conditional promise which on the condition being performed became absolute. This proposition, reduced to exact language, amounts to saying that the time-table is a proposal, or part of a proposal, addressed to all intending passengers and sufficiently accepted by tender of the fare at the station in time for the advertised train. Crompton, J. (a) did not accept this view, nor was it necessary to the actual decision: for the Court had only to say whether on the given facts the plaintiff could succeed in any form of action, and they were unanimously of opinion that there was a good cause of action in tort for a false representation. Harrison. In Warlow v. Harrison (b) a sale by auction was an- Warlow v. nounced as without reserve, the name of the owner not being disclosed. The lot was put up, but in fact bought in by the owner. The plaintiff, who was the highest real bidder, sued the auctioneer as on a contract to complete the sale as the owner's agent. The Court of Queen's Bench held that this was wrong; the Court of Exchequer Chamber affirmed the judgment on the pleadings as they stood, but thought the facts did show another cause of action. Watson and Martin, BB. and Byles, J. considered that the auctioneer contracted with the highest bona fide bidder that the sale should be without reserve. They said they could not distinguish the case from that of a reward offered by advertisement, or of a statement in a time-table, thus holding in effect (contrary to the general rule as to sales by auction) that where the sale is without reserve the contract is completed not by the acceptance of a bidding, but by the bidding itself, subject to the condition that no higher bona fide bidder appears. In other words, every bid is in such a case not a mere proposal but a conditional acceptance. Willes, J. and Bramwell, B. preferred to say that the auctioneer by his announcement warranted that he (a) The fuller report of his judgment is that in 5 E. & B. (b) 1 E. & E. 295, 28 L. J. Q. B. 18, in Ex. Ch. 1 E. & E. 309, 29 Doctrine subsequently doubted and not had authority to sell without reserve, and might be sued for a breach of such warranty. The result was that leave was given to the plaintiff to amend and proceed to a new trial, which however was not done (a). The opinions expressed by the judges, therefore, are not equivalent to the actual judgment of a Court of Error, and have been in fact regarded extended. with some doubt in a later case where the Court of Queen's Bench decided that at all events an auctioneer whose principal is disclosed by the conditions of sale does not contract personally that the sale shall be without reserve (b). Still more recently the same Court has held that when an auctioneer in good faith advertises a sale of certain goods, he does not by that advertisement alone enter into any contract or warranty with those who attend the sale that the goods shall be actually sold (c). In an analogous case of Spencer v. Harding (d) it was decided that a simple offer of stock in trade for sale by tender does not amount to a contract to sell to the person who makes the highest tender. Difficulties v. G. N. R. Warlow v. and ac The doctrine of these cases is capable, as we have seen, of Denton of being expressed in a manner conformable to the normal Co. and analysis of contract: but if it is to be fully accepted, Harrison there may be some difficulty in settling its extent. If a man on theory, advertises that he has goods to sell at a certain price, does of proposal he contract with any one who comes and offers to buy ceptance. those goods that until further notice communicated to the intending buyer he will sell them at the advertised price? (e). Again, does the manager of a theatre contract with every one who comes to the theatre and is ready to pay for a place that the piece announced shall be performed? or do directors or committee-men who summon a meeting contract with all who come that the meeting shall (a) The parties agreed to a stet processus; see note in the L. J. report. (b) Mainprice v. Westley, 6 B. & S. 420, 34 L. J. Q. B. 229. (c) Harris v. Nickerson, L, R. 8 Q. B. 286. (d) L. R. 5 C. P. 561. It may be worth while to remark that in each of these cases we have the unanimous decision of a strong Court. (e) See per Crompton, J. in Denton v. G. N. R. Co., supra. be held? In like manner it might be argued that a common carrier is liable in contract as well as in tort for refusing to carry goods. Indeed we might thus arrive at an extended notion of contract which would cover all the cases in which courts of equity have interfered, on grounds independent of contract, as was supposed, to compel persons to make good their representations (a), and would indeed go beyond them: for a representation not only of fact, but of mere intention, might be treated as a proposal, and as soon as anything was done on the faith of it there would be an acceptance and a complete contract. On some such principle it has been attempted in America to enforce the payment of voluntary subscriptions for charitable or public objects; but the fallacy has been exposed by a late decision of the Supreme Court of Massachusetts (b). arising Another matter for remark is the effect of notice of Difficulty revocation. Suppose the traveller had seen and read a from revonew and correct edition of the time-table in the booking cation