Adams v. Thompson.

tions, excavations, embankments, bridges, road-bed, and all land upon which the same may be situated, including the rolling stock thereto appertaining and belonging, all of which, including the right of way, shall constitute the excavation, erection, or improvement provided for and mentioned in this act."

It will be observed that the lien is given for material which "shall have been furnished or labor performed in the construction, repair and equipment of any railroad," etc.

Do these words include lumber for the shanties and stables of contractors or subcontractors which is purchased for themselves and remains their own property? I think not. In no sense is such material used in the construction, repair or equipment of the road. If so, then the railway company might be subject to a lien for food and clothing furnished the employees of the contractors and subcontractors, and it would be difficult to determine where its liability would cease. The evident intention of the legislature was to limit the lien to such material or labor as was used in the "construction, repair, and equipment" of the railway, and the law does not apply to cases of this kind. The judgment of the district court is clearly right, and should be affirmed.

ISAAC ADAMS, APPELLEE, V. EDWARD H. THOMPSON
ET AL., APPELLANTS.

[FILED NOVEMBER 26, 1889.]

1. Real Estate: CONTRACT FOR SALE. The evidence, which consisted of correspondence between plaintiff and defendant, by letters and telegraphic dispatches, and which is set out in the opinion at length, held, to constitute a contract for the sale of real estate. MAXWELL, J., dissents.

2.

:

: DESCRIPTION.

Defendant owned but one tract of

3.

Adams v. Thompson.

land in a subdivision of the city of O.

This tract was referred

to in the correspondence which constituted the contract, but without a definite description. This was held to be sufficient to admit parol evidence as to description.

: PRIOR EQUITIES: PURCHASE WITH NOTICE. The defendant having purchased from the plaintiff's grantor with full knowledge of the plaintiff's purchase and his rights thereunder, took subject to such purchase. MAXWELL, J., dissents.

APPEAL from the district court for Douglas county. Heard below before WAKELEY, J.

George B. Lake, and J. L. Kennedy, for appellants:

To establish an agreement for sale sufficient to entitle one to specific performance it must appear that there was a "clear accession on both sides to one and the same set of terms." (Lanz v. McLaughlin, 14 Minn., 72; Hamlin v. Wistar, 31 Minn., 418 [18 N. W. Rep., 145]; 2 Story, Eq. Jur., sec. 764.) A court of equity will not enforce performance where there is a misunderstanding as to the terms of sale (Clay v. Ricketts, 66 Ia., 362 [23 N. W. Rep., 755]); nor where it even seems probable that the parties have not agreed to the same thing. (Burkhalter v. Jones, 32 Kan., 5; Eggleston v. Wagner, 46 Mich., 610 [10 N. W. Rep., 37].) To entitle appellee to such relief his acceptance of Thompson's proposition must have been absolute and unequivocal (Pomeroy, Spec. Perf. of Contracts, sec. 63.) Thompson had a right to stand on a strict acceptance of his offer. (Sawyer v. Brosshart, 67 Ia., 678 [25 N. W. Rep., 876].) A sale to another is a sufficient notice of withdrawal. (Pomeroy, Spec. Perf. of Contracts, sec. 61, and cases cited.) The description must be such that without contradiction or addition it can be applied to the very property intended. (Ryan v. Davis, 5 Montana, 505 [6 Pac. Rep., 339]; Pierson v. Ballard, 32 Minn., 263 [20 N. W. Rep., 193]; Richards v. Snider, 11 Oregon, 501 [3 Pac. Rep., 178]; Tice v. Freeman, 30 Minn., 389 [15 N. W. Rep., 674]).

Adams v. Thompson.

Isaac Adams, pro se:

As to the sufficiency of the description: (cases cited by appellee on this point are referred to in opinion); in Richards v. Snider, cited by counsel for appellant, a demurrer for uncertainty in description was overruled. Their remaining cases are examples of descriptions which do not satisfy the statute of frauds. No time of performance having been agreed upon in the contract, the law merely requires performance or tender thereof within a reasonable time. (Brown, Statute of Frauds, sec. 384.) In equity an executory contract of sale is regarded as vesting title in the vendee. (Pomeroy, Spec. Perf. of Contracts, 314; Warvelle on Abstracts, pp. 288, 289.)

