§ 72. Acceptance must be unequivocal. An acceptance must be positive and unambiguous. This requirement is often treated as identical with the requirement dealt with in the following sections that an acceptance must not change, add to or qualify the terms of the offer, and such changes or qualifications undoubtedly prevent an acceptance from being positive and unequivocal; but even though no change in the offer is suggested in the reply of the offeree, it nevertheless may not so clearly indicate assent to the offer as to create a contract. Thus a reply to an offer to lease premises in the following terms, was held not to make a binding contract: "I have decided on taking No. 22 Belgrade Road, and have spoken to my agent Mr. C., who will arrange matters with you." 32 So a telegram to a bidder for public work, "You are low bidder. Come on morning train." 33 So the following reply to an offer to sell coal "telegram received. You can consider the coal sold. Will be in Cleveland and arrange particulars next week." 34 Likewise a reply to an offer to sell land, "Have twice attempted the tender of the first payment of $500 upon the agreement made between us on the 7th of December last. I will meet you, etc., when I shall be ready to make tender of the money and execute the proper agreements thereupon," is insufficient. 35 An acknowledgment of an order which stated that the order will receive best attention, or prompt attention, has also been held not an acceptance, since it implies no promise to comply with the terms of the order. 36 But if there has once been unequivocal acceptance the contract is complete and its binding 32 Stanley v. Dowdeswell, L. R. 10 C. P. 102. 33 Cedar Rapids Lumber Co. v. Fisher, 129 Ia. 332, 105 N. W. 595, 4 L. R. A. (N. S.) 177. 24 Martin v. Northwestern Fuel Co., 22 Fed. 596. 25 Potts v. Whitehead, 23 N. J. Eq. 512. See also Appleby v. Johnson, L. R. 9 C. P. 158; Bowen v. Hart, 101 Fed. 376, 41 C. C. A. 390; Pike County v. Spencer, 192 Fed. 11, 112 C. C. A. 433; Havens v. American Fire Ins. Co., 11 Ind. App. 315, 39 N. E. 40; 36 Manier v. Appling, 112 Ala. 663, 20 So. 978; Courtney Shoe Co. v. Curd, 42 Ky. 219, 134 S. W. 146, 38 L. R. A. (N. S.) 903, VanKeuren v. Boomer & Boschert Press Co., 143 N. Y. App. Div. 785, 128 N. Y. Supp. 306; National Cash Register Co. v. McCann, 140 N. Y. Supp. 916, 80 N. Y. Misc. 165. force cannot be affected by subsequent communications unless they amount to a mutual agreement to rescind.37 § 73. Acceptance must comply with the terms of the offer. In order to make a bargain it is necessary that the acceptor shall give in return for the offeror's promise exactly the consideration which the offeror requests. If an act is requested, that very act and no other must be given. If a promise is requested that promise must be made absolutely and unqualifiedly. This does not mean necessarily that the precise words of the requested promise must be repeated, but by a positive and unqualified assent to the proposal the acceptor must in effect agree to make precisely the promise requested; 38 and if any provision is added to which the offeror did not assent, the consequence is not merely that this provision is not binding and that no contract is formed; 39 but that the offer is rejected.40 The new condition is as fatal when its inconsistency with the offer appears by implication only as when it is explicitly stated. Thus when an offer is made by mail to sell stock, a reply in terms accepting the offer, and adding "ship with 37 Ozzola v. Musolino, 225 Mass. 512, 114 N. E. 733. This principle qualifies the statement sometimes made that the whole of a continuous correspondence must be considered. Hussey v. Horne-Payne, 4 A. C. 311; Strobridge Co. v. Randall, 73 Fed. 619, 19 C. C. A. 611. 38 Young's Market Co. v. Pioneer Produce Co., 192 Fed. 822, 113 C. C. A. 146; Nieschburg v. Nothern, 101 Kan. 110, 165 Pac. 857; W. C. Sterling & Son Co. v. Watson & Bennett Co., 193 Mich. 11, 159 N. W. 381; State v. Robertson, (Mo.), 191 S. W. 989; Glenn v. S. Birch & Sons Const. Co., 52 Mont. 414, 158 Pac. 834; Morrison v. Parks, 164 N. C. 197, 80 S. E. 85, and see cases in this and the following sections. 