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posals, or tenders. This preliminary is then followed by a certain amount of fencing and bantering as to who shall first commit himself to the terms of an agreement. If it is a horse to sell, the seller will want the purchaser to make him an offer. He wants the highest price he can get for his horse, and if he makes an offer it may be accepted, which completes the contract, and he may have named a figure lower than he could have obtained had he been a little more prudent. If the seller gets the buyer to make him an offer, it is then in his hands to close the bargain and make it a sale or to reject it. If the offer be accepted before the buyer revokes his offer, then the contract is completed, and the would-be purchaser is bound by the agreement.

This desire to be noncommittal, or to keep the privilege of closing the contract, has given rise to auction sales and of letting work by advertising for bids, proposals, or tenders, by which means the owner or proprietor retains the right to determine the contract, and contracts are entered into in a manner more dignified and businesslike than those attending every-day bargaining

The subject of offer and acceptance presents many nice questions as to what is an offer, what constitutes an acceptance, at whut moment the acceptance takes effect and the offer becomes irrevocable, and what effects a revocation of an offer.

93. What Is an Offer ?-An offer is a proposal to make a promise, and in law it is not an offer until it comes to the knowledge of the person to whom it is made. The offer must be made in the form of a proposal to become binding upon acceptance. An offer in the form of a question, as, “ Will you or would you take or accept $10 a thousand ?” is not an offer at all. The offer must be in such terms that if accepted both parties shall be bound, that the obligations may be mutual. Had the would be purchaser

said, “ I will give you $10 a thousand,” and the seller signified his assent by accepting the offer or by delivering the materials, that would have made a valid contract.

An offer has been called a conditional promise which may be revoked at any time before it is accepted. It is not a promise, for it is revocable, while a promise is not; but if it is accepted in due course of time, i.e., within a reasonable time, and in the precise terms that it was made, it then becomes a promise, and the offer and acceptance becomes a promise for a promise, which constitutes a contract.

In bilateral contracts where the offer and consideration are mutual promises, the offer becomes a promise only upon the acceptance and per

' formance of the consideration, i.e., the giving of a promise in return for the promise offered. It therefore follows in a bilateral contract that if one party is bound both are bound, and both must have become bound at the same time. In a unilateral contract where the offer is made in consideration of an act or material thing, the offer becomes a promise" in consequence


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of what the coutractor does or gives or suffers,” while in a bilateral contract the offer becomes a binding promise" in consequence of what the contractor says," promises. Therefore the acceptance in a bilateral contract must amount to a promise or the adoption of the terms imposed in the offer as the consideration for the obligation assumed by the offerer. The adoption of the terms and the promise by the contractor and the continuance of the offer and the counterpromise by the one making the offer are implied by the law. The law implies the making of the counter offer in the terms of the original offer when the acceptance is made, and also imposes upon the offerer the presumption that he has remained in that state of mind so long as his offer continues, and that he will accept the counter offer in the same terms of his own offer.

In treating the subject of offer and acceptance it seems essential to distinguish between these two classes of contracts: those that are one sided unilateral, and those in which both sides are bound to perform, or bilateral contracts.

94. What Constitutes an Acceptance ?— The acceptance differs from the making of an offer in that it is not always necessary to communicate it to the person making the offer. The acceptance of an offer may be expressed by words or signs, as by the acts of the parties; for example, the delivery of the materials or goods, or by accepting and using them, or by any overt act that indicates in the ordinary course of trade or business an acceptance of the terms offered. For all practical purposes it may be said that the offer is accepted when the person to whom the offer has been made has performed the conditions, i.e., the consideration stipulated in the offer. The entering of an order on the books of a firm may constitute the acceptance and create a contract.'

In a public offer of a reward for the apprehension and conviction of the perpetrators of an act, the offer is accepted by the discovery and arrest of the culprit, unless, indeed, the act was done in ignorance of the reward having been offered. If such is the case it is no contract, because the offer had never been communicated to the apprehender. If an offer be made in consideration of the performance of certain acts the offer does not become a promise until the performance of the consideration is completed, and up to that moment the offer may be revoked or destroyed by the death of the one making the offer, and the offeree (contractor) be deprived of any pay for what he had done. Thus an offer in the terms, “ If you build me a house according to these plans and specifications, on its completion I will pay you $10,000,” would, it seems, allow the owner to back out and revoke his offer at any time before the house was finished, and leave the contractor without any remedy for his work and materials under the terms of their

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Camden Iron Wks. v. Fox (N. J. C. C.), 34 Fed. Rep. 200 [1887).



would-be agreement. This might cause great hardship and gross injustice on the contractor; bat if it were held that the offer became a promise when the contractor began the performance of the consideration, it would be contrary to the manifest intention of the parties as shown by the terms of their agreement; and it would impose hardships upon the offerer (owner) when the contractor, as he might at any stage of the work, refuse to proceed further in performing the consideration of the offer. If the contractor should die, the offerer (owner) would then be without remedy. These troubles and hardships may be averted by making a binding contract before the work or performance begins, by giving an offer of a promise to pay, for a promise to perform, i. e., by an exchange of mutual promises. If the parties neglect this precaution, any hardships they may suffer should be charged to themselves.

