This contract, together with a deed, which, with one slight misdescription, described the property, were placed by the parties in the Farmers' Bank of Ash Grove. There was also deposited with them a check for $100 signed by Edwards and made payable to the said Farmers' Bank, and drawn on the Bank of Ash Grove. When the three instruments were deposited, they were sealed, by direction of the parties, in an envelope, and the bank officially notified to thus keep them and not exhibit them unless both parties were present. Plaintiff's proof tends to show that he was unable to secure a loan on the land be cause of a patent defect in the paper title. He introduced evidence to the effect that he had arranged to get $2,500 from a Springfield loan agent, and the agent had the money ready on August 21st, but refused to furnish the loan, because of the defect in the paper title. The evidence conclusively shows a fatal break in Killingsworth's paper title, but it likewise tends to show title by adverse possession. It also shows, aliunde the contract, that Killingsworth understood that plaintiff At was relying upon a loan on the premises for of record: as representing the doings of the parties, and placed in escrow. Under well-established rules, we must look to all of the simultaneously executed instruments for the real contract, and if from them all can be gathered a definite and certain contract, i. e., one enforceable in equity, then it is sufficient in form. Y. M. C. A. of Kansas City v. Dubach, 82 Mo. loc. cit. 484; 20 Cyc. (2d Ed.) p. 263. As to what the contract should show and how it may be shown, the Court of Appeals, in Peycke Bros. v. Ahrens, 98 Mo. App. loc. cit. 458, 460, 72 S. W. 151, 152, says: "It is an old practice to put in evidence several papers, as letters, etc., relating to the same contract and by their references to or connections with each other, to establish all the requisites of a proper memorandum under the Brown, Stat. Frauds, 346b et seq.; statute. Heideman v. Wolfstein, 12 Mo. App. 366; Gree ley-Burnham Grocer Co. v. Capen, 23 Mo. App. 301; Cunningham v. Williams, 43 Mo. App. 629; Armsby Co. v. Eckerly, 42 Mo. App. 299; Moore v. Mountcastle, 61 Mo. 424. In making a contract involving the statute of frauds there are three essential and inevitably necessary ingredients: (1) The parties; (2) the subject-matter; and (3) the price. Where any one of these essentials is wanting, there is no contract. Kelly v. Thuey, 143 Mo. 422, 45 S. W. 300; Martin v. Mill Co., 49 Mo. App. 29. The dominating question here is whether or not, if we take the several writings and construe them together as an entirety, they disclose a contract of sale sufficient to satisfy the requirements of the statute of frauds?"" When the three simultaneously executed instruments involved in this case are read, we have no trouble in getting the facts. They show that Killingsworth had sold to Edwards certain described lands for a stipulated price. In other words, they show (1) the parties, (2) the subject-matter of the "Plaintiff offers now to pay into court the full purchase price for the lands in controversy, sale, and (3) the price. Not only so, but they together with six and one-half per cent. inter- further show that Killingsworth was to "preest from the date of the alleged contract to the pare and perfect title," but Edwards was to present time, and asks the court to decree to pay for the abstract which should show him all the right, title and interest which the defendant now has in the lands in controversy." "complete title." It does not show that EdThe evidence does not show that the plain-wards was to pay for perfecting the title, tiff at any time prior to trial tendered the but, on the contrary, "Killingsworth agrees actual cash and demanded delivery of the to prepare and perfect title," clearly expressdeed, but Edwards does testify that he had all arrangements for the money, if defendant had made the perfect paper title. Some of his evidence perhaps goes further than this; but, with the view we have of the case, that portion may be passed, at least for the present. [5] One contention of the respondent is that this contract is too indefinite and uncer ing the idea that the parties recognized that something might have to be done in order that the abstract (which was to be paid for and was paid for by Edwards) might show a "complete title." Taking the instruments together, it is clear that Edwards was to have a reasonable time in which to "perfect loan and abstract." and that this would be after Killingsworth had prepared and perfected tain to be enforced in equity. This question the title. Further along the same line in the is one of the basic matters in the controver-paper called the contract, it is said: sy. Standing alone, the contract paper, or rather the paper called the "contract," is rather vague and indefinite; but is this paper alone to