of a contractual obligation with one imposed by law irrespective of contract, may be found in a recent English decision,69 where the defendants, who were newspaper proprietors, advertised that they would answer inquiries from readers who desired financial advice. The plaintiff, a reader of the paper, thereupon wrote requesting the name of a good stock broker. The defendants negligently, but honestly, gave the name of one who was not a member of the stock exchange, and who was an undischarged bankrupt. In consequence of this advice the plaintiff lost money. It was held that the defendants had contracted to use reasonable care in answering inquiries. That the defendants should be liable in such a case in an action of tort for negligence seems probable, but it is impossible to find the elements of a contract. The plaintiff was not asked to furnish consideration, and in fact gave none. The statement of the defendants that they would answer inquiries on financial subjects was obviously not made as an offer to contract.70

§ 33. An offer must be communicated; rewards.

In the nature of the case it is impossible for an offeree actually to assent to an offer unless he knows of its existence. A simple contract when not based on actual consent at least requires what the parties are justified in regarding as such. There can be obviously no real assent until the offer has been communicated; and unless an act done or language spoken by the offeree in ignorance of the offer, was of a character which a reasonable person in his position ought to have known

or misses connection, or delivers a passenger at his destination after the schedule time, unless the delay is caused by no fault of the carrier, the passenger has a right to recover compensation for his loss of time and actual expense." Coleman v. Railroad Co., 138 N. C. 351, 354, 50 S. E. 690. If it were true that the printed schedule was an offer, there would be no condition implied in the offer that delay caused by no fault of the carrier should be an excuse. Such conditions are not implied in real offers. The in

was calculated to deceive, there is nothing which the other party is justified in regarding as assent, and it may be shown that the act done, or language used, did not really mean assent. This seems clear upon principle, but in one class of cases, especially, there are a number of decisions which disregard the rule. Where an offer of reward has been published, one who performs the offer requested in ignorance of the existence of the offer, has been held entitled in some jurisdictions to recover the promised reward.72

Doubtless the reason for these decisions is the feeling of the court that the defendant has received the benefit for which he asked, and for which he expected to pay, and therefore that he should be required to pay. It is impossible, however, to find a contract in any proper sense of that word in such a case. If it is clear the offeror intended to pay for the service, it is equally certain that the person rendering the service performed it voluntarily and not in return for a promise to pay. If one person expects to buy, and the other to give, there can hardly be found mutual assent. These views are supported by the great weight of authority, and generally a plaintiff in the sort of case under discussion is not allowed to recover.73 The view that unless there is some estoppel

71 Richardson v. Rowntree [1894], A. C. 217; The Majestic, 166 U. S. 375, 41 L. Ed. 1039; Saunders v. Southern Ry. Co., 128 Fed. 15, 62 C. C. A. 523; Malone v. Boston & Worcester R. R., 12 Gray, 388, 74 Am. Dec. 598; Martin v. Central R. R., 121 N. Y. App. Div. 552, 106 N. Y. Supp. 226; Black v. Atlantic Coast Line R. Co., 82 S. C. 478, 64 S. E. 418. See also Robertson v. Rowell, 158 Mass. 94, 97, 32 N. E. 898, 35 Am. St. Rep. 466.

72 Williams v. Carwardine, 4 B. & Ad. 621; Gibbons v. Proctor, 64 L. T. (N. S.) 594; Eagle v. Smith, 4 Houst. 293; Dawkins v. Sappington, 26 Ind. 199; Sullivan v. Phillips, 178 Ind. 164, 98 N. E. 868; Everman v. Hyman, 26 Ind. App. 165, 28 N. E. 1022; Auditor v. Ballard, 9 Bush, 572, 15 Am. Rep. 728; Coffey v. Commonwealth, 18 Ky.

L. Rep. 646, 37 S. W. 575; Russell v. Stewart, 44 Vt. 170. See also Drummond v. United States, 35 Ct. Claims, 356. A distinction may be taken where the right to a reward is based upon a statute. It is of course possible for a statute to provide for a reward to one who does a certain act whether he did it in expectation of the reward or not. See Taft v. Hyatt, (Kans., 1919), 180 Pac. 213; Broadnax v. Ledbetter, 100 Tex. 375, 99 S. W. 1111, 9 L. R. A. (N. S.) 1057; Choice v. Dallas (Tex. Civ. App.), 210 S. W. 753.

