must be sufficient to render the identity clear upon the introduction of such evidence.(1) But if the description in a written contract is so indefinite that the subject-matter is not thus clearly determined by the help of such auxiliary evidence, and further parol evidence would be necessary to disclose the intent of the parties, and to actually supply the substantive term which they have either wholly omitted or inadequately expressed, then the defect is fatal, the agreement is incomplete, and cannot be enforced.(2) The description may be wholly or partially contained in a separate document, which, if referred to by the other portions of the written contract in such a manner as to establish a connection between them, becomes a constituent part of the agreement, and in such a case, parol evidence to identify the document thus referred to is admissible.(3) Or the accompanying document may be signed simultaneously with the principal agreement, or may be otherwise authenticated by the parties, so as to show that one of them is to be taken in connection with and explanatory of the other.(4)

SEC. 153. An agreement for a lease must, of course, specify the duration of the term, for otherwise the letting would be a mere tenancy at will, which, in accordance with principles already stated, would not be specifically enforced. If such an agreement is written, the want of provisions fixing the extent of the term cannot be supplied by parol

(1) The rule is the same as that which regulates the admission of parol evidence to identify persons and things mentioned in wills or deeds. The following cases furnish examples of the rule stated in the text. The description "Mr. Ogilvie's house,” in a contract, was held sufficient, because the property intended could be easily identified, in Ogilvie v. Foljambe, 3 Meriv. 53; parol evidence was admitted to explain the phrases "501. more of premium," and "the profit rent of the present tenant," in Skinner v. McDouall, 2 DeG. & S. 265; the description, "the mill property, including cottages, in Ester village, all the property to be freehold," also held sufficient, being fully identified by parol evidence, McMurray v. Spicer, L. R. 5 Eq. 527; Robeson v. Hornbaker, 2 Green's Ch. 60; Fowler v. Redican, 52 Ill. 405; Waring v. Ayres, 40 N. Y. 357; Mead v. Parker, 115 Mass. 413; and ante, § 90.

(2) In an agreement for letting, the only description of the thing to be leased was "coals, etc." This was held wholly insufficient by KNIGHT BRUCE, L. J., in Price v. Griffith, 1 DeG. M. & G. 80. See, also, Inge v. Birmingham, etc., Ry. Co., 3 DeG. M. & G. 658; McMurtrie v. Bennette, 1 Harring. Ch. 124. The description in a written contract, to sell "all that piece of property known Hotel property," was held insufficient in King v. Wood, 7 Miss. 389. The correctness of this decision may well be donbted.

as the Union

(3) Clinan v. Cooke, 1 Sch. & Lef. 21, 33; Baumann v. James, L. R. 3 Ch. 508. See ante, §§ 83, 84.

(4) Nene Valley Drainage Comm'rs v. Dunkley, L. R. 4 Ch. D. 1.

evidence.(1) A description of the subject-matter in contracts, as well as in deeds and wills, is sufficient when it complies with the maxim, id certum est quod certum reddi potest. For example, a contract for the

sale of land will sufficiently define the particular tract sold by referring to the description contained in a certain deed on record, or in the possession of the vendor.(2)

SEC. 154. IV. Other material terms.-A contract to be complete must also contain all the other material terms in addition to those already described. Of course, no rule can be laid down by which the materiality of the terms shall be determined in all cases, because this must depend upon circumstances special to every case. The general doctrine, however, has been formulated by eminent judges, that an agreement framed in general terms will be enforced where the law will supply the details; but if any of its details are to be supplied by modes which the court cannot adopt, there is then no complete contract capable of being specifically executed. (3) This doctrine applies with special force to contracts which have been reduced to a written form, for then the familiar principle becomes operative, that an agreement in writing cannot, when it is set up as the cause of action or defense in a suit, be altered, or added to by parol evidence, so that if a written contract lacks a material term it cannot be specifically enforced.(4)

(1) Clinan v. Cooke, 1 Sch. & Lef. 22; Fitz Maurice v. Bayley, 3 L. T. (N. S.) 69; Farwell v. Mather, 10 Allen, 322; Hurley v. Brown, 98 Mass. 545; Hodges v. Howard, 5 R. I. 149; Abeel v. Radcliff, 13 Johns. 300; Nesham v. Selby, L. R. 7 Ch. 406; 13 Eq. 191. Memorandum of an agreement to take a lease, which specified the term of years and the rent and other matters, but omitted to state on what day the letting should commence, held incomplete, and a specific performance refused.

(2) Owen v. Thomas, 3.My. & K. 353; Haywood v. Cope, 4 Jur. (N. S.) 227; Bauman v. James, L. R. 3 Ch. 508. In Monro v. Taylor, 8 Hare, 51, the contract was to sell an estate described as within certain ascertained metes and bounds, and as being partly freehold and partly leasehold. It was held not void for uncertainty, since it was good as a contract to sell the vendor's interest in the land. It was further held that the vendee was entitled to have the boundaries of the freehold and of the leasehold portions ascertained, to have the extent of each portion determined.

