cannot be heard to say that he was transacting the business with the officer or agent individually, and thereby hold the officer liable for the contracts of the corporation.

* *

[3] It is, however, contended by the respondent that the defendant is precluded in this case from denying that there was no sufficient evidence to sustain the verdict of the jury by the charge of the court to which no exception was taken. This contention, in our opinion, is untenable. The charge of the court is as follows: "Gentlemen of the jury, * there is another question. raised in this case, and that is whether or not the right party is sued. Evidence is introduced, including a certificate of incorporation issued prior to the time of this transaction to the company incorporated under the name of F. C. Whitehouse & Co., and some proof has been introduced in regard to the organization of that company and its operation. Mr. Whitehouse contends that this business in question and involved in this suit, including the receipt of the money, was by that corporation. If he is correct in that theory, then the plaintiff has brought suit against the wrong person, and should bring it against the corporation. In the trial the plaintiff contends that the transaction was not with that corporation, but with Whitehouse, or Whitehouse & Co., not incorporated; that Whitehouse was the only one known in the transaction. The burden of proof rests upon the plaintiff to make out his case by a preponderance of the testimony. That is, to show that the defendant Whitehouse received his money into his possession and control; that is, to show that the money received not by a corporation." This instruction by the court to the jury is clearly correct. It will be noticed that the court does not say in this instruction that there is any evidence tending to prove that the transaction in controversy was with the defendant doing business in the name of F. C. Whitehouse & Co., but uses the following language: "In the trial the plaintiff contends that the transaction was not with that corporation, but with Whitehouse, or Whitehouse & Co., not incorporated; that Whitehouse was the only one known in the transaction." There was nothing, therefore, in this instruction requiring an exception or that in any manner sustains

the plaintiff's contention that he was transacting his husiness with F. C. Whitehouse individually, or doing business with him in the name of F. C. Whitehouse & Co.

[3] We are of the opinion, therefore, that the evidence before the jury was entirely insufficient to sustain a verdict against F. C. Whitehouse individually. In taking this view of the case, a review of the other errors assigned as to the admission and rejection of evidence becomes unnecessary.

The judgment of the circuit court and order denying a new trial are therefore reversed.

WHITING, J., dissenting.

STEENSLAND v. NOEL.

Assignment of error not discussed in appellant's brief will not be considered.

In a suit for specific performance, the contract with all its material terms and conditions must be proved by evidence which appears clear and satisfactory to the mind of the trial court; but the mere fact that the evidence is conflicting does not require the court to find that the contract did not exist.

Where a contract relates to personal property, a complaint for specific performance must allege special reasons, bringing the contract within some of the exceptions to the general rule that specific performance of such contracts will not be granted, but, where the contract is for the sale of land, an allegation that the remedy at law is inadequate is unnecessary; Civ. Code, § 2341, providing that presumably breach of contract to convey real estate cannot be adequately relieved by pecuniary compensation, but that breach of a contract to transfer personalty may be so relieved.

Findings of the trial court will not be disturbed unless there is a preponderance of evidence against them.

Civ. Code, § 2298, provides that the detriment caused by breach of an agreement to convey real estate is deemed to be the price paid, expenses incurred, and, in case of bad faith, the difference between the price agreed to be paid and the value of the estate agreed to be conveyed at the time of the breach, and section 2299 provides that the detriment caused by the breach of an agreement to purchase an estate in real estate is deemed to be the excess, if any, of the amount which would have been due to the seller under the contract over the value of the property to him. In an action to recover land, defendant's counterclaim alleged a contract to sell to him and the making of improvements by him, and alleged the value

of the improvements and labor, and sought specific performance. Defendant's pleading and evidence were silent as to enhancement in value of the land. Held, that a contention that defendant's pleading and evidence showed that he had a complete and adequate remedy for damages at law was without merit.

The most important acts which constitute a sufficient "part performance" to authorize specific performance of an oral contract to convey land are actual possession, permanent and valuable improvements, and the two combined.

The possession constituting "part performance" within the rule as to enforcement of oral contracts for the sale of land must be taken with the consent of the vendor.

Where the owner of land agreed that another might go into possession and make improvements under an oral contract for a sale, the fact that he did not know of the actual consummation of the acts agreed to be done did not sustain a contention that they were done without his knowledge or consent.

(Opinion filed, January 17, 1912.)

Appeal from Circuit Court, Lincoln County. Hon. JOSEPHI W. JONES, Judge.

Action by John Steensland against Frank Noel. From a judgment in favor of defendant, plaintiff appeals. Affirmed.

Asa Forrest, Jr., and E. R. Winans, for appellant.

