
    CONTRACT FOR. PERSONAL SERVICES.
    [Superior Court of Cincinnati, General Term.]
    Elizabeth L. Hayman, Executrix, et al v. T. C. Campbell.
    Decided, February, 1903.
    
      Contract — For Personal Services — Enforcement of — Must Be Mutuality of Right.
    
    1. A contract for personal services -will not be specifically enforced.
    2. There must be a mutuality of right or there can be no specific performance.
    3. Where the contract can not be specifically enforced as a whole, it will not be enforced in part, unless the stipulations sought to be enforced clearly and distinctly appear by the contract to stand by themselves independent of and wholly unaffected by any others.
    Smith, J.; Dempsey, J., and Perris, J., concur.
    The action below was by T. C. Campbell against the heirs ■ of C. T. Hayman, to specifically enforce the following contract:
    Cincinnati, Ohio, December 15, 1900.
    “This agreement entered into this fifteenth day of December, 1900, between C. T. Hayman and T. C. • Campbell, witnesseth that,
    “Whereas, Charles T. Hayman entered into a memorandum agreement in the following words and figures, to-wit:
    Cincinnati, Ohio, November 15, 1898.
    “We, or either of us hereby agree to deed to George Campbell or his assigns all real estate deeded to Charles T. Hayman from George Campbell and Elizabeth Miller, upon payment of any and all notes bearing the signature of George Campbell; with six per cent, interest added thereto from date of said note or notes. And Charles T. Hayman is to receive ten per cent, from all rents from above mentioned property or property that may hereafter be assigned to Charles T. Hayman from same party or parties, or any party other than the above named, which George Campbell shall cause to be deeded to Charles T. I-Iaymau for collecting said rents and looking after the general interest of the property so conveyed from Goerge Campbell, Elizabeth Miller or others, as above mentioned.
    “(Signed) Charles T. Hayman.
    “Elizabeth L. Hayman.
    “George Campbell.”
    “And whereas in pursuance of the above memorandum the said C. T. Hayman has, from time to time, advanced to the said George Campbell divers sums of money, which in the aggregate with interst calculated to the 31st day of December, 1900, amount to the sum of eighteen thousand, five hundred and fifty and 67-100 dollars ($18,550.67), and
    “Whereas, the said George Campbell has deeded or caused to be deeded to the said C. T. Hayman, in accordance with the above memorandum, the following property, to-wit: Numbers 550 and 552 George street; the said property being three (3) houses erected on lots eighteen (18) feet front by something over one hundred feet deep; also number 551 L’Hommedieu street, being a house erected on a lot thirty-six (36) feet front; also three (3) houses and lots in Cleves, and one corner lot two hundred and ten (210) feet front by three hundred (300) feet deep; and the following lots in-Sekitan, numbers 12, 13, 14, 15, 19, 21, 22, 23, 24, 25, 26, 31, 32, 33, 34, 35, 36, 37, 38, 39, 40, 41, 42, 43, 44, 45, 46, 50, 52, 53, 54, 55, 56; all of the above lots being thirty (30) feet front by one hundred and twenty-five (125) feet deep, excepting lot fifteen (15) which is forty-four and forty-nine one-hundredths (44 49-100) feet front by one hundred and 'fifty (150) feet deep, together with the buildings thereon, and
    “Whereas, the equity of the said George Campbell in the aforesaid real estate having been by him sold and transferred to T. C. Campbell on the 20th day of November, 1898, now, this agreement is to witness that the said C. T. Hayman agrees to quit-deed to the said T. C. Campbell all of his right, title and interest in the real estate aforesaid, and to surrender to said T. C. Campbell all of the notes given by George Campbell to the said C. T. Hayman, aggregating as above stated, eighteen thousand, five hundred and fifty and sixty-seven hundredths dollars ($18,550.67) for the following consideration:
    “The said T. C. Campbell agrees to release the said C. T. Hayman for all claims for fees and services rendered to the said C. T. Hayman in and about the securing of a certain indebtedness of’one J. M. Murphy of New York, to the said C. T. Hayman, which services have been heretofore charged for by the said C. T. Campbell as being of the value of seventeen hundred and fifty ($1,750) dollars.
    “The said T. C. Campbell further agrees to assign to the said C. T. Hayman two hundred and ten (210) shares of stock heretofore owned in the Safety Third Rail Electric Company by George Campbell, and by the said George Campbell heretofore transferred to the said T. C. Campbell, which stock has been heretofore issued by the Safety Third Rail Electric Company to C. T. Hayman in trust for George Campbell; and also ■agrees to transfer in like manner as above, five hundred (500) shares of the Safety Third Rail Electric stock of New York, ■heretofore transferred by J. M. Murphy to C. T. Hayman for the use of the said George Campbell, and by the said George Campbell heretofore transferred by contract to T. C. Campbell ; and further to assign to the said C. T. Hayman all of the night, title and interest of George Campbell in a contract entered into in the city of New York on the 28th day of October, 1899, between Lauren Ingells, Captain J. M. Murphy, both of the •city of New York, and C. T. Hayman; whereby the said Captain Murphy agreed, for valuable consideration, to transfer and assign shares in the said Safety Third Rail Electric Company to the said Charles T. Hayman, amounting in all to one hundred and sixty-six thousand, six hundred and sixty-six and sixty-six •one hundredths ($166,666.66) dollars, face value; of which '$166,666.66 there has been issued one hundred thousand ($100.-000) dollars, one thousand (1,000) shares, of which the five hundred (500) shares above provided to be transferred to C. T. Hayman, have been issued, leaving unissued on said contract sixty-six thousand six hundred and sixty-six and 66-100 ($66,-666.66) dollars, which the said J. M. Murphy now declines to issue in accordance with the terms of the said contract.
    “T. C. Campbell hereby agrees as a part of the consideration herein moving from him to the said C. T. Hayman, to prosecute the collection of the said ($66,666.66) sixty-six thousand, six hundred and sixty-six and sixty-six hundredths dollars of stock from the said J. M. Murphy, and agrees to use all reasonable skill and diligence in the said collection for and on account of C. T. Hayman, without any charge whatever to the said C. T. Hayman other than the necessary disbursements in the prosecution of said ease, and the securing of a bond in said case.
    
