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unless, at least the beginning of performance was in the presence or knowledge of the offerer and might fairly be interpreted as implying in fact a promise. So, if the offeror requests the performance of an act as the consideration of his promise, no contract is created by a mere promise to perform the act. Thus, where an option is conditional upon the payment of a sum of money, a promise by the offeree to pay the money is not an acceptance of the option. 56

§ 76. If an offer prescribes the place, time, or manner of acceptance, its terms must be complied with.

Not only may the offeror dictate the consideration which he demands as the return for the promise in his offer, but he may also dictate the way in which acceptance shall be indicated.57 As has been seen,58 the offeror may limit the time within which an offer may be accepted. So he may dictate the place at which acceptance must be made; 59 likewise the manner

for which the offeree accepted and no contract was performed by merely writing "I assent to your agreement" or by the subsequent tender of particular lots of iron for transportation. In Beckwith v. Cheever, 21 N. H. 41, the owner of land, proposed to the plaintiff, that he might take timber from the land upon paying for it in a certain way. The plaintiff said he would accept the proposition if he could get his brother to assist him. The owner told him he need not give a decided answer then, but might do so thereafter. The plaintiff afterwards engaged his brother to assist him in cutting the timber, but never notified the owner that he had accepted his proposition. The court held that the offer had not become binding and that the plaintiff suffered no legal injury when the owner sold the timber to a third person.

56 Lockman v. Anderson, 116 Iowa, 236, 89 N. W. 1072; Winders v. Kenan, 161 N. C. 628, 77 S. E. 687. See also Rickard v. Taylor, 122 Fed. 931, 59 C. C. A. 455.

57 Mott v. Jackson (Ala.), 55 So. 528, and see cases in this section, passim. 58 See supra, § 53.

59 The leading case to this effect is Eliason v. Henshaw, 4 Wheat. 225. An offer requested an answer by return of wagon to Harper's Ferry. The acceptance was sent to Georgetown and received by the offeror at that place. The court said-"It was entirely unimportant whether it was sent by that or another wagon, or in any other manner, provided it was sent to Harper's Ferry, and was not delayed beyond the time which was ordinarily employed by wagons engaged in hauling flour from the defendant's mill to Harper's Ferry. Whatever uncertainty there might have been as to the time when the answer would be received, there was none as to the place to which it was to be sent; this was distinctly indicated by the mode pointed out for the conveyance of the answer. The place, therefore, to which the answer was to be sent constituted an essential part of the plaintiffs' offer. Their offer, it is true, was accepted by the terms of a

of acceptance may be a condition of the offer. Thus, if an offer requests an answer by telegram, an answer by mail will not create a contract.60 Care must be taken, however, in construing offers to make sure whether the offer does impose an absolute condition (as to time, place, or manner of acceptance, or merely suggests a method which will be satisfactory to the offeror; and in determining the construction of an offer in this respect, as in other respects, it is frequently necessary to look beyond the literal meaning of the language used. Thus, suppose an offer contains this language: "if you wish to accept this offer, send your office boy with your note of acceptance before 12 o'clock." Instead of sending his office boy, the offeree takes a note of acceptance himself to the offeror within the specified time. It can hardly be doubted that a contract has been formed. The statement in regard to the office boy in the offer is merely a suggestion as to a convenient method of getting the answer to the offeror. Probably any mode

letter addressed Georgetown, and received by the plaintiffs at that place; but an acceptance communicated at a place different from that pointed out by the plaintiffs, and forming a part of their proposal, imposed no obligation binding upon them, unless they had acquiesced in it, which they declined doing." It seems possible that the court somewhat over-emphasized the importance of an acceptance at Harper's Ferry. Doubtless the offeror could make this a positive condition of his offer, but it may be questioned if this was the true construction of the offer. In this connection may be considered the numerous authorities that hold that title will not pass to goods shipped in response to an order unless the directions of the buyer are exactly observed. See Williston on Sales, § 278. These decisions, however, do not decide that title may not pass when the goods actually arrive, but in Sun Publishing Co. v. Minnesota Type Foundry, 22 Or. 49, 29 Pac. 6, this question was presented. The plain

tiff in ordering goods directed the defendant to mark them "Sun Publishing Co. Marshfield, Oregon, care of Coos Bay Coal & Navigation Co., San Francisco, Cal." Instead thereof, the defendant marked and shipped the goods to Flanagan & Bennett, bankers, at Marshfield, Oregon, together with an invoice of the goods so shipped, and bills of lading thereof, accompanied by a draft for the price. The court said: "Whether this departure from the plaintiff's instructions would of itself be sufficient to justify its refusal to take the goods, it seems is unnecessary for us to determine at this time; but some of the authorities to which our attention has been directed appear to hold as much. (Bruce v. Pearson, 3 Johns. 534; Corning v. Colt, 5 Wend. 253; Eliason v. Henshaw, 4 Wheat. 225.)" See also Knox v. McMurray, 159 Ia. 171, 140 N. W. 652. Cf. infra, § 87.

