ble as tending to prove a contract for the sale of lands by oral evidence, and such evidence is incompetent under sections 1238 and 1311 of the Revised Civil Code of this state, which read as follows: "Sec. 1238. The following contracts are invalid unless the same, or some note or memorandum thereof, be in writing and subscribed by the party to be charged or by his agent: * * (5) An agreement for the leasing for a longer period than one year, or for the sale of real property, or of an interest therein and such agreement if made by an agent of the party sought to be charged is invalid, unless the authority of the agent be in writing, subscribed by the party sought to be charged." "Sec. 1311. No agreement for the sale of real property, or of an interest therein, is valid unless the same, or some note or memorandum thereof, be in writing, and subscribed by the party to be charged, or his agent thereunto authorized in writing. * * A contract for the sale of lands must not only be in writing, but must be complete in itself, containing all the terms of the contract. Oral evidence is not admissible to supply defects in a written contract which by the statute of frauds is required to be in writing. Boyd v. Paul, 125 Mo. 9, 28 S. W. 171; Ringer v. Holtzclaw, 112 Mo. 519, 20 S. W. 800. The contract must contain all the terms agreed upon between the parties. Townsend v. Kennedy, 6 S. D. 47, 60 N. W. 164; 1 Greenleaf on Evidence, § 268. In discussing this subject Mr. Greenleaf says: "It is not necessary that the written evidence required by the statute of frauds should be comprised in a single document, nor that it should be drawn up in any particular form. It is sufficient if the contract can be plainly made out, in all its terms, from any writings of the party, or even from his correspondence. But it must all be collected from the writings, verbal testimony not being admissible to supply any defects or omissions in the written evidence; for the policy of the law is to prevent fraud and perjury by taking all the enumerated transactions entirely out of the reach of any verbal testimony whatever." The evidence sought to be elicited from the plaintiff was clearly evidence as to an oral agreement claimed to be entered into between the defendant and the plaintiff, and the court committed no error, therefore, in striking out the same and excluding the further evidence offered as to the terms of the contract. The second finding of fact of the court is as follows: "The court finds that there was no specific contract for the sale of said premises in any writing or memoranda signed by the defendant, and that there was no writing showing the mutual agreement between the parties of any proposition by the plaintiff which was accepted by the defendant in writing for the purchase and sale of said land, and that there was no agreement as to the price to be paid for said premises, and that the offers of the plaintiff for the land contained in his letters to the defendant were never accepted by the defendant." It is contended by the appellant that this finding is not only not supported by the evidence, but is contrary to the same. Upon an examination of the evidence in this case, we are of the opinion that the court's finding is correct, and that no other finding could properly have been made from the evidence. The contract alleged by the plaintiff was sought to be established by a number of letters which passed between the plaintiff and the defendant, but these letters fail to show what the purchase price was to be and assented to by the defendant. It is not shown that the minds of the parties ever met upon the price to be paid, and it is impossible to determine from the correspondence how much the plaintiff was to pay for the property, or what sum the defendant was to receive therefor. No useful purpose would be served by reproducing these letters in this opinion. They are vague and indefinite, and neither the court below nor this court can determine from the letters what the contract was between the parties if there was, in fact, any contract between them. There seems to have been an indebtedness due from the defendant to the plaintiff amounting, according to the testimony of the defendant, to $60 or $70. This apparently was to constitute a part of the consideration for the land. There also appears from the correspondence to have been a mortgage on the land executed by the defendant which the plaintiff agreed to pay off, but what sum the plaintiff was to pay the defendant in addition thereto is left in doubt, as it would seem from plaintiff's letters to the defendant that he expected to pay her $300 and by her letters that she expected $400 net, but the amount never was definitely settled between them. The law relating to the enforcement of specific contracts is thus stated in 26 Am. & Eng. Enc. of Law, p. 21: "As it is elementary that there can be no contract unless the minds of the parties have met and mutually agreed, specific performance will be denied where this requisite is lacking. Equity requires a clear mutual understanding and a positive assent on the part of each party. So, where it appears from correspondence between the parties that the terms of sale were never in fact agreed upon, the remedy of specific performance will not be applied. An offer must be accepted in the terms and form submitted or there is no valid assent, such as will create a contract which may be specifically enforced, as where a particular proposition was made, but the one accepted differed as to the proportion of cash to be paid. Practically the same rule has found enunciation in