vendor agreeing, in a named contingency, that the vendee should select what a part of it should be. Nothing remained to be done between them as negotiating contractors. It was always in the power of either to enforce the contract-ties. the vendor, by requiring payment of the price; the vendee, by selecting the number of lots necessary to supply the deficiency and requiring conveyance. The rule, as asserted by some commentators and courts, that a contract giving one of the parties the right of selection of the lot or lots to be conveyed is not incapable of specific performance, would be applicable here, if the conditions of the contract or the facts presented were in keeping with the rule. In the matter at bar the absence of designation in the contract as to who was to make the selection constitutes an element which removes this case from the rule referred to. We would close the question with the assertion of a rule which, directly applicable and eminently just under the requirement of the statute of frauds, will serve to recapitulate our views as heretofore set forth: The description of real property in an option contract must be so set forth in the writing that it can be identified from the instrument itself. Parol evidence is admissible for no other purpose than to show the application of the description, as given in the instrument, to the particular property intended to be conveyed by and described therein. sion of all other property from the effect of the agreement is primarily the purpose of admitting such evidence at all. Not for the purpose of furnishing or supplying a description is parol evidence admissible, but only to identify that which the agreement describes. Barnes v. Rea, 219 Pa. 287, 68 Atl. 839; Heyward v. Bradley, 179 Fed. 325, 102 C. C. A. 509; Wadick v. Mace, 191 N. Y. 1, 83 N. E. 571; Bauer v. Lumaghi Co., 209 Ill. 316, 70 N. E. 634; Broadway Hospital and Sanitarium v. Decker, 47 Wash. 586, 92 Pac. 445; Tippins v. Phillips, 123 Ga. 415, 51 S. E. 410; Eaton v. Wilkins, supra. Exclu It is our conclusion here that that portion of the lease which attempted to confer an option or right to purchase "any part" of the leased premises herein involved, being void for indefiniteness, was therefore not enforceable; and evidence offered for the purpose of establishing selection by the appellant of a fractional tract included within the whole of the premises leased and less than all of such premises, as well as evidence going to establish tender of money as payment for the same, was properly excluded by the trial court. The trial court found that the monthly value of the rental and profits of the premises involved and held over by appellant was the sum of $62.49. The court found, among other things, that while the appellant was in possession of the premises, and holding the same over, he caused large portions of the land, bearing valuable crops, to be frequently damaged the premises by allowing large quantities of water to remain standing on the land, thereby impairing its productive qualiThe court assessed the damages, including the rental value of the land, at $702.08. There is a substantial conflict appearing in the record as to the element of rental value of the premises and as to the damage accruing thereto by the acts of appellant. [7] In view of the long-established rule of this court not to disturb a finding of the trial court on a matter of fact, where there is substantial evidence to support it, and further, in view of the fact that in assessing the damages and fixing the rental value we find nothing which would indicate the slightest element of passion or prejudice on the part of the trial court, we do not find ourselves justified in doing other than sustaining the judgment rendered. [8, 9] Error is assigned to the action of the trial court in denying appellant a trial by jury. It appears that at the time of the setting of the case, and approximately two weeks before the date of trial, duly authorent appeared in open court and waived a ized counsel for both appellant and respondjury trial. Nothing further appears to have been done in this respect until the day and at the hour set for the trial, at which latter time new and additional counsel appeared for appellant and asked for trial by jury, of this state provides (article 1, § 3): which request was denied. The Constitution to all and remain inviolate forever; but a jury "The right of trial by jury shall be secured trial may be waived by the parties in all civil cases in the manner to be prescribed by law. * * Section 5226, Revised Laws, being section 284 of our Civil Practice Act, provides: parties to an issue of fact in actions arising on "Trial by jury may be waived by the several contract, or for the recovery of specific real or personal property, with or without damages, and with the assent of the court, in other actions, in the manner following: "1. By failing to demand the same at or before the time the cause is set for trial or to appear at the trial. "2. By written consent, in person or by attorney, filed with the clerk. "3. By oral consent in open court, entered in the minutes." Were this other than a case for the recovery of specific real property with damages for wrongful retention, we might, in view of the language of the statute, regard the question differently. The waiver entered into by counsel for appellant through his attorney in che first instance was such as is contemplated by subdivision 3 of section 5226, Revised Laws; that is, "oral consent in open court, entered in the minutes." Trial by jury having been waived in the first instance