      “Further, T. C. Campbell agrees to transfer to said C. T. Hayman ninety (90) shares of stock issued to him in the said Safety Third Rail Electric Company, which shares have this day been assigned and delivered to the said C. T. Hayman by fhe said'T. C. Campbell.
    “The said T. C. Campbell further agrees to cause to be assigned to the said C. T. Hayman by written memorandum or endorsement all of the right, title and interest of George Campbell in a certain certificate of indebtedness of the said Safety Third Rail Electric Company, amounting to fifteen hundred ($1,500) dollars, and which interest of George Campbell has been heretofore assigned to the said T. C. Campbell; the said certificate being for fifteen hundred ($1,500) dollars, one-half of the same belonging to George Campbell, and the other half to C. T. Hayman.
    “T. C. Campbell further agrees to assign to C. T. Hayman a certificate of indebtedness of the Safety Third Rail Electric Company heretofore issued to the said T. C. Campbell for five hundred ($500) dollars; the said certificate of five hundred ($500) dollars has this day been endorsed by said T. C. Campbell and delivered to C. T. Hayman. All of the above shares of stock, amounting in gross to eight hundred (800) shares, and the above certificates of indebtedness amounting in gross to twelve hundred and fifty ($1,250) dollars, and the services heretofore rendered by T. C. Campbell to C. T. Hayman of the agreed value of seventeen hundred and fifty ($1,750) dollars, and the services to be hereafter rendered by the said Camp- 0 bell in the collection of the residue of the stock from J. M. Murphy, to-wit, sixty-six thousand, six hundred and sixty-six and sixty-six hundredths ($66,666.66) dollars, and the further sum of one thousand dollars ($1,000) in cash as hereinafter provided, is accepted in full by the said C. T. Hayman for any and all claims of his against the said George Campbell; and C.-T. Hayman agrees that the interest heretofore held by George Campbell in the livery stable conducted at Nos. 332 and 334 West Seventh street, and the one-fourth (1-4) interest held by George Campbell in the Greensburg, Indiana, chair factory, a business which is now conducted under the name of Charles T. Hayman & Co., together with his one-half interest in a certain collection in Bridgeport, Conn., for two thousand ($2,000) dollars, may be transferred to T. C. Campbell, and the said T. C: Campbell is to hereafter have all of the right, title and interest in the said matters which have been heretofore held by George Campbell.
    “It is understood and agreed that the above cash payment of one thousand ($1,000) dollars to be made by T. C. Campbell to C. T. Hayman shall have deducted therefrom such sum as the net rents and collections in the hands of C. T. Hayman may be on the 31st day of December, 1900, which amount shall be ascertained and stated to the said T. C. Campbell on or before the 10th day of January, 1901; C. T. Hayman further agreeing that any securities which he has heretofore taken for rents not collected shall be either transferred to T. C. Campbell or accounted for by C. T. Hayman and deducted from the above payment of one thousand dollars ($1,000).
    “In testimony whereof we have hereunto set our hands this fifteenth day of December, A. D. 1900.
    “Geo. Campbell, Chas. T. Hayman,
    “J. M. Crenshaw, 'T. C. Campbell,
    “Geo. W. Edmonds.”
   The answer denied the execution of the contract by C. T. Hayman, and the hearing below related largely to the question whether the signature of C. T. Hayman appearing on the contract was his genuine signature. The court found the signature to be the genuine signature of C. T. Hayman, and entered a decree of specific performance.

