the rate of seven per centum per annum, paya-
ble annually, except in case of a note taken up
before due, and the three last mentioned sums
are to be secured by mortgage back on the said
premises, and the said Hennessey is to assume,
from and after the last mentioned date, and
from and after that date only, a certain note
and mortgage for eighteen hundred dollars,
which plaintiffs made August 10, 1880, and
running from Seth B. Woolworth and Clara
Woolworth to Edwin W. Rice, which said
mortgage is recorded in the office of the register
of deeds of said Ramsay County, in Book 59
of mortgages, on p. 218, and which the said
Hennessey agrees, under and in accordance with
the said stipulations herein contained, and each
of them, to pay when due.

"It is, moreover, agreed that if there are any
clouds or defects in the title to the said prop-
erty they and each of them shall be removed
and cured with becoming diligence by the said
Woolworths; and if not removable or curable
the aforesaid fifty dollars is to be refunded and
this contract to be null and void, at the option
of the said Hennessey, and to be void, also, at
the option of the said Hennessey, in the event
of the neglect or failure on the part of said
Woolworths to remove or cure the clouds or
defects which may be on said title.

"P. T. KAVANAUGH,
"Agent of Clara Woolworth

"Witnesses:
"H. A. Estes.

and S. B. Woolworth. "DAVID J. HENNESSEY.

"H. M'Carthy."

Replications to the answer and cross bill were filed by the plaintiffs, and a decree rendered dismissing the cross bill and giving them the relief asked by the original bill or complaint. By that decree it was, among other things, adjudged that the instrument of December 23, 1881, was not authorized by the plaintiffs, or either of them, and was void; that the defendant had no right or interest in said [441] lots in virtue of that writing. The defendant and all persons claiming under him were enjoined from asserting any interest in the lots as against the title or possession of the plaintiffs or either of them.

It was in proof that the plaintiffs, under date
of December 8, 1881, executed and delivered
to Kananaugh a writing as follows:

"ST. PAUL, Dec. 8, 1881.
"P. T. Kavanaugh: We hereby authorize
you to sell for us lots 4 and 9, block 20, Robert
& Randall's addition to St. Paul, for ten thous-
and dollars net to us.

The finding of the court below on a controverted question of fact settled the controversy and this court will not review the finding but affirm the decree of the circuit.

Wiscart v, Dauchy, 3 U. S. 3 Dall. 321 (1:619); Parker v. Phetteplace, 68 U. S. 1 Wall. 684 (17: 675); Lytle v. Ark. 63 U. S. 22 How. 193 (16: 306); Alviso v. U. S. 75 U. S. 8 Wall. 337 (19: 305); Harrell v. Beall, 84 U. S. 17 Wall. 590 (21: 692).

The option clause in the Kavanaugh contract rendered the whole contract void, as it was a material variation from the Pioneer Press draft. Mackey v. Ames, 31 Minn. 103.

Even if the Kavanaugh contract was valid,
specific performance will not be granted.

Weatherford v. James, 2 Ala. 170; Drake v.
Barton, 18 Minn. 462; Barton v. Drake, 21
Minn. 299; Waterman, Spec. Perf. §§ 125, 395.

The relief asked is for the sound discretion
of the court and not a matter of course; and
the court will hear oral testimony to show that
a written agreement is unfair and does not ex-
press the real intent of the parties.

1 Story, Eq. Jur. § 770; Waterman, Spec. Perf. §§ 152, 158, 159, 162, 169, 176, 239; Hepburn v. Dunlop (note D), 1 Wheat. 179 (4: 65); Williams v. Williams, 50 Wis. 316; Bowman v. Irons, 2 Bibb, 78; Maynard v. Brown, 41 Mich. 298, 2 N. W. Rep. 30; McMurtrie v. Bennette, Harr. Ch. (Mich.) 124; Chambers v. Livermore, 15 Mich. 381 and note 1; Clitherall v. Ogilvie, 1 Desauss. Eq. 250 and note; Seymour v. Delancy, 3 Cow. 445; Brashier v. Gratz, 19 U. S. 6 Wheat. 528 (5: 322); Pratt v. Carroll, 12 U. S. 8 Cranch, 471 (3: 627); Edwards v. Atkinson, 14 Tex. 373; Merritt v. Brmon, 19 N. J. Eq. 286.

The defendant must seek his remedy in an
action at law in damages.

McClane v. White, 5 Minn. 178.
Specific performance will not be decreed un-
less the party seeking relief has in good faith
complied with the terms.

Breckenridge v. Clinkinbeard, 2 Litt. (Ky.)

127.

