Sec 587

A promise, also, may be conditioned on the exercise of prudence and diligence on the part of the promisee. Illustrations of this are to be found in contracts of service which are conditioned on the good conduct of the employee, and in contracts of common carriage which are conditioned on the owner doing nothing to interfere with the due performance of the carrier's duties.2

5. Discretion of'promisor.

% 588. A promise which is determinable at the will of the promisor is inoperative.3 This has been held to be the case with a contract to take into service at wages to be fixed by the promisor, which is virtually a promise to make a promise.4 It has been Promise may be conditioned on prudence and diligence of promisee.

Promise determinable at promisor's choice is invalid.

1 Dean of Bristol v. Jones, 1 E. & E. 484.

2 Wh. on Neg. sec 334 et seq.

3 Leake, 2d ed. 13, 637; Faulkner v. Lowe, 2 Ex. 595; Barnard v. Cushing, 4 Met. (Mass.) 230; see Demuth v. Institute, 75 N. Y. 502; cited supra, sec 16.

4 Leake, 2d ed. 636; Story on Cont. sec 41; Roberts v. Smith, 4 H. & N. 315. Mr. Leake says (citing Taylor v. Brewer, 1 M. & S. 290; Roberts v. Smith, 4 H. & N. 315; Parker v. Ibbetson, 4 C. B. N. S. 346): "Where an employer engages a servant or agent upon the terms of making him such remuneration as he, the employer, shall think right, there is no legal liability to pay anything." On the other hand, in Bryant v. Flight, 5 M. & W. 114, the case on a quantum meruit was left to the jury; Parke, B., diss. In Butler v. Winona, Sup. Ct. Minn. 1881, it was held that in such case the agreement could be perfected by the fixing of wages in good faith by the employer, and that this bound the employee. "It appears," said Clark, J., "from the findings of fact that the plaintiff performed services for the defendant corporation under a contract whereby 'it was agreed that plaintiff was to enter the service of the defendant in superintending the mason work of a mill, about to be erected by it, and the amount of the plaintiff's compensation, therefore, was to be left entirely to the defendant to determine and fix after the services were performed, at such price and amount as, under all the circumstances, it (defendant) should consider right and proper.' It further appears from the findings ' that after such services were completed, and before the action was brought, the defendant determined and fixed upon the sum of $2.50 per day as the amount of plaintiff's compensation, and as the amount and price thereof, which, under the circumstances, it (defendant) conheld that no legal liability is imposed by a stipulation to take whatever the promisor feels able to pay;1 and by an agreement to build a house if the promisor chooses.2 At the same time if there be a consideration for such a promise, and if it imposes any specific duty on the promisor, it may be enforced by a court of equity, and if broken, exposes the party making it to an action for damages.3 - Under this head may be noticed the line of cases already discussed in which it is held that an inchoate negotiation which is not to take effect until reduced to form does not bind.4 Hence, a court of equity will not enforce specific performance of an agreement " subject to a contract to be settled," or "subject to a proper contract and the payment of a deposit to be agreed on."5 - The Roman standards are emphatic to the effect that a promise by a person to do a thing in the future at his own sidered right and proper.' The further fact is found that the services were reasonably worth four dollars per day. The court below gave judgment for the amount of the compensation at the rate of two and a half dollars per day. The plaintiff claims that he was entitled to a judgment at the rate of four dollars per day. We think the judgment, as rendered, is correct. The contract was clear and unambiguous. The stipulation that the amount of the compensation should depend upon the judgment and decision of the employer may have been an undesirable one for the plaintiff to consent to; but he, nevertheless, chose to accept the employment on those terms. The contract was an entirety and of obligation in all its parts, and the law cannot, after it has - been executed, relieve the plaintiff from the consequences of one of its stipulations which proves to be disadvantageous to him. That would, in effect, be making a new contract for the parties. It was the duty of the defendant to determine and fix the amount of the compensation honestly and in good faith, and if it did so fix it, the obligation of the contract was fulfilled so far as that matter is concerned. It is not alleged in the pleadings nor found in the decision that the defendant acted fraudulently or in bad faith, and fraud or bad faith is not to be presumed. The mere fact that the defendant fixed the compensation at an amount considerably less than the learned judge of the trial court found, upon the evidence before him, the services was reasonably worth, is not of itself sufficient to justify an inference of fraud or bad faith.".

1 Nelson v. Bonnhorst, 29 Penn. St. 352.

2 Rosher v. Williams, L. R. 20 Eq. 210; see Harrison v. Guest, 6 D. M. G. 424; 111. Deaf and Dumb Inst. v. Platt, 5 111. Ap. 567.

3 See Graham v. Graham, 34 Penn. St. 475; Tell City Co. v. Nees, 63 Ind. 245.

4 Supra, sec 5.

5 Harvey v. Barnard's-inn, 45 L. T. N. S. 280.

election is inoperative.1 "Illam autem stipulationam, si vol-ueris dari, inutilem esse constat."2 "Nulla promissio potest consistere, quæ ex voluntate promittentis statum capit."3 "Neque enim debet in arbitrium rei conferri, an sit adstric-tus." As "Windscheid4 remarks, such a promise involves a contradiction: it is to be bound and not to be bound; to assume a duty and not to assume a duty. But a distinction is to be taken between cases where the condition is the promisor's future intention to do the particular thing, and cases in which the condition is his intention to do some other thing. For a man to say, " I will to do this thing when I will to do it," is a mere play on words; for him to say, " I will to do this thing when at some future time I will to do some other thing," makes a promise which can at least be understood. sec 589. It may be that on the last distinction may be explained the rulings sustaining conditions in contracts for sale that the vendee shall "on trial" or " on approval" be satisfied with the thing delivered.* - A retention of the goods beyond the time allowed for trial, however, makes the sale absolute.6 - The buyer has the entire time allotted for trial in which to change his mind and return the goods.7 If the buyer unnecessarily consumes such a portion of the goods as materially impairs their value, this makes the sale absolute.8