option was a mere license to David W. Rust and his associates, and as such was personal and not assignable, and when David W. Rust deceased, the license was by implication of law revoked.

2. The contract was not such an one as a court of equity will specifically enforce. By its terms the lease to be given

Sixth. Said royalty shall be paid within sixty days after it shall become due and payable, and upon failure to pay said royalty or taxes in said time, said lease may be terminated by giving thirty days' written notice to the second parties. Second parties may terminate said lease at any time by giving thirty days' written notice to first parties of their intention to do so.

Seventh. It is agreed that, upon the termination of this option, or of said lease, whether by the acts of the parties, or either of them, or by limitation, the parties of the second part, their heirs or assigns, shall have sixty days in which to remove all engines, tools, machinery, railroad tracks, buildings, and structures erected or placed by said parties on said lands, but shall not remove or impair any pillar for ore support placed in the mines, or any timber or frame-work necessary to the use and maintenance of shafts or other approaches to the mines, or any tramways within the mines, said mines to be kept and left in as good condition as the circumstances will permit.

Eighth. The parties of the second part covenant that during the period for which said lease shall continue in force, after the first year, there shall be mined and removed from said lands at least five thousand tons of iron ore within one year from the first day of January, one thousand eight hundred and eighty-one, (1881,) from each eighty acres included in said lease, and crossing the iron belt from north to south, provided said amount can be mined and removed at a reasonable profit, and in case the said second parties shall not remove from said lands the quantity of iron ore per annum as herein stipulated, and subject to the conditions hereby expressed, commencing with the time specified, the said parties of the second part shall nevertheless pay to the parties of the first part a royalty of thirty-five cents (35c.) per ton, upon five thousand tons per annum up to and until this lease shall expire, which should have been mined from each of said eighty acres as above set forth:

Provided, however, that if in any one or more years more iron ore is thus paid for than is actually mined and removed in such year or years, then and in such case the iron ore thus paid for and not removed may be removed in the next subsequent year during the continuance of this lease without other payments therefor, but such ore so permitted to be removed in any subsequent year from each eighty acres in consideration of such pre-payment must be in excess of the stipulated five thousand tons agreed to be anually taken from each eighty acres of land under said lease

under it might at any time be terminated by the lessees, as to the whole land or any part of it not less than eighty acres, on their giving thirty days' notice of intention so to do. The continuance of the lease, if one should be given, would therefore depend on the will of the lessees, who might immediately elect to terminate it. The contract therefore lacks mutuality and equality; and not being mutual or equal, lacks equity; and for that reason should not be enforced.

The first of these, as a general principle, is no doubt sound. Its application to this case might perhaps be distputed by complainants upon the ground that although the contract was with David W. Rust and his associates only, yet it provided for a lease that should be assignable. Whether they would be correct in this we shall not inquire,

Ninth. All buildings and machinery of second parties to be held by first parties as security for any rents, royalties, or other indebtedness due said first parties by second parties, and said machinery may be used by first parties if so desired to keep the mine or mines free from water, or worked until all arrears are paid in full, and such buildings and machinery removed so as not to obstruct work or the replacing of others in their stead upon the termination of said lease, either by the acts of the parties or by limitation.

Tenth. Said Conrad, one of the parties of the first part, shall have the right to furnish railroad carriage on all ore mined on condition that he shall deliver the same to the ports of Lake Superior, or some port accessible to Green Bay or Lake Michigan, at' as low rates as any other person or corporation.

Eleventh. Said second parties to commence explorations at once and prosecute the same with reasonable vigor, and in a business-like manner, and failure on their part so to do shall terminate this agreement.

Twelfth. Said second parties shall have the right, upon the first day of January, one thousand eight hundred and eighty-one; or at any previous time, to elect to take a lease of the whole of said land as mentioned in this option, at the rates above mentioned and for the time mentioned herein, or they may take a lease for any one or more eighty acres of land mentioned above, for the time mentioned above, except said sections seven (7) and eighteen, (18,) it being hereby understood that, provided all said descriptions shall be surrendered by said second parties, except said sections seven (7) and eighteen, (18,) a royalty shall be paid on said sections seven and eighteen of forty cents per ton, instead of thirty-five cents, as above stated, and may surrender any eighty acres of land which they may not desire to have included in said lease, and take a lease of the balance, or after the execution of said lease, second parties may surrender any portion of said land to first parties not less than eighty acres, upon, paying in full all royalty and taxes due upon the same, and giving thirty days' notice to first parties of 'intention to so surrender.

[Signed and sealed by the parties.]

for the reason that it is unnecessary in this case, which must be governed by other considerations.

When a party to a contract appeals to a court for its specific performance, he addresses himself to the judicial discretion. The relief he asks is altogether exceptional, for the general rule is that the party who complains that another has failed to fulfil his engagements, is supposed to have adequate redress at law in recovery of damages. The court may therefore refuse to grant specific performance in any case where in its judgment equity does not require it. McMurtrie v. Bennette Har. Ch. 124; Smith v. Lawrence 15 Mich. 499; Blanchard v. Detroit etc. R. R. Co. 31 Mich. 43; Berry v. Whitney 40 Mich. 65; Willard v. Tayloe 8 Wall. 557; Williams v. Williams 50 Wis. 311; Mather v. Simonton 73 Ind. 595. In a few cases a party is suffered to invoke this extraordinary jurisdiction of a court of equity, when it is manifest that the remedy at law is inadequate.

But when a party comes into equity it should be very plain that his claim is an equitable one. If the contract is unequal; if he has bought land at a price which is wholly inadequate; if he has obtained the assent of the other party to unreasonable provisions; if there are any indications of overreaching or unfairness on his part, the court will refuse to entertain his case, and turn him over to the usual remedies. Chambers v. Livermore 15 Mich. 381; Munch v. Shabel 37 Mich. 166; Mississippi etc. R. R. Co. v. Cromwell 91 U. S. 643; Burton v. Le Roy 5 Sawy. 510. If, for example, the contract is so drawn that the vendor has the option to retain the property or to convey it, performance in his behalf will be refused. Maynard v. Brown 41 Mich. 298. And in each case the court will consider "whether, in view of all the facts and those doctrines which are interwoven with the very texture of equity jurisprudence, and in view of the specific peculiarities presented, and the settled principles and maxims of the court, it is right and proper to entertain the case and administer relief." Buck v. Smith 29 Mich. 166, 170. These are familiar principles.