#### J. L. Gates Land Company, Appellant, vs. Ostrander and others, Respondents.

*February 2*

February *21, 1905.*

*Contracts: Specific performance: Statute of frauds: Oral agreement for sale of lands: Part performance.*

1. The plaintiff corporation having an option to purchase certain lands, an oral agreement was made between it and defendants’ agent that defendants would purchase the lands from the owner and, after removing the timber, convey them to plaintiff for a certain price stated ih plaintiff’s written offer, which, with the oral agreement, was to be submitted to one of the defendants personally for acceptance. The.written offer was retained by said defendant but never accepted in writing. Acting upon the oral agreement with the agent, plaintiff relinquished its option to purchase the lands. Plaintiff knew that the agent had no authority to purchase lands for defendants as contemplated by that agreement. . The lands were then purchased by defendants, who afterwards refused to convey to plaintiff. *Held,*that there was no completed contract between the parties of which specific performance could be enforced.

'2. Plaintiff’s relinquishment of its rights under the option to purchase, before the proposed oral agreement had been accepted, was not an act of part performance under and in pursuance of an agreement with defendants so as to constitute a basis for enforcing specific performance.

‘3. There being facts from which the inference is legitimate that plaintiff may have relinquished its option because it did not intend to purchase the lands upon the terms thereof, such re-*288linquislnnent cannot be held clearly and exclusively referable' to, and done in pursuance of, tbe oral agreement, so as to warrant tbe enforcement of specific performance-.

Appeal from a judgment of tbe circuit court for Gates-county: JohN GoodlaND, Judge.

*Affirmed.*

Tbis is an action by tbe plaintiff, a corporation of tbis state, to enforce tbe specific performance of a parol contract to convey real estate. Tbe complainant alleges tbat it made a contract with tbe defendants to purchase certain lands and tbat defendants now refuse to convey tbe lands covered by its terms. Tbe complaint' sets out tbat plaintiff in tbe year 1900 was engaged in tbe business of buying and selling wild lands in northern Wisconsin which were suitable for agricultural purposes; tbat it procured an option from tbe French Lumbering Company, of Ingram, Wisconsin, upon a large tract of timber land owned by tbat company, which option entitled plaintiff to purchase said property at a stated price; tbat, with thé view of securing tbe lands in tbe form of stump lands, it secured to itself, for a limited time, control of tbe sale and disposition of these lands to such other parties as it might select; tbat in tbe month of November, 1900, one *E. D. Van Etten,*acting as agent of tbe defendants in tbe purchase of suitable tracts of timber in Wisconsin, with a view of conducting a lumber business, negotiated with plaintiff to secure tbe timber on tbe lands covered by plaintiff’s option upon tbe French Lumbering Company’s lands; tbat with plaintiff’s consent *E. D. Van Etten*negotiated with tbe lumbering company for tbe purchase of its entire-property, consisting of lands, a town plat, stock of merchandise, buildings, and improvements, situated at Ingram, Wisconsin, and obtained an offer from tbe lumbering company to sell all tbis property to defendants at a specified price, upon tbe condition tbat plaintiff would agree to purchase the-lands at a satisfactory price after tbe merchantable timber bad been removed, which contract be, as agent, approved and *289accepted subject to defendants’ approval; and that this oral contract so made by *E. D. Van Ellen,*acting for his principals, and plaintiff, acting through its president, J. L. Gates, on November 13, 1900, was as follows:

“(1) That the said plaintiff would relinquish its interest in said lands, and notify the said French Lumbering Company thereof, and give the latter company authority to go on and complete a sale and transfer of said property to the parties in whose interests the said *E. D. Van Ellen*was acting as aforesaid.

“(2) That said plaintiff should execute and deliver to said *E. D. Van Etten,*for the benefit of his principals, and that the said *E. E. Van Etten*should accept, for his principals, a muting of the purport and effect of the written agreement of *J ames L. Gates Land Company,*bearing date on that day, and hereinafter set forth in full.

“(3) That the principals of said *E. D. Van Etten,*consideration thereof and of the said relinquishment of the plaintiff, would, as soon as the said French Lumbering Company transferred to them the property aforesaid, so as to enable him or them to execute to the plaintiff a contract for the conveyance to it of the property described in said written agreement of the plaintiff, execute and deliver to the. plaintiff such contract for the conveyance thereof to the plaintiff upon the terms therein mentioned.”

The complaint further alleges that in pursuance of and as performance upon its part of the terms of said oral agreement, the said plaintiff immediately notified the French Lumbering Company aforesaid that the plaintiff relinquished its interest in said lands, and executed and delivered to the defendant *E. D. Van Etten,*for the benefit of his principals, the written agreement hereinbefore referred *to,*and of which the following is a copy:

“Chippewa Falls, Wis., Nov. 13, 1900.

