#### Tickel et al., Appellees, *v.*Shock et al., Appellants.

(No. 1909

— Decided January 24, 1947.)

*Mr. George F. Holland,*for appellees.

*Mr. Julius Herchig*and *Mr. Irvin Carl Delscamp,*for appellants.

By the Court.

This is an appeal on questions of law and fact from the Court of Common Pleas of Montgomery county. The plaintiffs, appellees herein, are seeking a décree of specific performance whereby fhe defendants, appellants herein, are required to deed to the plaintiffs a parcel of land consisting of 15 acres located on the Germantown pike southwest of Dayton, Ohio.

The petition is based on an alleged oral contract entered into by the plaintiffs and the defendant,' Mae F. Shock, a duly authorized agent of the defendant, Ross F. Shock, whereby the plaintiffs agreed to pur*460chasé a tract of land consisting, of 15 acres with a frontage on the Germantown pike, now known as state highway No. 4, of 784 feet, for the snm of $7,300. -The sum of $100 is alleged to have been paid on the purchase price and the balance was to be paid upon the delivery of a general warranty deed. Plaintiffs allege that they have tendered the balance of $7,200 and the •defendants have refused to deliver the deed. «

The petition alleges further that the defendants have delivered possession of the same premises to the plaintiffs under the contract and that they have continued and are still in possession pf the same. The defendants deny generally all the allegations contained in the plaintiffs’ petition.

The record in this case discloses that the defendant, Ross P. Shock, is the owner of a tract of land situated in Montgomery county and fronting upon -German-town pike. That land had been purchased by the defendant, Ross P. Shock, from his grandfather’s estate. Mae P. Shock, one of the two other defendants, is the mother of Ross P. Shock, and was one of the heirs from whom the farm was purchased. Dorothy Shock, the other defendant, is thie wife of Ross P. Shock.

Before the purchase was made by defendant Ross P. Shock, a survey was made of the farm by Glenn Murr, a licensed surveyor, which survey was completed in the year 1944. After purchasing the farm, the defendant Ross P. Shock retained Glenn Murr for the purpose of subdividing this property into lots containing two to three acres of land. After the subdividing was done there remained approximately 20 acres which were not suitable fon subdividing. The tract contained the house and other "buildings and was commonly referred to as the “homestead.” It was from that tract of land that the defendants sold the 15 acres to the plaintiffs.

*461We find from the evidence that Mae F. Shock was acting as the duly authorized agent of the defendant Ross P. Shock. After several conferences with Mae P. Shock, on July 17, 1945, an agreement was entered into between Mae P. Shock and the plaintiffs for the purchase of 15 acres for the sum of $7,300, the sum of $100 being paid in cash and for which the plaintiffs were given a receipt which stated that it was for down payment on the Fryer farm consisting of 15 acres. On or about the 28th day of July, 1945, the plaintiffs moved into the premises and are still in possession. On August 6, 1945, a dispute arose between the parties as to the boundary lines of the 15 acres, the plaintiffs claiming that they were to have a frontage of 784 feet on Germantown pike, and the defendants contending that they were to receive only 605 feet. The testimony discloses that the frontage was discussed by the parties and the trial court found the 784 feet to be correct. Were this the only dispute with reference to the boundaries of the 15 acres the plaintiffs would be entitled to a decree.

We find from the evidence that a part of the remaining boundary line was not agreed upon by the parties. The evidence discloses that Mrs. Shock showed the plaintiffs a map of the farm and that she traced its boundaries from it with ,the plaintiffs. Two maps have been offered in evidence as being.the ones she used. The one offered by the plaintiffs and known as plaintiffs’ exhibit D, is a blueprint on which certain lead pencil markings have been added. That map was found in the possession of Glenn Murr, the surveyor, who testified that it was in his possession at all times; that it was being used by him as a work sheet for the purpose of completing the survey and therefore was not in Mrs. Shock’s possession on July 17. The other map offered is known as defendants’ exhibit No. 2 and it ¡shows only the boundaries of the 20-aere tract.

