ing the title to be shown by the vendor and accepted by the vendee, and thus defeat the presumption as to a good title; or may require the purchaser to be satisfied with quit-claim deed, and thus remove the implication respecting a warranty. And, in this manner, all the implications can be obviated.(1) Again, a notice received at or before the time of entering into the agreement, by the purchaser or lessee, of the real state of the title, or of the actual interest or condition of the vendor or lessor, will destroy any implications as to the title or the nature of the estate to be conveyed or assigned, which might otherwise have arisen; since these implied terms do not arise from the express agreement of the parties, but from operation of law, and therefore their effect rests upon the same foundation as that of notice.(2) For example, if a vendor contracted to sell land generally, but the purchaser had notice that he held only a leasehold interest, the implication which would otherwise have arisen that he was to convey the fee, would be rebutted. (3) But if the vendor had actually contracted to convey the fee, such.notice would not effect the stipulation.

SEC. 158. It being a settled doctrine that a contract must be complete in order to be specifically executed, the practical question arises: At what time must this quality of completeness exist? Is it enough that the agreement is perfected at any time before the hearing or the decision, or must it be complete in its terms at the time. when the suit for its enforcement is commenced? As this quality is essential to the existence of a cause of action, and as a cause of action must have accrued before the suit is brought, it follows that the time at which the completeness must be ascertained, is the commencement of the action; or, in the old chancery practice, the filing of the bill.(4) If the defendant had a good legal or equitable ground for resisting performance and defending the suit when it was instituted, it would be manifestly unjust to deprive him of this defense, and thus wholly change his legal condition, by any subsequent acts for which he was not responsible.(5) This being the general rule, there are two excep

(1) Freme v. Wright, 4 Mad. 364.

♦ (2) Ogilvie v. Foljambe, 3 Meriv. 53, 64; James v. Litchfield, L. R. 9 Eq. 51. A notice of a contrary condition of circumstances does not, however, effect the express provisions of a contract. Barnett v. Wheeler, 7 M. & W. 364.

(3) Cowley v. Watts, 17 Jur. 172.

(4) Adams v. Broke, 1 Y. & C. C. C. 627.

(5) Right v. Cuthell, 5 East, 491; Doe. d. Mann v. Walters, 10 B. & C. 626; Doe. d. Lyster v. Goldwin, 2 Q. B. 143. In a case upon a contract, when the consent of a third person was necessary to its completion, and this consent was not given before the suit, the giving it after the suit was brought, and before the hearing, was held too late. Adams v. Broke, supra.

tions, which are, however, rather apparent than real, since in neither instance is the contract actually incomplete at the commencement of the action. The first is the case already discussed,(1) where the contract provides for some act to be done by third persons-as the fixing the price by valuers-or for some analogous proceeding to be taken; but this provision is not an essential part of the agreement, but rather incidental and subsidiary, so that relief will not be refused if it is not liberally complied with; under these circumstances, if through neglect of the defendant, or from any other cause other than the plaintiff's own default, the provision has not been carried into effect, the court will, as a preliminary to its decree, and as a step in the cause, provide a substituted method for accomplishing the object of the provision, and completing the agreement.(2) The second is the case, also described heretofore, where a contract contains a term which is not, in itself, full and definite, but complies with the maxim, id certum est, etc. Such a contract will be enforced, although the court, as has been shown, must, in the progress of the suit, resort to extrinsic evidence for the purpose of explaining the term, applying the references which it makes, and identifying the persons, things or language to which it refers. (3) Such a contract, however, is plainly as complete as one in which all the terms are expressed in a minute and detailed manner.

SECTION VI.

The contract must be certain.

SECTION 159. As stated in the preceding section, the quality of certainty now to be considered denotes that the contract not only contains all the material terms, but that each one of them is expressed in a sufficiently exact and definite manner. An uncertain contract, therefore, may perhaps embrace, in a partial manner, all the material terms, but on account of the inexact, indefinite, or

(1) Ante, § 151.

(2) Pritchard v. Ovey, 1 J. & W. 396; Lord Kensington v. Phillips, 5 Dow. 61. Agreement to grant an annuity for three lives to be named; the consideration was paid; defendant refused to do anything, and so the lives were not named; the court directed the plaintiff to nominate the lives, and thus to perfect the agreement so that it could be specifically executed. See, also, the cases in §§ 150,

151.

(3) Walker v. Eastern Counties Ry. Co., 6 Ha. 59. Owen v. Thomas, 3 My. & K. 353; Monro v. Taylor, 8 Ha. 51. See, also, cases ante, § 153.

obscure language in which one or more of them is stated, it fails to express the intent of the parties with sufficient clearness to enable the court of equity to enforce its provisions. The specific performance of an agreement, thus uncertain, will not be decreed. No criterion can be formulated which shall be a test of certainty in every instance. As a general proposition, although it is perhaps too vague to be of much practical use, the terms of a contract must be expressed with a reasonable certainty, and what is reasonable in any case must depend upon the subject-matter of the agreement, the purpose for which it was entered into, the situation and relations of the parties, and the circumstances under which it was made.(1) A greater amount or

