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COURT OF APPEALS
NOTICE
DECISION
DATED AND FILED                                                                        This opinion is subject to further editing.   If
published, the official version will appear in
the bound volume of the Official Reports.
November 25, 2009
A party may file with the Supreme Court a
David R. Schanker                                                                                                                                           petition to review an adverse decision by the
Clerk of Court of Appeals                                                                                                                                   Court of Appeals.   See WIS. STAT. § 808.10
                                                                                                                                                            and RULE 809.62.
                                                                                                                                                            Cir. Ct. No.   2008CV255
Appeal No.                                                                             2009AP507
STATE OF WISCONSIN                                                                                                                                          IN COURT OF APPEALS
DISTRICT IV
TERRY VOHS AND VICKI L. VOHS,
PLAINTIFFS-APPELLANTS,
V.
PAUL F. DONOVAN AND TERESA M. DONOVAN,
DEFENDANTS-RESPONDENTS.
APPEAL  from  an  order  of  the  circuit  court  for  Rock  County:
DANIEL T. DILLON, Judge.   Reversed and cause remanded.
Before Dykman, P.J., Vergeront and Lundsten, JJ.
¶1                                                                                     VERGERONT, J.    This dispute arises out of a residential offer to
purchase that contained the phrase “offer is subject to sellers obtaining home of
their choice on or before February 20, 2007,” a date two days after both the buyers
and the sellers signed the offer.   The circuit court granted the buyers’ motion for




No.   2009AP507
summary judgment on the ground that this phrase made the contract indefinite and
illusory and therefore the buyers were not obligated to purchase the sellers’ home.
The sellers appeal.
¶2                                                                                       We  conclude  there  are  material  factual  disputes  that  prevent
summary  judgment  on  both  the  ground  of  indefiniteness  and  the  ground  of
illusoriness.    With respect to indefiniteness, when the contingency language is
considered along with the extrinsic evidence submitted by the sellers, there is a
reasonable inference that both parties understood that the contingency referred to a
particular  pending  transaction,  and  that  understanding  makes  the  contingency
sufficiently definite.   With respect to illusoriness, there is a reasonable inference
that fulfilling the contingency was not wholly within the sellers’ control, and
therefore the contingency did not make the sellers’ promise illusory.   Accordingly,
we reverse and remand for further proceedings.
BACKGROUND
¶3                                                                                       On February 18, 2007, Paul and Teresa Donovan signed an offer to
purchase the home of Terry and Vicki Vohs for the sum of $550,000.   The offer
included a contingency providing that the  “offer is subject to sellers obtaining
home of their choice on or before Feb. 20, 2007.”   The Vohses accepted the offer
to purchase on the same date.
¶4                                                                                       According to the Vohses’ unrebutted submissions, as of February 18,
2007,  they  had  a  pending  counteroffer  to  purchase  another  home.     That
counteroffer contained a provision that it had to be accepted on or before February
19, 2007.   On February 19, the counteroffer was accepted and the Vohses’ broker
communicated this to the Donovans.   For reasons not disclosed in the record, the
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No.   2009AP507
Donovans did not follow through with the purchase of the Vohses’ home.   The
Vohses subsequently sold this home to another buyer for less money.
¶5                                                                                                   The Vohses filed this lawsuit alleging the Donovans had breached
their contract and requesting judgment in the amount of $50,000, plus costs and
attorney  fees.    The  Donovans’  filed  a  motion  for  summary judgment  on  the
grounds  that  the  contingency  made  the  contract  indefinite  and  illusory  and
therefore unenforceable.    The  Vohses opposed the  motion.    The  circuit court
granted summary judgment in favor of the Donovans, apparently concluding that
the contingency made the contract unenforceable.1
DISCUSSION
¶6                                                                                                   On appeal the Vohses contend the circuit court erred in granting
summary judgment because the evidence of the surrounding circumstances makes
the  contingency  definite  and  prevents  their  promise  from  being  illusory.  The
Donovans respond that the language “obtaining” and “home of their choice” make
the contingency indefinite and renders the contract illusory.
¶7                                                                                                   We review de  novo the grant and denial of  summary judgment,
employing the same methodology as the circuit court.   Green Spring Farms v.
Kersten, 136 Wis. 2d 304, 314-15, 401 N.W.2d 816 (1987).   Summary judgment
is proper when there are no genuine issues of material fact and one party is entitled
to judgment as a matter of law.   WIS. STAT. § 802.08(2) (2007-08).2     In deciding
1  The transcript of the hearing on the motion is not in the record.   The order granting the
motion, which is in the record, does not state the reasons but refers to “the reasons set forth on
the record.”
