tion arose within the jurisdiction of California. The case therefore falls within the operation of section 26, L. O. L., and the defendant should have been permitted to prove that the action is barred by the California statute of limitations. 583 "That for and in consideration of the sum of one dollar ($1.00) paid by the parties of the second part to the parties of the first part, reties of the first part do hereby agree to sell, ceipt whereof is hereby acknowledged, the parassign, transfer and set over unto the parties of the second part one-third of the capital stock * of the corporation * * * to The judgment is reversed, and the cause be issued as hereinafter set out, owned and remanded. MCBRIDE, C. J., and BURNETT and BEAN, JJ., concur. HARRIS, J., took no part in the consideration of this case. (84 Or. 567) HOLTZ et al. v. OLDS et al. * (Supreme Court of Oregon. April 10, 1917.) 1. CONTRACTS 321(4)-AGREEMENT TO PURCHASE STOCK CONDITION PRECEDENT BREACH. Under a contract to purchase from defendants all corporate stock owned by them, "to be issued as hereinafter set out," agreement by defendants therein to make inventory of goods of corporation according to terms, held a covenant and condition precedent to payment, breach of which entitled plaintiffs to recover money deposited with defendants. [Ed. Note.-For other cases, see Contracts, SUPPLEMENTAL AGREEMENT controlled by them, and further agree to keep and perform such other agreements and acts as are herein sct out." Provisions are then made in the instrument for an accurate inventory by the defendants of the stock of goods owned by the corporation as of July 15, 1911, the value of which was to be determined by the cost price portant here. The liabilities of the concern thereof, varied by certain factors not imwere to be deducted, and the remainder was to constitute the basis for preferred stock afterwards to be issued according to a plan formulated by the contract for an increase of the capital stock of the corporation. The instrument then provides that upon a satisfactory showing on or before July 15, 1911, the date set for the transfer of the property, al or state bank in Portland, approved by that the plaintiffs had deposited in a nation the defendants, a sufficient amount of cash or New York exchange in escrow to be paid or delivered to the defendants as the first payment required by the stipulation, "then An agreement to purchase stock providing that purchasers will execute a supplemental and in that case" the parties of the first part agreement satisfactory to sellers guaranteeing purchase, and that buyers and said guarantor on said agreement will deposit satisfactory security to be hereafter determined, is void for uncertainty, in that it fails to specify amount of security. AGREEMENT TO MAKE [Ed. Note.-For other cases, see Contracts, Cent. Dig. §§ 10-15, 17, 19, 20.] 3. CONTRACTS 25 CONTRACT IN FUTURE-EFFECT. An agreement to make a contract in the future is not binding, unless all the terms and conditions are agreed upon, and nothing left to future negotiations. [Ed. Note.-For other cases, see Contracts, Cent. Dig. 88 109-111.] Department 1. Appeal from Circuit Court, Multnomah County; T. J. Cleeton, Judge. Action by Max Holtz and another against William P. Olds and others. Judgment for defendants, and plaintiffs appeal. Reversed and remanded, with directions. would cause the stock of the corporation to be increased to $4,000,000, divided into 40,000 shares of $100 each, of which $1,700,000, more or less, divided into 17,000 shares, more or less, of $100 each, should be preferred stock, it being the intention to authorize and issue preferred stock for approximately $200,000 in excess of the net value of the assets of the corporation. After providing details of the preference of that species of stock the defendants covenanted that they would cause the corporation to issue the same to its stockholders in an amount equal to the net value of the tangible assets of the concern as determined by the rules specified in the contract, and that their common stock should be retired. Then follow these clauses: "It is further mutually understood and agreed by and between the parties hereto that after Mentioned in this litigation is a corpora- such capital stock shall be issued to the prestion called Olds, Wortman & King. For ent stockholders in an amount equal to the net convenience it will be styled the corporation. in provided, that the parties of the first part value of tho tangible assets determined as hereThe individual defendants are William P. for the considerations herein expressed agree to Olds, Hardy C. Wortman, and Charles W. sell, and for the same considerations the parties King, who will be spoken of either as the the total number