* The decree ordered the conveyance of the real estate, the surrender of the notes given by George Campbell to C. T. Hay-man, aggregating eighteen thousand five hundred and fifty and sixty-seven hundredths dollars ($18,550.67); the transfer of one-fourth interest heretofore owned by George Campbell in the Greensburg, Indiana, chair factory, and the transfer of the one-half interest in a certain collection now being prosecuted against parties in Bridgeport, Connecticut.

It was also decreed that T. C. Campbell should comply with all the obligations imposed upon him by said contract and “that the said T. C. Campbell shall agree to prosecute the collection of the said sixty-six thousand six hundred and sixty-six and sixty-six hundredths dollars ($66,666.66) of stock from J. M. Murphy and to use all reasonable skill and diligence in -such collection without any charge other than the necessary disbursements in the prosecution of said cause.”

The decree then provided as follows: •

“And it further appearing that the said Thomas C. Campbell has heretofore máde written demand upon said Elizabeth L. Hayman, executrix, to be permitted to carry out the aforesaid condition upon his part under the said contract to be performed, which demand was refused by the said Elizabeth L. Hayman, executrix, it is hereby ordered, adjudged and decreed that if the said Thomas C. Campbell shall again oifer to perform all the conditions heretofore stated, and such performance of such conditions shall be refused by the said Elizabeth L. Hayman, executrix, then such offer to perform on the part of said T. C. Campbell shall have all the effect and operation as a performance upon his part.”

We have not found it necessary to examine the evidence in the case to determine whether the finding of the trial court that the signature of C. T. Hayman to the contract was his genuine signature, for the reason that we are of the opinion that the case should be reversed on the ground that the contract is not one in which specific performance can be had.

The contract between George Campbell and C. T. Hayman, which is set out in the first part of this contract, creates a trust relation between them, Hayman holding the real estate described as a mortgage to secure money to be advanced by him to. Campbell, and as T. C. Campbell succeeded to the rights of George Campbell, he would have the right upon payment of the money advanced to have the contract specifically performed, and the real estate transferred to him.

But the contract which was specifically enforced by the trial court was not the contract between George Campbell and C. T. Hayman, but another contract which was substituted in its place, and under which many new and different obligations were imposéd upon both parties, and the question before us is whether such substituted contract can be enforced.

There are two propositions in the law governing the specific performance of contracts which are so elementary that they require no citation of authorities to sustain them. These propositions are (1) That a contract for personal services will not be specifically enforced; (2) That there must be a mutuality of right to justify a specific performance.

In the case at bar the contract calls for the personal services of T. C. Campbell in the collection of the sixty-six thousand, six hundred and sixty-six and sixty-six hundredths dollars ($66,666.66) of stock from J. M. Murphy. Neither C. T. Hay-man nor his executrix and heirs could specifically enforce this obligation of the contract against T. C. Campbell and as there must be mutuality of right in order to have specific performance of a contract, T. C. Campbell can not specifically enforce any of the terms of this contract against C. T. Hayman or his executrix or heirs. Whether the rule would be any different if these personal services had already been rendered and the contract in that respect executed is a question not before us and upon which it is therefore not necessary to express an opinion.

It may be contended, however, that the contract may be specifically enforced in part, leaving the parties to work out their rights as to other parts of the contract through actions for damages.

The objection to this course lies in the fact that the contract is an entire contract and not a separate and divisible one. It is impossible to single out one or more of the obligations which the contract imposes upon T. C. Campbell and declare that upon the discharge of these obligations any particular obligation or ' obligations imposed by the contract upon C. T. Hayman shall be performed.

In Ryan v. Mutual Tontine Westminster Chambers Association, 1 Ch. Div., 1893, Lord Esher, M. R., said:

“When the court can not compel specific performance of the contract as a whole, it will not interfere to compel specific performance of part of a contract. That clearly appears to be a rule of chancery practice on the subject.”

The same principle is declared in the opinions of the other judges in that case.

John C. Uealy, Frank F. Dinsmore, for plaintiff in error.

T. G. Campbell, Byron Cien Dening, for defendant in error.

In Baldwin v. Fletcher, 48 Mich., 609, Cooley, J., applied the same principle and used this language:

“To justify any such relief (specific performance) it would be essential that the stipulations in question should clearly and distinctly appear by the contract to stand by themselves, independent of and wholly unaffected by any others; for if the contract is an entirety, it would be pretended that one party could select out .particular provisions for enforcement, while ignoring the remainder, or that he could assign to a third party the right to such partial enforcement. The party insisting upon parts of an entire contract must abide by it in its entirety. ’ ’

As the contract is not one which can be specifically enforced, the decree of the court ordering such enforcement must be reversed.  