and, in another, (7) the vendor was stated to be a trustee selling under a trust for sale; and in each case the description was held sufficient. Again, where the contract stated the sale to be by direction of the proprietor, that was held to be a sufficient description.(m) In another case, where property was sold by ten persons incorporated, who worked the property in the name of a company, it was held that the description "the vendors" was enough, because it appeared from the conditions of sale and memorandum of the contract, that the vendors were in possession; that the abstract would be an abstract of the company's title, and that it was the interest of the company which was being sold. (n)

§ 334. But where the contract did not disclose the vendor's name, but stated the auctioneer's name, and the auctioneer signed the contract as confirming it "on behalf of the vendor," the memorandum was held insufficient, because the question who sold the estate (i. e., the question of the contract) was left to be decided by parol evidence. (0)

§ 335. (3) In all cases of sale it is evident that price is an essential ingredient of the contract, and that where this is neither ascertained nor rendered ascertainable, the contract is void for incompleteness, and incapable of enforcement. (p)1 Accordingly where A. agreed to sell an estate to B. for £1,500 less than any other purchaser would give, the contract was held void; for if the estate was not to be sold to any other purchaser than B., it was impossible to know what such a purchaser would give for it. (q) So, again, where there was a contract to sell at a price to be fixed by two surveyors, and they made their valuation, but that did not sufficiently and finally ascertain the price, specific performance was refused ;(r) and the like was the result of a similar

(2) Catling v. King, 5 Ch. D., 660.

(m) Sale v. Lambert, L. R. 18 Eq., 1. See, too, Rossiter v. Miller, 5 Ch. D., 648; 3 App., C., 1124; Beer v. London and Paris Hotel Co., L. R. 20 Eq., 412; and Thomas v. Brown, 1 Q. B. D., 714.

(n) Commins v. Scott, L. R. 20 Eq., 11.

(0) Potter v. Duffield, L. R. 18 Eq., 4. (p) Elmore v. Kingscote, 5 B. & C., 583; Goodman v. Griffiths, 1 H. & N., 574. Con. sider Langstaff v Nicholson, 25 Beav., 160. (g) Bromley v. Jefferies, 2 Vern., 415. (r) Hopcraft v. Hickman, 2 S. & S., 130.

1 Price must be fixed.] A contract will not be specifically enforced unless the price is fixed. Darby v. Whitaker, 4 Drew, 134; Graham v. Call, 5 Munf., 396. Contract cannot be changed.] A contract cannot be changed, and then enforced, even by a court of equity. Valetti v. White Water Canal Co., 4 McLean, 192; Cassady v. Woodbury, 13 Iowa, 113; Haskell v. Allen, 23 Me., 448; Gray v. Tubbs, 43 Cal., 359; Philadelphia R. R. Co. v. Lehigh Co., 36 Pa. St., 204

case, where the valuation was such as the court could not act on, by reason of circumstances of great impropriety on the part of one of the valuers, and the valuation being based on an erroneous view of the facts. (s)

§ 336. It is not, however, necessary that the contract should in the first instance determine the price. (t) It may either appoint a way in which it is to be determined, or it may stipulate for a fair price.

§ 337. Where the contract appoints a way of determining the price, the courts have in some cases deemed that way essential; in other cases they have deemed it nonessential, and have treated the contract as essentially one to sell at a fair price. In all cases where the principal subject .of the contract is to be valued in a specified manner, the manner has, it is believed, been held essential;(u) the manner has often been held non-essential where it is applied only to an incident to the main subject, as timber to land, fixtures to a house, or plant to a business.

$338. Where the contract specifies a way of ascertaining the price which is essential, the contract is conditional till the ascertainment, and is absolute only when the price has been determined. In case of default in this respect the contract remains imperfect, and incapable of being enforced; for the court will never direct the payment of such a sum as A. may fix. (v)

§ 339. If the contract be between A. and B. to sell and buy at such a price as valuers to be named by them shall fix, it seems that either A. or B. may refuse to name a valuer, and the contract will remain incapable of completion without any liability on the part of the refusing party. (w) But if the contract between A. and B. be to sell and buy at such a price as C. shall fix, neither A. nor B. can rightfully prevent C.'s determination and the completion of the contract; and it is presumed that an action might be maintained for such prevention. (x) "Actus inceptus," says one of Lord Bacon's maxims, (y) "cujus perfectio pendet ex voluntate partium, revocari potest; si autem pendet ex vol

(8) Chichester v. McIntyre, 4 Bli. (N. S.), 78.

