estate not owned by the foster parents at the time of the agreement, when the value of such services is easily ascertainable. Renz v. Drury, 57 Kan. 84 (45 Pac. Rep. 71). For cases which depend upon particular facts and illustrate when specific performance will be enforced, see Edwards v. Wag horn, 107 Mich. 679 (65 N. W. Rep. 549); Zundelowitz v. Webster, 96 Ia. 587 (65 N. W. Rep. 835); Cathro v. Gray, 108 Mich. 429 (66 N. W. Rep. 346); Franklin v. Salem Bldg Ass'n, Va. (25 S. E. Rep. 97); Showalter v. Hambrick, Va. (25 S. E. Rep. 102); Pomeroy v. Fullerton, 131 Mo. 581 (33 S. W. Rep. 173); Clarno v. Grayson, 30 Ore. 111 (46 Pac. Rep. 426).

Sec. 807. Demand and tender. In actions by the vendor he should aver a tender or offer of performance. Berry v. Fairmount Town Co., 4 Kan. App. 432 (46 Pac. Rep. 28). A vendee seeking specific performance of his contract who offers to perform all that it requires of him need not tender with his bill in actual money the amount due his vendor, where it is shown that the latter has repudiated the contract and, on account of subsequent transactions, the exact amount due him can only be determined by an accounting. Kerr v. Hammond, 97 Ga. 567 (25 S. E. Rep. 337). In an action for breach of contract to convey land, an allegation of demand by plaintiff that defendant execute a deed to a third person for plaintiff's benefit, is sufficient averment of demand. Maitland v. Zanga, 14 Wash. 92 (44 Pac. Rep. 117). The insufficiency of a tender cannot be taken advantage of where the tender is refused upon other grounds. Monson v. Bragdon, 159 Ill. 61 (42 N E. Rep. 383).

Sec. 808. Parties, pleading, practice and proof. Ordinarily the heirs of the deceased vendee and not the administrator are the proper parties in a suit for specific performance of the contract to convey land to the decedent, the price for which has been paid by him. Carpenter v. Fopper, 94 Wis. 146 (68 N. W. Rep. 874). In an action for specific performance by a vendor, whose wife has joined with him in the con tract of sale and the tender of a deed to his property, she need not be made a party plaintiff. Edmison v. Zborowski,

9

S. Dak. 40 (68 N. W. Rep. 288). In Iowa it is held that the party recovering in an action for specific performance may be protected under a general prayer for relief in equity against the inchoate interest of the vendor's wife, she not being a party to the contract of sale sought to be enforced. Hession v. Linastruth, 96 Ia. 483 (65 N. W. Rep. 399). Citing, Leach v. Forney, 21 Ia. 271 (89 Am. Dec. 574); Presser v. Hildenbrand, 23 Ia. 483; Zebley v. Sears, 38 Ia. 507. Where a decree gives one the right to have land reconveyed to him upon the payment of a certain sum of money, in a subsequent action by him to compel such reconveyance he must allege payment of the sum specified by the decree. Manaudas v. Heilner, 29 Ore. 222 (45 Pac. Rep. 758). It is held that where specific performance is denied a rescission of the contract should be decreed. Hendry v. Benlisa, 37 Fla. 609 (20 So. Rep. 800; 34 L. R. A. 283). Citing, Kirby v Harrison, 2 O. St. 326 (59 Am. Dec. 677). For cases depending upon particular facts and illustrating what is sufficient proof to authorize specific performance of a parol contract for the sale of land, see Brown v. Weaver, 113 Ala. 228 (20 So. Rep. 964); Hannah v. Woodson, Va. (25 S. E. Rep. 1014). Where the object of a suit in equity is to secure the specific performance of an alleged parol contract to leave the estate of a foster parent to the child, the rule is that the agreement must be clearly established by satisfactory proofs. Such proofs do not exist in uncertain and unnecessary inferences. Mc Tague v. Finnegan, 51 N. J. Eq. 454 (35 Atl. Rep. 542).

