
    U. S. LIFE INS. CO. v. OSWEGO CANAL CO.
    
      N. Y. Supreme Court, Fourth Department, General Term;
    
      July, 1890.
    1. Judgment determining the mode of performing a contract.1 In the case of a contract defining relative rights of the parties in respect to the construction and maintenance of a water-course, and buildings founded in and placed over it,—Held, that the court has power, in an action brought to compel performance, to prescribe the manner of equitable performance, in necessary particulars not prescribed by the contract.
    
    
      2. Parties.] In an action to compel defendant, the owner of a hydraulic canal, to cut off the water from its canal to enable plaintiff to. repair a stone pier supporting its building and standing in such canal, lessees from defendant of the right of drawing from such canal a certain defined quantity of water for a term at a fixed rent,, are not necessary parties. The defendant, having the title and control of the canal as a whole, sufficiently represents such lessees, and any controversy as to such control is properly with it alone.
    ?. Contracts; compelling act to enable performance.] An owner of a. building which extended across a canal and' rested in part on a pier in the middle thereof, who had agreed with the owner of the canal to replace such pier with iron columns within one year,— Held, upon the building becoming weakened and out of repair, entitled to a judgment requiring the canal owner to remove the.water from its canal so as to enable plaintiff to make such substitution of iron columns, although plaintiff had delayed undertaking-the work for many years after the time prescribed, and the right, to a removal of the water was not in term given by the contract.
    4. The same.] The mere fact that there was an opportunity for plaintiff to make the repairs in question during the preceding summer, when the water was removed from the canal for another purpose,, will not defeat the action, such delay having been to a certain extent 1 acquiesced in by the defendant ; nor will the fact that the work, could be done, though less conveniently, by means of coffer-dams.
    5. The same; damages.] Plaintiff claimed damages for rent's-lost by delay of defendant in removing the water after written demand. —Held, that in view of plaintiff’s own delay, without which the-loss of rents would not have occurred, and of the fact that its demand was broader than its rights under the co.ntract, no damages-should be awarded.
    This was an appeal by defendant from a judgment en-tered in favor of plaintiff upon the report of a referee.
    The action was brought to establish the respective rights - and liabilities of the parties in reference to the .premises - mentioned in the complaint; to enjoin the defendant from continuing the flow of water through its canal under plaintiff’s building during such reasonable times as may be neces- ■ sary to restore the foundation walls and supports of such-building ; and for damages for neglect and refusal to stop-such flow of water.
    
      The essential facts are stated in the opinion.
    
      Rhodes, Coon & Higgins, for appellant.
    I. Defendant’s "title is more than an easement, as found by the referee. It is a determinable fee and can only be determined by the ■State.
    II. The patent to Morgan could not convey to him the absolute and entire ownership of lot 19.
    III. Plaintiff is bound by its title deeds to observe all the rights of defendant. It takes such title as it has subject to the defendant’s rights (French v. Carhart, 1 N. Y. 96; Atlantic Dry Dock Co. v. Leavitt, 54 Id. 35; Bowen v. Beck, 94 Id. 86; Mumford v. Whitney, 15 Wend. 380; Brondage v. Warner, 2 Hill, 145; Hoyt v. Carter, 16 Barb. 212; Flora v. Carbeau, 38 N. Y. 111; Beals v. Stewart, 6 Lans. 408; Gould on Waters, § 300, and note 4).
    IV. The referee erred in awarding damages to,plaintiff (1 Southerland on Damages, 141; Short v. Kalloway, 11 A. & E. [Q. B.] 28; Wrightup v. Chamberlain, 7 Scott, 598; Wahf v. Barnum, 116 N. Y. 87, 99).
    Y. Plaintiff is not entitled to an injunction (Gould on Waters, §§ 525, 552, 574; Glass v. Clark, 53 Ga. 380; Horton v. Wheeler, 52 N. Y. 641).
    YI. Action should be dismissed for non-joinder of necessary parties defendant {Barber on Parties, 115; Boughton v. Allen, 11 Paige, 321; Trustees of Watertown v. Cowen, 4 Id. 510; Christie v. Herrick, 1 Barb. Ch. Rep. 254; Colt v. Lasnier, 9 Cow. 321; Bailey v. Inglee, 2 Paige, 278).
    
      Oliver P. Buel, Grove M. Harwood and George N. Burt (O. P. Buel, attorney), for respondent.
    I. As to question of parties (1 Rumsefs Pr. 105, 106; Buffalo City Cemetery Assoc. v. City of Buffalo, 46 N. Y. 503; Washburn on Easements, 4th ed. 45).
    II. Ho propriety in joining the water-takers as parties; not even proper parties (Hartwell v. Mutual Life Ins. Co., 50 Hun, 497; Wood on law of Nuisances, 2d ed., § 795; Corning v. Troy, etc. Factory, 40 N. Y. 191; Roberts v. 
      Sadler, 104 Id. 229, 234; People v. Mayor, etc. of N. Y., 32 Barb. 35; Kerr on Inj., 3d ed. 55).
    III. This action, in so far as it seeks for an injunction and damages, comes in the category of actions to restrain a private nuisance and to recover for injuries resulting from such nuisance (Heath v. Erie Ry. Co., 8 Blatchf. 347; Miller v. Fenton, 11 Paige, 19; Spencer v. Spencer, Id. 299; Cunningham v. Pell, 6 Paige, 655; Irvine v. Wood, 4 Rob. 188; affi’d 51 N. Y. 224; 2 High on Injs., §§ 1549, 1564; Kerr on Injs., 3d ed. 23, 54; Brown v. Pacific, etc. Co., 5 Blatchf. 525; Cole v. Virginia Co., 1 Sawyer, 470).
    IV. Plaintiff is the owner of the premises in question in fee, by virtue of a grant from the State (Tyler v. Cooper, 47 Hun, 94; Brill v. Brill, 108 N. Y. 511; Bakemen v. Talbot, 31 Id. 366; Sutton v. Groll, 42 N. J. Eq. 213; Washburn on Easements, 4th ed. 379; Angell on Water-courses, 7th ed. § 447a; Prentice v. Geiger, 74 N. Y. 341; Bullard v. Sar., etc. Co., 77 Id. 525; Rindge v. Sargent, [N. H.] 4 N. E. 523; Mason v. Hoyle, 56 Conn. 255; Grafton v. Moir, 30 State Rep. 314).
    V. Plaintiff has acquired the right to maintain its present building, and to occupy the canal (Corwin v. Corwin, 24 Hun, 147; Welsh v. Taylor, 50 Id. 137; Robinson v. Phillips, 56 N. Y. 634; Washburn on Easements, 4th ed. 133; Mudge v. Salisbury, 110 N. Y. 413; Hamilton v. White, 5 Id. 9; Olmsted v. Loomis, 9 Id. 423; Topliff v. Topliff, 121 U. S. 121).
    VI. Plaintiff entitled to make necessary repairs, or to-replace present supports (Washburn on Easements, 380; Roberts v. Roberts, 55 N. Y. 275).
    VII. A covenant would not be implied, especially where-it would work a forfeiture (Russell v. Allerton, 108 N. Y. 288; Pars. on Cont. 7th ed. 465, 467; Swift v. Goodrich,. 70 Cal. 103).
    VIII. As to construction of contract (2 Parsons on Cont. 7th ed. 644; Coghlan v. Stetson, 19 F. R. 727; Russell v. Allerton, 108 N. Y. 288; Trustees of Columbia College v. Thacher, 87 Id. 317; Shrader v. Universal Mut. Prot. Un., 29 State Rep. 371).
    IX. As to extent of defendant’s interest in the premises (Roe v. Strong, 107 N. Y. 350; People ex rel. Third Ave. R. R. Co. v. Newton, 112 Id. 396).
    X. As to matter of damages (McKee v. Delaware & Hudson Canal Co., 52 Hun, 52; Ostrander v. Weber, 114 N. Y. 95, 102; Corning v. Troy Iron & Nail Factory, 40 Id. 191; Henderson v. N. Y. C. R. R. Co., 78 Id. 423; Wood on Nuisances, 2nd ed. 917, § 795).
    XI. As to defendant’s exceptions (Taylor v. Millard, 28 State Rep. 694).
    
