« ΠροηγούμενηΣυνέχεια »
There is another class of cases which apparently to the person indemnified the management of the defense, militates against the dootrine that a judgment against if suit is brought against him." the principal proves nothing against the surety except But the court was not called upon in this case of rem ipsam. These are cases of official bonds. There
Steven8 v. Shaffer to decide that judgment against the are a number of authorities holding that a judgment principal is evidence against the Bureties. The judgagainst the principal in the bond is at least prima faciement was not against the principal but was against the evidence against the surety, and of course conclusive sheriff, and the true ground on which the decision unless some rebutting evidence is offered.
rests and should have been placed without discussing The following cases sustain this doctrine: Stevens a point not involved, is that the sureties on the bond V, Shaffer, 33 Am. Rep. 793; City of Lowell v. Parker, 10 of the deputy being as much bound as the deputy Metc. 309, 315; S. C., 43 Am. Dec. 436; Crawford v. himself to indemnify the sheriff, the judgment against Wood, 7 Ga. 445; Taylor v. Johnson, 17 id. 521; Graves the sheriff was prima facie evidence against the sureties V. Buckley, 37 Am. Rep. 249; State v. Colrick, 3 Ohio, for the reason that as to the sheriff they were not 487; State y. Jennings, 14 Ohio St. 73.
Bureties but indemnitors and were bound as such to Some cases hold that the judgment is conclusive save the sheriff from all loss. All the cases upon that against the surety. Dayne v. Gilmore, 51 Me. 544; | judgment against a party indemnified is prima facie Masser v. Strickland, 17 Am. Dec. 668; Evans v. Com- evidence against the indemnitor though he be not monwealth, 34 id. 477; Tracy v. Goodwin, 5 Allen, 409. notified.
The true ground upon which this doctrine is based Now if the contract of the surety is construed to be was stated in the case of Stevens v. Shaffer. The court a contract of indemnity, then there is no doubt but referring to the decision in the case of City of Lowell that he is prima facie bound by the judgment against v. Parker, says:
the principal. It is apparent from the lavguage of the “The reason of holding to the rule laid down by court in this case, that the court did not intend to Chief Justice Shaw, in the case abuve cited, we think question the broad doctrine that a judgment against is most satisfactory, and as we understand them they the principal is neither conclusive nor prima facie eviare the following. * * Second, the nature of the dence against a surety. contract in official bonds is that of a bond of indemnity This doctrine that the sureties on official bonds are to those who may suffer damages by reason of the bound at least prima facie by judgment against their neglect, fraud or misconduct of the officer. The bond principal has been decided by so many authorities, is made with full knowledge and understanding th that it must be regarded as practically settled, and in many cases such damages must be ascertained and when this interpretation of the contract forms the liquidated by an action against the officer for whose basis of such decisions to wit: that the surety impliedly acts the gureties make themselves liable; and the fair agrees to abide the result of a litigation, there can be no construction of the contract of the sureties is, that they doubt, but that the decisions are consistent with prinwill pay all damages so ascertained and liquidated in ciple. an action against their principal.”
The case therefore of sureties on official bonds beIt is apparent that so far as the cases which hold longs to the class of cases already cited, in which the that the judgment against the principal is conclusive burety has in express terms or by language equivalent against the sureties on official bonds are predicated to express agreement bound himself to abide the reupon this interpretation of the surety's coutract, the sult of the litigation. cases are perfectly sound on principle, for this con- One reason given by Chief Justice Shaw, in the City struction of the sureties' undertaking in effect writes of Lowell v. Parker, 10 Metc. 109, to sustain his pointo the bond a provision that the surety will be sition that the judgment against the principal con: bound by the result of an action against his principal. cludes the burety, is not sound. He says that the
This same constructiou has been placed upon official surety should be bound because when the judgment is bonds by the Supreme Court of Pennsylvania, in the in favor of the principal, it is a complete bar to an leading cases in that State, in which the court enunci. action against the surety. The fallacy of this reasonated the rule that a judgment was conclusive against ing lies in the assumption that the surety's right to the surety. In this case, Masser v. Strictland, supra, insist upon the judgment in favor of his principal the court say: “There are many cases in our books rests upon the doctrine of res adjudicata. Such is not relating to the question, in what cases judgment shall the case. The surety can defend, not because the be binding on those not parties to it on the record and judgment in favor of the principal estops the creditor to what extent and in what respects it shall be bind- but because it establishes the fact that the principal is ing, and it would require some time and not a little not liable, and if he is not liable, the surety is not, as reflection to bring them all within any rule or rules. his obligation is only incidental to that of the princiI shall not go into the general question or pretend to pal debtor. That the surety's defense in such a case cite or reconcile all the cases. Perhaps we do not find does not rest upon the doctrine of estoppel by judgin the books any case where the sitnation of the par- ment is apparent for the reason that if the principal ties is precisely the same with that of sureties for debtor has some personal defense to the claim existofficers under our acts of Assembly.
