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as a part of the consideration of said premises, or whether he desires to have plaintiff pay the same and free the land of said incumbrance. That defendant has no tangible property in Iowa, except said cows, and plaintiff fears defendant will, unless restrained, sell or dispose of his interest in said cows, or a part thereof. That, if said cows were sold by defendant, plaintiff would lose the beneficial contracts under which farmers and others hold the same, and would suffer irreparable loss and injury. Wherefore the petitioner asks that a temporary writ of injunction issue, restraining defendant from selling or disposing of said cows, or making any contracts in relation thereto; * that, upon

the final hearing, petitioner have a decree of specific performance against defendant, conveying and quieting the title in plaintiff of all of said cows; that the court determine whether plaintiff is to cancel and pay off said mortgage, or whether defendant will assume the same as a part of the consideration of said land; and for such other and further relief as may be equitable."

February 12, 1903, a supplemental petition was filed in the state court, in which it is alleged, in substance, "that the cows bought by plaintiff from defendant are in the hands of farmers, in lots of from one to five or ten, and held under many contracts, some of which expire March 1, 1903, and others do not so expire, but the cows are to be held thereunder; that, by the agreement between plaintiff and defendant, plaintiff was to take said cows as of the date of March 1, 1903, and renew or otherwise change the contracts under which said cows are held at this time, or assume the liability of defendant therein, and, in any event, plaintiff was to be the owner of said cows in the contracts aforesaid, and to be entitled to all the benefit, profit, or issue arising thereunder, as well as to assume the liability of said defendant; that the lease of the land described in the original petition, which plaintiff traded to defendant, expires March 1, 1903; that plaintiff is ready to deliver his warranty deed according to his contract, and to give defendant possession thereof."

A temporary injunction was issued by the state court as prayed. The answer of defendant is, in substance: "That he denies the allegations of the petition and supplement, except as admitted. Admits that he owns the five hundred and ten cows as alleged. That plaintiff and defendant verbally agreed upon a trade whereby defendant was to sell to plaintiff said cows at twenty-five dollars a head, and take in part payment therefor three hundred and fifty-seven acres of land in Ralls county, Missouri, at thirty dollars an acre, which was to include the crop of 1902 raised upon said land, and the balance in cash, providing said land was as represented by plaintiff. That defendant had never seen said land, and, to induce defendant to enter into said verbal agreement, plaintiff verbally represented and said to defendant that said land was a good prairie farm, all tillable land, suitable for farm purposes, except about forty or fifty acres of timber land, which was not more than needed for said farm, which timber land could be easily cleared off, and the land converted into good, tillable land; that the buildings on said land were all located on or near a public highway. That said agreement was to be reduced to writing, and plaintiff was to make defendant a warranty deed, and furnish an abstract showing the land to be free and clear of all liens and incumbrances. That plaintiff did deliver to defendant a check for one hundred dollars, which was accepted by defendant with the express understanding that, if said land was as represented by plaintiff, then the oral contract was to be reduced to writing, signed by both parties, and the check was then to be considered as part payment on said cows. That in pursuance of said verbal agreement this defendant went from Iowa City, Iowa, to Ralls county, Missouri, on January 9, 1903, saw said land, and found that the same was not as represented by plaintiff, and not worth more than four or five dollars an acre [and describing the particulars in which it was not as represented]. That he immediately returned to Iowa City, and so informed plaintiff, and told him that he (defendant) would not take the land, because it was not as plaintiff had represented it; that he would not complete the agreement. And defendant thereupon destroyed the check for one hundred dollars, which he had never presented for payment, and which, in fact, never was paid. That the representations of plaintiff as to the quality of said land were false and fraudulent, known by him to be so, and were made by plaintiff with intent to deceive and defraud defendant and induce said trade, and that defendant relied on said representations in making said deal. That the alleged contract

was never reduced to writing, nor signed by either of the parties, nor was any part of the price of said land ever paid by defendant, nor of said cows by plaintiff; and none of said land was ever delivered to, or possession thereof taken by, defendant, and none of said cows delivered to, or possession thereof taken by, plaintiff, and that said contract is wholly within the statute of frauds."

Remley & Ney and Ranck & Bradley, for complainant.

