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There is another class of cases which apparently militates against the doctrine that a judgment against the principal proves nothing against the surety except rem ipsam. These are cases of official bonds. There are a number of authorities holding that a judgment against the principal in the bond is at least prima facie evidence against the surety, and of course conclusive unless some rebutting evidence is offered.

The following cases sustain this doctrine: Stevens v, Shaffer, 33 Am. Rep. 793; City of Lowell v. Parker, 10 Metc. 309, 315; S. C., 43 Am. Dec. 436; Crawford v. Wood, 7 Ga. 445; Taylor v. Johnson, 17 id. 521; Graves v. Buckley, 37 Am. Rep. 249; State v. Colrick, 3 Ohio, 487; State v. Jennings, 14 Ohio St. 73.

Some cases hold that the judgment is conclusive against the surety. Dayne v. Gilmore, 51 Me. 544; Masser v. Strickland, 17 Am. Dec. 668; Evans v. Commonwealth, 34 id. 477; Tracy v. Goodwin, 5 Allen, 409. The true ground upon which this doctrine is based was stated in the case of Stevens v. Shaffer. The court referring to the decision in the case of City of Lowell v. Parker, says:

"The reason of holding to the rule laid down by Chief Justice Shaw, in the case above cited, we think is most satisfactory, and as we understand them they are the following. *** Second, the nature of the contract in official bonds is that of a bond of indemnity to those who may suffer damages by reason of the neglect, fraud or misconduct of the officer. The bond is made with full knowledge and understanding that in many cases such damages must be ascertained and liquidated by an action against the officer for whose acts the sureties make themselves liable; and the fair construction of the contract of the sureties is, that they will pay all damages so ascertained and liquidated in | an action against their principal."

It is apparent that so far as the cases which hold that the judgment against the principal is conclusive against the sureties on official bonds are predicated upon this interpretation of the surety's contract, the cases are perfectly sound on principle, for this construction of the sureties' undertaking in effect writes into the bond a provision that the surety will be bound by the result of an action against his principal.

This same construction has been placed upon official bonds by the Supreme Court of Pennsylvania, in the leading cases in that State, in which the court enunciated the rule that a judgment was conclusive against the surety. In this case, Masser v. Strictland, supra, the court say: "There are many cases in our books relating to the question, in what cases judgment shall be binding on those not parties to it on the record and to what extent and in what respects it shall be binding, and it would require some time and not a little reflection to bring them all within any rule or rules. I shall not go into the general question or pretend to cite or reconcile all the cases. Perhaps we do not find in the books any case where the situation of the parties is precisely the same with that of sureties for officers under our acts of Assembly.

These bonds have also been compared with bonds of indemnity, to which perhaps they have a nearer resemblance. In these there is no need, except perhaps for the purpose of recovering costs and expenses of the suit against the person indemnified, to give notice. The record of a suit and judgmet against the person indemnified is evidence both of the fact of damage and the extent of it, in a suit on a bond of indemnity, whether notice was given and the party called on to defend it or not. Those who have undertaken to save a man harmless, are considered as bound to take notice of any suit against him, or perhaps as contracting to take notice, or as contracting expressly to save harmless whether they have notice or not, and as agreeing to trust

to the person indemnified the management of the defense, if suit is brought against him."

But the court was not called upon in this case of Stevens v. Shaffer to decide that judgment against the principal is evidence against the sureties. The judgment was not against the principal but was against the sheriff, and the true ground on which the decision rests and should have been placed without discussing a point not involved, is that the sureties on the bond of the deputy being as much bound as the deputy himself to indemnify the sheriff, the judgment against the sheriff was prima facie evidence against the sureties for the reason that as to the sheriff they were not sureties but indemnitors and were bound as such to save the sheriff from all loss. All the cases upon that judgment against a party indemnified is prima facie evidence against the indemnitor though he be not notified.

Now if the contract of the surety is construed to be a contract of indemnity, then there is no doubt but that he is prima facie bound by the judgment against the principal. It is apparent from the language of the court in this case, that the court did not intend to question the broad doctrine that a judgment against the principal is neither conclusive nor prima facie evidence against a surety.

This doctrine that the sureties on official bonds are bound at least prima facie by judgment against their principal has been decided by so many authorities, that it must be regarded as practically settled, and when this interpretation of the contract forms the basis of such decisions to wit: that the surety impliedly agrees to abide the result of a litigation, there can be no doubt, but that the decisions are consistent with principle.

