an acceptance, or other communication.56 Difficulties may arise where circumstances make it impracticable to notify the offeree of revocation. Thus, the offeree may have gone to a distance from the mails, or his address may be unknown. It is perhaps still open to question whether the law should cast the burden upon the offeror who has put forth an offer or should adopt a rule analogous to that adopted in case of public offers,57 and hold the offer revoked if such an attempt is made to communicate a revocation in the same way that the original offer was communicated. Presumably, however, the burden would be thrown upon the offeror, unless the offeree purposely prevented communication.

§ 57. Indirect communication of revocation.

It is not yet perhaps fully settled whether an offer is revoked by knowledge on the part of an acceptor that the offeror is no longer willing to enter into such a contract as was proposed by his offer, when that knowledge comes not from the offeror himself or with his cognizance, but through other channels. It was held by the English Court of Appeal that knowledge on the part of an offeree that land which had been offered to him for sale had subsequently been sold to another, prevented him from making an effectual acceptance of the offer.58 This case has been followed in the United States; 59 but has also been severely criticised.60 Certainly there are

56 See infra, § 89.

See infra, § 59.

Dickinson v. Dodds, 2 Ch. D. 463. Comments on this case in Henthorn v. Fraser [1892] 2 Ch. 27, indicate that the English court regards the knowledge of the offeree as the vital circumstance.

"Coleman v. Applegarth, 68 Md. 21, 11 Atl. 284, 6 Am. St. Rep. 417; Watters v. Lincoln (S. Dak.), 135 N. W. 71; Frank v. Stratford-Handcock, 13 Wyo. 37, 77 Pac. 134, 67 L. R. A. 571, 110 Am. St. Rep. 963. But cp. Sherley v. Peehl, 84 Wis. 46, 54 N. W. 267. In this case an offer to discount a note was made to the holder

and later the maker failed. The holder knowing of the failure accepted the offer, and was allowed to enforce a contract against the offeror. Also Arentsen v. Moreland, 122 Wis. 167, 99 N. W. 790, 65 L. R. A. 973, where knowledge that a vendor had contracted to sell the timber on certain land did not preclude the vendee from taking an option to buy the land, with the timber, accepting the option and, on refusal of the vendor to convey the timber, recovering damages for its value.

60 Langdell, Summary of Contracts, § 181; Wald's Pollock, Contracts (3d. ed.), 32.

both theoretical and practical difficulties involved in any rule allowing an effective revocation to be made by any one but the offeror. In theory, as an offer must be made by an act of the offeror moving toward the offeree, and no statement by third persons is sufficient,61 so it would seem that an offer could only be withdrawn by a direct expression of volition on the part of the offeror to the person to whom he had previously made the offer. Though the expression is common especially in the earlier cases of "communication" or "notice" of revocation as if communication or notice were made of a revocation that had previously taken place, this use of language has descended from a time when mutual assent in contracts meant actual mutual assent, not that expressed by one party to the other. At the present day it is more accurate to say that communication is essential to the existence of revocation, indeed is the revocation. If so, it seems that the act of the offeror is as essential to withdraw his offer as to create it, and that the only way he can make his act effective is by communication from himself or his agent.62 From a practical standpoint, also, there is difficulty in deciding when knowledge received in a roundabout way through third persons indicates with sufficient clearness that the offeror is no longer disposed to keep his offer good. Must the offeree give credit at his peril to haphazard information, or what degree of certainty or probability must exist in order to make the words of an outsider effectual to revoke the offer? Nevertheless in view of the uniformity of the few decisions directly in point, and of the manifest lack of equity in an attempt to enforce a contract which the acceptor knew at the time of his acceptance was contrary to the wishes of the offeror, it is likely that the English case on the point will be followed.

§ 58. Revocation of offer contemplating a series of perform

ances.

Most offers contemplate a single acceptance by the offeree by an indivisible act or by an indivisible promise or set of promises. It is possible, however, to make a divisible offer requesting a series of acts or promises to be given from time 61 See supra, § 23. 62 See supra, § 23.

to time, and agreeing in return to give a series of performances each of which is to be set off against a corresponding act or promise of the offeree. If an offer is of this divisible character it may be revoked not only before any acceptance but also as to any portion of the offer still unaccepted even after acceptance of some of the series of transactions proposed by the offer.63 It is often a difficult question of construction whether an offer contemplates a series of contracts, as thus suggested or requests a single immediate promise to perform the whole series of acts. If the latter construction is the true one an acceptance creates an immediate bilateral contract which binds both parties irrevocably to perform all the acts.64

59. Revocation of general offer.

The requirement that a revocation must be received in order to be effectual creates difficulty where an offer has been extended to a large and indefinite class of persons, as an offer