      
       See also Fleischman v. Toplitz, p. 304 of this vol. and note at the ■end of this case.
      For the power to superintend the execution of such a decree, see note at p. 268 of this vol.
    
   Merwin, J.

The plaintiff claims to be the owner of a lot on the south side of Bridge street, in East Oswego, upon which is a building called the “ Hungerford Block.” Under this building and across the lot the canal of defendant passes. One of the supports of plaintiff’s building is a wall along the centre of the canal. This wall is becoming delapidated so as to render the building insecure, and this action is brought to compel the defendant to turn the water out of its canal a sufficient length of time to enable the plaintiff to repair the wall, and to recover damages through loss of rent occasioned, as it is claimed, by the refusal of the defendant, on December 21, 1888, to accede to the demand of plaintiff that the water be turned off.

The defendant is a corporation, created by chapter 241 of the Laws of 1823, passed April 23, 1823. By section 5 of that act it was provided that the directors of the company “ shall have power to explore and designate the route of a canal or mill feeder ; and a proportion of the waters of the Oswego river may be taken and conducted out of said river, at or above the Oswego rapid, so called, at such point or place, and in such manner, as may be deemed proper, so that the water can thereby be carried down upon the east side and bank of said river, to such point or place as may be required by those interested therein,” the route designated and the manner of making the canal to be determined upon by an engineer who shall be appointed by and be under the direction of the canal commissioners.

By section 6 the corporation had power “ to enter upon and take possession of such improved or unimproved lands, not exceeding four rods in width, as shall be necessary for the making of the canal or mill feeder aforesaid, and the works thereunto appertaining,” and provision was made for payment of damages to the owners of any property that was so taken. Upon the completion of the canal the company was authorized “ to sell, let, or grant and convey, for a limited time, the use of the water which shall be conveyed in said canal, for mills or other hydraulic purposes, to any person or persons owning and occupying lands adjoining thereto, at such price or prices as may be agreed upon by the parties interested.”

By section 10 it was provided that, if any time thereafter it became necessary to adopt the said canal as a part on the contemplated improvement between Lake Ontario and the Erie canal, the canal commissioners shall at all times have full power, in behalf of the State, to enter upon and make all necessary alterations that by them shall be deemed advisable, to take and make use of the waters therefrom for the use and purposes of filling and supplying all locks that may be constructed to connect the said canal with Lake Ontario; and the said canal shall thereafter become the property of this State, without any payment or compensation whatever to said company; provided, however, that the right to all the surplus waters of said canal shall be vested in the company hereby incorporated, and all persons legally claiming under them; and that they shall be permitted to take, make use of it, and enjoy the surplus waters of said canal, not necessary for filling or supplying the locks that may be erected by the said canal commissioners.

The defendant, under this act, commenced, in 1824, the construction of its canal along the easterly bank of the Oswego river, but before its completion across the plaintiff’s lot, and in the same year, the State adopted and took possession of. it as a part of the canal system of the State, and thereupon it became the property of the State, except the rights to surplus water as reserved in the act. The State made some alterations, and continued to use it as a canal for the passage of boats, from its completion in or about the year 1825, until the completion by the State of a new and -enlarged canal in or about the year 1853, when its use as a canal was discontinued. In the meantime, the defendant had made use of the surplus water, giving .leases to various parties, and resumed the full control of the canal, when it was abandoned by the State.

On February 25, 1823, the surveyor general of the State gave a certificate of sale to Theophilus S. Morgan, of lot 19, in the village of East Oswego, block 99. The lot of plaintiff is part of lot 19. On December 22, 1828, letters patent were issued to Morgan, of lot 19, which were recorded March 26, 1831. Lucius B. Crocker became the owner prior to May 1,1819, and he, at that date, conveyed to Jessie Bennett, and Bennett, on December 1, 1852, conveyed to Hiram Allen. Each of their deeds contained the clause “ subject to the rights of the Oswego Canal Company, and the rights •of the State.”

In 1851, Allen erected the building in question. The •canal runs in a northerly direction through and across the lot, and-under the building, and extends nearly the entire width of the lot, the east foundation wall of the building being on the east line of the canal, and the west foundation wall of the building being at the south end, substantially identical with the west wall of the canal, and at the northerly end some feet west of the west wall of the canal. The building is supported partly by the side foundation walls, and partly by a stone wall placed nearly in the centre of said canal, and partly by two rows of iron posts, four on ■each side, resting on stone piers in the canal between the .side and central walls. Soon after it was built, portions of the central wall were cut out, and four piers formed for the support of the centre of the building.