Nor where the party seeking relief is in fault. Taylor v. Longworth, 39 U. S. 14 Pet. 172 (10: 405); Holgate v. Eaton, 116 U. S. 33 (29: 538).

Mr. Justice Harlan delivered the opinion of the court:

It is not claimed, as it could not well be, that
the writing executed by plaintiffs on Decem-
ber 8, 1881, invested Kavanaugh with authori-
ty to assent, on behalf of the appellees, to the
terms contained in the agreement of December
23, 1881. Authority to sell the lots for "$10,
000 net" to the plaintiffs was not authority
"CLARA WOOLWORTH. to impose upon them the burdensome condi-
"S. B. WOOLWORTH. "" tions embodied in the last writing. Besides, it
There was some evidence tending to show is clear from the evidence that Hennessey de-
that when Hennessey purchased there was ex-clined to enter upon negotiations for the lots
hibited to him a writing purporting to be signed
by the plaintiffs, and which authorized Kava-
naugh to make sale of these lots upon substan-
tially the terms embodied in the written agree-
ment of December 23, 1881.

unless Kavanaugh obtained from the appellees
some writing conferring upon him, as their
agent, larger powers than were given by the
writing of December 8, 1881. The controlling
question, therefore, as the court below proper-
The lots, it should be stated, were the prop-ly said, was whether the appellees invested
erty of Mrs. Woolworth, having been purchased

with her means.

Mr. M. F. Morris, for appellant.
Mr. L. V. D. Heard, for respondents:

Kavanaugh with authority to make sale of the
property upon the terms set forth in the writ-
ing of December 23, 1881.

It may be conceded, for the purposes of the
present case, that in executing that writing

[442]

[443]

[488]

Kavanaugh did not exceed the authority given
him by Woolworth, and that the latter gave
Hennessey to understand that he assented to a
sale on the terms contained in it. But the hus-
band did not own the property, and his assent
alone was insufficient to pass the title of the
wife. Laws Minn., p. 769, c. 69, SS 2 and 4.
Under any, even the most liberal, interpreta-
tion of the local statutes relating to the con-
tracts of married women for the sale of their
real property, the appellant could not have a
specific performance of the agreement of De-
cember 23, 1881, unless it was satisfactorily

shown that Mrs. Woolworth, in some legal

1. Where, in a writ of error to a judgment of the the recovery of a mining claim, it does not appear supreme court of a State, rendered on a verdict for that, in the state court, the fact that the claim of plaintiffs followed in its length the general course of the vein, or that the side lines were parallel with and the end lines at right angles to the vein, was drawn in question, it is too late to do so here as the basis of jurisdiction.

questions either of fact or of state, and not of fed2. Alleged errors of the state court which involve eral law, are not reviewable here on writ of error. [No. 121].

Submitted Nov. 19, 1888. Decided Nov. 26, 1888.

Colorado, to review a judgment of that

N ERROR to the Supreme Court of the State Court affirming a judgment in the State District Court for the recovery of a certain lode and mining claim. Granted.

On motion to dismiss.

The facts are stated in the opinion. Mr. George A. King, for defendants in error, in support of the motion:

The question whether the notice of the location of the claim contained a sufficient description, by reference to natural objects and permanent and well known monuments, to identify the same presented a mere question of fact, and not one of law, and was, therefore, not reviewable.

Eilers v. Boatman, 111 U. S. 356 (28: 454).

That this question was not raised below, either in the trial court or the supreme court of the State, is a sufficient ground for dismissing the writ of error.

Susquehanna Boom Co. v. West Branch Boom Co. 110 U. S. 57 (28: 69); Simmerman v. Neb. 116 U. S. 54 (29: 535).