The case therefore of sureties on official bonds belongs to the class of cases already cited, in which the surety has in express terms or by language equivalent to express agreement bound himself to abide the result of the litigation.

One reason given by Chief Justice Shaw, in the City of Lowell v. Parker, 10 Metc. 109, to sustain his position that the judgment against the principal concludes the surety, is not sound. He says that the surety should be bound because when the judgment is in favor of the principal, it is a complete bar to an action against the surety. The fallacy of this reasoning lies in the assumption that the surety's right to insist upon the judgment in favor of his principal rests upon the doctrine of res adjudicata. Such is not the case. The surety can defend, not because the judgment in favor of the principal estops the creditor but because it establishes the fact that the principal is not liable, and if he is not liable, the surety is not, as his obligation is only incidental to that of the principal debtor. That the surety's defense in such a case does not rest upon the doctrine of estoppel by judgment is apparent for the reason that if the principal debtor has some personal defense to the claim existing at the time the contract was entered into such as infancy or coverture, the fact that the debt cannot be enforced against the principal constitutes uo defense in favor of the surety, and therefore if the principal should be sued and judgment should be rendered in his favor, predicated upon such defense, there can be no question, but that the surety might afterward be sued and held liable; but he could not be if the judgment in favor of his principal and against the creditor created an estoppel in his behalf. The utter unsoundness of this reasoning of Chief Justice Shaw is clearly exposed by the language of the court in Jackson v. Griswold, 4 Hill, 522, where the court say at page 528, no doubt as the Supreme Court held at the last term in a replevin case a decision against the

debt would discharge him (the surety). That view is not on the ground that he is a party, but because the judgment or decree extinguishes the debt; and the principal thing being thus destroyed, the incident, the obligation of the surety is destroyed with it. The effect is the same as a release by the creditor or a payment by the debtor."

This theory on which is founded the binding force as to the surety of the judgment against the principal is that an estoppel by judgment must be mutual, aud that as (so Chief Justice Shaw assumes) the judgment in favor of a principal and against the creditor would conclude the creditor as against the surety, therefore when the judgment is in favor of the creditor and against the principal debtor, the surety must be concluded.

In the first place, the judgment in favor of the principal does not always bar the right of the creditor to sue and recover from the surety, as we have already seen, and in the second place, the surety can insist upon the judgment in favor of his principal, not upon the ground of res adjudicata, but upon the ground that ordinarily what discharges the liability of the principal discharges the liability of the surety.

There are a number of cases which hold that the surety on an official bond is not affected by a recovery against the principal. Lucas v. Grovenor, 6 Ala. (N. S.) 826; White v. State, I Blackf. 557; McKellar v. Bowell, 4 Hawks. 34; Grovenor v. Shelby, 2 id. 28; Lucas v. Grovenor, 6 Ala. 626; Pico v. Webster, 14 Cal. 202; S. C., 17 Am. Dec. 647; Carmichael v. Grovenor 3 How. (Miss.) 236; Beall v. Beck, 3 H. & M. 242.

It remains to examine the cases which are not like the cases already cited, but which nevertheless appear to hold that a judgment against the principal is either conclusive or prima facie evidence against the surety.

In Drummond v. Executors of Prestman, 12 Wheat. 516, the court held that in an action upon a guaranty guaranteeing the conduct of one Wm. Preston, a judg. ment confessed by him was prima facie evidence against the guarantor, but it will be observed that the guarantor in this case agreed to hold himself liable for the faithful discharge of all engagements of Wm. Preston to the person to whom the guaranty was delivered.

A confession of the judgment was certainly an engagement within meaning of this contract and it is upon the peculiar wording of the contract that the court based its decision. The court said: "The present case however is a much stronger one. It seems unique in principle; since the object of introducing the record seems not so much to prove that a judgment was not obtained as that the judgment was confessed." Moreover the court seems to have laid stress upon the fact that Wm. Preston was dead, and that his confession might be proven after his death as evidence against the surety, and that therefore his confession of the judgment was competent evidence against the guarantor.

The court suid: "Now the proof of William Preston's liability to Drummond was indispensable to Drummond's recovery against the guarantor. But this liability might have been proven by confession in writing, or even by parol after his death if not before; then why not by the more solemn act of confessing it of record?"