by counsel for appellant, it was within the discretion of the trial court to thereafter, upon motion or request, disregard or set aside the waiver theretofore entered and try the case by jury. Hence what we are called upon to determine v. Pradere, 39 Nev. 466, 159 Pac. 55, is of striking application in construing the language last quoted. The quotation alluded to reads: abused its discretion in refusing to set aside | case. I am of the opinion that the language the waiver of jury theretofore entered. of Lord Halsbury, which we quoted in Jensen While in our judgment the better policy under such circumstances, if no material injury or delay were caused or occasioned, would be for the trial court to have set aside or disregarded the waiver and called in a jury, we find no ground upon which to hold that the trial court in this instance was guilty of abuse of discretion in refusing so to do. Ferrea v. Chabot, 121 Cal. 233, 53 Pac. 689, 1092; Swasey v. Adair, 88 Cal. 179, 25 Pac. 1119. The judgment and order appealed from are affirmed. It is so ordered. SANDERS, J., concurs. COLEMAN, J. (dissenting). I dissent. The agreement entered into between the parties described in detail the entire tract of land leased to appellant, and gave him an option or right to purchase "all or any part of the land herein leased which lies south of the fence, containing 20 acres, more or less." It is a general rule that contracts capable of being made certain will be specifically enforced. 26 Ency. Law (2d Ed.) p. 38. Since the 20-acre tract is sufficiently described, two questions arise: First, did the agreement confer upon the lessee the right to select? Secondly, was the 5.21 acres selected by the lessee capable of being made certain? The 20-acre tract being clearly described, there can be no doubt in my mind but that the 5.21 acres selected by the lessee was capable of being made certain, and was made certain by the acts of the lessee. I think this view is sustained by the authorities. Fleishman v. Woods, 135 Cal. 256, 67 Pac. 276; 36 Cyc. 595, note 3; 26 Ency. Law (2d Ed.) 36. I am also of the opinion that no other construction can be put upon the language used except that the lessee should have the right to select. If he be given the option to purchase "any part" of the 20-acre tract, it is evident to my mind that the parties must have contemplated that the mental process of selection should be exercised by the lessee. As to the case of Eaton v. Wilkins, which is quoted from in the prevailing opinion, the option agreement gave no further description of the land than "our land of 1,060 acres." It did not name the county and state in which it was situated. The court in that case said: "The contract here pleaded is one which in and of itself gives no clue to the property involved, and the complaint states no facts which would clarify the obscure references therein con tained." "Every judgment must be read as applicable to the particular facts proved, or assumed to be proved, since the generality of the expressions which may be found there are not intended to be expositions of the whole law, but governed and qualified by the particular facts of the case in which such expressions are to be found. cides. I entirely deny that it can be quoted for case is only an authority of what it actually dea proposition that may seem to follow logically from it." A If the court (in Eaton v. Wilkins) had not used the language referred to in this sense, I am of the opinion that it would have expressly overruled the case of Fleishman v. Woods, supra. If the Eaton Case is to be construed as contended in the prevailing opinion, then should A. give B. a lease for one year upon two adjoining town lots, both of which are described by the number designated in the recorded plat of the town, and also by metes and bounds, and in the agreement of lease an option is given B. to purchase the entire tract leased, or either of the lots described, as he may elect, an action for specific performance would not lie in case he elected to purchase one of the lots only, because his right to do so would depend upon the "subsequent action of one of" the parties namely, the designating of the lot he elected to buy. I cannot give my assent to any such rule. Statements of sons while erecting a house on land owned by their mother, not in her presence, that they were building it so that she could collect the rent as long as she lived, was insufficient to show that the mother was only to have a life estate therein, or that the sons were intended to have an interest therein. Appeal from District Court, Weber County; N. J. Harris, Judge. Action for partition by John F. Stephens against Olive Ethel Stephens and Merlin H. Stephens, a minor, by Olive Ethel Stephens, his general guardian. Harriet O. Shaw was made a party at the instance of the defendants. From a judgment of partition and accounting, as far as it favored Harriet O. Shaw, defendants appeal. Remanded, with directions. R. S. Farnsworth, of Ogden, for appellants. Chez & Stine, of Ogden, for respondent. THURMAN, J. This action was brought such accumulated the common property for for the partition of certain real property in which this action for partition was brought; Ogden, Utah. Plaintiff and defendants are that in 1906 their mother, the respondent cotenants of the property described in the here, was living where she still lives in her complaint and certain other property de- own home on a parcel of land adjacent to the scribed in the answer and counterclaim. The land and premises in controversy; that in property was accumulated by plaintiff