after deducting six hundred and fifty dollars and five cents, the net proceeds of the portion sold at auction. Judgment was entered accordingly, and defendants appealed.

John W. Dwinelle, for the plaintiff.

Edward Norton, for the defendants.

By Court, BENNETT, J. The plaintiff sold to the defendants fifty thousand three hundred and twenty-five feet of lumber, being on board of his ship in the harbor of San Francisco, at the rate of one hundred and fifty dollars per thousand. The sale note specifies no time or place of delivery. Only a small part of the lumber was delivered, and this suit was brought to recover the price of the whole.

The delivery of the lumber and the payment of the purchase money are by the contract concurrent acts. Neither party can maintain an action against the other for non-performance, without showing a readiness and willingness to perform on his part: 1 Chit. G. P. 492; Story on Cont., sec. 845. The plaintiff does not prove that he was ready to deliver the quantity of lumber sold; on the contrary, he had, at no time after the sale, the quantity which the contract required him to deliver. Not being ready to perform the contract himself, he can not complain that the defendants were unable or unwilling to perform on their part. He is, however, entitled to recover the stipulated price for the quantity actually delivered, deducting therefrom the damages sustained by the defendants, by reason of the nondelivery of all the lumber: Chit. on Cont., 7th Am. ed., 446; Bowker v. Hoyt, 18 Pick. 557. These damages were incurred by the defendants in sending lighters for the lumber, which they could not obtain, and amount to one hundred and ten dollars. The damages claimed by them on a resale of the lumber do not legally result from the breach of the contract, and not being specially alleged in the answer, ought not to be allowed. The judgment should be for one thousand eight hundred and thirtythree dollars and seventy cents, with costs in the court below, after deducting the costs of this appeal, which the plaintiff should pay.

Ordered accordingly.

PAYMENT AND Delivery are Simultaneous AcTs, when goods are sold for cash, no time of payment being specified: Chapman v. Lathrop, 16 Am. Dec. 433.

WHERE CONTRACT PART PERFORMED, the defendant may set up the breach, and claim damages in dimunition, or even in extinguishment of the plaintiff's demand: Sickles v. Pattison, 28 Am. Dec. 527.

MEASURE OF DAMAGES IN RECOUPMENT is, in general, the same as if the defendant was himself suing for the injury of which he complains: Note to Van Epps v. Harrison, 40 Am. Dec. 326.

MEASURE OF Damages for Non-DELIVERY OF CHATTELS: Pope v. Campbell, 3 Am. Dec. 722; Bull v. Douglas, 6 Id. 518 (certificates of stock); Caldwell v. Reed, 12 Id. 314; Pinney v. Gleason, 21 Id. 223 (sum of money to be paid in salt at a certain price per barrel); Dey v. Dox, 24 Id. 137; note to Masterton v. Mayor of Brooklyn, 42 Id. 50.

DAMAGES FOR LOSS OF PROFITS arising out of collateral undertakings entered into on faith of contract can not be recovered: Masterton v. Mayor of Brooklyn, 42 Am. Dec. 38, and note.

SPECIAL DAMAGES MUST BE ALLEGED: Butler v. Kent, 10 Am. Dec. 219; Dickinson v. Boyle, 28 Id. 281, and note; Donnell v. Jones, 48 Id. 59; Laing v. Colder, 49 Id. 533; Lewiston T. Co. v. Shasta etc. Co., 41 Cal. 565, citing the principal case; but for a case in which special damages may be recovered, though not specially alleged, see Driggs v. Dwight, 31 Am. Dec. 283.

COSTS MUST BE PAID by plaintiff in error, where, on appeal, the decree granting alimony is modified: Lockridge v. Lockridge, 28 Am. Dec. 52. In Ringgold v. Ringgold, 18 Id. 250, each party was decreed to pay his own costs, where the decree was reformed in the appellate court, on cross-appeals.

HOEN V. SIMMONS.

[1 CALIFORNIA, 119.]

PARTY ENTERING INTO POSSESSION, CLAIMING under and in SUBORDINATION TO ANOTHER'S TITLE, is estopped from questioning it.

