r. Dodds.

has not accepted his offer (c). But if B. were to say to A.: "At present I do not know, but the refusal of your offer for a definite time is worth something to me; I will give you so much to keep it open till four o'clock" (or even, it may be, "If you will keep it open till four o'clock, then, in the event of my taking the goods, I will add so much to the price ") (y), and A. were to agree to this, then A. would be bound to keep his offer open, not by the offer itself, but by the subsequent independent contract. Dickinson If A. on Wednesday hands to B. a memorandum offering to sell a house at a certain price, with a postscript stating that the offer is to be "left over" till nine o'clock on Friday morning, A. may nevertheless sell the house to C. at any time before the offer is accepted by B. If B. having heard of A.'s dealing with C., tenders a formal acceptance to A., this is inoperative (~). It is different in the modern civil law. There a promise to keep a proposal open for a definite time is treated as binding, as indeed there appears no reason why it should not be in a system to which the doctrine of consideration is foreign: nay, there is held in effect to be in every proposal an implied promise to keep it open for a reasonable time (a). In our own law the effect of naming a definite time in the proposal is simply negative and for the proposer's benefit; that is, it operates as a warning that an acceptance will not be received after the lapse of the time named, not as an undertaking that if given sooner it shall be. In fact, the proposal so limited comes to an end of itself at the end of that time, and

(x) Cooke v. Oxley, 3 T. R. 653; affd. in Ex. Ch., see note. It is far from clear what the Court really meant to decide in that case, and it has been the subject of much criticism. For the conflicting views see Benjamin on Sale, 66 (3rd ed.) and Langdell's Summary of the Law of Contracts, p. 246.

(y) See G. N. Ry. Co. v. Witham, L. R. 9 C. P. 16: combining this with the principle of Hochster v.

De la Tour, 2 E. & B. 678, 22 L. J. Q. B. 455, and Frost v. Knight, L. R. 7 Ex. 111, one might get the result in the text, sed qu.

(z) Dickinson v. Dodds (C. A.), 2 Ch. D. 463. The case suggests, but does not decide, another question which will be presently considered. Contra Langdell, Summary, p. 244; and on principle perhaps rightly.

(a) Vangerow, Pand. § 603 (3, 253); see L. R. 5 Ex. 337, n.

there is nothing for the other party to accept. This leads us to the next rule, namely:

Conditions of Proposal.

able time.

The proposer may prescribe a certain time within which Determination of the proposal is to be accepted, and the manner and form proposal in which it is to be accepted. If no time is prescribed, by lapse of prescribed the acceptance must be communicated to him within a or reasonreasonable time. In neither case is the acceptor answerable for any delay which is the consequence of the proposer's own default. If no manner or form is prescribed, the acceptance may be communicated in any reasonable or usual manner or form.

This is almost self-evident, standing alone; we shall see the importance of not losing sight of it in dealing with certain difficulties to be presently considered. Note, however, that though the proposer may prescribe a form or time of acceptance, he cannot prescribe a form or time of refusal, so as to fix a contract on the other party if he does not refuse in some particular way or within some particular time (b).

Among other conditions, the proposal may prescribe a particular place for acceptance, and if it does so, an acceptance elsewhere will not do (c). The real question in cases of this kind is whether the condition as to time, place, or manner of acceptance was in fact part of the terms of the proposal.

There is direct authority for the statement that the proposal must at all events be taken as limited to a reasonable time (d); nor has it ever been openly disputed. The rule is obviously required by convenience and justice. It may be that the proposer has no means of making a re

(b) Felthouse v. Bindley, 11 C. B. N. S. 869, 875, 31 L. J. C. P. 204.

(c) Eliason v. Henshaw (Sup. Ct. U. S.), 4 Wheat. 225, Langdell, Sel. Ca. on Cont. 48.

(d) Baily's ca., 5 Eq. 428, 3 Ch. 529; Ramsgate Hotel Co. v. Montefiore, same Co. v. Goldsmid, L. R. 1 Ex. 109.

Revocation of proposal must be

communicated

before acceptance.

Revocation after

too late.

Byrne v. Van Tienhoven.

vocation known (e. g., if the other party changes his address without notice to him, or goes on a long journey), and he cannot be expected to wait for an unlimited time. There is also direct authority to show that an acceptance not communicated to the proposer or his agent does not make a contract (e); but this is subject to an important exception, as we shall presently see, where the parties are in correspondence through the post-office.

Limits of Revocation.

A proposal is revoked by communication to the other party of the proposer's intention to revoke it, and the revocation can take effect only when that communication is made before acceptance.