(3) South Wales Ry. Co. v. Wythes, 5 DeG. M. & G. 888, per TURNER, L. J.; Ridgway v. Wharton, 6 H. L. Cas. 285, per Lord ST. LEONARDS.

ness.

(4) The doctrine of the text can best be illustrated by examples of incompleteContracts have been held incomplete as follows: An agreement to lease which did not in any way state the duration of the term. Clinan v. Cooke, 1 Sch. & Lef. 22; Gordon v. Trevelyan, 1 Pri. 64. A similar agreement which did not state the time when the term was to commence. Blore v. Sutton, 3 Meriv. 237; Cox v. Middleton, 2 Drew. 209; Hersey v. Giblett, 18 Beav. 174. A similar

SEC. 155. The terms thus far spoken of are all express. There are, also, in certain species of contracts, terms implied by legal presumption. Whether such terms are necessary or immaterial, the failure of a contract, written or verbal, to state them in express language, does not and cannot render it incomplete, since the very essence of an implied term consists in its not being expressed, but simply inferred as a presumption of law from the other provisions of the agreement. The following are some of the terms implied in contracts in general use, it being assumed, in every case, that there is nothing in the contract by which the presumption could be defeated. An agreement to sell land, not specifying the interest, is impliedly an agreement to sell all of the interest which the vendor has.(1) In England, an agreement to sell a house simply implies that the estate sold is a fee simple. (2) In the United States, an agreement to sell and convey land generally, nothing appearing to raise a contrary inference, implies an undertaking to sell and convey the fee simple.(3) Every agree

case.

agreement which did not state at what time an increased rent provided for was to commence. Lord Ormond v. Anderson, 2 Ba. & By. 363. An agreement for a lease for lives which did not name the lives nor provide for their being named. Wheeler v. D'Esterre, 2 Dow. 359. But, perhaps, the lessee may name in such a Lord Kensington v. Phillips, 5 Dow. 61. Where the alleged agreement was an auctioneer's receipt, which did not state the conditions of the sale, nor the proportion the deposit was to bear to the price. Blagden v. Bradbear, 12 Ves. 466. An agreement in which a stipulation as to expenses was not settled. Stratford v. Bosworth, 2 V. & B. 341. An agreement for partnership which defined the term for which it was to last, but did not specify the amount of the capital and the manner in which it was to be furnished. Downs v. Collins, 6 Hare, 418. A contract for the sale of land wherein the vendor agreed to take in part payment a house and lot at its cash value to be fixed by two persons, and the parties agreed to appoint these valuers, but no time within which such appointment should be made was specified, and in fact they never made any, was held too incomplete to be specifically executed. Baker v. Glass, 6 Munf. 212; Rummens v. Robins, 3 DeG. J. & S. 88. Defendants offered by letter to sell to the plaintiff a piece of land at a named price, the letter ending: "There will be the usual clauses in a contract, and some limitations as to the length of the title to be shown and other minor details," was accepted in writing. Held incomplete and not enforced; uncertain as to the clauses to be inserted, and as to the title. See, also, Tiernan v. Gibney, 24 Wisc. 190; Potts v. Whitehead, 5 C. E. Green, 55; Nichols v. Williams, 7 C. E. Green, 63; Riley v. Farnsworth, 116 Mass. 223; Clark v. Clark, 49 Cal. 586; Grace v. Denison, 114 Mass. 16.

(1) Bower v. Cooper, 2 Hare, 408.

(2) Hughes v. Parker, 8 M. &. W. 244.

(3) Hoffman v. Fett, 39 Cal. 109; Kyle v. Kavanagh, 103 Mass. 356, under the Mass. Gen. Stat., ch. 89, § 8, an agreement to convey with a good title may be complied with by giving a quit-claim deed; Allen v. Atkinson, 21 Mich. 351; Holland v. Holmes, 14 Flor. 390; Page v. Greeley, 75 Ill. 400; Hoback v. Kilgores, 26 Gratt. 442; Thayer v. Torrey, 37 N. J. Law, 339; In McGlynn v. Maynz.

ment to sell and convey land contains an implied condition that the vendor's title is a good one.(1) And in England, there is the further implied condition that the vendor shall deliver up the title deeds.(2) The title to be shown by the vendor depends upon and varies with the nature of the estate contracted to be sold, whether-for example, it is a fee simple, or a leasehold, and the like.(3) The condition as to the vendor's showing a good title is raised by the law solely for the benefit of the vendee, and may, therefore, be waived by him, even though the vendor may object to such waiver, and may insist upon the condition being enforced for the purpose of preventing a specific performance of his contract.(4) In the United States, a contract for the sale and conveyance of land, besides the condition as to a good title, farther implies that the vendor will execute and deliver a deed with a general covenant of warranty as the instrument of conveyance. SEC. 156. An agreement to renew a lease implies that the new lease is to be for the same term as the former one.(5) An agreement

104 Mass. 263, an agreement to convey in fee, with full covenants, etc., is not satisfied by a conveyance with conditions restricting the erection or use of buildings on the land; Dresel v. Jordan, 104 Mass. 407, an agreement to convey, subject to a mortgage which is to be assumed by the vendee as part of the consideration, held not satisfied by conveying subject to a condition that the grantee (vendee) shall indemnify the grantor against the mortgage. Roberts v. Bassett, 105 Mass. 409, a contract to convey with "a clear title," held not to be satisfied by giving a warranty deed if the land is actually incumbered. Steinburg v. Ismay, 35 N. Y. Sup'r Ct. 35, a contract to convey free from incumbrance, is not performed by tendering a deed with release of the vendor's wife's dower right.