ing at the time the contract was entered into such as These bonds have also been compared with bonds of infancy or coverture, the fact that the debt cannot indemnity, to which perhaps they have a nearer re- be enforced against the principal constitutes no de. semblance. In these there is no need, except perhaps fense in favor of the surety, and therefore if the prinfor the purpose of recovering costs and expenses of cipal should be sued and judgment should be rendered the suit against the person indemnified, to give notice. in his favor, predicated upon such defense, there can The record of a suit and judgmet against the person be no question, but that the surety might afterward indemnified is evidence both of the fact of damage and be sued and held liable; but he could not be if the the extent of it, in a suit on a bond of indemnity, judgment in favor of his principal and against the whether notice was given and the party called on to creditor created an estoppel in his behalf. The utter defend it or not. Those who have undertaken to save a unsoundness of this reasoning of Chief Justice Shaw man harmless, are considered as bound to take notice of is clearly exposed by the language of the court in any suit against him, or perhaps as contracting to take Jackson v. Griswold, 4 Hill, 522, where the court say notice, or as contracting expressly to save harmless at page 528, “no doubt as the Supreme Court held at whether they have notice or not, and as agreeing to trust the last term in a replevin case a decisiou against the debt would discharge him (the surety). That view is party being dead his declarations, admissions and connot on the ground that he is a party, but because the fessions in his life-time against his interest were evijudgment or decree extinguishes the debt; and the prin- dences against his surety as well as against himself. cipal thing being thus destroyed, the incident, the obliga- After citing the case of Evans v. Beatie, 5 Esp. Cas. tion of the surety is destroyed with it. The effect is the 26, where the court rejected the evidence of the prinsame as a release by the creditor or a payment by the cipal's parol acknowledgment of the debt as against debtor."
the surety on the ground that he might be sworu, the This theory on which is founded the binding force court say,
“Here it will be observed that the principal as to tho surety of the judgment against the principal was living." * “In the present case the priu. is that an estoppel by judgment must be mutual, aud cipal was dead." that as (80 Chief Justice Shaw assumes) the judgment “ In the case of Higham v. Ridgeway, 10 East, 122, in favor of a principal and against the creditor would the doctrine on these subjects is laid down with so conclude the creditor as against the surety, therefore much good sense as to speak its own correctness. It when the judgment is in favor of the creditor and is to this effect, that the principle to be drawn from against the principal debtor, the surety must i be con- the cases is that if a person have a peculiar means of cluded.
knowing the fact, make a declaration to that effect In the first place, the judgment in favor of the prin- which is against his own interest, it is clearly evicipal does not always bar the right of the creditor to denced after his death, if he could have been examined sue and recover from the surety, as we have already in his life-time." seen, and in the second place, the surety cau insist The United States Supreme Court in this case exupon the judgment in favor of his principal, not upon pressly decided that the judgment was not conclusive the ground of res adjudicata, but upon the ground that against the sureties. ordinarily what discharges the liability of the princi- The case of Clark's Executors v. Carrington, 7 Cranch, pal discharges the liability of the surety.
