John T. Stoddert, Robert Bowie, and Elizabeth, his wife, vs. Wm. H. Tuck, Exc'r of R. W. Bowie, and others, 5 Md. 18

Eccleston, J., delivered the opinion of this court. iu the argument, the case of Bowie’s Exc’r, vs. Bowie, 1 Md. Rep., 87, was much relied upon in support of the appellants’ claim in this suit, but that case differs very essentially from this. There the testimony of the appellant, John T. Stoddert, which had considerable influence in support of the contract, was before the court and is not here. That was a replevin i;o recover possession of property actually delivered under a contract which R. W. Bowie said had been made requiring him so to deliver.

This is an application to a court of equity for a specific execution of the unexecuted portion of an alleged agreement. In such case it is not only necessary to prove that an agreement was made, but the terms of the agreement must be so clearly and fully shown as that the Court can have no difficulty in knowing what the terms are, so as to be certain of carrying into effect the contract made by the parties. Passing a decree for specific execution upon proof short of this, instead of executing the agreement of the parties, would be making one for them, which the court certainly has no authority to do.

On page 98 of 1 Md. Rep., the court state a manifest distinction between that case and one similar to the present. And a distinction similar in principle will be found in Crane vs. Gough, 4 Md. Rep., 331, 332. There is nothing to show that any agreement was made between R. W. Bowie and his son or either of the parties to the marriage. If there was a contract which can be specifically executed, it was one entered into between R. W. Bowie and J. T. Stoddert. To establish the existence of such a contract, the first proof relied upon consists of three letters from Bowie to Stoddert.

The first is dated 12th December 1845, from which it appears Robert had informed his father of the matrimonial engagement, and of the willingness of Mr. Stoddert to make a settlement on his daughter of real estate. Reasons are urged why the estate of the late Mr. B. C. Worthington should not be purchased by Mr. Stoddert, and Mr. Bowde offers to sell one of his own to him for the purpose of the settlement. Mr.

Bowie states his inability then to do as much for his son as he could wish, but in a subsequent part of the letter he says, "I can give Robert some eight or ten thousand dollars in personal property, (without which a farm would be of no use to him,) as soon as he is married.

Hereafter I hope to assist him more.” Tfie second letter, dated 31st December 1845, begins by saying, “I received by my son Robert your letter of the 15th instant in reply to mine, on the subject of his intermarriage with your daughter.” That reply is not in evidence, and we have no knowledge of its contents except what is to be derived from the remarks of Mr. Bowie. It is very evident, however, that it cannot be considered as an acceptance of, or assent to, the propositions which had been submitted; for, speaking of the young people, Mr.

Bowie says: “It is only necessary to give them a good start, and that I hope may be done without much inconvenience to those to whom they are now looking for assistance. You say that on this subject you prefer a conference with me to a written correspondence. You are right.

It is precisely what I desire.” He then proposes a meeting at Washington, on the 9th of January following, and says, “I see no reason to apprehend that any difficulty can arise to intercept the early settlement of this matter.” At that time, of course, no arrangement had been agreed upon, for if the parties had already made an agreement, the proposed personal interview would have been unnecessary, and any remark in regard to apprehending or not apprehending any difficulty arising “to intercept the early settlement of this matter” would have been useless and uncalled for.

The matter to be settled, and the conference to effect the settlement of it, clearly related to making an arrangement for the purpose of giving the young people “a good start” in life. The third letter is dated 27th May 1846, one day prior to the marriage. In this Mr. Stoddert is informed that Mr. Bowie had closed his purchase of the Nottingham Farm and obtained a deed for it. That the portion which he retained cost him about $10,700, and was in the possession of Robert. Mr.

Bowie then says: “Regarding our conversation in our last interview at Washington as expressing a desire to take this purchase off my hands, I have only to say that J am quite willing to let you have it at cost — the payment to suit your convenience.” “The house,” he adds, “is very comfortably fitted up, with quite as much furniture as young beginners ought to have.” This does not prove that any agreement had been made, if Stoddert, in the interview, induced Bowie to believe he desired to purchase his farm without making the purchase, that could no more justify the inference of an intention on the part of Stoddert to buy it for the purpose of carrying into effect an agreement already concluded, than to suppose such a purchase was designed as one of the items to be included in a contract then in treaty but not finally agreed upon.

