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.
If all the terms of the contract have been agreed upon except one, and that term is left open for negotiations within specified limits, it is possible for one of the parties to attempt to waive his right to be consulted in the final determination of such remaining term, and it is possible for him to offer to the adversary party the privilege of fixing such term at the will of the adversary party. A like question might arise where one of the provisions of the contract is uncertain or ambiguous and where its scope might extend from a maximum to a minimum. In such case can one of the parties make such contract valid by offering to the adversary party the right to fix such indefinite covenant within such maximum and minimum provisions at the point at which he may wish to fix it? On the one hand it seems unfair to permit a party to evade liability on the ground of uncertainty where the adversary party offers him the right to fix the uncertain part of the contract so as to make it certain in accordance with his wishes. No injustice can be done by requiring such party to fix the terms of the contract as he may wish and then by holding him to the contract as thus fixed. The question, however, is not one of justice or fair dealing, but one of contract obligation. If the original transaction was not a contract, can either of the parties make it a contract by offering to the other the right to fix the terms of the contract which have not been agreed upon or which are left indefinite? If the original transaction is not a contract, can one party by waiver force the other into a contract into which he is not willing to enter? The authorities on this question are few. It has been held that a contract by which A agrees to sell to B a certain number of carloads of a specified article, may be enforced up to the quantity contained in the smallest carloads of goods of that sort and in that locality, as against the seller's objection that the contract is so uncertain that he can not be obliged to furnish any goods at all.1 In these cases the seller probably preferred to furnish as small a quantity as possible if he was obliged to furnish any quantity. Accordingly no serious injustice was done. If the original contract was uncertain because of the fact that the size of a carload varied greatly, it is difficult to see how the buyer could turn the transaction into a contract by giving up everything in excess of the smallest sized carload. Cases, moreover, might be imagined if the seller had to furnish the goods at all he would prefer to furnish the larger quantity or some intermediate quantity rather than the smaller quantity. It may be noted that the cases in which such contracts are upheld, cite, in support of this proposition, earlier cases in Which the court had held that a contract for a certain number of carloads meant the quantity which could be transported by the ordinary car,2 of the specified railway.3 The earlier cases did not involve the right of either party to force a contract upon the other by waiver.
6 McDougall v. McDonald, 86 Wash. 334, 150 Ac. 628.
7 Murphy v. Hanna, 37 N. D. 156, L. R. A. 1918B, 135, 164 N. W. 32.
8 Mills v. McLanahan, 70 W. Va. 288, 73 S. E. 927.
9 Moselage v. Benevolent & Protective Order of Elks, 118 Miss. 5, 78 So. 947.
10 Noyes v. Young, 32 Mont. 226, 70 Ac. 1063.
11 Noyes v. Young, 32 Mont. 226, 70 Ac. 1063.
12 Briggs v. Morris, 244 Pa. St. 139, 00 Atl. 532.
13 Briggs v. Morris, 244 Pa. St. 130, 90 Atl. 532.
14 Nicolls v. Wetmore, 174 la. 132, 156 N. W. 310.
1 Thompson v. Strong, - Ala. - , 74 So. 34; Indianapolis Cabinet Co. v.
Herrraan, 7 Ind. App. 462, 34 N. £. 570.