Summons case, No. 21 | Del. Super. Ct. | Apr 9, 1921
delivering the opinion of the court:
The court will consider the fourth ground of demurrer. The declaration as recently amended sets forth that—
“The defendant knew the consumption or approximate requirements under the contract prior to the signing thereof, for the reason that it had knowledge that the fibre ordered under said contract was to be exported byjplaintiff to Japan and sold to houses in Japan, and that the defendant, prior to its signing said contract, thoroughly discussed and considered with plaintiff the various points relating to the plaintiff’s consumption or approximate requirements.”
The plaintiff’s allegation of knowledge by the defendant, relative to the consumption or approximate requirements of the plaintiff under the contract, is most general in character. The knowledge charged to the defendant fixes to a limited degree only a greater certainty upon the amount of plaintiff’s consumption than that fixed by the terms of the written contract. Contracts such as presented in this case to be valid must be mutually binding upon the parties, and the buyer’s consumption must be reasonably certain and known to the seller, or capable of being approximately ascertained by him, at the time the contract was executed. The declaration fails to show that the plaintiff’s consumption was reasonably certain, or was known to the defendant with reasonable certainty, neither are facts alleged, as known to the defendant, from which it could reasonably be inferred that the con-' sumption of plaintiff, with respect to the articles contracted for, could have been approximately ascertained by the defendant.
If it was plaintiff’s intention to allege an understanding between the parties to the contract with respect to consumption or
For the reasons stated we sustain the demurrer on the fourth ground urged. We think it not necessary to pass upon the other grounds argued for the reason that if there was an understanding between the parties approximately fixing plaintiff’s consumption, and such understanding is sufficiently pleaded, then that understanding would take the contract out of that class of similar contracts generally held invalid for want of mutuality or certainty. If there was no understanding between the parties of the nature already mentioned, then in the absence of a statement of facts not now pleaded, from which it could be reasonably inferred that the defendant could have ascertained, within a reasonable certainty, the plaintiff’s consumption or approximate requirements, the contract must be held invalid for want of certainty or mutuality.
The demurrer is sustained to each of the counts.