REESE, CH. J.

This was an action for the specific performance of a contract for the sale of real estate.

The suit was instituted in the district court of Douglas county by plaintiff Adams against defendant Thompson.

It was alleged in the petition that on the 13th day of November, 1886, the defendant Thompson was the owner in fee simple of the real estate described in the petition as lot number 12 of P. McShane's subdivision of the northeast quarter of the southeast quarter of section 30, township 15 north, range 13 east, and that at said time he made an agreement with plaintiff whereby said Thompson, in consideration of the sum of $1,000, sold and agreed to convey to plaintiff the above described real estate; the terms of the sale being $200 cash, $485 in a note bearing eight per cent interest, secured by a mortgage on the premises, and the remainder-$315-by assuming the payment of three certain notes made by the said Thompson in favor of John A. McShane for $105 each, said notes being secured by a mortgage on the premises purchased; that in accordance with the terms of the agreement plaintiff was

Adams v. Thompson.

to deposit said cash payment, together with the said note of $485 and the mortgage securing the same, in one of the banks of the city of Yankton, Dakota Territory, and upon which deposit being made defendant was to execute and deliver to said bank a deed to plaintiff for the premises in dispute. It was alleged that plaintiff had fully performed the terms and conditions of the contract on his part, but that defendant had refused to make the conveyance, and a decree for the specific performance of the contract was prayed.

Some time after the commencement of the action James E. Riley appeared and made application to be made a party defendant, alleging that he was the owner by conveyance of the real estate from plaintiff and that a determination of the controversy could not be had without his presence in court. Leave having been granted, he filed his answer alleging substantially the above facts. Subsequent to this plaintiff asked and obtained leave to file his supplemental petition, in which he alleged that after the commencement of the action Horace B. Irey and William B. Shriver claimed to have acquired some interest in the real estate from defendant Thompson, subsequent to the filing of the petition, but alleging that they had purchased with full notice of plaintiff's right, and that as against him whatever title they had to the real estate was invalid and asking that they be decreed to convey the property to him.

Irey and Shriver having been made parties, appeared and filed their answers to the petition and supplemental petition of plaintiff, denying the principal allegations therein, and alleging that they had purchased the real estate from Thompson prior to the pretended contract which plaintiff claimed had been made by him and without notice of any of his alleged rights; that they had paid the full consideration there. for and received a conveyance, and were the holders of the title in fee simple, and that Irey had subsequently sold and conveyed the property to Shriver. In addition to the de

Adams v. Thompson.

nial of any contract between plaintiff and defendant Thompson it was alleged that plaintiff had not complied with the terms of the offer made to him by Thompson, and that he had no right to demand the relief prayed for in his petition. Further, that whatever alleged contract was made between them was not in writing and therefore was within the statute of frauds and could not be enforced. The prayer of the answer and cross-bill was that the plaintiff and Riley be decreed to have no right in the real estate, that they be required to execute the proper conveyance to defendants, and that the conveyance from Thompson to Adams, and from Adams to Riley, be set aside and canceled upon the deed records for the county.

A trial was had to the district court, which resulted in findings of fact in favor of plaintiff. These findings were as follows:

"1. That the correspondence between plaintiff and defendant Thompson constituted a binding contract between them.

"2. That said correspondence sufficiently described the land in question to admit parol evidence to identify it.

"3. That there was a sufficient offer by plaintiff to perform the terms of the contract.

"4. That as against defendant Thompson, plaintiff was entitled to a specific performance of the contract.

"5. That, as the clerk of Shriver, Irey was incapacitated to enter into a contract with Thompson which would be binding upon Thompson while the latter was not aware of the relations existing between Irey and Shriver.

"6. That plaintiff, as equitable vendee of Thompson, had the right to rescind the conveyance to Irey.

"7. That since both Irey and Shriver had notice of the claims of plaintiff at the time of the conveyance to Irey, the burden rested upon Irey to prove affirmatively that he entered into a valid agreement for said conveyance without notice of plaintiff's equities.