There are two reasons why I can not concur in the opinion of the majority. First, I think the contract is too vague, uncertain and indefinite as to the quantity of grapefruit and oranges purchased to be enforced, and, second, if there was a valid contract then it was breached by appellee when he refused to let appellants' hands pick fruit on November 30, 1946.
The subject matter of the contract is described as grapefruit and oranges "as listed below." There is no statement as to the quantity sold, it is not described as all the fruit grown by Everett Bell, or the fruit grown on the farm of Everett Bell, or the fruit to be grown upon any particular tract of land. There is a provision in the contract, "Clear trees of all fruit by Feb. 15/47." This might seem to indicate that the entire output was to be taken, but of what trees?
One of the necessary elements of a sales contract is that it must be certain as to the subject matter, so that the quantity purchased may be determined. Especially is this true where the seller sues the buyer for not accepting the quantity which he contracted to purchase. In this case the appellee sued strictly upon the alleged written contract. No customs or usages of the sale of citrus fruit were pleaded or proved. 37 Tex.Jur. p. 147, § 45; Fields-Shepherd, Inc. v. Armitage, Tex. Civ. App.159 S.W.2d 985; Houston T. C. Ry. Co. v. Mitchell, 38 Tex. 85; Weaver Bros. v. Jaggers, Tex. Civ. App. 42 S.W.2d 74; Price v. Weisner,83 Kan. 343, 111 P. 439, 31 L.R.A., N.S., 927; Price v. Atkinson,117 Mo. App. 52, 94 S.W. 816; Durkee Famous Foods v. Selig Co.,48 Ga. App. 711, 172 S.E. 824; Continental Jewelry Co. v. May,162 Miss. 873, 140 So. 525; Consolidated Flour Mills Co. v. Nunn,122 Okla. 222, 254 P.10.
Appellee did allege in his supplemental petition that he agreed with appellants on November 29th that they could pick his entire grove for 96s and larger. There is no consideration for this agreement other than that appellants agreed to live up to their contract, which, if there was an enforceable contract, they were already bound to do. He does not allege that the agreement was that they would pick the entire orchard for 96s and larger, but merely that they could do so. There can be no breach of a contract for not doing that which you merely have permission to do but are not bound to do. It occurs to me that this agreement was and is utterly immaterial.
If the original contract was a valid contract for the purchase of all the fruit in a certain orchard owned by appellee then appellants had a right to pick the fruit for 80s on the 29th day of November, 1946, and when appellee refused to let them do so, but, on the contrary, ordered the pickers out of his orchard, he breached the contract and appellants had a right to declare the *Page 876 contract at an end. This they did promptly by the letter written December 4, 1946.
In my opinion, the judgment of the trial court should be reversed and judgment here rendered that appellee take nothing.