of shares of the preferred stock of the second part agree to buy, one-third of defendants or by their individual surnames. held by the partics of the first part, and agree The dispute between the parties arises out of to pay for the same in cash or New York exa contract in writing dated March 11, 1911, change acceptable to the parties of the first between the plaintiffs as parties of the sec-dollars ($100.00) per share, and upon such paypart on or before July 15, 1911, at one hundred ond part and the defendants as parties of the ment the parties of the first part will cause to first part, the execution of which is admitted. have delivered to the parties of the second part The corporation is a large and well-known certificates representing one-third of their holdmercantile concern in Portland. The writings of preferred stock properly indorsed accordIng recites: ing to the by-laws of Olds, Wortman & King. "It is further mutually understood and agreed For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes that the parties of the second part do agree to and with the parties of the first part and each of them, that on or before the 15th day of July, 1921, they will purchase from said William P. Olds, Hardy C. Wortman, and Charles W. King, their heirs, executors, administrators or assigns, such preferred stock of the corporation of Olds, Wortman & King as may be in the hands of said parties, or either of them, and further agree that they will pay for the same at the rate of one hundred and ten dollars ($110.00) per share, with all accrued dividends to date of purchase. "The parties of the second part hereby agree that they will cause to be made, executed and delivered to the parties of the first part a supplemental agreement, satisfactory to the parties of the first part, guaranteeing to the parties of the first part that the original issue of preferred stock held by them will be on or before the 15th day of July, 1921, purchased by the parties of the second part hereto, as herein agreed, and the parties of the second part and said guarantors on said collateral agreement will also deposit with the parties of the first part collateral security of a kind and character satisfactory to the parties of the first part, but to be hereafter determined." There are numerous other conditions in the instrument relating to stock in another concern held by the defendants, which are not material to the decision of this case. Near the end of the document appears this pro vision: insure the purchase of the remaining twothirds of the defendants' holdings of preferred stock on or before July 15, 1921, in consequence of which the plaintiffs demanded from the defendants the return of the $20,000 deposited, which was refused. Judgment is demanded for that sum, with interest from July 15, 1911. It is admitted that the defendants refused to return the deposit, but otherwise, except as hereinbefore stated, the complaint was traversed. The answer states a supplemental agreement made March 17, 1911, admitted by the plaintiffs, reciting the contract already mentioned, and providing that the common stock to be issued to the extent of $2,300.000, more or less, on the increase of the capital stock of the corporation, should be transferred to the plaintiffs, and that upon the consummation of the agreement of March 11, 1911, Olds, Wortman, and King would in succession resign as directors of the corporation, to be succeeded by a directorate satisfactory to the plaintiffs. The answer further proceeds substantially to allege the construction placed by the defendants on the original contract, and to impute a default upon the plaintiffs in that they refused to carry into effect that portion of the stipu"It is further mutually understood and agreed lation above quoted providing for the execuby and between the parties hereto that the parties of the second part have this day deposited tion of a supplemental agreement guaranteewith the parties of the first part cash or ap- ing the purchase of the original issue of preproved securities to the amount of twenty thou-ferred stock still held by the defendants on sand dollars ($20,000.00), which cash and approved securities or the value thereof up to the amount of twenty thousand dollars ($20,000.00) shall be forfeited to the parties of the first part as stipulated damages in the event the partics of the second part shall fail to complete their purchase of one-third (%) of the preferred stock to be issued as provided hereunder on or before the 15th day of July, 1911, and in the event the said purchase of onethird (%) of the preferred stock shall be so completed the cash this day so deposited shall apply on account of the purchase price thereof, and in that event the parties of the first part shall