2  All references to the Wisconsin Statutes are to the 2007-08 version unless otherwise
noted.
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No.   2009AP507
if there are genuine issues of material fact, we draw all reasonable inferences in
favor of the non-moving party.    Metropolitan Ventures, LLC v. GEA Assoc.,
2006 WI 71, ¶20, 291 Wis. 2d 393, 717 N.W. 2d 58.
¶8                                                                                         We begin by summarizing the case law on indefinite contract terms
and illusory promises and explaining the distinction between the two concepts.   A
contract  is  not  enforceable  if  an  essential  term  is  indefinite.    Management
Computer Servs., Inc. v. Hawkins, Ash, Baptie & Co., 206 Wis. 2d 158, 178, 557
N.W. 2d 67 (1996).   Definiteness requires that there be a mutual assent by the
parties, which we determine according to an objective standard.   Id.   This means
that we “examine[] both the wording of the contract as well as the surrounding
circumstances” to determine if there was mutual assent to a sufficiently definite
meaning of the term.   Metropolitan Ventures,, 291 Wis. 2d 393, ¶24.   When there
is evidence that two parties intended to enter into a contract, “the [court or] trier of
fact should not frustrate their intentions, but rather should attach a  ‘sufficiently
definite  meaning’  to  the  contract  language  if  possible.”     Id.,                   ¶25                                                                      (quoting
Management Computer Servs., 206 Wis. 2d at 179).
¶9                                                                                         Like a contract with an indefinite essential term, an illusory promise
is unenforceable, but for different reasons.   An illusory promise—“one that its
maker  can  keep  without  subjecting  him[self]  or  herself  to  any  detriment  or
restriction”—does not constitute consideration.   Devine v. Notter, 2008 WI App
87, ¶4, 312 Wis. 2d 521, 753 N.W.2d 557.   When performance by a promisor is
“conditional on some fact or event that is wholly under the promisor’s control and
his [or her] bringing it about is left wholly to his [or her] own will and discretion,”
then the promise to perform is illusory.   Metropolitan Ventures, 291 Wis. 2d 393,
¶33 (quoting Nodolf v. Nelson, 103 Wis. 2d 656, 660, 309 N.W.2d 397 (Ct. App.
1981)).   In such a situation, assuming no other consideration is given for a return
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No.   2009AP507
promise, there is no contract.   See Devine,  312 Wis.  2d  521,  ¶4;  2 Joseph M.
Perillo & Helen Hadjiyannakis Bender, CORBIN ON CONTRACTS § 5.28 at 142-143
(rev. ed. 1995).
¶10    In summary, while both indefiniteness and illusoriness affect the
enforceability of a contract, they are distinct concepts.    If an essential term is
indefinite, thereby rendering the contract unenforceable, the analysis ends there.3
If, on the other hand, the challenged contract term is determined to be definite and
the  party  attacking  the  contract  also  asserts  the  term  constitutes  an  illusory
promise, the issue of illusoriness must then be resolved using a distinct analysis.
In other words, a contract term may be definite but nonetheless constitute an
illusory promise.
¶11    Turning to the arguments in this case, we consider first the question
whether the contingency that the “offer is subject to sellers obtaining home of their
choice on or before Feb. 20, 2007” is indefinite.
¶12    This clause creates a condition precedent to the sellers’ performance.
A significant aspect of the clause is that the condition must occur two days from
the date on which both parties signed the document.    Viewed objectively, this
3  It is true that in Nodolf v. Nelson, 103 Wis. 2d 656, 309 N.W.2d 397 (Ct. App. 1981),
we discussed illusoriness in tne context of deciding whether a financing contingency clause was
indefinite.   See infra, ¶19.   We first rejected the buyer's argument that, because he obtained
financing by the prescribed date, the indefinite clause became definite.   Nodolf, 103 Wis. 2d at
659.   We explained that, with no disclosure to the seller, the buyer's subsequent unilateral action
did not make the clause indefinite.  Id.  We went on to say, following Gerruth Realty Co. v. Pire,
17 Wis. 2d 89, 90, 115 N.W.2d 557 (1962), that if the fiancing clause could be made defintie by
whatever the buyer decided to do, his promise to purchase would be illusory.   Nodolf, 103 Wis.
