three reasons will be considered in the order just named.

First, then, what is the true interpretation of the provision of the lease relating to this subject? There is a distinct agreement that the tenant shall have the right to purchase the property "at the end of the said term" for the sum of $2,000. What is the end of said term? Is it the end of the first year, or is it the end of any succeeding year thereafter during the continuance of the lease? The lease itself must and does furnish an answer. "This agreement, with all its provisions and covenants, shall continue in force from term to term after the expiration of the term above mentioned [that is, after the term of one year, ending April 30, 1901] provided, however, that the parties hereto, or either of them, can terminate the same at the end of the term above mentioned, or of any term thereafter, by giving at least thirty days' previous notice thereof in writing." The parties themselves have in the contract itself defined the meaning of the phrase "at the end of said term," for they have declared that the agreement, with all its provisions and covenants, and therefore with the provision and covenant giving the option of purchase, shall continue in force from term to term after the expiration of the first year, though to each of the parties the right was reserved to terminate the lease at the end of the first term, or of any term thereafter. It is obvious, then, that the parties to the agreement defined each year to be a term within and subject to every provision and covenant applicable to the first year; and hence it must follow that, if the option of purchase was a provision or covenant which could have been exercised during the first year, it continued in force during every succeeding year or term, until the lease was brought to an end by the method therein prescribed. The right of the tenant to purchase the property is, as was stated by this court in Maughlin v. Perry & Warren, 35 Md. 357, "a continual obligation running with the lease on the part of the lessor, with the option in the tenant to accept the same or not within that time." Maughlin v. Perry & Warren is decisive of this branch of the case at bar. It appeared there that one Wells on March 9, 1864, rented certain property to Hynson for three years, renewable for a similar period, with covenant binding the lessor to sell and convey unto the lessee the demised premises for the sum of $1,500 at any time before the expiration of the lease of tenancy. On March 15, 1867, Wells sold the same property to Maughlin for $1,600, and the purchase money was paid. Wells died intestate before the expiration of the three years for which the lease had been renewed. All the rights of Hynson, the tenant who had the option of purchase, became vested through mesne assignments in Perry and Warren. Under these circumstances, six days before the expiration of the renewal of

the lease a bill was filed by Perry and Warren, alleging that they were ready to pay the stipulated sum of $1,500, and praying for a specific performance of the contract. Maughlin resisted, on the ground that the acceptance of the option had not been in time, since it was not made during the original term of three years, and not until six days prior to the expiration of the renewal term, and that the mere offer in the bill to pay the money was not a sufficient compliance with the contract. This court ruled against both contentions, using the language hereinbefore quoted. As Maughlin had notice of the contract which gave Hynson the option, it was held that he did not acquire any greater right than Wells possessed. In the case at bar, Smith, who purchased from the appellant, knew of the option contract before he bought, and he secured no right superior to that of the appellee.

It would seem, then, both in view of the terms of the lease and in virtue of the decision by this court of Maughlin v. Perry & Warren, that the option of purchase incorporated in the lease was a continual obligation, running with the lease on the part of the appellant, with the option in the tenant to accept the same or not during each successive term which the lease created; and therefore the option had not expired when a tender was made of the agreed purchase money, and a deed was demanded during the continuance of the lease. So much for the defenses set up in the answer.

Secondly. Do the extrinsic facts show that the appellant did not intend to give any option at all beyond the first year, and that, consequently, the insertion of the renewal and extension clause providing therefor was a mistake which ought not to be binding on the lessor? The paragraph we have quoted from the answer distinctly admits that an option of purchase was given for one year. It is a settled principle that a court of equity will not grant its affirmative remedy to compel the defendant to perform a contract which he did not intend to make, and which he would not have entered into had its true effect been understood. Somerville v. Coppage, 101 Md. 61 Atl. 318. But the evidence shows that an effort was made by the Maryland Brewing Company within the first year to close the option, and at the earnest solicitation of the appellant the matter was permitted to stand open, and the relation of landlord and tenant was allowed to continue under the lease. Though Mrs. Thomas denies this, the preponderance of testimony is against her, and it is reasonably clear that she asked the agent of the Maryland Brewing Company not to insist upon closing the option during the first year of the tenancy, without intimating that it was her understanding that the privilege to purchase lapsed at the expiration of the first term of one year. While she stated in one portion of her testimony that she said to the

