
    WATER’S APPEAL.
    Where complainant and respondent do not agree in their testimony as to the terms of a proposod partnership, a witness who testifies to the fact of t íe partnership, but does not know its terms, is not suoh a second witness as will sustain a bill in equity.
    A Court of Equity will not enforce a compromise based upon a mutual mistake, where the party has lost nothing by the compromise.
    A verbal understanding whioh is to be reduced to writing is not enforceable in equity.
    Appeal from the Common Pleas of Warren County. In equity. No. 441, January Term, 1881.
    The Court dismissed the Plaintiff’s bill in the following opinion, per :
    Williams, P. J.
    The relief sought in this case is predicated upon the exist-once of a partnership between the plaintiff and defendant. The first question, therefore, is whether such partnership existed as is alleged. The plaintiff1 charges that the partnership was created by a verbal agreement made on the 14th of December, 1875, under the circumstances and upon the consideration stated in this bill as follows:
    “That on or about the 14th of December, 1875, your orator claimed to own and did own some portion of the timbex growing and being on a tract of land in Glade Township, Warren County, known as No. 5555. That at the same time said Smith claimed to own certain timber on said tract, including some portion of the said timber claimed by your orator. That in order to avoid disputes and controversy in regard to the ownership of said timber, and for other sufficient reasons, your orator and said Smith agreed to make common stock of their interest in the same, and to that end did enter into partnership upon the following terms, viz : That your orator and said Smith should, at their equal and joint expense, cut, manufacture, raft, run to market, and sell the said timber, and that the net proceeds thereof should be divided equally between them.
    He then charges, in the second paragraph of his bill, that Smith “took charge of the business of said co-partnerehip and cut, manufactured, run to market, and in the Spring and Summer of 1876, sold the said timber at a large advance over and above all expenses, as your orator verily believes.”
    The defendant denies the partnership, and says that on the 14th of December, 1875, he was cutting his own pine timber growing upon the northeast 100 acres of Tract No. 5555. That plaintiff had no title to the said northeast 100 acres or -the timber thereon. That plaintiff owned other land. in said tract, and proposed to enter into an agreement for the division of the timber and some portion of the land, for which a conveyance of an equal undivided half was to be made by the plaintiff to him.
    He further says that this agreement was never reduced to writing, and no part of the land conveyed to him. That plaintiff never contributed in time, labor or money to the work of cutting, running and marketing the timber, and never per- • formed or offered to perform in any particular, the agreement of December 14, 1875.
    Both in bill and answer, and in their testimony, the plaintiff and defendant state entirely different agreements as having been made on the 14th of December, 1875. This alone, without something to turn the scale equal to the testimony of a witness speaking to the points about which they differ, would be decisive against the plaintiff. Another witness, wholly disinterested, is called, who, to some extent, corroborates the plaintiff, but he does not remember, if he heard them, the terms of the agreement. When the real question is reached he is silent.
    The Master, however, finds certain circumstances which he regards as sufficient to settle the controversy. Such of these as relate to the redemption or failure to redeem portions of 5555, seem to us to be consistent with the agreement as stated by either party. The transaction relating to the $30 which plaintiff let defendant have while on his way to market, and the $200 which, on request of plaintiff, defendant let him have, ■ do not throw any satisfactory light upon the point to be determined.
    • The plaintiff alleges that the , agreement related to timber only. Defendant alleges that: it embraced several hundred acres of land, to which the plaintiff held a tax title, as well as ,the timber.
    We incline, therefore, to .the opinion that the bill should be dismissed for want'of■ satisfactory proof, of the terms of the agreement of the 14th of December, 1875.
    But, suppose the Master to be right upon this question, is-the plaintiff entitled to the relief he asks in a Court of Equity.