of proposal. office immediately before he offered to take his ticket. This would clearly have been a revocation of the proposal of the company held out in the incorrect time-table, and on the present hypothesis no contract could arise. Similarly if on putting up a particular lot the auctioneer expressly retracted as to that lot the statement of the sale being without reserve, there could be no such contract with the highest bona fide bidder as supposed in Warlow v. Harrison. Thus the remedy ex contractu in this class of cases appears to be precarious. In practice, it is true, this matters little, for the party aggrieved may still have his remedy by suing in tort. He may so, no doubt; but the failure of the cause of action in contract goes to show that here we are at least near the extreme boundary of the region in which the notion of contract is applicable (c). (a) See Dav. Conv. 3, pt. 1, 646; per Lord Selborne, L. R. 6 H. L. at p. 360. (b) Cottage Street Church v. Kendall, 121 Mass. 528. (e) The Continental doctrine that the revocation must be so communi. cated as to amount to reasonable notice is of course inadmissible for our law: see note to Frost v. Knight, C Difficulty of fixing the sup tract. It will not have escaped the reader's notice that there is also a certain difficulty in determining what are the conposed con- tents and consideration of the contract supposed to be made. In the case of the time-table, for example, it is not sufficient to say that the statements of the table are a term in the company's ordinary contract to carry the passenger. That may well be true after he has taken his ticket. But here we have a contract said to be concluded by the mere demand of a ticket and tender of the fare, which, therefore, cannot be the ordinary contract to carry. So in the case of the auction we have a contract alleged to be complete not on the acceptance but on the making of a bid. The anomalous character of these contracts may further be illustrated by considering whether it would be possible to maintain a remedy ex contractu in the case of a merely capricious refusal to issue tickets or hold the sale, as the case might be. On the whole, we cannot help thinking that some of the opinions and dicta in this class of cases, if not the decisions themselves, have to some extent overstepped the true principles of contract. The later cases of Spencer v. Harding and Harris v. Nickerson (a) make it pretty clear, however, that these refinements are not likely to be extended. Must there be a real acceptance? Another difficulty (though for English lawyers it should not be a serious one) is raised by the suggestion that in these cases the first offer or announcement is not a mere Theory of proposal, but constitutes at once a kind of anomalous floating obligation. floating contract with the unascertained person, if any, who shall fulfil the prescribed condition. A vinculum iuris with one end loose is on principle an inadmissible conception, to say nothing of the inconvenience which would come from treating the offer as an irrevocable promise. Savigny quite justly held that on this theory the right of action could not be supported; but he strangely missed L. R. 5 Ex. at p. 337, and p. 23, see s. c. in Ex. Ch. L. R. 7 Ex. at p. 117. (a) P. 16, above. the true explanation (a). To a certain extent, however, this notion of a floating obligation is countenanced by the language of the judges in the cases above discussed; and it also receives some apparent support from the much earlier case of Williams v. Carwardine (b). There a reward had been offered by the defendant for information which should lead to the discovery of a murder. A statement which had that effect was made by the plaintiff, but not to the defendant, nor with a view to obtaining the reward, nor, for aught that appears, with any knowledge that a reward had been offered. The Court held, nevertheless, that the plaintiff had a good cause of action, because the motive with which the information was given was immaterial: on which it must be observed that the question is not of motive but of intention. The decision. sets up a contract without any animus contrahendi. If it be now law (which may be doubted), it goes to show that in this class of cases there may be an acceptance constituting a contract without any communication of the proposal to the acceptor, or of the acceptance to the proposer. But the statement of Parke, J. that "there was a contract with any person who performed the condition mentioned in the advertisement," is rather ambiguous; it savours of the notion that there is an inchoate or unascertained obligation from the first publishing of the offer. And if such were indeed the ratio decidendi, we need not hesitate to say that at the present day it cannot be maintained. The modern cases not already cited have turned only on the question whether the party claiming the reward had in fact performed the required condition according to the terms of the advertisement (c). The Supreme Court of the United States held a few Revocayears ago that a general proposal made by public announce (a) Obl. 2, 90. It is the more strange inasmuch as within a couple of pages he does give the true analysis for the not dissimilar case of a sale by auction. (b) 4 B. & Ad. 621. (c) References were given in the former editions of this work (p. 175, 2nd ed.). tion of |