SPECIFIC PERFORMANCE OF CONTRACT FOR SALE OF LAND NOT DECREED

unless contract is in writing or verbal agreement has been part performed.

WRITTEN CONTRACT ACQUIRES NO FORCE AS SUCH until signed and delivered. NO PART PERFORMANCE OF VERBAL AGREEMENT FOR SALE OF LAND, where

vendee takes possession and erects a building, but without direction, knowledge, or consent of the vendor.

PARTY SEEKING TO ENFORCE VERBAL CONTRACT FOR CONVEYANCE OF REAL ESTATE should show full compliance with the substance of all provisions he has engaged to perform.

CONTRACT FOR SALE OF LAND must be in WRITING, under the Mexican law.

ACTION to recover possession of a lot of land in San Francisco, and a cross-bill by defendants to compel specific performance of a contract to convey the same. A verbal contract had been made between the parties, by which the plaintiff agreed to sell to the defendants the lot in question for five thousand dollars, of which one thousand dollars were to be paid down, and the balance in two months, with interest. The contract was to be reduced to writing and signed by the parties, and the papers were accordingly drawn up by defendants' attorney, but the plaintiff left the state before they were signed,

and they never were signed. The defendants, after the plaintiff had departed, relying on the execution of the contract by him, and in good faith, took possession of the premises, but without the plaintiff's direction, consent, or knowledge. The defendants made a tender of one thousand dollars with interest, before filing their cross-bill, but did not pay or offer to pay the balance of the purchase money, although it was due by the terms of the verbal contract. A specific performance was ordered by the court of first instance. Plaintiff appeals.

George Hyde, for the plaintiff.

Frederick Billings, for the defendants.

By Court, BENNETT, J. Action by plaintiff to recover possession, and cross-suit by defendants for specific performance. It is clear that the plaintiff is entitled to recover possession of the lot in question, unless the defendants have a right to compel him to convey it to them. The counsel for the defendants made a point that, inasmuch as the plaintiff had proved no title in himself, the defendants, being in possession, could not be ousted. This is very good law when applied to a proper state of facts, but has no application in this case. The defendants, having entered into possession, claiming under the plaintiff, and in subordination to his title, are estopped from questioning it. Their position is similar to that of a tenant who can not gainsay or deny the title of his landlord without having first restored the possession. The plaintiff must, therefore, recover, unless the defendants show a right to a specific performance, upon the principles adopted by courts of equity.

The affirmative of this latter position can be sustained only upon the ground that there was a subsisting contract in writing reciprocally binding upon the parties; or that there was a verbal agreement, and part performance of it by the defendants under such circumstances that it would be a fraud on the part of the plaintiff if he were not compelled to convey. There was no contract in writing. A paper was drawn up which might have acquired the force of a written contract, had it been signed and delivered; but without signature or delivery it is of no account. It was inchoate and incomplete, and neither party was bound by it. The contract, therefore, if there was one, was merely verbal, and there is no part performance within the equitable rules which govern decisions in such cases.

A party asking the interposition of the equitable power of the court in enforcing a verbal contract for the conveyance of real

estate, should show that he has, on his part, fully complied with the substance of all the provisions which he engaged to per form. The verbal contract in this case was, that the defendants should pay one thousand dollars down, and four thousand dollars in two months thereafter, with interest at the rate of two per cent. per month. The period limited for the payment of the full amount had elapsed long before the commencement of the suit; and in order to entitle the defendants to a specific performance, they should have shown that they had paid or tendered the whole sum of five thousand dollars, with the stipulated rate of interest. This they have not done.

But the defendants say that by the Mexican laws a verbal contract for the sale of land was equally valid as if it were in writing. We think not, and so held in Harris v. Brown, 1 Cal. 98. There is no doubt about the correctness of that decision. There never has been a time, since the adoption of the Fuero Juzgo, in which lands could be conveyed under Spanish or Mexican law, without an instrument in writing-unless it was, perhaps, in the case of an executed contract, where corporeal possession was delivered at the very time of the sale by actual entry upon the premises, and the doing of certain acts analogous to the livery of seisin at common law. Had this not been so, one main branch of the revenues of the Spanish crown and Mexican republic called the alcabala, being a duty payable upon the transfer of land, would have been easily evaded.

