pleted. Sometimes a plaintiff has expended either time or money on the strength of the offer, and it is manifestly unjust to deny him recovery. One writer insists that there is no injustice; that the parties should have made a bilateral contract if they chose to be bound." But this is a lame tale to tell a plaintiff. Where the offeror is unjustly enriched, the plaintiff should, to that extent, recover upon quasi-contract. But, the efforts of the plaintiff are not always accepted by the offeror. The common law courts solve the difficulty by finding, or by creating, a consideration. Sometimes, the courts construe an offer as continuing and every act of the plaintiff as an acceptance to that extent. In this way, a plaintiff can recover for whatever was done before revocation. In the instant case, did every subscription obtained before the change in rules make a binding contract as to that? Such a construction is not plausible. This was not an offer for an agency to collect subscriptions, but a contest for a prize; the act called for is reasonably construed as only a single act. Other courts imply in the offer a request to incur expense or expend effort and for this at least the plaintiff could recover. It is in the field of charitable subscriptions' particularly that the doctrine of consideration is thus strained. Frank jurists urge in this field abrogation of the necessity of consideration. A request for services might have been implied in the case under discussion had the contest been entirely closed while the plaintiff was still working. Where the expense is incurred in the sole hope and chance of meeting the requirements of an offer, however, there can be no recovery therefor. The plaintiff took her chance and must suffer her loss.

8

9

It is the policy of courts in certain other cases to imply a promise not to revoke the offer before a reasonable time has elapsed.io But, it is merely another fiction to say that when one has begun to act upon an offer this furnishes the necessary consideration to make such promise binding. For, the beginning is made with no intent of thereby furnishing consideration for keeping the offer open, but rather of

"Wald's Pollock on Contracts, p. 34, n. 39, for an extended note; I Williston on Contracts 100; 23 Har. L. Rev. 159, 161; I. Maurice Wormser, "The True Conception of Unilateral Contracts," 26 Yale L. J. 136.

Gibson, C. J., in Clark v. Russell, 3 Watts (Pa.) 213 (1834); Ashley on Contracts, 33; Langdell on Contracts, 314.

"Rafolovitz v. American Tobacco Co., 73 Hun (N. Y.) 87 (1893). The same is generally held in agreements in which one party promises to sell as much as the other party may "choose to order," or "want." Bailey v. Austrian, 19 Minn. 535 (1873).

Wachtell v. Journal Co., 190 Ia. 1293 (1920); Keuka College v. Ray, 167 N. Y. 96 (1901); Roberts v. Cobb, 103 N. Y. 600 (1886). I Parsons on Contracts (8th ed.), 453, n. 7. The court refused to imply such a request in Presbyterian Church v. Cooper, 112 N.Y. 517 (1889).

Ashley, "The Doctrine of Consideration," 26 Har. L. Rev. 429. "Wachtell v. Journal Co., supra, n. 7.

101 Page on Contracts 194-195; suggested as a solution for the Wachtell Case, supra, in a note on that case in 1 Wis. L. R. 59. Also urged by D. O. McGovney, "Irrevocable Offers," 27 Har. L. Rev. 644. In modern Roman Law there is the implied promise to keep an offer open with every offer, but the doctrine of consideration is foreign to that system of law. The suggested solution is discountenanced. See Pollock, Principles of Contract (9th ed.), 27.

doing a series of acts the totality of which will satisfy the offer. Such an hypothesis is less plausible than the others. The court, finally, may invoke the principle of estoppel" and hold that when one has acted upon the offer the offeror is thereafter estopped to deny that the offer was in force throughout. Neither of these latter theories is applicable to the case under discussion where the offer, by its terms, expressly reserves the right to change.

The court will sometimes construe the offer as calling for a promise, 12 and in fact, the contract is so construed wherever possible. When one begins the act of acceptance he thereby impliedly promises to use his best efforts to do the act called for. From that moment the contract is bilateral and binding. Any attempted subsequent change in the offer is ineffectual. From what moment? How much necessarily must be done before the court will invoke this theory? Is the collection of one subscription sufficient to make a bilateral contract? It would seem that if the purpose be to effect justice, a promise would be implied only when something substantial is done. Generally, it is left to the jury to find such a promise and where the equities are strong the ingenuity of the jury is proportionately strengthened. Query, however, after the plaintiff had done sufficient to justify an implied promise, would her refusal to go on to the end of the contest expose her to an action for damages? A bilateral contract once formed should react to the benefit of both. Yet no court would be likely to say that the newspaper company in the instant case had a right of action. It may not be impossible to construe the acts of the present plaintiff as sufficient to form a bilateral contract, but even this interpretation would not avail her, for, she did not perform that term which required payments after a certain time to be by certified checks. Nor can she recover on the theory of a bilateral contract at all unless she call on the magic of the Wilshire case13 in which case it was held that though the agreement was initially unilateral, yet as soon as the plaintiff acted upon it, it became, somehow, bilateral. The reasoning is obviously not logical.

