Bid for the specific execution of an alleged agreement to convey
to the plaintiff one-third of a certain tract of land in Kentucky
belonging to the defendant as a compensation for locating and
surveying the same. Bill dismissed.
In order to obtain a specific performance of a contract, its
terms should be so precise as that neither party can reasonably
misunderstand them. If the contract be vague and uncertain or the
evidence to establish it be insufficient, a court of equity will
not enforce it, but will leave the party to his legal remedy.
The plaintiff, who seeks for the specific performance of an
agreement, must show that he has performed or offered to perform,
on his part the acts which formed the consideration of the alleged
undertaking on the part of the defendant.
The appellee filed his bill in that court stating that in the
year 1779 a number of persons, amongst whom was the defendant
below, who is the appellant in this Court, employed him, the
complainant, to locate lands for them in the then District of
Kentucky; that he received from the defendant certain land warrants
to the amount of 25,000 acres, which he located for him on 20 May,
1780. That the terms on which he was to do the business were that
the owner of the warrants should furnish all the money that should
be necessary for locating and surveying the said lands. That the
complainant should direct the doing thereof, and receive for his
compensation what
Page 15 U. S. 337
should be given to other persons for similar services. The bill
then avers that the usual proportion which was then generally given
to locators for similar services was one-third part of the land so
located by them. The complainant further alleges that he was
prevented from surveying the above entry by the Indians, who were
very troublesome and who rendered the execution of such business
difficult and dangerous; that during this time the defendant
procured a survey to be executed of the entry made in his name by
the complainant, and obtained a patent for the same. The bill
admits that the complainant received a sum of money from the
defendant, which, however, he charges as paid on account of the
expenses attending the locating and surveying the said entry, and
not as a compensation for his services. The prayer of the bill is
for a conveyance of one-third part of the above-mentioned tract of
25,000 acres of land. It appears by the exhibits in the cause that
the above entry was surveyed on 28 October, 1786.
The defendant states in his answer that previously to his
employing the complainant to locate and survey his warrants, he
received offers from other persons to do the business upon the
terms stated in the bill, which he rejected, and that he was
induced to authorize his friend, Mr. Webb, to place the warrants in
the complainant's hands, in consequence of his having understood
that he would undertake the business for a fair compensation in
money. That Mr. Peachy, the agent of the defendant, paid to the
complainant upwards of 7,000 pounds of tobacco within a few months
after the entry was made. The
Page 15 U. S. 338
answer further states that the defendant frequently applied to
the complainant to have the entry which he had caused to be made
surveyed, and that after repeated promises to comply with these
demands, made and broken, the complainant confessed it was not in
his power to execute the business, and after claiming the tobacco,
which he had received as a compensation for his services, advised
the defendant to apply to some other person to attend to the
surveying of the entry. The defendant owns that from the year 1785,
when this advice was given, until sometime after he claimed his
grant, he was frequently in company with the complainant, who, to
the best of his recollection, never intimated that he expected to
receive any part of the lands, nor was any such demand ever made by
the complainant until the institution of this suit in 1794.
There was an amended bill filed in this cause, and the above
answer was, by the agreement of parties, received as an answer to
this bill. The amended bill states that the entry of the 25,000
acres of land was made by the intervention of a Mr. Shelby, a
particular friend of the complainant. That the defendant caused the
said entry to be surveyed without consulting the complainant on the
subject, although he avers that he was always ready and willing,
whenever he might have been called upon for this purpose, to show
the beginning and other calls of the entry and to give the
necessary directions to the surveyor.
The depositions taken in the cause prove that at the time when
the entry was made, it was usual in Kentucky for the locators of
lands to receive from
Page 15 U. S. 339
the owners, as a compensation for their services, a proportion
of the land so located, beside the expenses which might be incurred
in surveying the land, which the locator received from the owner in
money. But what that proportion was is not precisely ascertained by
any of the witnesses. They state generally that it was sometimes
one-third and sometimes one-half. Mr. Peachy, the agent and
attorney in fact of the defendant below, from the year 1780, when
the defendant went to the West-Indies until his return, states that
he had lands located in Kentucky for a part of which he allowed the
locator one-fifth, and for the residue one-tenth, of the land
located as a compensation for his services, beside paying the
expenses of surveying, &c. This witness further states that he
never heard or understood, in conversation with the complainant,
the defendant, or Mr. Webb, with whom the defendant deposited his
warrants to be delivered to the complainant, that the defendant was
to give any part of the land in consideration of locating the
same.
The circuit court decreed that the defendant below should convey
to the complainant one-third of the said tract of 25,000 acres of
land, according to certain boundaries which had been previously
laid down under an order of that court, from which decree the
defendant appealed.
MR. JUSTICE WASHINGTON delivered the opinion of the Court.
In deciding this case, we are necessarily led to the examination
of the following questions:
1. What
Page 15 U. S. 340
was the contract between these parties, the specific execution
of which is sought to be enforced by this bill, and how is it
proved?
2. Has the complainant entitled himself to ask for an execution
of the contract, in case the same should be sufficiently
proved?
