Ryan v. Hanna

Morris, C. J. Action for breach of contract. Appeal from a judgment of dismissal upon the sustaining of a demurrer to the complaint. The complaint recited that, prior to January 25, 1909, Ryan and the defendant Hanna entered into an agreement, whereby Hanna employed Ryan as architect for a building which she contemplated constructing in Seattle; that, in accordance with the agreement, plans were prepared and other services performed by Ryan of the value of $1,800; that, in procuring these services, Hanna and the Sampson Investment Company acted jointly; in fact, the Sampson Investment Company is Hanna incorporated; that subsequently respondents determined to postpone the erection of the building, and, in order to effect a settlement with Ryan, made and entered into the following agreement with him: “Seattle, Wash., January 25, 1909. “The undersigned, Mrs. S. E. Hanna, does hereby declare as follows: that she employed Mr. H. Ryan of Seattle, as [380] architect for a building which she contemplated erecting at Westlake avenue and Stewart street, in Seattle, and that said Ryan prepared plans which were acceptable to her, but that she was unable to procure a loan upon satisfactory terms, and therefore concluded that she would not erect a building according to said plans. “But in consideration of a settlement made this day with said Ryan, the undersigned does now hereby agree that if she should at any time desire to erect a building in any place in Seattle or Everett, that she will employ said Ryan as her architect to prepare plans and to superintend the construction of such building. And further, she does now hereby expressly declare that she has absolute confidence in the integrity of said Ryan as an architect in every respect. “Witness: “S. E. Hanna.” “Fred H. Peterson.” It is then alleged that respondents breached the agreement and employed one Dow, as architect and contractor, to erect a building on Pike street, Seattle; that said building was completed prior to July, 1913, at a cost of not less than $12,000. It is further alleged that, by reason of the breach of the contract in failing to employ appellant as architect and superintendent of the building, he has been damaged in the sum of $600. We think the demurrer was well taken. It is clear, as contended by appellant, that an action will lie upon an instrument containing a promise to pay a given sum upon the happening of some contingency, like a promise to pay a given sum of money upon the sale of certain land, as in Schweitzer v. Schweitzer, 26 Ky. Law 889, 82 S. W. 625, or the sale of a mine, as in Noyes v. Young, 32 Mont. 226, 79 Pac. 1063; this upon the theory that the only uncertain element in the contract, that of time, has been rendered certain by the happening of the event. But this is not such a contract. If the contract contained a promise to pay a given sum upon the erection of a building in Seattle or Everett, and the building had been erected, the cause would be like those relied upon by appellant. The only uncertainty would have been removed. [381] This contract has too many uncertainties which neither time nor any other contingency can supply, save the making of a new contract between the parties. It fails to state on what terms the employment is to be entered upon, whether appellant or respondent is to name the terms and conditions, or whether they are to be determined mutually. Suppose appellant refuses to accept terms satisfactory to respondent. Is the erection of the building to be deferred until he is satisfied with the terms offered him? Or, suppose he is unable to proceed. Must the erection of the building be deferred to suit his convenience? Many other like deficiencies suggest themselves, rendering this contract too uncertain to be enforced. The court can supply some elements in a contract, but they cannot make one; and when the language in a con tract is too uncertain to gather from it what the parties intended, the courts cannot enforce it. As was said in Weldon v. Degan, 86 Wash. 442, 150 Pac. 1184: “The so-called contract is no more than an agreement for an agreement, or, in other words, an agreement to do something which requires a further meeting of the minds of the parties and without which it would not be complete, and to which any one of the parties might object if proposed.” Many other observations in the Weldon case are applicable here, and our decision may safely rest upon what is there said. The demurrer was properly sustained, and the judgment is affirmed. Mount, Fullerton, Ellis, and Chadwick, JJ., concur.