other cases in the statement that, in order that specific performance shall be decreed, there must be a complete contract, finally concluded and agreed upon." The It law as stated is supported by the great weight | equity, and exercised upon the consideration of authority, and, though perhaps not necessary, we cite a few of the decisions in support of the same: Kennedy v. Parmele, 3 Neb. (Unof.) 402, 91 N. W. 490; Hackley v. Oakford, 98 Fed. 781, 39 C. C. A. 284; Los Angeles, etc., v. Phillips, 56 Cal. 539; Dixon v. Dixon, 92 Md. 432, 48 Atl. 152; Hall v. Loomis, 63 Mich. 709, 30 N. W. 374; Kayser v. Arnold, 124 N. Y. 674, 27 N. E. 360; Holthouse's Appeal (Pa.) 12 Atl. 340; Richards Trust Company v. Beach, 17 S. D. 432, 97 N. W. 358; Stearns v. Clapp, 16 S. D. 558, 94 N. W. 430; Johnson v. Plotner, 15 S. D. 154, 87 N. W. 926; Meyer Land Co. v. Pecor, 18 S. D. 466, 101 N. W. 39; Chambers v. Roseland (S. D.) 112 N. W. 148. It is quite clear that in the case at bar the correspondence between the parties does not establish a clear and mutual understanding on the part of the respective parties as to the amount to be paid, but, on the contrary, it does appear that the terms of the sale were never in fact agreed upon, and that no definite offer was made by the plaintiff and accepted by the defendant. The judgment of the court is also clearly right, as the court in its third finding finds "that the amount of the offer of the plaintiff to the defendant for the land, and which is claimed by the plaintiff as the contract price for the premises, was about the sum of $550, and the court finds that the land at the time of said alleged contract was reasonably worth the sum of $1,600." Section 2345 of our Revised Civil Code provides: "Specific performance cannot be enforced against a party to a contract in any of the following cases: (1) If he has not received an adequate consideration for the contract. (2) If it is not, as to him, just and reasonable." These provisions of our Code embody the old and well-established rule of equity that a court of chancery will not enforce a contract that is inequitable, unjust, or unreasonable as against the party sought to be charged under the contract. Courts of equity have generally held that, in the exercise of their powers in the enforcement of a specific performance of a contract, they exercise a judicial discretion, and whenever it appears that the contract is inequitable, unjust, or unreasonable such courts refuse to enter a decree for specific performance. Seymour v. Delancey, 6 Johns. Ch. (N. Y.) 222. In Federal Oil Company v. Western Oil Company, 121 Fed. 674, 57 C. C. A. 428, the learned United States Court of Appeals for the Seventh Circuit, in discussing this question, says: "The question, then, arises whether the specific performance of this contract should be enforced in equity. The principles by which courts of equity are guided in respect to the subject are well established. The right to specific performance is not absolute, but rests in judicial discretion-not an arbitrary, capricious discretion, but sound judicial discretion, controlled by established principles of 117 N.W.-10 of all the circumstances of each particular case. The contract must possess certain elements to demand of equity the exercise of its jurisdiction to enforce performance. It must be upon a valuable consideration. must be mutual in its obligations and in its remedy. It must be perfectly fair, equal, and just in its terms and in its circumstances, and the situation must be such that the reme dy of specific performance will not be harsh or oppressive. The contract must be such that the court is able to make an efficient decree for its specific performance, and to enforce the decree when made. Pomeroy's Eq. § 1405." The trial court's conclusion that the consideration in the contract as alleged by the plaintiff and under which he claimed was much below the real value of the land and grossly inadequate and that, if it was the contract between the parties, it would never be enforced by a court of equity, was clearly right. If the contract was as claimed by the plaintiff, the amount that he was to pay the defendant would not have much exceeded $550, and the court finds upon sufficient evidence that the premises in controversy was of the value of $1,600. The enforcement of such a contract, therefore, as to the defendant would not be either just, equitable, or reasonable. Finding no error in the record, the judgment of the court below and order denying a new trial are affirmed. CROUCH et al. v. DAKOTA, W. & M. R. R. 1. APPEAL AND ERROR-NECESSARY PARTIES- [Ed. Note.-For cases in point, see Cent. Dig. vol. 2, Appeal and Error, §§ 2137, 2138.] 2. SAME-DEFECT OF PARTIES-DISMISSAL. Where it affirmatively appears that numerous parties to an action who would be affected by a reversal or modification of an order appealed from neither joined in the appeal nor were served with notice thereof, the appeal will be dismissed on motion. [Ed. Note.