tended to be the commencement of the term, there the contract is incomplete, because a material item in it is entirely wanting. (d)

§ 360. Where A., being lessee of a house and shop for the unexpired residue (fifty-nine years) of a term of eighty years, agreed to sub-let the premises to B. (who did not know the nature of A.'s interest) at a fixed yearly rent, but the duration of the under-lease was not specified in the contract, and B. went into and remained in possession, and laid out money in improving the premises, and ultimately, when the head lease had still twenty years to run, brought his action for specific performance of the contract; it was held, by Bacon, V. C., that B. was entitled to an under-lease for the whole of the residue of the term, less one day; and the court of appeal affirmed the plaintiff's right to an under-lease of defined duration, though they varied the vice-chancellor's decision by directing A. to grant an under-lease for the residue of the term, less one day, if the plaintiff should so long live. (e)

(d) Blore v. Sutton, 3 Mer, 237 (where it does not appear that the memorandum bore any date); Nesham v. Selby, L. R 13 Eq., 191; 7 Ch., 406; Cartwright v. Miller, 36 L. T., 398. See, too, Southern v. Harriman, 14

W. R., 487; reversing S. C., 12 W. R., 704;
Dolling v. Evans, 15 W. R, 394

(e) Kusel v. Watson, 11 Ch. D., 129. Cf. Browne v Warner, 14 Ves, 156; Re King's Leasehold Estates, L. R 16 Eq., 521; Wood v. Beard, 2 Ex. D., 30.

CHAPTER IV.

OF THE UNCERTAINTY OF THE CONTRACT.

§ 361. It is obvious that an amount of certainty must be required in proceedings for the specific porformance of a contract greater than that demanded in an action for damages. For to sustain the latter proceeding, the proposition required is the negative one, that the defendant has not performed the contract-a conclusion which may be often arrived at without any exact consideration of the terms of the contract; whilst in proceedings for specific performance it must appear not only that the contract has not been performed, but what is the contract which is to be performed. It is, perhaps, impossible to lay down any general rule as to what is sufficient certainty in a contract; but it may be safely stated that the certainty required must be a reasonable one, having regard to the subject-matter of the contract, (a)' and the circumstances under which and with

(a) See Arist. Eth. Nic. lib. i., c. 3.

1 Notwithstanding the terms of a contract are general, yet equity will enforce it if the law supplies the details; but it will not do so if details are omitted which the law cannot adopt. Ridgway v. Whorton, 6 House of Lords, 285; Nichols v. Williams, 22 N. J. Eq., 63; Tiernan v. Gibney, 24 Wis., 190; Clark v. Clark, 49 Cal., 586; Riley v. Farnsworth, 116 Mass., 223; Picket v. Merchants' Nat. Bank, 32 Ark, 346. An agreement did not call for a deed with full covenants. Held, that the vendee was only entitled to a good deed to convey the title in fee simple. Lounsberry v. Locander, 25 N. J. Eq., 554; Thayer v. Torry, 37 N. J. Law, 339.

Agreement to convey good title.] A covenant to convey a "good title," does not necessarily entitle the party to a warrantee deed, a "good title" being effectually vested in him by a quit claim deed. Gazeley v. Price, 16 John., 267; Potter v. Tuttle, 22 Conn., 512; Kyle v. Kavanaugh, 103 Mass., 356; contra, Hoback v. Kilgores, 26 Gratt., 442.

Tax assessments.] The vendee is liable for tax assessments levied subsequent to the sale, where real property is sold, and a title bond given. Hall v. Denckla, 28 Ark., 506.

Time of completion may be implied.] This may be done from the nature or condition of the subject-matter of the contract. McKay v. Carrington, 1 McLean, 59; Hoyt v. Tuxbury, 70 Ill., 391.

Contract to convey land; rule as to certainty.] The certainty required for the specific performance of an agreement to sell land, refer's as well to the description of the property as to the estate to be conveyed. O'Brien v. Pentz, 48 Md.,

562; Shriver v. Seiss, 49 id., 384; Shakspeare v. Markham, 10 Hun, 311; Cox v. Cox, 59 Ala., 591.

