The record-union., 1891-03-16

For respondents, John Gale.
IN BANK
fAA1hh EFT ali Respondents, ~ ;. 20
ABRAHAMs, Appellant
The plaintiffs in their complaint allege
chat on the 18th day of January, 1888. they
and the defendant entered into an agree
ment, of which the following is a copy:
'BIGGs, January IL, 1888.
Ihls agreement made and entered into
by G. s. Preble and c. S. Young of Reno,
Nevada, and A. Abrahams of the same
place; said Preble d Young agree to sell
acre, Tor forty acres of the eighty-acre
tract at Biggs, and upon the payment of
the said sum said parties of the first part
Shall make, execute and acknowledge
and deliver unto the party of the second
part good and sufficient deed, vesting
the title of said property in party of sec
ond part. PREBLE u YOUNG,
"A. ABRAHAMs.
Witness, M. BIGGs, JR.''
Plaintiffs further aliege that when said
agreement was written, it was understood
between all the parties thereto that the
same should contain a clause obliging said
defendant to buy said land at said price
of one hundred and twenty-five dollars
per acre, and the omission of such clause
therefrom was wholly accidental and un-
Intentional. That between the words
''said Preble and Young agree to sell to
Abrahams, of Reno" and the words 'for
one hundred and twenty-five dollars per
acre for forty acres of the eighty-acre
tract at Biggs" in said contract, there
should have been inserted the words land
said Abrahams agrees to purchase"
That the omission was the result of a mu-
tual mistake, etc. Plaintiffs further al
lege that they have kept and performed
oil hn re md
on their part to be performed, and that
defendant refuses to Keep or perform any
of the terms, covenants or conditions of
said contract on his part, and refuses to
purchase said land or pay plaintiffs there
for. Wherefore plaintiffs pray to have
said contract reformed so as to make it
obligatory upon defendant to purchase
said land at the price agreed upon, and
that as so reformed it be construed and
enforced. In his answer the defendant
denies all the material allegations of the
complaint, except the making of the
memorandum in writing, a copy
of which is contained in the
complaint. Evidence was introduced
by the plaintiffs tending to prove the
alleged mistake in the memorandum in
writing of the agreement between the
parties, and by the defendant tending to
prove that there was no mistake. Upon
all the material issues the court found in
favor of the plaintiffs, and decreed the
reformation OF the contract and q specific
performance of it, as prayed in the COM
plant. Defendant moved for a new trial
upon statement. The motion was de-
MED, and from the judgment and from
the order denying the motion for new
trial defendant appeals.
Everything relating to the reformation
OF the contract may be eliminated from
the case, because the contract, as re-
formed, means Just what it did before it
yKypSs ,ntttD
it obligated the defendant as strongly to
buy and pay the price specified for the
land as it did the plaintiffs to sell it for
that price.
Appellant contends that the agreement
which it is sought to have specifically
performed is IAN agreement, the terms of
which are not sufficiently certain to make
the precise act which is to be done clearly
ascertainable,' and, therefore, cannot be
specifically performed. &C. c., Sec. $780,
The contention is that the agreement to
sell forty acres of the eighty-acre tract
at Biggs'' is not sufficiently certain to
make the precise act which is to be done
clearly ascertainable. This is the only
agreement in writing, between the par
ties for the sale or purchase of any real
estate; and an agreement not in writing,
for the sale and purchase of real estate is
void. And the description of the prop
erty in the written agreement is so en-
tirely uncertain as to render the instru-
ment imperative and void, unless we can
go beyond the face of it to ascertain it's
meaning. Parol evidence is always ad-
missible to explain the surrounding cir
culnstances, and situation and relations
OF the parties, at and Immediately before
the execution of the contract, in order to
connect the description with the thing
intended, and thereby to identify the
subject-matter, and to explain all techni-
cal terms and phrases used in a
Contracts, Sec. 1922 1t appears by the
written agreement that the parties in
tended a sale and purchase of land. and
that il was forty acres of the eighty
acre tract at Biggs.' If the vendors
owned an eighty-acre tract at Biggs, we
would assume that they intended to sell
forty acres of the eighty-acre tract owned
by them at Biggs. Evidence was intro
duced which tended to prove the location
and description of the eighty-acre tract
at Blggs, and in what part of the tract the
forty acres which plaintiffs agreed to sell
to defendant was situated. The court in
effect, found that at the date of said agree
ment one Mrs. Biggs was desirous of
purchasing one-half of said eighty-acre
tract, 4. e.: the western half, upon which
there were valuable improvements She
offered to pay for that half s., 600. Plant
ifs would not accept her offer, but offered
to sell the entire eighty-acre tract for
$4,000. Thereupon defendant agreed
with plaintiffs that if they would
sell to Mrs. Biggs the western half
of said eighty-acre tract for SI25 per
acre, he, defendant, would purchase
the other half of said eighty acre
tract and pay Sl25 per acre therefor. The
finding is justified by the evidence, and
there is no specification of the particulars
in which the evidence is insufficient to
justify that finding. The contracts to sell
TO Mrs. Biggs one-half of said eighty-acre
tract, and to the defendant the other half
thereof, were made at the same time and
place. We think the evidence makes the
subject matter sufficiently certain, and
that is all that is necessary. Professor
Pomeroy says: SIT is not strictly accurate
to say that the subject-matter must be
absolutely certain from the writing itself,
or by reference to some other writing
The true rule is, that the situation of the
parties and the surrounding clrcum-
stances, when the contract was made, can
be shown by parol evidence, so that the
court may be placed in the position of the
parties themselves; and if then the sub
ject-matter is identified, and the terms ap-
pear reasonably certain, 1t is enough"
(Pomeroy on Contracts, Section 227, NJ
This is in consonanee with the maxim
CeFtuBl est qltod certuD1 reddi poteSt.n The
evidence clearly shows that the parties
perfectly understood that the sale and
purchase was not of an undivided in
terest of forty acres in a tract of eighty
acres but of forty acres in severalty. The
defendant does not claim III his answer,
nor in his evidence, that he intended to
purchase an undivided interest in the
eighty tract. He denies that he in
tended or agreed to purchase any in
terest Whatever. Nothing is made more
cleaf by the evidence than that Mrs.
Blggs, with the full knowledge of all the
partles, purchased the forty acres of said