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of signing. "Delivery is the force that vital appellant contrary to the expressed wishes of izes the instrument." Gould v. Wise, 97 Cal. Drinkwater was as ineffectual in divesting 532, 32 Pac. 576, 33 Pac. 323. While pos the latter of title as though it had been forgsession of the deed was prima facie evidence ed or stolen. Denis v. Velati, 96 Cal. 223, of its delivery, it was not conclusive, but 31 Pac. 1; Black v. Sharkey, 104 Cal. 279. might be controverted by extrinsic evidence 37 Pac. 939; Gould v. Wise, 97 Cal. 532, 32 showing that it was never delivered. If the Pac. 576, 33 Pac. 323; Hibberd v. Sunith, deed was not delivered to the grantee, plain 67 Cal. 547, 4 Pac. 173, 8 Pac. 16, 50 Am. tiff was not divested of his title. In a legal Rep. 726. Rains & Hunter were the agents sense, there can be no delivery of an instru of both parties. The deposit of the deed with ment without the consent of the grantor. “It them, under the circumstances of this case, may be shown by parol evidence that a deed conferred no authority to deliver it to the in the possession of the grantee was not de grantee. Plaintiff does not seek a rescission livered." Devlin on Deeds, $$ 294, 29.7. "And of the contract, but contends that the deed even if the deed is deposited with the gran

is void for want of delivery; nor is it an tee, but for a purpose other than delivery, action by one having an equitable interest it would not take effect as a deed; nor canto establish a trust in one holding the legal a title be derived from a deed which has title. Delivery of an instrument is a quesnot been delivered. While, therefore, it is tion of fact independent of the writing itnot competent to control a deed by paro) evi

self, and extrinsic evidence to prove nondence where it has taken effect by delivery, delivery is admissible, notwithstanding the it is always competent by such evidence fact that the adverse claim of title constitutto show that the deed, though in the grantee's ing the cloud is based upon an apparently hands, has never been delivered." Wash good record title. Arrington v. Liscom, 34 burn on Real Property, 311. “But whether Cal. 305, 94 Am. Dec. 722. there has been a valid delivery or not must The judgment and order appealed from be decided by determining what was the in

are affirmed. tention of the grantor and by regarding the particular circumstances of the case." Der We concur: ALLEX, P. J.; TAGGART, J. lin on Deeds, $ 209. The intent of the grantor, rather than the mode of executing the

(6 Cal. App. 116) intention, is the crucial point. Corker v. Corker, 95 Cal. 308, 30 Pac. 541.

CONTINENTAL BUILDING & LOAN ASS'N It

V. BEAVER et al. (Civ. 411.) may be deposited with a third person merely as custodian for safekeeping, or, as in (Court of Appeal, Second District, California. the case at bar, "to hold until this deal was

July 24, 1907.). completed subject to" respondent's "investi 1. APPEAL-MOTION FOR DISMISSAL-NECESgation of this stock." It is settled that SITY FOR STATING GROUNDS. delivery is not complete until the grantor has

That the notice of motion to dismiss an

appeal did not specify appellant's failure to file voluntarily surrendered all control over it. an undertaking within the required time does The sole issue is whether or not the deed in not affect respondent's right to a dismissal on

that ground. question was delivered—not that its delivery

[Ed. Note.-For cases in point, see Cent. Dig. was procured by fraud, or breach of trust.

vol. 3, Appeal and Error, $ 3153.] Respondent contends that it was not deliver

2. SAME-UNDERTAKING-TIME FOR FILING. ed at all, and the court so found. Neither Under Code Civ. Proc. $ 940, making an fraud nor breach of trust enter into the appeal ineffectual for any purpose unless an case. Hence the very able argument and

undertaking be filed within five days after serv

ice of the notice of appeal, the Court of Appeal cases cited bearing upon the subject of the

acquires no jurisdiction where the undertaking cancellation of deeds and remedies where 'is not filed within the required time, and the delivery thereof has been obtained through

appeal must be dismissed. fraud do not apply to this case. Plaintiff,

TEd. Note.--For cases in point, see Cent. Dig.

