Supreme Court of Illinois. * * * * * * ACADEMY CHICAGO PUBLISHERS, Appellant, 2. The Author will deliver to the Pub- v. lisher on a mutually agreeable date one copy Mary W. CHEEVER, Appellee. of the manuscript of the Work as finally ar- June 20, 1991. ranged by the editor and satisfactory to the Publisher in form and content. Justice HEIPLE delivered the opinion of the court: * * * * * * This is a suit for declaratory judgment. It arose out of an agreement between the wid- 5. Within a reasonable time and a mutu- ow of the widely published author, John ally agreeable date after delivery of the final Cheever, and Academy Chicago Publishers. revised manuscript, the Publisher will pub- Contact between the parties began in 1987 lish the Work at its own expense, in such when the publisher approached Mrs. Cheev- style and manner and at such price as it er about the possibility of publishing a col- deems best, and will keep the Work in print lection of Mr. Cheever’s short stories which, as long as it deems it expedient; but it will though previously published, had never been not be responsible for delays caused by cir- collected into a single anthology. In August cumstances beyond its control.” of that year, a publishing agreement was signed which provided, in pertinent part: Academy and its editor, Franklin Den- nis, assumed the task of locating and procur- “ Agreement made this 15th day of Au- ing the uncollected stories and delivering gust 1987, between Academy Chicago Pub- them to Mrs. Cheever. Mrs. Cheever and lishers or any affiliated entity or imprint Mr. Dennis received partial advances for (hereinafter referred to as the Publisher) and manuscript preparation. By the end of 1987, Mary W. Cheever and Franklin H. Dennis of Academy had located and delivered more the USA (hereinafter referred to as Author). than 60 uncollected stories to Mrs. Cheever. Shortly thereafter, Mrs. Cheever informed Whereas the parties are desirous of pub- Academy in writing that she objected to the lishing and having published a certain work publication of the book and attempted to re- or works, tentatively titled The Uncollected turn her advance. Stories of John Cheever (hereinafter referred to as the Work): Academy filed suit in the circuit court of Cook County in February 1988, seeking a declaratory judgment: (1) granting Academy versed the trial court’s declaration regarding the exclusive right to publish the tentatively control of publication, stating that the trial titled, “The Uncollected Stories of John court erred in considering extrinsic evidence Cheever”; (2) designating Franklin Dennis to interpret the agreement regarding control as the book’s editor; and (3) obligating Mrs. of the publication, given the explicit lan- Cheever to deliver the manuscript from guage of the agreement granting exclusive which the work was to be published. The tri- control to Academy. (200 Ill.App.3d 677, al court entered an order declaring, inter 146 Ill.Dec. 386, 558 N.E.2d 349.) Appeal is alia: (1) that the publishing agreement exe- taken in this court. . . . cuted by the parties was valid and enforce- able; (2) that Mrs. Cheever was entitled to The parties raise several issues on ap- select the short stories to be included in the peal; this matter, however, is one of contract manuscript for publication; (3) that Mrs. and we confine our discussionto the issue of Cheever would comply with her obligations the validity and enforceability of the pub- of good faith and fair dealing if she deliv- lishing agreement. ered a manuscript including at least 10 to 15 stories totaling at least 140 pages; (4) Acad- While the trial court and the appellate emy controlled the design and format of the court agreed that the publishing agreement work to be published, but control must be constitutes a valid and enforceable contract, exercised in cooperation with Mrs. Cheever. we cannot concur. The principles of contract state that in order for a valid contract to be Academy appealed the trial court’s or- formed, an “offer must be so definite as to der, challenging particularly the declaration its material terms or require such definite regarding the minimum story and page num- terms in the acceptance that the promises bers for Mrs. Cheever’s compliance with the and performances to be rendered by each publishing agreement, and the declaration party are reasonably certain.” (1 Williston, that Academy must consult with defendant Contracts §§ 38 through 48 (3d ed. 1957); 1 on all matters of publication of the manu- Corbin, Contracts §§ 95 through 100 script. (1963).) Although the parties may have had and manifested the intent to make a contract, The appellate court affirmed the decision if the content of their agreement is unduly of the trial court with respect to the validity uncertain and indefinite no contract is and enforceability of the publishing agree- formed. 1 Williston § 37; 1 Corbin § 95. ment and the minimum story and page num- ber requirements for Mrs. Cheever’s compli- The pertinent language of this agreement ance with same. The appellate court re- lacks the definite and certain essential terms

2 required for the formation of an enforceable terms are left to the sole discretion of the contract. . . . A contract “is sufficiently defi- publisher. nite and certain to be enforceable if the court is enabled from the terms and provisions A contract may be enforced even though thereof, under proper rules of construction some contract terms may be missing or left and applicable principles of equity, to ascer- to be agreed upon, but if the essential terms tain what the parties have agreed to do.”. . . are so uncertain that there is no basis for de- The provisions of the subject publishing ciding whether the agreement has been kept agreement do not provide the court with a or broken, there is no contract. . . . Without means of determining the intent of the par- setting forth adequate terms for compliance, ties. the publishing agreement provides no basis for determining when breach has occurred, Trial testimony reveals that a major and, therefore, is not a valid and enforceable source of controversy between the parties is contract. the length and content of the proposed book. The agreement sheds no light on the mini- An enforceable contract must include a mum or maximum number of stories or meeting of the minds or mutual assent as to pages necessary for publication of the col- the terms of the contract. . . . It is not com- lection, nor is there any implicit language pelling that the parties share a subjective un- from which we can glean the intentions of derstanding as to the terms of the contract; the parties with respect to this essential con- the parties’ conduct may indicate an agree- tract term. The publishing agreement is sim- ment to the terms of same. . . . In the instant ilarly silent with respect to who will decide case, however, no mutual assent has been il- which stories will be included in the collec- lustrated. The parties did not and do not tion. Other omissions, ambiguities, unre- share a common understanding of the essen- solved essential terms and illusory terms are: tial terms of the publishing agreement. No date certain for delivery of the manu- script. No definition of the criteria which In rendering its judgment, the trial court would render the manuscript satisfactory to supplied minimum terms for Mrs. Cheever’s the publisher either as to form or content. compliance, including story and page num- No date certain as to when publication will bers. It is not uncommon for a court to sup- occur. No certainty as to style or manner in ply a missing material term, as the reason- which the book will be published nor is able conclusion often is that the parties in- there any indication as to the price at which tended that the term be supplied by implica- such book will be sold, or the length of time tion. However, where the subject matter of publication shall continue, all of which the contract has not been decided upon and

3 there is no standard available for reasonable implication, courts ordinarily refuse to sup- ply the missing term. (1 Williston § 42; 1 Corbin § 100.) No suitable standard was available for the trial court to apply. It is our opinion that the trial court incorrectly sup- plied minimum compliance terms to the publishing agreement, as the agreement did not constitute a valid and enforceable con- tract to begin with. As noted above, the pub- lishing agreement contains major unresolved uncertainties. It is not the role of the court to rewrite the contract and spell out essential elements not included therein.

In light of our decision that there was no valid and enforceable contract between the parties, we need not address other issues raised on appeal. For the foregoing reasons, the decisions of the trial and appellate courts in this declaratory judgment action are re- versed.

Reversed.

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