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offer, but also by implication that he will not assent to the terms of the original offer. An answer purporting to accept upon condition is not an acceptance but is in effect a counteroffer, because it states in substance that the offeree will contract on the terms of the original offer if some addition or subtraction is made from them, but implies that otherwise he will not contract. It is not true, however, that any communication from the offeree other than an unequivocal acceptance is necessarily a rejection. Thus an inquiry by the offeree in regard to the possibility of other terms is not a counter-offer either in the form of a conditional acceptance or otherwise, and does not reject the offer.10 Nor does a statement by the offeree that he will "delay coming to determination." " Nor does a request for a qualification of the offer coupled with an unqualified acceptance not dependent on the granting of the request. 12 Nor does mere silence of the offeree.13

§ 51a. Acceptance to take effect in the future.

A nice distinction may be taken here between (1) a socalled acceptance by which the acceptor agrees to become

* The suggestion in Acme Grain Co. . Wenaus, 36 Dom. L. Rep. 347, that a telegram purporting to "accept" a supposed offer cannot itself be an offer is unsound. It is immaterial that parties put an erroneous legal label on their acts.

"Acceptance upon terms varying from those offered is a rejection of the offer." Bank v. Hall, 101 U. S. 43, 50, 25 L. Ed. 822.

10 Stevenson v. McLean, 5 Q. B. D. 346. In this case in reply to an offer for iron at 40 shillings, the offeree replied "please wire whether you would accept forty for delivery over two months, or, if not, longest limit you would give." After receiving this reply the offeror sold his iron and dispatched a notification of the sale to the offeree. Before this notice was received, however, the offeree had dispatched an unconditional acceptance.

It was held that a contract was thereby created.

11 Mactier v. Frith, 6 Wend. 103, 21 Am. Dec. 262. Compare Howells v. Stroock, 50 N. Y. App. D. 344, 347, 63 N Y. Supp. 1074, where the court intimate that a suggestion in the reply of an offeree that he would "submit the defendants' offer to the mill" was "in the nature of a counter-proposition or offer." Undoubtedly the offer had lapsed in this case by failure to accept promptly, but the intimation that the reply amounted to a counteroffer and therefore rejection seems unwarranted.

12 Addinell's Case, L. R. 1 Eq. 225; Culton v. Gilchrist, 92 Ia. 718, 61 N. W. 384; Purrington v. Grimm, 83 Vt. 466, 76 Atl. 158.

13 Pennsylvania & Delaware Oil Co. v. Klipstein, 175 N. Y. S. 540.

immediately bound on a condition not named in the offer, and (2) an acceptance which adopts unequivocally the terms of the offer but states that it will not be effective until a certain contingency happens; or that it will become ineffective in a certain contingency. In the first case there is a counteroffer and rejection of the original offer; in the second case there is no counter-offer, since there is no assent to enter into an immediate bargain. There is, so to speak, an acceptance in escrow, which is not to take effect until the future. In the meantime, of course, neither party is bound and either may withdraw. Moreover, if the time at which the acceptance was to become effectual is unreasonably remote, the offer may lapse before the acceptance becomes effective. But if neither party withdraws and the delay is not unreasonable, a contract will arise when the contingency happens.14

§ 52. When rejection by mail takes effect.

When a rejection sent by mail takes effect is a question that does not seem to have been yet authoritatively decided. If such a rejection does not become effective until it reaches the offeror, a subsequent acceptance by telegraph will make a binding contract. And since an acceptance takes effect when mailed or dispatched by telegraph, if communication by such means is authorized,15 even an acceptance by mail sent after the rejection had been mailed but before it had reached the offeror would create a contract. The analogy of the law governing a revocation 16 may be urged in support

14 The case of Farmers' Handy Wagon Co. v. Newcomb, 192 Mich. 634, 159 N. W. 152, seems to afford an illustration of this. In an agreement for the purchase of a silo the buyer reserved till a certain day the right "to reconsider" the purchase. The court said that there was a "contract" subject to a right on the part of the buyer to withdraw within the time stated. It seems clear that there was at the outset no contract and that each party must have had the right to withdraw, since the seller could not be bound in

consideration of a promise by the buyer which was purely illusory until the time had passed within which reconsideration was possible. As the buyer did not reconsider before the day named, the court rightly held him liable.

15 See infra, §§ 81, 82. It was held in Waster v. Casein Co., 206 N. Y. 506, 100 N. E. 488, that repudiation by one party to a contract previously formed, also takes effect as a breach when dispatched.

16 See infra, § 56.

of an argument that the rejection amounts to nothing until received, but the practical injustice of allowing the offeree to hold the offeror bound by an acceptance unknown to the latter until after he has received the rejection and is justified in supposing the offer at an end makes it not unlikely that the analogy of acceptance by mail would be followed and the rejection held effective from the time when it was mailed, if communication by mail was authorized." Such expression of judicial opinion as there is, however, following the analogy of the law of revocation, regards the receipt and not the dispatching of the rejection as the effective moment. 18

It seems impossible to discuss the matter very satisfactorily on principle because of the two opposing analogies. As an original question the decisions of the courts that a contract becomes complete on the mailing of a letter of acceptance seems open to criticism;19 but that rule must be taken as established and it may therefore equally well be argued—

1. All answers by mail or telegram when that mode of communication is authorized, take effect when dispatched. 2. Any communication destroying or determining an offer takes effect only when received. On the first line of argument

17 This difficulty may perhaps be avoided by the doctrine of estoppel. See infra, § 98.

18 In James v. Darby, 100 Fed. Rep. 224, 229, 40 C. C. A. 341, the court said of a letter of rejection: "After [the offeror] received this letter [the offeree] would not have been allowed, if he had so desired, to have recalled it, and then accepted in unconditional terms... The receipt by [the offeror] of that letter rendered the option nugatory;" but the facts involved no question of the precise time when the rejection became effectual.