be considered under the facts of this case? We think not. It stands undisputed that three documents, i. e., the contract, the deed, and the check, were executed at one and the same time, and pertained to one and the same matter. Not only so, but "Said deed to land is to be placed in escrow in Farmers' Bank of Ash Grove, and held by said bank until the loan is provided and title finally finished." All this goes to show that it was contemplated that something was to be done to the title, and the first paragraph of the paper shows that Killingsworth was to do this perfecting of title. Not only so, but the fair construction of the contract would be that of the loan. We cannot say that the con- [ in the books as a sound discretion-sound, meantract is too indefinite and vague to be enforced. Was the chancellor nisi justified in not enforcing it? This question we take next. [6] II. Much is said in respondents' brief about the plaintiff's failure to tender the cash and his financial ability to pay. Unfortunately for respondents they rest their cause in equity upon the plaintiff's evidence. At common law a demurrer to the evidence in equity cases was unknown, and in our practice we have treated such action by the defendant as submitting the equities of the whole case upon the proof made by the plaintiff. Of course, if the plaintiff's proof fails, his bill must be dismissed; but if his proof is sufficient he is entitled to a decree granting the relief sought and justified by the evidence. That the defendant refused to "perfect the title" as by the contract he was required to do is apparent. When pressed, he said the title was good enough for him. That it was his duty to make the first move upon this checkerboard is clear, because the missing link in the paper title is apparent. This contract cannot be tortured into one for other than a perfect paper title. The wording of it, by which Killingsworth was bound, shows that a perfect paper title was the one contemplated by the parties. Plaintiff could not move under the contract until Killingsworth first moved. The contract contemplated a loan to secure the purchase money, or a part of it, and this could not be made until Killingsworth perfected the title. All this clearly appears in the evidence. Killingsworth was the party at fault from first to last. His reasons are immaterial. It may have been he thought, as suggested in the brief, that the price was lower than it should have been, but what he thought is immaterial, absent proof of inadequate price. [7] There is no question in the case of fraud or overreaching. The parties were dickering about the trade for several weeks prior and dealt with each other at arm's length. Plaintiff offered in his bill and again offered at the trial to put up the consideration, and asked that the deed be ordered corrected in a slight particular as to two acres of the land. We can see no good reason for refusing to enforce this contract. Our Brother LAMM has so elegantly expressed my views of when contracts should be enforced in equity that I leave the rule he announced to be reannounced in his own language. In Kirkpatrick v. Pease, 202 Mo. loc. cit. 493, 101 S. W. 657, he says: ing judicial. The right doctrine is elegantly Put by Wagner, J., thus: 'A bill for the specific performance of a contract is not granted as a matter of right by the court to which it is addressed, but from a just and reasonable discised in an arbitrary or capricious manner, cretion. But this discretion is not to be exerbut is to be governed by sound legal rules and principles. If, upon a whole view of the facts and circumstances, the court shall be of the opinion that the contract is fair, just, and equitable, it will use its extraordinary authority and decree specific performance; but if, on the contrary, it appears inequitable and unjust, the remedy will be denied and the party left to his action at law. Ivory v. Murphy, 36 Mo. loc. cit. 542. Courts of justice sit to enforce the law. Now, the law may be said to be a general rule of action-a rule of civil conduct preA scribed by the supreme power in a state. contract is but a rule of action binding upon the parties thereto-i. e., a contract is but a law unto the parties thereto. Therefore courts sit to enforce contracts-not to abrogate them. W. 969]; Kilpatrick v. Wiley, 197 Mo. loc. Evans v. Evans, 196 Mo. loc. cit, 23 [93 S. sit. 172 [95 S. W. 213]. If (for instance) the bargain in this instance was overkeen and unjust, or if the party against whom specific perdisability and had been overreached, then (or formance was sought was laboring under some in similar cases) there would be something for the discretion of the chancellor to take hold ofBut, absent something binding his conscience. any earmarks of unfairness, overreaching, or overkeenness (as here), and present a fair, just real estate contract (as here), to deny a specific