Page images
PDF
EPUB

would be implied in fact or in law from the offer. As such a condition does not interfere with the expression of assent to all the terms of the offer, a binding contract is formed.79 Thus an offer to sell land may be accepted subject to the condition that the title is good. For unless the offer expressly specify that the offeree must take his chance as to the validity of the title, the meaning of the offer is that a good title will be conveyed.80 So where the defendant by letter offered to sell land, a reply, which requested the defendant to send the abstract and stated that the plaintiff would close the matter, was a valid acceptance.81 A further distinction has been suggested in regard to added terms in an acceptance. It has been held that if an acceptance in positive terms is made, the addition

"This language, in such a connection, can mean nothing else than that the defendant was expected to signify his assent to the terms thus set forth. That being done, the agreement would be complete, and it would also be in writing, so as to leave no room for future controversy. This, we are satisfied, is the true interpretation of the letter; and it follows that no contract was made consisting merely of the proposal at Buffalo, and the letter of the two firms referring to that proposal.”

"In Barrow Steamship Co. v. Mexican Central Railway Co., 134 N. Y. 15, 22, 31 N. E. 261, 263, 17 L. R. A. 359, the parties negotiated by letter for the transportation by the plaintiff of a party of immigrants from New York to Rome. In answer to a letter from the defendant which stated that there would probably be 250 or more in the party the plaintiff wrote, confirming the understanding between the parties that the defendant would ship not less than 250. The letter closed with the words, 'Please confirm this and oblige.' To this letter defendant replied that there was a probability that the party would exceed 250. The number furnished was 134, and in an action to recover for the breach of a contract to furnish 250 passengers it was held

that as 'no evidence of any definite understanding in respect to the number of pilgrims to constitute the party for transportation prior to that letter appears in the record, the statement in the letter must be treated as a proposition on the part of the plaintiff. And to give it the effect of a contract between the parties the acceptance or adoption of it by the defendant was essential."" See also Phoenix Iron & Steel Co. v. Wilkoff Co., 253 Fed. 165, 165 C. C. A. 65, 1 A. L. R. 1497.

79 Bennett v. Cummings, 73 Kan. 647, 85 Pac. 755; Cavender v. Waddingham, 5 Mo. App. 457; Grimsrud Shoe Co. v. Jackson, 22 S. Dak. 114, 115 N. W. 656; Curtis Land & Loan Co. v. Interior Land Co., 137 Wis. 341, 118 N. W. 853, 129 Am. St. 1068.

80 Hussey v. Horne-Payne, 8 Ch. D. 670, 4 App. Cas. 311; Morse v. Tillotson etc., Co., 253 Fed. 340, 165 C. C. A. 122; 1 A. L. R. 1485; Ryder v. Johnson, 153 Ala. 482, 45 So. 181; cf. Fort Edward v. Fish, 86 Hun, 548, 33 N. Y. S. 784, 156 N. Y. 363, 50 N. E. 973.

81 Bushmeyer v. McGarry, 112 Ark. 373, 166 S. W. 168; cf. James v. Darby, 100 Fed. 224, 40 C. C. A. 341; Pacific Rolling Mill Co. v. Riverside &c. R. Co., 90 Cal. 627, 27 Pac. 525.

of a demand for some performance to which the acceptor would not be entitled under a proper construction of the agreement will not invalidate the acceptance and prevent the formation of a contract. It may be asked if one who is offered a contract of employment can reply "I accept your offer and demand that my work shall not exceed two hours a day;" and thereafter effectively assert that there is a binding contract. In other words, can an acceptance be valid if it is accompanied by a repudiation of one or more of the legal consequences of the supposed contract? It seems clear that if before a contract is finally concluded the parties become aware that they are insisting on different constructions of their duties thereunder no contract will arise.83

§ 79. Added terms requested as a favor do not invalidate an acceptance.

Frequently an offeree while making a positive acceptance of the offer, adds as a request or suggestion that some addition or modification be made. So long as it is clear that the meaning of the acceptance is positively and unequivocally to accept the offer whether such request is granted or not, a contract is formed.84 So an inquiry as to the meaning of an offer, or

82 Horgan v. Russell, 24 N. D. 490, 140 N. W. 99, 43 L. R. A. (N. S.) 1150. In this case the plaintiff to a written acceptance of an option added that an abstract and deed of the land was "hereby demanded." The court admitted that he had no right to an abstract but said: "Such demand pertained, not to the acceptance, but to performance after acceptance. In order for this demand to invalidate the acceptance, it must amount to a qualification or condition imposed as a part of the acceptance itself. In other words, it must amount in this case to a qualified acceptance to the effect that optionees 'do hereby signify their intention to take the land described therein, provided or upon condition that optioner, in addition to a deed, furnish an abstract of title to said

premises.' Such is not the construction to be placed upon the acceptance, nor was it the intent of the optionees to make the acceptance conditional upon the furnishing of an abstract. On the contrary the acceptance was specific, certain, and unconditional. The demand for an abstract was made in reference to what should happen during the thirty-day period after the option became, as it did, a contract of sale, and as to performance during said period of said executory contract."

