50 A contract to sell boles of cotton of average weight as specified "basis 4's reweighed and f.o.b. cam, the difference for the grades above and below to be settled at the time of delivery, is sufficiently certain. Baker v. Lehman, 186 Ala. 403, 65 So. 321. See also United States v. McMullen, 222 U. S. 460, 66 L. Ed. 269, 82 S. Ct.128.
51Ramot v. Schotenfels, 15 Iowa, 467, 83 Am. Dec. 425; Page v. Cook, 164 Mass. 116,41N. E. 115,28 L. R. A. 750, 49 Am. St. Rep. 440; Spirituafa-briek Astra v. Sugar Products Co., 163 N. Y. Supp. 516,176 N. Y. App. Div. 820. In the Massachusetts case above cited, the court held that a demand promissory note "payable when payor and payee mutually agree" was payable "when and after the payor ought ... to have agreed." In the New
York decision a contract for the delivery from 6000 to 12,000 tons of molasses "buyer's option" to be delivered within three years at times to be arranged between buyer and seller, was held enforceable as amounting to an agreement "to do what the law would require to be done in case the clause was absent from the contract, that is, to deliver within a reasonable time after demand." See also infra, Sec. 1421. The Swiss Code of Obligations (Art. 2) provides: "If the parties have come to an agreement on all essential matters, the contract is regarded as concluded even though secondary matters have been reserved. In default of agreement on secondary matters, the judge determines them taking into consideration the nature of the trans-
52 See infra, Sec. 104.
It is important at this point to observe only that a promise too indefinite for enforcement will, for that very reason, be insufficient consideration for a counter-promise. If one promise of a bilateral agreement is too indefinite, neither promise will be enforceable. The indefinite promise cannot be enforced because of its indefiniteness, and the counter-promise even though in itself definite, cannot be enforced because of lack of consideration. It may be supposed, however, that such an agreement is performed either wholly or partly by one party or the other. Let it be supposed first that the promise which originally was definite is performed, this cannot make the indefinite promise enforceable but may give rise to a quasi-contractual obligation to pay the fair value of what has been given.53 If, however, the side of the agreement which was originally too vague for enforcement becomes definite by entire or partial performance, the other side of the agreement (or a divisible part thereof, corresponding to the performance received), though originally unenforceable, becomes binding.54 And even without performance on either
53 Thus in a contract for employment the employer may have promised to pay whatever he thought right. It is conceivable that this may mean that the employee is to be bound by the employer's judgment in any event. If this is the meaning no quasi-contractual right will arise. See Roberts v. Smith, 4 H. & N. 315. But such a promise may also mean that the parties understood reasonable compensation was to be paid, and in such a case if the employer failed to exercise an honest or perhaps a reasonable judgment, as the means provided in the contract failed, the law would impose a quasi-contractual obligation. See Bryant p. Slight, 5M.&W. 114.
54 Levy v. Goldhill, (1917] 2 Gh. 297; EIDorado Co. v. Kinard, 98 Ark. 184, 131 S. W. 460; Marin Water, etc., Co. v. Sausalito, 168 Cal. 687,143 Pac. 767; Work v. Welsh, 160 111. 468, 43 N. E. 719; Gould v. Gunn, 161 Iowa, 155, 140 N. W. 380; Curry v. Kentucky
Western Ry. Co., 25 Ky. L. Rep. 1372, 78 S. W. 435; Caddo Oil, etc., Co. v. Producers' Oil Co., 134 La. 701, 64 So. 684; Parks v. Griffith & Boyd Co., 123 Md. 232, 91 Atl. 581; Moselage v. Benevolent etc. Order, 118 Miss. 5, 78 So. 947; Nicholson p. Acme Cement Co., 145 Mo. App. 623, 122 S. W. 773; Atlantic Pebble Co. v. Lehigh Valley R., 89 N. J. L. 336, 98 Atl. 410; Chard v. Ryan-Parker Const. Co., 182 N. Y. App. D. 455, 169 N. Y. S. 622; Wat-kins v. Davison, 61 Wash. 662, 112 Pac. 743. In Raymond v. White, 119 Mich. 438,78 N. W. 469, a promise was made to "pay a certain sum for the use of patents as long as the promisor used them." Such a promise would be illusory when made, but after use of the patents, the promisor was held bound to pay the agreed sum.
So an agreement to buy and sell "as many goods as the buyer shall order" imposes no legal obligation, but after some goods have been accepted the side the original indefiniteness may sometimes be cured by a subsequent definition of the intended performance.55 But if, in spite of part performance by one party to an indivisible agreement his promises still remain indefinite, he cannot enforce the promises of the other party, unless what has been done amount to substantial performance.56 buyer must pa; the price for them, and after a specific quantity of goods has been ordered the seller is bound to furnish that quantity. Groat Northern By. Co. v. Witham, L. R. 9 C. P. 16; Buick Motor Co. p. Thompson, 138 Ga. 282, 76 S. E. 364. So a contract of employment lacking in mutuality at first becomes binding in so far as the employee performs. little Butte Co. v. Girand, 14 Aria. 9, 123 Fac. 300. 55 Stanley v. Sumrell (Tex. Civ. App.), 163 S. W. 607. In Laurence v. Prosser, 80 N. J. Eq. 248,101 Att. 1040, 1042, the court said:" Was the contract sufficiently specific to warrant equitable relief? In the first instance, perhaps it was not. As made just before the time of the transfer in August, 1911, it was, merely, 'amply to provide for Luman [by will in consideration of a transfer of property]. But when Luman made the transfer, and when Mrs. Dean executed her will and specifically defined the ample provision, in tarme satisfactory to both, the contract was completely executed on one side and completely defined on the other, and could, therefore, only be varied by the consent of both. If she bad made the will contemporaneously with the transfer of the property and because of the transfer, it is clear under the authorities that a contractual obligation would have been imposed upon her. Because she waited a while, the obligation all the time resting upon her to do the very thing which she did, it does not seem to me that the effect of the transection, looked at as one whole, is different.
56In Woerheide v. Barber Asphalt Paving Co., 261 Fed. 196 (C. C. A.), the court said: "Although appellee's performance of this part of the contract must be regarded as substantially complete, yet complete performance of only one of its five or six important executory contract obligations cannot prevent the avoidance of the contract, if others equally important remain executory and are legally uncertain. Santaella v. Lange, 155 Fed. 719, 84 C. C. A. 145; Cold Blast Transp. Co. p. Kansas City Bolt & Nut Co., 114 Fed. 77, 52 C. C. A. 25, 57 L. R. A. 696; Oakland Motor Co. v. Indiana Automobile Co., 201 Fed. 499, 121 C. C. A. 319; Velie Motor Car Co. v. Kopmeier Motor Car Co., 194 Fed. 324, 114 C. C. A. 284; Hudson v. Browning, 264 Mo. 58,174 S. W. 393; Higbie v. Rust, 211 111. 333, 71 N. E. 1010, 103 Am. St. Rep. 204; Eillebrew v. Murray, 151 Ky. 345, 151 S. W. 662; Hopkins v. Iron Co., 137 Wis. 683, 119 N. W. 301. That every part of the consideration be definite or every part be indefinite is not the gauge of the validity of a contract. However the law requires that the important, essential elements in the consideration be ascertainable with reasonable certainty. This is true because the law will not hold a party bound to a contract against his will, when the substance of what he is to get in return is executory, and is so shadowy in its outline that the other party can refuse to perform with impunity." See further infra, Sec. 842.