Page:Dakota Territory Reports.djvu/43

 an alleged agreement concerning lands. At least such it was at the commencement, but the judgment seems to have been rendered upon the law side for damages for breach of contract. As the case was commenced and carried through, defendants were not entitled to a jury, but as it resulted from the finding of the court, they were so entitled; and thus by means out of their power, they were deprived of even a chance to demand a jury. (11 Wallace, 610.) A court of equity will sometimes decree compensation, (never damages, strictly speaking,) when it is incident to the relief prayed for and granted—as when a defendant, since the commencement of proceedings, has put it out of his power to comply with the order of the court, but jurisdiction must have been first acquired by the court of equity, rightfully.

In this case the petition and amended petition, and the proofs, show conclusively that it is no case for equitable relief, and, therefore, just as conclusively no case where compensation or damages could be awarded. Specific performance will, not be decreed when the contract is not certain, and definite in its terms. (Willard's Eq., 266 to 268; Story's Eq. Im., 729 and 731, Par. 767-769; Story's Eq. Im., 724, Par. 764; 4 Wallace, 513; 25 Texas, 408; 19 Wisconsin, 99; Parsons' Cont., 2 Vol, 513.) There is nothing to show, either in the allegations or.the proof, what kind of a mill was to be erected; whether to cost one thousand or fifty thousand dollars; whether it was to saw one foot or fifty thousand feet of lumber per day, or in fact that it was to be maintained one hour, or to saw one foot of lumber, thus rendering it impossible for the court to make any decree for its erection, for what one man might deem a good mill would cost one sum, and what another man would deem a good mill would cost a much larger sum.

Courts of equity never interfere to relieve parties from such uncertain contracts. In other words, they do not undertake to make contracts for parties, only to enforce them when they are certain, definite, and not successfully disputed.

Again: The plaintiff in his amended petition, alleges it to be out of defendant's power to comply with this contract,