39 Compania Bilbaine v. SpanishAmerican Co., 146 U. S. 483, 36 L. Ed. 1054, 13 S. Ct. Rep. 142. In this case the insertion in a charter party of un authorized clauses was held to invalidate the whole instrument. In Porter v. Gossell, 112 Ark. 380, 166 S. W. 533, the defendant offered to sell a car of oats at 42 cents, if the plaintiff would accept the city scale weights. A reply, requesting the shipment to be rushed, but demanding an affidavit attached to the scale weights, did not create a binding contract. See also Hayes v. Possehl, 92 Kan. 609, 141 Pac. 559. 40 See infra, § 87. Where the plaintiff sent the defendant a contract calling for 4,000 poles and the defendant signed it after adding the words "more or less," and on its return the plaintiff signed it after striking out the words 'or less,' the conduct of the parties was held to amount to no more than a series of offers, no one of which was assented to. W. C. Sterling & Son Co. v. Watson & Bennett Co., 193 Mich. 11, 159 N. W. 381, 382. draft attached" adds a new condition since by implication the place of delivery under the offer was the seller's residence, and the reply transfers it to the buyer's.41 § 74. Illustrations in cases of offered rewards. The principle stated in the preceding section finds frequent application in attempted acceptance of offers of reward. Thus where a reward was offered "for the apprehension of John H. Surratt," one who had made disclosures leading to Surratt's apprehension was held not entitled to the reward, 42 the court holding that the offer requested the actual arrest. Doubtless it is possible to make an offer for the actual arrest of a criminal and such an offer can only be accepted by compliance with the request, and the Surratt case seems to have been of that sort, but in most cases of rewards offered forapprehension of a criminal, the more reasonable construction of the offer is that causing the arrest by giving the necessary information to officers of the law is the efficient cause and is a compliance with the offer. 43 Where a reward was offered for the "apprehension and conviction" of a criminal, it was held that no recovery could be had for the conviction unless the plaintiff had also apprehended the criminal.44 Other illustrations of the exact per 41 Neer v. Lang, 252 Fed. 575, 164 C. C. A. 491. See also Sharp v. West, 150 Fed. 458; Lacey v. Thomas, 164 Fed. 623; Greenawalt v. Estę, 40 Kan. 418, 19 Pac. 803; Cameron v. Wright, 21 N. Y. App. D. 395, 47 N. Y. S. 571. 42 Shuey v. United States, 92 U. S. 73, 23 L. Ed. 697. See also McClaughry v. King, 147 Fed. 463, 79 C. C. A. 91, 7 L. R. A. (N. S.) 216; Chambers v. Ogle, 117 Ark. 242, 174 S. W. 532; Juniata County v. McDonald, 122 Pa. 115, 15 Atl. 696; Williams v. West Chicago St. Ry. Co., 191 Ill. 610, 61 N. E. 456, 85 Am. St. Rep. 278. 43 Union Pac. R. Co. v. Belek, 211 Fed. 699; Elkins v. Board, 91 Kan. 518, 120 Pac. 542, 138 Pac. 578, 46 L. R. A. (N. S.) 662; Haskell v. Davidson, 91 Me. 488, 40 Atl. 330, 42 L. R. A. 155, 64 Am. St. Rep. 254; Rogers v. McCoach, 120 N. Y. Supp. 686, 66 N. Y. Misc. 85; Stair v. Heska Amone Congregation, 128 Tenn. 190, 159 S. W. 840; Hall v. State, 102 Wash. 519, 173 Pac. 429; Kinn v. First Nat. Bank, 118 Wis. 537, 95 N. W. 969, 99 Am. St. Rep. 1012. In the Tennessee case it was held that though a police officer is precluded by public policy from receiving reward for an arrest, the fact that a reward was voluntarily paid an officer after notice that a private citizen claimed it does not enlarge the rights of such citizen, or entitle him thereto, where the officer, rather than he, was the efficient cause of the arrest. 44 Fitch v. Snedaker, 38 N. Y. 248, 97 Am. Dec. 791. See also Hogan v. Stophlet, 179 Ill. 150, 53 N. E. 604, formance required in order to entitle a plaintiff to a reward may be found in the cases.45 But offers of reward should "be construed in the sense in which they are ordinarily understood and acted upon " and with reference to "the purposes for which they are intended." 46 An offer of reward contemplates ordinarily but a single performance. Therefore, if several persons perform the requested act, the first one only has entered into a contract, the offer immediately lapsing thereafter.47 It is of course possible to make a general offer not to the first person who does a certain act, but to every person who may do it,48 but where performance of the requested act by one person fulfils the apparent purpose of the offeror, the natural construction of the offer would confine it to the first person coming within its terms. Sometimes the service requested in an offer of reward is performed by several persons, no one of whom, alone, renders the whole service. If these persons are acting in concert there seems no doubt of their right to recover as joint promisees. 