person who took the lease to her for her signature, "There's one mistake; that's the two thousand dollars; I have set no price"she admits a little later on that, had the lessee taken the property "when the year was up, it would have been all right." She must, therefore, have known that the purchase price had been agreed upon at $2,000; and, as she read the lease before signing it, and had her son read it with her, she must have understood, not only that an option of purchase at a named price had been provided therein, but also that the same option continued from term to term during the period the lease remained in force. We do not find that the testimony makes out such a case of misapprehension or misunderstanding in respect to the provisions of the agreement as would justify a court of equity in refusing to grant the relief prayed for. The evidence does not bring the case within the principle applied in Somerville v. Coppage and that class of decisions.

Thirdly. The defense relied on in the argument and founded on the supposed want of mutuality in the contract cannot prevail. If a contract is lacking in mutuality, it cannot be enforced. Whenever, as a general propo sition, a contract is from any cause incapable of being enforced against one party, that party will not be permitted to enforce it against the other. Both parties must have a right to compel a specific performance at the date of the decree, or neither will have it. Dixon v. Dixon, 92 Md. 440, 48 Atl. 152. Agreements upon condition and options are within the rule, but when the condition has been performed or the option has been closed, the right of the respective parties to demand specific performance becomes mutual. Dixon v. Dixon, supra. Here the option was closed within the life of the lease. When the appellee corporation tendered itself ready to pay the money, and announced to the appellant its intention to purchase the property under the terms of the agreement, the contract ceased to be a mere option, and became a mutually binding obligation, which I could have been enforced at the instance of the appellant just as effectively as at the suit of the appellee. Before the bill was filed, and, of course, before the decree was signed, both parties to the contract had an equal right to compel a specific performance. The cases cited by the appellant's counsel are not at variance with this conclusion. Take, for illustration, the case of Geiger & Patterson v. Green, 4 Gill, 472, where the contract under which Green claimed granted him a mere "privilege of digging and moving ore" at 25 cents per ton on the farm of Charlotte Owings, but imposed no obligation on Green to do anything but to pay for each ton of ore he might dig. He did not contract to dig any particular quantity or any ore whatever, and he had entered into no obligation of any sort, and of course no decree could be passed requiring him to specifically perform some

thing which he had not undertaken to do. But an option of purchase at a specific price is a very different thing. It is a continuing offer for a definite time, which, upon acceptance within that time, becomes a definite contract, mutually binding on both parties, and hence capable of being enforced by either against the other. The case of King v. Warfield, 67 Md. 246, 9 Atl. 539, 1 Am. St. Rep. 384, is also totally dissimilar. That was a suit on a conditional contract-a contract which was to be binding only in the event that a contingency, over which a third party had exclusive control, should happen. The contingency did not happen, and consequently the incomplete contract never ripened into a perfected agreement, and hence no suit could be maintained upon it. In Duvall v. Myers, 2 Md. Ch. 401, an application was made for the specific performance of a contract for the sale of growing timber, but the contract relied on was not signed by the vendor, Duvall, or by any one for him, and when he sought to enforce it he was met with the objection that it was lacking in mutuality; and since, by reason of his not having signed it, it could not be enforced against him at the suit of the vendee, he could not compel the vendee, who had signed it, to execute it. The chancellor observed: "The paper says 'I have sold.' Who has sold? Who is the party who has contracted with the defendant? The paper does not inform us, and it may as well be any one else as Duvall. Where, then, in the agreement which he seeks to have specifically executed against the defendant is the reciprocal obligation on his part?" The case is clearly distinguishable from the one at bar. In Billingslea v. Ward, 33 Md. 48, a bill was filed by Ward for the specific enforcement of a parol contract alleged to have been made between one Green in his lifetime and Ward for the sale of land by the former to the latter. The evidence adduced by Ward consisted of declarations made by Green, and the evidence adduced by Green's executor comprised declarations made by Ward, to the effect that the contract was not final or conclusive, but left Ward the option to retain or to surrender the property of which, at the time the alleged contract was made, Ward was tenant. There was no sufficient proof of the contract, and no adequate evidence of part performance to take the case out of the statute of frauds. Tyson v. Watts, 7 Gill. 124, was quite similar to Geiger v. Green, supra. "After carefully collating these contracts," said this court in 7 Gill, 157, "we think the case at bar cannot be distinguished from the case of Geiger v. Green." No further comment is needed to show that Tyson v. Watts is inapplicable to the case before

us.

