Angeles College Co., 94 Cal. 235; Butterworth v. Levy, 104 Cal. 506.)

The other points do not require special mention; we have examined them and are satisfied they are without merit.

The judgment and order are affirmed, and the court below is directed to allow respondents, as a part of their costs of appeal, a reasonable fee for the services of their attorneys in this court.

GAROUTTE, J., and HARRISON, J., concurred.

Hearing in Bank denied.

[No. 18374. Department One.-June 27, 1895.] WILLIAM BERRY, RESPONDENT, v. ROBERT WOODBURN, APPELLANT.

SPECIFIC PERFORMANCE-PAROL CONTRACT FOR INTEREST IN MINE— UNCERTAINTY.-A parol contract to the effect that, if the defendant should secure a paying quartz mine through the efforts of the plaintiff, the defendant would, in addition to wages, give to plaintiff an interest in such mine, is as to the interest to be given so uncertain and indefinite as to be unenforceable by a court of equity, and the court has no right to assume that the interest to be conveyed is a one-half interest rather than a one-eighth or any other interest, in the absence of an allegation and finding that the parties understood that they were to own equal and undivided interests in the mine. ID. MINING PARTNERSHIP-CONTRACT OF HIRING.-Although, in the absence of an express agreement as to the respective interests of mining partners, the law may declare them equal partners, yet there is no element of a mining partnership where the contract alleged is one of hiring to procure and work a mine for the defendant, upon the payment of wages and the giving of an interest in the mine, in addition to wages conditioned upon its being found to be a paying mine.

APPEAL from a judgment of the Superior Court of Trinity County.

The facts are stated in the opinion of the court.

D. G. Reid, Galpin & Zeigler, and T. M. Osmond, for Appellant.

The contract was for personal services, and cannot be enforced. (Fuller v. Reed, 38 Cal. 99; Fry on Specific Performance, secs. 545, 555; Kimberley v. Jennings, 6 Sim. 340; Van Alstine v. Wimple, 5 Cow. 162; Charter v. Beckett, 7 Term. Rep. 197; Crawford v. Morrill, 8 John. 253; Duvall v. Myers, 2 Md. Ch. 401; Bodine v. Glading, 21 Pa. St. 50; 29 Am. Dec. 749; Meason v. Kaine, 63 Pa. St. 335; Anson v. Townsend, 73 Cal. 418; Cooper v. Peña, 21 Cal. 403; Colson v. Thompson, 2 Wheat. 341; Hamblin v. Dinneford, 2 Edw. Ch. 529; Clarke v. Price, 2 Wils. Ch. 157; Kemble v. Keane, 6 Sim. 333; Withy v. Cottle, 1 Sim. & St. 174; 2 Story's Equity Jurisprudence, sec. 723; Grimmer v. Cariton, 93 Cal. 189; 27 Am. St. Rep. 171; Lattin v. Hazard, 91 Cal. 87, 91; Patten v. Hicks, 43 Cal. 509; Vassault v. Edwards, 43 Cal. 465.) The contract was void under the statute of frauds. (Code Civ. Proc., sec. 1091; Stat. 1860, p. 175; Stat. 1863, p. 98; Goller v. Fett, 30 Cal. 481; Melton v. Lombard, 51 Cal. 258-60; Yale on Mining Claims, 99-111; Story's Equity Jurisprudence, sec. 757; Moore v. Edwards, 4 Ves. Jr. 23; Cooth v. Jackson, 6 Ves. Jr. 12; Spurrier v. Fitzgerald, 6 Ves. Jr. 548; Blagden v. Bradbear, 12 Ves. Jr. 466; Rondeau v. Wyatt, 2 H. Black. 63.) The contract was too vague and indeterminate to be enforced. (3 Pomeroy's Equity Jurisprudence, sec. 1404; 2 Story's Equity Jurisprudence, secs. 742, 769; Meux v. Hogue, 91 Cal. 442; Breckenridge v. Crocker, 78 Cal. 529; Smith v. Taylor, 82 Cal. 533; Boston etc. R. R. v. Babcock, 3 Cush. 228; 3 Pomeroy's Equity Jurisprudence, sec. 1405; 2 Story's Equity Jurisprudence, sec. 769; Magee v. McManus, 70 Cal. 553; Doe v. Culverwell, 35 Cal. 291; Agard v. Va lencia, 39 Cal. 292, 301; Mathews v. Davis, 102 Cal. 202.) There was no mutuality of remedy. (Banbury v. Arnold, 91 Cal. 606; Fry on Specific Performance, secs. 233, 235, 286; Sturgis v. Galindo, 59 Cal. 32, 33, 43 Am. Rep. 239; Story on Contracts, secs. 447, 448; Tucker v. Woods, 12