49 Where, however, there is no joint action in fact by the several persons rendering the service, it seems difficult on principle to make out a promise to them jointly. Nevertheless, a joint recovery has been held allowable even in such cases.50 In one or two cases it has been held that where 44 L. R. A. 809; Williams v. West Chicago St. R. Co., 191 Ill. 610, 61 N. E. 456, 85 Am. St. Rep. 278; Furman v. Parke, 21 N. J. L. 310; Blain v. Pacific Ex. Co., 69 Tex. 74, 6 S. W. 679; Kinn v. First Nat. Bank, 118 Wis. 537, 95 N. W. 969, 99 Am. St. Rep. 1012. 45 Cornelson v. Insurance Co., 7 La. Ann. 345; Bloomfield v. Maloney, 176 Mich. 548, 142 N. W. 785; Jones v. Phoenix Bank, 8 N. Y. 228; Clanton v. Young, 11 Rich. L. 546; cf. Mosley v. Stone, 108 Ky. 492, 56 N. W. 965; Mudd v. Woodside, 136 Ky. 296, 124 S. W. 321; Stair v. Heska Amone Congregation, 128 Tenn. 190, 159 S. W. 840. 46 Marsh v. Wells Fargo & Co., 88 Kan. 538, 129 Pac. 168, 43 L. R. A. (N. S.) 133; Hall v. State, 102 Wash. 519, 173 Pac. 429. 47 Lancaster v. Walsh, 4 M. & W. 16; United States v. Simons, 7 Fed. 709; Bloomfield v. Maloney, 176 Mich. 548, 142 N. W. 785; Fargo v. Arthur, 43 How. Pr. 193. 48 This seems to have been the true construction of the offer in Carlill v. Carbolic Smoke Ball Co., [1892] 2 Q. B. 484, [1893] 1 Q. B. 256, where an offer of £100 was made to any person who should contract influenza while using one of the defendants' smoke balls. See also supra, § 32. 49 Williams v. Carwardine, 5 C. & P. 566, 573; Janvrin v. Exeter, 48 N. H. 83, 2 Am. Rep. 185. 50 Bloomfield v. Maloney, 176 Mich. part of the service requested was rendered, a proportionate part of the reward offered could be recovered.51 But these decisions are opposed both to principle and the weight of authority. If an act is requested in return for a promise, ́ that act, and the whole of that act must be performed or there is no contract.52 If full performance was prevented by the offeror, however, it seems that a quasi-contractual liability would arise to pay for any benefit received.53 Where a reward is offered for the apprehension or conviction of a criminal. the criminal himself is not one of the public to whom the offer is addressed, and he cannot by surrendering himself become entitled to the reward.54 75. Illustrations in other cases than offers of reward. The same principle may find application in any form of contract. Especially is it to be observed that where an offeror requests a promise in return for his offer, the incurring of a detriment by beginning to perform the act which the offeree was requested to promise to perform will not create a contract;55 548, 142 N. W. 785; Whitcher v. State, 68 N. H. 605, 34 Atl. 745; Fargo v. Arthur, 43 How. Pr. 193; Tobin v. McComb (Tex. Civ. App.), 156 S. W.237. But see Stair v. Heska Amone Congregation, 128 Tenn. 190, 159 S. W. 840. 51 Hawk v. Marion County, 48 Iowa, 472; Symmes v. Frazier, 6 Mass. 344, 4 Am. Dec. 142. In both these cases the reward was offered for the return of a sum of money and recovery of a proportionate part of the reward was allowed for the return of part of the money. 52 See cases cited supra in this section, and especially Williams v. West Chicago St. R. Co., 191 Ill. 610, 61 N. E. 456, 85 Am. St. Rep. 278; Blain v. Pacific Exp. Co., 69 Tex. 74, 6 S. W. 679. 52 Zwolanek v. Baker Mfg. Co., 150 Wis. 517, 137 N. W. 769, 44 L. R. A. (N. S.) 1214. See further supra, § 60a. 54 Clinton County Commissioners v. Davis, 162 Ind. 60, 69 N. E. 680, 64 L. R. A. 780. 55 White v. Corlies, 46 N. Y. 467. In this case the defendant wrote to the plaintiff: "Upon an agreement to finish the fitting up of offices, 57 Broadway in two weeks from date, you can begin at once." On receipt of this note the plaintiff purchased lumber and began work thereon. It was held that no contract was thereby created. What was requested was an agreement to finish the work, and starting performance was not a compliance with this offer. If the performance had been started in the presence of the offeror, it would probably have indicated such an agreement as the offer requested. In Chicago & Great Eastern Ry. Co. v. Dane, 43 N. Y. 240, an offer was made to transport "not exceeding 6000 tons" "during the months of April, May, June, July and August." It was held that this offer contemplated an acceptance defining the amount |