Statement of Facts.

ALBERT ODELL, APPELLANT, v. JOSIAH MORIN ET AL.,
RESPONDENTS.

SPECIFIC PERFORMANCE.-A contract for the sale of land of which the courts
will be justified in decreeing a specific performance must be certain and
defined, and the testimony offered in support of it must be fully suffi-
cient and ample.

IDEM.-The rule that a specific performance will be refused where the contract is vitiated by uncertainty, is applied with more than ordinary stringency against assignees and representatives of the contracting parties.

APPEAL from Yamhill County.

This is a suit in equity to enjoin the further prosecution of three several actions of ejectment and to enforce the specific performance of a contract for the sale of land. The complaint alleges that in February, 1855, John Odell, the father of the plaintiff, purchased of Laban Morin a portion of his donation land claim and paid him the sum of six hundred dollars, that being the full purchase-price and value thereof. That the contract of purchase was not in writing, but it was agreed between the parties that the said Morin. should, as soon as convenient, execute to John Odell a deed for the land. That Laban Morin failed to execute said deed prior to his death, which occurred in March, 1855. That a patent to the said land was, in 1867, issued to the defendants as the heirs at law of said Laban Morin. That John Odell, in July, 1869, conveyed his right and title in the said premises to the plaintiff. The answer denies the contract of purchase and payment.

The testimony offered by the plaintiff on this point was as follows: McTeer, a son-in-law of John Odell, testified that in March, 1854, Morin and Odell stated the contract in his presence. Odell was to pay $500, and Morin was to deed the land as soon as he got a title. Odell paid the amount by giving two yoke of oxen and some money, perhaps $150. In the following fall Morin said that $500 was not enough for the land, and he wanted another yoke of oxen. Odell gave him another yoke, valued at $200, for which sum Morin gave his note.

Statement of Facts.

W. H. Odell, a son of John Odell, testified that in February or March, 1853, a contract was made between Morin and his father for the sale of the land for the sum of $600, the title to be made when Morin obtained his certificate from the land office. That he delivered two yoke of cattle in payment, valued at $300, and that his father told him the balance of the purchase-money was paid. He was not present when the contract was made, but knew that Morin gave his father a note, which witness wrote, payable at some future time. The note was to run about the length of time required to complete the title to the land, but he did not recollect the length of time. He thought this note was delivered to the widow after the death of Morin. Mrs. Sarah Odell, widow of John Odell, knew nothing except what her late husband told her-that he had bought the land for $600, which he paid before Morin died. In the fall of 1854, or the spring of 1855, her husband took the money out of the house, saying that he was going to pay for the land, and when he returned said he had paid for it. Mrs. C. R. Alderman, a daughter of John Odell, testified that just before Morin died, in the spring of 1855, a message from Morin was brought to her father requesting him to come and settle up their business concerning the land before he died. She had no knowledge of the contract except the statements of her father, and that Morin received the cattle. This is all the testimony of the plaintiff in regard to the contract of sale, if we except certain admissions of Mrs. Darr, widow of Morin, made after his death.

On the part of the defense, Mrs. Darr states the only purchase of the land was made of herself in 1856, after Morin's death, the consideration for which was $400 and the note of Morin for $200.

The court below dismissed the bill.

Boise & Willis, for Appellant.

P. C. Sullivan and E. C. Bradshaw, for Respondents.

VOL. V.--7

Opinion of the Court-Mosher, J.

By the Court, MOSHER, J.:

The requisites of a contract for the sale of land, of which the courts will be justified in decreeing a specific performance, are clearly stated by Washington, J., in the case of Colson v. Thompson (2 Wheat. 336): "The contract which is sought to be specifically executed ought not only to be proved, but the terms of it should be so precise as that neither party could reasonably misunderstand them. If the contract be vague or uncertain, or the evidence to establish it be insufficient, a court of equity will not exercise its extraordinary jurisdiction to enforce it."

In this case the evidence of the contract is of a very unsatisfactory character. For instance, McTeer says the purchase was made in the spring of 1854 and the whole of the purchase-money paid at that time, yet he says Morin claimed more money for the land in the fall, when Odell gave him another yoke of cattle, valued at $200, for which he took his note. W. H. Odell, speaking of the first payment, says his father took Morin's note for $600. From this evidence it is uncertain whether the delivery of the cattle was a positive. or conditional payment for the land. This is rendered more uncertain by the testimony that Morin, on his deathbed, sent for Odell to come and settle up the business concerning the land. The Court could not be justified in enforcing a contract the evidence of which is so indefinite and uncertain.

