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 quantity or the quality of the subject-matter may be left indefinite; and such uncertainty will render the contract invalid.1 A contract to furnish a certain number of articles of varying kinds and values, which does not specify the number of each kind that is ordered, is too uncertain to be the basis of a valid contract;2 an agreement to purchase jewelry which does not specify the number of articles, the quality or the price;3 or an order for a certain number of motor cars, without specifying the style, where the manufacturer makes a number of different styles,4 are uncertain. If A sends an order for goods to B, which refers for details to a list of goods enclosed; and such list is not enclosed, such order is so incomplete that B's delay in mailing to A his refusal to accept such goods, can not be regarded as an acceptance by silence.5 An order "ship a hundred at once and hundred November 25, eggs," which is accepted by writing, "we are shipping the hundred today, and have entered the order for the other for the 25th. These are good eggs," does not constitute a contract, since it does not define the quantity; as it is uncertain whether the hundred refers to eggs, dozens, cases, or crates; and the quality thereof is not defined.6 A contract for the sale of land which does not locate it with sufficient certainty,7 as a contract entered into by a number of occupants of public lands, who had not yet acquired title, "to deed and redeed to the old lines as they stand at present," when title should be acquired,8 or to convey land "near" a specified town without further description,9 or a contract describing land only by area,10 or a contract for the sale of "any part" of "certain premises," is invalid. A contract for a chattel mortgage which does not specify the terms thereof, is uncertain.12 A written contract for irrigation which leaves uncertain the amount of water to be furnished and to which is attached a blank contract inconsistent with the written contract, the written contract containing a provision that the water rights to be purchased shall be in all essential respects the same as those
14 Des Moines v. Waterworks Co., 95 la. 348, 64 N. W. 269.
15 Marble v. Standard Oil Co., 169 Mass. 553, 48 N. E. 783.
16 Oliver v. Little, 31 Nev. 476, 103 Ac. 240.
17 Crawley v. Blackman, 81 Ga. 775, 8 S. E. 533.
18 Arundel Realty Co. v. Maryland Electric Rys. Co., 116 Md. 257, 81 Atl. 787.
19 Fisk Min. & Mil. Co. v. Reed, 32 Colo. 506, 77 Ac. 240.
20 Noble v. Joseph Burnett Co., 208 Mass. 75, 94 N. E. 289. Notes to Section 97.............
1 Alabama. Rushton v. McKee, - Ala. - , 77 So. 343.
Georgia. Ferguson v. McCowan, 124
Ga. 669, 52 S. E. 886; Barnes v. Cowan, 147 Ga. 478, 94 S. E. 564.
Idaho. Snoderly v. Bower, 30 Ida. 484, 166 Ac. 265.
Illinois. Higbie v. Rust, 211 111. 333, 71 N. E. 1010.
Minnesota. Nelson v. McElroy, 140 Minn. 429, 168 N. W. 179.
Oklahoma. Franchot v. Nash, - Okla. - , 162 Ac. 935; Bowker v. Linton, - Okla. - , 172 Ac. 442; Emery Bros. v. Mutual Benefit Oil Co., - Okla. - , 175 Ac. 210.
Oregon. Gregory v. Oregon Fruit Juice Co., 84 Or. 199, 164 Ac. 728.
2 Price v. Weisner, 83 Kan. 343, 31 L. R. A. (N.S.) 927, 111 Ac. 439; Wheaton v. Cadillac Automobile Co., 143 Mich. 21, 106 N. W. 399; Price V. Stipek, 39 Mont. 426, 104 Ac. 195.
3 Price v. Weisner, 83 Kan. 343, 31 L. R. A. (N.S.) 927, 111 Ac. 439; Price v. Stipek, 39 Mont. 426, 104 Ac. 195.
4 Wheaton v. Cadillac Automobile Co., 143 Mich. 21,106 N. W. 399.
5 Harris v. Santee River Cypress Lumber Co. (R. I.), 72 Atl. 392.
6 Potomac Bottling Works v. A. H. Barber & Co., 103 Md. 509, 63 Atl. 1068.
7 Alabama. Rushton v. McKee, - Ala. - , 77 So. 343.
Connecticut. McMahon v. Plumb, 90 Conn. 281, 96 Atl. 958.
Georgia. Barnes v. Cowan, 147 6a. 478, 94 S. E. 564.
Oklahoma. Franchot v. Nash, - Okla. - , 162 Ac. 935; Bowker v. Linton, - Okla. - , 172 Ac. 442.
West Virginia. Reger v. McAllister, 70 W. Va. 52, 73 S. E. 48.