vol. 2, Appeal and Error, $ 2005.) as said in the opinion of the Supreme Court in Cutler v. Fitzgibbons, 118 Cal. 502, 83 Pac. Appeal from Superior Court, Los Angeles 107.), decided January 29, 120, "is not try County; Charles Monroe, Judge. ing to set aside a deed which conveyed the Action by the Continental Building & Loan legal title, on the ground that the deed was Association against William J. Beaver and procured through fraud, mistake, undue in another, Defendants appeal from the judgfluence. conspiracy,” etc. Plaintiff had the ment, and plaintiff moves to dismiss the aplegal title. It certainly did not pass out of peal. Appeal dismissed. him by a written instrument which was nev C. W. Pendleton, for appellants. Frank er delivered. Ilaving the legal title to the G. Finlayson, for respondent. land, he brings this action to have his title thereto quieted against appellant, who asserts SHAW, J. Respondent asks that the apand proclaims an estate in the land based up peal from the judgment herein be dismissed. on a deed which, according to respondent's The ground for the motion, as stated in the contention, had never been delivered. The alt notice thereof, is that the transcript of the of Rains & Hunter in turning over the deed to record to be used on the appeal bas not been

filed, and the time for filing the same has (Civ. 411) 91 Pac. 666, the appeal in which expired. In support of the motion, a cer

er was this day dismissed for failure to file tificate of the clerk of the court rendering the required undertaking within five days said judgment is presented. Among other after service of notice of appeal. facts disclosed by this certificate, it appears Upon the authority of that case, the appeal that the judgment was entered on January herein is likewise dismissed. 24, 1907; that on the 19th day of February appellant duly served upon respondent his We concur: ALLEX, P. J.; TAGGART, J. notice of appeal from said judgment; that on February 27, 1907, eight days after the service of said notice, appellant filed in the

(6 Cal. App. 152) office of said clerk an undertaking on appeal.

STEWART et al. v. SMITH et al. (Civ. 31.) Section 910, Code Civ. Proc., provides that “the appeal is ineffectual for any purpose

(Court of Appeal, Third District, California.

July 30, 1907. Rehearing Denied by unless within five days after service of the

Supreme Court Sept. 26, 1907.) notice of appeal an undertaking be filed."

1. SPECIFIC PERFORMANCE-CONTRACT TO WILL The notice of motion does not specify the -REQUISITES. failure to file the required undertaking with

Under the express provisions of Civ. Code,

$ 3391, in order to entitle a party to specific in five days from service of the notice of ap

performance of a contract to dispose of property peal as a ground for dismissal of the appeal. by will, the contract must be based on an adeThis, however, is not necessary. The filing quate consideration, must be just and reasonof the undertaking within the time fixed by

able as to the party against whom it is sought

to be enforced, and certain and definite, not the provision of said section 910, Code Civ.

within the statute of frauds, free from frand Proc., is absolutely essential to give this or undue influence committed by the enforcing court jurisdiction. Rose v. Mesmer, 134 Cal. party, and its enforcement must not invoke an

invasion of the rights of an innocent third party. 459, 66 Pac. 591: Hoyt v. Stark, 134 Cal.

(Ed. Note.-For cases in point, see Cent. Dig. 178, 66 Pac. 223, 86 Am. St. Rep. 216. "The

vol. 44, Specific Performance, $ 223.) matter going to the jurisdiction of this court

2. SAME — PARTIES COMPLAINANT — MISJOINto entertain the appeal, it would seem to be DER. immaterial in what manner comes the sug Where complainants were all interested in gestion that the steps necessary to confer ju

a suit to compel specific performance of a con

tract to dispose of real and personal property risdiction have not been taken." Bullock v.

by wiil, there was no misjoinder of parties comTaylor, 112 Cal. 147, 41 Pac. 457. When the plainant, because they were not all interested facts appear showing want of jurisdiction, it

to the same extent. is the duty of the court of its own motion to [Ed. Note.-For cases in point, see Cent. Dig. dismiss the attempted appeal. As the under

vol. 44, Specific Performance, 8 315.] taking was not filed within five days after

3. SAJE-P'ARTIES DEFENDANT-EXECUTOR.

Where an executor had no interest in the service of the notice of appeal, this court has

distribution of an estate, he was not a necessary no jurisdiction to entertain the same, and the party to a suit between all the persons claimappeal is therefore dismissed.

ing an interest in the estate to enforce specific This conclusion renders it unnecessary to

performance of a contract with testatrix for the

disposition of her property by will. consider other points made in presenting the

'[Ed. Note.--For cases in point, see Cent. Dig. motion.

vol. 4+, Specific Performance, 317.]

