third day of February, 1887, plaintiff and defendant mutually agreed to rescind said first agreement, and it was then mutually agreed by and between them that defendant should convey certain other lots in lieu of the lots described in said agreement, and that he had always been ready and willing to convey the same.

There was a trial by jury, and verdict for plaintiff for $3,188.55. The defendant moved for a new trial, which was denied, and he appeals from the judgment and order denying him a new trial.

Three objections are made to the complaint: (a) That the contract for the conveyance of the property contains no sufficient description of the real estate; (b) that the allegations of fraud are insufficient; (c) that there is no allegation that any damage resulted from the fraudulent representations made, or facts set out from which damages can be inferred.

(a) The real estate is described in the agreement as lots 1, 2, 33, 34, 60, and 59 in his (defendant's) subdivision of the Magee tract. In what city, county, state, or country the land is situated does not appear. If the instrument were one attempting to convey title to property, its insufficiency would be apparent. But the rule as to the particularity of description required in executory contracts to convey is extremely liberal in favor of their sufficiency. The rule is, that where the description, so far as it goes, is consistent but does not appear to be complete, it may be completed by extrinsic parol evidence, provided a new description is not introduced into the body of the contract, and the complaint must contain the averments of such extrinsic matter as may be necessary to render the description complete. (Stanley v. Green, 12 Cal. 162; Lick v. O'Donnell, 3 Cal. 63; 58 Am. Dec. 383; Fry on Specific Performance, 159 et seq.; Torr v. Torr, 20 Ind. 118; Colerick v. Hooper, 3 Ind. 316; Baldwin v. Kerlin, 46 Ind. 426; Brown on Statute of Frauds, sec. 385; McConnell v. Brillhart, 17 Ill. 360; 65

Am. Dec. 661.) But parol evidence cannot be heard to furnish a description. The only purpose for which such evidence can be heard is to apply the description given to the subject-matter. Thus if the description were my farm in Los Angeles County, an allegation in the complaint that I owned but one farm in said county, and where it was situated, would apply the description to the proper subject-matter, and render it certain. But if the description were a farm in Los Angeles County, it could not be rendered certain by the allegation of such extrinsic matter. (Brown on Statute of Frauds, sec. 396; Baldwin v. Kerlin, 46 Ind. 426, 431.)

It is not sufficient to allege that, by the imperfect description given in the contract, the parties intended to convey certain property. (Brown on Statute of Frauds; Baldwin v. Kerlin, 46 Ind. 426; Ryan v. Davis, 5 Mont. 505; Eggleston v. Wagner, 46 Mich. 610; Bowers v. Andrews, 52 Miss. 596.)

Thus it is said in Brown on the Statute of Frauds, section 371: "The contract must contain the essential terms of the contract, expressed with such a degree of certainty that it may be understood without recourse to parol evidence to show the intention of the parties."

Again in section 385: "It must of course appear from the memorandum what is the subject-matter of the defendant's engagement. Land, for instance, which is purported to be bargained for, must be so described that it may be identified." (See, to the same effect, King v. Wood, 7 Mo. 389; Hudson v. King, 2 Heisk. 560, 572; Clark v. Chamberlin, 112 Mass. 19; Gigos v. Cochran, 54 Ind. 593; Newman v. Perrill, 73 Ind. 152; Ferris v. Irving, 28 Cal. 645; Richard v. Snider, 11 Or. 197; Ryan v. Davis, 5 Mont. 505.)

It is not enough, as we have said, to allege that by such incomplete description the parties intended to convey a certain tract of land. Such extrinsic facts must be alleged as will, in connection with such description,

show that the particular piece of land was intended. If the facts alleged, together with the description set out, are not sufficient to identify the land, the contract must be held to be void for uncertainty.

