SHANNON v. FREEMAN

Messrs. Bonham Price and J.J. McSwain, for appellants. Mr. McSwain cites: Contract speculative and performance will not be decreed: 114 S.C. 245. Equity will not decree performance where the result would compel a breach of trust: 25 R.C.L. 244. Performance will not be decreed where contract is with two persons independently against the first to the detriment of the second: Ann. Cas. 1912 A. 362. Nor of a contract made by two of three trustees; 4 Ann. Cas. 952, 188 U.S. 646. Nor by one partner of partnership property: 37 S.E. 841. Messrs. Haynesworth Haynesworth, for respondent, cite: Where there has been an excess in the execution of a power it is void as to the excess but good within the limits of the power: 31 Cyc. 1146; 3 Wn. C.C. 12; 26 Md. 119, 90 Am. Dec. 88; 14 Mich. 215; 144 N.Y. 365, 39 N.E. 358; 14 N.Y. Sup. Ct. 123; 14 Ohio St. 260; 19 Am. Dec. 92; 1 Ch. Cas. 23; Ambl. 740; Hill on Trustees (4th Am. Ed.) 755; Tiffany Real Prop. Sec. 326; 2 Sugd. Powers (3rd Am. Ed.) 68, 106, 110. Where agreement signed by one party is received by another party who does not sign it but acquiesces in it and acts upon it, or allows the other party to act upon it, he is bound as if he had signed: 40 L.R.A. 589; 30 L.R.A. 491; 27 S.C. 376; 119 P. 646; 37 L.R.A. (N.S.) 322; 70 S.W. 390; 115 N.W. 32; 116 S.W. 431; 113 M.W. 468; 73 S.E. 618; 135 P. 678; 131 P. 176; 17 N.W. 495; 9 S.W. 138; 35 N.E. 392; 24 N.E. 756; 30 N.E. 1060; Granting of specific performance is matter of sound judicial discretion: Pom. Eq. Jur., Sec. 1404; and should be encouraged rather than discouraged: Rich. Eq. Cas. 235.