4. W'ILLS-CONTRACT TO DEVISE-VALIDITY. We concur: ALLEN, P. J.; TAGGART, J. A contract by which testatrix agreed to

convey property in a particular manner by will was not invalid as a contract providing for the sale of property, some of which had neither actual nor potential existence at the time, within

Civ. Code, $ 1722, providing that the subject of CONTINENTAL BUILDING & LOAN ASS'N

a sale must be property, the title to which can V. BEAVER. (Civ. 412.)

be immediately transferred. (Court of Appeal, Second District, California. 5. FRAUDS, STATUTE OF-CONTRACT TO WILLJuly 24, 1907.)

PERFORMANCE WITHIX YEAR.

A contract by which testatrix, in consideraAppeal from Superior Court, Los Angeles tion of a transfer of certain property to her by County : Charles Monroe, Judge.

her children, agreed to make a will, leaving at Action by the Continental Building & Loan

her death the whole of the property or residue

thereof and all increase and accumulations to Association against William J. Beaver. De her children, share and share alike, and to exefendant appeals from the judgment, and cute a will so providing was not within the statplaintiff moves to dismiss the appeal. Ap

ute of frauds as an agreement not to be per

formed within a year. peal disn:issed.

[Ed. Note.--For cases in point, see Cent. Dig. C. W. Penilleton, for appellant. Frank G.

vol. 23. Frauds, Statute of, $ 81.) Finlayson, for respondent.

6. SAJE-AGREEMENT FOR THE SALE OF REAL PROPERTY-DENI RRER.

A bill for specific performance of an alleged SIIAW, J. Motion to dismiss an appeal contract to make a will devising and bequeathfrom judgment.

ing all testatrix's property, of which she should The facts in this case are identical with

die seised, alleging that at the time of her death

she left an estate of the value of $:32.717.233, those involved in Continental Building &

was not demurrable, in that the agreement oralLoan Association v. William J. Beaver et al. ly provided for the sale of real property within

the statute of frauds (Code Civ. Proc. $ 1973; , invest the income, rents, issues, and profits Civ. Code, $ 1621); it not appearing that such thereof, and at her death she would leave estate consisted of realty.

the whole of said property, or the residue 7. SPECIFIC PERFORMANCE – EXECUTED CONTRACT-RIGHT TO PLEAD STATUTE.

thereof, and all increase and accumulations Testatrix's husband died seised of real and thereof, to ber said 10 children, share and personal property of the value of $17,000, with share alike, and would make, execute, and debts not exceeding $1,000, all of which estate

leave in existence at her death a last will consisted of community property. Testatrix was appointed administratrix, and contracted with and testament, wherein and by the terms of complainants, her children, that, if they would which she would give, demise, and bequeath convey their interests as heirs at law in their

to her said 10 children, share and share alike, father's estate to her, testatrix would enjoy the property for her support for life, and would in or to the heirs of any deceased child by right vest the surplus income, and bequeath the resi of representation all the property of which due and all increase and accumulations to her she might die seised or possessed.” The said children at her death, in equal shares by will.

John H. Stewart and Charles E. Stewart and Held that, complainants having executed a conveyance of their interests pursuant to such Elizabeth Reilay accepted said proposition agreement, testatrix's contract to will became and agreed to do as requested by their mothexecuted so far as complainants were concerned,

er upon the terms proposed by her. Thereso that the statute of frauds was no defense to a suit by them for specific performance.

after, on or about November 22, 1873, in com

pliance with their part of the agreeinent, they Appeal from Superior Court, Sutter Coun- transferred to their said mother all their inty; K. S. Mabon, Judge.

terest in the personal estate of their father, Suit by John H. Stewart and others against and in conjunction with the other children, Mary S. Smith and others, to compel specific and in pursuance of said agreement, they exeperformance of a contract to make a testa cuted and delivered to their said mother a mentary disposition of property. From a de conveyance of their interest in the real propcree in favor of complainants, defendants ap erty of their father, situated in Sutter counpeal. Affirmed.

ty, Cal., and on or about June 5, 1883, in

further compliance with said contract, and in W. H. Carlin and M. E. Sanborn, for ap

full consummation thereof, and in conjuncpellants. S. J. Stabler and A. C. McLaugh

tion with their mother, and with all of the lin, for respondents.