A. E. Maine and Dawley, Hubbard & Wheeler, for defendant.

REED, District Judge (after stating the facts). The controlling questions arising in this suit for determination are: (1) Has the complainant shown a completed contract between himself and the defendant, not within the statute of frauds? And (2) If he has, is it one that equity will decree to be specifically performed? A large amount of testimony has been taken, much of it conflicting, and that of plaintiff and defendant individually as to the consummation of a completed contract between them irreconcilably so. Such of it as it is deemed necessary to refer to will be stated in the course of the opinion.

1. Specific performance will not be decreed unless it is clearly shown that the contract is completed, and that its terms are fair, and so definite and certain that they cannot be reasonably misunderstood. Colson v. Thompson, 2 Wheat. 336, 4 L. Ed. 253; Purcell v. Miner, 4 Wall. 514, 18 L. Ed. 435; Carr v. Duval, 14 Pet. 79, 10 L. Ed. 361; Nickerson v. Nickerson, 127 U. S. 668, 8 Sup. Ct. 1355, 32 L. Ed. 314; Hennessey v. Woolworth, 128 U. S. 438, 9 Sup. Ct. 109, 32 L. Ed. 500; Dalzell v. Dueber Watch Co., 149 U. S. 315, 13 Sup. Ct. 886, 37 L. Ed. 749; Wesley v. Eells, 177 U. S. 370, 20 Sup. Ct. 661, 44 L. Ed. 810; Minnesota Tribune Co. v. Associated Press, 83 Fed. 350, 27 C. C. A. 542.

In Purcell v. Miner, 4 Wall. 513, 18 L. Ed. 435, it is said:

"Mere breach of the parol promise will not make a case for the interference of a chancellor. It is plain that a party who claims such interference has the burden of proof thrown on him. He knows that the law requires written evidence of such contracts, in order to their validity. He has acted with great negligence and folly who has paid his money without getting his deed. When he requests a court to interfere for him and save him from the consequences of his own disregard of the law, he should be held rigidly to full, satisfactory, and indubitable proof: First. Of the contract and its terms. Such proof must be clear, definite, and conclusive, and must show a contract leaving no jus deliberandi or locus pœnitentiæ. It cannot be made out by mere hearsay, or evidence of the declarations of a party to mere strangers to the transaction, in chance conversation, in which the witness had no reason to recollect, from interest in the subject-matter, which may have been imperfectly heard, or inaccurately remembered, perverted, or altogether fabricated-testimony, therefore, impossible to be contradicted. Second. That the consideration has been paid or tendered. But the mere payment of the price, in part or in whole, will not of itself be sufficient for the interference of a court of equity; the party having a sufficient remedy at law to recover back the money. Third. Such a part performance of the contract that its rescission would be a fraud on the other party, and could not be fully compensated by recovery of damages in a court of law.” In Minnesota Tribune Co. v. Associated Press, 83 Fed. 350, 27 C. C. A. 542, Thayer, Circuit Judge, speaking for the Circuit Court of Appeals for this circuit, says:

"A suit for specific performance can only be maintained where the terms of the agreement are so precise that they cannot be reasonably misunderstood. If the contract which the complainant seeks to enforce is vague or uncertain, a

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court of equity will not interfere, but will leave him to his legal remedies; and, where the contract is clearly susceptible of different interpretations, a court of equity ought not to take the chances of decreeing its specific execution in a way which will possibly do violence to the intention of the parties thereto. In all such cases, as well as where a contract is not fair and just in all its parts, *** the party seeking to enforce it should be remitted to his action for damages."

The other cases cited are to the same effect, and they establish the rule by which this controversy must be determined. Has the plaintiff, by his testimony, brought himself within this rule? Much of the testimony goes to the question as to who first proposed, and was the more anxious, to make the trade which is the subject of the controversy between the parties. This is not of great importance. The vital ques tion is, did the parties get beyond negotiations, and finally agree upon definite terms for an exchange of their properties, and that such agreement was not within the statute of frauds? that conclude parties, and not mere negotiations. From the testimony It is completed contracts it appears that the parties were negotiating for several days. The plaintiff at first wanted $30 an acre for his land, not including the crop of 1902 raised thereon; and the defendant wanted to turn in only a part of his cows, at $30 a head. Defendant had never seen the land, and plaintiff several times during the negotiations suggested to him that he go and look at it. Defendant says that, in reply to these suggestions, he told plaintiff there was no use in going to look at the land until it was certain they could agree upon terms of an exchange, and then he would go and look at it. trying to bring about the deal, and was employed by defendant, after A Mr. Hill was instrumental in negotiations had been pending for some days, to do so. that on January 8th defendant was around his store nearly all day, Plaintiff says urging a trade, and that upon that day they finally agreed upon a contract. In regard to this he says, after telling of the negotiations:

