which, under certain circumstances of parol performance by the donee, will, as has already been shown, be enforced by courts of equity.(1) There is an apparent but not real exception to this general proposition. A valid contract of sale may be made without any stipulation as to the price, the law in such case implying that the price is the reasonable value of the thing which is the subject-matter of the agreement. This is, however, no exception to, but rather a special instance of, the foregoing rule; because such a contract does, in fact, by operation of the law, furnish a means of exactly ascertaining and fixing the price.(2)

SEC. 149. The case in which the contract does not itself fix upon the price, but furnishes a method by which the price shall be determined, requires a special consideration. There may be various such modes. The price may be left to the action of certain persons as valuers or arbitrators;(3) or it may be referred to and depend upon some past or future event-as, for example, it may be the amount for which the property was sold at a former time, to be ascertained by extrinsic evidence.(4) It is a settled doctrine, that whenever the price is thus made to depend upon the decision of valuers, or upon any other future action or event, the contract is not completed, and will not be enforced until the price has been actually fixed in the manner provided, or in some other equivalent manner satisfactory to the court. A decree of specific performance will never be made, ordering payment of such an amount as certain arbitrators may thereafter award; the decision must precede the decree.(5) The provision not infrequent in contracts of sale or leasing, whereby the determination of the price is referred to arbitrators, or is made to depend upon some future action of third persons, or upon other future

erect" a certain building" thereon, without further description, held too incomplete in this particular to be enforced. Spangler v. Danforth, 65 Ill. 152, a contract stating that the vendee "agreed to take the pasture lot for $2,400; $1,000 cash, $400 December 1, 1871, at ten per cent; $1,000 July 1, 1872, at ten per cent, to be secured by a mortgage," held sufficiently definite. Grace v. Denison, 114 Mass. 116, an agreement to convey land "for $25,000, and mortgage to remain at five per cent for five years," held incomplete. Query. Why did not this clause imply that the whole price was to remain on mortgage for the five years? It would then be clearly complete and certain ; and this appears to be the natural meaning of the language.

(1) See ante, § 130.

(2) See Hoadly v. McLaine, 10 Bing. 482.

(3) Cooth v. Jackson, 6 Ves. 12; Brown v. Bellows, 4 Pick. 189.

(4) Atwood v. Cobb, 16 Pick. 230.

(5) Darbey v. Whitaker, 4 Drew. 134.

event, has given rise to the following important question, namely, whether, when the mode pointed out by the contract has finally failed from the inability or unwillingness of the valuers to act, or from the refusal of the defendant to appoint a valuer in pursuance of his stipulation, or from any other cause, the court will, in a suit brought to enforce the agreement itself, determine the price, or will adopt some other mode of fixing it in place of that which the parties chose, and which has failed. Such action by the court would not be a step in the process of specifically enforcing the contract, although undoubtedly somewhat analogous to a performance; it would rather be a proceeding for completing and perfecting the contract, so that it might afterwards be enforced. It is an elementary doctrine, that if an agreement is left by the parties wholly incomplete, the court cannot put itself in their place, and make a contract for them. The decisions which furnish an answer to the question above stated, turn upon this familiar doctrine, and are separated into two classes the first of which includes the contracts to which the doctrine applies; the second, those to which it does not apply. These two groups of cases will be examined separately.

SEC. 150. The first class embraces those contracts in wnich, by the form and language of the stipulation, the mode of determining the price by arbitrators or valuers is made an essential term-in fact, a condition to the validity of the agreement. When such is the nature of the provision, if the means which it furnishes for ascertaining the price finally fail for any reason, the contract itself is held to be incomplete, and because the term which has thus become inoperative was made essential, the general principle above cited comes into force, and prevents the court from making a new contract by providing another method for fixing the price, and as a result a specific execution is refused.(1) The doctrine has even been applied where the

(1) The leading case on the subject is Milnes v. Gery, 14 Ves. 400, in which the agreement was to convey land at a price to be fixed by two valuers, one appointed by each party or by their umpire. The valuers failed to agree, and Sir WILLIAM GRANT, M. R., held that the agreement was thus rendered incomplete, and the court had no power to appoint other arbitrators, or to fix the price itself, for this would be to make a contract different from that agreed upon by the parties themselves. This case has been approved and its doctrine followed in many subsequent ones, nor has it ever been repudiated; although, as will soon be shown, the court, in the most recent English decisions, has declared that its doctrine should not be extended, but should be restricted in its application to the exact facts; and even its correctness has been questioned. In Morse v. Merest, 6 Mad. 26, Sir JOHN LEACH said: A man who agreed to sell at a price to be named by A., B. and C., could not be compelled by a court of equity to sell at any other

failure to determine the price in the manner agreed was the result of the defendant's intentional act or omission-as, for example, his refusal to appoint one of the arbitrators, or his other default. (1) The correctness of this application, however, may, in the light of the recent English decisions hereinafter quoted, be well doubted.