The equities of the plaintiff are strong, and the court might have resorted to any of the above stated expedients to find a contract. But the court without explanation assumed the existence of some sort of a contract obligation.

There

However, even had the court resorted to one of these means it is difficult to see how the plaintiff could be allowed to recover. was no unilateral obligation in fact incurred, nor could any reasonably be implied. There might have been a bilateral obligation implied, though this would not avail the plaintiff who did not perform

"Consideration Other Than a Counter Promise," by Prof. Ashley in 23 Har. L. Rev. 159; Ashley on Contracts 86; Bigelow on Estoppel (5th ed.), 463. 12 Blumenthal v. Goodall, 89 Cal. 251 (1891); Martin v. Meles, 179 Mass. 114 (1901), Holmes, J.; Wood v. Lady Duff Gordon, 222 N. Y. 88 (1917). In most cases where an exclusive agency was granted it has been so held. City v. Paoli, 202 N. Y. 18 (1911). Likewise in employment contracts. B. & M. R. R. Co. v. Bartlett, 3 Cush. (Mass.) 224 (1849); Moran v. Standard Oil Co., 211 N. Y. 187 (1914).

í Los Angeles Traction Co. v. Wilshire, 135 Cal. 654 (1902).

the condition prescribed by the change of rules. The plaintiff should not, therefore, have been permitted to recover.

14

Moreover, the rule is often expressed that where one party has reserved the right to terminate the contract it is void for lack of mutuality. This, presumably, is based upon the theory that if one party can, at will, escape his obligation there is no binding agreement. It may, therefore, be argued that this bilateral contract which a court might take such pains to find is, after all, void. The newspaper company reserved the right to change the rules, and such a right may be interpreted as empowering the company to put an end to the contract at any time, or at least as empowering it to make it practically impossible by extreme rules for the contest to go on. The authorities do not, however, entirely uphold this proposition. It would seem from the cases that if the right to cancel is absolute and one party need not accept the other's performance after it is done, then the contract is void for lack of mutuality. For, in such a case only the will of the party himself can bind him. If, on the other hand, the right to terminate is not absolute and at any time, but based upon a stipulation requiring notice to be given or upon a condition, then the agreement is binding.15 For, at any time before the notice is given or the condition occurs there is a good bilateral contract.16 Once one party has performed, the right to cancel is gone and the other is bound. Such a distinction is not made in equity. Though an action for breach of contract may be maintained a bill for specific performance or for an injunction will not. The reason given is obviously that equity will not issue a useless decree and if one party has it in his power to strip the decree of its force by exercising his option the decree is useless.

The contract is conditioned upon such change in the rules as the company may later dictate. The question then is whether this condition is too uncertain for enforcement. The New York Court of Appeals recently held that a contract of sale which called for delivery of paper to the plaintiff at fixed prices for four months and thereafter at a price to be agreed upon, no price to be higher than the maximum charged by a third company, was too uncertain to be

14Kellebrew v. Murray, 151 Ky. 345 (1912); G. N. R. Co. v. S. T. Co., 27 N. D. 256 (1914); American Agricultural Co. v. Kennedy, 103 Va. 171 (1904). There are however, exceptions where the right to cancel does not invalidate the agreement, as, for example, voidable contracts by minors, by insane persons, and contracts within the Statute of Frauds signed by only one party. I Williston on Contracts 220.

15 Leake on Contracts (7th ed.) 493-498.

Thomas v. Anthony, 30 Cal. A. 217 (1916); M. S. B. Co. v. Martin, I Fed. (2d) 687 (1924), and authorities there cited; ball players contracts in which the employer reserves the right to cancel the contract on notice are typical. See Phila. Ball Club v. Lajoie, 202 Pa. 210 (1902); Held contra, however, in Mayo v. Co., 211 Fed. 945 (1914); Ellis v. Dodge Bros., 237 Fed. 860 (1916); McCall Co. v. Wright, 198 N. Y. 143 (1910); 31 L. R. A. (N.s.) 249. For further citation to authorities see 13 C. J. 338, notes 72, 73, 74.

16Gurfein v. Werbelovsky, 97 Conn. 703 (1922), where in a contract for sale of glass the buyer had the option to cancel at any time before shipment, which was to be within 3 months. Held, once the shipment was made the buyer was bound by the contract. Noted in 32 Yale L. J. 496.

ness.

enforceable." It might not be difficult to determine what were the rules subsequently to be made. But the court might consider that the right gave the defendant too broad a latitude to allow of definiteIf effect is given to the intention of the parties there is no reason for refusing to enforce a condition which is reasonably certain. In the principal case, the California court resorted to none of these theories. It was taken for granted that a contract of some kind existed a convenient evasion of the bothersome doctrine of consideration. The discussion of the court was mainly addressed to the question of whether or not sufficient notice had been given. Was the plaintiff given sufficient notice of the change in rules? It was decided that personal notice was necessary. The city was small and the nature of the enterprise such that the relationship between the company and the contestants must have been close. Moreover, it was unreasonable to expect the plaintiff to read every edition of the defendant's newspaper every day. But the holding is clearly contrary to a true expression of the law. It is elementary that an offer may be revoked or changed at any time before acceptance. Mental determination to change, it is agreed, is not sufficient; the change must be communicated to all those to whom the offer was made. Where, however, an offer is general and made to the public it is impracticable if not impossible for an offeror to give actual notice to every one to whose attention the offer may have come. In such cases the notice of change may be made in the same manner and through the same channel as the original offer itself was made.18 Even had it been possible for the defendant company to have given personal notice to each contestant it was not bound to do so.

