Bailey v. Sutton , 208 Ark. 184 ( 1945 )

I cannot agree with the majority view. The foundation of this action as based upon the letter of June 6, 1941, which, omitting formal parts, is as follows: "We, Fort Smith Realty Company, agree to pay you as commission five hundred ($500) dollars, if and when the Massachusetts Mutual Life Insurance Company agree to sell the property known as 609-11 Garrison Ave., being a part of lots 2 and 3, block 25, City, Fort Smith, Ark., known as the Haglin property, for the sum of thirty-one thousand ($31,000) dollars. We also agree for you to write all insurance during the period of the fifteen-year term."

It seems to me that this agreement is entirely lacking in mutuality and is too indefinite to be enforced. Obviously, there are no provisions in this contract obligating appellee to carry insurance on the property in question for any certain time or for any amount, and there is no obligation on appellant to write such insurance. The cost of the insurance is not specified and could not be definitely determined for the reason that the owner had the right to determine the amount, if any, to be carried. The agreement is indefinite and uncertain and is not capable of being made certain and therefore is unenforceable.

This court in Ashley, Drew Northern Railway Company v. Baggott Boyd, 125 Ark. 1, 187 S.W. 649, said: "The contract is so indefinite that it is incapable of being enforced. It is evident that courts neither specifically enforce contracts nor award substantial damages for their breach when they are wanting in certainty. Damages cannot be measured for the breach of an obligation when the nature and extent of the obligation is unknown, being neither certain nor capable of being made certain. 6 R.C.L. 644; Page on Contracts, vol. 1, 28," and in 12 Am. Jurisprudence, p. 554, 64, the rule is stated as follows: "An agreement to be binding must be definite and certain. Accordingly, where the agreement rests upon an offer, the offer to be binding must be definite. It is evident that courts can neither specifically enforce agreements nor award substantial damages for their breach when they are wanting in certainty. Damages cannot be measured for the breach of an obligation when the nature and extent of the obligation are unknown, being neither certain nor capable of being made certain."

The agreement, as I view it, is totally lacking in mutuality and is also unenforceable for this reason. In El Dorado Ice Planing Mill Company v. Kinard, 96 Ark. 184,131 S.W. 460, this court said: "A contract to be enforceable must impose mutual obligations on both of the parties thereto. The contract is based upon the mutual promises made by the parties; and if the promise made by either does not by its terms fix a real liability upon one party, then such promise does not form a consideration for the promise of the other party. As is said in the case of St. Louis, I. M. S. Ry. Co. v. Clark, 90 Ark. 504,119 S.W. 895: `Mutuality of contract means that an obligation must rest on each party to do or permit to be done something in consideration of the act or promise of the other; that is, neither party is bound unless both are bound.' A contract, therefore, which leaves it entirely optional with one of the parties as to whether or not he will perform his promise would not be binding on the other."

For these reasons, I think the alleged damages could not be measured for the alleged breach of the contract. Appellant, under this agreement, which is not susceptible of being made certain, should not be permitted to recover upon an arbitrary and unwarranted assumption that any specific amount of insurance would have to be carried on the property in question for every year of the fifteen-year term referred to. I think no such obligation was imposed by the letter, supra, and I can find no basis for measuring the damages, if any, occasioned by appellee's refusal to permit appellant to write the insurance beyond the first year.

The judgment should be affirmed.

I am authorized to say that Mr. Justice McHANEY concurs in this dissent.