SEC. 151. The second class embraces those contracts in which a mode for ascertaining the price is mentioned, but from the language of the stipulation it is regarded as non-essential, and as something rather by way of suggestion, so that the agreement itself is virtually one to sell for a fair price. In such a case, if the means specified for fixing upon the price fail for any reason, the court does not treat the contract as fatally defective; but will, in the suit for a specific perform ance, direct a fair and reasonable price to be ascertained in some manner preliminary to the decree, either by referring the matter to a master or other officer, or by appointing a skilled person as a special valuer, or even by determining the amount itself; it will pursue any

price." See, also, Blundell v. Brettargh, 17 Ves. 232; Gourlay v. Duke of Somerset, 19 Ves. 429; Agar v. Macklew, 2 S. & S. 418; Darbey v. Whitaker, 4 Drew. 134; Morgan v. Birnie, 9 Bing. 672; Thurnell v. Balbirnie, 2 M. & W. 786; Milner v. Field, 5 Ex. 829. The same doctrine has been followed in this country. In Norfleet v. Southall, 3 Murph. 189, two parties built a mill together. A. contracted to convey his half to B. on being paid its cost, which, it was further agreed, should be ascertained by certain persons. These valuers could not agree upon any amount, and A. would not consent to the appointment of an umpire. The court held that to decree a specific performance, would be to make a contract for the parties, and then enforce it; that defendant A.'s agreement was not to convey on being paid the cost of his half, but to convey on being paid the cost as fixed by the arbitrators named. Again, in Graham v. Call, 5 Munf. 396, the contract was to convey land for a price to be determined by the parties; and one of them having died before the amount had been fixed by them, the court held the agreement incomplete, and refused to grant a specific performance.

(1) In Darbey v. Whitaker, 4 Drew. 134, the price was agreed to be fixed by valuers, but one of them refused to act, because the defendant had informed him that he would not perform even if an award was made, and a specific execution was refused. In Wilks v. Davis, 3 Meriv. 507, the agreement was to convey for a price to be fixed by arbitrators, but the defendant refused to perfect the arbitration arrangement by executing an arbitration bond, and the court, for that reason, refused to enforce the contract. In another somewhat analogous case (Morgan v. Milman, 3 DeG. M. & G. 24), the stipulation as to price was that it should be determined in one of two alternative manners specified; no election having been made between these two methods, the contract was held incomplete, and a specific performance impossible. See, also, Norfieet v. Southall, 3 Murph. 189; Dike v. Greene, 4 R. I. 285, 289; Graham v. Call, 5 Munf. 396; Baker v. Glass, Munf. 212; Wilks v. Davis, 3 Mer. 507; Collins v. Collins, 26 Beav. 306; Vickers v. Vickers, L. R. 4 Eq. 529; Richardson v. Smith, L. R. 5 Ch. 648; Earl of Darnley v. London, Chatham & Dover Ry. Co., 3 DeG. J. & S. 24; L. R. 2 H. L. 43; Frith v. Midland Ry. Co., L. R. 20 Eq. 100.

such mode as the circumstances of the case show to be expedient.(1) The tendency of the later English 'decisions is to consider these stipulations for a determination of the price by third persons, rather as matters of form than of substance; to construe them in such manner that they become incidental only to the main object of the agreement. The court will always look at the substance of the agreement, and disregard the mere forms which had been provided for effectuating it, and which cannot be made operative. It is a settled rule, that where a contract provides for the sale of an estate, or a dwelling-house, or a manufactory, at a specified price, and also for the sale of the timber in the one case, or the furniture in the second, and the fixtures or machinery in the other, at prices to be fixed by arbitration, if the arbitration fails for any reason, the contract will still be enforced-the price of the timber, furniture, or machinery being ascertained in some convenient manner. The result is, that while the doctrine of Milnes v. Gery, and of the class of cases to which it belongs, has not been