308, merely holds that a judgment against the person There are a number of cases which hold that the to be indemnified is evidence against his iudemuitor Burety on an official bond is not affected by a recovery where the indemnitor has been notified of the suit. against the principal. Lucas v. Grovenor, 6 Ala. (N. This is unquestionably sound, as the law is well settled S.) 826; White v. State, I Blackf. 557; McKellar v. that such judgment is prima faeie evidence against the Bowell, 4 Hawks. 34; Grovenor v. Shelby, 2 id. 28; indemnitor even though he had no notice of the suit. Lucas v. Grovenor, 6 Ala. 626; Pico v. Webster, 14 Cal. But a mere surety upon a contract is under no obliga202; S. C., 17 Am. Dec. 647; Carmichael v. Grovenor tion to indemnify his principal debtor against the con3 How. (Miss.) 236; Beall v. Beck, 3 H. & M. 242. sequences of the litigation. He is not bound to come
It remains to examine the cases which are not like in and defend, even though he has notice, for it is the the cases already cited, but which nevertheless appear business of the principal to defend and pay the debt to hold that a judgment against the principal is either against the surety. While on the other hand it is the conclusive or prima facie evidence against the surety. | duty of the indemnitor to save the party iudemnified
In Drummond v. Executors of Prestman, 12 Wheat. against loss. 516, the court held that in an action upon a guaranty The late decision of the National Supreme Court guaranteeing the conduct of one Wm. Preston, a judg- shows very clearly that that tribunal has never inment confessed by him was prima facie evidence tended to depart from the just principle, that no mau against the guarantor, but it will be observed that the shall be concluded by a judgmeut without hearing. guarantor in this case agreed to hold himself liable In Hale v. Finch, 104 U. S. 261, the court says: for the faithful discharge of all engagements of Wm. “And it is scarcely necessary to say that the judg. Preston to the person to whom the guaranty was ment is not conclusive of the rights of the present dedelivered.
fendant, who was not a party to the action, noruotified A confession of the judgment was certainly an of its peudency. He had po part or right in the case engagement within meaning of this contract and it to controvert the claim of the Oregou Steam Naviga. is upon the peculiar wording of the contract that the tion Co., to coutrol the defense, to introduce or crosscourt based its decision. The court said: “The examine witnesses, or to prosecute a writ of error to present case however is a much stronger one. It seems the judgment." unique in principle ; since the object of introducing The following decisions seem to sustain the docthe record seems not so much to prove that a judg-trine, that in case of an ordinary contract the judgment was not obtained as that the judgment was con- ment against the priucipal is prima facie evidence fessed.” Moreover the court seems to have laid stress against the surety. State v. Martin, 20 Ark. 629; Febb upon the fact that Wm. Preston was dead, and tbat his v. State, 4 Colo. 199; Wadsworth v. Gerhard, 55 Iowa, confession might be proven after his death as evidence 369. See also Bergar v. Williams, 4 McLean, 577. against the surety, and that therefore his confession But the burden of authority is the other way, and of the judgment was competent evidence against the it is difficult to see how the rule which declares that a guarantor.
judgment against the principal makes out a prima facie The court suid : “Now the proof of William Preston's case against the surety can be reconciled with principle. liability to Drummond was indispensable to Drum- We have already discussed one reason urged in supmond's recovery against the guarantor. But this port of the rule, and shown it to be fallacious. liability might have been proven by confession in Another reason urged is that as the surety has bewriting, or even by parol after his death if not before; come responsible for the debt, or the good conduct of then why not by the more solemn act of confessing it the principal, the judgment against the principal of record ?"
establishes the fact on which the surety's liability That the court based its decision upon the peculiar rests. But the short and decisive answer to this queswording of the contract is further apparent from the tion is that the fact has not been established as against following portion of the opinion. “ It is worthy of re- the surety, because he has had no right to litigate the mark in this case that the guaranty purports by its question. terms to be something more than a mere suretyship A.s his liability depends upon the fact that the prinfor debt. The words are ‘I guaranty to you the con- cipal is liable, he should unquestionably have a right duct of my son.'”
to show that the principal is not liable. To enable him It is quite clear that the court held the judgment to do this, he must have his day in court; must be evidence against the surety on the principle that the allowed to adduce evidence, and subject the witnesses on the other side to the crucial test of cross-examina- abide by the judgment against the principal or permit tion.
him to conduct the defense, and be themselves reThat the cases which hold that the Bureties on an sponsible for the result of it, the fact that the princiofficial bond are prima facie bound by judgment pal uusuccessfully defended has no effect on their against the principal do not establish the same rule as rights. to sureties generally, is manifest from the fact that “They have a right to contest with the plaintiff the the Pennsylvania Supreme Court, which was one of question of their liability, for to hold that they are the first tribunals to enunciate this doctrine as to concluded from this contestation by the suit against official sureties, has expressly held that where one be- the sheriff, is to hold that they undertook for him that come a surety for the payment of rent by another, a they would be responsible for any judgment against judgment for rent against the latter was not evidence him which might be rendered by accident, negligence against the surety ip au action on his contract. Gill- or error, instead of merely stipulating that they would man v. Strong, 64 Penn. St. 242.