That the court based its decision upon the peculiar wording of the contract is further apparent from the following portion of the opinion. "It is worthy of remark in this case that the guaranty purports by its terms to be something more than a mere suretyship for debt. The words are 'I guaranty to you the conduct of my son.""

It is quite clear that the court held the judgment evidence against the surety on the principle that the

party being dead his declarations, admissions and confessions in his life-time against his interest were evidences against his surety as well as against himself.

** * *

After citing the case of Evans v. Beatie, 5 Esp. Cas. 26, where the court rejected the evidence of the principal's parol acknowledgment of the debt as against the surety on the ground that he might be sworn, the court say, "Here it will be observed that the principal was living." "In the present case the prin. cipal was dead." * * ** "In the case of Higham v. Ridgeway, 10 East, 122, the doctrine on these subjects is laid down with so much good sense as to speak its own correctness. It is to this effect, that the principle to be drawn from the cases is that if a person have a peculiar means of knowing the fact, make a declaration to that effect which is against his own interest, it is clearly evidenced after his death, if he could have been examined in his life-time."

The United States Supreme Court in this case expressly decided that the judgment was not conclusive against the sureties.

The case of Clark's Executors v. Carrington, 7 Cranch, 308, merely holds that a judgment against the person to be indemnified is evidence against his iudemuitor where the indemnitor has been notified of the suit. This is unquestionably sound, as the law is well settled that such judgment is prima facie evidence against the indemnitor even though he had no notice of the suit. But a mere surety upon a contract is under no obligation to indemnify his principal debtor against the consequences of the litigation. He is not bound to come in and defend, even though he has notice, for it is the business of the principal to defend and pay the debt against the surety. While on the other hand it is the duty of the indemnitor to save the party indemnified against loss.

The late decision of the National Supreme Court shows very clearly that that tribunal has never intended to depart from the just principle, that no man shall be concluded by a judgment without hearing.

In Hale v. Finch, 104 U. S. 261, the court says: "And it is scarcely necessary to say that the judgment is not conclusive of the rights of the present defendant, who was not a party to the action, nor notified of its pendency. He had no part or right in the case to controvert the claim of the Oregon Steam Naviga. tion Co., to control the defense, to introduce or crossexamine witnesses, or to prosecute a writ of error to the judgment."

The following decisions seem to sustain the doctrine, that in case of an ordinary contract the judgment against the principal is prima facie evidence against the surety. State v. Martin, 20 Ark. 629; Webb v. State, 4 Colo. 199; Wadsworth v. Gerhard, 55 Iowa, 369. See also Bergar v. Williams, 4 McLean, 577.

But the burden of authority is the other way, and it is difficult to see how the rule which declares that a judgment against the principal makes out a prima facie case against the surety can be reconciled with principle. We have already discussed one reason urged in support of the rule, and shown it to be fallacious.

Another reason urged is that as the surety has become responsible for the debt, or the good conduct of the principal, the judgment against the principal establishes the fact on which the surety's liability rests. But the short and decisive answer to this question is that the fact has not been established as against the surety, because he has had no right to litigate the question.

As his liability depends upon the fact that the principal is liable, he should unquestionably have a right to show that the principal is not liable. To enable him to do this, he must have his day in court; must be allowed to adduce evidence, and subject the witnesses

on the other side to the crucial test of cross-examination.

That the cases which hold that the sureties on an official bond are prima facie bound by judgment against the principal do not establish the same rule as to sureties generally, is manifest from the fact that the Pennsylvania Supreme Court, which was one of the first tribunals to enunciate this doctrine as to official sureties, has expressly held that where one become a surety for the payment of rent by another, a judgment for rent against the latter was not evidence against the surety in an action on his contract. Gillman v. Strong, 64 Penn. St. 242.

abide by the judgment against the principal or permit him to conduct the defense, and be themselves responsible for the result of it, the fact that the principal unsuccessfully defended has no effect on their rights.

"They have a right to contest with the plaintiff the question of their liability, for to hold that they are concluded from this contestation by the suit against the sheriff, is to hold that they undertook for him that they would be responsible for any judgment against him which might be rendered by accident, negligence or error, instead of merely stipulating that they would be responsible for his official conduct."