*“Mr. E. D. Van Etten:*

“In consideration of your purchase of the French Lumbering Co.’s lands and plant at Ingram, Wis., consisting of 1474 forties of land, we hereby agree to take said land off your *290hands as soon as yon get the timber off, and pay you for said land at about the rate of $2.60 per acre; that is, we will take all the land leaving yon the town site and all improvements thereon, paying you the sum of fifteen thousand ($15,000.00) dollars for the said land consisting of about six thousand acres in Townships 35, 3 West, 35, 4 West, 36, 3 West, 36, 4 West.

“Respectfully, J. L. Gates Laud Co.

“By J. L. Gates, President.”

It is further alleged that E. *D. Van Etten*accepted for defendants the above written memorandum of November 13, 1900, on the clay it bears date, and that he immediately transmitted and delivered it to *II. A.*Ostrander, one of the defendants, who retains and now holds it, and who, by virtue of it and the surrender of plaintiff’s option from the French Lumbering Company, was enabled to and did make on November 15, 1900, an executory contract with the French Lumbering Company for the purchase of the lands covered by the option, and _ivho consummated the purchase on November 30, 1900, by acquiring all the title and interest in and to these lands for the benefit of the defendants.

The complaint further sets forth that the interest held by plaintiff under the option so relinquished was of great value, namely, the sum of $15,000, which sum formed the consideration of the agreement under which defendants agreed to convey to plaintiff the title to the stump lands so acquired by it from this lumber company^ and that defendants now refuse to comply with the terms of this parol contract, notwithstanding the fact that the timber has been cut and removed from large tracts of these lands; that plaintiff has tendered full performance of such agreement on its part; and that defendants’ refusal to comply with this contract will operate to the great and irreparable injury of plaintiff. It therefore asks that the contiact be enforced specifically, and, in so far as such relief cannot be granted by reason of defendants’ acts in the matter, that the court grant such other equitable relief as may be found just.

*291Upon tbe bearing of tbe case in tbe trial court it was stipulated as a fact tbat defendants bad never, in writing, accepted plaintiff’s offer of November 13, 1900, and tbe complaint was deemed amended to tbat effect. No evidence was received in tbe case, and judgment dismissing tbe action was awarded by tbe court.. From this judgment plaintiff appeals.

For tbe appellant there was a brief by *By an, Hurley & Jones,*attorneys, and *John Barnes,*of counsel, and oral argument by *M. A. Hurley.*

*W. M. Boiue,*for tbe respondents.

SiebecKee, J.

Tbe object of tbe action is to enforce specific execution of an alleged parol contract for tbe sale of lands. It is averred tbat tbe defendant is precluded from insisting upon tbe statute providing tbat “every contract . . . for tbe sale of any lands or any interest in lands shall be void unless tbe contract or some note or memorandum thereof, expressing tbe consideration, be in writing and be subscribed by tbe party by whom . . . tbe sale is to be made or by bis lawfully authorized agent” (sec. 2304, Stats. 1898), for tbe reason tbat tbe plaintiff has in part performed tbe agreement.

Tbe material facts relied on are tbat plaintiff bad an option to purchase tbe lands from tbe French Lumbering Company, tbe owner of them at tbe time tbe alleged agreement was made; tbat one *E. D. Van Etten,*as agent of tbe defendants,made a parol contract with plaintiff whereby it was agreed that defendants should purchase these lands from tbe French Lumbering Company upon tbe terms and conditions of an offer tbe lumbering company bad made to *Van Etten*as agent of defendants; tbat, as soon as defendants bad removed the merchantable timber therefrom, tbe lands should be conveyed to plaintiff at tbe price specified in plaintiff’s written offer for the purchase of these lands from defendants. It is further alleged tbat this agreement, with tbe offer of purchase, was to be submitted to tbe defendant *Ostrander*per*292sonally for accejDtance; tbat be never accepted it in writing, bnt tbat be retains tbis written offer; tbat plaintiff, acting upon tbe agreement made with tbe agent *Van*Etten, relinquished its rights under tbe option then held by, it for tbe purchase of tbe lands. Tbe fact also appears tbat James L. Oates, acting as plaintiff’s authorized officer,- bad full knowledge tbat *Van Ellen*bad no authority to purchase lands for defendants as contemplated by tbis agreement.

In actions for tbe specific performance of parol contracts for tbe sale of lands, tbe primary and fundamental requisites are tbat a contract be established possessing all tbe elements and features necessary to a specific enforcement, and tbat the-contract sought to be enforced upon part performance be fully made and completed in all its terms except tbe written memorandum required by tbe statute. 1 Story, Eq. Jur. § 767; Pomeroy, Spec. Perf. secs. 110, 145; Pomeroy, Eq. Jur. § 1409, and note.