be responsible for his official conduct." The following authorities decide that the judgment In Irwin v. Backus, 25 Cal. 223, the court say, “As against the principal is evidence against the surety of a general rule sureties upon official bonds are not cop. nothing but the fact of the judgment itself. Pico v. cluded by a decree or judgment against their princiWebster, 14 Cal. 202; S. C., 73 Am. Deo. 647; Douglas pal, unless they have had their day in court or an v. Howland, 24 Wend. 435; Mors v. McCullough, 5 opportunity to be heard in their defense; but adminiHill, 131; Jackson v. Griswold, 6 id. 522; Carmack v. stration bonds seem to form an exception to this Commonwealth, 5 Binn. 184; Lucas v. Governor, 6 Ala. general rule, and the sureties thereon, in respect to 826; Degreiff v. Wilson, 30 N. J. Eq. 435; Fireman's their liability for the default of the principal, seem to Ins. Co. v. McMillan, 59 Ala. 147 ; State of Missouri v. be classed with such sureties as covenant that their Tiedeman, 3 MoC. 401; S. C., 4 Myer Fed. Rep. 287. principal shall do a particular act. To this class belong
Some of these cases were cases of official bonds, and sureties upon bail and appeal bonds, whose liability is are therefore very strong authority against the judg. fixed by the judgment against the principal. This ment being evidence against the surety.
distinction seems to be founded upon the terms of the Cases have already been cited where the courts obligation into which the sureties upon an administramight have spelled out from the contract, an agreement tion bond enter, which are that their principal shall to be concluded by a judgment against the principal faithfully perform all the duties imposed upon him and yet the courts have held that the judgment was by the nature of his trust, and will account for and no evidence whatever against the surety.
pay over all money which may come into his hands, Thompson v. McGregor, 81 N. Y. 592, is to this effect. pursuant to the orders and decrees of the Probate A judgment against a receiver was claimed to be con- Court. clusive against his surety, but while the questions “The account must be rendered to and settled by the whether or not.it was prima facie evidence, was not court, and the money must be paid out and distribinvolved, it is clear that the court had a very decided uted by and pursuant to the orders and decrees of opinion on this point, and that the opinion was that the court, and the undertaking of the sureties is that it was no evidence whatever.
their principal will do all this." While the law is not in such shape on this subject In Douglas v. Howland, which is unquestionably the as desirable, yet with almost no exception the whole leading case in this country, the court held that the trend of authority is to this effect, that to make the judg. decree in chancery in principle is not evidence against ment against the principal evidence against the surety the guarantor unless he had notice of the suit and an of any thing but the fact of the judgment, it must ap- opportunity given to defend in the name of the priupear either by express language or by an implication cipal. equivalent to an explicit agreement that the surety Judge Cowen's opinion contains an exhaustive rehas bound himself to submit to the issue of a litiga- view of the authorities, and his logic is unquestiontion against the principal debtor to which he is not a able. He says: “Thirdly, it is strenuously insisted, party.
and as I think it will appear, with great propriety, In Pico v. Webster, the court say, “There can be no that the decree was not evidence against the defenddoubt that where the surety undertakes for the prin- ant. Standing as it did against Bingham alone, it was cipal, that the principal shall do a specific act, to be certainly not evidence, proprio vigore, and if receivascertained 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, ant has made himself privy to the suit in equity by for the obligation is express that the principal shall his covenant. do this thing, and the judgment is conclusive of the “Come then to the surety of a debtor. Suppose the fact and extent of the judgment. As the surety in now defendant's name to have been signed to the such case stipulates without regard to notice to him original covenant of Bingham. of the proceedings to obtain the judgment, his liability “ If he would not, standing there, have been bound is of course independent of any such fact. Wain v. by a syit and judgment against Bingham alone, with Gold, 5 Pick. 480; Lincoln v. Blanchard, 17 Vt. 474. what propriety can he be held bouwd in a like pro
“ It is upon this ground that the liability of bail is ceeding here? In either case what is the covenant? fixed absolutely by the judgment against the princi- That Bingham should account and pay over the pal. But this rule rests upon the terms of the con- balance found due; not that he should on default abide tract. In the case of officials bonds the sureties under any decree in chancery, or judgment at law for not actake, in general terms, that the principal will perform counting. With wbat propriety can it be said the dehis official duties. They do not agree to be absolutely fendant has incurred a greater liability by a separate bound by any judgment obtained against him for guaranty, than he would by joining in the covenant? official misconduct, nor to pay every such judgment. May be not say when the plaintiff comes with his deThey are only held for a breach of their own obliga-cree, non hæc in fædera veni? Is there any thing in tions. It is a general principle that no party can be so the vature of the suretyship which at cominon law held without an opportunity to be heard in defense. gives to this decree the force contended for?" This right is not divested by the fact that another Judge Cowen then shows the reason why the civil party has defended on the same cause of action and law holds the judgment prima facie evidence against been unsuccessful.