In 1871, William W. Pul ver, through whom plaintiff derives its title, made an agreement with the defendant in regard to the matters here in controversy. This agreement was under seal, and was duly acknowledged and recorded, and both parties now claim advantages under it. Prior to the execution of this agreement, Pul ver had become the owner of the title of Allen. On February 28, 1871, the canal board, by resolution, passed pursuant to chapter 267 of the Laws of 1857, determined and declared the canal lands in question abandoned, and afterwards, in the same year, and before the agreement above referred to, all the interest of the State in plaintiff’s lot was quitclaimed to Pulver’s grantor, so-far as it could be done consistent with the act of 1857, which provided that, when any of such abandoned canal lands were then used for a hydraulic canal, the conveyance should not prevent the future use of the land for the same purpose, but should expressly reserve the right to continue such hydraulic canal. This agreement bears date July 31, 1871, and, after describing the defendant as party of the first part, and Pulver as party of the second part, proceeded as follows - “ Whereas the party of the first part have and own a hydraulic canal on the easterly side of the Oswego river, which crosses lot number nineteen, in block ninety-nine, in the-fourth ward of said city, and whereas the party of the second part is the owner of a building known as 1 Hungerford Block,’' which is erected over the said canal where it crosses said lot, which building is supported by stone walls on the easterly and westerly sides of said canal, and by stone piers or central walls and iron columns placed in said canal, and whereas the-parties hereto desire that their respective rights be clearly and specifically defined, to the end that all contention and controversy may be avoided, therefore it is hereby mutually agreed by and between the parties thereto, their successors, heirs, and assigns, that the said party of the second part is- or claims to be the owner of the fee-simple of that portion of said lot crossed by said building, and that the party of the first part has a right or easement across said lot for the purposes and uses specified in its charter, and to have and maintain its canal free from obstruction, and has the right to enter into and upon the same for the purpose of improving or repairing said canal so as to render it most available for-hydraulic purposes during its legal existence, and that the party of the second part has the right to keep and maintain the building aforesaid over the said canal, and to erect another building in its stead in case of the destruction or removal of the one now standing, and the said company consents, so far as its own rights are concerned, that the said iron columns, and any others that may be substituted to-replace the piers and central walls aforesaid, may remain as. supports to said building so long as it stands, and that the said piers and central walls may remain until they are replaced by iron columns, not to exceed one year from October 2, 1871; and that whenever another building is-erected in its place and stead, it shall be supported by a stone wall on the easterly and westerly sides of said canal, and the present iron columns, and the iron columns replacing-the central stone wall in said canal shall be removed, and the building shall be supported by iron or other trusses-extending from the said walls over the canal so as to sustain and support said building, and that the said iron trusses shall be so erected, placed and situated as to cause no material obstructions to the flow or passage of water through said canal. And the party of the second part, for himself, his heirs and assigns, covenants and agrees that they will remove all rubbish, debris and obstruction from said canal, caused by the falling or burning of said building over said canal, or by any materials falling or thrown from said building, without any unnecessary delay; to pay to said party of the first part the expenses of such removal, if done by said company, and that they will suffer no unnecessary obstructions to be occasioned by said building, except said columns, central walls and piers, to remain in said canal as aforesaid.”

After the execution of the agreement the matter, as between the parties, seems to have rested until 1888. The plaintiff became owner August 31, 1878, and its title from Pul ver, through intermediate deeds, is in terms made subject to the rights of the Oswego Canal Company.

On December 21, 1888, the plaintiff served on the defendant a written notice, stating that the building was in a dangerous condition, “ owing to the weakening and partial removal of the supports of said building, due to the action -of the water of your canal,” and that it desired “ to make the necessary repairs to the supports of said buildingsand requesting that the water be emptied from the canal so that ■such repairs might be made, notifying the company that if it was not done the plaintiff would hold it responsible for all damages caused to the plaintiff, either by reason of its inability to rent the premises on account of the unsafe condition, -or by reason of the falling of the building. To this request the defendant did not yield ; but in its reply, on December .21, 1888, claimed that the plaintiff’s building was wrongfully located over the defendant’s canal, and that in case it fell into the canal the plaintiff would be held responsible for all damages. Thereupon this action was commenced on -July 27, 1889. It was held in the court below that the plaintiff was entitled to maintain its building, “ and to support the same by the present side foundation walls and •central supports, or to substitute for the latter a single row of iron columns in the center of the said canalthat it has the right to repair the same, or to substitute for said central ■supports a row of iron columns in the center of the said ■canal, and, for the purpose of doing such work, the plaintiff has the right and is entitled to have the flow of water in the ■said canal, across from the said plaintiff’s premises under said building, stopped by the said defendant, and the water removed from the said canal for the period of fifteen days, which time should commence upon ten days’ previous notice, in writing, from the plaintiff to the defendantthat -the defendant, by reason of its refusal to remove the water,. was liable to the plaintiff for the damages sustained by it for loss of rents from December 21, 1888, to the date of the-report, (December 28, 1889) being the sum of $1,880.

The first question to be determined arises over the claim of defendant that its lessees of water are necessary parties to-the action. They are affected by the stoppage of the water,, and therefore it is urged they should be heard before the-right of plaintiff to have the water turned off is determined. There are a large number of leases, and they give the right- and privilege of taking and drawing from the canal a certain defined quantity of water, for a long term of years, at a fixed yearly rent; the water to be drawn in flumes or spouts-placed and constructed by the lessees in the manner directed by the company. It is also provided that the company “ shall have the right at all times, and from time to time, to-stop the water above demised, or draw off the water from said canal, for a sufficient length of time to make any necessary repairs or alterations in the canal.” We are of the-opinion that the lessees were not necessary parties. The defendant in a certain sense represents them, and it has the title and control of the canal as a whole, and any controversy as to such control is properly with the defendant alone.

Is the plaintiff entitled to have the water turned out of the canal to enable it to make the repairs it claims the right, to make ? In order to determine this question the agreement of 1871 is to be carefully considered. Pulver was then the owner of the fee, but subject to the rights of the defendant. The claim had apparently been made by the defendant or its lessees that the building or its supports was improperly obstructing the flow of water. In view of this the agreement was made. It provided, among other things, that the canal company had the right to have and maintain its canal free from obstruction.” It also provided that Pulver had the right to keep and maintain his building over the canal, and to erect another in its stead in case of the destruction or removal of the one then standing; and that the iron columns, which were then there upon either side of' the central piers or walls, and any others that might be substituted to replace such central piers and walls, might remain as long as that building then there should stand ; and that-such piers and central walls might remain until replaced by iron colums, not to exceed one year from October 2, 1871. Whenever another building should be erected it should be supported by a stone wall on the easterly and westerly sides of the canal, with iron or other trusses extending from such walls over the canal, the trusses to be so situated as to cause no material obstruction to the flow of water, and Pulver agreed for himself and assigns, “ that they will suffer no unnecessary obstruction to be occasioned by said building, -except said columns, central walls and piers, to remain in -said canal as aforesaid.” In other words, the company should have the canal free from obstruction, but the stone piers or central walls might remain for a year ; then iron eolumns should be substituted; and these columns, together with the iron columns already there, might remain as long us that building stood; but when another building was ereetted all the iron columns should come out, and the building be supported by side walls and trusses extending from one to the other, thus leaving the entire passage-way substantially unobstructed. Very evidently the central piers or walls were deemed to be an obstruction, and it became the duty of Pulver, in order to carry out the meaning and object of the agreement, to remove them within the year, having the right to substitute therefor iron columns. The obstruction would be materially reduced, and when a new building was erected the obstruction should be entirely removed in the use of side walls with trusses. The central walls and piers were not removed within the year. They have been allowed to remain, in violation of the agreement, until by the action of the water they have become insecure. This was a result that might have been reasonably expected.

