(dissenting).
We are in disagreement with the majority of this court in that we believe the trial court should be directed to dismiss the action for the reason that clause 2 of the contract of January 22, 1946 is hopelessly equivocal and so indefinite that it cannot be enforced.
It is true that a contract will be given a. construction which will make it valid and. binding instead of that which would make it, void or unenforceable; but in order to constitute a valid agreement, the parties must-express themselves in such terms that it' can be ascertained to a reasonable degree-of certainty what they mean. 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. Thomson v. Gortner, 73 Md. 474, 21 A. 371.
The majority are of the opinion that the-phrase “replacement new cost less depreciation” is sufficiently certain that reasonable men cannot differ in its interpretation. This conclusion is diametrically opposed to-the undisputed fact, evidenced by this prolonged and extended litigation, that the parties are not now and have never been in. agreement as to its meaning. It is also-opposed to the uncontradicted testimony of' Howard Helmers, manager of the Co-op:
“Q. Has there ever been any agreement between the City of Safford and this defendant on the interpretation of this particular term? A. There has not.”
We are able to find ample room for disagreement in the practical application of" the term “replacement new cost” to the problem here. The statement in Hill v. Antigo Water Co., 3 Wis. R.C.R. 623, quo*23ted in L.R.A.1916F, 670, 671, is perhaps best illustrative of the scope of the problem.
“In connection with the determination of the cost of reproduction of the plant, a great deal of engineering work and skill is required. To begin with, it is necessary to obtain a complete inventory of the physical property. Such an ■inventory must ordinarily be secured by actual inspection and enumeration, ■aided, of course, by the records and by ■such other information as may be had from the company. This inventory •should include not only the different parts of the property of the plant, but the amount or quantity of labor and material that were required to place it in position as a part of the completed plant. The next step in this connection ■consists in finding a suitable price per unit, not only of each class of property, but of the labor and material required in placing it in its proper place ■or position. These prices are usually those which prevail at the time, or these which constitute the average market price for the past few years. From these facts the total cost of the labor ■and material that enters into a plant is ■computed. In addition to this it is also necessary to ascertain the time required for construction in order that interest upon the cost during the construction ■period may be estimated, the probable cost of engineering, superintendence, insurance, and various other factors. The sum of the cost of all those elements is usually said to constitute the cost of reproduction new.”
In addition to telephone poles and wire mentioned in the majority opinion, it seems to us that there must necessarily be such items as, for example, transformers, meters, and easements and rights of way. The replacement cost of easements and rights of way can be ascertained only from the opinions of experts which often and usually vary widely. It is also possible that such items of equipment as transformers and meters cannot now be identically reproduced by reason of obsolescence or otherwise.
The majority of this court are able by definition to find a fixed meaning in the word “depreciation.” It is true that the definitions tell what depreciation is, but they most certainly do not provide a formula by which it is possible to determine how the parties intended depreciation to be calculated.
“In general, there are two methods of estimating accrued depreciation of public utility property; (1) theoretical depreciation, based upon the estimated life of property; and (2) depreciation ascertained by observation and inspection. * * * ” 43 Am Jur. 659, Public Utilities and Services, Section 129.
In order that the trial court may render a judgment in this cause, it must adopt one *24or the other, or possibly a combination of both of these methods of estimating accrued depreciation, dependent not upon the agreement of the parties, because the parties have never agreed, but upon what the court thinks the parties should or would have agreed had they considered the matter on the 22nd day of January, 1946. We do not think this is a proper function of the Court. Courts will not make a contract for the parties. We believe that in order for there to be a valid, enforceable agreement, the parties must have the distinct intention common to both and without doubt or difference, and they must both assent to the same thing in the same sense. Putnam v. Cameron, 129 Cal.App.2d 89, 276 P.2d 102. Moreover, both theoretical and observed depreciation are dependent upon opinion. Theoretical depreciation is based on an arbitrary estimation of the life of property and observed depreciation is based on inspection. Both embrace areas in which reasonable men in good faith can disagree.
We agree with the majority that the action instituted by Safford is apparently one for specific performance and that it was neither alleged nor proved that Safford had offered to perform its part of the contract or a willingness and ability to perform. It is clear that these matters should have been pleaded and proved to entitle Safford to any relief. We further disagree with the majority that Safford should be "given the second bite of the apple” and be permitted to amend its pleadings and attempt to prove a case, after failing on the first attempt.
We would reverse the judgment, dismiss the complaint and enter judgment in favor of the appellant on its counterclaim.