and the fall of that year John and Henry, with one James Henry Stephens, now deceased, as some little assistance of other relatives in partners during the lifetime of the latter, Ogden, constructed two houses on this land each owning a one-half interest therein. of their mother's, which houses have ever Defendants are the widow and adopted son since been rented and occupied by divers of the said James Henry Stephens, and have tenants, some of whom were witnesses at succeeded to his interest in said property, the trial of this case; that ever since the each owning a one-fourth interest thereof. houses were constructed the respondent has The plaintiff and James Henry, for the sake had possession of the keys to both houses of brevity, will hereafter be referred to as when not occupied by tenants, but usually "John" and "Henry." In addition to the the rents have been collected by one or the property described in the complaint the de- other of her boys, John or Henry; that prior fendants, in their answer, alleged the exist- to the death of Henry in April, 1910, he genence of other lots and parcels of land in erally collected the rent, but some of the Ogden owned by plaintiff and defendants, time it was collected by John, and after the and prayed for a partition thereof. Among death of Henry it was collected by John. the said lots and parcels of land so alleged in The record, however, shows that on a few octhe answer and counterclaim to be owned by casions the rent was paid to the mother diplaintiff and defendants is one parcel stand-rect. The exact arrangement under which ing in the name of Harriet O. Shaw, mother these houses were constructed is to a great of John and Henry. Defendants prayed that extent a matter of deduction from circumHarriet O. Shaw be made a party to the ac- stances. The fact that defendants claim an tion in order that the rights of all parties interest in the property as heirs of their demight be adjudicated and determined. An ceased husband and father, and respondent order was made to that effect, and said Har- claims as an adverse party, disqualified her riet O. Shaw was made a party to the action. as a witness at the trial as to any fact equalPlaintiff replied to the answer and coun- ly within the knowledge of Henry in his lifeterclaim of the defendants, denying, among time. The same rule was applied to the plainother things, that plaintiff and defendants tiff, as a witness, the result of which was that owned the property standing in the name of all of the parties to whatever arrangement Harriet O. Shaw referred to in defendants' there was were either dead or disqualified by counterclaim, and on the contrary affirmative- law. Hence the court in the trial of the case ly alleged that it was, and at all times had was compelled to rely solely upon inferences been, the property of said Harriet O. Shaw. from circumstances or from statements of The said Harriet O. Shaw also appeared in parties not disqualified by interest and who answer to the order making her a party, and knew nothing of the formal understanding, answering the defendants' cross-complaint if there was one, between the parties. It is denied the allegations thereof, and affirma- claimed by the appellants in their countertively alleged that she was the owner of the claim that this property, both the land and property standing in her name referred to in the houses, was the common property of defendants' cross-complaint. plaintiff and defendants the same as the other common property about which there is no dispute. In their assignments of error they charge, in effect, that the court erred in not finding that the respondent had merely a life estate in the premises, and that she was entitled only to the rents and profits during her lifetime. This claim applies both to the land and the houses thereon. hand, the respondent's contention is that she is the absolute owner in fee simple of both the land and the houses; that the land was hers in fee simple before the houses were built, and that her boys, John and Henry, and other relatives, constructed the houses for her and gave them to her; that John and Henry collected the rents for her, and accounted to her for the money received; that such services were performed by them as sons for their mother, and not otherwise. The case was tried to the court. A partition and accounting was ordered as to the common property not in dispute, and a judgment rendered in favor of respondent, Harriet O. Shaw, for the parcel of land claimed by her. Defendants appeal from this part of the judgment and assign many errors, all of which, however, relate to the ownership of the land awarded to respondent. The single question, therefore, presented by this appeal, is as to the ownership of this particular parcel of land. With a single exception, which will hereafter be referred to, there is very little, if any, conflict in the evidence. The material facts are that respondent is the mother of John and Henry, and is, and ever since 1896 has been, the owner in fee simple of the parcel of land upon which two houses were constructed as hereinafter stated; that John and Henry, in the lifetime of the latter, were part On the other The question presented is largely one of ing of the court relating to this particular property is in apparent conflict with the conclusion of law and judgment awarding the property to respondent, it becomes necessary to examine the evidence with more care and detail than would otherwise be necessary in order, if possible, to reconcile the conflict referred to. The finding in question will be referred to specifically