-For cases in point. see Cent. Dig. vol. 2, Appeal and Error, §§ 2173, 2174.] Appeal from Circuit Court, Pennington County. Action by Charles D. Crouch and another, trustees, against the Dakota, Wyoming & Missouri River Railroad Company, Joseph H. Muhlke, and others. Frederick P. Read, intervened. From an order denying an appli cation to set aside a certain sheriff's sale, the railroad company and Muhlke appeal. Appeal dismissed. William T. Coad, for appellants. Chauncey L. Wood and Charles W. Brown, for respondents. Re HANEY, P. J. This is an attempted appeal from an order of the circuit court denying an application of the defendant railroad company and the defendant Muhlke to have a certain sheriff's sale vacated and set aside. The notice of appeal was signed only by the railroad company and Muhlke. spondents have moved to dismiss on the ground, among others, that no notice of appeal was served upon Thomas Sweeney, Eben W. Martin, trustee, William T. Lyford, the Metropolitan Trust Company, Lorin H. Bronte, defendants, and Frederick P. Read, intervener, or either of them, and that each of them is an adverse party whose interest will be affected by a reversal or modification of the order attempted to be appealed from. "An appeal must be taken by serving a notice in writing, signed by the appellant or his attorney, on the adverse party, and on the clerk of the court in which the judgment or order appealed from is entered." Rev. Code Civ. Proc. § 441. Every party whose interest in the subject-matter of the appeal is adverse to or will be affected by a reversal or modification of the judgment or order appealed from is an "adverse party" within the meaning of the statute, irrespective of the question whether he appears upon the face of the record in the attitude of plaintiff, defendant, or intervener. Sutton v. Consolidated Apex Mining Co., 12 S. D. 576, 82 N. W. 188. "All the parties to a suit or proceeding who appear from the record to have an interest in the order, judgment, or decree challenged in the appellate court must be given an opportunity to be heard there before that court will proceed to a decision upon the merits of the case." Dodson v. Fletcher, 78 Fed. 214, 24 C. C. A. 69; Grand Island & W. C. R. Co. v. Sweeney, 103 Fed. 342, 43 C. C. A. 255. Therefore, as it affirmatively appears that numerous parties to the action, each of whom would be affected by a reversal or modification of the order appealed from, neither joined in the appeal nor were served with notice thereof, respondents' motion to dismiss must he sustained. PHILLIPS v. INTERNATIONAL HARVESTER CO. OF AMERICA. (Supreme Court of South Dakota. July 8, 1908.) 1. MASTER AND SERVANT-INJURIES TO SERVANT-ACTIONS-COMPLAINT. Plaintiff alleged that defendant harvester company maintained agencies throughout the state, and that one H. was an agent, whose duties included the furnishing of teams to carry defendant's traveling representatives to different points in the adjoining county; that plain tiff was employed by defendant's general agent and manager, who directed plaintiff to go to H. and obtain a team to make a necessary trip into the country; that plaintiff applied to H. for a team without knowledge of its viciousness; and that H. turned the team over to a driver, who undertook to make the trip, during which the team became balky, ran away, and injured plaintiff, to his damage, etc. The complaint also charged that defendant through its agent had knowledge of the dangerous habits and character of the team in question. Held, that the complaint was fatally defective, both for failure to allege that the injury was caused by defendant's failure to notify plaintiff of the vicious disposition of the team, or by any negligence on the part of the driver, and also for failure to show that plaintiff, having been employed by the general agent and manager of defendant, and not by defendant, was one of the class of persons to whom H. was required to furnish teams. 2. SAME-VICE PRINCIPAL. Where a complaint for injuries to plaintiff by the viciousness of a team furnished by defendant's local agent for plaintiff's accommodation charged that such local agent was not a superior servant of plaintiff and had no control or authority to direct plaintiff in the performance of his duties, the local agent could not be regarded as a vice principal. Appeal from Circuit Court, Minnehaha County. Action by A. P. Phillips against the International Harvester Company of America. From an order sustaining a demurrer to plaintiff's complaint, he appeals. Affirmed. S. H. Wright, for appellant. Bates & Parliman, for respondent. CORSON, J. This is an appeal by the plaintiff from an order sustaining a demurrer to his compliant. The complaint is as follows: "The plaintiff, complaining of the defendant, says: (1) That the defendant, International Harvester Company of America, a corporation, now is, and at all of the times hereinafter mentioned was, a corporation duly organized and existing according to law, and as such corporation it was, and now is, in the business of manufacturing, buying, selling, and handling harvesting and other farm machinery and had and maintained a general agency at Sioux Falls, Minnehaha county, S. D. (2) That at divers points in South Dakota and elsewhere said defendant had maintained local agents and distributing points for carrying out the purposes and objects of its business, and, among other places at which it had a local agent for handling its machinery and looking after the sale thereof the repair of machinery sold by it and through its agents and also the collection of its notes, accounts, and other indebtedness, it had and maintained an agency at Flandreau, in Moody county, S. D., of which one Ole Hove was the agent, and, among other duties imposed upon said agent, Ole Hove, it was part of his business, duty, and employment to furnish teams for the taking of the traveling representatives of said defendant to different points in and adjacent to Flandreau in said county and state, and all other near-by territory. (3) That on or about the 23d day of July, A. D. 1904, this plaintiff was employed by the general agent and manager of the defendant corporation to proceed from Sioux Falls to Flandreau, and