Precision in contracts.] The following cases should be consulted under this head: Colson v. Thomson, 2 Wheat., 336; Carr v. Duval, 14 Pet., 77; Kendall v. Almy, 2 Sumn., 278; Bowen v. Waters, 2 Paine, 1; Morrison v. Rossignol. 5 Cal, 64; Minturn v. Baylis, 33 Cal., 129; Miller v. Cotton, 5 Ga., 341; Fitzpatrick v. Beatty, 6 Ill. (Gilm.), 454; Burk v. Creditors, 9 La. An., 57; McMurtrie v. Bennette, Harr. Ch. (Mich.), 124; Montgomery v. Norris, 2 Miss. (How.), 499: Rockwell v. Lawrence, 6 N. J. Eq. (2 Halst), 190; Lockerson v. Stillwell, 13 N. J. Eq. (2 Beas.), 257; Waters v. Brown, 7 J. J. Marsh., 123; Goodwin v. Lyon, 4 Port. (Ala.), 297; Madeira v. Hopkins, 12 B. Mon., 593; Graham v. Call, 5 Munf., 396; Aday v. Echols, 18 Ala., 353; Sheid v. Stamps, 2 Sneed. (Tenn.), 172; Agard v. Valencia, 39 Cal., 292; Talman v. Franklin, 3 Duer, 395; Lobdell v. Lobdell, 36 N. Y., 327; Wiswell v. Teft, 5 Kans., 263; Long v. Duncan, 10 id., 294; Johnson v. Johnson, 16 Minn, 512: Hardesty v. Richardson, 44 Md., 617, Hyde v. Cooper, 13 Rich. Eq., 250; McKibbin v. Brown, 14 N. J. Eq., 13; Welsh v. Bayard, 21 id, 186; Huff v. Shepherd, 58 Mo., 242; Roundtree v. McLean, Hempst., 245; Lloyd v. Wheatley, 2 Jones, 267; Duvall v. Myers, 2 Md. Ch., 401; Wadsworth v. Manning, 4 id., 59; Clark v. Rochester R. R. Co., 18 Barb., 350; Wright v. Wright, 31 Mich., 380; Odell v. Morin, 5 Oregon. 96; Mehl v. Van der Walleke, 2 Lans., 267; Fott v. Webb, 59 Barb., 38; Munsel v. Loree, 21 Mich., 491; McClintock v. Laing, 22 id.. 212; Allen v. Webb, 64 Ill., 342; Buckmaster v. Thompson, 36 N. Y., 558; Bowman v. Cunningham, 78 Ill., 48; Schmeling v. Hiesel, 45 Wis., 325; Blanchard v. Detroit R. R. Co., 31 Mich., 44; Carson v. Percy, 57 Miss., 97; Matterson v. Scofield, 27 Wis., 671; Reynolds v. O'Neil, 26 N. J., 223; Ring v. Ashworth, 3 Iowa, 452; Cornell v. Mulligan (21 Miss.), 13 Smeed. & Marsh., 388.

Examples of sufficient description of land.] "Land, whereon the vendor resides." The D. G. Roe farm." This is sufficient, provided it can otherwise be sufficiently identified. Simmons v. Spenill, 3 Jones' Eq., 9. "Land lying on the southwest side of Black river, adjoining land of Wm. Hoffland and Martial." Kitchen v. Herring, 7 Ired. Eq., 190. "Land lately bought by A. from B., to wit: a part bounded by the section line running from the northeast corner of said tract to the stake put by C. on the southeast; thence in a due northeast course until it strikes the main road; thence along the said road, then it strikes the northern line of said tract; thence to the beginning." Hooper v. Laney, 39 Ala., 338. Land was located on the south side of a river in a deed, referring to a patent which placed the land on the west side of such river. The identity sufficiently appearing-Held, that the discrepancy was immaterial, Munson v. Davis, 20 Tex., 419. The town in which the land lies need not, of necessity, be stated. Robeson v. Hoonbacker, 3 N. J. Eq., 2 Green, 60. Α contract of conveyance described a right of way, in which the length of the way was not stated; the terminal points were given, and the line of way so fixed as to be readily determinable by the government surveys. Held, sufficient. Puttman v. Haltey, 24 Iowa, 425. The grantor agreed to convey a right of way eighty feet wide over a tract of land, and the grantee subsequently entered and laid out his road with the acquiescence of the grantor. Held, that the contract was sufficiently definite, and that specific performance would be enforced in equity. Purinton v. Northern Ill. R. R. Co., 46 Ill., 297.

