a term vague, obscure, or imperfect in its language can be made certain by means of references by itself or by other portions of the agreement, the requirements of the rule are fully satisfied and a specific performance will be granted.(1) If an agreement consists of two parts which are separable, so that one portion could be enforced by itself, it will be no objection to a specific execution of one such part that the other is too uncertain to admit of the same remedy.(2) Parol evidence, however, is only admissible to a very limited extent, and for purposes well defined and limited. It cannot be used to supply any gap or omission in the terms of a written contract; it is strictly confined, in cases where no fraud, mistake, or other equitable incident of a similar character is alleged, to the function of explanation, and of exhibiting the surrounding circumstances, as is permissible in the interpretation of all written instruments.(3) Parol

(1) Prater v. Miller, 3 Hawkes, 628. In Wiswall v. McGowan, 1 Hoff. Ch. 126, it was held that where a contract refers to the subject-matter by vague and insufficient description, the defect may be supplied by other documents coming from or adopted by the party against whom the contract is to be enforced, pending, and connected with the transaction. As to the use of parol evidence in explaining an uncertain contract, see Fowler v. Redican, 52 Ill. 405.

(2) Sarter v. Gordon, 2 Hill Ch. 121. A. had purchased of B. certain property at a low price, and agreed, among other things, to convey to the children of B., on being repaid the purchase-price and interest. Although the agreement contained other provisions, which were held too uncertain to admit of equitable relief, this provision for the conveyance to B.'s children was held separable and certain, and a specific performance of it was decreed.

(3) Parkhurst v. Van Cortlandt, 1 Johns. Ch. 273; 14 Johns. 32; Talman v. Franklin, 3 Duer, 395; 4 Kern. 584; Foote v. Webb, 59 Barb. 38; Lobdell v. Lobdell, 36 N. Y. 327; Buckmaster v. Thompson, 36 N. Y. 558; Waring v. Ayres, 40 N. Y. 357; Seitzinger v. Ridgway, 4 W. & S. 472; Soles v. Hickman, 8 Harris, 180; Nichols v. Williams, 7 C. E. Green, 63; Stoddert v. Tuck, 5 Md. 18; Baker v. Glass, 6 Munf. 212; Graham v. Call, 5 Munf. 396; Willis v. Forney, 1 Busbee Eq. 256; Aday v Echols, 18 Ala. 353; Jordan v. Deaton, 23 Ark. 704; Sheid v. Stamps, 2 Sneed, 172; Madeira v. Hopkins, 12 B. Mon. 595; Munsell v. Loree, 21 Mich. 491; McClintock v. Laing, 22 Mich. 212; Farwell v. Lowther, 18 Ill. 253; Taylor v. Williams, 45 Mo. 80; Minturn v. Baylis, 33 Cal. 129. In Parrish v. Koons, 1 Park. Eq. Cas. 79, the doctrine is so carefully examined and stated that I shall quote from the opinion, especially as its conclusions require, I think, to be taken with some limitation: "To constitute an adequate written agreement for the sale of lands within the statute, it is necessary that it should state the terms of the contract with reasonable certainty, so that the substance of it can be made to appear and to be understood from the writing itself, without having recourse to parol proof. An agreement defective in certainty cannot be supplied by parol proof, because that would at once open the door to perjury, and introduce all the mischiefs which the statute was intended to prevent. A contract cannot rest partly in writing and partly in parol. Unless the essential terms of the bargain and sale can be ascertained from the writing itself, or by a reference contained in

evidence may always be resorted to for the purpose of explaining the position of the parties and of the subject-matter and other surround

