should not create contracts if the requisites for the formation of a contract already enumerated exists. 19 Even where one party makes it clear to the other that he is unwilling to enter into a contract, the law may nevertheless impose one upon him where his conduct would be tortious except upon the assumption that he assented to an offer.20 of making a contract, but merely as a boast, then the verdict should be for defendant. This went to the limit in defendant's favor and perhaps stated the law too broadly, as we doubt about the unexpressed intention of a person offering a reward not to be bound by it being a defence against one who honestly acted upon it." 19 Pollock suggests the case of an invitation to dinner which has been accepted [8th ed. p. 4, n. (c),] and suggests that there is no contract. This would ordinarily be true but the reason is because the promise of the guest to attend the dinner is not given or asked for as the price of the host's promise. Though in the popular meaning of the word the acceptance is at the request of the host, in the legal meaning of the word request, it is not. See infra, § 112. In Bolton v. Madden, L. R. 9 Q. B. 55, the plaintiff and defendant were both subscribers to a charity, the objects of which were elected by the subscribers, who had votes proportioned in num ber to the amount of their subscriptions. The plaintiff and defendant agreed that if the plaintiff would give 28 votes for an object of the charity the defendant favored, the defendant would, at the next election, give 28 votes for such charity as the plaintiff should then favor. This was held a binding contract. The agreement cannot, it is true, be called strictly a social engagement, but the decision seems to indicate the possibility of undertakings being enforced which are not business contracts. 20 See infra, §§ 1795, 1856. Such cases as this where there is no real expression of mutual assent perhaps may be classed as quasi-contracts, but obligations of the sort referred to are unlike most quasi-contracts since they are not necessarily merely to pay money. Moreover, the extent of the liability is measured by the terms of an offer, not by the benefit received by the defendant. CHAPTER III MAKING OF OFFERS Mutual assent must be expressed. Assent may be expressed by acts... Mutual assent is expressed ordinarily by an offer and an acceptance. Requirements of a promise.. An offer is a promise... Expression of intention is not an offer. An offer distinguished from preliminary negotiations. Agreements preliminary to written contracts.. Formation of contracts at auction.... Contracts preliminary to auction sales. Tenders... General offers.. Obligations imposed by law without assent distinguished. An offer must be communicated; rewards. . . . 22 .22a 23 24 25 26 27 28 29 30 31 32 .32a 33 The whole consideration must be given after knowledge of the offer. ..338 34 Negligent appearance of assent may bind the parties though the actual offer An offer when accepted must be capable of creating a definite obligation. 37 38 Offers and agreements of service indefinite as to time. 39 Offers and agreements defining incompletely the time of performance. 40 41 Offers and agreements indefinite as to work or property to be given. 42 43 44 46 A promise is not too indefinite if it can be made certain by reference to outside matters..... 47 48 A contract is enforceable though subsidiary promises are too indefinite. § 22. Mutual assent must be expressed. 49 It is customarily said that mutual assent is essential to the formation of simple contracts, but it should further be stated that the mutual assent must be expressed by one party to the other, and except as so expressed is unimportant. In some branches of the law, especially in the criminal law, a person's secret intent is important, but in the formation of contracts it was long ago settled that secret intent was immaterial; only overt acts being considered in the determination of such mutual assent as that branch of the law requires.1 During the first half of the nineteenth century there are many expressions which seem to indicate the contrary, but that the fundamental basis of contract in the common law is reliance on an outward act (that is a promise) is shown by the early development of the law of consideration as compared with that of mutual assent. Courts of equity indeed have not shown the same indifference to the undisclosed intent of the parties, as have courts of law; but equity makes its views effective not by denying or altering the rules of law governing the formation of contracts but by subsequently reforming or rescinding legally valid contracts in cases coming within its own rules. Not only must assent to a. contract be expressed by overt acts, but promises in contracts must be made by an expression of agreement moving from the promisor to the promisee. The assent of the promisee to a unilateral contract may be indicated by an act requested by the promisor, but of which he has no knowledge, and is not likely to acquire knowledge unless he takes steps to inform himself; 2 but a promise necessarily implies either communication from the promisor to the promisee, or at least some action which will normally indicate to the promisee the intent of the promisor. "It is trite learning that the thought of man is not triable, for the devil himself knows not the thought of man." Brian in