hereafter. [1] We have diligently searched the record in this case for any substantial evidence sufficient in law to support appellants' claim that the respondent gave the land in question to her boys, John and Henry, and have found none except the unsupported testimony of the defendant Mrs. Olive Ethel Stephens that in 1906, when the houses were being constructed, respondent told her in a conversation that she had given the land to the boys. This conversation was flatly contradicted by respondent, and in the opinion of the court it is contradicted by all the circumstances in the case. If the land had been given by respondent to her boys ten years before the trial of the case, as claimed by defendant, it is inconceivable why a conveyance in writing was not executed by respondent. The parties, except Henry, who is dead, have lived in Ogden all the time, and if a gift had been intended, why was it not executed in some form that would give it a standing as a gift of real property? Why were the keys to the houses when not occupied by tenants given to and left with respondent all these years? The plaintiff, John F. Stephens, disclaims any interest in the property, either to the land or the houses, and alleges that it belongs to his mother. He is one of the alleged donees of the gift. It cannot be successfully contended that in disclaiming an interest he is subserving a selfish purpose. He would obtain a greater interest by supporting the theory of a gift, by which he would obtain one-half of the property, than by insisting that the property belongs to his mother who has other children living besides himself who would share in a distribution at her death if she continued to be the owner of the property. As before stated, however, the evidence is utterly in improvements do not dispense with the necessity of producing distinct proof of the principal if there was actually a gift, the donee is not fact, that is, that there was a gift, and even entitled to the aid of equity when the improvements are slight and not of permanent value." 12 Ruling Case Law, 939, 940. See, also, Shirley v. Shirley, 92 Cal. 44, 27 Pac. 1097; Poullain v. Poullain, 76 Ga. 420, 4 S. E. 92; Truman v. Truman et al., 79 Iowa, 506, 44 N. W. 721; Wilson v. Wilson, 99 Iowa, 688, 68 N. W. 910; Flanigan v. Waters, 57 Kan, 18, 45 Pac. 56; Ogsbury v. Ogsbury, 115 N. Y. 290, 22 N. E. 219; Zallmanzig V. Zallmanzig (Tex. Civ. App.) 24 S. W. 944; Harrison v. Harrison, 36 W.Va.556, 15 S.E. 87; Poorman v. Kilgore, 26 Pa. 365, 67 Am. Dec. 524; Cox v. Cox, 26 Pa. 375, 67 Am. Dec. 432; Forward v. Armstead, 12 Ala. 124, 46 Am. Dec. 246; 20 Cyc. 1200, 1201, and cases cited. [2] But it is contended by appellants that the court ought to have found that respondent had merely a life estate in the premises, and was entitled only to collect the rents and profits during her lifetime. The strongest evidence we have been able to find in support of this contention is the testimony of one Henry Bateman, a witness for defendants. He testified, in substance, that while he was working on the houses laying a foundation he had some conversation with Henry in which Henry said he was building the houses for his mother; that he wanted her to have something to support her, or, in substance, to that effect. Bateman also testified that he believed Henry said his mother was going to take the rents as long as she lived. He also testified that he believed John said the same thing. As far as we are able to determine from the record, the testimony of the witness Bateman affords the only substantial support, if it is substantial, that appellants have for their contention that respondent has only a life estate in the premises. This being the only testimony bearing directly upon this particular question, it is well at this point to consider its effect. The land belonged to respondent in fee simple. These houses were constructed upon it. It was in her possession all times. There was no contract agree sufficient in law to support a parol gift of at at or understanding in writing; in fact, no land. "To establish a parol gift of land the clearest and most satisfactory evidence is required. The proof must be clear, definite, and conclusive, not only as to the fact of the gift, but also of acts done by the donee upon the faith of the gift such as would render inequitable any attempt on the part of the donor to avoid it." 14 A. & E. Ency. of Law, 1042, and cases cited. We quote the following note cited in the foregoing text: oral agreement even, unless this statement by Henry established one. Respondent was not present when the statement was made. The remainder of a fee-simple estate after a life estate is involved. The question is, Is such evidence, unsupported by other facts or circumstances bearing upon the same point, sufficient to divest respondent of all title in and to the remainder of a fee-simple estate? The authorities heretofore referred to certainly do not lend support to appellants' contention. If Henry or John, or both of them, had had some kind of a contract or agreement with respondent, appearing from the evidence in the record with reasonable certainty as to their right to the remainder "Where a son goes into possession of his father's lands and makes improvements, a jury is not to infer from that, in the absence of other evidence, that the father gave the land to him. Loose declarations of the father in casual conversations calling the land his son's property, without any explanation as to how it came to be his, are not sufficient evidence of a gift" citing cases. case might be presented for our