It is undoubtedly the settled doctrine of courts of equity that relief by way of specific performance is not a matter of right to be demanded ex debito justitiæ, and that to

warrant the granting of such relief the contract must be fair, certain, and mutual, it must be founded on an adequate consideration, and must be free from any suspicion as to its bona fides. All these requisites have been met. The certainty and mutuality of the agreement have been considered; there is nothing in the record to question its fairness. The consideration has been shown to be adequate and full, and there is not a suggestion of bad faith in the entire transaction. We see no reason to disturb the decree of the circuit court, and it will accordingly be affirmed.

Decree affirmed, with costs above and below.

(213 Pa. 129)

MCDERMOTT v. BENNETT.

JOHNSTON v. BENNETT. (Supreme Court of Pennsylvania. Nov. 4, 1905.)

JUDGMENT-CONFESSION-FRAUD AND COER

CION-OPENING.

Where an affidavit, on a rule to open judgment entered on a judgment note given to an attorney by his client when in serious difficulties, avers fraud and coercion, and the circumstances of the note are such as to justify judicial investigation, the judgment is properly opened.

[Ed. Note. For cases in point, see vol. 30, Cent. Dig. Judgment, §§ 109, 116, 120.]

Appeal from Court of Common Pleas, Allegheny County.

Actions by Frank P. McDermott and by Aaron E. Johnston against Laura Biggar Bennett. From orders discharging rules to open the judgments in both cases, defendant appeals. Reversed.

The petition for the rule averred as follows: "That Frank P. McDermott secured by fraud and coercion a certain judgment note of $1,500 in the month of July, 1903. The nature of such fraud and coercion will more fully be shown by revelation of all the circumstances connected with the same, to wit: On or about the month of September, A. D. 1902, in the city of Long Branch, Monmouth county, N. J., your petitioner was charged with the crimes of perjury and conspiracy by one Peter J. McNulty, an executor of the will of Henry M. Bennett; said perjury and conspiracy being charged against your petitioner because she established her wifehood to H. M. Bennett, and because she proved the death of a posthumous child as a result of said marriage. That your petitioner in the month of November, 1902, surrendered herself voluntarily into the custody of said court of Monmouth county. That about the month of December, 1902, she was indicted for said crimes by the grand jury of Monmouth county. That on representation to the general sessions court of Monmouth county, New Jersey, that she being unable to retain counsel, she being penniless, the said court assigned Messrs. Frank

P. McDermott and Aaron Johnston, both of the Monmouth county bar, to defend her. That upon being so assigned the said Johnston and McDermott immediately visited said petitioner and codefendants in the jail of Monmouth county, and told said petitioner that her interests in said trial could not be successfully guarded and that trial would not be very well prepared or conducted, except petitioner would sign an agreement wherein she promised to pay said McDermott and Johnston and one Joseph Noonan the sum of $10,000 jointly. Said agreement, which cannot be found, was based on the consideration above, and on the promises of said McDermott and Johnston to procure bail for codefendants of petitioner, who were indicted for the same crimes, and on consideration of the expenditure of necessary disbursements at trials, and of expenses of an appeal to a higher court if a conviction would result. That said agreement provided, among other things, that no part of said moneys in said agreement would be asked for until said petitioner's estate, under the will of Henry M. Bennett, was satisfactorily settled, and that at no time was she to pay said McDermott and Johnston any more than one-third of her actual income as received from said estate. That each and every condition of said agreement was and is violated by said McDermott and Johnston. Your petitioner further shows that since and before and at the times she was charged with said crimes that she was ill in body and mind, and that the conduct of said attorneys has been of such unfairness to to petitioner that she has suffered very much. That your petitioner further shows that said attorneys at the time they were assigned by said court to defend petitioner they visited her in the Monmouth county jail, and told her that owing to the prejudice entertained towards her that they could not fully defend her except she would sign the said agreement. That they spent nothing in the way of disbursements. That they discouraged publicly many offers of bail for her codefendants. That they neglected to get evidence on the demand of her codefendants that they alone could get. That they positively repudiated voluntary witnesses who offered their services in her behalf. That all the witnesses who appeared at petitioner's trial were treated with indifference by said attorneys. That all expenditures of moneys at the trial and for appeal were paid by said petitioner. That your petitioner's codefendants were convicted (your petitioner being acquitted) of said crimes, December 24, 1902. That on or about the 1st day of July, 1903, the last day on which briefs could be filed on the appeal of the codefendants to the Supreme Court of New Jersey, said attorneys notified your petitioner that except she paid the money due on said agreement or gave judgment notes of $1,500 each to them, and also a