allow to the parties of the second part interest on the cash deposited from the date of deposit to the date of the consummation of this agreement at the rate of four (4) per cent. per annum." The substance of the complaint is that the contract was executed, which is admitted by the defendants; and that contemporaneously therewith the plaintiff's deposited with the defendants money and approved securities to the amount of $20,000, to be applied upon the cash payment agreed to be made for the purchase of one-third of the preferred stock of the corporation. The deposit itself is admitted. The plaintiffs then say in substance that they were ready, able, and willing to complete the purchase of one-third of the preferred stock, as stated in the contract, and exhibited to the defendants evidence of that ability; that the "defendants did not require the actual deposit of said sum in cash as a prerequisite for the increase of said preferred stock," but that after prolonged nego- | tiations they and the plaintiffs were unable or before July 15, 1921, and to furnish collat- R. C. Nelson, of Portland (Beach, Simon & BURNETT, J. (after stating the facts as above). The plaintiffs assign as errors: (1) The judgment was erroneous because the facts stated in the answers are not sufficient to constitute a defense; and (2) the court erred in overruling their motion for a directed verdict. The principal ground for this motion was that the contracts, the execution of which is admitted, are void for uncertainty in that the nature of the security mentioned was left open for future determination. There is but little dispute, if any, about the substantial facts of the case. It appears that after signing the contract the plaintiff Max Holtz went to New York to arrange for funds with which to carry out the contract, 1911. Negotiations were then taken up be- | first thing to be done by them was the mak tween the parties on the subject of security ing of the inventory which they utterly failed for the subsequent purchase of the remainder to perform. The principle is well settled of the defendants' preferred stock yet to be issued, but they were unable to agree on that feature and after protracted discussions, covering some ten days, all further proceedings were abandoned, and later on this action was commenced. [1] It is disclosed by the testimony that aside from the deposit by the plaintiffs with the defendants of $20,000, nothing was done by either party about performance of the contract after its execution, except to engage in fruitless discussions about the collateral designed to guarantee the purchase of the remainder of the preferred stock held by the defendants prior to July 15, 1921. It was the evident intention of the parties that the plaintiffs should purchase all the holdings of the defendants in the preferred stock of the concern yet to be issued. In order to arrive at the basis upon which that stock should be called into existence it was necessary to take an inventory of the property of the concern, value it according to rules laid down in the stipulation, and lastly deduct therefrom the liabilities of the firm. This duty rested upon the defendants, and was to be performed before the plaintiffs were required to make the first payment. We note that this was what was required to be paid for the one-third of the holdings of the defendants in the preferred stock, Making the inventory was necessarily a condition precedent, because without it there was no basis within the contemplation of the contract upon which the amount of preferred stock could be calculated. The obligation imposed upon the plaintiffs to deposit the purchase price of one-third thereof in escrow was not required to be performed until the inventory had been taken and the net value of the assets ascertained. The next step in the process of perform ance of the contract would have been to augment the stock, and to deliver the preferred part thereof to the stockholders of the corporation, for it is said in the contract, after speaking of the deposit to be made in escrow, that "then and in that case the parties of the first part" will increase the capital stock and distribute the same among the stockholders. The next in order of time was the purchase of a third of what was owned by the defendants, for we find in the contract "that after such capital stock shall be issued to the present stockholders" the defendants agreed to sell and the plaintiffs to buy that portion of the total number of shares of preferred stock held by the defendants, and to pay for the same in cash or New York exchange on or before July 15, 1911. If we should consider the agreement as solely for the purchase of one-third of the stock, the defendants were clearly in default in