2d at 659-660.   However, Nodolf should not be read to require an illusory analysis as part of an
indefinite  analysis.  The  correct  reading  of  Nodolf  is  that  our  indefiniteness  analysis  was
completed upon our conclusion that the buyer's subsequent undisclosed unilateral action did not
make the clause definite.
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No.   2009AP507
extremely short time period implies that the Vohses are already involved in a
transaction to purchase a particular house and they expect a resolution within two
days.   It is illogical to infer that the Vohses are asking for two days to find a house
of their choice and complete the transaction to “obtain” it.
¶13    While the specific transaction is not referred to in the clause, the
Vohses have submitted an affidavit with attached documents showing they were
engaged in negotiations to purchase a particular house.   The submission shows
that the date of February 19, 2007, is the date by which the owners of the other
house  had  to  respond  to  the  Vohses’  counteroffer.    Thus,  the  Vohses  were
agreeing that, if their counteroffer was accepted by February 20, they would be
obligated  under  the  contract  with  the  Donovans.    The  Donovans  have  not
submitted any factual materials disputing that this was the transaction upon which
the contingency was based.    On these facts, it is reasonable to infer that the
Donovans agreed to the two-day contingency knowing its purpose.
¶14    We recognize that the Vohses’ knowledge of the pending transaction
is not in itself sufficient to make the contingency clause definite.   See Gerruth
Realty Co. v. Pire, 17 Wis. 2d 89, 92-94, 115 N.W.2d 557 (1962) (contingency
based                                                                                      “upon  the  purchaser  obtaining  the  proper  amount  of  financing”  was
indefinite where there was no evidence the purchaser communicated his views on
what the proper amount was, no evidence of the seller’s understanding, and no
evidence providing a reasonable inference that the parties contracted in light of
current practices in the community).   But, as we have explained, the undisputed
facts support a reasonable inference that the Donovans did know of the pending
transaction.
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No.   2009AP507
¶15    The Donovans argue that the word “obtain” is “unclear on its face”
because  the  acceptance  of  the  Vohses’  counteroffer  to  purchase  contained
conditions and therefore the other house was not “conclusively obtained.”   The
Donovans suggest that the word “obtain” could also mean either after the closing
or  after  physical  occupancy.     This  is  an  argument  that  the  language  is
ambiguous—that is, reasonably susceptible to more than one construction.   See
Management Computer Servs., 206 Wis. 2d at 177.   Ambiguity is not the same as
indefiniteness.   Id. at 178.   An indefinite term is one that is not susceptible to any
reasonable construction, even after considering the surrounding circumstances.
See id. at 178-182.   Thus, the fact that “obtain” is ambiguous—and we agree that it
is—does not make the clause indefinite and therefore unenforceable.4
¶16    The Donovans also argue that the phrase “home of their choice” is
indefinite because it can mean whatever the Vohses want it to mean.   They find
support for this position in Nodolf, in which we concluded that a financing clause
making the buyer’s obligation to perform contingent on “obtaining financing by [a
certain date]” lacked sufficient definiteness for a court to be able to determine the
terms  of  financing  and  therefore  rendered  the  entire  contract  unenforceable.
Nodolf, 103 Wis. 2d at 659.
4   While indefiniteness and ambiguity are distinct concepts, they are closely related.  If an
ambiguity is capable of being resolved through principles of contract construction, it necessarily
means that the term is sufficiently definite and does not render the contract unenforceable.   See
Management Computer Servs., Inc. v. Hawkins, Ash, Baptie & Co., 206 Wis. 2d 158, 182, 557
N.W.2d 67 (1996).   Similarly, the determination that a term is sufficiently definite may also
resolve an ambiguity in the term.  As an example, if the extrinsic evidence in this case establishes
that the contingency is sufficiently definite, that same evidence would appear to resolve the
ambiguity in the meaning of “obtain.”
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No.   2009AP507
¶17    Nodolf  does  not  support  the  Donovans’  position.    Although  the
clause there contained a date by which financing had to be obtained, we did not
address whether that date, in context, implied a reference to circumstances further
defining the condition; and we cannot read from the opinion any suggestion that
the date did have that meaning.    In addition, in Nodolf there was no extrinsic
evidence  supporting  a  reasonable  inference  that  the  parties  shared  the  same
definite understanding of the contingency.   Instead, in Nodolf the buyer’s position
was that the fact that he subsequently obtained financing, by itself, made the terms
more definite, and that is the proposition we rejected.  Id. at 659.5
¶18    We conclude there is a reasonable inference from the record that the
Donovans were aware of the Vohses’ pending transaction to purchase another
house.   That transaction provides definiteness to the meaning of the condition that
the  Vohses                                                                                             “obtain[]   [a]  home  of  their  choice  by  February   20,   2007.”
