Definiteness

• Author: Val Ricks
• Pages: 371-395

371

Chapter 8. Definiteness

A. The General Principle

ACADEMY CHICAGO PUBLISHERS v. Mary W. CHEEVER (1991)

Supreme Court of Illinois

578 N.E.2d 981

Justice HEIPLE delivered the opinion of the court:

[¶1] This is a suit for declaratory judgment. It arose out of an agreement between

the widow of the widely published author, John Cheever, and Academy Chicago

Publishers. Contact between the parties began in 1987 when the publisher

approached Mrs. Cheever about the possibility of publishing a collection of Mr.

Cheever’s short stories which, though previously published, had never been

collected into a single anthology. In August of that year, a publishing agreement

was signed which provided, in pertinent part:

“Agreement made this 15th day of August 1987, between Academy Chicago

Publishers or any affiliated entity or imprint (hereinafter referred to as the

Publisher) and Mary W. Cheever and Franklin H. Dennis of the USA

(hereinafter referred to as Author).

Whereas the parties are desirous of publishing and having published a

certain work or works, tentatively titled The Uncollected Stories of John

Cheever (hereinafter referred to as the Work):

* * * *

2. The Author will deliver to the Publisher on a mutually agreeable date one

copy of the manuscript of the Work as finally arranged by the editor and

satisfactory to the Publisher in form and content.

* * * *

5. Within a reasonable time and a mutually agreeable date after delivery of

the final revised manuscript, the Publisher will publish the Work at its own

expense, in such style and manner and at such price as it deems best, and

will keep the Work in print as long as it deems it expedient; but it will not

be responsible for delays caused by circumstances beyond its control.”

[¶2] Academy and its editor, Franklin Dennis, assumed the task of locating and

procuring the uncollected stories and delivering them to Mrs. Cheever. Mrs.

Cheever and Mr. Dennis received partial advances for manuscript preparation. By

the end of 1987, Academy had located and delivered more than 60 uncollected

stories to Mrs. Cheever. Shortly thereafter, Mrs. Cheever informed Academy in

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writing that she objected to the publication of the book and attempted to return her

advance.

[¶3] Academy filed suit in the circuit court of Cook County in February 1988,

seeking a declaratory judgment: (1) granting Academy the exclusive right to

publish the tentatively titled, “The Uncollected Stories of John Cheever”; (2)

designating Franklin Dennis as the book’s editor; and (3) obligating Mrs. Cheever

to deliver the manuscript from which the work was to be published. The trial court

entered an order declaring, inter alia: (1) that the publishing agreement executed by

the parties was valid and enforceable; (2) that Mrs. Cheever was entitled to select

the short stories to be included in the manuscript for publication; (3) that Mrs.

Cheever would comply with her obligations of good faith and fair dealing if she

delivered a manuscript including at least 10 to 15 stories totaling at least 140 pages;

(4) Academy controlled the design and format of the work to be published, but

control must be exercised in cooperation with Mrs. Cheever.

[¶4] Academy appealed the trial court’s order, challenging particularly the

declaration regarding the minimum story and page numbers for Mrs. Cheever’s

compliance with the publishing agreement, and the declaration that Academy must

consult with defendant on all matters of publication of the manuscript.

[¶5] The appellate court affirmed the decision of the trial court with respect to

the validity and enforceability of the publishing agreement and the minimum story

and page number requirements for Mrs. Cheever’s compliance with same. The

appellate court reversed the trial court’s declaration regarding control of publication,

stating that the trial court erred in considering extrinsic evidence to interpret the

agreement regarding control of the publication, given the explicit language of the

agreement granting exclusive control to Academy. (200 Ill.App.3d 677, 146 Ill. Dec.

386, 558 N.E.2d 349.) Appeal is taken in this court pursuant to Supreme Court Rule

315(a) (134 Ill.2d R. 315(a)).

[¶6] The parties raise several issues on appeal; this matter, however, is one of

contract and we confine our discussion to the issue of the validity and enforceability

of the publishing agreement.

[¶7] While the trial court and the appellate court agreed that the publishing

agreement constitutes a valid and enforceable contract, we cannot concur. The

principles of contract state that in order for a valid contract to be formed, an “offer

must be so definite as to its material terms or require such definite terms in the

acceptance that the promises and performances to be rendered by each party are

reasonably certain.” (1 Williston, Contracts §§ 38 through 48 (3d ed. 1957); 1

Corbin, Contracts §§ 95 through 100 (1963).) Although the parties may have had

and manifested the intent to make a contract, if the content of their agreement is

unduly uncertain and indefinite no contract is formed. 1 Williston § 37; 1 Corbin §

95.