These letters are all the written evidence offered to establish the marriage settlement. They do not sufficiently prove it. At most they amount only to evidence showing a treaty in regard to one in contemplation. It is unnecessary to decide whether this is a case in which parol proof may be used in connection with written evidence to establish the alleged agreement, for allowing the appellants to be right in affirming that this may be done, still the proof is not sufficient to entitle them to the relief they ask. And in coming to this conclusion we have assumed, without deciding, that the testimony of T. F.

Bowie, Esq., is admissible. If an agreement has been proved, the terms of it are disclosed with so much want of certainty and clearness, that a court of equity would not be authorised to decree a specific performance. In his first letter R. W. Bowie says he “can give Robert some eight or ten thousand dollars in personal property.” A few days after the marriage Dr. Maccubbin heard a conversation in which R. W.

Bowie was urging upon Stoddert the purchase of the Nottingham Farm for his daughter, saying at the time if Stoddert would buy it, he, Bowie, w’ould furnish his son Robert with personal property to the amount of «flO,000, the object of the two being Ip start the young couple in life. The witness does not state whether Stoddert acceded to this proposition or not, but he heard him say on that occasion they would furnish them, (meaning the young married people,) with a very pretty start. This was the last of May or first of June.

In July following Stoddert bought the farm and in November had it conveyed to himself in fee-simple, but made no conveyance of it to his daughter. From the testimony of T. F. Bowie, Esq., it appears R. W. Bowie stated his understanding of the agreement was, that he should give his son from six to ten thousand dollars.

At which time he asked the witness whether he had not the option to give the lower sum; and said he thought the negroes and some furniture which he had given his son amounted to nearly $6000, he claiming the right to say that should be the amount he was Lo give, Major Stoddert claiming the larger sum. Robert Bowie, the nephew of R. W. Bowie, says he heard a good deal on the subject from his uncle before and after the marriage.

He always understood from his uncle that he and Major Stoddert had made an agreement to set up their children in life, free and unencumbered, and to support them until they made a crop; that Major Stoddert was to buy land and Bowie was to furnish an equivalent in stock, and was also to support them for twelve months, or until a crop was got out.

Prior to the marriage various propositions were made for the purchase of farms of different values, and finally, before the marriage, Bowie informed the witness he had proposed to Stoddert the purchase of the Nottingham Farm, and it met Stoddert’s views as to the value of the farm proper for the young people.

The witness had repeated conversations with his uncle after the marriage, in which he complained that Stoddert had not complied with his share of the contract by deeding the land to his daughter, while he considered himself as having nearly performed his part of it; but Bowie’s views on that subject, as to the extent of the provisions he was to make, were not as great after the marriage as they had been before it. This witness likewise says R. W. Bowie never denied that he had made such contract. R. Johnson, Esq., gives a conversation which took place at his house a few weeks prior to the marriage, in which R. W.

Bowie said it was probable the marriage would take place, but that it depended on certain arrangements being before made between himself and Mr. Stoddert; that he was going on that or the next day to Washington, to meet Mr. Stoddert on the subject. The witness understood that the arrangements were of a pecuniary character, and for the support of the married parties; money was to be advanced by one' and property by the other of the two parents, and in consideration of the marriage; but what the amount was to be, the witness had no such recollection of as would justify him in stating it.

The letters were offered in evidence by the complainants, and the parol testimony alluded to came from- their witnesses. This cannot be regarded as coming within the class of cases cited in argument, in which positive, unqualified, or unconditional proposals, promises, or expressions of inten-' tion, may have been made by a parent to a child, or to a third party, and made known to the child, constituting an-inducement for the marriage. For here the son was the party who first informed his father of the willingness of Mr.

Stoddert to make a settlement of real estate on his daughter; and the son was the bearer of the first two letters from Mr. Bowie; it is-, therefore, a reasonable inference that he knew the nature and character of the negotiation, especially as Mr. Stoddert is referred to the son, in the first letter, for an-explanation- of matters spoken of in it. The letters contain intrinsic evidence of the fact, that Bowie did not design-creating any obligation on himself, except through an agreement with Stoddert. And the parol proof shows the same. If not so, why was the personal interview necessary? Why inform Mr.

