VANN, J.

The important question on this appeal is whether the facts found by the referee support his conclusions of law. The action is clearly in equity and the concrete question is whether according to the facts found a court of equity had jurisdiction. There are five periods in the progress of the negotiations between the various parties when rights are alleged to have accrued and it will be convenient to examine the rights and relations of the parties at each of these periods.

1. When the written contract was made between Fox and Ball, title to the trees did not pass to the latter, for he was first to cut and deliver the logs and leave $4.00 a thousand with the firm of Fitzpatrick Weller to the credit of Fox. The entire consideration on the part of Ball was to cut and deliver the trees and pay for them in the manner specified on delivery at the place named. Under these circumstances title to the trees, even after they had been converted into logs, did not pass to Ball until by such delivery and deposit he had fully performed his part of the contract. The agreement by Fox was to sell and by Ball to cut, deliver and deposit, and the sale was not complete until delivery and payment had been made.

2. The arrangement between Ball and Sherman was not a sale by the former to the latter of an interest in the contract for the trees, but was copartnership agreement verbally made by which Sherman was given a one-half interest in the execution of that contract. Ball still owned it and Sherman simply had an interest in the profits to be derived from carrying it out.

3. Fox orally agreed with Ball and Sherman that his contract with Ball should be so modified as to permit delivery of the logs to the Ellicottville Milling Company instead of to Fitzpatrick Weller. If this modification was invalid because not in writing further discussion is unnecessary, for on that basis it is obvious that the plaintiffs have no cause of action against the defendants either in equity or at law. Personally I am of the opinion that the modification does not come within the requirements of the Statute of Frauds because the change made did not operate on the trees while standing and could have no effect until after they had been cut into logs and thus converted into personal property. ( Killmore v. Howlett, 48 N.Y. 569, 570.) Without so deciding, I shall assume that this is the law for the purpose of further discussion.

4. Ball and Sherman agreed to deliver the logs to the Ellicottville Milling Company at $9.50 per thousand. The milling company advanced to Fox the sum of fifty dollars, and on the next day some of the logs were delivered to it in accordance with the agreement.

Ball and Sherman did not assume to assign the original contract with Fox, which still belonged to Ball, but they agreed to sell to the milling company the logs when cut at $9.50 per thousand. There was part performance by Ball and Sherman through delivery of some of the logs and part payment by the milling company through the advance of fifty dollars to Fox, presumptively with the consent of Ball and Sherman. This was a valid contract which placed Ball and Sherman under obligation to deliver the logs as they were cut to the Ellicottville Milling Company, which, however, acquired no title to the trees when uncut, nor to any logs except as they were delivered at their mill.

5. Finally, Ball assigned his contract with Fox to Fitzpatrick Weller. He had a right to assign it, for there was no agreement that he should not; but as Fitzpatrick Weller knew of Ball and Sherman's contract with the Ellicottville Milling Company, they took it subject thereto. Even if they had a right to go on Fox's land and cut the trees, they had no right to deliver the logs at their own mill, because they knew there was a valid contract outstanding for the delivery thereof to the Ellicottville Milling Company as fast as they were cut. Their rights were subordinate to those created by the previous contracts of which they had full notice.

Ball and Sherman were insolvent, so that a right of action against them was of no value, but both the milling companies were solvent. The referee failed to find that the plaintiff Fox, or his co-plaintiffs composing the Ellicottville Milling Company, or both together, had no adequate remedy at law, or that they would be irreparably injured by the performance of the acts which they sought to enjoin, or that the damages they would sustain would be difficult to prove. Furthermore, we find no evidence in the record to warrant such a finding, so that none can be implied in support of the judgment.

A party cannot be deprived of his right to a trial by jury, nor subjected to the stringent methods frequently employed to enforce judgments rendered by courts of equity, unless the facts conferring equitable jurisdiction are alleged, proved and found. In this case such facts, even if sufficiently alleged, were neither proved nor found. If Ball and Sherman violated their contract with the Ellicottville Milling Company, that fact gave the latter no cause of action against Fox, so that he needed no injunction to protect him in that regard. Nor could he be injured by delivery of the logs to the solvent party to whom he had originally provided they should be delivered and at the same place where he at first agreed that delivery should be made. All he was entitled to in any event was the sum of four dollars per thousand on delivery, and this he could recover as well of the original as of the substituted party to whom delivery was to be made. The claim that he might not get a fair measurement by Fitzpatrick Weller is answered by the fact that they were the persons who, as he had once agreed, were to do the measuring, and by the undisputed evidence that before the commencement of the action they told him he might select any person he chose to do that work at their expense. His remedy at law was ample and he did not show himself entitled to equitable relief.

The same is true of the other plaintiffs. Maple and basswood logs are not a peculiar but a common kind of property which the Ellicottville Milling Company could have procured in the open market, and, so far as the evidence shows, without paying more than they had agreed to pay Ball and Sherman. Even if they had to pay more they could recover the difference of Fitzpatrick Weller. All damages that they sustained from any wrongful act of that firm they could recover from it in an action at law properly brought. It is suggested that other legal remedies were open, but we need not discuss them, for from no point of view as we regard the facts found, or such as could reasonably be found from the evidence, did the plaintiffs, either together or separately, have a cause of action in equity against the defendants. The primary rights of all the parties were legal, not equitable, and the legal remedies were adequate to do complete justice. The equitable remedy of injunction by judgment, as distinguished from an injunction by order pendente lite, depends upon the incompleteness and inadequacy of the legal remedy. If issued to restrain the breach of a contract it is "a negative specific enforcement of that contract" and jurisdiction does not attach unless "the contract is one of a class which will be affirmatively specifically enforced." (Pomeroy's Eq. Jur. [3d ed.] § 1341.) "Equity will not, in general, decree the specific performance of contracts concerning chattels, because their money value recovered as damages will enable the party to purchase others in the market of like kind and quality." (Id. § 1402.) None of the exceptions to this general rule mentioned by the learned author cover specifically or in principle a contract for the sale of trees either when standing or after they are cut into logs, unless the legal damages are "too uncertain and conjectural to constitute an adequate compensation."

No trust or fiduciary relation existed in reference to the logs and, aside from other radical distinctions, there was no negative covenant to be enforced as there was in St. Regis Paper Co. v. Santa Clara Lumber Co. ( 173 N.Y. 149), upon which the plaintiffs rely.

We think that the plaintiffs failed to show themselves entitled to equitable relief of any character and that the facts found by the referee do not support his conclusions of law.

The judgment should be reversed and a new trial granted, with costs to abide the event.

CULLEN, Ch. J., O'BRIEN, EDWARD T. BARTLETT, HISCOCK and CHASE, JJ., concur; HAIGHT, J., dissents.

Judgment reversed, etc.