60 Horne v. Niver, 168 Mass. 4, 46 N. E. 393.

of communication which reached the offeror before twelve o'clock would be sufficient. If the offer contained the sentence "address me at Harper's Ferry," doubtless an acceptance addressed elsewhere would be sent at the peril of the acceptor, but if the offeree, while the offer was still pending, met the offeror in Washington, or, knowing that he was there, sent a note of acceptance to him, which actually reached him while the offer was still open, it may be well argued that a contract has been formed. The exact place of acceptance can be made an absolute condition of the offer, but it would seem that a reasonable man would naturally understand the clause in the offer referring to Harper's Ferry as meaning no more than "this is the address for which I am responsible. This is where a letter will surely reach me." On this principle it has been held that where an offer stipulates for an answer by return mail, it is not essential that the acceptance shall actually be sent by return mail, but merely that it shall reach the offeror as soon as a letter sent by return mail,61 and where there are a number of mails a day, an acceptance mailed in time for an outgoing mail on the same day on which the offer was received, though not in time for the first return mail, would probably be sufficient.62 Even though the offer prescribes as a condition and not merely a suggestion a particular mode of acceptance, a different mode adopted by the acceptor will become effectual if the offeror thereafter expresses his assent to the other party 63 but it seems not otherwise. To allow a unilateral waiver of the method originally prescribed is open to objection.64 The irregular acceptance is a counter-offer and as such must itself be accepted.

§ 77. Qualified or conditional acceptances are counter-offers and reject the original offer.

A conditional acceptance is in effect a statement that the offeree is willing to enter into a bargain differing in some respect from that proposed in the original offer. The condi

61 Tinn v. Hoffman, 29 L. T. (N. S.) 271, per Brett, J.

62 Palmer v. Phoenix Mut. Life Ins. Co., 84 N. Y. 63.

63 Shaenfield v. Hall Safe, etc., Co. (Tex. Civ. App.), 157 S. W. 462.

64 See infra, § 92.

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tional acceptance is, therefore, itself a counter-offer and rejects the original offer, so that thereafter even an unqualified acceptance of that offer will not form a contract.65

There are numerous decisions on the question whether a particular acceptance is conditional. A few of these may be given as illustrations. An acceptance "subject to the terms of a contract being arranged" between the parties' lawyers is conditional,66 and no acceptance is good which contains the condition that subsequent arrangement is to be made concerning any of the terms of the bargain.67 So a reply to an offer to sell real estate accepting the offer if the title is satisfactory to the buyer's attorney is not a valid acceptance if, as seems the true construction of the reply, the offeree thereby imposes as a condition of the bargain the favorable opinion of his own lawyer as distinguished from the standard established by the law.68 A reply to an offer of the unexpired term of a lease that the offeree accepted subject to the lessor's assent creates no contract.69 So an offer to sell land is not accepted by a reply which though in terms accepting the offer at the outset, imposes the condition that certain additional deeds be turned over; 70 or that a sum to be paid for an option should be credited on the price if the option was exercised.71 A reply imposing the requirement of a bond is conditional.72 So a reply to an offer to sell land, directing that the deed be sent to another State where payment will be made, since such a reply imposes the condition that the place of payment shall be other than that where it would have been on a true construction of the offer, and an alteration of the See supra, § 51.

"Honeyman v. Marryatt, 6 H. L. C.

112.

James v. Darby, 100 Fed. Rep. 224, 40 C. C. A. 341; Pacific Rolling Mill Co. v. Riverside & A. Ry. Co., 90 Cal. 627, 27 Pac. 525.

*See cases cited, infra, § 78, n. 80. That "satisfactory" to the offeree's lawyer should be construed as requiring his personal satisfaction as distinguished from what would satisfy a reasonable man, see supra, § 44 and Corcoran v. White, 117 Ill. 118, 7 N. E.

