In the case of William S. McEwen and Henry H. Wiley v John Den, Lessee of Charles Bulkley and Stuart Brown, the plaintiffs in error argued that they had a valid contract with the defendants for certain lands located in California. The plaintiffs claimed that they were entitled to possession of these lands as well as damages due to their inability to use them because of an alleged breach by the defendants. The Supreme Court found that there was no evidence presented which showed any agreement between parties regarding title or possession; therefore, it held that there was no enforceable contract between them and dismissed the complaint against the defendants without prejudice. Furthermore, since neither party could prove ownership over said land at issue, both sides were ordered to bear their own costs associated with this litigation process

In the dissenting opinion of this case, Justice Nelson argued that the plaintiff's claim should have been granted. He believed that the court had erred in its decision to deny them their right to recover damages for a breach of contract. The plaintiffs had entered into an agreement with Charles Bulkley and Stuart Brown, who were lessees of John Den, wherein they agreed to pay $2 per acre for land located in Michigan Territory. When it was discovered that some parts of the land were not suitable for cultivation due to swamps and marshes, Bulkley and Brown refused payment on those portions. However, Justice Nelson felt that since there was no express condition or limitation stated within the contract regarding these areas being excluded from payment requirements then it could be assumed by both parties involved that all lands would be subject to compensation regardless if they were fit for cultivation or not. Therefore he concluded that since there was no such stipulation included in their agreement then it should stand as is and thus allow recovery by McEwen & Wiley against John Den as lessee under Bulkley & Brown’s leasehold estate.