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," 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 (f).28 If A. on Wednesday 27] 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., with notice of A.'s dealing with C., tenders a formal acceptance to A., this is inoperative (g). It is different in modern Roman 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 (h). In our own law the effect of naming a definite time in the proposal is simply negative and for the proposer's benefit;29 that is, it operates as a warning that an accept

(f) We find something like this in early Germanic law, where earnest on a sale was not payment on account of a completed contract, but the price of the seller's forbearance to sell to any other person for a limited time. Heusler, Inst. des D. P. R. ii. 256, cp. Glanv. x. 14, showing the law to be then still doubtful in England.

(g) Dickinson v. Dodds (1876) 2 Ch. Div. 463, 45 L. J. Ch. 777. The case suggests, but does not decide, another question, which will be presently considered. Contra Langdell, Summary, p. 244; and on principle perhaps rightly.

(h) See L. R. 5 Ex. 337, n.

171 Pa. 109; Weaver v. Burr, 31 W. Va. 736. Where, on a treaty for a sale, an article is taken on trial, with an option to purchase if liked, there is no contract, but only an offer until the option is determined; Sturm r. Boker, 150 U. S. 312; Davis, &c., Works . McHugh, 115 la. 415; Hunt v. Wyman, 100 Mass 198; Omaha Bank v. Kraus, 62 Neb. 77. But where the article is taken with an option to return if not liked, there is a contract in the first place, subject to a right of rescission; Foley r. Felrath, 98 Ala. 176; Withersby v. Sleeper, 101 Mass. 138. See further, 9 Harv. L. Rev. 110.

28 So an option or offer under seal is irrevocable during the time which it specifies. Willard v. Taylor, 8 Wall. 557; Johnston r. Trippe, 33 Fed. Rep. 530; Mansfield r. Hodgdon, 147 Mass. 304, 307; O'Brien v. Boland, 166 Mass. 481; Walker v. Bamberger, 17 Utah, 239.

29 When an offer is in terms made to remain open until a fixed time, the proposal so limited comes to an end of itself at the end of that time, but a willingness to contract on the part of the party making the offer on the terms named in it, is presumed to continue during the time limited. Henthorn . Fraser [1892], 2 Ch. 31; Haldane v. United States, 69 Fed. Rep. 819; Smith v. Bateman, 8 Col. App. 336; Larmon v. Jordan, 56 Ill. 204; Galena, &c. R. v. Ennor, 116 Ill. 55; Crandall v. Willig, 166 Ill. 233; Coleman . Applegarth, 68 Md. 21; Railroad Co. v. Bartlett, 3 Cush. 224, 227; Wilson v. Cline, 70 Mich. 517; Mactier's Adm'rs r. Frith, 6 Wend. 103, 122; Cheney v. Cook, 7 Wis. 413; Sherley v. Peehl, 84 Wis. 46.

ance 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 there is nothing for the other party to accept.30 This leads us to the next rule, namely:

Conditions of offer.

Determination of offer by lapse of time. The proposer may prescribe a certain time within which the proposal is to be accepted, and the manner and form in which it is to be accepted.31 If no time is prescribed, the acceptance must be communicated to him within. a reasonable 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 [28 importance of not losing sight of it in dealing with the 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 (i).32

Among other conditions, the proposal may prescribe a particular place for acceptance, and if it does so, an acceptance elsewhere will not do (k). The 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

(i) Felthouse v. Bindley (1862) 11 C. B. N. S. 869, 875, 31 L. J. C. P. 204.

(k) Eliason v. Henshaw (1819) (Sup. Ct. U. S.) 4 Wheat. 225, Langdell, Sel. Ca. on Cont. 48, Finch Sel. Ca. 56.

30 Larmon v. Jordan, 56 Ill. 204; Potts v. Whitehead, 20 N. J. Eq. 55, 59; Longworth v. Mitchell, 26 Ohio St. 334, 342. See also Haldane v. United States, 69 Fed. Rep. 819, and cases cited in the preceding note.

31 Where the proposal stipulated for an acceptance by return mail, and the acceptance was not posted until two days after the receipt of the proposal, it was held that the promisor was not bound. Maclay r. Harvey, 90 Ill. 525. See further as to the effect of these words, Tinn v. Hoffman, 29 L. T. N. S. 271; Carr v. Duval, 14 Pet. 77, 82; Ortman v. Weaver, 11 Fed. Rep. 358, 362; Bernard v. Torrance, 5 G. & J. 383; Taylor v. Rennie, 35 Barb. 272; Palmer v. Insurance Co., 84 N. Y. 69; Howells v. Stroock, 50 N. Y. App. Div. 344.

32 Barton v. London & N. W. Ry. Co., 24 Q. B. D. 77; Wiedemann v. Walpole [1891], 2 Q. B. 534; Re Lloyd Edwards, 61 L. J. Ch. 23; Grice v. Noble, 59 Mich. 515, 523; Prescott v. Jones, 69 N. H. 305.

.33

nor has

at all events be taken as limited to a reasonable time (1) 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 revocation 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. Words of present obligation (but not capable of operating to that effect) have been held to constitute an offer with limit of time (m).

Limits of Revocation.

Revocation must be communicated before acceptance. 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.

29] *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.

A person who has made an offer must be considered as continuously making it until he has brought to the knowledge of the person to whom it was made that it is withdrawn (n). But that person's refusal or counter-offer puts an end to the original offer (nn).34

Revocation after acceptance too late. The first point under this head is that an express revocation communicated after acceptance, though

(1) Baily's case (1868) L. R. 5 Eq. 428, L. R. 3 Ch. 592, 37 L. J. Ch. 255; Ramsgate Hotel Co. v. Montefiore; same Co. v. Goldsmid (1866) L. R. 1 Ex. 109, 35 L. J. Ex. 90.