form, authorized its execution by Kavanaugh
on her behalf. We are of opinion that a case
is not made which would justify a decree in
plaintiff's favor on the cross bill. Specific per-
formance is not of absolute right. It rests en-
tirely in judicial discretion, exercised, it is true,
according to the settled principles of equity,
and not arbitrarily or capriciously, yet always
with reference to the facts of the particular
case. Willard v. Tayloe, 75 U. S. 8 Wall. 557,
567 [19:501, 504]; Rutland Marble Co. v. Rip-
ley, 77 U. S. 10 Wall. 339, 357 [19: 955, 961];
1 Story, Eq. § 742; Seymour v. Delancey, 6
Johns. Ch. 222, 224.* The question in cases
of specific performance, Lord Eldon said, is
not what the court must do, but what, under
the circumstances, it may do, in the exercise
of its discretion to grant or withhold relief
of that character. White v. Damon, 7 Ves. 30,
35; Radcliffe v. Warrington, 12 Ves. 326, 331.
It should never be granted unless the terms
of the agreement sought to be enforced are
clearly proved, or, where it is left in doubt
whether the party against whom relief is asked
in fact made such an agreement. Colson v.
Thompson, 15 U. S. 2 Wheat. 336, 341 [4: 253,
255]; Carr v. Duval, 39 U. S. 14 Pet. 77, 83
[10: 361, 363]; Huddleston v. Briscoe, 11 Ves.
583, 591; Lanz v. McLaughlin, 14 Minn. 73;
Waters v. Howard, 1 Md. Ch. 112, 116. That
Mrs. Woolworth united with her husband in
the writing of December 8, 1881, is clearly es- Trafton v. Nougues, 4 Sawy. 178.
tablished. But that she ever signed any other The same objection holds good to the juris-
writing relating to the sale of the lots in ques-diction of this court to re-examine questions of
tion, or authorized or directed her husband, or that character by writ of error to a state court
Kavanaugh, or anyone else, to sell the lots up- under section 709 of the Revised Statutes.
on the terms embodied in the writing of De- Romie v. Casanova, 91 U. S. 379 (23: 374);
cember 23, or that she approved or ratified a McStay v. Friedman, 92 U. S. 723 (23: 767);
sale to Hennessey upon such terms, is, to say Hoadley v. San Francisco, 94 U. S. 4 (24: 34).
the least, very doubtful under the conflicting To authorize a review by this court of the
evidence in this cause. The circuit court did judgment of a state court on writ of error, sec-
not, therefore, err in refusing specific perform-tion 709 of the Revised Statutes requires that
ance and dismissing the cross bill. And as the
agreement of December 23, 1881, was not
shown to be the contract of Mrs. Woolworth,
the appellees were entitled to such a decree as
was rendered on the original bill.

The decree of the Circuit Court is affirmed.

W. M. QUIMBY ET AL., Plffs. in Err.,

V.

J. SCOTT BOYD, JR., ET AL.

(See 8. C. Reporter's ed. 488, 489.)

State judgment—what errors reviewable. *See editorial note, Lawyers' edition. [Ed.]

Where the only questions to be litigated in suits to determine the right to mining claims are as to what are the local laws, rules, regulations and customs by which the rights of the parties are governed, and whether the parties have conformed to such local laws and customs, the Courts of the United States have no jurisdiction.

the decision of the state court shall have been against the title, right, privilege or immunity set up under the laws of the United States.

Ryan v. Thomas, 71 U. S. 4 Wall. 603 (18: 460).

The reference to the tree as a proper natural object to identify the claim, coupled with the reference to the mountain peak, constitutes a clear and sufficient description under the requirements of section 2324.

Glacier Mountain Silver Mining Co. v. Wil lis, 127 U. S. 471 (ante, 172); Meyers v. Farquharson, 46 Cal. 190.

No question was raised in the state court but what the location of the defendants in error followed in its length the general course of the vein, and that the side lines thereof were sub

Waterville v. Van Slyke, 116 U. S. 699 (29: 1. The question certified to this court upon a difference of opinion between the judges of the cir-772); Cal. A. S. Paving Co. v. Molitor, 113 U. euit court must be a distinct point or proposition S. 609 (28: 1106); Weeth v. N. E. Mortg. Co. 106

The record does not show that a disagreement of opinion actually existed between the judges.

Colorado Cent. R. Co. v. White, 101 U. S. 98 (25: 860): Webster v. Cooper, 51 U. S. 10 How. 54 (13: 325).

U. S. 605 (27: 99); Enfield v. Jordan, 119 U. S. | below, the defendants in error, were the own [427] 680 (30: 523); Wilson v. Barnum, 49 U. S. 8 ers. The vessel was insured against fire in ten How. 258 (12: 1070); Webster v. Cooper, 51 U. companies, including the plaintiff in error, S. 10 How. 54 (13: 325); Dennistoun v. Stewart, which issued two policies amounting together 59 U. S. 18 How. 565 (15: 489). to $5,000. The St. Paul first took fire at Detour, where the River St. Mary enters Lake Huron, and had to be scuttled and sunk. She was then raised, and taken to Detroit for repairs. There she took fire a second time, and had to be again sunk. The mere injury to the vessel was settled and paid for by the insurers before it was due by the terms of the policies. The plaintiffs contend that the expense of raising and saving the vessel was not included in this settlement, but was left for future adjustment, and this suit was brought to recover that part of the loss. Similar suits were brought against the other companies, all of which were, by agreement, to abide the event of this. The defendants in error had a verdict and recovered judgment for $2,297.65, which would not have been sufficient to give this court jurisdiction but for the difference of opinion between the judges. That difference arose on the trial as will appear by the following statement of the

The mere fact of payment of the fire loss before due is no consideration for the discharge of the salvage claims.