    There are some things about which the evidence shows no controversy, and they should be looked at in this connection. Among them are these : That on the 14th of December, ■ 1875, the defendant owned the timber on the northeast 100-acres of 5555. That the portion of the tract to which plaintiff had title had little or no pine upon it. That the timber cut by defendant, and for which plaintiff asks an account, was cut • from the northeast 100 acres of 5555, and was, prior to December 14,1875, the individual property of defendant. That defendant was actually at work cutting it when the negotiations of December 14th took place, and continued his work until it was done. That he rafted and run it to market and sold it. That plaintiff never contributed in the slightest degree to the work in any of its stages, and unless it was acquired under the agreement of December 14, had no title to the timber.
    What, then, was the consideration for the agreement, assuming it to have been made as claimed by the plaintiff ? The Plaintiff states it in his bill to be “to avoid disputes and controversy in regard to the ownership of the timber,” but he shows no title to it that could be the basis of disputes as to the timber on the northeast 100 acres.
    Would his mere “claim,” not resting on any show of title, be a sufficient consideration in equity? The rule is, that “the conduct of a plaintiff must be liable to no imputation whatever.” We are asked to enforce this contract. “Specific performance is of grace and not of right,” and relief is regulated by this fundamental rule found in all the books, viz : “The undoubted rule, universally acknowledged, always laid down and never departed from is, that a false statement of .the vendor concerning the matter of the contract, whether made innocently or fraudulently, will totally disable him from getting a decree for specific performance.” The principle is applicable to this case. Let us then assume that the plaintiff laid claim, on the 14th of December, 1875, to the timber being cut by defendant which was on the northeast .100 acres, and that the defendant was induced thereby to make an agreement such as is alleged. Let it also be assumed that the plaintiff was mistaken, and the title was all the while in defendant —that the plaintiff put therefore neither timber, nor time, nor labor, nor money into the operation of defendant. What '¡reason can be given that should move the conscience of a «chancellor, why a Court of Equity should enforce such a contract,. and compel the defendant to divide the proceeds of his -own timber, prepared for and put in market with his own labor ¿and his own money.
    The compromise of even a slight or doubtful claim may (Constitute a consideration in law to support a contract; but it ,does not follow that a compromise based upon a mutual mistake will be enforced in equity, as in this case, the party asking To enforce it has lost nothing by the compromise.
    We have felt great reluctance to disagree with the Master, -whose report is in many respects a model one, but we are constrained to do so. We are satisfied neither with the proof of The contract, nor with the equity of the plaintiff. We, there-i/ore, decline to make the decree recommended by the Master, .¡and dismiss the plaintiff’s bill. Let a decree be drawn by (•defendant’s solicitor under the 79th rule of Equity Practice in ¡•accordance with this conclusion.
    Waters then appealed.
    Messrs. Wetmore & Noyes, for ' appellant,
    argued that ihere was sufficient testimony to sustain the bill: Clark vs. Van Riemdyck, 9 Cranch 153; Spencer’s Appeal, 80 Pa. 317; Ressler vs. Witmer, 1 Pearson 174; Pusey vs. Wright, 31 Pa. 387. There was sufficient consideration for a compromise; O’Keson vs. Barclay, 2 Penna 531; Perkins vs. Gay, 3 S. & R., 331; Chamberlain vs. McClurg, 8 W. & S. 31; McCoy vs. Hutchinson, 8 W. & S. 66; Cavode vs. McKelvey, Addison 56.
    R. Brown, Esq., contra,
    argued that two witnesses are mecessary in equity cases : Brawdy vs. Brawdy, 7 Pa. 157; Sower vs. Weaver, 78 Pa. 443. An uncertain agreement is not enforceable in equity; Wolpole vs. Orford 3 Vesey 420; Johnson vs. Johnson, 16 Minn. 512; Maitland vs. Wilcox, 17 Pa. 231; Brown vs. Fiuney, 53 Pa. 373.
   The Supreme Court affirmed the decree of the Common .'Pleas on June 2nd, 1882, in the following opinion :

Per Curiam :

The evidence to contradict and overcome the responsive Jenial of any contract for partnership by the defendant was altogether insufficient, There may have been some conversation between the parties, but that it amounted to an agreement did not appear. According to the testimony of both parties, the understanding was to be reduced to writing by the appellant, which he failed to do.

Decree affirmed and appeal dismissed at the cost of the appellant.  