the surety, and that the reason is that the surety has As the sureties did not stipulate that they would a right to defend the case and to appeal.
This right of course he has not under the common that place, and thereby increase the value of his property, law, as the learned judge says: “At common law, executed the following instrument to plaintiff, a realwhere the guaranty is entirely collateral as in the estate agent: “Dear Sir: I hereby agree to lease my principal case, there is neither a right to litigate the bldg. at Pacific Junction known as the 'Foster Rotary action originally nor to appeal. Had the defendant Plow Factory,' at $100 per month for the first year, or the gone into the Court of Chancery, he would have been privilege hereafter of buying, if they choose, at $10,000 ; dismissed as an intruder ou objection of the com- or if the building should not be suitable, will donate 200 plainant."
square feet along the R. R. for company to build on. It requires but little argument to expose the un- Will allow you as commission for said location one-third soundness of the doctrine which declares the judg
interest in five acres located near said works." Plaintifr ment to be any evidence against the surety whatever.
secured the location of a factory in the building under a Suppose A. and B. borrow a sum of money and execute
lease forftwo years. In an action for specific performance their boud for the same. Subsequently A. is sued and
of the agreement for commission, held, (1) that the instrujudgment recovered against him. Then B. is sued and
ment was too indefinite; (2) that it contemplated a perthe judgment against A. is offered in evidence against
manent location of a factory, and not a temporary lease, him, B. No one would risk his reputation by claim.
and that specific performance should be refused. ing that the judgment was evidence of any thing but the fact that judgment had been rendered against A. APPEAL from Superior Court, Cook county.
Now suppose that B. instead of being one of the principal debtors had been a mere surety, would it
John S. Miller and B. F. Chase, for appellant. not be extraordinary logic to reason, that because he James Frake, for appellee. bad derived no benefit from the contract, the judg
MAGRUDER, J. This is a bill filed in the Superior mont would be evidence against him, when if he had been one of the principal debtors and had derived
Court of Cook county, January 22, 1886, by the appel
lant against the appellee, for the specific performance benefit from the contract, the judgment would prove
of the following instrument: nothing against him? It is said, as we have already seen, that the surety agrees that the principal will
“CHICAGO, ILL., November 17, 1885. perform his contract, and that the judgment against " Mr. R. W. Hamilton - DEAR SIR. I hereby agree the principal is evidence that he has not performed to lease my bldg. at Pacific Junction, kuown as the his contract. We have already shown the sophistry “Foster Rotary Plow Factory Co.,' at $100 per month of this reasoning; but a further argument to show the for first year, or the privilege hereafter of buying, if unsoundness of the rule holding the surety concluded, they choose, at $10,000; or if building should not be is that the effect of a promise by each of two principal suitable, will donate 200 square feet along the R. R. debtors is that if either fails to perform, the other for company to build on. Will allow you as commiswill, because the creditor can collect his debt out of sion for said location one-third interest in five acres either obligor.
located near said works. It might therefore with the same force be urged in
“I. R. HARVEY." the case of the two principal debtors, as in the case of Answer was filed to the bill, and replication to the a surety, that judgment against one was evidence
The case was heard upon the pleadings, and against the other because it establishes the fact on upon proofs taken by the complainant. The defendwhich the liability of the other depends, viz. : That ant introduced no testimony. The court below disthe one who had been sued had not performed the missed the bill for want of equity. contract. In both cases B.'s conclusive reply would The circumstances surrounding the execution of this be, that A.'s default had not been established in a instrument were briefly as follows: Appellee owned proceeding wherein B. had a right to litigate the ques- some land at Pacific Junction, in Cook county, and tion.
