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sume it, and the prayer
of the petition is that the court shall determine which shall be done. The testimony is silent as to the amount of this mortgage, its date, and when it matures. All that complainant says about it is that it bears 5 per cent. This might be a favorable rate of interest, but whether the loan would be a desirable one for defendant to carry would depend upon other terms of the mortgage. In the petition the complainant alleges that defendant was to determine whether or not he would assume the mortgage. The parties had a right to agree to this, and, if it was a part of their negotiations, and they did not agree thereon, then the terms of the exchange were not finally completed. It also appears from the testimony that these parties met the morning after the alleged agreement, and had a conversation about the deal, and about defendant's going to Missouri to look at the land. They do not agree as to what the conversation was, but the fact that it was had, that the check was not presented for payment, and that defendant started on the first train that he could go on to see the land, tend at least to corroborate defendant that the trade was not finally consummated. True, the passing of the check tends to show an agreement of some kind, but that is not conclusive, and if it was received with the understanding that the agreement, whatever it was, was conditioned upon the land being as represented by the complainant, the parties had not passed the stage of negotiations, and either might still withdraw therefrom.
In argument, counsel for complainant anticipated that the question of the completion of the contract, because of the failure of the parties to agree in respect to the mortgage and the time of the final settlement, would be raised, and said that it might be conceded that the deal was to be settled March 1st, as claimed by defendant, and that, as to the mortgage, the complainant would pay it, and relieve defendant therefrom, and that would eliminate these questions. But that would be permitting the complainant to make the contract, which the parties have failed to agree upon. These matters go deeper than counsel seem to suppose, and to the vital question of the case, which is, did the parties finally agree upon the terms of the contract? If they did not, negotiations were still pending, and the court cannot complete the contract for them.
In Dalzell v. Dueber Watch Co., 149 U. S. 315, 13 Sup. Ct. 886, 37 L. Ed. 749, above, Mr. Justice Harlan says:
"From the time of Lord Hardwicke, it has been the established rule that a court of chancery will not decree specific performance unless the agreement is certain, fair, and just in all its parts [citing the authorities), and the rule has been repeatedly affirmed and acted upon by this court.
So this court has said that chancery will not decree specific performance if it be doubtful whether an agreement has been concluded or is a mere negotiation, nor unless the proof is clear and satisfactory, both as to the existence of the agreement and as to its terms."
In Pom. Spec. Per. $ 145, it is said: "In order that any agreement, whether covered by the statute or not, whether written or verbal, may be specifically enforced, it must be complete in all its parts; that is, all the terms which the parties have adopted as portions of their contract must be finally and definitely settled; and none must be left to be determined by future negotiation; and this is true without any regard to the comparative importance or unimportance of these several terms."
It is alleged in the petition that complainant was to assume the liability of defendant in the leases of the cows to the farmers. What this liability is, nowhere appears in the evidence; but, if it did, how could the court in its decree compel the farmers to accept complainant in lieu of defendant for such liability, whatever it is, and ai solve defendant therefrom? It is, to say the least, doubtful, under this testimony, whether an agreement was finally concluded, and its terms definitely settled by these parties.
Again, the general rule is that the contract must be mutual in obligation, at least before it will be specifically enforced against either of the parties. If, therefore, from the nature or form of the contract itself, or for any other reason, the agreement devolves no obligation upon one of the parties, or if it cannot for any reason be specifically enforced against him, then he is not entitled to the remedy of specific performance against the other, even though in a bill therefor he expresses a willingness or offers therein to perform on his part. Luse v. Deitz, 46 Iowa, 205; Bodine v. Glading, 21 Pa. 50, 59 Am. Dec. 749; Hawley v. Sheldon, Har. Ch. (Mich.) 420; Fry on Spec. Perf. § 286 ; Pom. Spec. Perf. § 163 et seq. The Iowa and Missouri statutes both require an agreement for the sale of land to be in writing, and signed by the party to be charged.
The Iowa statute is as follows: Section 4625, Code 1897: “Except where otherwise especially provided, no evidence of the following enumerated contracts is competent unless it be in writing, signed by the party charged or his authorized agent: (1) Those relating to the sale of personal property where no part of the property is delivered and no part of the price paid ;
(4) those for the creation or transfer of any interest in lands." Section 4626: "The provisions of the
4th subdivision of the preceding section do not apply where the purchase money or any portion thereof has been received by the vendor, or when the vendee with the actual or implied consent of the vendor has taken and held possession under the contract.
This statute, in effect, is the same as the English statute, and the decisions construing that statute are applicable to this. Westheimer v. Peacock, 2 Iowa, 528. The words "purchase money" mean consideration to be paid for the land. Devin v. Himer, 29 Iowa, 297.