other heirs of the said James S. Stewart,

they made, executed, and delivered for a valBURXETT, J. The action is in equity to uable consideration to one Charles P. Winzcompel specific performance of a contract lau all their and each of their interests in to make a certain testamentary disposition of and to all the real property of the estate of property. Two of the plaintiffs are children, said James S. Stewart, situate in the state of and the other two are daughters, of a de Ohio, and all the corresponding proceeds of ceased child of James S. Stewart and Annie said sale were given to and accepted by said Stewart, decedents. All the other heirs, leg Annie Stewart in pursuance of said contract atees, and devisees of said Annie Stewart, and agreement. The said Annie Stewart redeceased, are made defendants. It appears ceived the income and profits of said estate from the complaint that said James S. Stew and applied a portion of the same and the art, at the time of his death in 1870, left proceeds of the sales of personal property to property, real and personal, of the value of her support, and invested the residue in real $17,000. All claims against the estate did not property in the said county of Sutter. On exceed the sum of $1,000. In the same year April 8, 1893, the entire residue of the estate Annie Stewart, widow of said James S. Stew of the said James Stewart was distributed to art, was appointed administratrix of his es the said Annie Stewart and was of the value tate, and remained such until the administra of about $30,000. Said Annie Stewart died tion of the estate was closed, April 8, 1893. testate August 6, 1901, and left estate in said All the estate of said James S. Stewart was Sutter county of the value of about $32,000. community property. Some time in the year Her will was admitted to probate, and letters 1873 the said Annie Stewart "for her better of administration were issued to defendant maintenance and support during her life oral William W. Stewart. Said last will and tesly solicited and requested her said sons, John tament provides that neither of the plaintiffs H. Stewart and Charles E. Stewart and her should receive anything by virtue of said silid daughter Elizabeth Reilay (née Stewart), will, and the complaint allegas "that said deceased, mother of said plaintiffs, Luella J. Annie Stewart, deceased, thereby ignored, reReilay and Mabel S. Kellogg (née Reilay), to pudiated, and violated said contract and deed, sell, assign, and deliver to her all their agreement so entered into as aforesaid and so and each of their shares and interests as as aforesaid fully performed on the part of heirs at law of their said father of, in, and said John II. Stewart, Charles E. Stewart, to their said father's estate, upon the oral and Elizabeth Reilay.” A demurrer was inpromise, contract, and agreement, in consid terposed and overruled, and, defendants deeration therefor, that she, the said Annie clining to answer, judgment was entered as Stewart, would use and enjoy the said prop prayed for, establishing the agreement and erty for her support and maintenance during decreeing distribution to plaintiffs of the proher life, and would manage said property and portion of the residue of the estate to which

each is entitled under the terms of the said ( 252; Shakespeare v. Markham, 10 Hun (N. contract. From this judgment the appeal is Y.) 322; Rivers v. Rivers, 3 Desaus. (S. C.) taken.

190, 4 Am. Dec. 609; Stanton v. Miller, 58 That contracts providing for disposition of N. Y. 192; McClure v. McClure, 1 Pa. 378; property by will are enforceable is clearly es Wright v. Wright, 31 Mich. 380. tablished by the authorities. There are, how It is contended by appellants that the conever, certain important conditions and lim tract before us does not satisfy the requireitations, hereafter to be noticed, under which ment of these principles of equity, and, bea court of equity will decree a specific per

sides, that the complaint is objectionable in formance of such contracts. In the case of other respects, and to the consideration of the Johnson v. Hubbell, 10 V. J. Eq. 332, 66 Am. specific objections made by appellants and Dec. 776, it is said by the Court of Chancery

raised by their demurrer we direct our atof New Jersey that: “The law permits a

tention. man to disi:ose of his own property at his

1. There is no misjoinder of parties plainpleasure, and no good reason can be assigned

tiff. The contention of appellants in this rewhy he may not make a legal agreement to

spect can be answered no better than by a dispose of his property to a particular in

quotation from the case of Whitehead V. dividual, or for a particular purpose as well

Sweet, 126 Cal. 70, 58 Pac. 376, where the by will as by a conveyance to be made at Supreme Court, speaking through Commissome specific future period, or upon the hap

sioner Cooper, says: “A court of equity abpening of some future event. It may be un

hors a multiplicity of suits. No fixed rule wise for a man in this way to embarrass

can be laid down by which to determine

whether a giren bill in equity is or is not himself as to the final disposition of his property, but he is the disposer by law of his own

subject to the objection of multifariousness. fortune, and the sole and best judge as to the

