May v. Ward

C. Allen, J. 1. This was a contract for the sale of goods, and not for labor and materials. 2. It was not competent to show by oral testimony how many cars were meant. All the essential terms must be contained in, or ascertainable from, the writing. 3. The memorandum does not contain all the essential terms of a sale, but is left incomplete and uncertain. The words “ same to be agreed upon ” show that one element was to be' agreed upon in the future. The plaintiffs contend that the writing shows that at least two car-loads were to be shipped, and that the action may be maintained to recover for the failure to deliver at least that quantity. But the promise specified is, to ship a balance “ to be agreed upon,” and is limited to such balance, and is not enlarged by the following stipulations, which are provisional, and dependent upon a previous determination by agreement. Till such determination, there is no agreement. The construction of the contract in this respect is the same as if [129] the words were “ the same to be determined by the award of A. B.”; in which case, until such award, the contract would not take effect. Judgment on the verdict.