the satisfaction of one of the parties is not made the sole determining factor. 20 Other promises are not infrequent where the promisee is given an option to determine within specified limits or as to a particular matter the performance which he wishes. Sometimes this choice on the part of the promisee must be exercised when the offer is accepted.21 In other cases the option need not be exercised until the time for performance of the contract. Frequently such a choice is given in regard to the time of performing a contract.22 So the place of performance; 23 the quantity of goods to be sold, 24 the kind of goods, 25 the method of shipment, 26 or any other matter 27 may be left optional to the promisee. But though such promises may give rise to a binding obligation, if consideration is given, at the time of the promise no liability can arise for breach of them until the promisee exercises his option and gives notice of his choice to the promisor.28 Frequently in a bilateral

*Fechteler v. Whittemore, 205 Mass. 6, 91 N. E. 155; Hawkins v. Graham, 149 Mass. 284, 21 N. E. 312, 14 Am. St. Rep. 422; Wentworth v. Manhattan Market Co., 218 Mass. 91, 106 N. E. 118. See also Devine v. Chicago &c. Co., 266 Ill. 248, 107 N. E. 593. 21 See supra, § 34.

22 Empire State Phosphate Co. v. Heller, 61 Fed. 280, 20 U. S. App. 589, 9 C. C. A. 504; Colvin v. Weedman, 50 Ill. 311, Henkle v. Smith, 21 Ill. 238; Posey v. Scales, 55 Ind. 282; Bell v. Hatfield, 121 Ky. 560, 89 S. W. 544, 2 L. R. A. (N. S.) 529; Sousely v. Burns's Adms., 10 Bush, 87; Russell v. Clark, 112 Me. 160, 91 Atl. 602; Bolles v. Sachs, 37 Minn. 315, 33 N. W. 862; Cullum v. Wagstaff, 48 Pa. 300; Lockhart v. Bonsall, 77 Pa. 53.

23 Warner v. Wilson, 4 Cal. 310; Weill v. American Metal Co., 182 Ill. 128, 54 N. E. 1050; Hunter v. Wetsell, 84 N. Y. 549, 38 Am. Rep. 544; Lockhart v. Bonsall, 77 Pa. 53.

24 Kingman v. Hanna Wagon Co., 176 Ill. 545, 52 N. E. 328; Harrow Spring Co. v. Whipple Harrow Co., 90 Mich. 147, 51 N. W. 197, 30 Am. St.

Rep. 421; Burstein v. Phillips, 154 Wis. 591, 143 N. W. 679.

25 Whitman v. Namquit Worsted Co., 206 Fed. Rep. 549; Consolidated Coal Co. v. Smelting Co., 53 Ill. App. 565; Storm v. Rosenthal, 141 N. Y. Sup. 339, 156 N. Y. App. Div. 544.

26 Wackerbarth v. Masson, 3 Campb. 270; Armitage v. Insole, 14 Q. B. 728; Sutherland v. Allhusen, 14 L. T. (N. S.) 666; Walton v. Black, 5 Houst. 149; Dwight v. Eckert, 117 Pa. 490, 12 Atl. 32.

27 Hinckley v. Pittsburg Steel Co., 121 U. S. 264, 30 L. Ed. 967; United States v. McMullen, 222 U. S. 460, 56 L. Ed. 269, 32 S. Ct. 128; Aller v. Pennell, 51 Ia. 537, 2 N. W. 385; Butler v. Butler, 77 N. Y. 472, 33 Am. Rep. 648; Hurd v. Gill, 45 N. Y. 341; Eisel v. Hayes, 141 Ind. 41, 40 N. E. 119 (a promise not to become a competitor with the buyer of a business, while the business was carried on by the latter). 28 See cases cited in the preceding five notes. If the choice related to time limited by an ultimate day, the failure of the promisee expressly to exercise his option operates as a tacit

agreement the same option is contained in both promises, in one promise being given to the promisee, in the other reserved to the promisor. As where one party agrees to buy what he wishes or needs, and the other party agrees to sell what the first party wishes or needs. In such an agreement the seller's promise is not too indefinite. It promises the buyer an option; but the buyer's promise, if it reserves an unlimited option which may be exercised without incurring a detriment, will be insufficient consideration for the seller's promise.29

§ 45. Offers and agreements where something is reserved for future determination.

Although a promise may be sufficiently definite when it contains an option given to the promisor or promisee, yet if something is reserved for the future agreement of both parties, the promise can give rise to no legal obligation until such future agreement. Since either party by the very terms of the promise may refuse to agree to anything to which the other party will agree, it is impossible for the law to affix any obligation to such a promise.30 It should be observed, however, that though such a promise is invalid, it will not necessarily invalidate an entire agreement of which it forms a part. Whether

choice of the latest time. Sousely v. Burns's Adm., 10 Bush, 87. See also Troy Fertilizer Co. v. Logan, 96 Ala. 619, 12 So. 712.

