Complainant alleges that he has never been compensated for his time and services, as stated, and

avers

"That he has fulfilled all of the terms of the agreement and contract with said Charles W. Smith whereby he obtained a life estate in said premises, and that he now offers for the term of his natural life to continue to fulfill and perform all the conditions of said contract and agreement."

Also that

"He cannot in the proceeding at law before the circuit court commissioner recover compensation for the improvements which he has made on the premises, worth $1,000, nor obtain in said proceedings his life estate in said premises."

The prayer for relief asks specific performance of the contract by which complainant "was granted a life lease of the premises," which are described at length, being a lot 40 by 60 with its appurtenances, known as 88 South Division and Stevens streets. An injunction restraining the proceedings at law instituted to evict his son and from commencing any other suit to recover possession of said premises is also asked.

Defendants' demurrer is in 12 separate paragraphs, setting up as many reasons why complainant's bill is insufficient. It is claimed that the contract was invalid because oral; that defendant Smith is not a proper party to this suit; that no sufficient and specific acts of performance on complainant's part are stated; that the alleged contract is indefinite, ambiguous, and uncertain, not mutual in its terms; that complainant did not constantly recognize and at all times treat the same as binding upon him, but at various times violated and disregarded the same; that he has been fully compensated for his services, and, if not, damages can be recovered by him in an action at law; that his claims are inconsistent and repugnant; that the acts

to be done and the services to be rendered by complainant, according to the allegations in the bill, were personal services to continue over an indefinite period of time, specific performance of which cannot be enforced against him, and therefore said contract is incapable of enforcement by decree in his favor for specific performance, the remedy not being mutual.

In considering the bill on demurrer, all facts clearly and distinctly stated are to be taken as true; such is not the case with conclusions nor with contradictory statements.

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The bill in its general aspects states clearly that over half a century ago, in 1866, complainant rented a large farm lying near the city of Grand Rapids from defendant Smith and took possession thereof "according to the terms" of a written lease; the only terms of the lease given are that it was for seven years at an annual rental of $100 per year. After the expiration of the written lease complainant continued in possession, as a tenant, of all or part of said "large farm" to the time of filing this bill, under oral agreements with Smith. The first oral agreement was that he "could continue upon said place," and that the terms could be made by your orator himself." The terms he made are not stated, except by inference; but "under that agreement your orator continued in possession," until 1885 when his wife died, and his children, having previously grown up, had moved away. This oral lease on his own terms, whatever it was, had been supplemented in 1875 or 1876 by an oral agreement for a new house on the place; the material being furnished by Smith and the labor by complainant, who "was to occupy the house as long as he lived." No information is given as to the size or cost of the house. Apparently considering his tenancy as optional, complainant was about to throw it up and leave after the death of his wife, when Smith called his attention to the agreement made when the house

was built, said he would not sell the property the house stood on, and expressed the hope that some of complainant's boys would live there after complainant was dead. Complainant then agreed to remain and look after the premises and the interests of Smith as long as complainant lived. After that time he paid no money rent and ceased to cultivate the land as a truck farmer, but "under the agreement with Smith your orator gave his attention to locating factories on the land of said Smith and making a long lease or sale of same for him." He also collected rent, "as much as he could," and remitted the same to said Smith "in lieu of cash rent."

At the time his wife died he had occupied this large farm, put in good condition three years after he went there, for 18 years, paying $100 a year for seven years, and on terms "made by your orator himself" for 11 years, living one-half of the time in the house now in controversy. Except for the year and five months he was in Missouri engaged in starting two of his sons in business, complainant has, so far as disclosed by the bill, occupied the house 37 or 38 years and expended on it $1,000. From the story told in the bill we fail to discover any compelling equitable considerations to necessarily turn the balance in favor of specific performance, and now consider the more strictly legal aspect of the case.

Up to 1885, according to the statements in his bill, complainant regarded the oral contracts which had been made as in their nature unilateral or optional with him, and he had concluded, after his wife died and his children were gone elsewhere, that he would go also and "get a smaller place on which to spend the rest of his days." Smith "discouraged the idea," but made no new promises touching a life lease, except to call attention to the agreement made when the house was built and inform complainant he would never sell it, whereupon it is stated complainant himself agreed with Smith he would remain and look after the premises and Smith's interest in the balance of the property as long as he lived. This is the final agreement treated by the bill as binding on both parties. By it his obligations were for personal service, "in lieu of cash rent."

The bill states complainant faithfully performed those services at all times, and also states that he went to Missouri in March, 1908, and returned in August, 1909, during which time Smith visited Grand Rapids twice, finding complainant absent and his son Bert M. Heth in possession of the property; on the second visit Smith rented the house to another, demanding possession, not of complainant, who had been absent over a year, but of the son whom Smith found in possession. The summary proceedings instituted before the commissioner a year later to obtain possession of the premises were not against complainant, but the son. At that time complainant had returned from his "only temporary" absence and "again taken possession of the premises described herein as his home." The bill fairly states that for nearly a year and one-half he was absent in another State, not in possession of the property nor rendering the personal services he had contracted to perform in lieu of cash rent. To the contrary of this the bill also avers that he has fulfilled all the terms of his agreement whereby he obtained a life estate in the premises, and "now offers for the term of his natural life to continue to fulfill and perform all of the terms and conditions of said contract and agreement," recognizing that there yet remains on his side personal services and continuous duties, running on contemporaneous with the lease.

Specific performance of these services at the instance of defendants could not be decreed. Contracts for affirmative personal service consisting of a succession of acts, the performance of which cannot be consummated in one transaction, but must continue for a time, definite or to become definite, and which involve special knowledge, skill, judgment, integrity, or other like personal qualities, the performance of which rests in the individual will and ability, and involving continuous duties which a court of equity could not well regulate, are not, as a rule, enforceable by decree for specific performance. Waterman on Spec. Perf. §§ 33-49; Pomeroy on Spec. Perf. §§ 307310.

To entitle a party to specific performance there must, in the first instance, be a valid agreement, and also at the time of the suit a mutuality of remedies as well as of obligations. Waterman on Specific Performance of Contracts, § 196; 2 Pomeroy's Equity Jurisprudence, § 769. The rule is fully recognized by this court. Buck v. Smith, 29 Mich. 166 (18 Am. Rep. 84); Blanchard v. Railroad Co., 31 Mich. 43 (18 Am. Rep. 142); Green v. Railroad Co., 158 Mich. 436 (123 N. W. 4).

While the doctrine of mutuality is firmly established in the courts of equity, it is to be recognized, as contended by counsel for complainant, that there are numerous exceptions and abundance of authority where, under the particular circumstances shown, an exceрtion is declared, but the principles under which exceерtions are recognized are not applicable to the facts made clear by complainant's bill.

In this case complainant's nonenforceable promises are not fully performed and cannot be until the close of his life; if he is granted specific performance against defendants, and then fails to perform on his part, they are remediless in a court of equity; giving relief to complainant would leave the defendants to the law court for relief, if anywhere. This is one of the tests which disposes of the so-called exceptions to the rule of mutuality, and under the conditions shown