Accordingly, the Donovans are not entitled to summary judgment on their defense
that this clause is indefinite and makes the contract unenforceable.
5  The Donovans argue that, because the contract was “void” as illusory and indefinite,
we may not consider extrinsic evidence or equitable theories but only the contract itself.   To the
extent the Donovans mean that, in addressing an indefiniteness challenge, a court may not
consider extrinsic evidence, this is an incorrect statement of the law.   As we have already stated,
in considering such a challenge the court is to look at both the wording of the contract and the
surrounding circumstances.   Metropolitan Ventures, LLC v. GEA Assoc., 2006 WI 71, ¶24, 291
Wis. 2d 393, 717 N.W. 2d 58.
On the other hand, the Donovans may mean that after a court decides that a contract is
indefinite or a promise is illusory, the court may not consider extrinsic evidence to decide if the
equities favor enforcement.   The Donovans may be making this argument in response to the
Vohses’ argument that, even if the contingency does not meet the definiteness requirement of the
statute of frauds, WIS. STAT. § 706.02(1)(c), they are nonetheless entitled to equitable relief under
§ 706.04 of the statute of frauds.   We do not address the issue of the statute of frauds because
neither party raised it in the circuit court.
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No.   2009AP507
¶19    Because  the  contingency  clause  is  sufficiently  definite  under  a
reasonable view of the record, we turn to the issue whether that clause makes the
Vohses’ promise to perform illusory.   The Donovans’ argument that the Vohses’
promise is illusory, like their argument on the indefiniteness of the “home of their
choice”  language,  is  based  on  Nodolf.    In  Nodolf,  we  rejected  the  buyer’s
argument that he made the financing contingency definite by obtaining financing
by the prescribed date, explaining:
If the buyer could breathe enforceability into the contract
by claiming that the financing condition has been met, the
buyer would have an unfettered right to decide whether the
condition has been fulfilled.   This is true because only the
buyer and no court  [because of the indefiniteness of the
clause] can determine the terms of the financing.   That right
would render [the] buyer’s promise to purchase illusory.
Nodolf, 103 Wis. 2d at 659.
¶20    The Donovans’ reliance on Nodolf for their argument on illusoriness
has the same deficiency as does their Nodolf argument on indefiniteness.   They
ignore the February  20,  2007, date and the extrinsic evidence of the pending
transaction with an acceptance date of February 19,  2007.   When the extrinsic
evidence is considered, there is a reasonable inference that whether the Vohses’
counteroffer will be accepted by the deadline is not “wholly under [their] control”
or “left wholly to [their] own will and discretion.”   Metropolitan Ventures, 291
Wis.  2d  393,  ¶33  (citing Nodolf,  103 Wis.  2d at  660).   The Donovans do not
provide an argument to the contrary.
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No.   2009AP507
¶21    We  conclude,  therefore,  that  the  Donovans  are  not  entitled  to
summary  judgment  on  their  defense  that  the  Vohses’  promise  to  perform  is
illusory.6
CONCLUSION
¶22    The Donovans are not entitled to summary judgment on the ground
of  either  indefiniteness or  illusoriness.    We  therefore  reverse  and remand for
further proceedings.
By the Court.—Order reversed and cause remanded.
Recommended for publication in the official reports.
6  On the issue of illusoriness, both parties rely on Devine v. Notter, 2008 WI App 87,
312 Wis. 2d 521, 753 N.W.2d 557.   The clause at issue in Devine provided that the offer to
purchase was contingent upon the approval of the buyers’ and sellers’ attorneys within five days
of the acceptance of the offer.   Id., ¶2.   We concluded this clause did not make the contract
illusory because “[t]he attorney review period was strictly limited and, since the time elapsed
without objection, we see no reason both parties should not be bound to the contract.”   Id., ¶1.
We recognize that the clause at issue in this case also has a strict time period—shorter than that in
Devine.   However, there are other characteristics of the clause at issue in Devine that were the
basis for our reasoning but are not shared by the clause in this case.   We therefore resolve this
appeal without a more detailed discussion of Devine.
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