By law 29, lib. 8, tit. 13, of the Recopilacion de Indias, every sale of real estate was required to be made before the escribano of the place where the contract was entered into, and if there were no escribano, before the judge of first instance; and these officers were required to furnish a copy and statement of the writings or contracts made before them, with the day, month, and year in which they were made, the names of the seller and purchaser, the property sold or exchanged, and the price: Arrillaga's Decretos, vol. for 1838, p. 421.

Another author says, that the conveyance of lands was required to be a written instrument, properly authenticated (escrito autentico). Without this, neither possession nor property in lands could be sustained in law; no judicial designation of boundaries nor fixing of landmarks could take place; only with the title deeds before the eye could these important and delicate acts be performed, whether the object were to avoid a litigation or bring a pending suit to a termination, according to justice and truth. Such importance was attached to the formalities

prescribed by law for the execution of deeds of conveyance, that if by chance an instrument were defective in form, as, for instance, if it lacked the signature of the judge, or escribano, or witnesses, or parties, or an exact statement of their acts, motives, and objects, the instrument would be vicious (vicioso), and consequently null (nulo): Ordenanzas de Tierras y Aguas, pp. 144, 145.

So important was this principle of law deemed, that in the convention between the Mexican government and the English holders of Mexican bonds entered into on the fifteenth day of September, 1837, by which the bonds were authorized to be exchanged for lands, it was thought proper to insert a stipulation that after title was acquired and possession taken the lands should not thenceforth be transferred, except by means of a written instrument in due form of law-Por medio de escritura de venta en la forma legal: Section 5, of such convention, p. 53, of Ordenanzas de Tierras y Aguas.

We do not doubt that a writing was as necessary for the transfer of lands in Mexico as it is in the United States. Judgment reversed, with costs.

VENDEE ENTERING UPON LAND Under CONTRACT OF PURCHASE IS ESTOPPED FROM DENYING VENDOR'S TITLE: Fowler v. Cravens, 20 Am. Dec. 153; Harle v. McCoy, 23 Id. 407; Sayles v. Smith, 27 Id. 117; Greeno v. Munson, 31 Id. 605; and see post, this note; but where the land is claimed by a purchaser at execution sale against the vendor, the vendee is not estopped from showing that the vendor's title was merely equitable, and not subject to sale on execution: Millon v. Riley, 25 Id. 149. The vendee in possession can not set up an outstanding title in a third person as a defense to an action brought to recover the purchase price: Larkin v. Bank of Montgomery, 33 Id. 324; and see Greeno v. Munson, supra. A grantee in a voidable conveyance is estopped, in ejectment by the grantor's heirs, from denying the grantor's title: Wall v. Hill's Heirs, 36 Id. 578.

VERBAL AGREEMENT FOR SALE OF LAND, IF NOT PART PERFORMED, WILL NOT BE ENFORCED: White v. Beard, 30 Am. Dec. 552; Tohler v. Folsom, 1 Cal. 211, citing the principal case; and see Sims v. Hutchins, 47 Am. Dec. 90.

VERBAL VOLUNTARY AGREEMENT NOT ENFORCED IN EQUITY: Dugan v. Gittings, 43 Am. Dec. 306, and cases collected in note.

VERBAL CONTRACT FOR SALE OF LAND, WHEN PAR PERFORMED, SPECIF ICALLY ENFORCED: Simmons v. Hill, 1 Am. Dec. 398; note to Jackson v. Murray, 17 Id. 53; Pugh v. Good, 37 Id. 534; and if the agreement has been fully performed on both sides, except the execution of the deed, it will be specifically enforced: Somerville v. Trueman, 1 Id. 389. Specific performance of a parol agreement to divide lands will be decreed, if part performed: Weed v. Terry, 45 Id. 257.

VENDEE'S TAKING POSSESSION IS PART PERFORMANCE: Wetmore v. White, 2 Am. Dec. 323; Townsend v. Houston, 27 Id. 732; Johnson v. Glancy, 28 Id. 45; Pugh v. Good, 37 Id. 534. But the possession must be with the vendor's