83 Groschke v. Armour Fertilizer Works, 245 Fed. 513, 158 C. C. A. 9. 84 Simpson v. Hughes, 66 L. J. Ch. (N. S.) 143, 334; Netherwood v. Raymer, 253 Fed. 515; Bushmeyer v. McGarry, 112 Ark. 373, 166 S. W. 168; Williams v. Moore, 117 Ark. 535, 175 S. W. 1198; Culton v. Gilchrist, 92

request for an explanation will not invalidate a positive acceptance.85

§ 80. An offer can be accepted only by the person or persons to whom it is made.

One of the necessary terms of any proposed contract is the person with whom the contract is to be made. Accordingly an offer made to one person cannot be accepted by another, even though the offeree purports to assign it.86 Nor does it make any difference whether it was important for the offeror to contract with one person rather than another.87 Whether this is true of an offer which has been made irrevocable by consideration, or a seal, and which is therefore a contract,88 is hereafter considered.89 Even a revocable offer, however, may be made not only to the public generally,90 but it may be made to a specified person or his assigns, and in such a case

Iowa, 718, 61 N. W. 384; Knox v. McMurray, 159 Ia. 171, 140 N. W. 652, 657; Brown v. Cairns, 63 Kans. 693, 66 Pac. 1033; Phillips v. Moor, 71 Me. 78; Stotesburg v. Massengale, 16 Mo. App. 221; American Woolen Co. v. Moskowitz, 159 N. Y. App. Div. 382, 144 N. Y. Supp. 532; Turner v. McCormick, 56 W. Va. 161, 49 S. E. 28, 67 L. R. A. 853; Curtis Land &c. Co. v. Interior Land Co., 137 Wis. 341, 118 N. W. 853, 129 Am. St. Rep. 1068.

85 Simpson v. Hughes, 66 L. J. Ch. (N. S.) 143, 334; Neville v. Merchants', etc., Ins. Co., 17 Oh. 192.

Boulton v. Jones, 2 H. & N. 564; Boston Ice Co. v. Potter, 123 Mass. 28 (25 Am. Rep. 9), the court said on page 30-"A party has a right to select and determine with whom he will contract, and cannot have another person thrust upon him without his consent. It may be of importance to him who performs the contract, as when he contracts with another to paint a picture, or write a book, or furnish articles of a particular kind, or when he relies upon the character or qualities of an individual,

or has, in this case, reasons why he does not wish to deal with a particular party. In all these cases, as he may contract with whom he pleases, the sufficiency of his reasons for so doing cannot be inquired into." The same principle is applied in Wheeling Creek Gas, etc., Co. v. Elder, 170 Fed. 215, 221; Schoonover v. Osborne, 108 Ia. 453, 79 N. W. 263; Fifer v. Clearfield Coal Co., 103 Md. 1, 62 Atl. 1122; Brighton Packing Co. v. Butchers' Association, 211 Mass. 398, 97 N. E. 780; Bushnell v. Chamberlain, 44 Neb. 751, 62 N. W. 1114; Kelly Asphalt Block Co. v. Barber Paving Co., 211 N. Y. 68, 105 N. E. 88, L. R. A. 1915 C. 256; Friedlander v. New York, etc., Ins. Co., 38 N. Y. App. Div. 147, Rease v. Kittle, 56 W. Va. 269, 49 S. E. 150. See also Werlin v. Equitable Surety Co., 227 Mass. 157, 116 N. E. 484.

87 School Sisters v. Kusnitt, 125 Md. 323, 93 Atl. 928, and see cases cited in the preceding note.

88 See supra, § 61.
89 See infra, § 415.
90 See supra, § 32.

92

an assignee of the offeree, being within the terms of the offer, may accept it.91 Moreover, if after an offer is made to one person only, performance is tendered by another, though the offeror may refuse the tendered performance, yet if he does receive performance knowing that it is not tendered by or on behalf of the offeree, he will be liable. The tender of the performance is, in effect, a counter-offer, and receipt of the performance an acceptance of the counter-offer.93 Even if performance is received by the offeror under the supposition that it was rendered by the offeree, the offeror on learning the truth must surrender the performance if this is possible (or if the performance consisted of property which he has resold, he must pay over the proceeds of the resale) or he will in effect have accepted a counter offer.94 If, however, before notice of the facts such a situation has arisen that neither the performance nor any equivalent received for it can be returned the offeror is certainly not liable on any theory of contract and probably not liable quasi-contractually; 95 for the conduct of the seller

91 Wheeling Creek Gas, etc., Co., v. Elder, 170 Fed. 215; Watkins v. Robertson, 105 Va. 269, 54 S. E. 33, 5 L. R. A. 1194, 115 Am. St. Rep. 880; Tibbs v. Zirkle, 55 W. Va. 59, 46 S. E. 701, 104 Am. St. Rep. 977. See Rease v. Kittle, 56 W. Va. 269, 279, 49 S. E. 150.