The statute of Missouri is : "No action shall be brought
upon any contract made for the sale of lands or any interest in or concerning them
unless the agreement upon which the action shall be brought, or some memorandum or note thereof, shall be in writing, and signed by the party to be charged therewith, or some other person by him thereto lawfully authorized in writing." Rev. St. Mo. 1899, § 3418.
This alleged contract, so far as it relates to the cows and leases thereof, might be controlled by the Iowa statute; but, as the land is in Missouri, any sale or contract for the sale thereof, to be valid, must conform to the law of that state. United States v. Crosby, 7 Cranch, 115, 3 L. Ed. 287; Kerr v. Moon, 9 Wheat. 566, 6 L. Ed. 161; McCormick v. Sullivant, 10 Wheat. 192, 6 L. Ed. 300; United States v. Fox, 94 U. S. 315, 24 L. Ed. 192; Story's Conflict (7th Ed.) $$ 435, 436.
In United States v. Fox, above, it is said: “It is an established principle of the law, everywhere recognized, arising from the necessity of the case, that the disposition of immovable property, whether by deed, descent, or any other mode, is exclusively subject to the government within whose jurisdiction the property is situated."
Under either of these statutes, could the contract in this case, as claimed by the complainant, be enforced against him? If not, is there such a mutuality of obligation that it could be enforced against defendant either at law or in equity? It was not signed by the complainant or his authorized agent; no part of the consideration to be paid for the land was received by him, or possession of the land taken by the defendant. The words, “Payment on 500 cows on land deal,” if written upon the check which it is claimed was accepted by defendant as part payment of the cows, cannot be construed as an agreement or memorandum by the complainant to convey the land; and, even if it could be, such agreement would be void for incompleteness and uncertainty. Williams v. Morris, 95 U. S. 444–455, 456, 24 L. Ed. 360. The check was intended as part payment by complainant on the cows, and not as part payment to be received by him on the land. There is nothing, therefore, to take the case out of the statute of frauds of either state, so far as the complainant is concerned; and, if suit was brought against him by defendant in either state to enforce conveyance of the land, it seems clear that the complainant could successfully defend upon this ground alone. The alleged contract is entire, and, unless it could be enforced in its entirety against complainant, it should not be enforced against the defendant.
2. Is the contract, as claimed by complainant, one that a court of equity, in any event, will decree to be specifically performed ?
The Revised Statutes of the United States provide :
"Sec. 723. Suits in equity shall not be sustained in any of the courts of the United States, in any case where a plain, adequate and complete remedy may be had at law." [U, S. Comp. St. 1901, p. 583.]
In New York Guaranty Co. v. Memphis Water Co., 107 U. S. 214, 2 Sup. Ct. 286, 27 L. Ed. 484, it is said:
“This enactment" (section 723, Rev. St. (U. S. Comp. St. 1901, p. 583]) "certainly means something, and, if only declaratory of what was always the law, it must at least have been enacted to emphasize the rule and impress it upon the attention of the courts."
In Root v. Ry. Co., 105 U. S. 189, 26 L. Ed. 975, the grounds upon which courts of equity will entertain suits and afford relief are clearly stated. At page 212, 105 U. S., 26 L. Ed. 975, it is said:
“The result of the argument is that whenever a court of law is competent to take cognizance of a right, and has power to proceed to a judgment which affords a plain. adequate, and complete remedy, without the aid of a court of equity, the plaintiff must proceed at law, because the defendant has a constitutional right to a trial by jury."
To the same effect is Hipp v. Babin, 19 How. 271, 15 L. Ed. 633, and Parker v. Mfg. Co., 2 Black, 545, 17 L. Ed. 333.
That a contract for the purchase of chattels will not ordinarily be decreed to be specifically performed by a court of equity because the law affords an adequate remedy in damages for the breach of such a contract, is not seriously questioned. That such is the rule is plain. Clark v. White, 12 Pet. 178, 9 L. Ed. 1046; Richmond v. Ry. Co., 33 Iowa, at page 480; First Nat. Bank v. Day, 52 Iowa, 680, 3 N. W. 728; Hull v. Hull, 117 Iowa, 63, 90 N. W. 496; Pierce v. Plumb, 74 Ill. 326; Moulton v. Warren Mfg. Co., 81 Minn. 259, 83 N. W. 1082; 3 Parsons' Contracts, 364, 365; 3 Pomeroy's Equity (2d Ed.) § 1402; Pomeroy's Specific Performance of Contracts, $ 11 et seq. ; 2 Story's Equity, $ 717.
