DISSENTING OPINION OP
GALBRAITH, J.I am not able to assent to the doctrine announced in the majority opinion particularly that concerning the principal and last proposition discussed i. e. the sufficiency of the memoranda recited to take the agreement out of the operation of the statute *398of frauds. This opinion forcibly illustrates the simplicity and effectiveness of a system of “inference, reference and comparison” in revivifying and reanimating an uncertain and indefinite contract and also shows how the operation of the system results-in setting aside and annulling a statute by a judicial decision.
The statute provides that “No action shall be brought and maintained” * * * “Upon any contract for the sale of lands, tenements or hereditaments, or of any interest in or concerning them.” * * * “Unless the promise, contract or agreement, upon which such actions shall be brought, or some memorandum or note thereof, shall be in writing, and be signed, by the party to be charged therewith,” etc. (Civil Laws 1897, Sec. 1314.)
It is not contended that the contract sued on was in writing-but it is held that the memoranda recited are sufficient to take it out of the operation of the statute. In other words that while-the contract is of such a character that it is incapable, of enforcement on account of this statute the receipt and the letter contain all the essential elements of the contract and are sufficient' to authorize the court to order specific performance of the contract in spite of the statute.
The correctness of this decision must be determined by the-law as announced by the authorities.
“The general rule is that the memorandum must contain all the material terms of the contract.” Brown, Statute of Frauds,, p. 71.
The memorandum relied on “must contain such words as will enable the court, without danger of mistake, to declare the-meaning of the parties. It must obviate the necessity of going to parol testimony, and relying in treacherous memory, as to what the contract itself was.” Scarritt v. St. John’s M. E. Church, 7 Mo. App. 178.
Another test is, “If specific performance is sought, the terms-of the contract must appear with sufficient certainty to enable-the chancellor to make a definite decree.” Oakman v. Rogers, 120 Mass. 214.
*399The United States Supreme Court says, “Unless the essential terms of the sale can be ascertained from the writing itself, or by reference in it to something else, the writing is not a. compliance with the statute; and, if the agreement be thus defective, it cannot be supplied by parol proof, for that would at once introduce all the mischiefs which the statute was intended to prevent.” Williams v. Morris, 95 U. S. 456.
I take it that the members of the court practically agree as to the law governing in this case and that the principal point of difference is as to the proper application of the law to the facts.
Now what was this alleged oral contract between plaintiff and defendant relative to the sale of the land? The plaintiff’s statement of the nature and contents of the agreement in his direct examination was as follows: “I was up in Hilo a year ago last November to look after some coffee lands, and one day, walking out with Mr. Turner, he spoke about different subjects. At last he spoke about coffee lands and I told Mr. Turner I had about 160 acres of land up there and was looking for more. And Mr. Turner said that he had 60 acres of land there under Eight of' Purchase Lease and that he would he willing to sell his lift acres provided he could get sufficient money to improve his 60 acres-, he would he willing to sell his application for 1J/0 acres provided he could get sufficient money to improve his 60 acres first which he was in dnty bound in different conditions to the government; and I ashed him what he would take for his 1J¡0 acres and he said he didn’t know. I said “will you take $1,000. for it.” I told him at the time that I had to pay $1,500. for 160 acres. And he said “yes I will take $1,000. provided you pay for the land.” That made $1,420. all told. We agreed upon that and a few days after I went to his office and gave Mr. Turner $294.30 and Mr. Turner gave me this receipt.” The receipt reads as follows: »
“$294.30. Nov. 8th, 1897.
Eeceived from Chas. I. Fishel Two Hundred and Ninety-four & 30-100 Dollars a/o purchase price Lots 355, 356 and 357, Olaa, as per agreement.
(Sig.)
Geo. A. Turner.”
*400The plaintiff further testifies that Olaa is in Hilo while the records show it to be in Puna.
On cross-examination the plaintiff testifies as follows:
“Q. Have you ever had possession of that land, Mr. Fishel?
“A. No sir.
“Q. Under this contract?
“A. No sir.
“Q. Have you ever seen it?
“A. No sir, I have not seen the land.
“Q. When was the contract made between you and Mr. Turner?
“A. In the month of November, 1897.
“Q. • Was that contract in writing?
“A. In the shape of a receipt.
“Q. In the shape of which receipt?
“A. The shape of the first receipt, $294.30, the first payment.” * * * also
“Q. What were the terms of payment, were they in writing or oral?
‘A. Oral, and the receipt, that is all.” (See transcript of testimony.)
I don’t know, from this testimony, whether Turner agreed to sell and Fishel to buy 140 acres of land, that Turner did.not own, or whether it was only the right to apply to the government for title to the 140 acres that was the subject of the agreement. 3f this last be true the court is not ordering specific performance-of the contract made by the parties and if the former the agreement is not capable of being enforced.
There is nothing in the original agreement by which the eourt -or any one else can determine with certainty whether Turner owns 200 acres, 140 acres or 60 acres, nor-by what title he holds the land outside of the 60 acres held by right of purchase lease, nor where what he does own is located. Fishel says that he told Turner that “he had 160 acres of land up there” and Turner said that “he had 60 acres of land there.” Whether “up there” and “there” refer to- Hilo, Puna, Nona, Hamakua er to any place on the earth or above the earth the terms of the contract do not enlighten us.
What reference does the agreement make to “Lots 355, 356 *401and 357 Olaa,” or in what way does the receipt identify the-original agreement? There was nothing in the agreement, as-given by Mr. Fishel, about obtaining a Patent, nor any thing from which one could infer that the title to the 140 acres — the subject of the contract — was at that time in the government. Turner referred to it as “my 140 acres” and Fishel did the same when he asked what will you take for “your 140 acres.” Again no time being specified for the payment of the purchase price or the delivery of the deed. The presumption would arise that the deed was to- be executed and delivered at once or within a reasonable time from the date of the contract and that all of the: purchase price would be paid in cash on the delivery of deed-We learn from the opinion of the court that this was not the fact: that the purchase price was to be paid as Turner might demand it and that a deed was not to be delivered until after a patent for the land was issued to Turner at some indefinite and uncertain date in the future.
The opinion of the court says that “If all of the writings are signed it is sufficient if they all refer to the same oral agreement, and that whether they do refer to the same oral agreement or transaction may be determined by internal evidence and coincidences, through inspection and comparison.” What “internal evidence” there may be in this receipt or the letter of January 27th to connect the one with the other, or either or both with the original agreement, I have been unable to discover either by inspection or comparison. I am led to the conclusion that it is absolutely necessary to resort to parol testimony in order to connect them.
It is doubtful if the terms of the original agreement as testified to by a plaintiff are sufficiently definite and certain to be the subject of a decree of specific performance in a court of equity provided they had been reduced to- writing and signed by the party to be charged. This being true it is very difficult to understand how the court can take the receipt and letter — less-definite and certain than the original agreement — and figure out an enforcible contract. It is clear to my mind that the re*402ceipt and letter do not contain all of the essential elements of the contract or of any contract; that considering these alone the chancellor cannot, without danger of mistake, make a definite decree; that to enable tbe court to figure out tbe terms of an intelligible contract a resort must be bad to parol testimony to •supply some of tbe material terms thereof and that to permit this is to permit the continuance of the very evil that the statute of frauds was intended to prohibit and remedy.
I am firmly convinced that tbe decree of tbe Circuit Court appealed from ought to be reversed and the bill dismissed.