77 Bumpus v. Bumpus, 53 Mich. 346, 19 N. W. 29.
78 Shaw v. Glass Works, 52 N. J. Law, 7,18Atl.696.
79 Ingram-Day Lumber Co. v. Rod-gera,106Miea.244,628o.230. See also Bird v. S. L. Prescott Co., 89 N. J. L. 691, 99 Atl. 380. But compare Texas Cent. R. Co. v. Eldredge (Tex. Civ. App.), 156 S. W. 1010, where it was held that a promise to employ for life was not too indefinite, though neither the character of the services nor the compensation was fixed, after the employee had worked for some years without dispute under the agreement.
80 Sutliff v. Seidenberg, 132 Cat. 63, 64 Pac. 131, 469.
81 See also McCaw Mfg. Co. v. Felder, 116 Ga. 408, 41 S. E. 664.
82 Hart f. Hart, 18 Ch. Div. 670,684.
83Scholti v. Northwestern Mutual life Ins. Co., 100 Fed. 573, 40 C. C. A. 556. Cp. Meixel v. Meixel, 161 N. Y. App. Div. 518, 146 N. Y. Supp. 687, where it seems erroneously an agreement to give "a proper and sufficient mortgage to secure specified advances " was held too indefinite. '
84 Emerson v. Pacific Coast, etc., Packing Co., 96 Minn. 1, 104 N. W. 673, 1 L. R. A. (N. S.) 445, 113 Am. St. Rep. 603. See also Marin Water & Power Co. v. Sauaalito, 168 Cal. 687, 143 Pac. 767.
85 Sanders v. Barnaby, 151 N. Y. S. 680,166 N. Y. App. Div. 274.
86Whitley v. Willingham, 176 Ala, 264, 57 So. 816.
87 Winslow v. White, 163 N. C. 29, 79 S. E. 268.
This unlimited choice in effect destroys the promise and makes it merely illusory.88 Thus an agreement to pay such wages as the employer wishes is invalid.89 Though an agreement to pay such wages as the employer considers" right and proper" is not too uncertain,90 since performance of such a promise does not leave the promisor free to do as he may choose. He must in good faith make an honest estimate of what is proper. On the other hand a promise that, if satisfied with the promisee as a customer, the promisor "would favorably consider " an application to renew a subsisting contract, may be kept and yet leave the promisor free to exercise such choice as he wishes; and, therefore, is too indefinite.91 So a promise to employ another to do such work as the employer "may assign to him, from time to time, such services to continue only so long as satisfactory to the employer" is also too indefinite.92 So a promise to dispense with the building of a switch "so long as it pleased the promisor," 93 a promise to leave by will "a share " of the testator's fortune 94 or "a child's part," 95 or that a daughter should "be noticed" in the testator's will,96 and a promise to give an increase in salary and an interest in the profits97 are all illusory and unenforceable. On the other hand, a promise to pay for the negotiation of "a satisfactory lease," 98 a promise to give "the first refusal" of certain property 99 a promise that if the promisee did such business
88 "Nulla promissis potest consistere que ex voluntate promittentis statum capit." Dig. 45, 1, de verb. obl. 108, |1. In ve Charles Wacker Co., 244 Fed. 483.
89 Roberts v. Smith, 4 H.AN. 315; Gulf, etc., Ry. Co. v. Winton, 7 Tex Civ. App. 57, 26 8. W. 770.
90 Butler v. Winona Mill Co.,28 Minn. 205, 8 N. W. 697, 41 Am. Rep. 277. See also Bryant v. Flight, 5 M&W, 114; Tennant v. Fawcett (Tex. Civ. App.), 65 S. W. fill.
91 Montreal Gas Company v. Vasey , A. C. 595.
92Vogel v. Pekoe, 167 DL 339, 42 N. E. 386, 30 L. R. A. 491. See also Goff P. Saxon, 174 Ky. 330, 192 8. W. 24
93 Sydick v. Baltimore ft O. R. R. Co, 17 W. Va. 427.
94 Farina v. Fickus , 1 Ch. 331.
95 Sylvester's Case, Poph. 148; Wood v. Evans, 113 111. 186, 66 Am. Rep. 409.
96Moorhouse v. Colvin, 15 Beav. 341.
