promise to "extend an obligation until a specified bank shall resume business," has also been held too indefinite for enforcement, but this decision seems questionable.

§ 41. Offers and agreements indefinite as to price.

It is by no means uncommon for those who offer or agree to employ others, or to buy goods, to make no statement as to the wages or price to be paid. The law invokes here (as likewise where an agreement is indefinite as to time) the standard of reasonableness. Accordingly the fair value of the services or property is recoverable.47 Sometimes, however, the terms of a promise exclude the supposition that the reasonable or market price was intended. In such a case no contract can arise.48 Thus a promise may attempt to define the price but do so too indefinitely for enforcement, as by such words as "Not exceeding $300 a week," 49 the cost, plus a "nice" profit, 50 a division of profits "upon a very liberal basis," 51 "a reasonable amount from the profits," 52 "a portion " of the

Ahlstrom v. Fitzpatrick, 17 Mont. 295, 42 Pac. 757.

Illustrations of this rule in agreements for services may be found in the following, among other decisions: Miller v. Ballerino, 135 Cal. 566, 67 Pac. 1046, 68 Pac. 600; Clark v. Clark, 46 Conn. 586; Rowell v. Ross, 87 Conn. 157, 87 Atl. 355; Wells v. Haynes, 101 Ga. 841, 62 S. E. 968; Lockwood v. Robbins, 125 Ind. 398, 25 N. E. 455; Clark v. Ellsworth, 104 Ia. 442, 73 N. W. 1023; Norwood v. Lathrop, 178 Mass. 208, 59 N. E. 650; Selover v. Bryant, 54 Minn. 434, 56 N. W. 58, 21 L. R. A. 418, 40 Am. St. Rep. 349; Swift v. Johnson, 175 Mo. App. 660, 158 S. W. 96; Randall v. Packard, 142 N. Y. 47, 36 N. E. 823; Perkins v. Hasbrouck, 155 Pa. 494, 26 Atl. 695; Standard Printing Co. v. Publishing Co., 87 Wis. 127, 58 N. W. 238; McNamara v. McNamara, 108 Wis. 613, 84 N. W. 901.

Illustrations of the rule in regard to the price of goods will be found in the following decisions: Acebal v. Levy,

10 Bing. 376; Hoadly v. M'Laine, 10 Bing. 482; Valpy v. Gibson, 4 C. B. 837, 864; Shealy v. Edwards, 73 Ala. 175, 49 Am. Rep. 43; Greene v. Lewis, 85 Ala. 221, 4 So. 740, 7 Am. St. Rep. 42; McEwen v. Morey, 60 Ill. 32; Jenkins v. Richardson, 6 J. J. Marsh. 441, 22 Am. Dec. 82; Taft v. Travis, 136 Mass. 95; Lovejoy v. Michels,. 88 Mich. 15, 49 N. W. 901, 13 L. R. A. 770; Stout v. Caruthersville Hardware Co., 131 Mo. App. 520, 110 S. W. 619; Livingston v. Wagner, 23 Nev. 53, 42 Pac. 290.

48 Van Neeuwen v. Swanson, 121 Minn. 250, 141 N. W. 112.

49 United Press v. New York Press Co., 164 N. Y. 406, 58 N. E. 527, 53 L. R. A. 288.

50 Gaines v. R. J. Reynolds Tobacco Co., 163 Ky. 716, 174 S. W. 482.

51 Butler v. Kemmerer, 218 Pa. 242, 67 Atl. 332. See also Georgia Cane Products Co. v. Corn Products Refining Co., 141 Ga. 40, 80 S. E. 318.