$1,500 judgment note to lawyer Noonan, that no appeal would be filed, and that her codefendants would have to serve their sentences of two years and a half, and pay a fine of $1,000 each, and that she would, as a result, never appear before the world as innocent. That at the time this misrepresentation was made the appeal and briefs were actually on file in the Supreme Court at Trenton, N. J., as petitioner found out later on. That on this fraudulent and cruel representation your petitioner executed said judgment notes in lieu of said agreement. That before she executed said notes said attorneys made a written agreement connected with the same to the effect that no attempts would be made to collect on said notes or force the collection on same, until she were able to pay."

The court discharged the rule. Argued before MITCHELL, C. J., and FELL, BROWN, MESTREZAT, POTTER, ELKIN, and STEWART, JJ.

Charles R. Carruth, for appellant. Thomas Patterson, for appellee.

Where the statement in an action against an electric light company to recover for death of plaintiff's son charged that defendant operated two lines of wire from its main line to the cross-arms of a pole sustaining certain telephone wires, and negligently permitted the wires without proper care to be placed on the cross-arm of said pole, charging the arm with a powerful current of electricity, and the action was tried on the theory that such act was a part of the construction, it was sufficient to give notice to the defendant that the plan of the construction was brought into question.

2. PLEADING-WAIVER OF DEFECTS.

Where a certain question was treated by both parties as in issue, it was too late to question the sufficiency of the averment as to such issue after a trial on the merits.

[Ed. Note. For cases in point, see vol. 39, Cent. Dig. Pleading, §§ 1348-1351.] 3. ELECTRICITY-NEGLIGENCE.

In an action against an electric light company to recover for the death of plaintiff's son, an employé of a telephone company, held, that the evidence was sufficient to sustain a finding

that his death was caused by contact with an iron brace charged with electricity by the negligence of defendant.

Appeal from Court of Common Pleas, Westmoreland County.

Action by Elizabeth Morgan against the Westmoreland Electric Company to recover for the death of her son. Judgment for plaintiff, and defendant appeals. Affirmed.

The court charged in part as follows: "The manner of conducting the current through between the strands of the telephone company's wires and along the crossarm on which they are supported has been referred to, and you must determine, by an application of the test that we have given you, whether such construction is faulty. If faulty and defective, and by reason of that fault and defect, the plaintiff's decedent has been injured, if that has been the proximate cause of the plaintiff's injury, then there would be a right to recover. *

*

In so far as construction is concerned the Havdefendant company needs no notice. ing itself constructed it, it has all the notice that is necessary."

Defendant presented these points: "(2) Even if the jury should find that these two electric wires or either of them were defectively insulated, the defendant would not, on that account, be liable for the death of plaintiff's decedent, there being no evidence that the defendant had notice of the defective insulation, and no evidence as to the cause of the defect. Answer: We have already spoken at some length on that point in the general charge. The question referred to in this point cannot with propriety be disposed of as a question of law by the court. There is evidence respecting the manner in which the wires were carried through on the crossarms, which tends to show the mode adopted from the beginning to have been faulty in construction. With respect to such faulty construction, if it exists, no notice is necessary. With respect to the wires being in a defective state of repair, notice is necessary, but it may be constructive as well as direct. There is testimony bearing on the ordinary life of insulation and also on the length of time these wires had been in use. There is testimony tending to show that the wire had sagged from its proper position, and that the insulation was worn off at the point of contact with the carriage bolt. If the insulation was, in fact, removed by erosion, the consideration of the question of the duration of time while that process was going on is not irrelevant. There is evidence that several years before a wire on the upper crossarm, when it had become displaced, caused a lineman to receive a shock. Although that specific displacement of the other wire was at once remedied, and did not exist at the time of the accident, yet it may be considered specific notice of the danger attendIng a displacement of the wire, and an ad