It also appears that in the summer of 1888 the State of blew York repaired and re-constructed the bulkhead gates leading the water into defendant’s canal, and, in order to do so, cut the water off entirely from defendant’s canal, so that it was empty and dry for some four weeks in the summer, during which the plaintiff might have repaired the foundations of its block. No steps, however, were taken in that direction. Does the delay of the plaintiff and its predecessors, from 1871, or the failure of plaintiff to embrace the opportunity furnished in the summer of 1888, affect the right of plaintiff, if ever it had the right, to demand of defendant the removal of the water from the canal for a sufficient length of time to enable the plaintiff to make the proper change in the central supports ?

In the agreement nothing is said about the manner in which the work shall be done. There is no agreement by the defendant to turn off the water. It is a matter to be determined upon equitable principles. The plaintiff has not a legal right to have it done. If there was no other way to accomplish the result, it would be inferrled that this was in contemplation when the result was required. The delay might induce the court to impose conditions, and, in a proper case, might require the payment of damages to parties that might be injured by the temporary loss of water. In the present case there is evidence showing it to be possible, by means of coffer-dams, to perform the necessary repairs. Still the referee has found that the removal of the water from the canal is necessary, and that fifteen days is a reasonable time in which to do such work. We are not disposed to interfere with this finding. It is quite clear that better work can be done in this way, and that is the better for all parties. Nor should the delay or the failure of plaintiff to do the work when the canal was empty in the summer of 1888, preclude,the plaintiff from having the benefit of this assistance on the part of defendant. The delay was, to a certain extent, acquiesced in by defendant. We therefore conclude that, as matter of equitable relief, the plaintiff was entitled to have the water temporarily removed for the purposes authorized in the agreement of 1871.

Does it follow that plaintiff is also entitled to recover the damages awarded for the loss of rents. Ooncededly the plaintiff is bound by the Pulver agreement. If Pulver had performed that agreement, and removed the central wall and piers within the time specified, and substituted iron columns, there would have been no loss of rents for the cause here complained of. Had the plaintiff examined the wall in the summer of 1888, and ascertained its condition, as it perhaps should be presumed to have done, and repaired it while the water was out, as the referee finds it might have done, there would have been no loss of rents. The plaintiff now seeks to charge the defendant with this loss, because it did not accede to its demand in December following, while, in fact, if it had performed its own duty, there would have been no occasion for the demand. If plaintiff’s loss is attributable to its own neglect, it should not recover it of defendant. In its notice the plaintiff did not refer to the Pulver agreement, or offer to perform its obligations. It claimed the right,, generally, to repair the supports of its building, thereby inferentially claiming the right to continue its central walls and the same claim is made in the complaint, and appears in the judgment. If, in its notice, it claimed more than it had a right to, the defendant was not bound to accede to it. On the part of the defendant, it may be said, with some considable force, that the plaintiff, by reason of its delay and neglect, should compensate the defendant for any loss that, may be sustained by turning off the watei\ Having in view the situation of both parties, the more equitable course is to-allow damages to neither party.

It follows that the judgment herein should be modified by providing that the plaintiff is not entitled to maintain the present central wall or piers, but is bound to substitute therefor a row of iron columns ; and that, in case another building is erected, it shall be supported in the manner specified in the Pulver agreement. The judgment should also be modified by striking therefrom the award of damages. As-modified, the judgment should be affirmed without costs.

Judgment modified as stated in the opinion, and, as-modified, affirmed, without costs to either party; judgment to be settled upon five days, notice before Merwin, J.

Hardin, P. J., and Martin, J., concurred.

Note on equitable action to compel the performance OF INDEFINITE OBLIGATIONS.

The doctrine of specific performance is well understood as the equity to compel the substantial performance of a specific obligation assumed by contract. It has been almost a maxim in such cases that the contract must be unambiguous and the obligation specific.

There is another class of cases not so numerous, nor so familiar, but if I am not mistaken as decisively recognized by" unquestioned authority, where the obligation is undefined, perhaps even unexpressed, but is so clear in substance that a court of equity will inquire how, under the circumstances, it ought to be defined, and will express it in the decree in such scope and extent, and subject to such limitations as will render it just to enforce it as if it had been expressly defined by the parties. This is not making a contract for the parties; it is but the investigation of a contract that has been made, and defining what is equitably implied in it. In such a case the court examine a partly performed contract, and on finding that one party, while enjoying performance by the other, refuses himself to perform because of the vagueness of his own stipulation, clear away that vagueness, by inquiring what was necessarily and equitably involved in the contract, and treating the defendant as if he had specifically covenanted to do it.

Thus courts of equity have for some time been accustomed to grant decrees for the performance of contract stipulations that were vague or indefinite, where the equity was clear, and the circumstances would enable the court to define the equitable obligation sufficiently to enable the decree to be enforced.

For instance, while they would not enforce a purely executory contract so vague as to build a bridge over the highway,”' for a money compensation to be paid on completion, yet if a railroad company, for instance, obtained possession of its right of way by stipulating even in such vague language to build, the inequitableness of allowing it to continue in possession and refuse to build at all, is so clear, that the court may justly define the obligation and enforce it as so defined.

This practice does not discard the maxim that specific performance will not be decreed of a contract which is vague and indefinite; but only restricts that maxim to cases where the contract is purely executory, or where, so far as it has been executed, on plaintiff’s part, the execution is of such a nature that the breach on defendant’s part may be adequately compensated by damages. '

The cases in the text furnish strong illustrations of the classes of cases where an equitable obligation, inhering in a contract, but nowhere definitely expressed, may be defined and expressed by a judgment of the court in an action brought for the purpose, and specifically enforced accordingly.