97 Mackintosh v. Kimball, 101 N. Y. App. Div. 494, 92 N. Y. Supp. 132.
98Mulklly v. Greenwood, 127 Mo. 138, 2ft 8. W. 1001, 48 Am. Rep. 613. Bee also cases where the promisee's satisfaction is bargained for.
99 Manchester Ship Canal Company p. Racecourse Co. , 2 Ch. 37. These words were construed to mean that such a price should be fixed by the promisor as he was willing to accept from other buyers.
as agent for the promisor, as the latter might "reasonably expect," the agency contract would be renewed;1 a promise to deliver as many ties as the promisor could; 2 a promise to convey a lot of ten acres out of a specified 80 acre lot "averaging in value and quality with the whole," 3 are sufficiently definite. It should be noticed further, that a promise is not too indefinite because it reserves to the promisor the right to choose which of two or more performances he will render. The damage to which the promisee would be entitled in case of breach of such a promise would be based on the least valuable of the alternative performances.4 It is only where the option reserved to the promisor is unlimited that his promise becomes illusory and incapable of forming part of a legal obligation. A promise to give such one of a thousand specified things as tike promisor may choose cannot be enforced specifically, but it is not too indefinite to have a clear meaning, and the promisee's damages would be the value of the least valuable of the thousand things.5 So a promise to perform whenever within five years, the promisor may wish.6 But a promise to give anything whatever which the promisor may choose, or to do or give something whenever the promisor pleases, is illusory, for such promises would be satisfied by. giving something so infinitely near nothing or by performance so infinitely postponed as to have no calculable value. For the same reason if one party to an agreement reserves an unqualified right to cancel the bargain no legal rights can arise from it, while it remains executory.7 Likewise, also an order taken by a travelling salesman will not immediately create a contract if confirmation by the salesman's principal is expressly or impliedly made a term or condition of the agree-meat.8 Nor will a contract arise from an offer or agreement which by its terms is "subject to alterations." 9 But an agreement not to practice medicine in a certain place "unless forced to by some unforeseen circumstances " was held enforceable.10 And so a promise "subject to all unavoidable or unforeseen causes." 11 The difficulty with illusory promises may be twofold, indefiniteness and insufficiency of consideration. If definite enough to be interpreted plainly, but giving the promisor an unlimited option, such a promise may be assented to by the parties but will not serve as consideration for a counter promise.12
1 Worthington v. Beeman, 91 Fed. Rep. 232, 33 C. C. A. 475.
2 Ayer & Lord Tie Co. v. O'Bannon, 164 Ky. 34, 174 8. W. 783; Hudson v. Browning, 264 Mo. 68, 174 8. W. 393, But see Haselhurst Lumber Co. v. Mercantile Ac. Co., 166 Fed. 191.
3 Burgon v. Cabanne, 42 Minn. 267, 44 N. W. 118. See also Brown v. Mun-ger, 42 Minn. 482, 44 N. W. 519, where a promise to convey 320 acres of good tillable land in Dakota within nine miles of a railroad station was held sufficiently definite. Cp. Nippolt v. Kammon, 39 Minn. 372, 40 N. W. 266, where a promise to convey five acres out of lot 3, which contained a larger number, was held too indefinite. Brockway v. Frost, 40 Minn. 155, 41 N. W. 411, where a promise to convey 8 65/100 acres out of a larger tract waa held similarly too indefinite. It may be questioned whether these promises should not have been interpreted as agreements to convey the worst five acres or 8 85/100 acres which the promisor might select. So construed the promises, though not capable of specific enforcement, would not be too indefinite to create a legal obligation.
4See infra,Sec. 1407.
6 Thus in Troy Fertiliser Co. v. Logan, 96 Ala. 619,12 So. 712, a promise to employ a person from a date not later than a specified future day, the precise day to be fixed by the employer, was held not too indefinite for enforcement. In Dingley v. Oler, 117 U. 3.490,6 8. C. 850,29 L. Ed. 984, the promisors had bound themselves to deliver a specified quantity of ice at such times during the ensuing season as they might elect.