Johnson of the expected meeting, and that the arrangements to be made were of a pecuniary character for the support of the parties about to be married, one of the parents to advance money and the other property, in consideration of the marriage? It then becomes necessary to show that a contract was made between the two parents, and what were the terms agreed upon. The provision in the fourth

section of the statute of frauds, requiring agreements in consideration of marriage, or some' ¡memorandum or note thereof, should be in writing, was designed to furnish satisfactory and certain evidence of such contracts, and to guard against the danger of parol proof in matters where it would be very likely to lead to perjury and fraud; or, at all events, where it might be misapprehended and misconstrued. It is therefore to he regretted that the courts have not adhered more closely to this provision of the statute.

They have, however, held that a parol contract, partly performed, may be enforced; but in doing this, the original design of the statute had sufficient influence to induce the courts to require the fact of the agreement, and its terms also to be clearly proved. Atherly on Marriage Settlements, in 27 Law Lib., marginal page 88.

The same author, on page 82, whilst speaking even of letters, says, they “also are considered as good marriage contracts, provided they sufficiently furnish the terms of the agreement.” And on page 84 it is said, “the letter must not only contain an express promise, but the nature and extent of it must sufficiently appear.” We are told in McQueen on Husband and Wife, in 66 Law Lib., marginal page 238, that “promises and agreements in consideration of marriage, in order to be binding, must be positive and unqualified.” See also 1 Sugden on Vendors, 243, 244, (6th Am.

Ed.,) as to the necessity for an agreement to be certain when a specific performance is asked. In Worley vs. Walling, 1 H. & J., 208, an unsuccessful attempt was made to enforce a marriage contract based on parol evidence. Chancellor Hanson, (whose decision was affirmed by the Court of Appeals,) speaks of the statute of frauds as a most wise and salutary law.

And not without some apparent reluctance does he concede that the court of chancery had compelled the performance of parol contracts, “ admitted by the parties to have been made, or clearly proved to have been made, and partly carried into effect.” In Wingate vs.

Dail, 2 H. & J., 76, the complainant made an effort to establish a contract by parol proof, but his bill was dismissed, and the Court of Appeals affirmed the decree, The chancellor admits, that under some circumstances the court would enforce the performance of parol contracts, but never “where it remains uncertain whether or not there was any contract, and even if there was. a contrast,, it does not appear clearly what was the engagement on the complainant.’” And in regard to the absolute necessity for elear proof of the contract, and also of the unequivocal character of acts in part performance, see 3 Md.

Rep., 490, Chesapeake and Ohio Canal Co., vs. Young, and 1 John. Ch. Rep., 132, Phillips vs. Thompson. In Gough vs. Crane, 3 Md. Ch. Decisions, 132, 133, Chancellor Johnson announces, in most unequivocal terms, that clear proof of the contract must be given by a party wishing to take a case out of the statute on the ground of part performance. He considers the principle “too firmly settled to be shaken or drawn in question,” and that all the recent cases manifest a disinclination in the courts to make farther inroads upon the statute, by excepting eases from its operation.

The disposition, he thinks, “is rather to retrace the steps which, have been taken, in what is now considered the wrong direction, but, at all events, if this is not so, a firm determination exists to make no further relaxation of the statute.” Although the decision of the learned chancellor in that ease was reversed, the appellate court did not differ from him in the views to which we have here referred; but, on the contrary they recognised them as correct, by saying, on page 334 of 4 Md. Rep., “The answer of Mrs. Drury to the first cross-interrogatory of the complainant, and the testimony of Dr. R.

M-Jones, is a sufficient compliance with the requisition of the-rule, which makes it incumbent on the party insisting upon the non-application of the statute, to establish his case by distinct and full proof.” In Lord Walpole vs. Lord Orford, 3 Ves., 420, the lord chancellor uses the following emphatic language: “I lay it down as a general proposition, to which I know no limitation,, that all agreements, in order to be executed in this court,, must be certain and defined.” And in Fonbl.