A bill in equity is said to be multi

farious when distinct and independent mattime and manner of disposing of it. A court of equity will decree the specific performance

ters are joined therein. If the subject-matof such an agreement upon the recognized

ter in the main relates to one transaction

around which the others cluster, and each principles by which it is governed in the exercise of this branch of its jurisdiction." The

party has an interest in some matters in the reports contain many cases abounding in in

suit, and they are connected, even though all teresting and instructive observations upon

the parties do not have an interest in all the this subject, but we content ourselves with

matters in the suit, the bill is not multi

farious"--citing Story's Eq. Pleading. $$ 271, merely a citation of some of them: Kofka v

272a, Wilson y Castro 31 Cal. 429 See, Rosicky, 41 Web. 328, 59 N W. 788, 25 L. R.

also Lanigan V Neely (Cal. Apr ) 89 Pac. A. 207, 43 Am. St. Rep 685; Lothrop v. Mar. ble, 12 S. D. 511, 81 V. W. 885, 76 Am. St.

441. The purpose of the suit hert is to en

force a contract made with decedent in which Rep. 626; Svanburg v. Fosseen, 75 Minn 350, 78 N. W. 4, 43 L. R. A. 427, 74 Am. St.

all the plaintiffs are directly interested. The

subject-matter relates to that one transacRep. 490; Nowack v. Berger, 133 Mo. 24, 34

tion, and it is of no consequence that the S. W. 489, 31 L. R. A. 810, 54 Am. St. Rep. 663; Korininsky . Korminsky, 21 N. Y. Supp.

plaintiffs are not all interested therein to the

same extent. It would be a singular rule 611, 2 Misc. Rep. 138; Townsend v. Vander

that would require these plaintiffs to bring werker, 160 U. S. 171, 16 Sup. Ct. 258, 40 L. Ed. 383; Whiton v. Whiton, 53 V. E. 722,

separate actions to establish the game con

tract. If they had done so, defendants would 179 III. 32; Bush v. Whitaker, 91 N. Y. Supp.

undoubtedly have a right to complain of the 616, 45 Misc. Rep. 74; Owens v. McNally,

inconvenience and unnecessary expense occa. 113 Cal. 414, 45 Pac. 710, 33 L. R. A. 369;

sioned thereby. The cases cited by appelMcCabe v. Healy, 138 Cal. 81, 70 Pac. 100%;

lants, as we view the matter are not in point, Scbaadt v. Mutual Life Ins. Co., 2 Cal. App.

and we deem it unnecessary to review them. 715, 81 Pac. 249. The same general princi

2. The executor is not a necessary party ples of equity jurisdiction apply to these

to the action. All the devisees, legatees, and cases, as stated in Johnson v. Hubbell, supra,

persons claiming an interest in the estate that must be present in the enforcement of

are made parties plaintiff and defendant, contracts to convey during the lifetime of the

and, as the executor has no interest as such parties. In other words: There must be an

in the distribution of the estate, he is propadequate consideration; the contract must be

erly excluded from a contest over the right just and reasonable as to the party against to a distribution of the whole or a part of whom it is sought to be enforced; the other

it. Estate of Wright, 49 Cal. 550; Jones v. party must not have practiced fraud nor un

Lamont, 118 Cal. 499, 50 Pac. 766, 02 Am. due influence in securing the contract; it

St. Rep. 231; Estate of Healy, 137 Cal. 474, must be certain and definite, not within the 70 Pac. 455. statute of frauds; and its enforcement must ? Attention is directed by appellants to not involve an invasion of the legal or equi several particulars wherein they claim the table rights of an innocent third party. Sec complaint is open to the objection that it :ion 3391, Civ. Code; Pomeroy's Equity Juris. does not state sufficient facts to constitute