monition with respect to the thoroughness with which inspection should be maintained. The high voltage of the current is also an admonition with respect to what thoroughness of inspection is due. The defendant may be held responsible for defects in the state of repair of its appliances of which it has express notice, and also for accidents arising from defects which this supervision, reasonably exercised, would have disclosed. Whether there was a long or a short period of displacement of the wire and wearing of the insulation which an ordinary diligent examiration exacted by the circumstances would have disclosed, is a question for the jury, especially when we consider the nature of the inspection which the defendant company's testimony shows was made. The question of notice seems to us to be one not to be disposed of as a question of law by the court, and the point is therefore refused.

* (6) Under all the evidence in this case, and under the pleadings, your verdict must be for the defendant. Answer: This point is refused for the reasons that are already indicated."

Verdict and judgment for plaintiff for $3,000. Defendant appealed.

Argued before MITCHELL, C. J., and FELL, BROWN, MESTREZAT, POTTER, ELKIN, and STEWART, JJ.

John B. Head, D. S. Atkinson, W. C. Peoples, and J. S. Moorhead, for appellant. Curtis H. Gregg and Sidney J. Potts, for appellee.

FELL, J. Three questions are presented by the specifications of error: (1) Did the issue raised by the pleadings include the subject of the original construction of the appellant's lines of electric light wires? (2) Was there sufficient evidence of constructive notice of defective insulation to sustain a recovery on the ground of failure to maintain the wires in a safe condition? (3) Did the evidence warrant the conclusion that defective insulation of one of the wires was the proximate cause of the accident?

It is averred in the declaration that the appellant owned, maintained, and operated two lines of wires extending from its main line to the cross-arms of a pole which sustained a number of telephone wires; that, not regarding its duty to maintain these wires in a safe condition, it "negligently and carelessly allowed and permitted said two wires without proper insulation to be placed on a cross-arm of said pole, thereby charging said arm and braces attached with a powerful current of electricity." The placing of the wire on the cross-arm was a part of the construction, and the averment gave notice to the appellant that the plan of construction was brought into question. The case was tried upon this theory. Testimony as to the construction as it existed at the time of the accident was admitted, without objection

that it did not support the declaration, and affirmative evidence was introduced by the appellant to show the plan of original construction. If there is doubt as to the sufficiency of the averment, it is too late to raise it after a trial on the merits, in which the question was treated by both parties as a part of the issue.

On the question of constructive notice, the instruction was that with respect to faulty construction notice was unnecessary since the appellant must be held to have notice of what it had designedly done; and with respect to a defective state of repair, it must be held to know that which supervision reasonably exercised would have disclosed. This instruction was correct. It was called for because there was evidence tending to show that the manner in which the electric wires were carried through a network of telephone wires was faulty, and that the wire alleged to have caused the injury had been in use a number of years and had sagged, and that its insulation had worn off.

The main contention of the appellant is that there was not sufficient evidence of any negligent act that was the proximate cause of the accident to warrant the submission of the case to the jury. It appears from the evidence that the appellant permitted for a consideration a telephone company to use one of its poles. On this pole there were 11 cross-arms, which supported 130 telephone wires. The cross-arms were 22 inches apart, and each one was supported by iron braces which extended down the pole to within a few inches of the next lower arm. The appellant's electric light wires were attached to the faces of the seventh and eighth cross-arms, and extended across the lines of telephone wires. They were held in place at the cross-arms by the use of porcelain knobs, and their insulation was by cotton covering ordinarily used for inside wiring. These wires had been in use seven years, and the covering of the wire on the seventh crossarm was worn off at its point of contact with an iron bolt which passed through a brace. It was customary for persons climbing among the wires for the purpose of inspecting or repairing them to use the braces as an aid in climbing, and as supports. The appellee's son was in the employ of the telephone company and was last seen alive when at about the fifth cross-arm. He was killed by an electric shock, and his body was found on the wires supported by this cross-arm. Evidently he had been above these wires or his body would not have fallen on them, and when above them, he would have been in close proximity to the brace of the seventh cross-arm, which was charged with electricity, and its position was such that he probably would have grasped it in climbing.

There was no direct evidence that the deceased was killed by coming into contact