to go into the country from there to look after and attend to certain of its business, and that such general agent and manager directed this plaintiff to go to said Ole Hove, its said agent at Flandreau, and obtain from him a team of horses for the purpose of making the necessary trip into the country; that this plaintiff was unadvised and had never known of the character and nature of said team of horses, and, acting upon the presumption that they were perfectly safe and gentle, proceeded in accordance with the said employment and went to said Flandreau and to said Ole Hove, the agent as aforesaid of said defendant corporation, and the said Ole Hove turned the said team of horses over to a driver, who undertook to drive them into the country with this plaintiff, and that while on said trip said team became balky, ran away, and from their violent conduct in the premises threw this defendant out of the vehicle in which he was riding, and that, by reason thereof, he was seriously and permanently injured in his head and chest, from the effects of which he has never recovered, and that, by reason of the premises, he sustained damages in the sum of $2.500, and, in addition thereto, was compelled to expend the sum of $65 in medical and other necessary expenses, no part of which sum has been paid; that said team of horses were well known to said agent, Ole Hove, and to the defendant, to be dangerous in the extreme, they having frequently run away prior to that time, and, as before stated, this plaintiff was unadvised and did not know of their dangerous habits and condition, and plaintiff further alleges, as hereinbefore stated, that it was part of the business of said Ole Hove, by virtue of his agency and employment by the defendant, to furnish teams and conveyances for the transportation of the employés of said defendant in the discharge of their duties in the matters and things hereinbefore mentioned, and that said Ole Hove was not a co-employé nor fellow servant of this plaintiff, but their duties were wholly different in all respects. Wherefore plaintiff demands judgment against the defendant for the sum of $2,565, together with the costs and disbursements of this action." It is contended by the respondent in support of the ruling of the court below in sustaining the demurrer that the complaint fails to charge any duty devolving upon the defendant to furnish a safe team to the plaintiff, or to state any facts upon which such a duty can be predicated; that, if a duty was owing to the plaintiff by the defendant, the complaint fails to charge the defendant with negligence or failure to observe that duty; that if there was a duty and the defendant was negligent in the performance of it, un der the facts disclosed in the complaint, the plaintiff cannot recover as the duty if any was to advise the plaintiff that the team had theretofore ran away, and the failure to so advise him must be the proximate cause of the injury upon which the right of action is based; that it does not appear from the complaint what caused the team to run away; that it is not alleged to have been because of the vicious disposition of the team, hence it does not affirmatively appear from the complaint that the failure of the defendant to notify the plaintiff of the character of the team was the proximate cause of the injury; that the plaintiff alleges an employment not by the defendant, but by the general agent of the company at Sioux Falls; that it is not alleged that the injury was caused by reason of any negligence on the part of the driver, or that the driver was employed directly or indirectly by the defendant. It will be observed that it is not alleged that the injury was caused by the failure of the defendant to notify the plaintiff of the vicious disposition of the team or any negligence on the part of the driver or of the defendant in the action, or that the defendant failed to perform any duty imposed upon it. The plaintiff in his reply brief takes the position that a safe team and vehicle were in legal contemplation necessary articles which the master should furnish the servant to use in the performance of his duties, and' if the team was to the knowledge of the master or vice principal dangerous and unsafe, and the employé or servant was not aware thereof, and that the action of such dangerous team resulted in the injury to the servant or employé, the master would be responsible unless he or his vice principal had, prior to the injury, informed such servant or employé that the team was dangerous. There would be force in this contention if there was an allegation in the complaint directly alleging that it was the duty of the defendant to furnish the plaintiff with a safe and suitable team with which to make his trips into the country, and that duty was imposed upon the agent as a vice principal, but as before stated the complaint contains no such allegation. It will be further observed that in the complaint no negligence is charged on the part of the driver or the defendant which resulted in the injury to the plaintiff. It will be further noticed that it is alleged in the complaint that the plaintiff was employed, not by the defendant, but by the general agent and manager of the defendant. If he was employed by the general agent and manager, and not by the defendant, he was not one of the class of persons to whom it is alleged the local agent was required to furnish teams. If it was intended by the plaintiff to allege that he was employed by the defendant, it should have been so stated in the complaint, and the statement that he 16 Am. was employed by the