#### Hiram E. Waldo, appellee, v. Charles W. Lockard at al., appellants.

Filed July 11, 1914.

No. 17,486.

1. Specific Performance: Exchange oe Pkopeeties. In an action for the specific performance of a contract for the exchange of real estate and personal property, where plaintiff had performed the contract on his part, and defendant had partly performed the same on his part, the fact that the part which he was to perform, but refused to do, consisted of the mutual invoice of a stock of goods, lumber and coal would not of itself deprive plaintiff of the right to a decree of specific performance.

2. -. Where a substantial compliance with a contract for the exchange of real estate and personal property had been made by.both parties to the contract, it is within the jurisdiction and power of a court of equity to deeree the completion of such contract by a decree for specific performance.

.3. -. The written memorandum of a contract contained no provision that the deeds to the land involved in the litigation should be subject to certain mortgages on each party’s land, and the parties thereafter met, and, in the presence of each other, dictated to a scrivener the deeds to be executed, and executed them accordingly, leaving them with a third party in escrow for delivery upon the completion of the invoice and delivery of the property to be invoiced, the same being in furtherance of the contract of exchange. The fact that the liens upon the land, excepted in the deeds, were not referred to in the written contract will not, in the absence of fraud or mistake, avail defendant as a defense to an action for specific performance.

Appeal from the district court for Wheeler county: James R. Hanna, Judge.

*Affirmed.*

*Albert <& Wagner*and *A. L. Bishop,*for appellants.

*E. G. Yaü*and *J. R.*Swain; *contra.*

Reese, C. J.

This, is an action for the specific performance of the exchange of properties between plaintiff and defendant. The pleadings are. of considerable length, and we will make-no effort to set them out in full. A written memorandum *491of an agreement was entered into between the parties, as follows:

> “Agreement. Sale of Real Estate. This indenture made this 9th da.y of September, 1910, hy and between O. W. Loekard, party of the first part, and H. E. Waldo, party of the second part, witnesseth: That the party of the first part has this day sold to the party of the second part the following described real estate, to wit, described in Memo B herewith attached, together with all appurtenances thereto attached, for which the party of the second part agrees to pay the sum of one dollar and other consideration described in Memo A herewith attached. The party of the first part is to furnish a warranty deed, a good and sufficient abstract of title, pay all taxes assessed against said land, and will give possession according to Memo B. In testimony whereof, the parties aforesaid have subscribed their names to (the date) above mentioned. O: W. Lockard, H. E. Waldo. Witness, Fred A. Ouscaden..

> “Memo B. It is agreed that in invoicing each party choose an invoicer and all questions of unmarked goods to be left to said appraisers. Bldgs. 2 lots, 7 and 8 and 10 and lots 5-6 in block 8 — 6000.00. W back lots — 100.00. Lumber at invoice price. General merchandise at invoice price. Hardware at invoice price, freight added. Coal at invoice price. Possession of property to pass at invoice time, not earlier than Oct. 10, 1910, or soon thereafter. Waldo agrees to furnish relinquishment, in case he cannot, then he agrees to pay $2,500 forfeit to C. W. Loekard. 1 agree to this stated inventory. H. E. Waldo. Witness, Fred A. Ouscaden.

> “Memo A. 2 sec. of land 1 deed as follows, Sec. 25-22-9, 1. relinquishment, S. %, S. Sec. 13, N. %, Sec. 24 and S. E. bi Sec. 24, all in 22, 9; 4 head horses, 2 brood mares, 2 mare colts, 10 head young cows, harness, all machinery belonging to place, consisting of 2 mowers, 2 rakes, 1 sweep, 1 stacker, 1 riding cultivator, 1 walking cultivator, 2 disks, 1 harrow, 1 wagon, 2 hayracks, feed grinder, small forge, also all of the hay except 10 ton, and all my share of the corn, except 500 bu. to be husked by Waldo, O. W. *492Lockard to deliver share of corn on school section to lessee (1/3) of'crop. O. W. Lockard.”

A short time after signing of the agreement, the parties agreed to execute deeds and leave them in escrow with the Ericson State Bank, to he delivered by the bank to the proper grantees upon the completion of the invoice and delivery of the personal property. The deeds were accordingly executed September 26, 1919. It is alleged that plaintiff has performed all the conditions on his part to be performed, including the release of the homestead of 649 acres of land, and the filing thereon by defendant; that he caused his deed, together with the personal property mentioned in the contract, to be tendered to defendant, and demanded an. invoice and a like transfer by defendant, but that his demand was refused. The prayer of the petition is for specific performance of the contract.

Defendant answered denying all unadmitted allegations of the petition; admitting the execution of the agreement for the exchange of properties, that plaintiff procured a relinquishment of the homestead entry of 649 acres of land, and defendant filed his homestead entry thereon, that the deeds were executed as alleged and placed with the Ericson State Bank to be held subject to the orders of the parties; alleging that defendant Mary C. Lockard executed the deed signed by her without any consideration therefor, that lots 7 and 8, in block 8, in Ericson, are and were the family homestead of defendants, and the deed therefore is, for that reason, void, and that the said agreement for the exchange was not signed by her. A trial was had to the district court, which resulted in a number of special findings, all of which are in favor of plaintiff, followed by a decree for specific performance. Defendants appeal.