Mr. Justice Bbeweb in a recent case (No. 43, below) has admirably stated the rule as to the power of the court in this respect; and although a guarded discretion does not exercise this power in every case, the uncertainty of a contract is- no longer necessarily an obstacle to its enforcement, if the court can justly ascertain and define the obligation, and if damages are not an adequate remedy for the refusal to perform.

Notes of Oases.-

I. Gases illustrating the maxim that specific performance of an indefinite contract will not he decreed.

II. Gases where a contract has heen performed in part.

III. Gases where uncertainly was cured hy events.

IV. Gases where uncertainty was cured hy extrinsic evidence.

V. Gases where the cou/rt has fixed the details.

I. Oases illustrating the maxim that a specific performance of an indefinite contract will not he decreed.

1. General rule—contract for support.] In Shakespeare v. Markham, 72 N. Y. 400, a parol contract that if certain persons would take -care of testator during his lifetime, they should inherit his property, was held void for uncertainty; that it meant only that he would make provision in their favor by his will, or otherwise, on account of his support by them, and that such agreement could not override a will then in existence, and which remained unchanged. The court say: “ It is an elementary principle in the exercise of equity jurisdiction that a contract will not be specifically enforced unless it is certain in its terms, or can be made certain by reference to such extrinsic facts as can, within the rules of law, be referred to for the purpose of ascertaining its meaning.”

2. Stanton v. Miller, 58 N. Y. 192. A written contract between plaintiff and Mrs. Miller provided that in consideration of his moving to her house and caring for and supporting her during her life, she would give Mm and Ms family the house and lot after her death, and secure the title by placing a deed in escrow, or by will, and that the title should be given to such “ member or members of said (plaintiff’s) family as Mrs. Miller may choose.” Plaintiff’s family then consisted ■of his wife and four daughters. Plaintiff performed his part of the ■contract until required to remove from the house. Mrs. Miller had in the meantime executed a deed of the premises to plaintiff’s daughters and deposited it in escrow to be delivered upon her decease. In this action to compel the depositary’s delivery of the deed to plaintiff and ■for possession of the premises,—Held, that the want of certainty as to the persons to whom the conveyance or devise was to be made, rendered the contract incapable of enforcement, and that the uncertainty was not cured by the designation in the deed executed by Mrs. Miller; ■and that this deed was revokable and was shown to have been revoked by her. [Compare cases 1 and 85.]

3. Contracts for construction.] In Blanchard v. Detroit, etc. R. R. Co., 31 Mich. 43, a covenant in a deed to a railway company that it should erect and maintain a depot or station-house on the land conveyed, suitable for the convenience of the public, but which was silent -as to the size, plan, shape, material, arrangement and cost of the building, was held too indefinite and uncertain as to details, to permit of ■enforcement by the court. [Compare cases 32, 38, 44.]

The court in this case review the authorities at some length, and state the rule as follows (p. 53) : “ The jurisdiction of equity in speeific performance proceeds on the supposition that the parties have not only agreed, as between themselves, upon every material matter, but that the matters so agreed on are of such a nature, and the subjects of enforcement so delineated or indicated, either directly or by reference to something else, or so raised to view by legitimate implication, that the court can and may collect, and in their proper relations, all the ■essential elements, and proceed intelligently and practically in carrying into execution the very things agreed on and standing to be performed. If, however, it appears, either that the things to be performed are, in. their nature, incapable of execution by the court, or that needful specifications are omitted, or that material matters are left by the parties so obscure or undefined or so in want of details, or that the subjects of the agreement are so conflicting and incongruous that the court cannot say whether or not the minds of the parties met upon all essential parts, or if they did, then cannot say exactly upon what substantial terms they agreed, or trace out any practical line where their minds met, the case is not one for specific performance. As the court- does not make contracts for the parties, so it never undertakes to supply material ingredients which they omit to mention and which cannot be legitimately considered as having been within their mutual contemplation. Where the party to perform is left by the agreement with the absolute discretion respecting material and substantial details, and these are therefore-indeterminate and unincorporated until by his election they are devel- ■ oped, identified and fixed as constituents of the transaction, the court cannot substitute its own decrees, and so by its own act, perfect and; round out the contract.” [Compare case 43.]

4. South Wales R. Co. Wythes, 5 De G. M. & G. 880. An> agreement between a railway company and railway contractors (who>were also land owners) for the construction of a branch railway, provided that the company should find the'land within a reasonable time: and build the stations ; that the contractors should give a bond to the-amount of £50,000 to secure the performance of the contract, and-undertake to execute the works for a double line of railway and the-ballasting and permanent way for a single line, according to the terms of a specification to be prepared by the engineer for the time being of " the company ; that the company should work the branch in a reasonable and proper manner as compared to the remainder of the main railway, and that in case of difference as to working, the same should be-settled by arbitration, and that any of the details of the arrangement, in case of difference, should be determined by a referee to be appointed'; by the solicitor-general for the time being.—Held, on demurrer, that this agreement was too vague, obscure and uncertain to be enforced by a decree for specific performance. [Compare case 43.]

5. — for manufacture.] In Kayser v. Arnold, 16 N. Y. State Rep. 105, the court refused to enforce specific performance of a contract, claimed to be contained in a memorandum of its terms, which had not yet been signed by the parties, relative to the manufacture and sale of' certain machines for making knit goods, and to the transfer and assignment of certain patent rights, because the maximum weight of the goods to be affected by the contract was not specified in the memorandum, but blanks were left for the figures to be afterwards filled in, the court say that “ the omission to fill these blanks might not-be material now if there were any evidence in the case from which the court could ascertain what figures both parties actually had in mind.” [Compare cases. 39 to 42.]

6. Wollensack v. Briggs, 20 Ill. App. 50. A contract for the construction of certain machines for making speaking tubes, which were to-embrace various new and useful improvements and inventions, made-- and to be made by the defendant, but which contained no details or specifications as to the form, material structure, principle or mode of" operation of the proposed machines, these matters being left wholly too the judgment and discretion of the defendant, was held too indefinite •and uncertain for specific performance.

7. —for booh to be published.] In Post v. Marsh, 29 Weekly Rep. 198, specific performance was refused of a contract for the publication ■of a book, where the contract was shown to have been contained in three written documents, two only of which were produced in evidence. In this case it appeared that defendant, whose contract to write the book was sought to be enforced, had received a portion of the amount to be paid to him for the work, and that he had prepared part of the manuscript, and the court say, in giving judgment for the defendant, •that it “ does not follow that he is entitled to retain the manuscript ;and keep the money.”