It is contended tbat tbe facts alleged show tbat a completed contract was entered into between plaintiff and defendants, whereby defendants agreed to convey tbe lands to plaintiff xxpon tbe terms specified. Tbe facts alleged are tbat tbe agent of defendants entered into tbis contract for tbe sale of lands subject to bis principals’ approval, and tbat such agent delivered plaintiff’s written offer for tbe purchase of these lands to defendants, but who- neither personally nor through such agent assented to such proposed agreement. It is true defendants did not return tbe written memorandum of plaintiff’s offer to purchase; but there was no express agreement tbat such retention of tbe memorandum should be an acceptance of tbe proposed contract, nor does it follow tbat such is tbe effect by necessary implication. As a matter of fact tbe parties made no agreement. Tbe transactions between tbe plaintiff’s president and defendants’ agent, in legal effect, were no more than tbe preliminary negotiations for an agree-*293rnent, which, failed of consummation by the refusal of defendants to accept it. If plaintiff, relying on the assurances of defendants’ agent, acted on such preliminary agreement, it is no ground for invoking this form of equitable relief, which is only granted when it clearly appears that a contract has been, in all its elements, fully completed between the parties, except reducing it to writing. The facts alleged fail to establish that a contract for the purchase of these lands by plaintiff was ever accepted or agreed to by defendants, personally or by any authorized agent for them.

Under this state of the case plaintiff is not legally aided by the fact that the lands were subsequently purchased by defendants. Plaintiff relinquished its rights under the option for the purchase of these lands upon the proposed agreement as made between it and defendants’ agent; its representative being at the time fully informed that the agent had no authority to buy lands for the defendants, and that the contract had not been approved or sanctioned by them. The relinquishment of plaintiff’s option from the French Lumbering ■Company, under these circumstances, is not an act of part performance under and in pursuance of an agreement between plaintiff and defendants. It was in fact a prior act done in anticipation of the acceptance of the contract by defendants. Plaintiff’s representative was bound to know whether a valid and completed agreement had been actually made between himself and defendants, except reducing it to writing, when the alleged act of part performance took place. The rule is that the acts of alleged performance must be obviously and solely done in reliance on, and under the obligations of, an established parol contract. *Park v. M., St. P. & S. S. M. R. Co.*114 Wis. 347, 89 N. W. 532; 1 Story, Eq. Jur. § 762; Pomeroy, Spec. Perf. see. 108; *Lydick v. Hol*land., 83 Mo. 703.

Another fundamental requisite is that the part perform-*294anee relied on for specific execution of tbe contract “must be-clearly and exclusively referable to, and in performance of, its terms.” If tbe alleged acts of performance are reasonably explicable upon some other grounds, then they are not sufficient to take tbe case out of tbe statute. Plaintiff insists that its relinquishment of its interest in these lands under tbe option was done solely with a view to tbe performance of this agreement. It is alleged,' however, that tbe option contract obtained from the French Lumbering Company entitled plaintiff to purchase said property at an agreed price for a stated period of time, that tbe lumber company would not sell tbe timber separate from tbe lands, and that plaintiff was willing and ready to purchase tbe stump lands covered by tbe option. It is not alleged that plaintiff bad decided to buy tbe lands with tbe timber thereon, under tbe option, but it is stated that it did not want tbe lands with tbe timber; clearly tending to negative a purpose to make such a purchase as tbe option contract provided. From these facts tbe inference is legitimate that it may have relinquished tbe option because it did not intend to .purchase these lands upon tbe conditions of tbe option. Under such circumstances the relinquishment of tbe option cannot be held as clearly and exclusively referable to, and as done in pursuance of, tbe alleged contract for tbe sale of tbe lands between it and the defendants. As stated by Chancellor Kent in *Phillips v.*Thompson, 1 Johns. Ch. 131:

> “It is well settled that, if a party sets up part performance to take a parol agreement out of tbe statute, be must show acts unequivocally referring to, and resulting from, *that*agreement — such as tbe party would not have done unless on account of that very agreement, and with a direct view to its performance. . . . There must be no equivocation or uncertainty in tbe case.”

Plaintiff has failed to establish satisfactorily and clearly that an agreement for tbe sale of lands was made as claimed, and that tbe acts alleged as part performance are exclusively • *295referable to, and. done in performance of, tbe alleged contract. Tbe conrt ruled correctly in bolding that tbe complaint does not state a good cause for tbe specific enforcement of an alleged contract for-tbe sale of lands.

*By the Court.*— Judgment affirmed.