8 Armstrong v. Henderson, 16 Ida. 566, 102 Ac. 361.
9 Nelson v. McElroy, 140 Minn. 429,
168 N. W. 179.
10 Barnes v. Cowan, 147 Ga. 478, 94 S. E. 564.
11 De Remer v. Anderson, 41 Nev. 287,
169 Ac. 737.
12 Gregory v. Oregon Fruit Juice Co., 84 Or. 199, 164 Ac. 728.
described in such blank contract;13 a contract to agitate for a reduction in freight rates which does not specify the method whereby such agitation was to be conducted;14 a promise to use influence to secure business for an insurance company;15 a contract by which A is to aid B in selling bonds, which does not show what A is to do or when he is to be paid;16 a contract for disposing of all the "outcrop" of ore on certain realty;17 a promise to "dispose of" an overdraft of an employe "in the large surplus" which had been accumulated and which the persons in control of the limited partnership meant to distribute, in part, among their employes;18 a promise by A to the effect that if he should at any time desire to erect a building in a certain specified town, he would employ B as architect to prepare plans and to superintend the construction of such building;19 a contract whereby A gives to B the exclusive agency for A's goods in a certain county, there being no provision as to the duration of the contract, or as to the amount of goods which B is to take from A:20 a so-called contract for the distribution of automobiles, which is so vague in its provision as not to impose any definite liability;21 a statement by one who had contracted to manufacture certain articles, that he wished the other party to help him out on his pay-roll, or that he would have to be taken care of or he never would complete the order, even if assented to;22 a letter stating that A would want a certain amount of glass during* the year, maybe more; if less, he would take the amount later, and B's answer that the order was entered and he hoped there would be no trouble in giving them all they wanted;23 a contract to build a first-class hotel for the traveling public and to keep it up in a first-class manner on consideration that a railroad would support the hotel by the patronage of its road;24 an offer by first mortgage bondholders to second mortgage bondholders pending reorganization, that the second mortgage bondholders should take part in such reorganization and rank as before;25 an offer to equalize the claims of a creditor and stockholder;26 a contract to form a corporation which does not provide the substance of the contemplated articles of incorporation;27 a covenant in a deed to "live in harmony with the grantor" and not "make him any more trouble about the sum of money she let him have some forty years ago";28 a contract to deposit "satisfactory security";29 a contract by a devisee to "provide well" for a child of testator;30 a promise not to practice medicine in "the territory surrounding" a specified town;31 and a promise by a physician to locate elsewhere if he does not get a certain appointment, "or the field is not larger then than now,"32 are each too indefinite. However, a contract to cease the practice of medicine within a certain territory unless some unforeseen necessity should compel him to return, has been held sufficiently definite.33 Offers by one who is known not to own property offered, showing merely his belief that he can effect a transfer of it, are not definite enough.34
13 Pasco Reclamation Co. v. Cox, 70 Wash. 549, 127 Ac. 107.
14 Gaines v. Vandecar, 59 Or. 187, 115 Ac. 721 [rehearing denied, (Or.), 115 Ac. 1122]. In this case the agitation was, in fact, carried on and was successful. The court seized upon the indefinite character of this provision to deny recovery under a contract basing the compensation upon the amount of the reduction in freight rates.
15 Central Mortgage Co. v. Michigan State Life Ins. Co., 43 Okla. 33, 143 Ac. 175.
16 Briggs v. Morris, 244 Pa. St. 139, 90 Atl. 532.
17 Sloss-Sheffield Steel & Iron Co. v. Payne, 186 Ala. 341, 64 So. 617.
18 Berry Bros. v. Hooper's Estate, 179 Mich. 67, 146 N. W. 275.
19 Ryan v. Hanna, 89 Wash. 379, 154 Ac. 436.
20 Rogers v. White Sewing Machine Co., - Okla. - , 157 Ac. 1044.
21 Nicholls v. Wetmore, 174 la. 132, 156 N. W. 319.
22 Blakistone v. Bank, 87 Md. 302, 39 Atl. 855.
23 Sidney Glasa Works v. Barnes, 86* Hun 374.
An indefinite use of terms may invalidate an offer, as an ambiguous use of the tern} "freight allowance";35 a provision for using the "government rule" for measuring articles, it appearing that the government uses more than one rule for such articles,36 or an offer of "all the colored noils for the year 1887," it not appearing whether it meant all made- by the vendor or all used by the purchaser.37 So a by-law of a land association empowering it "to regulate other proceedings" is too vague.38 -A contract by which certain promoters are to take an additional amount of stock and give their time to managing the business at certain salaries, and promisee is to take a certain amount of stock and is to have the option to take part in the management of the corporation on the same terms as such promoters is indefinite, no specific office being guaranteed to promisee and no specific salary being fixed.39 A contract between an employer and an injured employe, by which the injured employe is to work at a certain kind of work and at a reduced salary until he is able to do full work at regular wages, the question of his fitness for the heavier work to be determined by a certain named physician, is too vague to be enforced.40
24 Hart v. Ry. Co., 101 Ga. 188, 28 S. E. 637.
25 Robinson v. Ry. Co., 135 U. S. 522, 34 L. ed. 276.
26 National Electric Signaling Co. v. Fessenden, 207 Fed. 915.
27 Watson v. Bayliss, 71 Wash. 409, 128 Ac. 1061.
28 Howlett v. Howlett, 115 Mich. 75, 72 N. W. 1100.
29 Holtz v. Olds, 84 Or. 567, 164 Ac. 583 [rehearing denied, Holtz v. Olds, 84 Or. 567, 164 Ac. 1184].
30 Heinisch v. Pennington, 73 N. J. Eq. 456, 68 Atl. 233 [affirmed, Heinisch v. Pennington, 73 N. J. Eq. 606, 73 Atl. 1118].
31 Hauser v. Harding, 126 N. Car.
205, 35 S. E. 586. (Though good as to such town.)
Contra: As to the sale of exclusive rights to sell certain goods in a given city "and the territory tributary thereto": Kaufman v. Mfg. Co., 78 la. 670, 16 Am. St. Rep. 462, 43 N. W. 612.
32 Teague v. Schaub, 133 N. Car. 458, 45 S. E. 762.
33 Ryan v. Hamilton, 205 Iil. 101, 68 N. E. 781; reversing 103 Iil. App. 212.
34 Wenham v. Switzer, 50 Fed. 942, 8 C. C. A. 404; Topliff v. McKendree, 88 Mich. 148. 50 N. W. 109.
35 Peerless Glass Co. v. Crockery Co., 121 Cal. 641, 54 Ac. 101.
36 Snoderly v. Bower, 30 Ida. 484, 166 Ac. 265.