performance is to wound and vex the soul of equity itself." There are no earmarks of unfairness, over reaching, or overkeenness in this contract or in this transaction. So far as the record speaks, this is a just and fair real estate contract. On the record the court nisi should have decreed title in plaintiff upon the payment of the purchase price and interest, and should have charged the defendant with rents and profits. The judgment will therefore be reversed, and the cause remanded, with directions to the trial court to enter a decree vesting the title to the land by its proper description in the plaintiff upon his payment into court, within a reasonable time to be fixed by the court, of the purchase price from August 15, 1908, at 6 per cent., less such sum as the court may find upon a hearing upon that one issue to be the reasonable rents and profits of such land from that date to the time of the trial on the one question of rents and profits. stated in the contract with interest thereon Judgment reversed, and cause remanded, with the direction aforesaid. All concur. STATE ex rel. JOURNAL PRINTING CO. v. DREYER, Mayor, et al. (No. 14217.) (St. Louis Court of Appeals. Missouri. June 2, 1914. Rehearing Denied June 17, 1914.) "Finally, we are asked to sustain the judgment because specific performance is not a matter of absolute right, but rests in the discretion of the chancellor. In a sense specific performance does rest in the discretion of the chancellor. But discretion does not mean ca- 1. price. A discretion measured by a capriciously elastic yardstick would present a false measure In view of Rev. St. 1909, § 1864, expressof equitable right. This discretion is spoken of ly extending to mandamus the Code provisions MANDAMUS (§ 160*)-AMENDMENT OF PLEADING-STATUTE. as to amendment, it was proper to permit | 7. MANDAMUS (§ 148)-Nature of GROUNDSamendments to the alternative writ in manda- PARTIES ENTITLED TO RELIEF-INTEREST. mus, which is regarded as the first pleading therein. [Ed. Note.-For other cases, see Mandamus, Cent. Dig. §§ 326-335; Dec. Dig. § 160.*] 2. MANDAMUS (§ 187*)-REVIEW-NATURE OF PROCEEDINGS. Mandamus is a civil proceeding in the nature of an action at law, and the findings of the trial court as to the facts, when supported by any substantial evidence, cannot be disturbed on appeal. [Ed. Note.-For other cases, see Mandamus, Cent. Dig. §§ 427-437; Dec. Dig. § 187.*] A printing company, one of the only two able to do the work, and which had submitted bids for city printing, which, under ordinances, was required to be awarded to the lowest and best bidder, which showed that the award had been made regardless of the lowest and best bid, fraudulently, collusively, in bad faith, and as a reward for political services, had such a special and peculiar interest in the performance of their public duty by the common council that it might, as a private party, maintain mandamus to compel them to rescind their award and reaward the contract to it as the lowest and best bidder. 3. MANDAMUS (8 173*)-PROCEEDINGS-FIND- Cent. Dig. § 289; Dec. Dig. § 148.*] [Ed. Note.-For other cases, see Mandamus, INGS. In mandamus to compel the common council of a city to award the contract for city printing to relator as the lowest and best bidder, where the court below found in accordance with the evidence that relator and the defendant newspaper, to which the contract had been awarded, were both newspapers of general circulation and sufficient for the publishing of the matter included in the contract, the defendants could not object to the court's failure to make a specific finding relative to their comparative circulation. [Ed. Note.-For other cases, see Mandamus, Cent. Dig. 88378-380, 388-390; Dec. Dig. 8 173.*] 4. MANDAMUS (§ 27*)-SUBJECTS OF RELIEF MINISTERIAL DUTY. The office of the writ of mandamus is, in general, to compel the performance of a mere ministerial duty. [Ed. Note. For other cases, see Mandamus, Cent. Dig. § 63; Dec. Dig. § 27.*] 5. MANDAMUS ($ 84*)-SUBJECTS OF RELIEF MATTERS OF DISCRETION-ACTS OF MUNICIPAL OFFICERS. The common council of a city whose ordinances required the letting of all contracts involving $200 or more to the lowest bidder, who awarded a contract for city printing amounting to more than $200 to defendant newspaper, the highest bidder, in bad faith and without the exercise of their official discretion, or an honest purpose to award it to the lowest and best bidder, arbitrarily and in collusion with the defendant as a party reward for political services, might be required by mandamus to rescind the contract, and award it to the lowest and best bidder, under the general rule that mandamus will lie to correct or control the action of administrative officers and bodies, notwithstanding their official discretion, where they have, in fact, refused to exercise such discretion in a lawful manner, impartially, and in