Dewey v. Spring Valley Land Co.

NtcwmaN, J. It is not quite plain why the alleged contract should be pronounced unfair. It was surely competent for the parties to agree upon an umpiré, who was mutually acceptable, to decide between them how much, and what, lands-should be deemed necessary to be taken for the purposes, of their contract. Surely the benefit contemplated by the defendant from the building of the plaintiff’s railroad to its. projected town site was ample consideration for its promises and since the referee has found that no more land was taken, than was reasonably necessary for the purposes of the alleged: contract, it is not perceived how the contract could be un 86 fair. Nor is it clear that the contract is too indefinite to be specifically performed, especially after a practical location of the lands to be taken under the contract. A practical location of the premises intended, pursuant to the agreement, is, in many cases, sufficient to give the requisite definiteness to a contract otherwise defective. Lundgreen v. Stratton, 73 Wis. 659-663, and cases there cited. But this is not important here, for a different rule controls the case. Specific performance is not a matter of strict right, but rests in the sound discretion of the court; and the contract sought to be enforced must be fully and clearly proved in all its parts. A mere preponderance of evidence is not sufficient. Blanchard v. McDougal, 6 Wis. 167; Williams v. Williams, 50 Wis. 311; Benson v. Cutler, 53 Wis. 107; Menasha v. W. C. R. Co. 65 Wis. 502; Combs v. Scott, 76 Wis. 662; Hadfield v. Shelton, 69 Wis. 460; Docter v. Furch, 91 Wis. 464; Shenandoah Valley R. Co. v. Lewis, 76 Va. 833; S. C. 12 Am. & Eng. R. Cas. 305, and cases cited in the note. In this case, not only is the fact of the making of the alleged agreement by the persons named denied and in doubt, but it does not appear that either had authority from his respective corporation to bind his corporation by such an agreement, nor that the agreement was ever ratified by either ■corporation, with knowledge of its terms. In this condition of the evidence, it was clearly not an abuse of discretion by the trial court to refuse to decree specific performance. By the Oourt.— The judgment of the circuit court is affirmed.