Examples of insufficient description of land.] "That a house should be put in repair, and handsomely decorated." Taylor v. Partington, 7 De G. M. & G., 328 "The necessary land for making a railway through the estate." Pearce v. Watts, L. R., 20 Èq., 492. The contract recited that a definite sum was to be paid, on a given day, for 120 acres of land in Shannon county, Mo., provided it shall not have been sold before that time. Miller v. Campbell, 52 Ind., 125; see, also, Lynes v. Hayden, 119 Mass., 482. For the sale of the houses in Smithfield street, without other description, or disclosing to whom they belonged. Hammer v. McEldomney, 46 Pa. St., 334. A. subscribed $50, and a lot to build upon, for the purpose of building a church, without stating the extent or boundaries of the lot. Church of the Advent v. Farrow, 7 Rich. Eq., 378. These were all held to be too indefinite to be enforced. The following cases should be consulted under this head: Camden and Amboy R. R. Co. v.

regard to which it was entered into. (b)' Thus, in one case, where there was a contract between two railway companies,

(b) Marsh v. Milligan, 3 Jur. N. S., 979; (Wood, V. C.)

Stewart, 18 N. J. Eq., 489; McGuire v. Stevens, 42 Miss., 724; Whelan v. Sullivan, 102 Mass, 204; Ellis v. Deadman, 4 Bibb., 467; Johnson v. Craig, 21 Ark., 533; Jordan v. Fay, 40 Me., 130; Graham v. Hendren, 5 Munf., 185; Parish v. Koons, 1 Pars. Eq. (Pa.) Sel. Cas., 79; Jordon v. Deaton, 23 Ark., 704; Ferris v Irving, 28 Cal., 645; Millard v. Ramsdell, Harr. (Mich.), 373; Shelton v. Church, 10 Mo., 774; Prater v. Miller, 3 Hawkes, 628; Copps v. Holt, 5 Jones' Eq., 153; Patrick v. Horton, 3 W. Va., 23; Taylor v. Ashley, 15 Texas, 50; Brakin v. Hambrick, 25 id., 408; Dobson v. Litton, 5 Coldw. (Tenn.), 616; Reynolds v. Warring, You., 346; Day v. Griffith, 15 Iowa., 104; Gelston v. Sigmund, 27 Md., 334; Nichols v. Williams, 22 N. J. Eq., 63; Grace v. Demison, 114 Mass., 16; Martin v. Halley, 61 Mo., 196; Carr v. Passaic Land Co., 22 N. J. Eq., 85; Soles v. Hickman, 20 Pa. St., 180; Kemble v. Kean, 6 Sim., 333; Franks v. Martin, 1 Ed., 309. In Launderson v. Cockermouth R. R. Co., 11 Beav., 497; White v. Herman, 51 Ill., 243, the courts held that they would endeavor to put a reasonable interpretation upon vague expressions in an agreement.