73 Morrell v. Quarles, 35 Ala. 544, 550; Hewitt v. Anderson, 56 Cal. 476, 38 Am. Rep. 65; Wilson v. Stump, 103 Cal. 255, 37 Pac. 151; Williams v. West Chicago St. Ry. Co., 191 Ill. 610, 61 N. E. 456, 85 Am. St. Rep. 278; Taft v. Hyatt, (Kans., 1919), 180 Pac.

to deny communication, nothing can properly be called an offer which has not been communicated, is supported, moreover, not simply by the bulk of American cases on rewards which have been referred to above, but also by decisions which hold that an offer cannot be supplemented by a subsequent letter of the offeror which had been sent but not received by the acceptor at the time when he gave his acceptance.74

§ 33a. The whole consideration must be given after knowledge of the offer.

It is essential on principle also that the offeree shall know of the existence of the offer, not only before he has completely performed the consideration requested, but before he has performed any part of it; otherwise the consideration requested is not given as a whole in exchange for the offer.75 The contrary has been held in several cases 76 where the plaintiff was allowed to recover a reward offered for the apprehension of a criminal though he had not acquired knowledge of the reward until after part of the requested services had been rendered,

213; Ball v. Newton, 7 Cush. 599; Forsythe v. Murnane, 113 Minn. 181, 129 N. W. 134; Smith v. Vernon County, 188 Mo. 501, 87 N. W. 949, 70 L. R. A. 59; (Cf. Hoggard v. Dickerson, 180 Mo. App. 70, 165 S. W. 1135); Furman v. Parke, 21 N. J. L. 310; Mayor of Hoboken v. Bailey, 36 N. J. L. 490; Fitch v. Snedaker, 38 N. Y. 248, 97 Am. Dec. 791; Howland v. Lounds, 51 N. Y. 604, 10 Am. Rep. 654; Vitty v. Eley, 51 N. Y. App. D. 44, 64 N. Y. Supp. 397; Sheldon v. George, 132 N. Y. App. D. 470, 116 N. Y. S. 969; Rubenstein v. Frost, 116 N. Y. Supp. 681; Couch v. State, 14 N. Dak. 361, 103 N. W. 942; Stamper v. Temple, 6 Humph. 113, 44 Am. Dec. 296; Broadnax v. Ledbetter, 100 Tex. 375, 99 S. W. 1111, 9 L. R. A. (N. S.) 1057; Tobin v. McComb (Tex. Civ. App.), 156 S. W. 237; Choice v. Dallas (Tex. Civ. App.), 210 S. W. 753.

74 Tinn v. Hoffman, 29 L. T. (N. S.) 271, stated supra, § 23, n. 7; James

v. Marion Fruit Jar Co., 69 Mo. App. 207. See also Harris v. Scott, 67 N. H. 437, 32 Atl. 770, and supra, § 23. Cp. Mactier's Adm. v. Frith, 6 Wend. 103, 21 Am. Dec. 262. See also Cox v. Troy, 5 B. & Ald. 474, where it was held that a drawee who had written his acceptance upon the draft was entitled to cancel the acceptance prior to the redelivery of the draft to the holder and prior to any communication to him of the acceptance.

75 This was so held in Williams v. West Chicago Street Ry. Co., 191 Ill. 610, 61 N. E. 456, 85 Am. St. Rep. 278, where it was held that the plaintiff was not entitled to a reward because, among other reasons, the services were largely though not entirely rendered before the plaintiff knew of the reward. 76 Coffey v. Commonwealth, 18 Ky. L. Rep. 646, 37 S. W. 575; Smith v. Vernon County, 108 Mo. 501, 87 S. W. 949, 70 L. R. A. 59; Hoggard v. Dickerson, 180 Mo. App. 70, 165 S. W. 1135.

but knew of the offered reward and intended to claim it before the completion of the requested services. But a consideration of supposititious cases involving the same prin- ciple shows that such a result cannot be supported. If E makes R a Christmas present of $20 in ignorance of the fact that R has offered to give a set of books to any one who will give him $25, he surely cannot by giving the remaining $5 after Christmas, when he has learned of the offer, and intends to accept it, entitle himself to the reward.

