1

as agent for the promisor, as the latter might "reasonably expect," the agency contract would be renewed; 1 a promise to deliver as many ties as the promisor could; 2 a promise to convey a lot of ten acres out of a specified 80 acre lot "averaging in value and quality with the whole," are sufficiently definite. It should be noticed further, that a promise is not too indefinite because it reserves to the promisor the right to choose which of two or more performances he will render. The damage to which the promisee would be entitled in case of breach of such a promise would be based on the least valuable of the alternative performances. It is only where the option reserved to the promisor is unlimited that his promise becomes illusory and incapable of forming part of a legal obligation. A promise to give such one of a thousand specified things as the promisor may choose cannot be enforced specifically, but it is not too indefinite to have a clear meaning, and the promisee's damages would be the value of the least valuable of the thousand things. So a promise to perform whenever within five years, the promisor may wish. But a promise to give anything whatever which the promisor may choose, or to do or give something whenever the promisor

1 Worthington v. Beeman, 91 Fed. Rep. 232, 33 C. C. A. 475.

2 Ayer & Lord Tie Co. v. O'Bannon, 164 Ky. 34, 174 S. W. 783; Hudson v. Browning, 264 Mo. 58, 174 S. W. 393. But see Hazelhurst Lumber Co. v. Mercantile &c. Co., 166 Fed. 191.

Burgon v. Cabanne, 42 Minn. 267, 44 N. W. 118. See also Brown v. Munger, 42 Minn. 482, 44 N. W. 519, where a promise to convey 320 acres of good tillable land in Dakota within nine miles of a railroad station was held sufficiently definite. Cp. Nippolt v. Kammon, 39 Minn. 372, 40 N. W. 266, where a promise to convey five acres out of lot 3, which contained a larger number, was held too indefinite. Brockway v. Frost, 40 Minn. 155, 41 N. W. 411, where a promise to convey 8 65/100 acres out of a larger tract was held similarly too indefinite. It may be

questioned whether these promises
should not have been interpreted as
agreements to convey the worst five
acres or 8 65/100 acres which the prom-
isor might select. So construed the
promises, though not capable of specific
enforcement, would not be too indefi-
nite to create a legal obligation.
4 See infra, § 1407.
5 Ibid.

Thus in Troy Fertilizer Co. v. Logan, 96 Ala. 619, 12 So. 712, a promise to employ a person from a date not later than a specified future day, the precise day to be fixed by the employer, was held not too indefinite for enforcement. In Dingley v. Oler, 117 U. S. 490, 6 S. C. 850, 29 L. Ed. 984, the promisors had bound themselves to deliver a specified quantity of ice at such times during the ensuing season as they might elect.

pleases, is illusory, for such promises would be satisfied by. giving something so infinitely near nothing or by performance so infinitely postponed as to have no calculable value. For the same reason if one party to an agreement reserves an unqualified right to cancel the bargain no legal rights can arise from it, while it remains executory." Likewise, also, an order taken by a travelling salesman will not immediately create a contract if confirmation by the salesman's principal is expressly or impliedly made a term or condition of the agreement. Nor will a contract arise from an offer or agreement which by its terms is "subject to alterations." But an agreement not to practice medicine in a certain place "unless forced to by some unforeseen circumstances" was held enforceable.10 And so a promise "subject to all unavoidable or unforeseen causes." The difficulty with illusory promises may be twofold, indefiniteness and insufficiency of consideration. If definite enough to be interpreted plainly, but giving the promisor an unlimited option, such a promise may be assented to by the parties but will not serve as consideration for a counter promise. 112 § 44. Offers and agreements in which the promisee is given an option.