In Offord v. Davies, 12 C. B. (N. S.) 748, an offer was made to guarantee such of B's bills of exchange as the plaintiff might discount within twelve months to the extent of £600. Some discounts took place, but subsequently, within the year, the offer was revoked. The court held the offeror not bound by discounts made after the revocation. The same result was reached in Grob v. Gross, 83 N. J. L. 430, 84 Atl. 1064, where the promise was to guarantee payment for goods sold to another to any amount up to $500. In Great Northern Ry. Co. . Witham, L. R. 9 C. P. 16, there was an offer to supply the railway company with such quantities of certain specified goods as it might order, from time to time, at certain fixed prices. It was held that the defendant was bound to furnish goods which had been ordered by the railway in conformity with the offer, but Brett, J., said: "I agree that this judgment does not decide the question whether the defendant might have absolved himself from further performance of the con

tract by giving notice." See also Buick Motor Co. v. Thompson, 138 Ga. 252, 75 S. E. 354, 356; Picker v. Fitzelle, 60 N. Y. App. D. 451, 69 N. Y. S. 902; White v. Allen-Kingston &c. Co., 69 N. Y. Misc. 627, 126 N. Y. Supp. 150; Butchers' Advocate Co. v. Berkof, 94 N. Y. Misc. 299, 158 N. Y. S. 160 (cf. North Side News Co. v. Cypres, 75 N. Y. Misc. 129, 132 N. Y. S. 806; Post v. Frank, 75 N. Y. Misc. 130, 132 N. Y. S. 807); American Steel & Wire Co. v. Copeland, 159 N. C. 556, 75 S. E. 1002.

64 American Publishing Co. v. Walker, 87 Mo. App. 503. In this case an offer for certain publishing matter weekly, for the term of one year, at a fixed price per week, was held to create a single contract for the year incapable of revocation after acceptance. Similar cases are Imperial Curtain Co. v. Strauss, 135 N. Y. S. 577; Post v. Frank, 132 N. Y. Supp. 807, 75 N. Y. Misc. 130. See also cases of divisible contracts, infra, §§ 861, et seq.

of reward issued by advertisement to the public. In such a case it is obviously impossible to communicate a change of purpose to every one who may have seen the original offer. The only alternatives possible for the law are either to admit that such an offer is irrevocable as to any person who is not actually notified of the revocation, or to treat a reasonable effort to bring notice home to the public by publishing the revocation as fully, and so far as possible in the same way, as the original offer as an effectual revocation. The Supreme Court of the United States has chosen the latter alternative.65 But where the reward for the apprehension of a murderer was offered at the place where the shooting occurred and at a railroad station, an offer of a reward in different terms at another station did not constitute a revocation of the first offer. 66

60. Revocation of offers for unilateral contracts.

It seems impossible on theory sucessfully to question the power of one who offers to enter into a unilateral contract to withdraw his offer at any time until performance has been completed by the offeree, though obvious injustice may arise in such a case. For instance, if A offers one hundred dollars if B will complete a piece of work, and B sets about the work and nearly finishes it, it is a hardship upon B if while the work is still incomplete, A may revoke his offer. Yet any other result involves either a violation of recognized principles of contract, or the invention of new ones. To say that the beginning of work by B amounts to an assent binding both A and B to the performance and payment is to change the hypothesis that A offered, not to make a bilateral contract, but a unilateral one, and in effect to deny the right of an offeror to dictate the terms of his offer. Doubtless wherever possible, as matter of construction, a court would and should construe an offer as contemplating a bilateral rather than a unilatera contract; since in a bilateral contract both parties are pro tected from a period prior to the beginning of performanc

65 Shuey v. United States, 92 U. S. 73, 23 L. Ed. 697. See also Sullivan v. Phillips, 178 Ind. 164, 98 N. E. 868.

Hoggard v. Dickerson, 180 Mo. App. 70, 165 S. W. 1135.

on either side." But the case supposed is one where the offer is so clearly for the formation of a unilateral contract, that no other reasonable construction is possible than that the offerer demands as an exchange for his promise, not a promise but a completed act. After the offeree has begun to perform under such an offer he may unquestionably stop performance halfway if he concludes that after all he does not care to enter into the contract, and if the offeror also may not revoke at that time he is bound by a promise for which he has not received, and may never receive, the consideration requested, since the whole transaction is still optional with the offeree.

The suggestion has been made to avoid the hardship of denying relief to the offeree that if the consideration requested in an offer of a unilateral contract, will necessarily take time for its performance, the offer should be regarded as containing by implication a subordinate offer to hold the main offer open for a reasonable time in consideration of the beginning of performance of the offeree.68 This analysis finds some support in the English cases which hold that a collateral contract is formed by attending an auction sale,69 but is open to the criticism made of those cases; namely, that the necessary assumptions of fact are artificial. Moreover, if the doctrine is adopted, there seems no reason why the principle should not cover other cases. If beginning performance of an act requested, indicates assent to and constitutes the consideration for a contract to hold the offer open, it would seem that making preparation and taking trouble and expense preliminary to any requested performance would likewise create a similar contract, yet the contention could certainly not be maintained as a general principle.70 Indeed, if a col

See Lennox v. Murphy, 171 Mass. 370, 50 N. E. 644; Lascelles v. Clark, 204 Mass. 362, 90 N. E. 875; Post v. Frank, 132 N. Y. Supp. 807, 75 N. Y. Misc. 130; Senter v. Senter, 87 Ohio, 377, 101 N. E. 272. So a promise to convey the plaintiff a piece of land if he married the promisor's daughter, and was "good and kind" to her was interpreted as entitling the promisee on his marriage to a deed, which should

contain a condition subsequent of goodness and kindness. Winslow v. White, 163 N. E. 29, 79 S. E. 258.

68 See an article in 27 Harv. L. Rev. 644, by Professor D. O. McGovney. 69 See supra, § 30.

70 In Stensgaard v. Smith, 43 Minn. 11, 44 N. W. 669, 19 Am. St. Rep. 205, it appeared that the defendant had promised the plaintiff the exclusive agency for three months of certain