It must be borne in mind, however, that the fact that the offeree has made preparation for the performance which is requested, will not debar him from accepting the offer later by doing the requested act. Thus if a reward is offered for the apprehension of a criminal and the plaintiff, before knowledge of the reward, has gone to great labor in detecting the criminal, and learning his whereabouts, and is about to apprehend him, he may entitle himself to the reward by making the actual apprehension after the offer comes to his knowledge.

§ 34. An offer by mail must be received.

It was laid down in the leading case of Adams v. Lindsell," that the offerors must be regarded "As making during every instant of the time their letter was travelling the same identical offer to the plaintiffs." And this statement has been often repeated. If it is to be taken literally, it would follow that a complete offer is made at the instant that a letter containing it is mailed. If this merely means that the offerer has then completed the only act or manifestation of assent he is called upon to make, no fault can be found with the statement; but if it is meant that the letter becomes an offer capable of ripening into a contract without reference to the offeree's knowledge of the existence of the offer, the statement is at variance with fundamental theories of contract. Yet the English court not only in cases of reward 78 but in other connections has gone to this extreme.79 The truth of the matter has been

771 B. & Ald. 681.

78 See supra, § 33, n. 72.

79 Taylor v. Jones, 1 C. P. D. 87 (C. A.) In this case a letter containing

an offer to buy goods was mailed in London to the plaintiff in Surrey. No letter was sent accepting the offer, but the goods requested were taken by a

expressed by Lindley, J.: "a letter is a continuing offer or order, or statement by the sender which takes effect in the place where the person to whom it is sent receives it."'80

§ 35. Negligent appearance of assent may bind the parties though the actual offer not communicated.

Throughout the formation of contracts it is to be observed that not assent, but what the other party is justified as regarding as assent, is essential. Accordingly if an offeree in ignorance of the terms of an offer so acts or expresses himself as to justify the other party in inferring assent, and this action or expression was of such a character that a reasonable man in the position of the offeree should have known it was calculated to deceive the offeror into the belief that his offer had been accepted, a contract will be formed in spite of the offeree's ignorance of the terms of the offer. The commonest illustration of this principle is where one who is ignorant of the language in which a document is written,81 or who is illiterate executes, under a mistake as to its contents, a writing proposed as a contract. He is bound, if he did not require the document to be read to him 82 and much more if the signer

servant of the plaintiff and delivered to the defendant in London. Action was brought in the Mayor's Court in London, the jurisdiction of which is confined to causes of action arising wholly within the City. It was conceded that this limitation of jurisdiction required both the offer and the acceptance to have been made in the City. The court upheld the jurisdiction, holding that the order was given when the letter containing it was posted. See also Reg. v. Holmes, 12 Q. B. D. 23; Holland v. Bennett [1902], 1 K. B. 867 (C. A.). Cp. Edmundson v. Render, [1905] 2 Ch. 320; Burton v. United States, 202 U. S. 344, 386, 50 L. Ed. 1057; Commonwealth Ins. Co. v. Knabe, 171 Mass. 265, 50 N. E. 516; Perry v. Mt. Hope Iron Co., 15 R. I. 380, 5 Atl. 632, 2 Am. St. Rep. 902. In the three cases last cited it was held that a contract was made in the place

from which an acceptance was dispatched, though the offer had been sent from another State. In the first of these cases it was held that where the making of such a contract was a crime on the part of the offeror, the place of the acceptance was the place where the crime was committed by the offeree.

80 Bennett v. Cosgriff, 38 L. T. Rep. (N. S.) 177. See also Harris v. Scott, 67 N. H. 437, 32 Atl. 770.

81 Constantine v. McDonald, 25 Ida. 342, 137 Pac. 531.

82 Stern v. Moneyweight Scale Co., 42 App. Dist. Col. 162; Shulman v. Moser, 284 Ill. 134, 119 N. E. 936; Robinson v. Glass, 94 Ind. 211; Roach v. Karr, 18 Kans. 529, 26 Am. Rep. 788; Leddy v. Barney, 139 Mass. 394, 2 N. E. 107; Morstad v. Atchison, &c. Ry. Co., 23 N. Mex. 663, 170 Pac. 886; Hallenbeck v. Dewitt, 2 Johns. 404;