Sec. 809. Recovery of interest in the proceedings to enforce specific performance. It is held that where the non-performance of the contract by the vendee has been due to the wrongful conduct of the vendor, the latter will not be entitled to interest although the vendee has been in possession of the premises. Atchison, T. & S. F. R. Co. v. Chicago & W. I. R. Co., 162 Ill. 632 (44 N. E. Rep. 823; 35 L. R. A. 167). The court say: "From apparently diverse and conflicting authorities, where a bill is filed for specific performance, we may, from the authorities, deduce these principles: Where the contract contains no provision as to possession or interest, if the vendee takes possession he must pay interest

from that date. Calcraft v. Roebuck, 1 Ves. Jr. 221; Fludyer v. Cocker, 12 Ves. 25, 27; Powell v. Martyr, 8 Ves. 146; Ballard v. Shutt, 15 Ch. Div. 122, 124; Attorney General v. Dean, etc., of Christ Church, 13 Sim. 214, 217; Rutledge's Adm'rs v. Smith's Ex'rs, 1 McCord 399; Wilson v. Herbert, 76 Md. 489 (25 Atl. Rep. 685); Bostwick v. Beach, 103 N. Y. 414, 423 (9 N. E. Rep. 41); Boyle v. Rowand, 3 Desaus. Eq. 555; Phillips v. Commissioners, 119 Ill. 626 (10 N. E. Rep. 230); Steenrod's Adm'r v. Railroad Co., 27 W. Va. 1; Stevenson v. Maxwell, 2 N. Y. 408; Binks v. Lord Rokeby, 2 Swanst. 222, 226; Gibson v. Clarke, 1 Ves. & B. 500; Rhys v. Railway Co., L. R. 19 Eq. 93; Paton v. Rogers, 6 Madd. & G. 256; Blount v. Blount, 3 Atk. 636; Lang v. Moole, 31 N. J. Eq. 413; Phillips v. Silvester, 8 Ch. App. 173; Monro v. Taylor, 8 Hare 51; Cleveland v. Burrill, 25 Barb. 532; Hundley v. Lyons, 5 Munf. 342; Railroad Co. v. Gesner, 20 Pa. St. 240, 242; Pom. Cont. § 430. Where the contract contains no provision as to possession, but provides a date for performance, and for the payment of interest thereafter, if either party is in willful default equity will refuse to enforce the terms of the agreement for the benefit of the defaulting party. De Visme v. De Visme, 1 Macn. & G. 336, 347; Lombard v. Congregation, 64 Ill. 477, 486; 75 Ill. 271, 274; Jones v Mudd, 4 Russ. 122; Monk v. Huskisson, Id., note a (1 Sim. 280); Leggott v. Railway Co., 5 Ch. App. 716; Winterbottom v. Ingham, 14 Law J. (pt. 2) 298, 300; Lofland v. Maull, 1 Del. Ch. 359 (12 Am. Dec. 106); In re Riley to Streatfield, 34 Ch. Div. 388; Tewart v. Lawson, 3 Smale, & G. 307, 312; King v. Ruckman, 24 N. J. Eq. 556; In re Riley to Streatfield (1886), 34 Ch. Div. 388. Where a contract provides a time for performance, with a provision for prior possession, and an express agreement for interest from a day named, and the vendor merely neglects or is unable to perform, in such case the vendee shall have the rents and profits, and pay interest, from the time fixed by the contract. Birch v. Foy, 3 H. L. Cas. 565. 603; Brockenbrough v. Blythe's Ex'rs, 3 Leigh 619; McKay v. Melvin, 1 Ired. Eq. 73; Cowpe v. Bakewell, 13 Beav. 421, 422; Baxter v. Brand, 6 Dana 296."

STARTING FIRES.

EPITOME OF CASES.

