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On Motion to Remand to State Court, and Motion by Defendant to Vacate Attachment.

Wales F. Severance, for plaintiff.
Daly, Hoyt & Mason, for defendant.

LACOMBE, Circuit Judge. 1. The motion to remand this cause to the state court is denied.

2. The motion to vacate the attachment granted by the state court is denied on the sole ground that the removal act (Act March 3, 1875, c. 137, § 4, 18 Stat. 471 [U. S. Comp. St. 1901, p. 511]) provides that it shall not be disturbed, and without expressing any opinion as to whether the attachment can ever become fruitful in the event that no personal service be effected nor appearance entered, service by publication not being provided for by federal practice in actions such as this.

KANE v. LUCKMAN.

(Circuit Court, N. D. Iowa, Cedar Rapids Division. July 29, 1904.)

No. 28.

1. SPECIFIC PERFORMANCE-CONTRACT ENFORCEABLE-DEFINITENESS OF TERMS.

Plaintiff in a suit for specific performance testified to the making of an oral contract with defendant for the purchase of 510 cows, in exchange for which he was to convey to defendant a farm situated in Missouri at a stated price, paying the difference in cash, and that he gave defendant a check for $100 to apply thereon. He was to some extent corroborated by another witness. Defendant testified that the agreement was conditional ; that he was to go to see the land, and, if found to be as represented by plaintiff, on his return a written contract was to be made, and the check cashed and applied thereon. It was shown, without dispute, that he started the next day to see the land, taking another with him, and that on his return he stated to plaintiff that the land was not at all as represented, and refused to complete the trade, and tore up the check. It was also admitted by plaintiff that there was a mortgage on the land, and that it was not agreed whether he should pay it, or it should be assumed by defendant, which matter was to be determined later. Held, that such evidence did not entitle plaintiff to a decree for specific performance, under the settled rule that it must be clearly shown that the contract was completed, and that its terms were fair, and so definite and certain that they could not be

reasonably misunderstood. 2. SAME.

An offer by plaintiff to pay the mortgage did not relieve the contract from the objection of incompleteness, since neither plaintiff nor the court

had power to complete it to bind defendant. 3. SAME-MUTUALITY OF CONTRACT.

Such contract, even if admitted, could not be specifically enforced by plaintiff, for want of mutuality in obligation, since, under the statute of frauds, both of Iowa, where it was made, and of Missouri, where the land

was situated, it did not bind him to convey the land. 4. SAME-ADEQUATE REMEDY AT LAW-CONTRACT FOR PURCHASE OF CHATTELS.

Under Rev. St. 8 723 [U. S. Comp. St. 1901, p. 583), which provides that suits in equity shall not be sustained in either of the courts of the United States in any case where a plain, adequate, and complete remedy may be had at law, such a court is without jurisdiction to deeree the specific performance of a contract for the sale to plaintiff of a number of cows at a

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stated price per head, where there is no evidence to show that the cows have any distinctive or peculiar value, which cannot be determined in an

action at law for damages, or that defendant is insolvent. 5. FEDERAL COURTS-EQUITY JURISDICTION-OBJECTION ON GROUND OF ADE

QUATE REMEDY AT LAW.

In a suit in equity in a federal court, the objection that plaintiff has an adequate remedy at law is jurisdictional, and may be made at any stage

of the case. 6. Costs—ALLOWANCE IN EQUITY-EXAMINING UNNECESSARY NUMBER OF WIT

NESSES.

Where the successful party in a suit in equity has taken the testimony of a largely unnecessary number of witnesses on an issue, he will be allowed as costs the fees and cost of examination of only such number as the court deens reasonable.

In Equity. Suit for specific performance of contract.

Suit in equity to enforce specific performance of an alleged oral contract for the purchase by plaintiff from defendant of 510 cows. It was commenced in the district court of Iowa in and for Johnson county, and removed to this court by the defendant upon the ground of diverse citizenship of the parties. The petition was filed January 20, 1903, and therein it is alleged, in substance: "That on January 8, 1903, the plaintiff bought of the defendant five hundred and ten cows then in the hands of farmers in Johnson and other counties in Iowa, under contracts with defendant therefor, at the agreed price of twentyfive dollars a head, to be paid in a reasonable time. That such agreement was as follows: That plaintiff, having been the owner of three hundred and fiftyseven acres of land in Ralls county, Missouri [describing it), should pay by check the sum of one hundred dollars down upon the cows aforesaid, and execute a good and sufficient deed and furnish an abstract of title to said land to the defendant (said land to be figured at thirty dollars an acre); and, if defendant had exactly five hundred and ten cows, the plaintiff, in addition to the one hundred dollars paid by check, was to pay defendant the remainder of the difference in value between the land at thirty dollars an acre and the cost of the cows, but, if the number of cows was greater or less than five hundred and ten, then the cows were to be valued at twenty-five dollars a head; and said parties mutually and orally agreed to the terms of such sale. That the complainant at the time of such agreement executed and delivered to defendant a check of one hundred dollars as part payment on the purchase price of said cows, and defendant so accepted and received said check, which would have been paid on presentation to the bank upon which it was drawn. That defendant unlawfully and unjustly refuses to stand by or further execute the oral contract herein alleged. That the contracts between defendant and the farmers in whose possession said cows were, are advantageous to the owner of said cows. That by the terms of such contracts the farmers agreed to pay defendant, as rent per annum for said cows, six dollars each for some, and seven dollars each for others, which contracts enhance the value of said cows, and provide employment and use for the same; and the cows so under contract have a peculiar and distinctive value, that they would not have but for such contracts, and complainant cannot be fully compensated by a money judgment in lieu of the specific performance of said oral contract. That the plaintiff has a clear legal title to said land before described, free from incumbrance, except a mortgage of about six thousand dollars. That, in regard to said mortgage, the defendant agreed to inform plaintiff whether defendant would take the land subject to said mortgage, and assume payment of the same, or require plaintiff to pay the same. That plaintiff brings into court for defendant's use, and tenders herewith, an abstract of title of said land, and a warranty deed thereof, and asks defendant to inform plaintiff whether he desires to assume the said mortgage,

15. See Equity, vol. 19, Cent. Dig. 88 173-176.

(6. Right to costs in equity, see note to Tug River Coal & Salt Co. v. Birgel, 17 C. C. A. 308.

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 (defendunt) 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

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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. 512.

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 poenitentiæ. 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 he 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, 512, 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 613

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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 question 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? It is completed contracts that conclude parties, and not mere negotiations. From the testimony 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. A Mr. Hill was instrumental trying to bring about the deal, and was employed by defendant, after negotiations had been pending for some days, to do so.

Plaintiff says that on January 8th defendant was around his store nearly all day, 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:

"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. I worked too hard to get this deal to have any fooling about it.'

Charley Chansky, my workman, was in the store. That was all. I said, 'What do you want to do?' He said, 'Mr. Maine is my 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, Vír. Ilill 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, Vo: 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 cows- I was 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 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, ou Iowa City State Bank. I

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