8. —for security.] In Ladd v. Stevenson, 43 Hun, 541, a provision in a contract by which the plaintiff guaranteed a loan and in which ■employment was secured to the plaintiff for a certain period, that in ■case of the plaintiff’s discharge the defendant should give the plaintiff “ satisfactory security for the re-payment of said loan,”—Seld, too indefinite to give the plaintiff the right to insist, in case of his wrongful ■discharge, that the defendant should secure the loan by a mortgage ■upon his interest in his real estate.

9. Magee v. McManus, 70 Cal. 553. Defendant verbally agreed with an accommodation indorser that in consideration of a further indorsement she would execute a note and mortgage in his favor “ in such amount” as to secure him against loss, her note to be made payable at the same time as the accommodation note and to bear the same rate of interest.-—Seld, that the agreement was too indefinite and uncertain to justify a decree for specific performance.

10. A contract for the sale of land which provides for the giving of a mortgage as part of the purchase price, is too indefinite and uncertain to be enforced, where the terms of the mortgage are not given either in the contract which refers to another agreement or in the complaint in the action to enforce performance (Burnett v. Kullak, 76 Cal. 535).

11. Grace v. Dennison, 114 Mass. 16. A written contract for the sale of land, for $25,000, and mortgage to remain at 5 per cent, for 5 years,” without disclosing or furnishing any means for the court to ascertain what part or amount is to remain upon mortgage, and what to be paid in cash upon delivery of the deed, is too uncertain to warrant specific performance.

12. Nichols v. Williams, 22 N. J. Eq. 63. A contract to give in part payment for the purchase of lands two mortgages, without stating when they were to be paid, whether with or without interest, or at what rate of interest, is the same practically as a contract to pay a certain sum on terms or credits to be arranged between the parties, and will not be enforced for uncertainty.

13. Foote v. Webb, 59 Barb. 38. Action for the specific performance of a contract in writing for the sale of certain property “ to be conveyed as soon as party of the second part secures the payment of the same.” The purchaser took possession and occupied the premises and paid the vendor interest on the purchase money until the latter’s death, and then brought this action against the vendor’s heirs to compel a conveyance of the premises to him.—Held, that the contract was void for uncertainty, as there was nothing in it to enable the court to fix the term of credit which the plaintiff should have, for the payment of the purchase money, nor the kind of security which he should give. [Compare case 37].

14. Indefiniteness as topremises.\ In Nippolt v. Kammon, 39 Minn. 372, a contract to convey the following described real estate, situated in D. county, in State of M., to wit: five acres in lot 3, sec. 23, town 28, range 23,” was held not to contain the necessary elements of a description of the property to be conveyed, and specific performance was refused. [Compare case 46],

15. In Minneapolis, etc. R. R. v. Cox, 76 la. 306, a contract to convey land, described as that part of a certain government subdivision, “ lying south of the grove, ” was held sufficiently certain in its description of the property to justify specific performance.

16. In Romans v. Langevin, 34 Minn. 312, a contract to, sell land in the following terms: “ Received of Wilson J. Romans $100 as. earnest money and part purchase price of lot 1, block 10, of Bazille and Roberts’ addition to West St. Paul, being 50 feet front on Ducas street by 69 feet on Fairfield avenue, which I have sold for the sum of $1,800, on the following terms-: Assume a mortgage of $600 now on said lot and pay the balance in cash; abstract of title to be furnished. If title not perfect, money to be refunded. Witness, eta. and signature-of B. Langevin,”—was held sufficiently certain as to parties, terms of payment and description of land, to sustain a decree for specific performance.

17. Hamilton v. Harvey, 121 Ill. 469. One who was desirous of leasing manufacturing buildings owned by him, and obtaining the location of a factory in the vicinity, to enhance the value of other lands owned by him, proposed in writing to a real estate broker as follows : “Will allow you as commission for said location one-third interest in five acres located near said works.”-—Held, that the description of the five acres was too vague and uncertain to justify a decree for speci— fic performance, and, further, that such ambiguity could not be explained by parol evidence.

18. Lynes v. Hayden, 119 Mass. 482. A., by an instrument in writing, agreed to convey to B. “from 26,000 to 28,000 feet of laud situated on Walden street and Vassal lane, in Cambridge, when the bounds are fixed and street laid out.” Walden street was not laid out during A.’s lifetime. Held, in an action after A.’s death, that the agreement was too indefinite to be enforced.

19. — as to title.] In decreeing the specific performance of a contract for the sale of lands, the court can only compel the vendor to convey his title and interest in the land, whatever that may be; consequently vagueness and uncertainty in the pleadings and proof, or a variance between them, as to whether the vendor covenanted to convey the entire interest in the lands, or only his undivided interest, is no obstacle to a specific performance to the extent of his interest. 1874, Bogan v. Daughdrill, 51 Ala. 312.

20. In Oakley v. Cook, 41 N. J. Eq. 350, a contract for the exchange of lands, in which the parties stipulated for “ A good title satisfactory to both parties,” was specifically enforced, the court holding that the stipulation as to title was sufficiently certain, and that the word “ good ” meant a title free from all incumbrances.

21. In Burlingame v. Roland, 77 Cal. 315, an agreement by the equitable owner of land to convey the same “ when he could make a deed,” was enforced, the court construing it as an agreement to convey the fee simple as soon as such title vested in the vendor.

22. —price.] Equity cannot decree specific performance of a contract to convey land on payment of the price, unless the price is ascertained. Woodruff v. Woodruff, 44 N. J. Eq. 349.

23. — time.] Potts v. Whitehead, 20 N. J. Eq. 55. Where there was a written offer to convey land, within a time fixed, at a price named, of which a portion was to be paid on the execution of the deed and the balance in a mortgage on the land, with interest at 6 per cent.—Held, that the want of designation of any time when the great bulk of the consideration (that to be secured by mortgage) was to be paid, left a material part of the contract to be settled by negotiation, and hence, even if such offer had been accepted, a decree for specific performance would not be made.

24. The rule in Shakespeare v. Markham (case 1, above) was applied in the recent case of Jones v. Andreas, 13 N. Y. State Rep. 363, where the court refused to specifically enforce a written contract in these words: “I have this day sold to Thomas C. Jones my three lots on the south side of Eighty-fifth street, 100 feet east of Tenth avenue, for the sum of §23,500; §500 to be paid on contract, contract to be signed the first pleasant day; §4,500 on taking title, and the balance, $18,500, at 5 per cent, on or before two years,” because it was left entirely uncertain when the first instalment of $500 was to be paid, or when the title was to be closed and the further sum of $4,500 paid.