1 Where the terms of a contract are indefinite or uncertain, specific performance will not be decreed. McMurtie v. Bennett, Harring. Ch., 124; Millard v. Ramsdill, id., 373; Colson v. Thompson, 2 Wheat., 336; Walton v. Coulson, 1 McLean, 120; Kendall v. Almy, 2 Sumn., 278; Carr v. Duval, 14 Pet., 79; 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, 297. So where a tenant, holding by a lease under seal, in consequence of a diminution of value in the leasehold property, was about to leave, and the lessor told him that if he would stay he would reduce the rent, without specifying how much, it was held to be so uncertain that equity could not relieve the tenant. Smith v. Ankrim, 1 S. & R., 39. Neither will a contract, to convey a quantity of any land which the obligor may own, be specifically enforced. A specific performance will be decreed only where a specific thing is to be conveyed. Shelton v. Church, 10 Mis., 774. And specific performance of a verbal contract, which is executory and depends on a future event which may never happen, will not be decreed. Bradley v. Morgan, 2 A. K. Marsh., 369. It seems that the rule, that a specific performance will be refused where the contract is vitiated by uncertainty, is applied with more than ordinary stringency against assignees and representatives of the contracting parties. Kendall v. Almy, 2 Sumň., 178; Montgomery v. Norris, 1 How. (Miss.), 499. Though specific performance will not be decreed of a contract uncertain in its terms, yet if the agreement may be made certain, by means of references furnished by the contract, it will be enforced. Prater v. Miller, 3 Hawkes, 628. And in Wiswall v. McGowan, 1 Hoff. Ch., 126, it is said 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. It will be no objection to decreeing specific performance of a part of a contract, that another part is uncertain. So, where A. purchased property of B. at a low price, and agreed to give the children of B. the benefit of it, on being repaid the purchase money and interest, no uncertainty existing in respect to that part of the agreement which provided for the conveyance to the children of B., the court had no difficulty in decreeing performance of that part of the contract, notwithstanding that another portion of the contract was indefinite. Sarter v. Gordon, 2 Hill. Ch., 121. In Andrews v. Andrews, 28 Ala., 432, the objection of uncertainty in the terms of the contract being raised, the court held, that while great certainty and precision in contracts were indispensable prerequisities to their specific performance, in view of the looseness and inaccuracy of the language, which showed that the parties and witnesses were uneducated, and construing the inartificial expressions of the parties by their subsequent declarations, showing the meaning which they attached to the words, the terms of the contract were sufficiently certain.

that the one should have the right of running with their engines, carriages and trucks, and carrying traffic upon the line of the other, Parker, V. C., held that this was not too uncertain to be enforced. (c) "It means," he said, "a reasonable use-a use consistent with the proper enjoyment of the subject-matter, and with the rights of the granting party."(d) And we have already seen that where the terms of the contract are general, but the details are such as the law will supply, the contract will not be considered as objectionable for vagueness and uncertainty. (e) In one case a contract by a railway company with a landowner, to make such roads, ways and slips for cattle as might be necessary, was held not incapable of being performed by the court; but it is to be observed that in this case the company had entered and made the railway.(f) In another case, where a rector had agreed to grant a lease of his glebe, "except thirty-seven acres thereof" (which were not specified), Lord Romilly, M. R., held that the contract was not void for uncertainty, inasmuch as the lessor had a right to select the thirty-seven acres at any time before the execution of the lease. His lordship held, however, that this right must be so exercised as not to interfere with the lessee's beneficial enjoyment of the lands included in the lease. (g)

§ 362. Where the terms of the contract are originally uncertain, but the contract has been acted on, and a user and course of dealing have existed between the parties which gives certainty to what was originally uncertain, the court has, in some cases, had regard to this as removing the original difficulty.(h)

§ 363. The mere fact of indefinite words, such as "et cætera," being used in a contract does not necessarily make it too uncertain for performance. Such words may be understood with sufficient certainty by reference to the words to which they are added and the surrounding facts of the case. (i) Again, where, by the contract for a lease, the ten

(c) Great Northern Railway Co. v. Manchester, Sheffield and Lincolnshire Railway Co., 5 De G. & Sm., 138.

(d) 5 De G. & Sm., 149.

(e) Per Turner, L. J., in South Wales Railway Co. v. Wythes, 5 De G. M. & G., 888; supra, § 349.

(f) Saunderson v. Cockermouth and Workington Railway Co., 11 Beav,, 497; affirmed by Lord Cottenham. See Parker v. Taswell,

4 Jur. N. S., 183 (Stuart. V. C.); S. C., 2 De G. & J., 559, and supra, § 318.

(g) Jenkins v. Green (No. 1), 27 Beav., 437; and see supra, § 329.

(h) Oxford v. Provand, L. R. 2 P. C., 135. See, also, Laird v. Birkenhead Railway Co., Johns., 500.

(i) Cooper v. Hood, 26 Beav., 293; Powell v. Lovegrove, 8 De G. M. & G., 357; Parker v. Taswell, 2 De G. & J., 559.