29 See infra, § 104.

30 Olmstead v. Distilling & Cattle Feeding Co., 77 Fed. Rep. 265, 267; Gunn v. Newcomb, 82 Iowa, 468, 48 N. W. 989; Anderson v. Dezonia, 23 Ill. App. 422; Denton v. Booth, (Mich. 1919) 168 N. W. 491; Jamestown Portland Cement Corp. v. Bowles, 228 Mass. 176, 117 N. E. 41; Shepard v. Carpenter, 54 Minn. 153, 55 N. W. 906; Davila v. United Fruit Co., 88 N. J. Eq. 602, 103 Atl. 519; Mayer v. McCreery, 119 N. Y. 434, 23 N. E. 1045; Elks v. North State Life Ins. Co., 159 N. C. 619, 75 S. E. 808; Holtz v. Olds, 84 Oreg. 567, 164 Pac. 583, 1184; Pennsylvania Lubri

cating Co. v. Wilhelm, 255 Pa. 390, 100 Atl. 93. And see cases in the preceding sections passim. In Weeghman v. Killifer, 215 Fed. 168, 170, s. c. affd. 215 Fed. 289, 131 C. C. A. 558, an agreement to play baseball "at a salary to be determined by the parties," was said to be invalid. An agreement which in terms is open to the objection stated in the text, may be definite enough when applied to existing facts. Thus in Kresge v. Taylor, 194 Fed. Rep. 379, there was a contract to sell a stock of merchandise, the saleable merchandise to be taken at cost and that which was "damaged, soiled, or out of date" at a price to be agreed upon. This was held a binding contract, since there were no damaged, soiled or out of date goods in the stock.

it will have this effect depends upon its relative importance and its severability from the remainder of the contract of which it forms a part.31

§ 46. Miscellaneous indefinite promises.

Other illustrations of promises too indefinite for legal enforcement may be suggested. A promise by a physician to remove if he fails to obtain an appointment "or the field is not larger then than now;" 32 a promise to pay a note "if the grain market shall advance enough to justify it;" 33 a promise "to live in harmony" and not to "make any more trouble about money lent forty years ago;" 34 a promise "not to complain," 35 or "not to bother." 36 A promise to apply "part" of certain wages to a debt,37 or to pay "part" of the cost of a building, 38 or an added price for a horse if the buyer "did well and had no bad luck with the horse;' ." 39 a promise to "help another out on his pay roll," 40 or to sell oil to a retail dealer "on terms so favorable that he can compete with others," 41 are all too indefinite.

§ 47. A promise is not too indefinite if it can be made certain by reference to outside matters.

It is not necessary that a promise should within itself be certain if it contains a reference to some document or transaction which makes the meaning clear. Thus a promise to marry another when a third person shall die, 42 a promise to pay one-third of the receipts from the sale of certain priv

See infra, § 48.

#2 Teague v. Schaub, 133 N. C. 458, 45 S. E. 762.

33 Thomson v. Gortner, 73 Md. 474, 21 Atl. 371.

14 Howlett v. Howlett, 115 Mich. 75, 72 N. W. 1100.

25 White v. Bluett, 23 L. J. (N. S.) Exch. 36.

* Grant v. Appanna, 9 Burma Law Rep. 221. Cp. Sharon v. Sharon, 68 Cal. 29, 8 Pac. 614, where a promise "not to disturb or annoy or make any demands" was held sufficiently definite. Also a promise "to satisfy an

heir if he became dissatisfied." Crawley v. Blackman, 81 Ga. 775, 8 S. E. 533. 37 Vansickle v. Fergeson, 122 Ind. 450, 23 N. E. 858.

38 Thomas v. Shooting Club, 123 N. C. 285, 31 S. E. 654.

39 Burks v. Stam, 65 Mo. App. 455. 40 Blakistone v. Bank, 87 Md. 302, 39 Atl. 855.

41 Marble v. Standard Oil Co., 169 Mass. 553, 48 N. E. 783.

42 Brown v. Odill, 104 Tenn. 250, 56 S. W. 840, 52 L. R. A. 660, 78 Am. St. Rep. 914. So a negotiable instrument may be payable at a time which is

ileges, 43 a promise to allow the deduction from an agreed price for stock of an amount equal to the unpaid debts of a corporation,44 or to furnish sufficient natural gas to operate a plant as long as a gas well would supply the needed amount,45 are all sufficiently definite. Perhaps the commonest illustration of agreements containing a reference to future events for a definition of their meaning, is to be found in agreements to furnish what the purchaser requires or what a certain plant or undertaking requires, 46 or to sell the output of a certain plant or business. Questions frequently arise on such agreements as to the sufficiency of the consideration.47 But there is no doubt that if the consideration is valid such promises are sufficiently definite for enforcement. An offer or agreement may also refer to another agreement for a definition of terms, 48 even to a contract to be made subsequently.49

§ 48. A contract is enforceable though subsidiary promises are too indefinite.