525, 57 Am. Rep. 858; but see Vought v. Williams, 120 N. Y. 253, 24 N. E. 195, 8 L. R. A. 591, 17 Am. St. Rep. 634; Andrews v. Calori, 38 Can. Supr. Ct. 588.

69 Putnam v. Grace, 161 Mass. 237, 37 N. E. 166.

70 Egger v. Nesbitt, 122 Mo. 677, 27 S. W. 385, 43 Am. St. Rep. 596.

71 Laney v. Ricardo, (Wis. 1919), 172 N. W. 141.

72 Howard v. Industrial School, 78 Me. 230, 3 Atl. 657.

place of payment is fatal to the existence of a contract.73 A reply altering in any way the method of payment or performance,74 or making new stipulations as to quality,75 or the title of property for sale 76 will invalidate an acceptance. These illustrations might easily be multiplied." Even the requirement of an acknowledgment has been held a fatal addition.78

§ 78. Conditions in an acceptance which do not qualify in legal effect the offer, do not impair the acceptance. Sometimes an acceptor from abundance of caution inserts a condition in his acceptance which merely expresses what

73 Gilbert v. Baxter, 71 Iowa, 327, 32 N. W. 364; Northwestern Iron Co. v. Meade, 21 Wis. 474, 94 Am. Dec. 557. See also Greenwalt v. Este, 40 Kans. 418, 19 Pac. 803; Robinson v. Weller, 81 Ga. 704, 8 S. E. 447; Sawyer v. Brossart, 67 Iowa, 678, 25 N. W. 876, 56 Am. Rep. 371; Rogers v. French, 122 Iowa, 18, 96 N. W. 767; Hall v. Jones, 164 N. C. 199, 80 S. E. 228; Cram v. Long, 154 Wis. 13, 142 N. W. 267.

74 Arthur v. Gordon, 37 Fed. 558; Wilkins Mfg. Co. v. Lumber Co., 94 Mich. 158, 53 N. W. 1045; DeJonge v. Hunt, 103 Mich. 94, 61 N. W. 341; United States Heater Co. v. Applebaum, 126 Mich. 296, 85 N. W. 743.

75 Young's Market Co. v. Pioneer Produce Co., 192 Fed. 822; Four Oil Co. v. United Oil Producers Co., 145 Cal. 623, 79 Pac. 366, 68 L. R. A. 226; Brophy v. Idaho Produce Co., 31 Mont. 279, 78 Pac. 493; Kirwan v. Byrne, 9 N. Y. Misc. 76, 29 N. Y. Supp. 287; Melchers v. Springs, 33 S. C. 279, 11 S. E. 788.

76 Jones v. Daniel, [1894] 2 Ch. 332; Batie v. Allison, 77 Iowa, 313, 42 N. W. 306.

77 See Travis v. Nederland L. Ins. Co., 104 Fed. 486, 43 C. C. A. 653; Pike County v. Spencer, 192 Fed. Rep. 11, 112 C. C. A. 433; Phoenix Iron & Steel Co. v. Wilkoff Co., 253 Fed. 165,

165 C. C. A. 65, 1 A. L. R. 1497; Cage v. Black, 97 Ark. 613, 134 S. W. 942; Strong & Trowbridge Co. v. Baars, 60 Fla. 253, 54 So. 92; Maclay v. Harvey, 90 Ill. 525; Anglo-American Provision Co. v. Prentiss, 157 Ill. 506, 513, 42 N. E. 157; Davis v. Fidelity Fire Ins. Co., 208 Ill. 375, 383, 70 N. E. 359; Wheaton Building, etc., Co. v. Boston, 204 Mass. 218, 90 N. E. 598; Bastian Bros. Co. v. Wemott-Howard Co., 113 Minn. 196, 129 N. W. 369; Atwood v. Rose, 32 Okl. 355, 122 Pac. 929.

78 In Poel v. Brunswick-Balke-Collender Co., 216 N. Y. 310, 110 N. E. 619, an acceptance which contained the addition that prompt acknowledgment must be made was held ineffectual. The court said (at p. 622): “In Hough v. Brown, 19 N. Y. 111, 114, it was held that a letter referring to a previous verbal proposition which stated the terms of the oral proposition according to the understanding of the writers and accepted them and added to the acceptance the words, 'You will acknowledge the acceptance of the above,' etc., was held not to constitute a contract, but merely a proposition for a contract. In his opinion in that case Judge Comstock, referring to the requirement that the acceptance should be acknowledged, said:

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