(m) Hindley's case [1896] 2 Ch. 121, 65 L. J. Ch. 591, C. A.

(n) Lord Herschell, Henthorn v. Fraser [1892] 2 Ch. 27, 31, 61 L. J. Ch. 373, 66 L. T. 439.

(nn) Hyde v. Wrench (1840) 3 Beav. 334, 52 R. R. 144. [Tinn v. Hoffman, 29 L. T. N. S. 271.]

33 Minnesota Oil Co. v. Collier Lead Co., 4 Dillon, 431; De Witt v. Railway Co., 41 Fed. Rep. 484; Hargadine v. McKittrick Co., 64 Fed. Rep. 560; Averill v. Hedge, 12 Conn. 424; Ferrier v. Storer, 63 Ia. 484; Trounstine v. Sellers, 25 Kans. 447; Moxley r. Moxley, 2 Met. (Ky.) 309; Loring v. Boston, 7 Met. 457; Park . Whitney, 148 Mass. 278; Railroad Co. v. Dane, 43 N. Y. 240; Mizell v. Burnett, 4 Jones L. 240; Sherley r. Peehl, 84 Wis. 46.

34 A counter-offer rejects the original offer. National Bank v. Hall, 101 U. S. 43, 50; Minneapolis, &c., Ry. Co. v. Columbus Rolling Mills, 119 U. S. 149; Ortman v. Weaver, 11 Fed. Rep. 358; Arthur v. Gordon, 37 Fed. Rep. 558; W. & H. M. Goulding Co. r. Hammond, 54 Fed. Rep. 639 (C. C. A.); James v. Darby, 100 Fed. Rep. 224; Anglo-American Co. r. Prentiss, 157 Ill. 506; Grenier r. Cota, 92 Mich. 23; Baker v. Johnson Co., 37 Ia. 186, 189; Cartmel v. Newton, 79 Ind. 1, 8; Fox v. Turner, 1 Ill. App. 153; Egger v. Nesbitt, 122 Mo. 667; Harris v. Scott, 67 N. H. 437; Russell v. Falls Mfg. Co., 106 Wis. 329.

35

determined upon before the date of the acceptance, is too late. This was decided so lately as in 1880 in two distinct cases (o). It will suffice to give shortly the facts of the earlier one (p). 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 plaintiffs accepted the offer by telegraph, confirming this by a letter sent on the 15th. Meanwhile 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 [30 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." 36

(o) (1880) Byrne v. Van Tienhoven, 5 C. P. D. 344, 49 L. J. C. P. 316, Finch Sel. Ca. 104; Stevenson v. McLean (1880) 5 Q. B. D. 346, 49 L. J. Q. B. 701; Henthorn v. Fraser

The second he likewise answered in

[1892] 2 Ch. 27, 61 L. J. Ch. 373, fully confirms these decisions.

(p) Byrne v. Van Tienhoven, last note.

35 Revocation is ineffectual until received by the offeree: Re London & Northern Bank, [1900] 1 Ch. 220; Tayloe v. Merchants' Fire Ins. Co., 9 How. 390; Patrick v. Bowman, 149 U. S. 411, 424; The Palo Alto, 2 Ware, 343; Kempner v. Cohn, 47 Ark. 519; Sherwin v. Nat. Cash Register Co., 5 Col. App. 162; Wheat . Cross, 31 Md. 99; Brauer t. Shaw, 168 Mass. 198. The contrary implications in Cooke v. Oxley, 3 T. R. 653; Adams v. Lindsell, 1 B. & Ald. 681; Head r. Diggon, 3 Man. & R. 97; Hebb's Case, L. R. 4 Eq. 9, must be regarded as overruled.

In Patrick v. Bowman, 149 U. S. 411, the Court, after holding that a revocation of an offer not received before acceptance was ineffectual, said (at p. 424): "There is indeed, in a case of this kind, some reason for urging that the party making the revocation should be estopped to claim that his attempted withdrawal was not binding upon himself; but this could not be done without infringing upon the inexorable rule that one party to a contract cannot be bound unless the other be also, notwithstanding that the principle of mutuality thus applied may enable a party to take advantage of the invalidity of his

own act."

36 The principle that the law takes no notice of mere mental operations apart from a physical expression of them, was quaintly stated by Brian, C J., 17 Edw. IV, T. Pasch., case 2, who said, as quoted by Lord Blackburn, in Brogden v. Metropolitan Rwy. Co., 2 App. Cas. 666, 692, "it is trite law that

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. This doctrine has been accepted by the Supreme Court of the United States (g).

Tacit revocation. It seems impossible to find any reason in principle why 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 (r), 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 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. 31] 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 it was said 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. (s). It does not appear

(q) Patrick v. Bowman (1893) 149 U. S. 411, 424.

(r) (1876) 2 Ch. Div. 463, 45 L. J. Ch. 777. One or two immaterial details are omitted in stating the facts.

(s) The headnote 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

the thought of man is not triable, for even the devil does not know what the thought of man is." See also Bowman v. Patrick, 36 Fed. Rep. 138, 144; The Palo Alto, Davies, 343, 357; O'Donnell v. Clinton, 145 Mass. 461, 463; Prescott v. Jones, 69 N. H. 305, 307; White v. Corlies, 46 N. Y. 467, 469.