It frequently happens in elaborate contracts that certain minor matters are expressly left for future agreement; or are left in such an indefinite way as to be incapable of enforcement. A building contract may provide that the form of window fastenings shall be afterwards agreed upon by the parties. This would not make the entire building contract unenforceable, though if the nature of the window fastenings

certain to happen though the time of happening is uncertain. Negotiable Instruments Law, § 4 (3).

43 Dargin v. Hewlitt, 115 Ala. 510, 22 So. 128.

44 Northern Central Ry. Co. v. Walworth, 193 Pa. 207, 44 Atl. 253. See also Wehner v. Bauer, 160 Fed. 240. 45 Xenia, etc., Co. v. Macy, 147 Ind. 568, 47 N. E. 147.

46 Foote & Davies Co. v. Southern Wood Preserving Co. (Ga. App.), 74 S. E. 1037.

47 See infra, § 104.

48 Shipman v. Mining Co., Ct. 158 U. 356, 39 L. Ed. 1015, 15 S. Ct. 886 (all coal needed to fulfil existing contracts

with buyer's customers); Walsh v. Myers, 92 Wis. 397 (certain goods to be supplied "as heretofore").

49 Foster v. Wheeler, 38 Ch. D. 130; Blaney v. Hoke, 14 Oh. St. 292. See also Work v. Welsh, 160 Ill. 468, 43 N. E. 719; Lungerhausen v. Crittenden, 103 Mich. 173, 61 N. W. 270. If the subsequent contract is to include as a party either of the parties to the earlier agreement, there would be no legal bond until the subsequent agreement was made, if the earlier agreement left it optional to such party to refuse to make the later contract, or only to do so upon such terms as he chose. See supra, § 45.

was fixed by the agreement while the dimensions of the building were left to future agreement, there would be no enforceable obligation. It is evident that the question must be one of degree: Is the indefinite promise so essential to the bargain that inability to enforce that promise strictly according to its terms would make it unfair to enforce the remainder of the agreement.50 If the contract cannot be performed without settlement of the undetermined point, each party will be bound to agree to a reasonable determination of the unsettled point in order that the main promise may be enforced.51 If the undetermined matter does not preclude performance of the remainder of the contract and is of comparatively little importance, the uncertain promise may be left unperformed and the remainder of the contract enforced.

§ 49. The effect of part performance upon indefinite promises. The indefiniteness of promises is important not simply because of the inherent difficulty of enforcing a promise to which no exact meaning can be attached, but also because such a promise is insufficient consideration for another promise. In the latter aspect the question will be hereafter discussed.52

50 A contract to sell bales of cotton of average weight as specified “basis 4's" reweighed and f.o.b. cars, the difference for the grades above and below to be settled at the time of delivery, is sufficiently certain. Baker v. Lehman, 186 Ala. 493, 65 So. 321. See also United States v. McMullen, 222 U. S. 460, 56 L. Ed. 269, 32 S. Ct. 128.

51 Ramot v. Schotenfels, 15 Iowa, 457, 83 Am. Dec. 425; Page v. Cook, 164 Mass. 116, 41 N. E. 115, 28 L. R. A. 759, 49 Am. St. Rep. 449; Spiritusfabriek Astra v. Sugar Products Co., 163 N. Y. Supp. 516, 176 N. Y. App. Div. 829. In the Massachusetts case above cited, the court held that a demand promissory note "payable when payor and payee mutually agree" was payable "when and after the payor ought ... to have agreed." In the New

York decision a contract for the delivery from 6000 to 12,000 tons of molasses "buyer's option" to be delivered within three years at times to be arranged between buyer and seller, was held enforceable as amounting to an agreement "to do what the law would require to be done in case the clause was absent from the contract, that is, to deliver within a reasonable time after demand." See also infra, § 1421. The Swiss Code of Obligations (Art. 2) provides: "If the parties have come to an agreement on all essential matters, the contract is regarded as concluded even though secondary matters have been reserved. In default of agreement on secondary matters, the judge determines them taking into consideration the nature of the transaction."

52 See infra, § 104.