Fraley vs. Bentley, et al.
when he alleges their insolvency, and conrts of equity will not decree an impossibility. If, as claimed by plaintiffs connsel, the contract to erect the mill was independent of the conveyance, and not merged in it, then it is concerning lands, and, therefore, void by the Statute of Frauds, and such statute need not be pleaded when the defend ants deny the agreement, as in this case. (Hilliard on Vendors, 123, § 39; 25 New York, 153.) The right to a vendor's lien is claimed as though that would give a court of equity jurisdiction, seemingly with the purpose of avoiding a jury trial, but that has been effectually disposed of by the finding of the court; or, if not, the rule is too well settled for argument, that such right cannot exist when the action is upon contract like this, and the damages unliquidated.
The party should first seek his remedy upon his contract, in a court of law, where the defendants have a right to a jury trial, and then if judgment be obtained, there may, under the proper state of facts, be some ground for enforcing a vendor's lien, (4 Kansas, 76; 3 Kansas, 172.) The damages alleged and testified to, were merely visionary and speculative, and not such as a court can recognize. They were as to what profits plaintiff would have realized if a mill had been erected; not what he lost, because it was not erected; not that it changed the market value of any single article of his property; nor that the want of it put him to any extra expense; nor, indeed, is there any proof that he was to have the right to buy one foot of lumber, and the absurd and flimsy proof that some town lots of his, six or seven miles away, and a homestead that he had forfeited, would, in the opinion of the witnesses, be enhanced in value, is not such proof as courts base their judgments upon. (32 Missouri, 275; 23 Howard, 487; 28 New York, 72; 4 Barb., 261; 3 Barb., 424; Parsons on Cont., Vol. 2, 459, etc., and notes; 48 Ills., 308; 45 Ills, 206; 20 Wisconsin, 262 and 297; 21 Wisconsin, 439; 16 New York, 489.) By the finding of the court, as indicated in its judgment for damages only, the defendants were entitled to a trial by jury; and when the conclusion was reached denying the plaintiff a specific execution of the contract or other equi-