In Irwin v. Backus, 25 Cal. 223, the court say, "As a general rule sureties upon official bonds are not concluded by a decree or judgment against their principal, unless they have had their day in court or an opportunity to be heard in their defense; but administration bonds seem to form an exception to this general rule, and the sureties thereon, in respect to their liability for the default of the principal, seem to be classed with such sureties as covenant that their principal shall do a particular act. To this class belong sureties upon bail and appeal bonds, whose liability is

The following authorities decide that the judgment against the principal is evidence against the surety of nothing but the fact of the judgment itself. Pico v. Webster, 14 Cal. 202; S. C., 73 Am. Dec. 647; Douglas v. Howland, 24 Wend. 435; Mors v. McCullough, 5 Hill, 131; Jackson v. Griswold, 6 id. 522; Carmack v. Commonwealth, 5 Binn. 184; Lucas v. Governor, 6 Ala. 826; Degreiff v. Wilson, 30 N. J. Eq. 435; Fireman's Ins. Co. v. McMillan, 59 Ala. 147; State of Missouri v. Tiedeman, 3 McC. 401; S. C., 4 Myer Fed. Rep. 287. Some of these cases were cases of official bonds, and are therefore very strong authority against the judg-fixed by the judgment against the principal. This ment being evidence against the surety.

Cases have already been cited where the courts might have spelled out from the contract, an agreement to be concluded by a judgment against the principal and yet the courts have held that the judgment was no evidence whatever against the surety.

Thompson v. McGregor, 81 N. Y. 592, is to this effect. A judgment against a receiver was claimed to be conclusive against his surety, but while the questions whether or not it was prima facie evidence, was not involved, it is clear that the court had a very decided opinion on this point, and that the opinion was that it was no evidence whatever.

While the law is not in such shape on this subject as desirable, yet with almost no exception the whole trend of authority is to this effect, that to make the judg. ment against the principal evidence against the surety of any thing but the fact of the judgment, it must appear either by express language or by an implication equivalent to an explicit agreement that the surety has bound himself to submit to the issue of a litigation against the principal debtor to which he is not a party.

Wain v.

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distinction seems to be founded upon the terms of the obligation into which the sureties upon an administration bond enter, which are that their principal shall faithfully perform all the duties imposed upon him by the nature of his trust, and will account for and pay over all money which may come into his hands, pursuant to the orders and decrees of the Probate Court.

"The account must be rendered to and settled by the court, and the money must be paid out and distributed by and pursuant to the orders and decrees of the court, and the undertaking of the sureties is that their principal will do all this."

In Douglas v. Howland, which is unquestionably the leading case in this country, the court held that the decree in chancery in principle is not evidence against the guarantor unless he had notice of the suit and an opportunity given to defend in the name of the principal.

Judge Cowen's opinion contains an exhaustive review of the authorities, and his logic is unquestionable. He says: "Thirdly, it is strenuously insisted, and as I think it will appear, with great propriety, that the decree was not evidence against the defendant. Standing as it did against Bingham alone, it was certainly not evidence, proprio vigore, and if receiv

ant has made himself privy to the suit in equity by his covenant. ** **

"Come then to the surety of a debtor. Suppose the now defendant's name to have been signed to the original covenant of Bingham.

In Pico v. Webster, the court say, "There can be no doubt that where the surety undertakes for the principal, that the principal shall do a specific act, to be ascertained in a given way, as that he will pay a judg-able at all, it must be on the ground that the defendment, the judgment is conclusive against the surety, for the obligation is express that the principal shall do this thing, and the judgment is conclusive of the fact and extent of the judgment. As the surety in such case stipulates without regard to notice to him of the proceedings to obtain the judgment, his liability is of course independent of any such fact. Gold, 5 Pick. 480; Lincoln v. Blanchard, 17 Vt. 474. "It is upon this ground that the liability of bail is fixed absolutely by the judgment against the principal. But this rule rests upon the terms of the contract. In the case of officials bonds the sureties undertake, in general terms, that the principal will perform his official duties. They do not agree to be absolutely bound by any judgment obtained against him for official misconduct, nor to pay every such judgment. They are only held for a breach of their own obligations. It is a general principle that no party can be so held without an opportunity to be heard in defense. This right is not divested by the fact that another party has defended on the same cause of action and been unsuccessful.