An unlimited option given to the promisee is theoretically not

Velie Motor Car Co. v. Kopmeier Motor Co., 194 Fed. 324; Ellis v. Dodge, 237 Fed. 860. See also cases cited infra, § 55, n., and Toledo Computing Scale Co. v. Stephens, 96 Ark. 606, 132 S. W. 926. But where, as in White v. McCullagh, 74 W. Va. 116, 81 S. E. 720, the right of cancellation may not be exercised arbitrarily, but only in the exercise of the judgment of the promisor as a fiduciary for others, the reservation of the right does not prevent the existence of a contract. In Cummer v. Butts, 40 Mich. 322, 29 Am. Rep. 530, either party was given the right to terminate an agreement "for good cause." It was held that any revocation made in good faith by either party was effectual. And so where an agreement reserved a right to each party to terminate it "for just

cause." Oakland Motor Car Co. v. Indiana Automobile Co., 201 Fed. 499, 121 C. C. A. 319. But see infra, § 60 n., as to damages which may arise from the exercise of a right of cancellation.

8 Cable Co. v. Hancock, 2 Ga. App. 73, 58 S. E. 319; American Publishing &c. Co. v. Walker, 87 Mo. App. 503; Senner & Kaplan Co. v. Gera Mills, 185 N. Y. App. D. 562, 173 N. Y. S. 205; Thomas Mfg. Co. v. Lyons, 29 S. Dak. 600, 137 N. W. 340; Waco Mill Co. v. Allis-Chalmers Co. (Tex. Civ. App.), 109 S. W. 224. ·

9 Mayer v. McCreery, 119 N. Y. 434, 23 N. E. 1045.

10 Ryan v. Hamilton, 205 Ill. 191, 68 N. E. 781.

11 Shadbolt, etc., Boyd Iron Co. v. Topliff, 85 Wis. 513, 55 N. W. 854. 12 See infra, § 104.

as destructive of the validity of the promise as such an option given to the promisor. Certainly the promise is not illusory where the option is given to the promisee; that is, it does not fail by its very terms to promise anything, as is the case where the promisor retains an unlimited option. Nor is there objectionable indefiniteness since a means is provided (the promisee's election) for determining the precise thing which the promisor is to do. Such difficulty as exists is the opposite from that where the promisor retains the choice. So much is promised by a promise to do or give whatever the promisee may choose, that an infinitely great performance may be demanded. And such a promise in many cases would be against public policy. 13 But though a wholly unlimited option to the promisee may not be permitted, it is possible to give him a large choice of what performance he will demand or accept. A common illustration of such a promise is where a seller promises to deliver goods or render some other performance which shall be satisfactory to the buyer. Such a promise is usually considered as requiring the promisor to render performance which shall be satisfactory to the promisee if he exercises an honest judgment.14 But the promisee must

13 See Crane v. Crane Co., 105 Fed. Rep. 869, 45 C. C. A. 96, and infra, § 1652. Cf. Western Newspaper Union v. Kitchel, 201 Mich. 121, 166 N. W. 1021.

14 Cases of promises or conditions requiring the satisfaction of the promisee are Andrews v. Belfield, 2 C. B. (N. S.) 779 (sale of a carriage); Diggle v. Ogston Motor Co., 112 L. T. 1029 (contract of employment); Silsby Mfg. Co. v. Chico, 24 Fed. Rep. 893 (sale of steam engine); Campbell Printing Press Co. v. Thorp, 36 Fed. Rep. 414 (sale of printing presses); Re George M. Hill Co., 123 Fed. Rep. 866, 59 C. C. A. 354 (sale of machine); Barnett v. Beggs, 208 Fed. 255, 125 C. C. A. 455 (contract for plans and specifications); American Music Stores V. Kussell, 232 Fed. 306, 146 C. C. A. 354, L. R. A. 1916 F. 882 (contract of

employment); Hallidie v. Sutter St. R.
R. Co., 63 Cal. 575 (sale of steel rope
or cable); Koll v. Bush, 6 Colo. App.
294, 40 Pac. 579 (contract of employ-
ment); Zaleski v. Clark, 44 Conn. 218, '
26 Am. Rep. 446 (making plaster bust);
MacKenzie v. Minis, 132 Ga. 323, 63
S. E. 900, 23 L. R. A. (N. S.) 1003
(contract of employment); Goodrich
v. Van Nortwick, 43 Ill. 445 (sale of a
fanning mill); Buckley v. Meidroth, 93
Ill. App. 460 (sale of acetylene gas
generator and fixtures); Inman Mfg.
Co. v. American Cereal Co., 124 Iowa,
737, 100 N. W. 860 (sale of machine
for mill); Brown v. Foster, 113 Mass.
136, 18 Am. Rep. 463 (sale of suit of
clothes); Gibson v. Cranage, 39 Mich.
49, 33 Am. Rep. 351 (contract for
enlarging a photograph); Wood Reap-
ing & Mowing Machine Co. v. Smith,
50 Mich. 565, 45 Am. Rep. 57 (sale of