The communication may be either express or tacit, and notice received in fact, whether from the proposer or from any one in his behalf or otherwise, is a sufficient communication.

The rule involves two or three points which, strange to acceptance say, were not expressly disposed of by any English authority until quite lately. The first is that an express revocation communicated after acceptance, though determined upon before the date of the acceptance, is too late. This was decided in 1880 first by Lindley, J. in Byrne v. Van Tienhoven (f), and again shortly afterwards by Lush, J. in Stevenson v. MacLean (g). It will suffice to give shortly the facts of the former case. The defendants at Cardiff wrote to the plaintiffs at New York on the 1st of October, 1879, offering for sale 1000 boxes of tinplates on certain terms. Their letter was received on the 11th, and on the same day the plaintiff accepted the offer by telegraph, confirming this by a letter sent on the 15th. Meanwhile

(e) M'Iver v. Richardson, 1 M. & S. 557; Mozley v. Tinkler, 1 C. M. & R. 692; Russell v. Thornton, 4 H. & N. 788, 798, 804; Hebb's ca., 4

(ƒ) 5 C. P. D. 344. (g) 5 Q. B. D. 346. Both these judges afterwards became members of the Court of Appeal.

the defendants on the 8th of October had posted a letter withdrawing their offer of the 1st: this reached the plaintiffs on the 20th. The plaintiffs insisted on completion of the contract; the defendants maintained that there was no contract, the offer having been, in their view, withdrawn before the acceptance was either received or despatched. Lindley, J. stated as follows the questions to be considered: "1. Whether a withdrawal of an offer has any effect until it is communicated to the person to whom the offer has been sent? 2. Whether posting a letter of withdrawal is a communication to the person to whom the letter is sent ?" The first he answered in the negative, on the principle "that a state of mind not notified cannot be regarded in dealings between man and man, and that an uncommunicated revocation is for all practical purposes and in point of law no revocation at all." The second he likewise answered in the negative, on grounds of both principle and convenience, and notwithstanding an apparent, but only apparent, inconsistency with the rule as to acceptances by letter which will be presently considered. It seems impossible to find any reason in principle why As to tacit the necessity for communication should be less in the case of a revocation which is made not by words but by conduct, as by disposing to some one else of a thing offered for sale. Nor does it seem practicable in the face of the decisions just cited, though they do not actually cover such a case, to say that any such difference is recognized by the law of England. The authority most in point, Dickinson v. Dodds (h), is not of itself decisive. The facts were these. A. offered in writing to sell certain houses to B., adding a statement that the offer was to be "left over " until a time named; which statement, as we have already seen, could have no legal effect unless to warn B. that an acceptance would not be received at any later time. B. made up his

(h) 2 Ch. D. 463 (C. A.) One or two immaterial details are omitted in stating the facts.

revoca

tion.

Possibility

of double accept

ance.

mind the next morning to accept, but delayed communicating his acceptance to A. In the course of the day he heard from a person who was acting as his agent in the matter that A. had meanwhile offered or agreed to sell the property to C. Early on the following day (and within the time limited by A.'s memorandum) B. sought out A. and handed a formal acceptance to him; but A. answered, "You are too late. I have sold the property." It was held in the first instance by Bacon, V.C., that A. had made to B. an offer which up to the time of acceptance he had not revoked, and that consequently there was a binding contract between A. and B. But in the Court of Appeal this decision was reversed. James and Mellish, L.JJ., pointed out that, although no "express and actual withdrawal of the offer" had reached B., yet by his own. showing B., when he tendered his acceptance to A., well knew that A. had done what was inconsistent with a continued intention of contracting with B. Knowing this, B. could not by a formal acceptance force a contract on A. (i). It does not appear that the knowledge which B. in fact had was conveyed to him or his agent by or through A., or any one intending to communicate it on A.'s behalf. Therefore the case decides that knowledge in point of fact of the proposer's changed intention, however it reaches the other party, will make the proposer's conduct a sufficient revocation. But what if B. had communicated his acceptance to A. without knowing anything of A.'s dealings with C.? This question remains open, and must be considered on principle.

Suppose that A. offers to sell one hundred tons of iron to B., not designating any specific lot of iron, and that B.

(i) Baggallay, J.A. concurred. The head-note says: "Semble, that the sale of the property to a third person would of itself amount to a withdrawal of the offer, even although the person to whom the offer was first made had no know

ledge of the sale." This, I venture to think, (and so do the learned editors of Benjamin on Sale, 3rd ed.) is quite unwarranted by the judgments. See especially the remarks of Mellish, L.J. ad fin.