92 Mitchell v. LaPage, Holt, N. P. 253; Barcus v. Dorries, 64 N. Y. App. D. 109, 71 N. Y. Supp. 695, and cases in this section, passim. Cases should be carefully distinguished where the performance is furnished or tendered by a third person merely as agent for the offeree. Unless the performance is personal in character this is permissible. Thus where goods are ordered by A of B, who thereupon directs C to furnish them, and C does so, charging the cost to B, who in turn charges A, this is neither a rejection nor an assignment of the offer but a fulfilment of it. Petroleum Products Distributing Co. v. Alton Tank Line, 165 Ia. 398, 146 N. W. 52.

93 Cincinnati Gas Co. v. Western Siemens-Lungren Co., 152 U. S. 200, 202, 38 L. Ed. 411, 14 S. Ct. 523; Barnes c. Shoemaker, 112 Ind. 512, 14 N. E. 367; Orcutt v. Nelson, 1 Gray, 536; Boston Ice Co. v. Potter, 123 Mass. 28, 30, 25 Am. Rep. 9. But in Deane v. Gray Bros. Paving Co., 109 Cal. 433, 42 Pac. 443, it was held that the mere fact that the defendant knew that a physician was treating a third person at the request of another, on the defendant's account, and was relying for compensation on the defendant, and that it made no objection, did not make it liable.

94 Burton Lumber Co. v. Wilder, 108 Ala. 669, 18 So. 552; Mudge v. Oliver, 1 Allen, 74. See also Randolph Iron Co. v. Elliott, 34 N. J. L. 184.

95 Boulton v. Jones, 2 H. & N. 564; Barnes v. Shoemaker, 112 Ind. 512, 14 N. E. 367; Boston Ice Co. v. Potter, 123 Mass. 28, 25 Am. Rep. 9; Dempsey v. Billinghurst, 7 So. Dak. 564, 64 N. W.

in failing to disclose his identity is wanting in the good faith
which the law generally requires of one who seeks to base
a claim on a benefit received without request.

§ 81. Acceptance in contracts by correspondence may be
completed by mailing an acceptance.

Frequently contracts are made between parties at a distance
and it is of vital importance to determine at what moment the
contract is complete. If the mailing of an acceptance com-
pletes the contract, what happens thereafter, whether the death
of either party, the receipt of a revocation or rejection, or a
telegraphic recalling of the acceptance, though occurring be-
fore the receipt of the acceptance, will be of no avail. Whereas
if a contract is not completed until the acceptance has been
received, in all the situations supposed no contract will arise.
It was early decided that the contract was complete upon
the mailing of the acceptance.96 The reason influencing the
court was evidently that at the time of mailing acceptance
there had been an overt manifestation of assent to the proposal.
The court failed to consider that since the proposed contract
was bilateral, as is almost invariably any contract made by
mail, the so-called acceptance must also have become effective
as a promise to the offeror in order to create a contract. The
result thus early reached, however, has definitely established
the law in England and in the United States 98 and in

1124. See also Concord Coal Co. v.
Ferrin, 71 N. H. 33, 36, 51 Atl. 283,
93 Am. St. 496.

*Adams v. Lindsell, 1 B. & Ald. 681.
* Dunlop v. Higgins, 1 H. L. C. 381;
Household Fire Ins. Co. v. Grant, 4
Ex. D. 216; Henthorn v. Fraser, [1892]
2 Ch. 27. In re London & Northern
Bank, [1900] 1 Ch. 220.

Tayloe v. Merchants' F. Ins. Co., 9 How. 390, 13 L. Ed. 187; Patrick v. Bowman, 149 U. S. 411, 37 L. Ed. 790, 13 S. Ct. 811, 866; Burton v. United States, 202 U. S. 344, 50 L. Ed. 1057, 26 S. Ct. 688; Winterport, etc., Co. . The Jasper, 1 Holmes, 99; Re Dodge, 9 Ben. 480; Darlington Iron Co. v.

Foote, 16 Fed. 646; Schultz v. Caledo-
nia Insurance Co., 77 Fed. 375; Sea
Insurance Co. v. Johnson, 105 Fed.
286, 291, 44 C. C. A. 477; Levisohn v.
Waganer, 76 Ala. 412; Linn v. McLean,
80 Ala. 360; Kempner v. Cohn, 47
Ark. 519, 1 S. W. 869, 58 Am. Rep. 775;
Porter v. Gossell, 112 Ark. 380, 166
S. W. 533; Mercer Elec. Mfg. Co. v.
Connecticut Elec. Mfg. Co., 87 Conn.
691, 89 Atl. 909; Levy v. Cohen, 4 Ga.
1; Bryant v. Booze, 55 Ga. 438; Haas
v. Myers, 111 Ill. 421, 53 Am. Rep. 634;
Chytraus v. Smith, 141 Ill. 231, 257,
30 N. E. 450; Kentucky Mutual Ins.
Co. v. Jenks, 5 Ind. 96; Moore v. Pier-
son, 6 Iowa, 279, 71 Am. Dec. 409;

[ocr errors]
« ՆախորդըՇարունակել »