(t) See London Guarantie Co. v. Fearnley, 5 App. C., 920.

(u) Milnes v. Gery, 14 Ves., 400, 408. (v) Darby v. Whitaker, 4 Drew., 134; Tillett v. Charing Cross Bridge Co., 26 Beav.,

419. Consider Baker v. Metropolitan Railway Co., 31 Beav., 504.

(w) See as to the French law on this point, Troplong, De la Vente, § 157. (2) Smith v. Peters, L. R. 20 Eq., 511, infra, § 343. (y) No. 20.

untate tertiæ personæ vel ex contingenti, non potest." One of his illustrations is this: "If I contract with you for cloth at such a price as J. S. shall name, then if J. S. refuse to name, the contract is void, but the parties cannot discharge it, because they have put it in the power of the third person to perfect. (2)

§ 340. The conclusion that a valid sale could be effected at such a price as a third person should fix was not arrived at in the Roman law without great doubt, or finally settled until the time of Justinian. Ofilius and Proculus maintained the validity of such a sale; Labeo and Cassius denied it.(a) “Sed nostra decisio," says Justinian, after adverting to the doubts of the ancients, "ita hoc constituit, ut quotiens sic composita sit venditio quanti ille æstimaverit, sub hac condicione staret contractus ut, si quidem ipse qui nominatus est pretium definierit, omnimodo secundum ejus æstimationem et pretium persolvatur et res tradatur, ut venditio ad effectum perducatur, emptore quidem ex empto actione, venditore autem ex vendito agente. Sin autem ille qui nominatus est vel noluerit vel non potuerit pretium definire, tunc pro nihile esse venditionem, quasi nullo pretio statuto." (b) The principle thus established by Justinian is embodied in the French law, (c) and has found its way into our jurisprudence.

§ 341. The persons nominated to value are sometimes, though inaccurately, spoken of as arbitrators. Arbitrators are appointed to settle a pre-existing dispute; valuers to ascertain the value of the subject-matter of the sale. It follows that the provisions of the common law procedure act, 1854 (17 and 18 Vict., ch. 124, s. 12), are not applicable to valuers named in a contract. (d)

§ 342. Of the first class of cases, viz.: those in which the contract provides the mode of ascertaining the price, and this provision is an essential term, Milnes v. Gery,(e) may be considered as the leading case. There was there a contract that land should be sold at a price to be fixed by one valuer appointed on each side, or their umpire; the valuers could not agree; and Grant, M. R., held the contract to be incomplete, and that the court could not supply the defect by

(2) Maxims, ed. 1636, pp. 71, 73. (a) Troplong, De la Vente, § 156. (b) Inst. Lib., 3 tit. 23, § 1.

(c) Code Civil, art. 1592.

(d) Collins v. Collins, 26 Beav., 306.
(e) 14 Ves., 400.

appointing other persons as valuers, which would be to execute a contract different from that of the parties; although, where it is merely a contract to sell at a fair price, that is a matter which the court can ascertain. "A man,"

said Leach, V. C.,(ƒ) “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 price." This principle has governed the decision of several other cases of specific performance, (g) and may further be illustrated by the cases at common law.(h)1

§ 343. The difficulty has in several cases prevailed, notwithstanding the fact that the obstacle has arisen from the defendant's default. Thus where the contract was to sell at a price to be fixed by arbitrators, but, in consequence of the defendant having refused to execute the arbitration bond, it was uncertain whether any award would be made, the court refused to proceed;(i) and the same result followed where the refusal of one of the valuers to proceed appeared to arise from the information given to him by the defendant, of his intention not to complete. (j) But where a vendor had agreed to sell a public house for £10,700, and the furniture and fixtures in it at a fair valuation to be made by L., and after L. had commenced taking the inventory, the vendor refused to allow him to complete it, Jessel, M. R., on an interlocutory application, made an order that L. be permitted to enter the premises for the purpose of completing the valuation.(k) In a case where the price was to be

() In Morse v. Merest, 6 Mad., 26.

