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 parties to a contract may not have contemplated completing the contract by subsequent negotiations and yet the terms may be so incomplete that the contract can not be enforced. In such cases if there is no available means of supplying the deficiency, by resorting to the rules of construction; if there is no reference to another instrument which may supply the missing terms; and if the parties have evidently intended some specific provision upon these questions and have not intended to leave the price, time of performance and the like to the implication of the law, the contract can not be enforced.1 An offer in which the price is not fixed, and yet is so specified that it is evident that the parties intended an agreed price, and did not intend merely a reasonable compensation,2 such as an offer to sell certain articles at the market price, if they have no market price,3 is not sufficiently certain. If A sends to B an estimate of the cost of certain goods prepared in accordance with certain specifications without showing the terms of the sale, the person on whose credit the sale was made, or whether the sale was to be without security, B's acceptance of such estimate does not complete a contract.4 If the price is fixed, a clause providing that if the vendee finds that the price agreed upon does not give him a fair margin of profit on a resale he may offer another proposition, does not make the contract indefinite, as such a proposition is not binding on the vendor, and hence does not defeat the other clauses of the contract.5 A contract of employment generally which does not fix the wages, if there are several different kinds at different wages, is unenforceable.6
3 See Sec. 89 et seq.
4 See Sec. 95 et seq.
5 Beach & Clarridge Co. v. American Steam Gauge & Valve Mfg. Co., 202 Mass. 177, 88 N. E. 924.
6 Beach & Clarridge Co. v. American Steam Gauge & Valve Mfg. Co., 202 Mass. 177, 88 N. E. 924.
7 See Sec. 89.
8 See Sec. 95 et seq.
9 See Sec. 95 et seq.
Alabama. Stay v. Tennile, 159 Ala. 514, 49 So. 238.
Georgia. Crawford v. Williford, 145 Ga. 550, 89 S. E. 488.
Illinois. Higbie v. Rust, 211 111. 333, 71 N. E. 1010.
Mississippi. Ingram-Day Lumber Co. v. Rodgers, 105 Miss. 244, 02 So. 230.
Montana. Brophy v. Idaho Produce & Provision Co., 31 Mont. 279. 7S Ac. 493.
New Hampshire. New England Box Co. v. Prentiss, 75 N. H. 246, 72 Atl. 826.
North Carolina. James Leffel Co. v. Hall, 168 N. Car. 407, 84 S. E. 695.
An offer which shows that some specific agreement as to the time of performance is intended, but which does not fix such time, is incomplete.7 An application to borrow a certain sum of money to be secured by a mortgage on certain realty, the application being approved by the finance committee of the prospective lender and the title to realty being approved by its attorney, but the terms of the loan and the time of repayment not being agreed upon, does not constitute a contract.8 A contract which leaves the time of performance uncertain on one side and the quantity uncertain on the other side;9 a contract to sell land which does not fix the time at which deferred payments are to be made payable;10 a contract to pay "one-half cash, balance one to four years, with interest at seven per cent.,"11 or a contract to cut timber, the contract not describing the timber or fixing the time of doing the work, the place of delivery, or the number of carts and teams to be furnished in doing the work,12 are too uncertain to be enforced.
2 Kelly v. Thuey, 143 Mo. 422, 45 S. W. 300. But where the compensation is entirely omitted the contract may be upheld on the theory that a reasonable compensation is intended. See Sec. 02. Stat v. Associated Press, 159 Mo. 410, 81 Am. St. Rep. 368, 51 L. R. A. 151, 60 S. W. 01; Brophy v. Idaho Produce & Provision Co., 31 Mont. 270, 78 Ac. 403; United Press v. Press Co., 164 N. Y. 406, 53 L. R. A. 288, 58 N. E. 527. (To take press reports for five years at not more than $300 per week.)
"Price is as essential as any other of the terms of a contract and without this agreed upon no contract exists." James Leffel Co. v. Hall, 168 N. Car. 407, 84 S. E. 605.
3 New England Box Co. v. Prentiss, 75 N. H. 246, 72 Atl. 826.
4 Oldenburg v. Dorsey, 102 Md. 172, 62 Atl. 576.
5 Lanford v. Wooden-Ware Co., 127 Mich. 614, 86 N. W. 1033.
6 Ingram-Day Lumber Co. v. Rodgers, 105 Miss. 244, 62 So. 230; Shaw ▼. Glass Works, 52 N. J. L. 7, 18 Atl. 606; Bird v. J. L. Prescott Co., 80 N. J. L. 501, 00 Atl. 380.
7 Alabama. Stay v. Tennile, 159 Ala. 514, 40 So. 238.
District of Columbia. Rankin v. Collins, 40 D. C. App. 211.
Georgia. Crawford v. Williford, 145 Ga. 550, 80 S. E. 488.
Iowa. Hinz v. Middlekauff, 168 la. 403, 150 N. W. 607.
Minnesota. Rahm v. Cumminga, 131 Minn. 141, 155 N. W. 201.
Montana. Brophy v. Idaho Produce ft Provision Co., 31 Mont. 279, 78 Ac. 493.
Failure to agree upon the place of performance prevents the existence of the contract.13
A contract by which A agrees to sell land to B for a certain sum, the deferred payments to be secured by a mortgage, and by the terms of which A agrees to release from such mortgage any part which B might resell for such sum as A and B had agreed upon in such contract as equitable, is invalid if no such provisions appear in such written contract.14
An option for a sale of land which does not state the price, terms or time of payment, is incomplete even if the general policy of the vendor in selling land shows what terms he will agree to insert.15 A contract for insurance in which the amount of the premium is not agreed upon,16 or where the two insurance agents who were effecting the insurance, had not apportioned the amount of insurance between their respective companies, and the insured and the insurers have not apportioned the insurance between the building and the machinery,17 is invalid. A contract intended for the benefit of a third person which does not specify the benefit to be conferred, is as unenforceable as if the benefit had been reserved to the promisor.18