Eckel v. Bostwick

FíNNky, J. The plaintiff relies upon on oral agreement for the conveyance of the premises, and part performance of it, to take the case out of the operation of the statute of frauds. The evidence seems to be sufficient to establish the contract upon all the material points, except in respect to the important and vital one of the price or consideration to be paid for the premises. Upon this point the parties flatly and positively contradict each other, and there is no evidence corroborating the plaintiff’s statement. The result is that the contract is not made out with the clearness and certainty necessary to entitle the plaintiff to the relief prayed. In Buxton v. Lister, 3 Atk. 386, in speaking of contracts which the court will enforce, Lord IIaedwiokh said: “ Nothing is more established in this court than that every agreement of this kind ought to be certain, fair, and just in all its parts. If any of those ingredients are wanting in the case, the court will not decree specific performance.” And in Lord Walpole v. Lord Orford, 3 Ves. Jr. 420, Lord UusslyN laid it down as a general proposition, to which he knew of no limitation, that “all agreements, in order to be executed in this court, must be certain and defined,” and that “ they must be proved in such manner [497] as the law requires.” Unless the evidence offered in support of the contract be fully sufficient and ample, a court of equity will not exercise its jurisdiction to enforce it (Colson v. Thompson, 2 Wheat. 336), although it is said that, where a contract has been partly executed by possession having been taken under it, the court “ will strain its power to the utmost ” (Parker v. Taswell, 2 De Gex & J. 559, 571). It is laid down in Fry on Specific Performance (sec. 335) that “ price is an essential ingredient of the contract, and, where this is neither ascertained nor ascertainable, the contract is void for incompleteness, and incapable of enforcement.” Incompleteness of contract and inability to •satisfactorily establish it, in their bearing upon the plaintiff’s right to relief, are substantially the same. It is the duty of the court to deny relief unless the contract is clearly and satisfactorily proven (Hibbert v. Mackinnon, 79 Wis. 673, 680; Knoll v. Harvey, 19 Wis. 99), for otherwise the court has no assurance that in interfering' to decree specific performance it is not doing a great injustice. The rule is stated by Mr. Pomeroy in his work on Specific Performance (sec. 136) that “ if, upon all the evidence given by both parties, the court is left in doubt as to the entire contract, or even as to any of its material terms, it will not grant the remedy, although a partial performance of something .has been sufficiently proved; ” and a great number of cases are cited to that effect. The application of this rule to the evidence before us is fatal to the plaintiff’s case.. We were urged, in case we should be of the opinion that the judgment ought not to be reversed, to modify it so. as to dismiss the plaintiff’s complaint without.prejudice;, but as the judgment was upon the merits and is not erroneous, there is' ho legitimate ground upon which we can modiáy it in the least. The contract set up by the plaintiff-' is< voi'dy so that the plaintiff could have no remedy upon it at Haw, and there is therefore no-ground upon which thiseourfe can [498] properly modify the judgment, as was done in Richards v. Allis, 82 Wis. 509, 514. The judgment of the circuit court is correct and must be affirmed. By the Court.— The judgment of the circuit court is affirmed.