(g) Blundell v. Brettargh, 17 Ves., 232; Gourlay y Duke of Somerset, 19 Ves., 429; Agar v. Macklew, 2 S. & S., 418; Darbey v. Whitaker, 4 Drew., 134.

(h) E. g, Thurnell v. Balburnie. 2 M. & W., 786; Morgan v. Birnie, 9 Bing., 672; Milner V. Field, 5 Ex., 829.

(i) Wilks v. Davis, 3 Mer., 507; Vickers v. Vickers, L. R. 4 Eq., 529. Cf. Morse v. Merest, 6 Mad., 26.

(j) Darbey v. Whitaker, 4 Drew., 134; Vickers v. Vickers, L. R. 4 Eq, 529.

(k) Smith v. Peters, L. R. 20 Eq., 511.

1 A. and B. built a mill together. A. agreed to convey his moiety to B. on his paying to him the amount which it cost A., and they further agreed to refer it to several persons named to ascertain the cost. The referee's could not agree, and A. refused to have an umpire chosen. B. filed a bill for a specific performance of the contract by A., praying an account of the cost by A., that he receive that sum, and make a conveyance. Held, that to grant the prayer of the bill would be to make a contract for the parties, and then execute it; and that the agreement of A. was not to convey on payment to him of the cost of his part of the mill, but on the payment of the cost as ascertained by the arbitrators named Norfleet v. Southall, 3 Mur., 189. In Graham v. Čall, 5 Munf., 396, where, by an agreement for the sale of land, the price was to be ascer tained and fixed by the parties, and one of them died before that price had been fixed by them, it was held that the agreement was too incomplete and uncertain to be enforced specifically in equity.

ascertained by one of two alternative modes, and no election had been made as to the mode of ascertainment, the court held that no contract had been constituted. (7)

§ 344. In a case between a landowner and a railway company, a contract had been entered into under which the company was to do certain works. By a subsequent contract an estimate of the cost of completing the works was to be made by the company's engineer and submitted to A., the landowner's agent, "for approval;" in case of difference the amount was to be determined by B.; the amount "when agreed or determined" was to be paid to the landowner by the company in discharge of their obligations as to the works. A. died before approving any estimate. B. was living; it was held that by A.'s death the contract became incapable of enforcement. (m)

§ 345. Again, where a railway company contracted for the purchase of land with a charitable corporation who had no power to sell except under the lands clauses consolidation act, and the price had not been ascertained by surveyor's certificate pursuant to the provisions of that act, the court held that no final contract had been arrived at.(n) It may here be noticed that, when once the price has been fixed pursuant to the act, the purchasing corporation is compellable to complete the purchase. (0)

§ 346. The second class of cases embraces those contracts which are substantially for the sale of the property in question at a fair price, the mode of ascertainment, though indicated by the contract, being subsidiary and non-essential; and where consequently, if that mode of ascertainment has failed, the court will have recourse to some other means of coming at the fair price and of thus carrying into effect the contract in its essential parts.' As already remarked these cases are principally of the valuation of incidental matters and not of the principal subject-matter of the contract.

§ 347. Grant, M. R., not only indicated, in his judgment in Milnes v. Gery,(p) the distinction of the two classes of

(1) Morgan v. Milman, 3 De G. M. & G., 24. (m) Firth v. Midland Railway Co., L. R. 20 Eq, 100.

(n) Wycombe Railway Co. v. Donnington Hospital, L. R. 1 Ch., 268.

(0) Harding v. Metropolitan Railway Co, L R. 7 h., 154; supra, § 112. (p) 14 Ves., 400.

1 Smith v. Peters, L. R., 20 Eq., 511; Whitlock v. Duffeld, 1 Hoffm. Ch.,

110; Vandoren v. Robinson, 16 N. J. Eq., 110.