Field, C. J. and Norton, J. concurring.

This is an action to compel the defendant to convey to the plaintiff a tract of land in the county of Solano. The action is based upon *410 a bond given in 1850, by which the defendant bound himself, in consideration of one dollar, and of certain services to be rendered by the plaintiff, to convey to him the land. It appears that the defendant and one Vaca were joint owners of a grant of land from the Government of Mexico, and that they were desirous of having a partition and division of the land between them. The defendant employed the plaintiff to represent him in the matter, and for the services to be rendered agreed to convey to the plaintiff three hundred and twenty acres of his share of the land. The bond was given to secure the performance of this agreement, vesting in the plaintiff the right of selection, and binding the defendant to convey as soon as the selection should be made. The partition was partially effected in 1850, but difficulties arose in the way of completing it, and the parties agreed to postpone the completion until the boundaries of the grant should be fixed by the proper authorities. This was not done until 1857, when the plaintiff offered to go on and complete the partition, but the defendant refused to allow him to do so, whereupon he made a selection, and demanded a conveyance. The Court below rendered a judgment in his favor, and the appeal is from an order setting the judgment aside, and granting a new trial.

The plaintiff contends that the judgment was correct, and that the Court erred in setting it aside. Various grounds are urged by the defendant in support of the order, the principal one of which is the want of mutuality in the agreement. So far as the agreement is unperformed, the plaintiff cannot be compelled to perform it on his part, for equity will not enforce a contract for personal services, but leave the party to his remedy at law. In respect to the remedy, therefore, there is no mutuality, and it is universally admitted that equity will not enforce a contract, where the party asking its enforcement cannot himself be compelled to perform it. The contract must be just and equal in its provisions, and the subject matter must be such that equity can take jurisdiction of it, and compel performance by both of the parties. The remedy must be mutual as well as the obligation, and where the contract is of such a nature that it cannot be specifically enforced as to one of the parties, equity will not enforce it against the other. As a general rule, *411 the question of mutuality is to he determined by the contract itself, and is not affected by circumstances occurring after the contract is made, and the rights of the parties are fixed. It is a settled principle, that the specific performance of a contract is not a matter of course, but rests in the sound discretion of the Court, upon a view of all the circumstances; and before the Court will act, it must be satisfied that the contract is reasonable and equal in its operation. The rule, as stated by Chancellor Kent, is, that unless the Court be satisfied that the contract is fair and just, and equal in all its parts, and founded on an adequate consideration, it will not, by the interposition of its extraordinary power, order it to be executed. (Seymour v. Dalancey, 6 Johns. Ch. 223 .) “ If there be,” said he, “ any well founded objection on either of these grounds, the practice of the Court is to leave the party to his remedy at law for a compensation in damages.” In Tyson v. Watts, the Court of Chancery of Maryland laid down the same rule, and the Chancellor, in delivering his opinion, said: “In addition to the elements of fairness and justice, the agreement must be mutual before the power of the Court to order its specific performance can be successfully invoked; and indeed it may well be doubted whether a contract can be considered in any respect fair and just if it be not mutual.” (1 Maryland Ch. Dec. 13.) The same Court, in Duvall v. Myers, (2 Id. 401) said: “ The right to a specific execution of a contract, so far as the question of mutuality is concerned, depends upon whether the agreement itself is obligatory upon both parties, so that upon the application of either against the other the Court would coerce a specific performance.” This was said in reference to a case decided by the Court of Appeals of that State, in which similar language had been used, and it may be stated generally as the result of the authorities upon the subject. (Fry on Specific Performance, 198.) There are cases, however, in which a want of mutuality at the time the contract was entered into has been held not to be a sufficient reason for refusing to enforce it, and these cases, if well founded in principle, must be regarded as exceptions to the rule. It has been held that the performance of a contract on one side entitled the party performing to equitable assistance against the other, though upon an application by the latter the Court could not *412 have compelled performance in his favor. A contract with an infant has been held to be enforcible by him after he has become of age, notwithstandmg the want of mutuality in the first instance, the same effect being given to the contract in equity as at law. A lessee may enforce a contract to renew a lease, which could not be enforced against Mm; but this results from the prior lease, and the nature of the contract itself, and can hardly be regarded as an exception to the rule. A contract between a trustee and his cestui que trust may be enforced by the latter, but not by the former; and under certain circumstances a voluntary settlement may be enforced by the beneficiary, who could not, of course, be compelled to accept it. In these cases, however, there are considerations which override the principle of mutuality; and we are not aware of any case involving a reciprocity of obligation, in which a contract has been enforced m favor of a party who had not actually performed it, or could be compelled to do so. It is safe to say that no such case exists, and that equity will not interfere m favor of one of the parties where it is incapable of doing justice to the other, by enforcing the entire contract according to its terms. Taking this as the rule, there is no difficulty m applying it in the present case, and it is unnecessary to hold that the position of the parties, as to equitable relief, was determined by the want of mutuality m the beginning.

We have already stated that the plaintiff cannot be compelled to complete the services which he agreed to perform, and the fact that he has offered to complete them is not equivalent to actual performance. The rejection of the offer by the defendant excuses the performance as a condition precedent, but does not release the plaintiff from his obligation to perform, so long as he insists upon the agreement. As this is an obligation which the Court cannot enforce, there is no principle which would justify it m enforcing the obligation on the other side; and the only course is to decline to interfere, and leave the plaintiff to Ms remedy for damages. It is proper to remark that there is no assurance that the offer could be carried out, for there is a third person to be consulted, who might refuse to act in the matter, or might not agree to a satisfactory partition. This is an insuperable objection to any relief looking to the *413 completion of the services in future, even if the Court had the power, so far as the plaintiff is concerned, to enter a compulsory order in that respect. Besides, the services are of such a character that no Court would compel their acceptance, as they are confidential in them nature, and involve in their performance the exercise of discretionary authority.

It follows that the order granting a new trial must be affirmed, and that the further action of the Court below is to be limited to an adjustment of the damages which the plaintiff has sustained.

The order is affirmed and the cause remanded.