(1) Van Doren v. Robinson, 1 C. E. Green, 256; Whitlock v. Duffield, 1 Hoff. Ch. 110; City of Providence v. St. John's Lodge, 2 R. I. 46; Dike v. Greene, 4 R. I. 285. In Milnes v. Gery, 14 Ves. 400, Sir WM. GRANT stated the distinction between the two classes of cases, as given in the text, in a very clear and emphatic manner; and although he held that the case fell under the first class, he at the same time described the features and incidents of a contract which would bring it within the second. The distinction thus formulated by him has been followed by subsequent judges. In Hall v. Warren, 9 Ves. 605, where, by a clause of the contract, the price was to be named by valuers, and by reason of the vendor becoming insane these valuers could not be appointed, Sir WM. GRANT held that where there was a valid and binding contract, the supervening incapacity of one party cannot deprive the other of its benefit, and the court would appoint the valuers. Afterwards, in Gourlay v. Duke of Somerset, 19 Ves. 429, where the contract was to give a lease with such provisions and conditions as a named person (A.) should think proper, the same judge held that this provision for a reference to A. was not essential, and sent the cause to a master to settle and fix the terms of he lease. In a much later case (Jackson v. Jackson, 1 Sm. & Gif. 184), the ageeement was to sell a certain manufactory for a named sum, and also the machinery and fixtures for a price to be fixed by valuers to be appointed by the parties. Sir JOHN STUART, V. C., held this clause was non-essential, and granted a specific performance after the price had been ascertained in another manner. It should be noticed that the price for the manufactory itself, which was the main thing, had been fixed, and that the provision in reference to the machinery was in its nature auxiliary and subsidiary to the main object of the contract. In Meynell v. Surtees, 3 Sm. & Gif. 101, 113; affd. 1 Jur. (N. S.) 737, Sir JOHN STUART stated, as a general principle, that "where possession is referable to an agreement to give a fair consideration, the amount of which has not been settled, the court will, in favor of possession and expenditure referable to this agreement, endeavor by every means within the legitimate bounds of its jurisdiction to ascertain the amount of the consideration." See, also, Paris Chocolate Co. v. Crystal Palace Co., 3 Sm. & Gif. 119, 123; Eads v. Williams, 4 DeG. M. & G. 674.

repudiated, and is even now enforced when the facts call for its application, yet it is carefully restricted to the kind of contracts already mentioned; the court will treat the contract as falling within the second class, unless it would thereby do violence to the language and thwart the plain intent of the parties.(1) If the price has already been paid, the amount of it need not be stated in the written agreement or memorandum thereof, since that term of the contract having been performed is not material.(2)

SEC. 152. III. The Subject-matter.-The subject-matter is, of course, a most essential term, and unless so defined and described that it can be certainly identified by means of the extrinsic explanatory evidence admissible in such a case, the contract would be incomplete, and wholly incapable of enforcement. While the description need not be so minute and exhaustive that the individual thing which constitutes the subject-matter will be fully known from a mere reading or recital of the language, yet it must be so definite as to show what the purchaser supposed he was contracting for, and what the vendor intended to sell;(3) and as to enable the court to ascertain what it is by the aid of proper evidence.(4) From the nature of the case, it is almost impossible that a description should be so perfect as to dispense with all resort to evidence. Parol evidence is always admissible to explain the surrounding circumstances, and situation and relations of the parties, at and immediately before the execution of the contract, in order to connect the description with the thing intended, and thereby to identify the subject-matter, and to explain all technical terms and phrases used in a local or special sense. The description

(1) Binham v. Bradford, L. R. 5 Ch. 519; Richards on v. Smith, L. R. 5 Ch 648; Smith v. Peters, L. R. 20 Eq. 511.

(2) Holman v. Bank of Norfolk, 12 Ala. 369; Fugate v. Hansford, 3 Litt. (Ky.) 262. See ante, § 94.

(3) Stewart v. Alliston, 1 Meriv. 26, 33.

(4) Daniels v. Davison, 16 Ves. 256, per Lord ELDON; Kennedy v. Lee, 3 Meriv. 441, 451; Bell v. Warren, 39 Tex. 106; King v. Ruckman, 5 C. E. Green, 316; Miller v. Campbell, 52 Ind. 125 ("the 120 acres of land in Shannon Co., Mo.," held too indefinite without parol evidence going farther than is admissible); Lynes v. Hayden, 119 Mass. 482; Carr v. Passaic Land, etc., Co., 7 C. E. Green, 85 (resolution of the directors of a corporation "that two acres be sold," too incomplete in the description to be specifically enforced); Holmes v. Evans, 48 Miss. 247; Ross v. Baker, 72 Pa. St. 186; Chidester v. Springfield, etc., R. R., 59 Ill. 87. Cases in which the subject-matter has been identified by extrinsic evidence. Hurley v. Brown, 98 Mass. 545; Waring v. Ayres, 40 N. Y. 357; Torr v. Torr, 20 Ind. 118; White v. Hermann, 51 Ill. 243; Fowler v. Redican, 52 Ill. 405; Purinton v. Northern Ill. R. R., 46 Ill. 297; McMurray v. Spicer, L. R. 5 Eq. 527; and see cases cited under section 90.