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respect to a contract sought to be enforced, or who has himself violated its terms and obligations."
See to same effect.
Home Land, etc., vs. McNamara, 111 Fed., 822.
Lennon v. Farrell, 46 A. D., 621. Jones vs.Wittner, 79 Hun, 2S3, 285. Marble vs. Ripley, 10 Wall , 339, 357.
Specific performance will be refused to complainant where he has breached a covenant or condition of a contract, although the breach ivas not of such magnitude as to warrant a rescission on the part of the defendant.
Although we respectfully submit that the breach of a condition subsequent on the part of complainant was such as to give the Edison Company the right of rescission, still a refusal to grant a decree of specific performance is not necessarily based upon whether or not the breach was of such magnitude as to warrant the defendant in obtaining a rescission. Any substantial breach is sufficient to preclude the complainant receiving relief from a court of equity, irrespective of whether or not the same court would upon the prayer of the defendant rescind the contract so broken. That the law is such appears from the following:
In Amer. & Eng. Enc. of Law, Vol. 26, p. 71, is the following:
"Specific performance may be denied in the discretion of the court and the plaintiff remitted to his remedy at law, although the plaintiff's default would not justify a rescission of the contract." See cases cited.
A court of equity will not decree specific performance where the obligation and remedy are not mutual.
It is elementary that a court of equity will never decree specific performance where the obligation is not mutual. Tt is equally true that such court ivill not decree such performance where the remedy is not mutual. We submit, therefore, that the collateral agreement of Sep