also held the equitable title to the lots upon which The tribunals which have held or said that a judg- stood a building known as the “Foster Rotary Plow ment against the principal is, unless it is “so nomina- | Company Factory." Appellee and other property ted in the bond," any evidence against the surety, owners were desirous of having a factory located in seem to haye gone back of our revolution, back of the the vicinity, which would employ a large number of petition of right, and the declaration of right, back to meu, and thus give value to their property. Appelthe good old days of the Tudors, there to search among lant a real-estate agent in Chicago, undertook to acscandalous records for unjust precedents. Nay, they complish what was desired. Through his efforts, a have “out-Tudored” the Tudors, for most of the lease dated December 18, 1885, was made by W. C. victims of the Star Chamber, High Commission and Grant, trustee, to L. C. Maxwell, C. R. Johnson, and the council of York, not only received notice but C. H. Jackson, representing the Maxwell Patent White were allowed some sort of a hearing. These modern Lead Works, leasing the premises occupied by said tribunals might claim judicial kinship with the building from January 1, 1886, to December 31, 1887, mediæval inquisitors, not is it true in blood thirsti- at $1,000 for the first year, and $1,200 for the second ness or inhumanity, but in the utter denial to the citi- year. zen of that inestimable right, without which the We think that the bill was properly dismissed. The administration of justice is infamous, the right to a instrument here recited is too uncertain and indefinite full and impartial hearing after being subjected to the to justify a court of equity in decreeing its specifio jurisdiction of the court.
performance. An application for the specific performGUY C. H. CORLISS.
ance of a contract is addressed to the sound legal disGRAND FORKS, DAKOTA.
cretion of the court. Courts of equity will decree a
specific performance where the contract is in writing, SPECIFIC PERFORMANCE-CERTAINTY OF and is certain, and is fair in all its parts, and is for an CONTRACT — CONDITIONS.;
adequate consideration, and is capable of being per
formed, but not otherwise. Bowman v. Cunningham, SUPREME COURT OF ILLINOIS, SEPT. 26, 1887.
78 III. 48. It must be reasonably certain as to its
subject-matter, its stipulations, its purposes, its parHAMILTON V. HARVEY.
ties, and the circumstances under which it is made. 3 Defendant, owning land at Pacific Junction, Cook county, in Pom. Eq. Jur., S 1405. It is essential that the descrip
order to secure the permanent location of a factory at tion of the subject-matter should be so definite that it
may be known with certainty what the purchaser and performance be ordered of the residue opon comimagined himself to be contracting for, and that the pensation." Although this case was overruled in 21 court may be able to ascertain what it is. Fry Spec. N. J. Eq. 599, yet it was solely on the ground that the Per. (3d ed.), S 327. The description of the land to be uncertainty was remedied by the allegations in the conveyed is indefinite and uncertain. The words are, bill and answer. The terms in which the opinion of “ will allow you as commission * * one-third the court upon the point stated in the foregoing extract interest in five acres located near said works." The was announced, affirm the doctrine of 20 N. J. Eq. five acres are not described. It is not stated that they | 316, as will be seen by reference to Nichols v. Williams, are owned by Harvey, the vendor. Their direction 22 N. J. Eq. 63. from the “works," whether worth, south, east or west, In Murdock v. Anderson, 4 Jones Eq. 77, a decree is not indicated.
for conveyance was refused, where the receipt deIn Capps v. Holt, 5 Jones Eq. 153, the description scribed “one house and lot in the town of Hills
a tract of land lying on the north side of the borough purchased of me,” etc. It is there aptly said: Watery Brauch, in the county of * and State “Where a sufficient description is given, parol eviof * * *, contaiving 150 acres.” The court said: dence must be resorted to in order to fit the description “The position thus given is not definite enough, and to the thing; but where au insufficient description is no decree for conveyance could be based upon it. given, or where there is no description (as in one case),
* The writing of itself, clearly is too vague and such evidence is inadmissible.” See also Allen v. uncertain in the descripti of the land bargained for Chambers, 4 Ired. Eq. 125. to warrant us in declaring where it is, by what termini In Miller v. Campbell, 52 Iud. 125, the contract dejucluded, and decreeing a conveyance of it.”