it to something else, the writing is not a compliance with the statute. Parkhurst v. Van Cortlandt, 1 Johns. Ch. 273. If a contract be vague and uncertain, a court of equity will not exercise its extraordinary jurisdiction, uut will leave the party to his legal remedy. Colson v. Thompson, 2 Wheat. 341; Abeel v. Radcliff, 13 Johns. 297. In Reed's Heirs v. Hornback, 4 J. J. Marsh, 377, it was ruled that specific execution of a contract will not be enforced unless the parties have described and identified the particular tract, or unless the contract furnishes the means of identifying with certainty the land to be conveyed. Other American cases on the doctrine will be found in Ellis v. Deadman's Heirs, 4 Bibb. 467; Kendall v. Almy, 2 Sumn. 278; Carr v. Duval, 14 Peters, 77. And whether the instrument from which the contract is sought to be deduced is a receipt for a deposit, earnest or purchase-money, it must contain the same requisites to bring it within the statute. In Blagden v. Bradbear, 12 Ves. 466, it was held by the M. R., that although an auctioneer's receipt for the purchase-money may amount to a sufficient note or memorandum of an agreement within the statute, yet, for that purpose, the receipt must contain within itself, or by reference to something else, what the agreement is. This doctrine had previonsly been strongly intimated by Lord ELDON, in Coles v. Trecothick, 9 Ves. 252, 253. The application of these principles to the case before the court seems decisive against the plaintiff. The only written memoranda of the original contract are found in the defendant's proposal and the plaintiff's receipt, which are considered by the plaintiff as forming one instrument. The absolute insufficiency of these documents, to constitute any definite contract of themselves, appears best from simply reciting them. They are as follows: The most is 3,700, subject to 3,000 mortgage No taxes or other liens (except the mortgage), will be allowed. Received ten dollars on account of the purchase. The mortgage to be removed from the Fifth street lot as soon as the title is made, without delay. R. A. Parrish, for Isaac Koons, R. T.' Can anything be extracted from such papers from which a court of chancery can advisedly decree a specific performance? Where is the estate bargained for? What is the quantity of land to be conveyed? What is the kind of estate to be conveyed? Without associating these papers with the parol evidence in the case, it is impossible to extract anything intelligible from them. This is, as has been seen, wholly inadmissible. Every agreement which is required by the statute of frauds to be in writing, must be certain in itself, or capable of being made so by reference to something else whereby the terms can be ascertained with reasonable precision, or it cannot be carried into effect." Although this decision was probably correct upon the facts, yet the general doctrine is stated somewhat too broadly, and in a manner hardly reconcilable with several of the recent cases, American and English, quoted in the present section, and in that which treats of "Completeness." It is not strictly accurate to say that the subject-matter must be absolutely certain from the writing itself, or by a reference to some other writing. The true rule is, that the situation of the parties and of the surrounding circumstances, when the contract was made, can be shown by parol evidence, so that the court may be placed in the position of the parties themselves; and if then the subject-matter is identified, and the terms appear reasonably certain, it is enough. The question, what kind of estate is conveyed? is answered by the rule that in an agreement to convey, silent in respect to the estate, it is implied that the vendor is to convey the whole estate which he has--the fee.

ing circumstances at the time of concluding the contract, so that the court may be put into the position of the parties, may see with their eyes, and may understand the force and application of the language employed by them. In this manner the subject-matter may always -as in the interpretation of a will or a deed-be ascertained and identified. For example, a contract by which the vendor agreed to sell "my mill," or even "the mill," would be made sufficiently certain, and the subject-matter clearly identified, by proof, that at the time the vendor owned a mill and but one mill. Such a description would then be as unmistakable as the most elaborate method of fixing and locating the structure. In fact, however detailed the description, there must always be a resort to some parol evidence, either in the form of direct proof, or of tacit admission or assumption by the parties.(1)

SECOND GROUP.

Those incidents and qualities which do not primarily involve the validity of the contract, but which directly affect the right to the equitable remedy upon the principle that he who seeks equity must do equity.

SECTION VII.

The contract must be mutual.

SECTION 162. The requisite of mutuality, taken in its most general sense, includes both a mutuality of legal right and a mutuality in the equitable remedy. So far as it relates to the legal rights of the parties, this quality belongs more properly to the class discussed in the preceding sections, since it may directly affect the validity of

(1) Fish v. Hubbard, 21 Wend. 652; Robeson v. Hornbaker, 2 Green Ch. 60; Aldridge v. Eshleman, 10 Wright, 420; Barry v. Coombe, 1 Peters, 640. In the last-named case the description of the property sold was "your half E. B. wharf.” In a suit for a specific performance, the uncertainty of this description being urged as a defense, the court said: "That for anything which appeared on the face of the instrument, 'E. B. wharf,' may be as definitive a description of locality as 'F. street;' and then there would be no ambiguity, unless the vendor had more than one house on F. street." See, however, the case of Hammer v. McEldowney, 10 Wright, 334, where the court refused to enforce a contract for the sale of "the houses on Smithfield street," although it was shown that the defendant owned two houses on that street, and no more. There were, however, some other circumstances which the court thought rendered the contract uncertain as to the amount of the land intended to be sold; but the case stands in marked opposition to the general current of authority upon this subject.

contracts. Practically, however, it is the mutuality in the right of the respective parties to the equitable remedy with which we are more immediately concerned in cases of specific performance, and this has no necessary connection with the legal validity of the agreement. For this reason, and to avoid a useless repetition, I shall depart somewhat from a strictly logical arrangement, and discuss the entire subject in the present connection.

