Pacific Telephone & Telegraph Co. v. Davenport Independent Telephone Co.

ROSS, Circuit Judge (after stating the facts as above). [1] The only uncertainty we see about the contract is the absence of a specific description of the property; but that that is certain which can be made certain is an axiom of the law, and the record shows that the representatives of the respective parties had no difficulty in identifying and appraising the property in accordance with the provisions of the contract. We therefore think the court below was quite right in not holding it void for uncertainty. [2] But according to its express provisions, upon the fixing of the value of the property, in the way agreed upon, the appellant was required to pay such value for, and the appellee to convey to the appellant, “that portion of its property which the Pacific Company [appel-lee] may lawfully acquire, the title to such property to be acceptable to the attorneys for this company.” The record shows that the appellant refused to accept, and consequently to pay for, any portion of the property in question, first on the ground that it could not lawfully acquire any of it, and on the further ground that the appellee’s title to the property was not acceptable to the appellant’s attorneys. There is nothing in the record even tending to show that the action of either the appellant or its attorneys in the respects indicated was in bad faith, arbitrary, or in any way capricious. According to the express admissions made in the brief of the learned counsel for the appellee, the determination of the question as to whether the appellant could lawfully acquire any of the property was, by the contract, vested solely in the appellant. To show that we make no mistake in regard to that matter we quote from the appellee’s brief as follows; [881] “Tlie offer was for all the properties of the appellee, at a price to he fixed by appraisers, but to be fully complied with by the conveyance of such portion thereof as the appellant might lawfully acquire. Now, where is the uncertainty? The matter was not left open to further parley between the parties, because the appellee had agreed to convey all its property. It was not a matter to be determined by the preconceived view of attorneys on either side, as suggested by appellant, because the legal rights of suitors are not foreclosed in that manner. Clearly it was a matter for the determination of the appellant alone. It conld take all the properties, if it thought such a purchase innocuous to the law. If it doubted its right to purchase all, it could take any part that it conceived it had a light to take. Can it be said that there is any uncertainty in a contract of purchase which gives the right to purchase, for a certain specified sum, all of a specified list of properties or such part thereof as the vendee may choose tó take? Such a contract simply confers an election on the purchaser to be exercised by him at his option. Absolutely no will was to be consulted under this contract, but that of the appellant. The contract stood for all or a part, as the appellant itself might determine. * * ❖ “If the appellant had been the actor, and had come Into court for a specific performance, alleging either that it might lawfully acquire the whole of the property, or that it might lawfully acquire a part thereof, and praying specific performance in whole or in part as the case might be, it could not have been said that there was such uncertainty as to what it had agreed to do, or what the appellee had agreed to do, that specific performance would have been denied. The appellant had agreed to pay the reproduction value of all the properties. The appellee had agreed to convey all or any part of the properties that the appellant might conceive it had a right to purclra.se, and its election on that point, we submit, could not have been contested. Manifestly if the contract is sufficiently certain for the purposes of the appellant, it must be for those of the appellee. There must be mutuality. “On this bill brought by the appellee there were two courses open to the court for the determination of the property to be conveyed: (a) It could have required the appellant to elect whether it would take all or only part of the property, as it would have been required to elect if it had been the moving party, (b) It could go on and determine for itself whether appellant might lawfully acquire all, or only a portion, of the property, and make a decree accordingly.” Passing that consideration, however, the refusal of the appellant to make the purchase being also based on the ground that the appellee’s title to the property was not acceptable to the appellant’s attorneys, and the evidence not only failing to show any bad faith, or arbitrary or capricious action, in that regard, but that the rejection of the title by the attorneys for the appellant was based upon defects which were clearly debatable, and at least not free from doubt, we regard it as clear that the decree enforcing' the specific performance of the contract cannot be sustained. In 39 Cyc. 1509, 1510, it is said: “It is perfectly competent for the parties to stipulate that the title of the vendor shall be such as will be pronounced good and merchantable by an attorney, title or trust company, or other third person, and the purchaser will not be required to take a title not so pronounced good so long as there is good faith, although the court may deem it good under the law. Under such a contract the approval or disapproval of such third person is conclusive, if made in good faith, and with no improper motive, although in the opinion of the court the title may be good as a matter of law.” See, also, Allen v. Pockwitz, 103 Cal. 85, 36 Pac. 1039, 42 Am. St. Rep. 99; Watts v. Holland, 86 Va. 999, 11 S. E. 1015; Atwood v. Fagan (Tex. Civ. App.) 134. S. W. 765; Ives v. Kimlin, 140 Mo. App, 293, 124 S. W. 23; Fleming v. Burnham, 100 N. Y. 1, 2 N. E. 905. [882] It results that the judgment must be and is hereby reversed, with directions to the court below to dismiss the bill; the appellant to recover costs in both courts.