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“Q. Did you finally reach a conclusion on January 8th as to the sale of the land? A. Yes, sir: it was just about six o'clock, and I said I would see him in the morning. He says: 'No, sir, you won't; you will see me right now. We will close this right now. fooling about it.' I worked too hard to get this deal to have any That was all. I said, 'What do you want to do?' He said, 'Mr. Maine is my Charley Chansky, my workman, was in the store. lawyer, and we will go there.' We started, but Mr. Maine's office was closedthere was no light there-and we came back into the store; and, before going in. Mr. Hill made a proposition to give him a hundred dollars, and I gave him a check for a hundred dollars. He says, 'Come back after supper,' and I says, 'No: I won't come back.' Q. What was said about how you would trade? A. Well, I was to take the cows at twenty-five dollars a head, and he was to take the land at thirty dollars an acre. Anything under the number of cowswas to have twenty-five dollars in cash for any number of cows he couldn't furnish up to five hundred or five hundred and ten. I told him there was a I mortgage on the place; I would clear it if he wanted me to. I believe he rather talked as though he would like to have it clear. I believe that is about the way he wanted it. But I told him it was immaterial to me; that I would clear it. or leave it as it was; that it was only bearing 5%. This conversation occurred several times before I gave him the check. We were going to Maine's office to close the deal in the way you would close up a deal, I suppose to put it in writing. We were to go there and put it in writing. When we didn't find him, we closed it by his accepting one hundred dollars. Q. How did the check read? A. 'Payment on 500 cows on land deal.' It was dated January 8, 1903, payable to order of Frank Luckman, one hundred dollars, on Iowa City State Bank. I

had plenty of money in the bank at that time to pay the check. 'Couldn't say where that check is now. I saw it since. He never offered me the check back, not at that time. Hill said, 'Write a check for a hundred dollars.' He was not satisfied, on account of Mr. Maine not being at his office, and, to satisfy him, Hill asked him, would he be satisfied with a check, and he said he would. Hill first made the proposition that I pay him some money, but I had none in the safe. Then Hill asked if he would be satisfied with the check, and ne said he would. When I delivered him the check, I went home, and left Hill and Luckman in the store. * I saw them next day. Luckman said: 'If you don't take two hundred head of cows, I won't call it a trade, and I will go down and look at the land; and, if it don't suit me, I won't take it.' I told him: 'No; I traded for five hundred. I won't take two hundred.' I saw him after that several times. * * In the trade there that evening there was nothing said about the lease of the land. I showed him the lease January 8th. I was to assign him the lease. That was the proposition finally accepted-that he was to have the deal just as I got it. * ** The mortgage is still on that land. I can pay it off, or give it with the mortgage. Either way suits me. I don't care.

* *

*

Cross-examination: "Up to the night that this trade was made, we had reached no definite agreement. Up to that time he refused to trade me all of his cows, and I had refused to trade my land with the crop. * Next day after the trade, Luckman told me he was going to Missouri. He told me who was going with him. I can't recollect what I said, but possibly I did say, 'Why can't Jim [my brother] go down with you?' If I did, I had reasons for it. After he came back from Missouri, I think he did tell me the farm was not anything like I represented. I know that he complained about the farm. I learned that he tore up the check that I gave him."

Redirect examination: "I didn't understand that the cows were to be moved out of the hands of the farmers who had them under contract. *** I un

derstood there was simply to be a deed made to Luckman after the time I gave the check, and he was to turn over the contracts to me, and the difference in value, if any, was to be settled. The time for doing any part of that at the time of making the contract and delivery of this check was not fixed. Prior to the time of making the contract, we talked about the rent that they were paying for the cows, and how long the contracts run-some of them run for four years; the shortest for a year. We had one of his contracts, which we examined many times. I knew what they were."