good faith, or have palpably abused it. - ALLEN, J. This is a mandamus proceeding instituted in the court of common pleas of the city of Hannibal. From a judgment awarding a peremptory writ in favor of relator, certain defendants have appealed to this court. The relator is a corporation engaged in printing and publishing a daily newspaper in the city of Hannibal known as the Hannibal Morning Journal, and in conducting a general printing business in said city. The defendants are the mayor of said city, the 12 aldermen composing the city council thereof, and the Courier-Post Publishing Company, the latter also being a corporation engaged in printing and publishing in such city a daily newspaper known as the Hannibal CourierPost, and in conducting a general printing business. said city. of a contract to do certain city printing for The controversy pertains to the awarding [Ed. Note.-For other cases, see Mandamus, the city of Hannibal, to wit, the publication Cent. Dig. §§ 180-183; Dec. Dig. § 84.*] and printing of the annual report of the au6. MUNICIPAL CORPORATIONS (§ 240*)-CON-ditor of said city, the proceedings of the city TRACTS FOR PUBLIC WORK BIDS REJEC- council, the various ordinances and resoluTIVE. tions passed by the latter, and various "loWhere the right to reject all bids is ex-cals" and notices pertaining to the affairs of pressly reserved by municipal officers, they cannot act arbitrarily or capriciously, or through favoritism or collusion, or in bad faith, there- It appears that the ordinances of the city by abusing the discretion reposed in them or require its council to let all contracts for failing to exercise it; and, although the con-work and material involving $200 or more, tract may be bona fide awarded to another than the lowest bidder, such bidder has the where the city is a party, to the lowest and right to fair consideration and to avoid an best bidder; the city advertising for such award corruptly and collusively made to anbids at least three days before the same are other. opened. In the instant case it appears that [Ed. Note.-For other cases, see Municipal Corporations, Cent. Dig. § 672; Dec. Dig. the city clerk, whose duty it was so to do, 240.*] caused advertisement to be duly made on years. not higher, have been in existence all these Journal, a paper published in the city of HanniWe also find the Hannibal Morning bal, Mo., has had the city printing at the above times when the Democrats had charge of the city affairs. June 25, 1913, and for seven days thereafter, | prices for the city printing at present time, if to the effect that sealed proposals would be received at his office up to noon of July 7, 1913, for the doing of certain city work for the following ensuing fiscal year, including "publishing council proceedings, auditor's report, all local notices and ordinances"; that in compliance with said advertisement the relator, Journal Printing Company, duly submitted its sealed bid for doing the aforesaid publishing and printing for the year in question, as follows: "Council proceedings, two (2) cents per line. "Locals, notices, and resolutions, three (3) cents per line first insertion, and for each following insertion two (2) cents per line. "Ordinances, twenty-five (25) cents per inch. "Auditor's annual report, twenty-five (25) cents per inch, including 200 copies in pamphlet form." Likewise the defendant Courier-Post Publishing Company, pursuant to the advertisement aforesaid, submitted its sealed bid for doing such publishing and printing as follows: "Council proceedings, 6 cents per line per insertion. "Locals and reading notices, 7 cents per line per insertion. "Now the Journal comes to us and says: You are paying from $1,000 to $2,000 more per year for this printing than it is worth. Why was it necessary for the Hannibal Morning Journal printing 4 years out of 5, at this late day to run all these years, they doing the city make this discovery? Was it that the Democratic organ discovered that the affairs of the city would be in hands of a Republican administration for several years? Now they come in as an informer and wish you to consider theirs as the best and lowest bid; and the informer must always have his price-in this case the city printing. "If the Journal Printing Company will return to the city what they now declare excessive prices for city printing, that for the greater part of 20 years they have taken from the city, they may be in a position to justify their position. Until they do so, their claims can have no weight. "In all advertising one must consider the medium used. In the matter of the city publication we want the greatest publicity; for complete information of the council's action .is due all the people. Such being the case, we must consider which of the two bids is the lowest and best, not from the mere amount stated in the bids, and we find, in our judgment, that taking