It is urged by the counsel for appellant that the testimony is uncertain by reason of the lapse of time. This may be true, but one who has slept upon his rights for eighteen years is not in a position to ask a court of equity to relax the rules of law in his favor. The rule that a specific performance will be refused where the contract is vitiated by uncertainty, is applied with more than ordinary stringency against assignees and representatives of the contracting parties. (Kendall v. Almy, 2 Sumn. 178; Montgomery v. Norris, 1 How., Miss. 499.)

The judgment of the Circuit Court is affirmed.

Statement of Facts.

MARY C. WHITE, RESPONDENT, v. THE NORTHWEST
STAGE COMPANY, APPELLANT.

WAIVER.--The voluntary appearance of a defendant in a cause is a waiver
of the service of summons and complaint.

DAMAGES-PROOF OF, NOT REQUIRED, WHEN.-In an action for damages arising on contract, no proof of damages is required where judgment is rendered for want of an answer.

SOUND DISCRETION CANNOT BE REVIEWED.-The granting a motion to set aside a default is in the sound discretion of the court, and unless it clearly appear that such discretion has been abused, the appellate court will not interfere.

IDEM--PRACTICE.--In such case the correct practice is for the defendant to present his answer, properly verified, when the motion to set aside is called for hearing.

APPEAL from Baker County.

This is an action for damages, brought by the plaintiff to recover the sum of four hundred and ninety-five dollars, for the failure and refusal of the defendant, as a common carrier, to convey the plaintiff from the town of Kelton, in the Territory of Utah, to Baker City, in Oregon.

Plaintiff avers that on or about the 3d day of November, 1871, she arrived at Kelton, in Utah, en route from the East to Baker City, Oregon, and that she had then and there in her lawful possession, and as the lawful owner thereof, for value, an order from the defendant to its agent at Kelton, directing him to give her passage on the stage-coaches of the defendant, from said town of Kelton to Baker City, Oregon. This order is set out in the complaint in words and figures as follows:

"MR. KINNEY,

"Agent N. W. Stage Co. at Kelton.

"DEAR SIR: You will please way-bill Miss M. E. White from Kelton to Baker City. Collect, as her fare is settled to this place.

"BAKER CITY, March 28, 1871."

"J. A. REED,

"Agent N. W. S. Co.

Plaintiff further avers that defendant refused to pass her

Statement of Facts.

upon said order from Kelton to Baker City, although said order was presented to the agent of the company at Kelton, and her passage demanded thereon; and that by reason of such failure she was annoyed, harassed and delayed on her journey among strangers, and compelled to incur great expense in getting to her destination, to her damage in the sum of four hundred and ninety-five dollars.

Defendant appeared September 23, 1872, by its attorney, F. P. Dugan, Esq., and demurred to the complaint, which demurrer was by said attorney subsequently withdrawn, and by order of the court said Dugan was allowed to withdraw his appearance as attorney for defendant, for the reason that the same was entered without his authority.,

Subsequently, on the 26th day of November, 1872, defendant entered an appearance by its attorneys, Dugan and La Dow, and demurred to the complaint, which demurrer, after argument, was overruled by the court.

On May 21, 1873, defendant, by Lawrence and Dugan as attorneys, was permitted by leave of court to file a motion to strike out portions of the complaint. The record fails to disclose any further action of counsel or the court on this motion to strike ont; but subsequently thereto, to wit, on the 23d of May, 1873, an answer was filed, signed and indorsed by Frank P. Dugan as attorney for defendant. On the day following the filing of said answer a motion was filed by plaintiff's counsel to strike out the same, for the reasons that said Dugan had never been admitted to practice as an attorney in the courts of this State; and because said answer was not properly verified, and was sham and frivolous. The motion to strike out the answer was sustained by the court on the 26th of May, 1873, and the defendant failing to apply for further time to further plead or answer, the court, on the same day, on motion of plaintiff's counsel, rendered judgment for the amount claimed by plaintiff for want of an answer.

Subsequently, on the 28th day of May, 1873, defendant appeared by J. H. Reed, Esq., of counsel, and, on motion supported by affidavit, sought to have the judgment for plaintiff set aside; and, upon the hearing thereof, the court