performance of their part of the contract, for, after the execution thereof, the that where something is to be done by the first party before the other is called upon to act it is an independent covenant to be performed before that other can be said to be in default. Couch v. Ingersoll, 2 Pick. (Mass.) 292; Dey v. Dox, 9 Wend. 129, 24 Am. Dec. 137; State v. Winona, etc., R. R. Co., 21 Minn. 472; Mill Dam Foundery Co. v. Hovey, 21 Pick. (Mass.) 417; Standard Gaslight Co. v. Wood, 61 Fed. 74, 9 C. C. A. 362. The plaintiffs are entitled to consider the failure of the defendants to perform their part of the contract at the time and in the order required thereby as a breach of the covenant upon which an action will lie in favor of the plaintiffs to recover the money deposited. [2] But further, as stated, if anything is plain in the contract, it is that all parties intended that it should culminate in the purchase by the plaintiffs of all the holdings of the defendants of the preferred stock yet to be issued by the corporation at the latter's behest. Confessedly, by the testimony on behalf of the defendants, the rock upon which the scheme perished was the stipulation about the security to be posted guaranteeing the purchase of the remainder of their holdings on or before July 15, 1921. This was an integral part of the contract, but it is plain that the writing leaves a wide gap between mere negotiations of the parties and the actual formation of the contract as to that feature. The language used in that respect contemplates that there shall be guarantors accompanying the plaintiffs in the execution of what is there called a supplemental agreement. These underwriters are not specified by name or qualification and unknown though they were, the document required them to deposit collateral security of a "kind and character satisfactory to the parties of the first part, but to be hereafter | determined." Passing the question of whether a stipulation for satisfactory security is sufficiently definite to be binding, we note that there is not a hint about the amount of such security. Indeed, the quantity thereof could not be well specified in advance, because at that time the net value of the assets of the corporation to be ascertained by the procedure laid down in the contract was yet unknown, and consequent upon that fact was the circumstance that the amount of preferred stock of the concern was not yet determined, and still further, it was not disclosed what amount thereof would be apportioned to the individual defendants. With all these factors in mind it is plain why the amount of collateral required by the terms of the guaranteeing contract could not be stated beforehand under the other terms of the agreement as written. That provision is therefore void for uncertainty. [3] In St. Louis & S. F. R. R. Co. v. Gor- [ under the authorities cited, the admitted man, 79 Kan. 643, 100 Pac. 647, 28 L. R. A. document was void for uncertainty in a ma(N. S.) 637, it was held that an agreement terial particular, and was devoid of obligato make a contract in the future is not bind- tory force upon the parties. Under these ing, unless all the terms and conditions, are circumstances, independent of the default of agreed upon, and nothing is left for future the defendants in failing to make the innegotiations. In Butler v. Kemmerer, 218 ventory mentioned, the plaintiffs were enPa. 242, 67 Atl. 332, it was held that an agree- titled to disregard the terms of the document must contain all the terms necessary ment, and to recover the money they had to determine whether the contract had been deposited with the defendants. The cirperformed or not; that price is as essential cuit court should have directed a verdict in as any other of the terms of the stipulation, favor of the plaintiffs for $20,000, and renand that without this agreed upon no con- dered judgment thereon. Under the doctrine tract exists. In United Press v. N. Y. Press of Sargent v. Am. Bank & Trust Co., 80 Or. Co., 164 N. Y. 406, 412, 58 N. E. 527, 529 16, 38, 154 Pac. 759, 156 Pac. 431, and Carna(53 L. R. A. 288) Mr. Justice Gray, speaking han Mfg. Co. v. Beebe-Bowles Co., 80 Or. for the court, said: 124, 156 Pac. 584, the plaintiffs are not entitled to recover interest on the deposit. The judgment of the circuit court will therefore be reversed, and the cause remanded, with directions to enter a judgment for the plaintiffs against the defendants for $20,000, together with the costs and disbursements of "I entertain no doubt that, where work has been done, or articles have been furnished, a recovery may be based upon quantum meruit, or quantum valebant; but, where a contract is of an executory character and requires performance over a future period of time, as