This section is from the book "The Law Of Contracts", by William Herbert Page. Also available from Amazon: Commercial Contracts: A Practical Guide to Deals, Contracts, Agreements and Promises.
The right of the parties to a contract which contains indefinite covenants so vital and material that the entire contract can not be enforced while executory, may be affected by performance of one or more of the covenants of such contract. If the indefinite covenant is performed according to the meaning, which is the most favorable to the adversary party, and the adversary party accepts such performance, such performance eliminates the objection of indefinite-ness, at least where such objection, grew out of the fact that one or more covenants might have two or more possible meanings.1 This result may be explained on the theory that such performance amounts to a new offer, differing from the original offer only in the fact that the indefinite covenant has now been made definite, and that the acceptance of such performance amounts to an acceptance of such new offer.2 If the contract is indefinite because the time for beginning performance is not fixed, such objection will be eliminated as soon as performance actually is begun.3 If a city agrees to subscribe the cost of a bridge and the contract requires that a "good bridge" be constructed, such covenant to pay is enforceable if the bridge has, in fact, been built, at least if such bridge is clearly a good bridge.4 Even if a provision by which a water company agrees to use due diligence in securing a supply of water, is so indefinite, as to impose no legal duty upon the promisor, the adversary party can not avoid such contract if the water company has, in fact, secured an abundant supply of water.5 A contract by which A agrees to furnish the funds necessary to finance a certain contract between B and X, in consideration of which A and B are to divide the profits from such contract in certain fixed proportions, which does not specify the amount of finan-
Iowa. Ryan v. Litchfield, 162 la. 609, 144 N. W. 313.
Massachusetts. Elastic Tip Co. v. Graham, 174 Mass. 507, 55 N. E. 315.
South Carolina. Elders v. Feutrel, - 8. Car. - , 06 S. E. 541.
Wisconsin. Sulzer v. Mover, 161 Wis. 435, 154 N. W. 700.
2 Voorhees v. Louisiana Purchase Exposition Co., 243 Mo. 418, 147 S. W. 783.
3 Faucett v. Northern Clay Co., 84 Wash. 382, 146 Ac. 857: McCall Co. v. Icks, 107 Wis. 232, 83 N. W. 300.
4 Elders v. Feutrel, - S. Car. - , 96 S. E. 541.
5 Ayer & Lord Tie Co. v. O'Bannon, 164 Ky. 34, 174 S. W. 783: Flitcroft v. Allenhurst Club (N. J. Eq.), 61 Atl. 82.
6 Flitcroft v. Allenhurst Club (N. J. Eq.), 61 Atl. 82.
7Ayer & Lord Tie Co. v. O'Bannon 164 Ky. 34, 174 S. W. 783.
8 Flitcroft v. Allenhurst Club (N. J. Eq.), 61 Atl. 82.
9 Flitcroft v. Allenhurst Club (N. J. Eq.), 61 Atl. 82.
1 United States. South Chicago Elevator Co. v. United Grain Co., 165 Fed. 132, 91 C. C. A. 166; Woerheide v. Barber Asphalt Paving Co., 251 Fed. 196.
California. Marin Water & Power Co. v. Sausalito, 168 Cal. 587, 143 Ac. 767.
Michigan. Long v. Mayor, Recorder and Aldermen of Battle Creek, 39 Mich. 323..
Mississippi. Moselage v. Benevolent & Protective Order of Elks, 118 Miss. 5, 78 So. 947.
North Dakota. Murphy v. Hanna, 37 N. D. 156, L. R. A. 1918B, 135, 164 N. W. 32.
Washington. McDougall v. McDonald, 86 Wash. 334, 150 Ac. 628. See also, Sec. 582.
2 Moselage v. Benevolent & Protective Order of Elks, 118 Miss. 5, 78 So. 947; Murphy v. Hanna, 37 N. D. 156, L. R. A. 1918B, 135, 164 N. W. 32.
3 South Chicago Elevator Co. v. United Grain Co., 165 Fed. 132, 91 C. C. A. 166.
4 Long v. Mayor, Recorder and Aldermen of Battle Creek, 39 Mich. 323.
5 Marin Water & Power Co. v. Sausalito, 168 Cal 587, 143 Ac. 767.
151 Offer and Acceptance Sec. 104
• cial aid to be furnished, the time for which the contract was to last, or the measure of damages in case of breach, may be too indefinite for specific performance, or even to entitle one party to damages for breach while such contract is executory; but after all, the covenants have been performed fully to the satisfaction of both parties, except the division of the profits, such division can not be refused on the ground that such contract was indefinite originally.6 A covenant for delivering securities, which is indefinite as not specifying the kinds of securities, becomes enforceable if such securities are delivered and accepted by the promisee.7 Placing the vendee in possession of the tract intended, cures an indefinite description.8 A construction contract which is indefinite because specifications have not been prepared, is enforceable if the promisee permits the contractor to begin work without the preparation of such specifications.9
It has also been held that if a contingency makes the contract uncertain originally, the happening of such contingency may make the contract certain.10 This, too, may be explained on the theory that the parties have treated the contract as in force until the contingency has happened; and that they may be regarded as then having made a contract upon the same terms as the original contract except for the elimination of the element of uncertainty.11
If one or more of the definite covenants to a contract have been performed, and the indefinite covenant is still executory, such performance does not render the executory covenant enforceable.12 If the contract is unenforceable as not being sufficiently definite as to what A is to do under it, the fact that 8 performs in full does not make such contract enforceable.13 The remedy of the party who has performed is to recover the reasonable value of the work performed, money paid, goods furnished, and the like, under such indefinite contract on the theory of quasi-contract.14