OWINGS VS. BALDWIN AND WHEELER. 123

And, it is not only necessary to take a case out of the stat-
ute, that the acts done should be clear, and definite, and referri-
ble exclusively to the contract sought to be enforced, but the
contract should also be established, by competent proofs, to be
clear, definite, and unequivocal in all its terms. If, says Mr.
Justice Story, "the terms are uncertain, or ambiguous, or not
made out by satisfactory proofs, a specific performance will not
(as indeed upon principle it should not) be decreed." For,
as observed by the same judge, "one of the most important
objects of the statute, was, to prevent the introduction of loose
and indeterminate proofs, of what ought to be, solemn con-
tracts." 2 Story's Equity, sec. 764.

It was said by Chancellor Kent, in the case of Phillips vs.
Thompson, 1 Johns. Ch. Rep., 131, that, to entitle a party to
take a case out of the statute, on the ground of part perform-
ance of the contract, he must make out by clear and satisfac-
tory proof, the existence of the contract as laid in the bill, and
the act of part performance, must be of the identical contract
set up by him. It is not enough, that the act is evidence of
some agreement, but it must be unequivocal and satisfactory
evidence of the particular agreement charged in the bill. The
act must be such as the party would not have done, unless on
account of that very agreement, and with a direct view to its
performance. There must be no equivocation and uncertainty
in the case.

In the subsequent case of Parkhurst vs. Van Cortlandt,
same volume, page 284, the Chancellor remarked, that the
doctrine of Phillips vs. Thompson, was undoubtedly the sound
doctrine, though there may be occasionally a case, or dictum,
which seems to impair it, and that the tendency of the latter
cases, is to prefer giving the party compensation in damages,
instead of a specific performance.

In this case, the bill alleges, that the possession was given,
and taken, in part execution of the agreement; but the answer
explicitly denies this, and states, that the possession so deliver-
ed, and received, is to be referred to an entirely different agree-
ment. The question, therefore, is, has the complainant suc-