1405; Davison v. Davison, 13 X. J. Ey. a cause of action. It is contended that, if

the contract of Annie Stewart is to be treat siderable latitude is allowed to the discreed as a sale of her property to plaintiffs, it tion of the individual chancellor. must be held to be void for the reason that In Windsor v. Miner, 124 Cal. 192, 57 Pac. it included property having neither an actual | 386, specific performance was denied because nor potential existence at the time. Civ. the complaint did not state facts from which Code, $ 17:22. But it is too plain for argu the court could determine whether the conment that the contract does not purport to sideration was adequate, and the contract as constitute a sale by her, but an agreement to to the defendant just and reasonable. The convey at a future period. It is manifest | scope of Newman v. Freitas, 129 Cal. 283, 61 that said section has no application. Again, Pac. 007, 50 L. R. A. 548, is seen in the folit is urged that the contract is void for two lowing quotation from the syllabus: “Under reasons: "(1) By its terms the agreement | the settled rule of equity, specific performwas not to be performed within a year from ance cannot be decreed unless it affirmatively the making thereof; and (2) it was an agree appears that the contract is fair, just, and ment for the sale of real property. Code Civ. equal in all its parts, and reasonable and Proc. $ 1973; Civ. Code, § 1024; Story's Eq. equal in its operation; and if it is in any Juris. $ 732." In response to the former respect unfair or oppressive, the plaintiff specification, it is sufficient to say that the will be left to his remedy at law." It was contract in question is not "an agreement justly held in that case that the contract that by its terms is not to be performed was unreasonable and unjust. Stiles v. Cain, within a year from the making thereof." It 134 Cal. 170, 66 Pac. 231, is to the same effect. is said in McKeany v. Black, 117 Cal. 592, Specific performance was denied in Russell 49 Pac. 710: "If the contract by its terms V. Agar, 121 Cal. 396, 53 Pac. 926, 66 Am. is not to be performed within a year, it is

St. Rep. 35, for the reason stated by the void; but, if it may by its terms be per court that plaintiff was suing "to enforce a formed within a year, it is not, even though contract whereby he was to be paid some it may not be performed within that time."

undetermined and undeterminable sum of To the same effect are Dougherty v. Rosen money.” The contract was held to be too berg, 62 Cal. 37, and Blanding . Sargent,

uncertain to be enforced in equity or even 33 N. H. 239, 66 Am. Dec. 721. Again, the

to be the basis for an action at law for damagreement on the part of said Annie Stewart ages. In Re Hayden's Estate, 81 Pac. 668, was not to give, devise, and bequeath all the 1 Cal. App. 75, decided by this court, the real property, but "all the property of which

contract was sought to be enforced against she might die seised or possessed." The com

an incompetent. In the opinion written by plaint does not show the character of the Mr. Justice McLaughlin, it is very properly property left by her, but the allegation is sai

said that: “Courts will be more strict in she “was at the time of her death a resi

examining into the nature and circumstandent of said Sutter county and left estate

(es of such agreements than any others and therein of the value of $32,547.23." It does

would require very satisfactory proofs of not appear, therefore, affirmatively, that the

the fairness and justness of the transaction." second specification of appellant to which It is pointed out in the course of the opinwe have above referred is in point. Ap

ion that the contract was so lacking in the pellants did not demur to the complaint on

elements of certainty and fairness as not to the ground of uncertainty as to the character

commend itself to a court of equity. The of the property of the said Annie Stewart,

same contract was under review in the case and we cannot assume that it was not person

of Hayden v. Collins, 81 Pac. 1120, 1 Cal. al property. But the complete answer to App. 239, and a sufficient reason for a dethe whole proposition is that the contract nial of specific performance is found in the was entirely executed on the part of the three

following language: "A thorough analysis children. Relying, as they were justified in

and study of the evidence convinces us that doing, upon the solemn promise of their moth

nothing was said or done to indicate an er to make the said testamentary disposition, agreement. There was no meeting of minds they transferred to her all their interest in

on any definite proposition made by any of the father's estate, both personal and real,

the parties. Nothing is indicated more than and the said mother used, enjoyed, and treat

that Mrs. Hayden at one time probably ined as her own said property, and upon well

tended to remember appellant in her will known principles of equity defendants are

or 'do something for him.'” The decision estopped from assailing the contract upon in Henning v. Miller, 21 N. Y. Supp. 831, 66 the grounds we have been considering. But Hun, 588, a case at law, really rests upon it is said in this connection that plaintiffs'

the doctrine that parol evidence is not admisremeily is at law, and not in equity. Cer sible to vary the terms of a written instrutain cases are cited in support of this posi- ment. Some unnecessary language was used tion which we shall consider briefly. In apparently in line with appellant's contendoing so the suggestion naturally arises that tion here, but it must be limited to the facts it is not surprising that there is some ap of that particular case. parent conflict in the authorities in view of But appellants admit that part performthe fact that the rules of equity are some ance may take a case out of the statute of what flexible and in this class of cases con frauds, but claim that the facts here are in

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