95. Contracts Made by Mail or Telegraph. - It is the acceptance of an offer that completes a simple contract, and it is the delivery of the instrument that makes a deed. The offer is supposed id continue till the time of its acceptance, for the offer and acceptance must exist at the same time, the moment when the contract is created. Thus when an offer is made by letter or by telegram, the offer is continued during the time that the letter or message is travelling, unless it is recalled or revoked, which revocation must be communicated to the person to whom the offer was made or sent.

It is frequently and popularly stated that the mailing of a letter of acceptance completes the contract, and it is frequently held by courts that an offer is accepted from the time the answer is deposited in the post-office.' It has been held too that a telegraph message containing an acceptance of an offer delivered on Saturday to the telegraph company, and required to be delivered on Sunday to the offerer, is wholly completed on Saturday, and not void because of Sunday laws.' It is pretty well settled in this country and in England that a contract is completed at the moment the letter of acceptance is mailed, or the message of acceptance delivered to the telegraph company."

1 In such cases the law implies a con- 864-6. The work must have been pertract on the part of the owner to pay the formed with the owner's kuowleige, con. reasonable value of the contractor's ser- sent, privity, or by his request. It must vices and materials. If the owner request not bave been done ofliciously, or 10 rea contractor or mechanic to perform cer- covery can be had, however meritorious tain work or to furnish materials, or if, or beneficial it may be 10 the owner. without any request, the owner stands by ? Hunt v. Highman (Irt.), 30 N. W. Rep. und allows the contractor to do work or 769 (1886). furnish materials, acting in good faith, : Western Union Telegraph Co. v. Way and the owner takes possession of the (Ala.), 4 So. Rep. 844 (1887). materials and work and enjoys the benefit 4 Trevor r. Wood (N. Y.), 16 Am. Law thereof, the law will imply a contract on Reg. 215 (1868]: Terri' r 0. Storer, 19 N. his part to pay for such work and ma- W. Rep. 288 (1881); Adams v. Lindsey, terials. Thomas v. Wunut Land, etc., 1 B. & A. 681 (1818); Dunlop 7. Higgins, Co., 43 Mo. App. 6.53; Henderson B’dge. 1. H. of L. Cas. 381 [1848); Thomson v. Co. 0. McGrath, 1334 U. S 260; Richard v. James, Langdell's Cases on Contracts 125; Stanton, 16 Wend. (N. Y.) 25; numerous Languell's Summary of Contracts 993. cases ciled, 29 Amer. & Eng. Ency. Law

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The soundness of this rule has been questioned by good authority, who argue that the acceptance must be communicated to the original offerer to complete the contract, and this seems to be the Massachusetts rule.' The latter rule seems to be sustained by the decisions to the effect that if a letter or message of revocation is received by the offerer before or at the same time he receives the letter of acceptance the revocation will render the acceptance inoperative, even though the letter was mailed before the revocation was sent. If the letter of acceptance be followed by another letter, not revoking but modifying the acceptance, and the two are delivered at the same moment, the later letter will take effect, no matter which letter happens to be opened first.' The cases cited would seem to hold that a contract is not consummated at the moment the letter or message of acceptance is sent if the contractor can get his revocation to the offerer before or by the time the acceptance is delivered.

Proof that a letter was duly stamped and addressed and mailed is prima facie evidence that the person to whom it was sent received it if it appears that he then resided in the town to which the letter was addressed,' and the delivery of a letter to a mail-carrier is equivalent to depositing it in the postoffice."

96. Acceptance Must be Unconditional and in the Same Terms as the Offer.—The acceptance must be absolute, positive, and unconditional. An offer can be accepted only in the terms in which it is made, and if the acceptance modifies the offer in any particular it is not an acceptance that will create a contract, but is a counter-offer. Therefore where a quantity of tin was offered at a certain price, and the reply was: “ We accept your offer if full-weight plates,” it was held that the acceptance was conditional and did not constitute a contract. A letter reading, “I am prepared to make the arrangements with you on the terms you name,” in answer to a letter of proposal, does not constitute an unconditional acceptance."

