No. 2250 | Utah | Feb 2, 1912
Appellant brought this action in equity to require the respondent to specifically perform an alleged parol contract, whereby, it is alleged, appellant and respondent had agreed to exchange a certain quantity of water used for irrigation purposes on their lands. Part performance, with other equities, is relied on. Respondent denied the making of the contract, and, as -affirmative defenses, pleaded both the statute of frauds and the statute of limitations, both of which are, however, immaterial.
Upon a trial of the issues, the court, among other facts, found as follows:
“That the proofs in the case are not clear or satisfactory, or sufficient to warrant the court to order a specific performance of the said alleged contract; and the court finds, for that reason, that no contract to trade was ever entered into between said plaintiff and said defendant.”
We do not deem it necessary to set forth, either in substance or otherwise, the other findings of fact made by the court. If the finding that the terms of the alleged contract were, by the evidence produced upon that question, left so uncertain and unsatisfactory as not to authorize a court of equity to decree specific performance of them, and if the evidence did not warrant a finding that a contract was entered into for a permanent exchange of the water, or if either one of said facts is sustained by the evidence, or if such facts, or either of them, should be found not to exist because of the lack of evidence to establish them, the judgment should .stand.
It is now well settled that, where a party seeks specific performance of a, parol contract in equity, he must establish the terms thereof with a greater degree of
“There can he no contract, unless the minds of the parties have met and mutually agreed. Equity requires as a condition of specific performance a clear, mutual understanding and a positive assent of both sides as to the terms of the contract.”
In 36 Cyc. 543, in speaking of the essentials of a contract which is enforceable in an action for specific performance, it is said:
“In general, the contract must have the essentials of a contract valid and binding at law, in order to he enforceable in equity. It must he a completed contract; there must haye been a clear, mutual understanding and a positive assent on both sides as to the terms of the contract. It must be sufficient, definite, and certain. . . .”
In determining whether the terms of an alleged parol contract which it is sought to- have specifically performed have been established or not, the courts ordinarily are governed by the foregoing rules. The only question for us to determine therefore is, Did the court depart from those rules in denying specific performance of the alleged contract ?
We cannot set forth the evidence. If we undertook to set forth any, we would have to repeat about all that was produced by both parties upon the questions of whether a, contract was entered into, and, if so, what its terms and conditions were. For obvious reasons, it could subserve no good purpose in this case to pursue such a course.
The judgment is affirmed, with costs.