Sec. 810. Negligent destruction of insured property by fire-Rights of parties. There is no liability on the part of a railroad company to pay to an insurance company the value of property which was destroyed by fire set out by a railroad company, and which the insurance company was required to pay to the owner by virtue of a certain contract of insurance, when the fire is shown to have been accidental. Home Ins. Co. v. Atchison, T. & S. F. R. Co., 4 Kan. App. 60 (46 Pac. Rep. 179). Where insured property has been destroyed by fire originating by the negligence of another, the owner is not entitled to recover its value from both the wrongdoer and the insurer. Cox v. Yeazel, 49 Neb. 343 (68 N. W. Rep. 483). In Wisconsin it is held that in such a case, the owner having been paid his loss by the insurer, he cannot recover of the one whose negligence caused it, the insurer being subrogated to his rights. Allen v. Chicago & N. W. Ry. Co., 94 Wis. 93 (68 N. W. Rep. 873). But in Tennessee it is heid that the right of the owner of property destroyed by fire to recover damages from another by whose fault it was burned is, as against the defendant, unaffected by the fact that he may have already received full payment for his loss by insurance, and that the insurer is entitled to be subrogated to the claim. Anderson v. Miller, 96 Tenn. 35 (33 S. W. Rep. 615; 54 Am. St. Rep. 812; 31 L. R. A. 604). The court say: "In regard to the proper parties to the action, we do not think the assignment well taken. If it be conceded that the insurance company, having paid the entire fire loss, is now entitled to be subrogated to the rights of the insured, as against the tort feasor, or to recover back from him the amount he recovers, still it does not prevent a recovery in the name of the insured for the damage sustained. The question of who will be entitled to the proceeds of the recovery, the insurer or the insured,-is a matter between

them, and constitutes no defense to an action for the damages caused by the wrong, which, in any event, must be brought in the name of the owner and insured, although it might be for the use of the insurer. 24 Am. & Eng. Enc. Law, pp. 308-330; Perrott v. Shearer, 17 Mich. 48, 55, 56; Clark v. Wilson, 103 Mass. 219-227; Hayward v. Cain, 105 Mass. 213; Weber v. Railroad Co., 35 N. J. L. 409; Mason v. Sainsbury, 3 Doug. 61; Yates v. Whyte, 4 Bing. N. C. 272; Hart v. Railroad Corp., 13 Metc. (Mass.) 99; Insurance Co. v. Woodbury, 45 Me. 453; Carpenter v. Insurance Co., 16 Pet. 501; Insurance Co. v. Updegraff, 21 Pa. St. 518; Kernochan v. Insurance Co., 17 N. Y. 428; Honore v. Insurance Co., 51 Ill. 410; Insurance Co. v. Boomer, 52 Ill. 442." Where insured property is destroyed by fire, through the negligence of another, the insurer of such property, who has paid the insured the insurance money, becomes subrogated pro tanto to the plaintiff's claim against the wrongdoer, and should properly join the owner as plaintiff in an action for such negligent burning. Wunderlich v. Chicago & N. W. Ry. Co., 93 Wis. 132 (66 N. W. Rep. 1144).

Sec. 811. Contributory negligence. To entitle a plaintiff to recover damages on account of injury by a fire it must be shown that his negligence did not contribute to the result. Louisville, N. A. & C. Ry. Co. v. Porter, 16 Ind. 266 (44 N. E. Rep. 1112); Austin v. Chicago, M. & St. P. Ry. Co., 93 Wis. 496 (67 N. W. Rep. 1129). It cannot be held as a matter of law, that one living on a prairie farm, four miles from a railroad, with intervening public highways and cultivated farms, is guilty of contributory negligence in not surrounding his premises with fire guards, such as are commonly regarded as sufficient to protect them from prairie fires. Union Pac. Ry. Co. v. McCollum, 2 Kan. App. 319 (43 Pac. Rep. 97). It is not contributory negligence to leave hay lying in windrows upon land adjacent to the right of way of a railroad company. Union Pac. Ry. Co. v. Ray, 46 Neb. 750 (65 N. W. Rep. 773). The court say: "The construction of a railroad near one's premises does not require one to forbear the ordinary use of his land nor does it require him to take unusual precautions to guard against the consequences of