Johns. 190; 7 Am. Dec. 305; Keep v. Goodrich, 12 Johns. 398; Chitty on Contracts, 13-15; Eliason v. Henshaw, 4 Wheat. 225; Tuttle v. Love, 7 Johns, 469; Utica etc. R. R. Co. v. Brinckerhoff, 21 Wend. 139; 34 Am. Dec. 220; Burnet v. Bisco, 4 Johns. 235; Benedict v. Lynch, 1 Johns. Ch. 370; 7 Am. Dec. 484; Woodcock v. Bennet, 1 Cow. 733; 13 Am. Dec. 568; Cooper v. Peña, 21 Cal. 403; Cabeen v. Gordon, 1 Hill (S. C.), 51; Anson v. Townsend, supra; Willard's Equity Jurisprudence, 267; Parkhurst v. Van Cortland, 1 Johns. Ch. 282; German v. Machin, 6 Paige, 288; Woodward v. Harris, 2 Barb. 439; Phillips v. Berger, 2 Barb. 611; Rogers v. Saunders, 16 Me. 92; 33 Am. Dec. 635; Bronson v. Cahill, 4 McLean, 19; Tyson v. Watts, 1 Md. Ch. 13; Beard v. Linthicum, 1 Md. Ch. 345; Lawrenson v. Butler, 1 Schoales & L. 13; Clason v. Bailey, 14 Johns. 484; Davis v. Shields, 26 Wend. 362; Fry on Specific Performance, secs. 545, 555; Kimberley v. Jennings, supra; Fuller v. Reed, 38 Cal. 99; Van Alstine v. Wimple, supra; Charter v. Beckett, supra; Crawford v. Morrell, supra; Fry on Specific Performance, secs. 543, 545; Goring v. Nash, 3 Atk. 190; Sherrill v. Crosby, 14 Johns. 358; Movan v. Hays, 1 Johns. Ch. 339; Botsford v. Burr, 2 Johns. Ch. 405; Steere v. Steere, 5 Johns. Ch. 1; 9 Am. Dec. 256.)

A. H. Ricketts, John M. Wright, James W. Bartlett, and Horace R. Given, for Respondent.

The mine was the property of the mining partnership. (Settembre v. Putnam, 30 Cal. 490; Civ. Code, sec. 2511; Moritz v. Lavelle, 77 Cal. 10; 11 Am. St. Rep. 229; Kahn v. Smelting Co., 102 U. S. 241; Duryea v. Burt, 28 Cal. 569; Smith v. Cooley, 65 Cal. 46; Carpenter v. Hathaway, 87 Cal. 434.) The rules of partnership apply as to the interest of plaintiff. (Griggs v. Clark, 23 Cal. 430.) The objection for want of mutuality is not tenable, the contract having been fulfilled on the part of the plaintiff. (Pomeroy's Equity Jurisprudence, 2d ed., sec. 1405, note 7; Richards v. Green, 23 N. J. Eq. 536; Carskaddon v. Kennedy, 40 N. J. Eq. 277; Wilks v. Georgia Pac. R. R.