(1) Doe d. Gray v. Stanion, 1 M. & W. 695, 701; Worthington v. Warrington, 5 C. B. 635; Bates v. Delavan, 5 Paige, 299; Watts v. Waddle, 1 McLean, 200; Allen v. Atkinson, 21 Mich. 351; Holland v. Holmes, 14 Flor. 330; Page v. Greeley, 75 Ill. 400.

(2) Where such delivery was rendered impossible after the contract, by an accidental destruction of the deeds, it was held that the contract could not be specifically enforced by the vendor. Bryant v. Busk, 4 Russ. 1. Our system of registry has so completely revolutionized the law and practice of conveying in this country, that no such implied condition is attached to a contract for the sale of land in the United States.

(3) Curling v. Flight, 6 Hare, 41; 2 Phil. 613. On a contract for the sale of a lease in England, the title which the vendor must show to be good, includes that of the lessor. Fildes v. Hooker, 2 Meriv. 424; Souter v. Drake, 5 B. & Ad. 992; Hall v. Betty, 4 Man. & Gr. 410; Kintrea v. Preston, 25 L. J. Ex. 287; but the sale of a bishop's lease is excepted. Fane v. Spencer, 2 Mer. 430, n. Whether such condition is implied in similar contracts by the law of this country, Query. There seems to be no reason why it should not be.

(4) Bennett v. Fowler, 2 Beav. 302.

(5) Price v. Assheton, 1 Y. & C. Ex. 82. In a contract to assign a municipal corporation tax lease, there is no implied warranty of title by the vendor; he

by a lessee to give an underlease, implies that it shall be subject to the covenants contained in the superior lease under which it is granted.(1) Whether, in executory agreements for the making of moro formal contracts, there is an implied term that the latter contract when executed shall contain all the provisions usually found in instruments of that class, is a question which has been raised, but apparently not yet settled in England.(2)

§ 157. The very nature of an implied term assumes that the contract contains no express clause or stipulation concerning the same matter, which would obviate, take the place of, or defeat the implication; that, in short, the language of the contract is silent on the subject. An implied term may, therefore, be displaced and destroyed by the express provisions of the agreement; as, for a familiar example, a contract for the sale of land may contain any stipulations concern

only warrants its genuineness and his ownership; and the vendee is presumed to take it at his own risk in respect to the title, Boyd v. Schlesinger, 59 N. Y. 301.

(1) Cosser v. Collinge, 3 My. & K. 283; Smith v. Capron, 7 Hare, 185. Since so large a portion of business and dwelling-house property in England is leasehold, and these lettings are generally for considerable terms, the questions growing out of leases, sub-leases, and contracts to give them are more practically important and numerous there than in this country. As a contract for a sublease implies that it is to be taken subject to the covenants of the first lease, the question arises whether it is also implied that these covenants are only the ones usually inserted in leases. Cosser v. Collins, supra, held that it was the duty of the sub-lessee to inquire into the covenants of the superior lease, and this seems to be against such an implication; but the case of Flight v. Barton, 3 My. & K. 282, seems to indicate a different doctrine, namely, that if the contract for a sublease was silent in respect to the covenants, and the sub-lessee had not taken possession, and had had no notice, then if it turned out that the superior lease contained unusual covenants, the specific performance would not be forced upon him against his will. It is certain, however, that if any such implication arises as to the nature of the covenants, it is a slight one, and easily rebutted, either by the sublessee's taking possession, since he ought to find out what the superior covenants are before he does so; or by notice, actual or constructive-as, for example, by the sub-lessee's solicitor having seen the superior lease, which would be notice to him and to his client of all the covenants which it contains. Cosser v. Collins, 3 My. & K. 283; Smith v. Capron, 7 Hare, 185.

(2) See Harding v. Metrop. Ry. Co., L. R. 7 Ch. App. 154; Ricketts v. Bell, 1 DeG. & Sm. 335, per KNIGHT BRUCE, V. C. For example, whether a contract for a lease implies that the lease shall contain the usual covenants; whether the brief memorandum of a sale implies that the formal contract when drawn up shall contain the stipulations customary as to showing title and the like. This question has not arisen in its general form in the United States, probably because it cannot be said that there are any settled custom as to what contracts, leases, etc., shall contain. In one of its special applications, however, the rule has been thoroughly settled, that a contract for the sale of land implies that the deed shall contain the ordinary covenant of warranty. (See ante, § 155.)