'As the sureties did not stipulate that they would

"If he would not, standing there, have been bound by a suit and judgment against Bingham alone, with what propriety can he be held bound in a fike proceeding here? In either case what is the covenant? That Bingham should account and pay over the balance found due; not that he should on default abide any decree in chancery, or judgment at law for not accounting. With what propriety can it be said the defendant has incurred a greater liability by a separate guaranty, than he would by joining in the covenant? May he not say when the plaintiff comes with his decree, non hæc in fœdera veni? Is there any thing in the nature of the suretyship which at cominon law gives to this decree the force contended for?"

Judge Cowen then shows the reason why the civil law holds the judgment prima facie evidence against the surety, and that the reason is that the surety has a right to defend the case and to appeal.

This right of course he has not under the common law, as the learned judge says: "At common law, where the guaranty is entirely collateral as in the principal case, there is neither a right to litigate the action originally nor to appeal. Had the defendant gone into the Court of Chancery, he would have been dismissed as an intruder on objection of the complainant."

It requires but little argument to expose the unsoundness of the doctrine which declares the judgment to be any evidence against the surety whatever. Suppose A. and B. borrow a sum of money and execute their bond for the same. Subsequently A. is sued and judgment recovered against him. Then B. is sued and the judgment against A. is offered in evidence against him, B. No one would risk his reputation by claiming that the judgment was evidence of any thing but

the fact that judgment bad been rendered against A

Now suppose that B. instead of being one of the principal debtors had been a mere surety, would it not be extraordinary logic to reason, that because he had derived no benefit from the contract, the judgment would be evidence against him, when if he had been one of the principal debtors and had derived benefit from the contract, the judgment would prove nothing against him? It is said, as we have already seen, that the surety agrees that the principal will perform his contract, and that the judgment against the principal is evidence that he has not performed his contract. We have already shown the sophistry of this reasoning; but a further argument to show the unsoundness of the rule holding the surety concluded, is that the effect of a promise by each of two principal debtors is that if either fails to perform, the other will, because the creditor can collect his debt out of either obligor.

It might therefore with the same force be urged in the case of the two principal debtors, as in the case of a surety, that judgment against one was evidence against the other because it establishes the fact on which the liability of the other depends, viz.: That the one who had been sued had not performed the contract. In both cases B.'s conclusive reply would be, that A.'s default had not been established in a proceeding wherein B. had a right to litigate the question.

The tribunals which have held or said that a judgment against the principal is, unless it is "so nominated in the bond," any evidence against the surety, seem to have gone back of our revolution, back of the petition of right, and the declaration of right, back to the good old days of the Tudors, there to search among scandalous records for unjust precedents. Nay, they have "out-Tudored" the Tudors, for most of the victims of the Star Chamber, High Commission and the council of York, not only received notice but were allowed some sort of a hearing. These modern tribunals might claim judicial kinship with the mediæval inquisitors, not is it true in blood thirstiness or inhumanity, but in the utter denial to the citizen of that inestimable right, without which the administration of justice is infamous, the right to a full and impartial hearing after being subjected to the jurisdiction of the court.

GRAND FORKS, DAKOTA.

GUY C. H. CORLISS.

SPECIFIC PERFORMANCE-CERTAINTY OF
CONTRACT - CONDITIONS.;
SUPREME COURT OF ILLINOIS, SEPT. 26, 1887.

HAMILTON V. HARVEY.
Defendant, owning land at Pacific Junction, Cook county, in
order to secure the permanent location of a factory at

that place, and thereby increase the value of his property, executed the following instrument to plaintiff, a realestate agent: "Dear Sir: I hereby agree to lease my bldg. at Pacific Junction known as the 'Foster Rotary Plow Factory,' at $100 per month for the first year, or the privilege hereafter of buying, if they choose, at $10,000; or if the building should not be suitable, will donate 200 square feet along the R. R. for company to build on. Will allow you as commission for said location one-third interest in five acres located near said works." Plaintiff secured the location of a factory in the building under a lease for two years. In an action for specific performance of the agreement for commission, held, (1) that the instrument was too indefinite; (2) that it contemplated a permanent location of a factory, and not a temporary lease, and that specific performance should be refused. PPEAL from Superior Court, Cook county.

John S. Miller and B. F. Chase, for appellant.
James Frake, for appellee.

