I respectfully dissent from Division III of the majority opinion which holds the contract in question too indefinite as to price to be enforceable. I agree with Division I which holds plaintiff's petition sufficiently alleges defendant's ability to perform the contract.
The majority attaches great importance to this provision of the contract: "It is also expressly agreed that you do not obligate yourself except insofar as the product of the factory and the requirements of other customers will in your judgment, permit * * *." The provision does not fairly mean that date of delivery is dependent upon defendant's judgment as to requirements of its other customers.
Defendant has claimed nothing here nor, so far as appears, in the court below for this provision of the contract. No mention of it is made in defendant's brief and argument here nor in its brief and argument furnished the lower court. There is no contention the requirements of other customers were such *Page 1242 that defendant was unable to perform its contract. Indeed there is no suggestion by defendant of its inability, for any reason, to perform the contract. On the contrary, as the majority holds, plaintiff's petition alleges defendant's present ability to perform.
While the contract does not fix the price in figures, all the authorities require is that the price be ascertainable with certainty from the contract. See 49 Am. Jur., Specific Performance, section 28; 58 C.J., Specific Performance, section 101. I think the contract provision "the price effective on the day of delivery will be the governing price" makes the price ascertainable with certainty.
The word "effective" as applied to the price of a new Buick automobile from an authorized Buick dealer is so commonly understood that the failure of the contract to define it is not fatal to plaintiff's cause of action. The "effective price" in this connection is easily ascertainable. It is somewhat surprising defendant would contend otherwise.
DeMoss v. Conart Motor Sales, 72 N.E.2d 158, 159, was an action by the purchaser to enforce a contract apparently quite similar to this. There as here the delivery date was stated to be "As soon as possible." The price was there fixed as "List at time of delivery." The court interpreted "As soon as possible" to be a reasonable time after the date of the contract which it said had long since passed in the thirteen and one-half months before suit was brought. Here almost eighteen months elapsed between the date of the contract and commencement of suit. The court in the cited case held the price was "readily ascertainable" from the contract and decreed specific performance. The decision of the Court of Common Pleas was affirmed by the Court of Appeals and, on a question of procedure without considering the merits, by the Supreme Court of Ohio. DeMoss v. Conart Motor Sales, 149 Ohio St. 299,78 N.E.2d 675. "The price effective on the day of delivery" here is as readily ascertainable as "list at time of delivery" was in the DeMoss case.
State v. McKinnon, 158 Iowa 619, 626-628, 138 N.W. 523, holds the term "effectual resistance" in a rape statute is not of technical meaning and the court was not required to define it for the jury even though defendant requested such an instruction. *Page 1243 It would seem we should be fully as able to understand the meaning of "effective price" of a new automobile of a particular make and model purchased from an authorized dealer as a jury is to understand "effectual resistance" in rape.
The majority states:
"Contracts analogous to the one here have been recently rejected as bases for specific performance * * *. See Kirsch v. Zubalsky, 139 N.J. Eq. 22, 49 A.2d 773; Goodman v. Henry Caplan, Inc., 188 Misc. 242, 65 N.Y.S.2d 576; Daub v. Henry Caplan, Inc., 70 N.Y.S.2d 837."
I do not think the quoted statement is warranted. The main ground of the decision in Kirsch v. Zubalsky, supra, is that the automobile was not a unique chattel which had acquired a pretium affectionis — a matter not considered by the majority here. On the question of definiteness of price in the cited case, the contract provided the price was "to be determined at the current OPA limitation." The court says (page 26 of 139 N.J. Eq., page 776 of 49 A.2d):
"Furthermore, the OPA control of automobile prices is no longer in operation, and the alleged contract method of price determination is impossible of achievement — no price can be fixed."
In the Goodman and Daub cases, supra, the terms of the contract there involved do not appear. The Goodman opinion states at page 243 of 188 Misc., page 577 of 65 N.Y.S. 2d:
"The instant contract is indefinite as to time of performance, model and type of car, price (despite the printed clause of the contract), and color, all essential elements and parts of the contract."
The statement preliminary to the Daub opinion says:
"The order form was for `new car when available', set forth plaintiff's name as buyer, and showed a payment of $100 but was otherwise incomplete and blank. Neither the make of the automobile, the model, the price, the time for delivery, nor the terms of payment were set forth." 70 N.Y.S.2d 837. *Page 1244
It is obvious none of the three decisions cited by the majority is here applicable.
The majority opinion refers to a lack of mutuality. As the majority indicates, the only lack of mutuality claimed by defendant is based on the contract provision "that the price * * * is subject to change without notice * * *. I, however, have the privilege of cancelling this order, provided the changed price is not satisfactory * * *."
While I do not understand the majority holds specific performance should be denied because of this provision, it should be pointed out that the privilege of cancellation is immaterial here. This printed provision was apparently inserted in the order form to be applied where a definite sum was fixed as the price. No such sum is here stated. Nor is there any claim there was a change in the effective price between the date of the contract and the commencement of this suit. This seems to be the construction placed by defendant upon this contract provision for it says in argument:
"The foregoing clause giving the seller the power to change the price of the automobile before the day of delivery necessarily implies the existence of an agreed upon original price with respect to which the seller may exercise such power. Since the parties did not specify any such original or initial price in the order it is obvious that there is no price with respect to which the seller's power to change can be exercised and hence the provision of the order above quoted never can become operative."
It should be emphasized we are not called upon to decide whether performance of this contract may be enforced as against any conceivable defense nor even whether other terms of the contract are sufficiently definite to warrant specific performance. The only claim of indefiniteness in the contractthat was submitted to the trial court is that no definite pricewas agreed upon.
This case was not tried in the court below. It comes to us following a separate adjudication under Rule 105, Rules of Civil Procedure, of certain specific law points raised by defendant which the majority has summarized. I think the lower court correctly ruled in favor of plaintiff that the price was *Page 1245 ascertainable from the contract. As stated, I agree with the majority that the lower court was in error in ruling against plaintiff that he had not properly pleaded defendant's ability to perform. Therefore I would reverse.
BLISS and HAYS, JJ., join in this dissent.