here, and it is silent as to the price which is to be paid to the plaintiff during its term, I do not think that it possesses binding force. As the parties had omitted to make the price a subject of covenant, in the nature of things, it would have to be the subject of future agreement, or stipulation, and, to use the language of the opinion in Buckmaster v. Consumers' Ice Co., 5 Daly (N. Y.) 313, if the price each week was to be by future agreement, the contract was not legally binding on either party, as neither could be compelled to agree with the other." Other precedents pertinent to this point are Shepard v. Carpenter, 54 Minn. 133, 55 N. W. 906; Sibley v. Felton, 156 Mass. 273, 31 N. E. 10; Foot v. Webb, 59 Barb. (N. Y.) 38; Dayton v. Stone, 111 Mich. 196, 69 N. W. 515; Gaines v. Vandecar, 59 Or. 187, 115 Pac. 721, 1122; Jackson v. Alpha Portland Cement Co., 122 App. Div. 345, 106 N. Y. Supp. 1052; Somers v. Musolf, 86 Ark. 97, 109 S. W. 1173; Edmondson v. Fort, 75 N. C. 404. As stated in Clark on Contracts, (3d Ed.) p. 52: both courts. MCBRIDE, C. J., and BENSON and HARRIS, JJ., concur. (84 Or. 102) In re RYAN'S ESTATE. (Supreme Court of Oregon. April 17, 1917.) 1. COURTS 185 APPEAL FROM COUNTY COURT TO CIRCUIT COURT-TIME FOR FILING TRANSCRIPT. within 30 days after perfecting appeal, is manL. O. L. § 554, requiring filing of transcript datory, and, on appeal from the county to the circuit court, all opportunity to confer jurisdiction upon the circuit court passes with the lapse of this 30 days without any extension of time granted before its end. [Ed. Note.-For other cases, see Courts, Cent. Dig. § 603.] 2. COURTS 185-TIME OF APPEAL-COUNTY COURT TO CIRCUIT COURT-NUNC PRO TUNC Order. "An agreement to be finally settled must comWhere on appeal from county to circuit prise all the terms which the parties intend court transcript is not filed, as required by L. to introduce into the agreement. An agreement. L. § 554, within 30 days from perfecting apto enter into an agreement upon terms to be that the transcript be filed as of a date within peal, the circuit court has no power to order afterwards settled between the parties is a conthe expired 30 days; the sole purpose of nunc pro tune order being to make the record speak the truth, never to falsify it. tradiction in terms. It is absurd to say that a man enters into an agreement till the terms of that agreement are settled." It is indeed competent for parties to enter into a preliminary agreement looking to the execution of a consequent one in the future. We have daily examples of that kind in bonds for deeds or in contracts for insurance, the policies of which are yet to be issued. But in all cases the minds of the parties must meet on the terms not only of the present convention, but also as to those of the covenants yet to be executed. If this rule be not observed in the stipulation and a substantial part is left open for further settlement without a canon by which the subsequent negotiations may be controlled there is no aggregatio mentium so essential to every contract. Tested by this standard, [Ed. Note.-For other cases, see Courts, Cent. Dig. § 603.] An appeal from the county to the circuit court having been dismissed for failure to file transcript in time, the circuit court could not at lant's mistake, inadvertence, or excusable nega subsequent term, without showing of appellect, reinstate the cause for trial, for no court has appellate jurisdiction over its own decrees, and after the term at which a decree is entered the court's power over the decree is restricted to making the record conform to the actual truth of what was done at term time. [Ed. Note. For other cases, see Courts, Cent. Dig. § 603.] In Banc. Appeal from Circuit Court, Multnomah County; Henry E. McGinn, Judge. In the matter of the estate of James Ryan, |, "Upon the appeal being perfected, the appeldeceased. From an order fixing the fees of the executor and his attorney, the executor appealed to the circuit court. From judgment for the executor, the devisees appeal. Judgment set aside, and cause remanded, with directions. The chronology of this proceeding is as follows: June 27, 1911, an order of the county court of Multnomah county was entered in the matter of the estate of James lants shall, within thirty days thereafter, file script or such an abstract as the rules of the with the clerk of the appellate court a tranappellate court may require, of so much of the record as may be necessary to intelligibly present the questions to be decided by the appellate tribunal, together with a copy of the judgment or decree appealed from, the notice of appeal and proof of service thereof, and of the undertaking on appeal; and thereafter the appellate court shall have jurisdiction