52 Canet v. Smith, 86 N. Y. Misc. 99, 149 N. Y. S. 101.

promisor's estate, 53 "a part of the money,

" 54"to reduce

the rent," 55 "a due allowance," 56 "money to enable them to carry on their business," 57 "good wages," 58 "the average price." 59 These have been held too indefinite for enforcement. But a promise that another shall be "well paid " may be enforced as a promise for reasonable compensation.60 And a price qualified by a guarantee against decline of market prices of competitive goods prior to the time for performance of the contract is sufficiently definite.61 And a promise for services that a testator would leave the promisee "full and plenty after he was gone so that she need not work" was enforced as an obligation to leave an amount sufficient to buy an annuity that would support the promisee in the mode of life to which she had been accustomed.62 A promise to bequeath "as much as to any relation on earth" was held too indefinite by the same court; 63 but it would seem wrongly for a standard is furnished by the terms of the promise which can be applied with exactness.64 Even a promise to an injured workman that in case he failed to recover his health within six weeks the employer would "make it right" was held not too indefinite.65

§ 42. Offers and agreements indefinite as to work or property to be given.

As a promise may insufficiently specify the price to be paid, so the consideration for which the price is to be paid may be

61 Solter v. Leedom & Worrell Co., 252 Fed. 133, 164 C. C. A. 245.

62 Thompson v. Stevens, 71 Pa. 161. 63 Graham v. Graham's Executors, 34 Pa. 475.

64 So held in Sylvester's Case, Popham, 148.

65 Brennan v. Employers' Liability Assur. Corp., 213 Mass. 365, 100 N. E. 632. Hammond, J., said: "The jury might have found that under the circumstances the words 'make it right' meant that in the contingency named the plaintiff's intestate should have fair compensation paid to him in money for the injuries suffered by him. . . . The promise is not void on the ground

69

left equally uncertain, and in such a case it is not usually possible to invoke the standard of reasonableness in order to give the promise sufficient definiteness to make it enforceable. Illustrations of such indefiniteness are as follows: A promise to give the buyer of a horse in a certain contingency "the buying of another horse;" 66 a promise to mine and deliver all "the outcrop" on certain lands.67 on certain lands.67 A reservation of "the necessary line for making a railway;" 68 a promise to sell as many cross-ties as it is possible to accumulate at a certain point for 12 months were held not sufficiently certain." Likewise a promise to erect buildings where the dimensions and plans are not specified,70 or which refers to plans and specifications as a part of a contract though no plans and specifications are attached." So, to erect "a permanent and first-class hotel" in consideration of a promise of a railway "to maintain and support the hotel by the patronage of its road;" 72 a promise to sell bank stock which did not specify whether the stock was to be part of the original issue or part of the stock as afterwards increased; 73 or to buy all the ties of certain grades that the plaintiffs "may be able to purchase or make, up to 200,000 ties, commencing on this date and ending June 1, 1911"; 74 a promise to leave a business to the promisee if he should "attend to the business"; 75 or to give 100 acres of land "for services to be rendered," 76 or to give

that it is too indefinite. Juries are constantly solving such problems." Cf. Bird v. J. L. Prescott Co., 89 N. J. L. 591, 99 Atl. 380.

*Guthing v. Lynn, 2 B. & Ad. 232. Sloss-Sheffield Co. v. Payne, 186 Ala. 341, 64 So. 617.

Pearce v. Watts, L. R. 20 Eq. 492. American Tie & Timber Co. v. Naylor Lumber Co., 190 Ala. 319, 67 So. 246.

Bissinger v. Prince, 117 Ala. 480, 23 So. 67. See also American, etc., Co. . Bridge Co., 29 Ore. 549, 46 Pac. 138.

71 Almine v. King, 92 Ill. App. 276. But see Bernard Gloekler v. Carr, 72 W. Va. 720, 79 S. E. 732. And a power reserved to vary plans and specifica

tions will not invalidate an agreement if provision is made for determining the compensation for such variations United States v. McMullen, 222 U. S. 460, 56 L. Ed. 269, 32 S. Ct. 128.

72 Hart v. Georgia R. R. Co., 101 Ga. 188, 28 S. E. 637.

73 Feore v. Avent, 4 Ala. App. 551, 58 So. 727.

74 Hudson v. Browning, 264 Mo. 58, 174 S. W. 393; but see Mitchell Taylor Tie Co. v. Whitaker, 158 Ky. 651, 166 S. W. 193; Ayer & Lord Tie Co. v. O'Bannon, 164 Ky. 34, 174 S. W. 783. 75 Purves' Estate, 196 Pa. 438, 46 Atl. 369.