Equi., Book 1, ch, 3, sec. 8, near the end of note d, it is said: “It may be material here to observe, that even the cases which most favor the opinion that courts of equity may compel the performance, and consequently the discovery, of merely parol, agreements, require that the terms of such agreements should be char, definite and conclusive, ” This note Mr. Justice Story considers so valuable, that though long, he cites it at large in note 4 to

section 758, in the 2nd Vol. of his Equi. Jur. In Griffith vs. The Frederick County Bank, et al., 6 G. & J., 439, the court quote, with approbation, the language of Powell on Cont., that “no rule is better established than that every agreement, to merit the interposition of a court of equity in its favor, must be fair, just, reasonable, bona fide, certain in all its pares, mutual,” &c. And the court then say: “If any of these ingredients are wanting, courts of equity will not decree a specific performance.” See also Murndorff and Wife, vs. Kilbourn, et al., 4 Md. Rep., 459.

Admitting that a contract was made between Bowie and Stoddert, can it be said the proof shows the terms of it, in reference to the extent of the obligation of the former, with that degree of certainty required in such a case? We think not. In his first letter, some eight or ten thousand dollars in personal property is what he says he can give Robert, and thereafter hoping to assist him more.

If this is to be understood, not only as an expression of ability, but also of willingness to give, it was nothing more than an offer by which he felt disposed to bind himself, if acceded to by Stoddert, and he would agree to purchase a farm for his daughter; or, in other words, if an arrangement satisfactory to both could be made. This is evident from the general scope of the letter, and from the immediate connection in which the personal property is spoken of with the farm.

That the parties so understood the matter, appears from the subsequent arrangement for a personal interview, in preference to a written correspondence on the subject. No part of the evidence shows that the offer or suggestion of eight or len thousand dollars was ever assented to by Stoddert, or agreed upon between the parties. On the contrary, Ihe declarations of R. W. Bowie, as stated by T. F.

Bowie, tend to show his understanding of the contract was, that he agreed to give his son Robert from six to ten thousand dollars, he claiming the option to give the smaller sum, and that he had given negroes and furniture nearly to that amount, but Major Stoddert claimed the larger s.um. When this conversation took place, whether before or after the marriage, does not appear. , In the conversation which Dr.

Maccubbin speaks of as occurring shortly after the wedding, Bowie told Stoddert he Would furnish his son with personal property to the amount of $>10,000, if he, Stoddert, would buy the “Nottingham Farm” for his daughter. The witness does not say that Stoddert agreed to this proposition. That this sum was not agreed upon, may be fairly inferred from the testimony of T. F. Bowie and Robert Bowie. The latter speaks of repeated conversations with his uncle after the marriage, some of which, we suppose, must have been subsequent to the time alluded to by Dr.

Maccubbin, as that was only a day or two after the marriage. And Robert Bowie says the view's of his uncle as to the extent of the provisions he was to make, were not so great after the marriage as they had been before it. Of course the lesser amount here alluded to was less than $>10,000, because that was the largest sum ever spoken of on th,e part of Bowie. The witness, R. Bowie, mentions no particular sum in any part of his testimony. The conversation alluded to by T. F.

Bowie most probably occurred, not only subsequent to the w'edding, but after the purchase of the farm by Stoddert; for the testimony shows, that at the time of the conversation there was a dispute or difference of opinion between the parties, in regard to the extent of Bqwie?s obligation. And it is not probable that Stoddert would have made the purchase, if it was designed for his daughter under the contract, knowing at the time that there was a misunderstanding as to the terms of the contract. The. testimony, taken altogether, presents a very doubtful case instead of a clear one.

Feeling unwilling to infringe upon the salutary provisions of the statute of frauds, further than the well settled principles of adjudged cases compel us to go, we are not disposed to enforce contracts depending upon parol testimony and part performance, unless the existence of the contract, its terms, and the acts in part performance, are sustained by clear and satisfactory proof. And this, we think, has not been done in the case before us; of course the decision below will be affirmed, and a decree to that effect will be signed. Decree affirmed.