of the cause, but not otherwise. * It will be noted that the appeal became Ryan, deceased, fixing the fees of the execu-perfect on August 2, 1911, the date when the tor and of his attorney. On the 30th of the exceptions to the sufficiency of the sureties same month the executor served his notice were denied. In order to confer jurisdiction of appeal and filed the same with the accep- upon the circuit court, the transcript should tance thereof with the clerk of the court two have been filed within 30 days thereafter, as days later. His undertaking on appeal was required by section 554, L. O. L., or at least served and filed ten days thereafter. The by September 1st of that year. With the exceptions to his sureties were overruled lapse of this 30 days without any extension on August 2, 1911. The next event was an of time granted before its end passed all ex parte order in the matter by one of the opportunity to confer jurisdiction upon the judges of the circuit court of Multnomah circuit court. The order of July 22, 1912, county, Or., made on July 22, 1912, allowing directing that the transcript be filed as of a the transcript on appeal to the circuit court date in the previous year, was utterly void to be filed as on August 29, 1911. A motion and of no effect. It was in the nature of an of April 1, 1914, to dismiss the appeal on order nunc pro tunc, concerning which Mr. the ground that the transcript was not filed Justice Bean very pithily said in Grover v. within the time required by law was sus- Hawthorne, 62 Or. 75, 116 Pac. 100, 121 Pac. tained on July 15th of that year. On Octo-807: ber 28, 1915, the executor moved the circuit court to cancel the order dismissing the appeal on the ground that the same was entered through the mistake, inadvertence, or excusable neglect of his counsel. No showing, by affidavit or otherwise, appears in the record supporting this motion, but on March 31, 1916, the circuit court vacated the order dismissing the appeal and reinstated the cause upon the docket to be tried upon its merits. When it came on for hearing on April 6, 1916, the residuary legatees and derisees objected to the trial of the cause for several reasons, among others, because the court never acquired jurisdiction thereof, and because the attempted appeal had been dismissed. The objection was overruled, and the case proceeded to trial and judgment in favor of the executor, for an increased amount on account of attorney's fees. The devisees appeal. Emmons & Webster, of Portland, for appellants. BURNETT, J. (after stating the facts as above). Within 10 days from service of notice of the appeal the appellant must serve and file his undertaking on appeal with the clerk of the court. Within 5 days thereafter exceptions to the sufficiency of the sureties must be filed or be considered waived. The appeal is deemed effective from the expiration of the time allowed for exceptions to the sureties or the overruling of such objections. L. O. L., 550. "When a judgment has been actually rendered or an order made by the court which is entitled to be entered of record, but, owing to the misprision of the clerk, has not been so entered, the court may order the entry to be made nunc pro tunc. But it is not the function of the court to create an order now, which ought to have been made nunc pro tunc, not one jot or tittle should passed at a former time. In ordering an entry be added to or taken from the original judgment." [3] If it was not true that the transcript was filed within 30 days after perfection of the appeal, no order of the court can make it true. The sole purpose of a nunc pro tunc order is to make the record speak the truth, never to falsify it. Still further, after having dismissed the appeal on July 13, 1914, the term at which it was made having lapsed, and there being no showing in the matter of mistake, inadvertence, or excusable neglect on the part of the appellant or of his counsel, the court could not rightly make the order of March 31, 1916, reinstating the cause for trial. During the term at which it was rendered a court of record may change its judgment under proper circumstances not disclosed here; but beyond the term there is no sanction for anything more than to make the record conform to the actual truth of what was done at term time. No court has appellate jurisdiction over its own decrees. This court has very often held that a failure to file the transcript within the time provided by law or within an enlargement thereof by an order made before the expiration of the legal period will prevent the jurisdiction of the court from attaching. Cita [1, 2] We find the following in section 554, tion of the precedents would be platitudinous. L. O. L.: The statute is plain and mandatory beyond |