pended entirely on the "memoranda of lease," it is manifest that no cause of action for such relief could be stated by the plaintiffs, hence the order refusing leave to amend was proper.

As seen, the learned trial judge, who heard and disposed of the demurrer to the cross-complaint, filed a written opinion setting forth his reasons for sustaining the demurrer. Said opinion is printed in the transcript on appeal. One of the reasons advanced by him in said opinion for holding that the cross-complaint failed to state a cause of action for the relief demanded by that pleading was that it appeared from the "memoranda of lease" referred to in said complaint that the agreement or lease to be executed by the parties was to be reduced to writing, and that, since the instrument just named was signed by neither of the parties and the proposed lease was not executed or put in writing and signed by the parties, there was no completed contract or agreement which was binding upon either of the parties, thus bringing the case as made by the cross-complaint within the doctrine enunciated in the following cases: Fuller v. Reed, 38 Cal. 100, Spinney v. Downing, 108 Cal. 666, [41 Pac. 797], Ambler v. Whipple, 20 Wall. (U. S.) 546, [22 L. Ed. 403], Morrill v. Tehama etc. Co., 10 Nev. 125, which hold that where parties agree to reduce to writing contracts of a certain character whereby and wherein they propose to set forth the terms and conditions of the agreement verbally made with respect thereto, and fail to put their agreement in writing, there is a failure to make a completed contract or one that is binding upon either of the parties, and that an action on such an agreement cannot be maintained, notwithstanding that one of the parties may have partly executed the terms thereof. It may be observed that it is further held in said cases that as to contracts of the character of those dealt with therein, the party who claims to be entitled to the benefit of such contract on the ground of part performance with the knowledge of the other party cannot set up an estoppel as a defense against the repudiation of the agreement by the latter.

Cases may readily be conceived in which verbal agreements for the sale or leasing of real property might be enforced, or where the attempted repudiation or rejection of such agreements by the vendor or lessor might be met or overcome by setting up and establishing an estoppel. Cases in

which contracts not enforceable in courts of law because they contravene the statute of frauds but which will nevertheless be enforced by courts of equity are not uncommon. But the facts in such cases must be so clear that there can be little or no question as to their effect or that they plainly and clearly call for the favorable interposition of equity. The case here, however, so far as the cross-complaint is concerned, proceeds entirely upon the theory that the instrument called the "memoranda of lease" clearly and unmistakably discloses the terms and conditions of the proposed lease or sufficiently so to render the writing capable of being specifically enforced so that the result would be that the defendants, through a decree requiring the specific performance of its terms, would secure the lease which they conceive that its provisions call for. This in effect is the relief demanded by the crosscomplaint. But the instrument is not clear and unmistakable as to its meaning and terms. Indeed, the difficulty standing in the way of its specific enforcement lies in the very fact of its manifest uncertainty and indefiniteness as to the terms upon which the land was to be leased to the defendants for the term of five years. In fact, as is stated and was pointed out by the trial judge in his written opinion, "an inspection of the memoranda shows that the minds of the parties never met on many of the terms to be contained in the proposed lease. These terms were left for future consideration, ascertainment and agreement between the parties."

A few of the particulars in which the instrument referred to is wholly wanting in certainty and definiteness as to terms and conditions may be given: It is provided therein: "It is contemplated that Jolly & Sons shall have a lease for five years. However, we must arrive at terms and rates of pmts. etc.," evidently meaning "terms and rates of payments. Again, it is provided that "Durst Bros. stand ready to advance Jolly & Sons money to buy their cattle or other stock, if proper terms according to their judgment can be obtained." It is further provided that "Jolly & Sons to buy Durst Bros. farming implements-wagons, scales, etc., as mutually agreed on." Furthermore, the "memoranda of lease," while containing a provision that the proposed lease shall likewise contain a provision that a certain portion of the land shall be "leveled," in no way designates or describes the portion of the land to which that provision refers. Nor is there any

provision or statement in the instrument indicating when the lease shall begin.

The foregoing is sufficient to show that there were vital features of the proposed lease upon which the minds of the parties had not met or come together. The writing upon which the defendants rely is therefore too indefinite and uncertain to make it capable of specific enforcement or to justify a decree compelling the plaintiffs to execute a lease in purported conformity thereto.

A court of equity obviously cannot prescribe or fix the terms and conditions to which the parties are to bind themselves by a contract or an agreement, and this is what the court in this case would be required to do in the several particulars above indicated if it were to attempt to compel the plaintiffs to execute to the defendants a lease to run for five years. It would have to ascertain, perhaps upon conflicting evidence, the matter of the "rates and terms of payments.' It would be required to ascertain, perhaps upon conflicting evidence, when the five year lease was to commence, and it would have to determine, possibly upon conflicting proofs, what portion of the land demised was to be leveled by the defendants. In addition to the particulars above mentioned in which the instrument called the "memoranda of lease" is deficient because of uncertainty and indefiniteness, there are other particulars in which the provisions contained in said instrument are ambiguously phrased, and this language would require construction to get at or ascertain the real meaning thereof. That the parties themselves do not agree as to the full meaning of the "memoranda of lease" is shown by the fact that the plaintiffs submitted to the defendants a written lease, which the latter refused to accept because, as they claimed, it did not conform to the terms set out in said memoranda.