give fair consideration to the matter. A refusal to examine the promisor's performance, 15 or a rejection of it not in reality based on its unsatisfactory nature 16 but on fictitious grounds

or none at all will amount to prevention of performance of the condition and excuse it.17 In New York and some other States a broader and artificial meaning is given to such a promise. It is construed as matter of law as imposing upon the promisor the duty only of satisfying a reasonable man, 18 unless the subject-matter of the contract involves personal taste. In such a case even in these latter States the contract is held to require the actual satisfaction of the promisee.19 Frequently, no doubt, on a true construction of promises for satisfactory performance, reasonable satisfaction and not actual satisfaction of the promisee is all that is required. Especially is this likely to be the case where the contract provides definite tests or specifications for the required performance, and

17 See infra, § 677.

18 Gladding v. Montgomery, 20 Cal. App. 276, 128 P. 790; McCartney v. Badovinac (Colo. 1916), 160 Pac. 190, L. R. A. 1917, A. 1146; Fuchs & Lang Mnfg. Co. v. Kittredge, 242 Ill. 88, 89 N. E. 723; Keeler v. Clifford, 165 Ill. 544, 46 N. E. 248; Bridgeford v. Meagher, 144 Ky. 479, 139 S. W. 750; Union League Club v. Blymyer Ice Machine Co., 204 Ill. 117, 68 N. E. 409; Schmand v. Jandorf, 175 Mich. 88, 140 N. W. 996; Boyd v. Hallowell, 60 Minn. 225, 62 N. W. 125; Barnett v. Sweringen, 77 Mo. App. 64; Waite v. Shoemaker, 50 Mont. 264, 146 Pac. 736; Doll Noble, 116 N. Y. 230, 22 N. E. 406, 15 Am. St. Rep. 398; s. c. sub nom. Dall v. Noble, 5 L. R. A. 554; Hummel v. Stern, 164 N. Y. 603, 58 N. E. 1088; Miller v. Phillips, 39 R. I. 416, 98 Atl. 59; Richison v. Mead, 11 S. Dak. 639, 80 N. W. 131.

19 Devine v. Chicago &c. R. Co., 266 Ill. 248, 107 N. E. 593, 595. In Doll v. Noble, 116 N. Y. 230, 22 N. E. 406 15 Am. St. Rep. 398; s. c. sub. nom. Dall v. Noble, 5 L. R. A. 554, a contract to "finish woodwork to the entire satisfaction of the owner" was held complied with by finishing the work in a workmanlike manner. So in Hummel v. Stern, 164 N. Y. 603,

58 N. E. 1088, the same doctrine was applied in regard to a contract for ventilating machinery which it was agreed should ventilate the premises to the satisfaction of the buyer. On the other hand, in Haven v. Russell, 34 N. Y. Supp. 292, a contract to write a play to the satisfaction of a theatrical manager was held to make the actual satisfaction of the manager the only test. So in Gray v. Alabama Natl. Bank, 14 N. Y. Supp. 155, a contract to make a lithographic design subject to a similar condition, and in Crawford v. Mail & Express Pub. Co., 163 N. Y. 404, 57 N. E. 616, a contract to write articles for a newspaper, to the satisfaction of the defendant were held to mean actual satisfaction. In Diamond v. Mendelsohn, 156 N. Y. App. D. 636, 141 N. Y. S. 775, the contract of a foreman for employment was similarly treated. It will be observed that the line of distinction between these cases is rather fine. The finish of woodwork and the ventilation of a room are matters involving a good deal of personal taste to some people-as much perhaps as the writing of a newspaper article. See also Waldt v. Goodwin Mfg. Co., 165 N. Y. App. D. 244, 150 N. Y. S. 831.