*462After considering all tlie evidence, we are of the opinion that the latter is the map used by Mrs. Shock in describing to the plaintiffs the boundary line of the farm. The testimony discloses that a small creek runs from the Germantown pike in a southeasterly direction through this farm. The plaintiffs were to receive some land to the east of this creek, but what those boundaries were was not definite and could not be ascertained from the map shown to the plaintiffs.

On cross-examination Rebecca Tickel was asked the following question:

“Q. So you didn’t know after she told you that night, where the line would be, did you? A. Over across the creek I didn’t, but I knew where the rest of it was. * * *

“Q. And after that where did the east or west line go to? A. Well, the east line was down and went to the creek on that side.

“Q. And then where did'it go after that? A. Well it crosses there.

“Q. How far across the creek does it go? A. I don’t know.

“Q. How many feet? A. I don’t know.

“Q. Where did she point to? A. Over to Bowman’s cornfield fence.

“Q. And how far along Bowman’s fence would it go? A. I don’t know.

“Q. What did she tell you? A. To a certain point, where it comes back.

“Q. What was the certain point? A. I don’t know.”

The testimony of Irvin W. Tickel with reference to the east boundary is just as indefinite as that of his wife. He was asked the following question:

*“Q.*In other words, all you can tell about this blue print was the existing fence line ‘I,’ and the line ‘T.’ A. That’s the one there.

*463“Q. And the other lines yon can’t tell about? A. I don’t know for sure. She pointed out-where this would be here, but I don’t know — the road frontage is the main part.

“Q. I know, but I want to find out what part contained this 15 acres that she showed you on this map? A. Well, this down here, and this one.

“Q. That’s the only two you remember? A. That’s right. ’ ’

Irvin W. Tickel testified on another occasion that Mrs. Shock did not tell them how many acres they would receive east of the ditch. Glenn Murr, the surveyor, testified that the plan was to find a purchaser for a part of the remaining acreage and then to make the survey. He testified that his survey for the 15 acres was not completed until August 15, and until this was done it would be impossible to give a description for 15 acres out of the whole tract.

The question of the statute of frauds was raised by the defendants, but since the plaintiffs were placed in possession of the property, we find tfiat it has no application. See 37 Ohio Jurisprudence, 141; *Hodges*v. *Ettinger,*127 Ohio St., 460, 189 N. E., 113. That proposition is so academic that we believe no further citations are necessary.

One of the fundamental rules respecting the specific performance of contracts is that performance will not be decreed where the contract is not certain in its terms. *State*v. *Baum,*6 Ohio, 383; *Trent Milling Co.*v. *Wells-Abbott-Nieman Co.,*10 Ohio App., 297; *Lindner Co.*v. *Myrod Shoe Co.,*38 Ohio App., 182, 175 N. E., 879.

The terms must be complete and free from doubt or ambiguity and must make the precise act which is to be done clearly ascertainable.

We find in Pomeroy’s Specific Performance of Con*464tracts (3 Ed.), 350, Section 136, the following statement : '

“In order that a court of equity "shall exercise its power to decree a specific execution, where there has been a part performance, the contract itself must be clear, certain, and unambiguous in its terms, and must either be admitted by the pleadings, or proved, with a reasonable degree of certainty, to the satisfaction of the court. If, therefore, 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. It has been said, in some American decisions, that in suits ■ upon contracts for the purchase or sale of land, the location *and boundaries of the land in question*must be clearly defined in the contract and established by the evidence; and though the parties have agreed as to all other terms, if they have not as to these particulars, there is no contract which can be enforced.”

After applying the principle of law announced *supra,*we are of the opinion that the plaintiffs are entitled to no relief for the reason that the eastern boundary line of the tract of land was not agreed upon between the parties. There was never a meeting of the minds and this court cannot make a contract for the parties and furnish a description of the 15 acres of land which was "undivided at the time the agreement was entered into. We think that the defendant, Ross F. Shock, demonstrated his good faith in this matter, for about a week after thé contract was entered into, when he learned that there was a misunderstanding as to the amount of frontage on the Germantown pike, he Offered to return to the plaintiffs their $100 deposit .and in addition to pay their expenses incurred in moving into the property.

*465For the foregoing reasons our judgment is for the •defendants for costs.

*Judgment accordingly.*

Hoenbeck, P. J., Miller and Wiseman, JJ., concur.