considera George Q. Rich, of Logan, for appellant. tion. It was not as if Henry and John were Nebeker, Thatcher & Bowen, of Logan, for strangers to respondent and in no way legal-respondent. ly or morally obligated to contribute to her support. They were her sons, and they ap CORFMAN, J. This is an action brought pear to have been dutiful sons, and it cannot by the plaintiff to determine his right, as be said that what they were doing was so ex-against the defendant, in certain real propertraordinary and unusual in dutiful sons as to ty situate in Logan City, Utah. justify the conclusion that their conduct was induced by a valuable consideration or promise of any kind on the part of their mother. The other evidence in the case relating to this question need not be set out or commented on at length. It is all to the effect that John and Henry, with some assistance from other relatives, built the houses for respondent for her support and maintenance; that they were given to her for that purpose without any sort of limitation on her estate; that the other relatives worked upon the buildings at the request of John and Henry, Henry in particular, who represented that their work was being donated to respondent. Thus advised, the relatives referred to donated their services also. In view of these uncontroverted facts the trial court ought to have found unequivocally that the premises were hers in fee simple. No doubt he intended to do so, inasmuch as the conclusions of law were to that effect. But one clause in the findings to the effect that the houses were given to her "for her support and maintenance during her lifetime" renders the finding ambiguous as to whether or not a limitation upon her estate was intended. For this reason it becomes necessary to remand the cause, with directions to the trial court to recast the findings in accordance with these suggestions and enter conclusions of law and judgment accordingly. It is so ordered. Respondent to recover costs. FRICK, C. J., and MCCARTY, CORFMAN, and GIDEON, JJ., concur. It appears that on or about the 25th day of February, 1916, the defendant entered into a written contract with Joseph F. Smith, trustee in trust for the Church of Jesus Christ of Latter Day Saints, whereby and under the terms of which the said Joseph F. Smith, as said trustee, agreed to sell, and the defendant agreed to buy, lot 21, Temple View addition, as shown on the official plat of said lands of record in the office of the county recorder of Cache county, Utah, being a part of block 3, plat C of Logan City survey; that by the terms of said contract the purchase price of said lot was fixed at $1,000, of which $100 was paid by the defendant upon entering into the contract, the balance, $900, to be paid on or before five years from date of contract, with interest thereon at the rate of 7 per cent. per annum, payable quarterly. Among other things, said contract contained the condition, binding upon the grantee's heirs, executors, administrators, and assigns, "that said premises shall be used for residence purposes only," and "that no building shall be erected thereon costing less than $3,000." Said contract also contained a forfeiture clause in the following language, to wit. "It is understood and agreed that time is and shall be of the essence of this contract, and that fail to promptly make any or either of the said in case the said party of the second part shall payments of principal or interest within sixty days after the maturity thereof, or to comply strictly with either of any of the terms of this contract, then the said party of the first part shall have the right to terminate this contract, and to retain all payments made hereunder by the party of the second part as liquidated damages unless the party of the first part, his successors in office, or assigns shall otherwise elect." BUDGE v. BARRON. (No. 3099.) (Supreme Court of Utah. Dec. 14, 1917.) VENDOR AND PURCHASER 121 - CONTRACT FOR PURCHASE-SURRENDER OF INTEREST. Defendant effectually surrendered and divest-party ed himself of his interest under his contract for purchase of land, where, being in default in interest thereon, entitling the vendor to invoke its forfeiture clause, plaintiff agreed to take it off his hands, reimbursing him for his payments thereon, if the vendor would agree to eliminate a building restriction clause, and defendant reported this to the vendor, and got it to issue a contract therefor to plaintiff; writing not being necessary for surrender of the interest.1 Appeal from District Court, Cache County; J. A. Howell, Judge. Action by T. B. Budge against Ashiner Cecil Barron. Judgment for plaintiff, and defendant appeals. Affirmed. 1 Aaron v. Holmes, 35 Utah, 49, 99 Pac. 450; Cut wright v. Savings & Investment Co., 33 Utah, 487, 94 Pac. 984, 14 Ann. Cas. 725. | The contract was made in duplicate, each retaining one, and cotemporaneous with the contract the defendant made and delivered his promissory note to C. W. Nibley, agent for Joseph F. Smith, trustee for $900, payable with interest according to the terms of said contract. The duplicate of the contract and the note, after delivery, were held and retained at the general office of the Church of Jesus Christ of Latter Day Saints, at Salt Lake City, pending performance and payment on the part of the defendant, until on or about the time of the transactions involved herein between the plaintiff and the defendant hereinafter mentioned and set forth. The negotiations with the defendant leading up to the sale of the city lot and the execution of the contract and promissory note, |