scribed certain land as "the 120 acres of land in ShaniIn Jordan v. Fay, 40 Me. 130, the description in the non county, Missouri,” etc. It was claimed that this memorandum was, “a lot of land joining a small tract description was void for uucertainty, and could not be now occupied by Michael Micue.” The court held: enforced. The court say: “ This position, in our “There is in the writing no reference by which the opinion is well taken, and the objection is fatal to the land can be determined with any greater certainty complaint. It is a well-settled principle under the than by the memorandum. The location, size and statute of frauds, that contracts for the sale of land shape of the lot are entirely wanting in the description, must so far describe the land as that it may be identiand without a resort to parol evidence, it would be im- fied without resort to parol evidence. * * * Doubtless possible to ascertain what land was ir:tended to be the the parties may have had in view a particular tract of subject of the agreement; and it forms no ground for land, containing 120 acres, and the plaiutiff may have a specific performance.”
been able to show, by extrinsic evidence, what particuIn Hammer v. McEldowney, 46 Penn). St. 334, the de- lar tract was intended; but this would be to subvert scription was “the houses on Smithfield street,” the and overthrow the statute." city of Pittsburgh. After speaking of the alleged con- In Lynes v. Hayden, 119 Mass. 482, Somerby agreed tract as being “ without any designation of the houses, to deed to Lynes from 26,000 to 28,000 feet of land where situate on the street mentioned, of what size, situated on Walden street and Vassal lane, in Camdimensions, or material, or the area of ground to be bridge, when the bounds are fixed, and the street laid embraced, and without in fact disclosing to whom out; the street to be forty feet wide aud 200 feet they belonged,” etc., the court say: “It is a settled long,” etc. Chief Justice Gray said: “The agreerule in equity that the specific performance of a con- ment signed by the intestato described the boundaries tract will not be decreed unless its terms are clear, and of the land by the adjoining streets on the north-east capable of ascertainment from the instrument itself. and north-west only, and looks to the fixing of the
* So courts of equity will not ordinarily enter- bounds, and the laying out of another street before tain bills for the specific execution of contracts with the conveyance. The report finds that the bounds variations or additions or new terms to be made and were not fixed, nor the location of the proposed street introduced into them by parol. * It requires determined in his life-time. The agreement is too no argument or illustration to bring this imperfect or mudefinite to be specifically enforced." indefinite contract within these rules."
Appellant claims that he had the right, under the In Carr v. Building Co., 19 N. J. Eq. 424, and 22 N. contract, to select the five acres in the first place, but J. Eq. 85, the resolution of the company was
that if he was not first entitled to the right of selectwo acres be sold.” It was held to be upon the face tion, such right afterward devolved upon him, because vague and uncertain. The court there say: “ The appellee refused to select five acres, and not only so, vagueness and uncertainty is patent, and no parol but repudiated the contract entirely. Tbe contract proof can be admitted to explain it."
does not, in express terms, confer upon appellaut the In King y. Ruckman, 20 N. J. Eq. 316, Ruckman, by right of selecting the five acres. Vide Carr v. Builda written contract, agreed to sell King certain tracts ing Co., supra.
We do not however deem it necessary of land in Bergen and Rocklaud counties, New York, to pass upon the question whether the right of selec“describing them as all the lands he owned and held tion devolved upon either party under the contract. contracts for in the township of Harrington, etc.; It is sufficient to say, that even if the appellant was “and also two lots of land situated in Hackensack entitled to make a selection of the five acres, his detownship, in the county of Bergen." The court say: signation of the part selected by him is as uncertain “As to the parts in Harrington townsbip and the and indefinite, under the facts of this case, as the decounty of Rockland, the description is sufficiently scription in the agreement. He says iu his testimony: certain. It is all the land owned by Ruckman, or for "I have done nothing but make the selection in my which he held contracts,' within certain boundaries. own mind. I have a present selection of the five acres. The maxim is, id certum est quod certum reddi potest.
It is all of block 9, and so much of block 10 It can be shown with certainty what lands be owned as is necessary with block 9 to make five acres.” or held contract for in these boundaries. But the last There is nothing in the record to show how many acres clause seems uncertain.
It does not describe are contained in block 9 or in block 10, or how much them as two lots owned by him, for then, if he owned of block 10 when added to block 9 will make five acres. only two lots there, it might be rendered certain. This Nor is there any thing to show that appeller owns contract would be complied with his conveying two block 9. The bill arers that appelleo owns about lots of ten feet square, or two lots containing a thous- twenty-seven acres in section 2, township 39, range 13, and acres. Nor can this part be rejected as immaterial, which were subdivided into certain blocks and lots ;