MAGRUDER, J. This is a bill filed in the Superior Court of Cook county, January 22, 1886, by the appellant against the appellee, for the specific performauce of the following instrument:

"CHICAGO, ILL., November 17, 1885. "Mr. R. W. Hamilton - DEAR SIR. I hereby agree to lease my bldg. at Pacific Junction, known as the 'Foster Rotary Plow Factory Co.,' at $100 per month for first year, or the privilege hereafter of buying, if they choose, at $10,000; or if building should not be suitable, will donate 200 square feet along the R. R. for company to build on. Will allow you as commission for said location one-third interest in five acres located near said works.

"I. R. HARVEY."

Answer was filed to the bill, and replication to the answer. The case was heard upon the pleadings, and upon proofs taken by the complainant. The defendant introduced no testimony. The court below dismissed the bill for want of equity.

The circumstances surrounding the execution of this instrument were briefly as follows: Appellee owned some land at Pacific Junction, in Cook county, and also held the equitable title to the lots upon which stood a building known as the "Foster Rotary Plow Company Factory." Appellee and other property owners were desirous of having a factory located in the vicinity, which would employ a large number of men, and thus give value to their property. Appellant a real-estate agent in Chicago, undertook to accomplish what was desired. Through his efforts, a lease dated December 18, 1885, was made by W. C. Grant, trustee, to L. C. Maxwell, C. R. Johnson, and C. H. Jackson, representing the Maxwell Patent White Lead Works, leasing the premises occupied by said building from January 1, 1886, to December 31, 1887, at $1,000 for the first year, and $1,200 for the second year.

We think that the bill was properly dismissed. The instrument here recited is too uncertain and indefinite to justify a court of equity in decreeing its specific performance. An application for the specific performance of a contract is addressed to the sound legal discretion of the court. Courts of equity will decree a specific performance where the contract is in writing, and is certain, aud is fair in all its parts, and is for an adequate consideration, and is capable of being performed, but not otherwise. Bowman v. Cunningham, 78 Ill. 48. It must be reasonably certain as to its subject-matter, its stipulations, its purposes, its parties, and the circumstances under which it is made. 3 Pom. Eq. Jur., § 1405. It is essential that the description of the subject-matter should be so definite that it

may be known with certainty what the purchaser
imagined himself to be contracting for, and that the
court may be able to ascertain what it is. Fry Spec.
Per. (3d ed.), § 327. The description of the land to be
conveyed is indefinite and uncertain. The words are,
"will allow you as commission
interest in five acres located near said works." The
* * * one-third
five acres are not described. It is not stated that they
are owned by Harvey, the vendor. Their direction
from the "works," whether north, south, east or west,
is not indicated.

In Capps v. Holt, 5 Jones Eq. 153, the description
was "a tract of land lying on the north side of the
Watery Brauch, in the county of *
of *
* *, containing 150 acres." The court said:
* # and State
"The position thus given is not definite enough, and
no decree for conveyance could be based upon it.
*** The writing of itself, clearly is too vague and
uncertain in the description of the land bargained for
to warrant us in declaring where it is, by what termini
included, and decreeing a conveyance of it.”

46

In Jordan v. Fay, 40 Me. 130, the description in the memorandum was, now occupied by Michael Micue." The court held: a lot of land joining a small tract There is in the writing no reference by which the land can be determined with any greater certainty than by the memorandum. The location, size and shape of the lot are entirely wanting in the description, and without a resort to parol evidence, it would be impossible to ascertain what land was intended to be the subject of the agreement; and it forms no ground for a specific performance.'

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In Hammer v. McEldowney, 46 Penn. St. 334, the description was "the houses on Smithfield street," city of Pittsburgh. After speaking of the alleged contract as being" without any designation of the houses, the where situate on the street mentioned, of what size, dimensions, or material, or the area of ground to be embraced, and without in fact disclosing to whom they belonged," etc., the court say: "It is a settled rule in equity that the specific performance of a contract will not be decreed unless its terms are clear, and capable of ascertainment from the instrument itself. ** * So courts of equity will not ordinarily entertain bills for the specific execution of contracts with variations or additions or new terms to be made and introduced into them by parol. * no argument or illustration to bring this imperfect or * It requires indefinite contract within these rules."