"An agreement, the terms of which are not sufficiently certain to make the precise act which is to be done clearly ascertainable, cannot be specifically enforced." (Civ. Code, sec. 3390, subd. 6; Magee v. McManus, 70 Cal. 553, [12 Pac. 451]; Smith v. Taylor, 82 Cal. 533, [23 Pac. 217]; Berry v. Woodburn, 107 Cal. 504, [40 Pac. 802]; Stanton v. Singleton, 126 Cal. 657, [47 L. R. A. 334, 59 Pac. 146]; Reymond v. Labou digue, 148 Cal. 691, [84 Pac. 189].)

In Magee v. McManus, supra, it is said: "Whether the true contract be that which the court finds or that which the plaintiff alleges, it is indefinite and uncertain, not only as to the time of the payment of the note and mortgage to be executed, but as to the amount for which the mortgage was to be given, and the rate of interest upon the debt. It appears that those things were to be the subject of future ascertainment and agreement, so that the mortgage when executed would be sufficient security for the plaintiff. As, therefore, the agreement was not final, and it was indefinite and uncertain in its terms and in itself, specific performance of it could not be enforced in equity," citing Morrison v. Rossignol, 5 Cal. 65; Los Angeles etc. Assn. v. Phillips, 56 Cal. 539; Potts v. Whitehead, 20 N. J. Eq. 55.

In Pomeroy on Contracts, section 159, it is said: "A greater amount or degree of certainty is required in the terms of an agreement which is to be specifically executed in equity than is necessary in a contract which is the basis of an action at law for damages. An action at law is founded upon a mere nonperformance by a defendant, and this negative conclusion. can often be established without determining all the terms of the agreement with exactness. The suit in equity is wholly an affirmative proceeding. The mere fact of nonperformance is not enough; its object is to procure a performance by the defendant, and this demands a clear, definite, and precise understanding of all the terms; they must be exactly ascertained before the performance can be enforced."

It is not necessary to cite authorities to support the proposition that the court, when called upon specifically to enforce an agreement, must ascertain the terms of the instrument sought to be enforced from the instrument itself and not from the construction put upon it in the pleading demanding its enforcement. A complaint in specific performance cannot supply the deficiencies which may render the contract nonenforceable in equity.

But there appears to be some claim that the cross-complaint shows that the defendants held over and remained in possession of the land after the expiration of their first year's possession thereof under the alleged lease a sufficient length of time, without any demand of possession or notice to quit by the plaintiffs, to raise the presumption, declared in subdivision 2 of section 1161 of the Code of Civil Procedure, that

they were then holding the possession by permission of the plaintiffs and so entitled to hold under the lease for an additional full year. The section mentioned provides that a holding over by the tenant for a period of sixty days under the circumstances above indicated will have the effect stated.

There is no such issue set up in the cross-complaint. Nor is there anything therein showing precisely when the defendants went into the possession of the land under the agreement whereby the plaintiffs are alleged to have agreed to execute the five year lease of the land to the defendants; and there is no allegation showing when their first year of possession under said agreement expired. As we have shown, the cross-complaint alleged that "about the first day of September, 1913," the defendants were and had been residing on and cultivating, etc., the land; that, "on or about the first day of September, 1913, the plaintiffs were desirous of leasing to these defendants the lands described in the complaint," etc., and that after considerable negotiations the plaintiffs submitted to the defendants the "memoranda of lease," above referred to, and that the latter accepted the same. In paragraph 4 of the cross-complaint, it is alleged that the defendants entered into the possession of said land with the knowledge and consent of the plaintiffs and began the farming and cultivation thereof according to the terms of said memoranda of lease, and believing that "said properly executed lease of said lands would be drawn up and delivered to them for the term of five years from the month of September, 1913, up to the first day of Oct., 1918." Elsewhere the complaint sets forth in detail the work and improvements put upon the land by the defendants during the first year they occupied the same under the agreement, and concludes by alleging: "And did other and all the work on said lands necessary to properly farm and occupy the same for the year ending October, 1914, and also for the full term of five years," etc. Again, it is alleged that all that was required of the defendants by the alleged agreement in the way of working and farming the land was faithfully performed by the defendants, "and at the end of the year in September, 1914, they had done so at a loss," etc. In paragraph 11 it is alleged that "these defendants during the months of September and October, 1914, continued to farm and work said lands," etc. In the same paragraph it is alleged that the defendants cleared the land in