into consideration all points of view, that the Courier-Post is the best medium to convey this information to the citizens and has the largest circulation, we believe, and the CourierPost's is the lowest and best bid. "Resolutions, 8 cents per line per insertion. "Ordinances, 72 cents per inch. "Auditor's report, 50 cents per inch, which will include furnishing 200 books of same." These were the only bids received. In fact it appears, and so the trial court found, that there were "only two printing and publishing "Now, we, the committee, after due considerconcerns in said city, to wit, relator and said ation, find that this is only another case of During all the defendant publishing company, who constitut- Whose ox is being gored.' years when the printing was being done by the ed the only two possible bidders for said Democratic organ, the scale of prices ranging printing." These bids were opened in the about 20 per cent. more than those now of council on July 10, 1913, and thereupon it fered by the Courier-Post were in effect, and were deemed fair and equitable; but now that was moved by one member of the council that the administration is in the hands of the Rethe contract be awarded to the relator. An- publicans, and certainly will so continue for other member, however, moved, as a substi- the next 2 years, the hue and cry is raised that tute, that the matter be referred to the the city is wasting the people's money in considfinance committee of the council, "with pow-low those so long used, and are confronted by a ering a bid at the rates about 20 per cent. beer to act." The latter motion prevailed, but, on motion to reconsider the same, the matter was referred to the finance committee "to re port." To an understanding of the facts presented by this record, and here involved, it should be stated that, of the 12 members composing the city council at the time in question, 9 were, politically speaking, Republicans, and three Democrats. The finance committee was composed of three members, all Republi cans, viz., Aldermen Jones, Mills, and Storrs. After much delay, during which time a caucus was held by the Republican members of the council relative to the matter, at which it appears that the defendant publishing company was represented by counsel, a report was made to the council by a majority of the members of the finance committee as follows: "We, your committee, to whom was referred the bids for city printing, beg leave to report we find, after due investigation, that the Democratic party has been in charge of the administration of city affairs 4 years out of 5 for the bid from the said Democratic paper said to be a saving of something like $1,000 to $2,000 per extortionate, why should we not consider the year. Now, if the bid of the Courier-Post is work done for the city by the Hannibal Morning Journal Company for the past 20 years, and is it not pertinent to take measures and to redifference in present bid and price paid for work quest the refund from the said paper of the done by them for the city in the past 20 years? "Why should it take the Journal all these years to discover the perversion of the city funds? If such be the fact, they should be first to offer to return extortionate prices. "We, your committee, recommend that the contract for the city printing for the ensuing year be awarded to the Courier-Post Publishconsider the best bid." ing Company and the paper presenting what we This report was prepared by Mr. Jones, of the finance committee, after obtaining legal advice with respect to his own personal liability in the premises, and was signed by him and Mr. Mills. Mr. Storr, the other member of the committee, refused to sign it. Upon such report being made, the same was approved, and the contract awarded to the of seven to five; two of the Republican members of the council, Mr. Bender and Mr. Storr, voting with the three Democratic members against the adoption of the report and the said awarding of the contract. At this meeting of the council the relator gave notice to the effect that, unless the contract was awarded to it, the matter would be contested. Thereafter, and before a written contract had been executed between the city and the Courier-Post Publishing Company, the relator instituted this proceeding. The petition, after alleging the facts as, in substance, set out above, avers, among other things, that the award so made to the Courier-Post Publishing Company "was not made in good faith and for the honest purpose of complying with the law in regard to awarding such contracts to the lowest and best bidder, but was made in collusion by the aldermen who voted therefor and the Courier-Post Publishing Company, for the fraudulent purpose of awarding said contract and printing to defendant company, regardless of its being the highest and worst bidder, and for the purpose of defrauding relator of its rights as a