In Ryan v. Davis, 5 Mont. 505, it is said: "Can we say, by an examination of the description in this instrument, that it fits and comprehends the property? Or that without being added to it, it can be connected with and applied to the very property intended, by the aid of extrinsic evidence, and to the exclusion of all other property? Or, when submitted to virtually the same test as laid down by Simrall, C. J., supra, 'is the description so complete that it points directly to the subject-matter, or does it refer to something aliunde the instrument, which, when consulted, indicates the property?' The description in this case does not itself identify the property, nor state directly where it is; neither does it indicate any extrinsic fact which will serve to fix its identity or locality. The more particular description contained in the complaint, after the description stated as contained in the memorandum, is not the description of property directly pointed out by the description contained in the memorandum, nor made by reference to any extrinsic fact stated in the memorandum, which, when connected, indicates the property described in such more particular description. This more particular description itself indicates that parol evidence must be wholly resorted to in order to designate the premises. When the agreement itself fails to identify the property, or to furnish the means by which it may be done, by pointing to some extrinsic facts by whose aid the ambiguity may be removed, to allow parol evidence to explain what was intended would be to allow the entire consideration of a contract in relation to lands, on the part of the person conveying the property, to be proved by parol, and render useless and nugatory the above provision of the statute of frauds."

LXXVIII. CAL.-14

Applying these well-established rules to the case before us, we are of the opinion that, properly aided by the allegation of extrinsic facts, the description in the contract might have been sufficient. If, for example, it had been alleged that the defendant was at the time of the contract the owner of lots 1, 2, 33, 34, 60, and 59 in his (defendant's) subdivision of the Magee tract, situate in lot 10, block O, of the San Pasqual tract, in the county of Los Angeles, state of California, according to the map of said subdivision on record in book 12, page 29, of Miscellaneous Records in the office of the recorder of said county, and upon which map said lots are delineated; that said lots were the only lots of said. numbers, of any subdivision of defendant in any tract of land known as the Magee tract; that said lots were examined by the parties hereto before making said contract, and were verbally agreed upon as the ones for which the said contract was to be executed, and were the lots and property referred to therein, and the said subdivision was the only one then owned by the defendant, or known or designated as the Dennison subdivision of the Magee tract, we think the complaint would have been sufficient in this respect. But the complaint under consideration contains no such allegations, or any others tending to aid the imperfect description set out in the contract. It simply alleges that, by the description given, it was the intention of the parties that the tracts of land specifically described in the complaint should be conveyed. But we have shown that this is not enough. The allegation that the parties intended to convey certain property is the allegation of a mere conclusion. Such intention must appear, as we have said, from the description given, and such extrinsic facts as are alleged in aid of it.

As the description, standing alone, is admittedly insufficient, and no facts in aid of it are alleged, the complaint must be held to be bad for that reason.

(b.) It is further claimed that the complaint does not

sufficiently allege the fraud in procuring the defendant's release from the original contract and the substitution of the new. The contention is, that the representations alleged to have been made were not as to existing facts or of such matters as were material, or that the plaintiff had a right to rely upon, and the following cases are cited: King v. Eagle Mills, 10 Allen, 548; Wilder v. De Con, 18 Minn. 470; Board of Commissioners v. Younger, 29 Cal. 176; 87 Am. Dec. 164.

We think counsel are right as to the rule of law contended for (see Lawrence v. Gayetty, ante, p. 126), and that most of the allegations are within the rule, but there is one allegation showing a representation as to a material and existing fact, viz., that the defendant had, prior to the contract with plaintiff, contracted with another to convey him the same property, and that he was insiting upon a compliance with the contract. The plaintiff, believing this statement to be true, might reasonably have supposed that it would be better to accept. other property than to take a deed for this, which was contracted to another, and might become the subject of litigation because of such prior contract. This repre

sentation was sufficient to authorize a rescission of the second contract, if the complaint were sufficient in other respects. The other representations, to the effect that the defendant was afraid of being prosecuted and sent to state prison, and the like, were not such representations as the plaintiff had a right to act upon, and were no cause for such rescission. Treating these as surplusage, the complaint is sufficient as against this objection, there being one material false representation alleged.

(c.) The further objection to the complaint is, that no damages are shown. The action is peculiar. The fraud alleged is not in procuring the plaintiff to enter into the original contract as is usually the case, but in procuring the release of the defendant from the first contract, and inducing him to enter into a second contract, in lieu of