76 Sherman v. Kitsmiller, 17 S. & R. 45. See also Briggs v. Morris, 244 Pa. 139, 90 Atl. 532.

a younger brother "a good education" and "to fit him for a lawyer"; " or "to give employment" without specifying its nature or compensation; 78 or to give plaintiff a “job for life" or so long as the defendant remained in business; 79 or to assist "to make a success of a business"; so are all too vague.81 On the other side of the line, a promise to execute a deed "with usual covenants," 82 or to sign a lease in the form "usual in the locality," 83 or to act as exclusive agent and use one's "best efforts"; 84 or to subscribe for stock of a sufficient amount not in excess of $19,000, to provide a corporation with sufficient working funds and capital 85 have been sustained.

Nor need a contract for the sale of goods define their quality. Merchantable goods of the kind promised are required to fulfil such a contract; 86 and a promise of a piece of land to the plaintiff if he married the promisee's daughter and was "good and kind" to her, was enforced.87

§ 43. Offers and agreements where the promisor retains an option.

One of the commonest kind of promises too indefinite for legal enforcement is where the promisor retains an unlimited right to decide later the nature or extent of his performance.

77 Bumpus v. Bumpus, 53 Mich. 346, 19 N. W. 29.

78 Shaw v. Glass Works, 52 N. J. Law, 7, 18 Atl. 696.

79 Ingram-Day Lumber Co. v. Rodgers, 105 Miss. 244, 62 So. 230. See also Bird v. J. L. Prescott Co., 89 N. J. L. 591, 99 Atl. 380. But compare Texas Cent. R. Co. v. Eldredge (Tex. Civ. App.), 155 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 Cal. 63, 64 Pac. 131, 469.

81 See also McCaw Mfg. Co. v. Felder, 115 Ga. 408, 41 S. E. 664.

82 Hart v. Hart, 18 Ch. Div. 670, 684.

83 Scholtz 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. 587, 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. 573, 1 L. R. A. (N. S.) 445, 113 Am. St. Rep. 603. See also Marin Water & Power Co. v. Sausalito, 168 Cal. 587, 143 Pac. 767.

85 Sanders v. Barnaby, 151 N. Y. S. 580, 166 N. Y. App. Div. 274.

86 Whitley v. Willingham, 176 Ala. 264, 57 So. 816.

87 Winslow v. White, 163 N. C. 29, 79 S. E. 258.

This unlimited choice in effect destroys the promise and makes
it merely illusory. 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 profits 97 are all illusory and unenforceable. On the
other hand, a promise to pay for the negotiation of "a satis-
factory lease," 98
a promise to give "the first refusal" of cer-
tain property 99 a promise that if the promisee did such business

"Nulla promissis potest consistere
quæ ex voluntate promittentis statum
capit." Dig. 45, 1, de verb. obl. 108,
§ 1. In re Charles Wacker Co., 244
Fed. 483.

Roberts v. Smith, 4 H. & N. 315;
Gulf, etc., Ry. Co. v. Winton, 7 Tex.
Civ. App. 57, 26 S. W. 770.

*Butler v. Winona Mill Co., 28 Minn.
205, 9 N. W. 697, 41 Am. Rep. 277.
See also Bryant v. Flight, 5 M. & W.
114; Tennant v. Fawcett (Tex. Civ.
App.), 55 S. W. 611.

93 Sydick v. Baltimore & O. R. R. Co., 17 W. Va. 427.

94 Farina v. Fickus [1900], 1 Ch. 331. 95 Sylvester's Case, Poph. 148; Wood v. Evans, 113 Ill. 186, 55 Am. Rep. 409. 6 Moorhouse v. Colvin, 15 Beav.

341.

97 Mackintosh v. Kimball, 101 N. Y. App. Div. 494, 92 N. Y. Supp. 132.

98 Mullally v. Greenwood, 127 Mo. 138, 29 S. W. 1001, 48 Am. Rep. 613. See also cases where the promisee's satisfaction is bargained for.

99 Manchester Ship Canal Company v. Racecourse Co. [1901], 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.