(1) Marsh v. Milligan, 3 Jur. (N. S.) 979, per PAGE WOOD, V. C.; Swaisland v. Dearsley, 29 Beav. 430; Tillett v. Charing Cross Bridge Co., 26 Beav. 419; Morrison v. Barrow, 1 DeG. F. & J. 633; Taylor v. Portington, 7 De G. M. & G. 328 ; Price v. Salusbury, 32 Beav. 446; 32 L. J. (N. S.) Ch. 441; Allen v. Webb, 64 Ill. 342; Reese v. Reese, 41 Md. 554; Tallman v. Franklin, 4 Kern. 584; Neufville v. Stuart, 1 Hill Ch. 159; Bell v. Bruen, 1 How. (U. S.) 169, 173; Pearce v. Watts, L. R. 20 Eq. 492. Contract for sale of an estate, vendor reserving "the necessary land for making a railway' through the estate to a place named. Held, in action for a specific performance by the vendor, that the reservation was so uncertain, that it made the contract incapable of enforcement. The following are additional cases illustrating the general doctrine of the text. Stanton v. Miller, 58 N. Y. 192. A. agreed, in consideration of services to be performed by B. and his family, to convey a house and lot to such member of B.'s family as A. should select. Held, the agreement was so uncertain in respect to the person who was to be the grantee, that it could not be specifically enforced. Mehl v. Von der Wulbeke, 2 Lans. 267; Foot v. Webb, 59 Barb. 38; Munsell v. Loree, 21 Mich. 491; Tiernan v. Gibney, 24 Wisc. 190; Bowman v. Cunningham, 78 Ill. 48; Miller v. Campbell, 52 Ind. 125; Lynes v. Hayden, 119 Mass. 482; Mastin v. Halley, 61 Mo. 196; Odell v. Morin, 5 Oreg. 96 (the objection of uncertainty is applied with special strictness against the assignees and representatives of the original parties); Johnson v. Johnson, 16 Minn. 512; McClintock v. Laing, 22 Mich. 212; Nichols v. Williams, 7 C. E. Green, 63 (an agreement to give two mortgages for part of the price of land, which did not state when they were to be paid, or at what rate of interest, held too uncertain to be enforced); Carr v. Passaic Land, etc., Co., 7 C. E. Green, 85; 4 ib. 424; Pierce v. Catron, 23 Gratt. 588; Long v. Duncan, 10 Kans. 294; Hardesty v. Richardson, 44 Md. 617; Hoyt v. Tuxbury, 70 Ill. 331; Brink v. Steadman, 70 Ill. 241; Wright v. Wright, 31 Mich. 380; McKibbin v. Brown, 1 McCarter, 13; Hyde v. Cooper, 13 Rich. Eq. 250; Welsh v. Bayaud, 6 C. E. Green, 186; White v. Hermann, 51 Ill. 243; Matteson v. Scofield, 27 Wisc. 671; Soles v. Hickman, 8 Harris, 180; Potts v. Whitehead, 5 C. E. Green, 55; Camden, etc., R. R. v. Stewart, 3 C. E. Green, 489; Van Doren v. Robinson, 1 C. E. Green, 256; King v. Ruckman, 5 C. E. Green, 316; Ferris v. Irving, 28 Cal. 645; Agard v. Valencia, 39 Cal. 292; Minturn v. Baylis, 33 Cal. 129; McGuire v. Stevens, 42 Miss. 724; Hammer v. McEldowney, 46 Pa. St. 334; Whelan v. Sullivan, 102 Mass. 204; Myers v. Forbes, 24 Md. 598; Gelston v. Sigmund, 27 Md. 334; Dobson v. Litton, 5 Coldw. 616; Huff v. Shepard, 58 Mo. 242; Buckmaster v. Thompson, 36 N. Y. 558; Wiswall v. Tefft, 5 Kans. 263.

degree of certainty is required in the terms of an agreement, which is to be specifically executed in equity, than is necessary in a contract which is to be the basis of an action at law for damages. An action at law is founded upon the mere non-performance by the defendant, and this negative conclusion can often be established without determining all the terms of the agreement with exactness. The suit in equity is wholly an affirmative proceeding. The mere fact of non-performance is not enough; its object is to procure a performance by the defendant, and this demands a clear, definite, and precise understanding of all the terms; they must be exactly ascertained before their performance can be enforced. This quality of certainty can best be illustrated by examples selected from the decided cases, and a number of these are collected in the footnote.(1)