In Harris v. Scott, 67 N. H. 437, 439, 32 Atl. 770, the court said of the defendant who had made an offer by mail: "She made the public post her agent to receive from the plaintiff an unqualified acceptance of her offer, but not to receive a counter-proposal

or conditional acceptance." The ques-
tion the court was deciding in this case,
however, was that the counter-offer
was not effective as an offer until re-
ceived, not that letter might not oper-
ate as a rejection. It may seem odd to
suggest the possibility that a letter con-
taining a rejection of an offer, and also
a new offer might become effective as
to the rejection immediately, but as to
the offer not until communication was
complete; but if it is remembered that
a letter revoking one offer and ac-
cepting another unquestionably takes
effect at two different times there will
seem less reason for surprise. The ac-
ceptance and revocation, however,
though in the same letter are two dis-
tinct things whereas the counter-offer
is itself the rejection. See an article by
Dean Ashley in 12 Yale L. J. 419.
19 See infra, § 81.

rejection is analogous to an acceptance because coming from the offeree. On the second line of argument it is analogous to a revocation because destructive of the offer.

§ 53. Expiration of time stated in the offer.

As the offeror is at liberty to make no offer at all he is also at liberty to dictate whatever terms he sees fit if he chooses to make an offer. Among his requirements may be acceptence within a specified time, and if no acceptance is made within that time the offer necessarily expires.20 The limitation of time may be exactly fixed, or it may be fixed by words of somewhat indefinite meaning. Thus an offer may require telegraphic acceptance on receipt.21 An offer requiring "prompt wire acceptance" is not fulfilled by answering at 2:45 P. M. a telegraphic offer received at 11:30 A. M.,22 and a telegraphic offer with a requirement of "immediate" designation of the route for shipment, delivered early in the day was not accepted sufficiently early by a reply sent at night rates at 6:25 P. M. of the same day.23 A common requirement is an answer by return mail. This requirement must be complied with though the words would probably not be literally construed. An acceptance by any method of communication actually arriving as soon as return mail would reach the offeror would doubtless be held sufficient.24 And in a city where mails are very frequent it is probable that a prompt reply would be held sufficient though the reply did not go out in the next mail leaving the city after the delivery of the offer.25

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23 Van Camp Packing Co. v. Smith, 101 Md. 565, 61 Atl. 284.

24 Tinn v. Hoffman, 29 L. T. (N. S.) 271; Bernard v. Torrance, 5 G. & J. 383. So in Eliason v. Henshaw, 4 Wheat. 225, 4 L. Ed. 556, where the offer required an answer "by return of wagon" the court said an acceptance would be sufficient which "was not delayed beyond the time ordinarily employed by wagons."

25 Ortman v. Weaver, 11 Fed. Rep. 358, 362; Palmer v. Phoenix Mut. L. I. Co., 84 N. Y. 63.

A condition is imposed by the offer, making an answer by return mail essential, though the offeror merely requests such an answer, 26 and introduces the request with the word "please "27 or with "you will confer a favor." 28 Not infrequently an offeror who has imposed a limit of time in his offer does not care to insist upon it and by further negotiations may indicate a continued willingness to stand by the terms of his offer. Any such manifestation of continued willingness is in effect a new offer, which may be accepted and if accepted will ripen into a contract.29

§ 54. Expiration of a reasonable time.

If no time is fixed in the offer within which acceptance must be made, it is a rule of law that acceptance must be within a reasonable time. What amounts to a reasonable time, however, varies within wide limits. A reasonable time for the acceptance of an offer made on a commercial exchange is within a few seconds. A delay of some days might not be unreasonable in answering some offers of other kinds. A reasonable time for the acceptance of most offers made in conversation will not extend beyond the time of the conversation unless special words or circumstances indicate an intention on the part of the offeror that it shall do so.30 The question usually arises when the parties are at a distance from one another, and here only general rules can be laid down. The length of time which is reasonable must depend on all the circumstances of the case, but especially upon the nature of the proposed contract. If it involves the sale of property which is subject to rapid fluctuations in price, a reasonable time will

*Carr v. Duval, 14 Pet. 77, 82, 10 L. Ed. 361; Taylor v. Rennie, 35 Barb. 272.

"Howells v. Stroock, 50 N. Y. App. D. 344, 63 N. Y. Supp. 1074.

Maclay v. Harvey, 90 Ill. 525; Palmer v. Phoenix Mut. L. I. Co., 84 N. Y. 63.

"Where the vendors, after expiration of the time limit on an option to sell land, treated the contract as be

ing alive and continued negotiations, they waived their right to insist that the contract had expired by limitation. McCarty v. Helbling, 73 Or. 356, 144 P. 499. See further, infra, § 92. 30 The Swiss Code of Obligations provides (Art. 4): "When the offer has been made to a person present without fixing a time for acceptance, the offeror is freed if the acceptance is not made immediately."

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