The amended bill states that the complainant received certain
land warrants from the defendant with instructions to locate the
same in Kentucky, but that no particular stipulation was made
respecting the compensation which he was to receive for his
services, except that the general custom of the country in similar
cases, and the general tenor of the complainant's contracts with
other persons for such services were to furnish the rule of
compensation to be allowed to him. This rule is averred to be
one-third of the land located.
The defendant, in his answer, states that no contract of any
sort was entered into between the complainant and himself. He even
denies that he had any conversation with the complainant on this
subject at any time previous to the entry being made. He states
that offers were made to him by other persons to locate his
warrants on the terms mentioned in the bill, which he rejected, and
that, in consequence of his having understood that the complainant
would do the business for a fair compensation in money, he
deposited his warrants with his friend, Mr. Webb, with a request
that he would engage the complainant to locate them.
The allegations of the bill in relation to this contract are
wholly unsupported by the evidence in the cause, and, on the other
hand, the answer, in relation to this point, is strongly
corroborated by the testimony
Page 15 U. S. 341
of Mr. Peachy; by the uncertainty of the alleged usage as to the
proportion of the land to be allowed to the locator; the
improbability that so loose a contract would be made so early as
the year 1779, when a usage, if any existed, must necessarily have
been recent and unknown, especially to persons living remote from
Kentucky, at that time wild and unsettled, and above all by the
circumstance that from the year 1786, when the survey was made
under the direction of another agent, no demand of a part of the
land appears to have been made by the complainant until the
institution of this suit in the year 1794.
This defect in the proof would seem to be fatal to the
pretensions of the complainant. The contract which is sought to be
specifically executed ought not only to be proved, but the terms of
it should be so precise as that neither party could reasonably
misunderstand them. If the contract be vague or uncertain or the
evidence to establish it be insufficient, a court of equity will
not exercise its extraordinary jurisdiction to enforce it, but will
leave the party to his legal remedy.
Page 15 U. S. 342
But if these objections could be surmounted, that which remains
to be considered under the second head appears to the court to be
conclusive against the appellee.
2d. Has the complainant entitled himself to ask for an execution
of the contract if he had proved it?
It is very obvious from the complainant's own showing that the
contract between himself and the defendant, taken in connection
with the alleged usage, was that the former should not only make
the entry, but should also cause the same to be surveyed under his
direction and superintendence. It was the entry and the survey
which constituted the location in the contemplation of the parties
and formed the real consideration for which the allowance of a part
of the land to the locator was to be made. The complainant states
in his bill that the owner of the warrants was bound by the usage
not only to make this allowance, but was also to furnish all
the
Page 15 U. S. 343
money necessary for locating and surveying the land, and he
endeavors to excuse himself for not having caused a survey to be
made. Now if the mere making of the entry amounted to a full
performance of the contract on the part of the locator, any
stipulation with the same person for the expenses attending the
survey would have been idle and unnecessary. But the evidence of
Isaac Shelby upon this point is conclusive. He states that the
usual compensation to a locator was one-third of the land for
locating and directing the survey.
If this, then, be the contract as alleged by the complainant
himself, in what manner has he performed his part of it? In the
first place, the entry was made not by him, but by Isaac Shelby
under some agreement which is not disclosed in the bill nor proved
by any testimony in the cause. In the next place, it does not
appear that from the year 1780, when this entry was made, the
complainant made one effort to have the entry surveyed, but the
defendant, after wasting about 6 years, was compelled to employ
another agent to have that service performed.
How does the complainant excuse himself for the breach of his
contract in this respect? He alleges that he was prevented, during
all that time by Indian hostility, which rendered it troublesome
and dangerous to make surveys in the part of the country where this
entry was made. This assertion is not proved by a single witness
except Thomas Allen who deposes that from 1780 to 1789, he believes
it was difficult to get any persons to risk their
Page 15 U. S. 344
lives in making surveys on the Ohio toward the Yellow Bank
except for high wages, as he has been informed. Now even if this
witness had positively proved the point for which he was examined,
still his testimony could not avail the complainant, since he
admits that for high wages men could have been procured to perform
the service, and those wages, it was incumbent on the complainant,
who claims no less than between 8,000 and 9,000 acres of this land,
to pay. The difficulty and expense which would have attended his
endeavors to perform this part of his contract afford no excuse for
his breach of it, even if in a case like this any excuse could be
admitted. But what is conclusive as to this point is that the entry
was in fact surveyed in 1786 without any danger or difficulty so
far as the record informs us.
The complainant alleges that he was always ready and willing,
whenever he might have been called upon for that purpose, to show
the beginning and other calls of the entry and to give the
necessary directions to the surveyor. This allegation is positively
denied in the answer, which states that the complainant declined
making or attending to the survey, and that he advised the
defendant to employ some other person to do the business.
Thus it appears that the complainant has failed not only to
prove the contract stated in the bill, but also his performance of
those acts which formed the consideration of the alleged promise on
the part of the defendant.
Page 15 U. S. 345
The decree must therefore be reversed and the bill dismissed
with costs.
Decree reversed.