There must be allegation, proof and findings that damages are not an adequate remedy to permit the court to grant a decree of specific performance of an oral contract of sale of real property. Herzog v. Railway Co., 153 Cal. 496; Flood v. Templeton, 148 Cal. 374; Stettmacher v. Bruder, 95 N. W. 324; Jacobs v.. Railway Co., 8 Cushing, 223; Burns v. Daggett, 141 Mass. 368; Purcell v. Miner, 4 Wallace, 513-517; Kelsey v. McDonald, 76 Mich. 188; 8 A. & E. Enc. of Law, 740. Oral contracts for the sale of real property must be undisputed. The very purpose of the statute of frauds was to prevent disputes as to what the contract really was. Bresnahan v. Bresnahan, 73 N. W. 515; Kelsey v. McDonald (supra); Johnson v. Plotner, 15 S. D. 154. The possession of and improvements made by Noel must have been with the knowledge and consent of Steensland. Freeman v. Freeman, 43 N. Y. 34; Burnes v. Daggett (supra); Munsell v. Loree, 21 Mich. 491; Foster v. McGinnis, 89 Cal. 264. A court of equity will enforce specific performance of an alleged contract, not in

writing, for the conveyance of land, it must clearly appear that a contract was entered into and its terms and conditions must be clearly established by proof. Morrison v. Herrick, 130 Ill. 631; Bonhannan v. Bonhannan, 96 Ill. 591. Specific performance will not be decreed where adequate compensation can be had. 8 A. & E. Enc. of Law, 740; Purcell v. Miner, 4th Wallace, 513; Burns v. Daggett, 141 Mass. 368; Discher v. Stein, 34 Kan. 39; Harris v. Frink, 49 N. Y. 24; Kilsey v. McDonald, 76 Mich. 188; Brown v. Hoag, 35 Minn. 373; Jacobs v. Railway, 8 Cushing, 223; Baldwin v. Squier, 31 Kan. 283.

C. B. Kennedy, for respondent.

In contracts for the sale of land, however, an allegation that the remedy at law is inadequate is unnecessary since that is apparent from the nature of the subject matter. Christian V. Aldrich, 30 Mon. 446; Div. 56, 86 N. Y. Supt. 736; Smith v. Rector, 107 N. Y. 610. An oral contract for the sale of real estate when the possession is taken and valuable improvements are made pursuant to and relying on the contract by the purchaser, is without the statute. Stuart v. Tomlinson, 21 S. D. 337; Stenson et al. v. Elfman, 26 S. D. 134; Ide v. Lizer, 10 Mon. 5. Pomeroy Spec. Per. §§ 115, 126.

SMITH, J. Appeal from the circuit court of Lincoln county. Action for possession of a quarter section of farm land in Lincoln county of which plaintiff claims to be the owner in fee simple and entitled to possession. The complaint alleges that on or about the 1st day of March, 1909, plaintiff was in possession of said land, and that on or about that date defendant went into possession thereof under an oral lease from plaintiff, for the period of one year, upon agreed terms as his tenant; that on or about April 30, 1909, defendant served upon plaintiff a written notice that he claimed possession of said land as purchaser from plaintiff, and demanded that plaintiff execute and deliver a deed to the land pursuant to an alleged contract of purchase; that plaintiff had never sold or agreed to sell said land to defendant; that the pretended verbal contract of purchase and sale of the land as set forth in said notice, if true in fact, is void in law; that the same is not

even true in fact; that thereafter on the 9th of June, 1909, plaintiff, being advised that defendant claimed said land adversely to him, served upon defendant a notice in writing, terminating the aforesaid lease and demanding possession of the leased premises within thirty days; that defendant has failed to vacate said premises and claims the right of possession thereof under the alleged contract of purchase, denies the plaintiff's right of possession, and claims to hold adversely to plaintiff; that defendant having renounced his right to occupy as a tenant, by reason of his adverse claim of ownership, became a tenant at will, which tenancy was terminated by a notice given pursuant to the provisions of law for the termination of such a tenancy. The complaint also contains other allegations as to plaintiff's rights in the crops grown on the premises which are not material on this appeal. Plaintiff demands judgment for immediate possession of the land and a decree establishing his right thereto, together with certain other relief not material here. Defendant's answer admits service of the notice alleged in the complaint, and that the time set in the notice to vacate said land specified in said notice has elapsed, and that defendant has refused to vacate, and that defendant claims the right of possession by virtue of a contract of purchase and sale.

Defendant further alleges, by way of counterclaim: That on or about the 15th day of August, 1908, plaintiff and defendant entered into an oral agreement, whereby defendant agreed to purchase, and plaintiff agreed to sell, said land and to transfer the same to defendant, and gave defendant immediate possession of the land under said agreement. That said land was substantially all under cultivation except about 20 acres of hay and pasture land. That it was necessary to plow the cultivated land preparatory to cropping for the year 1909, and to build certain buildings thereon necessary to defendant's occupancy thereof. That the terms of said oral contract were as follows: That plaintiff agreed to accept, and defendant agreed to pay, plaintiff the sum of $8,000 as the price of said land; that the defendant should take immediate possession for the purpose of plowing the cultivated land, consisting of about 90 acres, preparatory for the 1909 crop;