It is not deemed necessary to set out the findings and decree at length, as it would extend this opinion beyond the usual and necessary limits. Among other things, it is ordered that the personal property be invoiced and the invoice returned into court within 39 days, which, it is claimed, is unusual and beyond the power of the court. *493Other provisions and findings of the decree are objected to, which will be briefly noticed. It is contended by appellants that “the contract shown by the evidence is not sufficiently definite and certain to sustain the decree,” and 6 Pomeroy, Equity Jurisprudence (3d ed.) sec. 746, is quoted to the effect that “for specific performance is required that degree of certainty and definiteness which leaves in the mind of the chancellor or court no reasonable doubt as to what the parties intended, and no reasonable doubt of the specific thing equity is to compel done.” So far as this proposition is concerned, there is no specific stock on plaintiff’s then farm particularly described; but the evidence of plaintiff is to the effect that the stock on the farm was known by defendant, and the number of head of horses and cattle specified in the contract, and of the known quality, were left upon the farm when plaintiff was ready to surrender possession and when he actually removed therefrom, so that in that regard plaintiff complied with his contract. It is true that the defendant’s stock of goods and other personal property in and about his store, lumber and coal yards were not invoiced; but the stocks were particularly named, and the quantity of each were to be subject to invoice for the purpose of ascertaining the value, the surplus of value, if any, to be paid for by plaintiff, and, if the invoice fell short of the agreed value, the deficiency to be made up by defendant. The contract was entered into the 9th day of September,. 1910. The method of making the invoice was agreed to, and it was stipulated that the possession was to pass upon the completion of the invoice, not earlier than October 10 of the same year. The value of the real estate of both parties was agreed upon. Plaintiff agreed to release tO' defendant his homestead entry on 640 acres of land, the same to be taken by defendant, and to deed to him a section of land to Avhich he held the title. Plaintiff duly released his homestead entry, and defendant filed thereon, and, so far as is shown by the record, still holds his homestead right to the land. The deeds were subsequently executed, leaving blanks for the statement of the consideration to be *494filled in after the completion of the invoice, both parties being present at the notary’s office when the deeds were written, and each signed and acknowledged before the notary (each party and his wife signing the deed to be executed by them), and the deeds were placed in the bank in escrow for final delivery upon the completion of the invoice and filling the blanks as to consideration. This was done in furtherance of the agreement of September 9.

As to the contention that the contract is not definite and certain to warrant the decree of the district court, it must be admitted that it is not what such a contract should be, but the parties appear to have understood it fully, as shown by their subsequent conduct, and, since it has -been performed by plaintiff and partly performed by defendant, and he has received and retained a part of the consideration, we are not at liberty to say that the contract is so indefinite as to prevent its enforcement by the courts.

The next proposition presented by defendant is that the evidence fails to show that plaintiff has performed or offered to perform his part of the contract. This is based upon the contention that (1) “he never delivered or offered to deliver the personal property which was part of the consideration moving from him, but delivered it to a stranger without authoi’ity.” To this we cannot agree. It is conceded that he released the homestead right to 640 acres of land, and that defendant accepted the release and filed upon the land; his right thereto never having been questioned. Plaintiff testified that .at the time he was removing from the farm he notified defendant of his intention to vacate the property, and that they agreed upon a suitable person to be left in charge, which was done as agreed. This was denied by defendant upon the witness-stand. The district court by its decree found that such an arrangement had been made, and, from all the evidence and circumstances shown, we are persuaded that the finding was correct. Certainly we cannot reverse the decree upon that ground. (2) “He never offered to invoice the stock,” which, we assume, .refers to the stock of goods, *495lumber and coal named in the contract. Upon this part of the case, we must conclude that plaintiff was not acting under proper advice, for he procured his invoicer, but did not exercise all the care which he might have done, had he been acting under directions. It is true he, with another, went to the store twice, one time found it closed, the other time open, but no one in charge, at least no one answered their calls. Defendant was absent from home much of the time, and plaintiff failed to see him. It seems to be assumed that it was the duty of plaintiff to offer to make the invoice, but the duty was, in reality, upon the defendant. Nothing could be plainer than that he did not intend to make the invoice. (3) “He never surrendered, •or offered to surrender, possession of the section of land he had agreed to convey to defendant. On the contrary, about March 1, 1911, and after the contract was made, he leased the land, and the personal property, to a third party for a year, and the tenant was in possession when the suit was tried.” The conclusion here must rest upon the decision of the district court, as well as our own, that the plaintiff and defendant agreed that one Hemingway should' be placed in charge for defendant. This being found to be true, there was no legal objection to Hemingway remaining on the land until defendant discharged him or terminated the possession. Acting upon the rule that it was plaintiff’s duty to so care for the property as to make the damages as light as possible, he left Hemingway in possession. He agreed with him on the terms of possession, but subject to defendant. It was, to say the least, rather an unusual course to pursue, yet, as plaintiff was aware that defendant was. seeking to repudiate the contract, it is difficult to say what else he should have done. Reasonable care and common fairness would seem to require that some action on the- part of plaintiff would be necessary in order to protect the property as nearly as might be in its then condition.

It is said that in the memorandum agreement there is no provision for the conveyance of any of the land subject to mortgages, yet, in the deeds as executed, plaintiff *496takes his real estate subject to a mortgage of $900, and. the one made by plaintiff to defendant is subject to a mortgage for $2,500. As we have seen, all parties were-present at the time of the writing and execution of both, deeds. They were well understood and acceptable to both parties at that time, and, no doubt, according to the previous agreement, which was not stipulated in the writings. Otherwise, objections should have been made when the deeds were read. The deeds, containing the clause referring to the mortgages, were dictated to the scrivener in the presence and hearing of all. We cannot see that the objection can avail defendants.

Finding no error in the decree of the district court, it is

Affirmed.