bidder to have its bid fairly considered, and that in so making said award they acted intentionally, wrongfully, arbitrarily, capriciously, for improper reasons, in bad faith, and without any excuse or justification in law or in fact, and that by so doing their said act constituted a fraud on the relator and the citizens of said city of Hannibal;" that the relator's bid was fraudulently refused, and "the said award collusively, capriciously, wantonly, and out of mere favoritism made to the Courier-Post Publishing Company." Upon the filing of the petition the alternative writ of mandamus issued in accordance therewith. Thereafter, during the pendency of motions to quash the alternative writ, which had been interposed, the court permitted the writ, as well as the prayer of plaintiff's petition, to be amended in certain particulars not necessary to be here stated. * * Defendant Storr filed a separate return, setting up that, as alderman, he cast his vote "against the bid of defendant CourierPost Publishing Company * and in favor of relator's bid"; that, "as a member of the finance committee, he cast his vote against the bid of defendant Courier-Post Publishing Company"; and that "he was not a party to or connected with any act or acts of the city council complained of in the relator's writ of mandamus." And he prayed that no peremptory writ be issued against him, and that he be dismissed with his costs. Likewise defendants Hurley, Bender, Fitzpatrick, and Pitts filed "their joint and several answer and return to the alternative writ," wherein they stated "that they considered, and still consider, said bid of said Journal Printing Company to be the lowest and best of said bids; that they were at all are, ready and willing to accept" relator's bid and to award the contract to it; and that "its acceptance would result in a saving to the city of Hannibal of a large sum of money." And they prayed to be discharged with their costs. The defendants Dreyer, Jones, Mills, Turner, Simmons, Walter, Penoyer, and Rutherford filed a joint return, and the defendant Courier-Post Publishing Company its separate return. And other pleadings were filed both by relator and said defendants. These pleadings are lengthy, and their contents need not be set out, for the real issues involved will otherwise sufficiently appear. It may be stated, however, that the contesting defendants set up and rely in part upon a section of an ordinance of the city of Hannibal relative to contracts and supplies which is as follows: "Where work is to be done under the supervision of a special committee, such committee, retain the right to reject any and all bids they and, where there is no committee, the city, shall may see fit." The evidence discloses that relator does not publish a paper on Mondays, nor on certain holidays, to wit, Fourth of July, Labor Day, and Christmas, and when one of these holidays falls on Monday there is no publication of the paper until the following Wednesday morning; and that the Courier-Post Publishing Company issues its paper every day much evidence relative to the circulation of excepting Sundays. Defendants introduced the two newspapers, which will be noticed later in the course of the opinion. Having heard the evidence adduced, the lower court, though not thereto requested, made a finding of facts which, as it is above referred to, need not be fully set out. lengthy and embraces the pertinent facts The court found, however, that: Post Publishing Company were in a strong pros"Both the relator and the defendant Courierperous condition, and were equally equipped with plant, appliances, and other accessories necessary for promptly, accurately, and efficiently cial proceedings of said city, as comprised withprinting and publishing the reports and offiin the said published notice for sealed bids; that both the said Hannibal Morning Journal and Hannibal Courier-Post were at said time, and are, of large and general circulation in said city of Hannibal; and that by reason thereof either of said papers is efficient for the purpose of bringing home to the knowledge of the citizens and taxpayers of said city the official proceedings of said council and of the officers of said city when published therein; that said contract involves largely more than $200, to wit, approximately the sum of $5,000; that said dinances of said city, the official discretion, if mayor and said city council have, under the orhonestly exercised, to reject any and all bids submitted for city supplies and work; that the majority of said finance committee, in making their finding that the said bid of the defendant Courier-Post Publishing Company was the lowest and best bid, did not act in good faith, but that their said finding was colorable, and was made in collusion with the defendant CourierPost Publishing Company and other members of the said city council for the fraudulent purpose |