Berry v. Woodburn

Garoutte, J. This is an appeal by defendant upon the judgment-roll, without a statement or bill of exceptions. Plaintiff declares the appeal to be from a judgment establishing a trust estate in a mine upon full performance of a verbal contract. Defendant declares the appeal to be from a judgment decreeing specific performance of a verbal contract to convey “ an interest” in a mine. It is immaterial which of these views is technically true, as in substance there is but little difference. Judgment went for plaintiff, decreeing [508]that defendant held an undivided one-half interest in the mine in trust for plaintiff, and ordering a conveyance thereof to him.

The action is based upon the following parol contract, entered into between the parties, which contract is set out in the complaint, and found as a fact by the court: “ That, if plaintiff would go up to Trinity county, California, and endeavor to procure such a quartz mine, to wit, a quartz mine that would pay, that in the event of defendant’s securing such a paying quartz mine in Trinity county, through the efforts of plaintiff, that defendant would pay to plaintiff big wages and pay his expenses for the time occupied by him while securing the mine and until it was demonstrated that the mine was a paying mine; and in the event of the mine being a paying mine that defendant would also give to plaintiff, in addition to the wages aforesaid, an interest in such mine. That in the event of defendant not securing a paying quartz mine through the efforts of plaintiff, defendant was to pay plaintiff reasonable wages and his expenses as compensation for his services.”

The court by its findings declared that plaintiff found a “paying quartz mine”; that defendant secured the same through the efforts of plaintiff, and decreed a conveyance of one-half thereof by defendant to plaintiff, as previously stated.

The case has been elaborately argued from many standpoints, but, as we view it, only one question is necessary to be considered, for the solution of that question presents an impassable barrier to plaintiff’s right of recovery. The contract provides that in case plaintiff’s labors under it meet with success defendant is to give him “ an interest in such mine.” We think this provision, as to the interest to be given, so uncertain and indefinite as to be unenforceable by a court of equity. It is elementary that a contract must be certain as to the interest to be conveyed, or equity will not take hold of it. What interest is here to be conveyed ? One-half, oné-fourth, or one-eighth? Upon what principle