Y. B., 17 Edw. IV, 1. In O'Donnell v. Clinton, 145 Mass. 461, 463, 14 N. E. 747, the court said: "Intention is immaterial till it manifests itself in act. If a man intends to buy, and says so to the intended seller, and he intends to sell, and says so to the intended buyer, there is a contract of sale; and so there would be if neither had the intention. If there is a contract of sale, and the seller intends to appropriate a particular chattel in fulfilment of it, and the buyer intends to accept, and accepts, the property vests § 22a. Assent may be expressed by acts. 4 Though assent must be expressed in order to be legally effective, it need not be expressed in words. In the early law of assumpsit stress was laid on the necessity of a promise in terms, but the modern law rightly construes both acts and words as having the meaning which a reasonable person present would put upon them in view of the surrounding circumstances. Even where words are used "a contract includes not only what the parties said, but also what is necessarily to be implied from what they said." And it may be said broadly that any conduct of one party, from which the other may reasonably draw the inference of a promise, is effective in law as such. Thus if A steps into his grocer's, and takes a package of goods from the counter, hands it to a clerk, and walks out, his conduct may mean, "if you will send that package to my house I will pay for it;" and the subsequent act of the clerk in sending the package, though no words have been spoken, amounts to an acceptance. § 23. Mutual assent is expressed ordinarily by an offer and an acceptance. As simple contracts can be formed only by an expression of assent of the parties to the terms of the promise and to the consideration for it, it is ordinarily necessary for one of the parties to propose to the other the promise which he will make for a certain consideration, or to state the consideration which he will give for a certain promise; that is, a proposal or offer is necessary. An acceptance of the proposal or offer completes the expression of assent. It is conceivable that the requisite assent may be expressed without an offer or acceptance. Thus the case has been supposed that a third person suggests the terms of a contract between A and B in the presence of both of them and they both say simultaneously "we agree.' There seems no reason to doubt that a contract would be formed. 5 Lea Bridge District Gas Co. v. Malvern [1917], 1 K. B. 803; O'Donnell v. Clinton, 145 Mass. 461, 463, 14 N. E. 747; Phillip v. Gallant, 62 N. Y. 256; Stroock Plush Co. v. Talcott, 150 N. Y. App. D. 343, 134 N. Y. S. 1052, and see infra, §§ 90-90e. 4 Grossman v. Schenker, 206 N. Y. 466, 100 N. E. 39. 5 Wald's Pollock on Contracts (3d ed.), 6. Such cases must, however, be rare. In other cases which have been put there seems no difficulty in finding an offer and an acceptance. Thus where both parties sign a written agreement, the first signer necessarily proposes that the writing shall represent the bargain between the parties. In bargains between an indefinite number of persons who one after another accept certain rules or terms, the first person who does this is necessarily making an offer to others to join in the transaction on the same terms. Each subsequent person who enters into the transaction is both an acceptor and an offeror,-an acceptor as to those who have previously entered into the arrangement, an offeror as to those who may do so in the future. It is not necessary to insist that assent must always be expressed by means of offer and acceptance; but cases where it is not thus expressed are so rare that for the purposes of general discussion they may be disregarded; if they arise they can easily be reduced to fundamental principles. It must, however, be borne in mind that two expressions of willingness to make the same bargain do not constitute a contract unless one is made with reference to the other. Thusif C should say to A "Are you willing to sell your horse to B for $100?" and A should reply "Yes," and C should thereupon go to B and say "Are you willing to buy A's horse for $100?" and B should say "Yes;" no contract would be formed between A and B. They have expressed their assent to the same proposition, but neither has made a promise to the other, and it is requisite that there should be assent to a promise from one party to the other. When both parties are present, In Potter v. Hollister, 45 N. J. Eq. 508, 513, 18 Atl. 204, the court said: "It is indispensable to the making of a contract that there shall be communication between two minds-there must be a proposal by one and an acceptance by the other-two minds must meet and mutually assent-but where the written communication is exclusively between the principal and his agent, and is simply intended by the principal as a delegation of power or instruction to his agent, and the prin cipal gives his agent no authority to deliver his letter to the other party, it is impossible to say, without an abuse of language, that the letter is evidence of a contract made by the principal with the other party." So in Jersey City v. Harrison, 72 N. J. L. 185, 189, 62 Atl. 765, the court said: "A proposition for a contract to be competent to be accepted, must be communicated to the party with whom the contract is proposed. It will not be sufficient that the latter acquire knowledge of it |