Co., 79 Ala. 185; Welch v. Whelpley, 62 Mich. 15; 4 Am. St. Rep. 810; Perkins v. Hadsell, 50 Ill. 216; Reese v. Board of Police of Lee County, 49 Miss. 639; Stevens v. Corbitt, 33 Mich. 458; Michigan etc. R. R. v. Bacon, 33 Mich. 466; Swartout v. Michigan Air Line R. R., 24 Mich. 390; Wooters v. International etc. R. R. Co., 54 Tex. 296; Odineal v. Barry, 24 Miss. 9; Seager v. Burns, 4 Minn. 141; Kerr v. Purdy, 50 Barb. 24; Pomeroy on Specific Performance, secs. 167-74, and secs. 167-74, and cases cited; Amherst Academy v. Cowls, 6 Pick. 427; 17 Am. Dec. 387; Williams College v. Danforth, 12 Pick. 541; Waterman on Specific Performance, secs. 199-202, and cases cited; Browne on Statute of Frauds, secs. 365, 366; Vassault v. Edwards, 43 Cal. 458; Colson v. Thompson, 2 Wheat. 341; Lamb v. Hinman, 46 Mich. 112; Cole v. Pilkington, L. R. 19 Eq. 174, 178; Loffus v. Maw, 3 Giff. 592; Lorentz v. Lorentz, 14 W. Va. 762; King v. Gildersleeve, 79 Cal. 510; Ballard v. Carr, 48 Cal. 79; Howard v. Throckmorton, 48 Cal. 489; Hall v. Center, 40 Cal. 63; Brinton v. Van Cott, 8 Utah, 480; Pomeroy on Contracts, sec. 114; Rhodes v. Rhodes, 3 Sand. Ch. 279; Davison v. Davison, 13 N. J. Eq. 246; Twiss v. George, 33 Mich. 253; Lowry v. Tew, 3 Barb. Ch. 413; 2 Story's Equity Jurisprudence, sec. 761; Keatts v. Rector, 1 Ark. 419; Lobdell v. Lobdell, 36 N. Y. 327; Anson v. Townsend, 73 Cal. 417; Tohler v. Folsom, 1 Cal. 211; Manning v. Franklin, 81 Cal. 208; McCarger v. Rood, 47 Cal. 141; White v. Sheldon, 4 Nev. 280.)

GAROUTTE, J.-This is an appeal by defendant upon the judgment-roll, without a statement or bill of exceptions. Plaintiff declares the appeal to be from a judg ment establishing a trust estate in a mine upon full performance of a verbal contract. Defendant declares the appeal to be from a judgment decreeing specific performance of a verbal contract to convey "an 11 terest" in a mine. It is immaterial which of these views is technically true, as in substance there is but little difference. Judgment went for plaintiff, decreeing

IL

that defendant held an undivided one-half interest in the mine in trust for plaintiff, and ordering a conveyance thereof to him.

The action is based upon the following parol contract, entered into between the parties, which contract is set out in the complaint, and found as a fact by the court: "That, if plaintiff would go up to Trinity county, California, and endeavor to procure such a quartz mine, to wit, a quartz mine that would pay, that in the event of defendant's securing such a paying quartz mine in Trinity county, through the efforts of plaintiff, that defendant would pay to plaintiff big wages and pay his expenses for the time occupied by him while securing the mine and until it was demonstrated that the mine was a paying mine; and in the event of the mine being a paying mine that defendant would also give to plaintiff, in addition to the wages aforesaid, an interest in such mine. That in the event of the defendant not securing a paying quartz mine through the efforts of plaintiff, defendant was to pay plaintiff reasonable wages and his expenses as compensation for his services."

The court by its findings declared that plaintiff found a "paying quartz mine"; that defendant secured the same through the efforts of plaintiff, and decreed a conveyance of one-half thereof by defendant to plaintiff, as previously stated.

The case has been elaborately argued from many standpoints, but, as we view it, only one question is necessary to be considered, for the solution of that question presents an impassable barrier to plaintiff's right of recovery. The contract provides that in case plaintiff's labors under it meet with success defendant is to give him "an interest in such mine." We think this provision, as to the interest to be given, so uncertain and indefinite as to be unenforceable by a court of equity. It is elementary that a contract must be certain as to the interest to be conveyed, or equity will not take hold of it. What interest is here to be conveyed? Onehalf, one-fourth, or one-eighth? Upon what principle