SEC. 163. It has been frequently laid down as the general rule governing cases of specific performance, although, as will be seen, there are many exceptions, that, as a condition to granting the equitable relief, the contract must be mutual in both the senses above described; that is, the contract must be of such a nature that both a right arises from its terms in favor of either party against the other, while the corresponding obligation rests upon each towards the other; and also that either party is entitled to the equitable remedy of a specific execution of such obligation against the other contracting party. It is not then sufficient, in general, that a valid and binding agreement exists, and that an action at law for damages will lie in favor of either party for a breach by the other; the peculiarly distinctive feature of the equitable doctrine is, that the remedial right to a specific performance must be mutual. If, therefore, from the nature or form of the contract itself, from the relations of the parties, from the personal incapacity of one of them, or from any other cause, the agreement devolves no obligation at all upon one of the parties, or if it cannot be specifically enforced against him, then and for that reason he is not, in general, entitled to the remedy of a specific performance against his adversary party, although otherwise there may be no obstacle arising, either from the terms of the contract or from his personal status and relations, to an enforcement of the relief against the latter individually.(1)

(1) Bromley v. Jefferies, 2 Vern. 415; Rogers v. Saunders, 16 Me. 92 ; Benedict v. Lynch, 1 Johns. Ch. 370; German v. Machin, 6 Paige, 288; Woodward v. Harris, 2 Barb. 439; Phillips v. Berger, 2 Barb. 611; 8 Barb. 527; Bodine v. Glading, 21 Pa. St. 50; Duvall v. Myers, 2 Md. Ch. 401; Tyson v. Watts, 1 Md. Ch. 13; 7 Gill. 124; Beard v. Linthicum, 1 Md. Ch. 345; McMurtrie v. Bennette, Harring. Ch. 124; Hawley v. Sheldon, Harring. Ch. 420; Cabeen v. Gordon, 1 Hill Ch. 51; Bronson v. Cahill, 4 McLean, 19; Reese v. Reese, 41 Md. 554; Marble Co. v. Ripley, 10 Wall. 339; Meason v. Kaine, 13 P. F. Smith, 335; Geiger v. Green, 4 Gill. 472, 476; Moore v. Fitz Randolph, 6 Leigh, 175. In Duvall v. Myers, supra, this general doctrine was thus stated by the court: “The right to a specific execution of a contract, so far as the question of mutuality is concerned, depends upon whether the agreement itself is obligatory upon both parties, so that upon the application of either against the other, the court would coerce a specific per

SEC. 164. Among the most frequent illustrations of this doctrine, a contract between an infant and an adult cannot be specifically enforced; because, as the remedy will not be decreed against the infant, it cannot be awarded in his favor.(1) Where a vendor had, at the time of making the agreement, no estate in the land which he contracted to convey, so that a specific performance could not then be enforced against him, this want of mutuality in the remedy furnishes a sufficient defense to the purchaser against any suit which may be brought by the vendor after he has obtained the title.(2) There is, also, a large class of contracts in which the stipulations on the part of the plaintiff provide for the doing of personal, confidential, or continuous acts, such as the discharge of official or quasi-official duties, the performance of fiduciary functions, like those of agency, the construction, maintaining, or operating of railways and other works of a similarly extensive character, all of which are in general beyond the competency of a court of equity to specifically execute by its decree, while the stipulations on the part of the defendant call for acts of a more simple, single, and direct nature-perhaps, even, the mere pay

formance. A party, not bound by the agreement itself, has no right to cali upon this court to enforce performance against the other contracting party by expressing his willingness in his bill to perform his part of the agreement. His right to the aid of the court does not depend upon his subsequent offer to perform the contract on his part, but upon its originally obligatory character." This doctrine is affirmed by a multitude of judicial decisions; but there are so many wellestablished exceptions, embracing large and important classes of agreements, that the rule of mutuality, especially in respect to the obligation, cannot be called universal. See Richards v. Green, 8 C. E. Green, 32, 35; Justice v. Lang, 42 N. Y. 493. It may be stated, however, as a general proposition, that whenever the contract was intended to bind both of the parties, and for any reason one of them is not bound, he cannot compel performance by the other. See Butman v. Porter, 100 Mass. 337; Sullings v. Sullings, 9 Allen, 234.

(1) Flight v. Bolland, 4 Russ. 298; Blanchard v. Detroit R. R., 31 Mich. 44. It has been held in Ireland, that a contract of sale by a husband and wife as vendors, and a third person as vendee, is not bad for want of mutuality, and may be enforced by the vendors. Fennelly v. Anderson, 1 Ir. Ch. R. 706.

(2) Hoggart v. Scott, 1 R. & My. 293. In a suit for a specific performance brought by the vendors in a land contract, it appeared that a part of the plaintiffs only had agreed to make a good and sufficient title; this want of mutuality in the obligation was held a ground for denying the relief against the vendee. Bronson v. Cahill, 4 McLean, 19. In Tyson v. Watts, 1 Md. Ch. 13, the defendant B. had given the plaintiff A. the right to work as well as to explore the minerals on his farm; but A. was only bound to explore, and not to work the mines. it was evident, from the whole contract, that B.'s main object was to have the mines on his land worked, this absence of mutuality of obligation, in respect to the most important particular, was held to be a defense and reason for not enforcing the contract.

As