(1) Kendall v. Almy, 2 Sumn. 278; Colson v. Thompson, 2 Wheat. 336; Carr v. Duval, 14 Pet. 77; Walton v. Coulson, 1 McLean, 120; McMutrie v. Bennette, Harring. Ch. 124; Millard v. Ramsdell, Harring. Ch. 373; Prater v. Miller, 3 Hawkes, 628; Waters v. Brown, 7 J. J. Marsh. 123; Fitzpatrick v. Beatty, 1 Gilm. 454; Goodwin v. Lyon, 4 Porter, 237. An agreement between two railway companies, that one should have the right of running with their engines, carriages and trucks, and carrying traffic upon the line of the other, was held not too uncertain to be enforced. Great Northern Railway Co. v. Manchester, etc., Railway Co., 5 DeG. & Sm. 138, per PARKER, V. C. "It means a reasonable use-a use consistent with the proper enjoyment of the subject-matter, and with the rights of the granting party." Catt v. Tourle, L. R. 4 Ch. 654; Baumann v. James, L. R. 3 Ch. 508; Collins v. Plumb, 16 Ves. 454; White v. Hermann, 51 Ill. 243; Joseph v. Holt, 37 Cal. 250. The following agreements have been held too uncertain to admit of specific enforcement: Marriage articles drawn by a Jewish rabbi in an obscure manner, but after a form said to be in use among the German Jews (Franks v. Martin, 1 Ed. 309); a contract for the sale of land, where a plan to be incorporated into it was not authenticated so as to be free from doubt (Hodges v. Horsfall, 1 Russ. & Myl. 116); an agreement by an actor to perform at a theatre. Kemble v. Kean, 6 Sim. 333, 337. “Independently of the difficulty of compelling a man to act, there is no time stated, and it is not stated in what character he shall act; and the thing is altogether so loose, that it is perfectly impossible for the court to determine upon what scheme of things Mr. Kean shall perform his agreement." A contract for the purchase, by a railway company, of "the land required" for its construction, which also contained stipulations as to roads, culverts, etc., was held too uncertain for enforcement by the lord justices, on appeal. Lord James Stuart v. London & North-Western Railway Co., 1 DeG. M. & G. 721, per KNIGHT BRUCE, L. J. "The language is too vague, too uncertain, too obscure to enable this court to act with safety or propriety." The M. R., in 15 Beav. 513, had held that a surveyor going on the ground with the contract before him could ascertain accurately the land to be taken, and therefore the terms were sufficiently certain to be enforced. Also, an agreement drawn in general terms for the construction of a railway, according to the terms of a specification to be prepared by the engineer of the company for the time being, was held too vague,

SEC. 160. If the terms of a contract are contradictory and conflicting with each other in their effect, and when there are two different agreements between the parties concerning the same subject-matter, the necessary result is an uncertainty which prevents a court of equity from decreeing a specific execution.(1) The doctrine that where an agreement is uncertain a specific performance will be refused, is applied by the courts, it would seem, with more vigor against assignees and representatives of the original contracting parties than against those parties themselves.(2)

SEC. 161. Where the terms which the parties have expressed in their contract are general, and the subordinate details will be supplied or inferred by the law, the agreement will thereby be rendered sufficiently certain; the vagueness and obscurity, which might result from the generality of the express provisions, are obviated by the legal implications. (3) The rule in this respect is the same as that concerning the analogous quality of completeness. The principle of the maxim, est certum est quod reddi certum potest, will often remove the objection of uncertainty which might otherwise have been fatal. If

obscure, and uncertain to be enforced. South Wales Railway Co. v. Wythes, 5 DeG. M. & G. 880. Also an agreement, in very general terms, to give the plaintiffs accommodations for the sale of their articles in the refreshment rooms of the defendants, and to furnish them with the necessary appliances. Paris Chocolate Co. v. Crystal Palace Co., 3 Sm. & Gif. 119; Williamson v. Woolton, 3 Drew. 210; Smith v. Ankrim, 13 S. & R. 39; Harnett v. Yielding, 2 Sch. & Lef. 549; Tatham v. Platt, 9 Hare, 660; Taylor v. Gilbertson, 2 Drew. 391; Holmes v. Eastern Co. Ry. Co., 3 K. & J. 675; Sturge v. Midland Ry. Co., W. R. (1857-8) 233; Wilson v. Northampton, etc., Railway Co., L. R. 9 Ch. 279: Hood v. North-Eastern Railway Co., L. R. 5 Ch. 523

(1) Callaghan v. Callaghan, 8 Cl. & Fin. 374 ; Taylor v. Portington, 7 DeG. M. & G. 328. In the latter case an offer was made by an intended lessee to take a house for a specified term, at a specified rent, if it was put into thorough repair— and the offer went on to state that the drawing-rooms would be required to be handsomely decorated, according to the present style, and added some further requirements as to the painting--the offer was accepted. The court of appeals held that the provisions in the contract concerning the repairs were indefinite and apparently incongruous--at all events the vagueness and uncertainty were such that the agreement could not be specifically executed.

(2) Kendall v. Almy, 2 Sumn. 178; Montgomery v. Norris, 1 How. (Miss.) 499. (3) South Wales Ry. Co. v. Wythes, 5 DeG. M. & G. 8SS, per TURNER, L. J. In Sanderson v. Cockermouth, etc., Ry. Co., 11 Beav. 497, a contract between the railway company and a land owner to make such roads, ways, and steps for cattle as might be necessary, was held capable of being performed, after the company had taken possession of the land and built their railway. See, also, Parker v. Taswell, 4 Jur. (N. S.) 183, per STUART, V. C. See, for example, as to the force of the covenant that the party "would settle." Lee v. Lee, L. R. 4 Ch. D. 175, per JESSEL, M. R.