The equities in favor of the plaintiff are strong; yet the court fails to present adequate legal reasons for permitting her to recover the value of the automobile because of the defendant's alleged breach of contract in refusing to award her the car as a prize in the contest. Rosamond Trilling.

Criminal Law: Evidence: Confessions: Third Degree.-In the case of Ziang Sung Wan v. United States, 45 Sup. Ct. Rep. 1 (1924), the United States Supreme Court was called upon to pass upon the admissibility of a confession obtained from the defendant after a persistent questioning extending over a period of twelve days. Wan was suspected of the murder of three Chinese in Washington. Two detectives who were sent to New York to bring Wan back to Washington found him sick in bed, but they nevertheless brought him back and confined him in a bedroom on an upper floor of the Hotel Dewey. There he was subjected to persistent examinations in spite of the fact that he was very ill, that he was in constant pain, and that he had been unable to eat for several days. On the eighth day Wan was questioned continuously from 7 P. M. to 5 A. M. The superintendent

17 Sun P. & P. Ass'n v. Remington P. & P. Co., 235 N. Y. 338 (1923), noted in 23 Col. L. R. 783.

18Shuey v. U. S., 92 U. S. 73 (1875); 1 Elliot on Contracts 36, 38.

of police, apparently exhausted, had returned to his home before midnight while one of the detectives had fallen asleep, but the questioning of Wan continued. The confession was finally obtained from him, but it was not until the thirteenth day that the defendant was visited by the medical officer of the jail who found him "very weak, very much exhausted, very much emaciated."

Mr. Justice Brandeis writing the opinion for a unanimous court decided that the confession was involuntary and that it should have been excluded.

The history of the admissibility of confessions has passed through several distinct stages. Up to 1600 there was no restriction upon the reception of confessions. In fact, in this stage torture was not infrequently used to obtain a confession. In the second stage it was recognized that certain confessions should be rejected as untrustworthy. The rule that confessions which had been secured by promises or threats should be rejected was laid down definitely for the first time in Warickshall's Case in 1783.2 In the third stage, comprising the first half of the 1800s, there was a decided tendency to look with suspicion upon all confessions and to reject them upon the slightest pretext. Baron Parke remarked of this period that "he could not look at the decisions without some shame when he considered what objections had prevailed to prevent the reception of confessions in evidence, and that justice and common sense had been too frequently sacrificed at the shrine of mercy." The law is now in the fourth stage of its development in which an attempt is being made to break away from the hyper-sentimentality of the third stage and to apply more sensible rules.

The law is now well established that confessions obtained through promises or threats are not admissible. On the surface it would seem that such a test is eminently satisfactory and that its application would attain justice. But it is submitted that the proper test is as to whether the confession can be relied upon and not as to how it was obtained. There is no raison d'être for weak sentimentality towards those who violate our laws. It has been said, with no little truth, that

6

'Mitchel's Trial, 6 How. St. Tr. 1207, 1232 (1676); Gordon's Trial, 11 How. St. Tr. 46 (1680); Mass. Body of Liberties, c. 45 (1641 and 1660). See also Lowell, Judicial Use of Torture, 11 Har. L. R. 293.

21 Leach Cr. L. 298 (1783).

'In Rex v. Griffin, Russ. & R. (Eng.) 151 (1809), the confession was rejected because the accused was told that it would be better to confess; in Rex v. Jones, Ibid. 152 (1809), the confession was rejected because the prosecutor told the accused that he wanted his money and that if he gave it to him he might go to the devil if he pleased; in Rex v. Kingston, 4 Car. & P. (Eng.) 387 (1830), the confession was rejected because the prisoner was told that he was under suspicion and that he had better tell all he knew.

'Reg. v. Baldry, 5 Cox (Eng.) 523 (1852).

"Bram v. United States, 168 U. S. 532 (1897); Kelly v. State, 72 Ala. 244 (1882); People v. McMahon, 15 N. Y. 384 (1857); People v. Chapleau, 121 N. Y. 266 (1890); State v. Drake, 113 N. C. 624 (1893).

See dissenting opinion of Wells, J., in Beery v. United States, 2 Colo. 186, 211 (1873). See also United States v. Stone, 8 Fed. 232, 256 (1881); State v. Doyle, 146 La. 974, 986 (1920).