25. — possession.} Tiernan v. Gibney, 24 Wisc. 190. Where a parol agreement for the sale and conveyance of land (with circumstances which perhaps took it out of the statute of frauds) left it doubtful whether the plaintiff was to have possession immediately upon payment, or not until a certain time thereafter, and he refused to make the payment unless possession were immediately surrendered, specific performance was refused.

26. Contract to mahe a contract.} In Harvey v. The Principals, etc. of Barnard’s Inn, 45 L. T. N. S. 280; s. c., L. J. Ch. 922; the court held a complaint for specific performance demurrable which alleged that the defendants agreed to sell, and the plaintiff agreed to purchase from the defendants, certain hereditaments for a specified sum, “ subject to a contract to be settled ” between the plaintiff’s solicitors and the defendants, and which also alleged another agreement in writing for the sale of the property in question for the same amount, “ subject to a proper contract and the payment of a deposit to be agreed upon,” the court saying: ‘‘There is no agreement with any binding effect alleged, and it is beyond the power of the court to make an agreement for the parties, or to force the parties to agree.”

27. Instances of imperfect instruments.} Mehl v. Von Der Wulbeke, 2 Lans. 267. An agreement of December 28, 1868, to sell real estate for a certain sum, and to take payment therefor, in part, a lease of restaurant premises, and in part, merchantable wines at the market price, to be delivered at intervals from such time as the vendor should commence the restaurant business, and for one year thereafter as they should be required, not to exceed in value $250 at any one time, and “ on receiving such payments at the time and in the manner above mentioned,” to deliver a deed, “ which deed shall be delivered on the 31st day of December, 1868,”—Held, not to be specifically enforceable in equity, as uncertain and impossible of execution.

28. Wright v. Weeks, 25 N. Y. 153. Action for specific performance of a contract in writing by a lessor to sell the demised premises to his lessee, within a certain time for a fixed price, “ upon the terms as specified.” The terms of payment not being fixed by the contract, held, that it could not be specifically enforced.

29. Buckmaster v. Thompson, 36 N. Y. 658. Action for specific performance of a covenant in a lease as follows : “ And the said party of the first part hereby agrees, in case said party of the second part shall then be tenants of the said premises, to first offer said property so •demised for sale to and purchase by them for the sum of $25,000.” The plaintiffs, the lessees, alleged that they had incurred large expense in anticipation of a purchase under this provision, and prayed for a •decree giving them the right to purchase under this clause of the lease. —Held, that the covenant was so ambiguous and doubtful in its meaning, that the action could not be sustained.

30. In Minturn v. Baylis, 33 Cal. 129, the court refused to enforce ■a written contract reciting that in consideration of certain specified notes, “all to be executed and delivered on' defendants “making ■executing and delivering a good and sufficient deed of conveyance, etc.,” upon the ground of vagueness and indefiniteness, as it did not state ••any promise or covenant to do anything for the consideration stated.

31. To avoid a contest on a doubtful will, the widow and heirs of ■testator executed an agreement to set aside the will and settle the ■estate as in case of intestacy, and also agreed to settle the demand of one of their number against another heir, by each bearing his or her pro rata share.—Held, that the agreement was not rendered incomplete so as to be incapable of specific performance, by the omission of a term of the contract that one of the heirs was to have the home farm at an appraisal, it being distinct from the subject of the. .agreement. Hall v. Hall, 125 Ill. 95.

II. Oases where cont/ract has been performed, in part.

32. In Lawrence v. Saratoga Ry. Co., 36 Hun, 467, the plaintiff’s ■testator made a contract with the defendant railway company for the sale of a certain portion of his land, through which the road was to run, and defendant agreed in writing that it would, simultaneously with the construction of the road, erect at or near the Excelsior Spring, owned by the vendor, “ a neat and tasteful station, built for the ac-commodation of passengers to and from said spring,” which should be a regular station, at which all trains should stop, and would construct •and maintain a bridge over the railroad at a certain highway, and a new and good bridge near the west end of the potato field for an overhead drive over the railroad.” The railroad company having entered ’into possession of the land and built the road,—Held, in an action brought for specific performance of its contract, that the defendant’s ; agreement in the three particulars mentioned was sufficiently definite and certain to justify a decree for specific performance. It was no •objection that the contract did not specify the size and material to be used for the bridges or the station; a bridge suitable for a highway crossing was what was intended, and it was for the court or jury to decide whether the building erected as a station was a fair and reasonable performance of the agreement or a fraud and an evasion. The court say: “ Plainly the defendant, who has taken possession of the land under this contract, cannot be permitted to say that the contract is so indefinite that the defendant cannot perform its side of the contract, but that without performing the defendant will keep that land for which the performance of the contract was the consideration.” [Compare cases 3, 38, 44.]

33. In Aday v. Echols, 18 Ala. 353, specific performance of a parol contract for the sale of land was refused, although the purchaser had entered into possession and made valuable improvements, because the proof was that the payments were to be made in “ four or five ” annual instalments, and as the whole of the purchase money had not been paid, the proof left it uncertain as to the manner of payment.

34. Clark v. Clark, 49 Cal. 49,—Held, that if the owner of land makes a verbal agreement with another to lease him the same for one year, with the privilege of two years more at an annual rent of $600, and a lease is to be executed containing the usual covenants, and the lessee takes possession and pays the rent for the first year, the agreement is sufficiently certain to support a decree against the lessor for a. specific performance.

35. In Sutton v. Hayden, 62 Mo. 103, a contract evidenced by a-letter to the effect that if the plaintiff would come and live with the writer and take care of her for the remainder of her days, all her property should, at her death, belong to plaintiff, was specifically enforced after the death of the writer, plaintiff having carried out her part of the agreement, and it was held no objection that the contract did not specify the mode of carrying out the decedent’s intention,, whether by deed or will. [Compare cases 1 and 2.]

III. Cases where uncertainty was cured by events.

36. In Nunez v. Morgan, 77 Cal. 427, a contract between the defendant in foreclosure and a proposed purchaser at the sale, that if defendant would bear the necessary expense of conveyance, etc., and would consent to the foreclosure of the mortgage upon land of the defendant, which had been before released from the lien of the mortgage, he would convey the same to defendant and would not disturb his possession, was specifically enforced against objection that it depended upon an uncertain or indefinite contingency, after the contingency had happened by the completion of the purchase at the foreclosure sale.