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In Carr v. Building Co., 19 N. J. Eq. 424, and 22 N. J. Eq. 85, the resolution of the company was "that two acres be sold." It was held to be upon the face vague and uncertain. The court there say: vagueness and uncertainty is patent, and no parol proof can be admitted to explain it." "The

In King v. Ruckman, 20 N. J. Eq. 316, Ruckman, by a written contract, agreed to sell King certain tracts of land in Bergen and Rockland counties, New York, "describing them as all the lands he owned and held contracts for in the township of Harrington," etc.; "and also two lots of land situated in Hackensack township, in the county of Bergen." "As to the parts in Harrington township and the The court say: county of Rockland, the description is sufficiently certain. It is all the land owned by Ruckman, or for which he held contracts,' within certain boundaries. The maxim is, id certum est quad certum reddi potest. It can be shown with certainty what lauds he owned or held contract for in these boundaries. But the last clause seems uncertain. them as two lots owned by him, for then, if he owned It does not describe only two lots there, it might be rendered certain. This contract would be complied with his conveying two lots of ten feet square, or two lots containing a thousand acres. Nor can this part be rejected as immaterial,

*

409

and performance be ordered of the residue upon compensation." Although this case was overruled in 21 N. J. Eq. 599, yet it was solely on the ground that the uncertainty was remedied by the allegations in the bill and answer. The terms in which the opinion of

316, as will be seen by reference to Nichols v. Williams, the court upon the point stated in the foregoing extract was announced, affirm the doctrine of 20 N. J. Eq. 22 N. J. Eq. 63.

46

scribed "one house and lot in the town of HillsIn Murdock v. Anderson, 4 Jones Eq. 77, a decree borough purchased of me," etc. It is there aptly said: for conveyance was refused, where the receipt deWhere a sufficient description is given, parol evidence must be resorted to in order to fit the description to the thing; but where au insufficient description is given, or where there is no description (as in one case), such evidence is inadmissible.' Chambers, 4 Ired. Eq. 125. See also Allen v.

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In Miller v. Campbell, 52 Ind. 125, the contract described certain land as "the 120 acres of land in Shannon county, Missouri," etc. opinion is well taken, and the objection is fatal to the description was void for uncertainty, and could not be It was claimed that this enforced. The court say: "This position, in our complaint. It is a well-settled principle under the statute of frauds, that contracts for the sale of land must so far describe the land as that it may be identiland, containing 120 acres, and the plaintiff may have fied without resort to parol evidence. *** Doubtless the parties may have had in view a particular tract of lar tract was intended; but this would be to subvert been able to show, by extrinsic evidence, what particuand overthrow the statute.

situated on Walden street and Vassal lane, in Cam-
In Lynes v. Hayden, 119 Mass. 482, Somerby agreed
"to deed to Lynes from 26,000 to 28,000 feet of land
long," etc.
bridge, when the bounds are fixed, and the street laid
out; the street to be forty feet wide and 200 feet
Chief Justice Gray said: "The agree-
and north-west only, and looks to the fixing of the
ment signed by the intestate described the boundaries
of the land by the adjoining streets on the north-east
bounds, and the laying out of another street before
the conveyance. The report finds that the bounds
were not fixed, nor the location of the proposed street
determined in his life-time. The agreement is too
indefinite to be specifically enforced."

Appellant claims that he had the right, under the
tion, such right afterward devolved upon him, because
contract, to select the five acres in the first place, but
that if he was not first entitled to the right of selec-
appellee refused to select five acres, and not only so,
right of selecting the five acres.
but repudiated the contract entirely. The contract
does not, in express terms, confer upon appellant the
ing Co., supra. We do not however deem it necessary
Vide Carr v. Build-
to pass upon the question whether the right of selec-
entitled to make a selection of the five acres, his de-
tion devolved upon either party under the contract.
It is sufficient to say, that even if the appellant was
scription in the agreement. He says in his testimony:
signation of the part selected by him is as uncertain
and indefinite, under the facts of this case, as the de-
"I have done nothing but make the selection in my
own mind. I have a present selection of the five acres.
It is all of block 9, and so much of block 10
as is necessary with block 9 to make five acres.'
There is nothing in the record to show how many acres
Nor is there any thing to show that appellee owns
are contained in block 9 or in block 10, or how much
of block 10 when added to block 9 will make five acres.
twenty-seven acres in section 2, township 39, range 13,
block 9. The bill avers that appellee owns about
which were subdivided into certain blocks and lots;

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