198 P. 436 | Mont. | 1921
prepared the opinion for the court.
Defendant filed a general demurrer to this amended complaint, which demurrer was afterward withdrawn and answer made, admitting certain allegations of the amended complaint, admitting the payment of 'the $500 extra, but denying any contract with Donovan except that relating to the $175 per month. A replication to this answer was filed. No other objection was made to the amended complaint until at the trial the defendant objected to the introduction of any evidence, for the reason that “the amended complaint fails to state a cause of action against defendant.”
1. The respondent here contends that the objection to the amended complaint came too late.
The fact that a party does not move or specially demur to the pleading of his adversary on the ground that it is indefinite does not obviate the necessity of the pleading stating a cause of action, if a complaint, or a defense, if an answer. In Hefferlin v. Karlman, 29 Mont. 139, 74 Pac. 201, cited by respondent, the objection to the pleading was made for the first time in the supreme court and the court held that the complaint did state a cause of action, and that the objection thus urged could not then be entertained.
The appellant contends that the language of this contract of employment is too uncertain and speculative to constitute a binding and enforceable agreement, in so far as it relates to extra compensation.
It is a necessary requirement that an agreement, in order to be binding, must be sufficiently definite to enable the court to fix an exact meaning upon it. If an offer contemplates an acceptance by merely an affirmative answer, the offer must itself contain all the terms necessary for the required definiteness.
In Price v. Stipek, 39 Mont. 426, 431, 104 Pac. 195, 196, this court quoted with approval from the decision in Thomson v. Gortner, 73 Md. 474, 21 Atl. 371, wherein it is said: “In order to constitute a valid verbal' or written agreement, the parties must express themselves in such terms that it can be ascertained to a reasonable degree of certainty what they mean. And, if an agreement be so vague and indefinite that it is not possible to collect from it the full intention of the parties, it is void; for neither the court nor the jury can make an agreement for the parties. Such a contract can neither bo enforced in equity, nor sued upon at law.” This doctrine was again announced by this court in Schwab v. McVey, 54 Mont. 422, 171 Pac. 277. (See, also, Ahlstrom, v. Fitzpatrick, 17 Mont. 295, 42 Pac. 757.)
In Mackintosh v. Kimball, 101 App. Div. 494, 92 N. Y. Supp. 132, the plaintiff sought to recover compensation in addition to a stated salary which he had received, upon a claim by him that during his employment he stated to defendants that he intended to quit unless given an increased salary, and one of the defendants said to him they would make it worth his while if he stayed on and would increase his salary, and that the idea was to give him an interest in the profits. The
In Butler v. Kemmerer, 218 Pa. 242, 67 Atl. 332, the plaintiff was in the employ of defendant at a regular salary, and the defendant promised him that if there were' any profits in the business he would divide them with the plaintiff “upon a very liberal basis.” The court held that the contract was never made complete and that there'was no standard by which to measure the degree of liability and that the contract was too- vague and indefinite to be enforced.
In Fairplay School Township v. O’Neal, 127 Ind. 95, 26 N. E. 686, a verbal contract by which the trustees agreed to pay a teacher “good wages,” it was held that the contract was void for uncertainty as to compensation.
In United Press v. New York Press Co., 164 N. Y. 406, 53 L. R. A. 288, 58 N. E. 527, a contract to pay “not exceeding $300 per week” was held void for uncertainty. The court said: “If this were a case where the contract of the parties was merely ambiguous in its terms, it might be permissible to explain them by evidence of their acts and thus to show a practical construction, but the difficulty with this instrument lies deeper. It lacked support in one of its essential elements; in the absence of a statement of the price to be paid * * * it is elementary in the law that, for the validity of a contract, the promise, or the agreement, of the parties to it must be certain and explicit and that their full intention may be ascertained to a reasonable degree of certainty.” The court further held that certain payments made by the defendant of the additional compensation did not have the effect of giving validity to the contract.
In Varney v. Ditmars, 217 N. Y. 223, Ann. Cas. 1916B, 758-, 111 N. E. 822, the plaintiff was an employee of the defendant, receiving a salary of $35 per week, and on complaint that his
The respondent maintains that these New York cases do not apply, for the reason that the questions there involved a division of profits, while the instant case is for extra compensation. This is true in a sense, but the principle discussed by the New York court is applicable here.
The phrase “commensurate with the earnings of the company” would require the ascertainment of the profits and, in effect, their division.
There is no question that, in the case of a contract for the sale of goods or for hire without a fixed price or consideration being named, it will be presumed that a reasonable price or consideration is intended, and recovery may be based upon quantum meruit or quantum valebat, but even in such a case the contract alleged must be sufficiently definite to acquire a legal status; otherwise there is not any contract, either express or implied.
The contract stated by plaintiff in positive terms in his testimony, and on which he bases his claim for extra compensation, is so vague and indefinite as to be wholly void, and hence unenforceable in either law or equity.
We recommend that the judgment and order appealed from be reversed, and the cause remanded to the district court, with directions to set aside the verdict and judgment for plaintiff and to enter judgment for defendant for its costs.
For the reasons given in the foregoing opinion, it is ordered that the judgment and order of the lower court be reversed, and the cause remanded with directions to set aside the verdict and judgment for plaintiff and to enter judgment for defendant for its costs.
Reversed.