Philpot v. Gruninger, 81 U. S. 14 Wall. 577 (20: 744); Ellis v. Clark, 110 Mass. 389, 392.

The rule which excludes parol testimony to contradict or vary a written instrument does not forbid an inquiry into the object of the parties in executing and receiving the instrument. Brick v. Brick, 98 U. S. 516 (25: 256); Harris v. Rickett, 4 Hurl. & N. 1; Mobile & M. R. Co. v. Jurey, 111 U. S. 591 (28: 530).

Before this rule can be applied the contract in writing must be shown to be the contract of the parties.

Whart. Ev. § 927; Wake v. Harrop, 6 Hurl. & N. 775; Pym v. Campbell, 6 El. & Bl. 370; Davis v. Jones, 17 C. B. 625; Pollock, Cont. 440; Guardhouse v. Blackburn, L. R. 1 P. & D. 115.

If there is doubt as to interpretation of the phrase loss and damage by fire, the oral testimony was competent to apply the writing to their subject matter.

Bradley v. Washington, A. & G. S. Packet Co. 38 U. S. 13 Pet. 89 (10: 72); U. S. y. Peck, 102 U. S. 64 (26: 46); Barreda v. Silsbee, 62 Ú. S. 21 How. 146 (16: 86); U. S. v. City Bank, 60 U. S. 19 How. 385 (15: 662).

Messrs. C. I. Walker and F. A. Baker, for plaintiff in error, in opposition:

A written contract cannot be varied by parol testimony.

1 Greenl. Ev. §§ 275, 281; 2 Whart. Ev. 920; 2 Pars. Cont. 535; Corse v. Peck, 3 Cent. Rep. 671, 102 N. Y. 515; Brick v. Brick, 98 U. S. 514 (25: 256); Boffinger v. Tuyes, 120 U. S. 205 (30:651); Soper v. Atlantic Mut. F. & M. Ins. Co. 120 Mass. 267; Carr v. Hys, 9 West. Rep. 183, 110 Ind. 414; Carpenter v. Jamison, 6 Mo. App. 216; Kansas City & O. R. Co. v. Hicks,

30 Kans. 288.

Simple receipts for money may be contradicted by parol.

2 Pars. Cont. 555; 1 Greenl. Ev. 305; Coon v. Knap, 8 N. Y. 402; Egleston v. Knickerbacker,

6 Barb. 466.

The amount having been paid fifty-five days in advance of its being due is a good consideration for the agreement.

2 Pars. Cont. 618, 619; Smith v. Brown, 3 Hawks, 580; Brooks v. White, 2 Met. 283; 2 Greenl. Ev. 28.

Mr. Justice Bradley delivered the opinion of the court:

This case comes here by writ of error and a certificate of division of opinion of the Judges of the Circuit Court. The action was brought upon a policy of insurance against fire to recover damages occasioned by the burning of the propeller St. Paul, of which the plaintiffs

case:

It appeared in evidence that the first fire, at Detour, occurred on the 10th of November, 1883, and the second, at Detroit, on the 24th of the same month whilst the cargo was being unladen in order to make the necessary repairs. In both cases the vessel was sunk for the purpose of saving her and her cargo, and raised again at considerable expense. On the 15th of December, 1883, a written agreement was entered into between the plaintiffs and the adjusting agents of the several insurance companies, for the purpose of adjusting the amount of loss caused by the fires to the hull, tackle, awnings, apparel, furniture, engine and boiler connections and appurtenances thereto belonging; by which agreement certain arbitrators were ap pointed to make such adjustment without reference to any other question or matter of difference within the terms and condition of the insurance, and of binding effect only as far as regards the actual cash value of, or damage to, such property covered by the policies. The adjustment under this agreement was completed December 26, 1883, showing a loss of $15,364.78, the proportion due by the plaintiffs in error being $1,920.60. The adjusting agent [428] sent proofs of the loss to the companies with the following letter to each, viz.:

"BUFFALO, January 12th, 1884.
Jno. W. Wickham, Jr., managing owner, for
"GENTLEMEN: I enclose herewith proofs,
loss and damage prop. St. Paul, which I trust
will be found satisfactory:

The claim as made covers only the loss
and damage by fire and water, as per
agreement, on the tackle, awnings,
apparel, furniture, etc., of...
And the appraisers' award on hull, en-
gines, mach'y, etc., of.............

"Aggregating in all

$1,735.08

..13,629.70

$15,364.78

"The assured will make further claims for
expenses of raising the propeller, and is now
preparing the statement of such expenses to
submit with his subsequent claim.
"Yours Truly, W. D. ALLEN, Adjuster."

[430]

[431]