Kerr

This is an action for specific performance. Plaintiff had judgment, from which and from the" order denying his motion for a new trial, defendant appealed. Appellant claims that the record discloses quite a number of errors, but "there are only three specifications that we deem of sufficient importance to justify special notice.

1. The contention that the complaint does not state a cause of action is based upon the assumption that sufficient facts are not alleged to show the adequacy of the consideration and the element of mutuality in the contract. In Windsor v. Miner, 124 Cal. 492 , [ 57 Pac. 386 ], it is said: “Specific performance is an equitable remedy, and it is incumbent upon the plaintiff in an action of this character to show both in the averments of his pleading and in the evidence at the trial that he is entitled to the equitable relief which he seeks." In Arguello v. Bours, 67 Cal. 447 , [ 8 Pac. 49 ], this advice is given: “In view of the intimation in Bruck v. Tucker, 42 Cal. 346 , it will always be safer to aver (as was done in this case) that the price paid was a just and fair price and the full value of the premises.”

The complaint here contains this allegation:…