87. A contract for the sale of land which provides that the deed, is to be given at any time upon payment of §1,000, may be specifically enforced at the suit of the vendee, as the time for the performance may be made certain at any time by the vendor’s tendering a deed and demanding' payment. It appears in this case that the vendee had taken possession and made improvements upon the property and paid the taxes, so that it would have been a fraud upon the plaintiff to permit the defendant to refuse performance of his part of the contract. Lee v. Briggs (Supreme Ct., 1889), 25 N. Y. State Rep. 512. [Compare case 23.]

38. Where a landowner entered into a contract with a railroad campany, by which he released to it the right of way through his land, “in sections 22 and 28 Tp., 79 R., 13 Powesheik Co., Ia., together with all necessary width for embankment,” etc., and agreed to convey the fee simple to a strip of ground not less than 50 feet in width on-each side of the center of' the track of said company over and through the said land,—Held, that the agreement, though it did not describe-the land to be conveyed by metes and bounds, was sufficiently definite- and certain to justify specific performance, it appearing that at the time of the contract the construction of the road had not been commenced, but that afterwards the railroad company had staked out certain lines, across the defendant’s lands, over which the road was afterwards constructed. Ottumwa, Cedar Falls & St. Paul R. Co. v. McWilliams, 71 Ia. 164. [Compare cases 3, 32 and 44.]

IV. Oases where uncertainty was cured by extrinsic evidence.

39. A contract for the sale of land, described as “ four hundred acres; of land in Colbert’s Reserve,” was enforced upon parol evidence clearing up the uncertainty of the description. Angel v. Simpson, 85 Ala. 58.

40. In Wharton v. Stoutenburgh, 35 N. J. Eq. 266, a contract for a. lease of mines was specifically enforced at the suit of the lessor, where the lessee had taken possession and had begun working the mines, upon, evidence of its terms derived from the draft of the lease, as amended by the parties, but unsigned, which the court found to be a full and complete expression of the terms and stipulations finally agreed upon between the parties. The contract was for a lease of mines to be worked in a specified manner, and the court held that the fact that the details of the agreement were controverted by the parties, would not deter the court from ascertaining what its terms really were and enforcing it.

41. In Golden v. Knapp, 28 N. J. Eq. 605, specific performance was decreed of a contract to convey land, which had been lost, on proof of its contents, although the evidence was contradictory as to its terms,. •some of the witnesses testifying that it conveyed to the grantee an absolute fee, while, according to other testimony, it conveyed to her •only a life estate, with remainder to her children.

42. Poplein v. Foley (Md.), 80 Alb. L. J. 297. A written contract for a lease, which was intended to be for the term of ninety-nine years, renewable forever, contained no statement of the term for which the lease was to be made. A bill was filed by the lessors for a reformation -and specific performance of the contract, alleging that the length of the term of the demise agreed upon had been omitted from the written contract by mistake or oversight.—Held, that the mistake having been •established by parol proof, the complainants were entitled to have the •contract reformed by the insertion of the words, “for the term of ninety-nine years, renewable forever,” or words of like import ; and when go reformed, to have the agreement specifically executed.

V. Oases where the court have fixed the details.

48. In Central Trust Co. v. Wabash, etc. R. Co., 29 Fed. Rep. 547, it was objected that the court should not decree specific performance of a contract by one railroad company with another, that it should permit, “ under such reasonable regulations and terms as might be •agreed upon, other railroads to use its right of way through the park. . . . Upon such terms and for such fair and equitable compensation to be paid to it therefor, as might be agreed upon by such companies,” because the agreement contemplated that the conditions and compensation for the use should be determined by personal agreement, and as there had been no such agreement, the court could not make a new -contract for the parties and then enforce it. It was held, however, that, as the defendants had taken the position of denying the right of -any company to use its track at all under the contract, and the parties had never advanced to the position of mere disagreement about the amount of compensation or terms of use, the court, having taken cognizance of the question of right, was bound to determine the whole case and settle both the right and the compensation; and that although the agreement was general in its nature, and contained no provisions as to ■details, this did not destroy the power of the court to enforce the agreement. The court (Beeweb, J.) stated the rule in such cases to be, that “ if the right is absolutely contracted for and the details are of a nature which courts may properly fix and settle, then, I take it, the •court should not hold the contract incomplete, but determine the right, and also prescribe and settle the details. . . . While I concede that there is force in the objection that this must remain, in a qualified sense, a continuing case in the courts, with the constant duty of supervising the acts of the respondent, yet it seems to me that where there is a right there must be a remedy, and that the mere machinery of court procedure is flexible enough to adapt itself to the necessities of protecting a right. Clearly a mere action for damages would be a grossly inadequate remedy. Clearly, the public interests justify, if they do not compel, the enforcement of this right, and so, with much hesitation, I have come to the conclusion that this objection cannot be sustained.”

44. In Sanderson v. Cockermouth, etc. R. R. Co., 11 Bean. 497, a contract between a railway company and a land owner to make such, roadways.and steps for cattle as might be necessary, was held capable-of being enforced after the company had taken possession of the property and built their railway. [See, also, cases 32 and 38.]

45. Chattock v. Muller, L. R. 8 Ch. Div. 117. The defendant purchased an estate,under an agreement with the plaintiff, previously made, that if he purchased, he would cede a part of the premises to-plaintiff, but the memorandum of agreement between the parties did. not designate the exact portion which was to be ceded to the plaintiff. In an action for specific performance of the agreement, the court directed a reference to ascertain what portion the plaintiff was entitled to, and that the defendant should convey such portion to the plaintiff.. [Compare cases 14 et seq.]

46. Kusel v. Watson, L. R. 11 Ch. Div. 129. A., the lessee of a house for the term of 80 years, which had then 59 years to run, executed an underlease to plaintiff from year to year, which contained a further agreement that the plaintiff should have, a lease at the same rent, “ at any period he may feel disposed,” and that the lessor “ should not molest, disturb or raise the rent ” of plaintiff “ after his having laid out money in improving the said premises.” Plaintiff knew nothing of the-length of A.’s lease at the time of his underlease. He took possession and laid out money in improvements and while his lease had yet twenty years to run brought an action for specific performance against A.’s representative.—Meld, that the agreement should be construed to mean that the plaintiff was to have a lease for his life, if he desired, and that the court should carry out the agreement so far as the nature of his interest permitted, and should therefore direct the execution of a lease for the residue of A.’s term, less one day, if plaintiff should so long; live.

See, also, on this subject, Seton on Becrees, 654, 691.  