
    DAVID COBB, and others v. ELISHA CROMWELL.
    A contract gave to the parties “ the right to determine what work is necessary to be done, for the purpose of enlarging, &e., the said canal, &c.; and he or they shall be fully empowered to do the said work or have the same done, and the said parties shall bear and pay rbe reasonable expenso and the burden of the said woik, in the following proportions, &c.: Held,
    
    1. That the parties were bound thereby, not to do the work or have it done, but to pay a ratable part of such expenses as one or more of them may incur.
    2. That, supposing the parties had undertaken to do the work, the court could not enforce a specific performance, because there is no mode of which the court can avail itself for determining what work is memory; that question being, by the contract, left to the decision of some one or more of the parties..
    Original Bill, seeking a specific performance, &c., filed to Spring Term, 1866, of the Court of Equity for Edgecombe county. At tbe same term a demurrer was filed,, and the cause set down for argument, and removed to this-court.
    The bill alleged that tbe parties are tbe owners of a canal for draining their respective lands;. and that, for the-purpose of keeping up or improving the same, they (either personally, or as represented by persons whose covenants bound them,) agreed, among other things, as follows: u4th. Any one or more of tbe said parties shall have the right to determine what work is necessary to he done, for the purpose of enlarging, deepening, cleaning out or repairing the said canal, or bridging the same where a public-road crosses it ;• and he or they shall he fully empowered to-do the said work, or have tho same done,, and the said- parties shall hear and pay the reasonable expense, and the burden of the said work, in the following proportions,” &c.
    After other statements, not necessary to he repeated, the hill contains the following: “ Your orators further show unto your Honor that the advantage, derived^ hy the defendant to his lands from the said canal, is equal to the advantage derived hy any one of your orators, and much greater-than those derived by most of them; that the said canal now requires cleaning out, and other improvements and reparations contemplated by the parties to the contracts, aforesaid, to the value of at least fourteen hundred dollars, which your orators aver are necessary, and which they are desirous to have done ; and your orators charge and aver,, that it will he very onerous upon them to do, or have done, all the necessary work upon said canal, as the outlay will be, if not beyond their means, certainly very embarrassing and inconvenient; and their remedy at law, to recover from the defendant his proportion of said outlay, will compel! them first to expend a large amount for his benefit, which they are not prepared to do ; and your orators therefore aver that such remedy at law is totally inadequate ; but if the defendant is compelled to bear his proportion of the burden assumed by the said Henry S. Lloyd, (of whom defendant was an assignee,) by performing his part of the work, then the canal can be put and kept in proper condition, to the mutual benefit of all the parties interested.”
    The prayer was for a specific performance of the above-contract, “your orators hereby offering to perform the same on their part,” and for other relief.
    
      Biggs, for tile complainants.
    
      J. L. Bridgets, for the defendant.
   Pearson, C. J.

Passing by the question, whether the defendant, as assignee, is bound by the .covenant, we are of opinion that the complainants are not entitled to a decree, on two grounds:

1. By the terms of the contract no one of the parties undertakes to do the work, or to have it done. The legal effect of the instrument is to bind the parties to pay a ratable part of the expenses- that any one or more of them may incur in doing what work may, in his or their judgment, be necessary. This is the true construction, and the court cannot.compel a party to do that which lie has not undertaken ¡'to do.

2. Suppose the parties had undertaken :to do the work, a specific .performance by a decree would -be impracticable, because there is no mode of which the court can avail itself, for ascertaining what work is necessary. Any one of the parties has the right to determine what-work is necessary, and is fully empowered to do it, or have it done. This mode of deciding the question, viz. by une or more of the parties, is the only one provided by the instrument, and as they have seen proper to adopt it, any other is excluded. This puts it out of the power of the court to direct an inquiry as to what work is necessary. The mode agreed upon by the parties contemplated that one or more of them shall, in the first instance, have the work done, and then call upon the others for contribution in money. Such are the terms of-the contract, and it is not in the power of the court to alter them, although it may be onerous to some of the parties to incur the expense of having the whole work done. Indeed, a readiness to do the work themselves, or to have it done, is the only check provided in the instrument upon the exercise of their discretion in respect to the work necessary, in order to make the canal answer the purpose for which it was intended. The court has no power to remove this check.

Again, there is a general allegation that the work necessary to be done would require an outlay of $1,400; but there is no allegation that any one or more of the parties have determined what particular-work is necessary to be done ; for instance, how much wider (the canal should be, ¡and at what places ; how much deeper, &c., &c. Such an -agreement would seem to be a necessary preliminary to raising the questions which, we have been considering.

The bill must be dismissed.

Per Curiam.

Rill dismissed.  