This is substantially all of the testimony of the plaintiff as to what occurred at the time the check was delivered and the contract completed as he claims. It is over the objection of defendant as being within the statute of frauds. Mr. Hill substantiates him in many particulars, but not in all.

The defendant, after relating their negotiations for several days, says "I saw Kane January 8th at his store. Mr. Hill was with me there in the afternoon, and after six o'clock there was nobody but Kane when Hill and 1 came in."

After relating some of the negotiations, the witness continues:

"Well, I says, 'I will put in 510 [cows], and I will go down to-morrow and look at the farm, and, if the farm is what you claim it is, when I come back we will make a trade.' There was a check given. Mr. Hill said, 'Better give Frank a check for $100.' I said, 'No; there is no need of it. Wait until I come back from Missouri.' Hill said, 'Better give him a check.' 'Yes,' says Kane; 'better give him a check for $100.' They insisted on my taking it, and I took it and put it in my pocket. The contract was to be drawn when I came back from Missouri, if I was satisfied about the farm. If the bargain went through, the cattle were to be delivered the 1st of March, and I was to get possession of the land the 1st of March. This was about half past six o'clock in the evening. Mr. Kane went north, and Hill and I went south. It was all done in fifteen

minutes' time. I saw Kane at his store next morning about eight o'clock, and said, 'Which is the best way to go down to this farm? And he says, "There is two ways of going. Let's go up to Dayton's office, and he will know better than I do.' We went to Dayton's office, and Kane asked Dayton which was the best way to go down, and Dayton said, 'You can't go until this evening, but the best way is to go to Quincy, Ill., change cars, and go to Monroe City.' And they gave me directions to go from Monroe City to reach the farm. They called it the 'Lundburg Farm.' Up to this time I didn't know where the farm was located. At the time of the conversation that morning, as we came down from Dayton's office, Mr. Kane says, 'Is there anybody going down with you?' I says I was going to try to get Will Havard; and Kane says, 'Why can't Jim go? I says, 'Yes; Jim can go if he wants to;' and he says, 'Will you pay his way? and I says, 'No.' Jim didn't go with us. I went down that evening to the farm, and we went out to see it Saturday morning. Havard was with me. We went over the farm. [Witness described the farm in detail, and says that it was nothing like what Kane represented it to be.] I got back to Iowa City Sunday morning, January 11th, and saw Kane Monday morning at his store, and I said to him: 'Mr. Kane, you are a good one. You are a dandy, for to have me go down to Missouri to look at this farm. Why in the world didn't you tell me what this farm was? It is no prairie farm. It is no such thing. It is pretty nearly all timber, brush, and cañons. There is places on there that a goat couldn't climb.' 'Well,' he says, 'If you don't want to trade, what is the use of running the farm down?' I says, 'I ain't running it down.' 'Well,' he says, 'Havard is running it down all around town.' Afterwards I tore up the check, and Hill said I ought not to have done so, and I said it was no good."

Several witnesses testified in behalf of complainant that defendant told them he had made a trade with Kane. Defendant admits conversations with some or all of these witnesses, but denies that he told them he had made a trade, but did say that he was talking with Kane of trading for the land. At least one witness testifies that Kane told him that he (Kane) was trying to trade this land in Missouri to Luckman, that Luckman had gone to Missouri to look at it, and that, if they didn't complete the trade, complainant would then talk with the witness about trading with him.

Without further stating the testimony, it must suffice to say that defendant positively denies that a trade was completed, and says that the agreement, so far as reached, was conditional upon the land being as represented by complainant; that he was to go to Missouri and look at it, and that the check was received by him with the express understanding that, if the land was as represented, the contract was to be put in writing, signed by the parties, and the check was then to be considered as part payment, and the deal finally settled by March 1st; that he did go to Missouri, starting on January 9th, and saw the land; that it was not as represented by complainant; that he at once. returned to Iowa City, and so informed complainant, and that he would go no further with the deal, and tore up the check, which had never been presented for payment, and never was, in fact, paid. That defendant did go to Missouri, saw the land, returned at once, and told complainant it was not as represented, and that he would go no further with the deal, is established beyond controversy. Complainant alleges in his petition that he was to take the cows as of March 1st, but, in his testimony, says that nothing was said about this. In regard to the mortgage, it clearly appears that no agreement was reached as to whether complainant was to pay the same, or defendant was to as

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