general agent negatives his employment by the defendant. & Eng. Pl. & Pr. 899, 900. The contention of the appellant that the local agent at Flandreau was in the position of a vice principal in this transaction can hardly be sustained under the allegations of the complaint as the local agent was not a superior servant of the plaintiff, nor did he have any control or authority to direct the plaintiff in the performance of his duties. It is quite clear, therefore, that in the absence of an allegation that it was the duty of the defendant to furnish a safe and suitable team for the use of the plaintiff, and that the injury was the proximate result of the negligence of the defendant or of some one acting as vice principal in place of the defendant or authorized to bind it, the plaintiff would not be entitled to recover under the allegations of the complaint. The order of the circuit court sustaining the demurrer is affirmed. HANEY, P. J., concurs only in the conclusion that the order appealed from should be affirmed. TOSSINI v. DONAHOE et al. (Supreme Court of South Dakota. July 8, 1908.) 1. REFORMATION OF INSTRUMENTS-EVIDENCE. Where, in a suit for specific performance of a written contract to convey land, defendant pleaded that the written instrument by a mistake of the attorney did not express the contract as made, in that it omitted to reserve to defendant all rights appurtenant to the land in and to the portion of the Big Sioux river adjacent thereto, and prayed that the contract be reformed, parol evidence was admissible to show that it was agreed that defendant reserved to himself all rights and interest in the river and the bed thereof, and that such reservation was omitted by mutual mistake. [Ed. Note. For cases in point, see Cent. Dig. vol. 42, Reformation of Instruments, § 156.] 2. SAME EVIDENCE. In a suit for specific performance of a written contract for the conveyance of land, evidence held to sustain a decree modifying the contract by inserting a reservation to defendant of all rights in and to the river adjoining the land which had been omitted from the contract by mistake and granting specific performance of the contract as reformed. (Ed. Note.-For cases in point, see Cent. Dig. vol. 42, Reformation of Instruments, §§ 157159.] Appeal from Circuit Court, Minnehaha County. Bill by Joseph Tossini against Daniel Donahoe and others. From a judgment reforming a contract for the conveyance of real estate and granting specific performance of the contract as reformed, plaintiff appeals. Affirmed. C. A. Christopherson and S. H. Wright, for appellant. Bates & Parliman, for respondents. CORSON, J. This is an appeal by the plaintiff from a judgment and order denying a new trial. The action was instituted to enforce the specific performance of a written contract entered into between the plaintiff and the defendant, and the complaint is in the usual form. The defendant in his answer to the plaintiff's complaint admits that he and the defendant executed the contract set forth in the complaint, but he "alleges that at and prior to the time of signing of said contract the said defendant not only owned the land mentioned and described therein, but also owned a portion of the Big Sioux river adjoining said land; that at the time defendant agreed to sell plaintiff the land described in said contract, and at the time of signing of such contract, it was expressly understood and agreed by and between plaintiff and defendant that defendant should only sell plaintiff the land therein described, and that defendant reserved to himself all rights and interest of every kind in and to the said Big Sioux river, and the bed thereof, and that plaintiff should acquire no rights of any kind in said river, except the right to pump and use sufficient water therefrom to irrigate said land, but that by a mutual mistake of plaintiff and defendant no clause was inserted in said contract expressly reserving such right to the defendant." The court, among other findings, finds the facts substantially as set out in defendant's answer, and concludes, as matter of law, "that the written contract, signed by plaintiff and defendant, March 2, 1896, be reformed to conform to the agreement made and entered into by and between plaintiff and defendant, at and prior to said time, by adding thereto, immediately after the reservation of a right of way over said land, the following: It is expressly understood and agreed that second party acquires no rights of any kind in the Big Sioux river, adjoining the land hereinbefore described, and hereby conveyed, except the right to pump and use sufficient water therefrom to irrigate said land; and said first party hereby expressly reserves all his right, title, and interest in and to said river and the bed thereof." And the plaintiff is entitled to a specific performance of the contract as reformed. And judgment was thereupon entered adjudging the plaintiff entitled to a decree and a deed with the reservation as stated in its conclusions of law. It is disclosed by the record that in 1896 the defendant entered into a contract with the plaintiff to convey to him a certain tract of land situated on the Big Sioux river upon the payment of the sum of $1,000 evidenced by promissory notes, the last of which fell due January 1, 1900; that in November, 1899, a second contract was entered into between the said defendant and the said plaintiff and his wife Anne Tossini, which latter contract seems to have been executed by the said Tossini and wife to secure the payment of a certain sum of money advanced by the said defendant to them, and which describes the |