If the terms of the offer are not restated in the acceptance, the parties will be bound by the terms of the offer. Thus where a railroad offered to carry logs at a certain rate, the shipper to chain the logs if necessary for safety, which rate was accepted, it was held that by accepting the rate without qualification the shipper accepted all the conditions specified by the railroad company.

An offer must be accepted just as it was made, and without modification or qualification. A qualified acceptance of an offer, i. e., an acceptance in terms that differ from those in which the offer was made, becomes a new



Langdell's Summary of Contracts 993. * Langdell's Summary of Contracts 996.

5 Pearce v. Lungfitt, 101 Pa. 507 (1883].

Kirwin v. Byrne (Com. Pl.), 29 N. Y. Supp. 287: 27 N. Y. Supp. 143, affirmed.

3 McFarland v. U. S. Mut. Accdt. Assn. (Mo. Sup.), 27 S. W. Rep. 436; Young o. Clapp (Ill. Sup ). 35 N. E. Rep. 372.

• Goodwin r. Provident Sav. Life Assur. Soc. (Iowa), 66 N. W. Rep. 157.

* Havens v. American Fire Ins. Co. (Ind. Ann.), 39 N. E. Rep. 40.

* Lawrence 0. Milwaukee, etc, R. Co. (Wis.), 54 N. W. Rep. 797.




offer, which the original offerer may accept and thus complete the contract. The acceptance must conform to the conditions expressed or implied in the offer in respect to time, place, manner, and method in which it is given or made.

The acceptance must be made or mailed within the time named in the offer, and if no time be named, within a reasonable time, which latter will depend upon the circumstances and is a question of fact for the jury.' If the offer requires the acceptance to be sent to a particular placa, a letter of acceptance sent to another place will not create a contract. An offer containing a request to answer by telegraph”yes” or“ no," and stating that unless the answer is received by a certain day “shall conclude no," the acceptance must be received by telegram on or before the date named."

If the offer is neither accepted nor rejected, but a new offer made in turn, it amounts to a constructive rejection of the original offer. If the first offer is afterwards accepted, it does not create a contract, but is only a new counter-offer which may be accepted or rejected by the original offerer.'

97. What Effects a Revocation of an Offer.—An offer must be communi. cated to the offeree, and it can be revoked only in the same manner. It may be withdrawn at any time before it is accepted, but the withdrawal must be brought to the knowledge of the party to whom it was made.

It is not to be supposed that the offeree can leave town or secrete himself and thus avoid a revocation of an offer, for a letter withdrawing the offer, properly directed, with a return notice thereon, and mailed in time to reach the person to whom the offer was made before his letter of acceptance was mailed, will be held to have been received in the absence of strong proof to the contrary.'

In the case of an offer the offerer holds control of it and may call it back or revoke it, but once accepted the promise is made and the offerer has parted with his control of the offer and it is irrevocable. It can then be rescinded only by the mutual consent and agreement of both parties, i. e., by another contract that they will not enforce their rights.”

A mere change of mind on the part of the offerer will not destroy an offer. It requires some physical act on his part to undo the making of the offer, and the physical act must be brought to the knowledge of the person to whom the offer was made.* An offer to sell materials is not revoked by sell

Ferrier v. Storer, 19 N. W. Rep. 288 conditions silence or a failure to reply (1884).

will amount to an acceptance of an offer, ? Eliason v. Henshaw, 4 Curtis 382 (1819). see 27 Am. Law. Reg. N. S. 260 (1888);

3 Lewis 0. Browning, 130 Mass. 173 Tyler v. Tuatlin Acad. etc.,.26 Am. Law. (1881]; Horne v. Niver (Mass.), 46 N. E. Reg. 339 (1887). Rep. 393.

• Langdell's Summary 1090; Sherwin v. 4 Hyde o. Wrench, 3 Beavan 334.

Nat. C. R. Co. (Colo. App.), 38 Pac. Rep. .Sheffield C. Co. v. Sheffield & R. Ry. 392. Co., 3 Ry. & C. Cas. 121; W. & H. M. ? Sherwin v. Nat. C. R. Co., supra. Goulding 0. Hammond (C. C. App.), 54 8 Foster v. Dabber, 6 Ex. Ch. 851; Mora. Fed. Rep. 639. When and under what wetz on Corporations, $ 871.

* See Mutuality, Sec. 89, supa.


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