“It is settled law that if the parties’ manifestations taken together as making up the contract, when reasonably interpreted in the light of all the circumstances, do not enable the Court to determine what the agreement is and to enforce it without, in effect, ‘making a contract for the parties,’ no enforceable obligation results.” (citations omitted)
How later courts described this case
- “It is settled law that if the parties’ manifestations taken together as making up the contract, when reasonably interpreted in the light of all the circumstances, do not enable the Court to determine what the agreement is and to enforce it without, in effect, ‘making a contract for the parties,’ no enforceable obligation results.” (citations omitted)
- "Even though American's purported acceptance stated the price for Litsinger's services 'to be determined,' ... it merely refers to Litsinger's offer to do the work for 'ordinary industry prices,' a way of filling a blank on its purchase order in the absence of a specified liquidated amount."
Written by the judges who cited it.
The opinion
Taft, C J.,
concurring. I concur in paragraphs one, two and six of the syllabus and in the judgment.
The questions considered in the syllabus and in the majority opinion with respect to the Ohio Uniform Judicial Notice of *19 Foreign. Law Act (Sections 2317.44, 2317.45, and 2317.46, Revised Code) were not raised in either the briefs or in the arguments. As pointed out in the majority opinion, “both parties * * * briefed and argned Maryland law in the Municipal Court, Court of Appeals and in this court” and “have, therefore, acquiesced in each others reliance on Maryland law.” Hence, it seems to me that the statements in the majority opinion and in paragraphs three, four and five of the syllabus about Sections 2317.44 and 2317.45, inclusive, Revised Code, represent dicta.
In my opinion, some of those statements are contrary to the intention expressed by the General Assembly in the enactment of those statutes, and others purport to decide questions that are sufficiently doubtful so as to require us to refrain from apparently deciding them now when the questions have not been presented to us for decision.
I am particularly disturbed by paragraph four of the syllabus and by the portion of paragraph three thereof after the word “however,” which suggest that a court may exercise its discretion sua sponte to judicially notice another state’s law. The statute (Section 2317.45, Revised Code) provides that “to enable a party to offer evidence of the law in another jurisdiction or to ask that judicial notice be taken thereof, reasonable notice shall be given to the adverse parties either in the pleadings or otherwise.” Thus, without such notice, a party cannot even “ask” the court to take judicial notice of the law of another state. The statute says nothing about any discretion of the court to either consider or disregard foreign law that the court is not asked to judicially notice. (Contrast Section 2505.21, Revised Code, relating to appellate procedure, which states that “errors not specifically pointed out * * * and separately argued * * * may be disregarded, but the court may consider and decide errors * # * not assigned or specified,” and thus does specifically confer discretion on the court to consider or not consider errors not specifically pointed out and separately argued.)
If, as the majority opinion suggests, Section 2317.45, Revised Code, “should * # # be so interpreted as to prevent prejudice and not to create a trap for the unwary,” why should not the court, as well as the opposing party, be prevented from creating such a trap?
*20 Also, the majority opinion states that there is ‘ ‘ apparently no history to determine the reason for * * * omission” of the words “common law” from Ohio’s version of the Uniform Act in Section 2317.44. On the contrary, there is ample history to indicate that reason. Thus, when the Uniform Act was adopted, what is now Section 2317.09 read:
“The common or unwritten law of another state, a territory of the United States, or foreign government, may be proved as facts by parol evidence. Books of reported cases adjudicated in its courts also may be admitted as presumptive evidence of such law.”
The part of the Uniform Act that is now the first sentence of Section 2317.44, Revised Code, was Section 1 of House Bill 320 in the 93'rd General Assembly and, as introduced, it read, so far as pertinent:
“Every court of this state shall take judicial notice of the common law and statutes of every state * * *.”
The words “the common law and” were stricken by an amendment before the bill passed the House (93 House Journal 932). They were reinserted by a Senate Committee which also amended the bill to strike the lines of the bill containing a section that read “all acts or parts of acts inconsistent with the provisions of this act are hereby repealed.” (93 Senate Journal 666.)
It is quite obvious that both Houses of the General Assembly had by then noticed the apparent conflict between the reference to “common law” in Section 1 of the Uniform Act, and what is now Section 2317.09, Revised Code.
After the Senate again struck “the common law” from the bill as finally enacted (93 Senate Journal 800) and the House concurred in the Senate amendments (93 House Journal 1246), it is quite apparent that the General Assembly intended to prevent judicial notice being taken of the common law of another state, and instead intended to require proof thereof under Section 2317.09, Revised Code, with books of reported cases being admissible as presumptive evidence thereof. See Hallen, The Uniform Evidence Acts (1939), 6 Ohio St. Law Journal 25, 39.
There could be a good reason for such a distinction between *21 “statutes” and “common law.” There can usually be no dispute as to what the words of a statute are. On the other hand, there is often considerable uncertainty as to what a court meant by its decision or the reasons which it gave for that decision.
There is nothing in the words of Section 2317.45, Revised Code, to justify the conclusion expressed in paragraph three of the syllabus that the word “statutes” as used in the Uniform Act as adopted in Ohio should include court rules or constitutional provisions. This problem is specifically covered by a previously existing statute which is now Section 2317.08, Revised Code, making “printed copies of written law enacted by another state” admissible “as presumptive evidence of such law. ’ ’