Sec 3

It is not necessary that all the terms in a contract should be free from ambiguity. If it were, no contract could be framed, since it is impossible to use terms which are entirely free from doubt. All that is required is that the contract, as drawn from proposal and acceptance, should be susceptible of definite construction.4 It may be necessary for this purpose, when the obscurities are latent, to prove the intention of the parties, either by showing the business usage to which they may be supposed to have adapted themselves, or by showing what was the meaning they themselves attached to the terras employed, or by putting in evidence extrinsic facts explaining obscure terms.1 To constitute a valid contract, however, there must be proved an agreement to which can be assigned a definite contractual force. Whether the bargain be or be not in writing, it cannot, if its terms are hopelessly ambiguous, be executed by the courts. In other words, a contract will not be executed unless its terms are certain and its enforcement practicable.2 But a party to whose fault an

Terms must be susceptible of definite construction.

1 Chamberlain v. Robertson, 31 Iowa, 410 ; Neef v. Redmon, S. C. Mo. 1881, 13 Rep. 434, cited infra, sec 89.

2 See infra, sec 89.

3 See Vance v. Nogle, 70 Penn. St. 176.

4 As to interpretation and construction, see infra, sec 627 et seq.

1 Wh. on Ev. sec 920 et seq.; infra, sec 646.

2 Bispham's Eq. sec 377; Fry on Spec. Perf. sec 203, 229 ; Walpole v. Orford, 3 Ves. 420; Pearce v. Watts, L. R. 20 Eq. 492 ; Colson v. Thompson, 2 Wheat. 336 ; Marble Co. v. Ripley, 10 Wal. 339 : Ewins v. Gordon, 49 N. H. 444 ; Bruce v. Bishop, 43 Vt. 161; Thruston v. Thornton, 1 Cush. 89; Dodd v. Seymour, 21 Conn. 476 ; Benedict v. Lynch, 1 Johns. Ch. 370 ; Buck-master v. Thompson, 36 N. Y. 558 ; Whittlesey v. Delaney, 73 N. Y. 571; King v. Ruckman, 5 C. E. Green, 316; Meason v. Kaine, 63 Penn. St. 340 ; Sutherland v. Parkins, 75 111. 338 ; Baldwin v. Kerlin, 46 Ind. 426 ; Mun-sell v. Loree, 21 Mich. 491 ; Aday v. Echols, 18 Ala. 353 ; Thompson v. Ray, 46 Ala. 224 ; Huff v. Shepard, 58 Mo. 242. As to construction, see infra, sec 641 et seq.

In Guthing v. Lynn, 2 B. & Ad. 232, an agreement, collateral to the purchase of ahorse, that "if the horse was lucky" the vendee "would give £5 more or the buying of another horse," was held to be too vague to be legally enforced. In Donnison v. Cafe Co., 45 L. T. N. S. 187, the evidence was, that, the plaintiff being the lessee of vaults in the city of London under a lease granted by the corporation of London, the defendants entered into a negotiation for the purchase of the lease. The defendant's secretary wrote to the agents of the plaintiff a letter, in which he said that the directors thereby offered to purchase the vaults for £2500 cash, and to take over a mortgage for £3500 on the lease, these terms to include the lease, goodwill, fixtures, etc. The plaintiff's agents answered as follows : " In reply to your letter of the 7th instant, we are now instructed to accept the offer therein contained, and will forward contract as soon as we obtain it from the solicitor." Differences subsequently arose respecting the time when possession should be given, and eventually the plaintiff brought an action against the defendants claiming damages for breach of contract. Malins, V. C, held that the letters contained a binding contract between the parties. It was held by the court of appeal on June 22, 1881 (Jessel, M. R., Baggallay, L. J., and Lush, L. J., reversing the decision of Malins, V. C), that no binding contract had been entered into : first, because the name of the vendor had not been disclosed or a sufficient description given so as to satisfy the statute of frauds ; and secondly, because the letters mentioned only what was the property to be purchased and the price ambiguity is imputable must bear the construction less favorable to himself, if otherwise equitable.1 And the sense in to be given for it, but left the other necessary terms of the agreement, such as the time when possession was to be given, to be settled by a formal contract to be prepared by a solicitor in the ordinary way. "The only point, really," said Jessel, M. R., "that we have to decide is whether there is any contract. It is said to be contained in two letters. In my opinion there is no contract, and for two reasons: one is that neither the name nor sufficient description of the vendor was given; the other that there was no acceptance free from conditions. There is a mere conditional acceptance, and not a complete clear acceptance. As regards the first point, there is no possible acceptance. The auctioneer only says, 'We are instructed to dispose of property ; our instructions are to sell.' That does not show that the person who is selling is the owner, or proprietor, which is the same thing. He may be a person having a power to dispose of the property, or what is sometimes called a power simply collateral without any interest in the property.

" Now the other point I should like to say a word upon, because the cases have laid down this distinction, that, where all the terms of the contract are defined and settled, then the merely saying there shall be a formal contract does not prevent specific performance. It is mere form. But where it is intended that all the terms of the contract shall not be treated as settled, but other terms are intended to be inserted in what is called the formal contract, then of course there is no contract until what is called the formal contract is signed, as I have expressed it. All we have is this : certain terms are agreed upon subject to such further terms as may be agreed upon. Now, what is intended by the parties must be ascertained from the documents themselves, and from the surrounding circumstances. It does not depend on a nice verbal criticism, but the court is to ascertain the meaning of the letters as it ascertains the meaning of any other documents, and according to the same rules of construction. In this case we. have the following circumstances : An auctioneer is selling property by private contract; he offers that property for sale; he gets an offer back for the price, and he states what are the particulars of the property. He writes, ' In reply to your letter of the 7th inst. we are now instructed'- although it is 'we' the letter is signed by Frederick Clark-' to accept the offer therein contained, and will forward contract as soon as we obtain it from the solicitors.' What does he mean ? Does he mean the solicitor is not to put any other term into the contract, but it is to be an open contract with no given price, no stipulation as to title, no day fixed, no other term introduced ; or does he mean to say, ' We have settled the price and description of the property, and the other usual terms will be settled by the solicitor who will send you a contract'? I have no doubt the second is the proper interpretation of the letter-that he did not intend to bind his client to an open contract without any safeguard as to title to be furnished, or which the proposer knew that the acceptor accepted the proposal, is the sense that is to prevail.1-Notwithstanding some vacillation in the earlier cases, it is now settled that in contracts of sale, either the price must he specified, or the means of determining the price given.2 Hence it was properly held in Michigan, in 1880, that an inquiry by V. as to how much P. & Co. were paying for a particular article, and an answer that they would take all that he could deliver at a certain price, does not constitute a contract without a further agreement to act on P. & Co.'s order, so that the price and quantity could be definitely fixed.3 But it was subsequently held in the same state, that a proposal by A., " that, if the city would build one half of a good bridge, he would build the other half," constituted, when accepted by the city, a definite any time being mentioned as to completion, this being not only a lease, but the sale of a goodwill in a business ; but what he did mean was, ' We have settled the two main terms, namely, the property to be sold and the price to be paid for it. The other terms, which are to some extent formal and usual, and which to a great extent must be the subject of special agreement, must be settled by the solicitor.' I think there is no contract on that ground, and I am bound to say there is no contract on the subsequent letters."