In section 1402, 3 Pomeroy's Equity, it is said: "Whenever a contract conveying real property is unobjectionable it is as much a matter of course for a court of equity to decree specific performance as it is for a court of law to give damages for its breach. As to chattels, the doctrine is equally well settled that equity will not, in general, decree the specific performance of contracts concerning them, because their money value, recovered as damages, will enable the party to purchase others of like kind and quality.
But where particular chattels have some special value to the owner over and above any pecuniary estimate,
or where they are unique, rare, and incapable of being reproduced by money damages, equity will decree specific delivery of them to their owner, and the specific performance of contracts concerning them."
The rule and the exceptions thereto are more fully stated in Pomeroy on Specific Performance of Contracts, SS 11, 12.
In Story's Equity, $ 717, it is said:
"So courts of equity will not generally decree performance of a contract for the sale of stock or goods, not because of their personal nature, but because the damages at law, calculated on the market price of the stock or goods, are as complete a remedy to the purchaser as the delivery of the stock or goods contracted for, inasmuch as with the damages he may ordinarily purchase the same quantity of like stock or goods."
It is urged in behalf of the complainant that the case, upon its facts, is within the exception to the general rule stated in the authorities above cited, because of the allegation in the petition as amended that the value of the cows is enhanced by reason of the contracts under which they are held by the farmers; that the cows so under contracts have a peculiar and distinctive value, that they would not have but for such contracts; and that plaintiff cannot be fully compensated by a money judgment in lieu of the specific performance of such contract. The last clause is, of course, a mere conclusion. There is an entire absence of proof, however, to sustain this allegation, conceding it to be sufficient to make a case for equitable cognizance. The testimony of the plaintiff is silent upon the value of the cows, whether under lease or not. It is true, complainant himself says that defendant told him he was getting $6 a head a year for some, and $7 for others, and that the leases were to run from one to four years, and that the cows were to be valued at $25 a head in the trade; but, aside from this, there is no evidence whatever showing that the value of the cows was enhanced because of the contracts under which they were held, or that they were of any distinct or peculiar value because of such contracts, that could not be fully measured in dollars. It surely cannot be said, as a matter of law, in the absence of all evidence, that, because the owner of a cow leases or lets her to a farmer for one, two, or three years for an annual rental or compensation of $6 or $7, the animal, regardless of peculiar conditions or characteristics, is thereby endowed with any unique or peculiar traits or qualities that would render her value, or the contract under which she is held, incapable or even difficult of being estimated in money; nor would the fact that 510 of such animals were so leased or let render the value of that number incapable of being proven or determined in a court of law. This allegation, in the absence of any evidence to sustain it, is the only ground upon which complainant relies to bring this case within the cognizance of a court of equity. By his own testimony, however, he agreed with the defendant upon the value of such animals under contract at $25 a head. Equity will not decree specific performance of chattels, though unique or peculiar in character, even, when their pecuniary value has been fixed by agreement of the parties, or can be readily ascertained, so that an adequate compensation in damages can be recovered at law. Pomeroy's Specific Performance of Contracts, $ 12; Bodine v. Glading, 21 Pa. 50, 59 Am. Dec. 749. If the value fixed by complainant and defendant was less than the actual value of these contracts and cows, so that complainant obtained by his alleged agreement a valuable contract, nothing whatever is shown why the value in excess of the contract price cannot be fully proven, and the amount of such excess recovered at law. There is no averment or proof that defendant is insolvent. It is true, the petition avers the defendant has no tangible property in Iowa, other than this lot of cows, but that is far short of an allegation of insolvency. And if it were inconvenient, even, to fully prove the value of the animals and contracts, which, however, is not shown, that is not sufficient to show that the remedy at law is incomplete or inadequate. The presumption is that the value of the cows as agreed upon by the parties is their fair value, and it cannot be inferred, in the absence of testimony, that their actual value was in excess of the agreed value, or that the whole lot would not be sufficient to satisfy the excess of value which the testimony might show, if any. If this were shown, then the contract whereby their value was fixed at such price that a breach of it would require the whole or any considerable portion of the entire lot to satisfy this excess of value would be such an unconscionable one that a court of equity would not under any circumstances enforce it.
Counsel for complainant cite and rely upon authorities which, in effect, hold that when one contracts for the purchase of stocks of corporations, or chattels or commodities for a specific purpose or of peculiar value, which are scarce or cannot be obtained generally in the market, or have no established market value which can be shown as a basis for damages, equity will decree the specific performance of such contracts. This rule may be conceded, but the fac.. ii. the present case do not come within it. McNamara v. Home Land & Cattle Co. (C. C.) 105 Fed. 202, is so cited. This was a bill filed to enforce specific performance of an agreement for the purchase of a lot of cattle, and it was alleged, among other things, that the purchase was made by plaintiffs to enable them to fulfill contracts which they had with the government. Specific performance was decreed by the Circuit